Thursday, December 9, 2021

American Legal Education Abroad: Critical Histories

Here is a fuller description, including the TOC, of the previously noted essay collection, American Legal Education Abroad: Critical Histories, edited by Susan Bartie and David Sandomierski (New York University Press:

The second half of the twentieth century witnessed the export of American power-both hard and soft-throughout the world. What role did US cultural and economic imperialism play in legal education? American Legal Education Abroad offers an unprecedented and surprising picture of the history of legal education in thirteen countries beyond the United States. Each study in this book represents a critical history of the Americanization of legal education, re-examining prevailing narratives of exportation, transplantation, and imperialism. Collectively, these studies challenge the conventional wisdom that American ideas and practices have dominated globally. American Legal Education Abroad begins with a foundational history by leading Harvard Law School historian Bruce Kimball, who explains the factors that created a transportable American legal model, and the book concludes with reflections from Susan Carle and Bob Gordon, whose observations on recent disruptions within US law schools suggest that their influence within the global order of legal education may soon fall into further decline.

This book should be considered an invaluable resource for anyone in the fields of law, legal history, socio-legal studies, law and society, legal education, comparative law, colonial and postcolonial legal studies, globalisation and law, and intellectual and cultural history.

Table of Contents


Part 1: Foundation Stories

1. The Proliferation and Transformation of Harvard's Case Method in the United States, 1870s-1990s. Bruce A. Kimball

2. How America Did (and Didn't) Influence English Legal Education, circa 1870-1965. David Sugarman

Part 2: Americanization-Critical Histories

3. American Influences, Canadian Realities: How "American" Is Canadian Legal Education? Philip Girard

4. Functionalism, Legal Process, and the Transformation (and Subordination) of Australian Law Schools. Susan Bartie

5. Conservatives, Nationalists, and American Romantics Debating Legal Education in Kwame Nkrumah's Ghana. John Harrington and Ambreena Manji

6. Transplantation and Domestication of American Models of Legal Education in Nigeria. J. Jarpa Dawuni and Rebecca Emiene Badejogbin

7. Model, System, or Node? Understanding Legal Education Reform in Twentieth-century China and Beyond. Jedidiah J. Kroncke

8. Transplants in Estonian Legal Education: Influences from the US Legal System. Irene Kull, Merike Ristikivi, and Aleksei Kelli

9. "The Turn to the West": American Legal Education and Educational     Reforms in the Swedish Welfare State, 1950-2000. Kjell Å Modéer

10. The American Case Method and New Japanese Legal Education. Yoshiharu Matsuura

11. Legal Education in France Turns Its Attention to the Harvard Model. Jean-Louis Halpérin

12. American Moment(s): When, How, and Why Did Israeli Law Faculties Come to Resemble Elite US Law Schools? Pnina Lahav

13. Catalytic Agents? Lon Fuller, James Milner, and the Lawyer as Social Architect, 1950-1969. David Sandomierski

14. Legal Teaching and the Reconceptualizing of the State: Global Law and New Legal Education Loci. José Garcez Ghirardi

15. Socratic Method, Philippine-style: To Unhave or Uphold? Emily Sanchez Salcedo

Part 3: US Perspectives

16. Rethinking Assumptions about the Global Influence of US Legal Education. Susan D. Carle

17. The Harvard Models in Their Native Habitat and Abroad: Reflections. Robert W. Gordon

The Contributors

Rebecca Emiene Badejogbin, Director of Academics, Council of Legal Education, Nigerian Law School.

Susan Bartie, Senior Lecturer in Law, University of Tasmania.

Susan D. Carle, Professor of Law, American University Washington College of Law.

J. Jarpa Dawuni, Associate Professor of Political Science, Howard University, Washington, DC, and Executive Director, Institute for African Women in Law.

José Garcez Ghirardi, Associate Professor, FGV SP Law School, Brazil.

Philip Girard, Professor, Osgoode Hall Law School, Toronto.

Robert W. Gordon, Professor of Law, Stanford University, and Chancellor Kent Professor of Law & Legal History, Emeritus, at Yale University.

Jean-Louis Halpérin, Professor (exceptional class), École Normale Supérieure, Paris and Director of the Unité mixte de recherche 7074-Centre for Legal Theory and Analysis (CNRS-University Paris X-ENS and EHESS).

John Harrington, Professor of Global Health Law and Director of the Centre for Law and Global Justice, Cardiff University and Director of the ESRC Doctoral Training Programme in Wales.

Aleksei Kelli, Professor of Intellectual Property Law, Faculty of Law, University of Tartu, Estonia.

Bruce A. Kimball, Professor in Philosophy and History of Education, The Ohio State University.

Jedidiah J. Kroncke, Associate Professor of Law, University of Hong Kong.

Irene Kul, Professor of Civil Law and Head of the Department of the Civil Law, University of Tartu, Estonia.  

Pnina Lahav, Professor, Boston University School of Law.

Ambreena Manji, Professor of Land Law and Development, Cardiff University.

Yoshiharu Matsuura, Professor Emeritus and Designated Professor for a special graduate program, Nagoya University Graduate School of Law.

Kjell Å Modéer, Professor Emeritus of Legal History, Lund University, Sweden.

Merike Ristikivi, Associate Professor of Legal History in the Faculty of Law, University of Tartu, Estonia.

Emily Sanchez Salcedo, Teacher, Commercial Law Department, De La Salle University in the Philippines.

David Sandomierski, Assistant Professor, Faculty of Law, Western University in London, Ontario.

David Sugarman, Professor Emeritus of Law, Lancaster University Law School; Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London; and Senior Associate, Centre for Socio-Legal Studies, University of Oxford.  

Wednesday, December 8, 2021

Widener on "Legal Books"

Michael Widener has published From Law Book to Legal Book: The Origin of a Species” is now out, open access, in volume 29 of Rechtsgeschichte Rg, the journal of the Max Planck Institute for Legal History:

This article responds to the question posed in the title of the 18 June 2020 workshop of the Max Planck Institute for European Legal History: “What is a Legal Book? Crossing Perspectives between Legal History and Book History.” Bridging the gap between legal history and book history requires a broader conception of legal literature, one that the term “legal book” captures more accurately than the narrower “law book.” The field of legal history has begun to take greater interest in legal books as social and cultural phenomena, as objects of commerce and as artifacts. The article develops a definition of “legal book” using illustrations of law books that are taken from the books themselves, including allegorical images, author portraits, and depictions of lawyers at work. These images highlight the book’s function in law as symbol, text, and artifact. The article concludes by pointing to opportunities for collecting, research, and teaching that the broader definition of “legal book” presents for curators and the historians they serve.
--Dan Ernst

The LOR system (part 2): How the system has changed

This is the second in a five-part series on the Letter of Recommendation (LOR) system, describing feedback received in spring 2021 by Mitra Sharafi and Ronit Stahl to an online poll and survey. Part 1 is here.

How has the Letter of Recommendation (LOR) system changed in recent years? As historians, we recognize that processes are not static. Attention to the ways in which the LOR system has changed may provide useful insights into both benefits and drawbacks.

Some respondents to our survey underscored that the mechanism of letter submission has altered how the LOR system--and expectations around it--operate.

  • As a writer, there are too many different systems and they each require separate accounts and log-ins and agreeing to terms and conditions pages that I feel pressured to agree to even when I don't like the terms.

  • It has become increasingly unwieldy as institutions move to online submissions. There is also an increasing expectation of tailored letters. When I was a graduate student looking for a job, my recommenders submitted one letter to a dossier service, run by the graduate school, which then sent out the letters as I requested them in a packet with a university seal. That morphed into the online dossier services, where I submitted one letter and the students used the service to send out the letters. Now institutions have their own online systems that no longer accept letters from online services, so I have to submit individual letters for each job--and that often means as many as 20 submissions with different portals, all with different deadlines. The online submission system has the perverse effect of making it seem "easier" to obtain letters. So I now write letters for a range of things that did not require them in the past: study abroad for undergrads, other undergrad programs, small research grants for undergrads and grad students, etc. 

  • The manageability question has also changed over the course of my years of teaching. When I first began teaching in the mid-1990s there was a rhythm to the job market. Letter writing was concentrated in the late summer and early fall. That hasn't been true now for a number of years. The students I work with are applying for positions basically year round with each position or fellowship asking them to jump through a different set of hoops, so that they're not only writing new cover letters, but a whole variety of other required statements, each tailored to the given position/"fellowship." I worry greatly about this burden on them. It is what concerns me most. This also has meant that there is no longer a cycle or rhythm to letter writing; it is ongoing and unending… It is striking to me how fundamentally LORs have changed [over the last century]. It is clear that the burden of letter writing has dramatically increased. I think about my letters which range from 2 to 3 (or sometimes 4, although a letter should never be that long) pages and compare them to letters from the 1920s or 1940s, which were brief: a few sentences or a paragraph, with often multiple potential candidates referred to in the same letter. Equally brief were the statements that faculty submitted to university placement files for students. And briefer still was the phone call, where a man was taken simply on the recommendation of his advisor. This was all before there was a "job market." It was a closed, discriminatory system. Many of us who spend countless hours today writing letters for students were completely closed out of or marginalized in that system.

More after the jump.

Tuesday, December 7, 2021

Pirie's "Rule of Laws"

Fernanda Pirie, Centre for Socio-Legal Studies, Oxford, has published The Rule of Laws: A 4000-Year Quest to Order the World (Basic Books):

Almost without exception, the laws enforced throughout the world today are modelled on systems developed in Western Europe in the eighteenth and nineteenth centuries. For two hundred years, European colonisers exported their laws everywhere they could. But in many places they weren't filling a void: again and again, they displaced local traditions that were already ancient when Vasco Da Gama first made landfall in India. Even the Romans, first framers of the European tradition, were inspired by earlier precedents.  

Where, then, did it all begin? And what sophisticated approaches to justice have been lost in the drive for uniformity? In The Rule of Laws, anthropologist Fernanda Pirie traces the development of the world's great legal systems - Chinese, Indian, Roman, and Islamic. But she also shows how common people-tribal assemblies, merchants, farmers-have called on laws to define their communities, regulate trade, and resist outsiders. The variety of the world's laws, Pirie reveals, has long been almost as great as the variety of its societies. Although legal principles originating in Western Europe now seem to dominate the globe, a more complicated legal reality persists on the ground, one that is evident everywhere from the influence of Islamic law across the Middle East, to the persistence of traditional codes among nomadic Tibetan yak herders, to the unwritten rules of gangs worldwide.

At the heart of this story is a persistent paradox. Rulers throughout history have used laws to impose order. But they have also offered ordinary people a way to resist authority and to express their diverse visions for a better world. 
--Dan Ernst

Monday, December 6, 2021

Seminar on a 19th-Century UK Trademark Prosecution

We have word of a forthcoming online seminar hosted by CREATe (the Research Council funded centre for copyright research at the University of Glasgow, UK) by Dr Elena Cooper, Leverhulme Early Career Fellow, CREATe, on “the connections between criminalisation and UK trade mark law in the nineteenth century, through the lens of the late nineteenth century branding history of a particular business: the Jaeger clothing company.”  Dr Jennifer Davis, University of Cambridge, will be the discussant; Dr Luis Porangaba, CREATe, will chair.  Dr. Cooper’s abstract:

Jaeger was established in the UK in 1884 by a City of London businessman, Lewis Tomalin, as a business concerning the manufacture and sale of woollen underwear and clothing. Taking Jaeger's early business history as a focus, the presentation will explore the relationship between branding practices and legal rules regulating the use of trade marks, particularly the criminal law of false marking under the UK Merchandise Marks Act 1887. I will analyse the commercial and legal agreements concerning the use of the Jaeger trade mark, including the relationship of the UK business to a zoologist and physician:  Professor Gustav Jaeger of Stuttgart, Germany. Then, drawing on original archival material, I will uncover the high-profile criminal prosecution of Jaeger in the late nineteenth century, instigated by the Board of Trade (a UK Government Department). Whereas most trade mark prosecutions at this time, involved a trade-mark owner bringing action for unauthorised use of a trade mark by a third party, the Board of Trade's prosecution of Jaeger concerned the application of the criminal law to Jaeger's own branding practices. I will conclude by drawing attention to the way that the specific branding history of Jaeger, takes us to new perspectives on nineteenth century ideas about trade marks (the relationship between trade marks and personality, and trade marks as indicators of geographical origin), as well as the significance of criminalisation to the historical development of trade mark law.  
The Seminar will take place online via zoom on Friday 10th December at 10am UK time. Should you wish to attend, please contact Dr Cooper:

--Dan Ernst

The Letter of Recommendation (LOR) system (part 1): Scholars speak up

Earlier in 2021, we--Ronit Stahl (Berkeley History) and Mitra Sharafi (University of Wisconsin Law)--found that we were both tweeting about the ills of the academic Letter of Recommendation (LOR) system. We were both dissatisfied with the general expectation that all applications (from jobs and postdocs to archive grants and summer programs) require multiple (often tailored) letters of recommendation and typically request them at the first stage of application. 

We wanted to hear more from other scholars in law and history. Were they struggling with the LOR system as much as we were? How and why has the LOR system become more unwieldy over time? Most importantly, what can be done to make the system more manageable and worthwhile for everyone involved? (One notable difference between law and history is that law school admissions are run through a centralized system, requiring faculty to upload a single letter. Another is that unlike tenure-track history jobs, most tenure-track law jobs require recommendations by phone call, not by letter.)

We set up a poll and survey via Twitter and Google forms. We received 46 votes on the poll and 21 responses to the survey. We also received e-mails from three people, and had one in-person meeting. We share what we learned now, as a multi-part blogpost series. In parts 1-4, we describe some patterns and views emerging from our efforts at data collection. In part 5, we consider how the LOR system may be reformed.

The first thing to say is: *many many thanks* to everyone who took the time to share their experiences with us. Not only do many of you spend an inordinate amount of time writing LORs, you also then spent extra time answering our questions about them!

Secondly, it is not our aim here to make letter requesters feel guilty about asking for letters. Our academic world runs on LORs, although there are signs here and there that this may be changing. For example, TT job searches now occasionally only ask for LORs for finalists and some grant agencies are no longer asking for LORs. We are questioning the LOR system, not those who ask for letters. We recognize that in our current system, asking for letters is mandatory for anyone who wants to launch an academic career. But we wonder whether it needs to be so.

Now, to our results--after the jump. 

Saturday, December 4, 2021

Weekend Roundup

  • Jessica A. Shoemaker, University of Nebraska College of Law, reviews Gregory Ablavsky’s Federal Ground: Governing Property and Violence in the First U.S. Territories (Oxford University Press, 2021), in the Michigan Law Review (and SSRN).
  • In the New York Review of Books: Sarah Seo (Columbia Law School) on "Reimagining the Public Defender," reviewing books by Jonathan Rapping (Gideon's Promise), Sara Mayeux (Free Justice), and Matthew Clair (Privilege and Punishment). (The article is free to read, but you have to register.)
  • The New Jersey Council for the Humanities announces the launch of its Stanley N. Katz Prize for Excellence in Public Humanities a January 2022 kickoff event featuring a conversation with former ASLH president Stan Katz.
  • The Heyburn Initiative strengthens the University of Kentucky Libraries’ mission to archive and digitize “collections from federal judges, justices, and other leaders related to the judiciary with connections to Kentucky" (UKnow).
  • ICYMI:  Mark Tushnet's pet peeves about legal scholarship include originalism. (Balkinization).  A. Douglas Melamed interviews Herbert Hovenkamp, mostly about antitrust, but also about his historical training (SSRN) . George Boyer Vashon: New York’s First African American Attorney (Historical Society of the New York Courts). The Supreme Court of Georgia is set to kick off 175th anniversary celebration (Johnson City Press).

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

Friday, December 3, 2021

SAPD 35:2

Studies in American Political Development 35:2 (October 2021) has been published:

From civil rights to social policy: the political development of family and medical leave policy
Kumar Ramanathan

Naturalizing affection, securing property: Family, slavery, and the courts in Antebellum South Carolina, 1830–1860
Gwendoline M. Alphonso

Select No Gestapo: J. Edgar Hoover's world-wide intelligence service and the limits of bureaucratic autonomy in the national security state
Harry Blain

The 1982 Voting Rights Act Extension as a “Critical Juncture”: Ronald Reagan, Bob Dole, and Republican Party-Building
Richard Johnson

When Think Tanks Refuse Thinking: Why American Pro-Market Conservatives Oppose Market Integration
Benedikt Springer 

--Dan Ernst

Thursday, December 2, 2021

Shymansky on Georgetown Law and the New Deal

It’s not open access, but I could not be happier to see that Ryan Shymansky”s “The Spirit of the New Deal" at Georgetown Law: Change and Constraint from 1933 to 1940, has been published in the Journal of Southern Legal History 28 (2020): 17-70.  Mr. Shymansky is a 2019 graduate of the Georgetown University Law Center.  From the introduction:

This Article will proceed in several parts and will highlight both the changes wrought at Georgetown Law by the New Deal as well as the factors that limited their impact. Part I discusses the general history of Georgetown Law and the Great Depression to establish the law school's position at the outset of the New Deal. Part II considers the changes the New Deal brought to Georgetown Law, with a particular focus on enrollment, the student body, curricular changes, alumni involvement, and relationships with government figures. While accepting their significance, Part III suggests two primary reasons that these changes did not leave an even greater mark on the law school: the ideological gravity of Scholastic natural law, and the institutional power of the Regency. In the end, Georgetown Law's Jesuit heritage and structure proved resistant to a full-throated embrace of the New Deal and complicated the possibility of truly transformative change before the effective end of the Regency in the early 1960s.

--Dan Ernst

Wednesday, December 1, 2021

Farbman, "'An Outrage Upon Our Feelings': The Role of Local Governments in Resistance Movements"

Cardozo Law Review has published "An Outrage Upon Our Feelings": The Role of Local Governments in Resistance Movements, by Daniel S. Farbman (Boston College Law School). Here's the abstract:

After the election of 2016, many who opposed President Trump and his policies argued that local governments and local power would be the best tools to resist those policies and strengthen democracy. Among the most prominent acts of local resistance in the last decade have been resolutions that declare a town or a city a “Sanctuary” and refuse to cooperate with federal authorities in the deportation of undocumented immigrants. This Article situates these resolutions in a long tradition of local opposition to state and federal laws that towns and cities deem unjust by examining local opposition to the Fugitive Slave Law of 1850. Drawing on original archival research, this Article exposes striking similarities between contemporary tactics of local resistance and the tactics of local governments in 1850–1851 that passed formal resolutions opposing the Fugitive Slave Law. This examination of how local governments responded to the Fugitive Slave Law poses two broad questions: what did local governments think they were doing when they passed these resolutions? And how much power did local governments really have to achieve those goals? The answers to these questions are complex and context specific. The local struggles that resulted in these resolutions were part of an ongoing political struggle against the seemingly intractable problem of slavery. The local resistance chronicled here is exceptional neither in its heroism nor its effectiveness. Rather it is striking in its familiar messiness and ambition. In some cases, towns seemed to have modest expressive goals that could be met by their resolutions. In other cases, the towns’ resolutions seem to suggest a much broader set of substantive goals that were beyond the power or capacity of the town to achieve. Examining these responses to the Fugitive Slave Law offers a new analytical perspective on local responses to the deportation crisis. Examining what local governments think they are doing when they pass sanctuary ordinances and comparing that with what they are empowered or willing to do helps us think more clearly about how and by what means local governments can resist national policies and engage in broad political struggles.

The full article is available here.

-- Karen Tani

Book Launch for Cazzola's "Political Thought of Thomas Spence"

 [We have word of the following virtual book launch.  DRE]

The Political Thought of Thomas Spence: Beyond Poverty and Empire, by Matilde Cazzola
Thursday 16th December 19:00 CET

The book is an intellectual analysis of the political ideas of English radical thinker Thomas Spence (1750–1814), who was renowned for his "Plan", a proposal for the abolition of private landownership and the replacement of state institutions with a decentralized parochial organization. While he has long been considered an eccentric and anachronistic figure, the book sets out to demonstrate that Spence was a deeply original, thoroughly modern thinker, who translated his themes into a popular language addressing the multitude and publicized his Plan through chapbooks, tokens, and songs. The book is therefore a history of Spence's political thought "from below", designed to decode the subtle complexity of his Plan. It also shows that the Plan featured an excoriating critique of colonialism and slavery as well as a project of global emancipation.

Dr Matilde Cazzola is a Senior Research Fellow at the Max Planck Institute for Legal History and Legal Theory in Frankfurt, Germany. She earned her PhD in History from the University of Bologna in 2019. Her work focuses on the political and legal thought of a number of administrators of the British Empire in North America, the Caribbean and India in the 1750s–1900s and on British imperial philanthropy.

The other speakers are Prof. Alastair Bonnett (Newcastle University), Prof. Harry Dickinson (Edinburgh University), and Prof. Marcus Rediker (University of Pittsburgh).  Register here.

Tuesday, November 30, 2021

Shugerman on Blackstone, the Removal Power, and the Unitary Executive

Jed Handelsman Shugerman, Fordham Law School, has posted Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism, which is forthcoming in the Yale Journal of Law and the Humanities:

William Blackstone (NYPL)
This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so?

Unitary executive theorists’ reliance on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them.

When one investigates the unitary evidence more closely and follows their sources, one
finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation. 
--Dan Ernst

Schwartz on Treanor on the Dishonest Scrivener

David S. Schwartz, University of Wisconsin Law School, has posted Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's “Dishonest Scrivener,” which will also appear on Michigan Law Review Online:

Gouverneur Morris (NYPL)
Dean William Treanor's masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding. He uncovers a body of constitutional interpretations favored by advocates of a strong national government and emphasized by the Federalist party in the early decades of politics and policy under the Constitution, raising significant questions about present-day originalism in the process. Treanor particularly emphasizes how Constitutional Convention delegate Gouverneur Morris, acting as primary draftsman on the "Committee of Style" which put the finishing touches on the draft 'Constitution' crafted language favorable to Federalist interpretations. But Treanor disserves his otherwise compelling argument with a narrative that portrays Morris as a "dishonest scrivener" who "smuggled in" substantive revisions to impose his own views, presumably against the will of an inattentive Convention majority. This narrative framing 'not sustained by the available evidence' digresses from Treanor's core argument, and works against it. A better interpretation of the historical evidence is that the Committee of Style draft had broad support and made no substantive revisions that escaped the notice of the Convention. The fifteen revisions by the Committee of Style cited by Treanor do not support the charge of "dishonest scrivening." Ultimately, we can dismiss the 'dishonest scrivener' narrative, while recognizing Treanor's valuable, core insights that Morris was a key player at the Convention and that the Committee of Style reinforced Federalist understandings of the original Constitution. 

--Dan Ernst

Monday, November 29, 2021

Merkin's Legal History of Marine Insurance

Rob Merkin, University of Reading, has published Marine Insurance: A Legal History (Edward Elgar):

This authoritative work forms a comprehensive examination of the legal and historical context of marine insurance, providing a detailed overview of the events and factors leading to its codification in the Marine Insurance Act 1906. It investigates the development of the legal principles and case law that underpin the Act to reveal how successful this codification truly was, and to demonstrate how these historical precedents remain relevant to marine insurance law to this day.

Beginning with the pivotal year of 1756, Rob Merkin QC organises his analysis era by era, situating the leading cases and emerging fundamentals of the marine insurance industry in the context of external events such as war, the growth of free international trade, and the expansion of empire. Offering insight into the origins of familiar legal principles in the field, the book provides a deeper understanding of the legal framework within which historical events took place and how this shaped both the development of marine insurance law and the political and economic circumstances surrounding it.
–Dan Ernst

Saturday, November 27, 2021

Weekend Roundup

  • Kenneth Mack, Harvard Law School, reviews Until I Am Free: Fannie Lou Hamer's Enduring Message to America (Beacon Press), by Keisha N. Blain, in WaPo
  • Samuel Evan Milner, Ph.D and a J.D. candidate at the University of Chicago Law School, will discuss his soon to be published book, Robbing Peter to Pay Paul: Power, Profits, and Productivity in Modern America (Yale University Press), with Todd Henderson and Eric Posner under the auspices of Chicago Law’s Center on Law and Finance on December 15, beginning at 12:15 pm Central Time.  The book treats “the history of corporate governance, oligopoly, and labor” and its implications for the present.  Register here.
  • ICYMI:  Stanford Law's notice of ASLH fellowships for Lawrence Friedman and Robert W. GordonSarah Seo calls for removing police from traffic law enforcement (Harvard Gazette).  Trust the Teachers, says David W. Blight (The Atlantic).

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

Friday, November 26, 2021

Grisel's "Limits of Private Governance"

Florian Grisel, Associate Professor of Socio-Legal Studies at the Centre for Socio-Legal Studies, University of Oxford, has published The Limits of Private Governance: Norms and Rules in a Mediterranean Fishery (Bloomsbury):

Is there a future for the law? In this book, Florian Grisel addresses one of the most fascinating questions raised by social scientists in the past few decades. Since the 1980s, socio-legal scholars have argued that governance based on social norms (or “private governance”) can offer an alternative to regulation by the law. On this account, private governance could be socially efficient and even optimal compared with other modes of governance.

The Limits of Private Governance supplements this optimistic analysis of private governance by assessing the long-term evolution of a private order in the fishery of Marseille. In the last eight centuries, the fishers of Marseille have regulated their community without apparent means of legal support from the French state. In the early 15th century, they even created an organisation called the Prud'homie de Pêche in order to regulate their fishery.

Based on archival evidence, interviews and ethnographic data, Grisel examines the evolution of the Prud'homie de Pêche and argues that the strong social norms in which it is embedded are not only powerful tools of governance, but also forces of inertia that have constrained its regulatory action.

The lessons drawn from this book will appeal to academics, policy-makers and members of the general public who have an interest in the governance of our modern societies.
–Dan Ernst

ASLH "projects & proposals" funds to Dayton, Jagodinsky

Continuing our announcements of the happenings at the recent ASLH meeting, we now announce two recipients of funds from the Society’s Projects and Proposals Committee:

The Wheatley Peters Project, proposed by Cornelia Dayton, is an excellent, well-conceived and ambitious project that has already garnered positive attention upon its initial preliminary launch. It aims not only to make important historical documents available to a wider public but also to showcase historians’ methods of using such research in their work. It will provide transcriptions, interpretations and interactive commentary on key archival material related to the lives of Phyllis Wheatley, her husband John Peters, and other Black Americans during the eighteenth century. ASLH funding will help establish the site as a model of digital engagement and may help attract additional resources to the project.

The Digital Legal Studies Forum, proposed by Katrina Jagodinsky, encourages excellence in digital history by bringing together established and junior scholars in a productive and thoughtful way. As the proposal states, Forum organizers “aim to bring talented new voices into the field, promote novel forms of scholarly interchange, and to seed new forms and venues for public history.” The event, a project of the Center for Digital Research in the Humanities at the University of Nebraska Lincoln, will draw dozens of historians, archivists, and scholars from around the West and Midwest, putting them in productive conversation with their peers, while also engaging new work that uses digital legal projects to explore issues pertaining to slavery reparations and treaty reconciliation. ASLH funding will provide needed financial support to make the forum a success.

Congratulations to Professor Dayton and Professor Jagodinsky! We look forward to seeing the results of these exciting projects.

-- Karen Tani

Wednesday, November 24, 2021

ASLH Craig Joyce Medal to Gordon

Occasionally the American Society for Legal History awards a very special honor: the Craig Joyce Medal. The ASLH website explains:

The Society depends on the volunteer labors of its members. It is fortunate in the number of its members who are willing to join in the business of the Society, which is to foster scholarship and teaching in the broad field of legal history. Each year well over a hundred names appear on this website on the lists of officers, directors, and committee members. Among that number, a few people contribute their time to the Society over many years in ways that are above and beyond the call of duty, even in an organization whose members have a strong sense of duty. The Craig Joyce Medal recognizes those individuals. It is awarded on an occasional basis to acknowledge and honor extraordinary and sustained volunteer service to the Society. The medal was first awarded, fittingly, to Craig Joyce, the Andrews Kurth Professor of Law at the University of Houston, in whose honor the ASLH Board of Directors created the award.

At this year's meeting of the ASLH, this medal was awarded to Sarah ("Sally") Barringer Gordon (University of Pennsylvania). Ray Solomon generously allowed us to post the remarks he read at the luncheon:

Professor Sarah Barringer Gordon
Sally Gordon (credit)
All of us know, the ASLH depends on the volunteer labors of its members. Over the years our Society has grown and flourished because of the countless hours of work our members put in to ensure that the intellectual life of the field is vibrant, the annual meeting is superb, the membership grows nationally and internationally, the website and blog have interesting and informative content, and we are well-managed and financially secure. Each year well over a hundred names appear in the program on the lists of officers, directors, and committee members. Among that number, a few people contribute their time to the Society over many years in ways that are above and beyond the call of duty, even in an organization whose members have a strong sense of duty. The Craig Joyce Medal recognizes those individuals. It is awarded on an occasional basis to acknowledge and honor extraordinary and sustained volunteer service to the Society, as Craig himself exemplified for so many years. It has been awarded to some officers for their service, but not to any presidents. In my many years as a member I can honestly say that every president since Herb Johnson (he was the first I knew) certainly worked tirelessly to make the Society stronger and better than when they came to office. While they each deserved recognition for that service, the Joyce medal was not designed to do that. However, President Benton has used her discretion wisely to make an exception. I am pleased to announce that this year the Joyce Medal is awarded to our immediate past-president, Sarah Barringer Gordon – or as she is known to all of us --- Sally, who is a most accomplished scholar and the Arlin M. Adams Professor of Constitutional Law and Professor of History at The University of Pennsylvania.

More than any other single person Sally has been the impetus behind the transformation of the Society over the past two decades into an efficiently running, financially stable, programmatically dynamic learned society. I first began to work closely with Sally when her supposed cousin, Bob Gordon, asked us to be part of the Society’s Fund for the Future campaign. Sally’s leadership as chair enabled us to secure our first real endowment, which enabled us to create the Projects & Proposals Committee and began to support important new projects that featured younger scholars and brought new scholars into the Society from other fields. When our financial infrastructure was in total disarray, Sally stepped in and retrieved the records that enabled Craig Klafter to work his magic, and she oversaw the Finance and Investment Committee. And when we needed to figure out how to keep the Hurst Program going, she was there to lead the effort to contact former students to honor their mentors and endow the Program. It was also Sally who brought Wally Johnson to the Society and successfully pitched the idea of a first-book program, which has proven to be a unique opportunity to help young scholars and should become a model for other learned societies to follow. Sally also modernized the administration of the Society --- getting control over how membership is handled, rewriting our bylaws, and increasing the content and design of our website. Of course, in all of these many critical projects Sally had amazing assistance, but always she was the driving force.

And I have yet to mention that for almost a dozen years she has been an editor of the Society’s Studies in Legal History with the University of Cambridge Press, the preeminent series in the field. In that role she has read countless manuscripts and worked with authors to improve their manuscripts and has diversified the geographical coverage of work in the Series, as well as bringing different voices to the conversations in the field. She has even hawked books in the display room at our annual meeting.

And I have yet to mention that Sally has been for twenty years a director of the William Nelson Cromwell Foundation where she has led the efforts to vastly expand the Foundation’s support for the field and the Society. Most notably many members have benefited from the dissertation, article and book prizes the Foundation funds.

And I won’t mention the more than half dozen committees Sally has chaired or served on during her 30 years as a member of the Society.

I have been accused many times of knowing a lot of people, but I’m an amateur compared to Sally, who is the pro. Her smiling presence and humor have welcomed and promoted a generation of young scholars to the field and the Society. These include many from her alma maters of Yale and Princeton, those she has mentored at Penn, those she has taught at the Hurst and the Johnson Programs, as well as those whom she has met at our conferences and annual meetings.

In sum the American Society for Legal History and our field is as strong as it is today in large part because of the work of Sally Gordon. For that and more she is a worthy recipient of the Craig Joyce Medal.

Congratulations and thank you to Professor Gordon!

-- Karen Tani

Northeastern Asian American Studies Job

 [We share the following job announcement.]

Open Rank Cluster Hire – Assistant/Associate/Full Professor of Asian American Studies

The College of Social Sciences and Humanities (CSSH) at Northeastern University seeks nominations and applications from scholars for multiple openings in Asian American Studies, with an expected start date of Fall 2022. Appointments will be made at the rank of Assistant Professor, Associate Professor with tenure, or Full Professor with tenure. Successful candidates will have a distinguished scholarly record and demonstrated potential for excellence in teaching and leadership. This multi-position search is open to applicants with a Ph.D. from disciplines in the social sciences and humanities, and we especially welcome scholarly expertise in any of the following: law, governance, and social justice; migration and diaspora; critical technology studies; health humanities; political economy; literature, art, and social movements; visual studies; Native Hawaiian and Pacific Islander Studies; public and/or digital humanities.

Successful candidates will have a partial appointment in the Asian Studies Program and have a tenure home in an appropriate department in the College of Social Sciences and Humanities or in the University. Candidates may have a cross-college appointment with the College of Arts, Media and Design (CAMD), if appropriate, or may affiliate with one of our research centers dedicated to work at the nexus of race and social justice, including the Boston Area Research Initiative; the NULab for Texts, Maps, and Networks; or the Institute on Race and Justice.

Applicants will be asked to indicate their discipline or field on the online application form. Applications should include a cover letter that addresses the applicant’s interest in and qualifications for the position, curriculum vitae, evidence of teaching effectiveness, research statement, writing sample, and contact information for at least three letters of recommendation.

To apply, please go to and click on the link for full-time positions or full-time interdisciplinary positions or if viewing this description on the Northeastern University website, click “Apply to this job.” Please address nominations and inquiries about the position to Professor Philip Thai, Chair of the Asian American Studies Search Committee, at Review of applications or nominations will begin December 15, 2021 and will continue until the position is filled.

--Mitra Sharafi

Tuesday, November 23, 2021

Preyer Awards to Maor, Arcadi

The ASLH's Kathryn T. Preyer Award recognizes excellent scholarship by junior scholars:

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. 

This year's awardees are Naama Maor (University of Chicago) and Teal Arcadi (Princeton University). The citations:

Naama Maor for In Search of the “Real Culprits”: The Adult Delinquent in a Progressive Era Juvenile Court

In her elegantly written and deeply researched paper, Naama Maor analyzes previously unexplored cases against adult defendants in the trailblazing Denver Juvenile Court between 1907 and 1927. Maor finds that the court’s reliance on a new, capacious, and ambiguous category of offenses – contributing to the delinquency of a child – facilitated enforcement that both reflected and shaped gendered ideas about age, consent, and criminal liability for the acts of another. In pursuing cases against adults through children, judges, probation officers, and district attorneys invested great power in the hands of the same children the law deemed inculpable due to their age. The paper persuasively shows that in their rush to try these cases, state officials inadvertently gave rise to a potent opposition to the court’s jurisdiction, which challenged the assertion that adults could receive a fair trial in a juvenile court.

Teal Arcadi for Concrete Leviathan: Interstate Highway Litigation and the Clash of Experts and  Citizens in Modern America

Teal Arcadi explores how the construction of the National System of Interstate and Defense Highways prompted protests and litigation that reformed administrative law and modern American governance from the 1960s onward. His paper explains that when interstate construction began in the late 1950s, it became synonymous with destruction of neighborhoods and parks bulldozed to make way for the “concrete monsters,” as some came to call the interstate highways. “Freeway revolts” erupted in the nation’s cities, with participants demanding altered construction practices that gave citizens and communities more say in the state building process underway. While cultural and urban historians have recounted these uprisings, their legal and governmental impact warrants further treatment, which Arcadi ably provides. Arcadi advances three important and compelling arguments. First, the freeway revolts have a broader governmental history that elucidates the long-simmering and cross-partisan tension between administrative authority and participatory democracy that boiled over after the New Deal. Second, the freeway revolts brought distinctive reforms to the practices of modern American state building, particularly in leading to the canonical Supreme Court case Citizens to Preserve Overton Park v. Volpe in 1971. Third, despite the reformist inclinations present in Overton Park, the case produced an uneven legal and physical landscape of state building. Ultimately, the paper identifies the emergence of a legal context that prioritized the protection of open spaces at the expense of poor and minority urban communities.

Congratulations to Naama Maor and Teal Arcadi!

-- Karen Tani

Monday, November 22, 2021

John Phillip Reid Book Award to de la Fuente & Gross for "Becoming Free, Becoming Black"

The American Society for Legal History awards the John Phillip Reid Book Award "for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history." This year's winner is the co-author team Alejandro de la Fuente (Harvard University) and Ariela J. Gross (University of Southern California) for Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (Cambridge University Press, 2020). The citation:

Entering into a terrain of longstanding scholarly debate, Alejandro de la Fuente and Ariela Gross’s Becoming Free, Becoming Back (Cambridge University Press, 2020) traces the winding path from black slavery to black citizenship in Cuba, Louisiana, and Virginia. It avoids traditional claims of moral superiority for Latin American systems of bondage. Instead, it shows how in all three societies race became a cornerstone for constructing the normative logic of slavery. With remarkable nuance, their book underscores the ways Iberian legal customs of manumission did make a difference by allowing for the creation of a free black population. Beautifully written, thoroughly researched, and persuasively argued, it impressively deploys cultural history— emphasizing context and contingency—to undermine the seeming historical inevitability of citizenship becoming closely intertwined with whiteness. This is comparative history at its finest.

Congratulations to both authors!

-- Karen Tani

Brauneis on Fine Art and the Copyright Act of 1870

Robert Brauneis, George Washington University Law School, has posted Understanding Copyright's First Encounter With the Fine Arts: A Look at the Legislative History of the Copyright Act of 1870, which appeared in the Case Western Reserve Law Review 71 (2020):

In 1870, Congress made its single largest addition of categories of copyrightable subject matter, expanding copyright protection to cover “painting[s], drawing[s], chromo[s], statue[s], statuary, and . . . models or designs intended to be perfected as works of the fine arts.” For the first time, it included works not designed or intended to be created and distributed in multiple copies, and it aligned copyright with the “fine arts” as opposed to the “mechanical arts,” a revision of the earlier understanding that copyright would cover “Science” as opposed to the “Useful Arts.” Why did Congress so act?

A thorough examination of the legislative history of the 1870 Act, and associated historical documents, leads to the following conclusions. First, artists sought protection for paintings and drawings in part to ensure enforceable exclusive rights for prints as the industrial organization of print production changed. Second, the drive for protection of paintings and drawings was also motivated by advances in reprographic technology, particularly color lithography. Third, expansion of an existing scheme of protection is politically easier than creating a new scheme of protection and negotiating all of the dimensions from scratch. Fourth, artists became better organized in associations like the National Academy of Design, and art publishers became substantial industrial ventures that employed dozens of workers in large factories, which increased their political visibility and power. Fifth, the proponents of expansion faced no organized opposition. Sixth, the 1870 Act’s expansion had few ties or references to earlier English expansion, reflecting the increasing independence of US legal culture from English legal culture after the Civil War.

--Dan Ernst

Sunday, November 21, 2021

Stein book award to Chatterjee for "Negotiating Mughal Law"

Continuing our tradition of posting the prize winners from this year's ASLH meeting, we now celebrate Nandini Chatterjee (University of Exeter). Her book Negotiating Mughal Law: A Family of Landlords Across Three Indian Empires (Cambridge University Press, 2020) won the Peter Gonville Stein Book Award. The Stein Book Award recognizes "the best book in non-US legal history written in English" and "is designed to recognize and encourage the further growth of fine work in legal history that focuses on all regions outside the United States, as well as global and international history" The citation:

Negotiating Mughal Law is a wonderful combination of philology, imagination, archive sleuthing, and sharp intelligence. Based on a painstakingly collected set of documents in a few languages from a society that lacked a centralized legal archive, it is a micro-history of a family of landlords in central India over several centuries. Chatterjee provides a rich narrative of law as put into practice in the daily lives of a wide range of people. Her attention to methodology is a model of the care and self-criticism that underlies the very best historical research, and for this reason the book is of great value beyond its specific geographical and temporal context.

An Honorable Mention went to recent guest blogger Samuel Fury Childs Daly for A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War (Cambridge University Press, 2020).

Congratulations to both authors!

-- Karen Tani

Saturday, November 20, 2021

Weekend Roundup

  • We were very sorry to learn of the death earlier this month of the medievalist James A. Brundage, Ahmanson-Murphy Distinguished Professor of Medieval History Emeritus at the University of Kansas.  His books include The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008); The Practice and Profession of Medieval Canon Law (2004); and Law, Sex, and Christian Society in Medieval Europe (1987).  As the condolences here show, he was deeply respected by many legal historians.
  • Just in time for Native American Heritage Month, the latest issue of the Texas Supreme Court Historical Society Journal has been published here.  According to John Browning, a former judge and current Editor-in-Chief, the issue “has a special focus on Native American legal history in Texas,” including articles on “NAGRA, an 1871 trial of Native American combatants in a Texas criminal court, the search for Texas’ first Native American lawyer, a profile of Texas’ first Native American federal judge, and much more.” 
  • The editors of the Bluebook have adopted Rule 10.7.1(d), which directs that when citing cases in which an enslaved person was a party, authors should include the parenthetical “(enslaved party).”  In cases in which an enslaved person was the subject of the dispute but not a named party, authors are to use the parenthetical “(enslaved person at issue)" (CM Law Library Blog).  The change is in response to the Citing Slavery Project, headed up by Justin Simard, Michigan State University College of Law.  H/t: JLG. 
  • ICYMI: “The Supreme Court of Georgia will celebrate its 175th anniversary in December with two events to highlight its history and impact on the state" (The Law).  "Plessy v. Ferguson aimed to end segregation—but codified it instead" (National Geographic).  More on YLS professor Vicki Schultz's seminar on “the early work done by lawyers in the United States Department of Justice Civil Rights Division Employment and Litigation Section” (Yale Daily News).  A 53-year-old billionaire outbid a group of crypto-investors and bought a copy of the U.S. Constitution for $43 million (WSJ).

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

Friday, November 19, 2021

Loeffler on the UDHR, the Genocide Convention, and the 1948 Israeli-Arab War

James Loeffler, University of Virginia, has published Three days in December: Jewish human rights between the United Nations and the middle east in 1948, in the Journal of Global History (2021), 1–19:

The twin birth of the UN Universal Declaration of Human Rights and the UN Genocide Convention in 1948 have received enormous scholarly attention in recent years. Yet historians have largely ignored how these legal projects intersected with that year’s war in Israel/Palestine. In this article, I push these two stories back into a single frame by examining the year-long efforts of one early human rights organization, the World Jewish Congress, to advance rights-claims on behalf of Middle Eastern Jewish communities imperiled by the regional repercussions of the war. The WJC’s record of activities affords us a direct window into contemporaneous activist understandings of the ties between the Holocaust and the Nakba, human rights and genocide, and international law and politics. More broadly, it reveals the intrinsic limits of early human rights advocacy in an emerging global system exclusively structured around nation states.

–Dan Ernst

Fletcher on Pandemics in Indian Country

Matthew L. M. Fletcher, Michigan State University College of Law, has posted Pandemics in Indian Country: The Making of the Tribal State, which is forthcoming in the University of St. Thomas Law Journal:

This Essay is inspired by the fascinating narrative told by John Fabian Witt theorizing how epidemics make states and how states can also make epidemics. The two stories centered in Peshawbestown, Michigan of the 1881 smallpox outbreak and the 2020-2021 COVID-19 pandemic seems to play into that story. The state (acting through the local and federal government) made the 1881 outbreak fatal, while the epidemic (acting through the tribal and federal government) made the state (in this case, the tribe) in 2020-2021. The story here seems to be one of sovereignty. In the smallpox era, the tribes exercised almost no sovereignty. Now they are practically self-governing; the incredible success of the Grand Traverse Band is a ringing endorsement. The tribe is acting like a capable and responsive government. But I argue there is more going on here. Sovereignty – whether liberal or authoritarian, in Witt’s words – is the first step in the analysis, but not the last. Culture is the second step. 
This Essay intends to gently disrupt Professor Witt’s theory by superimposing Anishinaabe political theory on American Contagions. The very notion of sovereignty is foreign to Anishinaabe. Western political theory insists on the power of a sovereign entity to enforce a social contract or else society will collapse. Anishinaabe political theory does not. The difference matters.
--Dan Ernst

Thursday, November 18, 2021

CFP: Asian Legal History Conference

 [We have the following announcement and call for abstracts.  DRE]

The Faculty of Law, Thammasat University, in partnership with the NUS Centre for Asian Legal Studies, is pleased to announce that it will be hosting the 2nd Asian Legal History Conference on 23-24 July 2022. This Conference, convened by the Asian Legal History Association, aims to provide an opportunity for scholars, researchers and students to share their findings on the topic of legal history in Asia. The Conference will involve the discussion of key issues and developments in Asian legal history with leading scholars as keynote speakers and panelists. In addition to the Conference, the Young Legal History Scholars Workshop will be conducted and open for registration for those in their early legal historian careers who are seeking to hone their skills with the guidance of experts in the field.

We look forward to your participation in the Conference.

Call for Abstracts
.  In light of the 2nd Asian Legal History Conference, we invite you to submit an abstract on any subject under the general theme of "legal history in Asia." The length of the abstract should be between 100-250 words. The submission deadline is 14 January 2022. Authors who have been chosen to present their abstracts will be contacted on 28 January 2022.  To make a submission and find out more about the Conference, please visit the website. For inquiries, please contact

We look forward to your submissions and contributions to the study of Asian legal history.

Cetin on Turkey's First Woman Lawyer

Sevgi Çetin has posted Trailblazers III: Süreyya Agaoglu the First Woman Lawyer of Turkey:

In 1927, Süreyya Agaoglu became the first woman lawyer of Turkey. She had to force the doors of the Law School of the ancient Ottoman Empire. Because in its religious and tradition-based court system and laws, there was no place for a woman lawyer. According to the Mecelle, (the Ottoman civil and procedural code) ''In civil cases, evidence is only valid when given by two males, or one male and two females, but in places where males cannot be possessed of the necessary information, the evidence of females alone will be accepted in respect of the property.'' In a legal system, women were not excepted as witnesses, it would be impossible to give them the authority of a lawyer. While she was a student at the university, the old Ottoman Empire with its laws and institutions withdrawn from the stage of history. The young Republic of Turkey opened the doors of the legal profession to women. Agaoglu and her friends led the way, and today women consist the half of lawyers
--Dan Ernst

Wednesday, November 17, 2021

Kadens on a 1613 Star Chamber Fraud Case

Emily Kadens, Northwestern University School of Law, has posted A Marine Insurance Fraud in the Star Chamber, which appears in Star Chamber Matters: The Court and Its Records, ed. K.J. Kesselring and Natalie Mears (2021), 155-174:

The Star Chamber was an active forum for litigating cases of fraud in the sixteenth and early seventeenth centuries. But some complaints alleging fraud were themselves fraudulent. This book chapter provides a detailed study of a 1613 Star Chamber suit claiming marine insurance fraud against London- and Amsterdam-based merchant insurers, which was allegedly committed in Livorno, Italy by two Portuguese crypto-Jews and a young English merchant. But did the fraud actually occur, or did the accuser invent the whole story?

--Dan Ernst

Sutherland Prize to Saksena and Tycko

Another prize announcement from this year's meeting of the American Society for Legal History: the Sutherland Prize ("awarded annually . . . to the person or persons who wrote the best article on the legal history of Britain and/or the British Empire published in the previous year") went to two authors this year. Priyasha Saksena (University of Leeds) and Sonia Tycko (University of Oxford) will share the award for their respective articles “Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South AsiaLaw and History Review 38, no. 2 (May 2020) and “The Legality of Prisoner of War Labour in England, 1648-1655,” Past and Present 246 (Feb 2020). 

The citations:

Priyasha Saksena’s erudite, thoughtful, and well-written article offers a provocative reevaluation of the role international law and especially debates over the nature of sovereignty in controversies over the legal status of princely states in post-1858 colonial India. Tracing competing arguments as they migrated from European treatises on international law to the Political Department of the Government of India as well as the nominally independent states of Baroda and Travancore, Saksena shows how British Indian policymakers adapted pluralist conceptions of divisible sovereign power to support expanding claims over nominally independent South Asian states, while advocates for the princely states responded with equally compelling legal and political arguments that defended their autonomy by privileging an understanding of sovereignty as singular and territorial. In so doing, this article challenges some longstanding and fundamental assumptions about the relationship between modern state sovereignty, discourses of “civilizational” difference, and colonial rule. It also makes a nuanced and powerful case for understanding leaders of princely states—and their legal advocates—not as “collaborators” with British rule but rather as engaged in active if sometimes subtle resistance to it. The article concludes by gesturing to how these conflicts in late nineteenth-century India traveled, serving as precedent for analogous, if distinct, colonial situations across the globe, especially Africa. Thus, in shedding light on the relatively understudied world of late nineteenth- century princely states, Saksena presents readers with a compelling argument and method for bringing the exciting and growing fields of South Asian, imperial, and global and international legal histories into a single frame.

Bringing us back two centuries and across a hemisphere, Sonia Tycko’s meticulously researched and methodically argued article excavates the legal acrobatics that allowed for foreign, especially Dutch and Scottish, soldiers captured by English forces in the mid-seventeenth century to be forced to serve as labor on projects ranging from the drainage of the fens to Caribbean plantations. The Council of State and various private interests saw multiple opportunities in putting prisoners of war to work but were stymied by strictures in the laws of war and jus gentium on the rights of such prisoners, especially prohibitions on enslaving fellow Christians. A bizarrely effective solution was found in reimagining the legal status of such prisoners not as conscripts but rather as akin to convicts and vagrants, offering a precedent for in turn making them an offer they could not refuse to enter into contracts, effectively rendering them legally “free” rather than forced labor. In closely tracking this development, Tycko shows how a population largely consigned to an historiographical footnote in the general story of indentured labor was not only critical to understanding the malleable nature of legal status in the seventeenth-century but also profoundly troubling to our understandings of the critical legal concepts of contract and consent. The article also impressively traces how these arguments developed and were contested among various different actors and interests, offering a creative and original model for linking domestic, international, and Atlantic history—not to mention social, labor, colonial, military, and carceral histories—through the history of legal thought and practice.

Congratulations to Professor Saksena and Professor Tycko!

-- Karen Tani 

Tuesday, November 16, 2021

Dudziak Digital Legal History Prize to Land-Grab Universities

Another announcement from this year's meeting of the American Society for Legal History: the winner of this year's Mary L. Dudziak Digital Legal History Prize went to Land-Grab Universities. An award that is close to our hearts here at the blog, the Dudziak Prize is "named in honor of Mary L. Dudziak, a leading scholar of twentieth century U.S. legal history and international relations as well as a digital history pioneer" and "is awarded annually to an outstanding digital legal history project." The citation:

Land-Grab Universities ( a remarkable project led by Dr. Robert Lee, Lecturer in American History and Fellow of Selwyn College, Cambridge University who put together an interdisciplinary team that included a journalist (Tristan Ahtone), a data visualizer (George McGhee), a web designer (Cody Leff), a cartographer (Margaret Peace), and a photographer (Kalen Goodluck). The website’s powerful visualization of expropriated Indigenous land has garnered international attention and spurred historical investigations at many of the 52 universities, such as Cornell University, that were built on and with Indigenous land acquired as a result of The Morrill Act, which President Lincoln signed into law in 1862. The quality of the website, coupled with the project’s commitment to sharing its data and computational programs via a GitHub repository are the distinguishing features of this project, as is its mission to use historical investigation to spur educational change. The project seeks to increase the number of Indigenous students enrolled at the 52 universities that benefitted from this historical process of dispossession. Overall, Land-Grab Universities brilliantly combines original research, computational method, and sophisticated data visualization to make its scholarly and social impact. 

Congratulations to Dr. Robert Lee and the rest of the team behind Land-Grab Universities! 

-- Karen Tani