Sunday, February 28, 2021
Saturday, February 27, 2021
- The American Historical Association has established $500 emergency grants to "assist un/underemployed historians who have been financially affected by
the COVID-19 outbreak."
- Princeton Ph.D. candidate Teal Acardi asked Twitter for reading recommendations on state building and infrastructure. He turned the results into a crowd-sourced #InfrastructureSyllabus. It includes lots of legal history.
- Over at the Legal History Miscellany: Sara M. Butler on botched executions in medieval England and Ohio today; and Gwen Seabourne on runaway nuns.
- Harvard Law professor Jeannie Suk Gersen's New Yorker piece on the latest comfort women controversy ignited by her colleague J. Mark Ramseyer.
- Duke Law’s H. Timothy Lovelace, Jr., interviewed in conjunction with his 2021 Rights and the Humanities lecture, delivered on Tuesday, February 23, Martin, the Movement, and the World of Comparative Law.
- Randall Kennedy, Martha Minow and Cass Sunstein have founded the American Journal of Law and Equality (Harvard Law Today).
- From the Washington Post's "Made by History" section: Gavin Benke (Boston University) on energy deregulation and the Texas crisis; A. K. Sandoval-Strausz (Pennsylvania State University) on why "a path to citizenship for 11 million immigrants is a no-brainer"; and more.
- ICYMI: Honoring Macon Bolling (Queens Daily Eagle). Remembering Georgia's "original 33" Black state legislators (WTOC). Slavery in Southern Illinois (WSILTV) and Connecticut (MetroWestDailyNews). Ending segregation in Oak Ridge, Tenn. (NET). The Library of Congress Acquires 200 Sketches of the Rodney King Police Brutality Trials (Fine Books & Collections). Raymond Pace Alexander and Sadie Tanner Alexander (Philadelphia Tribune).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, February 26, 2021
David Sugarman, Professor Emeritus at the Lancaster University Law School and an Honorary Fellow of the American Society for Legal History, has posted biographical essays of three legal scholars: Becoming Peter Fitzpatrick (1941-2020); William Twining: The Man Who Radicalized the Middle Ground; and Law, Law-Consciousness and Lawyers as Constitutive of Early Modern England: Christopher W. Brooks's Singular Journey. The first is forthcoming in a special issue of International Journal of Law in Context 17:1 (March 2021), devoted to Peter Fitzpatrick and his scholarship. The second will appear in another special issue of the same journal, devoted to Twining’s Jurist in Context: A Memoir. The third appeared in Law, Lawyers and Litigants in Early Modern England. Essays in Memory of Christopher W. Brooks, ed. Michael Lobban, Joanne Begiato and Adrian Green (Cambridge University Press, 2019) 32-57.
Thursday, February 25, 2021
|Robert F. Drinan, SJ (LC)|
Boston College Law School - Drinan Scholars Program: Visiting Assistant Professor
Boston College Law School seeks applicants for the Drinan Scholars Program. The Program provides research opportunities, faculty mentoring, and career development for promising legal scholars and teachers. The Drinan Scholars Program combines law teaching with scholarly research and writing. The Program is designed to support the training of future law professors who will enhance the diversity of the legal academy, and therefore seeks applicants with backgrounds underrepresented on law faculties. The Program additionally seeks to further BC Law's commitment to studying the causes of and solutions to structural racism.
The Drinan Scholars Program provides aspiring legal academics with an opportunity to develop their scholarship and teaching, and ultimately seek long-term academic positions. BC Law is known for its strong focus on law teaching, research excellence, and a collaborative atmosphere. Boston College is a major research university located near Boston, a city with a rich academic culture including 5 law schools and 35 colleges and universities.
The Drinan Scholars Program concentrates on aspects of academic life most likely to be helpful in preparing for a faculty career in legal education. The Drinan Scholar will teach law courses, with teaching assignments designed to dovetail with the scholar's research and teaching interests. The teaching load will allow ample opportunities for research and publication of major works of scholarship. In addition, the scholar will be assigned a primary senior faculty and junior faculty mentor to provide advice and support on teaching, scholarship, and preparation for the legal academic teaching market. Drinan Scholars participate fully in the life of BC Law, including but not limited to attendance at faculty workshops, opportunities to workshop papers and present at BC Law's Junior Faculty Forum, and access to teaching support through Boston College's Center for Teaching Excellence
The Drinan Scholars Program does not have a specific subject matter focus, but we are especially interested in receiving applications from scholars who seek to conduct research and writing on issues related to race and the law. Selection criteria include the potential for excellence in legal teaching and scholarship, contributions to diversity, equity, and inclusion, and the degree to which the applicant's research proposal aligns with institutional resources and opportunities.
Drinan Scholar appointments are for two years with support for participating in the law hiring market during the second year. Scholars will be appointed at the rank of Visiting Assistant Professor of Law. The salary for the 2021-22 Academic Year will be competitive with well-regarded law fellowship and VAP programs. In addition, Drinan Scholars will be provided with research support including research, travel funds and the opportunity to hire law student research assistants. Scholars will be expected to be in full-time residence at BC Law during the academic year.
The CSCHS Research Travel Grant in California Legal History. The California Supreme Court Historical Society has established a Research Travel Grant to defray the expenses of graduate students and law students at accredited U.S. universities and law schools who are researching California legal history for the purpose of preparing an article or other paper.
This grant was funded by the generosity of California Supreme Court Justice Kathryn Mickle Werdegar (Ret.) and David M. Werdegar, M.D., in honor of Selma Moidel Smith, Editor-in-Chief of California Legal History. Additional donations are welcome to ensure the continuation of this grant program.
Jeff Forret (Lamar University) published Williams' Gang: A Notorious Slave Trader and his Cargo of Black Convicts with Cambridge University Press in 2020. From the publisher:
William H. Williams operated a slave pen in Washington, DC, known as the Yellow House, and actively trafficked in enslaved men, women, and children for more than twenty years. His slave trading activities took an extraordinary turn in 1840 when he purchased twenty-seven enslaved convicts from the Virginia State Penitentiary in Richmond with the understanding that he could carry them outside of the United States for sale. When Williams conveyed his captives illegally into New Orleans, allegedly while en route to the foreign country of Texas, he prompted a series of courtroom dramas that would last for almost three decades. Based on court records, newspapers, governors' files, slave manifests, slave narratives, travelers' accounts, and penitentiary data, Williams' Gang examines slave criminality, the coastwise domestic slave trade, and southern jurisprudence as it supplies a compelling portrait of the economy, society, and politics of the Old South.
Praise for the book:
"In Williams' Gang, Jeff Forret takes a journey through some of the dark and often convoluted paths traveled by domestic slave traders and their human merchandise. Taking time along the way to introduce readers to some of the elaborate financial and legal infrastructures that governed and facilitated the domestic slave trade, Forret tells a once infamous but largely forgotten story about the Washington, DC slave trader William H. Williams and the enslaved Virginia convicts he imported illegally to Louisiana. Built on an impressive mountain of archival research and relayed with vivid prose, it is a story Williams himself surely wished would never have been one to tell at all." - Joshua D. Rothman
'"An expert autopsy of crime and punishment in the Old South with striking relevance for today. Leading historian of Southern history Jeff Forret meticulously narrates the ordeals of twenty-seven Black Virginians, whose enslavement was compounded by convictions and whose transport to Louisiana at the hands of a Washington, DC slave trader led to a dozen years each in the Louisiana State Penitentiary. Forret shows the guts of a horrific injustice that supports ongoing structural violence against African Americans." - Calvin Schermerhorn
"… meticulously researched and superbly crafted … This is a vivid and absorbing account of the exploitation of human beings whose suffering meant profit for others, all of which is part of our nation's history." - Roger Bishop
"… demonstrate(s) the riches awaiting us in narrating the hitherto untold and complex stories of slavery and emancipation in the United States." - Manisha Sinha
Further information is available here.
Wednesday, February 24, 2021
Chris Land, Northwestern University Pritzker School of Law, has posted The Origination Clause’s Missing Piece, which is forthcoming in the Tennessee Law Review 87 (2021):
The Origination Clause is nearly constitutional surplusage today. The scope of the Clause has been limited by the U.S. Supreme Court to a very narrow class of revenue legislation that emerges from the U.S. House of Representatives.–Dan Ernst
This Article, for the first time, analyzes historical evidence that the U.S. Supreme Court has defined the constitutional scope of “Bills for raising Revenue”—and the concomitant reach of the Clause—in a manner that fails to account for Revolutionary-era British revenue legislation. Four of the five bills passed by the British Parliament which contributed to the outbreak of the Revolutionary War, i.e., the Sugar Act 1764, Stamp Act 1765, American Colonies Act/Declaratory Act 1766, Revenue Act 1767 and the Tea Act 1773, were considered by the Revolutionary-era generation to be “Bills for raising Revenue.” These measures were largely the genesis of the slogan “taxation without representation.
Under U.S. Supreme Court precedent today, none of these Revolutionary-era measures would likely be subject to the Origination Clause because each bill raised revenue for a specific governmental purpose, e.g., the defense of the American colonies, the enforcement of anti-smuggling laws and other specific, directed purposes. Though Origination Clause precedent has supposedly been rooted by the Court in “the history of the origin of the power,” Origination Clause cases make it clear that only those bills that raise “revenue to support government generally,” i.e., undesignated revenue-raisers, are subject to the Origination Clause’s requirements.
This Article contends that this approach is largely unsupported by the historical record and that our modern application of the Origination Clause is missing an important piece—the Revolutionary-era generation’s view of the legislation which truly constitutes “Bills for raising Revenue.”
Jesse Cross, University of South Carolina School of Law, and Abbe R. Gluck, Yale Law School, has posted The Congressional Bureaucracy, which appears University of Pennsylvania Law Review 168 (2020):
This Article introduces the concept of the “congressional bureaucracy,” and theorizes what it means for Congress to have an internal workforce of more than 4,000 nonpartisan, highly specialized, and long-serving experts, without which the modern Congress could not function. These experts—not elected Members or their political staffs—write the text of the laws, audit implementation, research policy, estimate bills’ economic effects, decide which committees control legislation and which amendments can be made, edit and rearrange already-enacted (!) legislation into the law as we see it in the U.S. Code, and much more. The congressional bureaucracy furthers internal and external separation of powers, revives theories of Congress as a rational actor, and supplies key insight for statutory interpretation. But Courts, lawyers and legal scholars have almost entirely ignored their existence.
Hall of 40 Columns Supporting the Capitol Dome
This project is based on two years of confidential interviews with high-level staffers in Congress’s nine nonpartisan legislative institutions—the Office of the Law Revision Counsel; the Offices of the Legislative Counsels; the Congressional Research Service; the Government Accountability Office; the Parliamentarians; the Congressional Budget Office; the Joint Committee on Taxation; MedPAC and MACPAC—and additional interviews with partisan staff. The project furthers a new line of legislation scholarship about the value to theory and doctrine of understanding how Congress actually works. Courts cannot claim the doctrines of statutory interpretation are democratically linked to Congress, as virtually all judges do, without understanding how it writes legislation.
Our research reveals that the congressional bureaucracy serves purposes previously unimagined by legal scholarship. Classic bureaucracy literature posits that Congress loses power when it delegates. But the congressional bureaucracy was explicitly founded so that Congress could reclaim and safeguard its own powers against an executive branch that was encroaching on the legislative process. The bureaucracy also safeguards Congress’s own internal separation of powers, the salutary decentralization of law-producing responsibilities among a collection of nonpartisan actors, preventing any one aspect of the lawmaking process from coming under undue political or centralized control.
Understanding the congressional bureaucracy’s work also provocatively deconstructs the concept of a “statutory text.” The words Congress enacts are the result of a highly dialogic process that is triggered by and includes assumptions about critical inputs from the bureaucracy. Members and partisan staff focus on the substance of legislation at the macro level, not the specific words chosen at the micro level—that is the bureaucracy’s job. What we see when we open the statute books often is not even what Congress enacted or how Congress arranged it, because OLRC reorganizes and edits the laws after passage. So conceived, the concept of a “statute” is much more capacious than merely the “text” at the moment of the vote. None of this is illegitimate; Congress has set itself up this way. All of these inputs are part of the “text” as Congress intends it to be understood.
Together, these institutions paint a picture of a Congress that is not as irrational as the public considers it to be. They also have on-the-ground lessons for statutory interpretation, highlighting critical inputs that courts miss and numerous statutory cues—from code placement to consistency of language to CBO scores—some of which courts dramatically overread, others of which should be attractive even to textualists because they result from formalist, objective, collectively congressional action. The field is now engaged in emerging debates about whether doctrine can absorb this kind of detail about legislative process; understanding the congressional bureaucracy is a critical new piece of this account.
Tuesday, February 23, 2021
[We have the following Call for Papers. DRE.]
Slavery: Past, Present & Future: 5th Global Meeting, July 7-9, 2021. To be held online on the Zoom platform hosted by Indiana University Robert H. McKinney School of Law.
Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, kinship, and exploitation of indebtedness have been an intrinsic part of human societies.
Slavery and a variety of other forms of exploitation existed in ancient societies across the world, and in many other states and territories. The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.
Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today. This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.
But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like 'consumers' of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?
The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.
In keeping with previous meetings, the format of the Slavery Past, Present and Future Conference this year will be plenary. We intend to hold the meetings for part of the day only [EST] to avoid Zoom fatigue and expect those who register to attend all the sessions in order to facilitate a genuine cross-fertilization of ideas across identities, disciplines, and subject areas.
The Georgetown Legal History Colloquium reconvenes next week with the first of a projected two online book talks. On March 1, from 12:30-1:50pm EST. Greg Ablavsky, Stanford Law, will discuss his new book Federal Ground: Governing Property and Violence in the First U.S. Territories (Oxford University Press). Professors Paul Frymer, Princeton University, and Bethel Saler, Haverford College, will respond. RSVP here.
Carolyn Steedman (University of Warwick) published History and the Law: A Love Story with Cambridge University Press in 2020.From the publisher:
Focusing on everyday legal experiences, from that of magistrates, novelists and political philosophers, to maidservants, pauper men and women, down-at-heel attorneys and middling-sort wives in their coverture, History and the Law reveals how people thought about, used, manipulated and resisted the law between the eighteenth and the twentieth centuries. Supported by clear, engaging examples taken from the historical record, and from the writing of historians including Laurence Sterne, William Godwin, and E. P. Thompson, who each had troubled love affairs with the law, Carolyn Steedman puts the emphasis on English poor laws, copyright law, and laws regarding women. Evocatively written and highly original, History and the Law accounts for historians' strange ambivalent love affair with the law and with legal records that appear to promise access to so many lives in the past.
Praise for the book:
"Steedman writes the sort of book we have come to expect - stunningly original, steeped in local archives and literature, distinctive in its methods and voice. History and the Law concerns the everyday legal encounters of ordinary people, and the attraction of the law for historians keen to understand hearts and minds in the past." - James Epstein
"The always engaging and reflective Carolyn Steedman here chronicles her own and others' struggles to understand and make use of eighteenth-century law - others from that time and others from our time. Taken together, these essays sketch an important agenda for historical enquiry, as well as providing insights into the historian's craft." - Joanna Innes
"Steedman cleverly recounts the history of everyday experiences of the law in modern Britain. Beautifully written and drawing on a wealth of sources from the eighteenth and nineteenth centuries, it will appeal to historians as well as literary and legal scholars alike." - Julia Moses
"A distinctively approachable, eclectic and stimulating series of reflections on law and history's interactions, both in theory and practice, over the past four centuries, from a leading exponent of modern British cultural and social history." - Wilfrid Prest
Further information is available here.
Monday, February 22, 2021
John Vlahoplus has posted Early Delegations of Federal Powers, which is forthcoming in the George Washington Law Review Arguendo:
Conservatives have long tried to eviscerate federal administrative law by divining an implicit constitutional doctrine forbidding Congress to delegate its legislative powers. Contemporary originalists continue the effort, arguing that the original meaning of the Constitution includes this doctrine despite its absence from the document’s text. In response, critics have begun to show that early American constitutional history and theory support contemporary administrative law either as a valid delegation of legislative power to the executive branch or as the executive branch executing a statutory directive (or both).--Dan Ernst. H/t: Legal Theory Blog
This Article expands on that response and critiques standard originalist arguments for a nondelegation doctrine. It demonstrates that early congressional statutes delegated federal powers to a broad group of actors including private experts acting alone, private experts acting with judicial or executive oversight, and non-federal authorities in addition to federal executive officials. Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions. The delegations included areas demanding expertise or flexible decision-making and required the delegate to balance risks against economic costs. They addressed some of the most critical subjects for the nation’s early government: race, shipping, and the public fisc.
A 1790 statute, for example, protected the health and safety of sailors on foreign voyages. It specified minimum requirements for the types, amounts, and storage of food and water for every sailor. It also provided that each American ship of a certain size and crew "shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled."
Food, water, and medicines have costs, of course. Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea. It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage. But Congress did not. Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration.
The use of experts and administrative law are well within the Constitution’s constraints on the federal government. Conservatives who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments. But they cannot rely on history to claim that the “original meaning” of the Constitution includes a nondelegation doctrine.
If it finally gets us a history of correspondence legal education, Zoom Law School won’t have been all bad. Former LHB Guest Blogger Bernard J. Hibbitts, University of Pittsburgh School of Law, has posted an installment, Pushing the Envelope: How a Handful of Innovative Law Professors Delivered Distance Education in the Age of Langdell, of a book-length project, Missionaries and Mail Men: Correspondence Law Schools and the Struggle for the Soul of American Legal Education.
–Dan Ernst. Update: More Hibbitts on Making Lawyers by Mail.
This is the introduction and first section of a much longer paper on university law professors’ brief and ultimately doomed dalliance with correspondence legal education in the 1870s and 1880s before multiple for-profit concerns enthusiastically adopted the method in the 1890s. In this segment I outline the trajectory of the paper and then discuss the legal, social and educational circumstances that led a few maverick law professors at Yale and later Columbia to entertain the radical notion of teaching non-resident students by mail at roughly the same time that Christopher Columbus Langdell was developing the case method at Harvard. I give extended consideration to the disruption of the antebellum law school structure by the Civil War, the passion for innovation of all sorts that swept the United States in the late 1860s and 1870s, critical changes in the American postal and transportation infrastructure that effectively wired the country for correspondence instruction, and early experiments in extension and correspondence education in England and the United States after 1867 that appeared to demonstrate proof of concept in advance of the Yale and Columbia experiments.
Credit: Internet Archive
Sunday, February 21, 2021
--Dan Ernst. H/t: Thomas Perroud
Saturday, February 20, 2021
- Celebrating Legal Heroes (during Black History Month) at UVA Law.
- At the Riesenfeld Rare Books Center, University of Minnesota Law Library: this virtual exhibit on Law and the Struggle for Racial Justice.
- On February 17, Chris J. Brummer, Georgetown Law, delivered the keynote address in the Securities and Exchange Commission’s observance of Black History Month. He drew upon his Brookings Working Paper, "What do the Data Reveal about (the Absence of Black) Financial Regulators?" The text of the address is here.
- University at Buffalo’s notice of that symposium issue for John Henry Schlegel (UBNow). Click for the pic!
- Mark Graber on Their Fourteenth Amendment, Section 3 and Ours, from his book in progress, The Forgotten Fourteenth Amendment (Just Security).
- From the Washington Post's "Made by History" section: Teal Acardi (Ph.D. candidate, Princeton University), "Texas’s power grid failing shows why Biden needs to go big on infrastructure"; Laura Briggs (University of Massachusetts, Amherst) on Biden's immigration bill and repairing the harms of family separation.
- Daniel Sharfstein, Vanderbilt University, will speak in the Dean’s Lecture Series on Racial Justice and Discrimination on February 25, 12:00pm - 1:00pm CST (1:00pm - 2:00pm EST).
- On February 26, “The History of Central Banking in Hong Kong, Mainland China and Singapore,” in the Greater China Legal History Seminar Series at CUHK LAW. More.
- On March 5, 2021, from 13:15 - 15:00, Prof. Dr. Thomas Duve, Max Planck Institute for Legal History and Legal Theory, will conduct, in German, the seminar Methods of Legal History It will focus on “methodological issues that are especially important for the work in the department ‘Historical Normativity.’” Registration for the event until February 25: email@example.com
- The deadline for submissions for the 2022 annual meeting of the American Historical Association has been extended to Monday, March 8. More.
- "The State Historical Society of Iowa has officially opened the 2021-2022 cycle of applications for our Research Grants for Authors." More.
- Jay Sexton, University of Missouri, on political violence in American history, in conjunction with the Missouri Humanities Council panel, “A Nation Divided: How One Decade Can Change Everything" (Columbia Missourian).
- ICYMI: Laura Edwards on Section 3 of the 14th Amendment (IBT). James Goodman wants us to stop calling slavery America's "original sin" (CNN). The KKK Act and the Sack of the Capitol (WaPo). The National Security Archive et. al. v. Donald J. Trump saves White House records (NSA). Larry Wilmore on “Amend: The Fight for America” (K5). More on "Amend," in Bustle. Can't have a Green New Deal without a CCC (Civilian Climate Corps) (Next City). More on section 3 of the Fourteenth Amendment (with Edwards, Hemel, and Magliocca) (abc6).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, February 19, 2021
The [American Society for Legal History] welcomes applications for the Kathryn T. Preyer Scholars program. The Kathryn T. Preyer Scholars program annually recognizes two early career legal historians presenting what would normally be their first papers at the American Society for Legal History's conference. In addition to presenting their work at a specially-designated Preyer Panel, recipients receive a small honorarium to reimburse, in some measure or entirely, their costs of attending the conference.
The competition is organized by the Society’s Kathryn T. Preyer Memorial Committee. The deadline for submission is April 1, 2021. Complete guidelines and instructions on how to apply are available here.
Peter Conti-Brown and Brian D. Feinstein, University of Pennsylvania, on The Contingent Origins of Financial Legislation:
Courts and scholars often view major financial legislation warily. One popular theory holds that Congress only legislates in this area when pushed by opportunistic activists in response to crises that neither activists nor legislators understand. Another account contends that financial legislation is the well-designed product of deeply entrenched schemes by special interest groups that control the process with limited input from others. Further, the Supreme Court’s application of antinovelty doctrine—which counsels that governmental structures without historical precedent are constitutionally suspect—sends a strong signal that creative solutions to these problems will be viewed with judicial skepticism.–Dan Ernst
This Article challenges the prevailing scholarly theories of financial legislation and reveals as irredeemably flawed the Court’s related assumptions about legislative processes. This reassessment is based on historical analysis of seven watershed events in American legal and financial history, grounding important moments more firmly in their political contexts. From the Federal Reserve Act of 1913 to the CARES Act of 2020, we uncover neither a pattern of responding to crises nor a logic of grand design at the frontier of congressional authority. Instead, the sweep of history reveals reactions to unpredictable events, policy entrepreneurs with proposals that change substantially during the course of the legislative process, and temporary legislative coalitions that respond to perceived problems in largely ad hoc ways. The result is a flourishing of congressional experimentation at every turn. Temporary coalitions and historical contingencies are the primary themes in financial lawmaking. Novel legislative experiments are not the exception, but the rule.
That insight exposes the impracticality and incoherence of the ascendant antinovelty doctrine. Judicial insensitivity to the ubiquity of unpredictability and experimentation in legislative design risks curtailing Congress’s legitimate and constitutional powers to shape the financial system in a democratically accountable way.
Kevin Y. L. Tan (National University of Singapore/Nanyang Technological University) and Ridwanul Hoque (University of Dhaka/Charles Darwin University, Australia) have co-edited Constitutional Foundings in South Asia, just out with Hart. From the publisher:
This volume addresses the idea of origins, how things are formed, and how they relate to their present and future in terms of 'constitution-making' which is a continuous process in South Asian states. It examines the drafting, nature, core values and roles of the first modern constitutions during the founding of the eight modern nation-states in South Asia.
The book looks at the constitutions of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It provides an explanatory description of the process and substantive inputs in the making of the first constitutions of these nations; it sets out to analyse the internal and external (including intra-regional) forces surrounding the making of these constitutions; and it sets out theoretical constructions of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states and their subsequent impact on state-building in the region.
Table of Contents after the break:
Thursday, February 18, 2021
Jack M. Balkin, Yale Law School, has posted Race and The Cycles of Constitutional Time, which is forthcoming in the Missouri Law Review:
The Cycles of Constitutional Time, argues that we can understand American constitutional development in terms of three different kinds of cycles. The first is the rise and fall of political regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.
This essay shows how each of these cycles has deep connections to successive political struggles over race and racial equality in the United States.
Each regime’s winning coalition is shaped by the politics of slavery (in the antebellum period) or race (after the Thirteenth Amendment). In several cases, the dominant coalition eventually breaks down because of disputes about slavery or race. The cycle of polarization is also highly correlated with attempts by politicians to make race, and more generally, identity, the central questions that divide the two major political parties. Finally, polarization over race and identity-- along with increasing income inequality--has been an important factor in each period of constitutional rot in the country's history.
I do not claim that race is either the sole or the dominant explanation for the cycles of constitutional time in the United States. Nevertheless, race is a powerful factor, and the politics of race are an important driver of the cycles of regimes, polarization, and rot described in the book. My purpose in this Article is to highlight the role that racial politics plays in the transformations described in The Cycles of Constitutional Time, and to show how questions of race are important at each stage of the story.
Stephen Morse, University of Pennsylvania Law School, has posted Before and after Hinckley: Legal Insanity in the United States, which is forthcoming in The Insanity Defence: International and Comparative Perspectives (2022), edited by Ronnie Mackay and Warren Brookbanks:
This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that have occurred in the insanity defense since the wave of legal changes following the Hinckley decision.
Wednesday, February 17, 2021
The University of Connecticut Business & Human Rights Workshop is hosting a virtual workshop tomorrow (Thursday, February 18) with Aaron Dhir (Osgoode Hall Law School/Yale Law School). He'll be discussing "Black Star Line, Inc.: Race in the Historical Life of the Corporation":
From approximately 1916 to 1922, Marcus Garvey established himself as one of the most influential — and controversial — leaders in Black America. This seminar will examine Garvey’s ill-fated effort to use the Black Star Line, a Delaware-incorporated shipping firm, as an organizing vehicle for Black economic, social, and political independence. It will explore a complex set of socio-legal questions, including: How is race present in the historical life of the American business corporation? Who is traditionally thought of as an insider and an outsider in American capital markets? How have racially-inflected power asymmetries appeared in the fabric of the market? And how has the politically-motivated use of business regulation thwarted the entrepreneurial efforts and political goals of racial minority groups?
Registration info is available here.
-- Karen Tani
(We share the following announcement about the papers of S.J.V.Chelvanayakam,Tamil lawyer and leader in 1950s-70s Sri Lanka, which will soon be available as a digital archive. -MS)
Please join us for a free online public webinar celebrating the launch of the S. J. V. Chelvanayakam digital archive at the University of Toronto on Feb. 26, 2021 at 9am-12pm EST. The webinar will bring together international scholars and researchers who will speak about the Chelvanayakam archive, colonial and postcolonial history, justice and law, historical memory, and the significance of digital archives in the modern world. This webinar introduces the Chelvanayakam fonds and is envisioned as an invitation to future community and research collaborations, storytelling, and the sharing of memory.
• Bruce Matthews, Acadia University (Emeritus), “S. J. V. Chelvanayakam”
• Thamilini Jothilingam, UTSC, “A Return to Words: Metadata, Metahistory, and Digital Memory”
• Sujith Xavier, University of Windsor, "They're talkin' 'bout a reconciliation: Listening to the Whispers in the Chelvanayakam Archives"
• Vasuki Nesiah, New York University, "Towards a Larger Freedom"
• T. Sanathanan, University of Jaffna, “Translations of a Document”
This event marks the launch of the archive of S. J. V. Chelvanayakam, an extraordinarily significant political leader of the Tamil community in postcolonial Sri Lanka. As a leader, lawyer, and parliamentarian, Chelvanayakam’s life bears witness to significant political events in the island from the 1950s to the 1970s. His papers, comprising of voluminous correspondence, along with documents and pamphlets, were meticulously collected by Mr. Chelvanayakam’s daughter, Susili Chelvanayakam Wilson. The archive was then donated to the University of Toronto Scarborough Library by Susili Chelvanayakam Wilson and Mr. Chelvanayakam’s granddaughter, Malliha Wilson.
This webinar is free and open to everyone and will take place via Zoom. The webinar will be in English and Tamil with live interpretation in both languages.
Zoom link: https://zoom.us/webinar/register/WN_eWITmA6uT66hV3jcvb9LOw
Also presented by:
• UTSC Library
• Tamil Worlds Initiative
• Munk School of Global Affairs and Public Policy
Further information is available here.
Tuesday, February 16, 2021
Today, at 6:30 ET: After the Riot: Partisanship and Political Life in the Wake of January 6, at the Princeton School of Public and International Affairs. The panelists are Nell Painter, Edwards Professor of American History, Emeritus; Jacob Shapiro, Professor of Politics and International Affairs; Keith Whittington, William Nelson Cromwell Professor of Politics; Sean Wilentz, George Henry Davis 1886 Professor of American History; Julian Zelizer, Malcolm Stevenson Forbes, Class of 1941 Professor of History and Public Affairs; and moderator Louis Jacobson, Senior Correspondent, Politifact. “This timely discussion will feature five Princeton University faculty as they consider the events of January 6, the Trump impeachment trial, and how political misinformation is affecting American democracy.” Register here.
Elizabeth Chika Tippett, University of Oregon School of Law, has posted Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South:
This article explores the law of agency as applied to enslaved workers in the antebellum South between 1798 and 1863. In particular, I examine legal disputes involving the delegation of agency power to enslaved workers. Southern courts generally accepted that an enslaved worker could serve as business agent for his or her slaveholder, which often meant binding a third party to a transaction negotiated or performed by an enslaved person.
These cases provide a window into business practices in slave states, where enslaved workers conducted business on behalf of slaveholders in a variety of contexts. While agency law served the economic interests of individual slaveholders – who could then avoid hiring paid labor for the same work – it also at times conflicted with the ideology of white supremacy and the associated southern laws meant to enforce racial dominance. Agency law bestowed the slaveholder’s power on an enslaved worker in transactions with third parties, often white businessmen who later sought to unwind the deal. The law of agency also conflicted at times with state laws that prohibited sales and business dealings with slaves. Nevertheless, southern courts frequently sided with slaveholders, who insisted that their powers could be delegated to enslaved workers.
Monday, February 15, 2021
The Program Committee of the ASLH is currently accepting proposals
for complete panels and individual papers for the Society's annual
meeting to be held November 4-6, 2021 in New Orleans.
Panels and papers on any facet or period of legal history from anywhere in the world are welcome, and we encourage thematic proposals that transcend traditional periodization and geography. Full submission details are available on our website here.
To submit a panel or paper for consideration, head to our submission portal and and complete all required steps by March 15, 2021.
Maïa Pal, Oxford Brookes University, has published Jurisdictional Accumulation: An Early Modern History of Law, Empires, and Capital (Cambridge University Press):
Here are two endorsements:
"This book is an event. Maïa Pal's concept of Jurisdictional Accumulation, i.e. the development of actual practices of law, illuminates the shortcomings of conventional narratives of the history of international law. She convincingly demonstrates how much can be gained from making use of concepts of political economy for this analysis. Her focus on the practices of consuls opens up a new field of research for the historiography of exterritoriality."
Heide Gerstenberger, retired professor for 'Theory of State and Society' at the University of Bremen
"Pal's main research strength lies in her command of an extensive secondary literature from which she extracts substance to support her innovative argumentation and analysis … The book is to be welcomed as an able and convincing elaboration of this thesis [of jurisdictional accumulation]. But alongside original inquiry into early modern history, Jurisdictional Accumulation evinces a commitment to the development of a historical sociology of early modern empires. That is, Pal's goal is just as much the exposition of method as it is the presentation of original research. Legal historians may find that this may be its most lasting contribution to their work."
Christopher Tomlins, Legal Form
Saturday, February 13, 2021
- From the Smithsonian Magazine: "Meet Joseph Rainey, the First Black Congressman."
- From Martha Jones (Johns Hopkins), in the op-ed pages of the Washington Post: "Black history is often shunned — like the book I wrote." Professor Jones will be virtually presenting Black Americans and the Borders of Belonging: A Conversation with Martha S. Jones, in a partnership of the University of Oregon and the University of Utah on Thursday, Feb. 18, at 11 a.m. Register here.
- Everything you wanted to know about shouting fire in a theater, from Carlton F. W. Larson, University of California, Davis School of Law.
- Here is the wrap-up post for the Balkinization symposium on Mary Ziegler's Abortion and the Law in America.
- Congratulations to Rebecca Zietlow, the historian of the Thirteenth Amendment, upon her appointment as Distinguished University Professor at the University of Toledo.
- Timothy P. O’Neill on "What Biden's inaugural address may owe to ‘David Copperfield'" (Chicago Daily Law Bulletin).
- The lawsuit filed by SHAFR and the AHA (among others) managed to save Trump White House records. Details here.
- Holly Brewer on the impeachment trial of Warren Hastings, which came up this week. Also this thread from South Asianists and others.
- ICYMI: Danielle Allen on Prince Hall, forgotten Founding Father (The Atlantic). Jack Rakove on the second Trump impeachment trial (Stanford News). Florida South-Western State College's notice of Professor Brandon Jett’s receipt of an grant from the American Society for Legal History for his digital history project “Lynching in LaBelle" (Florida Weekly). Lucy Cane on liberals vs. the Supreme Court (The Conversation).
- Update: Advocates push for Pauli Murray's place in civil-rights pantheon (11Eyewitness News).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, February 12, 2021
David S. Schwartz, University of Wisconsin Law School, has posted Recovering the Lost General Welfare Clause:
The General Welfare Clause of Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." A literal interpretation of this clause ("the general welfare interpretation") would authorize Congress to legislate for any national purpose, and therefore to address all national problems"including the COVID-19 pandemic"in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called "Spending Power," a power only to spend, but not to regulate, for national purposes. This article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, or the COVID-19 pandemic. It is only our superficial ideological commitment to enumerationism "the doctrine of limited enumerated powers" that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of founding-era views on federalism.--Dan Ernst
The Supreme Court Historical Society and the Georgetown Center for the Constitution have announced that on Thursday, April 22, 2021, Martha Jones, Johns Hopkins University, will deliver the seventh annual Salmon P. Chase Distinguished Lecture in commemoration the centennial of the adoption of the Nineteenth Amendment. The event will be held virtually, from 7:00 to 8:30 pm. To register for this virtual event, click here and complete the form. Presenters scheduled for the accompanying Faculty Colloquium the next day are, with Professor Jones, Ellen Katz, University of Michigan, Paula Monopoli, University of Maryland, David Bernstein, George Mason University, and Reva Siegel, Yale University.
Simon & Schuster has published Dress Codes: How the Laws of Fashion Made History (Feb. 2021), by Richard Ford Thompson (Stanford Law School). A description from the Press:
Dress codes are as old as clothing itself. For centuries, clothing has been a wearable status symbol; fashion, a weapon in struggles for social change; and dress codes, a way to maintain political control. Merchants who dressed like princes and butchers’ wives wearing gem-encrusted crowns were public enemies in medieval societies structured by social hierarchy and defined by spectacle. In Tudor England, silk, velvet, and fur were reserved for the nobility and ballooning pants called “trunk hose” could be considered a menace to good order. The Renaissance era Florentine patriarch Cosimo de Medici captured the power of fashion and dress codes when he remarked, “One can make a gentleman from two yards of red cloth.” Dress codes evolved along with the social and political ideals of the day, but they always reflected struggles for power and status. In the 1700s, South Carolina’s “Negro Act” made it illegal for Black people to dress “above their condition.” In the 1920s, the bobbed hair and form-fitting dresses worn by free-spirited flappers were banned in workplaces throughout the United States and in the 1940s the baggy zoot suits favored by Black and Latino men caused riots in cities from coast to coast.
Even in today’s more informal world, dress codes still determine what we wear, when we wear it—and what our clothing means. People lose their jobs for wearing braided hair, long fingernails, large earrings, beards, and tattoos or refusing to wear a suit and tie or make-up and high heels. In some cities, wearing sagging pants is a crime. And even when there are no written rules, implicit dress codes still influence opportunities and social mobility. Silicon Valley CEOs wear t-shirts and flip flops, setting the tone for an entire industry: women wearing fashionable dresses or high heels face ridicule in the tech world and some venture capitalists refuse to invest in any company run by someone wearing a suit.
In Dress Codes, law professor and cultural critic Richard Thompson Ford presents an insightful and entertaining history of the laws of fashion from the middle ages to the present day, a walk down history’s red carpet to uncover and examine the canons, mores, and customs of clothing—rules that we often take for granted. After reading Dress Codes, you’ll never think of fashion as superficial again—and getting dressed will never be the same.
“I think that Dress Codes is long overdue. Clothing is at the heart of culture, indeed it is almost a definition of what we mean by the term culture, a constructed but ever changing expression of social relationships, beliefs and ideologies. We should all, as Richard Thompson Ford does so magnificently within this book, be taking fashion much more seriously.” – Ruth Goodman
More information is available here.
-- Karen Tani
Thursday, February 11, 2021
On February 23, 2021, at 2 p.m. EST, the American Historical Association will host an event titled “Our Country Is Full”: Roots and Consequences of America’s 1921 Immigration Act 100 Years Later."
Chair: Erika Lee, University of Minnesota
Panel: Ashley Johnson Bavery, Eastern Michigan University; Linda Gordon, New York University; Alexandra Minna Stern, University of Michigan, Ann ArborRegister here.
100 years ago, the US passed the Emergency Quota Act of 1921. Together with the 1924 Immigration Act, it inaugurated an unprecedented era of immigration restriction and discrimination in immigration law. With xenophobia on the rise globally, this timely roundtable will explore the roots and the consequences of immigration restriction.
Joint with the Immigration and Ethnic History Society and the Committee on Lesbian, Gay, Bisexual, and Transgender History.
-- Karen Tani
Sascha Auerbach (University of Nottingham) has published Armed with Sword and Scales: Law, Culture, and Local Courtrooms in London, 1860-1913 with Cambridge University Press. From the publisher:
In the mid-eighteenth century, author and magistrate Henry Fielding adjudicated cases of theft, assault, and public disorder from his London home on Bow Street. By the middle of the nineteenth century, Fielding's modest 'police office' had expanded to become the most prolific court system in Britain and the cornerstone of criminal and civil justice in the metropolis. Sascha Auerbach examines the fascinating history of this institution through the lens of 'courtroom culture' – the combination of formal statute and informal custom that guided everyday practice in the London Police Courts. He offers a new model for understanding the relationship between law, culture, and society in modern Britain and illuminates how the local courtroom became a crucial part of everyday life and thoroughly entangled with popular representations of justice and morality.
Praise for the book:
"This lively social history of the London courtroom treats it as a space of encounter between the modern self and the modern state. British law-and-order values were shaped by Victorian 'courtroom culture' and the ordinary people - including working-class women - for whom it served as a site of both contest and community." - Antoinette Burton
"An authoritative and engaging study of a key institution of the modern British state, whose importance has been largely overlooked. The book takes an admirably expansive view, looking at how the stipendiary courts functioned, how they were portrayed and how they served different constituencies, including those of gender and class." - Jennifer Davis
"Victorian police courts were sites of education, disputation, score-settling and problem-solving, where moral prescriptions and life lessons were issued, contested, and avidly chronicled by a growing local press. Sascha Auerbach's authoritative, deftly written and entertaining account shows how central and significant this little-understood institution was to the lives of the working class of Victorian London." - John Davis
"An ambitious study of Victorian and Edwardian crime and criminal law, focused on the least studied, but crucially important, summary 'police' courts: their magistrates, their clientele, and their audiences. Triangulating from the perspectives offered by criminal statistics, parliamentary reports, and particularly the popular and elite press, the book seeks to explain the 'courtroom culture' of a critical institution that mediated class relations. It shows how newspaper representations of summary justice, driven largely but not entirely by commercial competition, evolved during great changes in Victorian society and London's municipal government." - Douglas Hay
Further information is available here.
Wednesday, February 10, 2021
Claire Priest, Yale Law School, has published Credit Nation: Property Laws and Institutions in Early America (Princeton University Press):
In this major new history of early America, Claire Priest describes how the British Parliament departed from the customary ways that English law protected land and inheritance, enacting laws for the colonies that privileged creditors by defining land and slaves as commodities available to satisfy debts. Colonial governments, in turn, created local legal institutions that enabled people to further leverage their assets to obtain credit. Priest shows how loans backed with slaves as property fueled slavery from the colonial era through the Civil War, and that increased access to credit was key to the explosive growth of capitalism in nineteenth-century America.
Credit Nation presents a new vision of American economic history, one where credit markets and liquidity were prioritized from the outset, where property rights and slaves became commodities for creditors’ claims, and where legal institutions played a critical role in the Stamp Act crisis and other political episodes of the founding period.
The YLS notice of the publication is here.
Tuesday, February 9, 2021
[We have the following announcement. DRE]
Third Legal Histories of Empire Conference
The organising committee is delighted to confirm the re-scheduled dates for the Conference. When: 29 June-1 July 2022. Where: Maynooth University, Ireland. What: Beyond the Pale: Legal Histories on the Edges of Empires. CFP: Out in the next week or two.
Accommodation and Registration: We will be providing information about accommodation on this website well before the event. Accommodation will be available on campus and at a number of hotels in the area.
What about Covid-19? At present our expectation is that this will be a hybrid conference. We hope that by late June 2022 some of our presenters will be able to attend in person. We also hope to offer options for those who cannot attend. Things may change (particularly with the ‘in person’ part). We will be responsive to the changing circumstances and to health advice. And we will keep you all informed.
Questions: Email Shaunnagh Dorsett (Shaunnagh.Dorsett@uts.edu.au) or Lyndsay Campbell (firstname.lastname@example.org)
To do now? If you have not already, sign up on the right (at lhbe.org) for email notifications. We will not spam you. We will let you know only what you need to know when you need to know it!
Wesley Cheney (Bates College) has published "Threats to Gong: Environmental Change and Social Transformation in Northwest China" in Late Imperial China 41:2 (Dec.2020), 45-94. Here is the abstract:
This article examines legal cases centering on the management of communal resources along the Tao River watershed during the Qing dynasty. Local commons, or gong holdings, had lasted for generations, but frayed when faced with subsistence pressures, demographic changes, and market penetration. Lineages could not maintain pastures if members’ own shrinking holdings made it difficult to put food on the table. Villages could not enforce regulations if outsiders were not bound by communal norms. And groups could not set aside forests if commercialization displaced local cultural values for prices, communally-held woodlands for units of timber. Focusing on village-level practices, this article argues that gong regimes were, above all, a matter of social relationships. Beginning in the eighteenth century, these relationships became strained as material conflicts were inflected by increasingly violent articulations of intercommunal, and often ethnic, difference. Behind the ethnicized brutality of the 1860s lay these long-term conflicts between different modes of production.
Prof. Cheney was a Hurst Institute fellow in 2017. Further information is available here.
Monday, February 8, 2021
The Southern and Western Prehistory of “Liberty of Contract”: Revisiting the Path to Lochner in Light of the New History of American Capitalism
Gabrielle E Clark
Race and Relevance: Arthur Garfield Hays and the Integration of the American Bar Association, 1938-1943
Richard F Hamm
Citizenship in Empire: The Legal History of U.S. Citizenship in American Samoa, 1899-1960
Gendering Citizenship and Decolonizing Justice in 1960s Ghana: Revisiting the Struggle for Family Law Reform
Katie Donington, The Bonds of Family: Slavery, Commerce and Culture in the British Atlantic World Matilde Cazzola
Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire
Taylor Lauren Frazier
Susan Bartie, Free Hands and Minds: Pioneering Australian Legal Scholars
Sunday, February 7, 2021
Tamika Y. Nunley, Oberlin College, has published At the Threshold of Liberty: Women, Slavery, and Shifting Identities in Washington, D.C. (University of North Carolina Press, 2021):
Here is an endorsement:
Consulting newspapers, government documents, letters, abolitionist records, legislation, and memoirs, Tamika Y. Nunley traces how Black women navigated social and legal proscriptions to develop their own ideas about liberty as they escaped from slavery, initiated freedom suits, created entrepreneurial economies, pursued education, and participated in political work. In telling these stories, Nunley places Black women at the vanguard of the history of Washington, D.C., and the momentous transformations of nineteenth-century America.
"Tamika Y. Nunley has written a nuanced, humane, and powerful history of Black women's freedom-making in Washington, D.C. At the Threshold of Liberty is a major contribution."--William G. Thomas III, author of A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War–Dan Ernst