Saturday, August 31, 2019

Weekend Roundup

  • A belated welcome to the blogosphere to Hist@FedGov Blog, the “Official blog for news and views about History@FedGov and federal history” of the Society for History in the Federal Government
  • Keep an eye out for the Offices of the Southern Jurist-Diplomat, a project of the Institute for International Law and the Humanities at Melbourne Law School. Recent events include the inaugural Saba Mahmood Memorial Lecture, "On the Ruins of History and the Obstinacy of Struggles" by Samera Esmeir, UC Berkeley on Aug.21, 2019; and a conference "for contemporary jurists on how to foster meetings between peoples and their laws which accord the other, and their law, dignity" through long "Southern histories" of such encounters (Aug.21-23, 2019).
  • The inaugural "State of the Field Lectures" at the University of Pennsylvania's South Asia Center (Oct.12, 2019) will be by two legal historians: Julia Stephens, Rutgers, "Haunted Archives: Tracing Diasporic Deaths across Britain's Indian Ocean Empire" and Kalyani Ramnath, Harvard, "Legal Histories and Affective Geographies: Reimagining the Bay of Bengal."
  • If school's starting, announcements of Constitution Day events can't be far behind.  Lurleen B. Wallace Community College, in Andalusia, Alabama, will host a free, public symposium starting at 10 AM on September 17. Among the presenters is Lawrence Cappello, assistant professor of US constitutional history at the University of Alabama and the author of None of Your Damn Business: Privacy in the United States from the Gilded Age to the Digital Age, which is forthcoming from the University of Chicago Press.   More.
  • Your Abstract Is More Important Than You Think, writes former LHB Guest Blogger Christopher Schmidt, as well as other tips for publishing in Law and Social Inquiry, the journal of the American Bar Foundation, which Professor Schmidt edits.
  • Politico reports on a FOIA lawsuit seeking the disclosure of the opinions of the Office of Legal Counsel of the US Department of Justice issued over 25 years ago.  A notice of the lawsuit, Francis v. DOJ, by Columbia University's Knight First Amendment Institute is here.
  • A livestream of an interview of U.S. Supreme Court Justice Ruth Bader Ginsburg at the Library of Congress's National Book Festival is scheduled to take place here from 11:30 a.m. – 12:30 p.m. today.  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 30, 2019

Black on the Irish "Other" in Scotland

Lynsey Black, Maynooth University, has posted Murder, Capital Punishment, and the Irish in Scotland, 1864 to 1914, which was published in Irish Jurist 60 (2018): 154-166:
Throughout the 19th century, significant numbers of Irish persons emigrated to Scotland. These Irish migrants lived their lives under the shadow of the popular stereotype of the Irish as unruly and violent. Scholars such as Peter King and Carolyn Conley have noted that the Irish duly became an “out group” in Scotland during this period. This article explores the cases of Irishmen sentenced to death for murder in Scotland from 1864 to 1914. Drawing on nine case studies, the article draws on archival court materials and press reporting to examine issues such as the prevalence of sectarian tensions, and the Catholic Irish as “Other."
--Dan Ernst

The 2019 Silverman Lectures: Dissenting at the Supreme Court

The Supreme Court Historical Society has announced its Leon Silverman Lecture Series for 2019, Dissenting at the Supreme Court–New Perspectives.  On October 7, Mark R. Killenbeck, the Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law, will present “The Dissent as Concurrence–From Fletcher to Whitney."  On October 24, Justin Driver, Professor of Law, Yale Law School, will present "Dissents From Outside the Judiciary–The Southern Manifesto as a Dissent to the Brown.”  On November 6, Pamela Brandwein, Professor of Political Science, University of Michigan, will present “Prescient Dissents–Justice Bradley and the Slaughter-House Cases.”  On November 20, Charles Cooper, founding member and chairman of Cooper & Kirk and a former law clerk to then-Justice Rehnquist, will present “The Lone Dissenter–Associate Justice William Rehnquist.”  Lectures are at 6pm in the Supreme Court Chamber at the Supreme Court of the United States, One First Street, NE, Washington, DC, with a light reception to follow.  More information here.

--Dan Ernst

Yale Legal History Forum 2019-20 Lineup

The Yale Legal History Forum has announced its 2019-20 speaker lineup [updated to include logistical information]:

Tuesday, October 15: Marcus Folch, Columbia University (Classics), “Political Prisoners in Democratic Athens”

Tuesday, November 19: Maeve Glass, Columbia Law School, “Founding Properties”

Thursday, December 5, at 4:10 PM: Nikolas Bowie, Harvard Law School, “The Constitutional Right to Local Self-Government”


Tuesday, February 4: Coel Kirkby, Sydney Law School, “Bullets over Brexit: A Genealogy of Leavers’ Lawfare”

Tuesday, February 25: Michael Szonyi, Harvard University (East Asian Languages and Civilizations), “Land Markets, Property Rights, and Corporate Organizations in Late Imperial China: Preliminary Reflections on Recently Discovered Materials from Fujian”

Tuesday, March 24: Thomas J. McSweeney, William & Mary Law School, “Teaching the Common Law in Latin in the Late Thirteenth Century”

Tuesday, April 7: Ariela J. Gross, USC Gould School of Law, “Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana”
The Forum will meet from 12:10 to 1:30 PM in the Calabresi Faculty Lounge of the Sterling Law Building, except on December 5. Lunch will be provided. Papers will be pre-circulated to Forum participants. For more information, please contact the 2019-2020 Legal History Fellows, Gabe Levine ( and Kate Redburn ( 
Do you have a legal history workshop or speaker series you'd like us to publicize? Please feel free to email us!

-- Karen Tani

Thursday, August 29, 2019

Faulkenbury, "Poll Power: The Voter Education Project and the Movement for the Ballot in the American South"

Recently released by the University of North Carolina Press: Poll Power: The Voter Education Project and the Movement for the Ballot in the American South (April 2019), by Evan Faulkenbury (State University of New York, Cortland). A description from the Press:
The civil rights movement required money. In the early 1960s, after years of grassroots organizing, civil rights activists convinced nonprofit foundations to donate in support of voter education and registration efforts. One result was the Voter Education Project (VEP), which, starting in 1962, showed far-reaching results almost immediately and organized the groundwork that eventually led to the Voting Rights Act of 1965. In African American communities across the South, the VEP catalyzed existing campaigns; it paid for fuel, booked rallies, bought food for volunteers, and paid people to canvass neighborhoods. Despite this progress, powerful conservatives in Congress weaponized the federal tax code to undercut the important work of the VEP.

Though local power had long existed in the hundreds of southern towns and cities that saw organized civil rights action, the VEP was vital to converting that power into political motion. Evan Faulkenbury offers a much-needed explanation of how philanthropic foundations, outside funding, and tax policy shaped the southern black freedom movement.
A few blurbs:
"In this innovative study, Faulkenbury goes behind the scenes to elucidate the relationship between the civil rights movement and philanthropic foundations. An organizational history of the Voter Education Project and its funders, Poll Power demonstrates that as civil rights activists in countless communities across the South began to institutionalize their hard-won access to the ballot, their opponents answered with federal legislation that severely curtailed the chances of their success. This work is essential for understanding the intricacies of voter suppression efforts, both past and present."--Katherine Mellen Charron 
"This important contribution focuses on a neglected yet critical episode in the civil rights movement, explaining well how an unexpected alliance of politicians, philanthropists, and civil rights activists launched voter registration projects and achieved important victories despite segregationists in Congress and state and local governments."--Olivier Zunz
More information is available here.

-- Karen Tani

Adanan & Higgins on UK's Regulation of the 20th-Century Slave Trade

Amina Adanan and Noelle Higgins, Maynooth University, have posted Britain’s Influence on the Regulation of the Slave Trade in the Twentieth Century, which appeared in British Influences on International Law, 1915-2015, ed. Robert McCorquodale and Jean-Pierre Gauci (BRILL/Martinus Nijhoff, 2016):
This chapter analyses how Britain shaped the current international legal regime regulating slavery during the 20th century up to the present day. It provides a brief historical account of Britain’s pioneering efforts to regulate the slave trade by means of bilateral treaties and the formulation of a right of search on the seas prior to the 20th century before focusing on Britain’s contribution to the drafting of the 1926 Slavery Convention and the 1956 Supplementary Convention at the League of Nations and the United Nations. The Chapter also addresses the reasons why Britain was at the forefront of the regulation of this area of law.
--Dan Ernst

Wednesday, August 28, 2019

Miller on Nazi Germany and American Indians

Robert J. Miller, Arizona State University Sandra Day O'Connor College of Law, has posted Nazi Germany and American Indians:
In the early 1930's, Nazi scholars, lawyers, jurists, and party officials were heavily influenced by United States law when they were developing racial policies and laws concerning Jewish people. Research demonstrates that when Nazis were turning their ideas into legislative proposals and laws that they were also carefully studying federal Indian laws and American state laws that discriminated against American Indians.
--Dan Ernst

Lattman on Bodin's De la Démonomanie des Sorciers

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.]

Christopher Lattmann, Der Teufel, die Hexe und der Rechtsgelehrte. Crimen magiae und Hexenprozess in Jean Bodins De la Démonomanie des Sorciers (Studien zur europäischen Rechtsgeschichte 318) Frankfurt am Main: Klostermann 2019.  390 p., 69,00 €, ISBN 978-3-465-04389-8

Jean Bodin is known above all as the author of the Six livres de la République (1576) and the founder of the theory of sovereignty. Most modern readers, however, are less familiar with his demonology of 1580, which was also a bestseller at the time - not least because witchcraft law was hardly standardised in early modern France. In De la Démonomanie des Sorciers (1580), Bodin discussed the nature of witchcraft and gave instructions for the strict legal prosecution of the crimen magiae. Christopher Lattmann's study is the first to provide a detailed examination of this controversial legal work from the perspective of legal history. Bodin understood witchcraft as a phenomenon that resulted from the interaction of God, devil and man. His view of the world is reflected in his material witchcraft law, above all in his treatment of the various witchcraft offences: from entering into a pact with the devil to participating in the Witches' Sabbath or using maleficent magic. Lattmann demonstrates the influences of Mosaic, Roman and ecclesiastical law as well as of contemporary demonology on Bodin's work. Against the background of French criminal procedural law, he shows that Bodin established a special summary procedure for witch trials that differed from the regular inquisition procedure. Since Bodin could not base himself on any existing French law for this purpose, he drew on the doctrines of foreign criminal jurists. Lattmann thus shows how Bodin's work originated in a European legal sphere and became an important contribution to European criminal law in the 16th century.

–posted by Dan Ernst

Tuesday, August 27, 2019

Duke Center for Firearms Law Research Affiliate Program Seeks Applications for Research Affiliates

Following nicely our previous post, we have the following Call for Applications:
The Duke Center for Firearms Law Research Affiliate Program seeks to support junior and aspiring scholars, including current graduate students, post-docs, visiting or adjunct faculty, and practitioners as they develop research and scholarship in the field of firearms law. These nonresident affiliations are open to those working in law, as well those working in history, political science, public policy, and related fields and focusing on firearms law.

Research affiliates typically enjoy an initial 9-12 month affiliation with the Center. Funding for Research Affiliates consists of a stipend to support research-related projects or events, such as expenses related to traveling for conferences or colloquium to present research, hiring research assistants to help with scholarship tasks, and paying costs and fees for data or information retrieval. The affiliations are not staff positions, and Research Affiliates are not eligible for employment benefits.

Research Affiliates submit a proposed budget at the beginning of the appointment term outlining their expected expenses throughout the year. The Center expects to provide Research Affiliates with approximately $2,500 to $5,000 in funding for approved projects and related tasks throughout their affiliation.

As part of the program, Research Affiliates are invited to attend Center events throughout the year, including events at which they can present their own research and scholarship. Affiliates can also seek feedback on scholarship drafts and ideas from Center staff and faculty and will gain access to Duke University’s library resources, including electronic and digital databases and archives.

To apply, applicants should submit the following information to
  • Cover letter explaining your interest in the Research Affiliate Program
  • Resume or CV
  • Statement of research agenda
  • Law or graduate school transcripts
  • Scholarly writing sample
  • Three references
The Center expects to have one to two Research Affiliates next year. Applications will be accepted from September 1, 2019 to December 1, 2019. We expect the term for Research Affiliates to begin on January 1, 2020 and conclude at the end of the calendar year.
More information is available here.

"A Right to Bear Arms"

Out this month from Penguin is A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment, edited by Jennifer Tucker, Barton C. Hacker, and Margaret Vining.  Contributors include Saul Cornell, Kevin Sweeney, Joyce Malcolm, Priya Satia, Patrick Charles, Lois Schwoerer, and Randolph Roth.
This collection of essays explores the way history itself has become a contested element within the national legal debate about firearms.

The debate over the Second Amendment has unveiled new and useful information about the history of guns and their possession and meaning in the United States of America. History itself has become contested ground in the debate about firearms and in the interpretation of the Second Amendment to the Constitution of the United States. Specifically this collection of essays gives special attention to the important and often overlooked dimension of the applications of history in the law. These essays illustrate the complexity of the firearms debate, the relation between law and behavior, and the role that historical knowledge plays in contemporary debates over law and policy. Wide-ranging and stimulating The Right to Bear Arms is bound to captivate both historians and casual readers alike.
--Dan Ernst

Harmon's "Reclaiming the Reservation"

Alexandra Harmon, University of Washington, has published Reclaiming the Reservation: Histories of Indian Sovereignty Suppressed and Renewed (University of Washington Press, 2019).
In the 1970s the Quinault and Suquamish, like dozens of Indigenous nations across the United States, asserted their sovereignty by applying their laws to everyone on their reservations. This included arresting non-Indians for minor offenses, and two of those arrests triggered federal litigation that had big implications for Indian tribes’ place in the American political system. Tribal governments had long sought to manage affairs in their territories, and their bid for all-inclusive reservation jurisdiction was an important, bold move, driven by deeply rooted local histories as well as pan-Indian activism. They believed federal law supported their case.

In a 1978 decision that reverberated across Indian country and beyond, the Supreme Court struck a blow to their efforts by ruling in Oliphant v. Suquamish Indian Tribe that non-Indians were not subject to tribal prosecution for criminal offenses. The court cited two centuries of US legal history to justify their decision but relied solely on the interpretations of non-Indians.

In Reclaiming the Reservation, Alexandra Harmon delves into Quinault, Suquamish, and pan-tribal histories to illuminate the roots of Indians’ claim of regulatory power in their reserved homelands. She considers the promises and perils of relying on the US legal system to address the damage caused by colonial dispossession. She also shows how tribes have responded since 1978, seeking and often finding new ways to protect their interests and assert their sovereignty
--Dan Ernst

Monday, August 26, 2019

Balto, "Occupied Territory: Policing Black Chicago from Red Summer to Black Power"

New from the University of North Carolina Press: Occupied Territory: Policing Black Chicago from Red Summer to Black Power (July 2019), by Simon Balto (University of Iowa). A description from the Press:
In July 1919, an explosive race riot forever changed Chicago. For years, black southerners had been leaving the South as part of the Great Migration. Their arrival in Chicago drew the ire and scorn of many local whites, including members of the city’s political leadership and police department, who generally sympathized with white Chicagoans and viewed black migrants as a problem population. During Chicago’s Red Summer riot, patterns of extraordinary brutality, negligence, and discriminatory policing emerged to shocking effect. Those patterns shifted in subsequent decades, but the overall realities of a racially discriminatory police system persisted.

In this history of Chicago from 1919 to the rise and fall of Black Power in the 1960s and 1970s, Simon Balto narrates the evolution of racially repressive policing in black neighborhoods as well as how black citizen-activists challenged that repression. Balto demonstrates that punitive practices by and inadequate protection from the police were central to black Chicagoans’ lives long before the late-century "wars" on crime and drugs. By exploring the deeper origins of this toxic system, Balto reveals how modern mass incarceration, built upon racialized police practices, emerged as a fully formed machine of profoundly antiblack subjugation.
A few blurbs:
"Simon Balto’s study of twentieth-century black Chicago provides new insights into the historical roots of police abuse in black communities while challenging scholarship that posits the mid-twentieth century as a turning point for deteriorating relationships between the police and black Americans. This beautifully written history is a model of clarity and moral passion."--Beryl Satter
"The last several years have seen important histories written about the rise of mass incarceration in the United States, but what has been missing are studies that deepen our understanding of American policing. Simon Balto offers a much-needed history of policing in Chicago, clearly articulating the connection between the Chicago Police Department’s record of racism and abuse and its contemporary crisis of police brutality."--Keeanga-Yamahtta Taylor
More information is available here. You can learn more about the book over at New Books Network, where they recently posted an interview with Professor Balto.

-- Karen Tani

Ward, "Thought Crime: Ideology and State Power in Interwar Japan"

Out earlier this year from Duke University Press: Thought Crime: Ideology and State Power in Interwar Japan (February 2019), by Max M. Ward (Middlebury College). A description from the Press:
In Thought Crime Max M. Ward explores the Japanese state's efforts to suppress political radicalism in the 1920s and 1930s. Ward traces the evolution of an antiradical law called the Peace Preservation Law, from its initial application to suppress communism and anticolonial nationalism—what authorities deemed thought crime—to its expansion into an elaborate system to reform and ideologically convert thousands of thought criminals throughout the Japanese Empire. To enforce the law, the government enlisted a number of nonstate actors, who included monks, family members, and community leaders. Throughout, Ward illuminates the complex processes through which the law articulated imperial ideology and how this ideology was transformed and disseminated through the law's application over its twenty-year history. In so doing, he shows how the Peace Preservation Law provides a window into understanding how modern states develop ideological apparatuses to subject their respective populations.
A few blurbs:
“No one in English or Japanese has written on the Peace Preservation Law with the conceptual sophistication that Max M. Ward brings to the topic. He deftly considers Japan's national body politic and the phenomenon of ideological conversion in their imbrications with the problems of sovereignty, the monarchy, colonialism, and national territory like nobody else. Thought Crime will be required reading for scholars and students of modern Japanese history.” — Takashi Fujitani 
“Max M. Ward's illuminating new book examines the dynamics of left-right political conversions—tenko—during the era of Japanese fascism. Moving beyond the conventional focus on the individual as the site for moral responsibility and political repression, Ward directs our attention to the operations and logic of the imperial state. By examining the nexus of political ideology, state form, and security apparatus, Ward reenergizes debates about Japan's ‘emperor-system’ and injects new life into the practice of political history more broadly. A must read for scholars of interwar and wartime Japan.” — Louise Young
More information is available here. You can also learn more about the book over at the New Books Network, where they recently conducted an interview with Professor Ward.

-- Karen Tani

CFP: Law and Society Association Annual Meeting

The Law and Society Association invites proposals for participation in its annual meeting, to be held in Denver, Colorado, from May 28-31, 2020. The theme is "rule and resistance." From the conference organizers:
The globe is facing massive challenges that defy established mechanisms of governance. Climate change, wars, and continuing poverty lead to both the dislocation and the isolation of populations. New forms of mobility and demographic change have put strain on the institutions responsible for social provision, like education, housing and employment. New dynamics of rule and resistance are emerging as fearful (and racist) people opt to elect authoritarians who promise stability and a return to some “golden age,” when there was less freedom, less liberty and more control through the use of real or threatened violence. In this world, sociolegal scholars are understandably concerned with understanding these phenomena as well as identifying what systems of ruling authority can address these problems and how they can do so -- while also protecting the rights of the world’s residents and providing conditions for them to flourish.

Rule may be singular as well as plural. In a moment when we see the rise of authoritarian forms of governance, how are rules asserted as a form of resistance? Resistance is often envisioned as the deliberate breaking of rules, such as through civil disobedience or other forms of rebellion. But resistance can sometimes take the form of exact adherence to rules, such as the industrial strategy of work-to-rule, where workers do no more than the minimum required under their contract. In other situations, instituting rules can itself be an act of resistance against forms of lawless tyranny, or resistance might manifest through attempts to change particular rules and promote different rules. Resistance, too, is not without its rules: resistance movements have often developed their own internal rules to guide and co-ordinate the pursuit of their objectives.

In the face of this tidal wave of authoritarian rule in various parts of the globe, resistance takes many forms, all of which have implications for the way that people govern and organize themselves. In the US, we see social movements organizing protests, while courts are sometimes supporting the rule of law against a lawless administration. New currents of activity appear to be forming in realms such as reproductive rights and the regulation of gender-based misconduct. Narratives of resistance are emerging and stretching across national borders, including that of decolonisation. Many of these forms of resistance are aimed at asserting control over governing institutions, although many also contest elsewhere. In any case, organized institutional resistance is only one possibility; others resist through revolution, rejecting those institutions entirely, or through flight from repressive conditions, seeking refuge.
More information is available here.

-- Karen Tani

Sunday, August 25, 2019

CFP: "The Past is Prologue: The Impact of Law’s History"

[We have the following call for papers.]

The Past is Prologue: The Impact of Law’s History : A New Edited Collection of Essays on Legal History

The Book.  Legal rules, decisions, institutions, and individual actors have had an enormous impact on our cultures and societies today. The leaders that govern us, the crimes that are committed, and the freedoms that we cherish are part and parcel of the enduring legacy of legal history. Despite its diminishing presence in legal education in recent decades, the study of legal history is on an upswing as its importance gains renewed recognition. The availability of new techniques and resources allow scholars to develop new insights and supplement, contextualise, or challenge our previous understandings of the causes and consequences of developments in law and society.

We are assembling a special collection of essays that consider how legal history in Aboriginal, British, Australian, American or wider contexts have shaped our shared present. The essays in this collection will be more than just discussions of particular aspects of legal history in the abstract; instead, each will draw a clear and significant connection to a meaningful feature of our lives today. With this Call for Papers, we are now soliciting contributions from the academy and members of the public more generally.

Advice for contributors.  This edited collection will be initially offered to an Australian academic press.  Please submit an abstract of up to 250 words explaining the focus and approach your proposed essay would take to ensure appropriate academic rigour. The proposed volume is intended to be scholarly but accessible in tone and approach. Each contribution should be in the area of 6000 to 10000 words. Please email abstracts to by 30 September 2019.

About the editors. Associate Professor Marcus Harmes is Associate Director (Academic Development) in the University of Southern Queensland’s Open Access College and teaches legal history in the law degree.  Dr. Jeremy Patrick is Acting Associate Head of School (Research) in the University of Southern Queensland School of Law and Justice. He has published on the historical aspects of various subjects in the area of law and religion.  Ms Sarah McKibbin is Lecturer (Law) in the University of Southern Queensland’s School of Law and Justice. She was instrumental in developing the legal history course in the law degree.

--posted by Dan Ernst

Georgetown Legal History Colloquium, 2019-2020

I and my co-convener, Anne Fleming, Georgetown University Law Center, would like to announce the Georgetown Legal History Colloquium and its 2019-2020 schedule.  This works-in-progress seminar meets from 3:30-5:00 on selected Fridays and is open to interested faculty, students, and independent or government historians beyond Georgetown.  We especially invite those in the greater Washington, DC, area to write me at to get on our reminder and distribution list.

September 27  Mitra Sharafi, University of Wisconsin-Madison Law School, “South Asians and West Africans at the Inns of Court: Empire and Expulsion circa 1900"

October 25       Emily Kadens, Northwestern Pritzker Law School, “New Light on Twyne’s Case”

November 15    Gautham Rao, American University, “Runaway Laws, Slave Police, and the Nineteenth-Century American State”

January 31         Dylan Penningroth, University of California, Berkeley, “Race as a Material Fact in Contract Law”

February 28       Alison La Croix, University of Chicago Law School, “The Interbellum Constitution and the Commerce Power”

March 27           K-Sue Park, Georgetown University Law Center, “The Transformation of the Mortgage in the American Colonies”

April 17             Kevin Arlyck, Georgetown University Law Center, “Judging Sovereignty: The Federal Courts in the Age of Revolution”

--Dan Ernst

Saturday, August 24, 2019

ASLH 2019 Program (Updated)

[We're moving this up, because we've received an updated version of the program.  It follows after the jump.  Apologies for the overlapping text, which you can avoid by copying and pasting into a wordprocessing document.]

The program for the annual meeting of the American Society for Legal History, to be held in Boston, November 21-24, 2019, has been announced.  More information on the conference is here

--Dan Ernst

Weekend Roundup

  • Princeton University has announced the conference Critical Legal Studies: Intellectual History and History of the Present, to be held February 27 to February 28, 2020.  “The conference is free and open to the public; registration is requested and will be available soon via the conference website.”  The organizers are Hendrik Hartog, Princeton University, Emeritus, History; Paul Baumgardner, Princeton University, Ph.D. candidate, Politics; David Linke, Princeton University, Seeley G. Mudd Manuscript Library; and David Trubek, University of Wisconsin-Madison Voss-Bascom Professor of Law and Dean of International Studies, Emeritus, and Senior Research Fellow, Harvard Law School.  We'll post when the website is on line and the program published.
  • From the New Books Network (Law), a number of conversations with authors of recent legal-historical monographs: Julilly Kohler-Hausmann (Cornell) on Getting Tough; Cyril Ghosh (Wagner College) on De-Moralizing Gay Rights; Kristin O'Brassill-Kulfan (Rutgers University) on Vagrants and Vagabonds; Kevin M. Baron (University of Florida) on Presidential Privilege and the Freedom of Information Act; Paul Finkelman (Gratz College) on Supreme Injustice; and a few more (covering recent 2019 releases) that we'll note in stand-alone posts this coming week.
  • The New Rambler Review proudly announces its relaunch this month under a new board of editors: Cindy Ewing, Connor Ewing, Simon Stern, and Anna Su (all at the University of Toronto). From the editors: "Founded in 2015, New Rambler Review is an online venue for scholarly discussion of the contemporary moment, publishing reviews of select new books in law, literature, history, and politics. In contrast to the formal book review format, NRR features long-form essays that allow experts to bring their insights to bear on recent monographs and extend the conversation across disciplines in a collegial and open scholarly space. We welcome review pitches at"
  • On August 30, William Nelson, NYU Law, will speak on The Extreme Right in Europe and America: Are they Different or the Same? in the EuroStorie research seminar at the University of Helsinki.  He “will argue that racism is the foundation of right-wing American thought but that protection of traditional Christian values had to be added to that foundation to give the American right political traction. He also poses the question whether something similar to this combination is present in Europe.”
  • On September 18, Mathias Schmoeckel, University of Bonn, will be presenting A Legal Perspective on the Scottish Protestant Reformation in the Alan Watson Seminar in Legal History at Edinburgh Law School on September 18.  “The Reformation did not have a uniform effect on the European states, but rather sharpened the individualistic traits of each nation. The protestant city in the Holy Roman Empire obtained more independence, the protestant princes of the empire achieved almost sovereignty, and the Lutheran King of Denmark established a perfectly absolute government, while his subjects in Norway learned to live with more independence. In each case, the Reformation rather enhanced the pre-existing typical elements of each state. Does this scheme also work for Scottish legal history?”
  • On November 7, Martha S. Jones, Johns Hopkins University, will deliver the keynote address at the annual meeting of the Society for US Intellectual History from 7:00-9:00 PM at the New School in New York City.  The schedule for the meeting is here.  H/t: JLG. 
  • SUNY at Buffalo has posted a nice profile of Samantha Barbas, professor of law, director of its Baldy Center for Law & Social Policy and a former LHB Guest Blogger!
  • Congratulations to Christopher Schmidt, Chicago-Kent College of Law, editor of Law and Social Inquiry, and another former LHB Guest Blogger upon his appointment as Research Professor at the American Bar Foundation.
  • The Robbins Collection & Research Center at Berkeley Law is convening an event on the "intellectual legacy of John T. Noonan." More information here.
  • Our friends at the Federal Judicial Center note that Supreme Court of the United States has posted a complete set of its Rules from 1803 onward.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 23, 2019

Vanderbilt Legal History Colloquium 2019-20 Schedule

The conveners of the Vanderbilt Legal History Colloquium have announced their speaker lineup for 2019-20:
Fall 2019

October 14, Brinkley Messick, Professor of Anthropology, Columbia University 

October 21, Rabia Belt, Associate Professor of Law, Stanford University 

November 11, Aimee Genell, Assistant Professor of History, University of Western Georgia

Spring 2020

February 3, Cosimo Cascione, Professor of Roman Law, University of Naples 

March 9, John Torpey, Presidential Professor of Sociology and History, the Graduate Center (CUNY)

March 16, Stuart Carroll, Professor of Early Modern History, York University  

Postema's "Bentham and the Common Law Tradition"

Gerald J. Postema, University of North Carolina, has published a second edition of his Bentham and the Common Law Tradition (Oxford University Press):
This work explores the relationship between Bentham’s utilitarian practical philosophy and his positivist jurisprudence. These theories appear to be in tension because his utilitarian commitment to the sovereignty of utility as a practical decision principles seems inconsistent with his positivist insistence on the sovereignty of the will of the lawmaker. Two themes emerge from the author’s attempt in this work to reconcile these two core elements of Bentham’s practical thought.

First, Bentham’s conception of law does not fit the conventional model of legal positivism. Bentham was not just a utilitarian and a positivist; he was a positivist by virtue of his commitment to a utilitarian understanding of the fundamental task of law. Moreover, his emphasis on the necessary publicity and the systematic character of law led him to insist on an essential role for utilitarian reasons in the regular public functioning of law.

Second, Bentham’s radical critique of common law theory and practice convinced him of the necessity to reconcile the need for certainty of law with an equally great need for its flexibility. He eventually developed a constitutional framework for adjudication in the shadow of codified law that accorded judges discretion to decide particular cases according to their best judgement of the balance of utilities, guaranteeing the accountability and appropriate motivation of judicial decision-making through institutional incentives.

The original text of this work, first published in 1986, remains largely unchanged, but an afterward reconsiders and revises some themes in response to criticism.
--Dan Ernst

Tyler on Judicial Review of Internment in the US and UK in WW2

Amanda L. Tyler, University of California, Berkeley, School of Law, has posted Courts and the Executive in Wartime: A Comparative Study of the American and British Approaches to the Internment of Citizens during World War II and Their Lessons for Today, which appears in the California Law Review 107 (2019): 789-866:
This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of citizens, and the manner in which British and American courts reviewed challenges brought by those detained during the war. Comparing the experiences of the two countries reveals that in both cases the courts deferred extensively to the political branches when it came to reviewing challenges to the wartime detention policies, essentially staking out roles that left them largely relegated to the sidelines of public debates over the propriety of internment policies. A comparison of the British and American experiences also reveals that, as the war continued, the two chief executives struck decidedly different positions as to the wisdom and lawfulness of detention policies directed at citizens. In the United States, Roosevelt ignored the legal advice of many of his key advisers regarding the unconstitutionality of the detention of Japanese American citizens and — again against the advice of his advisers — later delayed the closing of the internment camps until after the 1944 election. By contrast, Churchill — who operated in a different legal context that granted him greater powers than his American counterpart — came to view such policies as inconsistent with British constitutional tradition and became a crucial voice urging the termination of such detentions.

The Article then attempts to understand both why the two executives charted different courses on this issue as the war unfolded and whether there are any lessons to be drawn from these events with respect to how we should think about the separation of powers during wartime today. Focusing on the British experience during the war, Churchill’s change of course suggests that the executive can and sometimes will take the lead in declaring and protecting a country’s constitutional values without prodding by the courts, even in wartime, and even in the absence of legal compulsion. But as is explored in the pages that follow, the British experience may be a particularly British story and more generally one that differed in significant ways from the American story. This, in turn, calls into question just how much the British experience during the war should inform debates over the separation of powers in American constitutional law. The American experience during the war, moreover, proves a cautionary tale. Specifically, it reveals a series of failings on the part of the executive branch to acknowledge and engage with the facts on the ground and honor long-accepted constitutional traditions in formulating wartime policies. This example therefore suggests that the executive branch is ill equipped to self-regulate on this score in times of war. These failings in turn call into question the common practice of courts to defer extensively to the executive on matters of national security and more generally implicate fundamental questions about the judicial role in a constitutional democracy.

Although grounded in events that took place over seven decades ago, this study is undertaken for a very timely purpose. Once again, we live in a time in which the executive branch has argued that its decisions ostensibly predicated upon heightened concerns about national security should receive extensive, if not complete, deference from the Supreme Court. In addressing such arguments now and in the future, the Court would be wise to remember how judicial deference to executive branch assertions on matters of national security played out during World War II.

Steilen on Constitutional Change

Matthew J. Steilen, SUNY at Buffalo Law School, has posted The Constitutional Convention and Constitutional Change: A Revisionist History, which is forthcoming in the Lewis & Clark Law Review:
How do we change the federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes, and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

Nearly everyone would agree, however, that most constitutional change is not formal constitutional change under Article V, but informal change — change by interpreting the Constitution, altering the workings of government, or even changing political practices. Because courts, executive agencies, and political parties do not represent the people the way conventions do, these mechanisms are sometimes said to be anti-democratic or even illegitimate methods of change. Yet they are dominant nonetheless.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and legislatures to be used for amendment, and, as it happens, all but one of the twenty-seven amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actually use them to change the federal Constitution? Are we to conclude that most of the amendments are in some way defective?

To show why Article V might have permitted the use of legislatures to amend the Constitution, this paper examines a series of political texts on the convention, written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law.

This perspective helps to explain the rightful place of informal constitutional change in our system. The people can be represented by the institutions of government itself, and when they are, those institutions can claim an authority to alter the constitution. In this sense, the popular sovereignty described in McCulloch is dynamic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the constitution to better secure their property and liberty.

The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal academy for nearly 50 years. It focuses on the same key state — Pennsylvania — and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The paper emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change.
--Dan Ernst

Thursday, August 22, 2019

Heeren on Crimmigation in Prohibition-Era Chicago

Geoffrey Heeren, University of Iowa College of Law, has posted Crimmigration in Gangland: Race, Crime, and Removal During the Prohibition Era, which appeared in THE Ohio State Journal of Criminal Law 16 (2018): 65-101:
In 1926, local law enforcement and federal immigration authorities in Chicago pursued a deportation drive ostensibly directed at gang members. However, the operation largely took the form of indiscriminate raids on immigrant neighborhoods of the city. Crimmigration in Gangland describes the largely forgotten 1926 deportation drive in Chicago as a means to augment the origin story for “crimmigration.” Scholars up until now have mostly contended that the convergence of criminal and immigration law occurred in the 1980s as part of the War on Drugs, with crime serving as a proxy for race for policy makers unable to openly argue for racial exclusion of Latino immigrants in the post-civil rights era. Drawing on original archival research, this article traces those roots back much further, to the Prohibition Era of Gangland Chicago, when they arose in nascent form before being supplanted by the different enforcement dynamics of the Great Depression.

A close examination of the deportation drive of 1926 reveals that immigration enforcement at the time contained most of the elements that scholars today have identified when defining crimmigration: a popular preoccupation with “criminal aliens” and attribution of crime problems to them; local/federal collaboration in immigration enforcement; an increase in the criminal grounds for removal; an increase in the criminal prosecution of immigration issues; and an asymmetrical incorporation of criminal procedures into the world of immigration law.

Chicago-Bound Beer, Captured (LC)
These phenomena developed for some of the same reasons that crimmigration arose in a more monolithic form in the 1980s, and indeed, paved the way for it. The 1920s, like the 1980s, came on the heels of a massive surge in immigration as well as a shift in the demographics of immigration. Yet both were also periods of relative affluence, during which anti-immigration arguments needed to take a different tenor than the protectionist arguments that prevailed during periods of economic insecurity. Like the 1980s, the 1920s also followed on the heels of a “civil rights era”: the reconstruction period following the Civil War. Arguments that implicated race were couched in scientific terms during this era of scientific racism and eugenics. Adherents of scientific racism pursued a dubious quest to statistically establish that certain racial and ethnic groups, like Sicilians, had a greater propensity for crime. This principle justified not only limited immigration quotas for Southern and Eastern Europeans, but also deportation efforts like the 1926 raids that targeted Italian Americans, whose “whiteness” was in many ways contested at the time.

The 1980s War on Drugs paralleled the Prohibition Era in many ways. One was a return to the focus on crimmigration that developed during the 1920s. Crime served in the 1980s as an effective proxy for race because that linkage had been made so strongly during the earlier period.
--Dan Ernst

Rogers on the Origins of Quasi-Property

Alix Rogers, a fellow at Stanford Law’s Center for Law and Biosciences and the Stanford Program in Neuroscience and Society, as well as a PhD candidate at Cambridge University and a Yale Law JD,  has posted Unearthing the Origins of Quasi-Property Status, a paper she presented at the ASLH in 2018.  It is forthcoming in the Hastings Law Journal in 2020:
Under contemporary American law human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically associated with intellectual property given the Supreme Court decision of International News Services v. Associated Press. That human remains and bodily materials are classified as quasi-property is less well known. The confusion surrounding the quasi-property status of the dead has negative implications for current and future research, medicine and broader society. Litigation surrounding the treatment and status of those who died in the 9/11 World Trade Center attack hinged on quasi-property. Clearly resolving the quasi-property status of the dead is becoming increasingly important in the wake of biotechnological advances. In March 2018 a Y Combinator start-up, Nectome, promised to preserve, digitize and reanimate brains. The project is concerning for many reasons, but one major concern is the ambiguous status of the dead that the company will experiment upon and, ultimately, offer services to.

This paper explores the origins of quasi-property and investigates why American judges ascribed quasi-property status to human remains. The adoption of quasi-property status is notable because judges broke with hundreds of years of inherited common law, and forsook a legal tenant prescribed by Blackstone and Coke. Understanding its origins, therefore, has broader implications for our understanding of the development of American law. I show that the academic literature and case law have mistaken both the origin of, and reasoning behind quasi-property status. Scholars and judges cite a 1872 Rhode Island Supreme Court decision as the foundational case on quasi-property status of the dead. My research shows that, in fact, the first case occurred instead in Cleveland, Ohio a year earlier. Further, my analysis of this initial case, and surrounding socio-cultural context, reframes our understanding of the forces behind quasi-property status. The traditional account in the literature and case law of the emergence of quasi-property status points to America's lack of ecclesiastical courts, which historically had jurisdiction over cemeteries and burial in England. I argue that the existing explanation does not sufficiently account for the initial application, the dominance, or the persistence of the unique status of quasi-property by American courts. This paper advances a novel argument that socio-cultural changes forged in the maelstrom of the Civil War precipitated the initial use and later systematic adoption by American courts of quasi-property status for human remains. My discovery and re-examination of the subsequent rise of quasi-property at the turn of the nineteenth century has important implications for how contemporary courts should conceive of this deeply contested legal category.
--Dan Ernst

Wednesday, August 21, 2019

Dworkin Papers Opened

The Ronald Dworkin Papers are open at Yale University.  They "document Dworkin’s life and career as a law professor, author, and legal philosopher. Materials primarily document his professional career and activities, including his work as a professor at Yale University, Oxford University, and New York University, as well as his academic writing, focused on legal and political philosophy, and his popular writing on contemporary politics and the U.S. Supreme Court."  Pdf of the inventory is here.  H/t Scott Shapiro.

--Dan Ernst

Dudziak Prize for Digital Legal History

[We have the following announcement from the American Society for Legal History, for a new prize named for the founder of Legal History Blog!]

Mary L. Dudziak Digital Legal History Prize, awarded for excellence in digital legal history.  The amount of the award is $250.  The deadline is September 1, 2019.

The Dudziak Prize, named in honor of Mary L. Dudziak, a leading scholar of twentieth century U.S. legal history and international relations as well as a digital history pioneer, is awarded annually to an outstanding digital legal history project. These projects may take the form of either traditionally published peer reviewed scholarship or born-digital projects of equivalent depth and scope.

Preference will be given to projects that either (1) have a published component in 2018, (2) have gone live online in 2018, or (3) have implemented major updates or upgrades in 2018. The cover letter should highlight significant developments in the project during 2018.

Nominations or self-nominations for the Dudziak Prize should be submitted by September 1, 2019. They should include (1) a cover letter that explains the nature and significance of the work for the field of legal history; (2) the nominated work, including (if relevant) information about how to access the work online; and (3) a curriculum vitae of the author/creator (including e-mail address).

Click here to nominate a project.

Committee Members: David Tanenhaus (chair), University of Nevada, Las Vegas; Lauren Benton (ex officio, President-elect), Vanderbilt University; Deborah Dinner, Emory University School of Law, and Kellen Funk, Columbia Law School.

--Dan Ernst

Tuesday, August 20, 2019

A Symposium on James Wilson

The contributions to “The Life and Career of Justice James Wilson,” the Fourth Annual Salmon P. Chase Faculty Colloquium of the Georgetown Center for the Constitution, has been published in volume 17 of the Georgetown Journal of Law and Public Policy.  The first contribution is “James Wilson and the American Founding,” by William Ewald, who, in conjunction with the symposium, delivered the Fourth Annual Salmon P. Chase Distinguished Lecture at the U.S. Supreme Court, an event co-hosted by the Georgetown Center for the Constitution and the Supreme Court Historical Society.  The other contributions are Michael W. McConnell, “James Wilson's Contributions to the Construction of Article II”; Christopher S. Yoo, “James Wilson as the Architect of the American Presidency”; John Mikhail. “James Wilson, Early American Land Companies, and the Original Meaning of ‘Ex Post Facto Law’”; Maeva Marcus, “Wilson as a Justice”; Eric Nelson. “James Wilson and the Ancient Constitution”; and Danielle Allen and Emily Sneff, “Golden Letters: James Wilson, the Declaration of Independence, and the Sussex Declaration.”

--Dan Ernst

Barzun on Baude, Sachs, Hart and Dworkin

And for more on originalism, in the form of an engagement with two contributors to the LHR symposium, now comes Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin, by Charles L. Barzun, University of Virginia School of Law:
This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various criticisms I and others have made of the so-called “positive turn” in constitutional originalism. I argue that their replies still fail to address the core underlying problems plaguing their attempt to “ground” originalism in the legal positivism of H.L.A. Hart. In fact, their somewhat creative interpretation of Hart’s theory demonstrates even more clearly than did their earlier work that their true jurisprudential ally is the anti-positivist Ronald Dworkin.
--Dan Ernst

LHR 37:3: Originalism and Legal History

After Anat Rosenberg's article “Amongst the Most Desirable Reading”: Advertising and the Fetters of the Newspaper Press in Britain, c. 1848–1914, Law and History Review 37:3 (August 2019) is given over to the symposium, Originalism and Legal History: Rethinking the Special Relationship.  As the editor, Gautham Rao, explains,:
At its best, the dialogue between historians and orginalist theorists and practitioners has produced some fascinating ruminations on the possibility of textual determinacy and the transformation of legal and politician language from the eighteenth century to the present.  At its worst, the dialogue has devolved into an "interdisciplinary turf war" without an exit plan.
The principal contributions are:
Two Early Dutch Translations of the United States Constitution: Public Meaning in a Transnational Context, by Michael Douma

Interpreting Article II, Section 2: George Washington and the President's Powers, by Lindsay M. Chervinsky

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism, by Aaron R. Hall

Common Law Confrontations, by Bernadette Meyler

Originalism and the Academy in Exile, by Paul Baumgardner

Originalism and the Law of the Past, by William Baude and Stephen E. Sachs

Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning, by Saul Cornell

Method and Dialogue in History and Originalism, by Logan Everett Sawyer
The issue concludes with The Closing of the Constitution, Kevin Arlyck’s review essay on Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.

--Dan Ernst

Monday, August 19, 2019

Tani on Drawing on History to Study Administrative Constitutionalism

I've just posted a little article that has been in the works for several years and is now forthcoming in the University of Pennsylvania Law Review, as part of a symposium on administrative constitutionalism. Here's the abstract:
Research on administrative constitutionalism has generally come out of law schools, from scholars specializing in public law. A limitation of the existing scholarship is its relatively thin empirical foundation. Administrative constitutionalism is hard to see because much of what administrators do is hard to see, and because the significance of some administrative interpretations only becomes apparent over time. This article expands the archive, by alerting legal scholars to fine-grained historical research on Americans’ encounters with administrative agencies. This body of work—coming largely out of history departments—is particularly attentive to the experiences of marginalized and non-elite populations. And although the historians writing in this vein have not always emphasized the constitutional aspects of their stories, those aspects are there between the lines. By analyzing two examples—the Freedmen’s Bureau’s interpretation of the Thirteenth Amendment and immigration officials’ interpretation of the Fifth Amendment due process guarantee—this Article demonstrates what historians have to offer the study of administrative constitutionalism, both empirically and normatively. American history, this research reminds us, is about competing constitutional visions. Administrators helped pick winners and losers in an ongoing battle for formal legitimacy.
The full article, titled "Administrative Constitutionalism at the 'Borders of Belonging,'" is available here.

The full symposium will be out later this year, but you can find at least a few contributions now on SSRN, including Sophia Lee's and Greg Ablavsky's.

-- Karen Tani

LSA Immigration & Citizenship CRN award to Teeters

This year, the Law and Society Association's Collaborative Research Network on Immigration and Citizenship (CRN2) launched a new award for the best paper on migration or citizenship written by or presented by a graduate student at an LSA annual meeting. Lila Teeters, PhD candidate in History at the University of New Hampshire has been awarded the 2019 Best Graduate Student Paper on Citizenship and Immigration Award. Her paper is entitled, "Making Native Citizens: The Fight For and Against Native American Citizenship in the 20th Century." As described by the award committee chair, Rebecca Hamlin, University of Massachusetts, Amherst: 
It explores the life of an understudied piece of legislative history, a
1920 bill that was proposed in congress to make Native Americans U.S.
citizens. The paper does a masterful job of explaining the ways in which debates over this bill showcased many different points of view about the topic of whether and how to make Native Americans into American citizens. Crucially, the paper centers the voices of Native Americans who were often (but not always) vocally opposed to such legislation. The paper is extremely well-written and tightly argued, and will likely make a major contribution to the study of American citizenship when it is published. 
We will be watching for details on the 2020 competition and its deadline. 

Saturday, August 17, 2019

Weekend Roundup

  • Congratulations to Sarah Barringer Gordon and Kevin Waite, both of the University of Pennsylvania, on their award of a $242,000 collaborative research grant from the National Endowment for the Humanities. The grant will support a project titled "The Long Road to Freedom: Biddy Mason (1818–1891) and the Making of Black Los Angeles."
  • Writing for JOTWELLs Constitutional Law section, Ilya Somin has posted an admiring review of Maureen E. Brady's recent article on damagings clauses.
  • Harvard Law Today has a story on how students in Elizabeth Papp Kamali’s seminar, "Mind and Criminal Responsibility in the Anglo-American Tradition," use crime broadsides and other original sources in the Harvard Law School Library's Historical & Special Collections.
  • The Supreme Court Historical Society and production company Article III Films have announced the launch of the web documentary FDR and the Courtpacking Controversy.  “In late August the documentary will be sent to U.S. History teachers across the nation, accompanied by specially designed lesson plans to help students learn about the Courtpacking episode, which highlights important issues about separation of powers.”
  • 1619: The 400th anniversary of the start of African American slavery in what is now the United States of America is the subject of the 1619 Project of the New York Times Magazine and this timeline in The Guardian.  But the History Channel says it started earlier.
  • ICYMI: Immigration edition.  Erika Lee on the legal history of the new "public charge" regulation.  Also Kunal Parker, on NPRMother Jones thinks Acting Director of US Citizenship and Immigration Services Ken Cuccinelli’s ancestor might have been excluded under it.
  • Margaret O'Mara, the Howard & Frances Keller Professor of History at the University of Washington, will be delivering the keynote at the Policy History Conference in June 2020.  The PHC is currently accepting submissions of panels and papers.
  • Update: LHB blogger Mitra Sharafi's post for India's Independence Day (Aug.15) on how one law journal survived the partition of British India
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 16, 2019

Tushnet Replies to Shlaes and Blackman on Schechter

Mark Tushnet’s post last month on Balkinization on Justice Gorsuch’s reliance in the Gundy decision upon Amity Shlaes’s account of Schechter Poultry has prompted responses by Shlaes and Josh Blackman.  Tushnet replies in Epistemic Closure and the Schechter Case.

--Dan Ernst

JEV-Fellowship for European Administrative History

[We have the following announcement of a research fellowship in the field of European Administrative History.]

JEV-Fellowship for European Administrative History

At the end of 2012 Prof. Dr. Erk Volkmar Heyen, who served as Professor of Public Law and European Administrative History at the Ernst-Moritz-Arndt University of Greifswald until his retirement and as editor of the "Jahrbuch für europäische Verwaltungsgeschichte/Yearbook of European Administrative History" (JEV), which ran from 1989 to 2008, endowed a research fellowship in the field of European Administrative History ("The JEV-Fellowship for European Administrative History"). The fellowship falls within the framework of the German University Foundation (Bonn, Germany).

The scholarship is intended to benefit the next generation of scientific researchers, particularly doctoral and post-doctoral students, to enable them to complete their research project in as brief a period as possible, ordinarily up to a maximum of 6 months. The scholarship is based on the usual rates for doctoral fellowships of the German Research Foundation (DFG). Should a fellowship be awarded to a researcher outside Germany, local scholarship rates will be taken into consideration. Marital status will not be taken into account, nor will travel or overhead costs be reimbursed.

The Board of the German University Foundation awards the fellowship based on the recommendation of a jury, which is based at the Max Planck Institute for European Legal History (MPI) in Frankfurt.

Early stage researchers from Germany and abroad are invited to apply. In accordance with the thematic and methodological spectrum covered by the JEV, the scholarship is open to all historical disciplines, provided the research project addresses an aspect of European administrative history or history of administrative law from the sixteenth to the twentieth century. The relevance of the research topic should not be restricted to a particular national context. Comparative research questions are particularly welcome.

Applications for a scholarship commencing in January 2020 can be submitted until 30 September 2019. Applications in English or German should be sent in electronic form to: Priv.-Doz. Dr. Peter Collin, The application, which must also indicate  the intended duration of the fellowship, should include: a tabular CV with details on the nature and course university education with copies of examination results and diplomas to be enclosed, a list of scientific publications, where applicable; a detailed description of the research project including a detailed outline, a detailed report on the current state of the project and writing progress, including the reasons for any delay in its completion; extensive excerpts from the manuscript; information on the project's previous,  current and planned financing arrangements; a precise timetable to complete the manuscript within the duration of the fellowship. Furthermore, at least one expert opinion on the research project and a personal reference from a university lecturer are to be submitted directly to the jury.

The MPI provides fellowship recipients with the opportunity to work in its library. Fellows are given the opportunity to present and discuss their research projects with members of the Institute. Upon expiration of the fellowship, the recipient is to submit a report on the status of the manuscript. The MPI provides for the publication of the manuscript in one of its book series, assuming it meets internal and scientific standards. The book is to acknowledge the support provided by the "JEV-Fellowship for European Administrative History" in the masthead or in the preface.

--Dan Ernst

Spaces of Roman Constitutionalism

[We have the following announcement.]

Spaces of Roman Constitutionalism.  26-28 September 2019.  University of Helsinki

From the fora to the assemblies and beyond, public space in ancient Rome was both political and contested, reflecting changing notions of community, citizenship and the values and norms behind them. The purpose of this conference is to explore the political, cultural and legal notions of public space and public realm in Rome. By observing the place of magistrates in the public spaces of Rome and more generally in the ideas behind Republican governance, it seeks to question and unpack the notions that have been built into the concept of Roman republican governance. On one hand we have the notion of Republicanism and public law, which has a rich history of modernizing interpretations and reuses in European history. On the other, there is the equally rich tradition of rituals, ceremonies, religious convictions and beliefs that surround the practices of governance. By examining the spacial aspect, how these were situated and interlinked and how public and private spaces and roles intermingled, we are hoping to shed new light into cultural and social dimension of Roman republicanism and its transformation from the Republic to the Principate. By setting ideas into their dynamic spatial, social and cultural contexts, we hope to subvert the traditional story of Roman constitutionalism.

Keynote speakers of the conference are Harriet Flower (Princeton), Karl-Joachim Hölkeskamp (Cologne), Catherine Steel (Glasgow), and Clifford Ando (Chicago).

The conference is open to all and there is no registration required.  For more information and the programme, please visit [here].

--Dan Ernst

Using fiction to teach legal history

Do you include fiction on your legal history syllabi? This summer, we asked many of you what novels, short stories, plays, and other kinds of fiction you use to teach legal history (H/t: LSA Law & History CRN and Twitter). This is a sequel of sorts to our posts on using film to teach legal history in summer 2017 (here and here).
No Longer at Ease 0 9780385474559 0385474555
Here are the responses (lightly edited for readability). 

Happy reading, everyone!
  • Denise Arista on indigenous legal history: Some indigenous futurism or post apocalyptic Sci-fi which suggest the resurgence of "non-normative" extra Euro-American legal regimes may be a good place to teach. Some of us work in the intersection of colonial and indigenous customary law and language, these things though rich, are rarely focused upon. 
    • Begin perhaps with the collection Walking the Clouds look at the work of Grace Dillon (Anishinaabe) The work of Professor Aaron Mills who is working in Anishinaabe Constitutionalism at McGill University may be an interesting pairing. 
    • Rebecca Roanhorse? Look at the work being done on the interface between humans and AI. We wrote an essay, not explicitly about law but on indigenous AI, for a collection "Making Kin With the Machines," forthcoming, MIT press
    • Indigenous people are having everywhere to deal with issues of climate change, especially in the Pacific, the central US and Canada. So questions of territoriality, customary law and practice, and environmental justice need to be addressed, as well as the nuclear Pacific Issues in Micronesia, and Tahiti. In many of these places the "evidence" is in our customary chants and knowledge----not precedent. 
    • The work of John Scalzi on Disability law and futures, start your searches on international law and Sci-fi, or law and Sci-fi. The work of Octavia Butler and obviously Margaret Atwood. 
    • If you want to go a different route look at video gaming and indigenous futurity. And coming soon, AR/VR. Also: questions of IP and cultural appropriation. 
  • Evelyn Atkinson: I really like to use "A Jury of Her Peers" by Susan Glaspell when I'm teaching about women's exclusion from the legal system (I got the idea from Amy Dru Stanley who uses it in her legal history class).  It's a murder mystery where the two female characters figure out at the end why a wife killed her husband (domestic abuse) based on little clues around her house, while the male sheriff can't figure it out.  It's short and a really engaging read (there's also a play and a very slow movie from the 1970's).
  • Pat Bell: for History of American Legal Education: The Paper Chase
  • Peter Candy (@Pete_Candy): On the Augustan marriage legislation, I've used Graves' 'I, Claudius'. Adds a bit of lightness and comedy before getting down to the law.
  • @cszabla: I haven't taught it but one that comes to mind re colonial legal history is Achebe's "No Longer at Ease," which involves a Nigerian getting a legal education in Britain that he then gets arrested for taking bribes to pay for when he becomes part of the colonial civil service.
Lots more after the jump: