Wednesday, February 19, 2020

How the Law Expects and Accommodates Deceit in Courtship, Sex, and Marriage


This post turns to a new aspect of the legal history of intimate deception.  When I started researching Intimate Lies and the Law, I suspected that judges might deny remedies to deceived intimates because they thought deception within intimacy was too trivial a subject to be worth judicial attention.  However, I soon discovered that many judges deny remedies not because they think intimate deception is unimportant, but because they think it is vitally important.

These judges are committed to preserving existing norms in courtship, sex, and marriage and convinced that those norms naturally—even inevitably—include pervasive deception.  This view extends back decades.

Here’s how a 1947 New York court explained why it was denying redress to a woman duped into marrying a man who had deliberately concealed his drinking problem: “Boastfulness and self approbation are as natural and as much to be expected under such circumstances as the strut of the rooster in the barnyard.”  In other words, the law should not ask a fiancé to be any more honest than a strutting rooster.

Modern courts usually do not look to the barnyard for rhetorical inspiration.  But courts continue to insist that the law should expect and accommodate deception within intimate relationships.  When judges assume that deceit is an ordinary and expected part of courtship, sex, and marriage, they help make that so—normalizing the deception by protecting it from legal redress and legal condemnation.

— Jill Hasday

Oates on the Transylvania Law Library

Charles Harmon Oates, Regent University, has posted Foraging the Transylvania Law Library: A Unique and Valuable Collection:
A good library is the heartbeat of a law school’s operation. As Harvard Law School Dean C.C. Langdell once observed “[t]he law library has been the object of our greatest and most constant solicitude. We have…constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists.”

The book collection itself necessarily reflects the mission and character of the school. Perhaps nowhere is this better demonstrated than by the unique collection that once comprised the law library of the Transylvania University Department of Law.

Established in 1799, this frontier law school, through the tutelage of some notable faculty, trained many of our young nation’s finest lawyers, jurists, legislators and statesmen. For over fifty years the law department flourished. At its zenith, the law department’s course of study was more comprehensive than either Yale or Harvard and its law library was reputed to be among the best equipped in the nation. Through a tragic series of events, the law department subsequently began a spiraling decline that lasted more than half a century, terminating in the final locking of its doors in 1912. Amazingly, much of its law library collection has survived the abuses of heavy usage, packing, relocation, the better part of a century in unprotected storage, and exposure to insects and mildew. The Regent University Law Library was fortunate to purchase this unique and valuable collection in 1994. It comprises the major part of Regent Law Library’s Founders Collection.

This article will examine the Transylvania Law Department’s contribution to American legal education in the nineteenth century, discuss the development of the school’s historic library collection, and provide an annotated bibliography of a selection of those rare and unique volumes of particular relevance for researchers that contributed most to the Common Law foundation of American law and history. Part II explores the history of the Law Department and briefly reveals what life and legal education were like at the first law school west of the Appalachians. Part III focuses on the development of the collection itself. The annotated bibliography in Part IV offers the reader a glimpse of this historic collection by describing in some detail those rare and unique volumes significant to our modern understanding of the Common Law foundation of American law.
--Dan Ernst

Milligan on Plessy, Housing,and the Administrative Constitution

Joy Milligan, University of California, Berkeley, School of Law, has posted Plessy Preserved: Agencies and the Effective Constitution, which is forthcoming in the Yale Law Journal:
Sometimes the judicial Constitution is not the one that matters. The administrative state is capable of creating divergent legal frameworks that powerfully shape public life. But to the extent that they reside outside of judicial precedent, such administrative regimes may go unrecognized.

In this Article, I chart the history of an alternative “administrative Constitution” that remains etched in U.S. cities. Drawing on original archival research, I show that throughout the twentieth century, the federal administrators who oversaw the nation’s public-housing program implemented and defended a legal regime based on Plessy v. Ferguson’s “separate but equal” principle — even after the judiciary announced the opposing mandate of Brown v. Board of Education, and after the political branches adopted formal civil-rights reforms in the 1960s. Why did an agency led by liberal reformers and dedicated to serving the poor do this? Administrators believed the public-housing program was politically unsustainable without racial segregation, while agency lawyers argued for preserving the older framework, which had once been understood as a progressive triumph in its commitment to racial “equity.” Procedural barriers shielded the agency from defending that entrenched framework in the courts.

Uncovering public housing’s racial Constitution challenges conventional legal narratives around civil rights by foregrounding the role of federal administrators in thwarting Brown. Simultaneously, Plessy’s resilience in the administrative realm underscores the ongoing need to unearth such regimes, to better assess agencies’ role in establishing the constitutional principles that actually govern us — that is, in determining the effective Constitution.
--Dan Ernst

Tuesday, February 18, 2020

Bratz on Gold Coast Prisons in BC Legal History Roundtable

Erin Braatz, Suffolk Law School, will present in the of the Boston College Legal History Roundtable Thursday, February 27, at 4:30 in BC Law’s Rare Book Room.  (Refreshments are available starting at 4:15 pm.)  Professor Bratz will be presenting “Civilization & Sovereignty: The Birth of the ‘Native’ Prison”:
This paper describes the rise of so-called “native” prisons on the Gold Coast of Africa in the mid-nineteenth century (present-day Ghana) and argues that these prisons arose out of jurisdictional struggles between British colonial officials and indigenous leaders on the coast.  It then situates these struggles within the history of the global spread of the prison during the nineteenth century, contending that the prison played a central role in defining civilization and articulating changing notions of sovereignty.
(Instructions for accessing the paper are in the final paragraph of the website introduction.)

--Dan Ernst

Jones and Carter on England's New Poor Law

Peter D. Jones and Natalie Carter (both of the University of Leicester) have published "Writing for redress: redrawing the epistolary relationship under the New Poor Law" in Continuity and Change 34:3 (Dec.2019), 375-99. Here's the abstract:
This article investigates how the new welfare bureaucracy impacted on the epistolary relationship between paupers and those who administered it locally and nationally. In particular, it traces the changes in those relationships between the earliest years of the new regime and its maturity in the 1870s. It explores the ways that paupers responded to the New Poor Law, and how they negotiated the structural and sentimental shifts that took place over that period. In particular, it looks in detail at the new uses to which the epistolary relationship was put by outdoor paupers, their advocates and workhouse inmates.
Further information is available here

--Mitra Sharafi

Vanatta and Conti-Brown on "Bank Supervision, the Great Depression, and the Creation of the New Deal"

Sean Vanatta (New York University - The Gallatin School) and Peter Conti-Brown (University of Pennsylvania - The Wharton School) have posted "Bank Supervision, the Great Depression, and the Creation of the New Deal." The abstract:
The banking crises of 1930-1933 created the Great Depression and with it the momentum that remade American politics with the election of Franklin Roosevelt in 1932. Pivotal to Roosevelt’s political success was the banking holiday of 1933, an event that restarted the financial system and became a keystone of 20th century political and financial history. In the conventional contemporaneous and historical narrative of these events the holiday represents the apotheosis of high politics and presidential power. Such accounts, however, say virtually nothing about what happened during the holiday itself. We reinterpret the banking crises of the 1930s—before and after Roosevelt’s election—through the lens of bank supervision, an institutional arrangement whereby government actors structure private markets in direct, visceral, haphazard, technocratic, political, disciplined, and arbitrary ways. This reinterpretation illustrates how the union of FDR’s inimitable political skills with the technocracy of bank supervision became key to the solving the banking crisis, jumpstarting the New Deal, and bringing the country back from the brink. Placing supervision at the center of this period of economic, political, and financial transition provides key insights into the exercise of government power, including the relationship between and among legitimacy, legality, politics, finance, and—perhaps especially—what it means for a government official to exercise discretion within a broad legislative mandate. This new approach, we argue, can provide an example of other reinterpretations of political history, from the New Deal and beyond, as an act of onsite government power, interacting with but defined only partially by law and politics.
Read on here.

In related news, we have learned that Vanatta has accepted an academic position at the University of Glasgow starting in the fall. Congratulations to Professor Vanatta!

-- Karen Tani

Monday, February 17, 2020

Call for Submissions: Stein Book Award

[We have the following call for submissions for a book award given by the American Society for Legal History.  Note the March 16 due date. DRE.]

The Peter Gonville Stein Book Award is awarded annually for the best book in non-US legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all regions outside the United States, as well as global and international history. To be eligible, a book must be published during the previous calendar year. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, or the Cromwell Book Prize. It may not be nominated for more than one of these three prizes.

The Stein Award is named in memory of Peter Gonville Stein, BA, LLB (Cantab); PhD (Aberdeen); QC; FBA; Honorary Fellow, ASLH, and eminent scholar of Roman law at the University of Cambridge, and made possible by a generous contribution from an anonymous donor.

Last year, Khaled Fahmy won the award for In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt, and Rohit De received honorable mention for A People’s Constitution: The Everyday Life of Law in the Indian Republic.

For the 2020 prize, the Stein Award Committee will accept nominations of any book (not including textbooks, critical editions, and collections of essays) that bears a copyright date of 2019 as it appears in the printed version of the book. Translations into English may be nominated, provided they are published within two years of the publication date of the original version.

Nominations for the Stein Award (including self-nominations) should be submitted by March 16, 2020. Please send an e-mail to the Committee at steinaward@aslh.net and include: (1) a curriculum vitae of the author (including the author’s e-mail address); and (2) the name, mailing address, e-mail address, and phone number of the contact person at the press who will provide the committee with two copies of the book. This person will be contacted shortly after the deadline. If a title is short-listed, five additional copies will be requested from the publisher.

Please contact the committee chair, Matthew C. Mirow, with any questions at mirowm@fiu.edu.

CFP: Prefaces, Prologues and Preliminaries

[We’ve previously posted the ASLH’s call for proposals for “pre-conference workshops or events" for its annual meeting in Chicago on November 11-14, 2020.  Here is two scholars’ call for one they plan to submit to ASLH in that category.  DRE]

“Prefaces, Prologues, and Preliminaries”

Foundational documents such as charters, constitutions, law codes, or treaties often begin with introductions that infuse legal orders with moral and historical authority while also constructing a framework for interpreting the document itself. Despite the ubiquity of such prefaces in legal history, these framing apparatuses remain understudied in a cross-disciplinary fashion. They deserve collaborative treatment given the heavy workload they bear in defining social, political, and moral norms for their contemporary audiences as well as the impact they have on subsequent interpretations, uses, and understandings of them by those far removed from their original time and contexts. Preambles, prologues, and preliminary remarks in legal, social, religious, and political texts and documents define populations, their identities, and origins. They crystalize ideologies, prescribe the jurisdiction of laws, and situate legal orders in history. Above all, they frame the legal norms outlined in the body of the text and how they are to be understood. Moreover, a cross-cultural and cross-disciplinary scope is justified by the interrelationships of these framing devices across time and space, as they are often composed by drawing upon other prefaces.

Therefore, we seek a wide range of submissions that focus on historical contexts from the ancient world to the 21st century and a range of genres (didactic, literary, philosophical, and religious) and themes (e.g., culture, ethnicity, gender, race), in the form of both narrative and analytical essays.

Our aim is to propose a series of multidisciplinary panels that engage with these themes:
- Methodological strategies for interpreting prologues, prefaces, and preludes, whether historical, legal, social, philological, et cetera.
- The ancient Near East, including cuneiform traditions such as but not limited to law collections or treaties, and including the Hebrew Bible.
- Classical Traditions, including Greek and Roman law.
- Non-Western Traditions, Medieval and Early Modern (religious and/or secular), including Islamic law.
- Western Traditions, Medieval and Early Modern (religious and/or secular).
- Modern Constitutions, Jurisdictions, and Socio-political orders.
- Transnational, International, and Global Treaties, Institutions, and Arrangements.
Depending on the number of responses, we may submit a proposal for a one-day symposium. Long term, we plan to develop an edited volume or compendium that will extend beyond the initial meeting in Chicago.

Please submit an abstract (200-300 words, including a title and keywords) and a very short cv (one page) to karrsn@ucmail.uc.edu by Friday, March 6, 2020. Please feel free to circulate this call widely. Further information on the call for papers.

Please direct questions to the panel/symposium proposal organizers:
Laura Culbertson (culbertson.laura@gmail.com)
Susan Longfield Karr (karrsn@ucmail.uc.edu)

[An alternate version of the title occurs to me: "In the Beginning: Prefaces, Prologues, and Preliminaries."  DRE]

Saturday, February 15, 2020

CFP: ASLH Pre-Conference Workshops or Events

Via the American Society for Legal History, we have the following announcement:
ASLH Pre-Conference Workshops or Events

The ASLH sponsors or cosponsors a limited number of part-day or full-day workshops or events in the days before the opening of the Society’s annual conference. The Program Committee welcomes proposals for Chicago 2020, with a deadline for submission of March 13, 2020.

Proposals of 1-2 pages should:
  • explain the intellectual or professional goals of the pre-conference workshop;
  • describe proposed themes and list likely participants; and
  • include information about proposed venue, cost, and other societies or institutions serving as cosponsors, if any
Pre-conference workshops sponsored or cosponsored by the ASLH may be held at other venues or at the conference hotel, space permitting. The Society has a small amount of funding available to assist with costs. We encourage organizers to seek or propose cosponsorship to cover all or most costs.

We especially encourage proposals for pre-conference workshops that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development.

Pre-conference proposals should be emailed to Program Committee Co-Chairs, professors Ari Bryen (ari.z.bryen@vanderbilt.edu) and Kristin Collins (collinsk@bu.edu).
-- Karen Tani

Weekend Roundup

  • Via our friends at Iowa Law, word of a faculty fellowship position, appointed at the rank of Visiting Assistant Professor of Law. The fellowship "prioritizes applicants who seek to conduct interdisciplinary research that connects with other fields of study at the University of Iowa." 
  • Dire financial exigency is forcing the Historical Society of Pennsylvania to sell some of its holdings, including "the Freedom Box" citizens of New York gave Andrew Hamilton after his defense of John Peter Zenger.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, February 14, 2020

How No-Fault Divorce Transformed the Law Governing Intimate Deception (Happy Valentine’s Day!)


As I’ve been discussing in my last two blog posts, the remedies available for intimate deception contracted significantly over the course of the twentieth century or became much less important.  The advent of no-fault divorce was probably the most important factor behind this decline.

Through the 1960s, divorce was available only for cause and difficult to win.  The restrictions on divorce led many unhappy spouses to seek annulments on the ground that they had been duped into marriage.  Over the course of decades and hundreds of cases, judges developed an elaborate annulment jurisprudence—now all but forgotten—that regulated premarital deceit, deciding which forms of deception the law expected people to endure and which provided grounds for escaping a marriage.

In 1970, however, California became the first state to institute no-fault divorce and the innovation spread rapidly through the nation.  The rise of no-fault divorce means that fewer deceived intimates come to court because people no longer need to prove wrongdoing to end their marriages.  When people do sue their spouses for harming them through deception, moreover, courts sometimes dismiss their claims on the ground that such interspousal litigation is incompatible with the availability of no-fault divorce.

I don’t find that argument convincing.  Establishing the legal right to end an unhappy marriage was a crucial advance for liberty and autonomy.  But the availability of no-fault divorce does not and should not mean that conduct within marriage falls outside the law’s concern, so there is no civil remedy for injuries one spouse inflicts on another.  If that was the case, then the existence of no-fault divorce would suggest that a person beaten during her marriage cannot sue her abusive spouse for battery because divorce is her only available remedy.  Such a position is unappealing and inconsistent with the abolition of interspousal tort immunity in almost all states.

While marriage is a union, it no longer marks the disappearance of individual personhood—for women or men.  Marrying should not mean losing your rights to pursue ordinary civil remedies when injured.

Thanks for reading.  It has been a delight to write about Intimate Lies and the Law on Valentine’s Day!

— Jill Hasday

Mirow on Legal Iconography

M. C. Mirow, Florida International University College of Law, has posted Legal Iconography and Painting Constitutional Law, which is forthcoming in Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights, edited by M.C. Mirow and Howard M. Wasserman (Brill):
Predominantly a European phenomenon, the study of legal iconography has expanded to the common law world and informed approaches to Anglo-American legal development. European painting, sculptures, and other artwork were used in forensic settings to channel behavior of judges, lawyers, and litigants. Such artwork often combined religious perspectives, such as depictions of the Last Judgement, but might also reflect more secular notions such as Justice. Cultural historians and theorists have supplemented these more traditional approaches by expanding the scope of the analysis of the relationship between image and law. This study illustrates the potential for legal iconography to offer deeper insights into law, legal institutions, justice, injustice, and legal change in modern society.
--Dan Ernst

Thursday, February 13, 2020

Schwartz on McCulloch and the Incoherence of Enumerationism

Former LHB Guest Blogger David S. Schwartz, University of Wisconsin Law School, has posted McCulloch v. Maryland and the Incoherence of Enumerationism, which is forthcoming in the Georgetown Journal of Law & Public Policy 19 (Fall 2020):
The theory and jurisprudence of American federalism remains a muddle. The Supreme Court has never managed to settle three intertwined jurisprudential questions of federalism.

(1) Can an effectual national government with implied powers be meaningfully limited to a set of enumerated powers?

(2) Can the Tenth Amendment's concept of reserved state powers be presumptive, or meaningfully specified under a system of implied national powers?

(3) Can the federal and state governments meaningfully be called "sovereign" in either of the two distinct senses usually meant?

The ideology of "enumerationism" - that the Constitution creates a national government of limited enumerated powers - answers these questions yes. But McCulloch v. Maryland answered these questions no, and is therefore at odds with enumerationism. A limiting enumeration is incompatible with McCulloch's conception of a grant of implied powers compatible with an effective national government that can address national problems without reliance on the states. McCulloch clearly rejected the various versions of implied powers that were aimed at preserving a limiting enumeration. Moreover, as McCulloch makes clear, a system of implied national powers cannot be reconciled with "reserved" state powers having any definable content. Implied powers can grow and change with new circumstances and new legislative ideas, and therefore cannot be specified in advance, making it impossible to specify a "reserve" of state powers that excludes federal regulation. Finally, McCulloch recognized that federal supremacy necessarily makes the makes the states "subordinate governments" that lack power to block prima facie federal powers, whether express or implied. McCulloch thereby rejected the idea that state sovereignty is either a power to resist federal implied powers or a mirror image of a limiting enumeration of federal power.
--Dan Ernst

Wednesday, February 12, 2020

Comparative Legal History at ASCL 2020

[From the website of the American Society of Comparative Law (ASCL).  DRE]

ASCL Vice President and Annual Program Committee Chair, Maximo Langer, has announced that the ASCL 2020 Annual Meeting will be hosted at Boston University School of Law, Thursday, Oct. 15, to Saturday, Oct. 17, 2020. The theme of the 2020 Meeting will be “Comparative Legal History”. As in recent years, concurrent panels will be open to any comparative law topic. A call for concurrent panels and papers proposals will be distributed this month. The Society’s annual business meeting will take place on Saturday morning, October 17.

CFP: Law, Theology, and the Moral Regulation of “Economy” in the Early-Modern Atlantic World

[We have the following announcement.  DRE]

Call for Papers: Law, Theology, and the Moral Regulation of “Economy” in the Early-Modern Atlantic World

This is a call for papers in anticipation of a one-day conference to be organized by Brian Owensby (University of Virginia) and Richard Ross (University of Illinois) through the Symposium on Comparative Early Modern Legal History  The conference, to be held at the Newberry. Library in Chicago on Friday, April 23, 2021 is entitled, “Law, Theology, and the Moral Regulation of ‘Economy’ in the Early-Modern Atlantic World.”  The time is long past when the Western world’s emergent commercial culture could be understood solely in terms of a Protestant ethos or the division between commerce and social morality occasioned by the Protestant Reformation. Scholarship has shown that “modern” ideas regarding commerce and “economics” had their roots in late-medieval Catholic thought and in neo-scholastic ideas that blended theology, justice, and law. It is clear as well that the rise of commercial thinking was not a linear intellectual development. Protestants and Catholics alike, facing the moral and social implications of novel “economic” relations, undertook deep theological and legal reflections regarding unbridled, competitive, exchange-oriented gain seeking. Many of these concerns were raised in the context of Europe’s westward expansion to the New World. Usury, just price, interest, legal personality, slavery, reciprocity, property, cases of conscience, doubts regarding self-regulating mechanisms, concerns for the poor—all figured in a vibrant legal discourse that simultaneously elaborated and critiqued a set of ideas regarding human economy that became dominant between the sixteenth and nineteenth centuries. This conference will bring together historians, legal scholars, and social scientists to investigate law’s historical role in enabling and regulating behaviors now recognized as foundational to modern economies.

Interested presenters should submit an abstract of between 200 and 500 words and a c.v. by March 15, 2020.  Please send submissions and inquiries to Richard Ross [rjross@illinois.edu]; 217-244-7890.  No previously published work will be accepted. Applicants will be notified by email shortly after the submission deadline.  Accepted participants will be required to submit a full paper of no more than 10,000 words by the end of February 2021. Papers will be pre-circulated and read by all participants.  The conference will pay for travel and hotel expenses. 

Tuesday, February 11, 2020

A Legal History of Intimate Deception About Race

My last blog post discussed how anti-heart balm statutes have helped fuel the contraction in legal remedies for intimate deception since the early twentieth century.  Another reason for this contraction is that some intimate deception claims became normatively unacceptable to the judiciary.

Through the middle of the twentieth century, many courts agreed that a white person was entitled to legal remedies if he had been duped into marriage or engagement with a person who was not “really” white according to the metrics of one-drop rules.

For good reason, courts are no longer willing to provide such redress.  Patel v. Navitlal, a New Jersey annulment decision from 1992, is the modern case that perhaps comes closest to presenting the sort of intimate deception claim about race that plaintiffs once advanced with some regularity.  The unhappy husband here sued for an annulment on the ground that his wife had duped him into marriage by deliberately concealing her mother’s “violation of the [Indian] caste system.”

While the Indian caste system differs in many respects from the system of legalized white supremacy and racialized subordination that developed in the United States, the two regimes share important characteristics.  The caste system is hierarchical and members of the lowest castes experience systematic discrimination and disadvantage.  Castes are hereditary and people usually cannot move from the caste to which they were born, although they can be expelled from it.  The caste system also imposes strong social prohibitions on marrying someone from another caste.

The New Jersey Superior Court refused to grant an annulment in Patel, explaining that the state would not accept the premise that transgressing the caste system could constitute “a deficiency in a character trait” sufficient to merit an annulment.

As a general matter, Intimate Lies and the Law argues in favor of more legal remedies for deceived intimates.  However, I wholeheartedly agree with Patel that the law should not provide redress where the plaintiff’s alleged harm is grounded in a commitment to caste principles or a racialized world view.

In fact, providing redress for intimate deception about race may actually be unconstitutional.  The United States Supreme Court held in Palmore v. Sidoti (1984) that a Florida court deciding a custody dispute between parents could not take into account whether the child might be subject to community prejudice if she lived with her mother, who had remarried interracially.  As the Supreme Court explained, “[t]he Constitution cannot control [racial] prejudices but neither can it tolerate them.  Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

If the Supreme Court insists that the judiciary cannot tolerate the racial biases of private individuals, it is hard to see how any lower court could grant a remedy for intimate deception about race.  How could a court hold that such deceit inflicts a legally cognizable injury without recognizing—and functionally accommodating—social prejudices against interracial intimacy?  The legal redress once available for intimate deception about race has become normatively, even constitutionally, unacceptable.

— Jill Hasday

Lives and Careers of Two Alabama Booksellers and Publishers

The University of Alabama’s Bounds Law Library announces the latest book in its “Occasional Publications" series:
The Bounds Law Library has published its ninth Occasional Publication, titled Law and Miscellaneous Works: The Lives and Careers of Joel White and Amand Pfister, Booksellers and Publishers. The book features biographical essays by David I. Durham and Paul M. Pruitt, Jr. and an essay by Michael H. Hoeflich analyzing Pfister and White’s printed catalogs. In addition, the book contains facsimile images of White and Pfister’s catalogs and other documents, including White’s correspondence with publishers. Emigrants to antebellum Tuscaloosa, White and Pfister separately operated bookshops, built up clienteles, and began to publish books. When the state capital moved to Montgomery in 1846 they moved with it and soon established a partnership. Following Pfister’s death in 1857, White continued in the business of bookselling and publishing; his most notable author was Tuscaloosa lawyer and politician William R. Smith, author of The History and Debates of the Convention of the People of Alabama (1861). After secession White undertook a clandestine mission to acquire large quantities of high-grade paper for the Confederate government. Following his own personal Reconstruction, White served as publisher of the Alabama Reports (vols. 50-83), working with the clerks, lawyers, and reporters attached to that institution. All the while he continued to operate his bookstore until shortly before his death in 1896. Law and Miscellaneous Works reveals a little-known world of nineteenth-century southern booksellers and small-scale publishers and places it in the context of regional and national affairs. Law and Miscellaneous Works is free upon request. Contact Paul Pruitt (ppruitt@law.ua.edu). 
--Dan Ernst

Suddler, "Presumed Criminal"

We missed this one when New York University Press released it last July: Presumed Criminal
Black Youth and the Justice System in Postwar New York, by Carl Suddler (Emory University). A description from the Press:
A stark disparity exists between black and white youth experiences in the justice system today. Black youths are perceived to be older and less innocent than their white peers. When it comes to incarceration, race trumps class, and even as black youths articulate their own experiences with carceral authorities, many Americans remain surprised by the inequalities they continue to endure. In this revealing book, Carl Suddler brings to light a much longer history of the policies and strategies that tethered the lives of black youths to the justice system indefinitely.
The criminalization of black youth is inseparable from its racialized origins. In the mid-twentieth century, the United States justice system began to focus on punishment, rather than rehabilitation. By the time the federal government began to address the issue of juvenile delinquency, the juvenile justice system shifted its priorities from saving delinquent youth to purely controlling crime, and black teens bore the brunt of the transition.
In New York City, increased state surveillance of predominantly black communities compounded arrest rates during the post–World War II period, providing justification for tough-on-crime policies. Questionable police practices, like stop-and-frisk, combined with media sensationalism, cemented the belief that black youth were the primary cause for concern. Even before the War on Crime, the stakes were clear: race would continue to be the crucial determinant in American notions of crime and delinquency, and black youths condemned with a stigma of criminality would continue to confront the overwhelming power of the state.
A few blurbs:
"A timely and critically important origins story of how black youth became over-policed and under-protected in one of the most liberal cities in America. They were victims of institutional racism and an increasingly hostile police force that refused to protect their right to protest and organize for racial justice. Young people’s bitter awakening to racial consciousness at the end of a police baton is, as Carl Suddler skillfully shows, the starting point for understanding why stop-and-frisk first made its debut in New York City over a half-century ago." ~ Khalil Gibran Muhammad
"In this powerful, timely, and deeply unsettling recovery of America’s criminal justice past, Suddler shines vital new light on the present. By brilliantly revealing the nation’s postwar effort to deal with troubled young people more humanely, this book forces us to face the extent to which the presumption of black criminality utterly undermined that effort and thereafter ensured that black boys and girls would forever be ensnared in a fundamentally unjust juvenile justice system." ~ Heather Ann Thompson
More information is available here.

-- Karen Tani

Monday, February 10, 2020

Manners and Menand on the Presidential Removal Power

Jane Manners and Lev Menand, Academic Fellows and Lecturers in Law, Columbia Law School, have posted Removal Permissions and the Forgotten Tenure of a Term of Years:
Just seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and for INM only. While these words establish the contours of these agencies’ “independent” character, there is no consensus about what they mean, and thus, the extent of agency independence. This Article addresses that gap. It resurrects the lost history of removal law and defines INM. It shows that neglect of duty and malfeasance in office are common law terms relating to faithful execution that date back hundreds of years and that inefficiency is a nineteenth century concept having to do with government waste and ineptitude. It further shows that INM provisions are not removal “protections” as they have come to be interpreted in recent years, but removal permissions. Where present, they expand the President’s power by authorizing him to remove officials who are tenured for a term-of-years, a tenure long understood to bar removal—for any reason—by the President in the middle of an officer’s term. Three conclusions follow. First, INM was not written to empower the President to direct agency actions. Independent agencies heads really were meant to exercise their discretionary authority independently. Second, even under an expansive reading of Article II, “for cause” removal provisions do not conflict with the Constitution’s Take Care Clause. INM permits the President to combat “unfaithful execution” by empowering him to remove officials for neglect of duty and malfeasance in office. Third, courts have erred by regularly reading INM into enabling statutes that are silent on removal. Where such statutes create offices “for years,” they presumptively prohibit removal—whether summarily or for cause.
--Dan Ernst

Nash and Collins on the Certificate of Division and the Early Supreme Court

Jonathan Remy Nash, Emory University School of Law, and Michael G. Collins, University of Virginia School of Law, have posted The Certificate of Division and the Early Supreme Court:
The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.

As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.
--Dan Ernst

Roth on reproductive lives in Brazil

Cassia Roth (University of Georgia) has published A Miscarriage of Justice: Women's Reproductive Lives and the Law in Early Twentieth-Century Brazil with Stanford University Press. From the publisher: 
Cover of A Miscarriage of Justice by Cassia Roth
A Miscarriage of Justice examines women's reproductive health in relation to legal and medical policy in Rio de Janeiro, Brazil. After the abolition of slavery in 1888 and the onset of republicanism in 1889, women's reproductive capabilities—their ability to conceive and raise future citizens and laborers—became critical to the expansion of the new Brazilian state. Analyzing court cases, law, medical writings, and health data, Cassia Roth argues that the state's approach to women's health in the early twentieth century focused on criminalizing fertility control without improving services or outcomes for women. Ultimately, the increasingly interventionist state fostered a culture of condemnation around poor women's reproduction that extended beyond elite discourses into the popular imagination.
By tracing how legal thought and medical knowledge became cemented into law and clinical practice, how obstetricians, public health officials, and legal practitioners approached fertility control, and how women experienced and negotiated their reproductive lives, A Miscarriage of Justice provides a new way of interpreting the intertwined histories of gender, race, reproduction, and the state—and shows how these questions continue to reverberate in debates over reproductive rights and women's health in Brazil today.
Praise for the book:

 "Roth's remarkably wide-ranging research offers a comprehensive and nuanced analysis of the science, law, politics, and lived experiences surrounding women's reproduction in Rio de Janeiro in the first half of the twentieth century. Deeply contextualized in the social, economic, and cultural history of post-abolition Brazil, A Miscarriage of Justice interrogates the dialogue between local and global histories of medical and legal sciences while maintaining focus on individual women whose reproductive lives were increasingly pathologized and criminalized. This remarkable book is sure to become required reading in the fields of Latin American and gender history." - Sueann Caulfield

"With straightforward elegance, Roth conveys the harsh realities of women's reproductive experiences in Brazil in a time of great social transformation. Fully accounting for the historical, political, and cultural complexities of their interactions with the larger community and the state, the author documents both change over time and the continuity of women's legal—and even existential—disenfranchisement through varying political regimes." - Julia E. Rodriguez

"In A Miscarriage of Justice, Cassia Roth provides an innovative and unique history of reproduction in Brazil, weaving together medical and legal directives on childbirth, abortion, and infanticide alongside the intimate, embodied experiences of gendered 'crimes' and social inequalities in Rio de Janeiro. Taking a broad view of reproductive health that explores motherhood, infanticide, and abortion simultaneously, Roth argues that the surveillance and criminalization of women's reproductive practices and of their racialized bodies were critical anchors of Brazilian state-building, especially during the complex years of the authoritarian Estado Novo. This is a deeply researched, sophisticated, and insightful study with significant implications for understanding reproductive justice issues even in contemporary politics." - Okezi T. Otovo

Further information is available here.

--Mitra Sharafi

Sunday, February 9, 2020

Kennedy and Schuler to Speak on Diversity in Western District of PA

We've learned that on Wednesday, February 12, from 2-4 pm at the Joseph F. Weis, Jr., Federal Courthouse, the US District Court for the Western District of Pennsylvania and the Homer S. Brown Division of the Allegheny County Bar Association are sponsoring the event, Conceived in Liberty and Dedicated to Equality: A Celebration of Diversity in the Western District of Pennsylvania, at which Professor Randall L. Kennedy, Harvard Law School, and Ronald W. Schuler, the author of The Steel Bar: Pittsburgh Lawyers and the Making of America, will be featured speakers.

Gagarin's "Democratic Law in Classical Athens"

Michael Gagarin, the James R. Dougherty, Jr. Centennial Professor of Classics Emeritus at the University of Texas at Austin, has published Democratic Law in Classical Athens in the University of Texas Press’s Fordyce W. Mitchel Memorial Lecture Series:
The democratic legal system created by the Athenians was completely controlled by ordinary citizens, with no judges, lawyers, or jurists involved. It placed great importance on the litigants’ rhetorical performances. Did this make it nothing more than a rhetorical contest judged by largely uneducated citizens that had nothing to do with law, a criticism that some, including Plato, have made?

Michael Gagarin argues to the contrary, contending that the Athenians both controlled litigants’ performances and incorporated many other unusual features into their legal system, including rules for interrogating slaves and swearing an oath. The Athenians, Gagarin shows, adhered to the law as they understood it, which was a set of principles more flexible than our current understanding allows. The Athenians also insisted that their legal system serve the ends of justice and benefit the city and its people. In this way, the law ultimately satisfied most Athenians and probably produced just results as often as modern legal systems do. Comprehensive and wide-ranging, Democratic Law in Classical Athens offers a new perspective for viewing a legal system that was democratic in a way only the Athenians could achieve.
--Dan Ernst

Saturday, February 8, 2020

Weekend Roundup

  • The conference Critical Legal Studies: Intellectual History and the history of the present, will be held at Princeton University, on February 27-28, 2020.  “Prompted by plans to create a Critical Legal Studies Archive at the Princeton University Mudd Library, the conference will bring together those who participated in CLS in its heyday; key figures from contemporaneous movements in the US and abroad; and people interested today in this history and its contemporary significance.”  The conference is free and open to the public and sponsored by Princeton's Program in Law and Public Affairs.
  • At The Historical Society of the New York State Courts: A biographical sketch of Harold Arnoldus Stevens.  Also, a YouTube video in which member of the Society's Board of Trustees discusses "how we have tragically lost details of historic NY events of national importance."
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 7, 2020

Shapiro's "Law Reform in Early Modern England"

Barbara J Shapiro, Professor Emerita and Professor in the Graduate School, University of California, Berkeley, has published Law Reform in Early Modern England: Crown, Parliament and the Press (Hart Publishing):
This book provides an illuminating commentary of law reform in the early modern era (1500–1740) and views the moves to improve law and legal institutions in the context of changing political and governmental environments.

Taking a fresh look at law reform over several centuries, it explores the efforts of the king and parliament, and the body of literature supporting law reform that emerged with the growth of print media, to assess the place of the well-known attempts of the revolutionary era in the context of earlier and later movements. Law reform is seen as a long term concern and a longer time frame is essential to understand the 1640–1660 reform measures.

The book considers two law reform movements: the moderate movement which had a lengthy history and whose chief supporters were the governmental and parliamentary elites, and which focused on improving existing law and legal institutions, and the radical reform movement, which was concentrated in the revolutionary decades and which sought to overthrow the common law, the legal profession and the existing system of courts. Informed by attention to the institutional difficulties in completing legislation, this highlights the need to examine particular parliaments.

Although lawyers have often been seen as the chief obstacles to law reform, this book emphasises their contributions – particularly their role in legislation and in reforming the corpus of legal materials – and highlights the previously ignored reform efforts of Lord Chancellors.
--Dan Ernst

Second Call: Legal History on the Web


[We share the following message.]
Second Call for Information about Legal History Websites/Multimedia Projects for “Legal History on the Web”
Many of you may have had occasion to use “Legal History on the Web,” a gateway to online resources related to legal history that we started at Duke University in 2006.  This year we are undertaking a long-overdue update of the site, building on the platform first created by Mitch Fraas and revised by Ashton Merck, both working with and under the direction of Ed Balleisen.

We particularly invite suggestions for websites to include in a couple of new categories, as well as sites that engage with legal history outside the United States and the UK.

We are already well into the process of fixing broken links by updating URLs and revising annotations for existing websites where advisable.  If you know of any websites that require updates or that you think merit inclusion on “Legal History on the Web,” please send along the relevant information to Siobhan Barco, at siobhan.barco@duke.edu.

Please feel free to send along suggested text for annotations to any new links that you nominate for inclusion.  That suggested text needs to be short – just a few lines that encapsulate what the site has to offer legal historians (see current annotations for examples).
Existing Categories:

Other Web Gateways to Legal History
Library Research Guides/General Reference Resources
Primary Source Databases/Web Archives (likely to be renamed in some way to convey expansive digital legal history projects that include GIS mapping or other kinds of digital analysis in addition to primary sources).
Law & Popular Culture  (possibly to be discontinued unless we locate a sufficient number of relevant sites)
Chronologies
Journals
Publishers with Legal History Lists
Blogs
Workshops, Seminars, and Working Groups
Scholarly Associations and Networks
Graduate Programs in Legal History/Law and Society
Reading Lists
Syllabi  (sorely in need of updating – syllabi disappear more frequently than perhaps any other category on the site)
Fellowships
Grants
Prizes
Job Market for Legal History

New Categories:

  •   Companion Websites to Legal History Books
(See for example, Ed Balleisen’s Suckers & Swindlers in American History, a companion site to his Fraud: An American History from Barnum to Madoff, which includes an extensive bibliography, essay about sources and methods, essay about avenues for future research, compilations of fraud-related slang, and much else besides.)
  • Legal History Multimedia (e.g.) podcasts / documentaries)
Thanks for your crowd-sourcing help as we seek to refresh this resource for the legal history community.

 Ed Balleisen
Siobhan Barco

Thursday, February 6, 2020

Berger-Howe Deadline Approaching

[We’ve earlier posted a version of this announcement, but because the deadline of February 15 is imminent, we’re reposting.  DRE] 

Harvard Law School invites applications for the Berger-Howe Fellowship for the academic year 2020-2021. Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period.

Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Colloquium, which meets four or five times each semester. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2020-2021 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu).

Each interested applicant should submit:

• a detailed (five pages maximum) description of a proposed project,
• a writing sample,
• a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, and
• copies of official transcripts of all academic work done at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is February 15, 2020, and announcement of the award will be made by March 15, 2020.

The fellow selected will be awarded a stipend of $38,000.

The Rise and Fall of Heart Balm Actions for Intimate Deception: “Itching Palms in the Guise of Aching Hearts”

Why hasn’t the law regulating intimate deception attracted more scholarly attention?  One potential explanation is that unsuccessful lawsuits tend to generate less interest than successful ones, and most deceived intimates do not win in court.  Indeed, the remedies available for intimate deception have contracted significantly since the early twentieth century.  This post draws on my recent book, Intimate Lies and the Law, to explore how anti-heart balm legislation helps explain that change.

In the nineteenth and early twentieth centuries, some deceived women were able to obtain redress by using common law causes of action for seduction or breach of promise to marry.  These plaintiffs reported that they had been deceived into sex through false promises of marriage—promises men had made while never intending to carry them out.  Such deceit could cause substantial injury, especially for women left pregnant and unwed.

Starting with Indiana in 1935, however, a wave of state legislatures prohibited suits for seduction and breach of promise to marry.  The key argument behind this flurry of “anti-heart balm” legislation was that the women pursuing seduction or breach of promise claims were fraudsters concealing their “itching palms in the guise of aching hearts.”

Lawmakers presented no actual evidence that female plaintiffs were lying about their experiences.  Instead, legislators relied on circular logic.  The proof that women bringing seduction or breach of promise actions were dishonest graspers advancing “blackmail suits” was the very fact the women had sued.  After all, “self-respecting women” did not publicly accuse men of misconduct.

The reasoning that propelled anti-heart balm laws forward does not fare well in the light of modern scrutiny.  Yet these laws are not dusty relics.  Courts continue to rely on them when blocking litigation from deceived intimates.

In fact, courts have interpreted anti-heart balm laws expansively.  If you were once engaged and did not marry, courts typically will not let you sue your former fiancé for deceiving you about anything—even if it is unrelated to the broken engagement itself.  Some courts have interpreted statutory prohibitions on breach of promise to marry litigation so broadly that they use those prohibitions to dismiss litigation between people who actually married, where no promise to marry was breached at all.

In short, the enactment of anti-heart balm laws and their expansive interpretation help explain why we have fewer remedies for intimate deception than we did in the early twentieth century.  Judges invoke anti-heart balm laws to stop as much litigation over intimate deception as they can.

— Jill Hasday

Gerber on the Pilgrims, Law and Religion

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Law and Religion in Plymouth Colony, which appears in the British Journal of American Legal Studies 8 (2019): 167191:
2020 marks the 400th anniversary of the planting of Plymouth Colony. Although the literature about Plymouth is voluminous, the discussion about law and religion has been inappropriately superficial to date. This Article addresses the Pilgrims’ conception of law on matters of religion and the new insights into the Pilgrims’ story that can be ascertained by focusing on law.

“Law” has been defined in many different ways by many different people throughout history. Aristotle, Cicero, Thomas Aquinas, and other proponents of natural law argued that law is the exercise of reason to deduce binding rules of moral behavior from nature’s or God’s creation. The renowned English positivist John Austin, in contrast, maintained that law is the command of the sovereign. To Friedrich Karl von Savigny and other proponents of the so-called historical school, law is the unconscious embodiment of the common will of the people. To the philosophical school, law is the expression of idealized ethical custom. The dominant contemporary view seems to be that law is the reflection of social, political, and economic interests.

For the Pilgrims of Plymouth Colony, law was both the memorialization of their commitment to the Word of God and an instrument for exercising social control so as to effectuate that commitment. The Pilgrims, of course, used law to regulate the more mundane aspects of life as well. Indeed, quantitatively speaking, more laws were enacted by the Pilgrims that addressed the day-to-day activities of life in Plymouth Colony than memorialized the Pilgrims’ commitment to eternal glory in the afterlife, but the latter was unquestionably more important, qualitatively speaking, than the former. In the oft-quoted words of a young William Bradford, “to keep a good conscience, and walk in such a way as God has prescribed in his Word, is a thing which I must prefer before you all, and above life itself.”
--Dan Ernst

Wednesday, February 5, 2020

Mortenson and Bagley on Delegation at the Founding

Julian Davis Mortenson and Nicholas Bagley, University of Michigan Law School, have posted Delegation at the Founding:
This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, there was no constitutional problem with delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking of any sort. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.
--Dan Ernst

Khosla on the Indian Constitution

Coming out this month by Madhav Khosla (Ashoka University) is India's Founding Moment: The Constitution of a Most Surprising Democracy with Harvard University Press. From the publisher:
Cover: India’s Founding Moment in HARDCOVER
Britain’s justification for colonial rule in India stressed the impossibility of Indian self-government. And the empire did its best to ensure this was the case, impoverishing Indian subjects and doing little to improve their socioeconomic reality. So when independence came, the cultivation of democratic citizenship was a foremost challenge.
Madhav Khosla explores the means India’s founders used to foster a democratic ethos. They knew the people would need to learn ways of citizenship, but the path to education did not lie in rule by a superior class of men, as the British insisted. Rather, it rested on the creation of a self-sustaining politics. The makers of the Indian Constitution instituted universal suffrage amid poverty, illiteracy, social heterogeneity, and centuries of tradition. They crafted a constitutional system that could respond to the problem of democratization under the most inhospitable conditions. On January 26, 1950, the Indian Constitution—the longest in the world—came into effect.
More than half of the world’s constitutions have been written in the past three decades. Unlike the constitutional revolutions of the late eighteenth century, these contemporary revolutions have occurred in countries characterized by low levels of economic growth and education, where voting populations are deeply divided by race, religion, and ethnicity. And these countries have democratized at once, not gradually. The events and ideas of India’s Founding Moment offer a natural reference point for these nations where democracy and constitutionalism have arrived simultaneously, and they remind us of the promise and challenge of self-rule today.
Advance praise for the book:

“Erudite, analytically dazzling, and with a rare understanding of both India’s and democracy’s challenges, Madhav Khosla’s India’s Founding Moment gives readers unparalleled access to the ideas behind India’s radical experiment in democratic constitution-making. As that noble vision is now under assault from sinister forces that Gandhi, Nehru, and Ambedkar knew well, we all should ponder Khosla’s all-too-timely book and do whatever we can to prevent the demise of India’s constitutional order.”—Martha C. Nussbaum

“This brilliant and challenging book shows how political choices—what to put in a constitution, the locus of effective power, and the forms of representation—can create citizens who can and must govern themselves in a modern democracy while facing deep challenges caused by poverty, caste, and illiteracy. It is at once a contribution to Indian constitutional history, constitutional theory, and political theory, and is a ‘must read’ for everyone in those fields.”—Mark Tushnet

“This is a sensitive analysis of the moral imagination behind the Indian Constitution, a document intended to free the democratic process from sectarian identities and to strengthen centralized state power. As Indian democracy struggles to stay on the rails, Khosla’s book is a timely reminder of what it was meant to be.”—Partha Chatterjee

Further information is available here.

--Mitra Sharafi 

Tuesday, February 4, 2020

Arvind and Burset's New Report of Entick v. Carrington

T. T. Arvind, York Law School, and Christian Burset, Notre Dame Law School, have posted A New Report of Entick v. Carrington (1765):
The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation, and for more than 130 years, the Court has read Entick carefully to learn the original meaning of the Fourth Amendment. But the Court has been reading a flawed version of the case. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, as well as how this new discovery might challenge prevailing assumptions about the Fourth Amendment and Entick’s place in British and American constitutional history more broadly. Although we leave a full reevaluation of Entick for future scholarship, we show that any future judicial or academic discussion of the case must take this new report into account.
--Dan Ernst

New York University Legal History Colloquium: Spring 2020

The Legal History Colloquium at the New York University School of Law has announced its Spring 2020 lineup of presenters.
January 27: The Radicals' Fund: Experimenting with Democracy in America's First Age of Propaganda, John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law, Yale Law School
February 10: The Taft Court: Social and Economic Legislation, Robert Post, Sterling Professor of Law, Yale Law School
February 24: The Specter of Compensation: Mexican Claims Against the United States, 1923-1941, Allison Powers Useche, Clements Fellow, Southern Methodist University (2019-2020); Assistant Professor of History, Texas Tech University
March 9: The Democracy of Petitions: Popular Politics in Transformation, 1790-1870, Daniel Carpenter, Allie S. Freed Professor of Government, Faculty of Arts and Sciences, Harvard University; Director, Social Sciences Program, Radcliffe Institute for Advanced Study, Harvard University
April 13: International Arbitration and the Rise of an International Law Bar in Turn-of-the-Century America, Lael Weinberger, Berger-Howe Legal History Fellow, Harvard Law School
April 27: Cherokee Nation v. Georgia v. United States, Alison LaCroix, Robert Newton Reid Professor of Law, University of Chicago Law School
The colloquium is run by Professors David Golove and Daniel Hulsebosch. Sessions run from 4:10 to 6:00 p.m. in Vanderbilt Hall, Room 202.

-- Karen Tani

Monday, February 3, 2020

Intimate Lies and the Law

Karen Tani kindly invited me to spend February as a guest blogger.  I’ll be writing about my latest book, Intimate Lies and the Law (Oxford University Press 2019).  This post provides a brief introduction to my overall argument before subsequent posts delve into the legal history in the book.

Just in time for Valentine’s Day, Intimate Lies and the Law examines deception in dating, sex, marriage, and family life and explores the law’s response to this duplicity.

I argue that the law has devoted too much energy to shielding intimate deceivers and placed too little importance on helping the people they deceive.  Deceived intimates should have access to the same legal remedies they would have if they were equivalently deceived outside of intimacy.  The legal system should also do more to counter the incentives to deceive and should look for opportunities to thwart deceitful intimates from carrying out their plans.

In short, entering an intimate relationship should not mean losing legal protection from deceit.

I’m looking forward to blogging about the legal history in Intimate Lies and the Law.  Intimate deception is a fascinating topic—especially when it happens to someone else.

— Jill Hasday

Mawani at Queen Mary

[We have the following announcement.  DRE]

The School of Law, and the Centre for Law and Society in a Global Context, at Queen Mary University of London, are hosting Professor Renisa Mawani (q.v. here and here) for the first week of March 2020. Both events are free and everyone is warmly welcome.  Our two events with Professor Mawani are:
  • On March 3, an interdisciplinary symposium on Professor Mawani’s award-winning, recent book, Across Oceans of Law, with a panel including Dr Luis Eslava (Kent); Professor Laleh Khalili (Queen Mary University of London); Professor Stewart Motha (Birkbeck); Dr Simon Layton (Queen Mary); and Dr Surabhi Ranganathan (University of Cambridge) 

Fordham Constitutional History Workshop: Spring 2020

Via co-organizers Saul Cornell and Jed Shugerman, we have the lineup for the Spring 2020
Fordham Constitutional History Workshop.
Jan. 29: Workshop: Jed Shugerman and Ethan Leib, “Faithful Execution, Fiduciary Constitutionalism, and Good Cause Removal” (paper related to Selia v. CFPB, to be argued March 3, 2020)

Feb. 5: Workshop: Julie Suk, CUNY Graduate Center, chapter “We working women, because we are mothers”: Legacies of the 19th Amendment” from forthcoming book, We the Women: The Forgotten Mothers of the Equal Rights Amendment.

Feb. 12: Workshop: Keith Whittington, Princeton (Politics Dept), Constitutional Crises, Real and Imagined (selections from forthcoming book)

Feb. 19: Selections from Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s–1830s (2019)

Feb. 26: Workshop: Kunal Parker, U. of Miami Law, "Common Law Modernism: The Turn to Process in American Legal Thought, 1900 – 1970,” chapter from book manuscript on the idea of process in American legal, political, and economic thought (1900 - 1970)

March 4: Workshop: Jonathan Gienapp, Stanford History, selections from The Second Creation: Fixing the American Constitution in the Founding Era (2018)

March 11: Workshop: Felicia Kornbluh, University of Vermont, ‘Reproductive Rights and Justice Beyond Roe v. Wade: The View from 800 West End Ave’

March 25: Workshop: Nicholas Parrillo, Yale Law School, “Federal Tax Administration in the Early Republic.”

April 15: Workshop: Joanne Freeman, Yale History, selections from The Field of Blood: Violence in Congress and the Road to Civil War (2018)
All events are scheduled for Wednesdays, 2 to 3:50 PM, at Fordham Law School (Lincoln Center), Room 4-06. Contact the organizers for more information.

-- Karen Tani

Coffey on secession and the British Commonwealth

We missed this one in 2018: Donal K. Coffey (Max Planck Institute for European Legal History) published " 'The Right to Shoot Himself': Secession in the British Commonwealth of Nations," The Journal of Imperial and Commonwealth History 39:2 (2018), 117-39. Here is the abstract:
The ultimate test of whether an association is voluntary or not is if you can leave it. It is difficult, at this remove, to appreciate how live an issue secession from the British commonwealth of nations was in the 1920s and 1930s. It occupied an inordinate amount of time and negotiation for a doctrine that had been ostensibly conceded in 1920. Yet, much as with the case of the appeal to the judicial committee of the privy council, once the dominions sought to take advantage of the freedom which had been guaranteed by official statements, they found a formidable amount of diplomatic pressure and legal opinion brought to bear to indicate that no such right could be officially declared. This article traces the evolution of the arguments about the right to secede in the 1930s, and examines how the right came eventually to be exercised in the case of the new commonwealth countries in the 1940s. It concludes by examining how the doctrine of secession as developed in the 1930s was abandoned in order to retain Indian membership in the commonwealth.
Further information is available here.

--Mitra Sharafi

Sunday, February 2, 2020

Ehighalua on the Tenth Amendment

Iseghohime Ehighalua, a doctoral candidate at the American University, Washington College of Law, has posted The Tenth Amendment: A Reflection:
The tenth amendment is both a legal and political toolkit for proponents on opposite sides of the national government vis-a-vis state rights divide. These binary, indeed, multi-visionary visions pervaded the U.S. Constitution making process, thus, the Founding Fathers debated these and other ideas intensely before drafting the Constitution. As a measure of this polarization, some of the ideas and rights that did not make it to the Constitution were subsequently reflected in amendments. This was how the tenth amendment found its way into the Bill of Rights and is today considered part of the Constitution. In this essay, I unpack the history of the tenth amendment and how the Founding Fathers argued for its inclusion in the Constitution. I identified James Madison and Alexander Hamilton as the two outstanding Fathers who championed the fight. This essay will demonstrate that the tenth amendment will always be at the intersection of how the executive and the legislative branches interpret their powers, and how either of the branches will use it to justify or undermine the very concept of representative government. As the tenth amendment envisaged that powers not delegated to the federal government or prohibited by it to the states are reserved to the states and the people, it must be jealously guided ultimately by the people, since democracy is envisioned as a system of government of, by, and for the people. I argue that the people must remain vigilant, as eternal vigilance is the price of liberty.
--Dan Ernst.  H/t: Legal Theory Blog