Saturday, July 31, 2021

Thank you, Tom Johnson!

 We're delighted to have had Tom Johnson (University of York) join us as guest blogger in July 2021. Many thanks for his insightful series of posts on law in medieval England and many other things methodological and conceptual. Here's the roundup: 

Thank you, Tom Johnson! You can follow Tom on twitter @tomlukejohnson

--Mitra Sharafi

Friday, July 30, 2021

New York Courts and the Draft Riots of 1863

(NYPL)
[We have the following from the Historical Society of New York Courts.   DRE.]

Program on the 1863 Civil War Draft Riots in NY.  September 29 @ 6:00 pm - 8:00 pm EDT

During the Civil War, the Union Army reached a crisis point and required more troops to fight for the nation, leading to federally legislated conscription. As enrollment began, an arrest was made by an enrollment officer – the final straw leading to a multi-day riot against the draft in New York City. This online event will look back to the 1863 draft riots and their impact on New York’s courts, and look to similar issues in a discussion about the attack on the Capitol in 2021.

Panel of Speakers:

Prof. Troy A. McKenzie, Professor of Law, NYU School of Law, Moderator

Prof. Iver Bernstein, Professor of History, African and African American Studies, and American Cultural Studies, Washington University in St. Louis

More Panelists to Be Announced Soon

Thursday, July 29, 2021

Knowles's "Making Minimum Wage"

Just out: Helen J. Knowles, Associate Professor of Political Science at the State University of New York at Oswego, has published Making Minimum Wage: Elsie Parrish versus the West Coast Hotel Company (University of Oklahoma Press):

The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.

West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.

Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.
Here are two endorsements:
In Making Minimum Wage, Helen J. Knowles ingeniously draws on a wealth of sources to make one of the most important of all the Supreme Court’s New Deal decisions come alive. With remarkable humanity, Knowles transforms the story of Elsie Parrish into an illuminating prism on the history of minimum wage legislation for women.” —Laura Kalman, author of The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court

“This book brilliantly turns West Coast Hotel v. Parrish inside out, revealing the human struggles and experiences behind the doctrinal revolution of 1937. Helen J. Knowles rightfully places Parrish and her advocates at the center of New Deal labor politics and recovers a critical piece of the forgotten struggle over women’s minimum wages. This highly readable book will delight and fascinate anyone interested in labor history, constitutional development, or the regulation of women’s work in the United States.” —Julie Novkov, author of The Supreme Court and the Presidency: Struggles for Supremacy
--Dan Ernst.  H/t: JQB

Wednesday, July 28, 2021

5. Medieval law as rules

(In keeping with an approach that I am trialling at the moment, and the looser format provided by a blog, I have decided to include some pictures; these are intended to complement the text, rather than to illustrate it, and as such, they are left uncaptioned. All of the images are either in the public domain, or have been permitted for non-commercial reproduction.)

*

If my last post, about law as text, started with a statement of the bloody obvious, I’m not sure there are expletives strong enough to capture this one: law is about rules. Once again, this was a realization that I came to very slowly, and that I am still in the process of working out through a new project, on which I will say more below. But first it is worth reflecting briefly on why it took me quite so long to understand this apparently simple point, and what a closer attention to law’s ruliness could yield for the way we understand medieval law.

Looking at the historiography of medieval law and society over the last three decades, it is indeed easy to miss the importance of law’s ruliness. Following the strand of ‘processualist’ legal anthropology developed in the 1970s and 1980s, medieval historians made a great deal of hay out of the insight that court cases might just be one stage, or one arena for a much broader process of dispute resolution. From tenth-century Tuscany to thirteenth-century England to fifteenth-century France, multiple monographs have demonstrated the social processes that underlay these resolutions: the importance of publicity, of reputation, of peace, trustworthiness, and hierarchy for the working out of conflict, and as such, the way in which these cultural logics undergirded the operation of the law.

This was very much the broad approach that framed my own book. Yet when I came to write the introduction – right at the end, of course! – I began to have some doubts. I was trying to make a point about the ways in which ordinary people in fifteenth-century England did not just ‘experience’ the law created by others for them, but actively participated in making law for themselves. I had in mind a particular body of evidence to support this claim. This was the huge array of ‘bylaws’ that rural tenants made in manorial courts. These often concerned agricultural matters (‘everyone must ensure their horses are properly tied up’), but sometimes intervened in social regulation (‘anyone who slanders their neighbour shall pay a fine’). These bylaws are very well known to historians. But they have been catalogued as a part of manorial ‘custom’, a poor cousin to the real law done elsewhere, and there has not been a real study of them since the 1960s.





I wonder if this is partly because they do not fit the processualist model very well. While many bylaws clearly seem to have been made in response to a specific local problem – the escaped horse that damaged crops, the gossiping neighbour who caused a huge fight – they are also clearly attempts to bind future behaviour, to make a general rule from a particular instance. They suggest that rules were not merely a gloss on the social processes happening ‘underneath’, but a meaningful way in which rural people attempted to order the world. In the context of the introduction to my book, these were not problems that I could resolve; instead, I satisfied myself with writing a good bit about bylaws and rules in my chapter on rural legal culture.

But this problem, I found, was one that others had identified too. In particular, the ‘Legalism’ group of anthropologists and historians at Oxford, who ran seminars and workshops and published an excellent series of books, were elaborating a sophisticated critique of processualist approaches. I cannot do full justice to this argument here, but it contains the important insight that rather than treating rules as things which are ‘used’, often unknowingly, by social actors, and uncovered by clever anthropologists and historians, we need to take seriously the prescriptions that people make for themselves. In all societies, people make rules, and these rules betray the way in which they categorize the world. As such, rulemaking, and the abstraction that goes with it, needs much closer attention.

I am in the midst of preparing a new project that attempts to do just this, by examining a huge corpus of rules made by ordinary people in late-fourteenth-century England. In 1388-9, the royal government asked every guild – religious associations organized by craft or neighbourhood – to send in its ordinances for inspection. Still reeling from the mass revolt of 1381, officials were suspicious of these organizations as potential ‘coventicles’ of political dissent. Well over 500 guilds from across England obliged, sending in their rules to the local sheriff, who passed them on to the royal Chancery, where they were eventually archived. 

The ordinances of these guilds follow certain patterns. As religious associations, they tend to include provisions for things like Masses, the basic currency of late-medieval Catholic observation, and the great quantities of wax that were required to leave votive candles burning before altars. But many of them also include more ‘social’ rules: about what to do if two brethren fell into a dispute, how debts to the guild were to be repaid, or what should happen if someone came late to a meeting. By examining hundreds of them together, I am hoping to identify common patterns in their language and structure, the mechanisms and penalties by which they were enforced, and the categories that used to make rules. In so doing, I hope to invigorate an approach to late-medieval law and society that takes seriously the importance of ‘ruliness’, and allows us to properly account for the legal ways of thinking that permeated common life.



















-- Tom Johnson
Twitter / @tomlukejohnson
Email / tom.johnson@york.ac.uk

Tuesday, July 27, 2021

Muchlinski on property rights in Palestine

David Muchlinski (Georgia Tech) has published the following article: "Swords and Plowshares: Property Rights, Collective Action, and Nonstate Governance in the Jewish Community of Palestine 1920-1948," American Political Science Review (published online on 28 June 2021). Here's the abstract: 

Developing states lacking a monopoly over the use of force are commonly seen as having failed to live up to the ideal Weberian sovereign type. Yet rather than being a calling card of anarchy, the devolution of important state functions to subnational actors is a rational strategy for developing states to effectively provide important public goods. The case study of the Jewish Community of Palestine demonstrates one instance where subnational communities provided public goods. This study highlights the causal effect of property rights within institutions to drive behavior consistent with the provision of public and private goods. Analyzing temporal and institutional variation across two agricultural communities demonstrates a unique strategy of subnational governance and public goods provision in a developing state. Devolution of public goods provision to subnational actors may be an alternative strategy of governance for developing states that are not yet able to effectively provide important public goods.

Further information is available here.

--Mitra Sharafi 

Monday, July 26, 2021

Klass on Corbin

My Georgetown Law colleague Gregory Klass has posted Arthur Linton Corbin, which is forthcoming in Scholars of Contract Law, ed. James Goudkamp and Donal Nolan (Hart Publishing):

Credit
This chapter on Arthur Linton Corbin will appear in the forthcoming collection, Scholars of Contract Law. The chapter provides a brief summary of Corbin’s life, then discusses five topics: Corbin’s Socratic approach to the classroom and his introduction of the caselaw method at Yale; Corbin’s analytic approach, which was inspired by Hohfeld and is illustrated by Corbin’s definitions of “contract” and “consideration”; Corbin’s evolutionary theory of the common law, his understanding of the relationship between law and social mores, and his insistence that legal rules always be treated as mere “working rules”; Corbin’s occasional appeal, despite his general aversion to high theory, to the reliance theory of contract; and Corbin’s account of contract interpretation, where one sees the reliance theory at work, together with a surprisingly narrow conception of meaning.

--Dan Ernst

Tushnet on Colley and Emerson

Mark Tushnet might be emeritus, but he is still favoring with penetrating of readings of books of interest to legal historians.  Over at Balkinzation, he discusses Linda Colley’s The Gun, the Ship, and the Pen and Blake Emerson’s The Public’s Law.

 --Dan Ernst

Saturday, July 24, 2021

Weekend Roundup

  • Joseph D. Kearney, Marquette Law, and Thomas W. Merrill, Columbia Law, “discuss the shenanigans that ultimately gave the city and the state of Illinois one of its most priceless parcels of land and preserves it for public use” in a podcast on the ABA Journal’s Legal Talk Network.  They are the authors of  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).
  • Congratulations to William & Mary Assistant Professor of History Brianna Nofil, the recipient of the 61st annual Allan Nevins Prize by the Society of American Historians for her dissertation, “Detention Power: Jails, Camps, and the Origins of Immigrant Incarceration, 1900-2002.”  (More.)
  • More CRT: The New Hampshire attorney general says that “teaching about the country’s history of slavery, its racist Jim Crow Laws, the Civil Rights Movement of the 1960s and the modern Black Lives Matter movement won’t violate state law even if those lessons make students uncomfortable, according to legal advice from the state Attorney General’s Office" (Concord Monitor).  
  • And still more: Over 140 organizations, have signed onto this Joint Statement on Legislative Efforts to Restrict Education about Racism in American History, authored by American Association of University Professors, the American Historical Association, the Association of American Colleges & Universities, and PEN America. 
  • We recently discovered the "Now & Then" podcast, hosted by historians Joanne Freeman (Yale University) and Heather Cox Richardson (Boston College). For a particularly relevant recent episode, checkout "Judging the Supreme Court."   
  • Fire in the White House!  At 7 PM EDT on July 28, the Elk Rapids Area Historical Society hosts a live stream of Craig G. Wright, Herbert Hoover Presidential Library and Museum, discussing the fire that gutted the West Wing and ruined the Oval Office on Christmas Eve, 1929.
  • For anyone working on socio-legal history and technology: check out the new Law and Society Fellowship at the Simons Institute at Berkeley.
  • ICYMI: George Thomas on America’s Imperfect Founding (The Bulwark). A notice of The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, by Peter S. Canellos (Courier Journal). Woman suffrage and Prohibition in Iowa (Cedar Rapids Gazette).  The Buffalo-Niagara LGBTQ History Project’s first historic marker recognizes “local gay rights activist Bob Uplinger,” whose battle in an entrapment case contributed to decriminalization in New York (Buffalo Rising).
  • Update: Colbert King on Karen Hastie Williams (WaPo).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 23, 2021

Legal History Review 89: 1-2

Now published: Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 89: 1-2 (July 2021):

Artikelen / Articles / Articles

OK Computer? The digital turn in legal history: a methodological retrospective
Florenz Volkaert

Note minime sul ius dotium in Marziano Capella
Francesco Bono

Did the published Theodosian Code include obsolete constitutions?
Boudewijn Sirks

Forms of suretyship in the Peira in the light of the Basilica
Marios Tantalos

Learned law in late medieval Netherlandish practice: Consilia for the congregation of Windesheim (ca. 1415-1500)
Wouter Druwé

Arguments related to slavery in seventeenth century Dutch legal theory

Gustaaf van Nifterik

La faculté de tester dans le Dell’origine e dell’uffizio del notariato de Michele Cusa: Une illustration de la culture juridique européenne d’un notaire piémontais au XIXe siècle
Anne Dobigny-Reverso

Foreign law without borders in the early vast America: Spanish legal literature in 18th century North America
Angela Ballone

Review essay: ‘Constitutional lawyers are Dutchmen’
Alain Wijffels

Boekbesprekingen / Comptes rendus / Book reviews

Ona’ah und laesio enormis, Preisgrenzen im talmudischen und römischen Kaufrecht, written by Doris Forster.  Reviewed by Martin Schermaier

Le marché du mérite, Penser le droit et l’économie avec Léonard Lessius, written by W. Decock.  Reviewed by Dirk Heirbaut

Kroniek / Chronique / Chronicle
Bundels / Recueils / Collections
Ontvangen werken / Ouvrages reçus / Publications received

Thursday, July 22, 2021

A Symposium on McCurdy on Cooley's "Constitutional Limitations"

Thomas Cooley (NYPL)
The Sixth Annual Salmon P. Chase Lecture, sponsored by the Georgetown Center for the Constitution and the Supreme Court Historical Society, and accompanying symposium was recently published in the Georgetown Journal of Law & Public PolicyCharles W. McCurdy delivered The Problem of General Constitutional Law: Thomas McIntyre Cooley, Constitutional Limitations, and the Supreme Court of the United States, 1868-1878.  Other contributors to the symposium were Gregory Klass (“Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right”); Lawrence B. Solum (“Cooley's Constitutional Limitations and Constitutional Originalism”); and Joseph Postell (“The Misunderstood Thomas Cooley: Regulation and Natural Rights from the Founding to the ICC”).

--Dan Ernst

Giladi on Jews, sovereignty, and international law

Rotem Giladi (Hebrew University) has published Jews, Sovereignty, and International Law
Ideology and Ambivalence in Early Israeli Legal Diplomacy
with Oxford University Press. From the publisher: 

 By departing from accounts of a universalist component in Israel's early foreign policy, Rotem Giladi challenges prevalent assumptions on the cosmopolitan outlook of Jewish international law scholars and practitioners, offers new vantage points on modern Jewish history, and critiques orthodox interpretations of the Jewish aspect of Israel's foreign policy.

Drawing on archival sources, the book reveals the patent ambivalence of two jurist-diplomats--Jacob Robinson and Shabtai Rosenne--towards three international law reform projects: the right of petition in the draft Human Rights Covenant, the 1948 Genocide Convention, and the 1951 Refugee Convention. In all cases, Rosenne and Robinson approached international law with disinterest, aversion, and hostility while, nonetheless, investing much time and toil in these post-war reforms. The book demonstrates that, rather than the Middle East conflict, Rosenne and Robinson's ambivalence towards international law was driven by ideological sensibilities predating Israel's establishment. In so doing, Jews, Sovereignty, and International Law disaggregates and reframes the perspectives offered by the growing scholarship on Jewish international lawyers, providing new insights concerning the origins of human rights, the remaking of postwar international law, and the early years of the UN.

Here is the Table of Contents: 

Part I: The Sovereign Turn

Prologue: 'With an Eye to the Past', But No Longer 'An Object of International Law'

Introduction: A Radical Transformation?

1:Terms of Engagement

Part II: Voice

2:Lauterpacht in Jerusalem

3:'The Extreme Non-Zionist, Apolitical Concept of Jewish Public Life'

Part III: Protection

4:From a 'Marginal Problem' to the 'Supreme International Jurisdiction'

5:'A False and Perverse Doctrine'

Part IV: Refuge

6:Sovereign Sensibilities and Jewish Refugees

7:'A Better Remedy'

Part V: Creed

Epilogue: Revolutionaries, Torchbearers, and Imperfect Subjects

Further information is available here.

--Mitra Sharafi

Wednesday, July 21, 2021

Erman to Deliver Inaugural SCHS Constitution Day Lecture

At Noon (EDT), September 17, 2021, Sam Erman, Professor of Law, Gould Law School, University of Southern California, will deliver the Inaugural Constitution Day Lecture of the Supreme Court Historical Society, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire.  He will explore “the story of Puerto Rico and the Constitution following the U.S annexation of the islands in 1898.  The lecture is free to Society members and $10 for others.”

CFP: International Congress on Medieval Studies

 [We have the following CFP.  H/t: Liz Papp Kamali.  DRE]

International Congress on Medieval Studies

This call for papers includes all sponsored and special sessions approved by the Program Committee for the 57th International Congress on Medieval Studies (live on the internet Monday through Saturday, May 9-14, 2022), hosted by Western Michigan University's Medieval Institute.

The sponsored sessions are listed alphabetically by the name of the principal or sole sponsoring organization, and the special sessions follow alphabetically by session title. Email addresses are obfuscated in the page source to reduce the chances of being harvested by spammers.

You are invited to make one paper proposal to one session of papers: that might be to one of the Sponsored or Special Sessions listed here as a session of papers, which are organized by colleagues around the world, OR to General Sessions, which are organized by the Program Committee in Kalamazoo.

You may propose an unlimited number of contributions to roundtables and panel discussions, but you will not be scheduled to actively participate in more than three sessions (including sessions in all formats).

All those hoping or invited to make contributions to sessions or papers, roundtables, and panel discussions at the Congress need to make proposals in the Confex system by the deadline of Wednesday, Sept. 15. Contributions to demonstrations, performances, and workshops are not solicited through our proposal system. Interested individuals should approach the contact person directly.

All proposals for sessions of papers (including general sessions), roundtables, and panel discussions are made through the Confex system, where the sessions are grouped by format and most sessions seeking proposals are described more fully.

4. Medieval law as document

(In keeping with an approach that I am trialling at the moment, and the looser format provided by a blog, I have decided to include some pictures; these are intended to complement the text, rather than to illustrate it, and as such, they are left uncaptioned. All of the images are either in the public domain, or have been permitted for non-commercial reproduction.)

*

Law is to be found in writing: this is a statement of the bloody obvious. But it took me a long time to get there. As I have rehearsed in some of my previous posts, I came to legal history from the outside, from social history. Over the course of my doctoral and postdoctoral work, I was thus principally interested in law’s social qualities – the way it was used to resolve disputes or establish hierarchical relations – and in particular the way it manifested in certain spaces and things. It was only as I began to the extra archival research needed to transform my doctoral thesis into a book that I began to think more about legal texts, and the work that they performed in producing law.

I cannot deny that the ‘allure of the archives’ played a significant role in this thinking. My favourite discovery was when I found a little slip of paper, a citation, enclosed inside the parchment binding of a church court book (which I describe in more detail in this article). I am fairly sure that it had been left there about six hundred years ago, and lain undisturbed since. Such discoveries certainly made me reflect more on texts as artefacts, with material qualities that shape the way we encounter legal history. But the boredom of the archives helped me too: when I got fed up with what I was supposed to be reading, I would ask archivists if they had any little bits and pieces, anything strange or miscellaneous. Very often, they did. And after having visited a few dozen local archives, I found I had compiled a strange archive of oddments.






Slowly, then, I came to realize that these writings were not merely a route into the world of late-medieval law, but had played a crucial role in producing it. For example, one genre of oddment I kept finding in local archives were strings of ‘copyholds’. Copyhold was a form of rural property tenure that emerged in the peculiar socio-economic conditions of the English countryside after the Black Death, when the scarcity of peasant tenants meant that they were more easily able to negotiate the duration and condition of their tenure. Many thus began to demand a copy of the court roll which recorded their entry into the land, as a record of their advantageous terms. Hundreds of thousands of such copies, which were written on small pieces of parchment, must have been produced. But very few have survived – only those which were subsequently archived by landlords who bought back the tenure at a later date.

Seeing these copies, however, set me to look out for mentions of them in the court records. And what I found was that these pieces of writing were extremely important to their owners as written artefacts, standing for possession of the property. Thus the widow who asked for her name to be entered on the very same copy that had previously borne her husband’s name; or the husbandman who kept copies of all his lands in a strongbox in his house; or the man who tried to scratch out the name of the previous owner on his copy, a move which cast doubt on the document’s validity. What I realized, with these examples and others like them, was the way that copies were a crucial part of the enactment of manorial property. This realization opened up further: legal writings in general – from deeds to citations, statutes to court rolls, were a significant part of what constituted law, what made it.






My thinking here was significantly indebted to Cornelia Vismann’s remarkable monograph on files. She traces the ways that the cultural logic of files and filing has shaped the form of law; from the connections between copying and cancelling documents in the emergence of the Chancery (Latin: cancellaria) as an institution in late Antiquity, to the development of public archives in the early nineteenth century in the formation of the nation-state, we can begin to see the multiple ways in which law and legal systems have been materialized through writing. As she suggests, the medieval legal proverb, Quod non est in actis non est in mundo (‘what is not in documents is not in the world’), could be rephrased without the double negative: ‘the real world is found in files’.

I have found this line of thinking enormously helpful in trying to pin down ‘what’ law was in late-medieval England, and how it did its work. As a perspective, it has the rare virtue of being both ‘etic’ and ‘emic’: that is to say, it makes sense as an actors’ category, a way of describing law that would have made sense to contemporaries, but also as a historical category that allows us to describe and analyze its effects in new ways. It also dovetails very nicely with exciting new work in medieval studies on codicology and paleography: on the histories of paper and parchment, scribal work, and annotation, that are helping to reshape our understanding of medieval writing more generally.

Of course, it is difficult for any one perspective on law to capture its entirety, its wealth of meanings and power. While a focus on law’s material texts helps to explain a lot, it does not account so well for the many ways in which late-medieval legality was made through speech: in oaths, verdicts, allegations, and the ‘hue and cry’, for example. It also perhaps risks an overly technical account of law, one that takes at face value its claims to systematicity, to smoothly functioning rules administered by literate bureaucrats. But I am optimistic that these problems can be overcome. There is a great deal of research to be done in this area, and I look forward to seeing what it yields. (I have written more about this here.)

-- Tom Johnson
Twitter / @tomlukejohnson
Email / tom.johnson@york.ac.uk

Tuesday, July 20, 2021

New in "The Docket"

A new issue of The Docket, the online companion of Law & History Review, the journal of the American Society for Legal History, is now online:

Recent News from the American Society for Legal History

Tanner Allread: “Originalism Across Legal Traditions: An Interdisciplinary Conversation”

When Good Government Meant Big Government: An Interview with Jesse Tarbert

Inge Van Hulle: Vernacular International Law in West Africa

Izidor Janžekovic: The Elgin Marbles: Legitimate Expatriation or Urgent Repatriation?

The editorial team at Law & History Review is seeking a new Associate Editor for Digital Projects.  Contact Gautham Rao:  grao at american dot edu.

--Dan Ernst

Roberts on American Empire and the Origin of Public Administration

Ungated for now: Alasdair Roberts, Bearing the White Man’s Burden: American Empire and the Origin of Public Administration, Perspectives on Public Management and Governance 3 (September 2020): 185-196:

There is an overlooked chapter in the history of American public administration: the experiment with colonial administration in the two decades following the Spanish-American War. Several scholars now identified as pioneers of American public administration were actively engaged in this project. They studied European empires closely to determine how the new American dependencies should be governed. This work was guided by beliefs about racial superiority and the duty of civilized nations to improve uncivilized peoples through colonization. This episode of administrative history provides insight into how American academics thought about race and public administration in the early decades of the twentieth century, both overseas and within the United States. It compels a reassessment of our understandings about their commitment to democracy, and about the supposed differences between American and European public administration at that time.

--Dan Ernst.  H/t Noah Rosenblum

Monday, July 19, 2021

Wells on Shareholder Democracy, Civil Rights and Peck v. Greyhound (1952)

Harwell Wells, James E. Beasley School of Law, Temple University, has posted Shareholder Meetings and Freedom Rides: The Story of Peck v Greyhound:

Bayard Rustin, 1964 (LC)
In 1947 the civil rights pioneers James Peck and Bayard Rustin, members of the radical religious group the Fellowship of Reconciliation and its offshoot the Congress of Racial Equality (CORE), prepared to embark on the Journey of Reconciliation an interracial protest against segregated busing in the American South. But first they did something else radical: they bought shares in a corporation. A year later, after their travels in the South had led to terror, death threats, beatings, and in Rustin’s case a term on a chain gang, they brought their civil rights activism to a new site of protest, the shareholder meeting of that corporation, Greyhound. Invoking the shareholder proposal rule adopted a few years before by the Securities and Exchange Commission (SEC), Peck and Rustin insisted that as shareholders they had a right to voice their opinions about Greyhound’s segregation policies and to poll other shareholders on the issue. When Greyhound refused to send their proposal to other shareholders in its proxy statement, they brought the case that became known as Peck v Greyhound. In 1952, to end the case and future litigation, the SEC changed its rules and held that shareholders could not use the shareholder proposal mechanism “primarily for the purpose of promoting . . . racial, religious, or social or similar causes.” In this landmark case we see the collision of race and the corporate and securities laws, as radicals attempted to use those laws to pursue social justice while those charged with administering them insisted that race had no role to play in the corporation—in the process paradoxically writing race into the nation’s securities laws.
–Dan Ernst

Condos on Franco-British colonial policing

Mark Condos (King's College London) published this article last year: "The Indian 'Alsatia': Sovereignty, Extradition, and the Limits of Franco-British Colonial Policing," The Journal of Imperial and Commonwealth History 48:1 (2020). Here is the abstract:

By the eve of the First World War, the world’s two most powerful imperial powers, Britain and France, had begun to work together in order to defeat the growing menace posed by transnational anti-colonial networks operating within Europe. When it came to the front lines of the anti-colonial struggle, however, Franco-British collaborative policing efforts continued to be plagued by persistent rivalries and contestations between these erstwhile enemies. This is particularly evident in the case of the French-controlled settlement of Chandernagore in India, which was one of the centres of revolutionary activity in Bengal. This article examines how Chandernagore’s unique legal and political status as a French possession enabled it to become a ‘haven’ or ‘Alsatia’ for Indian revolutionaries operating against the British colonial state. It traces how the persistence of this vestige of French sovereignty placed it at the centre of repeated conflicts between British and French colonial authorities over the detection, arrest, and extradition of these revolutionaries, revealing both the possibilities and limitations of colonial police cooperation. Far from being peripheral in nature, these conflicts cut to the heart of even more fiercely contested debates within the imperial metropole about the relationship between national sovereignty and international law in an increasingly global age.

Further information is available here.

--Mitra Sharafi 

Saturday, July 17, 2021

Weekend Roundup

  • John O'Dowd's appreciation of Andrew Bremner Lyall, a historian of East African land law eighteenth-century Ireland and the law of slavery, appears in the Irish Times.
  • Congratulations to former LHB Guest Blogger and current Editor of Law and History Review Gautham Rao upon his election to the Advisory Council of the Society for Historians of the Early American Republic.
  • ICYMI: Nelson Lichtenstein on the revival of the antimonoply tradition (WaPo).  Stephen Carter remembers Justice Thurgood Marshall (NYT).
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 16, 2021

Office of Legal Counsel Indicies Published

Via Just Security, we learned that the Knight Institute has "publish[ed] fourteen indexes cataloging the titles of more than a thousand unclassified opinions authored by the [Office of Legal Counsel of the US department of Justice] between 1945 and 1958."  OLC compiled the indicies in response to the Knight Institute's ongoing Freedom of Information Act lawsuit.  They "outline the OLC’s unique role in shaping executive branch policy during the postwar period. Their release provides the most comprehensive view to date of the workings of an office that has largely operated in the dark."  More.

--Dan Ernst

3. Medieval law as material

(In keeping with an approach that I am trialling at the moment, and the looser format provided by a blog, I have decided to include some pictures; these are intended to complement the text, rather than to illustrate it, and as such, they are left uncaptioned. All of the images are either in the public domain, or have been permitted for non-commercial reproduction.)

*

I did my PhD at Birkbeck, one of the smaller colleges of the University of London, which has its main campus in Bloomsbury, just off Russell Square. In 2012, I was piqued by a story in the Evening Standard which reported that the local council there, to the annoyance of many residents, had removed many of the double yellow lines from the area. In England, double yellow lines at the side of the road mean “no parking at any time” – they are a routine aspect of drivers’ visual literacy. Yet while the council had removed the lines, they had continued to keep the stringent parking restrictions in place on these streets. Some motorists were thus enraged to find that they had incurred a fine for parking illegally, even though there was no obvious signage. As one said, ‘[This was] simply not an acceptable thing to do…enforcing laws that no one can see are there.’






That comment stuck with me because at the time I was thinking about the relationship between law and the landscape in late-medieval England, a society in which it was self-evident that law was something you should be able to see. Rights of way and obligations of maintenance were invested in roads and bridges, ditches and rivers; trees or hedges were planted to serve as long-lasting markers in property disputes; and people played a kind of legal ‘tag’ with a post placed in the middle of a parlour to denote the boundary of a sanctuary. The physical environment, both rural and urban, was shot through with rival claims. And jurors and witnesses were frequently asked to rehearse what they knew about it: to recite the customary boundaries of the parish, or adjudge where a communal gutter became the responsibility of a particular neighbour. They too would have been aghast at the notion of ‘invisible law’.

Most legal history has treated law as something that, if not invisible, inheres in the minds of lawyers and litigants, the texts of jurisprudence, or the social processes of dispute resolution. But a recent wave of work by scholars such as Irus Braverman, Alain Pottage, and Catherine Mawani has suggested that we might consider law in the contemporary world as having a physical presence, a materiality. David Delaney, a Legal Geographer, has used the example of the barbed-wire fence as what he calls ‘a materialization of the legal’, a physical iteration of the right to exclude that inheres in property. Drawing such insights into conversation with medieval evidence, I have written about the complex legal regimes surrounding shipwreck and the way that flotsam and jetsam were materialized as legitimate property, and how environmental change could disrupt the jurisdictional boundaries that depended on the landscape.










Claiming that law is, and perhaps has always been ‘material’ requires a dramatic shift of perspective in how we understand law and its history: it refuses law’s claims to be an intellectual discourse (and can explore how such boundary-policing takes place), it binds law closely to its physical consequences – to shackles, prisons, and executions, to pain and power – and it opens up the possibility that ‘doing’ law can consist not just in social and cultural processes, but in material actions, networks, and infrastructures. It is thus very timely, because of the way it allows us to connect up legal institutions with ecology (understood in its very broadest sense) in our moment of climate crisis, allowing historians to develop an account of how law has, quite literally, shaped the world in which we live.

For all its excitement and radical potential, however, reframing law in this way also raises some difficult questions. To begin with, it must be admitted that claims of law’s materiality are not intuitive. This is perhaps not a very rigorous objection, and perhaps in an era of machine learning and bioengineering, the idea that mind and matter, word and world are ontologically one and the same will seem much more obvious to the next generation of scholars. But for historians in particular, it suggests two other problems. First, we still do not have a good account of how and why law has been ‘dematerialized’: if it is in fact a material phenomenon, why have people for so long insisted that it is not? Or to put it another way, why does it take the removal of law’s visible signs – the double yellow lines – for us to realize that it is something that we can see?

And second, concomitantly, how do we differentiate between the materiality of the law made in courtrooms and the materiality of the law that subsists in street-signs or barbed wire fences? Materiality is a capacious concept, carving out the categorical space which it is attempting to undermine; since everything, in one view, is material (even the faintest figments of our imaginations are the product of neurons and synapses), it does not in itself provide us with a direction for analysis. To say that law is ‘material’, therefore, is not enough. We need to understand the processes by which legal meaning is invested and maintained through things. How can we account for the way that legal power – at least in western European contexts – seems to crystallize in some objects and spaces rather than others? One answer, I think, is to look at law’s own account of its materiality, the power that it accords to text. It is to this idea I will turn in my next post. 

-- Tom Johnson
Twitter / @tomlukejohnson
Email / tom.johnson@york.ac.uk

Thursday, July 15, 2021

Larsen on the Espionage Act of 1917

Daniel Larsen, Trinity College, University of Cambridge, has posted Before “National Security”: The Espionage Act of 1917 and the Concept of “National Defense, which appears in the Harvard National Security Journal 12 (2021): 329-372:

This Article upsets current understandings of the Espionage Act of 1917 by challenging a key, long-engrained assumption about the statute itself. The Espionage Act is not the highly punitive behemoth that shrouds enormous swathes of the government in secrecy, as is presently imagined. The term “national defense” does not capaciously expand to cover any government secret a prosecutor might deem worth protecting; rather, “national defense” actually has a highly specific and coherent meaning—one that is dramatically narrower than anyone has realized. 

--Dan Ernst

A New Blog: Legal History Insights

We’ve received word of a new blog, Legal History Insights, launched by the Historical Regimes of Normativity (Historische Normativitätsregime) Department of the Max Planck Institute for Legal History and Legal Theory (formerly the Max Planck Institute for European Legal History):

The Department Historical Regimes of Normativity has launched [Legal History Insights], a blog about legal history created by the researchers, guests and affiliated researchers of the Department. The blog is not primarily about the results of our research. Rather, it is meant to provide a window into work-in-progress, our activities, and the personal research experiences of the people working in and with our Department – to offer a behind-the-scenes look into who we are and what we do. Legal History Insights was also established to enable us to share our thoughts in a way that is open and relatable. We believe that the communication of scientific research to a wide range of audiences is an extremely important endeavour. Furthermore, by providing insights from our work in an accessible way, we hope to foster discussions that bring diverse voices to the table.

--Dan Ernst

Wednesday, July 14, 2021

The Three Branches Institute

On July 20-22, 2021, from 2-4PM EDT each day, the Supreme Court Historical Society, the White House Historical Association (WHHA), and the United States Capitol Historical Society are jointly presenting the Three Branches Institute.  The three-day virtual workshop seeks “to empower and inspire teachers from across the country by providing them with rich historical stories, connections, and resources about the three branches of government to take back to their classrooms.”  Each of the sponsors will host one day of the Institute will be hosted by a different organization.  Sessions will be recorded and uploaded to the WHHA YouTube channel for public viewing.  Register here

--Dan Ernst

Asian Legal History conference

 [We share the following update on the Asian Legal History conference, which is happening later this month. Further information is available here.]

The Transnational Legal History Group of the CUHK LAW’s Centre for Comparative and Transnational Law and the University of Law – Hue University will be jointly organizing a conference on the theme of Asian Legal History at the University of Law – Hue University, Hue, Vietnam, on 24-25 July 2021. Convened by Bui Ngoc Son, Associate Professor of Asian Law at the University of Oxford Faculty of Law, and Christopher Roberts, Assistant Professor at CUHK LAW, the conference aims to bring together a diverse and interdisciplinary group of scholars, researchers, and graduate students to share their research findings on topics relating to legal history in Asia.

Unfortunately, given the recent increase in COVID-19 cases in Vietnam, it will not be possible to conduct a mixed-mode conference as originally intended, in which a portion of the speakers attend in person. Instead, the conference will be conducted entirely online via ZOOM. The registration fee will also be waived. 

Speakers should note that no paper submission is required for the conference.

We look forward to seeing you all, albeit online, soon!

--posted by Mitra Sharafi

Tuesday, July 13, 2021

Federal Judges' Papers at the Library of Congress

Prettyman Courthouse (Highsmith)

Over at In Custodia Legis, Ryan Reft, a historian of the modern United States focusing on domestic policy and law in the Manuscript Division at the Library of Congress, has a post on his and Senior Archives Specialist Connie L. Cartledge's new and invaluable guide to the Division’s collections of the papers of judges who served on Article III courts below the Supreme Court of the United States.  The holdings on the appellate judges of the DC Circuit are particularly strong, including the papers of Robert Bork, Henry Edgerton, Harry Edwards, Charles Fahy, RBG, Harold Leventhal, Carl McGowan, E. Barrett Prettyman, Wiley Rutledge, Harold M. Stephens, David Tatel, Skelly Wright, each of whose careers the guide nicely synopsizes.  As the guide notes, the papers are valuable for topics far beyond the strictly judicial or legal.

--Dan Ernst

Collins on the law of necessity in 17th-c. England

 John M. Collins (Eastern Washington University) published the following article last year: "The Long Parliament and the Law of Necessity in Seventeenth-Century England," Past & Present 247:1 (May 2020), 3-35. Here's the abstract: 

The ability to claim an eminent right over property was central to the parliamentary war effort. Relying on a narrative of necessity that jurists in both England and in western Europe had increasingly used since the end of the sixteenth century, MPs gave the English political public a narrative parallel to that of a beggar in extreme duress: in order for it to survive, the property rights of English subjects needed to give way. Scholars have noted the Long parliament's use of necessity in the past in order to disassociate the causes of the Civil War from a ‘rule of law’ ideology or to make a claim that Parliament made a novel political theory of emergency. Yet the Long parliament was not abandoning English law nor was it generating a novel theory of emergency. Instead, it was relying on legal concepts that jurists and Crown officials commonly used to advance the power of the state. This law of necessity was controversial, however, and the Long parliament's continued use of it generated conflict even as it also enabled MPs to seize control over England's armed forces.

Further information is available here.

--Mitra Sharafi 

Monday, July 12, 2021

Tzouvala on capitalism, civilization, and international law

Ntina Tzouvala (Australian National University College of Law) published Capitalism As Civilisation: A History of International Law with Cambridge University Press in 2020. From the publisher: 

Methodologically and theoretically innovative, this monograph draws from Marxism and deconstruction bringing together the textual and the material in our understanding of international law. Approaching 'civilisation' as an argumentative pattern related to the distribution of rights and duties amongst different communities, Ntina Tzouvala illustrates both its contradictory nature and its pro-capitalist bias. 'Civilisation' is shown to oscillate between two poles. On the one hand, a pervasive 'logic of improvement' anchors legal equality to demands that non-Western polities undertake extensive domestic reforms and embrace capitalist modernity. On the other, an insistent 'logic of biology' constantly postpones such a prospect based on ideas of immutable difference. By detailing the tension and synergies between these two logics, Tzouvala argues that international law incorporates and attempts to mediate the contradictions of capitalism as a global system of production and exchange that both homogenises and stratifies societies, populations and space.

Praise for the book: 

"This is an elegant analysis of the historical role of international law in reproducing the conditions of global capitalist expansion. Tzouvala demonstrates that the late-nineteenth-century notion of the 'standard of civilisation' never really went away. It was simply an early embodiment of persistent ideas about modernist 'improvement' and biological difference that continue to structure the production of global inequality to this day. Throughout, the author’s discussion is sophisticated, and, above all, legal. Tzouvala focuses on key institutions and moments from the League of Nations to the judicial treatment of apartheid and the wars in Iraq and Syria. Through changing political contexts, she argues, international law was used to discipline and subordinate potential challengers to the capitalist global order. This is an original, powerful treatment of the role of international legal argument in the construction and maintenance of a fundamentally unequal world." - Martti Koskenniemi

"In Capitalism As Civilisation, Ntina Tzouvala provides a powerful account of 'civilisation' as a binary construct used by the international legal system to exclude non-western political communities, while simultaneously promising them an illusory inclusion contingent upon 'reforms' that facilitate global capitalism. A beautifully written book that makes legal theory eminently accessible, Capitalism As Civilisation is a must-read for anyone interested in critical perspectives on international law." - Natsu Taylor Saito

"Much work has been done on the issue of the 'standard of civilisation' since the topic of imperialism became central to international legal scholarship. It is remarkable, then, that Capitalism As Civilisation, through its interrogation of the protean concept of civilisation, succeeds in offering new and powerful insights into current debates about international law, and its history and trajectory. Adroitly exploring the complex connections among capitalism, civilisation, gender, race and biology, Capitalism As Civilisation is a fresh and valuable work that pushes the boundaries of critical international law and will surely provoke new lines of inquiry." - Antony Anghie

"In Capitalism As Civilisation Ntina Tzouvala makes a brilliant intervention into debates about the relationship between international law, capitalism, and racism. She deftly combines theory, history and political economy to demonstrate the deep interconnections between the logic of 'civilisation' and processes of capitalist accumulation. It will be essential for anyone interested in understanding international law in its contemporary and historical guises." - Robert Knox

"In this impassioned and timely book, Ntina Tzouvala brings a humanist interpretation of Marxism to bear on the violent history of colonisation and capitalist exploitation facilitated by international lawyers since the nineteenth century. Tzouvala compellingly argues that the standard of civilisation has not been abandoned but that it reappears in new patterns of international legal argumentation that continue to impose and entrench capitalist relations on a global scale. Capitalism As Civilisation gives voice to a new spirit of revolution in a world on fire." - Anne Orford

Further information is available here.

--Mitra Sharafi

Saturday, July 10, 2021

Weekend Roundup

  • Go here to register to receive updates on Asian Legal History Conference of the Centre for Comparative and Transnational Law of the Chinese University of Hong Kong, to be held July 24-25.
  • Laura Lammasniemi, Warwick Law School, will deliver the 2021 British Science Association Social Sciences Award Lecture on September 9 on “her research into legal history and how looking at the past can help us understand modern legal attitudes towards sexual autonomy.”  (More).
  • The lawyer Paulyn Marrinan Quinn has a six-part podcast series on legal cases that changed Irish lives.  Topics include Charles Stewart Parnell’s divorce, the right to legal representation for young offenders, and access to contraception. (Law Society Gazette).
  • She had us at the title: Emma Southon’s A Fatal Thing Happened on the Way to the Forum "explores some of the most notorious homicides and assassinations in ancient Rome as well as the little known or forgotten stories of murder as she presents the Roman perspective on violence and lethal crime in politics, law, and daily social relationships."  She is interviewed by Robin Lindley on HNN.
  • We did not note until quite recently the symposium published in 2020 in Constitutional Commentary on Keith E. Whittington’s Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (University Press of Kansas, 2019).
  • The deadline for submissions for that Special Issue on the Law of the Territories in the Yale Law Journal is next Thursday, July 15.
  • ICYMI: (Bushrod) Washington slept here.  The history of voting in Louisiana (WGNO).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 9, 2021

2. Medieval law as local

(In keeping with an approach that I am trialling at the moment, and the looser format provided by a blog, I have decided to include some pictures; these are intended to complement the text, rather than to illustrate it, and as such, they are left uncaptioned. All of the images are either in the public domain, or have been permitted for non-commercial reproduction.)

*

In one of his characteristically well-turned phrases, Clifford Geertz remarks that ‘like sailing, gardening, politics, and poetry, law and ethnography are crafts of place: they work by the light of local knowledge.’ I love reading Geertz because his microcosmic studies produced the perspective I myself try to garner, a view of law not just ‘from below’, but from in and among – a sense of the way that law in fourteenth- and fifteenth-century England was interposed in daily life. And his emphasis on locality, the importance of place in the operation of law, chimes with what I have found in my research.

Late-medieval England was a world of a thousand law-courts. In almost every village there was at least one court, for the tenants of the local lord, and in many places there was also a royal jurisdiction, the leet, which met twice a year. In towns and cities, there were even more: tribunals for business and trade (‘piepowder’ courts, a name supposedly derived from the dusty feet, or pieds poudreux of the travelling merchants), for craft guilds, and for borough custom, as well as acting as hubs for church courts. In certain places, there were yet more specialist courts: the royal forests, port towns, mining communities all held courts to deal with the particular kinds of legal business that arose in such places. This was a society of dense legal pluralism, with thousands of overlapping and occasionally conflicting institutions.




Such a picture, however, stands in stark contrast to the standard accounts of the development of the common law and the ‘precocious’ development of royal government in England. From the late twelfth century and through the thirteenth, kings and their justiciars presided over the creation of one of the most ambitious and elaborate legal systems in medieval Europe. Many great legal historians, from F. W. Maitland onwards, have attempted to explain the origins of this system, how and why it came about. And in doing so, they have looked to the records of the central courts held in the National Archives at Kew: the King’s Bench and the Common Pleas, the eyre rolls and the assizes, the Chancery and the Exchequer. Something of the scale of this system, and its archive, can be discerned from the more than 9 million photos garnered by Professor Robert Palmer’s incredible digitization project, the Anglo-American Legal Tradition.






Yet for all the impressive bureaucratic machinery of the royal justice system, and the legal learning developed in the common law, I do not get the sense that this law was the one that concerned most people, most of the time. The common law courts were expensive for litigants, precisely because they had to hire legal experts to navigate their ever-increasingly complex forms and procedures; and while the criminal justice system was ambitious in its attempts to control disorder, it was – in the fourteenth and fifteenth centuries – increasingly devolved. Turning away from the impressive archives of the central courts, another picture emerges. In the disaggregated archives of county record offices, there are the disjointed, partial, and often fragmentary records of local institutions. Piecing them together, we can see a different constellation of legal culture.

My book thus attempted to provide a corrective to the centralized legal history of this period, both by evidencing the huge array of local law-courts, and also by arguing for their importance in the formation of late-medieval legal culture. These courts were closely attuned to local environments and patterns of socio-economic life: coastal courts drew on maritime expertise, while forest courts sought to carefully manage woodland resources. There were many such ‘local legal cultures,’ I suggest, which were constituted in the distinctive ways that non-elites used law-courts in particular localities. This concept, I hope, helps to explain the peculiar form of legal pluralism we find in the later Middle Ages, and what it meant for how ordinary people experienced and engaged with law.






What I was unable to do in my book, however, was provide a systematic answer to the question of how these local courts operated alongside the central system. In some places, there were clear connections: for example, I was able to trace one case of robbery from its first report in the court of a tiny Berkshire village all the way to the King’s Bench, and to show how a case heard by the royal admiralty court relied upon local networks of churchmen for their expertise in Roman law. My sense is that such connections between the local and central were patchy, partial, and temporary, dependent on personal contacts rather than bureaucratic structures. But I hope that future empirical research will help to further elucidate such problems.

That still leaves us, however, with a deeper question about what law was in this period. How far was it ‘local’, as Geertz hinted? And how far was it ‘central’ – or for late-medieval villagers, in whose perspective I am most interested, how far was it something that happened ‘elsewhere’, in London, for other, richer, more privileged people? The answer must be that it was both, of course, but finding a balance between these two positions is a difficult task; a conceptual framework that runs deeper than either of them, harder still. My suspicion is that it will require thinking beyond the binary categories of ‘local’ and ‘central’, and towards a conceptual vocabulary that has not yet been developed; but doing so will have hugely significant implications both for how we understand late-medieval law and its development.

-- Tom Johnson
Twitter / @tomlukejohnson
Email / tom.johnson@york.ac.uk