Saturday, February 29, 2020

Thank you, Jill Hasday!

We are sad to report that our month with guest blogger Jill Hasday has come to an end. Here are links to her posts, in case you missed them:
She also has a great website, which you can consult for more information about her research.

We also are big fans for her Twitter feed. Follow her and be amazed by how often "intimate lies" show up in the news!

Thank you, Jill Hasday!

-- Karen Tani

Weekend Roundup

  • The submission portal for the 2020 annual conference of the American Society for Legal History, which will be held November 11-14 at the Sheraton Grand Chicago, is now open!  The deadline to submit a paper or proposal is Friday, March 13, 2020.  Our post of the call is here.  Other information is here.
  • We somehow missed the publication last summer in the Harvard Law Review of Dr. Wu's Constitution, a note on what the author called the “conflicted approach to civil liberties” that John Jingxiong Wu, one of Holmes’s correspondents, took in drafting a constitution for the Republic of China in the 1930s.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 28, 2020

Call for Applications: Early Career Cromwell Research Fellowships

We have the following announcement:
Call for Applications for Early Career Cromwell Research Fellowships

The William Nelson Cromwell Foundation will make available a number of $5,000 fellowship awards to support research and writing in American legal history by early-career scholars. Early career generally includes those researching or writing a PhD dissertation (or equivalent project) and recent recipients of a graduate degree working on their first major monograph or research project. The Committee for Research Fellowships and Awards of the American Society for Legal History reviews the applications and makes recommendations to the Foundation. Applications are due by July 1, 2020.

Complete guidelines and instructions regarding how to apply for such fellowships are located on the website of the American Society of Legal History [here].
-- Karen Tani

Graber on the Ship-Money Case

Not because we know enough to have an opinion on the merits, but because we're not immune from the appeal of snark in a title, we smiled when we saw that Mark Graber, University of Maryland Francis King Carey School of Law, has posted Ship Money: The Case that Time and Whittington Forgot, which is forthcoming in Constitutional Commentary:
The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the theoretical foundations for judicial review. This review details how the majority and dissenting opinions in Ship-Money provided Americans with two distinctive paths to a judicial power to declare laws unconstitutional. The majority opinions emphasized sovereignty. Judicial review serves to protect the will of the sovereign, be that the King, Parliament or the people. The dissents emphasized fundamental law. Judicial review serves to protect higher law principles. Marbury grounded judicial review in a theory of sovereignty. James Otis when protesting the Stamp Act grounded judicial review in higher law principles. Both approaches intertwine in American constitutional development.

The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the political construction of judicial review. Increasing agreement exists among scholars of constitutional law that judicial review has political foundations. Ran Hirschl and Tom Ginsburg detail how the judicialization of politics outside the United States has similar political foundations. Talk of politics disappears, however, when conversation turns to the rise of parliamentary sovereignty in England. Distinguished histories begin with Bonham’s Case, which scholars discuss as an intervention in the theory of judicial power. The English path ends with Blackstone declaring that courts have no power to declare laws unconstitutional. Parliamentary sovereignty appears to have just happened in England or Bonham perhaps aside, been the rule from time immemorial. No politics here.

Ship-Money puts politics back into explanations for the rise of parliamentary sovereignty in England and the later rise of judicial power in the United States. The judicial opinions in Ship-Money demonstrate that judicial elites in the mid-seventeenth century had developed a conception of judicial power rooted in royal sovereignty that justified striking down parliamentary legislation inconsistent with royal prerogatives. The political foundations of Ship-Money judicial review, however, collapsed almost immediately. The judicial majority in Ship-Money placed the courts firmly on what become within a decade the losing side of the English Civil War when asserting that sovereignty was vested in the King, that one aspect of this sovereignty was royal power to levy exactations without parliamentary consent, and that laws that trenched on this regal prerogative were void. Institutional power after 1648 and 1688 flowed to Parliament, the institution on the winning side of the English revolution. The new understanding of judicial power, celebrated by Blackstone, maintained that courts could not strike down legislation because Parliament was sovereign, but that justices could declare illegal royal decrees inconsistent with Parliamentary sovereignty. “Ultra vires” judicial power and only “ultra vires” judicial power does not date from “time immemorial, but became during the late seventeenth and early eighteenth centuries the dominant philosophy of the members of Parliament who gained power after the English Civil War and Glorious Revolution.
--Dan Ernst

SHAFR Dissertation Completion Fellowship

[We have the following announcement. DRE]

SHAFR Marilyn Blatt Young Dissertation Completion Fellowship

The Society for Historians of American Foreign Relations (SHAFR) invites applications for its dissertation completion fellowship. SHAFR will make one year-long award in the amount of $25,000 each, to support the writing and completion of the doctoral dissertation in each academic year. This highly competitive fellowship will support the most promising doctoral candidates in the final phase of completing their dissertations. Membership in SHAFR is required. Applicants should be candidates for the PhD in a humanities or social science doctoral program (most likely history), must have been admitted to candidacy, and must be at the writing stage, with all substantial research completed by the time of the award. Applicants should be working on a topic in the field of U.S. foreign relations history or international history, broadly defined, and must be current members of SHAFR. Because successful applicants are expected to finish writing the dissertation during the tenure of the fellowship, they should not engage in teaching opportunities or extensive paid work, except at the discretion of the Fellowship Committee. At the termination of the award period, recipients must provide a one page (250-word) report to the SHAFR Council on the use of the fellowship, to be considered for publication in the society newsletter. The submission packet should include:
  • A one page application letter describing the project’s significance, the applicant’s status, other support received or applied for and the prospects for completion within the year.
  • A three-page statement of the research
  • A curriculum vitae
  • A letter of recommendation from the primary doctoral advisor.
The research statement should run no longer than three double-spaced pages; statements exceeding this limit will not be reviewed. The letter may be single-spaced. Both the letter and statement should be formatted with 1-inch margins and 12 point font, Times New Roman preferred.

To apply, please use the online application. Questions can be sent by electronic mail to dissertation-fellowships@shafr.org. The deadline for submissions is 1 April. Fellowship awards will be decided by around May 1 and will be announced formally during the SHAFR annual meeting in June, with expenditure to be administered during the subsequent academic year.

The Fellowship Committee
Hidetaka Hirota, Chair
Vanessa Walker
Ilaria Scaglia

Women's Enfranchisement: Beyond the 19th Amendment

[We share the following announcement about an upcoming conference on women's enfranchisement at the University of Colorado Law School in Boulder. The conference is in honor of the centennial of the 19th Amendment's ratification, and has a significant emphasis on legal history.]

The University of Colorado Law School’s Byron R. White Center for the Study of American Constitutional Law, directed by Professor Suzette Malveaux, will host its 2020 Ira C. Rothgerber Jr. Conference on Constitutional Law on Friday, April 3, 2020, on the topic:  “Women’s Enfranchisement: Beyond the 19th Amendment.”  This year's conference will feature three exciting panels of diverse scholars and lawyers with a Keynote Address by Reva Siegel. 

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women. This conference will use the centennial to take stock of how far we’ve come and how far we have to go in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly. 

6 general CLE credits have been approved for this free conference, and breakfast and lunch will be served to attendees. Register by March 30.

Location: Wittemyer Courtroom | Wolf Law Building (2450 Kittredge Loop Dr, Boulder, CO 80305)

Time: Friday, April 3, 2020 |8:30 am-5:00 pm

Speakers include: 
Keynote: Reva Siegel (Yale Law)  
Panelists: 

Historical Perspectives
Carolyn Ramsey (Colorado Law)
Susan Schulten (University of Denver, Dept. of History)
Julie Suk (CUNY, Graduate Center)
Mary Ziegler (Florida State Law)

Barriers to Political Representation
Ming Chen (Colorado Law)
Atiba Ellis (Marquette Law)
Justin Levitt (Loyola Law)
Bertrall Ross (Berkeley Law)
Dara Strolovitch (Princeton University, Gender & Sexuality Studies)

Lived Equality:  Beyond Formal Political Rights 
Chinyere Ezie (Center for Constitutional Rights)
Diana Flynn (Lambda Legal)
Cary Franklin (University of Texas Law)
Aya Gruber (Colorado Law)
Scott Skinner-Thompson (Colorado Law)

Further information is available here.

--Mitra Sharafi

Thursday, February 27, 2020

ASLH 2019 Symposium Report: What is a Legal Archive?

[We are grateful to Kalyani Ramnath, the Prize Fellow in Economics, History, and Politics at the Center for History and Economics, Harvard University, for passing along to us this report on the half-day symposium on legal archives that took place during the annual meeting of the ASLH last November.  It was written by the attendees Dr. Sonia Tycko (Oxford) and Sally Hayes (Harvard).  DRE]

Report on “What is a Legal Archive?”:| A Half-Day Symposium Organized by the Center for History and Economics, Harvard University and the American Society for Legal History

Sonia Tycko & Marcella McGee Hayes

What is a legal archive, how can we improve our skills and vocabulary for working with legal records, and what questions are legal historians asking about documentation, writing, and bureaucracy? How does this shape everyday life for historical actors? These were the guiding questions convenor Kalyani Ramnath, Prize Fellow in Economics, History, and Politics at the Center for History and Economics, Harvard University, posed at a symposium hosted by the Joint Center for History and Economics at Harvard University and the American Society for Legal History on Wednesday, November 20, 2019. Center co-director Emma Rothschild began proceedings by observing how Hendrik Hartog's field-changing early work established an approach to legal history without boundaries. Legal history, then, works in analogous ways to economic history as pursued in its most capacious form at the Center. Each panel put a historian of South Asia and Latin America in conversation.

Panel 1: Bhavani Raman, Associate Professor History at University of Toronto, spoke about her current book project on martial law and the state of exception in the nineteenth-century Madras and Bengal presidencies. Raman emphasized that historians have neglected this topic, despite its huge archive, due to the lack of catalogues and calendars. She argued that the martial law records show how inaccessible imperial justice was, despite the conceit that the British Empire brought justice to all. Her three areas of focus were on appeals, the amicus brief, and on military focus, including ways in which precedent on martial law circulates between Bengal, Madras, Jamaica, South Africa and in the present day, to Guantanamo Bay. She concluded by asking how we might think of the legal archive, by adding more documents, or by rethinking what the archive means.

Michelle McKinley, Bernard B. Kliks Professor of Law at the University of Oregon Law School and director for the Center for the Study of Women in Society, presented her work on the freedom suit of enslaved woman, known simply as Juana, from a Lima convent in 1687. McKinley posed the question: how can enslaved people create an archive? She emphasized the importance of the Spanish American notarial archives as a counterpoint to the convent's corporate records of manumissions. By focusing on Juana instead of the much better-documented woman religious who claimed her as a slave, McKinley championed a subaltern perspective but welcomed feedback on how to find the appropriate level of speculation. She also encouraged symposium participants to invest in learning paleography and build good working relationships with archive staff to gain access to a wider range of documents.

Panel 2: Julia Stephens, Assistant Professor of History, Rutgers University, focused on a will that "haunted" her while researching her current project on financial and memorial legacies of families in the nineteenth-century South Asian diaspora at the National Archives at Kew, UK. She recounted how she found a sealed envelope while going through one series. Upon careful unsealing by the conservators, the envelope revealed the will and photograph of a South Asian man, Sher Dilkhan, who left his property to the as-yet-unborn child Ussuf in Tianjin,  Stephens, like McKinley, meditated on the boundary between speculation and fabulation. She argued that migrants used photos simultaneously as bureaucratic tools and affective tokens.
Caroline Cunill, Faculty Member, History Department, Universite du Maine, shared her research on the construction of imperial legality in the sixteenth-century Spanish monarchy. She advocated for reconstructing the dialogic nature of archives across multiple collection series. Cunill demonstrated how she connected related vassals' reports to the Council from Yucatán, intra-Council note taking and record keeping, and the legislation of imperial decrees. With careful paleography, Cunill was able to track individual hands in the marginal comments of these records, identifying the diplomatic practices and influence of anonymous ministers who had significant cumulative power.

Panel 3: Elizabeth Lhost, Postdoctoral Fellow in the Dartmouth Society of Fellows, explored the idea of the fatwa , a non-binding legal opinion issued by a mufti, a scholar of Islamic law as an archive of socio-legal history. Her talk used the case study of Mariam Bi, a woman in mid-twentieth century Hyderabad who wanted to know whether the disappearance of her husband meant that she could seek a judicial nullification of her marriage, to illustrate this concept. Anyone with a juridical problem to solve could write in to get an opinion on their case; they would receive a reply with a transcription of the original question, an answer, and an official seal at the top. Querents who wanted a particular type of answer might "forum shop" by writing to a number of different authorities from different schools of thought. Religious authorities sometimes published anonymized fatwas in local newspapers in hope of helping readers with similar problems. Lhost talked through several ways of reading fatwas as a legal archive. She also talked about how to combine fragmentary evidence to create historical narrative including embracing the anonymous subject, combining cases together to create longer narratives, connecting different characters or places across cases, and undoing internal categories that law creates.

Melissa Teixeira, Assistant Professor of History, University of Pennsylvania, examined the legal archives left behind by authoritarian legalisms. She looked the corporatist dictatorships that came into power in the 30s across Latin America and Southern Europe, especially Portugal and Brazil. These states tried to carve out a third path between collectivist communism and free market capitalism by taking a predominant role in the economy. This strategy often failed to address the chronic economic challenges it was designed to meet, but it did transform the everyday economic lives of citizens in ways the state did not foresee. In both Brazil and Portugal, tribunals designed to catch high-level white-collar crimes such as cartel formation became venues for citizens to file complaints about everyday petty commerce. The prices of bread, butter, and oranges became a way for these people to stake a claim to economic justice and air out personal grievances. Teixeira explained that the dictatorships wanted to be seen to enforce the law fairly, yet citizens had different ideas about these tribunals and were able to direct them to their own ends. The legal archives of economic lives serve two functions - first, as a blueprint of national economies they envisaged, and second, as an (incomplete) account of how people navigated everyday economic lives.

Panel 4: Tatiana Seijas, Associate Professor of History, Rutgers University, used civil court records to reconstruct the worlds and life histories of market sellers in seventeenth-century Mexico City. By building rich micro-histories out of disputes over affairs such as land deals, dowries, and wills, Seijas illustrated the purchasing power and agency of Mexico City residents both rich and poor, male and female, enslaved and free. She showed how these cases could be read to illustrate the logics of their decision-making and the stakes of their lives, and she explained her decision to make a tacit argument about these people and the way they lived by immersing readers in these narratives.

Durba Mitra, Assistant Professor of Studies of Women, Gender, and Sexuality, Harvard University, explained how she used a vast corpus of materials such as biographies, manuals, and civil criminal court records to understand the idea of the "prostitute" in British India particularly during the nineteenth century. She did not seek to uncover the life histories of Indian women who may or may not have engaged in sex work; her goal was to construct the archetype as generations of Indians understood it. She posited that sometimes the legal archive is described as fragmentary, when what that person really means to say is that it does not tell us the story we want to hear. From the perspective of the people who built and assembled the archive, it may not be fragmentary at all. By reading with the people who constructed this archive, rather than against the grain, Mitra was able to show what they had in mind when they imagined the prostitute.

The official program abstract and schedule follows [after the jump]:

Pimm-Smith on education and parental rights under England's Poor Law

Rachel Pimm-Smith (Royal Holloway University of London) has published "District schools and the erosion of parental rights under the Poor Law: a case study from London (1889-1899)" in Continuity and Change 34:3 (Dec.2019), 401-23. Here's the abstract:
This article investigates the empirical backing for the claim that poor law officials needed legal authority to refuse poor parents’ right to the custody of their children in order to stabilise children's welfare institutions during the nineteenth century. Although workhouses were capable of accommodating children, Victorian lawmakers feared children would model themselves on adult paupers to become permanent burdens on the state. To tackle this problem, a system of children's welfare institutions called ‘district schools’ was introduced to train children to become industrious adult labourers. Children were usually classified as orphans or deserted so they could be sent to district schools without fear of family intervention. However, children with ambiguous parental circumstances were labelled as ‘other’ and considered a problematic class because they were perceived to be at risk of having on-going contact with their birth families. Lawmakers feared parents of ‘other’ children would undermine reformation efforts by asserting their custody rights, and passed the first laws in English history to allow the state to restrict parental rights on this basis. This article explores the claim of unwanted parental involvement, and in doing so, seeks to contextualise the origins of public law interference in the family sphere within a narrative of imposed citizenship rather than protection.
Further information is available here

--Mitra Sharafi

Wednesday, February 26, 2020

Rutgers Seeks Applications for Legal History Teaching Position

Rutgers, the State University of New Jersey has posted a call for applications for the position of Assistant Teaching Professor or Assistant Professor of Professional Practice:
Posting Summary

The Department of History, School of Arts and Sciences-Newark, Rutgers University-Newark invites applications for a full-time, non-tenure track, academic year position at the rank of Assistant Teaching Professor or Assistant Professor of Professional Practice for an initial term of one year beginning January 1, 2021. The successful candidate will have a demonstrated commitment to excellence in undergraduate teaching in the area of legal history, preferably of US legal history. In addition, the successful candidate may have some administrative responsibilities. Rutgers non-tenure track positions have competitive salary and benefits.
Posting Open Date: 02/03/2020

Posting Close Date: 03/02/2020

Minimum Education and Experience

Applicants must possess a J.D. or Ph.D. Experience teaching to a diverse undergraduate population is strongly preferred.
More information is available here.

h/t: Nate Holdren, via the Law & History LSA Collaborative Research Network.

-- Karen Tani

 

A Month of Blogging About Intimate Lies and the Law


I have really enjoyed writing about Intimate Lies and the Law during my month as a guest blogger.

Here are links to my posts, in case you missed them the first time:
 





My website has more information about the book and this video interview provides a quick overview.

Follow me on Twitter if you want to keep up with the latest news about secret second families, romance scams, unexpected DNA test results, and more.

— Jill Hasday

Tuesday, February 25, 2020

A Jotwell Roundup from Smita Ghosh

[We are grateful to Smita Ghosh, a JD/ABD at the University of Pennsylvania (and former Associate Legal History Blogger) for this roundup of recent legal history posts on Jotwell.  DRE]

Valentines Day has come and gone. Legal historians may have been too busy thinking about love and may have neglected its important alternative: liking a lot. Jotwell (the "Journal of Things We Like (Lots)") features reviews of recently published books and articles, and has published a number of reviews about well-liked legal history articles since the beginning of this year.

Angela Fernandez reviews Renisa Mawani's Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire (Duke Univ. Press, 2018), a powerful tale of Indian anti-colonialism that uses what Mawani calls "oceans as method." Mawani tells the story of the failed passage of the Komagata Maru, a British trading ship that British authorities sought to regulate to limit Indian access to Canada and, eventually, stem resistance to imperial rule. Fernandez wonders if legal scholars can put other nonhuman entities at the center of their analysis.

Mary Ziegler reviews Stacie Taranto's Kitchen Table Politics: Conservative Women and Family Values in New York (Penn Press, 2017), which examines grassroots efforts, led by Catholic homemakers, to criminalize abortion in New York State and defeat the state's ERA. Ziegler calls this a "captivating case study of the strategies still used by populist legal reform movement," as well as a study of "maternalist politics" in historical context.

Aya Gruber's review of Dorothy Roberts'  Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019) describes Roberts' history of the prison abolitionist movement and also engages with the movement's historical claims--that prisons "can be traced back to slavery and the racial capitalist regime it relied on and sustained." Roberts also finds power in the Antebellum-era radical Republican argument that the Constitution prohibited slavery, although Gruber doubts the "redemptive power" of the Constitution in this context. 

Finally, you can check out Rebecca Zietlow's review of Justin Simard's Citing Slavery (72 Stan. L. Rev. 79 (2020)), which documents the extent to which present-day judges cite cases involving enslaved people and, as Zietlow says, "mask the racial injustice embedded in our law." Tired of reading? Simard has also been featured on the August 24 episode of the Ipse Dixit Podcast. 

Adam and friends on crime and forensic objectivity

Alison Adam (Sheffield Hallam University, UK) has edited Crime and the Construction of Forensic Objectivity from 1850, now out with Palgrave Macmillan (2020). From the press:
coverThis book charts the historical development of "forensic objectivity" through an analysis of the ways in which objective knowledge of crimes, crime scenes, crime materials and criminals is achieved. Taking an interdisciplinary approach, with authors drawn from law, history, sociology and science and technology studies, this work shows how forensic objectivity is constructed through detailed crime history case studies, mainly in relation to murder, set in Scotland, England, Germany, Sweden, USA and Ireland. Starting from the mid-nineteenth century and continuing to the present day, the book argues that a number of developments were crucial. These include: the beginning of crime photography, the use of diagrams and models specially constructed for the courtroom so jurors could be "virtual witnesses," probabilistic models of certainty, the professionalization of medical and scientific expert witnesses and their networks, ways of measuring, recording and developing criminal records and the role of the media, particularly newspapers in reporting on crime, criminals and legal proceedings and their part in the shaping of public opinion on crime. This essential title demonstrates the ways in which forensic objectivity has become a central concept in relation to criminal justice over a period spanning 170 years.
Chapter line-up after the break:

Monday, February 24, 2020

Call for Editors: Continuity and Change

[We have the following call for editors.  DRE]

Dr Chris Briggs and Dr Julie Marfany will shortly be coming to the end of their tenure as editors of Continuity and Change (C&C). Cambridge University Press is now inviting applications for their successors.  The deadline for applications is 1 May, 2020.

Now in its 34th volume, C&C aims to define a field of historical sociology concerned with long-term continuities and discontinuities in the structures of past societies. Emphasis is upon studies whose agenda or methodology combines elements from traditional fields such as history, sociology, law, demography, economics or anthropology, or ranges freely between them. There is a strong commitment to comparative studies over a broad range of cultures and time spans.

The Press is seeking applications from individual editors, or pairs of co-editors, whose research expertise align with this mission and who are eager to help take the journal forward into its next phase.

Working with two experienced co-editors, Dr Susan Hautaniemi Leonard and Professor Mary Louise Nagata, and in collaboration with an international Editorial Board, editorial responsibilities will include:

• Shaping the strategic direction of the journal and defining editorial policy.
• Overseeing a rigorous, constructive and supportive peer review process.
• Making all final decisions on acceptance, rejection and revisions.
• Editing and proofing articles accepted for publication in the Journal.
• Proposing members to join the Editorial Board.

Please indicate in your application:

• Your experience publishing and researching in this field.
• Previous editorial experience or roles in academic administration.
• Your views on both the historiographical vision of the journal, and its strategic development over the next five years.

Applicants can expect a small honorarium and budget, split between the co-editors, to support travel for commissioning work at related conferences. It is not essential, but, where possible, please indicate the form and breadth of institutional backing that may be available to support you in this role.

Please direct applications and any questions in the first instance to Daniel Pearce, Executive Publisher, Cambridge University Press (dpearce@cambridge.org).

Funk on Fusion and on Federal Procedure

Kellen Funk, Columbia Law School, has posted two book chapters.  The first is The Union of Law and Equity: The United States, 1800-1983, which appears in Law and Equity: Fusion and Fission (Cambridge):
From the colonial era to the present day, a number of jurisdictions in the United States have purported to fuse the disparate systems of common law and equity. This chapter focuses on the intellectual history of fusion from the 1848 Field Code to the 1938 Federal Rules. The New York corporate lawyer David Dudley Field and his fellow codifiers sought to replace the distinction between law and equity as the fundamental organizing principle of the law with the distinction between substance and procedure. They believed most of the distinction between law and equity inhered in institutions and procedures and would therefore disappear the moment a statute erected a single court with uniform proceedings. Their vision was shared by the architects of the federal procedure code a generation later. In practice, however, fusion remained far less complete than Field predicted or American lawyers commonly believe. The essay illustrates the dramatic fissions that remained in Field’s own post-fusion practice in 1870s New York.
The second is The Handmaid of Justice: Power and Procedure in the Federal Courts, which appears in Approaches to Federal Judicial History (Federal Judicial Center):
This essay sketches a story of federal procedure writ large: it tells how federal procedure morphed from being the essence of federal power to being a mere instrument of power, from the instantiation of Justice itself in the Marshall Court’s telling to the mere handmaid of Justice as Charles Clark described it. Along the way, I hope to do three things: 1) point out a few tantalizing gaps in our knowledge, should other researchers wish to pursue them, 2) provide a guide to the often puzzling sources of procedural law, especially across the nineteenth century, and 3) wrestle with the question of how federal jurists have defined "procedure" over time.
–Dan Ernst

Saturday, February 22, 2020

Weekend Roundup

  • Congratulations to my fellow Legal History Blogger Karen Tani upon being named the
    University of Pennsylvania’s 24th Penn Integrates Knowledge University Professor, effective July 1.  DRE
  • TOC for Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 87:3 (December 2019).
  • On April 3, the University of Colorado Law School’s Byron R. White Center for the Study of American Constitutional Law hosts its 2020 Ira C. Rothgerber Jr. Conference on Constitutional Law on "Women’s Enfranchisement: Beyond the 19th Amendment," with three panels and a keynote by Reva SiegelMore.
  • The Supreme Court Historical Society has added a 3rd webcast to its site, a discussion with author David Bruce Smith on his children's book, American Hero - John Marshall, Chief Justice of the United StatesMore.
  • Update: Paul J. du Plessis delivered the Alan Watson Memorial Lectures 2020, entitled The Civil Law in Three Acts, at the School of Law, Edinburgh University.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Thursday, February 20, 2020

Hinchy on the policing of India's "criminal tribes"

Jessica Hinchy (Nanyang Technological University, Singapore) has published "Gender, Family, and the Policing of the 'Criminal Tribes' in Nineteenth-Century North India" in Modern Asian Studies (2020), 1-43. Here's the abstract:
In the South Asian setting, the fields of gender history and family history are still predominantly concerned with relatively elite social groups. Few studies have examined issues of gender and the family in the history of Dalit, low-caste, and socially marginalized communities, especially those that were labelled 'criminal tribes' from the mid-nineteenth century on. This article explores the ways in which gender patterned criminalized communities' experiences of everyday colonial governance under Part I of the 1871 Criminal Tribes Act (CTA) in the first two decades that it was enforced in northern India. In this early period, the colonial government did not closely regulate marriage practices, domestic arrangements, or the gendered organization of labour within communities categorized as 'criminal tribes.' Nevertheless, notions of sexuality and gender underlay colonial knowledge of the 'criminal tribes,' which emerged in dialogue with middle-class Indian gender and caste politics. Moreover, the family unit was the central target of the CTA surveillance and policing regime, which aimed to produce 'industrious' families. Officially endorsed forms of labour had complex implications for criminalized communities in the context of North Indian gender norms and strategies of social mobility. Gender power dynamics also shaped criminalized peoples' interpersonal, embodied interactions with British and Indian colonial officials on an everyday basis. Meanwhile, different forms of leverage and evasion were open to men and women to cope with their criminalization and so the colonial state was experienced in highly gendered ways.
A read-only version of the article is available here.

--Mitra Sharafi

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