Friday, June 30, 2017

Knapp on the New Jersey Plan

Aaron T. Knapp, a visiting assistant professor at the Boston University School of Law, has posted The New Jersey Plan and the Structure of the American Union, forthcoming in the Georgetown Journal of Law and Public Policy 15 (2017):
The scholarly consensus says that of the constitutional plans which received consideration at the Federal Convention in 1787, the plan introduced by the Virginia delegation (the so-called “Virginia Plan”) exerted the greatest influence on the final document. The opposite judgment has befallen the plan for reform introduced by the New Jersey delegation in mid-June—the so-called New Jersey Plan. Citing the nationalists’ tirades against it, its purportedly backward-looking provisions, and the delegates’ ultimate vote to table it on June 19, scholars have all but relegated the New Jersey Plan to the ash heap of history.

This article challenges the cutting-room floor narrative surrounding the New Jersey Plan. It demonstrates that, notwithstanding the June 19 vote, the New Jersey Plan’s core tenets went on to shape the fundamental structure of the American union as memorialized in the Constitution to a much greater degree than scholars have recognized. Its influence on the Constitution breaks down into three primary components, analyzed respectively in Parts I, II, and III. First, introduction of the New Jersey Plan effectuated a shift in the proposed constitutional order whereby the “national” government envisaged by the Virginia Plan became a “federal” one that preserved the sovereignties of the several states. Second, provisions from the New Jersey Plan that the delegates later reincorporated into the Constitution, deserve primary credit for constitutionalizing judicial review of legislation. Finally, the New Jersey Plan significantly influenced the Committee of Detail’s determination to replace the government with unenumerated police powers proposed by the Virginia Plan, with a government of defined powers.

In short, arguably the Constitution’s most distinctive structural features came from the New Jersey Plan and not the Virginia Plan. Yet the New Jersey Plan’s influence on the American constitutional order did not terminate with the signing of the Constitution in September 1787. Concluding remarks show that during the ratification debates and in the decade or so after ratification, early Americans placed enduring constructions on the Constitution that reflected the core principles underlying the New Jersey Plan, even where the Constitution’s text counseled a contrary result.

CFP: Mixed Familial Relations Viewed Globally and Comparatively

[We have the following call for papers for a special issue in The History of the Family: An International Quarterly, devoted to Mixed Marriage, Interracial Relationships and Binational Couples from Global and Comparative Perspectives and guest edited by Julia Moses, University of Sheffield/University of Göttingen and Julia Woesthoff, DePaul University.]

In response to the mass globalization of the twenty-first century and associated migration, a recent boom in social-scientific research has analyzed various manifestations of binational and interracial romantic relationships in the present and recent past. This theme issue seeks to historicize this research by drawing on key case studies from across the world and across time and drawing on relevant historiography and theoretical literature. This call for proposals welcomes both quantitative and qualitative studies that shed light on individual experiences of, as well as various practices of regulating, ‘interracial’, ‘binational’ and ‘mixed marriages’. The issue aims to parse the assumptions behind these contested concepts and to trace how these categories have shifted over time and space. In doing so, it also seeks to chart how intermarriages and other forms of interracial, binational and cross-confessional relationships took shape: who participated in these relationships? How common were they, and in which circumstances were they practiced (or banned)? Contributions investigating relationships involving regions in the Americas, Africa and Asia are particularly welcome.

Thursday, June 29, 2017

JLH 38:2

The Journal of Legal History 38:2 (2017), devoted to the legal history of emotion, is out.  ESCLH Blog has the TOC.

Update: ESCLH Blog also has the TOC for Rechtsgeschiedenis/Revue d'histoire du droit/Legal History Review 85:1-2 (2017)

Morag-Levine on Sociological Jurisprudence

Noga Morag-Levine, Michigan State University College of Law, has posted Sociological Jurisprudence and the Spirit of the Common Law, which is forthcoming in the Oxford Handbook of European Legal History, edited by Markus D. Dubber and Christopher Tomlins.
Roscoe Pound’s Sociological Jurisprudence has long been understood to bear the mark of continental, primarily German writers. Notwithstanding this influence, the project represented, in large measure, an effort to stem transatlantic-inspired threats to the future of the common law. Most directly at issue was the rise of social science as an alternative, civil-law-based, administrative paradigm that simultaneously threatened the academic interests of the law schools, the professional concerns of the bar, and the core constitutional principles of judicial supremacy. Within this context, Pound selectively drew on European social legal theory with the goal of saving the common law from itself. The project, as it ultimately evolved, consisted of two primary proposals for reform, one focused on the universities, the other on the courts.

Late 19th-century German social science and attendant theories of the state aspired to an integrated field linking legal, political, social, and economic theories. Within this model the social science disciplines, rather than the law, would emerge as the proper academic homes for research on constitutional, legislative, administrative, and related public law subjects. Through the injection of social-scientific content into legal pedagogy and research, sociological jurisprudence countered with a socio-legal paradigm that, together with lowering the barriers separating law from society, also ensured that law would continue to exist as a distinct field of inquiry in the universities and beyond.

Where the courts were concerned, sociological jurisprudence answered contemporary pressures for radical curtailment of judicial review with a narrow construction of the deficiency at the core of the Lochner Court’s reasoning as mechanical, or formalist. It was a problem definition that successfully served to deflect direct attacks on judicial supremacy by shifting the conversation away from the very authority of courts to scrutinize the facts justifying social legislation to the methods they ought to employ in this regard. Obscured in the process was the extent to which the constitutional battle lines of the early twentieth century were drawn between rival common-law- and civil-law-based paradigms of administrative governance. The ease with which formalist constructions of the Lochner Court took hold—even as the Lochner justices themselves insisted on reviewing the underlying legislative facts—is difficult to explain, other than through the widely shared common-law sensibilities of progressive-era lawyers, well beyond Pound. In this, sociological jurisprudence seemingly offers legal historians one more lesson on the ways in which historical narratives that are consonant with the values of legal elites are liable to gain purchase.

Dubber on 19th-Century European Criminal Law

Markus D. Dubber, University of Toronto Faculty of Law, has posted Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Century, which is forthcoming in the Oxford Handbook of European Legal History, edited by him and Christopher Tomlins:
This paper has two parts. The first part reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth century. The second part lays out an alternative, two-track, conception of "modern" European criminal legal history. It does this by taking an upside-down - or outside-in - view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.

Wednesday, June 28, 2017

Baker on Osgoode's Marginalia

William Osgoode (wiki)
G. Blaine Baker, McGill University, has posted Musings and Silences of Chief Justice William Osgoode: Digest Marginalia about the Reception of Imperial Law, which is forthcoming in volume 54 of the Osgoode Hall Law Journal:
This essay focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode's late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of 'British justice' to the colonies. It concludes that role was limited, mostly by Osgoode's greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.

"Historians Enter the Fray"

At some point during my education as a historian, I came to believe that "presentism" was a professional sin. To me, this meant a few things: first, the good historian should not allow current events to influence her interpretations of the past, and second, she should be extremely circumspect in commenting on the present or the future. I soon realized the naivete of the first "rule." It is one thing to guard against anachronism, but another to imagine that we can ever escape our own context. The second "rule," I discovered, had a looser hold among scholars of law and history, thanks to the norms within legal academia. And today, in the wake of the 2016 Presidential election, I'm no longer sure it's a rule at all.

The occasion for these musings is a collection of articles and initiatives that have popped up in my Twitter feed and inbox of late. Together they suggest a movement among historians to go beyond simply, say, correcting the record about Frederick Douglass to offering sharp, accessible content to the reading public:
  • Historian social media is abuzz over "How To Avoid a Post-Scholar America," a recent essay in the Chronicle of Higher Education by historians Keisha N. Blain (University of Pittsburgh) and Ibram X. Kendi (American University). "In the age of Trump," the authors write, "scholars must step out of the shadows of their libraries, their labs, and their classrooms — or risk the day when those libraries, labs, and classes will not be able to cast shadows. Today more than ever, scholars must produce scholarship for the public."
  • Going back some months, I have noticed the "syllabi" trend -- of historians circulating syllabi of scholarly texts that shed light on a current event or trend (#ImmigrationSyllabus is a recent one that comes to mind).
There has also been some push-back -- see, for example, Moshik Temkin's recent editorial in the New York Times, on why "historians shouldn't be pundits."

More examples? Feel free to chime in in the Comments. I'm sure a discussion of confederate monuments and naming controversies belongs here somewhere (and I'm not just saying that for you, Al Brophy). 

Bradt on a "Radical" Judicial Power Grab

Andrew Bradt, University of California, Berkeley School of Law, has posted “A Radical Proposal”: The Multidistrict Litigation Act of 1968, University of Pennsylvania Law Review 165 (2017): 831-916
One of the central stories in current procedural law is the recent and rapid ascendance of federal multidistrict litigation, or, as it is commonly known, MDL. As the class action has declined in prominence, MDL has surged: to wit, currently more than a third of the cases on the federal civil docket are part of an MDL. With MDL’s growth has come attention from scholars, much of it critical. One recurring aspect of this criticism is that MDL judges have expanded the MDL statute beyond its modest ambitions. But what were the original purposes of MDL, and where did the statute come from? This Article unearths the origins of MDL by examining the papers of its principal drafters. Those papers reveal that the aims of the small group—a handful of federal judges and one scholar—who developed and lobbied for the statute’s passage were anything but modest. Rather, the group believed that a mass-tort “litigation explosion” was coming and that a mechanism was needed to centralize power over nationwide litigation in the hands of individual judges committed to the principles of active case management. Moreover, the papers show that the judges were relentless in their pursuit of the statute’s passage and engaged in sharp-elbowed tactics and horse-trading to succeed. In short, MDL was a power grab—a well-intentioned and brilliant one, but a power grab all the same. Understanding the roots of the judges’ accomplishment clarifies current debates about MDL and should shift those debates away from fights over the scope of the statute to more normative assessments of the concentration of power the drafters sought and successfully achieved. In short, MDL currently does what its creators intended; critiques of the statute should proceed on those terms, not from the position that MDL has somehow grown beyond its modest ambitions.
H/t: Legal Theory Blog

Tuesday, June 27, 2017

Abrams and Barber on Gender Equality, Emerging Adulthood and Domicile

Kerry Abrams, University of Virginia School of Law, and Kathryn Barber,  a 2015 graduate of UVA Law, have posted Domicile Dismantled, which appears in the Indiana Law Journal 92 (2017): 387-433:
Domicile is more durable than residence: it is defined as a person’s “true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” This Article argues that, in the last fifty years, the legal fiction of domicile has become increasingly unmoored from the reality of people’s lives. This shift resulted from two historical changes. The first is the rise of gender equality. As women entered the workforce in increasing numbers and gained access to higher education, their mobility and autonomy increased. Simultaneously, they began to delay marriage, or to forego marriage altogether, and those who were married were less likely to reflexively adopt their husband’s domicile and were more inclined to make domiciliary choices for themselves and their families. The second is the increasingly long time it takes young adults to become financially and emotionally self-sufficient and independent from their parents. This so-called phenomenon of “emerging adulthood,” identified by psychologists as a new phase of life that sometimes lasts into a person’s thirties, has made it more difficult for young adults to establish a new domicile. Courts have thus increasingly relied upon a person’s domicile of origin in making these determinations, even where there is little chance that the party will ever return there. This Article uses the landmark 1971 case of Mas v. Perry to illustrate the dismantling of domicile. It traces the history of changing gender roles and adult development since Mas and argues that because of these two trends, the concept of domicile is no longer capable of doing the legal work it is supposed to do. Residence, rather than domicile, is a more sensible and accurate way to handle jurisdictional questions.

Norris on the History of the Innocence Movement

New from New York University Press: Exonerated: A History of the Innocence Movement, by Robert J. Norris (Appalachian State University). A description from the Press:
Documentaries like Making a Murderer, the first season of Serial, and the cause célèbre that was the West Memphis Three captured the attention of millions and focused the national discussion on wrongful convictions. This interest is warranted: more than 1,800 people have been set free in recent decades after being convicted of crimes they did not commit.

In response to these exonerations, federal and state governments have passed laws to prevent such injustices; lawyers and police have changed their practices; and advocacy organizations have multiplied across the country. Together, these activities are often referred to as the “innocence movement.” Exonerated provides the first in-depth look at the history of this movement through interviews with key leaders such as Barry Scheck and Rob Warden as well as archival and field research into the major cases that brought awareness to wrongful convictions in the United States.

Robert Norris also examines how and why the innocence movement took hold. He argues that while the innocence movement did not begin as an organized campaign, scientific, legal, and cultural developments led to a widespread understanding that new technology and renewed investigative diligence could both catch the guilty and free the innocent.

Exonerated reveals the rich background story to this complex movement. 
More information is available here.

Monday, June 26, 2017

Rabban Reviews Lebovic and Weinrib

David M. Rabban, University of Texas School of Law, has posted Challenging the "Worthy" Tradition: Revisionist Interpretations of Free Speech in American History, and appears in the June 2017 issue of Reviews in American History.  Professor Rabban jointly reviews Sam Lebovic’s Free Speech and Unfree News: The Paradox of Press Freedom in America and Laura Weinrib’s The Taming of Free Speech: America's Civil Liberties Compromise.

Lucas on Henry Friendly as a "Great Judge"

Tory L. Lucas, Liberty University School of Law, has posted Henry J. Friendly: Designed to Be a Great Federal Judge, which appears in the Drake Law Review 65 (2017): 421-480:
Who do you believe are great judges? Why do those judges make your list? Does Henry J. Friendly make your list as a great judge? He certainly makes mine. This Article challenges judges, attorneys, legal academics, and law students to explore the elementary question of what makes a great judge while asking whether Friendly was one. To aid that pursuit, this Article: (1) briefly lists the traits that make a great judge, (2) recounts Friendly’s amazing academic and legal careers that equipped him with the necessary traits to be a great judge, (3) discusses Friendly’s rise to the Second Circuit and his outsized presence on that court, and most importantly, (4) analyzes Friendly’s historic and lasting contributions to the law. Because Friendly exemplified all of the traits of a great judge, I conclude that he was a great judge. I recommend that you, too, contemplate, study, and discover what made Friendly a great judge. In the process, you might become a better judge, attorney, legal academic, or law student. Friendly’s impact on you would then only add to his monumental and lasting impact on the law itself.
In answering Professor Lucas’s first question, consider also Linda Przybyszewski's review essay on Gerald Gunther’s biography of Learned Hand, The Dilemma of Judicial Biography Or Who Cares Who Is the Great Appellate Judge?  Law and Social Inquiry 21 (January 1996): 135-140.

H/t: Legal Theory Blog

Mercer on "Barron v. Baltimore and the Foundations of American Liberty"

New from the University of Oklahoma Press: Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty, by William Davenport Mercer (University of Tennessee, Knoxville). A description from the Press:
The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore’s rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig’s wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city’s actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court’s decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century.

Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron’s claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered.

In explaining how the Court came to reject a multisourced view of human liberties—a position seemingly inconsistent with its previous decisions—William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall’s view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer’s work makes clear, is among the Jacksonian era’s significant democratic reforms and marks the emergence of a distinctly American constitutionalism.
More information is available here.

Sunday, June 25, 2017

Sunday Book Review Roundup

There's a wide array of book reviews on offer for legal historians this week:

In The New York Times is a review of Edward Luce's sobering transnational treatise The Retreat of Western LiberalismAlso in the Times is Eric Foner's review of Fred Kaplan's Lincoln and the Abolitionists: John Quincy Adams, Slavery, and the Civil War.  Finally, the Times reviews Richard Rothstein's The Color of Law: A Forgotten History of How Our Government Segregated America.

NPR carries a review of Nancy MacLean's just-released Democracy in Chains The Deep History of the Radical Right's Stealth Plan for America.  

In The Washington Post is a review of Meredith Waldman's The Vaccine Race: Science, Politics, and the Human Costs of Defeating Disease.  Also reviewed in the Post is Mark Bowden's Hue 1968: A Turning Point of the American War in Vietnam.  

In The New York Review of Books is a wide-ranging review essay on recent scholarship and writing on the Six-Day War and its legacies.  Also reviewed in the NYRB is Marjorie Perloff's Edge of Irony: Modernism in the Shadow of the Habsburg Empire.  Christopher de Bellaigue's The Islamic Enlightenment: The Struggle Between Faith and Reason, 1798 to Modern Times and Wael Abu-‘Uksa's Freedom in the Arab World: Concepts and Ideologies in Arabic Thought in the Nineteenth Century are also reviewed in the publication.

Additionally, the NYRB carries a review Karissa Haugeberg's Women against Abortion: Inside the Largest Moral Reform Movement of the Twentieth Century and Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century AmericaBehind a paywall (ironically?) is an essay on America's "Forgotten Poor" that features reviews of Jonathan Morduch and Rachel Schneider's The Financial Diaries: How American Families Cope in a World of Uncertainty and Carol Graham's Happiness for All?: Unequal Hopes and Lives in Pursuit of the American Dream.

In the Chicago Tribune is a review of From Warm Center to Ragged Edge: The Erosion of Midwestern Literary and Historical Regionalism, 1920-1965 by Jon K. Lauck.  Also reviewed in the Tribune is Bruce Lawrence's The Koran in English: A Biography.

Reviewed in the Los Angeles Review of Books is Heather Ann Thompson's Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy.  Also reviewed is Alvin Felzenberg's A Man and His Presidents: The Political Odyssey of William F. Buckley Jr.  Finally, LARB carries a review of Frances FitzGerald's The Evangelicals: The Struggle to Shape America.  

The New Republic has a review of Yascha Mounk's The Age of Responsibility: Luck, Choice, and the Welfare State.  Also reviewed in the New Republic is Fred Kaplan's Lincoln and the Abolitionists: John Quincy Adams, Slavery, and the Civil War.  The review notes that in documenting Lincoln's racial politics, the book "covers well-worn territory" but that it does so in service of tracing the persistence of "the nation's race problem."

At Public Books is provocative review essay based on Alex Soojung-Kim Pang's Rest: Why You Get More Done When You Work Less,  Daniel Fridman's Freedom from Work: Embracing Financial Self Help in the United States and Argentina, and Rutgers historian James Livingston's No More Work: Why Full Employment Is a Bad Idea.  Christina Lupton concludes her essay by encouraging readers to indulge in the postwork imaginary and imagine what they might do if their incomes were taken care of.  (As an aside, her question prompted me to ask what sort of research we might expect to be produced if a universal basic income had been or were to be realized in the States?  Conversely, what kind of research might we expect to be produced with the further adjunctification of the American academy?)

At the New Books Network, Josh Chafetz is interviewed about his Congress's Constitution Legislative Authority and the Separation of Powers.  

Finally, in the New Rambler Review is an understandably Trump era-inflected review of Reuel Schiller's narrative of postwar liberalism's dissolution in his monograph Forging Rivals: Race, Class, Law, and the Collapse of Postwar.

Saturday, June 24, 2017

Weekend Roundup

  • The legal historian Alfred Brophy, one of two editors of the American Journal of Legal History, is moving to the University of Alabama, as he explains on the Faculty Lounge.
  • Update: The strange and disturbing story of the memorial to the Nazi Saboteurs of Ex parte Quirin, from the Washington Post.  DRE
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 23, 2017

Engstrom on Class Actions (x 2)

David Freeman Engstrom, Stanford Law School, has posted two papers on the history of class actions.  The first, forthcoming in University of Pennsylvania Law Review 165 (2017), is Revolution of 1978 and the Puzzle of American Procedural Political Economy:
In 1978, top DOJ officials in the Carter Administration floated a revolutionary proposal that would have remade the consumer class action and, with it, the relationship of litigation and administration within the American regulatory state. At the proposal’s core was a “public action” for widespread small-damages claims that would have replaced Rule 23 with a hybrid public-private enforcement model. Similar to the False Claims Act, this new mechanism would have granted private plaintiffs the power to bring lawsuits and recover a finder’s fee if successful, but it also gave DOJ substantial screening authority and control, including the ability to take over suits or dismiss them outright. Despite months of shuttle diplomacy among interest groups, a pair of bills in Congress, and full-scale committee hearings, this creative blend of private initiative and public oversight soon fizzled. Yet the story of the proposal’s rise and fall nonetheless provides a venue for wider reflection about American civil procedure and the political economy that produces it. Indeed, the failed revolution of 1978 reveals a contingent moment when the American litigation system was splintering into the pluralistic, chaotic one we now take for granted, including hard-charging state attorneys general, a federal administrative state with litigation authority independent of DOJ, and a sophisticated and politically potent plaintiffs’ bar. In retrospect, the proposal may have been the last best chance to counter the centrifugal tendencies of an American state that was progressively empowering ever more institutional actors within the litigation system. More importantly, lurking in the background of the story of 1978 is the bracing possibility that the Rules Enabling Act, for all its virtues in revising technocratic procedural rules, has systematically enervated efforts to address larger procedural design questions in an increasingly dense and interconnected regulatory world.
The second, forthcoming in the Stanford Law Review 70 (2018): is “Not Merely There to Help the Men”: Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action:
For many, the 2011 case of Walmart v. Dukes—a gender discrimination suit brought on behalf of 1.6 million women—represents, for good or ill, the apogee of the modern class action. Yet Walmart’s recency also raises a puzzle: Why, in a nation thought pervasively committed to “adversarial legalism,” did mass litigation and, in particular, the class action lawsuit not emerge as significant regulatory tools until at least the 1970s? Standard answers point to New Deal faith in bureaucracy, or an Advisory Committee that was not moved to amend Rule 23 until mounting docket pressures and the desegregation cases of the 1950s and 1960s forced its hand. This Article challenges these accounts by framing the modern class action’s emergence as part of a broader mid-century battle over how to conceptualize collective rights within the emerging New Deal state. Using the untapped records of a remarkable lawsuit brought by 29 female factory workers against General Motors in 1937 claiming unequal pay and the heated legislative campaigns to enact pay equity laws it spurred, this Article presents overwhelming evidence that labor unions killed the earliest effort to build American anti-discrimination law around the class action. Working against dozens of bills providing for class action authority, damages multipliers, and attorney’s fees, unions instead pushed the new pay equity laws into an anemic administrative system of regulation because they saw class actions as an existential threat to the New Deal system of labor relations built around collective bargaining.

Recovering this history yields two kinds of insights. First, it allows us to imagine alternative pathways in the continuing American struggle to combat workplace discrimination. Indeed, a more potent regulatory response to gender discrimination in the immediate post-war era could have, decades before a case like Walmart was even imaginable, fundamentally altered the American industrial order and women’s place in it. Second, the early history of the pay equity movement offers an especially clear example of how the tensions between a labor-driven vision of collective rights and one built around adversarial, aggregated litigation of workplace disputes have shaped the evolution of the American regulatory state. That history remains highly relevant today as the Supreme Court, in a trio of cases asking whether the National Labor Relations Act bars class action waivers in arbitration agreements, must once more reconcile American labor law and the class suit.

Priel on the Return of Legal Realism

Dan Priel, Osgoode Hall Law School, York University has posted The Return of Legal Realism, which is forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus D. Dubber and Christopher Tomlins:
The main goal of this essay is to explain in what sense “we are all realists now.” It examines various answers to this question suggested by existing literature and proposes another. The key is identifying a fundamental divide among the legal realists on what makes their view “realistic.” One group of legal realists, of whom Karl Llewellyn and Jerome Frank are the most notable exponents, has argued that realism consists in greater awareness by legal academics to the realities of legal practice. The other group, of whom Felix Cohen and Walter Wheeler Cook were notable exponents, has argued that being realistic about law meant adopting the methods of the natural sciences. Following on this, the two groups of realists have given very different answers to a series of fundamental questions about such as the common law, the proper approach to law reform, legal education. Ultimately, I argue, these two views rest on competing views on the authority of law. It is this contrast, I argue, that allows us to place the realists in historical context, as well as explain the continuing relevance of legal realism(s) to contemporary debates.

Landmark Cases in Land Law

Several new volumes in Hart Publishing’s Landmark Cases series came out in 2016. Here’s one: Landmark Cases in Land Law, edited by Nigel Gravells, University of Nottingham. 

From the press:
Media of Landmark Cases in Land LawLandmark Cases in Land Law is the sixth volume in the Landmark Cases series of collected essays on leading cases (previous volumes in the series having covered Restitution, Contract, Tort, Equity and Family Law). The eleven cases in this volume cover the period 1834 to 2011, although, interestingly, no fewer than six of the cases were decided or reported in the 1980s. The names of the selected cases will be familiar to property lawyers. However, individually, the essays provide a reappraisal of the cases from a wide range of perspectives – focusing on their historical, social or theoretical context, highlighting previously neglected aspects and even questioning their perceived importance. Collectively, the essays explore several common themes that pervade the law of property – the numerus clausus principle, the conclusiveness of registration, the desirability of certainty in the law and the central question of the enforceability of interests through changes in ownership of land. This volume provides a collection of essays that will be of interest to academics, students and practitioners. –
Table of Contents after the jump.

Danner on a Falied American Attempt to Classify Law

Richard A. Danner, Duke University School of Law, has posted James DeWitt Andrews: Classifying the Law in the Early Twentieth Century:
This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in 1923.

Thursday, June 22, 2017

A Call for Projects and Proposals from the ASLH

[We have the following announcement.]

The Projects and Proposals Committee of the American Society for Legal History exists to encourage new initiatives in the study and presentation and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented new voices into our field, to encourage novel forms of scholarly interchange, to support pedagogical experiments in legal history, and to seed new forms and venues for public history.

The Board of Directors of the American Society for Legal History has asked the Committee to offer particular encouragement to two arenas for growth in the field. First, we have been asked to help internationalize legal history, by which we mean both to support ways to widen the study of legal history beyond its core Anglo-American base and to bring a global array of scholars and students of legal history into conversation with one another. And second, we have been asked to find ways to bring a younger generation of scholars and students into the field.

But beyond those particular arenas for initiative, we encourage proposals that are engaged both with what may seem to be “traditional” subjects in legal history and ones that move off in nontraditional ways. In the past, we have supported conferences (including the costs of bringing participants together, who could not afford to come otherwise), and we have supported internationalizing exchanges. We would consider subventions of scholarly publications or of museum exhibits or pedagogical experiments or of any number of other collective pursuits. We do not support individual research projects. Nor will we recommend for funding projects that have already been funded at the recommendation of the committee three times. We are not a funding source for ongoing and recurrent activities of the field or of the Society.

Most of the projects we have supported have been in the $4,000 to $6,000 range. Ordinarily, we
would expect that projects would have other institutional collaborators and/or cosponsors (including home universities). Proposals may come from educational institutions or from informal groups or networks of individuals. In most cases, someone involved in the proposal will be a member of the Society.

We issue a yearly call for proposals. That call will be sent to all members of the American Society for Legal History later in July 2017. Our deadline for receiving applications will be September 18, 2017. The committee will then review the proposals, with the goal of recommending a list to the Board of Directors of the Society in preparation for their meeting in late October 2017.

Our application form is relatively informal. The link can be found here.  And if you have any  questions, please write to Hendrik (Dirk) Hartog, at

Rao to Edit Law and History Review

After over five years of exceptional service, Elizabeth Dale, Professor of Law and Professor of History at the University of Florida, is stepping down as editor of the Law and History Review, the journal of the American Society for Legal History.  She has ably continued the great editorial tradition that has made LHR the world’s best journal devoted to “the social history of law and the history of legal ideas and institutions.”  Under her watch, it has become global in its coverage.  She has also kept LHR apace with methodological innovations, as in the recent special issue on Digital Law and History (34:4).  And, as @LHR_editor, she has brought the journal into the social media age.  Legal historians everywhere are in her debt.

I am very pleased to announce that Professor Dale will be succeeded as editor by Gautham Rao, a legal historian of revolutionary America and the Early American Republic who teaches in the Department of History at American University in Washington, DC.  Professor Rao is the author of National Duties: Custom Houses and the Making of the American State (University of Chicago Press, 2016), and many articles, including the prize-winning "The Federal Posse Comitatus Doctrine," published in Law and History Review.  He served on the ASLH’s Program Committee in 2010-11, has chaired its Kathryn T. Preyer Committee, and is currently a member of the Board of Directors.  Since 2012 he has been a member of the Editorial Board of Law and History Review.  And, like Professor Dale, he was a guest blogger on LHB!

The transfer of power will occur at the annual meeting of the American Society for Legal History in Las Vegas, October 26-29, 2017.  Throughout the transition, authors may continue to submit manuscripts through the LHR website.
Daniel R. Ernst
Chair, Publications Committee
American Society for Legal History

Hester on the Origins of Deportation

New from the University of Pennsylvania Press: Deportation: The Origins of U.S. Policy, by Torrie Hester (Saint Louis University). A description from the Press:
Before 1882, the U.S. federal government had never formally deported anyone, but that year an act of Congress made Chinese workers the first group of immigrants eligible for deportation. Over the next forty years, lawmakers and judges expanded deportable categories to include prostitutes, anarchists, the sick, and various kinds of criminals. The history of that lengthening list shaped the policy options U.S. citizens continue to live with into the present.
Deportation covers the uncertain beginnings of American deportation policy and recounts the halting and uncoordinated steps that were taken as it emerged from piecemeal actions in Congress and courtrooms across the country to become an established national policy by the 1920s. Usually viewed from within the nation, deportation policy also plays a part in geopolitics; deportees, after all, have to be sent somewhere. Studying deportations out of the United States as well as the deportation of U.S. citizens back to the United States from abroad, Torrie Hester illustrates that U.S. policy makers were part of a global trend that saw officials from nations around the world either revise older immigrant removal policies or create new ones.
A history of immigration policy in the United States and the world, Deportation chronicles the unsystematic emergence of what has become an internationally recognized legal doctrine, the far-reaching impact of which has forever altered what it means to be an immigrant and a citizen.
A few blurbs:
"Through impressive research and detailed analysis, Torrie Hester shows how the early history of deportation law and policy contributed to the world in which we now live. The author successfully shows how the incremental creation of acceptable grounds for deportation reflected an agenda of racialized nation building—an issue that is often raised in critique of the mass deportations of our own times."—Donna Gabaccia

"Deportation: The Origins of U.S. Policy is a tour-de-force of U.S. policy history, detailing how deportation was born as a lawful practice in the late nineteenth century and tracking its steady expansion into the twentieth century. Moreover, it follows the story beyond U.S. borders to examine the world in which U.S. immigration was made. It is a timely and urgent work."—Kelly Lytle Hernandez
More information is available here.

Wednesday, June 21, 2017

Likhovski on the Intellectual History of Law

Assaf Likhovski, Tel Aviv University School of Law, has posted The Intellectual History of Law, which is forthcoming in The Oxford Handbook of Historical Legal Research, ed. Markus Dubber and Christopher Tomlins:
This chapter identifies some recent trends in historiography generally, and in the study of intellectual history. The chapter discusses the relevance of these trends to the study of the intellectual history of law, referring to relevant legal history works reflecting these trends, noting existing lacunas, and proposing future directions of development of the study of the intellectual history of law.

O'Brien on Landis

Out with Hart Publishing is The Triumph, Tragedy and Lost Legacy of James M. Landis by Justin O’Brien, University of New South Wales. From the publisher:
Media of The Triumph, Tragedy and Lost Legacy of James M LandisJames M Landis – scholar, administrator, advocate and political adviser – is known for his seminal contribution to the creation of the modern system of market regulation in the USA. As a highly influential participant in the politics of the New Deal he drafted the statute which was to become the foundation for securities regulation in the US, and by extension the founding principle of financial market regulation across the world. He was also a complex and in some ways tragic figure, whose glittering career collapsed following the revelation that he had failed to pay tax for a five year period in the 1950s. The oversight was to cost possible elevation to the Supreme Court, forced prosecution and sentencing in 1963 to one month's imprisonment, commuted to forced hospitalisation, and subsequent suspension of licence to practise. This candid and revealing book sets his life in the context of his work as an academic, legislative draftsman, administrator and Dean of Harvard Law School. In rescuing from history Landis's battles and achievements in regulatory design, theory and practice, it speaks directly to the perennial problems in financial market regulation - how to deal with institutions deemed too big to fail, how to regulate the sale of complex financial instruments and what role can the professions play as gatekeepers of market integrity. It argues that in failing to learn from the lessons of history we limit the capacity of regulatory intervention to facilitate cultural change, without which contemporary responses to financial crises are destined to fail.

Here’s the TOC:

1 The Draftsman: The Normative Underpinnings of the Disclosure Paradigm 
2 The Administrator: Codes of Conduct and the Dynamics of Regulatory Politics 
3 The Activist: Institutionalizing the New Deal 
4 The Firefighter: The Existential Choice 
5 The Transformational Dean: Law, Lawyers and Society 
6 The Advisor: Revitalizing and Losing Regulatory Authority 
7 The Fall: Hubris and the Making of a Greek Tragedy 
Conclusion – The Lost Legacy: James M Landis and the
Future of Regulatory Capitalism

More information is available here.

CFP: Policy History 2018

[We have the following announcement.] The Institute for Political History, the Journal of Policy History, and the Center for Political Thought and Leadership at Arizona State University are hosting the tenth biennial Policy History Conference at the Mission Palms Hotel in Tempe, Arizona from Wednesday, May 16 to Saturday, May 19, 2018.

The Journal of Policy History is celebrating 30 years of publication. The Policy History Conference is celebrating 20 years of continued academic excellence. We hope you will join us for this historic event.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 8, 2017.   Proposals for panels and papers must be submitted online at the links  below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es).
5. Mailing Address(es).
6. Panel and paper title(s).
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. 75 word description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here; submit panel proposals here.

Update: The dates for the conference listed above have been changed to those appearing in a revisec call for papers that reached us after our initial post.]

Tuesday, June 20, 2017

Quinlan on the "Technoscientific Witness of Rape" in Ontario

New from the University of Toronto Press: The Technoscientific Witness of Rape: Contentious Histories of Law, Feminism, and Forensic Science, by Andrea Quinlan (Trent University). A description from the Press:
In 1984, the Sexual Assault Evidence Kit (SAEK) was dubbed "Ontario’s most successful rapist trap." Since then, the kit has become the key source of evidence in the investigation and prosecution of sexual assault as well as a symbol of victims’ improved access to care and justice. Unfortunately, the SAEK has failed to live up to these promises.

The Technoscientific Witness of Rape is the first book to chart the thirty year history of the sexual assault evidence kit and its role in a criminal justice system that re-victimizes many assault victims in their quest for medical treatment and justice. Drawing on actor-network theory and feminist technology studies, Andrea Quinlan combs through sixty-two interviews with police, nurses, scientists, and lawyers, as well as archival records and legal cases to trace changes in sexual assault forensics, law, advocacy, and anti-violence activism in Ontario. Through this history Quinlan bravely and provocatively argues that the SAEK reflects and reinforces the criminal justice system’s distrust of sexual assault victims.
More information is available here.

Remy on "The Malmedy Massacre: The War Crimes Trial Controversy"

New from Harvard University Press: The Malmedy Massacre: The War Crimes Trial Controversy, by Steven P. Remy (Brooklyn College and the Graduate Center, City University of New York). A description from the Press:
During the Battle of the Bulge, Waffen SS soldiers shot 84 American prisoners near the Belgian town of Malmedy—the deadliest mass execution of U.S. soldiers during World War II. The bloody deeds of December 17, 1944, produced the most controversial war crimes trial in American history. Drawing on newly declassified documents, Steven Remy revisits the massacre—and the decade-long controversy that followed—to set the record straight.
After the war, the U.S. Army tracked down 74 of the SS men involved in the massacre and other atrocities and put them on trial at Dachau. All the defendants were convicted and sentenced to death or life imprisonment. Over the following decade, however, a network of Germans and sympathetic Americans succeeded in discrediting the trial. They claimed that interrogators—some of them Jewish émigrés—had coerced false confessions and that heat of battle conditions, rather than superiors’ orders, had led to the shooting. They insisted that vengeance, not justice, was the prosecution’s true objective. The controversy generated by these accusations, leveled just as the United States was anxious to placate its West German ally, resulted in the release of all the convicted men by 1957.
The Malmedy Massacre shows that the torture accusations were untrue, and the massacre was no accident but was typical of the Waffen SS’s brutal fighting style. Remy reveals in unprecedented depth how German and American amnesty advocates warped our understanding of one of the war’s most infamous crimes through a systematic campaign of fabrications and distortions.
More information is available here.

Monday, June 19, 2017

More from JOTWELL: Ford on Hutchison, Levy on Grove, Stein on Qiao

We make a practice of posting reviews from JOTWELL's Legal History Section. But it turns out that the other sections appreciate history, too.

From Christie Ford in the Corporate Law Section, we have an admiring review of Camden Hutchison's recent Columbia Business Law Review article, "Progressive Era Conceptions of the Corporation and the Failure of the Federal Charter Movement." Ford writes:
Good history, including good legal history, sheds light on our own times. Well-written history, peopled with recognizable figures and marked by a strong narrative arc, also makes for good reading. In a new article, Camden Hutchison brings a precise historical eye and an engaging storytelling style to the understudied area of corporate legal history. His topic is Progressive Era corporate law reform, and particularly the question of why the United States failed to develop a federal corporate law regime in that period (and, of course, since).
Read on here.

From the Courts Law Section, Marin Levy spotlights an article with a significant historical component: Tara Leigh Grove's "The Origins (and Fragility) of Judicial Independence," forthcoming in the Vanderbilt Law Review. From Levy:
Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course.
Read on here.

And from the Property Law Section comes a review of Shitong Qiao's "The Evolution of Chinese Property Law: Stick by Stick?," a contribution to the edited collection Private Law in China and Taiwan: Legal and Economic Analyses (Yun-chien Chang et al. eds., Cambridge University Press, forthcoming 2017). Writes Gregory M. Stein:
Professor Qiao’s chapter contributes to property scholarship in several important and meaningful ways. He reminds his readers that scholarship focusing on Western attitudes toward property can easily overlook non-Western cultures and legal systems. He emphasizes how cultural context influences social and legal attitudes toward property rights. He reminds the reader that China is still in an experimental phase in which private parties test out new approaches and the government endorses the ones that seem to work best.
Read on here.

Prest and friends on Blackstone's Commentaries

Now out with Hart is a collection edited by Wilfred Prest, University of Adelaide: Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts. From the press:
Media of Re-Interpreting Blackstone's Commentaries
This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. 
In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. 
The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. 
This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).
Here’s the line-up:
1 Blackstone's 'Stutter': the (Anti)Performance of the Commentaries
Kathryn Temple
William Blackstone: Courtroom Dramatist?
Simon Stern
2 Blackstone as Draughtsman: Picturing the Law
Cristina S Martinez
3 Blackstone's Commentaries: England's Legal Georgic?
Michael Meehan

4 Blackstone in the Bayous: Inscribing Slavery in the Louisiana Digest of 1808
John W Cairns
Legal Jambalaya
Stephen M Sheppard
5 Blackstone and the Birth of Quebec's Distinct Legal Culture 1765–1867
Michel Morin
6 Blackstone's Ghost: Law and Legal Education in North Carolina
John V Orth
7 Antipodean Blackstone 
Wilfrid Prest

8 Blackstone's King
Paul D Halliday
Modern Blackstone: the King's Two Bodies, the Supreme Court and the President
Ruth Paley
9 Blackstone's Commentaries and the Origins of Modern Constitutionalism
Horst Dippel
10 Reading Blackstone in the Twenty-First Century and theTwenty-First Century through Blackstone
Jessie Allen
You can read more about the book here.

Rose's "Maintenance in Medieval England"

Jonathan Rose, Professor of Law & Willard H. Pedrick Distinguished Research Scholar Emeritus at the Sandra Day O'Connor College of Law at Arizona State University, has just published Maintenance in Medieval England with Cambridge University Press, in its series Cambridge Studies in English Legal History:
This is the first book covering those who abused and misused the legal system in medieval England and the initial attempts of the Anglo-American legal system to deal with these forms of legal corruption.  Maintenance, in the sense of intermeddling in another person’s litigation, was a source of repeated complaint in medieval England. This book reveals for the first time what actually transpired in the resultant litigation. Extensive study of the primary sources shows that the statutes prohibiting maintenance did not achieve their objectives because legal proceedings were rarely brought against those targeted by the statutes: the great and the powerful. Illegal maintenance was less extensive than frequently asserted because medieval judges recognized a number of valid justifications for intermeddling in litigation. Further, the book casts doubt on the effectiveness of the statutory regulation of livery. In fact litigants used maintenance litigation to harass and burden their opponents. This book is a treasure trove for legal historians, literature scholars, lawyers, and academic libraries.

Sunday, June 18, 2017

Sunday Book Review Roundup

Legal historians, enjoy these book reviews and have a happy Father's Day.

The NY Times provides Three Books on Puerto Rico’s Statehood vs. Independence Debate, including Puerto Rico: The Trials of the Oldest Colony in the World by José Trias Monge and Requiem of the Cerro Maravilla: The Police Murders in Puerto Rico and the U.S. Government Coverup by Manuel Suarez. Last week, the Times had a similar roundup of books about the gay rights/marriage movement.

Garret M. Graff doesn't mince words when it comes to titles.  The Times also published a review of Graff’s Raven Rock: The Story of the U.S. Government’s Secret Plan to Save Itself — While the Rest of Us Die. The book, a history of the government’s often-botched efforts at nuclear defense preparation, “shows how, again and again, technocratic efforts to prepare for governing after a nuclear attack have collided with the reality that doing so would almost certainly prove impossible.”

The Washington Post reviews He Calls Me By Lightning: The Life of Caliph Washington and the forgotten Saga of Jim Crow, Southern Justice, and the Death Penalty, by S. Jonathan Bass, which uses the thirteen year “legal saga” of Caliph Washington to paint a “picture of how Jim Crow legal systems operated at the local and state level.”

The Guardian has a short review of Britain’s Europe: A Thousand Years of Conflict and Cooperation by Brendan Simms, who argues that Brexit is “neither inevitable nor an accident”.

In the LA Review of Books, Eric D’Amato’s Getting Europe’s Right Wrong covers Far-Right Politics in Europe by Jean-Yves Camus and Nicolas Lebourg, and Mastering the Past: Contemporary Central and Eastern Europe and the Rise of Illiberalism by Ellen Hinsey. The former book is ultimately more satisfying, he argues, although it still does not contend with the diversity of Europe’s far right, which is “above all defined by its heterogeneity, decentralism, and ideological adaptability.” The Nation’s review of Christos Efstathiou’s E.P. Thompson: A Twentieth-Century Romantic may be inspiring to legal historians seeking a political reputation. It notes that: Thompson was “so prominent” in anti-nuclear activism that “polls placed him high in the ranks of the most admired, trailing only the ‘first women’ of the nation: [Margaret] Thatcher, Queen Elizabeth, and the Queen Mother.” The review also contrasts Thompson’s ability to find “agency” in his historical actors with the exacting standards to which he held his activist contemporaries. Those interested in biographies of historians may also enjoy this review of Ernst Kantorowicz: A Life by Robert E. Lerner, which seeks to revive the Medievalist’s reputation after Norman Cantor’s 1963 “hatchet job”. 

Also in The Nation, Sophie Pinkham reviews Lenin on the Train by Catherine Merridale, The Russian Revolution: A New History by Sean McMeekin, and Russia in Revolution: An Empire in Crisis, 1890–1928 by S.A. Smith, arguing that “how historians narrate the story of the Russian Revolution tells us much about their philosophy of history, as well as about their attitude toward the revolutionary project and the politics of the left.” 

The New York Review of Books has several essays of historical-inclination, not all of which have can be viewed without a subscription. These include: