Friday, March 31, 2017

An Essay Collection on the Timing of Lawmaking

Out soon from Edward Elgar is The Timing of Lawmaking, ed. Frank Fagan, EDHEC Business School, and Saul Levmore, University of Chicago Law School:
Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book revisits older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future?
TOC after the jump.

Kalman's "Long Reach of the Sixties"

Although it won't ship until April 5, you can now pre-order what a Kirkus reviewer calls "an accessible, lucid brief on how our Supreme Court appointment system became the mess that it is.”  It's The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (Oxford University Press), by Laura Kalman, Professor of History at the University of California, Santa Barbara, and a past president of the American Society for Legal History:
The Warren Court of the 1950s and 1960s was the most liberal in American history. Yet within a few short years, new appointments redirected the Court in a more conservative direction, a trend that continued for decades. However, even after Warren retired and the makeup of the court changed, his Court cast a shadow that extends to our own era.

In The Long Reach of the Sixties, Laura Kalman focuses on the late 1960s and early 1970s, when Presidents Johnson and Nixon attempted to dominate the Court and alter its course. Using newly released--and consistently entertaining--recordings of Lyndon Johnson's and Richard Nixon's telephone conversations, she roots their efforts to mold the Court in their desire to protect their Presidencies. The fierce ideological battles--between the executive, legislative, and judicial branches--that ensued transformed the meaning of the Warren Court in American memory. Despite the fact that the Court's decisions generally reflected public opinion, the surrounding debate calcified the image of the Warren Court as activist and liberal. Abe Fortas's embarrassing fall and Nixon's campaign against liberal justices helped make the term "activist Warren Court" totemic for liberals and conservatives alike.

The fear of a liberal court has changed the appointment process forever, Kalman argues. Drawing from sources in the Ford, Reagan, Bush I, and Clinton presidential libraries, as well as the justices' papers, she shows how the desire to avoid another Warren Court has politicized appointments by an order of magnitude. Among other things, presidents now almost never nominate politicians as Supreme Court justices (another response to Warren, who had been the governor of California). Sophisticated, lively, and attuned to the ironies of history, The Long Reach of the Sixties is essential reading for all students of the modern Court and U.S. political history.
That Kirkus reviewer writes, “Not all legal history is as readable as this, nor is it as crisply argued without turgid legalese.”  Those of us who heard Professor Kalman’s plenary address, drawn from the book and her extensive research in the archives and presidential recordings of LBJ and Richard Nixon, already knew that.  We can’t wait to read the book-length development of her argument that the crucial turning point in the recent history of U.S. Supreme Court nominations was not the Bork hearing but an earlier spate of judicial nominations in which combatants fought to preserve or discard the legacy of the Warren Court.  TOC after the jump

Heuschert-Laage on Mongolian legal history

We recently mentioned the new journal, Buddhism, Law & Society. Here is a legal history article from its inaugural issue: Dorothea Heuschert-Laage, University of Bern, "Negotiating Modalities of Succession: The interplay between different legal spheres in eighteenth-century Mongolia," Buddhism, Law & Society 1 (2015-16): 165-94. Here's the abstract:
For 18th-century Mongols living under Qing rule, the imperial state was not the only source of law. Among the rules acknowledged to have binding character were Buddhist legal traditions, customary legal practices as well as rights and duties emanating from dependencies and prerogatives. Yet, the existence of these different legal practices and codes raises many questions about the specific way these different realms of law were interwoven, how Mongols used them and how they could be acting in different spheres of law at the same time. On the basis of archival material, this paper discusses how in the 18th century people switched between different regulatory orders, but also demonstrates that since legal disputes often—maybe even regularly—occurred in more than one legal realm at the same time, it is not always possible to determine where the one sphere began and the other ended. To address complexity of this legal environment, this paper draws on theoretical approaches from legal anthropology, especially research on legal pluralism. I begin with some general remarks on the legal situation in Qing-dynasty Mongolia and the relationship between the law of the Qing state, Buddhist law and local legal conditions. Then, I address two legal cases from the late 18th century that will illustrate how individual litigants and courts chose between different fields of legal reasoning. I argue that the wide spectrum of legal actors within this complex legal environment both enabled and compelled people to switch between different spheres of law.

Two by George on LGBT Rights

Marie-Amelie George, currently a fellow at Columbia Law School and soon to be the Berger-Howe fellow at Harvard Law School, has posted two articles.

"Bureaucratic Agency: Administering the Transformation of LGBT Rights" appears in Volume 36 of the Yale Law & Policy Review (2017). Here's the abstract:
In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit bathroom access for transgender students. The bureaucratic resistance this Article uncovers demonstrates the dynamism of the administrative state and how bureaucracy is important site of legal change.

Using this untold history of LGBT rights, this Article identifies when bureaucratic resistance is a permissible means of protecting minority rights. Resistance as a mechanism of legal change raises separation of powers and democratic legitimacy concerns, since administrative agencies are charged with executing enacted legislation. However, the very structure of administrative bureaucracies gives rise to this problem, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that same expertise. This Article argues that this type of bureaucratic resistance can be both permissible and desirable. It presents parameters for when bureaucrats may legitimately resist legislation based on their expertise so as to allow bureaucrats to introduce viewpoint diversifying scientific developments that promote minority rights, while mitigating the potential for harm.
The second article, "Expressive Ends: Understanding Conversion Therapy Bans," appears in Volume 68 of the Alabama Law Review (2017). Here's the abstract:
LGBT rights groups have recently made bans on conversion therapy, a practice intended to reduce or eliminate a person’s same-sex sexual attractions, a primary piece of their legislative agenda. However, the statutes only apply to licensed mental health professionals, even though most conversion therapy is practiced by religious counselors and lay ministers. Conversion therapy bans thus present a striking legal question: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers? Based on archival research and original interviews, this Article argues that the bans are significant because of their expressive function, rather than their prescriptive effects.

The laws’ proponents are using the statutes to create a social norm against conversion therapy writ large, thus broadening the bans’ reach to the religious practitioners the law cannot directly regulate. LGBT rights groups are also extending the bans’ expressive message to support the argument that sexual orientation is immutable and to reverse a historical narrative that cast gays and lesbians as dangerous to children. These related claims have been central to gay rights efforts for much of the twentieth century and continue to shape LGBT rights battles.

While the expressive effects of the bans are important, the laws and the campaign around them may have a negative effect. LGBT rights organizations working on the laws do not distinguish between conversion therapy efforts aimed at changing sexual orientation and those targeting behavior. This is troubling, not only because it fails to acknowledge the needs of same-sex attracted individuals who wish to live in accordance with their religious beliefs, but also because it reinforces a limited view of gay identity. Many within the LGBT movement contest the identity model that legal advocates have championed, and that conception of sexual orientation may in fact hinder the movement’s long-term goals. Differentiating between the various types of conversion therapy would help remedy this by emphasizing the law’s need to respect and protect sexual decisions and expressions, as well as create a platform from which to promote a more expansive vision of LGBT rights.
Full text is available on SSRN.

Thursday, March 30, 2017

Kiel to Present in Chicago-Area Legal History Workshop

We hear that the Chicago-area Legal History Workshop will meet Wednesday, April 5, at 4pm, at the American Bar Foundation, 750 N. Lake Shore Drive, 4th Floor Woods Conference Room, where Doug Kiel, Department of History, Northwestern University, will present “Oneida Nation v. Village of Hobart: Indigenous Land Recovery and Settler Resentment.”  For more information, contact Joanna Grisinger, Northwestern University, joanna.grisinger

The Challenges of Comparative Law and Transnational History

One of the ever-impressive aspects of working on transnational legal history is encountering the careers of many pioneering international lawyers. For an academic, one is struck by the polymath capabilities of those who moved between legal cultures and traditions well before the easy access of information that the internet has allowed.

What these internationalized careers help convey is that transnational law, and thus transnational legal history, is always concurrently engaged in comparative law. Distinct bodies of law formally divorced from any particular nation state, say WTO dispute resolution, are ever a hybrid amalgam of various national traditions, in construction and more so in practice.

In my own graduate education, I came to this realization first through the work of Yves Dezalay and Bryant Garth. Their first book, Dealing in Virtue, highlighted both this polymath quality in early international arbitrators and that the focal function of their abilities was not so much to practice professionally in distinct national settings (though many did) but to be able to navigate the linguistic and practical challenges of transnational spaces where these influences collided.

During my research for Futility, I came to appreciate this for many of the missionaries I studied. The term “cosmopolitan” is often used quite superficially, and today can simply denote a well-funded travel itinerary that substitutes taxi driver conversations for cultural immersion. By contrast, I was taken with, and without any personal religious sentiment, the serious intellectual rigor with which many dedicated missionaries confronted their transnational, inter-cultural challenges.

Even though I would come to be critical of the overall impact of missionaries on Sino-American relations, I could find little fault with the reflexive positions many missionaries eventual came to. John Nevius was one example who challenged my own preexisting assumptions about the critical cosmopolitanism of missionaries, and who was considered an iconoclast in Chinese missionary circles for his committed focus on local ownership and criticisms of naïveté about unequal power relationships in inter-cultural contexts

Wu Jinxiong (Wiki)
For Chinese actors, this type of relative sophistication was matched by difficulties navigating stark power asymmetries both with outside actors and their own domestic regimes. In the context of law, this led many lawyers to struggle with representational strategies at home while trying to critically understand the foreign legal systems and ideas they engaged with. A key example here was Wu Jingxiong (吳經熊) or John Wu, a Catholic convert who wrote throughout his career on Asian and Western legal systems in critical juxtaposition. Wu also actively engaged as a liberal minded reformer within the authoritarian Guomingdang regime who putatively governed Chinese from the late 1910s to the late 1940s. His life was a decidedly transnational one, but at its core one of a comparative lawyer.

Schlag on Hohfeld, Liberalism, and Adjudication

Pierre Schlag, University of Colorado Law School, has posted Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions), forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, ed. Shyam Balganesh, Ted Sichelman and Henry Smith (Cambridge University Press, 2018):
Wesley Newcomb Hohfeld’s 1913 article, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” is in some ways a stunning success. It has played an important role in shaping a variety of schools of thought—analytical jurisprudence, legal realism, law and economics, critical legal studies, and property theory. At the same time, Hohfeld’s platform, has been largely ignored among the judiciary and among those legal academics who embrace judicial or doctrinal discourse.

In this chapter, I immediately put aside the easy and obvious explanations (without prejudice) for a deeper account—namely, the suggestion that there are ongoing tensions between the Hohfeldian platform on the one hand and liberalism as well as liberal forms of adjudication on the other. The Hohfeldian platform enables us see in liberalism and its forms of adjudication certain aspects that neither endeavor might otherwise want to recognize and address.

The chapter closes with an entreaty that, in this particular moment of political and legal uncertainty, legal thinkers move beyond the cloisteredlu comforts of liberal thought and consider the organization of state and civil society in broader, even if more challenging, theoretical terms.
We love Schlag's characterization of Hohfeld’s “extremely elegant, irreducible, and ostensibly universal set of relations of form” as “double-entry bookkeeping for law.”

Bateman on Constantine's Bishops as Law-Givers in Late Antiquity

C.G. Bateman, University of British Columbia Faculty of Law has posted Supreme Court of the Roman Empire: Constantine's Bishops:
Constantine, the Roman Emperor from 315-337, was a law-giver and put the Christian Church in a place of primacy in the organization of the state which it only lost as recently as the seventeenth century: as such, he is very important to legal and social history in the Western experience. This thesis looks at one aspect of the degree to which the Emperor Constantine’s adoption of the Christian religion’s political structure affected the social cohesion of the state. I suggest that the adoption was the single most important confluence of state powers in Late Antiquity, and I demonstrate how Constantine did this using the instrumentality of legislation regarding religious tolerance and the vaulting of Bishops in to the position of appeal court judges throughout the Roman Empire. I suggest what Constantine was trying to achieve was an imputation of his own consciousness into the legal life of the Empire by making Christian bishops the final court of appeal for anyone who felt they would get a more fair hearing in front of a bishop than they would under a Roman provincial magistrate: and, very importantly, we know from the legislative record that Constantine was very concerned to root out corruption in the practice of court officials across his empire. He was able to accomplish this in large part, I suggest, by opening up new courts of appeal across his empire which all Roman peoples, Christian or not, could get a more just hearing at. In this way, I will demonstrate how Constantine, having the Bishops already beholden to him by his adoption of their religion, thought he could count on these prelates to employ his consciousness to the various matters that came before the court. In other words, his close relationship to the bishops, established at Nicaea, was used to consolidate his control over the Roman legal system by making the courts of bishops a kind of Supreme Court of the Roman Empire. By alleging this I then agree with Burckhardt, that Constantine did use the Church to his own political ends.
Hat tip: Legal Theory Blog

Wednesday, March 29, 2017

Finkelman on Douglass's Constitution

It turns out that President Trump was right: Frederick Douglass isgetting recognized more and more.”  Paul Finkelman, University of Pittsburgh School of Law and the Albany Law School, has posted Frederick Douglas's Constitution: From Garrisonian Abolitionist to Lincoln Republican, which appears in the Missouri Law Review  81 (2016): 1-73:
Frederick Douglass (NYPL)
This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass.

First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.

Premo on ordinary litigants in the Spanish Empire

Bianca Premo, Florida International University has published The Enlightenment on Trial: Ordinary Litigants and Colonialism in the Spanish Empire with Oxford University Press. From the publisher:
Product DetailsThis is a history of the Enlightenment--the rights-oriented, formalist, secularizing, freedom-inspired eighteenth-century movement that defined modern Western law. But rather than members of a cosmopolitan Republic of Letters, its principal protagonists are non-literate, poor, and enslaved litigants who sued their superiors in the royal courts of Spain's American colonies. 
Despite growing evidence of the Hispanic world's contributions to Enlightenment science, the writing of history, and statecraft, the region is conventionally believed to have taken an alternate route to modernity. This book grapples with the contradiction between this legacy and eighteenth-century Spanish Americans' active production of concepts fundamental to modern law. The Enlightenment on Trial offers readers new insight into how Spanish imperial subjects created legal documents, fresh interpretations of the intellectual transformations and legal reform policies of the period, and comparative analysis of the volume of civil suits from six regions in Mexico, Peru and Spain.
Ordinary litigants in the colonies--far more often than peninsular Spaniards--sued superiors at an accelerating pace in the second half of the eighteenth century. Three types of cases increased even faster than a stunning general rise of civil suits in the colonies: those that slaves, native peasants and women initiated against masters, native leaders and husbands. As they entered court, these litigants advanced a new law-centered culture distinct from the casuistic, justice-oriented legal culture of the early modern period. And they did so at precisely the same time that a few bright minds of Europe enshrined new ideas in print. The conclusion considers why, if this is so, the Spanish empire has remained marginal to the story of the advent of the modern West.
Praise for the book:

"The best books reveal truths we didn't know and make them seem obvious. Bianca Premo's masterfully researched and beautifully written book shows how ordinary men and women shaped Atlantic legal culture as they sued more powerful adversaries. The result is required reading for anyone interested in law and empire, the Americas in world history, and new approaches to the history of ideas."-Lauren Benton

"In Spain, legal culture privileged extralegal solutions to communal conflict, promoting the informal mediation of the powerful within and therefore reinforcing a patriarchal ancien-regime. Not in the New World. Bianca Premo marshals overwhelming empirical evidence to show that subordinates in Spanish America regularly took social superiors to court: wives husbands, Indian commoners caciques, slaves masters. This is social history of the law at its best that untethers the Enlightenment from its traditional, parochial European moorings. To understand Enlightenment, go to Peru, don't read Voltaire."-Jorge Canizares-Esguerra

"Combining prodigious archival research with sterling prose, this book centers unlettered Latin Americans' contributions to the Enlightenment. In challenging a timeworn narrative, Premo makes signal contributions to histories of slavery, women, and indigenous peoples. A towering achievement."-Pamela Voekel

Further information is available here.

Schiller Joins Cambridge SLH Editorial Team

The Cambridge University Press Studies in Legal History Series recently welcomed a new member -- UC Hastings' Reuel Schiller -- to the editorial team. Here's the SLH announcement:
Studies in Legal History Editors Holly Brewer, Michael Lobban, and Sarah Barringer Gordon welcome Reuel Schiller to the ALH editorial team.
“I am deeply honored to become a co-editor of the Society’s Studies in Legal History series,” Schiller said. “The series’ list is a tremendous one, and its role in nurturing young legal historians is exceptionally important. Our field is growing, both in numbers and in the range of legal subjects that scholars are viewing through a historical prism. I appreciate the opportunity to advance the work of the series in this exciting time for our discipline.”
Reuel Schiller is The Honorable Roger J. Traynor Chair and Professor of Law at the University of California, Hastings College of the Law, where he teaches American legal history, administrative law, and labor and employment law. He has written extensively about the legal history of the American administrative state, and the historical development of labor law and employment discrimination law. He is the author of Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (Cambridge University Press, 2015), as well as numerous articles on the history of American labor law and administrative law in the twentieth century. In 2008, he was awarded the American Bar Association, Section on Administrative Law and Regulatory Practice Award for Scholarship in Administrative Law. Forging Rivals received an honorable mention for the 2016 J. Willard Hurst Prize from the Law and Society Association. His current research focuses on the development of administrative law and the regulatory state after the collapse of the New Deal order.
Reuel is particularly (though not exclusively) interested in working with authors writing about subjects in nineteenth and twentieth-century American legal history related to state-building, the employment relationship, constitutional law, public law, and the interaction of race and class in the legal system. Though his own work sits at the juncture of legal, political, and intellectual history, he is delighted to work with authors across a wide range of methodologies and subjects.

Tuesday, March 28, 2017

Functionalism and Synthetic History

Functionalism has any number of academic meanings. In anthropology, it references some of the early ethnographic work I mentioned in my last post–carried out with the aspiration to entirely map the inter-relationships of a bounded social space. But today I am using the term much more narrowly to describe the manner in which the inquiry which led to my first book unfolded.

My turn from ethnography to history was driven by an attempt to answer a very specific question about the field commonly called law and development–a short hand in the United States for varied attempts to mold foreign legal systems through the export of American law. In particular, the field has been characterized by many as passing through cycles of optimism and failure, with roaming geographical foci over the last several decades. The ever-present, but in my mind unanswered question, in post-mortems of these efforts is why they persisted when their putative justification, normatively desirable transformation of said foreign legal systems, never materialized when subjected to critical scrutiny.

For my work in China, my initial fieldwork did not provide any satisfactory answers to this question, and seemed to only recapitulate earlier work about the micro and macro-deficits in the technocratic administration of these programs. I did encounter several reflective practitioners whose complex relationship to their work made me puzzle over the larger cultural and political ideologies in which they felt trapped.

Out of simple frustration, I started trying to trace precedents for law and development work in China. Suddenly, I started to make all number of surprising discoveries. Most striking was that there were historical precedents to American efforts to impact Chinese law long before 1978, and well before the consensus starting point for law and development’s origins in the 1950s.

This is when I first unearthed Roscoe Pound’s time as an adviser to the Guomindang government in the late 1940s, Frank Goodnow’s infamous involvement with Chinese constitutional processes in the 1910s, and Warren Seavey’s tenure teaching at a missionary law school in Tianjin in the 1900s. I found influential Harvard President Charles Eliot writing about property rights after a mission to China for the Carnegie Endowment for International Peace, and issues of the Harvard Law Review contemplating American law as a colonial science in the 1890s. I even found commentaries on Chinese law included in the very first turn of the century volumes of the still popular Green Bag publication.

But beyond these higher-profile actors, I found prior to 1949 all number of smaller engagements that portrayed a seemingly forgotten period of intense interest in Chinese law by the American legal profession, and then only a subset of a broad popular fascination. Alfred Aldridge's The Dragon and the Eagle and John Tchen’s New York Before Chinatown were two early discoveries that made me realize how shallow my preconceptions were about the depth and complexity of Sino-American history.

Every decade I pushed into led to ever-surprising findings until I arrived in the Revolutionary era to find a complete reversal of the law and development ethos in dialogues about Chinese law among the Founders. Many Founders were hungry to learn as much as they could about China to inform debates about America’s future legal institutions – from Thomas Jefferson’s deep interest in the Chinese service exam to Benjamin Franklin’s personal obsession with Confucian political philosophy.

Schmidt on State Action and Doctrinal Confusion

Christopher W. Schmidt, Chicago-Kent College of Law, has posted On Doctrinal Confusion: The Case of the State Action Doctrine, which appears in the Brigham Young University Law Review 2016: 575:
In this Article, I use a case study of the Fourteenth Amendment’s state action doctrine as a vehicle to consider, and partially defend, the phenomenon of persistent doctrinal confusion in constitutional law. Certain areas of constitutional law are messy. Precedents seem to contradict one another; the relevant tests are difficult to apply to new facts and new issues; the principles that underlie the doctrine are difficult to discern. They may become a “conceptual disaster area,” as Charles Black once described the state action doctrine. By examining the evolution of the state action doctrine, this notoriously murky field of constitutional law, I seek to better understand doctrinal confusion, to examine why it often occurs and why it sometimes persists, and to argue that under certain circumstances doctrinal confusion may actually be a good thing.

George Named Berger-Howe Fellow

[We have the following announcement.]

Harvard Law School is pleased to announce that Marie-Amélie George will be the Raoul Berger-Mark DeWolfe Howe Legal History Fellow for 2017-2018.  Ms. George received her law degree from Columbia, where she was editor-in-chief of the Columbia Journal Gender & Law, after which she practiced, first as a prosecutor in the Miami-Dade County State Attorney’s Office, then as a litigation association at Paul, Weiss, Rifkind, Wharton & Garrison.  She is currently an Associate in Law at Columbia Law School while finishing her Ph.D. in history at Yale.  She will use her time as the Berger-Howe Fellow to complete her dissertation, “Deviant Justice: The Transformation of Gay and Lesbian Rights in America.”

St. John Green on Torts and Crime in 1875: The Kikuchi Notebooks

[With a hat tip to David J. Seipp, Professor of Law and Law Alumni Scholar, Boston University School of Law, we have the following announcement.]

Chuo University (Tokyo) has published law student notes (in English) taken by one of its founders, Takeo Kikuchi, while he studied at Boston University.  This volume contains three courses taught by Nicholas St. John Green (1830-1876) on Torts, Criminal Law, and Kent's Commentaries.  Green was the eldest member of the Metaphysical Club, which also included O.W. Holmes., C. Wright, C.S. Peirce, and W. James.  Not fully on board with Langdell's innovations, Green left Harvard for Boston University, and the few pieces that he published before his untimely death show him an innovative and profound theorist of tort liability.  The Kikuchi notebooks, which have been preserved in the archives of Chuo University, are transcribed and annotated, with a brief biography of Green, by David J. Seipp (B.U.), and introduced by Tatsuya Kitai (Chuo).  They are an example of law teaching during an interesting period of transition.  A limited number of copies of this publication are available to interested librarians and legal historians.  To receive one, send an e-mail to with the subject line: "28th issue of Hist. Mats. of Chuo University" and include in the body of your e-mail your name, your address, the name of your institution, and the number of copies you request.

Monday, March 27, 2017

CFP: Constraining the Executive Branch

[Via Notice and Comment, we have the following CFP.]

The Chapman Law Review is pleased to invite article submissions on the theme: “Constraining the Executive Branch.” Publications will appear in a symposium edition, and authors will receive an honorarium.

The executive branch is often criticized for overreaching its powers. Legal issues arise regarding constraining such powers through legislation and litigation. There are various tools Congress, the states, and private parties can use to constrain the Executive Branch, each varying in its level of effectiveness and appropriateness.

Bishara on Debt in the Indian Ocean

Out this month with Cambridge University Press is A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780-1950 by Fahad Bishara, University of Virginia. From the press:

A Sea of DebtIn this innovative legal history of economic life in the Western Indian Ocean, Bishara examines the transformations of Islamic law and Islamicate commercial practices during the emergence of modern capitalism in the region. In this time of expanding commercial activity, a mélange of Arab, Indian, Swahili and Baloch merchants, planters, jurists, judges, soldiers and seamen forged the frontiers of a shared world. The interlinked worlds of trade and politics that these actors created, the shared commercial grammars and institutions that they developed and the spatial and socio-economic mobilities they engaged in endured until at least the middle of the twentieth century. This major study examines the Indian Ocean from Oman to India and East Africa over an extended period of time, drawing together the histories of commerce, law and empire in a sophisticated, original and richly textured history of capitalism in the Islamic world.

Here is the Table of Contents:
1. Life and debt 
2. Inscribing obligation 
3. Paper routes 
4. Translating transactions 
5. Making Africa Indian 
6. Muslim mortgages 
7. Capital moves 
8. Unravelling obligation 

Full information is available here.

McKinley Receives Ewell Award

Congratulations to former LHB Guest Blogger Michelle McKinley, Bernard B. Kliks Professor of Law, University of Oregon Law School, upon her receiving the Judy Ewell Award for the Best Publication in Women's History of the Rocky Mountain Council for Latin American Studies for Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700.  The award will be presented at the Society’s banquet in Salt Lake City, on April 8.

Saturday, March 25, 2017

Weekend Roundup

  • Brexit on the mind? You may be interested in a conference on EU legal history at the Max Planck Institute for European Legal History in Frankfurt, June 22-23, 2017. Full info on "Treaties as travaux préparatoires: Conference on the 60th Anniversary of the Treaties of Rome" here
  • There's a new journal around, and it's peer-reviewed. Read more about Buddhism, Law & Society here and here.
  • My Georgetown law colleague Lawrence B. Solum’s statement on originalism during the hearings on the Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States is here in writing and here on video.  Hat tip: Legal Theory Blog.  DRE
  • If you're still looking to join a panel at the ASLH, don't forget to check out the "in search of" posting over at H-Law.
  • Update: The traveling exhibit Asian Pacific Legal Experience in America will be open for free, self-guided tours at the Minnesota State Law Library April 3-14.  Topics covered include “the Chinese Exclusion Act of 1882, the Japanese-American Incarceration during World War II, and the Immigration and Nationality Act of 1965.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 24, 2017

CFP: "Traffic in Women" and International Law

[We have the following call for articles on the“'Traffic in Women' and International Law."]

Six international conventions to combat the so-called “Mädchenhandel”, “white slavery”, “traffic in women” and “human trafficking” were adopted over the course of the 20th century. During the first half of the 20th century the issue received political and public attention to a degree as to make it possible to regulate it through international law. Five of the six international conventions were adopted between 1904 and 1949, while the last one was signed only in 2000. The phenomenon of the “trafficking in women” thus was one of the first fields for the regulation through international law along with more traditional issues, such as war and peace. A joint consideration of “trafficking” and international law thus offers a promising research topic.

Nevertheless, the international law dimension has only played a minor role in historical research on “trafficking”. So far, “trafficking” has been analysed with a view towards the multiple national as well as transnational civil society efforts and initiatives to combat „Mädchenhandel“, „white slavery“ or „traffic in women“. Some analyses have situated these efforts in the context of a “moral panic” and have, in some cases, questioned the existence of the underlying phenomenon. Studies focusing on the politics and implementation of anti-trafficking initiatives in national and local contexts, concentrated on certain regions. Research focusing on practices and implementation have pointed to an intricate connection between the politics of prostitution, migration and, more generally, sexual politics. A number of studies have analysed the raced, gendered and classed dimensions of discourses, representations and politics in this field.

All these studies have pointed to core issues connected to histories of “trafficking”, such as prostitution, sexuality, migration, police, law and order as well as social and political efforts of civil society and media representations. A more general view of the research on the histories on trafficking reveals, however, a rather fragmented field, in particular with regard to the dimensions of international law, which often do not go far beyond teleological success stories of an international struggle against this “evil”.

This edited volume seeks to integrate all these aspects by approaching the field through actors and institutions: A number of actors in the fields of social and security politics, including networks of legal experts, contributed to the development and expansion of institutions to regulate “trafficking”.

Kornhauser on Taxing Bachelors

Marjorie E. Kornhauser, Tulane University School of Law, has posted Taxing Bachelors in America: 1895-1939:
The Bachelor's Ideal (NYPL)
Bachelor taxes have existed across the globe and throughout millennia. In modern income taxes, they occur only indirectly, as by-products of favorable exemptions and tax rates for married couples. However, in prior centuries—even the 20th century—bachelor taxes existed as direct, explicit taxes levied on bachelors as bachelors. From 1895 through 1939, American municipalities and states proposed these taxes with surprising frequency and newspapers consistently reported on them as well as on foreign bachelor taxes.

Although often greeted with hilarity and rarely passed, explicit bachelor taxes during this period were motivated by serious concerns. The need for revenue was one reason these taxes were proposed. It was not, however, the only—or even the major—reason.

This paper suggests that social unease was the primary motivation for American bachelor taxes in this period. Decades of industrialization, urbanization, immigration, and increased consumerism had created social tensions and dislocations by radically altering everyday living patterns and basic social institutions. The bachelor tax proposals and discussions during this period expressed many people’s discomfort with the changes. Since they believed marriage was the foundation of society and American democracy, they perceived any threat to marriage as threatening the fabric of America. Consequently, they viewed bachelor taxes as a remedy for the moral decay of the nation. In actuality, the taxes were mainly expressive in nature. Not only did most of them fail to pass, but even if they did pass, they were largely ineffective methods to increase marriages, as some contemporaries noted.

The demise of explicit bachelor taxes did not end concerns about marriage and the moral state of society. These same concerns were part of the debates about mandatory joint returns in the late 1930s and early 1940s. Similarly, they remain an important element of recent debates about marriage penalties and the tax treatment of families.

Farbman, "Reconstructing Local Government"

Just out in the Vanderbilt Law Review: "Reconstructing Local Government," by Daniel Farbman (Climenko Fellow, Harvard Law School). Here's the abstract:
After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of the black population by wealthy white planters, was no longer viable. The urgent question facing both those who sought to reform and those who sought to preserve the “Old South” was: What should local government look like after emancipation? This Article tells the story of the struggle over the answer to that question. At the center of that struggle is an untold legal history of local government reform during Reconstruction. In the years immediately after the Civil War, idealistic Yankee reformers went south with the explicit aim of remaking the “fabric of southern culture” by rebuilding the South in the image of their northern homes. Specifically, in North Carolina, Virginia, and South Carolina, these reformers rewrote state constitutions to replace the plantation and county court with townships modeled on the New England town. Southern conservatives resisted the new townships, understanding them as foreign impositions targeted to destroy their old way of life. Within a decade they had dismantled the new townships and built the foundations of a new Jim Crow local order rooted in the county and approximating a return to the plantation. By telling this new history, this Article contributes to present scholarship in at least two ways. First, the story highlights a binary struggle between “communitarian” localism embodied in the civic participation of the New England town and “proprietary” localism embodied in the private power of the plantation owner. This struggle was framed with crystal clarity during Reconstruction, but it remains a powerful analytic tool for understanding today’s debates and struggles over local government. Second and relatedly, this history reveals the extent to which racial anxiety shaped and continues to shape local institutions. The communitarian township experiment was fueled by a vision of racial equality—and the white supremacist response to it was fueled by resentment and resistance to that vision. When we think about localism and racial inequality, we tend to think about the responses to school desegregation in the mid-twentieth century when racial resentment and fear during the “Second Reconstruction” drove white flight and contributed to resegregation through suburbanization. This Article shows that we may be looking at the wrong Reconstruction. In fact, the pathologies of local government, racial segregation, democracy, and protection of property were framed after the Civil War, in the crucible of a direct conflict between utopian racial egalitarianism and white supremacy.
Full text is available here.

Thursday, March 23, 2017

Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation

One ideal of early anthropology was that long-term ethnographic research could fully map the social structure and meanings of a specific cultural space. The ethnographer could then give total context for any individual action or social practice, and thus interpret such with a capacity beyond either naïve outsider or self-interested insider. While the realism of this ideal would be progressively deconstructed over time, it spawned a durable holism that recognized the deep interconnection of all material and symbolic contexts.

This holistic aspiration has been recurrently challenged as anthropologists came to recognize the often global interconnections and engagements which permeated the presumed isolation of even “remote” cultural spaces. Anthropology turned to increasingly complex social theories to try and reconcile the way in which its empirical subject became unmoored from static spaces and times, and eventually encompassed the most intensely internationalized settings. As a result great concern emerged for the practice of interpretation far removed from the methodological confidence of anthropology’s pioneering works. And the treacherous pitfalls of writing across stark asymmetries in power, often about people unable to equally represent themselves, even inspired claims that modern anthropology had paralyzed itself through a fetishization of the personal act of writing itself.

It is much more difficult to delineate the general trend of history as discipline, even at this high level of generality. Certainly, interpretation is at the core of archival research, and debates over sources and their meanings have roiled history as an academic practice. No self-critical historian treats their textual sources as a direct portal into the soul of their subject, and the focus of much graduate historical training is the general education required to provide context for documentary interpretation.

But I would advance that the anthropological engagement with history reflects a much greater uncertainty about interpretation, as well as a general theoretical concern with how time itself is structured as a social practice. In my own turn from ethnography to history, I felt this disciplinary anxiety acutely as I tried to reconstruct the creation of a cultural ideology, what I call American legal internationalism, that was formed in spaces both fully transnational and only lightly touched by global forces. Moreover, this ideology was premised on cross-cultural interpretations of the character of foreign peoples and their legal institutions. A further complication was that the driving force of this ideology was literal lawyer-missionaries who carried with them a presumption that their own good intentions would positively impact another society.

One highly influential book in my process of wrestling with these issues was Fredrik Barth’s Ethnic Groups and Boundaries, which theorized about how social identities were formed and reformed through increasingly intense interactions with social “outsiders.” Moreover, in the context of law such cross-cultural judgments had been central to patterns of degradation and subjection in pre-modern empires and modern imperialism alike. This trepidation led me to the writings of the recently passed Tzvetan Todorov, who in his The Morals of History grappled with the ethics of practicing history, especially when intimately tied to cross-cultural engagements.

No episode in the development of historical anthropology outlines these tensions better than the controversy over the arrival and death of James Cook in Hawai’i. In barest form, Cook arrived in Hawai’i for the third time in 1779 during the indigenous Hawaiians celebration of the god Lono. A month later, Cook was killed while attempting to take the local king ransom, and then ritually preserved. The details in-between and their meaning became the grist for one of the public controversies in modern anthropology between Marshall Sahlins and Gananath Obeyesekere.

Returning to LHB

I want to extend my thanks to the team at LHB, as they have been gracious in allowing me to return to my previous blogging stint which I began in late November, but was unable to complete at the time.

Today, I restart my series of posts related to issues in transnational, international and comparative legal history which were provoked by the writing of my first book. For reference, my introductory post, entitled What Are You?: Producing A First Book Amid Disciplinary and Geographic Migrations, is here. My second, entitled The Affinities and Disjunctures of History and Anthropology, is here.

Now onward and upward! My remaining posts will be:

3)     Functionalism and Synthetic History
4)     The Challenges of Comparative Law and Transnational History
5)     Empire and Imperialism: (Mis)Framing Cross-Cultural Engagements
6)     The Young Interdisciplinary Scholar in a Global Academic Market

Summer Institute on the Cultural Study of Law

[We have the following announcement. The deadline is April 30, 2017.]

7th International Osnabrueck Summer Institute (OSI) on the Cultural Study of the Law

The seventh International Osnabrueck Summer Institute on the Cultural Study of the Law will be held from August 6 to 13, 2017 at the University of Osnabrueck, Germany. It aims to encourage and further promote the interdisciplinary study and research of the interrelations between law and culture, based on the idea that the extended cultural study of the law will foster profitable scholarly exchange and dialogue between legal studies and the humanities.

The Institute will offer a combination of thematic workshop sessions, small group seminars and a final symposium for 15-20 international participants (doctoral, post-doctoral and advanced M.A. – see below for eligibility). The introductory workshop will address the range and potential of interdisciplinary studies and approaches in the field of law and the humanities. The remaining thematic sessions and small group seminars will focus on key issues and debates in current cultural legal studies, for example:

* The historical emergence of dominant (legal) concepts of property as well as current struggles about culture as heritage, property and resource for creativity (including concepts such as copyright, intellectual property and authorship);

* The cultural presence and representation of the law and the role of culture in the representation and dissemination of the concept of property (e.g. law and literature, life writing and human rights, visual culture and rights rhetoric);

The main objective of the OSI is to encourage scholarly exchange across disciplines and the critical debate of current research projects as well as work in progress. Participants will have the opportunity to present and discuss their own work both within the larger group and in individual sessions with members of the OSI faculty.

Confirmed faculty for the 2017 OSI include:

Marianne Constable (Rhetoric , UC Berkeley)
Danilo Mandic (Law, U of Westminster)
Cristina S. Martinez (Art History, U of Ottawa)
Sabine N. Meyer (American Studies, Osnabrück U)
Richard Perry (Law, UC Berkeley)
Beth Piatote (Native American Studies, UC Berkeley)
Leti Volpp (Law, UC Berkeley)

In addition, the OSI will feature a professional workshop presenting and discussing EU and GAES (German Academic Exchange Service) scholarship and grant opportunities for young international researchers.

Participant Eligibility

The Summer Institute invites doctoral and postdoctoral students from various academic fields whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.

Doctoral candidates in the humanities, law, the arts, literature, and related social sciences are encouraged to apply, as are advanced students pursuing a J.D. or its equivalent (such as an L.L.B).

Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute will also consider strong applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research. There are openings for up to 24 students to participate in the Summer Institute.

Due to its international audience, the Summer Institute will be entirely conducted in English. Please note: The OSI neither offers German nor English language instruction classes.

Application Process

Students interested in taking part in the Summer Institute should submit their applications on our website no later than April 30, 2017. Detailed and updated information about the Institute, the sessions, international faculty, admission and fees can be found at:

Applicants should complete:

* The application form on our website (see below);
* An up-to-date curriculum vitae;
* A statement of purpose no more than two pages long, describing current scholarly interests, previous research, and how the Summer Institute would specifically further their interests and plans. Applicants are also encouraged to comment on their specific interest in interdisciplinary approaches and how these affect their own work.

Please direct all inquiries and questions to the OSI coordinator at

Peter Schneck

Chair of American Studies

Wednesday, March 22, 2017

Kagan on Chae Chan Ping Now

Michael Kagan, University of Nevada, Las Vegas, William S. Boyd School of Law, has posted Is the Chinese Exclusion Case Still Good Law? (The President Is Trying to Find Out), which is forthcoming in the Nevada Law Journal:
Though barely mentioned in the early court filings, the lurking issue in the constitutional challenges to Pres. Trump’s immigration bans – what opponents call the “Muslim ban” – is whether the 1889 Chinese Exclusion Case can still guide immigration law in the 21st Century.
H/t: Legal Theory Blog

2017 Hurst Institute Fellows Announced

Via the Institute for Legal Studies at the University of Wisconsin, we have word of the fellows selected to participate in the 2017 J. Willard Hurst Summer Institute in Legal History:
Wesley Chaney (Assistant Professor, Bates College) (Ph.D., Stanford University)

Scott De Orio (Ph.D. candidate, University of Michigan)

Brooke Depenbusch (Ph.D. candidate, University of Minnesota)

Smita Ghosh (Ph.D. candidate, University of Pennsylvania) (J.D., University of Pennsylvania)

Brendan Gillis (Hench Post-Dissertation Fellow, American Antiquarian Society) (Ph.D., Indiana University)

Elizabeth Lhost (Ph.D. candidate, University of Chicago)

Sara Ludin (Ph.D. candidate, University of California, Berkeley)

Jane Manners (Samuel I. Golieb Fellow, New York University School of Law) (Ph.D. candidate, Princeton University) (J.D., Harvard University)

Mary Mitchell (Atkinson Postdoctoral Fellow in Sustainability, Cornell University) (Ph.D., University of Pennsylvania) (J.D., Drexel University)

Kalyani Ramnath (Ph.D. candidate, Princeton University) (LL.B., National Law School of India University)

Nicholas Venable (Ph.D. candidate, University of Chicago)

Natasha Wheatley (ARC Postdoctoral Research Fellow, University of Sydney) (Ph.D., Columbia University)
As other fellowships are announced, we welcome the opportunity to spread the word. Please do email us your good news!

Tuesday, March 21, 2017

Hamburger on Posner on Gorsuch on Hamburger

Our last Weekend Roundup included a pointer to Professor Eric Posner’s post noting Judge Gorsuch’s citations to Philip Hamburger’s  Is Administrative Law Unlawful?  In the post, Professor Posner characterized Professor Hamburger “anti-elite,” “anti-foreigner” (other than the English), and “anti-executive.”  Professor Hamburger replies here.

Medical Cultures, Traditions, and Law

[We have the following conference announcement.]

Medical Cultures, Traditions, and Law (May 5-7, 2017)

Keynote dialogue:

"Intellectual Property, Debt, and Traditional Knowledge"
MADHAVI SUNDER  law, university of california davis
CHIDI OGUAMANAM  law, university of ottawa

Conference details: 
The faculty conveners of the Global Medical Cultures and Law Research Group have joined forces to examine three phenomena over the long 20th century: the globalization of biomedicine, the codification of traditional medicine, and the constitutive role of the law in these processes.

All societies have healing systems. Yet over the last 150 years, one system has become dominant around the world: biomedicine. While it might be tempting to attribute biomedicine’s successes to its effectiveness in curing diseases and extending lives, the historical reality has been less clear-cut. The resurgence of interest in traditional medicine in the second half of the twentieth century arguably grew out of critiques of biomedicine’s limits and a burgeoning awareness that different healing practices, long stifled or marginalized, deserved closer scrutiny. Until now, few scholars have attempted to examine these dynamics together or assess their legal underpinnings.

Our efforts are supported by the Science in Human Culture program and work in synergy with other interdisciplinary programs across Northwestern including international studies, medical humanities, global health, and legal studies. Group members come from history, law, anthropology, political science, sociology, and public policy, and bring a wide variety of regional expertise to the table.

Research questions that we plan to address between 2016 and 2019 include:
  • To what extent and through what legal, institutional, economic, and political instruments has biomedicine been globalized?
  • In what ways did different disciplinary, geopolitical, economic, and legal phenomena play a role in codifying “traditional medicine”?
  • What kinds of ideas about culture, heritage, and ancestry operate in controversies over patenting traditional knowledge and medicine? How are these conflicts different from those surrounding access to drugs and patent-protected versus generic options?
HELEN TILLEY  history, 2016-17 coordinator
CAROL HEIMER  sociology
IAN HURD  political science
REBECCA SELIGMAN  anthropology

Further information is available here.