Thursday, September 30, 2021
Just published by the University of London Press: Star Chamber Matters, edited by K. J. Kesselring and Natalie Mears:
--Dan Ernst. TOC after the jump
The chapters gathered here explore what we can learn about the history of an age through both the practices of its courts and the disputes of the people who came before them. With Star Chamber, we view a court that came of age in an era of social, legal, religious, and political transformation, and one that left an exceptional wealth of documentation that will repay further study.
Western Legal History 31:2, devoted to the Bisbee deportation of 1917, is available online.
The articles are:
In the early morning hours of July 12, 1917, more than a thousand mine workers and their sympathizers were rounded up at gunpoint by a citizen posse in Bisbee, AZ, and ultimately marched several miles to waiting railroad cattle cars, which carried them into the New Mexico desert, where they were abandoned. This 100-year-old event, referred to as the Bisbee Deportation of 1917, and seminal to the history of Arizona, is the subject of this issue.
Marching from Lowell (LC)
The Bisbee Deportation: There Will Be Ore, by Judge Michael D. Hawkins
Governor Hunt, Labor and the Bisbee Deportation, by Paul F. Eckstein and Timothy J. Eckstein
Felix Frankfurther and the Bisbee Deportation, by Jonathan D. Rosenblum
Things I Can Never Forget, by Alice Campbell Juliff
[We share the following announcement. The deadline is Dec.31, 2021.]
The Immigration and Ethnic History Society (IEHS) is accepting submissions for the George E. Pozzetta Dissertation Award. The IEHS presents two awards of $1,000 each to help graduate students with their dissertations on American immigration, emigration, or ethnic history, broadly defined. These awards are intended for students in the process of researching and writing their dissertations and not intended for students completing and defending in Spring 2022.
Applicants must submit:
- a three-page to five-page descriptive proposal in English discussing the significance of the work, the methodology, sources, and collections to be consulted;
- a proposed budget;
- a brief curriculum vitae.
In addition, applicants must arrange for their major advisor to submit a supporting letter.
Application materials and the supporting letter must be received by the committee by the deadline, December 31, 2021.
Inquiries and application materials should be submitted via email to email@example.com.
Further information is available here.
--posted by Mitra Sharafi
Wednesday, September 29, 2021
David S. Schwartz, University of Wisconsin Law School, has posted two papers. The first, The Committee of Style and the Federalist Constitution, is forthcoming in volume 70 of the Buffalo Law Review:
The conventional interpretation of the Constitution assumes that the Committee of Style, which created the final draft of the Constitution, lacked authority to engage with substance; therefore, any arguably substantive changes it did make should be disregarded in favor of earlier draft language found in the Constitutional Convention records. This "Style doctrine" has been embraced by the Supreme Court and several leading constitutional scholars. This article argues that the Style doctrine is historically unfounded and obscures the Constitution's original meaning. The Committee of Style was not prohibited from proposing substantive changes. In any case, most of the revisions proposed by the Committee of Style clarified or reinforced Federalist positions rather than proposing substantive changes. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers.The second, Reconsidering the Constitution's Preamble: the Words that Made Us U.S., is forthcoming in volume 37 of Constitutional Commentary:
The Preamble to the U.S. Constitution is wrongly dismissed by conventional doctrine as a purely symbolic or stylistic flourish with no operative legal significance. But the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style's final version, demonstrate that the Framers considered the Preamble to be substantively meaningful. Just what the Preamble means remains ambiguous: it might be viewed as a rejection of compact theory, as an interpretive guide to the powers granted in the body of the Constitution, or as a source of implied powers. But the view that reduces the Preamble to a legally inoperative flourish has no basis as a matter of text or history.--Dan Ernst
Just out from Oxford University Press: The Battle over Patents: History and Politics of Innovation, edited by Stephen H. Haber and Naomi R. Lamoreaux:
–Dan Ernst. Table of Contents after the jump.
The Battle over Patents gets it right. Bringing together thoroughly researched essays from prominent historians and social scientists, this volume traces the long and contentious history of patents and examines how they have worked in practice. Editors Stephen H. Haber and Naomi R. Lamoreaux show that patent systems are the result of contending interests at different points in production chains battling over economic surplus. The larger the potential surplus, the more extreme are the efforts of contending parties-now and in the past-to search out, generate, and exploit any and all sources of friction. Patent systems, as human creations, are therefore necessarily ridden with imperfections. This volume explores these shortcomings and explains why, despite all the debate, historically US-style patent systems still dominate all other methods of encouraging inventive activity.
Raoul Berger-Mark DeWolfe Howe Legal History Fellowship
Harvard Law School invites applications for the Berger-Howe Fellowship for the academic year 2022-2023. Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin or establish an academic career in legal history. There are no limitations as to geographical area or time period. With occasional exceptions, previous fellows have gone on to pursue faculty appointments or other fellowships in American universities. A list of previous fellows and their current positions may be found here.
Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Workshop, which meets four or five times each semester. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).
Applicants for the fellowship for 2022-2023 should submit their applications and supporting materials electronically to Professor Bruce H. Mann.
Each interested applicant should submit:
• a writing sample,
• a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, and
• copies of official transcripts of all academic work done at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.
The deadline for applications is January 28, 2022, and announcement of the award will be made by February 28, 2022. The fellow selected will receive a stipend of $38,000.
Harvard Law School selects individuals for fellowships without regard to race, color, religion, sex, national origin, disability status, protected veteran status, gender identity, sexual orientation, pregnancy and pregnancy-related conditions, or any other characteristic protected by law.
Tuesday, September 28, 2021
Stelios Tofaris (Cambridge University) has published "The Regulation of Unfair Terms in Indian Contract Law: Past, Present, and Future" in Mindy Chen-Wishart and Stefan Vogenauer, eds., Studies in the Contract Laws of Asia III: Contents of Contracts and Unfair Terms (Oxford University Press, 2020). Here's the opening:
The law governing contracts in India is primarily found in the Indian Contract Act (ICA) of 1872. A painstaking perusal of the Act, however, offers little guidance on how unfair terms are regulated. This does not signify the lack of relevant rules in Indian law. Instead, one has to look more closely and broadly. "Where?" and "why?" are important questions that go to the heart of Indian contract law. Seeking answers requires an understanding of historical developments and present-day problems, which in turn inform future challenges.
Section II provides an examination of the theoretical and doctrinal framework of the ICA in light of its history. This exposes the analytical parameters within which the issue of unfair terms was perceived at the time of its drafting.
Section III analyses the problems of unfair terms in the form that they have typically arisen, i.e. in standard form contracts, and discusses the way in which Indian courts have understood those problems.
Section IV describes the attempt to deal with unfair terms within the ICA. In view of the Act's theoretical orientation and doctrinal framework, this required innovative use of its provisions, but such an approach was not without problems. .
Section V examines the alternative route adopted by Indian courts, which was to regulate such terms outside the ICA by following closely the techniques used by their English counterparts. This, however, brought its own set of problems.
Section VI looks at other legislation pertaining to unfair contract terms, especially the recently enacted Consumer Protection Act 2019, which seeks to provide a major overhaul in unfair terms regulation in consumer contracts.
Section VII identifies some of the future challenges facing Indian law in this area, including the desirability of drawing a firm distinction between consumer and commercial contract law.
Section VIII concludes by highlighting some of the broader lessons for Indian contract law that emerge from the study of the regulation of unfair terms.
Further information is available here.
Monday, September 27, 2021
Law and History Review 39:3 (August 2021) is out:
The Enigma of a Taiping Fugitive: The Illusion of Justice and the “Political Offence Exception” in Extradition from Hong Kong
Jenny Huangfu Day
Uncertain Comparisons: Zionist and Israeli Links to India and Pakistan in the Age of Partition and Decolonization
Rephael G. Stern
From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations
“A New Ethnology”: The Legal Expansion of Whiteness under Early Jim Crow
Benjamin H. Pollak
The Conservative Press and the Interwar Origins of First Amendment Lochnerism
Voting Trusts and Antitrust: Rethinking the Role of Shareholder Litigation in Public Regulation, from the 1880s to the 1930s
Naomi R. Lamoreaux, Laura Phillips Sawyer
Bronach C. Kane, Popular Memory and Gender in Medieval England: Men, Women, and Testimony in the Church Courts, c.1200–1500. Woodbridge, UK: The Boydell Press, 2019. Pp. vii, 301. $99.00 hardcover (ISBN 9781783273522).
Emily J. Hutchison
Thomas J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law's First Professionals. Oxford: Oxford University Press, 2019. Pp. xvi, 287. $90.00 hardcover (ISBN 9780198845454).
Nurfadzilah Yahaya, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia. Ithaca, NY: Cornell University Press, 2020. Pp. xi, 241. $49.95 hardcover (ISBN 9781501750878).
Fahad Ahmad Bishara
Christopher Tomlins, In the Matter of Nat Turner: A Speculative History. Princeton: Princeton University Press, 2020. Pp. 352. $29.95 hardcover (ISBN 9780691198668).
Doreen Lustig, Veiled Power: International Law and the Private Corporation, 1886–1981. Oxford: Oxford University Press, 2020. Pp. 256. £80.00 hardcover (ISBN 9780198822097).
Edward A. Purcell, Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon. New York: Oxford University Press, 2020. Pp. 310. $34.95 hardcover (ISBN 9780197508763).
Susan Bartie, Free Hands and Minds: Pioneering Australian Legal Scholars. Oxford: Hart, 2019. Pp. 323. $94.00 hardcover (ISBN 8791509922611).
John Henry Schlegel
Alison C. Carey, Pamela Bloch, and Richard K. Scotch, Allies and Obstacles: Disability Activism and Parents of Children with Disabilities. Philadelphia: Temple University Press, 2020. Pp. 334. $109.50 hardcover (ISBN 9781439916322); $34.95 paperback (ISBN 9781439916339); $34.95 ebook (ISBN 9781439916346).
Elinoam Abramov, Michael Ashley Stein
The next Transnational Legal History Group book talk of the Center for Comparative and Transnational Law at the Chinese University of Hong Kong will be The Suicide of Miss Xi: A “Crime of Economics”? by Bryna Goodman, professor of history at the University of Oregon. It will be conducted online on October 12 from12:30-1:30. The commentator will be Chao Xi, Professor, CUHK LAW. To attend, register here by 10am, October 12.
Saturday, September 25, 2021
- On October 4 at 2:30 EST, the Supreme Court Historical Society is hosting a “First Monday in October” event with “a conversation between Professors Farah Peterson and Mark Killenbeck on the Supreme Court's October 1821 Term.” It is free and open to the public and will be recorded and posted to the Society's YouTube channel later that day. Details here.
- "The Department of History at Temple University invites applications for a tenure track assistant professorship in the field of race and racism in crime, policing, and incarceration in the United States since 1787." More.
- From the Washington Post's "Made by History" section: Anna O. Law (CUNY Brooklyn College) on "The myth of ‘open borders’"; Josh Lauer (University of New Hampshire) and Kenneth Lipartito (Florida International University), "Modern capitalism is inseparable from surveillance"; Robert Fleegler (University of Mississippi), "A win in the courts could backfire on the antiabortion movement"; and more.
- We’re so sorry we missed it: It was “Talk Like a Pirate's (Lawyer) Day” at the law library of the Loudoun County Public Library yesterday. “Avast, ye Matey! Visit the Law Library and learn about the colorful legal history of pirates in Virginia while enjoying rum-flavored treats for all ages.”
- From the Historical Society of the New York Courts: "Did you know that many of the giants of NY law, including William Nelson Cromwell, Samuel Untermyer, and even Charles Evans Hughes, have their final resting places in Woodlawn Cemetery? Join us and our panel of descendants as we share little known stories about these important lawyers and judges and discuss their impact on the law today." More.
- My Georgetown Law colleague Laura K. Donahue has posted to SSRN her history-laden amicus curiae brief in FBI v. Fazaga (U.S. No. 20-828) on "the origins and evolution of the state-secrets privilege." DRE.
- Here’s a report of “Just Read It! A Dialogue About the US Constitution,” an event sponsored by the History of Ideas Program at Brandeis University. Participants included Boston College’s Kenneth Kersch and Brandeis's Michael Willrich. And here's another.
- Another Constitution Day event: Sonu Bedi on the “The Science of the Constitution: The Supreme Court and a Practice of Disagreement" at Dartmouth College.
- History Professor Uncovers Missing Parts of a Prominent Life: UConn’s notice of Cornelia Dayton’s research on “the later years of poet Phillis Wheatley Peters.
- From the web-based Journal of the American Revolution, Haimo Li on Thomas Jefferson's readings of Lord Bolingbroke's constitutional and political ideas.
Friday, September 24, 2021
Philip O'Sullivan, the holder of a bachelor’s and a master’s degree from the University of Chicago, now enrolled in JD and PhD programs at Harvard University, has posted Putting a Check on Police Violence: The Legal Services Market, Section 1983, Torture, Abusive Detention Practices, and the Chicago Police Department from 1954 to 1967, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review 56 (2021):
This article explores the conception, rise, and initial implementation of a legal strategy which sought to fashion civil liability into a tool for reforming the Chicago Police Department (CPD) from the mid-1950s to 1967. A group of lawyers, working in close concert with the Illinois Division (their preferred name of choice at the time) of the American Civil Liberties Union (ACLU) sought to weaponize civil suits into a means of forcing CPD leadership to crack down on abusive and harmful police behavior. Drawing from a strand of contemporary scholarship on how private civil actions could shape municipal policy, the lawyers theorized that, with the correct imposition of civil liability, they could spur the legal industry to cause the number of successful civil suits to become more commensurate with the prevalence of abusive police practices. The lawyers thought the total cost, or fear of future costs, of the resulting civil suits would compel CPD leadership to enact reforms to crack down on a culture of impunity and widespread police misconduct within the CPD.–Dan Ernst
This article examines the attempt to carry out this legal strategy in the federal civil court system from the early 1950s to the end of Superintendent O.W. Wilson’s tenure in 1967, with a specific focus on police torture and abusive detention practices. This article argues that while this may have been a novel strategy, it was ultimately unsuccessful in forcing CPD leadership to make the changes in departmental policy and discipline which might have stopped police torture and abusive detention practices. A close examination of this legal strategy and the flawed underlying assumptions it made about the interplay between the market dynamics of the legal industry, federal civil court, and police violence offers insight into the utility of private civil suits to rectify and prevent civil rights abuses by the police.
Thursday, September 23, 2021
Abhilash Medhi (Mount Holyoke) has published "Infrastructural Contingencies and Contingent Sovereignties on the Indo-Afghan Frontier" in Modern Asian Studies (2020), 1-38. Here's the abstract:
The Khyber Pass Railway is a defunct 42-kilometre-long railway line that connects the western reaches of Peshawar to the Afghan border. Completed in 1925 mainly to carry British troops, the railway line failed to attract decent passenger or commodity traffic. Instead, it made an impact on a more primal register. Negotiations carried out between the British Government of India and populations from around the Khyber to allow its construction reproduced and rearranged lines of authority among the latter. They also embedded colonial administrators in tribal hierarchies. Efforts to acquire land and labour opened up spaces of collaboration between the colonial administration and members of frontier tribes, effectively contributing towards a reconfiguration of sovereign power in the area. This article weaves questions of customary law and colonial legal cultures into a retelling of the history of the Khyber Pass Railway. Examining transactions across three domains of sovereign power—the economic right to use land, extension of juridical regimes, and territorial control—it argues that the operation of sovereignty in the late-colonial Indo–Afghan frontier did not adhere to conventional ideas about its concentration and monopoly. The colonial government as well as members of frontier tribes deployed the inconclusive nature of their transactions strategically and, often, sovereign power lay with the stakeholder who could determine which domains fell within the bounds of the sovereignty question and which domains fell without.
Further information is available on the Modern Asian Studies website via Cambridge University Press.
Wednesday, September 22, 2021
On Friday, September 24, the UC Davis Humanities Institute is hosting an event on Dred Scott: Beyond Black and White. Guests may attend in person or via Zoom. A description of the event:
The Supreme Court's Dred Scott decision is notorious for its racism and frank endorsement of African American slavery and white supremacy. Although repudiated by the Civil War and overruled by the Reconstruction Amendments, it remains a landmark in American history. This symposium explores whether and how Dred Scott remains relevant in modern American jurisprudence, and its implications for a multi-racial nation.This event is part of the Free People of Color Lecture Series, hosted by the Aoki Center at King Hall and the UC Davis Department of History. The series "explore[s] the rights of people of color in the United States following the Civil War and inquire[s] how that history continues to shape our thinking today."
~~~~List of Presenters~~~~
Gabriel “Jack” Chin, Professor of Law –UC Davis School of Law –“Dred Scott and Asian Americans”
Kevin R. Johnson, Dean-UC Davis School of Law-“Dred Scott and Asian Americans: Was Justice Taney the First Critical Race Theorist?”
Leticia Saucedo, Professor of Law- UC Davis School of Law –“Mexicans, Conquest and White Sovereignty”
Greg Downs, Professor of History and Michael Haggerty, PhD Candidate UC Davis Department of History-“Roger Taney: Intersectional Racist in an Age of Racist Differentiation”
Lea VanderVelde, Professor of Law, Iowa College of Law- “How the Reconstruction Congress Let Down Mrs. Dred Scott and her Daughters, Susan B. Anthony, Elizabeth Cady Stanton, and Myra Bradwell, Leaving Our Foremothers to Rely on White Knights”
Paul Finkelman, Chancellor- Gratz College- “The First Civil Rights Movement: Deconstructing Chief Justice Taney's Misunderstanding About Slavery, Race, and the American Founding”
Amanda Frost, Professor of Law and Government, American University Washington College of Law- “Seizing Citizenship: Lydia Hamilton Smith, Thaddeus Stevens, and the Pathway to Citizenship in Antebellum America”
Moderator: Raquel Aldana, Professor of Law –UC Davis School of Law
Special Guest Commentary: Ediberto Roman, Professor of Law and Director of Immigration and Citizenship Initiatives, Florida International University
More information, including a registration link, is available here.
-- Karen Tani
David M. Trubek, University of Wisconsin Law School; Richard L. Abel, UCLA School of Law; Bryant Garth, University of California, Irvine School of Law; Afroditi Giovanopoulou, Columbia University; Duncan Kennedy, Harvard Law School; and Boaventura de Sousa Santos, University of Wisconsin Law School have posted The Short Happy Life of the Yale Program in Law and Modernization: From the Cold War to Comparative Legal Sociology and Critical Legal Studies, which appears in Revista Estudos Institucionais 7 (maio/ago. 2021):
In 1969, the Yale Law School received a $1,000,000 grant from the United States Agency for International Development for a Program in Law and Modernization. Yale promised to study legal impediments to modernization, assess legal needs of modernization projects, train lawyers for research and development work, and disseminate knowledge. The Program was conceived by David Trubek and William Felstiner, former USAID lawyer-administrators, who, along with Richard Abel, ran it.
Launched in the shadow of the Cold War, it started with the implicit promise of diffusing US liberal ideas about law and transplanting US legal institutions and culture, and was seemingly aligned with US foreign policy. Flush with USAID resources, the Program mounted innovative courses, brought Visiting Professors and Fellows with Third World expertise to Yale, supported scholars from the Third World and elsewhere seeking advanced degrees, funded research by Yale faculty, students, and Fellows, held workshops and conferences, and published Working Papers and articles.
Linked with the nascent Law and Society Association, it sought to create a Comparative Sociology of Law. There were vigorous debates ranging from the nature of law and social science to the role of the US in the Third World, all on a campus roiled by student protests over the War in Vietnam and racism in the US. Gradually, the Program became a locus for critique of liberal ideas about law and social science, a source of doubts about US foreign policy, and an incubator for critical studies in law and legal sociology. By 1976, the founding directors were gone and the Program was soon closed. In 1997, nine law professors convened the first Critical Legal Studies conference: six had been involved with the Program while at Yale and the others had interacted with it.
Tuesday, September 21, 2021
My Georgetown Law colleague K-Sue Park has posted Race and Property Law, a chapter in the forthcoming Oxford Handbook of Race and Law in the United States, edited by Devon Carbado, Khiara Bridges and Emily Houh:
This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies and early Republic, both of which acquired value and status as property through white ownership and control– namely, enclosed land and enslaved human beings. Second, it addresses the significant shift in the way that race produced property values after the abolition of slavery, and how the anti-blackness entrenched by the slave trade spurred and organized resistance to Black landownership and property rights more generally. Third, it turns to the way the government, after consolidating the national territory through conquest, drew upon the continuing backlash to abolition and widespread desire for racial segregation to remake the infrastructure and the very commodities on offer on the real estate market through its notorious redlining program and establishment of a major secondary mortgage market. In this way, it seeks to show the structural relation between transformations to the property system during these different historical periods and the evolving role of race in its organization, while providing comprehensive citations, in the style of a handbook, to relevant scholarship and primary materials throughout.
Police Matters moves beyond the city to examine the intertwined nature of police and caste in the Tamil countryside. Radha Kumar argues that the colonial police deployed rigid notions of caste in their everyday tasks, refashioning rural identities in a process that has cast long postcolonial shadows.
Kumar draws on previously unexplored police archives to enter the dusty streets and market squares where local constables walked, following their gaze and observing their actions towards potential subversives. Station records present a textured view of ordinary interactions between police and society, showing that state coercion was not only exceptional and spectacular; it was also subtle and continuous, woven into everyday life. The colonial police categorized Indian subjects based on caste to ensure the security of agriculture and trade, and thus the smooth running of the economy. Among policemen and among the objects of their coercive gaze, caste became a particularly salient form of identity in the politics of public spaces. Police Matters demonstrates that, without doubt, modern caste politics have both been shaped by, and shaped, state policing.
Thanks to generous funding from the Andrew W. Mellon Foundation, through The Sustainable History Monograph Pilot, the ebook editions of this book are available as Open Access volumes from Cornell Open (cornellopen.org) and other repositories.
Praise for the book:
"Engagingly written and incisively argued, Police Matters provides an extraordinary account of postcolonial policing and democracy, explaining how criminal law and procedure became a site for maneuvering between castes as Indians transitioned from colonial subjects to democratic citizens." - Rohit De
"An extraordinary book, Police Matters excavates the figure of the Indian police in everyday state practice, both archivally and conceptually. Beyond conceptions of spectacular violence and distant sovereign power, Radha Kumar brilliantly reveals the integral relation of state agents to caste, class, and gender hierarchies." - Jinee Lokaneeta
"Police Matters is a highly engaging account of the intertwined world of policing and caste politics in South India. Kumar skillfully highlights the role of the police in the creation of casted subjectivities and struggles. A must-read." - Hugo Gorringe
Further information is available here.
Monday, September 20, 2021
Just published: Intimate States: Gender, Sexuality, and Governance in Modern US History, edited by Margot Canaday, Nancy F. Cott, and Robert O. Self (University of Chicago Press):
The fourteen essays that make up Intimate States argue that “intimate governance”—the binding of private daily experience to the apparatus of the state—should be central to our understanding of modern American history. Our personal experiences have been controlled and arranged by the state in ways we often don’t even see, the authors and editors argue; correspondingly, contemporary government has been profoundly shaped by its approaches and responses to the contours of intimate life, and its power has become so deeply embedded into daily social life that it is largely indistinguishable from society itself. Intimate States makes a persuasive case that the state is always with us, even in our most seemingly private moments.
--Dan Ernst. TOC after the jump.
Saturday, September 18, 2021
- Lauren Benton, President of the American Society for Legal History, 2020-2021, has announced that the annual meeting of the ASLH scheduled in New Orleans for November 4-7 is still on. In her email to ASLH members, she acknowledges that “the decision to attend is highly personal and contingent on many factors” and provides much information to help members make it. (A Twitter thread is here.)
- In JOTWELL's Legal History Section: Mary Ziegler (Florida State University College of Law) on Jennifer Holland's Tiny You: A Western History of the Anti-Abortion Movement (2020).
- Writing for the blog of the Society for Historians of the Gilded Age and Progressive Era (SHGAPE), Elizabeth D. Katz (Washington University, St. Louis) discusses "Women’s 'Chilly Path' to the New York Judiciary."
- The American Bar Foundation has announced that its Research Director, Ajay Mehrotra, will leave the position next year. A former LHB Guest Blogger, Professor Mehrotra will remain a Research Professor at the ABF and will
continue his position as Professor of Law at Northwestern University Pritzker School of Law. He is the author of Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013) which won the Society for U.S. Intellectual History Annual Book Award for 2014.
- In the web-based Journal of the American Revolution: Haimo Li on Jefferson and Burke's attitudes towards the French Revolution.
- Over at legally_queer, "Public Parks and Police Entrapment of Gay Men."
- A recording of Sam Erman's Constitution Day lecture on Almost Citizens for the Supreme Court Historical Society is now available on YouTube.
- The FDR Presidential Library and Museum is sponsoring a virtual conference on October 12-15, 2021: Examining American Responses to the Holocaust: Digital Possibilities.
- ICYMI: Martha S. Jones's book deal (NYT). "A sheet of paper at Columbia’s Rare Book and Manuscript Library shows how a Black woman sought—and won—justice in 1791 America" (Columbia News).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, September 17, 2021
Professor Dayton has won the Walter Muir Whitehill Prize of the Colonial Society of Massachusetts for the article. She will discuss it in the Pauline Maier Early American History Seminar of the Massachusetts Historical Society on Tuesday, September 21, 2021, from 5:15PM - 6:30PM.
[We share the following announcement.]
Stanford Center for Law and History Workshop:
The Stanford Center for Law and History has announced the lineup for its 2021-2022 workshop. Feel free to email us at firstname.lastname@example.org to be added to our mailing list or if you have any questions. As each workshop approaches, we will send an email to those on our list with details concerning location and/or accessibility via Zoom.
Oct. 19, 2021: Mark Krass, Stanford Law and Political Science
Debunking the Non-Delegation Doctrine for State Regulation of Federal Elections
Nov. 2, 2021: Margarita Lila Rosa, Lecturer and Mellon Postdoctoral Fellow, Stanford
Marginalia: Black Women and Emerging Carceral Geographies in Rio de Janeiro, 1880-1888
Nov. 16, 2021: Sara Forsdyke, Classical Studies & History, University of Michigan
Democratic Justice: The Jury Trial in Ancient Greece and Criminal Justice Reform In the United States
Jan. 18, 2022: Orit Malka, Taube Center for Jewish Studies, Stanford
The Law of the Land: Ancient Religion v. The Modern State
Feb. 1, 2022: Susanna Blumenthal, Minnesota Law and History (Speaker via Zoom)
The Apprehension of Fraud in Modern America
Mar. 1, 2022: Lisa Ford, University of New South Wales History (Speaker via Zoom)
Commissions of Inquiry and the Remaking of British Colonial Slavery, 1822 - 1831
Mar. 29, 2022: Emanuele Conte, Roma Tre University
From history to Theory and Back. Otto von Gierke, Santi Romano, and Francesco Calasso on Medieval Institutions and Legal Pluralism
April 12, 2022: Kevin Mumford, University of Illinois History
Unmasking the Fourth Ku Klux Klan and the Problem of Hate
May 10, 2022: Francesca Trivellato, Institute for Advanced Study, School of Historical Studies
Renaissance Florence and the Origins of Capitalism: A Business History Perspective
--posted by Mitra Sharafi
Thursday, September 16, 2021
Carl Landauer, international lawyer, has published "The Polish Rider: C. H. Alexandrowicz and the reorientation of international law, Part II: declension and the promise of renewal" in the London Review of International Law, volume 9, issue 1 (March 2021), pp.3-36. We posted this on part 1 when it came out last year. Here's the abstract for part 2:
This article is the second of a two-part analysis of the work of the international legal historian, CH Alexandrowicz. Part II analyses Alexandrowicz’s narrative of the decline of international law represented by 19th-century positivism and the scramble for African territory, where legal principles such as the protectorate became mere tools for acquisition, and treaties bereft of obligation. It traces his sympathy for the post-independence ‘new states’, his hope for the renewal of international law, the Romantic narrative imbuing his secular, modernist eschatology, and his continuing engagement with Indian Constitutional development.
Further information is available here.
Wednesday, September 15, 2021
Just out from Talbot Publishing: Bentham Around the World, edited by Simon Palmer and Zhai Xiaobo. It is a title in the JCL Studies in Comparative Law, Second Series.
Christine Kexel Chabot, Loyola University Chicago School of Law, has posted Interring the Unitary Executive:
This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.–Dan Ernst
Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.
Tuesday, September 14, 2021
O.V. Kresin’s Comparative Law In Warsaw, 1800-1835, edited and translated by William E. Butler has now been published the Lawbook Exchange's JCL Studies in Comparative Law, Second Series.
Oleksiy Kresin is “a leading Ukrainian comparative lawyer” and Head of the Center of Comparative Jurisprudence, Koretsky Institute of State and Law, National Academy of Sciences of Ukraine. William E. Butler is the John Edward Fowler Distinguished Professor of Law, Dickinson School of Law, Pennsylvania State University.
For nineteenth-century Britons, the rule of law stood at the heart of their constitutional culture, and guaranteed the right not to be imprisoned without trial. At the same time, in an expanding empire, the authorities made frequent resort to detention without trial to remove political leaders who stood in the way of imperial expansion. Such conduct raised difficult questions about Britain's commitment to the rule of law. Was it satisfied if the sovereign validated acts of naked power by legislative forms, or could imperial subjects claim the protection of Magna Carta and the common law tradition? In this pathbreaking book, Michael Lobban explores how these matters were debated from the liberal Cape, to the jurisdictional borderlands of West Africa, to the occupied territory of Egypt, and shows how and when the demands of power undermined the rule of law.
Praise for the book:
"Michael Lobban has produced an extraordinary work of forensic history-reconstructing a wide range of legal practices spanning the breadth of English dominion throughout Africa over two centuries. His book stands as a ‘truth commission’ for past wrongs and an essential precursor to any possible reconciliation." - Richard Abel
"Original and meticulously researched, Lobban’s book places the legal politics of detention at the heart of histories of rebellion, protectorates, and martial law. A valuable addition to the legal history of Africa and the British Empire." - Lauren Benton
"Michael Lobban is the leading historian of English legal thought. Here he brings his formidable talents to bear on law’s role in facilitating and regulating detention without trial in Britain's African colonies. This is at once an important contribution to history, to legal theory, and to our understanding of empire." - David Dyzenhaus
Further information is available here.
Monday, September 13, 2021
Saturday, September 11, 2021
- Just announced: On "Thursday, November 4, immediately before the main conference begins, the American Society for Legal History is hosting an in-person preconference event on Regulation and Administration in American Life: Legal Historical Perspectives."
- ASLH members: last call for submissions to the Projects and Proposals Committee.
- Over at Talking Legal History, Siobhan M. M. Barco talks with former LHB Guest Blogger Samuel Fury Childs Daly “about his J. Willard Hurst Prize winning book A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020). Daly is Assistant Professor of African and African American Studies and History at Duke University."
- Humane: How the United States Abandoned Peace and Reinvented War over at Just Security and discusses it with Professor Moyn on the Digging a Hole podcast.
- Law schools on their recent hires of legal historians: NYU on Maggie Blackhawk and Noah Rosenblum. Iowa on Andrew Lanham.
- Over at JOTWELL: Christopher Walker (Ohio State University Moritz College of Law) on Emily Bremer's "The Rediscovered Stages of Agency Adjudication"; Erin F. Delaney (Northwestern Pritzker School of Law) on Paul F. Scott, "The Privy Council and the constitutional legacies of Empire,"
- The Bristol Centre for Law and History Research welcomes Dr Andrew J. Bell, a lecturer at the University of Bristol Law School. "His research focuses on the law of obligations, comparative law and – excitingly for us! – comparative legal history.” More.
- In Custodia Legis, the blog of the Law Library of Congress, continues to offer interesting glimpses of its Herencia collection: "The Royal Order of October 1749 and the Historic Consequences of the Great Roma Round-up"; "Limpieza de Sangre: Legal Applications of the Spanish Doctrine of 'Blood Purity.'"
- From the Washington Post's "Made by History" section: Maia Silber (Princeton University), "The Supreme Court ended the eviction ban but not the fight against evictions"; Warren
E. Milteer Jr. (University of North Carolina at Greensboro), "Voters elect representatives. But often it is politicians who pick their voters"; and more.
- Over at the LPEBlog, the symposium on Destin Jenkins' Bonds of Inequality continues.
- The Lilian Goldman Law Library at Yale Law School has announced a new exhibit: “Fresher, More Recent Tragedies”: Media and the Memory of the Attica Prison Uprising.
- ICYMI: Relocating the grave of a leading Tennessee lawyer (Tennessean). “A rock star of local theater will help tell the stories of enslaved people in Prince George’s County, Maryland, who successfully filed lawsuits in the 1700s that led to their freedom” (WTOP).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, September 10, 2021
Sarah McKibbin, Libby Connors, and Marcus Harmes have published A Legal History for Australia (Bloomsbury):
The first part provides the social and political contexts for legal history in medieval and early modern England and America, explaining the English law which came to Australia in 1788. This includes the origins of the common law; the growth of the legal profession; the making of the Magna Carta; the English Civil Wars; the Bill of Rights; the American War of Independence.
The second part examines the development of the law in Australia to the present day, including the English criminal justice system and convict transportation; the role of the Privy Council in 19th century; Indigenous Australia in the colonial period; the federation movement; Constitutional Independence; the 1967 Australian referendum and the land rights movement.
The comprehensive coverage of several centuries is balanced by a dynamic writing style and tools to guide the student through each chapter including learning outcomes, chapter outlines and discussion points.
The historical analysis is brought to life by the use of primary documentary evidence such as charters, statutes, medieval source books and Coke's reports, and a series of historical cameos - focused studies of notable people and issues from King Edward I and Edward Coke to Henry Parkes and Eddie Mabo - and constitutional detours addressing topics such as the separation of powers, judicial review and federalism.
A Legal History for Australia is an engaging textbook, cogently written and imaginatively resourced.
Joseph Blocher, Duke University School of Law, and Mitu Gulati, University of Virginia School of Law, have posted Navassa: Property, Sovereignty, and the Law of the Territories, which is forthcoming in the Yale Law Journal:
The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the history of the law of the territories—a story that continued 50 years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Modern scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights, citizenship, and self-determination. But the property framework, and accompanying private-law tools, can also play an important role in understanding and dismantling the existing colonial structure.–Dan Ernst
Thursday, September 9, 2021
|FDR, March 9, 1937 (LC)|
Peter Charles Hoffer, University of Georgia, has published Daniel Webster and the Unfinished Constitution (University Press of Kansas):
Some encomia after the jump.
For Webster, Marshall, and many lawyers and jurists of their day, professions of adherence to the Constitution were universal. Yet they knew that the Constitution could not be fixed in time; its text needed to be read in light of the rapidly transforming early republic and antebellum eras or it would become irrelevant. As Chief Justice Marshall explained in Bank of the United States v. Deveaux (1809): “A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles.” But were these “broad and general principles” themselves fixed? For Webster there were landmarks: the Contract Clause and the Commerce Clause. While others were exploring and surveying the Northwest Territory and the Louisiana Purchase, Webster set out to map the spaces in the constitutional and legal landscape that were unmarked.
Wednesday, September 8, 2021
Michael Reynolds, Visiting Senior Research Fellow, Department of International History, London School of Economics and Political Science, has published Instruments of Peacemaking 1870-1914 (Bloomsbury):
Table of Contents after the jump
From her faculty profile:
Professor Rabiat Akande works in the fields of legal history, law and religion, constitutional and comparative constitutional law, Islamic law, International law, and (post)colonial African law and society. Her current research explores struggles over religion-state relations in comparative contexts and illuminates law’s centrality to one of modernity’s most contested issues–the relationship between religion, and the state, and society–while also interrogating law’s complex relationship with power, political theology, identity, and socio-political change. These issues are at the forefront of her book project, "Constitutional Entanglements: Empire, Law and Religion in Colonial Northern Nigeria" (under contract with Cambridge University Press), which traces the emergence of “secularism” as a constitutional idea of ordering religion-state relations in early to mid-twentieth century British Colonial Northern Nigeria, and grapples with the postcolonial legacy of that inheritance.
Dr. Akande is a lifelong Academy Scholar at Harvard University Academy for International and Area Studies where she was in residence from 2019 to 2021. She graduated from Harvard Law School in 2019 with her dissertation, “Navigating Entanglements: Contestations over Religion-State Relations in British Northern Nigeria, c. 1890-1978” receiving the Law and Society in the Muslim World Prize. At Harvard University, Dr. Akande held the Clark Byse fellowship at the Law School, and was a Dissertation Fellow and Graduate Student Associate at the Weatherhead Center for International Affairs. She also served as an editor of the Harvard International Law Journal. Dr Akande taught several courses at Harvard, both at the Law School, and the Department for African and African American Studies. She also served as adjunct faculty at Northeastern University School of Law. Prior to her graduate work, Dr. Akande was an associate at G. Elias Solicitors and Advocates, Lagos. She obtained her Bachelor of Laws from the University of Ibadan, graduating with a First Class Honors and at the top of her class and later studied at the Nigerian Law School from which she also graduated with a First Class Honors.
Dr. Akande’s work has been supported by fellowships and grants including the Cravath International research fellowships, the Weatherhead Center for International Affairs fellowship, Harvard Academy grants, the Program on Law and Society in the Muslim World research grant, as part of a Law and Society Association International Research Collaborative, among others.
Congratulations to Prof. Akande and to Osgoode Hall!
Further information is available here.
Tuesday, September 7, 2021
[We noticed this listing a Chair in Legal History at Tilburg Law. DRE.]
The field of legal history is currently represented at Tilburg Law School within the Department of Global Law and Governance by a team of 5 tenured/tenure track faculty (1 part-time professor, 1 associate professor, 3 assistant professors), plus a varying number of junior lecturers and PhD fellows. (See [here]). The group provides several mandatory courses at the bachelor level in the LLB Dutch Law (Europese Rechtsgeschiedenis, The World’s Legal Systems) and the LLB Global Law (History of International Law; Global Legal History). It also offers legal history courses in at the master level and general history courses in the University’s bachelor in Liberal Arts and Sciences. It presently has two main research focuses: history of international law and, more recently, history of economic law. Both are included in the department’s research program Global Law and Governance.
The new chair in legal history is expected to develop an own research line and provide intellectual inspiration and leadership to the legal historians at Tilburg. The acquisition of external research funding is part of the portfolio of tasks. She/he will take a prominent and visible role in teaching, both in the mandatory courses at the bachelor level and in optional courses at the master level. Teaching may both be in English as in Dutch. She/he will also be available for managerial tasks within the department and the law school.
[We have the following announcement. DRE]
The current pandemic has encouraged many to experiment with new formats for research and teaching. In our own contribution to the trend, the Max Planck Institute for Legal History and Legal Theory and the Faculty of Law at Tel Aviv University, in cooperation with the Faculty of Law at Goethe-Universität Frankfurt, will be hosting an online Transnational Legal History Workshop this coming semester.
Participants will discuss pre-circulated legal history papers that go beyond national framings, with authors hailing from institutions around the world. A sample of authors and topics:
- James Whitman, "From Masters of Slaves to Lords of Lands: Imagining Ownership in the Western World"
- Doreen Lustig, "Towards a Grassroots History of International Law"
- Tamara Morsel-Eisenberg, "Rabbinic Responsa and Legal Communication"
- Paul du Plessis, "The Limits of Legal History"
- Elisabetta Fiocchi, "Transnational Entanglements in Land Law and Land Registration in the 19th Century"
- Heikki Pihlajamäki, "Transnational Elements in Colonial Laws: Spain, Portugal and the Netherlands"
The workshop will meet online Tuesdays at 7 pm Frankfurt time from mid-October to mid-January (with a break for Christmas/New Years).
Participation in the workshop is open to all interested scholars, junior and senior alike. Students may be able to receive academic credit through Tel Aviv University.
For more information and to register participation, please contact email@example.com.
Thomas Duve (MPI & Goethe)
David Schorr (TAU)
Stefan Vogenauer (MPI & Goethe)
Monday, September 6, 2021
Linda Colley (Princeton University) has published The Gun, the Ship, and the Pen:
Warfare, Constitutions, and the Making of the Modern World with Norton. From the press:
A work of extraordinary range and striking originality, The Gun, the Ship, and the Pen traces the global history of written constitutions from the 1750s to the twentieth century, modifying accepted narratives and uncovering the close connections between the making of constitutions and the making of war. In the process, Linda Colley both reappraises famous constitutions and recovers those that have been marginalized but were central to the rise of a modern world.
She brings to the fore neglected sites, such as Corsica, with its pioneering constitution of 1755, and tiny Pitcairn Island in the Pacific, the first place on the globe permanently to enfranchise women. She highlights the role of unexpected players, such as Catherine the Great of Russia, who was experimenting with constitutional techniques with her enlightened Nakaz decades before the Founding Fathers framed the American constitution. Written constitutions are usually examined in relation to individual states, but Colley focuses on how they crossed boundaries, spreading into six continents by 1918 and aiding the rise of empires as well as nations. She also illumines their place not simply in law and politics but also in wider cultural histories, and their intimate connections with print, literary creativity, and the rise of the novel.
Colley shows how—while advancing epic revolutions and enfranchising white males—constitutions frequently served over the long nineteenth century to marginalize indigenous people, exclude women and people of color, and expropriate land. Simultaneously, though, she investigates how these devices were adapted by peoples and activists outside the West seeking to resist European and American power. She describes how Tunisia generated the first modern Islamic constitution in 1861, quickly suppressed, but an influence still on the Arab Spring; how Africanus Horton of Sierra Leone—inspired by the American Civil War—devised plans for self-governing nations in West Africa; and how Japan’s Meiji constitution of 1889 came to compete with Western constitutionalism as a model for Indian, Chinese, and Ottoman nationalists and reformers.
Vividly written and handsomely illustrated, The Gun, the Ship, and the Pen is an absorbing work that—with its pageant of formative wars, powerful leaders, visionary lawmakers and committed rebels—retells the story of constitutional government and the evolution of ideas of what it means to be modern.
Praise for the book:
"As a piece of historical thinking, argument and writing, it is magisterial by every criterion, the most impressive outcome, thus far, of what has already been a career of great creativity. It is a measure, equally, of how the discipline of history has changed over the past twenty years." - Richard Drayton
"[A] terrific new global history of constitutions.... [of] many captivating stories.... Colley has produced a brilliant world history. The Gun, the Ship and the Pen is a compelling and stylish corrective to any notion that constitutions are a somnolent backwater devoid of drama and historical significance." - H. Kumarasingham
"A wide-ranging, beautifully written global history... Colley’s narrative is rich, and she emphasizes the colorful characters who have contributed to constitution-making projects around the world." - Tom Ginsburg
"If there were a Nobel Prize in History, Colley would be my nominee… An incandescent, paradigm-shifting new book." - Jill Lepore
More information is available here.