Thursday, April 30, 2020

Byrne's "Justice and Mercy"

Apologies for having missed this one.  Philippa Byrne has published Justice and Mercy: Moral Theology and the Exercise of Law in Twelfth-Century England (Manchester University Press, 2018):
This book examines one of the most fundamental issues in twelfth-century English politics: justice. It demonstrates that during the foundational period for the common law, the question of judgement and judicial ethics was a topic of heated debate - a common problem with multiple different answers. How to be a judge, and how to judge well, was a concern shared by humble and high, keeping both kings and parish priests awake at night. Using theological texts, sermons, legal treatises and letter collections, the book explores how moralists attempted to provide guidance for uncertain judges. It argues that mercy was always the most difficult challenge for a judge, fitting uncomfortably within the law and of disputed value. Shining a new light on English legal history, Justice and mercy reveals the moral dilemmas created by the establishment of the common law.
–Dan Ernst

Wednesday, April 29, 2020

Barrett on that "Switch in Time" Quote

John Q. Barrett, St. John's University School of Law, has posted Attribution Time: Cal Tinney's 1937 Quip, "A Switch in Time'll Save Nine,” forthcoming in the Oklahoma Law Review:
In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.

Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, 1933-1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then President Roosevelt, in early 1937, proposed to “pack”—to enlarge—the Court, so that it would become supportive of New Deal laws.

Within weeks, the Supreme Court changed course, announcing broader constitutional interpretations of federal and state government legislative powers.

The Court’s switch took the air out of the Court-packing balloon. The change was—and here is the quip that everyone knows—“the switch in time that saved nine.”

That line appeared in 1937. It was repeated by many, especially in Washington. It has been quoted ever since. Just who coined it has been debated and never established.

Until now.
--Dan Ernst

The YLS Exhibit, “Precedents So Scrawl'd and Blurr'd,” Now Online

[We have the following announcement.  DRE.]

If distance or the coronavirus shutdown prevented you from viewing the Yale Law Library's Spring 2020 rare book exhibition, "Precedents So Scrawl'd and Blurr'd: Readers' Marks in Law Books," there is good news. The exhibition is now online, as part of the Yale University Library's Online Exhibitions website.

The 39 volumes in the exhibition, spanning seven centuries and three continents, were selected for their research potential and for the insights they provide into the roles law books have played in people's lives. The marks left by readers document the lived experience of the law, and remind us that law is above all a human endeavor. The exhibition is the latest in a series that examine law books as physical artifacts, and the relationships between their form and content.

The exhibition's title comes from John Anstey's verse satire of the legal profession, "The Pleader's Guide" (1796): "Precedents so scrawl'd and blurr'd / I scarce could read one single word."

Tuesday, April 28, 2020

Gindis on Manne at Miami

David Gindis, University of Hertfordshire Business School, has posted Law and Economics Under the Palms: Henry Manne at the University of Miami, 1974–1980:
Henry G. Manne described himself as the only full-time missionary for law and economics from the first glimmerings of that subject. This paper deals with the period of Manne’s career when he first assumed this role, which coincides with his time at the University of Miami Law School (1974-1980). Prior to Miami, Manne had formulated a vision for law and economics, and had developed prototypical structures for funding and running interdisciplinary conferences and intensive economics courses for law professors. Manne professionalized these at Miami, using the organizational vehicle of the Law and Economics Center (LEC) that he set up and ran until his departure. Over the course of this period, Manne recruited and invested heavily in teaching, research and conference administration capacities. The LEC branched out, particularly into the policy arena, multiplying the frequency and diversity of activities pursued. It introduced innovative ways of linking economics and legal practice, economists and legal professionals, and played a pivotal role in the integration of law and economics as intellectually integrated disciplines.
--Dan Ernst

Monday, April 27, 2020

Altwicker on Extraterritoriality from Thucydides to Grotius

Tilmann Altwicker, University of Zurich, has posted Justice Beyond Borders: Extraterritorial Obligations from Thucydides to Grotius, which is forthcoming in Rechtsphilosophie - Zeitschrift für die Grundlagen des Rechts:
The article traces the problem of extraterritorial obligations in the early history of ideas, spanning from Thucydides to Grotius. Extraterritorial obligations are defined here as moral obligations of a legitimate authority to perform or not to perform an act vis-à-vis individuals who are not its subjects. The article shows that arguments about justice beyond the border rely on transnational conceptions of the common good. In the early history of ideas concerning extraterritorial obligations, the following questions were central: Can there be a transnational meaning of moral concepts? Are extraterritorial obligations merely negative obligations? Is the extraterritorial pursuit of state interests limited by higher-ranking principles? Under which circumstances is the extraterritorial use of force permitted in order to protect individuals?
--Dan Ernst

Sunday, April 26, 2020

Perelman on the Bankruptcy History of the United States

Mark Perelman, whom I believe is a graduate of the Yale School of Management, has posted A Bankruptcy History of the United States:
Financial crises destroy value and radicalize the political sphere. Are these events random, idiosyncratic, or driven by some force? The ex-post answers — be they monetary, criminal, or international contagion — have a profound impact on the role of government in society, but have questionable predictive power. In the United States, only the Federal government can impair contracts across States through the bankruptcy process. The history of bankruptcy law is intertwined with that of crises and banking law, and, as we argue, is a consistent cause, accelerant, and reaction of financial crises.
--Dan Ernst

Saturday, April 25, 2020

Waxman and Weitzman on the Montgomery Ward Seizure

Over at Lawfare, Matthew Waxman and Samuel Weitzman have posted a nice essay, with Francis Biddle at its center, Remembering the Montgomery Ward Seizure: FDR and War Production Powers.

Weekend Roundup

  • Barbara Allen Babcock, the first woman member of the Stanford Law School faculty, the Judge John Crown Professor of Law, Emerita, the author of Woman Lawyer: The Trials of Clara Foltz (2011, and a great promoter of the history of women in the legal profession has died. Here's Stanford's press release. 
  • Congratulations to Jennifer Mnookin, a historian of the law of evidence, Erika Lee, a historian of immigration law and policy, and my law dean William Treanor, a constitutional historian of the Founding, upon their induction into the American Academy of Arts and Sciences.  I was also very pleased to see my Georgetown colleague Michael Kazin among the inductees.  DRE
  • Julian Mortenson and Nicholas Bagley’s attack on the originalist case for the nondelegation in American constitutional law has prompted two responses on SSRN by Ilan Wurman and Aaron Gordon
  • ICYMI: Richard Lazarus’s Rule of Five, on Massachusetts v. EPA, in Harvard Law Today.The NYT obit of Richard Sobol, who went from Columbia Law to Arnold, Fortas & Porter to the Lawyers Constitutional Defense Committee in 1965.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 24, 2020

Chen on the Chinese Tradition of Administrative Law

Albert H. Y. Chen, The University of Hong Kong Faculty of Law, has posted The Chinese Tradition of Administrative Law:
For most of the time during the last two millennia, China was a dynastic empire ruled by an emperor with the assistance of a highly developed mandarinate of imperial organs. “Administrative law” in the modern sense of a set of legal norms enacted by the legislature or developed by the judiciary that simultaneously empower and constrain state organs and officials for the purpose of protecting the rights and liberties of subjects or citizens did not exist in traditional China. But there did exist for more than two millenniums elaborate and sophisticated rules regulating the powers and functions of each component of the highly complex and extensive machinery of imperial organs and officials, and prescribing in detail the duties of officials as well as the multiple and complicated monitoring, supervisory and disciplinary mechanisms applicable to the exercise of powers and performance of duties by officials in different state organs.

By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts.

This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.
--Dan Ernst

Ziegler's "Abortion and the Law in America"

Former LHB Guest Blogger Mary Ziegler, Florida State University, has published Abortion and the Law in America: Roe v. Wade to the Present (Cambridge):
With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.
Contents here.  Some endorsements:

'Mary Ziegler's thorough and impeccable research has established her as the premier historian of abortion in the post-Roe era. By giving equal attention to activists on both sides of the struggle, her scholarship offers an essential grounding for anyone who seeks to debate the issue as a newly-constituted Supreme Court now considers whether to alter the established precedents that have governed American law for the last quarter-century.'

David J. Garrow - Pulitzer Prize-winning author of Liberty and Sexuality

'For decades, the views of US Supreme Court Justices have dominated scholarly and popular conversations about abortion in the United States. In Abortion and the Law in America, Mary Ziegler offers a fresh take on the enduring debate; she centers the perspectives of activist organizations and grassroots tacticians in struggles over reproductive rights. Ziegler’s analysis of on-the-ground developments shows us that the Court is but one of many drivers of conflict and change in the unpredictable battle over Roe v. Wade.'

Tomiko Brown-Nagin - author of Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, Winner of the Bancroft Prize

'Few scholars know the history and law of abortion as well as Mary Ziegler. In this compelling book, she demonstrates how much we miss by continuing to view abortion through the prism of that 'clash of absolutes' pitting the constitutional right to choose against the constitutional right to life. In fact, she demonstrates, almost since Roe v. Wade was handed down, foes and advocates have fought about the costs and benefits of abortion, as well as rights to it. Abortion and the Law in America is indispensable reading for anyone interested in the vanishing line between science and spin, social movements and their legal strategies, and the role of the Supreme Court in the past - and future - of one of our most intractable conflicts.'

Laura Kalman - Distinguished Professor of History, University of California, Santa Barbara

'Mary Ziegler understands the 'on the ground' history of the politics of Roe, and its connection to the evolving abortion rights jurisprudence of the Supreme Court, better than anyone else. Abortion and the Law in America shows that this story is far more complex than we imagine it to be, and that the abortion fight is likely to continue regardless of whether the Court overturns its landmark decision. As Americans have debated abortion, they have also debated and disagreed on a host of other issues concerning women's health, poverty policy, family structure, and even the standards for evaluating evidence and science. The abortion debate, she shows, has both mirrored and furthered the collapse of consensus in the larger culture.'

Kenneth W. Mack - Lawrence D. Biele Professor of Law and Affiliate Professor of History, Harvard University

--Dan Ernst

Thursday, April 23, 2020

Mirow on Scots Traders and Spanish Law in East Florida

M. C. Mirow, Florida International University College of Law, has posted Scots Traders and Spanish Law in East Florida, which is forthcoming in Colonial Adventures: The Making of Commercial Law and Practice, ed. Serge Dauchy, Albrecht Cordes, Dave De ruysscher & Heikki Pihlajamäki (Brill):
This chapter describes commercial litigation in 1802 threatening Panton Leslie’s trading post at Picolata, East Florida, and the firm’s very existence in the province. It explores and reveals the legal sophistication and institutional limits of local actors in a small northern outpost of the Spanish empire. The parties considered and argued about the proper interpretation of royal orders, governors’ edicts, official correspondence, and other documents that shaped the dispute. Concerning commercial legal culture, the issues debated in the pleadings centered on Panton Leslie’s compliance with its unique trade status as delineated in a series of royal orders and agreements. Despite their remoteness from imperial economic and commercial centers, the parties did not play fast and loose with the legal sources or arguments. The dispute reveals that the nature of commercial enterprise within empires was not simply one of economic benefit. Trading companies were woven into the political fabric of imperial administration. In this context, Sánchez argued that for Spain to coexists with native populations and eventually to have Indian populations join its polity, the foreign, English, trading house of Panton Leslie had to be removed as an intermediary between them. This extensive legal battle also has some explanatory benefit on the shift of Panton Leslie away from trade to debt collection and property management in the early years of the nineteenth century. William Panton died in 1801 and Bowles’s attacks against Panton Leslie had significantly disrupted its ability to trade profitably. This suit must be added to these causes of the firm’s shift from Indian trade to debt collection and land management. The case surely absorbed time and resources. It also created an atmosphere of uncertainty under which the firm would have to operate. Every shipment and every transaction after the case would be subject to the greatest and most jealous scrutiny by at least a portion of Saint Augustine’s population. Panton Leslie’s success was a hollow victory.
--Dan Ernst

Martin on the Cherokee Supreme Court

Carolina Academic Press has released The Cherokee Supreme Court, 1823–1835 (April 2020), by J. Matthew Martin (independent scholar). A description from the Press:
The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change. Extensive case studies document the Cherokee Nation's exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now.
-- Karen Tani

Wednesday, April 22, 2020

Culter on the Single Tax and The Hebrew Bible

Joshua Cutler, University of Houston, C.T. Bauer College of Business, has posted A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible:
Henry George (NYPL)
Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.
–Dan Ernst

Today: Foner to Zoom Lecture at the NCC

Today, at 1PM EDT, Eric Foner will join the National Constitution Center’s “classroom exchange” on “Slavery in America from the Constitution to Reconstruction.”  More.

--Dan Ernst

Dew, The Aliites: Race and Law in the Religions of Noble Drew Ali

We missed this book release from 2019: The Aliites: Race and Law in the Religions of Noble Drew Ali (University of Chicago Press), by Spencer Dew (Denison University). A description from the Press:
“Citizenship is salvation,” preached Noble Drew Ali, leader of the Moorish Science Temple of America in the early twentieth century. Ali’s message was an aspirational call for black Americans to undertake a struggle for recognition from the state, one that would both ensure protection for all Americans through rights guaranteed by the law and correct the unjust implementation of law that prevailed in the racially segregated United States. Ali and his followers took on this mission of citizenship as a religious calling, working to carve out a place for themselves in American democracy and to bring about a society that lived up to what they considered the sacred purpose of the law.

In The Aliites, Spencer Dew traces the history and impact of Ali’s radical fusion of law and faith. Dew uncovers the influence of Ali’s teachings, including the many movements they inspired. As Dew shows, Ali’s teachings demonstrate an implicit yet critical component of the American approach to law: that it should express our highest ideals for society, even if it is rarely perfect in practice. Examining this robustly creative yet largely overlooked lineage of African American religious thought, Dew provides a window onto religion, race, citizenship, and law in America.
A few blurbs:
“In this remarkable book of personal and communal atonement, Dew honors what he calls ‘the intellectual aikido’ of Aliite thinkers across a hundred years of insistent devotion to the ideals of American citizenship. Placing the Aliites in the proud company of American freethinkers, Dew lays before us an alternative tradition of American democracy—of civic engagement as religion—from the founding of utopian communities to the courting of FBI surveillance. The Aliites introduces us to a fecund and vital vernacular legal imagination, one that could only be American.” -- Winnifred Fallers
“A genuinely original work, The Aliites makes significant contributions to the study of religion, religion’s relationship to the law in the United States, and larger themes and patterns among Aliites. Dew’s organization of the book around elements of the Great Seal is creative and generative, foregrounding his excellent study of the centrality of the law and practices of citizenship in Aliite thought. This book offers the best interpretation currently available of many practices that contribute to outsiders’ evaluations of some of the modern groups as criminal, making it an enormously valuable work.” -- Judith Weisenfeld
More information is available here.

H/t: New Books in Law, where you can listen to an interview with the author.

-- Karen Tani

Tuesday, April 21, 2020

Bamzai on Tenure of Office and the Treasury

Aditya Bamzai, University of Virginia School of Law, has posted Tenure of Office and the Treasury: The Constitution and Control over National Financial Policy, 1787 to 1867, forthcoming in the George Washington University Law Review 87 (2019): 101-188:
The disputed scope of the President’s authority to remove subordinates in the executive branch, and to direct them in the performance of their functions, is one of the central issues of federal constitutional law. On the one hand, some argue that Article II gives the President such authority. By contrast, others claim that the Constitution allows Congress to regulate the tenure of office of executive branch officers by limiting the President’s removal power.

In the context of this debate, some have argued that financial institutions—the components of the “treasury”—were historically insulated from presidential control. They rely on early Congresses’ creation of several commissions with the Chief Justice as a member, establishment of the First and Second Banks of the United States, and use of distinct language to establish the Department of the Treasury and some of its officers. This Article shows that these claims are incorrect. Drawing on congressional and executive sources, case law, and contemporaneous treatises, this Article demonstrates that the prevailing view in the years between the Constitution’s adoption and the impeachment trial of Andrew Johnson was that financial government institutions were no different from other parts of the federal government for purposes of presidential control. The President had the constitutional authority to remove officials within the Department of the Treasury. The institutions over which presidential control was conspicuously lacking—the First and Second Banks of the United States—were generally understood to be private, rather than arms of the government, and to perform non-sovereign functions. But to the extent the Bank was understood to perform sovereign functions, its opponents argued that it did so impermissibly, using a variation of the modern argument that Congress may not delegate such functions to private entities. This Article’s exploration of these issues both bears on contemporary debates about the scope of the President’s removal power and shows how early expositors of the Constitution understood the allocation of federal government control over national financial policy.
--Dan Ernst

Legal History of Epidemics

Two online scholarly engagements with the legal history of epidemics have come to our attention.  The first, over at Environment, Law and History, is Legal History of Epidemics: Selected Sources, compiled by David Schorr, the Director of the David Berg Foundation Institute for Law and History at the Tel Aviv University Buchmann Faculty of Law.  (He would be pleased to receive additional suggestions.)  The second is Salus Populi, a five-segment Panopto lecture on the legal history of epidemics John Fabian Witt delivered to his American Legal History students at the Yale Law School last week.

Update: Via the American Historical Association's "Fortnightly News," we’ve learned that “the Stanton Foundation is launching a weekly contest to identify the best new applied history article or op-ed that analyzes history to clarify the medical, political, economic and/or international impact of COVID-19 and identifies lessons or clues for policymakers. Each week's winner will receive $1,000, with an additional $2,500 prize for the best overall.”  More.

--Dan Ernst

Monday, April 20, 2020

Benton Named Biggs Professor at Yale University

A press release from Yale University announces that Lauren Benton, President of the American Society for Legal History, will assume her appointment as the Barton M. Biggs Professor of History on July 1.  More.

Guggenheim to Meyler

The John Simon Guggenheim Memorial Foundation has announced its 2020 fellows. Congratulations to legal historian Bernadette Meyler (Stanford Law School), who is a 2020 fellow in the Constitutional Studies category. Currently, she "is completing Common Law Originalism, a book about constitutional interpretation that attempts to square fidelity to the founding era with fidelity to its common law jurisprudence."

Dear on California's Supreme Court Commissioners, 1885-1905

Jake Dear, Chief Supervising Attorney of the California Supreme Court, has posted California’s First Judicial Staff Attorneys: The Surprising Role That Commissioners Played, 1885–1905, in Creating the Courts of Appeal, which is forthcoming in Volume 15 of California Legal History.
In the late nineteenth and early twentieth centuries, the California Supreme Court employed legal staff — then called “commissioners” — quite differently from how it uses chambers attorneys and law clerks today. Controversy surrounding that former system led to creation of the Court of Appeal. The story unfolds like a Gilbert & Sullivan operetta:

The Supreme Court, regularly traveling up and down the state hearing oral arguments in San Francisco, Sacramento, and Los Angeles, was chronically unable to keep pace with an increasing influx of direct appeals from numerous trial courts. After the Legislature directed the court to hire “commissioners” to help with its workload, a few thousand opinions authored and signed by the court’s new staff were published in the California Reports — and approximately 700 more were published, along with hundreds of other unreported Supreme Court opinions, in the reports of “California Unreported Cases.” There were public accusations of overreaching by the staff commissioners and abdication of judicial responsibility by the justices, culminating in major litigation by a disgruntled appellate lawyer — ultimately upholding the court’s authority to use legal staff. The hired staff commissioners and elected justices played musical chairs, trading places numerous times — appearing to confirm criticisms that they were inappropriately interchangeable. Meanwhile, and amidst growing calls for the state to create an intermediate appellate court, the Supreme Court remained backlogged even with help from the staff commissioners. Finally, after nearly two decades, there was an agreement to jettison the criticized staff commissioner system, and to forbid its use ever again — paving the way for the voters’ acceptance of a constitutional amendment to create the California Courts of Appeal. When the music stopped, all remaining staff commissioners became appellate court justices.
Among other things, this article helps with an episode in Roscoe Pound's career that puzzled me, his service as Commissioner of Appeals of the Nebraska Supreme Court from 1901 to 1903.

--Dan Ernst

Saturday, April 18, 2020

Weekend Roundup

  • The officers of the American Society for Legal History write to say that all of the Society's prizes will be awarded this year as usual with a submission deadline of June 1.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.  

Friday, April 17, 2020

Tomlins on In the Matter of Nat Turner

Over at, Christopher L. Tomlins, University of California, Berkeley, is interviewed about his recent book In the Matter of Nat Turner.  Perhaps because the site appears to have a readership more of nonfiction writers than scholars, the interview is quite lively, touching upon not just the theoretical underpinnings of the book but what Tomlins is reading now and life while sheltering in place.  We'd rather attend a book talk irl, but in these times we'll take what we can get.

--Dan Ernst

Thursday, April 16, 2020

Paul on Judicial Supremacy in Antitrust

Sanjukta Paul, Wayne State University Law School, has posted Reconsidering Judicial Supremacy in Antitrust:
This paper reconsiders the foundations of judicial supremacy in antitrust, which rests ultimately upon the claim that the Sherman Act is a "common law statute." The common law statute thesis is that Congress delegated to judges the power to invent the criteria by which the law will allocate economic coordination rights under antitrust law. But Congress intended no such fundamental delegation of law-making power to the judiciary, as a reconsideration of the legislative history — informed by an examination of the concepts invoked in key legislative deliberations — shows. Notably, the massive influence of Chicago School law and economics in the domain of antitrust law has been underwritten by this judicial self-empowerment.
–Dan Ernst

AHR Roundtable on Age

American Historical Review | Perspectives on History | AHAThe April 2020 issue of the American Historical Review features a roundtable, "Chronological Age: A Useful Category of Historical Analysis," organized by Nicholas Syrett (University of Kansas) and Corinne Field (University of Virginia). Of special interest to legal historians: 
  • Ishita Pande (Queen's University), "Power, Knowledge, and the Epistemic Contract on Age: The Case of Colonial India": on the implementation of age-of-consent legislation in high courts across colonial India
  • Corrie Decker (University of California, Davis), "A Feminist Methodology of Age Grading and History in Africa": on how colonial authorities expanded the legal importance of chronological age while precolonial African societies assessed age in relative terms (juniors versus seniors). Faced with two incommensurable systems for understanding life stages, African women found new ways to assert a sense of generational belonging and new definitions of maturity. 
  • Bianca Premo (Florida International University), "Meticulous Imprecision: Calculating Age in Colonial Spanish American Law": on how indigenous, enslaved, and property-less individuals in Spain’s American colonies multiplied privileges based on age calculations that proved situational rather than numerically exact. The ages that Spanish American officials set down on paper in criminal trials, censuses, and freedom suits derived from complicated cultural equations; Premo contends that age proved a critical guarantee of rights, a language colonial subjects could use to turn legal incapacities into beneficial protections.
  • Ashwini Tambe (University of Maryland), "The Moral Hierarchies of Age Standards: The UN Debates a Common Minimum Marriage Age, 1951-1962": on United Nations efforts to consider a universal minimum age of consent for marriage. This involved a series of tense deliberations, as former colonial powers framed early and forced marriage in newly independent states as forms of slavery. Debates about a universal marriage age came to mark differences between imperial powers and decolonizing nations.
  • Corinne Field (University of Virginia) and Nicholas Syrett (University of Kansas), "Age and the Construction of Gendered and Raced Citizenship in the United States": on how the postbellum state relied upon age to reinforce inequalities rooted in female dependence and chattel slavery. Congress denied equal benefits to the families of black Civil War soldiers because they lacked adequate proof of age. Postbellum legal majority differentiated between men and women, shoring up gender inequality even as women gained new rights and opportunities. Chronological age, Field and Syrett conclude forcefully, is not a neutral fact, but a vector of power through which officials and ordinary people construct and contest the boundaries of citizenship and belonging. 
Further information is available here.

--Mitra Sharafi

Wednesday, April 15, 2020

Max Planck Studies in Global Legal History of the Iberian Worlds

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

The Max Planck Institute for European Legal History has a new publications series: Max Planck Studies in Global Legal History of the Iberian Worlds (MPIW) will present legal historical research on the Iberian worlds of the early modern and modern periods. Its volumes will cover not only regions that were part of the Spanish and Portuguese empires or stood in direct contact with them, but also examine the globalisation and localisation of normative knowledge throughout Europe, America, Asia and Africa. A particular emphasis lies on the investigation of cultural translation processes and phenomena of multinormativity. The series, edited by Thomas Duve, is published in Open Access, and in print as a hardcover edition by Brill.

The first volume now published - Knowledge of the Pragmatici: Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America - is devoted to a long underestimated genre of normative literature that was of great significance for the formation of normative orders in early modern Ibero-America: small handbooks written for practical use. These could contain legal texts, but moral theological works and confession manuals were also among these widely used media, which were particularly important for the everyday practices of norm production.

The definition of this genre, as well as its function, dissemination and use from the 16th to the 18th century are the focus of the eleven contributions to this volume, which brings together the results of a collaborative research project (SFB 1095). A number of contributions focus on the methods of norm generation in the early modern period, in particular the role of pragmatic literature in these processes and the practices of epitomisation characteristic of this genre. The volume also includes studies on important authors (such as Martín de Azpilcueta) and on the circulation of books and knowledge. Further chapters analyse the presence and use of pragmatic literature in regional contexts from Mexico to South America.

The authors, almost all of whom are members of the MPIeR, come from Argentina, Brazil, Colombia, Germany, Italy, Peru and Spain. The volume, edited by Thomas Duve and Otto Danwerth, has just been published in Open Access; the hardcover version will become available at the end of April.  More information on the website of the MPIeR or on

Tuesday, April 14, 2020

AJLH 60:1

American Journal of Legal History 60:1 (March 2020) has been published.  Here is the TOC. 

Editorial     Felice Batlan; Stefan Vogenauer

AJLH Alfred L. Brophy Prize   


The Hermit and the Boa Constrictor: Jeremy Bentham, Henry Brougham, and the Accessibility of Justice   
Chris Riley

‘The Great Britain of the South’: the Law of Contract in Early Colonial New Zealand   
Warren Swain

The Background to Riggs v. Palmer   
William B Meyer

The Historical Evolution of Allegiance During Occupation   
Manuel Galvis Martinez

Book Reviews

Alfred L. Brophy, University, Court, & Slave: Pro-Slavery Thought in Southern Colleges & Courts & the Coming of Civil War    
Kelly Kennington

Jean-Christophe Gaven, Le Crime de Lèse-nation: Histoire d'une Invention Juridique et Politique
Chrystelle Gazeau

Aniceto Masferrer, ed., The Western Codification of Criminal Law: A Revision of the Myth of its Predominant French Influence   
Luigi Lacchè

Chatterjee on Mughal Law

Nandini Chatterjee, University of Exeter, has published Negotiating Mughal Law: A Family of Landlords across Three Indian Empires with Cambridge University Press. The book is available on an Open Access basis. From the publisher: 
Negotiating Mughal LawBased on a completely reconstructed archive of Persian, Hindi and Marathi documents, Nandini Chatterjee provides a unique micro-history of a family of landlords in Malwa, central India, who flourished in the region from at least the sixteenth until the twentieth century. By exploring their daily interactions with imperial elites as well as villagers and marauders, Chatterjee offers a new history from below of the Mughal Empire, far from the glittering courts of the emperors and nobles, but still dramatic and filled with colourful personalities. From this perspective, we see war, violence, betrayal, enterprise, romance and disappointment, but we also see a quest for law, justice, rights and righteousness. A rare story of Islamic law in a predominantly non-Muslim society, this is also an exploration of the peripheral regions of the Maratha empire and a neglected princely state under British colonial rule. 
Praise for the book:

 "This book is an important work that enriches our understanding of family, empire and estate in South Asia. The analysis moves away from state policy and image-building to the micro-processes that actually reproduce state power. It achieves this through the mastery of difficult sources presented in a wide comparative frame.'"- Sumit Guha 

"In tracking a single family's legal documents over three centuries, Nandini Chatterjee has written an extraordinary book, upturning our understanding of how Mughal law worked and how it was experienced by its subjects. It will be revelatory for anyone interested in Islamic, South Asian, or Mughal history." - Samira Sheikh

Further information is available here.

--Mitra Sharafi

Monday, April 13, 2020

McNeil on Aboriginal Title in Canada

Kent McNeil, York University Osgoode Hall Law School, has posted Discarding Old Prejudices: Judicial Precedent and Aboriginal Title.  This is the Law Foundation of Saskatchewan Lecture, delivered at the University of Saskatchewan College of Law on October 28, 2019.  It is based on the author’s Flawed Precedent: The St. Catherine’s Case and Aboriginal Title (Vancouver: UBC Press, 2019)
This talk on judicial precedent and Aboriginal title combines legal history and current law. The legal history is important because it informs the current law. It also reveals the racism in Canadian law that retarded the development of the concept of Aboriginal title until the 1970s.

My discussion of the early case law focuses on St. Catherine’s Milling and Lumber Co. v. The Queen, decided by the Privy Council in 1888. It was the leading judicial precedent on the source and content of Aboriginal title right up to the Supreme Court of Canada’s 1973 decision in Calder v. Attorney General of British Columbia. The question in St. Catherine’s was this: Did the Crown in right of Ontario or the Crown in right of Canada benefit from the surrender by the Saulteaux people of the Anishinaabe Nation of their Aboriginal title by Treaty 3 in 1873?
--Dan Ernst

Akech on Judicial Review in Kenya

Migai Akech, University of Nairobi, has posted Judicial Review in Kenya: The Ambivalent Legacy of English, which is forthcoming in Judicial Review of Administrative Action: Origins and Adaptations Across the Common Law World, ed. Lawin Swati Jhaveri and Michael Ramsden (Cambridge University Press, 2020):

This Chapter considers the evolutions in the practice of judicial review in Kenya, and the continued relevance of English law, in the broader context of the role of judicial review in facilitating the attainment of democratic governance. It argues that English law bequeathed to Kenya an ambivalent legacy that continues to shape the exercise of the judicial review power. In theory, law has promised to provide a bulwark against the abuse of governmental power. In practice, however, it has largely served to facilitate authoritarianism. The Chapter begins by locating judicial review in the context of governance in colonial and post-colonial Kenya. It then examines the nature and role of judicial review in the Kenya colony, Independent Kenya, and more recently after the promulgation of the Constitution of Kenya 2010.
--Dan Ernst

Saturday, April 11, 2020

Weekend Roundup

  • The first 2020 issue of The Docket, the online sidekick of Law and History Review, is now live.
  • When contemplating your viewing options as you shelter in place, remember the Leon Silverman lectures of the Supreme Court Historical Society archived at C-SPAN. The complete list of lectures is here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.  

Friday, April 10, 2020

A Query on the Legal History of Epidemics

[We have received the following request.  DRE.]

The David Berg Foundation Institute for Law and History at Tel Aviv University is putting together a web page with links to sources – primary and secondary – on the legal history of epidemics, their consequences, and responses to them. Please send any sources and resources to David Schorr at

ASLH 2020: Stay Tuned

The officers of the American Society for Legal History recently sent its members the following message about the annual meeting scheduled for Chicago in November:
In such uncertain times, we know you may be wondering about the status of our annual meeting, which is scheduled for November 11-13, 2020 in Chicago. The Society will make a decision about whether to hold or cancel this meeting in mid August. We will not provide members with registration information until we are certain that the meeting will go on as planned.

In the meantime, we are very grateful to the Program Committee, which is proceeding with its work in planning the program.

Once again, we send our best wishes to all our members and hope that you are well and safe.
--Dan Ernst

Baylin Duryea to Lecture on Arab Human Rights Activists

Today from 7 to 8 pm Pacific Daylight Time, Catherine Baylin Duryea, St. Johns Law, will deliver a Zoom lecture sponsored by Medialine on how “Arab human rights activists “mobilized international law and how human rights relate to other political movements in the region, such as Arab nationalism, socialism, and Islamism,” since the late 1970s.  Cost: $18.  More.

--Dan Ernst

Thursday, April 9, 2020

Lovelace to Duke Law

Via Twitter we learned that Duke Law has appointed H. Timothy Lovelace, Jr., to the faculty. Here's an excerpt from the law school's announcement:
H. Timothy Lovelace, Jr., a noted legal historian of the civil rights movement, will join the Duke Law faculty in June from the Indiana University Maurer School of Law, where he is a professor of law.
Lovelace, whose work examines how the civil rights movement in the United States helped to shape international human rights law, is the author of numerous articles and a forthcoming book, The World is on Our Side: The U.S. and the U.N. Race Convention (Cambridge), which examines how U.S. civil rights politics shaped the development of the International Convention on the Elimination of All Forms of Racial Discrimination. He served as Duke’s John Hope Franklin Visiting Professor of American Legal History in the spring 2019 semester, when he delivered the Robert R. Wilson Lecture. He is returning to the faculty as the John Hope Franklin Research Scholar.
Read on here.

Congratulations to Tim Lovelace and to Duke Law!

-- Karen Tani

Price on Congressional Authority over Military Officers

Zachary Price, University of California Hastings College of the Law, has posted Congressional Authority Over Military Offices, which is forthcoming in the Texas Law Review:
While scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers.

This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, just as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default disciplinary mechanism, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders.

By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions are relevant pending Supreme Court cases regarding military discipline and presidential removal authority. They also bear directly on pending legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over the “unitary” executive branch, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance.
-Dan Ernst

Prifogle to University of Michigan Law

Some happy news for these tough times: Emily Prifogle, a former associate blogger here at LHB and currently a visiting assistant professor at the University of Michigan Law School, has accepted a tenure-track position Michigan Law. She will start as an assistant professor in AY 2020-21. We'll update the post with Michigan's formal announcement once we have it.

Congratulations to Emily Prifogle and to Michigan Law!

-- Karen Tani

Wednesday, April 8, 2020

Eisenberg on Economic Regulation and Rural America

Ann Eisenberg, University of South Carolina School of Law, has posted Economic Regulation and Rural America, which is forthcoming in the Washington University Law Review 98 (2021):
Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization, and that we neglect to use those tools to our own collective detriment. The Article focuses specifically on the tool of economic regulation, meaning government oversight of entry, exit, and participation parameters for service providers in certain markets. Robust historical precedents establish that strategic economic regulation is uniquely capable of sustaining rural communities, and that using it to do so is in fact critical to national resilience.

Rural diseconomies of scale—the problem of higher costs per capita and lower demand for resources in population-sparse regions—must be understood as a keystone question concerning whether and how rural communities can gain access to the amenities they need to survive. The pre-1970s regulatory regime governing infrastructure industries helped overcome the problem of diseconomies of scale by safeguarding rural access to services that precede economic growth. Infrastructure industries’ subsequent abandonment of rural America during the deregulatory era amounts to a market failure because the nation remains dependent on rural communities for food and energy production, environmental stewardship, and political stability. Thus, for the benefit of all, corrective interventions into infrastructure markets and a broader conception of infrastructure should help connect rural America to community-sustaining systems, like broadband internet and national grocery store chains. Ultimately, this discussion also offers an answer to the problem of the so-called “urban/rural divide”: enhancing “urban/rural connectivity,” both literally and symbolically.
--Dan Ernst

Save the Date: Legal Histories on the Edges of Empires

[We have the following “Save the date” announcement for the Third Legal Histories of Empire Conference.  DRE]

What: Beyond the Pale: Legal Histories on the Edges of Empires

When: 30 June -2 July 2021

Where: Maynooth University, Ireland   

CFP: The CFP will be out in May.

Accommodation and Registration: We will be providing information about accommodation on our new website ( well in advance of the conference.

What about Covid-19? Obviously we hope that by July 2021 we will all be meeting in Maynooth. However, we do have contingency plans for other formats if this is not possible.

Questions: Email

To do now?: Sign up on our website for email notifications ( We will not spam you. We will let you know only what you need to know when you need to know it!

Tuesday, April 7, 2020

Scribes Book Award to Hasday

Congratulations to recent guest blogger Jill Hasday (University of Minnesota Law School), whose Intimate Lies and the Law (Oxford University Press, 2019) has just been awarded the annual book award from Scribes: the American Society for Legal Writers. The award recognizes "the best work of legal scholarship published during the previous year."

Daniel Okrent received an honorable mention for The Guarded Gate: Bigotry, Eugenics and the Law That Kept Two Generations of Jews, Italians, and Other European Immigrants Out of America (Scribner, 2019).

-- Karen Tani

Boucai on the Lost Origins of the Right to Marry

Michael Boucai, University at Buffalo Law School, has posted Before Loving: The Lost Origins of the Right to Marry, which is forthcoming in the Utah Law Review 2020: 69-176:
For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: conjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake to lose its exclusive claims to licit sex and legitimate procreation, personal autonomy in those very domains gained independent constitutional protection. Drained of its conjugal essence, today’s constitutional right to marry is thus an anachronism, the vestige of a bygone consensus about what, if anything, “marriage” fundamentally is.
–Dan Ernst

Monday, April 6, 2020

Kelly on Militarized Medicine and Corporate Punishment in Australia

Catherine Kelly, University of Bristol, has posted Medicine, Law, and the Lash: Militarized Medicine and Corporal Punishment in the Australian Colonies 1788–1850, which is forthcoming in Legal History:
The service of medical practitioners in the early Australian colonies was inextricably bound up with a heavily militarized culture. This article explores the relationships between those medical practitioners, legal punishment, and the British Empire in the first half of the nineteenth century. The service of medical practitioners in the Australian colonies, coming as it did so close on the heels of two generations of war, gives us an important insight into the effects of the Napoleonic wars both upon the practice of medicine in the service of the British State, and also the State’s attitude to the use of medical expertise. In the military spaces of transport and colony, the medical officer became an important lynch pin in the discipline and control exercised over convict bodies. Military medical expertise was useful to the State in understanding the best ways to discomfort and hurt convicts, without quite killing them. This expertise was further cultivated by the State in the ongoing design of the medical role in the colonies that came to hark forward to the prison officer of the later nineteenth century whose position, balanced precariously between punishment and care, has been of such interest to penologists and medical historians.
–Dan Ernst

Saturday, April 4, 2020

Weekend Roundup

  • The Max Planck Institute for European Legal History invites doctoral students and young researchers to participate in study sessions on “the basic tools for beginning research in the archives of the Holy See and of other Roman ecclesiastical institutions as well as to provide elements for a critical interpretation of the sources and their contextualization through the most current literature.”  More
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, April 3, 2020

Today: An Online Class with Ken Burns on the Constitution in Crisis Times

Documentary filmmaker Ken Burns will be teaching an online class for students, entitled “The Constitution in Times of Crisis,”  April 3, with the National Constitution Center on the role of the U.S. Constitution during crises at 1pm today, EST, via Zoom.   More.

--Dan Ernst

LHR 38:1

Law and History Review 38:1 (February 2020) is available online.

In This Issue

Intertwined Itineraries: Debt, Decolonization, and International Law in Post-World War II South Asia by Kalyani Ramnath

Forum: Cultural Expertise

Introduction: Why a History of Cultural Expertise? by Livia Holden

Cultural Expertise and Law: An Historical Overview by Livia Holden

The Indian Panchayat, Access to Knowledge and Criminal Prosecutions in Colonial Bombay, 1827–61, by James Jaffe

Cultural Expertise in Iran: From the Pahlavi Dynasty to Contemporary Diasporas by Soudabeh Marin

Historians at the Court: How Cultural Expertise in Qing Law Contributes to the Invention of Hong Kong “Chinese Customary Law” by Jérôme Bourgon

Judging the Communist Past: Historians and Cultural Expertise in Polish Administrative Courts by Stanislaw Burdziej

Expert Testimony in the Social Sciences: A Historical Overview of Contemporary Issues by Lawrence Rosen

Forum: Regulating Age of Consent in the British Empire

Accounting for Colonial Legal Personhood: New Intersectional Histories from the British Empire by Antoinette Burton

Withholding Consent to Conjugal Relations within Child Marriages in Colonial India: Rukhmabai's Fight, by Kanika Sharma

Intimate Violence in Colonial Bengal: A Death, a Trial and a Law, 1889–1891 by Tanika Sarkar

Cultures of Sex, Laws of Difference: Age of Consent Law and the Forging of a Fraternal Contract on the Margins of the Nineteenth-Century British Empire by Nafisa Essop Sheik

The Problem of African Girlhood: Raising the Age of Consent in the Cape of Good Hope, 1893–1905 by Elizabeth Thornberry

“Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England by Laura Lammasniemi

Vernacularizing Justice: Age of Consent and a Legal History of the British Empire by Ishita Pande

Book Reviews

Johanna Ransmeier, Sold People: Traffickers and Family Life in Northern China, Cambridge, MA: Harvard University Press, 2017. Pp. 408. $51.50 hardcover (ISBN 9780674971974)
Xiaoping Cong

Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia, Cambridge, MA: Harvard University Press, 2018. Pp. vi + 289. Paperback $18.95 (ISBN 9780674237865).
Mia Korpiola

Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law, New York: Oxford University Press, 2018. Pp. ix + 437. $61.00 hardcover (ISBN 9780198814412).
Peter C. Caldwell

Philip Girard, Jim Phillips, and R. Blake Brown, A History of Law in Canada-Volume One-Beginnings to 1866, Toronto: The Osgoode Society for Canadian Legal History and University of Toronto Press, 2018. Pp xvii + 904. $120.00 (Canadian) hardcover (ISBN 9781487504632).
Jonathan Swainger

Caroline R. Sherman, The Uses of the Dead: The Early Modern Development of Cy-Près Doctrine, Washington, DC: The Catholic University of America Press, 2018. Pp. xvi + 461. $75.00 hardcover (ISBN 9780813229508).
Maureen E. Brady

Eric Lomazoff, Reconstructing the National Bank Controversy: Politics & Law in the Early American Republic, Chicago and London: The University of Chicago Press, 2018. Pp. 256. $90.00 hardcover (ISBN 9780226579313); $30.00 paper (ISBN 9780226579450); $10.00–$30.00 e-book (ISBN 9780226579597).
Hannah A. Farber

Robert C. McGreevey, Borderline Citizens: The United States, Puerto Rico, and the Politics of Colonial Migration, Ithaca, NY: Cornell University Press, 2018. Pp. 264. $45.00 hardcover (ISBN 978150171614X).
Marisol LeBrón

Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, New York: Oxford University Press, 2017. Pp. 464. $85.00 hardcover (ISBN 9780199856664).
Lee Kovarsky

Rebecca Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, New York: Cambridge University Press, 2018. Pp. 217. $51.99 hardcover (ISBN 9781316155059).
Cynthia Nicoletti

--Dan Ernst

Stern on the Transition from Mandate Palestine to Israel

We don’t usually post abstracts for gated scholarship, but a pandemic is no time for foolish consistency.  Rephael G. Stern, a JD-PhD candidate in history at Harvard, has published Legal Liminalities: Conflicting Jurisdictional Claims in the Transition from British Mandate Palestine to the State of Israel in Comparative Studies in Society and History 62:2 (April 2020): 359-388:
This article explores the legal and temporal dimensions of the transition from British Mandate Palestine to the State of Israel on 15 May 1948. I examine the paradoxical character of Israeli jurisdictional claims during this period and argue that it reveals the Israeli state's uncertainty as to whether the Mandate had truly passed into the past. On one hand, Israel recognized the validity of the Mandate administration's jurisdiction until 15 May; I employ the Israeli trial of the British citizen Frederick William Sylvester to demonstrate how Israel even predicated its own jurisdictional claims on their being continuous with those of its predecessor. In this case, the Mandate administration was cast as having entered the realm of the past. Conversely, the Israeli state contested Mandate laws and legal decisions made prior to 15 May to assert its own jurisdictional claims. In the process, Israeli officials belied their efforts to bury their predecessors in the past and implicitly questioned whether the past was in fact behind them. By simultaneously relying upon and disavowing past British legal decisions, the Israeli state staked a claim on being a “completely different political creature” from its British predecessor while retaining its colonial legal structures as the “ultimate standards of reference.” Israel's complex attitude toward its Mandate past directs our attention to how it was created against the backdrop of the receding British Empire and underscores the importance of studying Israel alongside other post-imperial states that emerged from the First World War and the mid-century decolonizing world.
–Dan Ernst

Thursday, April 2, 2020

Murray on Populist Prosecutorial Nullification

Kerrel Murray, University of North Carolina School of Law, has posted Populist Prosecutorial Nullification, which is forthcoming in volume 96 of the NYU Law Review:
No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework. To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. In so doing, it finds that local elections make all the difference. There may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification. It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement. These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification. Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.
--Dan Ernst

Wednesday, April 1, 2020

Welcome, Rohit De!

We are delighted to be joined this month by Rohit De, Associate Professor of History at Yale University and Senior Research Scholar in Law at Yale Law School.

Image credit
Professor De holds a Ph.D. in History from Princeton University and law degrees from the Yale Law School and the National Law School of India University, Bangalore. Prior to joining the faculty at Yale, he was a Mellon Postdoctoral Fellow at the Centre for History and Economics and a fellow of Trinity Hall at the University of Cambridge.

We've mentioned him often on the blog recently because of his award-winning book, A People’s Constitution: Law and Everyday Life in the Indian Republic (Princeton University Press). The book challenges the conventional narrative of the Indian Constitution of 1950 by showing what it meant to ordinary people, including those on the margins of society. Other scholarship has appeared in the Law & History Review, Modern Asian Studies, and The Oxford Handbook to the Indian Constitution, among other venues.

According to his faculty bio, Professor De's current research has two major strands: "the histories of political lawyering and the nature of the postcolonial state in South Asia." Representative of the first is a project supported by a grant from the Social Science Research Council, on mid-twentieth-century events conventionally understood as “national political trials”--in Kenya, Tanzania, Ghana, Seychelles, India, Pakistan, Sri Lanka, Malaysia, Singapore, British Guyana and the United Kingdom. He argues that these events "were produced by, and as part of, a transnational movement for civil liberties." The second strand of research encompasses a project on India's "disciplining of the economy through criminal law in the 1960s and 70s," as well as in a collective biography of the women in the Indian Constituent Assembly. Current works-in-progress include “The Flying Q.C: The Postcolonial Career of D.N. Pritt and the Jurisprudence of Decolonization” (under review), “The Value of Bull Shit: The Juridical Invention of Bovine Value”  (under review), and “Between Midnight and Republic: Theory and Practice of India’s Dominion Status” (under review).

Professor De's teaching has included courses on South Asian history; Indian constitutional culture and political thought; global legal history; law and colonialism; and the legal profession.

Welcome, Rohit De!

-- Karen Tani