Friday, April 30, 2021

Thank you, Samuel Fury Childs Daly!

We're delighted to have had Samuel Fury Childs Daly (Duke University) join us as guest blogger in April 2021. Many thanks for his multi-part series on documents from Nigeria, drawn from his current book project, Soldier's Paradise: Military Rule in Nigeria. Here are his posts, in chronological order:

Thank you, Professor Daly!

--Mitra Sharafi

Thursday, April 29, 2021

Wolf reviews Cohen's "Saving America's Cities"

Michael Allan Wolf, University of Florida Levin College of Law, has posted Between Jacob(s) and Moses: Ed Logue, Urban Redevelopment Lawyer, which appears in the Journal of Affordable Housing and Community Development Law:

In Saving America’s Cities: Ed Logue and the Struggle to Renew Urban America in the Suburban Age, her thorough, fascinating, Bancroft Award-winning study of the life and work of Ed Logue, Harvard historian Lizabeth Cohen has presented a volume that should sit on every housing and community development lawyer’s bookshelf. I suggest nestling this volume between Jane Jacobs’s 1961 cri de coeur, The Death and Life of Great American Cities, and Robert Caro’s 1975 biographical masterpiece, The Power Broker: Robert Moses and the Fall of New York. This review focuses on the legal aspect of Logue’s oeuvre. Those born in the 1960s and later have no first-hand knowledge of how significant federal dollars and tax expenditures, supplemented by ambitious state and private-sector participation, can dramatically increase the supply of affordable housing and redevelop, in positive and negative ways, large swaths of the urban landscape. For that reason, this review provides ample details concerning Logue’s successes and failures on the ground. 

--Dan Ernst

Shmuely on law and the laboratory

Shira Shmuely (Tel Aviv University) has published the following article: "Law and the Laboratory: The British Vivisection Inspectorate in the 1890s," Law & Social Inquiry (published online on 8 April 2021), 1-31. Here's the abstract: 

The 1876 British Cruelty to Animals Act introduced an unprecedented administrative system to supervise any experiment “calculated to give pain” to a living animal. The act, which was in force for a hundred years, established a tight system of control over animal experimentation, including a small, but vigorous, inspectorate. This article explores the relations between bureaucracy and the production of knowledge through the correspondences, memos, and notes taken by two principal inspectors under the act. The inspectors belonged to the worlds of both law and science. Coming from within the scientific profession, their close ties to medical social circles not only evoked critique but also helped them fulfill their tasks and gain access to research laboratories. Archival records examined here for the first time show that, although the inspectors downplayed animals’ pain in physiological laboratories, the inspectorate played an important role in shaping the experimental space and practice, thus facilitating the production of “ethical scientific facts.” The inspectors’ work modeled the new legal regime of animal experimentation regulation, making them indispensable agents in the act’s coproduction of knowledge and public order.

Further information is available here.

--Mitra Sharafi 

Wednesday, April 28, 2021

Risch and Viney on the 19th-Century American Patent Law Practice

Michael Risch, Villanova University Charles Widger School of Law, and Mike Viney, Colorado State University, has posted The Way Lawyers Worked, which is forthcoming in volume 90 of the University of Cincinnati Law Review:

Court and litigation operations are opaque in the best of times, and the lack of detailed records from the Nineteenth Century makes it even more difficult to learn how lawyers and judges went about their business. This may be one of the reasons why there are very few accounts of the nuts and bolts of 1800s law practice. This article illuminates the development of litigation and the law in the middle of the Nineteenth Century by examining archival court and Patent Office records.

Most accounts of the time focus either on judicial opinions or the relationship of the parties, but few articles focus on how the lawyers and courts went about their business. Unlike today, when court documents are easily available and often widely published, litigation documents were not generally published in the 1800s. We have unearthed examples to learn about the way lawyers (and courts) worked.

Our journey to investigate the workings of lawyers and courts is facilitated by the apple parer, a kitchen tool of varying complexity designed to peel and sometimes slice apples. Using the first few cases involving parers, this article examines the details about how legal practice and legal precedent were formed in a world absent the technologies that facilitate our communication in modern times. The battle between manufacturers to protect apple parer designs gives a detailed peek behind the dusty opinions we read today.

Our newly acquired archival records yield insights that would be unthinkable today: a lawyer arguing a case before his (judge) brother, printed form complaints with handwritten party names, a learned treatise author omitting the key precedent in briefing, a lawyer testifying about communications with his client, and much more.

--Dan Ernst

The Black Book of Justice Holmes

Just out from Talbot Publishing: The Black Book of Justice Holmes: Text Transcript and Commentary, edited by Michael H. Hoeflich, University of Kansas School of Law, and Ross E. Davies, George Mason University:

Justice Oliver Wendell Holmes, Jr. (1841-1935) is one of the most significant figures in American history, both as a judge and as a legal scholar. He was also, without question, one of the most well-read and erudite jurists of his age. Justice Holmes kept his personal notes in a volume that he called the Black Book. For more than 50 years, Holmes filled his Black Book with lists of books he read (including detailed notes on some of them), accounts of his travels, and even observations about flower blooms in Washington, DC, where he served on the U.S. Supreme Court from 1902 to 1932, and where he lived (except for summers at his place in Beverly Farms, MA) - and continued to make entries in his Black Book - until his death in 1935. This volume gives insight into his mind and activities for a half-century.

Here's the TOC: 

The Meaning of “Holmesian”
Stephen R. McAllister

A Life Without Secrets
Ross E. Davies

Introduction and Apologia
On the Distinction Between Transcription and Edition
M.H. Hoeflich

Oliver Wendell Holmes: Law and the Self-Creation of a Scholar-Jurist
M.H. Hoeflich

The Black Book and PreModern Law
Steven A. Epstein

“The True Reason Appears from the Old Books”: The Reading and Writing of a Common-Law Judge
Ross E. Davies

The Black Book
Oliver Wendell Holmes, Jr.

Encomia after the jump.

Tuesday, April 27, 2021

Documents from Nigeria: Fela Kuti’s Legal Troubles

In this series, Samuel Fury Childs Daly looks at four legal documents (broadly construed) from Nigeria during its long period of military rule. This is the fourth of four. 

In 1977, the Nigerian military raided the home of Fela Anikulapo Kuti, the famous Afrobeat musician. Over a hundred people were injured, his mother was tossed from a window, and the building was burned to the ground. Caving to public pressure, Nigeria’s military government staged a commission of inquiry into the raid. Over the course of several weeks, the commissioners heard not only from Fela, as he was known, but from nearly two hundred of his friends, neighbors, and enemies. The commission’s records run to over a thousand pages, which are full of details about his life and times. There are inventories of the personal effects of his band members, records of his financial dealings, and testaments by his friends, lovers, and rivals. Since Fela is one of Africa’s most celebrated (and complicated) artistic figures, his thick legal record at the Lagos State Research and Archives Board is an important resource for cultural historians as well as for those interested in law. 

Fela’s life captures many of the tensions and contradictions of Nigeria under military rule. His politics were hard to pin down. "[His] political programme, to the extent that he had one, was perpetually under construction," recalled his friend John Howe. "His political judgment was usually hasty, often flawed, sometimes perverse (for example his initial approval of Idi Amin’s antics on the ground that if the Western media were against the Ugandan despot he couldn’t be all bad); but his political prejudices - pro-African, pro-underdog, anti-pomp and anti-injustice – were generally sound."  He abhorred military rule and colonialism, but he also scorned the civilian politicians of the Nigerian First Republic. He venerated "African tradition," but the practices that he called "traditional" were heterodox and creative, and they were not wedded to any particular place. Most would have been unrecognizable to the chiefs who wielded customary power in Nigeria. His biggest supporters were members of an urban, university-educated left who, like Fela himself, came from the upper strata of colonial society, but were moved by the rebellious spirits of the time – Black Consciousness and post-1968 counterculture most prominently. Although people of all walks of life came to his concerts, the people who shared his politics constituted a much smaller slice of Nigerian society. Fela stood on just about every fault line one could find in Nigerian society, and many of them run through the commission’s records. 

"I am the star of this show," he began his testimony when it was his turn to take the stand. "Everybody who comes here must mention Fela’s name, Fela’s house and about Fela’s house being burnt. So, it is important for you to hear me a little bit deeper."  The commission of inquiry was a performance - underscored by the fact that it was held at the National Theatre - but Fela was not the only one on stage. The commissioners were performing too, and they addressed both the Nigerian public and a wider international audience. Fela had devotees across Africa and the African diaspora, and his fans in Europe and North America (of whom he had more with every passing month) paid close attention to how the authorities treated him. His fame was wide enough that the military feared the raid might reflect poorly on Nigeria abroad. Head of state General Olusegun Obasanjo convened the inquiry to perform his government’s accountability, while also making sure that "justice" was rendered on his terms. Obasanjo was not the first of Nigeria’s leaders to find inquiry useful as a judicial tool, nor would he be the last. 

Commissions like the Fela Kuti inquiry were very effective - not at dispensing justice, necessarily, but at simulating it. They were an imitation of law, with judges and pomp, but no standard procedure. Commissions allowed people to vent their frustrations, put those frustrations in print to be handed back to the public, and then closed the matter. Even if a commission of inquiry found evidence of wrongdoing, like the actions of the soldiers who burned down Fela's house, it did not have a mandate to change anything. Its conclusions were advisory, and they could easily be ignored.  Colonial commissions of inquiry had worked in much the same way, and they continued to serve an administrative purpose in many authoritarian states. They were a pressure valve, facilitating public displays of accountability that in no way threatened the order of things. This was a truth known to both of 20th century Nigeria’s varieties of despot - colonial governors on the one hand, and military administrators on the other. 

The records of the commission of inquiry are held, in incomplete form, at the Lagos State Research and Archives Board (LASRAB) in Lagos.

This ends my month as a guest blogger. Thank you for reading, and many thanks to the Legal History Blog's fantastic editorial team for inviting me to contribute. If you're interested in the larger story behind the documents I've discussed this month, some of them will feature in the book I'm currently writing, provisionally entitled Soldier's Paradise: Military Rule in Nigeria.

Miller and Stitz on Discovery Doctrine in East Africa

 Robert J. Miller and Olivia Stitz, Arizona State University Sandra Day O'Connor College of Law have posted The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery:

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884-85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four month Conference and then thirteen countries signed the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, European countries claimed superior rights over African nations and Indigenous Peoples. When European explorers planted crosses, signed hundreds of treaties, and raised flags in many parts of Africa, they were making legal claims of ownership and domination over the native nations and peoples, and their lands and assets. These claims were justified in the fifteenth and in the nineteenth centuries by racial, ethnocentric, and religious ideas about the alleged superiority of European Christian nations. This Article examines the application of the Doctrine and the Berlin Act by England and Germany in East Africa, the area that now comprises Kenya, Uganda, and Tanzania. This comparative law analysis demonstrates convincingly that the Berlin Act and these colonizing countries applied what we define as the ten elements of the Doctrine of Discovery. These elements had been developed and refined by European legal and political systems since the mid-1400s. Over 400 years later, the Berlin Conference of 1884-85 expressly and implicitly adopted and codified all ten elements to control the European partition and colonization of Africa. Germany and England used this international law to colonize East Africa. Needless to say, European domination, exploitation, and colonization seriously injured the human, property, sovereign, and self-determination rights of Indigenous nations and peoples and still impacts them today. The comparative legal analysis set out in this Article will benefit readers to see more clearly how law affected and directed African colonization, and to develop a better understanding of the international law of colonialism, that historic process, the impacts of colonization, and why this knowledge is of crucial importance to us all.

--Dan Ernst

Blair on the Dartmouth College Case and Early Corporation Law

Margaret M. Blair, Vanderbilt University Law School, has posted How Trustees of Dartmouth College v. Woodward Clarified Corporate Law:

The U.S. Supreme Court decided Trustees of Dartmouth College v. Woodward (17 U.S. 4 Wheat 518) in 1819, just as the corporate form of organization was rapidly becoming the preferred legal form for organizing and carrying out a wide range of business activities. The case is most widely-known for its decision that the charter by which the privately-funded eleemosynary institution – Dartmouth College – was founded constituted a “contract” between the state and the founders, thereby bringing it within the jurisdiction and protection of the “Contract Clause” of U.S. Constitution which provides that “No state shall pass any Law impairing the obligation of contracts” (U. S. Constitution, Article 1, Section 10). But the case was arguably more important for clarifying and settling a critical question about the corporate form: it confirmed, unequivocally, that for an “association” to receive the special privileges available to corporations, it must have a government-issued charter. Those privileges include separate entity status, which was especially important for receiving, holding and transferring land, for continuity in contracting, for clear lines of succession, and for litigation to enforce contracts. Prior to this case, courts in the U.S. struggled with deciding what rules to apply to a variety of voluntary associations that lacked government-issued charters. 

--Dan Ernst

Special issue: South Asian labor migrations

The March 2021 issue of the Journal of World History features a special forum on South Asian labor migrations, edited by Neilesh Bose (University of Victoria). Here's the line-up for "Indenture and its Afterlives" in vol.32, no.1, with abstracts:

  • Neilesh Bose, "Introduction: South Asian Migrations in Modern Global Histories"
This introduction to the special forum, "Indenture and its Afterlives" offers a snapshot of three articles by Ashutosh Kumar, Riyad Koya, and Andrea Wright, on topics such as contract, legal history and the abolition of indentured labor, and consent. It situates these contributions within a brief historiography of the study of South Asian migrations in global historical frameworks.
  • Ashutosh Kumar, "Subaltern Mobility and Labor Contract: Indian Indenture in New World History"
Recent work in global history has defined the long-distance labor migration of the nineteenth and early twentieth century, following the demise of Trans-Atlantic slavery, as a global phenomenon. Though an important component of migration studies as well as the history of globalization, this framework struggles to consider the significance of indentured migration from India to the sugar plantations overseas. In the view of Adam McKeown, the indentured were insignificant to global historical change, given that they constituted less than ten percent of global migration between 1846 and 1940. In order to establish the significance of indenture, this essay highlights the uniqueness of the indenture system in terms of workers' rights and welfare as well as the legal framework that provided a new language of freedom and contract. Under this system, laborers bargained with colonial authority, a process, which was fulfilled through amendment of legislation. By highlighting this element of the history of indentured labor, this essay aims to inspire further research into the detailed legal history of the process.
  • Andrea Wright, "From Slaves to Contract Workers: Genealogies of Consent and Security in Indian Labor Migration"
This article examines how the mechanisms used by the British Empire to move indentured workers during the nineteenth were implemented in the twentieth century in order to move Indian workers to the oilfields of the Arabian/Persian Gulf and the continuation of this process into the present. Using archival and ethnographic material, this article explores shifting legal engagements with the discourse of consent and how consent is mobilized in regard to the treatment of migrant laborers. The article then considers how the securitization of oil impacted workers' rights and, particularly, issues around worker consent. Examining the continuation of the mechanisms used to move Indian indentured laborers, in conjunction with a rhetoric of security, gives insight into how the rights of workers have been actively curtailed while simultaneously framed as consensual.
  • Riyad Sadiq Koya, "The Regulation, Division, and Multiplication of Emigrant Labor: The Border between Land and Sea in Colonial India, 1834-1922"
In this article, I argue the significance of the border between land and sea for the regulation of labor migration. I identify an early sense of this border in the East India Company's efforts to prohibit the trafficking of slaves overseas by foreign powers. I focus on a shift in the imaginary of the border with the advent of the indentured labor system. New permits, passes, and registration procedures were implemented to materialize the voluntariness of emigration for indentured laborers. Through an examination of Indian emigration legislation, I trace the continuous recalibration of the border through the differential inclusion of new occupational groups and labor migration streams under the umbrella of state regulation. I reevaluate the campaign for the abolition of indentured labor as a further recalibration of the border between land and sea that distinguished discrete rights of mobility for laboring subjects divided and multiplied by the category of skill.

Further information is available here.

--Mitra Sharafi 

Monday, April 26, 2021

Edwards, "Hiding in Plain Sight: Black Women, the Law, and the Making of a White Argentine Republic"

No pun intended, I'm not sure how we overlooked the publication of Hiding in Plain Sight: Black Women, the Law, and the Making of a White Argentine Republic (University of Alabama Press, 2020), by Erika Denise Edwards (University of North Carolina, Charlotte). It has now won at least two significant awards: the Association of Black Women Historians 2020 Letitia Woods-Brown Award for the best book in African American Women’s History and Western Association of Women Historians Barbara “Penny” Kanner Award, which honors scholarship that "illustrates the use of a specific set of primary sources (diaries, letters, interviews etc.)" (h/t @ABWHTruth). A description from the Press: 

Argentina promotes itself as a country of European immigrants. This makes it an exception to other Latin American countries, which embrace a more mixed—African, Indian, European—heritage. Hiding in Plain Sight: Black Women, the Law, and the Making of a White Argentine Republic traces the origins of what some white Argentines mischaracterize as a “black disappearance” by delving into the intimate lives of black women and explaining how they contributed to the making of a “white” Argentina. Erika Denise Edwards has produced the first comprehensive study in English of the history of African descendants outside of Buenos Aires in the late colonial and early republican periods, with a focus on how these women sought whiteness to better their lives and that of their children.

Edwards argues that attempts by black women to escape the stigma of blackness by recategorizing themselves and their descendants as white began as early as the late eighteenth century, challenging scholars who assert that the black population drastically declined at the end of the nineteenth century because of the whitening or modernization process. She further contends that in Córdoba, Argentina, women of African descent (such as wives, mothers, daughters, and concubines) were instrumental in shaping their own racial reclassifications and destinies.

This volume makes use of a wealth of sources to relate these women’s choices. The sources consulted include city censuses and notarial and probate records that deal with free and enslaved African descendants; criminal, ecclesiastical, and civil court cases; marriages and baptisms records and newsletters. These varied sources provide information about the day-to-day activities of cordobés society and how women of African descent lived, formed relationships, thrived, and partook in the transformation of racial identities in Argentina.

Praise from reviewers:

“Powerfully, this book reinterprets the interrelated constructs of whiteness and nation in Argentina from the perspective of African-descended women. In so doing, Hiding in Plain Sight illuminates the gendered languages and initiatives that made possible black women’s (and their children’s) assertions for legal and social belonging—even as these choices entailed a discursive downplaying of blackness in favor of performing Spanish and indigenous identities. A noteworthy contribution to African diaspora as well as women’s and gender studies, Edwards’s book makes the study of both households and the interior city of Córdoba indispensable to thinking about modern Argentina.” —Celso Thomas Castilho,
“Edwards boldly argues that African-descended women in Córdoba employed their clothing choices, motherly responsibilities, and positions as concubines to transform black identities into white privilege. By exploring intimate struggles, Edwards effectively revises Argentina’s national story of black invisibility to a narrative of black agency of the eighteenth and nineteenth centuries.” —Rachel Sarah O’Toole

More information is available here.

-- Karen Tani

Legal and Historical Narratives: A Brazilian View

 [We have the following announcement.  DRE]

WEBINAR: "Legal and Historical Narratives: A Talk with Lira Neto" – 03 May 2021, 10 AM, GMT-3 – Unifacisa, Campina Grande, Brazil – Free of charge

Brazilian historian Lira Neto gathers with jurists to discuss research experiences

Brazilian university center Unifacisa, in Campina Grande, is promoting a debate on “Legal and Historical Narratives” with laureate historian Lira Neto and jurist Marcílio Franca, who is an arbitrator for Mercosur, WIPO and the Court of Arbitration for Art (CAfA). The webinar is hosted by Henrique Lenon, Professor of Legal History.
The conference is free of charge and will be transmitted live in Portuguese, but requires previous registration [here].

Lira Neto has published several laureate books in Brazil, including biographies of former Presidents Getúlio Vargas and Castello Branco, musician Maysa and the famous religious leader Cícero Romão of Ceará.

As recently as February, Lira Neto released “Arrancados da Terra”, which depicts the persecution of Jews in Europe and Colonial Brazil during the 17-th century. The author deals with legal proceedings of the Holy Inquisition kept in Portugal, with political and religious issues of the Netherlands, with the Portuguese-Dutch dispute to control Northeastern Brazil and the final destination of then persecuted Jews: New York City.

 “The conference intends to provoke law students and professionals to understand how historians research, reflect and write History”, says Henrique Lenon, who holds a PhD in International and Comparative Law from the University of São Paulo and teaches Legal History and Legal Anthropology at Unifacisa.

Webinar: "Legal and Historical Narratives: A Talk with Lira Neto"  
When: May 03, 2021, at 10 AM (GMT-3)
Language: Portuguese
Live event, free of charge

CFP: Decolonial Comparative Legal History

[We have the following CFP.  DRE] 

Decolonial comparative legal history: indigenous and global South law prior to colonialism

9-10 September 2022, Oxford, United Kingdom.  Paper submission deadline: 9 February 2022 Decisions: 9 May 2022

Theme.  The second Decolonial Comparative Law Workshop will focus on comparing indigenous law and pre-colonial law, both in settler-colonial regions of the global North and in the area now often referred to as the global South. Decoloniality, as we understand it, promotes a pluriversal understanding of “law,” which means that each society defines and practices law distinctly, such that no society’s law is either universal or inherently superior. In the modern era, the ideology of coloniality promoted narrow expressions of law, particularly (though not exclusively) as “positive law.” In addition, colonizers distinguished positive law from colonial notions of “religious law,” “customary law,” and “native law,” which had significant implications for legal understandings and practices in colonized areas—as well as for the self-understanding of the colonized. Reacting against colonialism, many colonized peoples looked to pre-colonial or indigenous law to counter the hegemony of colonial law. In contemporary courtrooms and political debates, lawyers, legal scholars, and activists dispute the nature and applicability of pre-colonial and indigenous laws. Yet, present concerns and ideas always shape historical inquiry and the pre-colonial or indigenous law that they “excavate” is often a contemporary construct—albeit one based on history, historiography, and memory. We seek to engage critically with indigenous and global South histories, avoiding both romanticized nostalgia and imposing colonial historiographic methods. Although law is pluriversal and historically contingent, colonial law remains hegemonic in historiography and in legal practice. Consequently, pre-colonial and indigenous legal traditions are translated habitually into the language of coloniality. The challenge for scholars of decoloniality is to decolonize the concept of law shared by both colonizers and the colonized. Accordingly, our workshop aims to interweave several objectives: delinking from colonial notions of law; exploring decolonial (legal) historiography; comparing indigenous law in settler-colonized regions and pre-colonial law in colonized regions; offering decolonial translations of pre-colonial law.

Paper Submission.  We invite papers that destabilize coloniality by engaging with how indigenous and global South societies defined or practiced law prior to colonialism. Papers should be based on original research, ideally relying on primary or indigenous sources from prior to the colonial era (broadly defined). Papers should identify “law” in a specific tradition or place, with particular attention to indigenous or pre-colonial epistemologies and practices. Since colonial legal notions continue to distort historiography, we welcome papers that decolonize (i.e., identify and replace) coloniality in the legal historiography of the precolonial global South and indigenous communities. (Authors may want to make use of the bibliographies of decolonial theory and decolonial legal studies provided on the DCL Project website.) Please send your paper to (i) as an attachment in the template provided on the Decolonial Comparative Law Project website (ii) in any language (iii) not exceeding 5000 words (iv) by 9 February 2022. The advisory committee will review all papers and decisions will be sent by 9 May 2022.

Accepted Papers.  Authors of accepted papers will have an opportunity to submit revised versions of their papers for the workshop, with a deadline of 9 June 2022. Submitted papers that are written in a language other than English will be professionally translated. Papers will be pre-circulated prior to the workshop. The workshop will bring together authors of legal historiography with discussants (primarily legal scholars specializing in indigenous, global South, or decolonial legal studies). Authors will not present their papers at the workshop. Final submission of papers will be 9 December 2022. After peer-review, the papers will be published in an edited volume or journal symposium issue.

Organization.  The British Academy Global Professorship and the Max Planck Institute for Comparative and Private International Law provide funding for the workshop. Organizers expect to offer two nights of accommodation and travel reimbursement for authors of accepted papers. Authors and discussants will have the option of participating remotely. The Decolonial Comparative Law Workshop is co-organized by Lena Salaymeh (University of Oxford) and Ralf Michaels (Max Planck Institute for Comparative and Private International Law). In addition to the organizers, the ad-visory committee includes Claire Charters (Auckland Law School), Farhat Hasan (University of Delhi), Kentaro Matsubara (University of Tokyo), Ethelia Ruiz Medrano (Instituto Nacional de Antropología e Historia), Blaise Alfred Ngando (Université de Yaoundé 2 – Soa), and Mark Walters (Queen’s University).

.  The Oxford School of Global and Area Studies will host the workshop, which will take place at the University of Oxford. Translation services can be provided at the workshop.

Saturday, April 24, 2021

Weekend Roundup

  • Writing in the Washington Post, John Fabian Witt (Yale Law School) reviews Kate Masur's Until Justice Be Done.
  • "The scholarly e-journal Locus-Tijdschrift voor Cultuurwetenschappen, published by the Open University of the Netherlands, seeks papers around the issue of ‘The Coloniality of Natural History Collections.'"  More.  
  • Law, Politics, Public Health and Deadly Epidemics: A Conversation with John Fabian Witt on American Contagions (HNN).
  • Stephen Sachs recalls being in Charles Donahue's legal history course--as an undergraduate (Harvard Crimson).   
  • NARA transcribes documents from United States of America v. Alger Hiss (Catalog).  H/t: JQB
  • Karla Luzmer Escobar Hernández (Max Planck Institute for Legal History and Legal Theory) wants legal historians to use transmedia history-telling to reach larger audiences. More here.

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

Friday, April 23, 2021

Symposium: The Federalist Constitution

We have already noted some contributions to this excellent symposium issue, The Federalist Constitution, but it has now been published in full as Fordham Law Review 89:5 (April 2021):

David S. Schwartz, Jonathan Gienapp, John Mikhail, & Richard Primus

Two Federalist Constitutions of Empire
Gregory Ablavsky

Without Doors: Native Nations and the Convention
Mary Sarah Bilder

President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era
Saul Cornell

In Search of Nationhood at the Founding
Jonathan Gienapp

Slavery’s Constitution: Rethinking the Federal Consensus
Maeve Glass

The Federalist Constitution as a Project in International Law
David M. Golove & Daniel J. Hulsebosch

The Unwritten Constitution for Admitting States
Roderick M. Hills Jr.

Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792
Thomas H. Lee

Executive Power and the Rule of Law in the Marshall Court: A Rereading of Little v. Barreme and Murray v. Schooner Charming Betsy
Jane Manners

Equal Footing and the States “Now Existing”: Slavery and State Equality over Time
James E. Pfander & Elena Joffroy

Reframing Article I, Section 8
Richard Primus

The Other Madison Problem
David S. Schwartz & John Mikhail

Presidential Removal: The Marbury Problem and the Madison Solutions
Jed Handelsman Shugerman

–Dan Ernst

A French-Brazilian Legal History Webinar Series

[We have the following announcement of the online workshop series, French-Brazilian Chair of Legal History 2021 organized by José Reinaldo de Lima Lopes (University of São Paulo) and Nader Hakim (University of Bordeaux).  DRE.]


Details after the jump.

Thursday, April 22, 2021

Today: Jones to Deliver Chase Lecture

Martha S. Jones (credit)
Today, from 7:00 - 8:30 p.m. EDT, Martha S. Jones,  Society of Black Alumni Presidential Professor and Professor of History, Johns Hopkins University, will deliver the Salmon P. Chase Distinguished Lecture, sponsored by the Georgetown Center for the Constitution and the Supreme Court Historical Society.  It will commemorate the centennial of the Nineteenth Amendment.  RSVP here for the link.

--Dan Ernst

Bilder on Native Nations and the Federal Convention

Mary Sarah Bilder, Boston College Law School, has posted Without Doors: Native Nations and the Convention, which is forthcoming in the symposium The Federalist Constitution, just out in volume 89 of the Fordham Law Review:

Henry Knox (LC)
The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government.
--Dan Ernst

Wednesday, April 21, 2021

Telfer on Canada's First Superintendent of Bankruptcy

Thomas G. W. Telfer, Western Law, has posted an installment of his book in progress on Canadian bankruptcy law during the Great Depression as The New Bankruptcy "Detective Agency"? The Origins of the Superintendent of Bankruptcy in Great Depression Canada. It also appears in Canadian Business Law Journal 64 (2020): 22.  Here is the abstract:

In the depths of the Great Depression, R.B. Bennett’s Conservative government appointed W.J. Reilley as Canada’s first Superintendent of Bankruptcy. Reilley’s experience made him eminently qualified. He had trained as a lawyer and had been the Registrar of the Bankruptcy Court of Ontario at Osgoode Hall for many years. The creation of the federal Superintendent’s office in 1932 is one of the major milestones in the legislative history of Canadian bankruptcy law. In the bankruptcy law literature, there is a broad recognition that the 1932 reforms were vital. These accounts are incomplete. This article seeks to provide a fuller understanding of these reforms by examining sources of opposition to the establishment of the Superintendent’s office. Not all accepted the new regulatory approach and the prospects of a bankruptcy bureaucracy during the Depression. Within months of Reilley taking office, critics called into question his qualifications and demanded his resignation. Little is known about the 1932 reforms as the creation of the Superintendent’s office has largely been overshadowed in the insolvency field by the enactment of corporate reorganization legislation in 1933 and farm credit legislation in 1934

Dan Ernst

Barnes on Fleming on Law and Consumer Finance

Victoria Barnes has published Anne Fleming’s History of Law and Consumer Finance in Enterprise & Society.  The essay is available online and open access.  It commences:

This review article does not set out to retell the story of Anne Fleming’s life in a chronological fashion, but rather it engages intellectually with the themes in Anne’s scholarship. Anne’s passing means that her thoughts, guidance, and encouragement are lost to the scholarly communities of which she was a part. Over the course of her career, Anne offered sage advice, she helped others to develop their work, and she supported them wherever she could.1 Now, there will no longer be that voice in the conference room, the office, or the lecture hall. We will not know how her presence would have influenced the field in the years to come and how her engagement with other scholars would have shaped them. So I write to gather together the ideas within Anne’s work, hoping to provide a fuller set of insights than can be gleaned by reading pieces of her scholarship individually. This integrated and coordinated view is the sort of comprehensive thinking that she would have given in her interactions.
–Dan Ernst

Virtual Workshop: Law in Transmission, c. 400-1500

[We share the following announcement.]

The Comparative Law Workshop 2021 will take place as a Zoom webinar on 5-7 May 2021. Please register here for "Law in Transmission: The Movement of Practices, Texts and Concepts across Time and Space, c.400-1500.

All times are given in British Summer Time.

Tuesday, April 20, 2021

Zier on "Feminism, Insanity, and Property Rights in 1940s America"

Magdalene Zier (JD/PhD candidate, Stanford Law School) has posted "'Champion Man-Hater of All Time': Feminism, Insanity, and Property Rights in 1940s America," which is forthcoming in the Michigan Journal of Gender & Law. Here's the abstract:

Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist.

This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy. 

The full article is available here.

-- Karen Tani

Merle Curti Intellectual History Award Honorable Mention to Holdren

The Organization of American Historians has announced its 2021 awards winners. We were pleased to see former guest blogger Nate Holdren (Drake University) come away with an Honorable Mention for the Merle Curti Intellectual History Award. The citation reads:

Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press) is a beautifully written andmoving study that unearths the values and assumptions that shaped the development of workers’ compensation law in the early twentieth century. Through careful and rigorous research, Holdren highlights the moral and bodily consequences of this new legal regime for accident victims, compellingly suggesting that workers’ compensation law reinforces the injustices of capitalism rather than producing what he calls the “justice of recognition.” This book offers new and compelling insights for various fields of study, including legal history, histories of capitalism, and disability history.

The winner of the award was Garrett Felber (University of Mississippi), for Those Who Know Don’t Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State (University of North Carolina Press). 

-- Karen Tani

TerBeek on the history of living constitutionalism

 Calvin TerBeek (University of Chicago) has published the following review essay: "The Search for an Anchor: Living Constitutionalism from the Progressives to Trump," Law & Social Inquiry (published online on 12 April 2021), 1-30. Here's the abstract: 

Over a century after the Progressives’ devised “living constitutionalism,” its latter day adherents have fought conservatives’ originalism to an intellectual standstill and a political rout. Bookended by discussions of three books by legal liberals (Jack Balkin, Erwin Chemerinsky, Geoffrey Stone and David Strauss) and a book and article by progressive constitutional scholars (Mark Tushnet, David Pozen and Adam Samaha), this essay argues that legal liberalism today is intellectually exhausted. In developing a “critical constitutionalism,” those to their left have better identified constitutional law and theory’s pathologies and potential. The overarching claim is that professional and ideological factors have led legal liberals to misapprehend the uses and limitations of constitutional theory. The essay concludes by suggesting legal liberals move past debates about originalism and begin to think anew about what (legal) liberalism has to offer American constitutionalism.

Further information is available here.

--Mitra Sharafi

Monday, April 19, 2021

Peck on the Failed Attempt to Tax West Virginia Coal

Alison Peck, West Virginia University College of Law, has posted Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, which is forthcoming in the West Virginia Law Review:

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state. 
--Dan Ernst

Sunday, April 18, 2021

Book Launch for Lustig's "Veiled Power"

The Institute for International Law and Justice at NYU Law is hosting a book launch for Veiled Power, International Law and the Private Corporation 1886-1981 by Doreen Lustig on April 20, 2021, from 9:00am - 11:00am ET:

Veiled Power
chronicles the emergence of the contemporary legal architecture for corporations in international law between 1886 and 1981. Weaving together five in-depth case studies—Firestone in Liberia, the Industrialist Trials at Nuremberg, the Anglo-Iranian Oil Company, Barcelona Traction and the emergence of the international investment law regime—Doreen Lustig traces the relationship between two legal ‘veils’: the sovereign veil of the state and the corporate veil of the company. The interplay between these two veils constitutes a conceptual framework that the book offers for the legal analysis of corporations in international law. Ultimately, Lustig suggests that, contrary to the prevailing belief that international law failed to adequately regulate private corporations, history reveals a close engagement between the two that allowed corporations to exert influence under a variety of legal regimes while obscuring their agency.

B. S. Chimni, Distinguish Professor of International Law, Jindal Global Law School.

Megan Donaldson, Lecturer in Public International Law Faculty of Laws, UCL.

Martti Koskenniemi, Professor of International Law and Director of the Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

Glenda Sluga, Professor of International History, University of Sydney.

Moderator: Benedict Kingsbury, Director of the Institute for International Law and Justice, Murry and Ida Becker Professor of Law, and Vice Dean for Global Programs, NYU School of Law.

--Dan Ernst

Saturday, April 17, 2021

Weekend Roundup

  •  On April 22, Georgetown University Law Center will host an event on "Violence against Asian Americans: What Legal History Reveals," featuring Gabriel "Jack" Chin (UC Davis) and Madhavi Sunder (Georgetown Law). Register here
  • The Department of Legal and Constitutional History of the University of Vienna warmly invites everyone interested to participate in the online book symposium on Martin Schennach’s (Innsbruck) ‚Austria inventa?‘ Zu den Anfängen der österreichischen Staatsrechtslehre.  The panelists are Natasha G. Wheatley (Princeton), Jana Osterkamp (Munich), Peter Becker (Vienna), Gerald Kohl (Vienna), and Sebastian M. Spitra (Moderator).  The symposium takes place via Zoom on Thursday, 22 April 2021, 3pm (Vienna time).
  • "At Harvard, a growing focus on Islamic law: Professor Intisar Rabb discusses interpreting ancient principles for a new world" (Harvard Law Today).
  • For interdisciplinary legal scholars concerned about US News' proposed use of Hein citation metrics (which exclude many peer-reviewed journals and books): Bonnie J. Shucha (University of Wisconsin Law Library) shows here just how big this effect can be.
  • Scholars of colonialism: UN Human Rights Special Rapporteur Fabián Salvioli is seeking information on "the legacy of serious violations of human rights and humanitarian law committed in colonial contexts" by 7 May 2021. Questionnaire here (all questions optional).
  • Department of Institutional Kvelling. Guggenheim Division: North Carolina State on Julia Rudolph for her project “The Search for Security: Mortgage, Fairness and Fraud in the British Empire.”  Stanford Law on Amalia Kessler for her project on the origins of American arbitration.  Presidential Supreme Court Reform Commission Division: Princeton on Keith Whittington and three alumni (Heather Gerken, Rick Pildes, Bertrall Ross).  University of Chicago Law School on faculty members William A. Baude, Alison L. LaCroix, and David A. Strauss.
  • ICYMI: Sarah Seo on overpolicing traffic violations (NYT).  Clarence Darrow speaks in Quincy, Illinois in 1913 (Herald-Whig).  Kate Masur’s Until Justice Be Done reviewed (NYT).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 16, 2021

Virtual conference: Working with Intellectual Property

 [We share the following announcement.] 

The Third Annual Conference of the Stanford Center for Law and History will take place virtually on April 23, April 30, and May 7, 2021. 

Here is the program with abstracts for Working with Intellectual Property: Legal Histories of Innovation, Labor, and Creativity

You can register here.

--Mitra Sharafi

Federal History 2021

Federal History: Journal of the Society for History in the Federal Government 13: 2021 is available online.  Here’s the TOC:

Editor’s Note
Benjamin Guterman

Roger R. Trask Lecture
Bill Williams

The Case for John Jay’s Nomination as First Chief Justice
Benjamin Lyons

“This disease . . . knows no State boundaries”: The 1918 Spanish Influenza Epidemic and Federal Public Health
Jonathan Chilcote

“America must remain American”: The Liberal Contribution to Race Restrictions in the 1924 Immigration Act
Kevin Yuill

The Combined Chiefs of Staff and the Public Health Building, 1942–1946
Christopher Holmes

Federalism and the Limits on Regulating Products Liability Law, 1977–1981
Ian J. Drake

Gerald Ford’s Clemency Board Reconsidered
Alan Jaroslovsky

Interview An Interview with Chandra Manning
Benjamin Guterman

--Dan Ernst

Bose and friends on South Asian migrations

 Neilesh Bose (University of Victoria) has edited South Asian Migrations in Global History: Labor, Law, and Wayward Lives, published with Bloomsbury in 2020. From the press: 

This collection explores how South Asian migrations in modern history have shaped key aspects of globalization since the 1830s. Including original research from colonial India, Fiji, Mexico, South Africa, North America and the Middle East, the essays explore indentured labour and its legacies, law as a site of regulation and historical biography.

Including recent scholarship on the legacy of issues such as consent, sovereignty and skilled/unskilled labour distinctions from the history of indentured labour migrations, this volume brings together a range of historical changes that can only be understood by studying South Asian migrants within a globalized world system.

Centering South Asian migrations as a site of analysis in global history, the contributors offer a lens into the ongoing regulation of labourers after the abolition of slavery that intersect with histories in the Global North and Global South. The use of historical biography showcases experiences from below, and showcases a world history outside empire and nation.

Table of Contents after the jump 

Foreword, Victor V. Ramraj
Prologue: Archives, Paper Regimes, and Mobility, Uma Dhupelia-Meshtrie
Introduction, Neilesh Bose

Part 1: Impacts of Indentured Labor

1. Gokhale, Polak, and the end of Indian indenture in South Africa, 1860 – 1911, Goolam Vahed
2. Imperial Labor: Labor, Security, and the Depoliticization of Oil Production in the Arabian Peninsula, Andrea Wright
3. Legal Discourse on 'Coolies' Migration from India to the Sugar Colonies, 1837-1922, Ashutosh Kumar

Part II: Law in Migration Histories

4. Slavery, Abolitionism, Indentured Labor: the Problem of Exit and the Border Between Land and Sea in Colonial India, Riyad Koya

5. Who is Asiatic? Drawing the Boundary in the Legal and Political Framing of Indian South Africans, 1860-1960, Marina Martin

Part III: Historical Biography

6. Taraknath Das: A Global Biography, Neilesh Bose

7. Beyond the Reach of Empire: Pandurang Khankhoje´s Transit from British Colonial Subject to Mexican 'Naturalizado' (1924-1954), Daniel Kent-Carrasco

8. A Woman of Peace and Calm: the Story of Senthamani Govender, Devarakshanam Govinden

Epilogue: Oceanic Currents and Wayward Crossings, Renisa Mawani

Further information is available here.

--Mitra Sharafi

Thursday, April 15, 2021

Jones to Deliver Fulton Lecture

 Tomorrow (Friday, April 16, 2021) from 12:15pm-1:20pm Central Time, Martha S. Jones, Society of Black Alumni Presidential Professor, Professor of History, and a Professor at the SNF Agora Institute at The Johns Hopkins University, will deliver the 2021 Maurice and Muriel Fulton Lecture in Legal History at the University of Chicago Law School–or rather virtually.  Register here.  Her topic is Vanguard: Leading on Voting Rights, Leading the Nation:

When Vice President Kamala Harris invoked six women from the past in August 2020, she explained it was on their shoulders that she stood: Mary Church Terrell, Ida B. Wells, Mary McLeod Bethune, Diane Nash, Fannie Lous Hamer, and Constance Baker Motley. Harris is the inheritor of these women of the Vanguard. For them, the 19th Amendment was a milestone but not a victory. When we appreciate what an open secret Black women’s disenfranchisement was in 1920, the facts of the 19th Amendment fit awkwardly with events that feature light shows, period costumes, and marching bands. Members of Congress who promulgated the 19th Amendment, state lawmakers who ratified it, and suffragists themselves all understood that nothing in its terms prohibited states from strategically using poll taxes, literacy tests, and understanding tests to keep Black women from registering to vote. Nothing in the new amendment promised to curb the intimidation and violence that threatened Black women who came out to polling places. Voting rights and voter suppression went hand in hand in 1920. Out of the ashes of these scenes, Black women built a new movement for voting rights, one that took them 45 years, until 1965, when they won passage of the Voting Rights Act.

--Dan Ernst.  H/t:JG

ASLH's Wallace Johnson Program for First Book Authors

 [We share the following announcement. -MS]

Wallace Johnson Program for First Book Authors Sponsored by the American Society for Legal History 

Deadline for Applications:  July 15, 2021

The Wallace Johnson Program for First Book Authors organized by the American Society for Legal History (ASLH) is designed to provide advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants will learn about approaching and working with publishers, and will develop and revise a book proposal and one to two sample chapters.

Applications for Johnson Fellows are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs and are working on first books in legal history. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are scholars who may not (yet) identify as legal historians.

The 2021-22 Johnson Program will be led by Professor Reuel Schiller, with the participation of other senior legal historians.

Up to 5 Fellows will be selected. Fellows must commit to participation in all elements of the program. Each will receive substantial funding for travel and accommodation related to the program, with a small supplement to participants who do not have institutional support for travel and research.

Fellowship details and application instructions are available at:

Please direct any questions to Barbara Young Welke, Chair of the 2021 Johnson Program for First Books Authors Committee, University of Minnesota,

--Mitra Sharafi

Wednesday, April 14, 2021

Virtual book talk: Fei-Hsien Wang on copyright in China

 [We share the following announcement. Fei-Hsien Wang's book, Pirates and Publishers won the Stein Award in 2020.]

Asian Legal History Seminar Series 

Book Talk: Pirates and Publishers: A Social History of Copyright in Modern China (Princeton: Princeton University Press, 2019)

Date & time: Friday, 16 April 2021, 10am-11.30am Hong Kong time

Speaker: Dr. Fei-Hsien Wang (Indiana University Bloomington)

Respondent: Dr. Michael Ng (University of Hong Kong)

Fei-Hsien Wang is an associate professor in the Department of History in Indiana University Bloomington. She is a historian of modern China with a particular interest in how information, ideas, and practices were produced, transmitted and consumed across different societies in East Asia. 

Michael Ng is an associate professor in the Faculty of Law in the University of Hong Kong. His research focuses on the legal history of China and Hong Kong in the 19th and 20th centuries. 

Please register here.

--Mitra Sharafi

Berger on Race and Property

Bethany Berger, University of Connecticut School of Law, has posted Property to Race/Race to Property:

In the United States, property and race shape each other. This has been true since colonization and is equally true today.

First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism.

Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all.

Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.
–Dan Ernst

Quadri on Islamic Law in Colonial Modernity

Oxford University Press has published Transformations of Tradition: Islamic Law in Colonial Modernity (Mar. 2021), by Junaid Quadri (University of Illinois at Chicago). A description from the Press: 

Transformations of Tradition probes how the encounter with colonial modernity conditioned Islamic jurists' conceptualizations of the shari'a. Departing from the tendency to focus on reformist-minded thinkers and politically charged issues, Junaid Quadri directs his attention towards the overlooked jurisprudential writings of Muhammad Bakhit al-Muti-i (1854-1935), Mufti of Egypt and a frequent critic of the famed reformists Muhammad 'Abduh and Rashid Rida. There, he locates a remarkable series of foundational intellectual shifts. Offering a fresh perspective on a pivotal period in the history of Islamic thought, Quadri tracks how Bakhit reworks the relationship of the shari'a to categories of understanding as fundamental as history and authority, science and technology, and religion and the secular, thereby upending the very ground upon which Islamic law had until then functioned. Through close readings of complex legal texts and mining of oft-neglected archives, this carefully researched study situates its argument in both the contested scholarly world of a quickly-changing Cairo, and the transregional school of Hanafi law as represented by jurists writing in Kazan, Lucknow, and Baghdad. Examining Islamic jurisprudential discourse in the colonial moment, Transformations of Tradition uncovers a shari'a that is neither a medieval holdover nor merely a pragmatic concession to the demands of a new world, but rather deeply entangled with the epistemological commitments of colonial modernity.

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

-- Karen Tani

Tuesday, April 13, 2021

Documents from Nigeria: The Self-Help Books of Nkem Liliwhite-Nwosu

In this series, Samuel Fury Childs Daly looks at four legal documents (broadly construed) from Nigeria during its long period of military rule. This is the second of four.

In the same way that a historian might consult Samuel Pepys’ diary on just about any topic in 17th century England, I turn to a little-known self-help writer named Nkem Liliwhite-Nwosu about 20th century Nigeria. She was a sharp observer of her world, and I reach for her books whenever I’m looking for an unvarnished take on a debate or controversy from the 1960s to the 1990s. There is hardly a topic that she did not feel strongly about, nor an event that she did not find herself on the fringes of. She was an autodidact and a natural writer, and it’s easy to get lost in her propulsive, expletive-filled prose.

Liliwhite-Nwosu was not an important figure in Nigerian history. She owned a motel in Surulere, a working-class part of Lagos, and she made a modest fortune by striking a deal with the Nigerian Football Association to accommodate visiting teams when they came to town. But her success did not make her easygoing. She lived her life in a near-constant rage, doing battle with every authority figure who had the misfortune of crossing her path. Her piety did not mellow her, and even though her books are nominally guides for how to be a better Christian woman, they are also unrelentingly angry descriptions of life under military rule. The “jackboots” who controlled the country, she wrote, were “blue-blooded aristocrats who spoke with authority through the nozzle of the gun; ignorant greenhorns who claimed to have the solution to problems which their refined, erudite, old fathers could not solve, and who ended up compounding the problems for us all.” She writes vividly about the humiliations she experienced, and her books are a reminder of how much fury civilians – especially women – felt towards Gowon, Buhari, and other soldier-leaders who are now remembered as “moderates.” 

She was also extremely litigious, which is why I find her writings so useful. She obtained her motel in shady circumstances, and she spent decades in court defending her claim to the property (and hashing out the details of her ever-contentious relationship with the football association). She did not suffer fools gladly. This put her at odds with her neighbors, her rivals, and, as she put it, the “fools in uniform” who ran the country during her lifetime. This stance got her in trouble constantly, so she also became an expert at combating criminal charges. She describes the law from the perspective of someone who lived in it; her accounts of her legal battles show much more about Nigeria’s legal culture than court records would alone. She describes what it was like to navigate martial law as a civilian, and how people wielded it against both the state, and against one another. She tells us not only how she and her lawyers crafted arguments, but which gimmicks worked in front of a military judge and which ones didn’t. 

It is important to think about what law meant to someone like Nkem Liliwhite-Nwosu. In Nigeria’s military regimes, there were few avenues for ordinary people to stick up for themselves, or to criticize the state. There was no legislature that spoke for them, and no constitution that enshrined their basic rights. Petitions usually fell on deaf ears. Publicly shaming soldiers sometimes worked, but it could backfire dramatically if one wasn’t careful. Liliwhite-Nwosu embraced the legal system because she had nowhere else to turn. The courtroom was the only place where she could corner the authorities, and she cornered them whenever she could. She saw life in Nigeria as one long “trial,” as her book titles attest, and she spent a substantial chunk of hers in court. I hope every historian of law has a litigant who left behind as poetic (and exhaustive) an account of her trials as Nkem Liliwhite-Nwosu. 

Nkem Liliwhite-Nwosu’s books, which overlap substantially in content, are Divine Restoration!: Testimonies of Our Motherland on Trial (Lagos: self-published, 2002) and Divine Restoration of Nigeria: Eyewitness Account of Her Trials and Triumphs (Lagos: CSS Bookshops, 2004).

Chin and Finkelman on Birthright Citizenship and the Slave Trade

Gabriel Jackson Chin, University of California, Davis School of Law, and Paul Finkelman, Gratz College, have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation, which is forthcoming in volume 54 of the UC Davis Law Review (2021):

In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.

This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.
–Dan Ernst

CFP: 6th TAU Workshop for Junior Scholars in Law

Legal Change in Revolutionary Times: The 6th TAU Workshop for Junior  Scholars in Law, November 14-16, 2021

The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its sixth junior legal scholar workshop. The workshop provides junior scholars with the opportunity to present and discuss their work, receive meaningful feedback from faculty members and peers, and actively participate in an international community of junior legal scholars.

The upcoming 2021 TAU workshop for junior scholars in law, which will be held in Tel-Aviv University Law School on November 14-16, 2021, will be dedicated to "Legal Change in Revolutionary Times." We are seeking cutting-edge works in progress, in varied legal fields and written from a variety of methodological and theoretical perspectives, that investigate the role of law in revolutionary times, and we welcome works that broadly relate to the core themes of the workshop.

Themes of the Workshop
.  We live in revolutionary times. The word change fails to capture the radical transformations, revolutions indeed, that our planet and societies are undergoing: climate change, extreme automation and the emergence of artificial intelligence, genetic modification, the rise of new authoritarian regimes and radical political ideologies, and the spread of the Covid-19–just to name a few. Together and separately, these revolutions threaten individuals and communities (but also create and foster the emergence of new ones), reorient industries and work, disrupt ways of life, reinvent what is the human, and reorganize hierarchies of power.  Questions regarding the social, moral and political order, which seemed to have been long settled–such as the normative dominance of liberal democracy–are now in accelerating flux, seemingly more open to debate but also more vulnerable to violent conflict than before.

The question of legal change and its interaction with-resistance to, collaboration with, responsibility for, responses to-ecological, economic, technological, cultural, and social changes, perhaps revolutions, is paramount. In the Workshop we will be exploring various related questions, contemporary as well as historical, for example: Is there a difference between the role of law in times of change and gradual evolution as against its function in revolutionary times? And if so - what is the difference? What is the function of law in framing changes as "evolutions" or conversely, as "revolutions"? What is its role in designating political and social struggles as revolutionary? Are current theoretical frameworks, such as transitional justice or theories of democratization, well suited for addressing new forms of change? Is the law a tool that fosters and enables social change or is it a tool for mitigation and preservation of the status quo?  Consider, for example, the division of labour between government and civil society - Does the law function as an agent of change, as directing it, or only reacting to it - and how should it function? Why do some changes seem to appear sudden, thus creating a sense of emergency? Is a state of emergency only an excuse to implement radical legal change, such as enforcing strict limitations on civil liberties, and civil society organizations? Or is a state of emergency a necessary legal mechanism implemented momentarily?     

Those questions are not new, and the balance between dynamic change and traditional stasis lies at the heart of many legal theories. Yet engaging with them in times of what could, at least in retrospect, be considered as revolutions, can make us reconsider our approach to change, specifically regarding the balance between the law's flexibility and predictability.