Tuesday, August 31, 2021

British Legal History Conference: Deadline Extended

[We are moving this post up, as we have just learned that the deadline for submissions has been extended to September 27, 2021.  DRE]

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

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

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

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

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

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

Please note the following rules:

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

Please indicate if your proposal is contingent on the availability of an option of online participation.  The deadline for submission of abstracts is [September 27, 2021].  Queries can be emailed to BLHC-2022-info@qub.ac.uk  At the conference, individual oral presentations will last 15-20 minutes.

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

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

Ledolter and VanderVelde's "Analyzing Textual Information"

Johannes Ledolter and Lea S. VanderVelde, both of the University of Iowa, have published  Analyzing Textual Information: From Words to Meanings through Numbers (Sage):

Researchers in the social sciences and beyond are dealing more and more with massive quantities of text data requiring analysis, from historical letters to the constant stream of content in social media. Traditional texts on statistical analysis have focused on numbers, but this book will provide a practical introduction to the quantitative analysis of textual data. Using up-to-date R methods, this book will take readers through the text analysis process, from text mining and pre-processing the text to final analysis. It includes two major case studies using historical and more contemporary text data to demonstrate the practical applications of these methods. Currently, there is no introductory how-to book on textual data analysis with R that is up-to-date and applicable across the social sciences. Code and a variety of additional resources are available on an accompanying website for the book [here].

Professor VanderVelde tells us that she and Professor Ledolter wrote the book as “an introduction to the tools of text analysis, using ... two historical databases that I’ve been creating for some time now:  the Territorial Papers of the United States, and the Congressional Globe of the 39th Congress.  These databases differ in the challenges that they present for text analysis.  The Territorial Papers are letters originally hand written, full of misspellings, but published in the 20th century.  The Congressional Globe consists of the back and forth of oral statements taken down by trained stenographers, but set in narrow columns of hand-carved, hand-set type.  The book takes the reader step by step through the process of cleaning the texts, coding metadata, and using increasingly sophisticated methods of analysis: visualization, sentiment analysis, and topic modelling."

--Dan Ernst

Monday, August 30, 2021

Seeley, "Race, Removal, and the Right to Remain: Migration and the Making of the United States"

The Omohundro Institute of Early American History and Culture and the University of North Carolina Press have published Race, Removal, and the Right to Remain: Migration and the Making of the United States, by Samantha Seeley (University of Richmond). A description from the Press:

Who had the right to live within the newly united states of America?

In the country’s founding decades, federal and state politicians debated which categories of people could remain and which should be subject to removal. The result was a white Republic, purposefully constructed through contentious legal, political, and diplomatic negotiation. But, as Samantha Seeley demonstrates, removal, like the right to remain, was a battle fought on multiple fronts. It encompassed tribal leaders’ fierce determination to expel white settlers from Native lands and free African Americans’ legal maneuvers both to remain within the states that sought to drive them out and to carve out new lives in the West. Never losing sight of the national implications of regional conflicts, Seeley brings us directly to the battlefield, to middle states poised between the edges of slavery and freedom where removal was both warmly embraced and hotly contested.

Reorienting the history of U.S. expansion around Native American and African American histories, Seeley provides a much-needed reconsideration of early nation building.

Advance praise:

“Since the founding of the United States, lawmakers have funneled enormous energy into policing and confining the mobility of Native and Black people while casting free movement as white privilege. Against these fantasies, Indigenous people crafted powerful arguments to claim sovereignty and territory, while African Americans mobilized to remain in communities they called home. Seeley brings a much-needed perspective to these interconnected histories of race, rights, and migration.”—Honor Sachs

“Positing removal as a foundational concept in American life, Seeley radically expands its meaning and traces its impact beyond the discrete moment of the Trail of Tears and the Indian Removal Act. This is pathbreaking work, a significant intervention in early American historiography.”—Michael Witgen

More information is available here.

-- Karen Tani

Saturday, August 28, 2021

Weekend Roundup

  • Above the Law's Kathryn Rubino interviews Patricia Cain about Paving the Way: The First American Women Law Professors and her career.
  • The University of Arkansas School of Law Alumni Society Board of Directors has awarded its 2021 Commitment to Justice award to the federal judge (and legal historian) Morris Arnold. (More.)
  • On September 16th from 3-4 p.m. EDT, the Library of Congress will present (via webinar) its annual Constitution Day Lecture. Kurt Lash (University of Richmond) will present “The Transformation of the Bill of Rights: Incorporation Doctrine and the Fourteenth Amendment.” More information here
  • The Balkinization symposium on James Pfander's Cases Without Controversies comes to a close, with several author responses (here's the first).
  • "Roosevelt Institute Morgenthau Scholar Dr. Abby Gondek talks to FDR Library Supervisory Archivist Kirsten Carter about how data visualizations from 3,000 letters from the public about the Emergency Refugee Center in Oswego, NY, reveal the US government’s response through the War Refugee Board to rescue refugees during the Holocaust."  (FDRLibrary YouTube)
  • ICYMI:  Lawrence B. Glickman on "Business as Usual: The Long History of Corporate Personhood" (Boston Review)Melvin I. Urofsky reviews Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, by Erwin Chemerinsky (NYT).  Mary Ziegler on the Texas, the Supreme Court and Roe v. Wade (NYT).

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

Friday, August 27, 2021

Campbell on Neutrality in 1st Amendment Jurisprudence

Jud Campbell, University of Richmond School of Law, has posted The Emergence of Neutrality, which is forthcoming in the Yale Law Journal:

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, protecting speech within socially defined boundaries. And the modern embrace of content and viewpoint neutrality, it turns out, occurred only in the 1960s as the Supreme Court merged earlier strands of rights jurisprudence in novel ways. The emergence of neutrality, this Article shows, was more gradual, more contested, and more contingent than we now assume. Recovering this history exposes the novelty of the modern neutrality paradigm, and it casts new light on the history of other First Amendment concepts, like prior restraints, low-value speech, and overbreadth.

To understand these developments, it is necessary to trace a second doctrinal genealogy focusing on the very idea of fundamental rights. Older views of expressive freedom, this Article reveals, were embedded in a different conceptual framework for thinking about rights. And once again, the role of neutrality was radically different. Today, neutrality is ubiquitous in rights discourse, reflecting the prevailing view that rights are domains in which people can make their own moral choices. Thus defined, rights need not be absolute, but they at least demand governmental neutrality with respect to values—a view that is reinforced by the undesirable alternative of judges defining non-neutral boundaries. Yet this neutrality-based view of rights also emerged well into the twentieth century, reflecting a transmogrified synthesis of earlier ideas.

Recovering these older paradigms powerfully illustrates how deeply our own perspective shapes the way that we view the Constitution. Things that appear natural when reading the First Amendment, it turns out, are refracted through a distinctively modern lens. Integrating history into modern rights jurisprudence thus poses a substantial and unresolved challenge, warranting further engagement by scholars and judges.

--Dan Ernst

Pollman, "Corporate Personhood and Limited Sovereignty"

Elizabeth Pollman (University of Pennsylvania Carey Law School) has posted "Corporate Personhood and Limited Sovereignty," which is forthcoming in the Vanderbilt Law Review. Here's the abstract:

This Essay, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as right-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their constitutional treatment, the Court’s nineteenth-century rulings bolstered key features created by corporate law and simultaneously situated the corporation as subordinate to the state in a system of federalism. And, finally, the Essay suggests that the balance of power struck in the first century of Supreme Court jurisprudence on corporate rights has been eroded in the modern era. The Supreme Court’s failure to develop a consistent approach to corporate rights questions and its tendency to reason based on views of corporations as associations of persons have exposed a significant flaw in the Court’s evolving corporate personhood jurisprudence: it lacks a limiting principle. 

The full essay is available here.

-- Karen Tani

Thursday, August 26, 2021

Carter on the Second Founding and the First Amendment

William M. Carter, Jr.,University of Pittsburgh School of Law, has published The Second Founding and the First Amendment in the Texas Law Review.  Form the introduction:

The nation's founding compromise with slavery resulted in a Constitution that proclaimed universal liberty in theory while protecting human enslavement in practice.  After centuries of struggle and a cataclysmic Civil War, a new constitutional order emerged: A Second Founding of the nation that sought to dismantle the legacies of slavery and turn American law away from nearly two hundred fifty years of race-based enslavement and discrimination. In order to remedy the First Founding's defects, the Second Founding amended the Constitution to prohibit slavery and empower Congress to remediate slavery's lingering effects; to recognize Black citizenship and protect rights to due process and equal protection for all; and to enfranchise African-Americans on a national basis.

These specific constitutional changes, while monumental, do not fully capture the scope of the Second Founding's constitutional moment as envisioned by its Framers. The post-Civil War Constitution also addressed the systemic legacy of the system of enslavement upon our constitutional order. No more would the Constitution, in the words of Senator Charles Sumner, be interpreted as it had been previously: that is, "in every clause and line and word, [in favor of] Human Slavery." Rather, there would be a new mandate to constitutional interpretation, whereby the Constitution would be "interpreted uniformly and thoroughly for human rights.”

Notwithstanding the clear break from the prior constitutional order that the Civil War Era represented, the Supreme Court's cases interpreting pre-Civil War constitutional provisions generally treat the Second Founding as merely a continuation of the First Founding. Nowhere is that truer than in the Court's cases interpreting the First Amendment's guarantee of freedom of speech. This Article takes the Second Founding seriously by examining the many denials of free speech inflicted upon enslaved persons and their allies during the pre-Civil War Era; the expressed views of the post-Civil War Framers regarding freedom of speech and the promise of full and equal protection of Black and antiracist speech henceforth; and, most importantly, the views of enslaved persons regarding freedom of speech.
–Dan Ernst

Wednesday, August 25, 2021

François on "Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence"

My Georgetown Law colleague Aderson Bellegarde François’s article, A Lost World: Sallie Robinson, the Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence, has been published in the Georgetown Law Journal:

“It is the sound of vanishing—the music as it plays itself to silence, the train as it travels away, a voice left on magnetic tape.”

The Supreme Court tells stories about who and what we are—the sort of “knowledge about [the] past that is shared, mutually acknowledged and reinforced by a collectivity.” The Court is uniquely suited for this role: not just because of the moral authority it brings to the task of adjudication, and not just because of the rituals it uses for its decisionmaking, but also because the very act of telling and retelling in issuing decisions results in layers of these stories being deposited on and shaping constitutional doctrine. In time, and with each iteration—like sandy water flowing over sedimentary rock—these stories settle, gather together, harden, and become part of constitutional topography—sheer repetition makes them reified. These stories, a mix of fact and aspiration, a mingling of doctrine and metaphors, rubbed smooth of contradictions, translated for public consumption, even when hotly contested in the caverns of academia, keep us bound to a “conscious community of memory,”—a pact about the larger lessons to be derived from our past. There is a federalism story about how the Founders’ experience with a distant, indifferent king led them to set up a government with defined limited federal power; a free-speech story about how our collective ability to think and speak freely contributes to an open marketplace of ideas; and a right-to-bear-arms story about how the Second Amendment serves as a bulwark against government tyranny. There is no equivalent story—at least none that the Court itself has had a role in telling—about how slavery and white supremacy shaped the American identity.

To the contrary, the singular effect—if not purpose—of the Supreme Court’s jurisprudence on the experience, status, and place of Black people in America has been to erase slavery from the constitutional stories the Court tells about American democracy. The Court has managed this feat so successfully that the main role slavery plays in the collective constitutional imagination today is as remembrance of how its abolition affirmed the genius of the Framers’ vision and redeemed the righteous-ness of the country’s Founding. This act of willful forgetting began in earnest during Reconstruction, when, even as Black people roamed the countryside and searched newspaper ads for mothers, fathers, sons, and daughters sold away to distant plantations before the war, the Court explained that the Thirteenth Amendment abolished nothing more than involuntary servitude, that neither the Thirteenth nor the Fourteenth Amendment imposed an obligation upon the federal government to protect Black people from white violence, and that Black people’s invocation of the Fourteenth Amendment’s equality principle was akin to their wanting to become a special favorite of the law.

This Article is an attempt at digging up one story of slavery and trying to input it into the collective constitutional imagination. The Article uses one decision to tell the story—the Civil Rights Cases. It also uses one person—a woman named Sallie Robinson. Apart from those she loved and who loved her in return, Sallie lived out her days in relative obscurity, but that life—at least the pieces and fragments of it we can gather— is as legitimate a part of our constitutional myth making as the lives of the men on the Court whose writings hardly ever acknowledged that people like Sallie existed and mattered.
–Dan Ernst

Tuesday, August 24, 2021

Anderson, "The Second: Race and Guns in a Fatally Unequal America"

New from Bloomsbury Publishing: Carol Anderson (Emory University), The Second: Race and Guns in a Fatally Unequal America (2021). A description from the Press:

In The Second, historian and award-winning, bestselling author of White Rage Carol Anderson powerfully illuminates the history and impact of the Second Amendment, how it was designed, and how it has consistently been constructed to keep African Americans powerless and vulnerable. The Second is neither a “pro-gun” nor an “anti-gun” book; the lens is the citizenship rights and human rights of African Americans.

From the seventeenth century, when it was encoded into law that the enslaved could not own, carry, or use a firearm whatsoever, until today, with measures to expand and curtail gun ownership aimed disproportionately at the African American population, the right to bear arms has been consistently used as a weapon to keep African Americans powerless--revealing that armed or unarmed, Blackness, it would seem, is the threat that must be neutralized and punished.

Throughout American history to the twenty-first century, regardless of the laws, court decisions, and changing political environment, the Second has consistently meant this: That the second a Black person exercises this right, the second they pick up a gun to protect themselves (or the second that they don't), their life--as surely as Philando Castile's, Tamir Rice's, Alton Sterling's--may be snatched away in that single, fatal second. Through compelling historical narrative merging into the unfolding events of today, Anderson's penetrating investigation shows that the Second Amendment is not about guns but about anti-Blackness, shedding shocking new light on another dimension of racism in America.

Advance praise:

“In this extraordinarily important book, Dr. Anderson shows that the Second Amendment was designed, and has always been implemented, to enable white Americans to dominate their Black neighbors. In her trademark engaging and unflinching prose, Dr. Anderson traces America’s racist history of gun laws from the 1639 Virginia colony’s prohibition on Africans carrying guns to the recent police murders of Breonna Taylor and Emantic Bradford, Jr., showing how calls for ‘law and order’ have concentrated guns in the hands of white people while defining Black gun ownership as a threat to society. Anderson’s deft scholarship convincingly places the right to use force at the center of American citizenship, and warns that the Second Amendment, as it is currently exercised, guarantees that Black Americans will never be equal.” -- Heather Cox Richardson

“Carol Anderson brings her storied sense of the intertwining of past and present, her keen insights into the wiles of racism, and her passionate prose to this extraordinary take on the meaning of the Second Amendment. This is a necessary history of the roots of gun obsession in slavery, racial assumptions, legal and political fictions that may have put America on a ‘fatal’ spiral we can only hope to prevent. Let's dream that this book echoes across the partisan canyon.” -- David W. Blight

More information is available here. History News Network recently published an interview with Anderson about the book, here. Another interview, conducted by New Books Network, is available here.

-- Karen Tani

Monday, August 23, 2021

Pollman, "The History and Revival of the Corporate Purpose Clause"

Elizabeth Pollman (University of Pennsylvania Carey Law School) has posted, "The History and Revival of the Corporate Purpose Clause," which appears in Volume 99 of the Texas Law Review (2021). Here's the abstract:

The corporate purpose debate is experiencing a renaissance. The contours of the modern debate are relatively well developed and typically focus on whether corporations should pursue shareholder value maximization or broader social aims. A related subject that has received much less scholarly attention, however, is the formal legal mechanism by which a corporation expresses its purpose—the purpose clause of the corporate charter. This Article examines corporate purpose through the evolution of corporate charters. Starting with historic examples ranging from the Dutch East India Company to early American corporations and their modern 21st century parallels, the discussion illuminates how corporate purpose has been expressed within the charter in a changing series of practices.

Examining this evolution reveals that throughout history, the sovereign state has firmly held the reins on the legal statement of corporate purpose by determining it as a matter of special grant or by requiring its articulation in the constitutional document establishing the corporation. Early corporate charters included provisions for self-governance and purpose that served as a coordinating mechanism for long-term ventures and associations, often serving public and private interests. Over the nineteenth century, as state legislatures looked to solve their corruption problem and powerful business players pressed for greater operational freedom, the purpose clause of the corporate charter lost its specificity, and awareness of its public-tinged character diminished. Corporations increasingly relied on private documents and intangible, branded personas to create corporate identity, capture philosophies of corporate mission, and express social-minded aims. Throughout this long history, however, and despite waning attention paid to corporate purpose clauses at times, they have remained an important reflection of the public-private collaboration at the heart of the corporate enterprise. Further, the longstanding requirement of stating a purpose in the corporate charter has laid the groundwork for a contemporary revival in understanding its relevance to the corporate law doctrine of good faith, and its utility as a mechanism for creating and coordinating commitments for the benefit corporation. The purpose clause has enduring relevance even as new practices and understandings of corporate purpose have emerged in business and law.
The full article is available here.

-- Karen Tani

Saturday, August 21, 2021

Weekend Roundup

  • Kyle Volk, University of Montana, discusses prohibition in the 1850s on the podcast, Unsung History, hosted by Kelly Therese Pollock. 
  • ICYMI: The medievalist Susan Reynolds has died (The Guardian).  Akhil Reed Amar’s The Words That Made Us: America’s Constitutional Conversation, 1760-1840, is reviewed in the Roanoke Times.
  • The fall 2021 line-up in the Washington History Seminar is out.  Presenters include: Mia Bay, Traveling Black: A Story of Race and Resistance; Elizabeth Shermer, Indentured Students: How Government-Guaranteed Loans Left Generations Drowning in College Debt; Mark Bradley and [LHB Founder] Mary Dudziak, Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism; Thomas Guglielmo, Divisions: A New History of Racism and Resistance in America’s World War II Military; Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World; Kate Larson, Walk with Me: A Biography of Fannie Lou Hamer; and Caley Horan, Insurance Era: Risk, Governance, and the Privatization of Security in Postwar America.
  • And, in Second Amendment news, according to Judge Richard Gardiner of the Fairfax County [Virginia] Circuit Court, “going armed” in the 1328 English Statute of Northampton did not mean "packing heat."  It meant "wearing armor."  More.

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

Friday, August 20, 2021

Waldman on Moderating LGBTQ+ Content, Then and Now

Ari Ezra Waldman, Northeastern University School of Law, has posted Disorderly Content:

 Content moderation plays an increasingly important role in the creation and dissemination of expression, thought, and knowledge. And yet, throughout the social media ecosystem, nonnormative and LGBTQ+ sexual expression is disproportionately taken down, restricted, and banned. The current sociolegal literature, which focuses on content moderation as a whole and traces the evolution of its values and mechanics, insufficiently captures the ways in which those principles and practices are not only discriminatory, but also resemble structures of power that have long been used to police queer sexual behavior in public spaces.

This Article contributes to the sociolegal literature by approaching content moderation from an explicitly queer perspective, bridging siloed scholarship on law, technology, and LGBTQ history. It argues that content moderation for “sexual activity” is an assemblage of social forces that resembles oppressive anti-vice campaigns from the middle of the last century in which “disorderly conduct”, “vagrancy”, “lewdness”, and other vague morality statutes were disproportionately enforced against queer behavior in public. This analogy highlights underappreciated pieces of the content moderation puzzle. Compared to anti-vice campaigns, content moderation emerged from similar sociolegal contexts, relies on similar justificatory discourses, leverages similarly vague rules, similarly operates mostly without expertise in sexual content, also disproportionately silences queer content, and similarly does so without due process. Ultimately, I argue that like anti-vice enforcement, the consequence of sexual content moderation is the maintenance and reification of social media as straight spaces that are hostile to queer, nonnormative expression.

This Article provides a full, critical account of sexual content moderation and its effects on queer expression. It details and challenges the current content moderation literature and explores potential new directions for scholarship, moderation, and law. The similarities and differences between anti-vice enforcement and sexual content moderation also suggests a way forward, offering a queer, social justice justification for modest legal reform, social activism, and platform responsibility.

--Dan Ernst

Vogenauer to Present on Law in Colonial Guyana

[We have the following announcement. DRE]  

The first EuroStorie research seminar of the autumn 2021 semester, [will take place] on Friday, September 3rd at 1:00pm–2:00pm (EEST) via Zoom live stream. Professor Stefan Vogenauer,  Director at the Max Planck Institute for Legal History and Legal Theory in Frankfurt, will present his talk "Creating a Legal Order in a Colonial Setting: the Dutch Colonies in Guyana."  Please join us live via Zoom-stream [here.]  Meeting ID: 698 5345 9330.  Event webpage

In 1814, the Netherlands ceded three colonies on the northern coast of South America to the United Kingdom: Berbice, Demerara and Essequibo. Later, the three territories were united and called ‘British Guiana’, and since gaining independence in 1966 they have been known as ‘Guyana’. In the Articles of Capitulation the British and the Dutch agreed that ‘the laws and usages of the colony shall remain in force and be respected’. It is therefore generally assumed that British Guiana was, like South Africa and Ceylon, a mixed legal system where ‘Roman-Dutch law’ applied to the extent that it was not supplemented or superseded by English law. However, the reality on the ground was more complex because the ‘laws and usages’ in force under Dutch rule were much more varied. Roman-Dutch law was but one of the relevant normative regimes. It is the purpose of this paper to show the multitude and richness of other legal sources that applied in these territories before the transfer to the British occurred. It is argued that, despite the difficulties of organising small communities of settlers in a hostile environment more than 4,000 nautical miles from the metropole, the framework of rules and regulations put into place by the Dutch amounted to a comprehensive overseas ‘legal order’ that cannot be captured by mere reference to Roman-Dutch law.

Thursday, August 19, 2021

Fish on the Undesirable Aliens Act of 1929

Eric S. Fish, University of California, Davis School of Law, has posted Race, History, and Immigration Crimes, which is forthcoming in the Iowa Law Review:

The two most frequently charged federal crimes are immigration crimes: the misdemeanor of entering the United States without inspection, and the felony of reentering the United States after deportation. Federal prosecutors charge tens of thousands of people with these two crimes each year. In 2019, these two crimes comprised a majority of all federal criminal cases. About 99% of the defendants in these cases are nationals of Mexico or other Latin American countries.

These two crimes were enacted into law through the Undesirable Aliens Act of 1929. The legislative history of that Act reveals that its authors were motivated by pseudoscientific racism. They sought to preserve the purity of the white race by preventing Latin American immigrants from settling permanently in the United States. And they spoke forthrightly about this motive. They described Latin American immigrants as “mongrelized,” “peons,” “degraded,” and “mixed blood.” They held hearings where experts in eugenics testified about Latin Americans’ undesirable racial characteristics. They gave speeches about the need to protect American blood from contamination. They described Latin American immigration as a “great race question” concerning invasion by “people essentially different from us in character, in social position, and otherwise.”

This Article thoroughly documents the legislative history of the Undesirable Aliens Act of 1929. It relies on primary sources—speeches, legislative reports, testimony, statements in the congressional record, private correspondences, eugenicist scholarship, and other writings by the men who conceived and enacted the law. The Article shows that this history brings the law into conflict with the Constitution’s Equal Protection Clause. While the crimes of unlawful entry and reentry are racially neutral on their faces, the story of their enactment reveals explicit racial animus against Latin American immigrants. Consequently, they are unconstitutional under the framework established by the Supreme Court in Arlington Heights v. Metropolitan Housing Development Corp. The Article also considers whether these crimes can be defended under Congress’s broad power to enact immigration laws, and whether their pro forma 1952 reenactment purged them of racial animus.

--Dan Ernst

Wednesday, August 18, 2021

Emerson on the "Politics of Care"

Blake Emerson, UCLA School of Law, has posted Public Care in Public Law: Structure, Procedure, and Purpose, which is forthcoming in the Harvard Law & Policy Review:

This Article responds to recent mobilization around the “politics of care” by articulating a legal principle of public care within U.S. constitutional, statutory, and administrative law. Public care requires executive officials to attend to and advance the needs and values of those the law binds and benefits. This principle has three components. The regulatory purpose of public care, which is recognized in various statutory authorities of the welfare state, re-quires government to provide those goods and services that are necessary for people to exercise moral and political agency. The administrative procedure of public care, which is recognized by the Administrative Procedure Act of 1946, requires that federal agencies act with due regard for the interests and input of affected parties. The constitutional structure of public care, recognized by the Take Care Clause, requires that the President listen to subordinate officials who have specific legal, professional, and expert authority. These three dimensions together offer an attractive picture of what the administrative state ought to do and how it ought to do it. Public care offers an approach to administrative regulation that differs from other now dominant approaches, such as presidential administration and economic cost-benefit analysis. The practice of public care, which is informed by Progressive political thought and feminist social theory, emphasizes social solidarity, deliberative policymaking, and official collaboration, rather than executive unilateralism, instrumental reasoning, and isolated individualism.

--Dan Ernst

CFP: Perspectives on Political Violence

[We have the following CFP.  DRE]

Historical, Philosophical and Theological Perspectives on Political Violence
March 31-April 2, 2022
The Centre of Excellence in Law, Identity and the European Narratives (EuroStorie)
Faculty of Social Sciences
University of Helsinki

The conference provides a multidisciplinary venue for critical appraisal of the central questions concerning political violence and aggression. The conference’s aim is to scrutinize and delineate the current discussion (academic and non-academic) on political violence by discussing its contemporary forms, character and modes justification, especially within context of development of the idea of Europe and modern European identity. What is meant by political violence and aggression? When and under which conditions is it justified? Who has the right to exercise it and against whom?

The keynote address will be given by professor Samuel Moyn (Yale University). Professor Moyn is a leading scholar of the intellectual history of human rights and European intellectual history.

The EuroStorie Centre of Excellence (University of Helsinki) is inviting abstracts for the conference. Please see the full call for papers on the conference website.

The deadline for the abstracts is October 31, 2021. Abstracts should be sent to eurostorie@gmail.com.  For general enquiries, please contact Panu-Matti Pöykkö (panu-matti.poykko@helsinki.fi)

Tuesday, August 17, 2021

Weisbrod on Eliot, Thayer, Gray and HLS

Carol Weisbrod, Professor Emerita, University of Connecticut School of Law, has published Brahmin Connections: A Note on the Vocation of the Law Professor in the Connecticut Law Review as part of a symposium issue in honor of her colleague Richard Kay:

John Chipman Gray (wiki)
The early modern Harvard Law School is known for its significance as a model for legal education in the United States. This model is understood to include the case method and a very narrow curriculum, focused on pure law. It is often noted that important figures on the law school faculty were part of the Brahmin Culture of Boston. They were members of a caste which valued a broad and serious engagement with intellectual life. This Article focuses on several individuals Charles Eliot, James Bradley Thayer, and John Chipman Gray to illustrate that engagement and suggests that it provided a frame which tempered a narrow law school curriculum.
–Dan Ernst

Duxbury's "Dicta and Dissent"

Neil Duxbury, London School of Economics and Political Science, has published The Intricacies of Dicta and Dissent (Cambridge University Press):

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on – and will prompt lawyers to pose fresh questions about – the common law tradition and the nature of judicial decision-making.

Professor Duxbury is the author of, among other things, the indispensable Patterns of American Jurisprudence (1995).

--Dan Ernst

Monday, August 16, 2021

Hendley on Whether Lawyers Have Mattered in Russia

Kathryn Hendley, the Roman Z. Livshits and William Voss-Bascom Professor of Law and Political Science at the University of Wisconsin-Madison, has published Do Lawyers Matter in Russia? in the Wisconsin Law Review 2021: 301-35:

As the transmission belt between citizens and their government, lawyers are a critical component of civil society. Yet their relevance depends on society's willingness to call upon them and on the state's openness to being challenged. In the U.S., we take the political importance of lawyers for granted. Elsewhere, especially in authoritarian countries, lawyers play a more peripheral role.  This Essay focuses on Russian lawyers. Although there is a large literature on various types of Russian lawyers, their status in society has not been much explored. The Essay tracks the evolution in societal attitudes towards lawyers in Russia, beginning with the Soviet period (1917-1991) and continuing through the post-Soviet period (1992-present). Drawing on memoirs, public opinion polling, and surveys, the Essay documents lawyers' low status in the Soviet Union. The introduction of market institutions in post-Soviet Russia opened the door to new types of lawyering, many of which are highly remunerated. The effect has been to increase the attractiveness of the profession to Russian youth and their parents and increase its esteem more generally.

--Dan Ernst

Teixeira, "The Legal History of the European Banking Union"

We missed this December 2020 release from Hart Publishing, but thanks to New Books Network, received word of it recently: The Legal History of the European Banking Union: How European Law Led to the Supranational Integration of the Single Financial Market, by Pedro Gustavo Teixeira (European Central Bank / Institute for Law and Finance of the Goethe University, Frankfurt am Main). A description from the Press:

How was the Banking Union, the most advanced legal and institutional integration in the single market, created? How does European law impact European integration?

To answer these questions, this book provides a sweeping account of the evolution of European law. It identifies five integration periods of the single financial market, intertwined with the development of global finance, from its origins, through its expansion and crisis, to the Banking Union. Each period is defined by innovations to deepen integration, such as the single passport for financial services, soft governance and comitology, agencies, or a single rulebook.

Providing a far-reaching explanation of the legal and institutional rationality of the European Banking Union, this book demonstrates that the Banking Union is not an accident of history or simply the product of the existential crisis of the Monetary Union. It has deep roots in the evolutionary process of European law and its drive towards supranational integration.

More information is available here.

-- Karen Tani

Sunday, August 15, 2021

ASLH Conference Update

For those who are considering attending this year's meeting of the American Society for Legal History but are not ASLH members, you may have missed the recent update from ASLH President Lauren Benton. We excerpt it here:

We continue to plan to hold our in-person annual meeting in New Orleans on November 4-6, 2021, and I am writing to tell you about the Society’s efforts to mitigate risks of attending the conference during the pandemic.
I first want to note that our talented program committee has developed a terrific program. Please take a moment to look through the program draft. I know you will be as excited as I am about the prospect of learning about this new research, attending the plenary lecture, and having the opportunity to catch up with legal history colleagues.
The fast-changing conditions of the COVID-19 pandemic, particularly with the delta variant on a rampage, present unusual challenges. The Society places the highest priority on maximizing the safety of conference attendees. With that goal in mind, the ASLH Board has approved several important policies for the meeting, the most important of which is that attendees at pre-conference or conference events will be required to provide proof of vaccination. In addition, the Society pledges to follow CDC guidelines on social distancing and masking at the conference.
I ask that you read the information and FAQs below carefully. We are still some months away from the meeting, and conditions can change quickly. I will work with the other ASLH officers and our ad hoc committee to seek to monitor the situation, to pass along changes in mitigation measures, and to update you about the evolving nature of risks that will remain despite our best mitigation efforts. It remains possible, of course, that we will have to cancel this year’s meeting. I very much hope that doesn’t happen.
I invite you to email me directly if you have specific questions that aren’t answered below or wish to pass along any suggestions.
Thank you for your understanding and for your support of the ASLH.
Best regards,
Lauren Benton
ASLH President, 2020-2021

Further information:

Proof of vaccination

  • Registrants will be asked to provide proof of vaccination when they pick up their badges and other registration materials. Because many colleges and universities are allowing exemptions for medical or religious reasons, the Society will allow attendees who do not show proof of vaccination status to present proof of a negative COVID-19 test taken no more than three days before their arrival at the conference. Any participant with such a test but without proof of vaccination will need to wear a mask at all times.


  • The policy for wearing masks will conform to CDC guidelines in place at the time of the conference. It is possible, and even likely, that we will be requiring all attendees to wear masks at all events. Current CDC guidance is for masks to be worn by everyone attending indoor events in areas of high transmission. At present, Orleans Parish is rated by the CDC as an area of high transmission. We will continue to monitor CDC data for New Orleans Parish and keep members informed (through messages like this one and posts on our website) with regular updates about the masking policy.

Hotel and university vaccination and masking policies

  • The hotel (InterContinental New Orleans) is currently reporting that 70% of its staff have been vaccinated. We have requested that only vaccinated staff interact with our conference attendees, and the hotel has indicated that it will seek to comply with our request. Hotel management also informs us that all hotel staff will be required to wear masks. Tulane University (where the plenary lecture will be held) currently has a masking requirement in place for all events on campus. Tulane also requires vaccinations for faculty and staff.

Frequently Asked Questions:

Will I be able to cancel conference and travel reservations and receive refunds? 

  • The latest date by which ASLH meeting registrations may be canceled with full refunds issued is October 14, 2021.  Rooms at the InterContinental New Orleans can be booked at the conference rate until Thursday, October 12, 2021, and reservations may be cancelled without charge up to 72 hours prior to date of arrival (see important details about timing on the hotel website). Please check with your air carrier about their cancellation and change policies. Most airlines have adopted flexible change policies during the pandemic. The ASLH does not endorse any travel insurance policies but you may want to consider purchasing travel insurance that covers COVID-related issues.

Why doesn’t the ASLH just hold another online conference?

  • If the ASLH were to cancel its in-person conference right now, we would be required to pay very significant penalties to the hotel under our contract. The Society is able to invoke the force majeure clause of our contract to avoid this penalty only under specific conditions. Paying penalties for canceling without force majeure would shift resources away from some of the Society’s valuable programs, publications, fellowships, and professional development opportunities.

Why can’t I just present remotely?

  • While this might seem easy in theory, the technological logistics of pulling this off are complex and costly. Rooms would have to be equipped with screens, complex a/v packages, and hard-wired internet, all of which would add very significant costs. In addition, offering a remote option might encourage a majority of members to stay home, and the Society also faces penalties if we fail to meet contractual room and food and beverage minimums at the hotel. Finally, many of our members, particularly early career scholars, count on the opportunities for networking uniquely available at in-person meetings.

Will any of the content from the meeting be available online?

  • We cannot provide live streaming of any events (see the reasons above). We will post and circulate information about prizes and awards soon after the conference. We are exploring the possibility of making some limited content (perhaps one or two exemplary panels) available in audio form. Additional information will be posted as it becomes available.

How will the experience of attending the meeting differ this year?

  • We are doing all we can to make this meeting the same valuable venue for exchanging research and ideas to which we’ve all become accustomed. We do not expect masking and social distancing, if required, to interfere with panels and lectures. If masking requirements make it impossible to serve meals, we will hold the awards ceremony without food. Your registration includes the cost of the annual luncheon, so we would work with the hotel to provide attendees with box lunches if we cannot serve food.

-- Karen Tani

Saturday, August 14, 2021

Weekend Roundup

  • "Federal Trials and Great Debates in U.S. History: Judicial Independence is part of the [Federal Judicial Center and American Bar Association's] joint programming promoting the teaching and public understanding of judicial history. This series discusses the history of judicial independence and examines three key cases: Marbury v. Madison (1803), Ex parte McCardle (1869), and City of Boerne v. Flores (1997).
  •  In Citadels of Pride: Sexual Assault, Accountability, and Reconciliation (W.W. Norton), Martha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, argues that “three areas of employment—the federal judiciary, performing arts, and college sports—created ‘sweet spots’ for abuse by elevating and protecting powerful men.” In addition to case studies, the book provides an account of “the applicable legal history, including criminal legal reforms at the state level and the impact of Title VII and Title IX of the Civil Rights Act of 1964.”  (More.)
  • ICYMI: Ashton Merck on Richard Nixon, Robert H. Dick, and the Federal Tea-Tasting Commission (Contingent).  HLS faculty who testified before the Presidential Commission on the Supreme Court (Harvard Law Today).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Thursday, August 12, 2021

Solimine and Walker on Three-Judge District Courts in the Civil Rights Era

Michael Solimine, University of Cincinnati College of Law, has posted The Strange Career of the Three-Judge District Court: Federalism and Civil Rights, 1954-1976, an article he researched and wrote with the late James Walker, Professor of Political Science Emeritus, Wright State University.  It is forthcoming in the Case Western Reserve Law Review:

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases.

Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day. 

--Dan Ernst