Saturday, April 10, 2021

Weekend Roundup

  • On Thursday, Victoria Woeste, who is retired from a Research Professorship at the American Bar Foundation (virtually) presented her article in progress “Practicing God’s Law in a Secular World: The Civil Rights Law Practice of the Rev. Fred W. Phelps Sr., 1964-2011,” at the University of North Carolina School of Law. 
  • Congratulations to Maeve Glass, associate professor of law at the Columbia Law School, upon her being awarded the Willis L.M. Reese Prize for Excellence in Teaching by students in the graduating Class of 2021.  Her teaching includes a seminar of the Legal History of American Slavery.
  • The Essex Historical Society is holding a three-part lecture series, “A Shared Past: Early African Americans in the Lower Connecticut River Valley.”  We note particularly that on Sunday, May 16 at 3 p.m. Dr. Jesse Nasta, a visiting assistant professor of African American studies at Wesleyan University, is scheduled to present “Sailors and Freedom Fighters: African Americans in the Connecticut River Valley, 1765–1865.” 
  • At 6 p.m. on Wednesday, April 14, the Delaware County Historical Society  will host a free dialogue on “Women’s Journey for Equal Rights.” Registration is necessary here.  “The program will highlight the contributions of Alice Paul, a county resident who attended Swarthmore College and transformed constitutional history.  (Daily Times.)
  • The members of the Presidential Commission on the Supreme Court of the United States are listed here.
  • The Missouri Supreme Court has launched a website celebrating the bicentennial of the state’s judiciary (Courier Tribune).
  • Angela Fernandez on Christopher L. Tomlins’s In the Matter of Nat Turner on Jotwell.
  • The Policy History Conference scheduled for this June has been canceled.  One will be held on June 1-4, 2022 in Tempe, Arizona.  A new call for papers, with the following submission guidelines, will go out in the coming weeks. 
  • Universities Studying Slavery will hold a virtual conference on April 15-16, 2021 at Georgetown University.  It is a consortium of 80 colleges and universities that meets twice yearly “to explore best practices and guiding principles about truth-telling projects addressing enslavement and racism in institutional histories.”  Register here.  Panels will be recorded and available through Georgetown’s Slavery, Memory, and Reconciliation website for viewing at a later date.
  • The “Centro de Investigação de Direito Privado (University of Lisbon - Faculty of Law), will hold an international conference/webinar on Indeterminate Concepts - 14, 15 and 16 of April /2021 (2:30 pm until 19:30 pm, BST). ... Presentations (in Portuguese) will be delivered by Portuguese and Brazilian professors.  Each session will have one hour of open debate and discussion.  The conference is free. Prior registration is required.  
  • ICYMI: A report of Martha Minow’s Grob Lecture on American Jewish Life at UVA (Cavalier Today).  Genna Rae McNeil–the first "Black tenure-track faculty member in UNC's history department–will retire this semester after working at UNC for 36 years” (Daily Tar Heel).  A crowd research project on racially restrictive covenants in Chicagoland (WBEZ).  Julie Suk on the ERA (Ms.)

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

Friday, April 9, 2021

Guggenheim Fellowships to Kessler, Perry, Premo, Rudolph & more

The John Simon Guggenheim Memorial Foundation has announced its 2021 fellows. We were excited to see multiple scholars whose work engages law and history:

  • Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and Professor (by courtesy) of History, Stanford University 
  • Imani Perry, Hughes Rogers Professor of African American Studies, Princeton University
  • Bianca Premo, Professor of History, Florida International University
  • Julia Rudolph, Professor of History, North Carolina State University

Congratulations to all!

-- Karen Tani

Houser's "Bureaucrats of Liberation"

Myra Ann Houser, Associate Professor of History, Ouachita Baptist University, has published Bureaucrats of Liberation: Southern African and American Lawyers During the Apartheid Era (Leiden University Press, distributed by the University of Chicago Press, 2021):

Bureaucrats of Liberation
narrates the history of the Southern Africa Project of the Lawyers’ Committee for Civil Right under law, a civil rights organization founded in 1963 at the request of President John F. Kennedy. Between 1963 and 1994, the Southern Africa Project connected lawyers from Namibia, South Africa, and the United States. Within the Project’s network, activist lawyers exchanged funding resources, provided logistical support for political trials, and mediated new voting and governmental systems.

The Project’s history provides a lens into twentieth century geopolitics tied to anti-apartheid, decolonization, Cold War, and movements agitating against white supremacy. In doing so, it pays careful attention to the Project’s different eras, beginning with US Executive Branch officials helming the effort and evolving into a space where more activist-oriented attorneys on both sides of the Atlantic drove its mission and politics.

--Dan Ernst

Thursday, April 8, 2021

Weidemaier on Lawyers, Self-Government and the London Stock Exchange

W. Mark C. Weidemaier, University of North Carolina at Chapel Hill, has published Law, Lawyers, and Self-Governance During the Heyday of the London Stock Exchange in Law and Contemporary Problems 82 (2019): 195-223.  From the article:

This Article draws on original archival research, including the minutes of [London Stock Exchange (LSE)] committee meetings and correspondence with solicitors, to examine how the LSE managed its relationship with English courts and common law in the late nineteenth and early twentieth centuries. By studying that problem—rather than the problem of enforcing bargains—we can see the artificiality of any neat dichotomy between private and public legal systems. To keep English courts from disrupting its affairs, the LSE used both extralegal tools—for example, expelling members who filed prohibited lawsuits—and legal tools—such as monitoring judicial developments and funding litigation. Regardless of the nature of the tool, lawyers often shaped its response, and their advice was guided by explicitly legal concerns.
–Dan Ernst

Lustig on international law and the private corporation

Doreen Lustig (Tel Aviv University) published Veiled Power, International Law and
the Private Corporation, 1886-1981
 with Oxford University Press in 2020. From the publisher: 

Veiled Power conducts a thorough historical study of the relationship between international law and business corporations. It chronicles the emergence of the contemporary legal architecture for corporations in international law between 1886 and 1981. 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 the conceptual framework this book offers for the legal analysis of corporations in international law. 
By 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 - a variety of contexts are covered, including international criminal law, human rights, natural resources, and the multinational corporation as a subject of regulatory concern. Together, these case studies offer a multifaceted account of the history of corporations in international law over time. 
The book seeks to demonstrate the facilitative role of international law in shaping and limiting the scope of responsibility of the private business corporation from the late-nineteenth century and throughout the twentieth century. Ultimately, Lustig suggests that, contrary to the prevailing belief that international law failed to adequately regulate private corporations, there is a history of close engagement between the two that allowed corporations to exert influence under a variety of legal regimes while obscuring their agency.

 Praise for the book:

"... Lustig has produced a compelling and well-documented narrative. Scholars of international law as well as legal historians and legal theorists will find much to their interest in this monograph, which deserves to be read widely." - Filip Batselé

"Lustig's work is an excellent piece of scholarship providing much information regarding the direct paradigms that shape multinational corporations in international law and is a useful reference tool for those who are working on the history of international economic law." - P. Sean Morris

Further information is available here.

--Mitra Sharafi

Wednesday, April 7, 2021

Luban on Two Third Reich Lawyers

David Luban, Georgetown University Law Center, has posted Complicity and Lesser Evils: A Tale of Two Lawyers, which is to appear in the Georgetown Journal of Legal Ethics with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince:

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

 --Dan Ernst

Chin and Chin on the War against Asian Sailors and Fishers

Gabriel Jackson Chin, University of California, Davis School of Law, and Sam Chew Chin, CUNY Graduate Center, have posted The War Against Asian Sailors and Fishers, which is forthcoming in the UCLA Law Review:

Beginning in the 1880s, maritime unions sought federal legislation to prevent Chinese, Japanese, Filipino, and Asian Indian sailors from serving as crew on U.S.-Flag vessels. This campaign succeeded in mandating citizenship requirements for crews which remain in the U.S. Code today. Similarly, federal and state laws limited the ability of Asians to fish, own fishing boats, or to serve on crews of fishing vessels. Few of these laws targeted Asians by name, but legislative history and contemporary media accounts make clear that racial exclusion motivated many facially neutral requirements such as literacy tests and restriction of jobs to citizens or those who had declared their intention to become citizens. As U.S. law restricted naturalization by race from 1790 to 1952, requiring citizenship had direct racial effects—white immigrants could be fishers or sailors, but not Asian immigrants. The expansiveness of exclusionary laws across time, geography, and level of government, its use of proxy categories to achieve racial discrimination, and yet its obscurity today, suggest the comprehensive nature of racial discrimination in the pre-Civil Rights era.

--Dan Ernst

CFP Workshop on the UN War Crimes Commission

[We have the following announcement.  DRE]

The United Nations War Crimes Commission (UNWCC), which operated from 1943-48, was a UN agency that supported localised prosecutions of international crimes committed during the Second World War. The Commission was composed of representatives from 16 Allied States and through its work war crimes and crimes against humanity were prosecuted in tribunals located in Europe and the Far East. Over the course of its lifetime, more than 2000 trials took place. The work of the UNWCC gives an insight into substantive and procedural international criminal law in the post war period.

Dr. Amina Adanan of Maynooth University Law Department is organising two online events this year, as part of her project on the UNWCC funded by the Royal Irish Academy. The aim of the project is to bring together UNWCC scholars from all over the world in an international collaborative network.

The first of these virtual events is a workshop, which will take place on 28 May 2021. The online workshop is an opportunity for UNWCC scholars to present on any aspect of their UNWCC research and receive feedback on their work from the other experts and attendees in a constructive environment. Presentations will be 10-15 mins and the event will include keynote lectures by leading scholars on the UNWCC.

Submissions for active participation in the workshop are sought by scholars working in the field. The closing date for submissions is 20 April 2021. For more information please click here.

Tuesday, April 6, 2021

Documents from Nigeria: A Photograph of Sir Egbert Udo Udoma

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 first of four. 

In the photograph I have of him, Sir Egbert Udo Udoma is seated in his chambers at the High Court in Kampala, Uganda, looking grumpily into the camera in full ceremonial dress. He autographed it grandly, and dated it May 1965, two years into his tenure as Uganda’s Chief Justice. Unlike the other sources I’ll write about this month, this one is not held by an archive or library. Rather, it comes from a less rarefied place: Ebay, where I bought it from someone who was presumably cleaning out his attic. 

Udoma was Nigerian judge who served as the first African Chief Justice of Uganda. He was one of a small, elite group of West African judges who traveled the length and width of the continent after independence, filling high-level positions in the judiciaries of eastern and southern Africa which had been vacated by Europeans and South Asians. Even though he is not well known today, Udoma had a fascinating career. Through his rulings, he exerted a subtle but important influence on African politics. Most importantly, he decided the case that paved the way for executive authoritarianism in his adopted country, Uganda v. Commissioner of Prisons, Ex Parte Matovu. He later returned to Nigeria, where he served on the Supreme Court. Intra-African judicial appointments like the one that brought Udoma to Uganda are less common today than in the past, but there is still a circuit that brings judges from West Africa to other places in the Commonwealth. Nigerian, Ghanaian, and Gambian judges serve across the small nations of the South Pacific, and in several jurisdictions in the Caribbean and central America. 

What kind of a judge has autographed headshots? The answer is one like Udoma – ambitious, upwardly mobile, and acutely aware of his image. His portrait is a reminder that celebrity is important in certain legal cultures. It’s clear why lawyers might want to cultivate fame – repute brings in business – but celebrity judges are less common. Why would a judge want to be famous, and how does celebrity shape the professional culture of the judiciary? My colleague Elizabeth Jacqueline Marcus (Newcastle University) and I are currently writing a paper on this topic, and Udoma figures in it. 

Udoma’s photograph is also interesting for how he is dressed. Like all Nigerian judges, Udoma wore the same outfit as his colonial predecessors, including robes and an elaborate white horsehair wig. Many African judiciaries have since done away with the wig, but Nigeria retains it to this day. Many outsiders to the legal profession see the wig as comic or pathetic, and non-lawyers mock it. To critics, it is a reminder that Nigeria’s legal system is of foreign origin – tangible proof that it was made by and for white men several centuries ago. Nonetheless, judges are attached to their wigs. To many of them, the wig stands for continuity, not colonial backwardness. It is an indispensable part of law’s pageantry, and judges and lawyers cherish it as a marker of their membership in a professional guild. Radical ideas can come from judges who wear wigs, and I’ve learned not to confuse the trappings of law with its substance. 

Bassok on Constitutional Thought and the Havard Law Review Forewords

Or Bassok, University of Nottingham Faculty of Law and Social Sciences, has posted Beyond the Horizons of the Harvard Forewords, which is forthcoming in volume 70 of the Cleveland State Law Review (2021):

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support to function properly, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords.

That “tribal campfire” metaphor is pretty terrific, especially when you remember that someone was always getting roasted.  

–Dan Ernst

Schmidt to Discuss "Civil Rights in America"

Christopher W. Schmidt discusses his book Civil Rights in America: A History today at 4 PM CT in an event sponsored by the American Bar Foundation, where he is a Research Professor.  Register here.

--Dan Ernst

Global Forensic Histories Workshop

A group of historians of law, medicine, and science came together for a virtual workshop in March 2021. The Global Forensic Histories Workshop was co-organized by Binyamin Blum (UC Hastings Law) and our blogger Mitra Sharafi (University of Wisconsin Law School). It was co-sponsored by UC Hastings Law, UW Law School, and the American Society for Legal History. 

Here is the line-up of papers:

Day 1 (Chair: Binyamin Blum)

Khaled Fahmy (University of Cambridge), “Forensic Medicine in nineteenth- century Egypt”

  • Mina Khalili (New York University), “Redefining Criminal Evidence”

Susanna Blumenthal (University of Minnesota), “Toward a Genealogy of the Pathological Liar”

Mitra Sharafi (University of Wisconsin–Madison), “Planted Poison and Wrongful Convictions”

Ian Burney (Manchester University), “A History of Innocence: Erle Stanley Gardner, the Court of Last Resort, and the Pursuit of Wrongful Conviction in Post-war America”

Day 2 (Chair: Mitra Sharafi)

Projit Mukharji (University of Pennsylvania), “Psychic Detectives: Occult technologies and braided forensics in the British Raj”

Keren Weitzberg (University College London), “White Backlash”

Claire Cage (University of South Alabama), “Reproductive Bodies and Forensic Medicine in Modern France”

Catherine Evans (University of Toronto), “Burning Bodies and Medico- Legal Expertise in Nineteenth-Century Britain”

Binyamin Blum (University of California, Hastings), “Forensic Culture in the Age of Empire: How Colonialism Shaped the Forensic Sciences”

Chris Hamlin (University of Notre Dame), “The severing of forensic medicine from public health”

The group shared meals at the end of each day using Uber Eats and SpatialChat.

--Mitra Sharafi

Monday, April 5, 2021

Zipes's Biography of Frank Murphy

Greg Zipes has published Justice and Faith: The Frank Murphy Story (University of Michigan Press):

Frank Murphy was a Michigan man unafraid to speak truth to power. Born in 1890, he grew up in a small town on the shores of Lake Huron then rose to become Mayor of Detroit, Governor of Michigan, and finally a U.S. Supreme Court Justice. One of the most important politicians in Michigan’s history, Murphy was known for his passionate defense of the common man, earning him the pun, “tempering justice with Murphy.”

Murphy is best remembered for his immense legal contributions supporting individual liberty and fighting discrimination, particularly discrimination against the most vulnerable. Despite being a loyal ally of Franklin Delano Roosevelt, when FDR ordered the removal of Japanese Americans during World War II, Supreme Court Justice Murphy condemned the policy as “racist” in a scathing dissent to the Korematsu v. United States decision—the first use of the word in a Supreme Court opinion. Every American, whether arriving by first class or in chains in the galley of a slave ship, fell under Murphy’s definition of those entitled to the full benefits of the American dream.

Justice and Faith explores Murphy’s life and times by incorporating troves of archive materials not available to previous biographers, including local newspaper records from across the country. Frank Murphy is proof that even in dark times, the United States has extraordinary resilience and an ability to produce leaders of morality and courage.

--Dan Ernst

Touro Law Review special issue on the life and legacy of Charles A. Reich

In January of 2020, Touro College Jacob D. Fuchsberg Law Center held a small conference to honor the life and legacy of Charles A. Reich. In the words of the organizers: 

Charles A. Reich looms large in the history of American law and society of the second half of the twentieth century. His law review article “The New Property” not only influenced Supreme Court case law, but continues today to inform how Property and Constitutional Law are taught. His best-selling book The Greening of America explained the 1960s counterculture. The conference examined his life’s work and how it influenced the law.

The Touro Law Review has now published many of the remarks from that conference, along with some previously unpublished writing by Charles Reich himself. Here's the Table of Contents from the special issue:

Introduction to the Conference: Commemorating the Life and Legacy of Charles A. Reich
Rodger D. Citron

Introduction to Charles A. Reich’s Keeping Up: Walking with Justice Douglas
Rodger D. Citron

Keeping Up: Walking with Justice Douglas
Charles A. Reich

My Friend, Charles Reich
Hon. Guido Calabresi

Charles Reich: Due Process in the Eye of the Receiver
Harold Hongju Koh

Charles Reich, New Dealer
John Q. Barrett

The Poverty Law Education of Charles Reich
Felicia Kornbluh and Karen M. Tani

Charles Reich and the Legal History of Privacy
Sarah A. Seo

Private Largess in the Digital Age: Privacy in Reich's the New Property
Raymond H. Brescia

Completing the Portrait: Concluding Thoughts About Charles Reich
Rodger D. Citron

-- Karen Tani

Saturday, April 3, 2021

Weekend Roundup

  • Registration is now open for ASLH 2021: the annual meeting of the American Society for Legal History, to be held in New Orleans, Louisiana on November 5-6, 2021. Register here.  Reserve a room in the conference hotel, the InterContinental New Orleans, for just $189/night, here.
  • In other ASLH news: “the ASLH announces a competition for 10 small grants to support legal history research in digital and print sources this summer. The application is open to ASLH members who are current graduate students at any stage as well as recent PhD or JD graduates (2019 or later).”  More.  
  • The Docket 4:1 (March 2021), an on-line companion to Law and History Review, "featuring interviews, articles, and more," is out!  Also: it's looking for a new editor.  Contact grao at american dot edu.
  • How Heather Sharkey and her students transcribed Alice Paul’s doctoral dissertation, “The Legal Position of Women in Pennsylvania" (1912).   (Penn Today)
  • Do you wonder about working with a developmental editor? Some answers here.
  • ICYMI: Just Deeds: Removing racially restrictive covenants in Minnesota (Sun Today).  Edward Kolla, Georgetown University-Qatar, on the history of passports (Gulf Times).

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

Friday, April 2, 2021

Legal Studies at Nova Southeastern

[We hear from our friends at Nova Southeastern University is readvertising the following position.  DRE.]

The Department of Humanities and Politics is looking for a full time faculty member in Legal Studies. Minimum requirements are an MA in either Philosophy, English, History, or Political Science along with a J.D. or a Ph.D. in one of these fields with an emphasis on: civil liberties; constitutional history; environmental law. The ability to teach courses in other disciplines housed in the Department of Humanities and Politics is very important. ABD’s close to completion will be considered.
The facutly member being replaced was a legal historian.  Those doing legal history, including advanced ABDs with JD in hand, are encouraged to apply.

Introduction: Four Documents from Nigeria Under Martial Law

I’m grateful to the editors of the Legal History Blog for inviting me to contribute this month, and especially to Professor Mitra Sharafi for the warm welcome!

For my stint as a guest blogger, I’d like to share four documents about four people, each of which reveals something important about law in postcolonial Nigeria. They include a list of burned belongings, a self-help book for Christian women, a gossipy memoir, and a wrinkled photograph. They all figure marginally in a book I’m currently writing, Soldier’s Paradise: Military Rule in Nigeria, which uses legal sources to understand Nigerian politics and society during its long period of martial law. The book shows how law and authoritarianism were intertwined in the four decades of military rule, and how soldiers used law in their ideology and administration. They had been trained for the battlefield, not for public life, and they valued law because it gave them a set of tools to “discipline” civilians – or so they thought. The legal system was the bridge that connected the military to Nigerian society at large, but it didn’t always work the way soldiers wanted it to. Judges were not always the disciplinarians the military hoped they would be, and law’s force could cut more than one way. 

Studying law exposes the lie that decolonization was a story of doomed revolutionaries and the elites who sold them out. This was a time of strange bedfellows and surprising political commitments. In courtrooms and tribunals, unexpected stands were taken, and puzzling alliances were made. We find British-trained military strongmen borrowing radical language from Frantz Fanon or Ngũgĩ wa Thiong'o, and committed anti-colonialists arguing that English law was the only thing that could bring about true decolonization. Judges and soldiers shared a rhetorical commitment to “independence,” but they seldom agreed about what it was. Bright moral lines became hazy in court. Sometimes, soldiers who publicly venerated freedom were the people most committed to preserving colonialism despotism – and sometimes it was stodgy, Anglophile judges who took the most radical positions against the military. Decolonization was shadier than the pieties of national historiography allow, and nothing shows this better than law. 

The four sources I'll be sharing with you this month are not the most consequential ones I could have chosen. None are well-known in Nigerian jurisprudence, and with the exception of one involving the musician Fela Kuti, they are not about well-known people or events. Rather, I’ve chosen them because they stood out to me on the shelf, or jumped off the page in a law report. Some of them probably seemed important to me because I’m not a lawyer, which, if I’m being honest, is a longstanding source of anxiety. I do not have legal training, which means I don’t always zero in on the most important part of a case. I am too far down the legal history path to turn back now, but there are still many things about law that I find bewildering. My ignorance leads me to make mistakes, both empirically and interpretively. But being an outsider can also be an asset (or so I tell myself). The confusion and frustration that I sometimes feel about law is what most people feel about it all the time. This is useful when I’m trying to understand how people navigate law, or what they think it is (which is not always the same as what it actually is). My stumbles mirror those of the soldiers I write about, who got tripped up by procedure and terminology too. After all, misunderstandings can shape how people use law as much as what they get “right” about it. 

Borrowing an organizational premise from Rohit De, I’ll be posting reflections on a document by each of the following personalities: 

A globetrotting judge 
A scandalous musician 
A litigious businesswoman 
An ambitious magistrate 

You can expect a post every Tuesday. I look forward to it! 

samuel.furychilds.daly [at] duke [dot] edu

Twitter: @sfcdaly

Pfander and Joffroy on Federalists, Slavery and the Equal Footing Doctrine

James E. Pfander, Northwestern University School of Law, and Elena Joffroy, a 2020 graduate of Northwestern Law, have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time, which is forthcoming in the Fordham Law Review:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

--Dan Ernst

Thursday, April 1, 2021

Minow to Speak at UVA on Nuremburg Trials at 75

[We have the following announcement.  DRE]

On Tuesday, April 6, 2021 - 8:00 p.m. to 9:00 p.m. EDT, the University of Virginia Jewish Studies Program will host Professor Martha Minow (Harvard Law School) for the 2021 Grob Lecture on American Jewish Life, “The Nuremberg Trials at 75: Lessons and Legacies.” Registration available here.

ASIL Prize to Wheatley

The American Society of International Law has awarded its International Legal Theory

Scholarship Prize to Natasha Wheatley (Princeton University) for her article, "Legal Pluralism as Temporal Pluralism: Historical Rights, Legal Vitalism, and Non-Synchronous Sovereignty" in Dan Edelstein, Steganos Geroulanos and Natasha Wheatley, eds., Power and Time: Temporalities in Conflict and the Making of History (Chicago: University of Chicago Press, 2020). Here is the opening of the piece:

Theoretically prior to any enunciation of law’s power is the notion of jurisdiction—the “share of the world” for which that law carries force. We often think about jurisdiction in spatial terms: as a zone, a sphere, a blocked out shape on a world map; as something that travels along roads and trade routes, that clings to coastlines or extends out across oceans, that overlaps in imperial borderlands, that layers with geographically intermingled communities, or that clumps unevenly the pockmarked capacity of a “weak state.” But what if law’s authority broke up and collided along axes of time and not just space?

 This essay opens up the history of some temporally frustrated sovereignties—sovereignties that layered or splintered according to a temporal metric instead of (or as much as) a spatial one. I focus on state formations forced to wrestle with bodies of law and bundles of rights that stemmed from a time before the advent of their own sovereignty. As against more contained sorts of rights routinely digested into new states and assimilable without conceptual violence or structural incoherence (civil laws, for example), I am interested in rights claims that reach toward or threaten the scale of sovereignty itself. Latent, simmering, maybe half-smothered, such rights can linger as deepset sovereign qualifications—as legal reminders that the establishment of the state was a not a totalizing phenomenon, that rights could evade its transformative grasp and puncture its pretension to seamless jurisdiction and seamless sovereignty. These are rights “from” the past that refuse to be simply “of ” the past: they keep pace with history and continually reanchor themselves in the present, even if they are politically or philosophically at odds with the current sovereign order. In refusing to be subsumed by the state’s legal order, these rights engender a legal pluralism whose relative strength or weakness is contested through temporal metaphors and logics rather than spatial ones: protagonists debate the “survival” or “extinguishment” of rights, assert their “continuity” or “rupture,” their “renewal” or “relinquishment.” They ask if rights are living or if they are dead.

Further information is available here.

--Mitra Sharafi