Tuesday, March 31, 2020

Griffin on Optimistic Originalism and the Reconstruction Amendments

Stephen M. Griffin, Tulane University Law School, has posted Optimistic Originalism and the Reconstruction Amendments which is forthcoming in volume 95 of the Tulane Law Review.  (Professor Griffin will be posting on the paper over at Balkinization, starting here.)  Here’s the abstract:
This article critically examines the relationship of contemporary “public meaning” originalism to the legal achievement of the Reconstruction Amendments. It identifies an influential “optimistic” trend in recent originalist scholarship. A growing number of scholars contend that public meaning originalism can successfully address constitutional issues in light of the Reconstruction amendments. They argue that rightly understood, the Fourteenth Amendment’s original meaning aligns precisely with contemporary case outcomes, especially with respect to providing broad antidiscrimination rights to African Americans and women.

In this article I challenge originalism’s optimistic turn by examining it through a historical lens. Based on a wide-ranging review of recent historical scholarship, I argue that the theory of original public meaning in effect gives scholars permission to be optimists about Reconstruction by allowing them to sidestep its full historical context. This avoids the reality that relative to the point of view of Americans today, the constitutional law of the nineteenth century, which contained doctrines that both predated and outlasted Reconstruction, was unfortunate in many ways.

The argument presented in this article concerning the extent to which the Reconstruction amendments changed prior law has significance beyond the confines of the debate over originalism. The questions raised concerning the cogency of optimistic originalism suggests we should reassess the role of Reconstruction in contemporary legal scholarship. Many constitutional scholars are similarly “optimistic” about the Reconstruction amendments even though they do not count themselves as originalists. I have come to doubt whether the legacy of Reconstruction is as uniformly constructive as it is often represented – at least by legal scholars as opposed to historians.

I argue that the limits of Reconstruction become clearer once we focus on the question of whether there were constitutional reasons for its failure, reasons that were only later addressed, however incompletely, in the Second Reconstruction of the civil rights movement. My account suggests that if we are interested in understanding how constitutional law changes legitimately both inside and outside Article V, revisiting Reconstruction through the use of sound methods based in the practice of historians should steer us away from originalism and toward historicist theories of constitutional change.

The article proceeds in four parts. Because the debate between originalism and nonoriginalism is ongoing and multifaceted, Part I provides a necessary orientation to the debate and roadmap of the arguments and themes pursued in the rest of the article. Parts II and III are the heart of the article. Part II reboots the discussion of Reconstruction for legal scholarship by describing its historical context in a way that reveals its constitutional limits. I then use this context to critique prominent optimistic originalist accounts of the Fourteenth Amendment in Part III. I first present what I call the “sequencing argument,” detailing a problem that arises only for public meaning originalism. The remainder of Part III discusses two central issues for optimistic originalism: racial equality, especially with respect to school desegregation, and equal rights for women. Part IV draws on the historical discussion in the previous parts and the idea of “constitutional change as state building” to provide an overview of the failure of the First Reconstruction and show why the Second Reconstruction was legally necessary.
--Dan Ernst

Thank You, Tom McSweeney!

We want to thank Thomas McSweeney of William & Mary Law for his series of posts prompted by his recently published book Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals:

The Overly Familiar Treatise
Putting the People into Legal History
Who are the "We"?
Legal Genres
Were Justices Lawyers?

Thanks, Tom!

Monday, March 30, 2020

Witt on History of Public Health Emergencies in the US

John Witt, Yale Law School, has published The Law of Salus Populi: Epidemics and the Law in the Yale Review.  “For better and for worse,” he writes, “past American public health emergencies have reproduced the preexisting patterns and practices of law and politics, with all the vices and perhaps some of the virtues those patterns entail, reinforcing rather than revising the major themes of American life.”

--Dan Ernst

Langbein on the the Nonprobate Revoutlion

Props to a master.  John H. Langbein, Yale Law School, has posted Because Property Became Contract: Understanding the American Nonprobate Revolution:
In modern American practice the state-operated court system for transferring wealth on death, called probate, is being displaced. The wealth-transfer process has been increasingly privatized, conducted now mostly in the back offices of financial institutions rather than in the probate courts. Driving this privatization of wealth transfer has been a profound change in the nature of personal wealth, away from land and tangibles into contract claims against financial intermediaries such as banks, securities issuers, mutual funds, brokerage houses, insurers, and pension funds. Financially intermediated wealth has the distinctive attribute that it arises from the administrative processes of these institutions, work that entails recurrent transactions and communications. Once a staff is in operation to perform such tasks, extending its role to include the transfer of account balances on death has been easy. The account owner shunts the asset away from probate by completing a beneficiary designation form directing the institution to distribute the account asset in designated shares to designated persons. The emergence of this free-market transfer system has disrupted the application of a variety of the default features of the probate process, most ominously, the creditor protection function. 
--Dan Ernst

Zhang on Chinese Land Law

Taisu Zhang, Yale Law School, has posted Land Law in Chinese History, which is forthcoming in the Routledge Companion to Chinese Legal History:
Although land law or “real property law” is but one of several branches of what scholars commonly call “economic law,” or laws that regulate everyday economic activity, its history has drawn, over the past several decades, an unusually large amount of attention from legal theorists, economists, and comparative scholars of all methodological orientations. This has been especially true within the field of Chinese legal history: few scholars outside the field have any clear sense of pre-modern, early modern, or even modern Chinese family law, the law of personal injury, or even criminal law, but a much larger number will likely have some impression of historical Chinese land law, and may even have an educated opinion about it. This is not because land law was any more important to everyday socioeconomic life than those other bodies of law, but rather because land law has played a much larger role in theoretical and comparative scholarship, particularly in scholarship that seeks to explain global economic divergence—specifically, the divergence between China and the West in the 18th and 19th Centuries. Although this literature has perpetrated its share of myths about Chinese property institutions, much progress has been made over the past few decades, to the point where something approaching an academic consensus on core institutional features has emerged.

This chapter outlines these core features of Chinese land law, focusing primarily on the late imperial era, and provides a short summary of how the field arrived at them. Whereas it was once thought that Chinese property rights were comparatively less secure or less alienable than Western European property rights, it now seems unlikely that major differences existed at this general level. They did exist, however, in the finer institutional details of tenancy law and collateralization instruments, and potentially in inheritance law as well. In these latter features, Chinese land law tended to produce institutional incentives that leveled and fractured the pattern of rural landholding, thereby reinforcing the economic dominance of household-level production throughout the late imperial era, and well into the 20th Century. The chapter then discusses relatively recent trends in the academic literature, reaching back to 1970s and 1980s, when the study of Chinese land law became deeply intertwined with debates over economic divergence. It concludes by briefly pondering the costs and benefits of such intertwinement, and what it means to study “the history of Chinese land law” as a consolidated subject.
--Dan Ernst

Sunday, March 29, 2020

Update: Webinar on the 19th Amendment

[We share the following announcement, which is an update on our earlier post here.]

Please join Colorado Law for the 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," which has been modified to take place remotely on Friday April 3rd8:30 a.m. - 5:00 p.m. MT, through the use of a Zoom Webinar. The web-event is free, and has been approved for 6 general CLE credits. Reva Siegel will give the Keynote Address, and the first of our three panels will focus on Historical Perspectives.  Here is a general description of the conference theme, along with links to register for and join the webinar:

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates running for offices nationwide. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. This web-based 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.

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. For more information on the panels and speakers please visit the CU Law Rothgerber event page.  We look forward to sharing this occasion with you!

--Mitra Sharafi

Saturday, March 28, 2020

American Constitutional History Online

From posts on Volokh Conspiracy, we are aware of two sets of digital materials on constitutional history that are now freely accessible to promote online teaching.  The first is the Oxford University Press’s companion website to Gillman, Graber, and Whittington’s American Constitutionalism.  (More.)  The second is Randy Barnett and Josh Blackman’s “63-video series explaining the Supreme Court cases normally covered in every Con Law I and II course. "  (More.)

--Dan Ernst

Weekend Roundup

  • We the People, the podcast of the National Constitution Center, recently released an episode on "The Constitution and the Coronavirus." One of the featured guests is legal historian Polly Price (Emory University School of Law).  
  • ICYMI:  A national compendium of exhibits on the centennial of the 19th Amendment (Antiques).  Miriam Seifter, Wisconsin Law, on gubernatorial emergency power.  In case you want to brush up on a real war president for those FDR vs. DJT comparisons: thisUpdate: Okay, but what took so long?  Update: Mashpee Wampanoag Tribe To Lose Its Reservation (WBUR).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, March 27, 2020

Trial by Media: The Queen Caroline Affair

Queen Caroline (NYPL)
[We have the following announcement.  DRE.]

"Trial by Media: The Queen Caroline Affair," the joint exhibition of Yale University's Lewis Walpole Library and Lillian Goldman Law Library, is now available online.

Drawing on the Lewis Walpole Library's strengths in graphic satire and the Law Library's collections of trial accounts and illustrated legal texts, "Trial by Media" documents the media frenzy provoked two centuries ago by the attempt of King George IV of England to divorce his consort Queen Caroline on the grounds of adultery. The items range from mocking caricatures to political screeds and sober, journalistic accounts. Today these sources serve as a lens for studying gender roles, class divisions, publishing, political satire, and British politics.

In addition to digital text and images of the Fall 2019 exhibition, the digital version includes a collection of ten scholarly essays and a bibliography. The essays include:

-- Andrew Bricker, "Between Words and Images: Visual Satire, Libel Law and the Queen Caroline Affair"
-- Jocelyn Harris, "Jane Austen, Caroline of Brunswick, and the Prince of Wales"
-- William Anthony Hay, "Robert Cruikshank, A Scene in the New Farce of the Lady and the Devil, June 1820"
-- Richard Kopley, "Caroline and Edgar Allan Poe’s 'The Purloined Letter'"
-- Ryan Martins, "The Legal Legacy of the Queen's Trial: The Rise and Fall of Caroline's Rule"
-- Kristin Samuelian, "Looking at the Case against Her: Intertextuality in Queen Caroline Prints"
-- Mark Schoenfield, "Henry Brougham Per(for)ming the Defense"
-- Simon Stern, "John Bull, Public Sentiment and the Reasonable Man"
-- Dana Van Kooy, "The Queen Caroline Affair as a Theatrical and Dramatic Spectacle"
-- Susannah Walker, "TRIAL IN ABSENTIA? Criminal Proceedings and Public Personae"

A special attraction of the online exhibit is a digital reproduction of the Humphrey Shop Album, created by prominent London satiric print publisher George Humphrey (1773?-1831?) to market prints to his clients. Virtually all of its 131 hand-colored prints are contemporary satires of the Queen Caroline scandal by artists such as George Cruikshank, Robert Cruikshank, and Theodore Lane. The survival of this shop album in its original binding is itself extraordinary, as most such albums were broken up and sold as individual prints by later dealers. The album is one of the treasures of the Lewis Walpole Library.

"Trial by Media: The Queen Caroline Affair" was co-curated by Cynthia Roman, Curator of Prints, Drawings, and Paintings at the Lewis Walpole Library, and Mike Widener, Rare Book Librarian at the Lillian Goldman Law Library. The online exhibition was designed by Kristen McDonald of the Lewis Walpole Library.

Were Justices Lawyers?

I argue in Priests of the Law that the justices who wrote the Bracton treatise sought to build a professional identity for themselves on the model of the civilian jurist. They tried to demonstrate that the body of substantive rules they applied in the English courts was consonant with Roman law, that the types of texts they produced in the courts were similar to texts produced by civilian jurists, and that the justices of the royal courts were not simply servants of the king of an island realm, but priests of the universal law of Christendom. I suspect, however, that the authors of Bracton were in the minority among the justices of the royal courts. Training in Roman law was likely the exception among justices, not the rule, and there were probably many justices who viewed their work in the royal courts very differently from the way the Bracton authors did. One question I’d like to return to in future work is “what was the alternative?” How did the Bracton authors’ colleagues on the judicial bench think about their work in the royal courts?

The problem with reconstructing the views of the Bracton authors’ colleagues is that they did not produce texts like Bracton. There is a reason why we have surviving texts that can give us some insight into how the Bracton authors constructed their identity: the act of writing was itself the medium through which they constructed that identity. They made the case that they were civilian jurists by writing like civilian jurists. That is why Bracton exists at all. Is there any way to get at the thought of the justices for whom writing was not an important part of their identity?

I think there is enough evidence that we can make some guesses as to how a justice like Henry de la Mare, who sat on the Court of King’s Bench while Bracton was being written, thought about his work. Unlike the justices who wrote Bracton, who spent the early parts of their careers as clerks in the central royal courts, Henry de la Mare was an estate steward before he was appointed a justice. He actually left the King’s Bench in 1249 to serve as a steward again. The parallels between a justice’s work and a steward’s work probably would have been more obvious to a person in the thirteenth century than they are today. Stewards managed their lords’ estates, but they also held the lord’s manor courts for his tenants. Justices also had a number of duties that look more like general management or administration than specifically “legal” duties. When the king’s justices in eyre visited a county, they were instructed not just to hear common pleas and to try accused felons, but also to ask which churches are in the king’s gift, what land has escheated to the king, and which “young men and maidens...are and ought to be in the king’s wardship.”

The work of the courts became ever more specialized and technical over the course of the thirteenth century, but I think it’s possible that someone like Henry de la Mare, even as late as the 1240s, could still think of his work as a royal justice as basically being of a kind with his work as a steward; he was simply the king’s steward. Where the Bracton authors constructed an identity that was closely bound to their work with law, someone like Henry de la Mare may have thought of himself more as steward than as lawyer.
-Tom McSweeney

Thursday, March 26, 2020

Burset on Arbitration and the Industrial Revolution

Christian Burset, Notre Dame Law School, has posted Arbitrating the England Problem: Litigation, Private Ordering, and the Rise of the Modern Economy, which appears in the Ohio State Journal on Dispute Resolution 36 (2020):
Legal scholars, historians, and social scientists have long puzzled over how England—with its apparently irrational common-law system—gave birth to the Industrial Revolution. One prominent solution has been to suggest that eighteenth-century merchants used arbitration and other forms of private ordering to sidestep England’s defective legal system. This Article questions that story by offering a new account of how and why extralegal commercial arbitration declined in the early years of the Industrial Revolution. Until the middle of the eighteenth century, merchants could generally resolve their disputes without courts or lawyers. But that changed as new forms of lending arose, credit transactions became more impersonal, and disputes became more focused on short-term victory than long-term relationships. As a result, merchants sought more formal ways to settle their differences, and even “private” arbitration came to depend on state law. The law’s heightened importance, in turn, enhanced the state’s control over merchants. This historical account suggests that the rise of the modern credit economy reshaped the possibilities of private ordering. It also casts doubt on recent attempts to distinguish “private” arbitration from “public” litigation by suggesting that the line between the two has long been blurred.
--Dan Ernst

Wednesday, March 25, 2020

Tsesis on Confederate Monuments and the 13th Amendment

Statute, Florence, AL (LC)
Alexander Tsesis, Loyola University Chicago School of Law, has posted Confederate Monuments as Badges of Slavery, which is forthcoming in the Kentucky Law Journal:
This Essay develops a Thirteenth Amendment theory supporting the removal of Confederate symbols from government properties. It argues that such monuments to the Lost Cause are badges of slavery that should have no place in public squares.

The Essay discusses how white supremacist groups, such as those who participated in the 2017 Unite the Right March in Charlottesville, affectively draw together around monuments honoring leaders and soldiers who fought for the cause of slavery. Relying on the Thirteenth Amendment’s principles of freedom, states and municipalities can and should eliminate those monuments from their properties. Such policy initiatives communicate government’s disapproval of secession’s racist premises and advance the nation’s commitment to equal liberty untainted by the Confederacy’s peculiar institution.
--Dan Ernst

Harris on Eurasian trade and the corporation

Ron Harris (Tel Aviv University) has published Going the Distance: Eurasian Trade and the Rise of the Business Corporation, 1400-1700 with Princeton University Press. From the publisher: 

Before the seventeenth century, trade across Eurasia was mostly conducted in short segments along the Silk Route and Indian Ocean. Business was organized in family firms, merchant networks, and state-owned enterprises, and dominated by Chinese, Indian, and Arabic traders. However, around 1600 the first two joint-stock corporations, the English and Dutch East India Companies, were established. Going the Distance tells the story of overland and maritime trade without Europeans, of European Cape Route trade without corporations, and of how new, large-scale, and impersonal organizations arose in Europe to control long-distance trade for more than three centuries.
Ron Harris shows that by 1700, the scene and methods for global trade had dramatically changed: Dutch and English merchants shepherded goods directly from China and India to northwestern Europe. To understand this transformation, Harris compares the organizational forms used in four major regions: China, India, the Middle East, and Western Europe. The English and Dutch were the last to leap into Eurasian trade, and they innovated in order to compete. They raised capital from passive investors through impersonal stock markets and their joint-stock corporations deployed more capital, ships, and agents to deliver goods from their origins to consumers.
Going the Distance explores the history behind a cornerstone of the modern economy, and how this organizational revolution contributed to the formation of global trade and the creation of the business corporation as a key factor in Europe’s economic rise.
 Praise for the book:

"Harris’s deeply researched book shows that prior to the seventeenth century, societies had roughly the same framework of person-to-person contracts for organizing firms. Europeans, however, introduced the corporation, a firm that did not arise elsewhere or diffuse organically. Armed with this innovative structure, Europe came to dominate international trade. Going the Distance is a must-read for all those interested in the history and social science of the business enterprise.” - Jean-Laurent Rosenthal

"Going the Distance focuses on the complex and contingent conditions that disadvantaged older business forms and gave rise to the joint stock company. Harris opens a space for debate about the role of law, culture, and politics in the emergence of the modern corporation, while proposing a new explanation for English and Dutch dominance of the Eurasian market." - Madeleine Zelin

"Among the most significant of the many virtues of Going the Distance is its uniquely comprehensive and detailed analysis of the organizational forms employed for commerce in Middle Eastern and Asian societies, on the eve of the Great Divergence between Eastern and Western economic institutions and activity." - Henry Hansmann

"Between 1400 and 1700, long-haul shipping came to dominate the highways of world trade, producing a revolution in business organization. This pathbreaking work explores the connection between trade and institutional change and shows why organizational innovation mattered to Europe’s economic emergence."-Tirthankar Roy

"Ambitious and skillfully executed, Going the Distance considers why Europeans colonized the rest of the world and not the other way around. Arguing that there was an underappreciated organizational revolution in England and the Dutch Republic during the seventeenth century, Harris looks at why the product of this revolution, the business corporation, was not adopted immediately by traders elsewhere. This is a fascinating book full of innovative ideas." - Giuseppe Dari-Mattiacci

Further information is available here.

--Mitra Sharafi

Tuesday, March 24, 2020

Kerr on Decryption, the 5th Amendment and the Burr Trial

Orin S. Kerr, University of California, Berkeley School of Law, has posted Decryption Originalism: The Lessons of Burr, which is forthcoming in the Harvard Law Review:
Aaron Burr (LC)
The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a co-conspirator. Burr’s secretary pled the Fifth, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.
--Dan Ernst

Legal Genres

As I noted in a previous post, the authors of Bracton tried to reconcile the substantive rules of the English royal courts with the rules of Roman law, to demonstrate that the kind of work they were doing in the courts of the common law was actually part of the broader civilian culture of the Latin West. But they probably did not think of Roman law as only, or even primarily, a body of substantive rules. When they thought about Roman law, they probably also thought of a particular set of legal practices. We can be fairly certain from Bracton itself that its authors had had some formal training in Roman law. That training would have encouraged them to think of Roman law as a textual practice. The cover image for Priests of the Law actually illustrates this point very well. It comes from a 13th-century manuscript of Justinian's Digest. A doctor of law sits with a text of the Digest in front of him while his students all follow along in another copy of the Digest. Learning exercises in the universities revolved around authoritative texts and jurists were defined by the types of texts they produced. The authors of Bracton, working in England, were probably particularly inclined to associate jurists with the types of texts they produced, as they encountered the great jurists of Bologna not through their teaching, but through texts that had made their way to England. They would have known Azo, Tancred, and Raymond of Peñafort primary as producers of texts.

The authors of Bracton sought to emulate the textual practices of the jurists of Roman law. The most obvious example of this is the Bracton treatise itself, which is written in the style of a civilian summa. But they also recast the texts the king's courts were already producing. The royal courts of the thirteenth century ran on parchment. Writs initiated litigation in the king’s courts. Records of what had happened in that litigation were kept on plea rolls. In Bracton we see these justices identifying the types of texts the royal courts had been producing for decades with genres of texts produced by jurists. They cite to plea rolls just as they do to the opinions of the Roman jurists collected in Justinian’s Digest, sometimes even citing them together. Just as they sought to reconcile the law they were applying in the royal courts to Roman law, they sought to reconcile the texts they were producing in those courts to genres of texts produced by jurists. This was a way of re-imagining the work they were doing in the royal courts. When a justice’s clerk recorded a decision of William of Raleigh on a plea roll, he was not simply making a record of what had happened in a case; he was recording the opinion of a jurist, which might be cited alongside the opinions of Ulpian and Papinian.

-Tom McSweeney

Monday, March 23, 2020

Berger-Howe Fellowship to Grischkan

Congratulations to Boston University graduate student Jamie Grischkan, who will be the Raoul Berger-Mark DeWolfe Howe Legal History Fellow at Harvard Law School in Academic Year 2020-21.

Grischkan received her J.D. from the University of Michigan Law School in 2012. She is working on a dissertation project about the rise and regulation of bank holding companies in the twentieth-century U.S.

Patrick on fortune-telling

Faith or FraudOut now by Jeremy Patrick (University of Southern Queensland) is Faith or Fraud: Fortune-Telling, Spirituality, and the Law, published by UBC Press. The book includes a history of the regulation of fortune-telling across the common law world. From the publisher: 

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. If a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Should someone with a potpourri of New Age beliefs be accorded the same legal protection as a devout Catholic?
Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom have been conceived and articulated in the context of monotheistic, organized religions that impose moral constraints on adherents. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems.
Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that the legal conception of religious freedom has not evolved to keep pace with religion itself.
Law and religion scholars in the United States, Canada, and Australia will find much to recommend this work, which also contains valuable material for British law and religion specialists and sociologists of religion.
Praise for the book:

 "Faith or Fraud is an ambitious work that fills a major gap in the literature about religious freedom and fortune-telling." -Danielle N. Boaz

"This book situates 'fortune-telling' as an unorthodox religious belief at the margins of current definitions and explores how religious freedom rights apply to this marginal practice. It is an excellent piece of legal scholarship in an area that has rarely been studied before." -Neil Foster

Further information is available here.

--Mitra Sharafi

Sunday, March 22, 2020

Northwestern Seeks an Assistant Professor of Instruction

Word has reached us that "Northwestern University is hiring an Assistant Professor of Instruction to be appointed jointly in the Legal Studies program and the American Studies program.
This is a full-time, benefits eligible position with a path to promotion. The initial contract is for two years."  Deadline: April 24, 2020More.

Saturday, March 21, 2020

Weekend Roundup

  • Reuven S. Avi-Yonah, University of Michigan Law School, has posted Why Study Tax History?, a review of volume 9 of Studies in the History of Tax Law, ed. P. Harris and D. de Cogan (Hart, 2019). 
  • Mary Dudziak recently tweeted out a link to the panel she moderated at SHAFR on in 2017 on War, Law, and Restraint, with Rosa Brooks, Jack Goldsmith, Helen Kinsella and John Fabian Witt.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, March 20, 2020

Goldman on State Prosecutions of State Crimes in Federal Courts

David N. Goldman, Law Clerk to Judge David R. Stras, United States Court of Appeals for the Eighth Circuit, and a recent graduate of the University of Virginia School of Law, has posted The Neglected History of State Prosecutions for State Crimes in Federal Courts, which is forthcoming in the Texas Tech Law Review:
The Constitution provides the federal and state governments certain tools to contest and check one another. One of these tools is the authority of federal courts, a forum thought to be more hospitable to national interests, to hear cases “arising under” federal law. But what suits arise under federal law? The question has long perplexed academics and the courts. This article explores the issue through the lens of Congress's historical attempts to use this jurisdiction as a shield against state interference with federal policy. The history implicates timeless questions regarding the means by which Congress can navigate this Nation’s system of competing sovereignties, and the broader federal-courts question of just how far arising-under jurisdiction goes.
--Dan Ernst

Glass and Vanatta on New York State Pensions and "Fiscal Mutualism"

Michael Glass, Princeton University Department of History, and Sean Vanatta, New York University Gallatin School, have posted The Frail Bonds of Liberalism: Pensions, Schools, and the Unraveling of Fiscal Mutualism in Midcentury New York:
Between 1940 and 1965, state-level officials changed the relationship between two pillars of the postwar social contract: secure retirement and modern public schools. In the early twentieth century, state pension managers, following a prevailing investment regime we call “fiscal mutualism,” funneled the savings of government workers into government securities. Through direct participation in financial markets, pension officials lowered borrowing costs for local governments and helped lay the infrastructural foundation of modern America. Yet by the 1960s, pension managers had completely abandoned this investment regime. We document this transformation through a close examination of New York State’s pension fund. Throughout the 1950s, the comptrollers who managed the New York State Employee Retirement System (NYSERS), the nation’s largest state pension, underwrote the boom in suburban school construction by purchasing the municipal bonds of local school districts. However, in response to changes in national political economy, along with evolving norms of “fiduciary duty,” New York Comptroller Arthur Levitt, Sr., sought to deregulate the pension’s investment powers. Following significant regulatory changes, Levitt steadily disinvested from municipal bond holdings in favor of higher-yielding corporate securities. Pension deregulation thereby secured higher returns for state retirees, but it also forced local school districts to confront municipal bond markets without the backstop of fiscal mutualism. As school budgets, and the property taxes supporting them, became freighted with expensive interest payments, tax revolts became a permanent response to liberalism’s fiscal volatility. These transformations, we argue, stemmed from postwar liberalism’s dependence on financial markets to deliver retirement security, public education, and other social benefits. This underlying dependence on finance foreclosed more ambitious policy alternatives and ceded inordinate power to private actors, who prioritized profits over social welfare provision.
--Dan Ernst

Thursday, March 19, 2020

Su on Just Compensation

Wanling Su, a fellow at the Harvard Law School, has posted What Is Just Compensation? which appears in the Virginia Law Review 105 (2019): 148-1536:
The Supreme Court has held that “[t]he word ‘just’ in [‘just compensation’] . . . evokes ideas of ‘fairness.’” But the Court has not been able to discern how it ensures fairness. Scholars have responded with a number of novel policy proposals designed to assess a fairer compensation in takings.

This Article approaches the ambiguity as a problem of history. It traces the history of the “just compensation” clause to the English writ of ad quod damnum in search of evidence that may shed light on how the clause was intended to ensure fairness. This historical inquiry yields a striking result. The word “just” imposes a procedural requirement on compensation: a jury must set compensation for it to be just.

This historical understanding is especially important to modern law since the Supreme Court applies a historical test to determine whether the Seventh Amendment guarantees the right to a jury. This Article corrects the common misperception that juries did not determine just compensation in eighteenth-century English and colonial practice.
--Dan Ernst

Wednesday, March 18, 2020

Littlewood on Tiley and Schumpter on Tax History

Michael Littlewood,University of Auckland Faculty of Law, has posted John Tiley and the Thunder of History, which appeared in volume 9 of  Studies in the History of Tax Law (Hart, 2019), 55-91:
The aim of this paper is twofold – first, to present a selective overview of the work undertaken in connection with the series of tax history conferences initiated in 2002 by the late Professor John Tiley and hosted by the University of Cambridge; and, secondly, to examine Joseph Schumpeter’s claim that the ‘thunder of history’ can best be discerned by looking at taxation. In other words, the aim is to assess Schumpeter’s claim by reference to the work of what might be called the Tiley School of Tax History.
--Dan Ernst

Aroney on Australian Federalism

Nicholas Aroney, University of Queensland TC Beirne School of Law, has posted The Design of Australian Federalism, from The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone:
This chapter, published in The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone, examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the constitution are central to this idea. These are, firstly, that the constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities. This chapter explains how these central ideas are embodied in the distribution of powers, system of representation, and processes of alteration and amendment established by the constitution.
--Dan Ernst

Tuesday, March 17, 2020

John Phillip Reid Book Award

[We have the following call for submissions for the John Phillip Reid Book Award of the American Society for Legal History.  DRE.]

The John Phillip Reid Book Award is awarded annually for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The prize is named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues. When awarding this prize, preference is given to work that falls within Reid’s own interests in seventeenth- through nineteenth-century Anglo-America and Native American law.

The award is given on the recommendation of the Society’s Committee on the John Phillip Reid Book Award. (First books, written wholly or primarily while the author was untenured, should be sent to the Cromwell Book Prize committee of the William Nelson Cromwell Foundation. The Reid Award and the Cromwell Book Prize are mutually exclusive.)

For the 2019 prize, the Reid Award Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2019. Nominations for the Reid Award should be submitted by June 1, 2020, by sending a curriculum vitae of the author and one copy of the book to each member of the committee.

Committee Members after the jump.

Wolitz on Bickel

David Wolitz, University of Tennessee College of Law, has posted Alexander Bickel and the Demise of Legal Process Jurisprudence, which is forthcoming in the Cornell Journal of Law and Public Policy:
This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law.

The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient considerations while granting the political branches the space and time they need to work out pragmatic compromises.

But once Bickel starkly drew out the tension between principled decisionmaking and pragmatic governance, the Legal Process consensus began to fracture. Why allow for unprincipled judicial decisionmaking with respect to certain justiciability and abstention questions, but not in other areas of doctrine? As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time.” Bickel’s passive virtues solution found no favor among his Legal Process peers and drew even greater criticism from Warren Court-defending legal liberals. Bickel’s penetrating insights into the tensions between principled decisionmaking and pragmatic governance had exposed an always latent divide in Legal Process thought, one Bickel himself could not successfully reconcile. After Bickel, normative jurisprudence has become ever more polarized between consequentialist-pragmatic approaches on the one hand and principled-rationalist approaches on the other.
--Dan Ernst

Monday, March 16, 2020

Wood on law in the early modern French empire

Out soon by Laurie Wood, Florida State University, is Archipelago of Justice: Law in France's Early Modern Empire, published by Yale University Press. From the publisher: 
This book is a groundbreaking evaluation of the interwoven trajectories of the people, such as itinerant ship-workers and colonial magistrates, who built France’s first empire between 1680 and 1780 in the Atlantic and Indian Oceans. These imperial subjects sought political and legal influence via law courts, with strategies that reflected local and regional priorities, particularly regarding slavery, war, and trade. Through court records and legal documents, Wood reveals how courts became liaisons between France and new colonial possessions.
Praise for the book:

 “Laurie Wood makes innovative and sophisticated use of hitherto ignored legal sources to reconstruct the complex socio-political relationships that shaped life in the eighteenth-century French Caribbean and Indian Ocean.”—Richard B. Allen

"Laurie Wood has written an innovative, original book that will be of great value to anyone interested in early modern France and its overseas empire. She shows, lucidly and on the basis of exhaustive research, how ordinary people throughout the empire, in vastly disparate territories, were able to make use of a remarkably uniform legal system, based in the so-called conseils supérieurs. In short, she shows convincingly how this legal system helped to knit the empire together."—David Bell

Archipelago of Justice combines local and transnational frames of reference to show how the magistrates and litigants of a far-flung network of courts at the outer limits of the monarchy’s sphere of authority helped tie France’s global empire together into a largely unified and cohesive whole.”— Michael Breen

Further information is available here.

--Mitra Sharafi

Who are the "We"?

In my last post, I discussed my approach to the Bracton treatise in Priests of the Law. I am interested in Bracton primarily for what it can tell us about the justices who wrote it and how they thought about their work in the English royal courts of the thirteenth century. Bracton presents us with a particular view of the royal justice and what he is, not so much through what it says, but in how it says it. Very close to the beginning of the treatise, one of the authors tells us that “law (ius).. is called the art of what is fair and just, of which we are deservedly called the priests, for we worship justice and administer sacred rights.” There is an interesting assumption built into this sentence: the “we” seems to assume that both the author and the reader are part of some group with a shared identity. But the author does not explicitly define that group in this passage. Who did he mean to include in that “we”? There were professional or at least semi-professional lawyers working in the king’s courts in between the 1220s and the 1250s. This is the period when we start to see the conturs or narratores, the lawyers who made oral arguments on behalf of clients in court (roughly equivalent in function to modern English barristers) coalesce into a recognizable professional group. We start to see professional or semi-professional attorneys, who handled the procedural aspects of litigation, around the same time. You would never know this from the Bracton treatise. The justices who wrote Bracton must have been familiar with the conturs, who they would have encountered regularly in their work, but they chose not to address them. The treatise does address the problems of judging and the concerns of the justices and clerks of the royal courts. In this period, service as a judicial clerk was often a path to the judicial bench. The authors of the treatise themselves had followed that path. Henry of Bratton, from whom Bracton takes its name, served as a clerk to William of Raleigh. William of Raleigh, probably the primary author of the treatise, served as a clerk to Martin of Pattishall. Martin of Pattishall, who may have begun work on the treatise, was clerk to Simon of Pattishall. In writing the treatise for justices and clerks, the authors of the treatise wrote it for people who were just like them.

It would seem that the Bracton authors defined that “we” in a fairly narrow way. The justices and clerks of the royal courts were, altogether, a few dozen people. In imagining the ideal reader of the treatise, the authors excluded large groups of people who worked with law. Judging by the way they wrote the treatise, in a scholastic Latin that assumes quite a bit of knowledge of Roman law, that “we” looks even narrower, as it would have required a particular type of education, one not necessarily shared even by all of the justices and clerks, to fully understand it. The authors appear to have thought of this treatise primarily as an in-house text for a small group of people.

But there is also a sense in which the “we” is fairly broad. Although it excluded many people who worked with law right in the English royal courts, the people the authors would have encountered every day when court was in session, “Law… is the art of what is fair and just, of which we are deservedly called the priests, for we worship justice and administer sacred rights” connected the authors and their audience to other people across time and space. Although it is not marked as such in the treatise, it is actually a quotation. The authors probably took it from Azo’s Summa on the Institutes, a treatise on Roman law produced by the preeminent jurist of Bologna, Europe’s premier center for the study of Roman law, in the early thirteenth century. In Azo’s text, the “we” refers to the jurists of Roman law working throughout the Latin West. Azo had himself taken the line from Justinian’s Digest, the sixth-century compilation of the writings of jurists of the classical period of Roman law, where it appeared in an excerpt from the jurist Ulpian. For Ulpian, the “we” referred to the jurists of his own time, the 2nd to 3rd centuries C.E. The authors certainly knew the source of the quotation and, although I cannot prove this, I suspect they expected their readers to know it, too.

The justices who wrote Bracton seem to have felt little kinship with the people who were beginning to make a living practicing before them in the courts. But they felt a kinship with the jurists of Roman law teaching and practicing throughout the Latin West and possibly with their ancient Roman predecessors, as well. In an island kingdom which appeared on medieval maps, even maps made in England, on the very edge of the world, these justices imagined themselves as part of an international community of jurists of the civil law.

-Tom McSweeney

Saturday, March 14, 2020

Weekend Roundup

  • The Organization of American Historians has cancelled its annual meeting. But you can still skim the excellent program that the organizers put together. Margot Canaday (Princeton University) and Craig Steven Wilder (MIT) co-chaired the program committee. AND, if you were scheduled to present, check out this invitation (via Twitter) from The Docket (the online companion to the Law & History Review): "We’re sad about all that awesome #legalhistory scholarship that was going to be at #OAH20 and we’d like to be of service. The Docket will publish abstracts, full papers, etc. for any law, policy, or politics related OAH panel!" 
  • For those who have moved to online teaching, Twitter is filled with good resources right now. For example, Aimi Hamraie (Vanderbilt University) tweeted out an excellent guide to "accessible teaching in the time of COVID-19," tapping into some hard-won wisdom from "disabled culture and community." 
  • The Library of Congress may be closed to the public, but we believe its “crowdsourcing initiative By the People” continues.  The newest campaign to enlist the public’s help in making "digital collection items more searchable and accessible online is Herencia: Centuries of Spanish Legal Documents includes thousands of pages of historical documents in Spanish, Latin and Catalan."
  • ICYMI: An exhibit at the Lombard Historical Society on “the first woman to ever vote in an Illinois municipal election, an attorney named Ellen Martin.”  Patti Smith’s blurb of Ralph Nader’s cookbook: “A wonderful blend of consumer protection and consumer pleasure.” H/t: JLG
  • And if you can face it: Duke University Press has put together this Navigating the Threat of Pandemics collection--free to read online until June 1 (books) and Oct.1 (articles). LHB readers may appreciate this one especially.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, March 13, 2020

Hofmann, Kurtz & Levine, eds., "Powerful Arguments"

New from Brill: Powerful Arguments: Standards of Validity in Late Imperial China (March 2020), edited by Martin Hofmann (Heidelberg University), Joachim Kurtz (Heidelberg University), and Ari Daniel Levine (University of Georgia). A description from the Press:
The essays in Powerful Arguments reconstruct the standards of validity underlying argumentative practices in a wide array of late imperial Chinese discourses, from the Song through the Qing dynasties. The fourteen case studies analyze concrete arguments defended or contested in areas ranging from historiography, philosophy, law, and religion to natural studies, literature, and the civil examination system. By examining uses of evidence, habits of inference, and the criteria by which some arguments were judged to be more persuasive than others, the contributions recreate distinct cultures of reasoning. Together, they lay the foundations for a history of argumentative practice in one of the richest scholarly traditions outside of Europe and add a chapter to the as yet elusive global history of rationality.
More information, including the table of contents, is available here. One chapter that might particularly interest readers is "Some Problems with Corpses: Standards of Validity in Qing Homicide Cases" by Matthew H. Sommer (Stanford University).

-- Karen Tani

NARA Reading Rooms and Presidential Libraries Closed

We previously reported the closure of the Library of Congress to the pubic until April 1.  Now NARA has announced the closure of all its research rooms and presidential libraries at the close of business today.

--Dan Ernst

Just Money: Design and Change over Time

We’ve learned of an impressive new website, Just Money, which aims to “provide a platform for discussion and debate over money’s design and its change over time.”  More particularly:
On this website, we approach money as a legal project.  Created to meet demands both public and private, money depends on law for its definition, issue, and operation.    That legal structure of money – its design – matters deeply.  In the words attributed to an early  banker, “those who create and issue money . . . direct the policies of government and hold in the hollow of their hands the destiny of the people.”   Our aim is to encourage discussion, debate, and scholarship on money’s design and its reform towards a world that is as just as it is (economically) productive.

Money, governance, and the public welfare are intimately connected in modern society.    Most obviously, the way political communities make money and allocate credit is an essential vector of material life.  It critically shapes economic processes – channeling liquidity, fueling productivity, and influencing distribution.  At the same time, those decisions about money and credit define key political structures, locating in particular hands the authority to mobilize public resources, determining opportunities for individuals and industries, and delegating power and privileges to create credit and accumulate profit.  Finally, modes of making money shape categories and strategies at the collective level, including the incentives we institutionalize, the assumptions we grow to share, and the possibilities we learn to recognize.
Christine Dean, Harvard Law School, writes that discussions will address both historical and contemporary topics.  “For example, I just posted an argument about the way new forms of money fueled the industrial revolution, here.  Ongoing and future roundtables include those on ‘Virtual Currency and the State’ and ‘Race and Money.’

–Dan Ernst

ASLH 2020: Deadline Extended

[Although today is the original deadline for submissions for the 2020 annual meeting of the American Society for Legal History in Chicago, the Chairs of the Program Committee are postponing the deadline by two weeks.  The new deadline is Friday, March 27, 2020.]

Call for Papers: 2020 ASLH Annual Meeting

The Program Committee of the ASLH invites proposals for complete panels and individual papers for the 2019 meeting to be held November 11-14 in Chicago. Panels and papers on any facet or period of legal history from anywhere in the world are welcome.  We encourage thematic proposals that transcend traditional periodization and geography.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows and scholars from abroad.

Panel proposals should include the following: a c.v. with complete contact information for each person on the panel, including chairs and commentators; 300-word abstracts of individual papers; and a 300-word description of the panel.

The Program Committee also welcomes other forms of structured presentation for a 90-minute slot, including lightning round (1-2 chairs, 8-12 presenters for a few minutes each on projects in a related field at any stage of development), skills/pedagogical workshop (chair, 3-4 presenters), or roundtable format (1-2 chairs, 3-4 presenters). The Committee will also consider author-meets-reader panel proposals concerning books with a publication date of 2019. We encourage panels that put two or three books in conversation, with up to three commentators total. Sufficient information following the general guidelines for panel proposals should be provided for the Committee to assess the merits of the presentation.

Individual paper submissions should consist of an abstract, a draft paper (where possible), and a c.v. Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.  Would-be individual paper submitters are encouraged to connect with other scholars to coordinate the submission of complete session proposals. [They may do so in the comments to this post, which LHB moderators will occasionally move up.]

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. Please provide a program title, the intended length of program, a program description, a c.v. and contact information for each presenter, and any information technology requirements. The Program Committee is available to consult with organizers of such symposia as they develop their proposal.

As a general matter, we will not be able to accommodate special scheduling requests, so prospective presenters, chairs, and commentators at the main conference should plan to be available on Friday, November 13, and Saturday, November 14.  The ASLH has a strict one-appearance policy. Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

The Program Committee encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

The members of the Program Committee are Fahad Bishara, Eliga Gould, Sophia Lee, Tahirih Lee, Alison Lefkowitz, Cynthia Nicoletti, Bhavani Raman, Karl Shoemaker, Simon Stern, and Victor Uribe. The co-chairs of the Program Committee are professors Kristin Collins (collinsk@bu.edu) and Ari Bryen (ari.z.bryen@vanderbilt.edu).

All program presenters must be current members of the Society by the date of the Annual Meeting. All proposals must be submitted through the ASLH website, which will be available to take submissions shortly. Please visit [here] http://aslh.net for updates and additional information.

The deadline for submissions is [Friday, March 27, 2020.]

Witte and Latterall on Establishment in Massachusetts

John Witte and Justin Latterell, Emory University School of Law, have posted The Last American Establishment: Massachusetts, 1780-1833, which appears in Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833, ed. Carl H. Esbeck and Jonathan Den Hartog (Columbia, MO: University of Missouri Press, 2019), 399-424:
This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-believers, alike; and ensured that individual members of those sects could exit without incurring liability for contracts subsequently made by the other members of that sect.
--Dan Ernst