Saturday, October 23, 2021

Weekend Roundup

  • We have word of two upcoming events sponsored by the Supreme Court Historical Society.  On  “November 10, 2021 at 12:00 p.m. EST, the Society will host A Virtual Conversation - The Original Meaning of the 14th Amendment with Randy Barnett and Evan Bernick.  The discussion will be based on their newly published book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. On December 8, 2021, at 12:00 p.m. EST, the Society will host Making Minimum Wage: Elsie Parrish v. The West Coast Hotel Company: A Lecture by Helen Knowles.  The lecture is inspired by her newly published book, Making Minimum Wage: Elsie Parrish v. The West Coast Hotel Company.”  Both are free to all and will be held over Zoom.
  • The Max Planck Institute for Legal History and Legal Theory has announced “a new lecture series, the Max Planck Lectures in Legal History and Legal Theory.  Six times a year, renowned scholars in the fields of legal history and legal theory are invited to present their current research.  The lectures are open to the public and will be held at 4.15 pm (on changing weekdays) at the Max Planck Institute for Legal History and Legal Theory.” 
  • New in the latest issue of the Journal of American History: “There isn't no trouble at all if the state law would keep out”: Indigenous People and New York's Carceral State by Christopher Clements.  The article “examines the history of racialized policing practices, jurisdictional disputes, and tribal governance in and around reservation communities in New York. Focusing primarily on the Akwesasne Mohawk Nation, which straddles the U.S.- Canada border, he asks how carceral state development affected Indigenous people and lands and how carcerality intertwined with settler colonialism during the first half of the twentieth century.”
  • Martti Koskenniemi, Professor of International Law (emeritus) University of Helsinki, will speak in the Global Forum Seminar of the School of Governance, Law and Society of Tallinn University on Expansion of International Legal History: Recent Debates on November 23, 2021, 16:00 - 18:00.
  • Yesterday the University at Buffalo Law School held the panel discussion “Sex, Solicitation, and the Supreme Court: Remembering People v. Uplinger.”  The session addressed “the ordeal of Robert Uplinger, a gay man who was arrested in Buffalo’s Allentown neighborhood in 1981 after propositioning another man on the steps of the Lenox Hotel. The other person turned out to be an undercover police officer, and Uplinger was charged with violating a state law prohibiting loitering ‘for the purpose to engage in deviate sexual intercourse.’” More
  • We just learned of the Duke Center for Firearms Law’s Repository of Historical Gun Laws, “a searchable database of gun laws from the medieval age to 1776 in England and from the colonial era to the middle of the twentieth century in the United States.”
  • ICYMI: An illustrated history of vaccine mandates in the United States (Chicago Tribune). Inside the Robert Caro Archive (Gothamist)(H/t: JQB).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 22, 2021

Weinberg Rewrites Wong Kim Ark

Jonathan Weinberg, Wayne State University Law School, has posted Wong Kim Ark Rewritten, which is forthcoming in Feminist Judgments: Immigration Law Opinions Rewritten, ed. Kathleen Kim, Kevin Lapp, & Jennifer Lee (Cambridge University Press, 2022):

This contribution to Feminist Judgments: Immigration Law Opinions Rewritten . . . reimagines the Supreme Court’s opinion in Wong Kim Ark v. United States. The Court in that 1898 case held that the child of Chinese immigrants, born in the United States, was a U.S. citizen. The rewritten opinion explains how the legal landscape of Wong Kim Ark was shaped not only by racism, but by white Americans’ beliefs about Chinese women’s propensities and morality, Chinese men’s conformance to appropriate gender roles, the right of Chinese merchants to connubial access to their wives, and the nature of Chinese families.
–Dan Ernst

Thursday, October 21, 2021

ASLH NOLA: Updated Schedule

The American Society for Legal History has posted an updated schedule for its upcoming meeting in New Orleans, November 4-6.  "Several graduate student 'rapporteurs' will be tweeting (#aslh2021) about highlights from some panels."

--DRE

Bachiochi, "The Rights of Women: Reclaiming a Lost Vision"

Notre Dame Press has published The Rights of Women: Reclaiming a Lost Vision, by Erika Bachiochi (Ethics and Public Policy Center / Abigail Adams Institute). A description from the Press:

In The Rights of Women, Erika Bachiochi explores the development of feminist thought in the United States. Inspired by the writings of Mary Wollstonecraft, Bachiochi presents the intellectual history of a lost vision of women’s rights, seamlessly weaving philosophical insight, biographical portraits, and constitutional law to showcase the once predominant view that our rights properly rest upon our concrete responsibilities to God, self, family, and community.

Bachiochi proposes a philosophical and legal framework for rights that builds on the communitarian tradition of feminist thought as seen in the work of Elizabeth Fox-Genovese and Jean Bethke Elshtain. Drawing on the insight of prominent figures such as Sarah Grimké, Frances Willard, Florence Kelley, Betty Friedan, Pauli Murray, Ruth Bader Ginsburg, and Mary Ann Glendon, this book is unique in its treatment of the moral roots of women’s rights in America and its critique of the movement’s current trajectory. The Rights of Women provides a synthesis of ancient wisdom and modern political insight that locates the family’s vital work at the very center of personal and political self-government. Bachiochi demonstrates that when rights are properly understood as a civil and political apparatus born of the natural duties we owe to one another, they make more visible our personal responsibilities and more viable our common life together.

This smart and sophisticated application of Wollstonecraft’s thought will serve as a guide for how we might better value the culturally essential work of the home and thereby promote authentic personal and political freedom. The Rights of Women will interest students and scholars of political theory, gender and women’s studies, constitutional law, and all readers interested in women’s rights.

Advance praise:

"Bachiochi adds an important new voice to the conversation criticizing the nation’s turn to revering market profit and the freedom to be left alone above all else. Feminists may not agree with all of her critique of contemporary feminism, but they would do well to engage with her powerful argument that conceptualizing the movement’s goal as sex equality in the workplace is too narrow." —Maxine Eichner

“Rights cannot flourish alone. They need to be embedded in a thicker moral context that gives voice to the goods that they should serve, the social duties that govern their exercise, and the virtues that enable respect for them. In this book, Erika Bachiochi recovers a tradition of thought about women’s rights that fully recognizes this and, with Mary Wollstonecraft at one end and Mary Ann Glendon at the other, offers an important, salutary correction, not only to libertarian feminism in particular but also to contemporary rights-talk in general.” —Nigel Biggar,

More information is available here. You can listen to an interview with the author here, at New Books Network.

-- Karen Tani

Wednesday, October 20, 2021

Stanford's Legal History Fellowship

The Stanford Center for Law and History has announced a fellowship “intended for people who have recently completed (or will soon complete) their training in law and history and who seek thereafter to pursue their first tenure-track academic position at the intersection of the two fields.”

The Stanford Center for Law and History is a residential fellowship that provides an opportunity to conduct research in the dynamic environment of Stanford University. The fellowship term is for two years. We expect that fellows will dedicate most of their time to pursuing their proposed research projects, and the fellowship is designed to ensure meaningful mentorship from faculty within both the Law School and the History Department. Fellows will also devote some time to organizing and implementing other Center activities, including an ongoing workshop series and an annual conference. The fellowship provides a significant opportunity to become part of a lively law-school-wide community of individuals with an interest in academia through attending weekly faculty lunch seminars and by participating in activities with the other fellows at Stanford Law School to learn more about one another’s scholarship and about academic life more generally. Fellows are also encouraged to attend and participate in the broad range of lectures and workshops available within the broader university, including inter alia, the History Department and the Stanford Humanities Center.

For the 2022-2023 fellowship, we will provide a workspace, a competitive salary, and a generous benefits package. Applicants who have completed (or are soon to complete) both a J.D. and a Ph.D in history are strongly preferred.  The fellowship is expected to start around August 1, 2022, but there is some flexibility as concerns the exact start date. [More.]
–Dan Ernst

Seo's "User's Guide to History"

Sarah Seo, Columbia Law School, has posted a very nice essay, User's Guide to History, which is forthcoming in the Research Handbook on Modern Legal Realism, edited by Shauhin Talesh, Elizabeth Mertz, and Heinz Klug (Edward Elgar 2021):

Historical knowledge is necessary to make informed policy choices, but history’s methods are unsuited for determining what, exactly, those policies should be. This chapter examines how historians have been contributing to the New Legal Realist project, identifies obstacles in translating historical conclusions into policy arguments, and explores specific ways that the past can inform the present. Although the discipline of history may not produce concrete policy proposals, it can help us to think more critically about present-day issues by envisioning alternative solutions inspired by the past, identifying problems that become more apparent in historical context, reframing questions that need asking, and exploring causation. By explaining how our laws and legal practices came to be, historians can identify problems and their origins, which is a crucial first step to figuring out what to do next.

--Dan Ernst

Tuesday, October 19, 2021

CFP: Civil Liberties and Hostile Courts

[We have the following announcement.  DRE]  

The Stanford Journal of Civil Rights & Civil Liberties (CRCL) at Stanford Law School seeks articles for a Special Issue (Spring 2022) focusing on how movements for civil liberties strategically navigate hostile courts.  For this special issue, we especially welcome work from activists, practitioners, government officials, and other stakeholders.

About the Special Issue.  As the court system has increasingly turned against the expansion of civil liberties as well as political and economic democracy, activists have needed to adopt new strategies for confronting an unfriendly legal landscape. This year CRCL's Special Issue seeks to highlight these strategies, focusing on how social movements have maneuvered around hostile laws in order to create change in both the past and the present. In particular, we invite papers that center power and autonomy as core concepts within constitutional and civil rights law, in addition to goals of legal rights and federal protection.

Questions of power and autonomy are already becoming increasingly central in civil rights and constitutional law, and in a broad variety of substantive areas including labor law, federal Indian law, reproductive justice, criminal justice, and voting rights. Focusing on power and autonomy raises a variety of questions for practitioners and theorists of civil rights law, including:

  • What is the role of lawyers in assisting or facilitating movements to build power, and how does this differ from civil rights litigation as currently practiced?
  • When is avoiding hostile courts a meaningful strategy for building power and autonomy, and how can the decision to turn to or avoid courts be made?
  • Through which avenues can movements for civil rights build power outside of the courts and the federal state? What is the role of state and local governments or courts?
  • How do movements for civil rights outside of the courts and federal state engage directly with communities?
  • What would "success" in this context look like? What strategies to advance civil rights in the face of hostile federal courts/government have been successful in the past?
  • How have existing systems responded to movements to advance civil rights in this way?
  • How does this history inform future efforts?

We are interested in writing that engages with any of these questions, or any other topic touching on efforts to advance civil rights through building power and autonomy in the face of hostile courts.
To Submit an Article.  Submit your article through Scholastica.

Criteria.  Submitted articles will preferably be under 25,000 words in length (approximately 80 double-spaced pages or 50 law review pages) with citations for all statements of fact. CRCL prefers articles with a clear thesis or argument that can materially advance discussions surrounding the topic, both within academia and among practitioners. Law journal formatting is encouraged, but not required for submitted manuscripts. Additional information, including an archive of past issues, is available [here].

Deadline.  Articles should be submitted by Nov. 30, 2021. Authors will be notified by Dec. 5, 2021. regarding publication decisions. Please follow up with the submissions committee if your piece is under review elsewhere and you require expedited review.

Somos & Peters, eds., "The State of Nature: Histories of an Idea"

Brill has published The State of Nature: Histories of an Idea, edited by Mark Somos (Deutsche Forschungsgemeinschaft) and Anne Peters (Max Planck Institute for Comparative Public Law and International Law). A description from the Press:

The phrase, “state of nature”, has been used over centuries to describe the uncultivated state of lands and animals, nudity, innocence, heaven and hell, interstate relations, and the locus of pre- and supra-political rights, such as the right to resistance, to property, to create and leave polities, and the freedom of religion, speech, and opinion, which may be reactivated or reprioritised when the polity and its laws fail. Combining intellectual history with current concerns, this volume brings together fourteen essays on the past, present and possible future applications of the legal fiction known as the state of nature. 

The Table of Contents:

Monday, October 18, 2021

AHA Prizes Announced

The American Historical Association has announced its prizes for 2021.  The Littleton-Griswold Prize in US law and society, broadly defined, goes to Douglas J. Flowe (Washington Univ. in St. Louis) for Uncontrollable Blackness: African American Men and Criminality in Jim Crow New York (Univ. of North Carolina Press, 2020).  The George Louis Beer Prize in European international history since 1895 goes to Francine Hirsch (Univ. of Wisconsin–Madison) for Soviet Judgment at Nuremberg: A New History of the International Military Tribunal after World War II (Oxford Univ. Press, 2020). The John Lewis Award for History and Social Justice to recognize a historian for leadership and sustained engagement at the intersection of historical work and social justice goes to Mary Frances Berry (Univ. of Pennsylvania). 

--Dan Ernst

Long on "How a New Orleans DA Prosecuted the Kennedy Assassination as a Sex Crime"

The University of North Carolina Press has published Cruising for Conspirators: How a New Orleans DA Prosecuted the Kennedy Assassination as a Sex Crime, by Alecia P. Long (Louisiana State University). The book is part of the Press's Boundless South series. A description from the Press:

New Orleans district attorney Jim Garrison’s decision to arrest Clay Shaw on March 1, 1967, set off a chain of events that culminated in the only prosecution undertaken in the assassination of John F. Kennedy. In the decades since Garrison captured headlines with this high-profile legal spectacle, historians, conspiracy advocates, and Hollywood directors alike have fixated on how a New Orleans–based assassination conspiracy might have worked. Cruising for Conspirators settles the debate for good, conclusively showing that the Shaw prosecution was not based in fact but was a product of the criminal justice system’s long-standing preoccupation with homosexuality.   

Tapping into the public’s willingness to take seriously conspiratorial explanations of the Kennedy assassination, Garrison drew on the copious files the New Orleans police had accumulated as they surveilled, harassed, and arrested increasingly large numbers of gay men in the early 1960s. He blended unfounded accusations with homophobia to produce a salacious story of a New Orleans-based scheme to assassinate JFK that would become a national phenomenon. 

At once a dramatic courtroom narrative and a deeper meditation on the enduring power of homophobia, Cruising for Conspirators shows how the same dynamics that promoted Garrison’s unjust prosecution continue to inform conspiratorial thinking to this day.

Advance praise:

“This shocking narrative uncovers how decades of police surveillance in New Orleans created a vast paper trail that set the stage for a corrupt district attorney to frame the only man to face prosecution for John F. Kennedy’s assassination, creating a lasting homophobic conspiracy theory in the process. With keen historical sensitivity, Alecia Long reveals the longer patterns and plots that frame this must-read story.”— Jim Downs

"Exposing the corrupt world of New Orleans policing and the complex gay subculture that thrived in the city’s shadow, Long’s book features an intriguing cast of characters, including ambitious prosecutor Jim Garrison and closeted businessman Clay Shaw. More importantly, it uncovers how cultural notions of gay men as criminal sexual psychopaths came to permeate JFK conspiracy theories and American culture more generally."— David K. Johnson

More information is available here. You can find an interview with Professor Long about the book at New Books Network.

-- Karen Tani

Saturday, October 16, 2021

Weekend Roundup

  • I taught Bradwell this week and wanted to be able to tell my students that Joseph C. Bradley's name came down from a Rutgers-Newark building because of his concurrence but it seems the principal cause was his opinion in the Civil Rights Cases.  DRE
  • "The Baldy Center for Law and Social Policy at the University at Buffalo School of Law plans to award up to four fellowships to scholars pursuing important topics in law, legal institutions, and social policy.”  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, October 15, 2021

Aloni on the League of Nations and the Environment

Omer Aloni, Bar-Ilan University, has published The League of Nations and the Protection of the Environment (Cambridge University Press):

In the history of how the law has dealt with environmental issues over the last century or so, the 1920s and 30s and the key role of the League of Nations in particular remain underexplored by scholars. By delving into the League's archives, Omer Aloni uncovers the story of how the interwar world expressed similar concerns to those of our own time in relation to nature, environmental challenges and human development, and reveals a missing link in understanding the roots of our ecological crisis. Charting the environmental regime of the League, he sheds new light on its role as a centre of surprising environmental dilemmas, initiatives, and solutions. Through a number of fascinating case studies, the hidden interests, perceptions, motivations, hopes, agendas and concerns of the League are revealed for the first time. Combining legal thought, historical archival research and environmental studies, a fascinating period in legal-environmental history is brought to life.
–Dan Ernst

Litman on the Drafter of the Lanham Act

Jessica Litman, University of Michigan Law School, has posted Edward S. Rogers, the Lanham Act, and the Common Law, which is forthcoming in the Research Handbook on the History of Trademark Law, edited by Robert G. Bone and Lionel Bentley:

This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that Rogers drafted expressed deep affection for the extant common law of trademarks and unfair competition. They appear to have assumed that the statute would supplement the common law rather than replacing it. Except to the extent that the statute expressly abrogated common law doctrine, most members of the trademark bar believed that even after the statute's effective date, common law rules would continue to control most determinations.

Along the way, the chapter recounts other interesting if not-very-consequential details. For example, Rogers’s representation of drug companies at the turn of the century familiarized him with the 1906 Pure Food and Drug Act. When he wanted to include a provision in his legislation that enabled recovery for false representation, he turned to the Pure Food and Drug Act for a model. When Representative William Sirovich, then one of only ten Jews in Congress, assumed the chairmanship of the House Patent Committee in 1931, he decided that instead of continuing to rely on Rogers and the ABA for trademark legislation, he would ask Frank Schechter to draft an alternative bill. Part of the reason may have been the ABA’s efforts in the early 20th century to block Jews from practicing law. Finally, the notion that federal law controlled infringement of registered trademarks but state law controlled unfair competition arose in the 1940s in the wake of the Supreme Court’s decision in Erie Railroad v. Tompkins. Before that, trademark lawyers agreed that the two sorts of actions arose from a single body of law.
--Dan Ernst

Northwestern Legal Studies Job

[We have the following announcement.  DRE]

Northwestern University’s Center for Legal Studies invites applications for a full-time, benefits-eligible, faculty appointment as Assistant or Associate Professor of Instruction, beginning September 1, 2022. This is a teaching-track position that offers good prospects of job security and promotion, contingent upon continuing excellence in job performance. Duties include teaching six quarter-long undergraduate courses per academic year.

We welcome applications from stellar teachers, especially those with proven ability to teach a range of lower- and upper-division courses on law and society. We particularly welcome applicants who can teach courses on criminal law and mass incarceration. Minimum qualifications include a Ph.D. in Political Science, Sociology, or a related field, which must be conferred by September 1, 2022. Preference will be given to candidates who have demonstrated experience working with diverse student communities.

Details regarding promotion and reappointment for teaching-track positions are available online [here].

Interested applicants should submit a letter of application, a CV, and the names of three references. Additional materials, including letters of recommendation from listed references, a writing sample, and evidence of teaching effectiveness (such as teaching evaluations, syllabi, and a statement of teaching philosophy) will be requested from selected candidates. In order to ensure full consideration, applications must be received by November 12, 2021. Please submit all materials through the application link. Address all inquiries to Charlene Mitchell at Charlene.Mitchell@northwestern.edu.

Northwestern University is an equal opportunity, affirmative action employer and does not discriminate against qualified individuals on the basis of race, color, religion, national origin, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, or any other protected class. Individuals from all diverse backgrounds are encouraged to apply. Hiring is contingent upon eligibility to work in the United States. For more information, please see the University’s Policy on Discrimination and Harassment. Job applicants who wish to request an accommodation in the application or hiring process should contact the Office of Equity. Additional information on the accommodations process is available [here].

Thursday, October 14, 2021

A History of Smuggling and a History of Law

In my first post, I briefly sketched how my personal experiences and formal training led me to legal history. In this post, I will explain how both sets of experiences informed my own book. 

China’s War on Smuggling is a history of smuggling on the China coast. It traces how successive Chinese regimes—the Qing dynasty (1644-1912), the Republic of China (1912-1949), and the People’s Republic of China (1949-present)—sought to regulate and police foreign trade. From the nineteenth century through the twentieth century, these regimes relied heavily on revenues collected from tariffs to modernize their economies and institutions—all the while fending off foreign encroachments on domestic sovereignty. Fighting smuggling was therefore not merely a law enforcement problem but crucial to protecting important revenues and expanding state capacity. In the process of continually defining permissible modes of exchange, however, these regimes also steadily created new categories of "trade" and "smuggling." These new categories, in turn, transformed everyday life. How different states sought to assert controls over trade and how ordinary people responded to such controls are ultimately the core concerns of my book.

Source: Liangyou, no. 128 (1937).
As I argue in my book, a history of smuggling is fundamentally a history of law—its promulgation, enforcement, and reception. Legally speaking, what constituted "smuggling" in modern China? At first, I naively assumed this would be a straightforward question to answer: consult various legal publications and—voilà!—find the relevant statutes that unambiguously declared: "Smuggling is…" What I discovered instead, however, was that definitions of “smuggling” and enforcement of such definitions frequently shifted over time. For instance, a traveler to China in the nineteenth century who sought to smuggle a bag of sugar might have faced harassment from customs agents but would have unlikely faced any significant legal consequences at a time when tariffs on imported sugar was a nominal five percent. By contrast, a traveler in the 1930s who sought to smuggle sugar would have faced more severe legal consequences at a time when tariffs on imported sugar were in the double-digit or even triple-digit range. Moreover, I discovered that definitions of "legal" and "illegal" trade varied by nationality, commodity, and location. Before the abrogation of extraterritoriality in 1943, for example, a Chinese national accused of smuggling would be treated under domestic laws while a foreign national accused of smuggling would be treated under international treaties. This division of jurisdiction, however, might be further complicated by the site of the crime—did it occur in a foreign concession, on international waters, or on domestic soil? All of this complicated my original question, but it was also far more fascinating and far more revealing to see how modern statecraft and state power evolved during a critical moment in Chinese history. Changes in laws and changes in enforcement, ultimately, reflected changes in official imperatives.

My formal training in legal history taught me the importance of excavating legal definitions and reconstructing legal processes. Just as definitions of, say, "marriage," "immigration," or "prostitution" were always dynamic and contextual, so too were definitions "smuggling." But it was not enough to simply look at laws on the books or legal systems on paper. I wanted to see how these laws and systems translated into every life. In the archives, I uncovered everything from vivid episodes of violent interdiction to detailed descriptions of trafficking networks. My book is filled with numerous cases of ordinary peoples’ encounter with the law: a fisherman who discovered his long-time route now crisscrossed newly drawn borders; a businessman who peddled smuggled goods to avoid onerous taxes and survive cutthroat competition; and a consumer who simply wanted the most desirable goods at the lowest prices. While their protestations of innocence or ignorance may have been self-serving, I nonetheless instinctively sympathized with these individuals and their plight. My own experiences being on the other side of distant, arbitrary state power sensitized me to similar experiences of others and thereby avoid reproducing state-centered discourses of illegality. Again, as I argue, a history of smuggling is fundamentally a history of law. But I also came to learn as I looked beyond the state, a history of smuggling is also a history of everyday encounters with the law.

In future blog posts, I will take a broader perspective by reviewing recent Chinese legal historiography and offering some recommendations on the latest Chinese legal history research. I ultimately want to encourage non-specialists of Chinese legal history to read more Chinese history and thereby generate some productive and even overdue conversations across different fields.

Thank you again for reading!

—Philip Thai
E-mail | p.thai@northeastern.edu
Twitter | @philip_thai

The Docket 4:3

Issue 4:3 of The Docket, the on-line companion to Law and History Review, has just gone live.  

Monika Polzin–The Beginning of the Search for the Eternal Truth of the State: The Criminal Law Career of Carl Schmitt

Jeffery A. Jenkins & Justin Peck, Congress and the First Civil Rights Era, 1861-1918

Linda Przybyszewski: Rethinking the “Secularization” of Law

Cary Franklin Interviews Amanda Tyler about Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union

Ryan Reft and Connie Cartledge: Researching Watergate at the Library of Congress

--Dan Ernst

Legal Transfer in the Common Law World

We have the following line-up for the Common Law Research Seminar, entitled, Legal Transfer in the Common Law World, convened by Stefan Vogenauer and Matilde Cazzola at the Max Planck Institute for Legal History and Legal Theory during the Winter Term 2021/2022.  They will be conducted in English, from 2:15-3:15pm via Zoom (until further notice).

October 18 (5:00 pm)
Renisa Mawani (University of British Columbia)
The ship, the slave, the legal person

November 1
Hakeem Yusuf (Open University)
Wither the power of disallowance?

November 8 (09:30 am)
Zoë Laidlaw (University of Melbourne)
‘Peopling the country by unpeopling it’: Jeremy Bentham’s silences on indigenous Australia

December 6
Sonia Tycko (University of Oxford)
The problem of free choice and consent in early modern England

December 13
Christopher Roberts (Chinese University of Hong Kong)
Discretion and the rule of law: the dissemination, endurance and significance of vagrancy laws in England and the former British Empire

January 10
Sukriti Issar (OSC, Sciences Po Paris)
Nuisance law and the Committee of Buildings in late 18th-century Bombay

January 24
Suramya Thekke Kalathil (Indian Institute of Technology, Madras)
Regulation of working hours in the factories of Madras Presidency, 1881-1947

January 31 (2:00-6:00 pm)
Benedikt Stuchtey (Philipps University Marburg)
TBC

--Dan Ernst

CELH Workshop

The Centre for English Legal History announced its “Michaelmas 2021 term card.”  The first two sessions will be on line; the third in person.  Sign up for the mailing list here.

16th November (15:00 GMT, Online)
Professor Emeritus Robert Palmer (University of Houston)
Litigation in 1642 From the Perspective of 1300 & Updates on the AALT/WAALT Projects

30th November (15:00 GMT, Online)
Professor Elizabeth Papp Kamali (Harvard Law School)
Felony and the Guilty Mind in Medieval England

2nd December (17:15 GMT, In-Person)
Professor Sir Ross Cranston (London School of Economics and Political Science)
Annual CELH Lecture: Title TBC

--Dan Ernst

Wednesday, October 13, 2021

Ablavsky on Land Claims and the Private Rights Doctrine

Gregory Ablavsky, Stanford Law School, has posted Getting Public Rights Wrong: The Lost History of the Private Land Claims, which is forthcoming in the Stanford Law Review:

Black-letter constitutional law distinguishes “private rights,” which must be litigated before an Article III tribunal, from “public rights,” which Congress may resolve through administrative adjudication. Yet both the Supreme Court and scholars have long struggled to define this distinction. Recently, many have turned to history for clarity, especially to Murray’s Lessee, the 1856 case that inaugurated the public rights doctrine. As part of a broader critique of the administrative state, Justices and scholars have sought to use this history to cabin the scope of constitutionally permissible administrative adjudication.

This Article intervenes in this debate by suggesting that administrative adjudication had a much broader scope in the nineteenth century than previously thought. It examines the sole example of public rights cited in Murray’s Lessee: preexisting property rights held by the European settlers in territories ceded to the United States. These “private land claims,” though almost entirely neglected by scholars of public rights today, were the subject of an enormous amount of nineteenth-century law and jurisprudence. Both the antebellum Congress and Supreme Court concluded that Congress enjoyed considerable discretion over the resolution of these claims, including through binding and preclusive decisions by non-Article III tribunals. The Court reached this conclusion, I suggest, based on a dichotomy between “perfect” title—where complete legal title had passed to the claimant—and “imperfect” title, where some further government act was required before the claimant enjoyed “complete” ownership. But this framework did not mean that private land claims, whether perfect or imperfect, were considered “privileges,” a category that other scholars have used to explain the public rights doctrine. Rather, the era’s caselaw and jurisprudence described both perfect and imperfect titles as vested property rights that the government could not take away. Moreover, by century’s end, the distinction between perfect and imperfect titles had collapsed in favor of a broad and durable embrace of federal power.

This history does not offer a new bright-line test to distinguish public from private rights. But it does challenge influential prior accounts in caselaw and scholarship by suggesting that, from the very beginning, the category of “public rights” encompassed vested rights to property that were routinely adjudicated before federal administrative tribunals.

--Dan Ernst

Stanford Center's Graduate Student Annual Conference Paper Prize

 [We share the following announcement. The deadline is 3 Jan. 2022.]

Stanford Center for Law and History

Graduate Student Annual Conference Paper Prize

The Stanford Center for Law and History invites paper submissions from graduate students for its fourth annual conference, “Legal Histories of Disease.” The conference will explore how the law has historically responded to health crises and what contemporary insights can be drawn from this history. The one-day conference will be held on Friday, April 29, 2022, at Stanford and is cosponsored with the Stanford Humanities Center. Please note that we are planning an in-person event. But recognizing the myriad of uncertainties surrounding the pandemic, we will remain flexible and reconfigure as may prove necessary.

The conference will include three panels followed by a keynote session featuring Professor John Witt of Yale Law School who will take part in a discussion of his recently published book, American Contagions: Epidemics and the Law from Smallpox to COVID-19 with Professor Deirdre Cooper Owens of the University of Nebraska. Areas of possible, but certainly not exhaustive, legal-historical interest for the conference include:

- Disease and the state

- Disease and public health management

- Disease and welfare

- Disease and private health management including intersections between, disease, law, and insurance

- Epidemics, pandemics, and responses to outbreaks in disease

- Disease, immigration, and borders of entry and exit

- Law, race, disability, and medicine

- Disease and segregation 

- Disease and the courts

- Disease and legislative reform

The conference organizers will select one graduate student as the winner of the SCLH Graduate Student Paper Prize to present on one of the three panels. Funding for travel and housing will be provided assuming we are indeed able to move forward with an in-person event as hoped.

The application deadline is Monday, January 3, 2022. For more details and to apply, click here. Please direct any questions to sclh@law.stanford.edu.

Tuesday, October 12, 2021

MPI-TAU Transnational Legal History Workshop

We have the schedule, subject to change, for the MPI-TAU Transnational Legal History Workshop for the Fall Semester, 2021-2022.  The workshop meets Tuesdays 19.00-20.30 (Frankfurt time) and 20:00-21:30 (Tel Aviv time).  Its organizers and moderators are Thomas Duve (MPI), David Schorr (TAU), and Stefan Vogenauer (MPI).  Sessions will be conducted on Zoom, and based on pre-circulated papers.  To join or receive more information, please email mpitauwkshp@gmail.com.

19 October    James Whitman (Yale)
From Masters of Slaves to Lords of Lands: Imagining Ownership in the Western World

26 October    Jake Subryan Richards (LSE)
The Warfare Origins of the Anti-Slave-Trade Legal Regime in the Atlantic World

2 November    Elisabetta Fiocchi (Zurich)
Transnational Entanglements in Land Law and Land Registration in the 19th Century

9 November    Philip Bajon, Victoria Barnes & Emily Whewell (MPI)
Global Legal Biography

16 November    Manuel Bastias Saavedra (MPI)
Global History and a Decentered History of Law

23 November    Tamara Morsel-Eisenberg (Harvard)
Rabbinic Responsa and Legal Communication

30 November    Heikki Pihlajamäki (Helsinki)
Transnational Elements in Colonial Laws: Spain, Portugal and the Netherlands

7 December    Jessica Marglin (USC)
Nationality Across the Mediterranean: Jews, Islamic Law, and Belonging in Tunisia

14 December    David Schorr (TAU)
The Society of Comparative Legislation and the Systemization of Legal Circulation

4 January    Rabiat Akande (Osgoode)
Decolonization by Codification: The Making of the 1958 Penal Code in Late Colonial Nigeria

11 January    Paul du Plessis (Edinburgh)
The Limits of Legal History

--Dan Ernst

Grossman's "Choose Your Medicine"

It’s hard to imagine a more timely book or an author who has devoted more thought and research to his subject.  Lewis A. Grossman, American University, has just published Choose Your Medicine: Freedom of Therapeutic Choice in America (Oxford University Press):

Throughout American history, lawmakers have limited the range of treatments available to patients, often with the backing of the medical establishment. The country's history is also, however, brimming with social movements that have condemned such restrictions as violations of fundamental American liberties. This fierce conflict is one of the defining features of the social history of medicine in the United States.

In Choose Your Medicine, Lewis A. Grossman presents a compelling look at how persistent but evolving notions of a right to therapeutic choice have affected American health policy, law, and regulation from the Revolution through the Trump Era. Grossman grounds his analysis in historical examples ranging from unschooled supporters of botanical medicine in the early nineteenth century to sophisticated cancer patient advocacy groups in the twenty-first. He vividly describes how activists and lawyers have resisted a wide variety of legal constraints on therapeutic choice, including medical licensing statutes, FDA limitations on unapproved drugs and alternative remedies, abortion restrictions, and prohibitions against medical marijuana and physician-assisted suicide. Grossman also considers the relationship between these campaigns for desired treatments and widespread opposition to state-compelled health measures such as vaccines and face masks.

From the streets of San Francisco to the US Supreme Court, Choose Your Medicine examines an underexplored theme of American history, politics, and law that is more relevant today than ever.

Some encomia:

"Grossman's work displays his mastery not only of the law, but also of everything else that makes medicine and health enduringly fascinating aspects of human history. Life, death, fear, love, pride, greed, envy, and ambition spring repeatedly from its pages. If you only read one book to understand the social cleavages that make it hard for Americans and their political leaders to 'follow the science' and end the pandemic, it should be this one." -- William M. Sage, Professor of Law and Medicine, The University of Texas at Austin

"What have 'life, liberty, and the pursuit of happiness' meant for medicine? Lewis Grossman provides a provocative answer, showing how Americans across the political spectrum used the law to fight—often against their physicians—for therapeutic choice. The legalization of medical marijuana and compassionate use of experimental cancer drugs are, in his view, just the most recent examples of a 200-year-old tradition of medical rights-making in the US, often linked to expressions of religious freedom. A fascinating diagnosis of the American wariness of the state and medical science." -- Angela N. H. Creager, Thomas M. Siebel Professor in the History of Science, Princeton University

"From George Washington's Deathbed in 1799 to the D.C. Circuit's courtroom in 2007 hearing argument in the landmark case of Abigail Alliance, Grossman's book takes readers on a thrilling historical ride to understand what 'therapeutic choice' has meant for this country and what the sometimes unstable marriage between medicine and law has wrought." -- I. Glenn Cohen, Deputy Dean and James A. Attwood and Leslie Williams Professor of Law, Harvard Law School, and Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics

"Meticulously researched, engagingly written, and deeply relevant, Lewis Grossman begins with the question of therapeutic freedom in the early 21st century and traces a vital thread connecting two centuries of legal studies, consumer history, and American politics. Choose Your Medicine provides a thorough and trenchant meditation on what is gained—and what has been lost—in foregrounding individual choice in the forging of US health policy and law." -- Jeremy Greene, William H. Welch Professor of Medicine and the History of Medicine, Johns Hopkins University

--Dan Ernst

CFP: Histories of Sexual Violence special issue

 [We share the following announcement.]

Eliza Teixeira de Toledo (Casa de Oswaldo Cruz-Fiocruz, Brazil) and Daniel Grey (University of Hertfordshire) are editing a special issue on "Histories of Sexual Violence" of the Open-Access journal Historia Crítica, due for publication in July 2022. Full articles of up to 11,000 words including footnotes should be submitted between 15 December 2021 and 31 January 2022We are accepting submissions that explore this topic in any historical period and any region of the world written in English, Spanish, or Portuguese.

The full Call is after the jump: 

Monday, October 11, 2021

Beauchamp on the Patents of Oliver Evans

Christopher Beauchamp, Brooklyn Law School, has posted Oliver Evans and the Framing of American Patent Law, which he published in the Case Western Reserve Law Review 71 (2020): 445-92:

If the complicated birth of United States patent law can be told through the story of a single figure, that person is Oliver Evans. Evans’s patenting activities spanned the Founding. He received patents from four states in the 1780s, and then, in 1791, the third U.S. patent to be granted. This grant became the most contested patent of the early Republic. Amid bitter politicking, Evans received the first Congressional patent extension and brought four of the U.S. Supreme Court’s first six patent cases. He also pioneered large-scale patent enforcement, asserting and litigating his rights across multiple states, as well as issuing the first demand letter to a sitting U.S. President. In the process, Evans became the nation’s leading polemicist for the rights of patentees.

The story of Oliver Evans thus embodies the framing of American patent law -- the
construction of both the law's institutional framework and the political and rhetorical claims that surrounded it. By appearing at all the major waypoints of Founding-era and early-nineteenth-century patent history, Evans provides a crucial test case for several important historical questions, including the degree of continuity between the first federal patents and their state predecessors, the contested role played by natural-rights conceptions of the patent, and the enforceability of inventors’ rights in the early Republic.

--Dan Ernst

Mack on CRT and the French

Kenneth W. Mack, Harvard Law School, has posted Critical Race Theory and Scholarly Analyses of Race in France:

This preface to a special issue on Race and the Law of La Revue des Droits de l'Homme, presents a genealogy of Critical Race Theory, framed in light of the tendency in France to avoid fulsome scholarly discussions of racial identity, racial inequality and racial attitudes. The preface also frames its genealogy in light of political attacks on CRT that have been launched both in the United States and elsewhere in the world. Its genealogy frames the origins of CRT in the context of increased scholarly interest in race as a social construction during the 1980s and 1990s, and in the additional context of 1970s, 80s, and 90s scholarship that questioned universalizing and colorblind legal regimes of nations that purported to guarantee equality without regard to race. It also locates CRT within the larger universe of Critical Theory, including Critical Legal Studies, and examines concepts such as social construction, intersectionality, whiteness, structural racism and identity performance. 

--Dan Ernst

Saturday, October 9, 2021

Weekend Roundup

  • SUNY Oswego nicely profiles political science professor Helen Knowles and her book, Making Minimum Wage: Elsie Parrish versus the West Coast Hotel Company.
  • Over at JOTWELL, Steve Vladeck (University of Texas at Austin School of Law) reviews Jonathan R. SiegelHabeas, History, and Hermeneutics.  In Constitutional Commentary, Kellen Funk reviews Jack N. Rakove's Beyond Belief, Beyond Conscience: The Radical Significance of Free Exercise of Religion and Winnifred Fallers Sullivan’s Church State Corporation: Construing Religion in US Law.  And, in The Nation, Richard Kreitner reviews James Oakes’s The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution.
  • Daniel A. Farber discusses on the history of the war powers, as part of a series of posts on his book, Contested Ground: How to Understand the Limits of Presidential Powers (Volokh Conspiracy).
  • The SEC Historical Society has announced a live webcast, A Decade of SEC Enforcement Specialization, on Tuesday, October 12, from 4:00 - 5:30 PM (EDT).  It commemorates the creation of specialized units within the enforcement division of the Securities and Exchange Commission for asset management; market abuse; structured and new products; foreign corrupt practices; and municipal securities and public pensions. (A cybersecurity unit was added later.)
  • The CFP for the annual Comparative Law Work-in-Progress Workshop is here.
  • ICYMI: Tina Ngata on New Zealand’s reception of Johnson v. M’Intosh’s discovery doctrine in Wi Parata v. Bishop of Wellington (1877) (Red Pepper).  Will Supreme Court Justice Joseph Bradley's name come down from a building at Rutgers-Newark? (NJ.com (gated). Sarah Pruitt on How the Salem Witch Trials Influenced the American Legal System (History Channel)

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.