Thursday, October 31, 2019

Thank you, Fahad Bishara!

We are happy to have had Professor Fahad Bishara (University of Virginia) join us as guest blogger in October 2019. Here is a list of his posts all in one place, for your convenience:
Thank you for sharing your thoughts on everything from course design to oceanic legal histories, Prof. Bishara!

--Mitra Sharafi

WLH 30:1-2: Woman Suffrage in the US West

Western Legal History 30:1-2 (2019), is a symposium issue on woman suffrage in the American West, with an overview, “How the Woman’s Vote was Won in the West,” by Rebecca  J.  Mead and contributions on Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, and Wyoming.  Also: book reviews.  The issue is available here.

–Dan Ernst

Judge Thomas A. Flannery (1918-2007)

[The Historical Society of the District of Columbia Circuit has an excellent collection of oral histories of lawyers and judges active in the circuit.  Recently, it has asked interviewers to revisit their oral histories and prepare summaries for the Society’s website.  I've already posted one for Bernard I. Nordlinger.  Here is one for Thomas A. Flannery (1918- 2007), who was so admired by the bench and bar of the District of Columbia Circuit that they endowed a lecture series in his honor.  (The latest will be delivered on Wednesday, November 6, by Judge Paul L. Friedman, with remarks from Jessie K. Liu, the U.S. Attorney for the District of Columbia.  The oral history itself is here.]

Thomas A. Flannery (DCCHS)
In the United States, “the bar” is quite properly taken to be synonymous with the “legal profession,” but a narrower meaning of the term, a close-knit group of lawyers who forged their professional identity in the crucible of the courts, better fits the life and career of Thomas Aquinas Flannery.  He was born in 1918 in the “Swampoodle” neighborhood, home to the District of Columbia’s Irish community.  His father, a carpenter, was the son of an immigrant; the ancestors of his mother, who looked after their five children, arrived in the United States a generation earlier.  The family’s financial condition, while never good, was precarious after his father became too sick to work.  From the age of sixteen, Flannery took one job or another, but he was also a good enough student at Gonzaga High School to earn an academic scholarship and contemplate attending Georgetown College.  The family’s finances dictated that he obtain a career more quickly, and so instead he attended night law school at Catholic University, which did not then require an undergraduate degree.

In this, Flannery followed Edward Matthew Curran, fifteen years his senior, who shared his May 10 birthday, married a cousin close to his family, and became a judge of the Police Court while Flannery was in high school.  (Curran would later serve as U.S. Attorney and Judge and Chief Judge of the United States District Court for the District of Columbia.)  After receiving his law degree and passing the bar in 1940, he worked briefly as a clerk in the Treasury Department before serving as a combat intelligence officer in the Army Air Force during World War II.

Both he and Washington had changed upon his return.  Command responsibility had matured Flannery, and the District of Columbia was much more cosmopolitan than it had been in his youth.  For several years he took what law jobs he could find, in the Lands Division of the Department of Justice and with several small firms.  Then came the turning point of his legal career: with Curran’s help, he landed a job in the U.S. Attorney’s office.  He spent nine of the next ten years in the criminal division, closely supervised by its chief, inspired by two senior trial lawyers, and, on occasion, instructed by the bench.  Decades later, he still recalled Alexander Holtzoff’s rebuke in court for an evidentiary gaffe and advice on cross-examination more genially imparted in chambers.

A year in the civil division prepared him for a stint at a leading local firm, but he never lost interest in criminal law.  On behalf of the Board of Trade, he testified in favor of stricter enforcement of stronger criminal laws.  He also opposed the Durham rule on insanity.  John Mitchell, Richard Nixon’s Attorney General, took notice and appointed him U.S. Attorney.  He thoroughly reorganized the office, shifting its focus from street crimes to white-collar offenses and complicated drug conspiracies, recruiting an unusually talented staff, and pairing juniors with more experienced seniors to create what he termed “a great training program for assistants.”

Flannery expected to be named to the U.S. District Court eventually, but when, a year and a half after his appointment, a vacancy occurred, someone else filled it.  Evidently, the bench took notice.  Before Judge Leonard Walsh announced his retirement, he gave Flannery advance notice so that he could get to Deputy Attorney General Richard Kleindienst before he was beset by others with candidates for the judgeship.  By now a resident of Montgomery County, Maryland, Flannery faced some opposition from the District of Columbia Democrats (who wanted one of their number appointed) and his home state senator (who had his own candidate), but after a few months’ delay, the Senate confirmed him in December 1971.

Judge Flannery claimed not to have a judicial philosophy.  As he showed when he enjoined the Department of Health and Human Services from enforcing a regulation requiring parental notification before adolescents could obtain contraceptives, he would not let even the firmly held values acquired during his Jesuit education stop him from following the law as laid down by higher courts.  He emulated the judges he admired most from his own days as a lawyer, including Richmond B. Keech, Edward Allen Tamm, and Luther W. Youngdahl.   “Not in a mean way,” he explained, “but in a firm way,” they took control of their courtrooms and conducted trials as fairly as possible.  He thought that criminal laws should be strictly enforced and also that the constitutional rights of defendants should be strictly defended.  Appeals from administrative agencies challenged him at first, until he realized that they just required more time and preparation and then came down to a judgment call.  In such cases, he said, “I did what I thought was right.”  The rest of his docket he took in stride.  “I had worked before judges so many years and had tried so many cases that there were no real surprises.”  He assumed senior status in 1985 and died in 2007.

--Dan Ernst

Wednesday, October 30, 2019

Gerber on US Competition Policy, Viewed from Abroad

David J. Gerber, Chicago-Kent College of Law, has posted a pre-publication draft of Prisms of Distance and Power: Viewing the U.S. Regulatory Tradition, which is forthcoming in the Winter 2019 issue of Business History Review:
Distorted images of American regulatory ideas and practices frame foreign responses to these practices as well as foreign views of the economic policies of the United States. US power both embeds and contributes to these distorted images. This article highlights the evolution of these distortions and the ways in which business history has intertwined with legal and political history throughout the evolution, It focuses on a specific area of regulation – antitrust or competition law – in order to ground the more general discussion. The article provides insights into the relationship between cognitive distance and power and into its pernicious effects on transnational discussions and decisions involving competition law.
--Dan Ernst

Farahat on Islamic Jurisprudence

Omar Farahat, McGill University has published The Foundation of Norms in Islamic Jurisprudence and Theology with Cambridge University Press. From the publisher:
The Foundation of Norms in Islamic Jurisprudence and TheologyIn this book, Omar Farahat presents a new way of understanding the work of classical Islamic theologians and legal theorists who maintained that divine revelation is necessary for the knowledge of the norms and values of human actions. Through a reconstruction of classical Ashʿarī-Muʿtazilī debates on the nature and implications of divine speech, Farahat argues that the Ashʿarī attachment to revelation was not a purely traditionalist position. Rather, it was a rational philosophical commitment emerging from debates in epistemology and theology. He further argues that the particularity of this model makes its distinctive features helpful for contemporary scholars who defend a form of divine command theory. Farahat's volume thus constitutes a new reading of the issue of reason and revelation in Islam and breaks new ground in Islamic theology, law and ethics.
Further information is available here.

--Mitra Sharafi

Tuesday, October 29, 2019

Muller on the Wounding of Japanese American Loyalty

Eric L. Muller, University of North Carolina School of Law, has posted The War Relocation Authority and the Wounding of Japanese American Loyalty, which appeared in volume 86 of Social Research (Fall 2019):
Manzanar Relocation Center (LC)
Loyalty and disloyalty were central concepts in the wartime imprisonment of Japanese Americans. A presumption of disloyalty landed Japanese Americans in concentration camps and then an inquest into loyalty and disloyalty determined who would be granted permission to depart from camp and who would be driven into a deeper incarceration called “segregation.” This article narrates the story of a single man’s shattering experience with the government’s mechanism for loyalty screening. It illustrates the incoherence of a security program built around loyalty, the blindness of those who administered it, and its devastating impact on Japanese Americans’ lives. 
--Dan Ernst

Monday, October 28, 2019

Morieux on 18th-century prisoners

Due out in November 2019 by Renaud Morieux, University of Cambridge is The Society of Prisoners: Anglo-French Wars and Incarceration in the Eighteenth Century with Oxford University Press. From the publisher:
Cover for 

The Society of Prisoners

In the eighteenth century, as wars between Britain, France, and their allies raged across the world, hundreds of thousands of people were captured, detained, or exchanged. They were shipped across oceans, marched across continents, or held in an indeterminate limbo. The Society of Prisoners challenges us to rethink the paradoxes of the prisoner of war, defined at once as an enemy and as a fellow human being whose life must be spared. Amidst the emergence of new codifications of international law, the practical distinctions between a prisoner of war, a hostage, a criminal, and a slave were not always clear-cut. Renaud Morieux's vivid and lucid account uses war captivity as a point of departure, investigating how the state transformed itself at war, and how whole societies experienced international conflicts. The detention of foreigners on home soil created the conditions for multifaceted exchanges with the host populations, involving prison guards, priests, pedlars, and philanthropists. Thus, while the imprisonment of enemies signals the extension of Anglo-French rivalry throughout the world, the mass incarceration of foreign soldiers and sailors also illustrates the persistence of non-conflictual relations amidst war. Taking the reader beyond Britain and France, as far as the West Indies and St Helena, this story resonates in our own time, questioning the dividing line between war and peace, and forcing us to confront the untenable situations in which the status of the enemy is left to the whim of the captor.
Table of Contents after the jump:

Sunday, October 27, 2019

ASLH Pre-Registration, Hotel Rooms, and Preconferences

David Tanenhaus, the Treasurer of the American Society for Legal History, writes:
Pre-registration for the ASLH 2019 annual meeting in Boston closes on October 31. There are still a few rooms available at the conference rate ($179) in our block at the Boston Park Plaza Hotel.  The hotel, however, is only holding these rooms until October 31. The ASLH website includes the link for preregistration [here]. 
There are also still free tickets available for the African Legal History Symposium and the Symposium on Legal History and the Persistent Power of Local and State Governments.

If you are having difficulties either registering or booking a room, please contact ASLH Treasurer David Tanenhaus (
--Dan Ernst

Saturday, October 26, 2019

Weekend Roundup

  • The University of Kentucky College of Law is hosting this year’s Kentucky Law Journal Symposium, “Written in Stone: American Monuments and Monument-Protection Law,” on November 1.  More
  • The Franklin D. Roosevelt Presidential Library and Museum presents an exclusive pre-broadcast film screening and discussion of a new national public television documentary Summoned: Frances Perkins and the General Welfare, on Sunday, November 3, 2019 at 2:00 p.m.
   Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, October 25, 2019

Lemberg on How American Power and Free-Flow Policies Shaped Global Media

Columbia University Press has published Barriers Down: How American Power and Free-Flow Policies Shaped Global Media, by Diana Lemberg (Lingnan University, Hong Kong). A description from the Press:
Freedom of information is a principle commonly associated with the United States’ First Amendment traditions or digital-era technology boosters. Barriers Down reveals its unexpected origins in political, economic, and cultural battles over analog media in the mid-twentieth century. Diana Lemberg traces how the United States shaped media around the world after 1945 under the banner of the “free flow of information,” showing how the push for global media access acted as a vehicle for American power.

Barriers Down considers debates over civil liberties and censorship in Nazi Germany, the Soviet Union, and elsewhere alongside Americans’ efforts to circumvent foreign regulatory systems in the quest to expand markets and bring their ideas to new publics. Lemberg shows how in the decades following the Second World War American free-flow policies reshaped the world’s information landscape, though not always as intended. Through burgeoning information diplomacy and development aid, Washington diffused new media ranging from television and satellite broadcasting to global English. But these actions also spurred overseas actors to articulate alternative understandings of information freedom and of how information flows might be regulated. Bridging the historiographies of the United States in the world, human rights, decolonization and development, and media and technology, Barriers Down excavates the analog roots of digital-age debates over the politics and ethics of transnational information flows.
Excerpts from advance reviews:
Barriers Down refutes the cliché that "information wants to be free." Instead, Lemberg details how the notion of barrier-free flow of information was contested in the late twentieth century and how a group of predominantly American diplomats, business leaders, and scholars secured its freedom. It is both timely and historically wise. David Engerman
Historians of U.S. global power have been curiously disinterested in the history of the media. In this wide-ranging and thought-provoking book, Diana Lemberg steps into the breach, reminding us just how many intellectuals, politicians, and diplomats spent the Cold War arguing about the future of global communications. Sam Lebovic
More information is available here. Professor Lemberg has published a related article here, at Foreign Affairs.

Law and Society in England, 1750-1950

The second edition of Law and Society in England 1750-1950, by William Cornish, Stephen Banks, Charles Mitchell, Paul Mitchell, and Rebecca Probert (Hart) is available now for preorder.
Law and Society in England 1750–1950 is an indispensable text for those wishing to study English legal history and to understand the foundations of the modern British state. In this new updated edition the authors explore the complex relationship between legal and social change. They consider the ways in which those in power themselves imagined and initiated reform and the ways in which they were obliged to respond to demands for change from outside the legal and political classes.

What emerges is a lively and critical account of the evolution of modern rights and expectations, and an engaging study of the formation of contemporary social, administrative and legal institutions and ideas, and the road that was travelled to create them.

The book is divided into eight chapters: Institutions and Ideas; Land; Commerce and Industry; Labour Relations; The Family; Poverty and Education; Accidents; and Crime.
This extensively referenced analysis of modern social and legal history will be invaluable to students and teachers of English law, political science, and social history.
TOC after the jump:

Thursday, October 24, 2019

HLS Special Collections during ASLH

The Historical And Special Collections Department at the Harvard Law School is extending its hours, to 9-6, during the annual meeting of the American Society for Legal History.  For more information please contact here.

--Dan Ernst

Friedman's "History of American Law," 4th ed.

Lawrence M. Friedman, Stanford Law, has published a forth edition of A History of American Law (Oxford University Press):
Renowned legal historian Lawrence Friedman presents an accessible and authoritative history of American law from the colonial era to the present day. This fully revised fourth edition incorporates the latest research to bring this classic work into the twenty-first century. In addition to looking closely at timely issues like race relations, the book covers the changing configurations of commercial law, criminal law, family law, and the law of property. Friedman furthermore interrogates the vicissitudes of the legal profession and legal education. The underlying theory of this eminently readable book is that the law is the product of society. In this way, we can view the history of the legal system through a sociological prism as it has evolved over the years
TOC after the jump.

Wednesday, October 23, 2019

Baude and Sachs on the 11th Amendment

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, have posted The Misunderstood Eleventh Amendment:
The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same — whether by reading broad principles into its precise words, or by treating the written Amendment as merely an illustration of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits brought against states, in law or equity, by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It cannot be waived. It cannot be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism, and sometimes leading the Court badly off track. A better understanding of the Amendment’s text lets us correct these errors and respect the unwritten principles that the Amendment left in place.
--Dan Ernst

Tuesday, October 22, 2019

Law and Economic Life in the Islamic World: A Teaching Post

For this post, instead of giving reflections on research or on writing in Indian Ocean legal history, I thought I’d write about something lots of us do and talk about: teaching. It is, after all, that time in the semester, isn’t it? I mean, is it ever not that time in the semester? Okay, truthfully, it’s not that time in the semester for me – I’m on sabbatical. But it would probably normally be that time of the semester!

Seeing as it could be “that time” of “the semester,” I thought I’d share some thoughts about a course I designed a couple of years ago that has now made it into my regular rotation at UVA; a course I call “The Economic History of the Islamic World to c. 1800.” The challenge in designing this particular course was that for most of Muslim history, the materials historians rely on to write economic history – that is, data – is not readily available (if at all). The difficulty is only compounded by the fact that the economic history of the Islamic world is not considered a particularly vibrant field of scholarship. The tendency has been to focus primarily on intellectual history, and to a lesser extent on imperial and social history.

Why am I telling readers of LHB this? It’s because really, I wasn’t interested in putting together a traditional economic history course anyway. Although I self-identify as a historian of economic life, my approach to thinking about these issues bears the imprint of my reading and writing in legal history. What I wanted, then, was to teach a course that thinks about the economic history of the Islamic world through the prism of law: to tell an economic history that is qualitative rather than quantitative, and to take law seriously as a component of economic life in the region. The goal was in part to get students to appreciate (and hopefully engage with!) the range of different legal materials there are for telling the history of production, exchange, consumption, taxation, etc. in the Islamic world. The other goal, though – and for many of my students, the principal outcome – was to get them to more fully embrace (and also engage with!) the link between law and economic life, in and beyond the Islamic world.

Kastenberg's "Campaign to Impeach William O. Douglas"

Out this month from: The Campaign to Impeach Justice William O. Douglas: Nixon, Vietnam, and the Conservative Attack on Judicial Independence  (University Press of Kansas), by Joshua E. Kastenberg, University of New Mexico School of Law:
The politics of division and distraction, conservatives’ claims of liberalism’s dangers, the wisdom of amoral foreign policy, a partisan challenge to a Supreme Court justice, and threats to the constitutionally mandated balance between the three branches of government: however of the moment these matters might seem, they are clearly presaged in events chronicled by Joshua E. Kastenberg in this book, the first in-depth account of a campaign to impeach Supreme Court justice William O. Douglas nearly fifty years ago.

On April 15, 1970, at President Richard Nixon’s behest, Republican House Minority Leader Gerald Ford brazenly called for the impeachment of Douglas, the nation’s leading liberal judge—and the House Judiciary Committee responded with a six-month investigation, while the Senate awaited a potential trial that never occurred. Ford’s actions against Douglas mirrored the anger that millions of Americans, then as now, harbored toward changing social, economic, and moral norms, and a federal government seemingly unconcerned with the lives of everyday working white Americans. Those actions also reflected, as this book reveals, what came to be known as the Republicans’ “southern strategy,” a cynical attempt to exploit the hostility of white southern voters toward the civil rights movement. Kastenberg describes the political actors, ambitions, alliances, and maneuvers behind the move to impeach Douglas—including the Nixon administration’s vain hope of deflecting attention from a surprisingly unpopular invasion of Cambodia—and follows the ill-advised effort to its ignominious conclusion, with consequences that resonate to this day.

Marking a turning point in American politics, The Campaign to Impeach Justice William O. Douglas is a sobering, cautionary tale, a critical chapter in the history of constitutional malfeasance, and a reminder of the importance of judicial independence in a politically polarized age.
Here are some endorsements:

 “This richly detailed history explores fascinating questions of judicial ethics, impeachment, and racial politics. Its deep-dive account of Gerald Ford and Richard Nixon’s alliance to impeach William O. Douglas could not be more timely.”
    —Noah Feldman, author of Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices

    “After his ‘Wild Bill’ decade in the 1960s, Justice William O. Douglas had every reason to fear being impeached in 1970, especially when Republican minority leader Gerald R. Ford, at the behest of the Nixon administration, argued that ‘high crimes and misdemeanors’ should be ‘whatever a majority of the House of Representatives considers [them] to be at a moment in history.’ Joshua E. Kastenberg’s exhaustive review of the unpublished congressional and Supreme Court documents unlocks the mystery of how Douglas survived the most serious threat to American judicial independence since the 1804 impeachment of Justice Samuel Chase. This book’s thorough analysis of the politics of the impeachment process makes it truly instructive for our times.”
    —Bruce Allen Murphy, author of Wild Bill: The Legend and Life of William O. Douglas

Monday, October 21, 2019

Historians' Brief on the 1866 Civil Rights Act

We’re grateful to learn of a legal historians' brief in Comcast Corporation, Petitioner v. National Association of African American-Owned Media (18-1171), which is pending in the U.S Supreme Court.  Erwin Chemerinsky is to argue for the respondents on November 13.

The brief argues that 42 U.S. C. Sec. 1981, surviving section of the 1866 Civil Rights Act promised broad federal protection of civil rights and ought not be read to require proof of “but for” discrimination, as several circuit courts of appeals have held.

The signers whose names appear on the printed brief are William M. Carter, Jr., Professor of Law and John E. Murray Faculty Scholar, University of Pittsburgh School of Law; Mark Graber, University System of Maryland Regents Professor; Ariela J. Gross, John B. and Alice R. Sharp Professor of Law and History, niversity of Southern California Gould School of Law; Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus, Princeton University; Maria L. Ontiveros,  Professor of Law, the University of San Francisco; George Rutherglen, the John Barbee Minor Distinguished Professor, the University of Virginia School of Law; Joseph William Singer, the Bussey Professor of Law, the Harvard Law School; Aviam Soifer, Dean and Professor of Law, the University of Hawai‘i, William S. Richardson School of Law; Alexander Tsesis, the Raymond & Mary Simon Chair in Constitutional Law and Professor of Law, Loyola University School of Law, Chicago; Michael Vorenberg, Associate Professor of History, Brown University; William M. Wiecek, the Congdon Professor of Public Law, Emeritus, Syracuse University College of Law; Rebecca E. Zietlow, Visiting Professor, University of Wisconsin Law School, 2019-2020, and the Charles W. Fornoff Professor of Law and Values, University at Toledo College of Law.  Lea VanderVelde, Josephine Witte Professor of Law, University of Iowa College of Law, also signed, although her name was inadvertently left off the printed brief.

--Dan Ernst

CFP: Constituting Boundaries

[We share the following announcement. The deadline is Nov.17, 2019. H/t: H-Empire.]

Call for Papers

Constituting Boundaries: Identities, Polities, and Colonial and Postcolonial Constitution-making, 1776-2019

Monday 20th and Tuesday 21st April 2020

Pembroke College, Oxford

In their function as frames of government, constitutions draw boundaries of belonging. The act of making a constitution makes a claim for the existence of a political community, and their texts define the terms of citizenship and of political participation in that community, including and excluding individuals based on race, gender, sexuality, disability, class, and religion.

After 1776, the rebellious states of British North America strove to create ‘government[s] of laws, not of men.’ To achieve their goal, they composed new systems of government on paper, culminating in the creation of the US Constitution in 1787. Countless other nations and empires have followed suit. Constitution-making — successful or otherwise — is a common feature of moments of social and political upheaval in modern global history. Some constitution-makers have eradicated slavery, thrown off empire, and legislated for social justice, as in Haiti in 1805, the Cherokee Nation in 1827, India in 1950 and South Africa in 1996. Others have consolidated imperial dominion and codified racial discrimination and exploitation, as in the settler nations of the United States, Canada, Australia, New Zealand, and Rhodesia.

With the support of TORCH | The Oxford Research Centre in the Humanities, the Andrew W. Mellon Foundation, the Global History of Capitalism Project, and the Quill Project at Pembroke College, this interdisciplinary conference will bring together scholars with a common interest in the process and effects of constitution-making in colonial and postcolonial polities across the world since the American Revolution. The principal focus of discussion will be on the intersection between constitution-making and identity formation.

More after the jump: 

Sunday, October 20, 2019

Treanor on Gouverneur Morris, Dishonest Scrivener

William Treanor, Dean of the Georgetown Law, was installed as the Paul Regis Dean Leadership Chair last Wednesday, after an introduction by Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit.  A recording of the event, including Dean Treanor’s address, “The Case of the Dishonest Scrivener: Gouverneur Morris,” is here.

--Dan Ernst

Saturday, October 19, 2019

Weekend Roundup

  • The Legal History Society of Nigeria has held its first  conference, “Does Legal History Matter?”  More.  
  • William Herbert Johnson, the first African American graduate of Syracuse Law, to be posthumously admitted to the New York State Bar.  More.
  • "A new project is digitizing [US Supreme Court] justices’ behind-the-scenes scribbles, allowing the public a view as the nation’s most powerful jurists decided landmarks of American law" (WSJ).
  • The Akron Beacon Journal revisits the debate from 1946 between Erwin D. Canham, editor of the Christian Science Monitor, and Morris Ernst on the question “Is the American Press Really Free?”
  • Habermas at 90, a conference at Boston College without Habermas (but with Frank Michelman), on Monday, October 21.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, October 18, 2019

Altehenger on "Popularizing Laws in the People’s Republic of China, 1949–1989"

We missed this one when it came out last year: Jennifer Altehenger, Legal Lessons: Popularizing Laws in the People’s Republic of China, 1949–1989 (Harvard University Press, 2018). Altehenger is Associate Professor of Chinese History at the University of Oxford. Here's a description from the Press:
The popularization of basic legal knowledge is an important and contested technique of state governance in China today. Its roots reach back to the early years of Chinese Communist Party rule. Legal Lessons tells the story of how the party-state attempted to mobilize ordinary citizens to learn laws during the early years of the Mao period (1949–1976) and in the decade after Mao’s death.

Examining case studies such as the dissemination of the 1950 Marriage Law and successive constitutions since 1954 in Beijing and Shanghai, Jennifer Altehenger traces the dissemination of legal knowledge at different levels of state and society. Archival records, internal publications, periodicals, advice manuals, memoirs, and colorful propaganda materials reveal how official attempts to determine and promote “correct” understanding of written laws intersected with people’s interpretations and practical experiences. They also show how diverse groups—including party-state leadership, legal experts, publishers, writers, artists, and local officials, along with ordinary people—helped to define the meaning of laws in China’s socialist society. Placing mass legal education and law propaganda at the center of analysis, Legal Lessons offers a new perspective on the sociocultural and political history of law in socialist China.
A few blurbs:
“A major scholarly accomplishment, Legal Lessons masterfully details how the Chinese state over forty years spread knowledge about law. By providing an extraordinarily deft portrayal of the deep internal conceptual and practical tensions that the party-state encountered in endeavoring to use law as a governing instrument, and the intricate ways in which China’s populace received and understood those messages, Altehenger shows that creating law for a new China was far more complex an undertaking than had previously been presumed.”—William Alford

Legal Lessons links the practice of legal education in the early PRC to the larger international project of socialist lawmaking, and raises new questions about the relationship between legal propaganda, legal ‘reform,’ and the quest for new kinds of legal polities in the late twentieth century and beyond. Altehenger’s masterful study provides a critical foundation for understanding the Chinese path to that contested condition we call rule of law.”—Madeleine Zelin
More information is available here.

-- Karen Tani

Stephens' Governing Islam

In 2018, Julia Stephens (Rutgers University) published Governing Islam: Law, Empire, and Secularism in Modern South Asia with Cambridge University Press. From the publisher: 
Governing IslamGoverning Islam traces the colonial roots of contemporary struggles between 
Islam and secularism in India, Pakistan, and Bangladesh. The book uncovers the paradoxical workings of colonial laws that promised to separate secular and religious spheres, but instead fostered their vexed entanglement. It shows how religious laws governing families became embroiled with secular laws governing markets, and how calls to protect religious liberties clashed with freedom of the press. By following these interactions, Stephens asks us to reconsider where law is and what it is. Her narrative weaves between state courts, Islamic fatwas on ritual performance, and intimate marital disputes to reveal how deeply law penetrates everyday life. In her hands, law also serves many masters - from British officials to Islamic jurists to aggrieved Muslim wives. The resulting study shows how the neglected field of Muslim law in South Asia is essential to understanding current crises in global secularism.
Praise for the book:
 "This book is nothing less than a landmark in its lucid, subtle, and persuasive arguments about the transformation of Islamic law in its encounter with colonial legal discourses and institutions. Basing herself on an archive of extraordinary breadth, Stephens revises old assumptions about Muslim law and about the consequences of colonial governance at every turn. This analysis of the past illuminates a present in urgent need of fresh understanding." -Barbara D. Metcalf
"Governing Islam is a masterful and compelling book that explores modern South Asia's Muslim legal history through ideas about religion, economy, gender, custom, colonialism, and socialism. Using primary sources in multiple languages, Julia Stephens reveals the many layers of law for Muslims. The result is simply superb - a fascinating portrait of vernacular, colonial, and post-colonial legal cultures, all intertwined and with plenty of intriguing twists." -Mitra Sharafi 

"A major work of scholarship that brings together the history of law, religion and family in British India to tell the story of South Asian secularism. Erudite and sophisticated in tone this is a much-needed monograph at a time when the idea of secular India faces its gravest threat." -Seema Alavi
Watch Prof. Stephens' 2015 interview on the book project on Yale's The MacMillan Report. 

Further information about the book is available here.

--posted by Mitra Sharafi

Thursday, October 17, 2019

Boston University Seeks Assistant Professor of International Law & Organization

We have word of a law-related job opening at Boston University. Historians are encouraged to apply:
The Pardee School of Global Studies at Boston University invites applications for a tenure-track Assistant Professor position in the study of International Law & International Organization beginning July 1, 2020, subject to budget approval. We seek applicants who focus on the impact and uses of international law in any functional areas, including (but not restricted to) human rights, development, diplomacy, security, global environment, international trade and finance, and international organization. We welcome applications from scholars in any relevant discipline, including law, political science, sociology, history, and international relations, and are open to all methodological approaches and regional specializations. Successful candidates would be expected to have completed a Ph.D. by August 15, 2020. The Pardee School of Global Studies is committed to multidisciplinary, policy-relevant research and teaching. Candidates who have demonstrated policy experience are especially encouraged to apply.
More information is available here.

-- Karen Tani

Echevarria, Monferrer-Sala, Tolan and friends on law and religious minorities

We missed this one back in 2017: A. Echevarria (Universidad Nacional de Educación a Distancia, Madrid), J. P. Monferrer-Sala (Universidad de Córdoba), and J. V. Tolan (Université de Nantes) have co-edited Law and Religious Minorities in Medieval Societies: Between Theory and Praxis with Brepols Publishers. From the press:

This volume shows through the use of legal sources that law was used to try to erect boundaries between communities in order to regulate or restrict interaction between the faithful and the non-faithful; and at the same time shows how these boundaries were repeatedly transgressed and negotiated.
Muslim law developed a clear legal cadre for dhimmīs, inferior but protected non-Muslim communities (in particular Jews and Christians) and Roman Canon law decreed a similar status for Jewish and Muslim communities in Europe. Yet the theoretical hierarchies between faithful and infidel were constantly brought into question in the daily interactions between men and women of different faiths in streets, markets, bath-houses, law courts, etc. The twelve essays in this volume explore these tensions and attempts to resolve them. These contributions show that law was used to try to erect boundaries between communities in order to regulate or restrict interaction between the faithful and the non-faithful — and at the same time how these boundaries were repeatedly transgressed and negotiated.
Table of Contents after the jump:

Tuesday, October 15, 2019

Schuler on Pittsburgh lawyers

Ron Schuler has published The Steel Bar: Pittsburgh Lawyers and the Making of America with Marquez Press. From the press: 
The Steel Bar: Pittsburgh Lawyers and the Making of America examines Pittsburgh’s part in the development of American democratic and commercial institutions and how its lawyers helped to shape American history in significant ways. During Pittsburgh’s earliest days, Pittsburgh lawyers, living as outsiders on the frontier of America, were actively defining the limits of political dissent in the young Republic. By 1902, however, Pittsburgh lawyers occupied top spots in all three branches of government at the same time: as U.S. attorney general and solicitor general, as a justice on the U.S. Supreme Court, and as a member of the powerful House Ways and Means Committee. Not merely a coincidence, by the end of the nineteenth century Pittsburgh lawyers were considered to be among the Nation’s most influential—for their roles in the rise of Pittsburgh as the wealthiest and most important industrial city in America, as interpreters and curators of the earliest major American corporations, and as tacticians in the ongoing struggles between labor and management. During the Progressive Era and the rise of federal regulation, Pittsburgh lawyers fought epic battles against the government over the right to collective bargaining, the limits of monopoly power and local government self-determination. At the same time, the profession itself evolved in Pittsburgh, through wars and McCarthyism, the Civil Rights era and globalism, and through the democratization of the bar and the entry of women and minorities into the front ranks of the profession, as Pittsburgh’s lawyers stepped forward to become stewards and builders during the decline of Steel and the renaissance of a great American city.
Praise for the book:

“Ron Schuler’s The Steel Bar is a magnificent tour-de-force: It weaves together history, law and powerful story-telling to produce a dramatic, readable account of the people and unexpected forces that shaped our nation’s legal system. This book belongs on the shelf of any serious student of law, history, and the role played by the bench and bar in forging America’s remarkable destiny.”—Ken Gormley

“[A] thoroughly researched and easily readable account of an untold story. Schuler takes the microcosm of the Pittsburgh legal community … to illustrate far broader social themes about the rule of law.”—Harry Litman

“[T]he best and most engaging history of a city bar that I’ve read in many years. Far from being just another chronicle of a local profession, The Steel Bar shows how Pittsburgh lawyers played leading roles in the development of national politics, economic growth and social change. It’s a great story written with verve, panache and wit that properly puts Pittsburgh at the center of the American narrative.” —Bernard J. Hibbitts

 More information is available here.

Monday, October 14, 2019

Stanford Graduate Student Paper Prize

[We share the following announcement.]

The Stanford Center for Law and History invites paper submissions from graduate students for its third annual conference, “Working with Intellectual Property: Legal Histories of Innovation, Labor, and Creativity”. The conference will seek to explore aspects of how creative, scientific, technology  and innovation-based communities have organized and negotiated their intellectual property relationships from historical perspectives.  The one-day conference will be held on Friday, May 8, 2020, at Stanford Law School. It will include three panels and a keynote session featuring scholars investigating ways that stakeholders have historically resisted, adapted, adopted, or rejected intellectual property law in their daily practices. We encourage submissions from scholars working across a broad range of disciplines interested in the historical intersection between intellectual property, creativity, innovation, and/or labor.  International, comparative, and US perspectives are all encouraged.

The conference organizers will select a graduate student as the winner of the SCLH Graduate Student Paper Prize to present on one of the three panels. Funding for travel and housing will be provided.

The application deadline is Sunday, December 1, 2019. For more information and to apply, click here. Please direct any questions to   

--Mitra Sharafi

Saturday, October 12, 2019

Weekend Roundup

  • The PBS NewsHour-New York Times book club, “Now Read This,” has selected Adam Winkler’s We the Corporations as its October selection.  Here Professor Winkler discusses his writing process.
  • Descendants from the parties in Dred Scott v Sandford, Plessy v Ferguson and Brown v Board of Education meet at the second Dred Scott Reconciliation Conference, to be held today from 8:30 a.m. to 1:30 p.m. at the Mahler Ballroom, 4915 Washington Blvd. in St. Louis.  More.
  • Annette Gordon-Reed, the Charles Warren Professor of American Legal History at Harvard Law School, and Peter S. Onuf, the Thomas Jefferson Memorial Foundation Professor Emeritus in the Corcoran Department of History at the University of Virginia, will co-present  “Jefferson: Then and Now,” the 2019 Fall Herber P. Lefler Lecture on Tuesday, Oct. 15, at Carleton College. More.
  • This New York Times op-ed by Josh Chafetz (Cornell Law), on the impeachment process and congressional "hardball," includes some interesting legal history.
  • ICYMI:  9 Landmark Supreme Court Cases That Shaped LGBTQ Rights in America (Time)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, October 11, 2019

Russell on Streetcar Torts

Thomas D. Russell, University of Denver Sturm College of Law, has posted Blood on the Tracks: Turn-of-the-Century Streetcar Injuries, Claims, and Litigation in Alameda County, California:
Richmond Road 1887 (NYPL)
Streetcars were great American tortfeasors of the turn-of-the-century, injuring approximately one 331 urban Americans in 1907. In this empirical study, I consider the entire run of streetcar injuries, claims, trial-court suits, and appeals. My conclusions are based upon data drawn from the claims department records of Alameda County's principal street railway company, from all of the personal injury suits filed in the county's Superior Court, from all appellate cases involving the street railway company, and also from other sources concerning the street railway industry.

Plaintiffs in street railway cases very rarely won their cases against the company, and when they did, they won little money. In terms of the bite taken out of the street railway company, I characterize the Superior Court as a flea. I argue that Professor Gary Schwartz was wrong to characterize tort law as generous and that Judge Richard Posner is wrong to call tort law efficient. Like Professor Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small, but I see no evidence of deliberate efforts to subsidize the industry.

I argue that the term "dispute pyramid," which is common among Law & Society scholars, is misleading. I propose that we instead think in terms of a salmon run, with very large drop-offs from the levels of injuries to claims and, especially, to litigation.

I also examine in detail the operation of the street railway's claims department. I describe the relationship of the amount of money paid out through the claims department to the amount paid out in Superior-Court judgments and costs. I show that the average amounts of money that successful claimants received were very small indeed and argue, contra Posner and others, that the bargaining that took place in the claims department was very distant from the level of the trial court. For example, where Posner derived an average figure of about $5,000 for wrongful death claims using appellate data, I show that in the claims department, claimants in death cases averaged $127.32.

I also consider some of the fine work done by constitutive theorists, particularly Barbara Welke, of the University of Minnesota. I agree with most of her conclusions regarding the manner in which tort law instantiated gender norms, but I remain convinced that the operation of street railways, as social and economic activities, and also the conduct of trials had much more formative influence on norms of gender than did legal doctrine. That is, along with Chris Tomlins, I think that Welke makes too much of the formative influence of law on American discourse or ideology. This may be a small quibble.

I adapt the methods of the constitutive theorists and try to build upon Welke's excellent work to show that the streetcar companies helped to instill norms of negligence within their women riders. This made some women safer and kept others from making claims when they were injured. I argue that the street railway companies' ability to shape norms of negligence show another flaw in Posner's theory regarding the regulatory effect of tort law.

Earlier drafts of this work have been cited in the Harvard Law Review, Vanderbilt Law Review, Tulane Law Review, Wisconsin Law Review, Harvard Women’s Law Journal, Law & Social Inquiry, Journal of Tort Law, and the Connecticut Journal of Insurance Law. The author is looking for a place to publish this either as a long article or a monograph.

--Dan Ernst

CFP: Topography of Roman Administration

[We have the following CFP.  DRE.]

Call for papers: "Space and Governance: Towards a New Topography of Roman Administration" conference, 3-4 April 2020, Royal Academy of Spain at Rome (Real Academia de España en Roma)

The purpose of the conference is to explore the transformation of public space and administrative activities in Republican and Imperial Rome through an interdisciplinary exploration of the topography of power. The emergence of the Roman Republic produced a reorganization of the administrative structures, leading to the emergence of various entities and institutions responsible for organization and governance of Rome, its civic life and public spaces. In different ways, this spatial model was exported to the colonies with the expansion of the Republic. Throughout the Roman world, building projects created spaces, the topography of the city, for different civic purposes: for the meetings of assemblies, senate meetings, the administration of justice, the public treasury, and the management of the city through different magistracies, offices and even archives. These administrative spaces –open and closed– characterized the Roman life throughout the Republic and High Empire, until the profound administrative and judicial transformations of the Dominate. This conference aims to study the public and private spaces related to administration through the urban development, the existing interrelation between the different administrative bodies, the analysis of the architecture of the spaces already discovered and the study of the written sources. We will try to find an answer to the dilemmas such as where did the administration work? Were there offices and where were they located? Were there social class differences between the different levels of administration?


•    Urban development and dynamics related to the expansion of the administration
•    New discoveries on the institutions and spaces of Roman administration
•    Architecture of spaces for public meetings and trials: Assemblies, Senate, courtrooms, basilicas
•    Private spaces in the administration: Residences of magistrates and the elite
•    Magistracies, offices and archives
•    Epigraphy related to the Roman administration
•    Development of institutions between early Republic and Late Antiquity
•    New methodologies in Roman topography
•    Gender, intersectionality and public space

Keynote speakers: Paolo Liverani (Università degli Studi di Firenze), Elena Isayev (University of Exeter) and Pier Luigi Tucci (Johns Hopkins University).

The conference is organized by the ERC-funded project Law, Governance and Space: Questioning the Foundations of the Republican Tradition (SpaceLaw), based at the University of Helsinki. There is no conference fee. The organizers are unfortunately unable to aid in either travel or accommodation arrangements or the cost of travel or accommodation.

Abstracts should be 300 words maximum, for 20-minute papers to be delivered in English. Abstracts should be sent to The deadline for abstracts is 1st December 2019. Questions may be sent to Antonio Lopez Garcia (

Thursday, October 10, 2019

Chabot on the Constitution and the Sinking Fund Commission

Christine Kexel Chabot, Loyola University Chicago School of Law, has posted Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies:
The President’s inability to control the Federal Reserve’s monetary policy decisions raises significant constitutional concerns. The Federal Reserve’s Federal Open Market Committee executes critical statutory mandates when it buys or sells U.S. securities in order to expand or contract the money supply, and yet the Committee’s twelve voting members check one another instead of answering directly to the President. The President cannot remove Committee members who refuse to carry out his monetary policy directives. Seven of the Committee’s twelve voting members are Federal Reserve governors who enjoy for-cause protections from removal by the President. Congress delegated power to supervise and remove the remaining five voting members, who are presidents of regional Federal Reserve banks, to the governors rather than the President. Further, the President has no say in the appointment of regional bank presidents to the Committee. While the Committee’s independence and appointments process would likely pass muster under current precedent, a growing chorus of originalists have argued that the Constitution requires greater executive control and a more expansive application of Article II’s Appointments Clause requirements.

This paper demonstrates that existing originalist accounts are incomplete. They do not account for the structural independence of an obscure agency known as the Sinking Fund Commission. This Commission was proposed by Alexander Hamilton, passed into law by the First Congress, and signed into law by President George Washington. One would expect all of these actors to have a clear grasp on the original public meaning of the Constitution, as well as a strong dedication to the structural commitments established therein. Their decisions to form a Sinking Fund Commission with multiple members to check one another — and to include the Vice President and Chief Justice as Commissioners who cannot be replaced or removed by the President — belie the notion that an independent agency structure violates the newly minted Constitution. The Sinking Fund Commission directed open market purchases of U.S. securities pursuant to a statutory mandate. It provides a direct historical analogue to the Federal Open Market Committee’s independent purchases of U.S. securities pursuant to a statutory mandate. This analysis shows that the structure of the Open Market Committee is not a novel invention of the twentieth century. Rather, the independence stemming from the Committee’s multi-headed structure and protections from removal has an impeccable originalist provenance which dates all the way back to Alexander Hamilton and First Congress.
--Dan Ernst

Evans on Blumenthal and the mind

Catherine L. Evans, University of Toronto, has published a review essay in Law & Social Inquiry on Susanna L. Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016). Here's the abstract for "Wondrous Depths: Judging the Mind in Nineteenth-Century America," LSI 44:3 (Aug. 2019), 828-49:
Susanna L. Blumenthal’s Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016) is a history of the self in nineteenth-century America. When judges considered a person’s criminal responsibility or civil capacity in court, they created a body of legal and political thought about the self, society, the economy, and American democracy. This essay uses Blumenthal’s book to explore recent work on law and the mind in Britain and North America, and argues that abstract questions about free will, the self, and the mind were part of the everyday jurisprudence of the nineteenth century. Debates about responsibility were also debates about the psychological consequences of capitalism and the borders of personhood and citizenship at a time of rapid economic, political, and social change.
Further information is available here.

--Mitra Sharafi

Wednesday, October 9, 2019

Studies in the History of Tax Law

Just out from Hart is volume 9 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan, Cambridge University:
These are the papers from the ninth Cambridge Tax Law History Conference, held in July 2018. In the usual manner, these papers have been selected from an oversupply of proposals for their interest and relevance, and scrutinised and edited to the highest standard for inclusion in this prestigious series.

The papers fall within five basic themes. Four papers focus on tax theory: Bentham; social contract and tax governance; Schumpeter's 'thunder of history'; and the resurgence of the benefits theory. Three involve the history of UK specific interpretational issues: management expenses; anti-avoidance jurisprudence; and identification of professionals. A further three concern specific forms of UK tax on road travel, land and capital gains. One paper considers the formation of HMRC and another explains aspects of nineteenth-century taxation by reference to Jane Austen characters. Four consider aspects of international taxation: development of EU corporate tax policy; history of Dutch tax planning; the important 1942 Canada–US tax treaty; and the 1928 UN model tax treaties on tax evasion. Also included are papers on the effects of WWI on New Zealand income tax and development of anti-tax avoidance rules in China.
--Dan Ernst

Writing Legal Lives workshop

On September 21,  a workshop on Writing Legal Lives at Harvard brought together scholars working on Russia, China, Southeast Asia, South Asia, and the Americas, 1870-1950. Here's how organizers Catherine Evans (University of Toronto), Kalyani Ramnath (Harvard)and Fei-Hsien Wang (Indiana University Bloomington) described the event in their concept note:
The Legal Lives workshop sessions are focused around three themes: approaches, collective lives, and limits. These themes highlight common elements among papers and suggest avenues for discussion, but are not meant to limit the scope of conversation. We expect that each session will engage with the nature of ‘writing legal lives’ as a method or approach; the question of which aspects or how many ‘lives’ we try to capture; and the ethical, practical and theoretical limits of biographical legal writing. 
Guiding Questions:
• What are the benefits and pitfalls of writing legal history through the lives of individuals? What kinds of questions does a deliberately 'peopled' account of law raise for legal historians? How is this method particularly useful in exploring transnational, imperial, global and/or non-Western legal histories?
• What are the boundaries among biography, prosopography and other approaches to life writing, if any? Does the question of whose life (or whose lives) we're narrating change how we describe our approach? For instance, is a biography of a judge fundamentally different from a biography of a criminal, a sea captain, or a colonial lawyer?
• Is there anything new in a 'writing legal lives' approach? Is there a better way to describe what we're doing, and/or are 'we' doing anything collectively at all? Which scholars and scholarly approaches inspire us? Are we doing something new, bringing back something old, or simply continuing an existing tradition?
• What are the limits, if any, of 'law'? Does a person's 'legal' life include encounters with administrative, bureaucratic, carceral and/or political processes and institutions, or should we limit the realm of the 'legal' to courtrooms and lawyers' offices? What is the difference, if any, between writing a 'legal' life and writing a life?
Full program after the jump:

Kornhauser on Women, Lobbying and Tax, 1924-1936

Marjorie E. Kornhauser, Tulane University School of Law, has posted a draft of her book, American Voices in a Changing Democracy: Women, Lobbying, and Tax, 1924-1936, chapter by chapter, on SSRN.  We’re posting the abstract for the Introduction.  Click on the titles for abstracts for the other chapters.

This ... introduces my book American Voices in a Changing Democracy: Women, Lobbying, and Tax, 1924-1936. The book focuses on the intersection of three areas of change in a time of great change: the role of women, the role of lobbying (broadly defined), and the role of taxation. These areas are once again in flux today. Each area is important in itself and each underwent significant change during this time period that affected important aspects of American life. Combined, the three areas illuminate the interrelated nature of society, economics, government and politics.

The book is not about lobbying, women, or taxation per se, but about the intersection of these three elements in a period of generally rapid change. Each element is important to democracy and each underwent great changes during the relevant years. Viewing the interaction of the three elements provides not just insight into each strand but expands our knowledge of democracy’s responses to change in an era similar to our current times in many ways: rapid technological change, demographic changes, economic stresses, and political change.

Tax-phobic readers should rest easy. The book is not about substantive tax; rather it uses tax as a medium to examine women and lobbying. Consequently, readers need not know any tax—or even be all that interested in tax. The book contains no technical tax or substantive tax policy. Rather, it concerns one aspect of the social construction of tax policy: the influence of mid-level lobbying on public opinion regarding taxes as manifest from one perspective—women’s political action. All the reader needs to know by way of background about taxes, is found in Part D of Chapter I. Although the tax-aholic will be unable to satisfy a technical tax thirst, the tax-ophile will still find a satisfying feast of material about the central role taxation plays in America.

This Introduction lays out the scope, purpose and organization of the book. It sets the stage by briefly describing the changing technology, culture and government that underlay the changes affecting women, tax and lobbying. It proceeds to explain the choice of the time period and concludes with a note about research techniques.
1.  Changing Times: Lobbying and Taxation 1924-1936

2.  Women, Women’s Clubs, Women’s Political Activity and Lobbying Generally: 1924-1936
     [The post on SSRN notwithstanding, this is indeed Chapter 2]

3.  Women's Tax Lobbying: 1924–1936

4.  Conservative Women’s Groups and Tax Lobbying

5.  Cathrine Curtis and the Women Investors in America

--Dan Ernst

Tuesday, October 8, 2019

Bickers on the Legal Tender Cases

John M. Bickers, Northern Kentucky University Salmon P. Chase College of Law, has posted Greenbacks, Consent, and Unwritten Amendments:
“We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet after that announcement the Constitution set forth written rules of varied levels of specificity that clearly mean to bind future generations of those same people. One set of those rules establishes a complicated set of options for amendment: the authors at the end of the eighteenth century made it quite difficult for anything less than a future double supermajority to change their work.

Yet over the centuries there have been countless changes to the society governed by this formative document. The originalist judicial philosophy would prevent such changes from occurring unless they were at least countenanced by the original public understanding of the Constitution among those who made (that is to say, ratified) the document. Other philosophies argue that the current people have a right to remake the Constitution outside of the formal amendment process, an idea resisted fiercely by the originalists. Some thinkers have speculated about the possibility of discovering, at two centuries of remove, an unusual but consistently held view of the founding generation: would the discovery invalidate experiments the United States had adopted in the interim?

No such speculation truly needs to be engaged, as the preeminent example of this puzzle is offered on sheets of paper found in almost every wallet. Each sample of U.S. paper money contains the confident, all-capital phrase “THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE.” The population accepts this assertion. But it has not been ever thus.

Just a century and a half ago, a challenge to the Civil War issuance of paper money as legal tender made its way to the U.S. Supreme Court. There, Chief Justice Salmon P. Chase authored an opinion denouncing this legal innovation that had occurred under the watchful eye of Treasury Secretary Salmon P. Chase. Although some legal scholars have argued that he was wrong, most of the legal world has accepted Chase’s analysis: the Constitution prohibited the adoption of paper money as legal tender by text, by the understanding of those who wrote the text, and by the original meaning ascribed to the text by the portion of the public that ratified it.

Chase’s decision sent shock waves through an American economy that had quickly become reliant on this new device. There is evidence that the search for new Supreme Court justices focused to some degree on finding people who would reject Chase’s originalism in favor of letting We the People decide the issue. When two newly appointed justices joined the Court and reconsidered the matter just a year after the rejection by Chase, they embraced paper money. The embrace of paper money as legal tender remains to this day.

The triumph of that second of the Legal Tender Cases was so complete that Americans today are frequently confident that the use of the phrase “coin money” in the constitutional powers of Congress is meant metaphorically. Chase’s solid demonstration that it was nothing of the kind has faded from the consciousness of all but a few specialists.

What does this unwritten amendment of Congress’s powers mean, then, for the role of consent of the governed? For if the Constitution must be limited to its original public meaning, the United States should immediately revert to an economy suitable for the first years of the Republic, when the decision whether to accept paper in payment of debt was the choice of the individual, and the government could only compel acceptance of coins. Yet that, surely, is not an idea to which more than a bare handful of contemporary Americans would consent.

If “consent of the governed” means consent by those current Americans, they evince it by continue to live in the America of their understanding. They demonstrate such consent to unwritten amendments every time they offer or accept cash believing that the claim made on the face of the bill is true.
–Dan Ernst.

Jones Wins Littleton-Griswold for "Birthright Citizens"

Congratulations to Martha S. Jones, the Society of Black Alumni Presidential Professor and Professor of History, Johns Hopkins University, for winning the American Historical Association’s Littleton-Griswold Prize for 2019 for Birthright Citizens: A History of Race and Rights in Antebellum America (2018).  It appeared in Studies in Legal History, the book series of the American Society for Legal History.

Tunnicliffe on Canada and the International Bill of Rights

Jennifer Tunnicliffe (University of Waterloo) has published Resisting Rights: Canada and the International Bill of Rights, 1947-76 in UBC Press' Law and Society series. From the publisher:
Resisting Rights
From 1948 to 1966, the United Nations worked to create an international bill of rights that would provide a common standard for human rights protection around the globe. Canadians celebrate their country’s central role in this endeavour every Human Rights Day. Yet a detailed study of government policies toward these early UN documents tells a different story.
Resisting Rights analyzes the Canadian government’s initial opposition to the development of international human rights law, exploring how and why this position changed from the 1940s to the 1970s. Jennifer Tunnicliffe takes both international and domestic developments into account to explain how shifting cultural understandings of rights influenced policy, and to underline the key role of Canadian rights activists in this process.
In light of the erosion of Canada’s traditional reputation as a leader in developing human rights standards at the United Nations, this is a timely study. Tunnicliffe situates current policies within their historical context to reveal that Canadian reluctance to be bound by international human rights law is not a recent trend, and asks why governments have found it important to foster the myth that Canada has been at the forefront of international human rights policy since its inception.
Resisting Rights will appeal to students and scholars of the development of domestic and international human rights, and more generally of Canadian history, politics, diplomacy, and foreign policy, particularly at the United Nations. It will also find an audience among individuals or organizations interested in Canada’s human rights history.
Praise for the book:

"A blow-by-blow account spanning nearly thirty years, Resisting Rights provides a detailed history of the Canadian state’s transformation from an initial opponent of universal human rights in the late 1940s to one of its leading proponents by the mid-1970s, a journey made possible only by the persistence and tenacity of Canadian human rights activists. A welcome addition to the growing body of scholarship on the history of human rights in Canada." - Andrew S. Thompson

Further information is available here.