Saturday, June 29, 2019

Weekend Roundup

  • OUP and CUP would like to know what scholarly monographs mean to academic researchers, readers and authors.
  • The Department of American Indian Studies, College of Liberal Arts, University of Minnesota invites applications for a full-time faculty position (open rank, tenured or tenure-track) beginning fall semester 2020.  The announcement is here.
  • “Luisa M. Kaye, daughter of Judith S. Kaye, former Chief Judge of the New York Court of Appeals, discusses the autobiography she co-edited about her mother's life and career and reveals the personal moments that shaped her judicial philosophy.”  NYSBA.
  • New From Edward Elgar: Authoritarian Constitutionalism: Comparative Analysis and Critique, ed. Helena Alviar García, Universidad de Los Andes, Colombia, and Günter Frankenberg, Goethe University in Frankfurt/Main, Germany.  “The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism.”
  • ICYMI: Princeton announces that Dirk Hartog has gone emeritus; HLS announces that Laura Weinrib is joining its faculty.   Four women, four lawyers: How a Fond du Lac family made law history before they could vote (Fond du Lac Reporter). More on legal historians as First Gentlemen (or whatever), here and here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 28, 2019

Greene and Witt to Lead ICH Seminar: Deadline 6/30!

[We're moving this up, because the deadline is Sunday, June 30.]

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, "Rethinking the Twentieth-Century Constitution."  It will be led by Jamal Greene, the Dwight Professor of Law at Columbia Law School, and John Fabian Witt, the Allen H. Duffy Class of 1960 Professor of Law, Professor of History, and Head of Davenport College at Yale University.
Much of our constitutional law today arises not out of the Founding and not out of the Reconstruction Amendments, but out of the great controversies and social mobilizations of the twentieth century. On four Fridays this fall Jamal Greene and John Fabian Witt will lead seminar participants on a guided tour through new literature on the history of the twentieth-century constitution. Topics include the invention of free speech, the making of the modern administrative state, the rise and fall of labor’s constitution, transformations in rights talk, and the significance of constitutional methods such as “originalism.” We will close with a consideration of the constitution’s future prospects.
Friday afternoons, 2:00-5:00 P.M. September 20, October 4 and 18, and November 1. The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at until June 30, 2019. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

--Dan Ernst

Remembering Charles Reich (1928-2019)

I was sad to learn of the recent death of Charles Reich, an important figure in U.S. legal and political history. The headlines marking his passing tie him to the "counterculture," because of his influential book The Greening of America (1970) (excerpted famously in the New Yorkerhere). The Washington Post's obituary also highlights his teaching career at Yale Law School, where his students "included both Bill and Hillary Clinton."

But Reich's influence was much broader and deeper, and I want people to remember it--thus this post.

Charles Reich (Credit: John Q. Barrett)
I should start by saying that I never knew Charles Reich personally (apart from a nice email exchange in 2006, about an article I'll mention below). For a reflection from someone who did, read John Q. Barrett's lovely tribute, here. He describes Reich as "a dear friend and hero to many"--someone renowned for his "brilliant mind" and who was also "a beautiful writer, a wise teacher, a sharp lawyer, a kind soul."

I first learned of Reich in graduate school, when I began studying the history of welfare rights. Martha Davis's excellent Brutal Need (1993) discusses him in some depth in a chapter on the road to Goldberg v. Kelly (1970). Now only a footnote in many Constitutional Law courses, Goldberg v. Kelly was, at the time, a big deal. Gone was the assumption that public welfare payments were a mere gratuity, to be given or taken away at some bureaucrat's whim. Instead, the Supreme Court appeared to elevate public welfare to the same status as real property for the purpose of applying the Constitution's Due Process clause. Public welfare departments everywhere took note, as did a burgeoning welfare rights movement.

But even more important than the holding, to many welfare rights advocates, was the majority's sympathetic posture. Much to advocates' delight, Justice Brennan's opinion cited two of Reich's articles--"The New Property" (1964) and "Individual Rights and Social Welfare: The Emerging Legal Issues" (1965)--for observations about the life-or-death importance of welfare benefits to the individual recipient and the governmental interest in "foster[ing] the dignity and wellbeing of all persons within its borders." The most optimistic welfare rights theorists, such as Ed Sparer, saw in this decision a path from process to substance--from a constitutional right to fair treatment to a constitutional right to a minimum basic income. (This was not to be.)

But if Sparer was "a welfare law guru," to use Martha Davis's descriptor, Reich was something different. Indeed, Davis introduces him as "a New York intellectual who never practiced poverty law" and "was an unlikely source of insights about welfare." She then explains why he was, in fact, well-suited and well-positioned to lay the "scholarly groundwork" for this important step in the court-focused part of the welfare rights campaign. It's a fascinating story, that I think offers a better picture than the mainstream obituaries of who Reich was and why his life merits remembrance.

One important background factor, was Reich's long friendship with the famous New York family court judge and child welfare activist Justine Wise Polier (the mother of one of his boyhood friends). Through Polier, Reich met Elizabeth Wickenden, a prominent figure in Washington policy-making circles during the New Deal and after and a determined proponent of a more humane social welfare system. As Davis notes, and as I flesh out in States of Dependency, Wickenden sought Reich's counsel in the early 1960s, as she pondered how the Constitution might be used to stem an emerging tide of abusive and regressive welfare laws and policies. Wickenden also helped encourage Reich to develop and publish his own views on this question. For example, when (at Polier's urging) he turned his attention to one particularly offensive welfare administration practice--that of subjecting recipients to "midnight raids" of their homes--Wickenden ensured that his article received wide national distribution and was reprinted in the Congressional Record.

In explaining why Reich was drawn to such issues, Davis also notes Reich's time as a Supreme Court clerk for Justice Hugo Black and how that experience reinforced what he had already started to notice, in law school and earlier, about the vulnerability of people who relied on the government for their livelihoods. As Reich highlighted in 1990, in an article reflecting on "The New Property," one of the student notes that he helped conceptualize and publish as editor-in-chief of the Yale Law Journal was about "passport refusals for political reasons"; Reich was also aware of the legal work that his mentor Tom ("Tommie the Commie") Emerson had done for accused Communists and of the shadow this cast on all Emerson's associates. Reich's clerkship with Justice Black offered him additional examples. Among the cases he worked on in the 1953 term was Barsky v. Board of Regents (1954), in which a state revoked a doctor's license after he failed to respond to a subpoena from the now infamous House Un-American Activities Committee. The case reminded Reich, again, of the importance of government-issued benefits and how vulnerable such benefits made their holders to political pressures.

So compelling did Reich find these Cold War anticommunist persecutions, I argued (in my very first publication!), that he made one of them the centerpiece of "The New Property": Flemming v. Nestor (1960), in which the Supreme Court found that the deported immigrant Fedya Nestor had no property right in his accrued Social Security benefits (and therefore no valid constitutional argument about the way in which the state took those benefits away). A decision that attracted little attention at the time was, for Reich, “the most important of all judicial decisions concerning government largess”:
No form of government largess is more personal or individual than an old age pension. No form is more clearly earned by the recipient, who, together with his employer, contributes to the Social Security fund during the years of his employment. No form is more obviously a compulsory substitute for private property; the tax on wage earner and employer might readily have gone to higher pay and higher private savings instead. No form is more relied on, and more often thought of as property. No form is more vital to the independence and dignity of the individual. Yet under the philosophy of Congress and the Court, a man or woman, after a lifetime of work, has no rights which may not be taken away to serve some public policy.
Reich went on to describe this philosophy as a "feudal" one, characteristic of "collective societies" (Nazi Germany, Soviet Russia). Is this, he asked, what Americans should aspire to? With this clever maneuver, Reich put anticommunist sentiments to work for his own end--the end of giving individuals greater power vis-a-vis those who might abuse their dependency on the state.

One could write entire articles about the importance of "The New Property"--to constitutional law, administrative law, social welfare law, and legal theory. Indeed, many scholars have already done so. "The New Property" also generated important insights for other fields, such as family law and privacy law. It is no surprise that, according to Fred R. Shapiro, it is among the top ten "most cited law review articles of all time." And for me, "The New Property" will always have special meaning: the footnotes put me onto the research path that would lead to my dissertation and, many years later, my book. From Charles Reich's research and his life, I came to appreciate the powerful connections between the welfare rights advocates of the 1960s and 1970s and the New Deal liberals who crafted the social welfare apparatus they besieged.

And, of course, "The New Property" is only one of Reich's many contributions. Thankfully, there is a growing body of work on Reich and his legacy. For a sense of the circles in which Reich traveled, I recommend Laura Kalman's work on Yale Law School in the 1960s, as well as her book on Abe Fortas (whom Reich knew well). There is also a lovely piece by Rodger Citron on "the personal history of The Greening of America." And see the work of recent guest blogger Sarah Seo. She has written about Reich's encounters with the police, which often took place while he was driving, and the light they shed on the "regulatory history of criminal procedure." Even more recently, another former guest blogger, Reuel Schiller, has noted Reich's importance for recovering left-wing strands of anti-bureaucratic thought in the 1970s and early 1980s--strands that help explain the burst of deregulatory activity in the closing decades of the twentieth century. (I'm sure I am missing others; please let me know and I will add them.)

Perhaps, though, Reich should have the last word. Some of his thoughts about his life are memorialized in The Sorceror of Bolinas Reef (1976), an eccentric memoir written in the wake of his Greening of America fame. More recently, as his friend John Q. Barrett notes, Reich had taken to blogging and posting old photos.

The theme of his posts seems to be nostalgia for a simpler past and concern for a troubling present. For example, on December 9, 2018, as newspapers ran headlines about the Trump-Russia investigation, the last words of Jamal Khashoggi, and a devastating California wildfire, he wrote a post recalling what it felt like to listen to FDR's fireside chats. "We felt that the country was in good hands and on the right track. Few people feel that way today." Another post, titled "My Adirondack Photos," includes only two sentences: "When I was a teenager, I took these pictures. The view from Mt Kempshall can no longer be seen because the fire tower is gone."

Charles Reich is gone now, but, thankfully, he has left with us his unique perspective on the landscape surrounding him. That perspective mattered in 1965, as welfare rights cases were making their way to the Supreme Court, and it matters now, as we continue to puzzle over the questions that animated so much of his work: How do we vindicate liberty in an age when other cherished values seem to demand an ever greater state presence in our lives? If we invite the state to provide a humane, secure existence for its subjects, what is the price to individual freedom? And what kind of people will tend to pay it?        

-- Karen Tani

Tang on early modern European literature and international law

Chenxi Tang, University of California at Berkeley, published Imagining World Order: Literature and International Law in Early Modern Europe, 1500-1800 in 2018 with Cornell University Press. From the publisher; 
Imagining World Order: Literature and International Law in Early Modern Europe, 1500–1800
In early modern Europe, international law emerged as a means of governing relations between rapidly consolidating sovereign states, purporting to establish a normative order for the perilous international world. However, it was intrinsically fragile and uncertain, for sovereign states had no acknowledged common authority that would create, change, apply, and enforce legal norms. In Imagining World Order, Chenxi Tang shows that international world order was as much a literary as a legal matter. To begin with, the poetic imagination contributed to the making of international law. As the discourse of international law coalesced, literary works from romances and tragedies to novels responded to its unfulfilled ambitions and inexorable failures, occasionally affirming it, often contesting it, always uncovering its problems and rehearsing imaginary solutions.
Tang highlights the various modes in which literary texts—some highly canonical (Camões, Shakespeare, Corneille, Lohenstein, and Defoe, among many others), some largely forgotten yet worth rediscovering—engaged with legal thinking in the period from the sixteenth to the eighteenth century. In tracing such engagements, he offers a dual history of international law and European literature. As legal history, the book approaches the development of international law in this period—its so-called classical age—in terms of literary imagination. As literary history, Tang recounts how literature confronted the question of international world order and how, in the process, a set of literary forms common to major European languages (epic, tragedy, romance, novel) evolved.
Praise for the book: 
 "Imagining World Order is one of the most engaging books to appear in the field of early modern comparative literature. Tang’s analysis of the histories of early modern literary genre and the emergent discourse of international law is ambitious, significant and could not be more convincing."
- John Watkins

"Chenxi Tang’s work is remarkable, as is the scope of the study: spanning texts of the sixteenth, seventeenth, and eighteenth centuries while situating its discussion in relevant classical and medieval antecedents. This book will make a welcome contribution to scholarship on the history of law and New Diplomatic History."
- Mark Netzloff

Further information is available here.

--Mitra Sharafi

Thursday, June 27, 2019

Wells on Berle on the Corporate Bar

Harwell Wells, Temple University James E. Beasley School of Law, has posted a very interesting contribution on the American legal profession to that annual symposium on Berle and Means’s Modern Corporation and Private Power.  It’s “All Lawyers are Somewhat Suspect”: Adolf A. Berle and the Modern Legal Profession, Seattle University Law Review 42 (2019):
Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would be determined by that of the modern corporation.
--Dan Ernst

CFP: Australian & New Zealand Law & History Society

[We have the following call for papers for the annual conference of the Australian and New Zealand Law and History Society.  DRE]

 This year’s conference will be held in Melbourne, Australia, 11-14 December 2019. The theme is "Does Law’s History Matter? The Politics of our Disciplinary Practices."  Deadline for abstracts (individual or panel) and on the conference theme or any other topic is 21 July 2019. More information on the theme and submission of abstracts can be found on the conference website.
The keynote speakers are Professor Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History, Department of History, Johns Hopkins University;    Professor John Hudson, Professor of History, School of History, St Andrews University: Professor John Maynard, Indigenous Education and Research, University of Newcastle: and  Professor Shaunnagh Dorsett, Faculty of Law, University of Technology Sydney.

Barbas To Head Baldy Center

The Baldy Center for Law & Social Policy at the State University of New York, Buffalo has announced a new director: Professor Samantha Barbas (recently a guest blogger here at LHB). Here's an excerpt from the announcement:
We are pleased to announce that Samantha Barbas, Professor of Law at the UB School of Law, has been named director of the Baldy Center. Professor Barbas will be bringing to the Baldy Center her expertise in legal history and mass communications law. Barbas earned a Ph.D. in American History from the University of California, Berkeley, as well as a J.D. from Stanford Law School. She joined the UB Law Faculty in 2011, where her research acumen has been recognized, including a University at Buffalo Exceptional Scholar award in 2016. Barbas is the author of five books on American history topics, including three interdisciplinary works of legal history: Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015); Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (Stanford University Press, 2017); and most recently, Confidential Confidential: The Inside Story of Hollywood’s Notorious Scandal Magazine (Chicago Review Press, 2018). Her current research project is a biography of civil liberties lawyer Morris Ernst (University of Chicago Press, forthcoming).
Congratulations to Professor Barbas and to the Baldy Center!

-- Karen Tani

Wednesday, June 26, 2019

UC Berkeley Seeks New Director for Center for the Study of Law & Society

The Center for the Study of Law and Society (CSLS) at the University of California, Berkeley School of Law has issued a call for applications for a new full-time Executive Director.

CSLS "supports theoretically-based, empirical research on new developments at the interplay of law and society in contemporary and historical contexts." Technically part of the law school, it also "fosters a multi-disciplinary context in which UC Berkeley faculty and graduate students from many departments interact and engage with visiting socio-legal scholars from universities in the United States and abroad."

More information about the position is available here.

Zietlow on Slavery, Liberty and the Right to Contract

Rebecca E. Zietlow, University of Toledo College of Law, has posted Slavery, Liberty and the Right to Contract, which is forthcoming in the Nevada Law Journal 19 (2019): 447-478:
This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract.

Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract,
---Dan Ernst

Smiley on the Ottoman Empire, Russia, and International Law

Will Smiley, Reed College published From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law with Oxford University Press in 2018. From the publisher: 
From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law (The History and Theory of International Law)The Ottoman-Russian wars of the eighteenth century reshaped the map of Eurasia and the Middle East, but they also birthed a novel concept--the prisoner of war. For centuries, hundreds of thousands of captives, civilians and soldiers alike, crossed the legal and social boundaries of these empires, destined for either ransom or enslavement. But in the eighteenth century, the Ottoman state and its Russian rival, through conflict and diplomacy, worked out a new system of regional international law. Ransom was abolished; soldiers became prisoners of war; and some slaves gained new paths to release, while others were left entirely unprotected. These rules delineated sovereignty, redefined individuals' relationships to states, and prioritized political identity over economic value. In the process, the Ottomans marked out a parallel, non-Western path toward elements of modern international law. Yet this was not a story of European imposition or imitation-the Ottomans acted for their own reasons, maintaining their commitment to Islamic law. For a time even European empires played by these rules, until they were subsumed into the codified global law of war in the late nineteenth century. This story offers new perspectives on the histories of the Ottoman and Russian Empires, of slavery, and of international law.
 Praise for the book: 

"This is an extensively detailed history of Ottoman Turkish relations primarily but not entirely with...the Russian Empire, the Hapsburgs, and the West, dealing with the numerous wars in which it was involved between 1700 and 1876...Recommended" -- CHOICE

Further information is available here.

--Mitra Sharafi

Tuesday, June 25, 2019

The Art of Being Duped

Tomorrow at 11, Edward Balleisen, Duke University, the author of Fraud: An American History from Barnum to Madoff, will be on Big Little Lies: The Art Of Being Duped, a segment of the nationally syndicated public radio show 1A.

---Dan Ernst

Gouzoules on the Right(s) to Bear Arms

Alexander Gouzoules, a 2014 graduate of the Harvard Law School, has posted The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context, forthcoming in the University of Alabama Civil Rights and Civil Liberties Law Review 10 (2019): 159-199:
This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society.

This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed.
--Dan Ernst.  H/t: Legal Theory Blog

Mortenson on Executive Power

Julian Davis Mortenson, University of Michigan Law School, has posted The Executive Power Clause, which is forthcoming in the University of Pennsylvania Law Review 119 (2019):
Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security.

This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives — including not just records of drafting, legislative, and ratification debates, but also committee files, private and official correspondence, diaries, newspapers, pamphlets, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent.

The Founding generation understood “executive power” to mean something both simple and specific: the power to execute law. This authority was constitutionally crucial, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some other authority. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.
--Dan Ernst.  H/t: Legal Theory Blog

Valeria on "The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony"

Earlier this year, the Yale Law Journal published a student note that may be of interest: Valeria M. Pelet de Toro, "Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony." Here's the abstract:
Long skeptical of the ability of rights to advance oppressed groups’ political goals, Critical Legal Studies (CLS) scholars might consider a U.S. territory like Puerto Rico and ask, “What good are rights when you live in a colony?” In this Note, I will argue that CLS’s critique of rights, though compelling in the abstract, falters in the political and historical context of Puerto Rico. Although it may appear that rights have failed Puerto Ricans, rights talk has historically provided a framework for effective organizing and community action. Building on the work of Critical Race Theory and LatCrit scholars, this Note counters the CLS intuition that rights talk lacks value by focusing on the origins and development of the Puerto Rico Legal Project, an understudied but critical force for community development and legal advocacy on the island that was founded in response to severe political repression during the late 1970s and early 1980s. This Note draws on original interviews with Puerto Rican and U.S. lawyers and community activists to reveal fissures in the critique of rights and to propose certain revisions to the theory. By concentrating on the entitlements that rights are thought to provide, CLS’s critique of rights ignores the power of rights discourse to organize marginalized communities. The critique of rights also overlooks the value of the collective efforts that go into articulating a particular community’s aspirations through rights talk, efforts which can be empowering and help spur further political action. By analyzing twentieth-century Puerto Rican legal and political history and the Puerto Rico Legal Project, I demonstrate the value (and limits) of rights in a colonized nation.
Read on here.

-- Karen Tani

Monday, June 24, 2019

Towards New Histories of Imprisonment in England

We’ve recently learned that the conference Towards New Histories of Imprisonment in England, 1500-1850, will be held July 15-16 at Keble College, University of Oxford.  It is free, although the conference organizers ask attendees to register here.  The program is here; here’s the organizers' description:
The conference brings together historians, criminologists and literary scholars to explore ongoing research into English imprisonment, discuss recent developments in the field, and set out new agendas for the history of prisons and imprisonment. The conference takes an inclusive view of imprisonment, including not only criminal custody and incarceration, but also the imprisonment of debtors, political prisoners and prisoners of war. The papers further encompass the complete range of penal institutions that existed across the sixteenth to nineteenth centuries, beyond the penitentiary, such as lock-ups, roundhouses, compters or counters, gaols, houses of correction or bridewells, prisoner of war camps and prison hulks. Broadly, our speakers seek to explore the role that imprisonment and prisoners played in English social, economic, religious political and legal life.
--Dan Ernst

Sethi on censorship in India

Devika Sethi, Indian Institute of Technology, Mandi has published War over Words: Censorship in India, 1930-1960 with Cambridge University Press. From the publisher: 
War over WordsCensorship has been a universal phenomenon through history. However, its rationale and implementation has varied, and public reaction to it has differed across societies and times. This book recovers, narrates, and interrogates the history of censorship of publications in India over three crucial decades - encompassing the Gandhian anti-colonial movement, the Second World War, Partition, and the early years of Independent India. In doing so, it examines state policy and practice, and also its subversion, in a tumultuous period of transition from colonial to self-rule in India. Populated with an array of powerful and powerless individuals, the story of Indians grappling with free speech and (in)tolerance is a fascinating one, and deserves to be widely known. It will help readers make sense of global present-day debates over free speech and hate speech, illustrate historical trends that change - and those that don't - and help them appreciate how the past inevitably informs the present.
 Table of Contents after the jump:

Saturday, June 22, 2019

Weekend Roundup

C.J. Warren Burger (LC)
  • “The ‘Shaping Justice: A Century of Great Crimes in Merced County’ exhibit, opening at the Courthouse Museum on June 27 at 5 p.m., will chronicle the development of Merced County’s legal system in its first 100 years by examining 30 crimes/cases from the Snelling Wild West shootout in 1857 to finally putting the elusive ‘vice king’ Rusty Doan behind bars in 1952.”  More, from the Merced Sun-Star.
  • Congress held a hearing this week on reparations. The Chronicle of Education noted the absence of historians from those invited to testify. In the media, however, they've spoken up. Andrew Kahrl (University of Virginia) weighs in here, at the New York Times. 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 21, 2019

Postema on the British Tradition of Legal Positivism

Gerald J. Postema, University of North Carolina, has posted The British Tradition of Legal Positivism, which is forthcoming in A Companion to Legal Positivism, ed. Torben Spaak and Patricia Mindus (Cambridge University Press):
This essay traces a thematic thread through broadly Anglophone legal philosophy since the seventeenth century. Ownership of the title “positivism” is contested in contemporary Anglophone jurisprudence. If we to take the core theses embraced by contemporary legal positivists to identify the key figures in their tradition the story would be very brief, starting, perhaps, with Hart. Hence, rather than tracing a line of development of a coherent jurisprudential tradition, this essay sketches in broad outlines the transformation of Anglophone legal philosophy since Hobbes. However, it begins with a brief discussion of the headwaters of Anglophone positivist tradition in the “thetic” tradition of legal theory in late medieval jurisprudence and in the practice and theory of English common law and ends with a discussion of Salmond and other twentieth-century jurists who paved the way for Hart’s contemporary version of legal positivism.
--Dan Ernst.  H/t: Legal Theory Blog

Craig on English Administrative Law History

Paul P. Craig, University of Oxford Faculty of Law, has posted English Administrative Law History: Perception and Reality, which is forthcoming in Judicial Review in the Common Law World: Origins and Adaptations, ed. S. Jhaveri and M. Ramsden:
The history of English administrative law remains to be written. It is a task of considerable magnitude, given that it requires understanding of case law, regulatory legislation, government and politics spanning a period of circa 450 years. The task is more especially daunting given the range of different areas that were subject to governmental regulation broadly construed. It is, therefore, unsurprising that the intellectual task has not been fulfilled. This has not, however, translated into a dearth of opinion as to English administrative law history. To the contrary, as will be seen below, there are views in this regard, and some are strongly held. There is, as in any intellectual endeavour, the danger of an inverse relationship between the strength of a person’s conviction and the depth of their knowledge.

This chapter is not a history of English administrative law, since that would, as noted, require a book in itself. It does, however, offer a lens through which to view two different conceptions of that history, which are termed perception and reality. These terms are admittedly tendentious, in the sense that they convey, by their very semantic meaning, my view as to the more accurate picture of administrative law as it developed over time. There is, however, nothing special in the use of language in this regard, since those who adhere to the opposite position deploy language that is equally tendentious.

The discussion in this chapter is part of the larger study concerning the export and reception of administrative law in other common law jurisdictions. The effect of the disjunction between perception and reality on such export is interesting. The causation is contestable, and does not necessarily always pull in the same direction. Thus, perception of administrative law as being relatively modern may have hampered its development elsewhere, and at the same time encouraged other jurisdictions to feel freer in adapting its precepts to local circumstance.

The essence of the argument presented over the following pages is as follows. The commonly held view about English administrative law is that it is of recent origin, some dating it from the mid-twentieth century, some venturing back to the late nineteenth century. This view, when unpacked, is premised on assumptions concerning doctrinal case law and regulation. There is an empirical and a normative foundation underlying both assumptions. This ‘intellectual package’ constitutes the commonly accepted picture of administrative law as it unfolded in England. This, then, is the perception, grounded in four central constructs concerning case law and regulation, viewed from an empirical and normative perspective. It is set out in the first part of the chapter.

The discussion thereafter is concerned with what I term the reality. It mirrors the discourse concerning perception, insofar as it considers case law and regulation from both an empirical and normative perspective. It will be argued that the commonly held view does not cohere empirically with reality concerning case law or regulation, and that the normative assumptions underlying the perceived view do not square with the general approach of the legislature or the courts during the foundational period of administrative law, which runs from the mid-sixteenth century onwards, with earlier origins. This disjunction between perception and reality could have had an impact on the ultimate exportability of English administrative law. The chapter concludes with a sketch of the implications for comparative study of other jurisdictions. These implications are the subject of discussion in the remaining chapters of the volume.
--Dan Ernst

Yahaya on interracial relationships in the British Empire

Nurfadzilah Yahaya, National University of Singapore, has published "Class, White Women, and Elite Asian Men in British Courts during the late nineteenth century" in the Journal of Women's History 31:2 (2019), 101-123. Here's the abstract: 
British imperial politics was profoundly affected by class alongside gender and race. This article probes how legal courts situated white women who were involved in interracial relationships with powerful Asian men from the perspective of law and press reports of two cases during the period of high empire in the late nineteenth century. These cases occurred in the metropolitan imperial cities of London and Singapore that highly valued merchants’ and foreign rulers’ contributions to imperial coffers. Class ultimately played a huge factor in the outcome of both cases, which involved two prominent men whose wealth, fame, and high status made their subordinate status within the British Empire ambiguous. Reports of trial proceedings demonstrate that class tended to unsettle notions of “whiteness,” “subjecthood,” and “jurisdiction.” This meant that the colonial elite formed an unstable category that was highly complex, flexible, and, as a result, potentially fragile.
The piece is part of a special issue, "Colonial Intimacies and Gendered Violence." Further information is available here

Thursday, June 20, 2019

Nedzel on the Rule of Law in the United States

Nadia E. Nedzel, Southern University Law Center, has posted The United States, Checks and Balances, and a Commercial Republic: An Experiment:
This chapter explains how the concept of the rule of law grew and changed in the founding of the United States. The United States was founded by people who thought they were adopting their common law heritage. United by a hustling spirit and a deep distrust of big government (especially England’s), the Founders were deeply influenced by the Scottish Enlightenment and its focus on individual liberty (as can be seen in Madison’s Federalist Papers), and they were determined to create a commercial republic (Hamilton). With the passage of the Constitution, they were fascinated by the French Revolution, and some (Jefferson) felt a strong accord with its theoretical concepts. Others (Adams) believed that the Philosophes were unrealistic, far too involved in theory, and had not seen the down-side of legislation-centered democracy.

While originally English in the focus on limited government and individual liberty, the American conception of the rule of law first became more self-conscious, more self-critical, and next developed a deeper (or at least more self-conscious) set of checks and balances than its parent country. That concept – the American understanding of the relationship between man and government – has gradually become more conflicted and intertwined with Rechtsstaat during and after the Great Depression and the creation of a national income tax, social security, and other ‘safety-net’ governmental programs to help those in need, as will be discussed in Chapter 5.
--Dan Ernst.  H/t: Legal Theory Blog

Stevens on the First "Four Strikes" (as it were) Law

Nomos and Nullification: A Coverian View of New York's Habitual Offender Law, 1926 to 1936, by Caleb J. Stevens, was recently published in the American Criminal Law Review 56 (2019): 427-463.  I believe Mr. Stevens wrote the article while a law student at the University of Illinois.  He thanks two legal historians on that law faculty, Bruce Smith and Richard Ross.  Here’s the abstract:
In 1926, New York passed a habitual offender law that mandated life sentences for a fourth felony conviction, regardless of severity. Called the Baumes Law, after its principal author and advocate New York Senator Caleb Baumes, the law remains one of the harshest habitual offender laws ever passed in the United States. Until its amendment in 1936, the law launched an intense policy debate that in many ways reflects the contemporary debate over Three Strikes legislation and high U.S. incarceration rates.

In 1994, California enacted a habitual offender law, popularly referred to as the “Three Strikes and You’re Out” Law, which dovetailed with a period of emphasis on the incapacitation of habitual offenders. Several states passed similar laws that punish recidivists with longer prison terms. In Washington, a third conviction for the “most serious offenses” listed in the law requires a life sentence without the possibility of parole. Until its revision in 2012, the California Three Strikes Law was one of the most severe, imposing an indeterminate sentence of twenty-five years to life for defendants previously convicted of two or more felonies. Even with the Supreme Court decision in Ewing v. California upholding the California Three Strikes Law against an Eighth Amendment challenge, the policy debate continues around current habitual offender laws and high incarceration rates. During the Progressive Era, a similar debate raged in New York and across the U.S. over how to address the ‘habitual criminal problem.’ New York answered with passage of the Baumes Law – one of the harshest habitual offender statutes in U.S. history.

This article discusses, through the lens of Robert Cover’s concept of nomos, the nullification of the Baumes Law by juries, judges, and prosecutors in order to mitigate its harshest application. Many of these criminal justice actors repeatedly exhibited concern about imposing life sentences for four felony convictions, especially for non-violent felonies such as minor property crimes. Section I summarizes Robert Cover’s concept of nomos, discussing its relevance to the rise and fall of the Baumes Law. Section II then provides a brief historical backdrop to passage of the Baumes Law, highlighting the role of a widely perceived crime wave, and the pseudo-scientific rationales for incapacitation and removal of certain persons from society. Section III discusses the competing normative universes that characterized the fairly turbulent, brief history of the Baumes Law.
–Dan Ernst

Wednesday, June 19, 2019

Matzko's "Best Men of the Bar" (and Introduction by Funk)

Well, this is unexpected.  Historians interested in the American bar at the turn of the twentieth century have long known of John Austin Matzko’s work on the American Bar Association–if not his dissertation, than his chapter in The New High Priests, a collection of essays edited by Gerard W.  Gawalt.  In July, the dissertation is to be published by Talbot Publishing (an imprint of Lawbook Exchange) as Best Men of the Bar: The Early Years of the American Bar Association, 1878-1928:
Matzko illustrates how the early American Bar Association endeavored to create a traditional professional gatekeeping organization by gaining control of legal education, entrance examinations, and ethical codes. The early ABA supported reformist values of political and social change if such change could be overseen by courts. It was not until the second decade of the twentieth century that it began its transformation into a more conservative group.
 Here is an endorsement:
"In this penetrating and gracefully-written account of the formative first-half century of the American Bar Association, Matzko actually makes institutional history absorbing - an excellent account of the personalities and ideas that formed the legal profession on a national level, the transition from a "Gentleman's Club" to a professional association and, in due course, an entity which established widely-shared minimum standards for the quality of legal education and admission to the State bars. Likely to be the definitive account for some time to come. William E. Butler, Dickinson Law, Pennsylvania State University.
The book includes an introduction by Kellen Funk, Columbia Law School, who was one of Professor Matzko’s students at Bob Jones University, where Professor Matzko taught for over forty years.  Professor Funk's introduction, now posted on SSRN, is a valuable review essay on the history of the legal profession during Professor Matzko’s period.  Here is its abstract:
John A. Matzko's The Best Men of the Bar began as a dissertation defended in 1984. Despite the central importance of the ABA to the turn-of-the-century class stratification of the bar, the accreditation of legal education, the emergence of the “canons” of legal ethics, and the settlement of the codification controversy with model laws and restatements, no institutional history of the ABA appeared in the intervening years. Literatures have arisen devoted to the entrance of women and African Americans to legal practice in the late nineteenth century, while the internal dynamics of the elite (mostly male and white) bar during the New Deal has received sustained attention. But as of yet, the elite of the bar to which women, minorities, and New Deal progressives were reacting has been relatively neglected.

Indeed,The Best Men of the Bar presciently offered a number of arguments that today puts the work right at home in contemporary historiography of America’s legal profession, particularly in its focus on the control of legal education and the interconnections between codification and access to the profession. The central argument of the book is one that both anticipates recent literature yet also extends it by disrupting our conventional attempts to describe the elite bar of the Gilded Age and Progressive Era in the United States. While recent studies have challenged the notion of a monolithic classical legal “orthodoxy,” Best Men of the Bar clarifies the story by dividing the ABA’s early history into two periods: one that drew on and was shaped by the age of reform, and a later period of reaction and retrenchment. This introduction surveys the major historiographical debates about the turn-of-the-century American legal profession to illustrate the power of this argument. One of the recurring themes of the works surveyed within is the slightly embarrassed admission that the Gilded Age bar in many ways countered the trend towards conservatism that developed later in the Progressive Era.
–Dan Ernst

MacDonald on Canada's Residential Schools

From the University of Toronto Press comes The Sleeping Giant Awakens: Genocide, Indian Residential Schools, and the Challenge of Conciliation by David B. MacDonald, University of Guelph. From the press:
The Sleeping Giant Awakens
Confronting the truths of Canada’s Indian residential school system has been likened to waking a sleeping giant. In The Sleeping Giant Awakens, David B. MacDonald uses genocide as an analytical tool to better understand Canada’s past and present relationships between settlers and Indigenous peoples. Starting with a discussion of how genocide is defined in domestic and international law, the book applies the concept to the forced transfer of Indigenous children to residential schools and the "Sixties Scoop," in which Indigenous children were taken from their communities and placed in foster homes or adopted.
Based on archival research, extensive interviews with residential school Survivors, and officials at the Truth and Reconciliation Commission of Canada, among others, The Sleeping Giant Awakens offers a unique and timely perspective on the prospects for conciliation after genocide, exploring the difficulties in moving forward in a context where many settlers know little of the residential schools and ongoing legacies of colonization and need to have a better conception of Indigenous rights. It provides a detailed analysis of how the TRC approached genocide in its deliberations and in its Final Report.
Crucially, MacDonald engages critics who argue that the term genocide impedes understanding of the IRS system and imperils prospects for conciliation. By contrast, this book sees genocide recognition as an important basis for meaningful discussions of how to engage Indigenous-settler relations in respectful and proactive ways.
Here's the Table of Contents:

1. Understanding Genocide: Raphael Lemkin, the UN Genocide Convention, and International Law
2. Pluralists, Indigenous Peoples, and Colonial Genocide
3. Forcible Transfer as Genocide in the Indian Residential Schools
4. The Sixties and Seventies Scoop and the Genocide Convention
5. The Truth and Reconciliation Commission of Canada and the Question of Genocide
6. The TRC, Indigenous Death, Inside and Outside the Residential Schools
7. Indigenous Genocide: Remembering, Commemorating, Forgetting
8. Indigenous Peoples and Genocide: Challenges of Recognition and Remembering

9. Reconciliation, Resurgence, and Rollback in the Aftermath of Genocide

Further information is available here.

--Mitra Sharafi

Tuesday, June 18, 2019

Washington History Seminar Fall 2019

[We have the following announcement.  DRE]

The Washington History Seminar: Historical Perspectives on International and National Affairs

We are delighted to announce below the exciting schedule of speakers for the fall 2019 season of the Washington History Seminar (WHS) — one of Washington D.C.’s most intellectually vibrant venues for thinking about the past and establishing its relevance to the present. Each week the seminar offers fresh perspectives on an important historical topic, bringing distinguished senior scholars, talented young historians, and other inquiring minds to talk about their recent research, reveal their latest discoveries, and engage in discussion with the audience.

September 9
Sophia Rosenfeld on Democracy and Truth: A Short History (Wm. Roger Louis Lecture)

September 16
Nemata Blyden on African Americans and Africa: A New History

September 23
Carole Fink on West Germany and Israel: Foreign Relations, Domestic Politics, and the Cold War, 1965-1974

September 30
Monica Kim on The Interrogation Rooms of the Korean War: The Untold History

October 7
A. James McAdams on Vanguard of the Revolution: The Global Idea of the Communist Party

October 21
Petra Goedde on The Politics of Peace: A Global Cold War History

October 28
Charles King on Gods of the Upper Air: How a Circle of Renegade Anthropologists Reinvented Race, Sex, and Gender in the Twentieth Century

November 4
Lizabeth Cohen on Saving America’s Cities: Ed Logue and the Struggle to Renew Urban America in the Suburban Age

November 18
Ambassador Anatoly Dobrynin Centennial Panel (with the Kennan Institute)

December 2
Michael Dobbs on The Unwanted: America, Auschwitz, and a Village Caught in Between

December 9
Daniel Schwartz on Ghetto: The History of a Word

December 16
Amy Aronson on Crystal Eastman: A Revolutionary Life

Mondays at 4:00 p.m..  Woodrow Wilson Center, 6th Floor Moynihan Board Room
Ronald Reagan Building, Federal Triangle Metro Stop.  The seminar is co-chaired by Eric Arnesen (George Washington University) and Christian Ostermann (Woodrow Wilson Center) and is organized jointly by the National History Center of the American Historical Association and the Woodrow Wilson Center's History and Public Policy Program. It meets weekly during the academic year. The seminar thanks its donors and institutional partners for their support.

Harrison on Executive Power

John C. Harrison, University of Virginia School of Law, has posted Executive Power:
This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.
--Dan Ernst

Monday, June 17, 2019

Arlyck on Civil Forfeiture at the Founding

Kevin Arlyck, Georgetown University Law Center, has posted The Founders' Forfeiture, which is forthcoming in volume 119 of the Columbia Law Review (2019):
Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

Alexander Hamilton (NYPL)
As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows—for the first time—that forfeiture in the Founding era was significantly constrained. But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent—which they did, remitting forfeitures in over 90% of cases presented to them. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits. The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today. This is also an opportune moment to reexamine forfeiture’s historical bona fides. In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.
--Dan Ernst

Galer on Disability Rights activism in Canada

Out with the University of Toronto Press is Working Towards Equity: Disability Rights Activism and Employment in Late Twentieth-Century Canada by Dustin Galer, personal historian and founder of From the publisher: 
Working towards EquityIn Working towards Equity, Dustin Galer argues that paid work significantly shaped the experience of disability during the late twentieth century. Using a critical analysis of disability in archival records, personal collections, government publications and a series of interviews, Galer demonstrates how demands for greater access among disabled people for paid employment stimulated the development of a new discourse of disability in Canada. Family advocates helped people living in institutions move out into the community as rehabilitation professionals played an increasingly critical role in the lives of working-age adults with disabilities. Meanwhile, civil rights activists crafted a new consumer-led vision of social and economic integration. Employment was, and remains, a central component in disabled peoples' efforts to become productive, autonomous and financially secure members of Canadian society. Working towards Equity offers new in-depth analysis on rights activism as it relates to employment, sheltered workshops, deinstitutionalization and labour markets in the contemporary context in Canada.
Praise for the book:

"This is an ambitious and largely successful book. It deserves a wide readership because of its potential to expand the historiography about work, rights and rights movements, and policy (federal and provincial) – in the style of the new disability history – by bringing a disability analysis to bear on these topics." -Jason Ellis

"Working towards Equity makes a notable and worthwhile contribution to the field of disability studies as well as to social policy, labour history, and social movement activism studies in Canada. The illustrations and photographs are terrific features helping to bring alive the history, making it both personal and political." -Michael J. Prince

"Working towards Equity draws from a broad array of sources, including archived manuscript collections, documentary films, interviews, government reports, and published monographs and articles. Filling a significant gap in the historiography of disability rights, employment, and labour, this study makes a significant contribution to twentieth-century social and cultural history." -Michael Rembi 

Further information is available here.

--Mitra Sharafi

Helmholz on "The Profession of Ecclesiastical Lawyers"

New from Cambridge University Press: The Profession of Ecclesiastical Lawyers: An Historical Introduction, by R. H. Helmholz (University of Chicago). A description from the Press:
Historians of the English legal profession have written comparatively little about the lawyers who served in the courts of the Church. This volume fills a gap; it investigates the law by which they were governed and discusses their careers in legal practice. Using sources drawn from the Roman and canon laws and also from manuscripts found in local archives, R. H. Helmholz brings together previously published work and new evidence about the professional careers of these men. His book covers the careers of many lesser known ecclesiastical lawyers, dealing with their education in law, their reaction to the coming of the Reformation, and their relationship with English common lawyers on the eve of the Civil War. Making connections with the European ius commune, this volume will be of special interest to English and Continental legal historians, as well as to students of the relationship between law and religion.
A few blurbs:
‘This valuable book by one of our most eminent legal historians is the product of fifty years engagement with the history of the Church courts in England. It not only provides new insights into the careers of eighteen very different ecclesiastical lawyers over seven centuries but also (in the first half) prepares the way with an accessible and authoritative history of their profession.' -- John H. Baker 
The Profession of Ecclesiastical Lawyers: An Historical Introduction is an important contribution to the literature on the history of the legal profession by the leading scholar of canon law. It combines a thorough and insightful analysis of the development, education, and regulation of a somewhat neglected segment of the English legal profession with a view of the profession through the activities of its practitioners.' -- Jonathan Rose
More information, including the TOC, is available here.

-- Karen Tani

Sunday, June 16, 2019

Chief Judge Judith Kaye: In Her Own Words

New from SUNY Press: Judith S. Kaye in Her Own Words: Reflections on Life and the Law, with Selected Judicial Opinions and Articles:
In 1983, Judith S. Kaye (1938–2016) became the first woman appointed to the Court of Appeals, New York’s highest court. Ten years later, she became the first woman to be appointed chief judge of the court, and by the time she retired, in 2008, she was the longest-serving chief judge in the court’s history. During her long career, she distinguished herself as a lawyer, jurist, reformer, mentor, and colleague, as well as a wife and mother.

Bringing together Kaye’s own autobiography, completed shortly before her death, as well as selected judicial opinions, articles, and speeches, Judith S. Kaye in Her Own Words makes clear why she left such an enduring mark upon the court, the nation, and all who knew her.  The first section of the book, Kaye’s memoir, focuses primarily on her years on the Court of Appeals, the inner workings of the court, and the challenges she faced, as chief judge, in managing a court system populated by hundreds of judges and thousands of employees.  The second section, a carefully chosen selection of her written opinions (and occasional dissents), reveals how she guided the law in New York State for almost a quarter century with uncommon vision and humanity. Her decisions cover every facet of New York and federal law and have often been quoted and followed nationally.  The final section of the book includes selections from her numerous articles and speeches, which cover the field, from common law jurisprudence to commercial law to constitutional analysis, all with an eye to the future and, above all, how the law can best affect the everyday lives of people who come to court—willingly or unwillingly—including, not least, those most in need of the law.
--Dan Ernst.  H/t: JDG3

Saturday, June 15, 2019

Weekend Roundup

  • The National History Center's next Congressional briefing will be on the history of health care in the U.S.  It will be Friday, June 28, 2019 from 10:00 am-11:00 am, in the Gold Room, Rayburn House Office Building, Room 2168.  The speakers will be Beatrix Hoffman, Northern Illinois University, and Nancy Tomes, Stony Brook University. Alan Kraut, American University, will moderate.  Saith the NHC: “Why is the American health care system so costly, complex, and challenging for those who seek to legislate improvements in access to and quality of care? The answers are rooted in the historical forces that gave rise to the current system. Two leading authorities on the history of American health care will explain how we got where we are today.” 
  • Over at Jotwell, Joanna Grisinger, Northwestern University, has posted The Federal Trade Commission as National Nanny, her appreciation of Rachel Louise Moran's "Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation," in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).
  • Update: Anna Jarvis interviewed on winning the R. Roy McMurtry Fellowship to research her great-great grandfather, Edward Jarvis, chief justice of the supreme court of Prince Edward Island (CBC).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, June 14, 2019

Blackhawk on "Federal Indian Law as a Paradigm Within Public Law"

As I read Katie Eyer's piece on JOTWELL yesterday -- an admiring review of a recent article by Maggie Blackhawk (Penn Law) -- I was reminded that we had not yet flagged this article for our readers. There is lots of legal history here! Here's the abstract for "Federal Indian Law as a Paradigm Within Public Law," published this spring in the Harvard Law Review.
U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.
Here's a taste of Professor Eyer's review:
Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Read on here.

-- Karen Tani