Tuesday, October 31, 2017

Call for #ASLH2017 Panel Reports and Twitter Updates

[We're moving this up, as an encouragement to anyone who is considering submitting a guest post on an ASLH session!]

If you are attending the American Society for Legal History meeting next week in Las Vegas, the Legal History Blog welcomes your guest posts about any panels you attend. Examples of panel reports from previous meetings are here, here, here and here.  The 2017 program is here.

Twitter updates would also be appreciated. We suggest the hashtag #ASLH2017. And do say hello if you see us at the meeting!

CFP: Legal History and Originalism

[We have the following announcement.]

Call For Papers: Legal History and Originalism: Rethinking the Special Relationship

Law and History Review
, a leading journal of legal history published by Cambridge University Press for the American Society for Legal History, seeks article proposals for a special volume entitled "Legal History and Originalism: Rethinking the Special Relationship."  In the past thirty years, the method of constitutional interpretation known as originalism has taken center stage in the legal academy and the broader universe of American jurisprudence.  To a great extent, originalism draws its power from its use of history as a lens to make sense of contemporary legal problems.  Powerful legal opinions by originalist judges and justices write their own legal histories while leaning heavily on leading works of legal history.  Because of the prominence of originalism in American law, we believe it is a proper time to critically assess the scholarly underpinnings of originalist theory and practice.  We therefore seek articles of original research that explore the relationship between originalism and the field of legal history, broadly construed.

Proposals should be no more than a one single-spaced page, including footnotes, and should explain the topic and argument of an article that would be 5,000 words, including notes.  The due date for proposals is December 20th, 2017.  Authors will be notified of the status of their proposal by January 15th, 2017.  Articles will be due in December, 2018.  Proposals should be emailed as attachments (.PDF or .DOC) to the Editor-in-Chief of Law and History Review, Gautham Rao at grao@american.edu.

Watson's "Duty to Account"

J. A. Watson, has published The Duty to Account: Development and Principles, with The Federation Press.
This book investigates the history of the modern doctrine of account, and by that history, seeks to identify some of the principles and premises which help explain the application of, and which underlie, the action today. The common law account, and its successor in equity, is over 800 years old. There does not appear to have been any work devoted to an examination of that history published in that time. The focus on the book is on the question 'who is an accountable party'? The area of law focused on is common law and equitable remedies, namely, the account (including the subsidiary principle, the "account of profits").
Published last year, the book has already been well-reviewed.  Andreas Televantos, in the Cambridge Law Journal, calit “an original and valuable contribution to scholarship, which will provoke thought amongst scholars and legal practitioners alike.”  Joseph Charles Campbell, Sydney Law, has recently posted another review on SSRN.  He calls the book a “challenging and stimulating book [that] deserves the attention of any serious scholar of private law.”

ASLH: 2018 and 2019 Annual Meetings

In due course, we'll post news of the just-concluded annual meeting of the American Society for Legal History in Las Vegas (though we just can't wait for receipt of the text of the citation to kvell about our fellow Legal History Blogger Karen Tani's winning the Cromwell Book Prize for States of Dependency: Welfare, Rights, and American Governance, 1935–1972).

Just now, we'd like to alert you to the dates of the next two annual meetings of the ASLH.  The 2018 annual meeting will be in Houston on November 8-11, 2018.  The conference hotel will be the Hilton-Américas, and the meeting's sponsors will be the University of Houston Law Center and the University of Houston.  We'll post the entire text of the official call soon, but we note now that it invites "Papers and panels on any facet or period of legal history from anywhere in the world."  That said, a "hold the date" flyer circulated at the Las Vegas meeting explains that "a principal purpose of the [Houston] meeting will be to advance ASLH's further internationalization by providing a first-class opening for the discussion of legal history scholarship concerning Mexico and Latin America generally."

The 2019 annual meeting will be in Boston on November 23-24, 2019.

Monday, October 30, 2017

Conference: Religious Freedom in South Asia

On 8 January 2018, a conference on religious freedom in South Asia will follow the American Historical Association's annual meeting in Washington, DC. Papers from the conference will be published in a special issue of the journal, Asian Affairs, and conference proceedings will be live-streamed (as is the case with all Wilson Center events). Please contact Neeti Nair with any questions: Neeti.Nair@wilsoncenter.org

Here is the program:

Ghosts from the Past? Assessing Recent Developments in Religious Freedom in South Asia, 8 January 20185th floor Conference Room, Woodrow Wilson Center, Washington DC

10 am - Opening remarks - Bijan Omrani, editor Asian Affairs

10:30 am - 12:30 pm: Panel 1 - Constitutional Considerations

Mridu Rai, Presidency University Kolkata
The Indian Constitution and the Making of Kashmiri Hindus and Muslims

Farahnaz Ispahani, Global Fellow, Woodrow Wilson Center
Constitutional Issues and the Treatment of Pakistan's Religious Minorities

Dina Siddiqi, Columbia University I BRAC University, Bangladesh
Destabilizing Secularism: Constituent Assembly Debates and the Making of National Others in Bangladesh

Christina Fink, George Washington University
Myanmar: Religious Minorities and Constitutional Questions

Moderator -Neeti Nair, University of Virginia and Woodrow Wilson Center 
12:30 pm - 2 pm - Lunch

2 pm - 4 pm: Panel 2 - Contemporary Challenges

Cassie Adcock, Washington University, St Louis
Cow Protection and Minority Rights in India: Reassessing Religious Freedom

Neil DeVotta, Wake Forest University
Religious Freedom in Post-Civil War Sri Lanka

Raza Rumi, Cornell Institute for Public Affairs
Religious Freedom in Pakistan: Challenges and Prospects

Ali Riaz, Illinois State University
More than Meets the Eye: The Narratives of Secularism and Islam in Bangladesh 
Moderator - Michael Kugelman, Woodrow Wilson Center
Further information is available here.

This conference is cosponsored by the Royal Societfor Asian Affairs & Taylor & Francis

Martin on British Imperial Vice Admiralty Courts

Bevan Marten, Victoria University of Wellington School of Law, has posted Constitutional Irregularities in the British Imperial Courts of Vice Admiralty During the Mid Nineteenth Century, which appeared in the Journal of Legal History 37 (2016): 215
During the mid nineteenth century there were between 40 and 50 courts of vice admiralty located in colonies across the British Empire. They were imperial institutions, whose officers were supposed to be appointed by the High Court of Admiralty in London. However, the complexity and obscurity of the official process, combined with the lack of priority given to the courts by imperial and colonial officials alike, meant that many of these courts experienced unfilled vacancies and irregular appointments. This article discusses the shortcomings of the vice admiralty system that gave rise to these irregularities, and led to the passage of the Vice Admiralty Courts Act in 1863. It demonstrates that the courts were ineffective instruments of imperial authority, and that by the time the 1863 Act was passed their integration into the regular colonial courts was inevitable.

Saturday, October 28, 2017

Weekend Roundup

  • We're usually not big readers of brochures--electronic or otherwise--promoting the scholarship of law schools, but, given its faculty's many important contributions to legal history, the latest one from Buffalo is worth paging through.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 27, 2017

Ellinghaus on Native Americans and Assimilation Policy

New from the University of Nebraska Press: Blood Will Tell: Native Americans and Assimilation Policy (August 2017), by Katherine Ellinghaus (University of Melbourne). A description from the Press:

Blood Will Tell reveals the underlying centrality of “blood” that shaped official ideas
about who was eligible to be defined as Indian by the General Allotment Act in the United States. Katherine Ellinghaus traces the idea of blood quantum and how the concept came to dominate Native identity and national status between 1887 and 1934 and how related exclusionary policies functioned to dispossess Native people of their land. The U.S. government’s unspoken assumption at the time was that Natives of mixed descent were undeserving of tribal status and benefits, notwithstanding that Native Americans of mixed descent played crucial roles in the national implementation of allotment policy.

Ellinghaus explores on-the-ground case studies of Anishinaabeg, Arapahos, Cherokees, Eastern Cherokees, Cheyennes, Chickasaws, Choctaws, Creeks, Lakotas, Lumbees, Ojibwes, Seminoles, and Virginia tribes. Documented in these cases, the history of blood quantum as a policy reveals assimilation’s implications and legacy. The role of blood quantum is integral to understanding how Native Americans came to be one of the most disadvantaged groups in the United States, and it remains a significant part of present-day debates about Indian identity and tribal membership. Blood Will Tell is an important and timely contribution to current political and scholarly debates.
A few blurbs:
“Katherine Ellinghaus brilliantly traces the uneven practices that produced a powerful discourse of American Indian blood quantum. With sure hand and subtle interpretation, Blood Will Tell offers a compelling new reading of a technology of identity at once complicated and crude.”—Philip J. Deloria  
“Written with great clarity and precision. . . . Ellinghaus develops several key insights that will make contributions to historical scholarship on Indians, race, and western American history.”—Margaret Jacobs
More information is available here.

Yan on the Evolution of Chinese Corporation Law

Min Yan, Queen Mary University of London, has posted Evolution of the Corporation and Shareholders' Role in China:
While it seems that China’s corporate system lags far behind that of Western developed countries such as the UK, the US or Germany, as early as 1904 China’s first corporate law had been promulgated by the imperial government—the Qing Government—which included the rule of limited liability and equal treatment of shares, among others. So why has a mature corporate law system or a sound capital market failed to be established over a century later?

This article focuses on the historical development of corporate forms in different stages and their respective features, as well as the main causes and effects. The modern and contemporary history will be divided into three distinctive periods: the late Qing Dynasty from 1860 to 1911; the Republican period from 1912 to 1948; and the People’s Republic of China since its establishment in 1949, each distinctive period having differing phases during its own time. This evolution will be tracked in the first three sections. Then the picture of current shareholder rights in China will be briefly highlighted. After that, the article discusses lessons that can be learned from the evolutionary history in order to avoid similar mistakes in later developments. Finally, a conclusion will be provided.

de la Rasilla del Moral on the History of International Law Journals

Ignacio de la Rasilla del Moral, Brunel Law School, has posted A Very Short History of International Law Journals, 1869-2018, which is forthcoming in volume 29 of the European Journal of International Law:
The first part presents an overview of the rise of the first international and comparative law journals in the late 19th century followed by an account of the three factors lying behind the relative fall of the comparative element in the title of some of the international law journals published in French, Russian, Spanish, German, Japanese, Italian and English from 1869 to the end of the First World War. The second part surveys the consolidation of international law periodicals in the interwar period under the impact of the establishment of the League of Nations in both Latin-America and Europe including Nordic and Eastern Europe. The third part examines the expansion and main characteristics of international law journals during the Cold war and their geographical extension towards Asia, Oceania and, occasionally, the Middle East and Africa. The fourth part focuses on the main features of the global post-1989 period in the field of periodicals of international law examining the impact on them of the expansion and sectoral specialization of international law, regionalization, globalization, interdisciplinary and the transformative influence of new technologies respectively. The conclusion reflects on the first one hundred and fifty years of international law journals and points to future developments.

Thursday, October 26, 2017


The annual meeting of the American Society for Legal History begins in Las Vegas.  Follow the action here.

Hartley, "How Failed Attempts to Amend the Constitution Mobilize Political Change"

Vanderbilt University Press has released How Failed Attempts to Amend the Constitution Mobilize Political Change (August 2017), by Roger C. Hartley (Catholic University of America). A description from the Press:
Since the Constitution's ratification, members of Congress, following Article V, have proposed approximately twelve thousand amendments, and states have filed several hundred petitions with Congress for the convening of a constitutional convention. Only twenty-seven amendments have been approved in 225 years. Why do members of Congress continue to introduce amendments at a pace of almost two hundred a year? 
This book is a demonstration of how social reformers and politicians have used the amendment process to achieve favorable political results even as their proposed amendments have failed to be adopted. For example, the ERA "failed" in the sense that it was never ratified, but the mobilization to ratify the ERA helped build the feminist movement (and also sparked a countermobilization). Similarly, the Supreme Court's ban on compulsory school prayer led to a barrage of proposed amendments to reverse the Court. They failed to achieve the requisite two-thirds support from Congress, but nevertheless had an impact on the political landscape. The definition of the relationship between Congress and the President in the conduct of foreign policy can also be traced directly to failed efforts to amend the Constitution during the Cold War. 
Roger Hartley examines familiar examples like the ERA, balanced budget amendment proposals, and pro-life attempts to overturn Roe v. Wade, but also takes the reader on a three-century tour of lesser-known amendments. He explains how often the mere threat of calling a constitutional convention (at which anything could happen) effected political change. 
A few blurbs:
"A fascinating and important examination of the political significance of the constitutional amendment process. Although the Constitution has been amended only seventeen times since 1791, Hartley persuasively shows that the amendment process is crucial as a way of mobilizing people and furthering social change. Hartley's book is clearly written and very impressive in its thoroughness. This will be a key work in all future discussions of the constitutional amendment process."—Erwin Chemerinsky 
"Conventional wisdom holds that it's impossible to amend the Constitution. The wisdom is right, as a formal matter. But Roger Hartley's compelling account demonstrates that such efforts, even though they virtually always fall short of a formal amendment, have been critical factors in advancing constitutional rights in less formal ways. An invaluable lesson in how one can win through losing."—David Cole
More information is available here.

Milligan on Subsidizing Segregation

Joy Milligan, University of California, Berkeley, School of Law, has posted Subsidizing Segregation, which is forthcoming in volume 104 of the Virginia Law Review (2018):
What drives administrative officials to enforce the Constitution—or not? This Article recovers a forgotten civil rights struggle that sheds light on that question. Long after Brown v. Board of Education, federal education officials continued to fund segregated schools, arguing that their agency bore no immediate responsibility for implementing the Equal Protection Clause. In the present, that position seems deeply surprising—even at odds with the rule of law. But the administrators did what their agency had been designed to do: extend the federal role in education, without extending federal constitutional rights. Congress engineered the federal Office of Education, predecessor to today’s Department of Education, with the goal of avoiding enforcement of the Constitution’s equality principles. That institutional framework endured, as it did in much of the administrative state, until the Civil Rights Act of 1964 revised it.

The battle to enforce Brown’s principle against the federal government illustrates a basic feature of administrative constitutionalism: Agencies can be designed to serve, or disserve, a broad range of constitutional goals. Any particular agency’s approach to the Constitution will reflect the enduring influence (and variability) of administrative mandate and structure. That truth, encapsulated in the struggle over federal subsidies for segregation, also illuminates a key reason that racial segregation and inequality have been so difficult to uproot: Much of the federal administrative state was initially intended to coexist with discrimination, not combat it.

Rose on "Raisin in the Sun" and Real Estate Practices

Carol M. Rose, University of Arizona  James E. Rogers College of Law, has posted Raisin, Race, and the Real Estate Revolution of the Early 20th Century:
Diana Sands, Ruby Dee & Sidney Poitier in Raisin (1959)(NYPL)
Lorraine Hansberry’s hit play of 1957, A Raisin in the Sun, centered on the decision of an African American family in Chicago, the Youngers, to move to a house in a white neighborhood. The play is set in the post WWII era, but many of its scenes and actions relate back to real estate practices that began at the turn of the century and that continued to evolve into the mid-century and to some degree beyond. During those decades, housing development and finance increased dramatically in scale, professionalization and standardization. But in their concern for their predominantly white consumers’ preferences for segregation, real estate developers, brokers, financial institutions, and finally governmental agencies adopted standard practices that excluded African Americans from many housing opportunities, and that then reinforced white preferences for housing segregation.

Many seemingly minor actions in the play reflect the way that African Americans had been sidelined in the earlier decades’ evolving real estate practices—not just the family’s overcrowded apartment, but also more subtle cues, such as the source of the initial funds for the new house, the methods for its finance, and the legal background to the white homeowners’ effort to discourage the purchase. This paper, a draft chapter for the forthcoming law-and-literature collection, Power, Prose and Purse, pinpoints these and other small clues, and describes how standardizing real estate practices dating from the turn of the century effectively crowded out African American consumers like the Youngers, with consequences that we continue to observe in modern patterns of urban segregation.

Wednesday, October 25, 2017

Birge, "Marriage and the Law in the Age of Khubilai Khan: Cases from the Yuan dianzhang"

New from Harvard University Press: Marriage and the Law in the Age of Khubilai Khan: Cases from the Yuan dianzhang, by Bettine Birge (University of Southern California). A description from the Press:
The Mongol conquest of China in the thirteenth century and Khubilai Khan’s founding of the Yuan dynasty brought together under one government people of different languages, religions, and social customs. Chinese law evolved rapidly to accommodate these changes, as reflected in the great compendium Yuan dianzhang (Statutes and Precedents of the Yuan Dynasty). The records of legal cases contained in this seminal text, Bettine Birge shows, paint a portrait of medieval Chinese family life—and the conflicts that arose from it—that is unmatched by any other historical source. 
Marriage and the Law in the Age of Khubilai Khan reveals the complex, sometimes contradictory inner workings of the Mongol-Yuan legal system, seen through the prism of marriage disputes in chapter eighteen of the Yuan dianzhang, which has never before been translated into another language. Birge’s meticulously annotated translation clarifies the meaning of terms and passages, some in a hybrid Sino-Mongolian language, for specialists and general readers alike. The text includes court testimony—recorded in the vivid vernacular of people from all social classes—in lawsuits over adultery, divorce, rape, wife-selling, marriages of runaway slaves, and other conflicts. It brings us closer than any other source to the actual Mongolian speech of Khubilai and the great khans who succeeded him as they struggled to reconcile very different Mongol, Muslim, and Chinese legal traditions and confront the challenges of ruling a diverse polyethnic empire.
A few blurbs:
Birge has been working on Song and Yuan marriage law for more than two decades and is better qualified than anyone else to do the translation. This is a pleasure to read; she writes lucidly and gracefully. The subjects—law in China, marriage law, the Yuan period—are all ones that will draw readers to the work. Birge’s translation will be used not only by historians of China, but also by scholars and students interested in comparative law, social life and marriage, plus the Yuan dynasty and the Mongols more generally.Patricia Buckley Ebrey 
Based on painstaking research on legal decisions concerning marriage during the Yuan dynasty, this work illuminates the contradictions and difficulties the Mongols faced in attempting to develop a consistent approach to marital law. Birge’s descriptions of the Mongol government and the lawmaking process are informative, and her translations accurate and readable. The book offers many revealing insights, including that women instituted many of the legal cases, an indication that they were not as secluded or powerless as commonly thought.Morris Rossabi
More information is available herehttp://www.hup.harvard.edu/catalog.php?isbn=9780674975514.

Hulsebosch and Golove on Foreign Relations and the Law of Nations in "The Federalist"

Daniel J. Hulsebosch and David M. Golove, New York University School of Law, have posted "The Known Opinion of the Impartial World': Foreign Relations and the Law of Nations in The Federalist, forthcoming in the Cambridge Companion to The Federalist (Jack N. Rakove and Colleen Sheehan, eds., 2017):
Conventional accounts of The Federalist tend to overlook a critical and uncontroversial fact about the Constitution: the principal function it assigned the proposed new government was the conduct of the Union’s foreign affairs. By neglecting this simple point, readers too often are led to miss the forest for the trees. The Federalist’s central task was not to offer a general blueprint for republican government but, rather, to demonstrate the depth of the Confederation’s failures in foreign affairs and to explain why the new federal government would both govern more effectively in that realm and not imperil the republican commitments of the Revolution. This insight, in turn, reveals another: Even when The Federalist focuses on themes that seem far removed from the problem of foreign affairs — whether in analyzing the general principles of federalism or the separation of powers, the importance of energy in the executive or independence in the judiciary, or the deficiencies of popular assemblies — foreign affairs remains its ultimate subject. It was while developing a theory adequate to explain the interrelation between domestic and foreign governance that the authors of The Federalist were led to their deepest insights. Borrowing from Scottish Enlightenment ideas — which they filtered through their political experiences under the Confederation — they rooted their argument in theories of human nature and the social psychology of governance, which they then applied not only to diagnose the causes of the Confederation’s failings but also to explain the institutional arrangements that could overcome them. The result was an account of how the new federal government would be able to limit the influence of the destructive passions over the making of foreign policy and thereby take advantage of the bounded possibilities of peaceable, productive international relations.

Scott, Barbosa, & Haddad, "How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to that of a Slave’ in Modern Brazil”

Rebecca J. Scott (University of Michigan Law School), Leonardo Augusto de Andrade Barbosa (Center for Continuing Education and Professional Development), and Carlos Henrique Borlido Haddad (Universidade Federal de Minas Gerais) have posted “How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to that of a Slave’ in Modern Brazil.” The article appears in Volume 13 of the Duke Journal of Constitutional Law and Public Policy (2017). Here’s the abstract:
Over two decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as the imposition of “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity with an interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors have obtained hundreds of consent agreements and convictions in the labor courts.

This article – co-authored by a legal historian, a staff attorney at the Brazilian Chamber of Deputies, and a federal judge – draws on a massive archive of work site inspection reports to explore the ways in which inspectors and prosecutors give specific meaning to the analogy with chattel slavery. The authors find that the term “slave labor,” in this context, does not depend upon the international law definition of slavery as the exercise over a person of “any or all of the powers attaching to the right of ownership.” Instead, it identifies specific behaviors that are no longer permissible as between employer and worker, and which reproduce elements of what was once imposed by masters upon slaves. Intermediate normative terms introduced in the 2003 revision of the penal code– which prohibits the subjection of workers to “degrading conditions” and “debilitating work days” – have through the inspection processes taken on specific meaning. Rather than representing subjective notions in potential conflict with the principal of legality, as critics argue, their interpretation has unfolded through careful processes of documentation, negotiation, and prosecution.

In Brazil’s current situation of political polarization and institutional fracture, this remarkable campaign against slave labor is coming under fierce attack from large-scale landholders and from elements within the executive, a development which adds urgency to the task of explicating the campaign’s legal bases and operational practices.

The full article is available here.

CFP: History of International Law in Latin America

[We have the following call for papers from the Albrecht Mendelssohn Bartholdy Graduate School of Law at the University of Hamburg.]

We would like to invite everybody interested in the study of the history of international law in Latin America to participate in our call and to submit proposals for contributions on any of the listed subtopics (see below).  Please send your application in one single PDF file including     your proposal of around 300 - 500 words and a brief CV (indicating also your institutional affiliation) until December 3, 2017, to matthias.packeiser@uni-hamburg.de

The selection of speakers will be based on the quality of their abstracts and the abstract's suitability to the overall topic of the conference.  Selected candidates will be informed by December 8, 2017.

At the conference, each speaker will be granted 20 mins for his/her presentation. Each presentation will be followed by 10 min-discussions.  Unfortunately, we are not able to cover travel or accommodation costs.

List of subtopics after the jump.

Tuesday, October 24, 2017

CFP: Suárez in Lisbon 1617 - 2017

[We have the following call for proposals.]

International Conference: Suárez in Lisbon 1617 - 2017.  University of Lisbon School of Law, 4 - 6 December 2017

In the 400 years of Francisco Suárez’ death THD-ULisboa (Legal Theory and History, Research Centre of the University of Lisbon) promotes the International Conference “SUÁREZ IN LISBON 1617-2017”, taking place at the Faculty of Law of the University of Lisbon from 4 to 6 December 2017, dedicated to the Author’s work and its influence in European culture. ?

We welcome papers covering multiple methodological and historiographical perspectives, from juridical to political thought, philosophy and theology. Proposals for individual 20-minute papers should include the title, 3 keywords and should be no longer than 300 words. A short CV of the speaker should also be added (name, institutional affiliations, major publications).

Papers can be presented in Portuguese, Spanish, French and English. Please send your proposals by 30 October 2017 to thd@fd.ulisboa.pt. More information here.

Scientific Committee
Presidente: Martim de Albuquerque, Universidade de Lisboa
Alejandro Guzmán Brito, Pontificia Universidad Católica de Valparaíso
António Pedro Barbas Homem, Universidade de Lisboa
Eduardo Vera-Cruz Pinto, Universidade de Lisboa
Francisco Carpintero Benítez, Profesor Emerito, Universidad de Cádiz
Georges Martyn, Universiteit Gent
José Artur Duarte Nogueira, Universidade de Lisboa
José Luis Fuertes Herreros, Universidad de Salamanca
Juan Cruz Cruz, Universidad de Navarra
Leonel Ribeiro dos Santos, Universidade de Lisboa
Mário Santiago de Carvalho, Universidade de Coimbra
Pedro Calafate, Universidade de Lisboa
Randal Lessafer, Tilburg University / Katholieke Universiteit Leuven

Executive Committee
Pedro Caridade de Freitas, Universidade de Lisboa
Margarida Seixas, Universidade de Lisboa
Ana Caldeira Fouto, Universidade de Lisboa

Nancy Weiss Malkiel Scholars Award

[We have the following announcement.] 

The Nancy Weiss Malkiel Scholars Award is supported by the Andrew W. Mellon Foundation and administered by the Woodrow Wilson National Fellowship Foundation. The Malkiel Scholars Award offers a $17,500 stipend—$10,000 to be used for summer research support and $7,500 for research assistance during the academic year. The award is structured to free the time of junior faculty who have passed their midpoint tenure review—including those from underrepresented groups and others committed to eradicating disparities in their fields—so that they can both engage in and build support for systems, networks, and affinity groups that make their fields and campuses more inclusive.

Along with the research portfolio, selectors will examine evidence of deep campus service and mentoring commitments early in each candidate’s career, with a focus on creating inclusive opportunities for underrepresented scholars at all levels. At the same time, the Malkiel Scholars Program will work to strengthen the community for these emerging leaders within their disciplines by building a network around them and encouraging careers that focus on diversity, inclusion, and engagement.


Monday, October 23, 2017

Judge Newman's "Benched": A Memoir

Jon O. Newman, a senior judge of the U.S. Court of Appeals for the Second Circuit, recently published his memoir, Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge, with William S. Hein & Co.:
It is an explanation of what judges really do, a proposal for a better justice system, and a firsthand account of several important cases dealing with topics ranging from terrorism to movie stars. In this title, Newman aims to dispel the popular notion that judges vote based on personal preference. He outlines twenty proposals for improvements in the American system of Justice, covering such diverse topics as police misconduct laws, selection of juries, citizen standing to sue government officials, reviving the independent counsel, and death penalty sentencing.

The life of a judge can be remarkable. Judges deal with an extraordinarily wide variety of disputes, all of which matter greatly to the people involved and some of which are at the center of vital legal issues. In his career, Newman has encountered presidents, senators, governors, and hundreds of judges from here and abroad, an array of personalities in and out of court, the famous and the infamous and the impressive and the bizarre. He has had fortuitous opportunities that have enabled him to see the inner workings of the White House, Congress, and the Supreme Court and has served as a United States Attorney, a federal trial judge, and a federal appellate judge. Newman’s experiences, insights, and proposals discussed in this book will be of great interest to legal professional and nonlawyers alike.
H/t: JG3

CFP: LSA 2018 (Toronto)

[We're moving this up, as the deadline is today, 5:00 Mountain Standard Time!]

[We have the following for the organizers of legal history panels at the annual meeting of the Law and Society Association.]

The Law & History [Collaborative Research Network] (CRN 44) offers to help organize legal history panels for the annual Law & Society Association annual meeting (this year June 7 - 10, 2018 in Toronto). The LSA submission deadline is coming up quickly - Oct. 18 - so if you have a paper you'd like to present, please send your abstracts to us (email addresses below) by Oct. 15, so that we have enough time to quickly organize papers into panels by the deadline. Please also go ahead and submit your paper in the system as an individual paper and let us know that you have; the submission system requires that panels be constructed from those papers already in the system. 

And if you are putting together a panel yourself, and would like us to sponsor it, please let us know (so that we can add it to our list, and advertise it among CRN members as the conference approaches). Feel free to note it as a CRN 44 panel in the LSA submission process.

Joanna Grisinger
Associate Professor of Instruction
Center for Legal Studies, Northwestern University

Kimberly Welch
Assistant Professor 
Department of History, Vanderbilt University 

Logan Sawyer
Associate Professor
University of Georgia Law School

Kathryn Schumaker
Assistant Professor
Department of Classics and Letters, University of Oklahoma

Coniglio on the New Brandeis Movement's Sherman Act

It is has been a very long time since I checked in with the historiography of the federal antitrust laws.  Here’s an anecdote from the last time I did.  One day, during my first years of law teaching, my sister Ruth asked me what I was working on.  I started in on a reply by saying,“Well, you know, the centennial of the Sherman Act is coming up.”  Her response: “I had no idea.  I’ll have to run out and buy a new dress!”

That’s a long-winded way of explaining why I'm interested to see that the latest attempts to put antitrust law to progressive use has been generating a new interest in the origins and early years of the Sherman Act.  We’ve already noted one attempt to create an origins myth for progressives.  Now, via Legal Theory Blog, comes something of a counter from Joseph V. Coniglio, an associate at Wilson Sonsini Goodrich & Rosati.  It is a post on the Competition Policy International's website, How the “New Brandeis Movement” Already Overshoots the Mark: Sketching an Alternative Theory for Understanding the Sherman Act as a Consumer Welfare Prescription. From the introduction:
For the past several decades, the antitrust laws have been expressly understood as a consumer welfare prescription. Known as the “New Brandeis Movement,”an increasingly vocal group of commentators have made arguments suggesting that the Sherman Act should be enforced commensurate with social and political values. By applying contemporary insights from the “new originalism,” this short article sketches a legal theory for confirming consumer welfare as the Sherman Act’s raison d’etre. The Sherman Act should be “interpreted” as an open-textured statute protecting competition from restraints of trade – be they agreements or firms with monopoly power – that satisfy a criterion of unreasonableness. In determining whether a restraint of trade is unreasonable, the Sherman Act should be “constructed” according to the consumer welfare standard set forward by the Supreme Court.

Saturday, October 21, 2017

Weekend Roundup

  • UVA Law is digitizing "the 336 legal texts catalogued by the University librarian in 1828."  They are “part of a group of roughly 8,000 legal texts deemed critical for education in law by Thomas Jefferson.”  H/t: The Cavalier Daily.
  • The first panel at this week’s annual meeting of the ABA Section of Administrative Law and Regulatory Practice was organized around Josh Chafetz’s Congress’s Constitution.  Quoting from the organizer Chris Walker’s post on Notice & Comment: “This timely book details the historical foundations for a number of powerful tools at Congress’s disposal—the power of the purse, the contempt power, freedom of speech and debate, and other oversight tools—to rein in the federal bureaucracy and to resolve Congress’s conflicts with the other branches of the government. This panel will discuss how Congress has used and can better utilize these tools to reassert itself in the modern administrative state.”  More.
  • We noted the Harvard Law School's Diversity and U.S. Legal History Series as it transpired during the last academic year.  The lectures are now available on the "HLS Talks" webpage
  • John A. Ferejohn, NYU Law School, has posted Financial Emergencies, “a study of the use of emergency powers to deal with financial emergencies in revolutionary France and Weimar.”
  • ICYMI: A report of a discussion after a screening of “Marshall” at the National Museum of African American History and Culture, in the Washington Post Historians explain that access to documents at Indonesia’s National Archives isn’t what it should be.
  • Update: For anyone working on the history of criminal law, the new Annual Review of Criminology has a special interdisciplinary article collection on Crime and Society. It includes articles like Malcolm Feeley and Hadar Aviram's "Social Historical Studies of Women, Crime, and Courts." Free access to the issue until Nov. 30, 2017 is available here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 20, 2017

Postdocs with Foundations of European Legal Culture

[This just in from a Finnish friend.]

We are excited to begin work with the Academy of Finland Centre of Excellence that will continue to work of the Revisiting the Foundations of European Legal Culture 1934-1964 project. The CoE will begin its activities on January 1st, 2018, but we will begin recruitment for researcher positions already now. In the first phase, we are hiring 3-4 post docs for a period of four years each and three doctoral candidates also for a four year period. For the post docs, the main rule is that one should not have more than five years of research activity behind her or him. The doctoral student positions will be opened next month.

What we would like to ask you is to distribute the job ad to your networks and especially to people who would be suitable candidates. For more information about the CoE and its different subprojects, check out our fledgling website.

Each of the subprojects (Law and the uses of the past, Discovering the limits of reason and Migration and the narrative of Europe) has a different focus, but they are tied thematically. Legal historians, lawyers, intellectual historians, philosophers, anthropologists, political scientists and the like are strongly encouraged to apply! The ads are here, [here, and here.]

Thank you very much for your help! We look forward to having you as our guest in one or more of our events.

With all the best,

Kaius Tuori, Reetta Toivanen and Pamela Slotte
Directors, CoE for Law, Identity and the European Narratives

Kickman and Kerska on the Civil War Origins (and Later History) of the Anti-Injunction Act

Kristin E. Hickman and Gerald Kerska, University of Minnesota School of Law, have posted Restoring the Lost Anti-Injunction Act, which is forthcoming in the Virginia Law Review:
Should Treasury regulations and IRS guidance documents be eligible for pre-enforcement judicial review? The D.C. Circuit’s 2015 decision in Florida Bankers Association v. Treasury puts its interpretation of the Anti-Injunction Act at odds with both general administrative law norms in favor of pre-enforcement review of final agency action and also the Supreme Court’s interpretation of the nearly identical Tax Injunction Act. A 2017 federal district court decision in Chamber of Commerce v. Internal Revenue Service, appealable to the Fifth Circuit, interprets the Anti-Injunction Act differently and could lead to a circuit split regarding pre-enforcement judicial review of Treasury regulations and IRS guidance documents. Cases interpreting the Anti-Injunction Act in general are fragmented and inconsistent. In an effort to gain greater understanding of the Anti-Injunction Act and its role in tax administration, this Article looks back to the Anti-Injunction Act’s origin in 1867 as part of Civil War-era revenue legislation and the evolution of both tax administrative practices and Anti-Injunction Act jurisprudence since that time.

Kolla on International Law & the French Revolution

Out this month by Edward James Kolla (Georgetown University) is Sovereignty, International Law, and the French Revolution in the "Studies in Legal History" series with Cambridge University Press. From the publisher:

Sovereignty, International Law, and the French RevolutionThe advent of the principle of popular sovereignty during the French Revolution inspired an unintended but momentous change in international law. Edward James Kolla explains that between 1789 and 1799, the idea that peoples ought to determine their fates in international affairs, just as they were taking power domestically in France, inspired a series of new and interconnected claims to territory. Drawing on case studies from Avignon, Belgium, the Rhineland, the Netherlands, Switzerland, and Italy, Kolla traces how French revolutionary diplomats and leaders gradually applied principles derived from new domestic political philosophy and law to the international stage. Instead of obtaining land via dynastic inheritance or conquest in war, the will of the people would now determine the title and status of territory. However, the principle of popular sovereignty also opened up new justifications for aggressive conquest, and this history foreshadowed some of the most controversial questions in international relations today.
Praise for the book:

“When the right of peoples to self-determination creates an international law immediately to the advantage of the French Revolution and ultimately for our present world, a brilliant paradoxical book explaining how the French Revolution was a key experiment for our modernity.” -Jean-Clément Martin

“In this brilliant and thoughtful study of international law during the French Revolution, Kolla presents a fascinating history of the principle of national self-determination, as it developed over a century before Woodrow Wilson brought this idea to Versailles. Kolla’s book will be of great interest to historians of modern Europe, political theorists, and legal scholars.” -Dan Edelstein

“Kolla's bold and thought-provoking study transforms our view of the French Revolution's importance for international law. Kolla persuasively argues for positive advances, rooted in the doctrine of popular sovereignty, and for an indirect 'ripple' effect which provided an important foundation for the decisive nineteenth-century advance in international law.” –Hamish Scott

Further details are available here.

Thursday, October 19, 2017

The NYS Constitutional Convention of 1938

To inform New Yorkers in advance of next month’s referendum on whether to convene a state constitutional convention, the Historical Society of the New York Courts has posted on its website A Global Context: The New York State Constitutional Convention of 1938, by Peter J. Galie, emeritus professor of history at Canisius College, and Christopher Bopst.  An expanded version appeared in New York Archives Magazine 17 (Summer 2017): 24-27.  The 1938 convention's adoption of an “antibureaucracy clause” figures in chapter 4 of my Tocqueville’s Nightmare.

Update: By a large margin New Yorkers voted not to convene a constitutional convention.

Nicoletti's "Secession on Trial"

We know Secession on Trial: The Treason Prosecution of Jefferson Davis is out, because we saw a copy when Cynthia Nicoletti, Virginia Law, drew upon it in delivering her  Leon Silverman Lecture (a series sponsored by the Supreme Court Historical Society) at the Supreme Court last night.  The book appears in the ASLH series Studies in Legal History, published by the Cambridge University Press.
This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case - who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the “wrong” outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).
Here are some endorsements:
“Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.”

John Fabian Witt - Yale Law School, Connecticut, and author of Lincoln’s Code: The Laws of War in American History

“Nicoletti’s beautifully written book studies a crucially important trial that never happened. She situates Davis’s treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.”

Laura Edwards - Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights

Brunson on Brigham Young v. BIR

Samuel D. Brunson, Loyola University Chicago School of Law, has posted Brigham Young vs. The Bureau of Internal Revenue:
Brigham Young (LC)
In 1871, Brigham Young, the president and trustee-in-trust of the Mormon church, decided to end the church’s practice of tithing, a significant source of revenue for the Mormon church. This decision was the culmination of more than a year of conflict with the Bureau of Internal Revenue, which had decided that tithing was taxable under the Civil War income tax.

At the time, Mormons distrusted the federal government, and the federal government, in turn distrusted the Mormons. The question of taxation was a small part of a larger legal and existential battle between the Mormons and the government. This Article situations the question of the taxability of tithing in the broader legal and relational conflict. More important, it tells the story of how the income tax threatened to fundamentally change the Mormon church, and how Mormon leaders reacted to that threat, both with an increasingly sophisticated legal argumentation and, in the event their legal argumentation failed, with planning to take the tax law into account.