We would like to acknowledge that one of our conference panelists, Professor Anne Fleming of Georgetown University Law Center, passed away earlier this year. Anne was scheduled to present "The Origins of the American Consumer Bankruptcy System" during our first panel on Historical Perspectives on Insolvency Law. At the time of her passing Anne was engaged in a new book project: Household Borrowing and Bankruptcy in Jim Crow America, 1920-1960. Her preliminary findings can be found on her website: The Bankruptcy Capital of the World: Debt Relief in Birmingham, Alabama in the 1930s. We dedicate this special volume of the Canadian Business Law Journal to Anne Fleming.--Dan Ernst
Monday, August 31, 2020
Melvin I. Urofsky
Fletcher, Whitney, and the Art of Disagreement
Mark R. Killenbeck
Chief Justice Melville Weston Fuller and the Great Mustache Debate of 2444
The Politics of Disabled Supreme Court Justices
Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States
Kumezo Kawato and “Justice Court”
Charles J. Sheehan
Sunday, August 30, 2020
It is with a sense of utmost shock and deep sadness that I write to inform you all that Anne Fleming passed away on Tuesday 25th August due to an embolism. I am sure that you will be as stunned by this awful news as I am. Anne has been an extremely willing and able servant to the BHC, currently as trustee and chair of the Electronic Media Oversight Committee. She also played a leading role in helping to revise the BHC bylaws. Recently, she had agreed to be a member of the BHC’s new anti-racism committee. In the short period of time I had worked with Anne, her selfless willingness to help, her legal eye for detail and her capacity to contribute efficiently and effectively shone through.
Her intellectual contributions to business history were outstanding, as she received the 2016 Herman E. Kroos Prize for the best dissertation in business history and followed this up by winning the 2019 Ralph Gomory Prize for her book City of Debtors: A Century of Fringe Finance (Harvard University Press, 2018). Her current research projects promised to confirm and enhance her academic reputation.
But perhaps her most lasting contribution will be her warmth, generosity and interest in others. She will leave a large hole in the business history community and had already made a lasting contribution to it. It is tragic that such a blossoming career has ended so early and so abruptly.
Here is a link to a legal history blog In memorium of Anne. Our thoughts are with all who knew her and our deepest condolences go to her family and friends at this time.
Saturday, August 29, 2020
I have attended quite a few panels at quite a few annual meetings of the American Society for Legal History, but I can remember only two in which I teared up. One was “The Surprising Effects of Sympathy,” a memorial discussion of the work of Elizabeth B. Clark at the 1998 meeting in Seattle. The other was a Kathryn T. Preyer Award panel in November 2011. Named for a great mentor of legal historians, the Preyer Award is an annual prize contest for graduate students. That year Mary Bilder chaired, with comments by two senior legal historians whose work I had admired since my own early days in the field, William Wiecek and Charles McCurdy. I remember Chuck McCurdy’s comment in particular. As Karen reported in a post, Chuck said, “Kitty would have loved these papers,” explained why, and concluded that, with new entrants like these, the field of legal history was certain to thrive for years to come. A similar thought had occurred to me as I listened to the papers, and to hear Chuck articulate it, connecting a departed generation represented by Kitty Preyer through him and Bill Wiecek to an entering generation, was very moving. Two of the award winners that year were Kevin Arlyck and Michael Schoeppner. The third was Anne Fleming, for “The Borrower's Tale: A History of Poor Debtors in Lochner Era New York City,” which she subsequently published in Law and History Review and as a chapter in City of Debtors.
In the brief time Anne Fleming wrote legal history, she more than delivered on the promise that was so evident in 2011. As I told my Georgetown colleagues, she was the kind of person who, when you looked around and realized she was engaged in the same enterprise you were, made you think the activity must be worthwhile if someone that good was also committed to it. Now when legal historians look around and realize Anne’s not there, we’ll feel diminished by her absence but also grateful for all she did when she was with us.
Friday, August 28, 2020
- Paul F. Scott, "Introduction: 'The Constitutional Legacies of Empire'"
- Jane Rooney, "Crown act of state and detention in Afghanistan"
- Courtney Grafton, "Foreign act of state and empire"
- Martin Clark, "'Something like the principles of British liberalism': Ivor Jennings and the international and domestic, 1920-1960"
- Devyani Prabhat, "Unequal citizenship and subjecthood: a rose by any other name...?"
- Donal K. Coffey, "Constitutional law and empire in interwar Britain: universities, liberty, nationality and parliamentary supremacy"
- T. T. Arvind and Daithí Mac Síthigh,"Constitutionalism in the periphery: revisiting the roots of self-rule movements in Ireland and India"
- Lindsay Stirton and Martin Lodge, "Constitutional legacies of empire in politics and administration: Jamaica's incomplete settlement"
- Paul F. Scott, "The Privy Council and the constitutional legacies of empire"
- Roger Masterman, "The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?"
Thursday, August 27, 2020
The last decade or so has witnessed a burgeoning of literature on the role of cross-jurisdictional influences in the design (as well as subsequent interpretation) of national constitutions. The consensus emerging from that literature is that transnational borrowing in the course of constitutional making is both inevitable and impossible. In a globalized world, those involved in the design of a new constitution naturally look beyond their borders for inspiration. Borrowing is thus endemic. But borrowing, in any true sense, is also impossible because in the process of migration, constitutional ideas must be de- and then re-contextualized in order to fit them for the new legal system.–Dan Ernst. H/t: Legal Theory Blog
What, though, if the object of transnational influence is not a constitutional text or an institutional mechanism but, rather, a scholarly theory? That is the question addressed by this article. Specifically, the article examines the intriguing (and little known) story of how John Hart Ely’s representation-reinforcing theory of (American) constitutional interpretation was transformed into a blueprint for the design of the New Zealand Bill of Rights Act. It suggests that Ely’s journey to the South Pacific has the potential to illuminate both the study of constitutional migration generally and, more specifically, the linkages between comparative law and constitutional theory.
Wednesday, August 26, 2020
|Anne Fleming (credit)|
In 2012, Anne returned to the Harvard Law School as a Climenko Fellow and Lecturer in Law. She taught legal writing and thrived as a scholar, drawing on the methodological diversity of her fellowship class to widen her own scholarly range. But she remained devoted to the research questions that had grown out of her public interest legal work and animated her history training. She was "just so committed to the truth," recalls a colleague from her time there.
Anne’s book, City of Debtors: A Century of Fringe Finance (Harvard University Press, 2018), was a Choice Outstanding Academic Title and won the annual book prize of the American College of Consumer Financial Services Lawyers and the Ralph Gomory Book Prize of the Business History Conference, whose prize committee described it well:
In this deeply-researched, well-crafted, and timely book, Anne Fleming offers a rich history of the small loan industry, across most of the twentieth century. Drawing on evidence from hundreds of court cases, among other sources, Fleming skilfully reconstructs the changing experiences and strategies of borrowers and lenders, as they navigated changing local and national regulatory regimes. Using crisp prose, Fleming provides a clear discussion of a long and complex story about business and regulation, while highlighting the struggles of individual human characters. City of Debtors is a detailed, scholarly study, but one that never loses sight of bigger, enduring problems and questions, including, as Fleming puts it, questions about the “meaning of justice within capitalism.”She discussed the book in a series of posts on LHB. In characteristic fashion, Anne wrote about her work in a way that was the opposite of self-aggrandizing, studding her posts with words of wisdom for other writers. She also discussed the book with the director of the American Bankruptcy Institute in the ABI’s podcast series.
At her untimely death, Anne had entered a new and ambitious phase of her scholarly career. For example, her 2019 article "The Public Interest in the Private Law of the Poor" explored "uncharted connections between private law and poverty law," showing "how concerns about public spending on poor relief have shaped debates over the private law of the poor for over a century." The article was aimed not only at legal historians and scholars of poverty law, but also at scholars of law and economics and policymakers concerned with contemporary economic inequality.
Anne was also fully embarked on an enormously exciting book project, “Household Borrowing and Bankruptcy in Jim Crow America, 1920-1960.” Anne planned to describe “how working-class households, both black and white, organized their financial lives and navigated the shifting matrix of legal rules and institutions that governed credit relationships and debt forgiveness in the first half of the twentieth century.” Although she had conducted research on Philadelphia and Washington, D.C., and expected to sample bankruptcy files in other cities, her research centered on Birmingham, Alabama, where, for over five years in the 1930s, an innovative “Debtors Court” adjudicated the filings of 10,000 wage earners seeking debt adjustment or forgiveness. The court inspired Chapter 13 of the federal bankruptcy law, which extended its system of court-supervised repayment to the entire nation. Further, its docket and case files, when linked to the census and city directories and geocoded, made possible a rich portrait of the financial lives of the working class and showed how race shaped access to credit and debt relief. She captured her preliminary findings in a website, The Bankruptcy Capital of the World: Debt Relief in Birmingham, Alabama in the 1930s, which she was still revising at her death. We link to it with permission.
Her colleagues, students, and fellow historians all remember her warmth, generosity, utter lack of pretension, and above all her kindness. A colleague at South Brooklyn Legal Services recalled her as “fiercely dedicated to her clients, a brilliant and selfless advocate.” Tom Sugrue, one of her dissertation advisors, writes that she was “quietly brilliant and deeply humane.” “Losing a good scholar is bad enough,” writes Bruce Mann, who advised her when she was a Climenko, “but losing such a good person is far worse.”
We at the blog will miss her dearly and treasure her memory.
-- Dan Ernst, Mitra Sharafi, and Karen Tani
The Center for the Study of Law & Society has released the Fall 2020 lineup for its speaker series and, as always, there are some speakers of interest to our readers:
Professor of Law, Santa Clara University
Professor Emerita, Berkeley Law
“Breaking into the Legal Ivory Tower: The First American Women Law Professors”
(In celebration of 150 Years of Women at Berkeley)
Monday, November 23 – Richard Ross
David C. Baum Professor of Law and Professor of History, University of Illinois
“The Rule of Law in British America: Thinking with Indians While Comparing to Spaniards”
The full lineup is available here.
-- Karen Tani
Tuesday, August 25, 2020
The global upsurge in antisemitism has triggered intense public debates about the role of law in combatting religious and racial hatred. This conference brings together leading scholars of law, history, and Jewish Studies to rethink pressing contemporary questions about antisemitism’s relationship to other forms of discrimination, the proper boundaries between hate speech and free speech, and the Jewish relationship to American civil rights and international law--Dan Ernst
Contrary to longtime assumptions about the insular nature of imperial China’s legalPraise for the book:
system, Circulating the Code demonstrates that in the Qing dynasty (1644–1911) most legal books were commercially published and available to anyone who could afford to buy them. Publishers not only extended circulation of the dynastic code and other legal texts but also enhanced the judicial authority of case precedents and unofficial legal commentaries by making them more broadly available in convenient formats. As a result, the laws no longer represented privileged knowledge monopolized by the imperial state and elites. Trade in commercial legal imprints contributed to the formation of a new legal culture that included the free flow of accurate information, the rise of nonofficial legal experts, a large law-savvy population, and a high litigation rate.
Comparing different official and commercial editions of the Qing Code, popular handbooks for amateur legal practitioners, and manuals for community legal lectures, Ting Zhang demonstrates how the dissemination of legal information transformed Chinese law, judicial authority, and popular legal consciousness.
"Takes recent developments in the field of Chinese legal history to a new level by combining the study of law with the study of book history and print culture." - Li Chen
"Overturns several stereotypes about Chinese law, most importantly that Chinese people did not know what the law was." - Madeline Zelin
"Makes a very important corrective to our understanding of the dissemination of legal information in the late imperial period by defining the ways in which such information was transmitted broadly, even to illiterate commoners. Circulating the Code expands our understanding of the range of works printed during the commercial publishing boom of the late Ming and Qing." - Cynthia Brokaw
Further information is available here.
During the twilight of British rule in India, Sir Benegal Narsing Rau (1887–1953),Table of Contents after the jump:
was sought after by the ruling elites—both British and Indian—for his immense knowledge of the nature and working of the constitutions of the world as well as his reputation for being just and impartial between competing political interests. Yet, Rau’s ideas and his voice have largely been forgotten today. By examining Rau’s constitutional ideas and following their trajectory in late colonial Indian politics, this book shows how the process of the making of the Indian constitution was actually never separated from the politics of conflict that dominated this period. This book demonstrates that it is only by foregrounding this political history that we can simultaneously remember Rau’s critical contributions as well as understand why he was forgotten in the first place.
Monday, August 24, 2020
The Max Planck Institute for European Legal History just published a new volume in its book series Studien zur europäischen Rechtsgeschichte: Philipp Siegert, Staatshaftung im Ausnahmezustand: Doktrin und Rechtspraxis im Deutschen Reich und in Frankreich, 1914-1919.
The First World War is sometimes called the 20th century's "primordial catastophe." It raised diverse legal questions and led to a host of fundamental changes. In volume 322 of the MPIeR's book series Studien zur europäischen Rechtsgeschichte, which has just been published, Philipp Siegert examines state liability law in Germany and France between 1914 and 1918. On the basis of a detailed analysis of both French and German archival sources, he analyses states' legal responsibility during such a state of emergency and identifies categories of "legitimate" and "illegitimate" state action that, however, were either non-existent in pre-war international law or even contradicted it. Nevertheless, these were subsequently sanctioned by the peace treaties, and even a century after 1919 remain part of the international order. The ways in which destruction, expropriation and economic war measures carried out by France and Germany were assessed and sanctioned is highly instructive for the question of state liability in international law today.
Sunday, August 23, 2020
Call for Papers - Special Issue of Punishment & Society: African Penal Histories in Global Perspective
In the twenty years since the publication of Florence Bernault’s edited volume A History of Prison and Confinement in Africa, the study of Africa’s penal systems has expanded tremendously. This scholarship has not only provided a clearer picture of penal ideas and institutions on the African continent across multiple time periods and locations, it has also offered insights into wider questions about the relationship between punishment, colonialism, and decolonization as well as the global circulation of penal techniques. This special issue aims to analyze African developments on their own terms and in relation to imperial and global narratives of punishment and penological networks as well as to integrate the fields of history, sociology, and criminology more closely, highlighting how theoretical insights of sociology and criminology can inform historical research. By presenting multiple works together in a special issue, we seek to emphasize the value of Africanist historical approaches and methods for interdisciplinary or multi-disciplinary research, and to highlight the contribution that studies of African penal systems can make to advancing understanding of global trends in punishment, showing how research on punishment in Africa not only engages with theories from the Global North, but also generates theories that reshape wider approaches to the study of punishment.
Topics for consideration could include (but are not restricted to): indigenous forms of punishment; colonial and postcolonial prisons; capital and corporal punishment; political imprisonment; forced labour; and detention camps.
We are interested in articles undertaking detailed case-study analysis of key historical trends, showcasing different methodological and disciplinary approaches. We invite submissions on all regions of Africa, and its relations with broader global or international developments in punishment and penology.
We particularly welcome submissions from scholars based in Africa and early career scholars.
Saturday, August 22, 2020
— Benjamin Guterman
Roger R. Trask Lecture
For the Records
— Marian Smith
Federal-Local Collaboration in Law Enforcement During the Civil War
— Wyatt Evans
Recycling OPEC Oil Revenues and Resurrecting the Dollar, and the U.S. International Payments Position in American Foreign Policy, 1970–1975
— Simone Selva
Strengthening American Scientific Manpower: The National Science Foundation’s Postwar Science Education Programs and the Limitations of Federal Desegregation Policy
— Emily K. Gibson
The USB Maine Conspiracy
— Kenneth C. Wenzer
Research and Resources
Technodiplomacy: A Concept and Its Application to U.S.-France Nuclear Weapons Cooperation in the Nixon-Kissinger Era
— John Krige
An Interview with Daniel Immerwahr
— Alexander Poster
Henry Clay: The Man Who Would Be President
By James Klotter
— Reviewed by Harry L. Watson
The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation
By Brenda Wineapple
— Reviewed by Daniel S. Holt
Digitized Collection of the Territorial Papers of the United States, 1764-1953
By United States Government and Readex
— Reviewed by Christopher R. Eck
The Mayaguez Crisis: Mission Command and Civil-Military Relations
By Christopher J. Lamb
— Reviewed by Fred H. Allison
Friday, August 21, 2020
9/14/20: Ari Bryen, “Law as Dialogue”
10/19/20: Nate Holdren, Drake University, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge, 2020); Legal History Blogposts (10 posts)
11/13/20-11/14/20: American Society for Legal History mini conference (online and free)
11/16/20: Daniel Sharfstein, “Arbitration in New York’s Fur Business and the Private Law of Immigration, 1914-38
1/25/20: Kim Welch, “Eulalie Mandeville’s Money: Black Moneylenders and Economic Citizenship in the Antebellum U.S. South”
2/22/20: Taryn Marashi, ‘“Your Blood, your Property, and your Honor are Sacred’: Violating Privacy in Medieval Islamic Society”
3/15: Jessica Lowe, “Precocious and Premature: Claims of Illegitimacy Complicating an Inheritance Dispute in Sixteenth-Century Münster.”
4/12 Sara Mayeux, Title TBA
Thursday, August 20, 2020
Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks that Congress can authorize administrative agencies to perform in the course of “executing” federal law. In a prior article ("Adjudication in the Political Branches," 107 Colum. L. Rev. 559 (2007)), I sought to explain traditional doctrines on that topic. For much of American history, Congress could authorize executive-branch agencies to administer and dispose of “public rights” belonging to the federal government or the people collectively, and Congress also could give agencies conclusive authority with respect to the administration of “privileges” that federal law gave private individuals or entities. But the political branches did not have similar sway over vested private “rights.” Only true courts could conclusively determine either that a private person had forfeited such rights or that the claimed rights had never vested in the person to begin with.--Dan Ernst
In my earlier article, I referred to the category of “franchises”—special powers or perquisites that the government gave private people who, in turn, did something of value for the public. Because no one had a vested right to be granted a franchise in the first place, I lumped franchises together with privileges. That taxonomy may have influenced the Supreme Court’s analysis of patents in Oil States Energy Services v. Greene’s Energy Group (2018). But the story is actually more complex. In the nineteenth century, once the government granted a franchise, private rights normally were thought to vest in the franchisee. That idea affected constitutional doctrine with respect to a wide array of legal interests, including not only patents but also corporate charters, the power to operate ferries and toll-roads, and more.
This Article explores the concept of franchises and their interaction with American-style separation of powers. In the process, it illuminates historical understandings of the public/private distinction, unearths new evidence about the constitutional status of patents, and sheds light on the traditional roles of each branch of government.
Praise for the book:This wide-ranging, geographically ambitious book tells the story of the Arab diaspora within the context of British and Dutch colonialism, unpacking the community's ambiguous embrace of European colonial authority in Southeast Asia. In Fluid Jurisdictions, Nurfadzilah Yahaya looks at colonial legal infrastructure - discussing how it impacted, and was impacted by, Islam and ethnicity. But more importantly, she follows the actors who used this framework to advance their particular interests.Yahaya explains why Arab minorities in the region helped to fuel the entrenchment of European colonial legalities: their itinerant lives made institutional records necessary. Securely stored in centralized repositories, such records could be presented as evidence in legal disputes. In order to ensure accountability down the line, Arab merchants valued notarial attestation land deeds, inheritance papers, and marriage certificates by recognized state officials. Colonial subjects continually played one jurisdiction against another, sometimes preferring that colonial legal authorities administer Islamic law--even against fellow Muslims.Fluid Jurisdictions draws on lively material from multiple international archives to demonstrate the interplay between colonial projections of order and their realities, Arab navigation of legally plural systems in Southeast Asia and beyond, and the fraught and deeply human struggles that played themselves out between family, religious, contract, and commercial legal orders.
"Enlivened with telling archival anecdotes and visual materials, Fluid Jurisdictions provides a compellingly textured history of individuals struggling to navigate business and family relations across shifting geographical and cultural boundaries. Nurfadzilah Yahaya writes with witty flare, making this both a seminal work for the field and a true pleasure to read." - Julia Stephens
"Fluid Jurisdictions tells a rich, detailed, and original story about Arabs in Southeast Asia. Weaving together a formidable diversity of archival material, it makes a significant contribution to world history, the study of law and imperialism, Southeast Asian and diaspora studies." -Iza Hussin
Further information is available here.
Wednesday, August 19, 2020
Yale-NUS College is a highly selective liberal arts college in Singapore. Co-founded by YaleUniversity and the National University of Singapore, the College is committed to excellence in research and teaching in a full residential programme that integrates living and learning. Its curriculum educates students in Asian and Western intellectual traditions as well as current scientific thought. A student body of 1000 undergraduates from over 60 countries engages with 100 outstanding faculty from around the world through small classes and hands-on research. Students and faculty also have access to the wider resources of two world-leading research universities.
The College invites outstanding applications for at least one tenure-track position in the social sciences. Candidates would teach in the Double-degree Programme in Law and Liberal Arts.
Applicants should have a PhD in a relevant field, such as law and society, sociology, anthropology, politics, or history (a law degree is not expected) and demonstrate an outstanding track record for their career stage in the interdisciplinary study of law, such as (but not limited to) law and society, sociology of law, anthropology of law, law and courts, or legal history. In particular, we welcome applicants who can teach qualitative methods for interdisciplinary research on law and modules in Yale-NUS’s flagship common curriculum, such as Comparative Social Inquiry and Modern Social Thought.
[H/t: Donal Coffey and Joanna Grisinger.]
|Aaron Burr (LC)|
Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.--Dan Ernst
As the deliberations proceeded, Hay would frequently write to the President, who traveled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redaction. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.
Because of the lengthy nature of the proceedings — in which Marshall and Jefferson took different positions at different junctures — it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.
Tuesday, August 18, 2020
Kelly Kennington, author and associate professor at Auburn University, will be joining us [for a "live-stream author talk"] on her book In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America. Drawing on the case files of more than three hundred enslaved individuals who, like Dred Scott and his family, sued for freedom in the legal arena of St. Louis, she explores new perspectives on the legal culture of slavery and the negotiated processes involved in freedom suits.” More.
This article examines the fascinating, yet often controversial, use of historians’ work and research in the courtroom. In recent times, there has been what might be described as a healthy scepticism from some Australian lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. This article examines some of the similarities and differences in those disciplinary practices in the context of the courts’ engagement with both historians (as expert witnesses) and historiography (as works capable of citation in support of historical facts). The article begins by examining, on a statistical basis, the recent judicial treatment of historians as expert witnesses in the federal courts. It then moves to an examination of the High Court’s treatment of general works of Australian history in aid of the Court making observations about the past. The article argues that the judicial citation of historical works has taken on heightened significance in the post-Mabo and ‘history wars’ eras. It concludes that lasting changes to public and political discourse in Australia in the last 30 years — namely, the effect of the political stratagems that form the ‘culture wars’ — have arguably led to the citation of generalist Australian historiography being stymied in the apex court.--Dan Ernst
For the 2021 book prize, nominations may be submitted Sept.1-Dec.31, 2020.
Nominations and any questions on the prize should be directed to Dr. Xiaoping Cong (firstname.lastname@example.org; email@example.com).
Further information is available here.
Monday, August 17, 2020
Benvenisti & Lustig, "Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874"
In this article, we challenge the canonical narrative about civil society’s efforts to discipline warfare during the mid-19th century – a narrative of progressive evolution of Enlightenment-inspired laws of war, later to be termed international humanitarian law. Conversely, our historical account shows how the debate over participation in international law-making and the content of the law reflected social and political tensions within and between European states. While the multifaceted influence of civil society was an important catalyst for the inter-governmental codification of the laws of war, the content of that codification did not simply reflect humanitarian sensibilities. Rather, as civil society posed a threat to the governmental monopoly over the regulation of war, the turn to inter-state codification of IHL also assisted governments in securing their authority as the sole regulators in the international terrain. We argue that, in codifying the laws of war, the main concern of key European governments was not to protect civilians from combatants’ fire, but rather to protect combatants from civilians eager to take up arms to defend their nation – even against their own governments’ wishes. We further argue that the concern with placing ‘a gun on the shoulder of every socialist’ extended far beyond the battlefield. Monarchs and emperors turned to international law to put the dreaded nationalist and revolutionary genies back in the bottle. These concerns were brought to the fore most forcefully in the Franco-Prussian War of 1870–1871 and the subsequent short-lived, but violent, rise of the Paris Commune. These events formed the backdrop to the Brussels Declaration of 1874, the first comprehensive text on the laws of war. This Declaration exposed civilians to war’s harms and supported the growing capitalist economy by ensuring that market interests would be protected from the scourge of war and the consequences of defeat.The full article is gated, unfortunately.
-- Karen Tani
Ishita Pande's innovative study provides a dual biography of India's path-breaking Child Marriage Restraint Act (1929) and of 'age' itself as a key category of identity for upholding the rule of law, and for governing intimate life in late colonial India. Through a reading of legislative assembly debates, legal cases, government reports, propaganda literature, Hindi novels and sexological tracts, Pande tells a wide-ranging story about the importance of debates over child protection to India's coming of age. By tracing the history of age in colonial India she illuminates the role of law in sculpting modern subjects, demonstrating how seemingly natural age-based exclusions and understandings of legal minority became the alibi for other political exclusions and the minoritization of entire communities in colonial India. In doing so, Pande highlights how childhood as a political category was fundamental not just to ideas of sexual norms and domestic life, but also to the conceptualisation of citizenship and India as a nation in this formative period.
Praise for the book:
"In this theoretically rigorous feminist history, Ishita Pande shows us how and why imperial 'age of consent' controversies should more aptly be read as regimes of reproductive temporality that shape minority and majority political claims in South Asian modernity in all its worldly ambition. Sex, Law and the Politics of Age opens up the terrain of 'juridical childhood' to a whole new set of questions and methods, rethinking girlhood as a prism of colonial and postcolonial ambition and a secularizing epistemic lever in the process." -Antoinette Burton
"A fascinating read, this book adeptly and sensitively renders the child as a moral-political category, and a socio-cultural construct, of modernity in colonial India. Through a close reading of the Child Marriage Restraint Act of 1929, Pande brilliantly intertwines debates on sexuality, childhood and age with the carving of a Hindu reformist nation." -Charu Gupta
"Here, finally, is a superbly researched and expansive South Asian/Indian history of the categories of age and consent, and their translations and tribulations within legal and social structures of surveillance and control. An indispensable book for scholars of law, gender and sexuality." -Anjali Arondekar
"Pande brilliantly deploys the generative power of gender analysis and queer theory to reinterpret one of the most widely-debated topics in colonial South Asian historiography: the question of ‘child marriage’. This rigorous and beautifully written book will be required reading for all historians and scholars of gender and sexuality in the twentieth century." -Todd Shepard
You can join the author for an online book event, "Sex, Law, and the Politics of Age with Ishita Pande" on Monday, August 24, 2020 at 12.30-1.30pm CDT. Register here.
Further information about the book is available here.
Sunday, August 16, 2020
Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." Conventional constitutional doctrine interprets this language"called the General Welfare Clause in this article"as conferring "The Spending Power," a power to spend, but not to regulate, for any and all national purposes. Yet on its face, the General Welfare Clause seems to grant a general power to legislate on all matters of national concern. This article argues that the historical rejection of this "general welfare interpretation" in favor of the spending power interpretation is dictated neither by the text nor drafting history of the General Welfare Clause. The General Welfare Clause first appeared during the Philadelphia Constitutional Convention as a proposal, overlooked by scholars, in a second report presented by the Committee of Detail on August 22, 1787 (two weeks after submitting its well-known first draft of the Constitution). The Committee proposed to add an unambiguous legislative authorization to legislate for "the general interests and welfare of the United States" at the end of the Necessary and Proper Clause. Over the next two weeks, that language was ambiguated and relocated to its final placement, at the end of Article I, section 8, Clause 1. The final version of Clause 1 is best understood as a prominent example of "strategic ambiguity," a deliberate choice by the Framers to employ ambiguous language to accommodate differences of opinion without resolving them. Here, the Framers held competing views on three related issues: whether the enumeration of powers was exhaustive or illustrative; whether the taxing power should be limited to identified purposes; and whether the new national government should assume the Revolutionary War debts of the states. The ambiguity of the General Welfare Clause was intended to leave interpretive space for the general welfare interpretation, among others.–Dan Ernst
Saturday, August 15, 2020
- LaborOnline, the blog of the Labor and Working-Class History Association, has been hosting a symposium, introduced by Eileen Boris, on recent LHB Guest Blogger Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era.
- Catch the latest Legal History Podcast: Philip Thai discusses his book, The War on Smuggling: Law, Illicit Markets, and State Power on the China Coast with Siobhan Barco. We announced the book here.
- Over at Strict Scrutiny, Adam Cohen is interviewed about his book Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck.
- The deadline for applying to the previously announced constitutional history seminar with Josh Chafetz and David Pozen has been extended to September 9.
- The 13th annual Court History and Continuing Legal Education Symposium, “An Election Fraud Case for the Ages: U.S. v. Aczel,” will take place in a virtual session Friday, Nov. 20 from 4 to 5 p.m. Journalist Sasha Issenberg will explore the story behind U.S. v. Aczel, a trial in federal court of the mayor, chief of police, and other prominent officials in Terre Haute, Indiana, for voter suppression in 1914. More.
Friday, August 14, 2020
The Western Legal Tradition (WLT) grows from the Cold War era. It had been originally conceived by the Harvard legal historian HJ Berman in his 1950 book on Justice in Russia, a work aimed at explaining to the West what laid beyond the Iron Curtain. It presents an account set out in opposition in which the West and Soviet Russia were defined in turn with the features missing to each other. In those pages is the blueprint for his two well-known volumes published in 1983 and 2003, and for a third volume left unfinished.–Dan Ernst
The WLT grows from another legacy from the Cold War era: human rights history. While this theme entered public debate fueled by the concern with human rights in the Eastern European countries during the Cold War era, this paper shows how the WLT absorbed this theme hijacking a core component of continental legal science (subjectives Recht) re-engineered by political theorists into the major identitary element of the WLT in an eternity history rooted in medieval canon law?
Thursday, August 13, 2020
Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.--Dan Ernst
According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.
To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.
The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it makes too much of history unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.
Wednesday, August 12, 2020
Abigail Dowling (Mercer University) and Richard Keyser (University of Wisconsin-Madison) have co-edited Conservation's Roots: Managing for Sustainability in Preindustrial Europe, 1100-1800, now out with Bergahn Books. From the press:
The ideas and practices that comprise “conservation” are often assumed to have arisen within the last two centuries. However, while conservation today has been undeniably entwined with processes of modernity, its historical roots run much deeper. Considering a variety of preindustrial European settings, this book assembles case studies from the medieval and early modern eras to demonstrate that practices like those advocated by modern conservationists were far more widespread and intentional than is widely acknowledged. As the first book-length treatment of the subject, Conservation’s Roots provides broad social, historical, and environmental context for the emergence of the nineteenth-century conservation movement.
There are legal themes and sources throughout this book's chapters. Table of Contents after the jump:
Tuesday, August 11, 2020
While many Americans despair of the current state of U.S. politics, most assume that our system of government and democracy itself are invulnerable to decay. Yet when we examine the past, we find that the United States has undergone repeated crises of democracy, from the earliest days of the republic to the present.--Dan Ernst
In Four Threats, Suzanne Mettler and Robert C. Lieberman explore five moments in history when democracy in the U.S. was under siege: the 1790s, the Civil War, the Gilded Age, the Depression, and Watergate. These episodes risked profound—even fatal—damage to the American democratic experiment. From this history, four distinct characteristics of disruption emerge. Political polarization, racism and nativism, economic inequality, and excessive executive power—alone or in combination—have threatened the survival of the republic, but it has survived—so far. What is unique, and alarming, about the present moment in American politics is that all four conditions exist.
This convergence marks the contemporary era as a grave moment for democracy. But history provides a valuable repository from which we can draw lessons about how democracy was eventually strengthened—or weakened—in the past. By revisiting how earlier generations of Americans faced threats to the principles enshrined in the Constitution, we can see the promise and the peril that have led us to today and chart a path toward repairing our civic fabric and renewing democracy.
Although the identity of Chartism was bound up with political demands, many in the movement consistently pressed for the repeal of duplicative taxes on consumption and the introduction of even-handed taxation of land, capital and labour. Earlier popular radicals had asked for limited tax relief. Chartist leaders from the outset saw a link between fiscal problems and the democratic deficit prolonged by the Reform Act, insisting that a broader franchise would quickly lead to a broad direct tax. Novel features of their tax agenda emerged as they transformed views first aired in radical attacks on the replacement of workers with machinery and on the house and window taxes. By 1842, when Peel reinstated the income tax, they were arguing in their own words for the equity and neutrality of such a measure. Historians of the movement have neglected the coherence and detail of this Chartist agitation. With Peel’s defeat, and Disraeli’s failed attempt to extend the income tax, parliamentary hearings on making the tax permanent reflected elements of the movement’s distinctive views.–Dan Ernst
Monday, August 10, 2020
When, in 1883, Congress charged the US Army with managing Yellowstone National Park, soldiers encountered a new sort of hostility: work they were untrained for, in a daunting physical and social environment where they weren’t particularly welcome. When they departed in 1918, America had a new sort of serviceman: the National Park Service Ranger. From the creation of Yellowstone National Park to the conclusion of the army’s superintendence, Watching over Yellowstone tells the boots-on-the-ground story of the US troops charged with imposing order on man and nature in Americas first national park.
Yellowstone National Park had been created only fourteen years before Captain Moses Harris arrived at Mammoth Hot Springs with his company, Troop M of the First United States Cavalry, in August of 1886. And in those years, the underfunded, poorly supervised park had been visited freely by over-eager tourists, vandals, and poachers. Thomas C. Rust describes the task confronting Congress, military superintendents, and the common soldiers as the ever-increasing number of tourists, commercial interests, and politics stained the unruly park. At a time when the army was already undergoing a great transformation, the common soldiers were now struggling with unusual duties in unfamiliar terrain, often in unaccustomed proximity to the social elite who dominated the tourist class—fertile if uncertain ground for both the failures and the successes that eventually shaped the National Park Service’s ranger corps. What this meant for the average soldier emerges from the materials Rust consults: orders, circulars, inspection reports, court-martial cases, civilian accounts, and evidence from excavated soldier stations in the park. A nuanced social history from a rare ground-level perspective, his book captures an extraordinary moment in the story of America’s military and its national parks.
“The protection that the US Army provided to the nation’s emerging national parks system is a facet of the United States’ past that remains little known even among professional historians. Rust’sWatching over Yellowstone not only explains to readers how such a development came to pass in the divided government of the 1880s but also serves as the most detailed account of soldiers’ lives and service as the guardians of Yellowstone National Park.”—Kevin Adams
Saturday, August 8, 2020
- Drinking with Historians, a webinar hosted by Matt Gabriele and Varsha Venkatsubramanian, has hosted Gautham Rao and now Karl Shoemaker to chat about their research this summer. You can sign up for the Friday 6pm ET sessions here. The videos go up afterwards here.
- For your syllabi: ideas for teaching legal history through fiction (here) and film (here and here), from the past couple of summers.
- Congratulations to UVA Law’s Cynthia Nicoletti for her receipt of the Supreme Court Historical Society’s Hughes-Gossett Award for the best article in the Journal of Supreme Court History for “Chief Justice Salmon P. Chase and the Permanency of the Union.”
- The Lawbook Exchange has published a new catalogue, Noteworthy Publications Related to Early English Law.
- The Organization of American History has suspended the name of the Avery Craven Award for its award in Civil War and Reconstruction History.
- Bernard Bailyn has died. (NYT)
- The documentary "Vote HERE" draws upon the insights of Charles Zelden, Nova Southeastern University.
- ICYMI: How the Electoral College Was Nearly Abolished in 1970 (History Channel).
Friday, August 7, 2020
In Staged, Minou Arjomand draws on a rich archive of postwar German and American rehearsals and performances to reveal how theater can become a place for forms of storytelling and judgment that are inadmissible in a court of law but indispensable for public life. She unveils the affinities between dramatists like Bertolt Brecht, Erwin Piscator, and Peter Weiss and philosophers such as Hannah Arendt and Walter Benjamin, showing how they responded to the rise of fascism with a new politics of performance. Linking performance with theories of aesthetics, history, and politics, Arjomand argues that it is not subject matter that makes theater political but rather the act of judging a performance in the company of others. Staged weaves together theater history and political philosophy into a powerful and timely case for the importance of theaters as public institutions.
This is a brilliant work that gives us both a social history and critical theory of postwar theatre. One thinks about the show trial as a terrible miscarriage of justice, but Arjomand gives trial theatre another function: public deliberation and judgment on responsibility and political justice. Whereas much attention has been given to the theatricality of legal trials, Arjomand asks us to value the public function of theatre in enacting debates on justice and establishing a public practice of considered judgment. The history of postwar German theatre offered here engaged in critical theory and aesthetics in a new and engaging argument about aesthetics and politics and the public functions of art in a democracy. -- Judith Butler
Staged marks an exciting moment for scholarship at the intersection of law and theater... emerge[ing] from the long-established insight that law and performance are mutually constitutive. -- Rebecca Kastleman
This paper will argue that the insights of professional historians can and should be used to better understand the use of history in constitutional argument. Historiography—the methodology of professional historians—demonstrates that history is frequently used selectively to advance a favored outcome. Judges and constitutional scholars should therefore be highly critical of claims that history provides objective answers to constitutional questions. At the same time, historiography shows that non-selective accounts of history can and should play an important role in finding answers to contemporary constitutional questions. In this role, history is under-determined and best used to support or shed new light on a constitutional argument. Historiography therefore demonstrates not just the perils of historical argument but also its possibilities for constitutional argument.--Dan Ernst
Thursday, August 6, 2020
Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.--Dan Ernst
Wednesday, August 5, 2020
Roger Taney was born and raised in Maryland’s Black Belt, a region so committed to the institution of slavery that it sought to secede from Maryland and unite with slavery-entrenched Virginia. His first teachers included a well-credentialed, but unhinged man who so fervently believed that he, like Christ, could walk on water that he drowned in the attempt. Taney’s progenitors went from indentured servant to High Sheriff of Calvert County, whose duties included the “disposal” of the colonial Anglican church’s property of women, including free white women, and their mixed race children, and slaveholding landowner married into the illustrious colonial family of Francis Scott Key.--Dan Ernst
This grounding in white supremacy, slavery, and racial hatred followed Taney into his privileged rise through the Maryland legislature, into private practice, and then as Maryland attorney general and subsequently, as reward for his zealous support of Andrew Jackson in his rise to the Presidency, to the offices of U.S. attorney general, Secretary of Treasury, and finally, for almost thirty years, Chief Justice of the U.S. Supreme Court. During his long tenure as Chief Justice, the nation ran toward Civil War, and the Taney Court decided such monumental cases as the challenge of President Abraham Lincoln’s suspension of habeas corpus after a Maryland contemporary and acquaintance of Taney was arrested and held without charges for sabotage.
Roger B. Taney (LC)
No decision of the Taney Court is more reviled than that of Dred Scott v. Sandford, an opinion written by Chief Justice Taney and in which his familial, social, and legal history of white supremacy and racial hatred is unstintingly revealed. The final irony in the life of this infamous Chief Justice is that on his deathbed in Washington, D.C., he urgently condemned the voter suppression taking place on that day in a constitutional vote in Maryland.
Today in the Black Belt and elsewhere in the nation, Taney’s zombie of white supremacy, racial hatred, and segregation walks undead, its evil spirit inflamed by hateful politically-motivated rhetoric, the imprimatur of such speakers, and cultural hatred and ignorance, and by failures of many of the avowed religious to condemn and cast out those who abominate the strength of our national values and identity. From voter suppression in North Carolina to horseback sheriff deputies leading a roped black man down to the unexamined use of predictive algorithmic systems disparately impacting the poor and people of color in bail, detention, parole, and sentencing decisions, the spirit that imbued Taney’s Dred Scott opinion and animated his life’s values remains alive within the nation’s culture and legal system.
Informed with this history and reflection, perhaps we as a nation can illuminate the evil at large and finally kill off that demon and conclude, at last, the Civil War.