Tuesday, December 18, 2018

Cromwell Book Prize to Nicoletti

Via the American Society for Legal History, we have the official citation for the Cromwell Book Prize, awarded this year to Cynthia Nicoletti (University of Virginia):
The William Nelson Cromwell Foundation awards annually a $5,000 book prize for excellence in scholarship in the field of American Legal History by an early career scholar.  The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured.  The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference.  The prize is limited to a first book, wholly or primarily written while the author was untenured.   
2018 recipient: Cynthia Nicoletti (University of Virginia), Secession on Trial: The Treason Prosecution of Jefferson Davis (Cambridge University Press, 2017). 
Committee citation: Cynthia Nicoletti’s Secession on Trial: The Treason Prosecution of Jefferson Davis ingeniously creates a page-turner out of a trial that never happened. In vivid detail and compelling prose Nicoletti uses the federal government’s abandoned prosecution of Jefferson Davis to challenge the conventional wisdom among historians and legal scholars that the verdict of the battlefield settled the legality of secession. Nicoletti instead illuminates the uncertainty among lawyers, politicians, and the populace on secession’s legality and thus the availability of a treason prosecution for those who had seceded. Along the way, she also argues for the centrality of law and legal thinking in post-Civil War America’s political culture, displaying both the law’s power and powerlessness. Former Unionists and Confederates alike showed continued faith and fidelity to law. Indeed, Nicoletti highlights examples of actors high and low resisting the push of politics to adhere to unfavorable legal outcomes and of the strange alliances this legal fidelity produced. Even as Nicoletti argues that law constrained politics in the postbellum period she also illuminates the ways political considerations shaped the course of the law—both the fear that Davis would be acquitted and, as the political ground shifted, of taking a position on the matter at all. Nicoletti has written a beautiful work of legal history about working lawyers mired in legal and constitutional intricacies but fully aware of the potentially earth-shaking political consequences of their actions. Secession on Trial opens up fresh perspectives not only on the Civil War and Reconstruction but also the vexing and variable relationship between law and politics.
The members of this year's Cromwell Book Prize subcommittee were Sophia Lee (University of Pennsylvania) (chair); Felice Batlan (Chicago-Kent College of Law); Jonathan Levy (University of Chicago); and Thomas Mackey (University of Louisville).

Congratulations to Professor Nicoletti!

Cromwell Dissertation Prize to Powers

Via the American Society for Legal History, we have the official citation for the Cromwell Dissertation Prize, awarded this year to Alison Powers (Texas Tech University):
The William Nelson Cromwell Foundation has generously funded a dissertation prize of $5,000. The winning dissertation may focus on any area of American legal history, including constitutional and comparative studies; topics dealing with the colonial and early national periods will receive some preference. Anyone who received a Ph.D. in 2017 will be eligible for this year’s prize. 
2018 recipient: Allison Powers, “Settlement Colonialism: Compensatory Justice in United States Expansion, 1903-1941”—a dissertation submitted for a Ph.D. at Columbia University. 
 Committee citation: This elegantly structured and beautifully written dissertation explores the operation and eventual demise of a system of international claims settlement tribunals established to compensate property owners for foreign property expropriated and damaged by and on behalf of the US Government in the second half of the nineteenth century. Through deep, multi-archival research, Powers shows how the system created unexpected opportunities for ordinary people to resist “settlement colonialism”. Indeed, she argues that claims brought by ordinary people transformed the commissions from showcases of US leadership in international justice, into spaces where US imperialism was exposed to the world.
The members of this year's Cromwell dissertation prize subcommittee were Lisa Ford (University of New South Wales) (chair); H. Robert Baker (Georgia State University); Mary Sarah Bilder (Boston College); and Laura Weinrib (University of Chicago).

Congratulations to Professor Powers!

Monday, December 17, 2018

ASLH Sutherland Prize to Lambert

Via the American Society for Legal History, we have the formal citation for this year's Sutherland Prize, which the Society awarded to Tom Lambert (Sidney Sussex College, Cambridge University): 
The Sutherland Prize, named in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually, on the recommendation of the Sutherland Prize Committee, to the person or persons who wrote the best article on English legal history published in the previous year. 
2018 recipient: Tom Lambert, “Jurisdiction as Property in England, 900-1100” in Legalism: Property and Ownership, edited by Georgy Kantor, Tom Lambert, and Hannah Skoda (Oxford University Press, 2017). 
Committee citation: The Sutherland Prize for 2017 is awarded for a piece addressing the issue of jurisdictional rights in the tenth and eleventh centuries. Such rights enabled their holders not merely to receive the revenues associated with a particular offence but also to hold courts and enforce the law in pursuance of such rights. Two separate views are identified within the current historiographical debate about the existence and extent of such rights. The first assumed that an entitlement to legal revenues brought with it an entitlement to perform legal functions as well. The second took the view that aristocratic legal privileges were fiscal rather than jurisdictional. Both, the author notes, are premised on certain assumptions about the chronology of feudalization. The author adopts an alternative approach, contending that ‘the absence of explicit evidence for aristocratic possession of jurisdictional rights before the Norman conquest … should be taken as a sign that jurisdictional rights did not exist as things to be possessed or transferred.’ This, he notes, moves the focus away from feudalization to the issue of when jurisdictional rights emerged as a form of property. The article goes on to discuss the absence of jurisdictional rights in the tenth century, arguing that this was because ‘the performance of functions relating to both judicial decision-making and law enforcement was theoretically open to all’ and given its demanding and sometimes dangerous nature was ‘understood to be more of a burden than a privilege.’ Matters changed in the eleventh century, it is suggested, because of economic incentives, with greater competition for legal revenues leading to the performance of the associated legal functions being perceived as a more desirable task. The result, as the author concludes, was that ‘[g]radually and unevenly – and perhaps initially not very legalistically – jurisdictional rights were probably emerging as a form of property in the decades before the Norman conquest.’
The members of this year's Sutherland Prize Committee were Rebecca Probert (University of Exeter) (chair); Paul Halliday (University of Virginia); Allyson May (University of Western Ontario); and  P.G. McHugh (University of Cambridge).

Congratulations to Dr. Lambert!

Burrell and Kelly on British medicine and patents

Robert Burrell (University of Sheffield) and Catherine Kelly (University of Bristol) have co-authored the article, "Myths of the medical methods exclusion: medicine and patents in nineteenth century Britain" in Legal Studies 38 (2018): 4, 607-26. Here's the abstract: 
This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process.
Further information is available here.  

ASLH Surrency Prize to Wheatley

Via the American Society for Legal History, we have the formal citation for this year's Surrency Prize, which the Society awarded to Natasha Wheatley (Princeton University):
The Surrency Prize, named in honor of Erwin C. Surrency, a founding member and first president of the Society and for many years the editor of its former publication, the American Journal of Legal History, is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year. 
2018 recipient: Natasha Wheatley “Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State,” Law and History Review 35 (August 2017): 753-757. 
Committee citation: This article sheds important new light to on key question for international law: Who is a subject of international law? Focusing on the turbulent interwar period, Wheatley examines key juristic arguments and opinions as to when and how non-state entities might be rethought as subjects, rather than objects, of that law. Both theoretically sophisticated and methodologically innovative, this article tackles the question by way of an anthropology of international law’s fictional persons. Drawing on both published debates and archival sources – in both English and German – Wheatley focuses on what she labels ‘the conceptual process of birthing new subjects’. In striking prose (that itself employs illusion and figure to give life to this story) she brings to the fore the recurrent metaphors and analogies of the new interwar discourse – those groups and institutions who are likened to slaves, spectres, the unborn and embryos and the irregular, the temporary, the virtual, the suspended, the unfinished and the vacated. It is these, she persuasively argues, that play midwife to the birthing of the new subjects of international law. Importantly, Wheatley concludes that as late arrivals these new legal persons were coded by their prior absence – they could be embryonic, unfree or abnormal – but they all represented new ways of not being a state.
The members of the Surrency Prize Committee were Cornelia Dayton (University of Connecticut); Alison LaCroix (University of Chicago); Kunal Parker (University of Miami); and Laurie Wood (Florida State University).

Congratulations to Professor Wheatley!

ASLH Reid Prize to Kessler

Via the American Society for Legal History, we now have formal citations for the prizes announced at the annual meeting earlier this fall. (We've posted news of some of these already, including the Peter Gonville Stein Prize, the Kathryn T. Preyer Scholars, and the Cromwell Fellowships.) Here is the citation for the John Phillip Reid Prize, which the ASLH awarded to Amalia Kessler (Stanford University):
Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history, with a preference for work that falls within Reid’s own interests in seventeenth- through nineteenth-century Anglo-America and Native American law.

2018 recipient: Amalia D. Kessler (Stanford University), Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (New Haven: Yale University Press, 2017).

Committee citation: Americans have long supposed that the adversarial trial, dominated by lawyers, was always at the heart of our legal system. Amalia Kessler’s deeply thoughtful Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale University Press, 2017) persuasively challenges this supposition. Kessler shows how mid-nineteenth century debates over market regulation, the role of the legal profession, religion, and Reconstruction helped elevate adversarialism over more judge-centered quasi-inquisitorial alternatives. Beautifully written and deeply original in conceptualization, this wonderful monograph reframes and expands the history of legal procedure by situating it in a wide array of contexts that previous accounts had not connected together.
The members of this year's Reid Award Committee were Richard J. Ross (University of Illinois, Urbana-Champaign) (chair); Deborah Rosen (Lafayette College); Susan Carle (American University Washington College of Law); Laura Edwards (Duke University); and Christian McMillen (University of Virginia).

Congratulations to Professor Kessler!

Sunday, December 16, 2018

Preparing for Class


I’ve written already about constructing syllabi and choosing readings for my legal history courses; today I’m going to focus on how I prepare for class. (This may all be obvious for many readers, and much of it is not specific to American legal history, but I hope that readers with little or no teaching experience may find it of some interest. I know when I was first prepping my own courses, I was extremely curious about how everyone else did it, and I benefited from many colleagues’ generous advice.) 

Prepping my first classes out of graduate school required a giant shift in perspective. After years of narrowly focusing my attention on the details of American administrative law and politics, I needed to figure out big themes through which to tell the story of American legal history over many centuries. I also needed to figure out how to balance big ideas and granular detail in each day’s class. My dissertation adviser, Bill Novak, had been exactly right when he told me that I should think about my oral exam lists as setting me up to teach classes in that field, and it was a relief to remember that I had taken detailed notes on a wide array of books and articles during my preparation for oral exams years earlier. (I even had outlines—I had adapted my law school outlining technique to help me organize my thoughts for my oral exams.) My notes alone were often insufficient, of course, since they were largely focused on historiographical questions, but even just knowing which books I could go back to was a huge help. 

For a broader perspective, I repeatedly turned to Kermit Hall and Peter Karsten’s The Magic Mirror: Law in American History and Lawrence Friedman’s A History of American Law in order to step back and see what broad themes these scholars had identified in American legal history. While I may quarrel with some aspects of these books, I find their focus on the forest, not just the trees, very useful for thinking about finding entry points into often dense material. 

Also useful for seeing broad themes were notes I’d taken as a law student in Richard Ross’s course on Colonial American Law and notes I’d taken as a TA for courses including Bill Novak’s U.S. Legal History class and Gerald Rosenberg’s Constitutional Law class. I could see in my notes even years later that the most successful lectures were organized around a single big idea, illustrated with concrete examples and then complicated and challenged through counterexamples. (I even still have my handwritten notes for many college history courses, but deciphering my college handwriting was perhaps a bridge too far.) Graduate students reading this—take good (typed!) notes, and save them! You never know what might be helpful in the future. 

Figuring out how to balance the big ideas with the granular details is, of course, always the challenge. Early on, I assigned too much reading, and included too many details in my lectures, largely out of terror that I would run out of things to say. As I became more comfortable teaching, I pulled back some (a lot, actually) to give students more time to engage with the readings and examples I did provide. 

Some other habits I’ve adopted to make class preparation easier (again, these are probably old hat for many of you, but they are things I wish I’d known to do when I started teaching):

I keep fairly extensive lecture notes, organized with bullet points into outlines so I can easily see where I am on the page. I don’t bother with full sentences, but I include the broad point I wanted to make, the examples/details/statistics I’ll need to read off the page, the questions I want to ask students about the readings, and the specific quotes from the reading I want them to discuss. I know that I can get through exactly four and a half pages of my notes (single-spaced, 12 point font) in 80 minutes. (Only recently did I figure out how great it would be to increase the font size before printing.) I also know that from experience I will not be able to get through more no matter how much I want to or how quickly I talk.  This is really helpful to know when I’m writing new lectures. (I’ve also starting using my lecture note format when I give conference papers; it allows me to be somewhat more relaxed in style, while presenting in a format I’m used to doing multiple times a week.) 

As soon as a syllabus is finalized and handed out, I save a copy as “future syllabus 3XX” and add notes to it (moving or removing certain cases that just don’t work with a particular day’s material, noting at the top that I need to spend more time on A, B, or C, etc.) I know I’m not going to remember the details of why something didn’t work a year, or years, later, but it’s easy to go back to my office and simply move an assigned reading from one day to another. It’s also a file where I can paste citations, links, and stray thoughts (like “do a better job explaining negligence” or “read this article before teaching Lochner again”) to deal with later.

Further, when I run across something online that I think might be interesting to use in one of my classes someday (an image, a newspaper article, a Legal History Blog reference to a new book or journal article, a digital history project, someone else’s syllabus or reading list, a tweet with a great piece of teaching advice), I immediately save it with Google Keep (which lives in my browser and requires a single click; Evernote also works for this.) Evernote and Google Keep (and probably a dozen more similar programs) store all kinds of materials and allow you to tag your materials as you like. I’ve created tags for each of the different classes I teach or might teach (as well as ones for various research projects I’m working on, restaurant recommendations, travel ideas, etc.). I’ll tag a link as soon as I save it, with whatever fits (the same article might be of use in Legal History since 1850, Gender and the Law, and Constitutional Law). Some of these classes I might not be teaching again for a few years, but when I’m starting to think about ordering materials and revising the syllabus for that class, I have a giant head start. It’s also a great way to keep track of the teaching tips and interesting assignments people tweet about that can be almost impossible to find weeks or months later.


Saturday, December 15, 2018

Weekend Roundup

  • “On the evening of Monday, December 3, members of The Osgoode Society for Canadian Legal History and guests gathered in the beautiful convocation room at Osgoode Hall to celebrate the launch of two new books: A History of Law in Canada Volume 1: Beginnings to 1866 and The Class Actions Controversy: The Origins and Development of the Ontario Class Proceedings Act.”  More, in Precedent Magazine.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, December 14, 2018

Gregory, Grey, Bautz and friends on Victorian Judgment

James Gregory, Daniel J. R. Grey, and Annika Bautz (all from the University of Plymouth) have co-edited Judgment in the Victorian Age with Routledge. From the press: 

Judgment in the Victorian Age: 1st Edition (Hardback) book coverThis volume concerns judges, judgment and judgmentalism. It studies the Victorians as judges across a range of important fields, including the legal and aesthetic spheres, and within literature. It examines how various specialist forms of judgment were conceived and operated, and how the propensity to be judgmental was viewed.
Here's the chapter line-up:

Part I: The Judgment of the Law

1. Cartes de visite and the First Mass Media Photographic Images of the English Judiciary: Continuity and Change. Leslie J. Moran

2. Sir Redmond Barry and the Trial of Ned Kelly: representing the Judge and Judgment in Nineteenth-Century Australia. Alice Richardson

3. The Emotional Reactions of Judges in Cases of Maternal Child Murder in England, 1840 –1900. Alison Pedley

4. ‘What Will Most Tend Towards Morality’: Sir Cresswell Cresswell and the Divorce Court, 1858-1863. Gail Savage

5. ‘Infamous Falsehoods’: Judges, Perjury, and Affiliation Trials in England, 1855–1930. Ginger Frost

6. Authoritative Judgments in a Provincial Town: Responses to Everyday Offending in Plymouth 1860 – 1900. By Kim Stevenson and Iain Channing

Part 2: Judgments in Culture

7. Judging the Judges: The Image of the Judge in the Popular Illustrated Press. Craig Newbery-Jones

8. The Matter of Judgment: Comparing Gendered Perspectives on Victorian Legal Culture in Popular Literature. Judith Rowbotham

9. The Operation and Representation of Art Judgment. James Gregory

10. Judging by the Hand: Handwriting and Character in Victorian Literary Culture. Karin Koehler

11. ‘They will not read it, but their sons & daughters may’: judging Percy Shelley’s Queen Mab (1813) in the nineteenth century. Cian Duffy

Further information is available here.

Thursday, December 13, 2018

Barnett on Lochner

Randy E. Barnett, Georgetown University Law Center, has posted After All These Years, Lochner Was Not Crazy — It Was Good, which appears in the Georgetown Journal of Law & Public Policy 16 (2018): 437-43
For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.
H/t: Legal Theory Blog

Witte on Calvin on Marriage

John Witte, Emory University School of Law, has posted The Marital Covenant in John Calvin’s Geneva, which appears in Political Theology 19 (2018): 282-299:
John Calvin (LC)
This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and discernible goods and goals that couples and communities alike had to support. This covenantal framework gave Calvin new rationales for old rules concerning marital and non-marital sex and cohabitation, courtship and weddings, procreation, nurture, and education of children, and the punishment of adultery, polygamy, and “unnatural” sex within and beyond the marital bed. But Calvin also set out new teachings on the proper communal formation and maintenance of the marital covenant, and introduced into Genevan law the rights of husbands and wives alike to divorce and remarry in cases of hard fault.

Wednesday, December 12, 2018

Tobin Project Jobs and Request for Proposals on Cultural Capture

The Tobin Project is seeking “talented recent graduates and current seniors” to “join our team as Research Analysts and Case Writers. Research Analysts work with leading social scientists and Tobin Project staff to generate and diffuse rigorous social science research aimed at solving important problems facing society. Case Writers translate such academic research into pedagogical case studies.

With the Social Science Research Council (SSRC), it is also requesting proposals for “graduate student research on ‘cultural capture’ and its relevance to executive branch rulemaking. Cultural capture refers to the possibility that informal connections between regulators and representatives of regulated industries, such as shared identities and overlapping social networks, may well lead to undue special interest influence. We are especially interested in proposals that will investigate the possibility of cultural capture through examination of ‘regulatory-adjacent spaces’—such as industry association meetings, policy conferences, and job fairs—where regulators and industry officials may socialize.”  Deadline January 18, 2019

Washington History Seminar Spring 2019 Schedule

The Spring 2019 schedule for the Washington History Seminar is out:

January 14      Panel Discussion: Joshua Shifrinson on Rising Titans, Falling Giant: How Great Powers Exploit Power Shifts; Joseph Parent and Paul MacDonald on Twilight of the Titans: Great Power Decline and Retrenchment; David Edelstein on Over the Horizon: Time, Uncertainty, and the Rise of Great Powers; Stacie Goddard on When Right Makes Might: Rising Powers and World Order

January 28      Derek Leebaert on Grand Improvisation: America Confronts the British Superpower, 1945-1957

February 4      Kathleen Day on Bankers, Bailouts, and the Struggle to Tame Wall Street

February 12*   Fitzhugh Brundage on Civilizing Torture: An American Tradition

February 25     Kate Lemay on Triumph of the Dead: American WWII Cemeteries, Monuments, and Diplomacy in France

March 4           Stephan Kieninger on The Diplomacy of D├ętente: Cooperative Security from Schmidt to Shultz

March 11         Ngoei Wen-Qing on The Arc of Containment: Britain, the United States, and Anticommunism in Southeast Asia

March 18         Devin Fergus on Land of the Fee: Hidden Costs and the Decline of the American Middle Class 

March 25         Gail Hershatter on Women and China’s Revolution

April 1             Sarah Igo on The Known Citizen: A History of Privacy in Modern America

April 4*            Robert Jervis on How Statesmen Thing: The Psychology of International Politics

April 8             Jennifer Miller on Cold War Democracy: The United States and Japan

April 15           Daniel Immerwahr on How to Hide an Empire: A History of the Greater United States

April 22           Felix Boecking on No Great Wall: Trade, Tariffs, and Nationalism in Republican China, 1927-1945

April 29           Konrad Jarausch on Broken Lives: How Ordinary Germans Experience the Twentieth Century

May 6             Piotr Kosicki on Catholics on the Barricades: Poland, France and Revolution, 1891-1956

May 13           Joanne Freeman on The Field of Blood: Violence in Congress and the Road to Civil War

*event does not take place on Monday

Kumarasingham on Commonwealth constitutional history

Harshan Kumarasingham, University of Edinburgh, has published "Written Differently: A Survey of Commonwealth Constitutional History in the Age of Decolonisation." Here's the abstract for the article, which came out in the Journal of Imperial and Commonwealth History, 46 (2018):5, 874-908:
This article provides a survey and definition of the field of Commonwealth constitutional history since 1918, especially during and after global decolonisation. It asks what is Commonwealth constitutional history and how it differs from its English and Imperial counterparts. The article puts forward a working definition of Commonwealth constitutional history and introduces key and diverse writers who illustrate the range and potential of this history. The article provides an historiography and survey of constitutional history in the Pre-Commonwealth and Post-war Commonwealth periods while also assessing the opportunities of Post-British Commonwealth constitutional history. The objective of this article is to show how Commonwealth constitutional history can contribute to the historical study of state power and to see its worth to other disciplines and fields of history. Commonwealth constitutional history is a necessity to examine the politics, power and consequences of the British empire during the long age of decolonisation.
Further information is available here

Tuesday, December 11, 2018

Assembling My Own Legal History Course Materials


As I mentioned in an earlier post, a few years ago I decided to start assembling my own primary source materials, tailored to the dates and coverage of my courses. (This also reduced course costs—I post the materials via our course management system, allowing students to print and/or view the materials online, as they like.) I initially expected the process to be fairly straightforward; I had taught legal history courses many times over, and thus knew what kinds of materials would illustrate, complement, and complicate my lectures and the historical scholarship I assigned. However, it turned out to be much more time consuming than I had anticipated, because there’s just so much fascinating material one could assign, and it was so easy to go down rabbit holes. Although I thought I knew what I was looking for, I kept finding materials sources that were so intriguing that I rewrote some lectures entirely in order to include them.

The first and easiest part of the task was gathering cases, statutes, and other sources I’d already been teaching and wanted to continue using. For each, though, I now had to decide how much of the original source to include. For example, I had long used casebook excerpts of seventeenth and eighteenth-century Virginia statutes regarding servitude and slavery, but there was so much rich and interesting material in the statute books that it was hard to figure out what to exclude. And editing nineteenth and twentieth-century judicial opinions for an undergraduate audience required significant attention to both length and clarity.  

In other areas, I knew only generally what I wanted (these included colonial cases involving domestic disputes, and nineteenth-century private law cases with more interesting fact patterns than the ones I’d been using). Without specific documents in mind, I looked to the footnotes of relevant books and articles for ideas; I also tried to browse online sources to the extent possible. For colonial records, I am extremely thankful for archive.org, where it is easy to full-text search many colonial legal reports. Here my strategy was to identify something like Nathaniel B. Shurtleff’s Records of the Governor and Company of the Massachusetts Bay in New England, search various volumes for words like “adultery” and “drunk,” and see what came up. (A lot.) And once I found an interesting case, I could search the litigants’ names; I was happy (for me, of course, not for them) whenever I found couples whose domestic strife kept them returning to the courts. Similarly, in paging through the nineteenth-century legal treatises available through HeinOnline (especially the Early American Case Law and the Legal Classics collections) I found brief descriptions of and citations to nineteenth-century tort and contract cases that seemed engaging and readily comprehensible.

Finally, I wanted to see what other kinds of sources were out there, and I wanted to broaden my sources to showcase non-elite, non-male, and non-white perspectives on law and legal change. Here too I looked to the footnotes of academic books and articles; I also went back to other people’s syllabi to see what sources they included. (I’ve been collecting paper and electronic syllabi since I started teaching. Online resources have significantly improved in recent years, and one particularly useful collection of legal history can be found at the Triangle Legal History Seminar’s website. Academic crowd-sourced reading lists of primary and secondary sources like the Trump Syllabus 2.0 and the #CharlestonSyllabus—now a book—are another great resource. And The Docket is planning a syllabus repository.)

I also browsed the resources on Project Avalon – both its Chronology of American History 1492-present and its more focused collections like Statutes of the United States Concerning Native Americans – for sources of possible interest. George Mason University’s History Matters website also has a great set of primary sources, as does the American Yawp (especially pre-1923). I also sat down with a pile of all of the various American history document collections I’d accumulated via book sales, exam copies, and free book piles in academic hallways. These included (but were definitely not limited to) the Founders’ Constitution (now also online); Women’s America (Linda K. Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, and Judy Tzu-Chun Wu, eds.); multiple volumes of A Documentary History Of The Negro People In The United States (Herbert Aptheker, ed.); The Constitutional and Legal Rights of Women (Judith A. Baer and Leslie Friedman Goldstein, eds.); The Age of Jim Crow (ed. Jane Dailey); and the excellent but out of print Women in American Law: From Colonial Times to the New Deal (Marlene Stein Wortman, ed.)

At the end of the day, of course, I found more material, and more ideas for hunting down even more material, than I could ever use (or ask students to read). (I’ll describe how I repurposed some of these sources for paper topics in a later post.) I had, however, created collections that represented a broader set of voices and perspectives and that I was excited to teach.


Simmons on Homestead Law since 1889

Thomas Simmons,  University of South Dakota Law School, has posted Homestead: A (New) Hope, which appears in the South Dakota Law Review 63 (2018): 75-130:
A finely-tuned balancing of commercial enterprise against a family’s interests in shelter is at the heart of homestead exemption laws. In South Dakota, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article by this author, "Prequel to Homestead", outlined South Dakota’s homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota’s becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.

Kirkby on Modern Jurists and Ancient Law

Coel Kirkby, University of Sydney Law School, has posted Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961, which is forthcoming in the American Journal of Legal History:
This study traces how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart. It first examines how Maine developed his historical jurisprudence as a form of social evolutionary analysis of law. Next, it traces the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study. Finally, it looks at how Hart uses primitive law to make his famous argument that law was ‘the union of primary and secondary rules’. In each case, legal thinkers develop their concepts of modern law through a foundational contrast with primitive law. This is a striking feature of much Anglo-American jurisprudence that cuts across the borders of the positivist, natural, historical, realist, and other schools of jurisprudence. Appreciating these new uses of primitive law is a first step in excavating an intellectual history of legal thought grounded in the context of colonial knowledge.

Monday, December 10, 2018

Havrylyshyn Wins Ca. Supreme Court Historical Society Selma Moidel Smith Award

From our friends at the California Supreme Court Historical Society, we have word that Alexandra Havrylyshyn, a Robbins Postdoctoral Research Fellow and graduate of Berkeley Law, won first place in this year’s Selma Moidel Smith Law Student Writing Competition. Sponsored by the California Supreme Court Historical Society, the competition is judged by a panel of law professors and lawyers. The award recognizes excellent scholarship on any aspect of California legal history. 


Credit: California Supreme Court Historical Society
Havrylyshyn’s paper, “How a California Settler Unsettled the Proslavery Legislature of Antebellum Louisiana,” will be published in the 2019 volume of California Legal History.  The paper uncovers the little-known history of Judge John McHenry. During his time on the bench in Louisiana, McHenry interpreted proslavery laws so as to favor liberty for certain enslaved individuals. Relying on McHenry’s personal and legal papers (preserved at the University of California, Berkeley’s Bancroft Library), this article argues that a commitment to the rule of law, rather than a clear commitment to ending slavery, ultimately explains McHenry’s unpopular opinions. In a context of heightened sectional tension over the legality of slavery, McHenry departed Louisiana for California, where he was called upon to help frame the state’s first constitution.

Photo: Retired California Supreme Court Associate Justice Kathryn Mickle Werdeger, California Supreme Court Chief Justice Tani Cantil-Sakauye, Alexanra Havrylyshyn, attorney Selma Moidel Smith, and California Supreme Court Historical Society president George Abele.

Antislavery Constitutionalism: An ICH Seminar

[We're moving this announcement up, because the deadline for this excellent seminar (December 15) is approaching.]   The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty: Antislavery Constitutionalism: