Tuesday, September 11, 2018

Minnesota Legal History Workshop

Here is the Speaker Schedule for the Legal History Workshop at the University of Minnesota for
Fall 2018.  The workshop meets Thursdays, 4:05-6 p.m. in N202 Mondale Hall and is convened by Professor Susanna Blumenthal.  A version with paper abstracts appears after the jump.

September 20

Edward B. Rugemer, Yale University
“The Consolidation of Slave Law in England’s Greater Caribbean: Jamaica and South Carolina from Slave Law and the Politics of Resistance in the Early Atlantic World (forthcoming, Harvard University Press, 2018)

September 27

Simon Stern, University of Toronto
“Homo Legis: The Making of the Reasonable Man”

October 4

Cynthia Nicoletti, University of Virginia
“The Disputed Legality of the Emancipation Proclamation, 1862-1865”

October 11

Elizabeth Kamali, Harvard Law School
“Tales of the Living Dead:  Dealing with Doubt in Medieval English Criminal and Civil Law”

October 18

Martha Jones, Johns Hopkins University
“Roger Brooke Taney: Law, Memory, and the Persistence of the Past”

October 25

Sarah Igo, Vanderbilt University
“Sex, Secrets, and Social Research in the U.S. Age of Privacy,” from The Known Citizen: A History of Privacy in Modern America (Harvard University Press, 2018)

November 1

Andrew Wender Cohen, Syracuse University
“Anthony Comstock’s Gilded Age: Sex, Law, and the End of Reconstruction”

November 15

Dan Edelstein, Stanford University
 “Natural Constitutionalism and American Rights” from On the Spirit of Rights (forthcoming, University of Chicago Press, 2018)

November 29
Colin Dayan, Vanderbilt University
“Guilty Things”

December 4

David Chang, University of Minnesota
“Indigenous Worlds in Life and Death: Colonial Carcerality, Hyper-Policing and Indigenous Geographies of Connection as Seen from Victoria, British Columbia in the 1860”

September 20
Edward B. Rugemer
Associate Professor of History and African American Studies
Yale University
Title: The Consolidation of Slave Law in England’s Greater Caribbean: Jamaica and South
Carolina from Slave Law and the Politics of Resistance in the Early Atlantic World
(forthcoming, Harvard University Press, 2018)

Abstract: During the last two decades of the seventeenth century, the colonial assemblies of
Jamaica and South Carolina did the legislative work of consolidating racial slavery in England’s
Empire. Through the laws of these ambitious colonists, the enslavement of Africans and their
descendants became a form of violent social control, and a novel form of capital investment in
the bodies and progeny of laborers. Enslavement violated basic human dignity and thus the
resistance of Africans became intrinsic to the making of this system of slavery. Drawn from my
forthcoming book with Harvard University Press, Slave Law and the Politics of Resistance in the
Early Atlantic World, which traces this political dynamic over the longue durée, this paper
explores the development of racial slavery in the Greater Caribbean through a historical narrative
that contextualizes Jamaica’s slave codes of 1664, 1684, and 1696, and South Carolina’s slave
codes of 1691 and 1696.

Sept 27
Simon Stern
Associate Professor of Law and English and Co-Director, Centre for Innovation Law & Policy
University of Toronto
Title: Homo Legis: The Making of the Reasonable Man

Abstract: The rise of the “reasonable man” (today, the “reasonable person”) in British and
American law is commonly associated with tort law in particular, but when this new standard
began its career, around the middle third of the nineteenth century, it spread to many different
areas of law—including procedure, criminal law, contracts, and IP. What accounts for the
remarkable proliferation of this standard over various legal domains? I suggest several factors:
(1) its status as a personified standard, vis-à-vis the more abstract standards that we normally
find in the law (e.g., “reasonable doubt,” “proportionality,” “due process,” “clear and convincing
evidence”); (2) its ability, as a personified standard, to benefit from jurors’ (and judges’)
experience working with other textual persons—namely, literary characters; (3) the spread of
rapid and regular law reporting, since the late eighteenth century, which made it plausible for the
trier of fact to impute, to a human agent, the kind of knowledge about current law that the
standard presupposes, in many contexts of its application. The “reasonable man” is a flexible
standard—but so are many of the law’s non-personified standards. To account for its success, we
must look beyond its flexibility to ask what distinguishes it from its alternatives. If we think of
the “reasonable man” as an embodiment of certain legal values (“homo legis”), we may find
some of the answers.

October 4
Cynthia Nicoletti
Professor of Law and Professor of History
University of Virginia
Title: The Disputed Legality of the Emancipation Proclamation, 1862-1865

Abstract: This paper examines contemporary debates over the legality of the Emancipation
Proclamation. The proclamation was particularly vulnerable to legal challenge because it relied
on international law as its source of emancipatory power. The Union treated the Confederacy
both as an illegal conglomerate of treasonous individuals and as a foreign nation, which provided
the Union with the indispensable tools of the law of war. The Supreme Court endorsed the
Confederacy’s dual legal status in the Prize Cases. But the proclamation tested the limits of the
Court’s ruling because it combined domestic and international power rather than maintaining a
strict separation between the two sources of authority. The Emancipation Proclamation garnered
criticism from a surprising range of prominent legal thinkers who otherwise endorsed the use of
international law against the Confederacy. As a result, President Abraham Lincoln successfully
insulated it from litigation through the use of a number of ingenious devices, which deferred the
question of the proclamation’s legality until the conclusion of the war.

October 11
Elizabeth Kamali
Assistant Professor
Harvard Law School
Title: Tales of the Living Dead: Dealing with Doubt in Medieval English Criminal and Civil Law

Abstract: This paper explores the procedural mechanisms used to respond to the problem of doubt in medieval English felony and property cases. To do so, it focuses on an example of extreme doubt, namely, the absence of a corpse when death had been alleged in a legal case. It traces anxiety about proof of death through medieval storytelling, including later adaptations of Seneca’s classical tale of an intemperate judge who refused to reverse a homicide verdict when the purported victim showed up alive, illustrating how proof of death continued to fascinate medieval audiences during the time of transition from trial by ordeal to jury trial and beyond. The paper juxtaposes the stories with a curious writ recorded in the early thirteenth-century Bracton treatise for instances in which a person believed to have been killed shows up alive and well. Finally, the paper turns to evidence from the plea rolls of cases involving doubt in the absence of a corpse. These admittedly few examples of disembodied homicide accusations and all-too-embodied alleged victims of homicide—as well as dubious property-related claims of mort d’ancestor and dower—shed light on the kinds of proof necessary to prove and disprove death in medieval England. The paper emphasizes the common law’s reliance on a combination of formalism and flexibility in resolving the problem of proof in doubtful cases. The paper also considers how legal historians might respond to the uncertainties of our medieval legal sources. In doing so, the paper highlights the interplay between law and literature in medieval England, demonstrating the difficulties involved in separating the legal from the literary, fact from fiction, and the historical from the fantastical.

October 18
Martha Jones
Society of Black Alumni Presidential Professor and Professor of History
Johns Hopkins University
Title: Roger Brooke Taney: Law, Memory, and the Persistence of the Past

Abstract: In the paper I search for Chief Justice Roger Brooke Taney. Even before writing his
history, I must sort through layers of memory, memories that obscure, mask and otherwise
influence our ability to see the past. From his own efforts to shape a “legacy,” to rocky
campaigns to set his likeness in oil on canvas and in bronze, and from the establishment of
shrines, parks, and small town enclaves, Taney has been remembered and remembered again.
For each generation he has been variously a hero, a touchstone, and a cautionary tale. He has
even been a figure subject to late night purges. Still his influence remains present, especially in
courthouses. How, this paper asks, does legal culture make memory? In law we are drawn to
telling the past – from that of doctrine and intellectual production to the practice of law as it has
been lived and of law as everyday life. This is demanded of us, in part, because Anglo American
legal culture has been long preoccupied with the production of the archive – from the collecting
of the court houses’ scraps and shard to the setting and binding of edicts, in grand and long
lasting form. Law has put in place its own archive, from capes and robes to portraits and
courthouses – grand and pretentious. Law – the legal culture of our past self-consciously,
deliberately, and with technologies undergirded and sanctioned by the state – law has built an
archive and memorials to itself with which we are compelled to explain if not reckon with.

October 25
Sarah Igo
Associate Professor of History Associate Professor of Political Science; Associate Professor of
Sociology; Associate Professor of Law; Director, American Studies Program
Vanderbilt University
Title: Sex, Secrets, and Social Research in the U.S. Age of Privacy, from The Known Citizen: A
History of Privacy in Modern America (Harvard University Press, 2018)

Abstract: This chapter from my recently published book, The Known Citizen, examines the
ways that the constitutionalizing of (marital, heterosexual) privacy in 1965’s Griswold v.
Connecticut did—and did not—structure Americans’ understandings of and expectations of
privacy in the years that followed. It tracks shifting sensibilities about confidentiality and
consent in the 1960s and 1970s through the case of Laud Humphreys, a sociologist who
conducted a path-breaking ethnographic study of gay male sex in public restrooms. Humphreys
was initially applauded for the boldness of his research. Soon enough, however, he would be
roundly condemned for invading the private lives of his unwitting subjects. The reaction to
Humphreys’ Tearoom Trade reveals fresh skepticism about the “right to know” in an era of
unprecedented federal funding and prestige for social science. It also highlights newfound
concerns by the later sixties about the shrinking space for unmonitored action in the modern
U.S.—even for behavior that offended dominant norms, was legally punishable, and officially

November 1
Andrew Wender Cohen
Dr. Walter Montgomery and Marion Gruber Professor of History
The Maxwell School of Citizenship and Public Affairs, Syracuse University
Title: Anthony Comstock’s Gilded Age: Sex, Law, and the End of Reconstruction

Abstract: My paper seeks document the sexual experimentation of the Reconstruction period
and then connect the repression of that behavior to the broader clampdown on interracial
democracy and labor militancy so commonly associated with the Gilded Age. It shows how
ordinary post-Civil War-era Americans—not merely celebrities like Victoria Woodhull and
Henry Ward Beecher—participated in extra-marital relationships, homosexuality, bohemianism,
contraception, abortion, salacious theater, pornography, and cross-dressing. Yet reaction to this
liberalism contributed to the electoral rejection of Reconstruction. As the G.O.P. increasingly
distanced itself from interracial democracy and economic utopianism, it simultaneously turned
moralistic on matters of intimacy, seeking the certainty of patriarchy, embodied by censor
Anthony Comstock.

Arguing that Americans endured a moral panic and new sexual repression during the late
Reconstruction Era, this paper makes three points. First, between 1864 and 1876, a series of sex
scandals—some familiar, some forgotten— challenged prior norms of heterosexual marital
fidelity. Second, the “sexualization” of politics, often noted by Southern historians, was a
national phenomenon. Reactions to revelations of alleged sexual immorality in New York and
Washington, D.C. fed the political conservatism of the mid-1870s. Tarred by allegations of
licentiousness, Republicans shed their radicalism on a range of issues, dropping their
commitment to interracial democracy. And third, this climate led governments to intensify legal
enforcement of sexual norms, creating a state that repressed not just obscenity, abortion, and
contraception, but also adultery, fornication, cross-dressing, and homosexual relationships.

November 15
Dan Edelstein
Chair, Division of Literatures, Cultures, and Languages and William H. Bonsall Professor of
Stanford University
Title: “Natural Constitutionalism and American Rights” from On the Spirit of Rights
(forthcoming, University of Chicago Press, 2018)

Abstract: Rather than asking when human rights were “invented,” in this book I examine when
it became the norm to think about human rights as entitlements that we preserve in political
society (what I call the “preservation regime of rights”). Most theorists in the 17th and early 18th
centuries widely acknowledged the existence of natural rights, but argued that they had to be
abridged or transferred to government, as a condition of political society. When eighteenth-century theorists revived the preservation regime (which Huguenot revolutionaries and English
Puritans had already championed), it took very different forms on either side of the Atlantic. In
this chapter, I analyze how American rights talk blended English constitutionalism with natural
law theory, to produce a discourse of “natural constitutionalism.” I distinguish this discourse
from the more common continental theory of “social naturalism,” in which it is assumed that
there exists a natural order of society to be discovered and implemented. In this perspective, the
revolutionary declarations of rights in the American colonies and in France end up looking like
faux amis.

November 29
Colin Dayan
Robert Penn Warren Professor in the Humanities and Professor of Law
Vanderbilt University
Title: Guilty Things

Abstract: What kind of legal history might account for the unique and continued practice of
forfeiture in the United States? Law enforcement, as many recent writers have argued, has grown
increasingly dependent on this failsafe way to gain revenue, since civil asset forfeiture has few
procedural safeguards. Unlike criminal forfeiture (in personam), civil forfeiture generally
proceeds against the offending property (in rem), not against the person. A piece of property
does not have the rights of a person; so, instead of proving crime beyond “a reasonable doubt,”
suspicion equal to “probable cause” is enough. Your property is guilty until you prove it
innocent. With civil forfeiture, owners do not have to be charged with a crime, let alone be
convicted, to lose homes, cars, cash—or dogs.

This effort to sharpen our understanding of dispossession is pre-eminently a legal project. It
takes its meaning and garners its effects from the division between value and disregard, things
and persons, human and non-human. In analyzing how legal reasoning has historically
contributed to literal expropriation I examine the generally invisible nexus of animality, human
marginalization, and juridical authority.

December 4
David Chang
Distinguished McKnight University Professor; Chair, American Indian Studies Department; and
Professor, Department of History and Department of American Indian Studies
University of Minnesota
Title: Indigenous Worlds in Life and Death: Colonial Carcerality, Hyper-Policing and
Indigenous Geographies of Connection as Seen from Victoria, British Columbia in the 1860

Abstract: This paper explores how two different ways of studying the past (standard social
history and interdisciplinary indigenous study) lead to different understandings of past worlds. It
proceeds from the story of the death of Mary Opio, a fifteen-year-old Native Hawaiian girl, and
her stepmother, Mary Kaaiopiopio, both of whom lived and died in a mostly Indigenous mixed race slum in Victoria, British Columbia in the 1860s. The standard tools of social history shed
useful light on the early roots of colonial processes of hyper-policing and mass incarceration of
indigenous people. They rightly suggest the tight boundaries colonial states placed on their lives.
Yet a study that proceeds from indigenous language sources and indigenous ideas of kinship can
reveal indigenous lives that transcend the boundaries that colonial powers and archives impose
upon them, in the past and also in the present. Ironically, thinking about mourning brings the
expansive possibilities of indigenous lives into focus.