Wednesday, March 31, 2021

Michael Stolleis (1941-2021)

Michael Stolleis, an Honorary Fellow of the American Society for Legal History since 2001, has died.  Here is the notice of the Max Planck Institute for Legal History and Legal Theory:

Michael Stolleis passed away in Frankfurt on 18 March 2021, just a few months before his 80th birthday. The Max Planck Institute owes him a great deal. Since joining the Max Planck Society in 1991, he shaped our Institute like no other. He led it alone for many years, and even after his retirement, he took on the responsibility again. His approachability, his unconditional reliability and his rhetorical elegance have been exemplary for many members of staff. Without Michael Stolleis, we would not have this new building on the Westend Campus, something he was always quite pleased about – and without him, we would likely no longer exist as an Institute.

We have placed a book of condolence in the foyer of the Institute until the 16 April, which Institute staff members are invited to sign. We will also include letters in the book that are submitted to us; they can be addressed to the Managing Director Thomas Duve, for the attention of Nicole Pasakarnis.
Thomas Duve's obituary is here

--Dan Ernst.  H/t: DS

Welcome, Samuel Fury Childs Daly!

 We are delighted to welcome our guest blogger for the month of April: Samuel Fury Childs Daly (Duke University). 

Professor Daly is a historian of twentieth-century Africa. His research combines the methods of legal, military, and social history to examine the post-independence period in both West and East Africa. He is the author of A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020), a study of the Biafra War (1967-70). Using an original body of legal records from the secessionist Republic of Biafra, the book looks at how technologies, survival practices, and moral ideologies emerging from the fighting shaped how crime was practiced and perceived after Biafra's defeat. Connecting the violence of the battlefield to violent crime, it sheds new light on law and politics in Africa after colonialism. 

Prof. Daly's current project is a transnational history of military desertion over the longue durée. From desertion in 17th-century Kongo armies to the African experience in the world wars, this project reveals how leaving the battlefield could be a productive act. At many points in African history, deserters founded communities, created new social orders, and generated fresh ideas about honor and obligation. 

Prof. Daly's other research interests include the global history of drug trading, customary law in the British empire, and the history of policing and prisons.

Welcome, Professor Daly!

--Mitra Sharafi

Van Cleve to Speak on Constitutional Reform

On Friday, April 2, 2021 - 12:00 p.m. to 1:00 p.m. EDT, the National Archives hosts a session on Making a New American Constitution, by George William Van Cleve.  He will explore "the flaws in the United States Constitution that obstruct reforms urgently needed for national unity, proposes amendments, and shows that a new constitutional convention is essential to achieve them. Joining Van Cleve will be professors David Tanenhaus and Julian Maxwell Hayter.”

--Dan Ernst

Tuesday, March 30, 2021

Repatriated Women: A Digital Project

We have the following via "The Twelve Key," the blog of “Claire Kluskens, a Census/Genealogy Subject Matter Expert and Digital Projects Archivist at the National Archives and Records Administration (NARA), Washington, DC”:

Staff members at the National Archives at Chicago are tagging various records series in Record Group 21, Records of District Courts of the United States, to make them more accessible to a wider audience.

One of these series is the U.S. District Court, Detroit, Repatriation Records, 1918-1970 (National Archives Identifier 1150838). Between 1907 and 1922, women lost their U.S. citizenship if they married a foreign national. Later, many women wished to regain their U.S. citizenship. Depending upon when they applied, the women were required to file either a Petition for Naturalization or take the Oath of Allegiance. This series primarily includes the latter document.
More.  Dan Ernst.  H/t: JG

Sawyer on Originalism, the South, and the New Right

We recently noted Calvin Terbeek’s article on the racial politics of originalism and now note another work on the same topic, Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr, by Logan Sawyer, III, University of Georgia School of Law, in the Journal of Policy History 33:1 (January 2021): 32-59 :

Sam Ervin (LC)
Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other conservative southerners explain to outsiders and to themselves why they shifted from support for an interventionist state powerful enough to enforce segregation to an ideology founded on individual rights and liberty. It thus eased the South’s integration with the emerging New Right.

--Dan Ernst

Ramnath on citizenship & decolonization

 Kalyani Ramnath (Harvard University) has published "Histories of Indian Citizenship in the Age of Decolonisation," Itinerario (2021), 1-22. The piece explores the following three books: 

Oliver Godsmark, Citizenship, Community and Democracy in India: From Bombay to Maharashtra, c. 1930–1960 (London: Routledge, 2018)

Uditi Sen, Citizen Refugee: Forging the Indian Nation after Partition (Cambridge: Cambridge University Press, 2018)

Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise (Cambridge: Cambridge University Press, 2018)

Here's the abstract: 

This essay discusses the important contributions of three new works on Indian citizenship by Ornit Shani, Uditi Sen, and Oliver Godsmark. Their books discuss the territorial partition of the subcontinent into India and Pakistan in 1947, the framing and inauguration of the Indian Constitution in 1950, the preparation of voter rolls and the first democratic elections, and linguistic reorganisation of Indian states in 1956, alongside questions of refugee rehabilitation, counterinsurgency measures and rising ethnonationalisms. The emphasis is not only on the legal regimes of national citizenship, but also how it is unevenly mapped and experienced. This emphasis on territoriality is an invitation to ask questions about continuity and change in the transition from empires to nation-states, as well as invented pasts and imagined futures that transcend national borders set up after the end of colonial rule.

Further information is available here.

--Mitra Sharafi 

Monday, March 29, 2021

Daly on de Smith's "Judicial Review of Administrative Action"

Paul Daly, University of Ottawa, has posted de Smith’s Judicial Review of Administrative Action (Stevens & Sons, London, 1959), which is forthcoming in Leading Works in Public Law, ed. O'Brien & Yong:

Stanley A. de Smith (wiki)
 In his classic text, Judicial Review of Administrative Action, Professor de Smith drew out from the prerogative writs a body of general principles relating to judicial review of administrative action.  Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. His landmark work set the scene for the development of a common law tapestry of judicial review of administrative action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law.

I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”).  Subsequently, I explain the background against which the text was written (“The Context).  I then consider its importance in the development of contemporary administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of administrative action (“The Legacy”).

In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of administrative law.
–Dan Ernst

Sunday, March 28, 2021

Michael de Laval Landon (1935-2021)

Michael de Laval Landon, professor emeritus at the University of Mississippi, passed away at his home in Oxford on Tuesday.  He went emeritus in 2009.  His publications included The Triumph of the Lawyers: Their Role in English Politics, 1678-1689 (1970); The Honor and Dignity of the Profession: A History of the Mississippi State Bar Association, 1906-1976 (1979); Erin and Britannia: The Historical Background to a Modern Tragedy (1981); and The University of Mississippi School of Law: A Sesquicentennial History (2006).

I was not to surprised to learn from his obituary and another notice that, in addition to teaching and publishing scholarship, Professor Landon actively served his church and local government.  I first encountered him when, during his long service as Secretary-Treasurer of the American Society for Legal History (1988-1997), I chaired the Local Arrangements Committee in 1994 and got to know him as part of the Society’s Old Guard, who came to legal history because of the allure of the common-law tradition but stayed to do the administrative chores that kept a learned society run wholly by volunteers going. 

Since Professor Landon left the Secretary-Treasurership, the leadership of the ASLH has diversified beyond what I could have imagined when I met him.  If word of his death is an occasion for reflecting upon how much stronger the field of legal history is as a result, it is also a moment for recalling how much it was sustained because scholars like him did their part.

--Dan Ernst

Saturday, March 27, 2021

Weekend Roundup

  • "Rhonda Y. Williams, the John L. Seigenthaler Professor of American History, will deliver the next lecture in Vanderbilt Law School’s Dean’s Lecture Series on Race and Discrimination. The online event will be on Wednesday, March 31, beginning at noon CT."  More.
  • “Between 1939 and 1941, the Works Progress Administration collaborated with the New York City Tax Department to collect photographs of most buildings in the five boroughs of New York City. In 2018, the NYC Municipal Archives completed the digitization and tagging of these photos. This website places them on a map."  H/t: JQB
  • Maddie Burakoff on Wisconsin’s 1921 Equal Rights Law and La Follette Progressivism.  A video celebrating the legal legacy of Tiera Farrow, Kansas City’s pathbreaking female lawyer (41KSHB). Renee Knake Jefferson and Hannah Brenner Johnson on the women shortlisted for the Supreme Court before Sandra Day O'Connor (The Hill).
  • ICYMI: The filibuster's racist history (Vox).  Discrimination against Asian women has long history (AJC).  Julian Davis Mortenson and Nicholas Bagley discuss “Delegation at the Founding” with Mark Joseph Stern (Slate).  FDR and the REA brings electricity to Northern Michigan (Ticker).

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

Friday, March 26, 2021

Chelvanayakam archive launched

The S. J. V. Chelvanayakam Fonds, a new archive hosted by the University of Toronto Scarborough, is now available here. S. J. V. Chelvanayakam was a Tamil lawyer and leader in mid-20th-c. Sri Lanka. His papers have been preserved and donated by his descendants. The collection covers 1921-88 (mostly 1960s-70s), and is in Tamil (over 50%), Sinhala (a small %), and English. It consists of 664 file folders, which is approximately 16,480 pages. About a quarter has currently been digitized. 

Here is the finding aid. Here is the digitized material. Digitization is ongoing, so it is worth checking back periodically for new documents.  

The launch event took place online on Feb.26, 2021. The video will soon be made available online.

--Mitra Sharafi

Thursday, March 25, 2021

TerBeek on Brown & originalism's racial origins

Calvin TerBeek (University of Chicago) has published the following article: " 'Clocks Must Always Be Turned Back': Brown v. Board of Education and the Racial Origins of Constitutional Originalism," American Political Science Review (published online on 16 March 2021). Here's the abstract:

The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of a legitimating rather than an originating role for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.

Further information is available here.  Eric Segall has commented on Professor Terbeek's article over at Dorf on Law.  H/t JQB.

--Mitra Sharafi 

Wednesday, March 24, 2021

YLJ CFP: Law of the Territories

 [The Yale Law Journal has announced the following Call For Papers.  DRE]

Special Issue on the Law of the Territories

Date Posted: March 23, 2021; Submission Deadline: July 15, 2021

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131's Special Issue.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people-98% of whom are racial or ethnic minorities-live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States's annexation and governance of its colonies. The Court's holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law-and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to:

  • the relationship between federalism and empire;
  • the challenge of cultural accommodation within the United States's constitutional framework;
  • the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
  • the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
  • and the promises and pitfalls of territorial autonomy.

Eligibility and Submission Details.  The Journal invites submissions from both established and emerging scholars. We also welcome submissions from practitioners, jurists, students, and others with special expertise on the territories. Consistent with our Submissions Guidelines, we will not review Articles or Essays written by current J.D. students at Yale Law School or authors who were J.D. students at Yale Law School at any time during Volume 131's submissions window. We specifically encourage authors from the territories to submit.

For Articles, we strongly encourage submissions of fewer than 25,000 words, including footnotes. For Essays, we strongly encourage submissions of fewer than 15,000 words, including footnotes.

The deadline to submit an Article or Essay is July 15, 2021. To submit, please use our online submission system. If this is your first time using our submission system (launched in February 2021), please make a new account by clicking "Not a member?" on the login page. When you are asked to select a "Submission Type," select "Special Issue: Law of the Territories" (do not select "Article" or "Essay").

Please direct questions about this Special Issue to the Managing Editors, Josh Altman (joshua.altman@yale.edu) and Sammy Bensinger (samantha.bensinger@yale.edu).

Schwartz and Mikhail on Exaggerating Madison

David S. Schwartz, University of Wisconsin Law School, and John Mikhail, Georgetown University Law Center, have posted The Other Madison Problem, which is forthcoming in volume 89 of the Fordham Law Review:

James Madison (NYPL)
The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. Moreover, the ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

--Dan Ernst

Tuesday, March 23, 2021

DC Circuit Historical Society Seeks Executive Director

The Historical Society of the District of Columbia Circuit is seeking a new Executive Director. This position is the primary staff employee of the Historical Society, supporting and facilitating the work of the Officers, Directors, and Committees of the Board, maintaining the Society’s office, books and records, and interfacing with the judges and staff of the Courts of the D.C. Circuit, and the community. The Executive Director is a part-time, salaried employee, reporting directly to the President of the Society.  More.

--Dan Ernst

Hearne on the sex trade in the Russian empire

Siobhán Hearne (Durham University) published the following article last year: "Prosecuting Procurement in the Russian Empire," Journal of Social History 54:1 (2020), 185-209. Here's the abstract: 

Concern about the issue of forced prostitution reached its height in the Russian empire (as elsewhere in Europe and the Americas) at the turn of the twentieth century, as part of the wider international "white slave" panic. In 1909, new antiprocurement statutes were incorporated into the Russian empire's Criminal Code to ensure that those who forced, coerced, or encouraged young women to enter the commercial sex industry felt the full force of the law. This article uses a case study of the Russian empire's Estonian provinces (Estliand and Lifliand) to highlight the regional nature of Russian imperial experience. Prosecuting procurement was aligned with the priorities of local government, and the authorities in Revel' (Tallinn) and Iu'rev (Tartu) used the issue of procurement to bolster their revenue. Here, the statutes gave the authorities additional tools for targeting individuals, such as managers of unlicensed brothels, who deprived the government of the income it generated from regulating the commercial sex industry. Drawing on court cases from the early 1910s, this article also examines the interaction of lower-class people with the state, their engagement with the legal system, their knowledge of the law, and the rhetorical strategies they employed to in their attempts to secure specific outcomes.

Further information is available here.

--Mitra Sharafi 

Monday, March 22, 2021

Paxton-Turner on Continental Originalism

Ashlee Paxton-Turner has posted Continental Originalism: Keeping Our Republic:

Much ink has been spilled on originalism. This we all know. If we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning of the Constitution is this idea of securing the nation’s survival and preserving our union. For all that has been written on originalism, the key theme of union preservation has been consistently overlooked. And when we do not talk about union preservation, we are not faithfully answering what the words of the Constitution meant when they were drafted. Making union preservation our lodestar can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Plainly put, until we start taking the theme of union preservation seriously, we continue to risk our ability to keep our republic.

--Dan Ernst

Edling, "Perfecting the Union"

Oxford University Press has published Perfecting the Union: National and State Authority in the US Constitution (Dec. 2020), by Max M. Edling (King's College London). A description from the Press:

For most of the twentieth century, the American founding has been presented as a struggle between social classes over issues arising primarily within, rather than outside, the United States. But in recent years, new scholarship has instead turned to the international history of the American union to interpret both the causes and the consequences of the US Constitution.

In Perfecting the Union, Max M. Edling argues that the Constitution was created to defend US territorial integrity and the national interest from competitors in the western borderlands and on the Atlantic Ocean, and to defuse inter-state tension within the union. By replacing the defunct Articles of Confederation, the Constitution profoundly transformed the structure of the American union by making the national government more effective. But it did not transform the fundamental purpose of the union, which remained a political organization designed to manage inter-state and international relations. And in contrast to what many scholars claim, it was never meant to eclipse the state governments.

The Constitution created a national government but did not significantly extend its remit. The result was a dual structure of government, in which the federal government and the states were both essential to the people's welfare. Getting the story about the Constitution straight matters, Edling claims, because it makes possible a broader assessment of the American founding as both a transformative event, aiming at territorial and economic expansion, and as a conservative event, aiming at the preservation of key elements of the colonial socio-political order.
A sample of advance praise:

"A bold and bracing reinterpretation of America's founding. In examining anew the determination of the Framers to preserve the powers of the states, Max Edling alters the prism through which we view the forces of change and continuity, equality and subjugation, and strength and weakness that defined America's beginning. The illumination that Perfecting the Union generates is often startling." -- Gary Gerstle

"A fascinating, learned exploration of the conceptual significance of 'Union' in the framing period. Edling provocatively argues for the Constitution as a renewed compact of union, with a relatively effective fiscal-military federal government and reinvigorated state governments. This deeply rewarding book provides a refreshing new, synthetic account of the creation of the United States." -- Mary Sarah Bilder

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

--Karen Tani

Saturday, March 20, 2021

Weekend Roundup

  • Do you have thoughts on the academic letter of recommendation (LOR) system? Our blogger Mitra Sharafi and Ronit Stahl welcome your feedback here by Friday, March 26. This is for a LHB blogpost and/or a piece elsewhere.
  • In the opinion pages of the New York Times, historian Gabriel Winant (University of Chicago) makes the case for better treatment of care workers and stronger government regulation of the care economy,
  • Via Balkinization: Akhil Amar (Yale Law School) has started a podcast on "America's Constitution.

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

Friday, March 19, 2021

Bruce on Epic Systems and Labor Legal History

Stephen Bruce, a Washington, D.C. attorney, has posted Epic Errors: The Supreme Court Ignores the History of Collective Actions and Decades of Struggle to Establish 'Living Wage' Standards:

If an employer can take away the right of “acting together” from its employees and force them to proceed only “individually” to enforce rights related to their wages and other terms and conditions of employment, the employer has interfered with or restrained the “collective power of individuals” that Alexis de Tocqueville observed in Democracy in America. The Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935, and the Fair Labor Standards Act of 1938 are all New Deal era statutes – all of which are still in force today – which provide for the right of employees to proceed collectively or in concert. These statutes were the culmination of decades of struggle in workplaces and communities, state and federal legislatures, and state and federal courtrooms. Each rests on detailed Congressional findings that individual employees do not “commonly” enjoy “actual liberty of contract” or “full freedom of association” and have an “inequality in bargaining power” vis a vis the employer, and that “collective” actions to resolve disputes over the terms and conditions of employment are in the interest of employees and the public. And while it is rarely noticed today, from 1923 to 1925, the Supreme Court issued three unanimous decisions on the unconstitutionality of “compulsory arbitration,” holding that compulsory arbitration implicates the due process and liberty of contract protected by the Fourteenth Amendment, except in temporary emergencies. See, e.g., Charles Wolff Packing Co. v. Court of Indus. Rel., 267 U.S. 552, 565-66 (1925).

In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624-25 (2018), a 5-4 majority opinion, written by the then-new Justice Neil Gorsuch, upheld compulsory arbitration agreements with “class action waivers” in three companion cases, even though the waivers clearly constituted unbargained-for restraints on the collective enforcement action provided in Section 16(b) of the Fair Labor Standards Act. All of the cases involved the right to receive overtime pay, which applies even when employees earn more than the minimum wage. In upholding the class/collective action waivers, the majority opinion in Epic displayed a near total ignorance of class and representative actions in “the old, nearly forgotten world before 1966," Elizabeth K. Spahn, “Resurrecting the Spurious Class,” 71 Geo. L.J. 119, 120 (1982). It also displayed a woeful ignorance of the history of the use of “liberty of contract” theories to block the enforcement of wage and hour standards, and Congress’ rejection of those theories in the legislative findings and declarations of policies of the New Deal legislation.
--Dan Ernst

Hollis-Brusky & Wilson, "Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture"

 Oxford University Press has published Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture (Oct. 2020), by Amanda Hollis-Brusky (Pomona College) and Joshua C. Wilson (University of Denver). A description from the press:

Fueled by grassroots activism and a growing collection of formal political organizations, the Christian Right became an enormously influential force in American law and politics in the 1980s and 90s. While this vocal and visible political movement has long voiced grave concerns about the Supreme Court and cases such as Roe v. Wade, they weren't able to effectively enter the courtroom in a serious and sustained way until recently. During the pivot from the 20th to the 21st century, a small constellation of high-profile Christian Right leaders began to address this imbalance by investing in an array of institutions aimed at radically transforming American law and legal culture.

In Separate But Faithful, Amanda Hollis-Brusky and Joshua C. Wilson provide an in-depth examination of these efforts, including their causes, contours and consequences. Drawing on an impressive amount of original data from a variety of sources, they look at the conditions that gave rise to a set of distinctly "Christian Worldview" law schools and legal institutions. Further, Hollis-Brusky and Wilson analyze their institutional missions and cultural makeup and evaluate their transformative impacts on law and legal culture to date. In doing so, they find that this movement, while struggling to influence the legal and political mainstream, has succeeded in establishing a Christian conservative beacon of resistance; a separate but faithful space from which to incrementally challenge the dominant legal culture.

Both a compelling narrative of the rise of Christian Right lawyers and a trenchant analysis of how institutional networks fuel the growth of social movements, Separate But Faithful challenges the dominant perspectives of the politics of law in contemporary America.

Advance praise:

"Separate But Faithful is a fascinating, exhaustively researched, and highly readable story of the rise and challenges faced by three ultraconservative religious law schools-Ave Maria, Liberty, and Regent-and their mission driven faculty and students. It is also theoretically rich, focusing especially on 'support structure' theory in relation to social movements and law, and full of insights about legal hierarchies, the structure of legal education, and the role of law in social change. In short, it is a superb contribution as narrative and theory-builder." -- Bryant Garth

"Hollis-Brusky and Wilson's book, Separate But Faithful, is a comprehensive account of a legal movement on the rise, and one that has obtained significant positions of authority in government, including the courts. Their book is a must read for those seeking to understand the direction of the courts and the law, and how legal change happens." -- Leah Litman

More information is available here. And you can listen to an interview with the authors here, at New Books Network.

-- Karen Tani

Ma on abortion in China

 Ling Ma (State University of New York, Geneseo) published the following article this past fall: "Bringing the law home: abortion, reproductive coercion, and the family in early twentieth-century China," Women's History Review (published online: 24 Oct. 2020). Here's the abstract: 

This article examines how pregnant women, family heads, and the judiciary renegotiated reproductive space when abortions, both voluntary and coerced, became crimes in early twentieth-century China. Drawing on legal case records, it shows that some pregnant women, when confronted with domestic abuse or conflicts, leveraged the law against coerced abortion to secure the intervention of the state. However, the judiciary’s unwillingness or inability to arbitrate against patriarchal interests diminished the silver lining that women discovered in the criminalization of abortion. As a result, women received less real benefit from a law that had both protective and oppressive potential, and they bore disproportionately more repercussions for offenses that occurred often as a result of collective decision-making. This article demonstrates that, while the judiciary deepened its penetration of society, stern punitive measures alone failed to eliminate ‘aberrant’ reproduction, solve reproductive conflicts, or produce a sustainable new reproductive order.

Further information is available here.

--Mitra Sharafi 

Thursday, March 18, 2021

Fleming, "Ownership and Inheritance in Sanskrit Jurisprudence"

Oxford University Press has published Ownership and Inheritance in Sanskrit Jurisprudence (Feb. 2021), by Christopher T. Fleming (British Academy Postdoctoral Fellow, University of Oxford). A description from the press:

Ownership and Inheritance in Sanskrit Jurisprudence provides an account of various theories of ownership (svatva) and inheritance (dāya) in Sanskrit jurisprudential literature (Dharmaśāstra). It examines the evolution of different juridical models of inheritance--in which families held property in trusts or in tenancies-in-common--against the backdrop of related developments in the philosophical understanding of ownership in the Sanskrit text-traditions of hermeneutics (Mīmāṃsā) and logic (Nyāya) respectively.

Christopher T. Fleming reconstructs medieval Sanskrit theories of property and traces the emergence of various competing schools of Sanskrit jurisprudence during the early modern period (roughly fifteenth-nineteenth centuries) in Bihar, Bengal, and Varanasi. Fleming attends to the ways in which ideas from these schools of jurisprudence shaped the codification of Anglo-Hindu personal law by administrators of the British East India Company during the late eighteenth and early nineteenth centuries. While acknowledging the limitations of colonial conceptions of Dharmaśāstra as positive law, this study argues for far greater continuity between pre-colonial and colonial Sanskrit jurisprudence than accepted previously. It charts the transformation of the Hindu law of inheritance--through precedent and statute--over the late nineteenth, twentieth, and early twenty-first centuries.

More information is available here. And you can find an interview with the author here, at New Books Network.

-- Karen Tani

Rubin on the deviant prison

 Ashley T. Rubin (University of Hawaii) has published The Deviant Prison: Philadelphia's Eastern State Penitentiary and the Origins of America's Modern Penal System, 1829-1913 with Cambridge University Press. From the publisher: 

Early nineteenth-century American prisons followed one of two dominant models: the Auburn system, in which prisoners performed factory-style labor by day and were placed in solitary confinement at night, and the Pennsylvania system, where prisoners faced 24-hour solitary confinement for the duration of their sentences. By the close of the Civil War, the majority of prisons in the United States had adopted the Auburn system - the only exception was Philadelphia's Eastern State Penitentiary, making it the subject of much criticism and a fascinating outlier. Using the Eastern State Penitentiary as a case study, The Deviant Prison brings to light anxieties and other challenges of nineteenth-century prison administration that helped embed our prison system as we know it today. Drawing on organizational theory and providing a rich account of prison life, the institution, and key actors, Ashley T. Rubin examines why Eastern's administrators clung to what was increasingly viewed as an outdated and inhuman model of prison - and what their commitment tells us about penal reform in an era when prisons were still new and carefully scrutinized.

 Praise for the book:

"Ashley Rubin's fascinating new book is a powerful reinterpretation of one of prison history's best-known episodes: the early 19th-century competition between 'silent' and 'separate' systems of penitentiary discipline. With a sociologist's grasp of organizational dynamics and a historian's concern for individual agency and contingent events, Rubin retells the remarkable story of the world-famous Eastern State Penitentiary with new depth and insight. The result is a sociologically-informed history that reveals the abiding significance of this 'deviant prison' and uses its flawed idealism to point up the abject deformation of American prisons in the age of mass incarceration." - David Garland

"In a compelling analysis, Ashley Rubin examines how a 'deviant' commitment to solitary confinement persisted in one of the earliest American prisons, Eastern State Penitentiary. She convincingly argues that Eastern State's very outlier status undergirded the deep, decades-long institutional commitment to a doomed system of punishment, shedding new light on how penal aberrations speak to both past and current state punishment practices." - Mona Lynch

"Ashley Rubin has set a new bar for historical social science. Through dogged archival research and incisive analysis, she explains why Eastern State Penitentiary retained its unique system of prison discipline for so long: prison administrators couldn't let go because their status depended on the survival of the deviant prison. Demonstrating the power of personal institutionalization, Rubin shows that forces inside the criminal justice system shape both penal history and paths to change." - Joshua Page

Further information is available here.

--Mitra Sharafi

Wednesday, March 17, 2021

Ottley, Zorn & Weisbrot's "Making Law in Papua New Guinea"

Making Law in Papua New Guinea: The Colonial Origins of a Postcolonial Legal System, by Bruce L. Ottley, DePaul University College of Law,  Jean Zorn, CUNY School of Law, and David Weisbrot, University of Sydney, has been published by the Carolina Academic Press:

In the waning days of colonialism in Papua New Guinea, much of the rhetoric from local leaders pushing for self-determination focused on replacing the imposed colonial legal system with one that reflected local customs, understandings, relationships, and dispute settlement techniques—in other words, a "uniquely Melanesian jurisprudence." After independence in 1975, however, that aim faded or began to be seen as an impossible objective, and PNG is left with a largely Western legal system.

In this book, the authors—who were all directly involved in law teaching, law reform, and judging during that period—explore the potent and enduring grip of colonialism on law and politics long after the colonial regime has been formally disbanded. Combining original historical and legal research, engagement with the scholarly literature of dependency theory and postcolonial studies, and personal observation, interviews, and experience, Making Law in Papua New Guinea offers compelling insights into the many reasons why postcolonial nations remain imprisoned in colonial laws, institutions, and attitudes.
–Dan Ernst

Arlyck on Delegation and the Remission Act of 1790

Kevin Arlyck, Georgetown University Law Center, has posted Delegation, Administration, and Improvisation, which is forthcoming in the Notre Dame Law Review:

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit.

As this article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications—systematically assessed here for the first time—is remarkably thin. More importantly, this article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government’s responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the new nation faced.

To recapture early delegation’s dynamism, this article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce—power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom—and even the constitutionality—of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it.

This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress’s deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation’s boundaries were apparently quite expansive.
--Dan Ernst

Roth on incest, abortion, and infanticide in Brazil

Cassia Roth (University of Georgia) published the following article this past fall: "In the family way: incest, fertility control, and the power of the patriarchal family in Brazil," Women's History Review (published online 24 Oct. 2020). Here is the abstract: 

This article argues that the legal prosecution of fertility control, defined here as abortion and infanticide, reshaped both governmental and individual patriarchal structures in turn-of-the-century Brazil. The article uses its then-capital region of Rio de Janeiro as a case study to explore the patriarchal parameters of the state during important political transitions in Brazilian history. Analyzing cases of incest that resulted in abortion or infanticide, the article shows that the Brazilian criminal justice system only prosecuted incest in conjunction with fertility control. Fertility control, unlike incest, undermined the patriarchal pattern because it threatened a societal order that limited women’s bodies to reproducing the nation. The article argues that only when incest was followed by fertility control did the state’s patriarchal goals of controlling women’s sexuality and reproduction supercede those of the male head-of-household. The courts only prosecuted men for fertility control when their actions threatened patriarchy more generally.

Further information is available here.

--Mitra Sharafi 

Tuesday, March 16, 2021

Korpiola on Female Legal Scriveners in Coloquios de Historia del Derecho-UAM

[We have the following announcement.  DRE]

We are pleased to invite you to the next session of the Coloquios de Historia del Derecho of the Universidad Autónoma de Madrid, which will take place on Monday, March 22th, at 12am (Madrid time zone), at the Zoom platform.

On this occasion, Professor Mia Korpiola (University of Turku) will deliver the lecture “Moving into the Public Eye: Women and Legal Scrivening in Later Nineteenth-Century Finland.”  Prof. Korpiola’s investigations on this topic have been published, among others, in Legal literacy in Premodern European Societies, ed. Mia Korpiola (Palgrave Macmillan, 2019) and in the book chapter “Attempting to Advocate: Women Entering the Legal Profession in Finland, 1885-1915,” in: New Perspectives on European Women's Legal History, eds. Sara L. Kimble and Marion Röwekamp, pp. 292-318 (Studies in Gender and History, Routledge, New York, 2016).

We will be looking forward to welcoming you in the next session! 

Laura Beck and Julia Solla
Coloquios de Historia del Derecho-UAM

Zoom platform: Meeting ID: 829 1079 8716.  Access code: 609743
Coloquios de Historia del Derecho-UAM 2020-21

Gülel on law-making and the feminist movement in Turkey

Devran  (University of Portsmouth) published the following article late in 2019: "Feminist movement and law-making in Turkey: a critical appraisal from 1998 to 2018," Women's History Review (published online: 2 Dec. 2019). Here's the abstract: 

Between the late 1990s and early 2000s, Turkey witnessed an era of reform generally known as the era of ‘Europeanisation’. Since the late 2000s, it has experienced a de-Europeanisation and authoritarian transformation. This study explores the ways this changing political context has affected the feminist movement’s influence on law-making. It adopts a chronological approach starting with the achievements of the movement before the turn of the century and ends with an examination of its impact since the Justice and Development Party (AKP) assumed government. It is based on a range of sources, including 17 semi-structured interviews with leading NGOs and activists. The study contributes to existing scholarship by establishing a clear timeline for feminist advocacy in law-making, and providing activists’ interpretations of challenges or potential areas of success. The study concludes that while the capacity of the feminist movement to influence law-making has been significantly restricted in recent years, there is a women’s alliance fighting to protect earlier achievements in domestic law.

Further information is available here.

--Mitra Sharafi

Monday, March 15, 2021

CFP: British Legal History Conference

[We have the following CFP.  DRE]

Law and Constitutional Change: The 25th British Legal History Conference 2022, in association with the Irish Legal History Society.  Queen's University, Belfast.  6-9 July 2022

Abstracts are invited for the 25th British Legal History Conference which is being run jointly with the Irish Legal History Society and hosted by Queen's University Belfast, on Wednesday 6 July - Saturday 9 July 2022.  

The conference was originally scheduled for 2021. Queen's, Belfast, was given the honour of hosting the BLHC in 2021, because it is a significant year in the "Decade of Centenaries"  in Ireland, north and south, marking both the centenary of the opening in June 1921 of the Parliament of Northern Ireland, established under the Government of Ireland Act 1920, and the centenary of the signing of articles of agreement for the Anglo-Irish Treaty in December 1921, leading to the establishment of the Irish Free State.   The conference theme, "Law and Constitutional Change", was chosen against this background.  The Covid-19 pandemic intervened, making postponement unavoidable.  

Organising the conference in 2022 will, however, allow us to celebrate the half-centenary of the British Legal History Conference, first held in Aberystwyth in 1972.  Our hope is that attendance at the conference can be in person, but this will be kept under review and, if necessary, the option of online attendance/participation will be considered.

Conference papers can examine from any historical perspective the relationship between law and constitutional change. The difficulty of defining constitutional change was noted by the Select Committee on the Constitution in their report, The Process of Constitutional Change (HL Paper 177, 2011, para. 10), but they identified several examples, without being exhaustive: parliamentary sovereignty; the rule of law and the rights and liberties of the individual; the union state; representative government; and state membership of international organisations, such as (then) the EU and the Commonwealth.  These are, of course, only examples and the conference theme will be interpreted in all its breadth.

In the context of present-day analysis of the political and constitutional upheavals in British-Irish relations in the early 1920s, the President of Ireland, Michael D. Higgins, has adopted the Irish word, Machnamh, meaning reflection, contemplation, meditation and thought, for a series of online reflections.  In the spirit of Machnamh, we invite you to join the conversation on law and constitutional change in Queen's, Belfast, in July 2022.

Please note the following rules:

  • If you submitted an abstract in 2020, you must make a fresh submission.
  • Abstracts must be for individual papers only, not for panels. Co-authored papers are acceptable.
  • Only one abstract should be submitted per person.
  • Abstracts must be submitted as Microsoft Word documents using the online portal on the Call for Papers page of the conference website.  Please do not submit by email.
  • Abstracts must not exceed 500 words.

Please indicate if your proposal is contingent on the availability of an option of online participation.  The deadline for submission of abstracts is Monday 30 August 2021.  Queries can be emailed to BLHC-2022-info@qub.ac.uk  At the conference, individual oral presentations will last 15-20 minutes.

We hope to publish the programme on the conference website in October 2021.  Details of plenary speakers will also appear there in due course. Proposals from postgraduate and early career researchers are welcome. Further information about travel to Belfast, accommodation, and so on, will be added to the conference website during 2021-2022.

Poster competition. This, the second joint BLHC - ILHS conference, was proposed by Sir Anthony Hart, retired High Court judge, former president of ILHS and enthusiastic supporter of BLHCs, who died suddenly in July 2019.  A poster competition is planned during the 2022 conference as a tribute to Tony.  There will be two prizes, including one for the PGR/early career category. The prizes are generously funded by the Journal of Legal History and by the Irish Legal History Society.  Details of the competition will be posted on the conference website.

Cummings on Lawyers and the Struggle for LA

Scott L. Cummings, UCLA Law, has published An Equal Place: Lawyers in the Struggle for Los Angeles (Oxford University Press, 2020):

An Equal Place
is a monumental study of the role of lawyers in the movement to challenge economic inequality in one of America's most unequal cities: Los Angeles. Breaking with the traditional focus on national civil rights history, the book turns to the stories of contemporary lawyers, on the front lines and behind the scenes, who use law to reshape the meaning of low-wage work in the local economy.

Covering a transformative period of L.A. history, from the 1992 riots to the 2008 recession, Scott Cummings presents an unflinching account of five pivotal campaigns in which lawyers ally with local movements to challenge the abuses of garment sweatshops, the criminalization of day labor, the gentrification of downtown retail, the incursion of Wal-Mart groceries, and the misclassification of port truck drivers.

Through these campaigns, lawyers and activists define the city as a space for redefining work in vital industries transformed by deindustrialization, outsourcing, and immigration. Organizing arises outside of traditional labor law, powered by community-labor and racial justice groups using levers of local government to ultimately change the nature of labor law itself. 
Cummings shows that sophisticated legal strategy — engaging yet extending beyond courts, in which lawyers are equal partners in social movements — is an indispensable part of the effort to make L.A. a more equal place. Challenging accounts of lawyers' negative impact on movements, Cummings argues that the L.A. campaigns have achieved meaningful reform, while strengthening the position of workers in local politics, through legal innovation. Dissecting the reasons for failure alongside the conditions for success, this groundbreaking book illuminates the crucial role of lawyers in forging a new model of city-building for the twenty-first century.

--Dan Ernst

Saturday, March 13, 2021

Weekend Roundup

  •  A new Talking Legal History is up on the ASLH website. Host Siobhan Barco talks with Joseph E. David about his book Kinship, Law and Politics: An Anatomy of Belonging (CUP, 2020).
  •  In Immigration: What We've Done, What We Must Do, Allison Brownell Tirres, DePaul University College of Law, asks, How can we envision a world where migrants are offered justice?”  The essay appears in Public Books, an online magazine of ideas, scholarship, and the arts.
  • Author’s query: “I am working on a book project intended for general readership on U.S. Attorneys-General in the modern era (from Kennedy to Barr and beyond) and would be interested in speaking to any legal historians doing work on or related to that topic."  Joshua Raff, joshuaraff3@gmail.com.
  • "In his first official action as the [University of South Carolina’s] 29th president, Bob Caslen established the Presidential Commission on University History and charged the group with researching “the complex history of the university.”  More.
  • “With the nation locked in debates over Confederate symbols, the very document that laid out the legal framework of a government built to preserve slavery will spend its 160th anniversary where it spends nearly every other day: quietly tucked away in a library at the University of Georgia”  (AJC).
  • Historians of securities regulation might want to view the SEC Historical Society-sponsored discussion with PCAOB's founding board members.  
  • Yuvraj Joshi, a doctoral candidate at the Yale Law School, has posted Racial Justice and Peace, which is forthcoming in the Georgetown Law Journal.
  • ICYMI: Remembering the Pakistani Lawyers' Movement (GVS).  Eric Jager on The History Behind Demands for "Trial by Combat" (HNN)
  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 12, 2021

Langford and Bryan on the German Free Law Movement

Peter Langford, Edge Hill University, and Ian Bryan, Lancaster University, have posted Kelsen, Weber and the Free Law Movement, which appears in Jahrbuch für Soziologiegeschichte 2020, , 113-145:

The article concentrates upon the emergence, in the first decade of the twentieth century, of the distinctive German language tradition of the sociology of law and, in particular, the early work of Hermann Kantorowicz, as the exemplary representative of the Free Law Movement (Freirechtsbewegung). The Free Law Movement challenges the preceding conception of judicial decision-making of Begriffsjurisprudenz, initiating the wider question of the status and foundation of a theory of law. The challenge is considered through the engagement of Hans Kelsen and Max Weber with Kantorowicz, tracing the appropriation of the insights of the Free Law Movement for a Kelsenian pure theory of positive law and for a Weberian sociology of law.

--Dan Ernst.  H/t: Legal Theory Blog

Monnickendam on Jewish law and early Christian identity

Yifat Monnickendam (Tel-Aviv University) has published Jewish Law and Early Christian Identity: Betrothal, Marriage, and Infidelity in the Writings of Ephrem the Syrian with Cambridge University Press. From the publisher: 

Ephrem, one of the earliest Syriac Christian writers, lived on the eastern outskirtsof the Roman Empire during the fourth century. Although he wrote polemical works against Jews and pagans, and identified with post-Nicene Christianity, his writings are also replete with parallels with Jewish traditions and he is the leading figure in an ongoing debate about the Jewish character of Syriac Christianity. This book focuses on early ideas about betrothal, marriage, and sexual relations, including their theological and legal implications, and positions Ephrem at a precise intersection between his Semitic origin and his Christian commitment. Alongside his adoption of customs and legal stances drawn from his Greco-Roman and Christian surroundings, Ephrem sometimes reveals unique legal concepts which are closer to early Palestinian, sectarian positions than to the Roman or Jewish worlds. The book therefore explains naturalistic legal thought in Christian literature and sheds light on the rise of Syriac Christianity.

Here's the chapter line-up:

Introduction

1. Creating a primary bond: what is betrothal?

2. During betrothal: is premarital cohabitation an option?

3. Creating a marital bond: can rape determine marital status?

4. Breaking a marital bond: what do fornication and adultery do?

5. Discussion and conclusions.

Further information is available here.

--Mitra Sharafi

Thursday, March 11, 2021

Minnesota Post-Doc Fellowship on Racial Justice/Settler Colonialism

 [We have the following from our friends at the University of Minnesota.  DRE]

Park on Conquest and Slavery in the Property Course

K-Sue Park, Georgetown Law, has posted Conquest and Slavery as Foundational to Property Law:

This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history.

First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent.

The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law.

This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.

--Dan Ernst

Wednesday, March 10, 2021

Blumm, Flanagan and White on Right-Sizing the Supreme Court

Michael C. Blumm Lewis & Clark Law School, and Kate Flanagan and Annamarie White, have posted Right-Sizing the Supreme Court: A History of Congressional Changes:

Since the Republican Senate refused to consider President Obama’s nomination of Merrick Garland to the Supreme Court in 2016--coupled with the Trump Administration’s success in filling that seat with Neil Gorsuch, followed by the appointments of Brett Kavanaugh and Amy Coney Barrett--there has been widespread interest in how to balance a suddenly solidly conservative Court majority, one likely to remain so for decades. One way to do so is to expand the size of the Court, an issue the Constitution left to Congress, which exercised that authority repeatedly during the Constitution’s first 80 years. This article examines those mostly forgotten congressional changes to the Court’s size as well as Congress’ more notorious failure during the New Deal. The article reveals that the successful expansions were often due to population growth but always the product of political calculations. Since the U.S. population is now nearly ten times larger than it was when Congress last changed the Court’s size, reconsidering the Court’s size may be an issue ripe for congressional consideration, should the political winds suggest that is possible.

--Dan Ernst

O'Brien on abortion in Mexican history

 Elizabeth O'Brien (Johns Hopkins University) published the following article this past fall: "The many meanings of aborto: pregnancy termination and the instability of a medical category over time," Women's History Review (published online: 27 Oct. 2020). Here's the abstract: 

This article sheds light on an important facet of the history of abortion in Mexico: that is, moments in which doctors and priests reconciled the termination of pregnancy with religious ideologies, thus refracting the concept of abortion through a Catholic lens at different points in time. By underscoring ambivalences in the definition, implementation, and criminalization of abortive procedures, the research demonstrates that Mexican physicians periodically renamed or reconceptualized abortive procedures, thereby legitimizing them while constructing and reimagining the meaning of abortion itself. This allowed doctors to make fertility control compatible with religious ideologies and therefore legible to a range of spiritual and state authorities, but generally without overt challenges to Catholic claims about fetal life. The article argues that these historical cultures of Catholicized abortion—or, to use Morgan and Roberts’s term, ‘regime[s] of moral governance’—laid the historical groundwork for today’s chasm between practice and law.

Further information is available here.

--Mitra Sharafi

Tuesday, March 9, 2021

Fisk and Salter on the Law of Playwrights and Theatre Producers

Catherine Fisk, University of California, Berkeley School of Law, and Brent Salter, Stanford Law School, have posted Assumptions about Antitrust and Freelance Work and the Fragility of Labor Relations in the American Theatre, which is forthcoming in the Ohio State Law Journal:

Lee Shubert (NYPL)
As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era. The revival of theatre after the catastrophe of the pandemic provides an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped organizational structures and mediated relations between stage producers and writers:

Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.

Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.

Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Assumption #1), but it is affirmatively prohibited by federal antitrust law.

Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.

This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, and how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt. The history shows why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.

--Dan Ernst

ASLH Student Research Colloquium 2021

 [We have the following call for applications.  DRE]

ASLH Student Research Colloquium 2021


The American Society for Legal History (ASLH) will host a Student Research Colloquium (SRC) on Wednesday, Nov. 3, and Thursday, Nov. 4, 2021, in New Orleans, Louisiana.  The SRC annually brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress dissertations and articles, under the guidance of distinguished, ASLH-affiliated scholars.

Target applicants include early-post-coursework Ph.D. students and historically minded law students.  Students working in all chronological periods and all geographical fields are encouraged to apply.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have not yet received any formal training in legal history.  A student may be on the program for the annual meeting and participate in the SRC in the same year.

Each participating student will pre-circulate a paper to the entire group.  At the colloquium, faculty directors will lead discussions of  these papers.  

The ASLH will provide at least partial and, in most cases, total reimbursement for travel, hotel, and conference-registration costs.  This year, one SRC participant will be awarded the Herbert Johnson Fellowship, named for a distinguished legal historian and past-president of the ASLH. 

To apply, please submit the following three items to John Wertheimer at srcproposals@aslh.net:

  • a cover letter, describing, among other things, how far along you are and approximately how many years remain in your course of study;
  • an up-to-date CV; and
  • a two-page, single-spaced research statement that begins with a title and proceeds to describe the in-progress research project that you propose to present at the colloquium.

Application deadline: June 1, 2021.