Monday, February 28, 2022

Bray and Miller on Christianity and Equity

Samuel L. Bray and Paul B. Miller, Notre Dame Law School, have posted Christianity and Equity, which is forthcoming in Oxford Handbook of Christianity and Law:

In this chapter for the Oxford Handbook of Christianity and Law, we survey the line of development of equity from Aristotle to the chancellors of the English Court of Chancery. In between, we trace equity through Roman law, the New Testament, scholastic theology, canon law, and the Magisterial Reformation. We conclude by noting ways in which contemporary law still bears the imprint, even if faint, of classical and Christian sources of the equity tradition.

--Dan Ernst

Sunday, February 27, 2022

Podcast: Legal History from a European Perspective

We are pleased to learn of a new podcast, Legal History from a European Perspective, which is available on all major platforms.
The series of podcasts recorded by Emanuele Conte for his Legal History class has been enriched and improved thanks to the collaborative work of the research group of legal historians based at St. Andrews University, led by John Hudson and including Matthew McHaffie, Sarah White, Attilio Stella, William Eves, Andrew Cecchinato, David De Concilio, Dan Armstrong, and Kim Tao Le.

We believe that the study of legal history can be a powerful instrument in educating the critical senses of both students of history and students of law. That is why this course gives the points of view of the participants about many legal historical problems ranging from late Antiquity to the 19th Century. Some teachers may disagree with our choices, or with our views, and this can help to develop a critical attitude in the students. You can agree or (still better) disagree with the content of the podcasts. You may think that some crucial topics have been neglected or superficially treated. Your students may also remark that some passages are not clear enough, or contradict books and articles which they have read. This should encourage debates and discussions in class.

The collection is meant to be open to external collaboration, as a work in permanent progress. Teachers and students wanting to suggest more podcasts, topics to deal with, issues to be clarified, and discussions of specific points to be added to the collection can write to

--Dan Ernst

Saturday, February 26, 2022

Weekend Roundup

  • Registration for the British Legal History Conference 2022 is now open.
  • “The British Library’s Burmese collection holds some of the earliest extant dhammasattha manuscripts in the world. The dhammasattha, or “treatise on the law” is a genre of Buddhist literature prevalent in mainland Southeast Asia, written in Pali and in a range of vernacular languages including Burmese, Arakanese, Mon, Shan, Thai, Lao and Khmer.”  More.
  • Two "SCOTUS Scoops": Clare Cushman on John Francis Nicholas Wilkinson: Remarkable Law Librarian (SCHS), and Todd C. Peppers on Justice Hugo L. Black, His Chambers Staff, and the Ku Klux Klan Controversy of 1937 (SCHS).
  • ICYMI: The University of Mississippi opposes a CRT ban (Mississippi Free Press). Deschutes County [Oregon] Circuit Court honors Black History Month (
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 25, 2022

A CFP for Slavery: Past, Present & Future

 [We have the following CFP.  DRE]

Slavery Past, Present & Future: 6th Global Meeting, July 11-13, 2022.  To be held in person at Webster Leiden Campus-Webster University USA, The Netherlands.

Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, kinship, and exploitation of indebtedness have been an intrinsic part of human societies.  Slavery and a variety of other forms of exploitation existed in ancient societies across the world, and in many other states and territories.  The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.   Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today.  This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.

But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like 'consumers' of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?  

The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.  
In keeping with previous meetings, the format of the Slavery Past, Present and Future Conference this year will be plenary. We intend to hold the meetings in person and expect those who register to attend all the sessions in order to facilitate a genuine cross-fertilization of ideas across identities, disciplines, and subject areas.

Please note in case of COVID -19 restricting mobility and participation,  we will pivot to online in the event that travel restrictions require it  (in which case, the registration fee would be lowered/partially refunded).

Tentative Schedule:

11th July Monday, 2022: Experiential component focusing on Slavery foot print of the Dutch. Museum visit and walking tour in Amsterdam

12th July Tuesday 2022: Conference Proceedings followed by a Borrel (wine and cheese reception)

13th July Wednesday 2022: Conference Proceedings, conference ends 3:00 p.m.

Zhang and Morley on Business Corporations and the Modern State

Taisu Zhang, Yale Law School, and John Morley, Yale Law School and the European Corporate Governance Institute, have posted The Modern State and the Rise of the Business Corporation:

This article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. A typical business corporation pools together a large number of strangers to share ownership of residual claims in a single enterprise with guarantees of asset partitioning. We show that this arrangement requires the support of a powerful state with the geographical reach, coercive force, administrative power, and legal capacity necessary to enforce the law uniformly among the corporation’s various owners. Other historical forms of rule enforcement—customary law or commercial networks like the Law Merchant—are theoretically able to support many forms of property rights and contractual relations, but not the business corporation. Strangers cannot cooperate on the scale and legal complexity of a typical corporation without a functionally modern state and legal apparatus to enforce the terms of their bargain. In contrast, social acquaintances operating within a closely-knit community could, in theory, enforce corporate charters without state assistance, but will generally not want to do so due to the institutional costs of asset partitioning in such communities.

We show that this hypothesis is consistent with the experiences of six historical societies: late Imperial China, the 19th century Ottoman Empire, the early United States, early modern England, the late medieval Italian city states, and ancient Rome. We focus especially on the experience of late Imperial China, which adopted a modern corporation statute in response to societal demand, but failed to see much growth in the use of the corporate form until the state developed the capacity and institutions necessary to uniformly enforce the new law. Our thesis complicates existing historical accounts of the rise of the corporation, which tend to emphasize the importance of economic factors over political and legal factors and view the state as a source of expropriation and threat rather than support. Our thesis has extensive implications for the way we understand corporations, private law, states, and the nature of modernity.

--Dan Ernst

Thursday, February 24, 2022

Morris L. Cohen Student Essay Competition

[We have the following announcement of the Twelfth Annual Morris L. Cohen Student Essay Competition.  DRE.]

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Gale, a Cengage company, announces the Twelfth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Gale, a Cengage company, and will be invited to present their paper to AALL members via webinar.

Winning and runner-up entries will be invited to submit their entries to UNBOUND: A Review of Legal History and Rare Books, the official journal of LH&RB. Past winning essays have gone on to be accepted by journals such as N.Y.U. Law Review, American Journal of Legal History, University of South Florida Law Review, William & Mary Journal of Women and the Law, the Yale Journal of Law & the Humanities, and French Historical Review.

The entry form and instructions are available at the LH&RB website. Entries must be submitted by 11:59 p.m., May 16, 2022 (EDT).

Daston to Lecture on Rules and Exceptions

 [We have the following announcement.  DRE]

The 2021-22 Cotterrell Lecture in Sociological Jurisprudence, "Rules and Exceptions: Casuistry,
Equity, and Prerogative," will be delivered by Professor Lorraine Daston on Monday, March 14, 2022, 4:00 PM - 5:30 PM.  Register here.  

The 2021-22 Cotterrell Lecture in Sociological Jurisprudence will be delivered by Professor Lorraine Daston. Professor Daston is Director Emerita of Max Planck Institute for the History of Science, and Professor at the Committee on Social Thought at the University of Chicago. The event is chaired by Professor Maksymilian Del Mar.

No rule evades its exceptions, and institutions have evolved over time in order to bend the rule as necessary without breaking it. In early modern Europe, three such institutions came under increasingly critical scrutiny: casuistry in moral theology, equity in law, and royal prerogative in politics. Exceptions by no means disappeared, but they became morally, philosophically, and even theologically disreputable. A new ideal of the rule emerged, one that prized uniformity and predictability in the generality of cases over fairness and justice in the individual case – a tension still very much with us.
About the Speaker.  Lorraine Daston has published on a wide range of topics in the history of science, including the history of probability and statistics, wonders in early modern science, the emergence of the scientific fact, scientific models, objects of scientific inquiry, the moral authority of nature, and the history of scientific objectivity. Recent books include Gegen die Natur (2018; English edition Against Nature, 2019) as well as Science in the Archives (2017) and (with Paul Erikson et al.) How Reason Almost Lost Its Mind: The Strange Career of Cold War Rationality (2014), the latter two both products of MPIWG Working Groups.

Her current projects include a history of rules, the meaning of modernity in the history of science, international governance in science since the late nineteenth century, and the relationship between moral and natural orders.  She is the recipient of the Pfizer Prize and Sarton Medal of the History of Science Society, the Schelling Prize of the Bavarian Academy of Sciences, the Lichtenberg Medal of the Göttingen Academy of Sciences, the Luhmann Prize of the University of Bielefeld, and honorary doctorates from Princeton University and the Hebrew University. In 2018 she was awarded the Dan David Prize in the History of Science. In addition to directing Department II of the MPIWG, she is a regular Visiting Professor in the Committee on Social Thought at the University of Chicago and Permanent Fellow of the Wissenschaftskolleg zu Berlin.

Wednesday, February 23, 2022

Stahr to Lecture on "Lincoln's Vital Rival"

The Supreme Court Historical Society has announced Salmon P. Chase: Lincoln’s Vital Rival, a lecture by Walter Stahr, a lawyer and biographer of John Jay and Edwin Stanton, in March 8, 2022, at 12:00 p.m. EST.  The event, which will take place over Zoom, is free and open to all, although advance registration is required.

Salmon P. Chase is best remembered as a rival of Lincoln’s for the Republican nomination in 1860—but there would not have been a national Republican Party, and Lincoln could not have won the presidency, were it not for the vital groundwork Chase laid over the previous two decades. Starting in the early 1840s, long before Lincoln was speaking out against slavery, Chase was forming and leading antislavery parties. He represented fugitive slaves so often in his law practice that he was known as the attorney general for runaway negroes. He strengthened his national reputation, as a progressive and an antislavery leader, first as federal senator (from 1849 through 1855) and then as Ohio’s governor (from 1856 through early 1861).

Drawing on previously overlooked sources, Walter Stahr sheds new light on a complex and fascinating political figure, as well as on the pivotal events in the years before, during and right after the Civil War.
–Dan Ernst

Comparing Early Modern Colonial Laws

[We have the following announcement of the “launch seminar” of the CoCoLaw (Comparing Early Modern Colonial Laws) Project, which “aims to provide a comparative analysis of how early modern colonial laws of England, the Netherlands, Spain, and Portugal were structured.”  DRE]

CoCoLaw Launch Seminar on Tuesday 22 March 2022  

Both present and digital participants are welcome. The Seminar will also be streamed online via Zoom. Keynote speakers: Annemieke Romein, Mariana Dias Paes. [Register here.]


11.00 Welcoming words - Jaakko Husa, University of Helsinki Vice-Dean of the Faculty of Law Professor of Law and Globalization

11.15 Project Launch - Heikki Pihlajamäki, University of Helsinki Academy Professor, Professor of Comparative Legal History

11.30 Global Legal History on the Ground: a perspective from African Archives
Mariana Dias Paes, Max Planck Institute for Legal History and Legal Theory

12:30 Lunch

14:00 Legal History and Early Modern Dutch Colonial Empire: Historiographical and Methodological Questions
Henri Hannula, University of Helsinki

14:30 Dealing with colonial complexity: the relevance of 'Policey' law to the emergence of modern law
Nathaly Mancilla-Órdenes, University of Helsinki

15:00 Coffee break

15:30 Early Modern Ordinances meet Digital Humanities: An Exploration of the Use of Taxonomies and Automatic Metadating
Annemieke Romein, Huygens Institute for the History of the Netherlands

16:30 Global circulation of legal books within the Iberian Empires: sources and materials
Airton Ribeiro da Silva Jr., University of Helsinki

17:00 Law and Police in the Early Modern Overseas Empires of Spain, Portugal, and the Dutch Republic: A Comparative Framework
Heikki Pihlajamäki, University of Helsinki

17:30 Concluding discussion

Tuesday, February 22, 2022

JSCH 46:3

The Journal of Supreme Court History 46:3 (November 2021) is now available online.  Here’s the TOC:

Timothy S. Huebner

Arthur A. Thomas: A Hero of a Valet
Todd C. Peppers

Louis D. Brandeis and the Death of Samuel D. Warren
Peter Scott Campbell

Brown v. Board of Education
and the Politics That Created a Constitutional Icon
Jeffrey Hockett

Trop v. Dulles: How Earl Warren's Contradicting Legal Opinions Secured Trop's Victory
Courtney Christensen

The Judicial Bookshelf
Donald Grier Stephenson, Jr.

--Dan Ernst

Brewer's "Creating a Common Law of Slavery"

It’s online and Open Access in Law and History Review: Creating a Common Law of Slavery for England and its New World Empire, by Holly Brewer:

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function successfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

--Dan Ernst

Monday, February 21, 2022

Special Issue Celebrating the Mound City Bar Association Centennial

Volume 67, Issue 1, of the Journal of Law & Policy celebrates the centennial of St. Louis's Mound City Bar Association, one of the first Black bar associations in the United States:

In 2022, the Mound City Bar Association in St. Louis, one of the first Black bar associations in the country, celebrates its 100th anniversary. In this volume of the Washington University Journal of Law & Policy, distinguished authors look back at a century of contributions of Mound City Bar Association lawyers, judges, and allies, documenting their efforts to eliminate racial discrimination and break down barriers to equal justice. The volume is a testament to the work of countless individuals in the fight for civil rights since the beginning of the association in 1922. The authors also anticipate and examine the challenges ahead and the work yet to be done to achieve equal justice for all in our city, the region, and the country in the years to come.

 The full issue is available here. (h/t Elizabeth Katz)

-- Karen Tani

Matthiesen, "Reproduction Reconceived: Family Making and the Limits of Choice After Roe v. Wade"

 The University of California Press has published Reproduction Reconceived: Family Making and the Limits of Choice After Roe v. Wade (2021), by Sara Matthiesen (George Washington University). A description from the Press: 

The landmark case Roe v. Wade redefined family: it is now commonplace for Americans to treat having children as a choice. But the historic decision also coincided with widening inequality, an ongoing trend that continues to make choice more myth than reality. In this new and timely history, Matthiesen shows how the effects of incarceration, for-profit healthcare, disease, and poverty have been worsened by state neglect, forcing most to work harder to maintain a family.

Praise from reviewers:

"Amid debates over whether childcare qualifies as 'infrastructure,' Reproduction Reconceived intervenes with a call to radically reframe reproduction, family, motherhood, and caregiving as public goods, rather than as private obligations. Compellingly argued and compulsively readable, it makes clear why public support for families and caregiving has never been more urgent or necessary. It is required reading for anyone trying to make sense of our current moment."—Melissa Murray

"As contemporary events continue to focus our attention on what the United States would be like without access to legal abortion, Matthiesen asks us to consider that by making pregnancy and childbirth into a 'choice,' Roe v. Wade opened the door to brutal and devastating state neglect of the survival and well-being of children, pregnant people, and all their kin and caregivers."—Laura Briggs

More information is available here. (H/t: New Books Network)

-- Karen Tani

Sunday, February 20, 2022

Chira's "Patchwork Freedoms"

Adriana Chira, Emory University, has published Patchwork Freedoms: Law, Slavery, and Race beyond Cuba's Plantations (Cambridge University Press)

In nineteenth-century Santiago de Cuba, the island of Cuba's radical cradle, Afro-descendant peasants forged freedom and devised their own formative path to emancipation. Drawing on understudied archives, this pathbreaking work unearths a new history of Black rural geography and popular legalism, and offers a new framework for thinking about nineteenth-century Black freedom. Santiago de Cuba's Afro-descendant peasantries did not rely on liberal-abolitionist ideologies as a primary reference point in their struggle for rights. Instead, they negotiated their freedom and land piecemeal, through colonial legal frameworks that allowed for local custom and manumission. While gradually wearing down the institution of slavery through litigation and self-purchase, they reimagined colonial racial systems before Cuba's intellectuals had their say. Long before residents of Cuba protested for national independence and island-wide emancipation in 1868, it was Santiago's Afro-descendant peasants who, gradually and invisibly, laid the groundwork for emancipation.
Here are some endorsements:
'In this meticulously researched and beautifully written book, Chira shows that freedom for African descended peasants in places like Santiago, Cuba was not an abstraction, but rather a protracted process of claims-making negotiated with local legal institutions. Bringing together legal, political, social and economic history, Patchwork Freedoms will prove indispensable to all who want to understand the key role of manumission in slavery and emancipation.'

Ariela J. Gross - co-author of Becoming Free, Becoming Black: Race, Freedom and Law in Cuba, Virginia and Louisiana

'This fascinating study sets out to change our understanding of bondage and emancipation. It places land ownership at the center of racial dynamics, demonstrates the need to study the local to understand the global, and contributes greatly to our comprehension of why Eastern Cuba became so essential to both Cuban independence and the Cuban revolution.'

Tamar Herzog - Monroe Gutman Professor of Latin American Affairs, Harvard University

'Patchwork Freedoms examines the ways in which Santiago’s quasi-freed population negotiated the terms of their emancipation and autonomy by shaping locally grounded notions of custom. Chira shows how Santiago’s black population articulated a legal vernacular of freedom, self-purchase, and social mobility in the absence of laws on the books, rendering custom a malleable and resilient category. This is a superbly researched book that will define the field of quasi emancipation and the customary laws of slavery for decades to come.'

Michelle A. McKinley - University of Oregon School of Law

'This is a powerful history of claims-making and political identity formation among enslaved and free people of African descent in a key region of the Atlantic world. Digging into the soil of eastern Cuba, Chira deftly upturns superficial narratives about the emancipatory nature of liberalism in the nineteenth century. In this book, legal and political freedoms do not just happen: they are won, piecemeal, by people with deep and complex attachments to the land they worked, the island and empire they inhabited, and to one another.'

Bianca Premo - author of The Enlightenment on Trial: Ordinary Litigants and Colonialism in the Spanish Empire

--Dan Ernst

Saturday, February 19, 2022

Weekend Roundup

  • Mark Tushnet, author of the Holmes Devise history of the Hughes Court, discusses it and other topics on the Supreme Myths podcast.
  • Tomiko Brown-Nagin, Sheryll Cashin, Evelyn Brooks Higginbotham, and Kenneth Mack discuss Constance Baker Motley (Harvard Law Today). Brown-Nagin also discusses her work on Motley on NPR's Fresh Air, here.
  • The National Underground Railroad Freedom Center, Cincinnati, Ohio, has an exhibit honoring Macon Bolling Allen, “the first African American licensed to practice law in the United States.” (More.)
  • Harriet S. Shapiro, the first female in Solicitor General’s Office has died.  The NYT obituary is here; her oral history conducted under the auspices of the Historical Society of the District of Columbia Circuit is here.
  • Many historical organizations have joined the American Historical Association’s February 9 statement condemning former President Donald J. Trump and his administration's reported extensive and repeated violations of the Presidential Records Act of 1978.  (But wait, there's more.)
  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 18, 2022

Haksgaard on Unmarried Women and the Homestead Act

Hannah Haksgaard, University of South Dakota Knudson School of Law, has posted Including Unmarried Women in the Homestead Act of 1862, which is forthcoming in volume 67 of the Wayne Law Review:

South Dakota Homesteader (LC)
When Congress passed the Homestead Act of 1862 it decided to distribute land to single, unmarried women. Most Congressional members who supported including unmarried women did so because women were a necessary part of empire building—women were expected to marry, bear children, and engage in building permanent communities. Few Congressional members cared about women’s equality or the progressive goals of the women’s rights movements, although some Congressional members thought women would be incapable of successfully homesteading. This article presents the fascinating history of including unmarried women in the Homestead Act of 1862 by conducting an intensive study of the act’s statutory history, beginning in 1843. Building on the work of historians, this article analyzes how the lived experiences of female homesteaders matched up with the expectations of the Congressional members who included them, on such topics as women’s willingness and ability to homestead, women’s equality, and women’s role in marriage and reproduction. Throughout, this article explores how this statutory history can influence our understanding of antebellum unmarried women’s rights.

--Dan Ernst

Thursday, February 17, 2022

Legal history panel at "The Disability Frame" symposium

This Friday and Saturday (February 18-19, 2022), the University of Pennsylvania Law Review is hosting a law review symposium on "The Disability Frame: Opportunities, Costs, and Constraints in the Broad Struggle for Inclusion." The first panel may be of interest to readers of the blog. It places "the disability frame" in historical perspective. Panelists are Rabia Belt (Stanford Law School), Nate Holdren (Drake University), and Karen Tani (University of Pennsylvania). Leah Samples (Ph.D. candidate, University of Pennsylvania) will comment. Advance registration (free) is required.  The full program is available here.

-- Karen Tani

Wednesday, February 16, 2022

Georgetown Legal History Colloquium

[We have the following announcement.  DRE]

The Georgetown Legal History Colloquium is pleased to announce its spring 2022 workshops. 

On Friday, February 18, we welcome Amanda Frost from American University. We will be discussing Seizing Citizenship: Lydia Hamilton Smith, Thaddeus Stevens, and the Pathway to Citizenship in Antebellum America, a draft chapter from Professor Frost's book-in-progress on the history of birthright citizenship in the United States.

The session will be online from 3:30-5:00 EST. If you would like to join us, please register in advance using this link (or paste this web address into your browser: You will receive a Zoom link for the event after you register. To receive Professor Frost's paper, please email Kevin Arlyck ( or K-Sue Park (

We plan to hold subsequent sessions in person, on the Georgetown University Law Center campus. On Monday, March 21, Rabia Belt from Stanford University will present. Shaun Ossei-Owusu from the University of Pennsylvania will join us on Friday, April 29. We look forward to seeing you!

Tuesday, February 15, 2022

NCC Podcast on First Amendment History

[We have the following announcement of a podcast from the National Constitution Center.  DRE.]

The National Constitution Center is launching a multi-year initiative exploring the history and meaning of the First Amendment, anchored by the magnificent 50-ton First Amendment tablet newly installed at the Center overlooking Independence Mall. The giant tablet was previously engraved, fabricated and erected in 2007 at the Newseum in Washington, D.C. After the Newseum closed in 2019, the Freedom Forum donated the tablet to the Center.

In conjunction with the initiative, Jeffrey Rosen is joined by First Amendment experts Robert Post and Keith Whittington to discuss the origins of the First Amendment, its importance in American society, and several of the most important Supreme Court cases centering around free speech. Robert Post is a Sterling Professor of Law at Yale Law School and author of Citizens Divided: A Constitutional Theory of Campaign Finance Reform. Keith Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and the author of Speak Freely: Why Universities Must Defend Free Speech.

Monday, February 14, 2022

de Brouwer on Belgian Lawyers under German Occupation

We have it that on February 18, at 12:00 (we assume Madrid time), the next session of the Colloquium on the History of Law of the faculty of law at the Universidad Autónoma de Madrid will take place.  Jérome de Brouwer, Université Libre de Bruxelles, will present "'Tout pour l'honneur': Belgian Lawyers under German occupation (1914-1918)."  The session will take place via Zoom: ID Zoom: 829 1079 8716 | Access code: 609743.

Sunday, February 13, 2022

Creating a Successful Conference Proposal

[We have the following announcement.  DRE]

The Program Committee of the American Society for Legal History has prepared a tip sheet, Creating a Successful Conference Proposal, designed to help people who wish to propose panels for the group’s 2022 annual meeting.  The submission deadline for proposals is March 18, as described in the call for papers.

Saturday, February 12, 2022

Weekend Roundup

  • The Historical Society of the New York Courts has published online and ungated History of New York County Bench and Bar by Vincent Chang, Julie Gick, Amani Harris, Debra James, Craig Landy, Andrea Masley, Zoe Petiteau, Jon Ritter, Adrian Untermyer, Jordan Wappler, and John Werner.  Its Editor-in-Chief is Adrian Untermyer.
  • The official launch of the Slavery, Law, and Power Project of the University of Maryland Libraries is Tuesday, February 15, 2022, 2:00PM - 3:30PM EST, via Zoom.  Holly Brewer presents.  “This project brings renewed attention to imperial policymaking and its pivotal role in the development of slavery and racial ideologies. It explores how those interacted with local politics and policies in different colonies throughout the British Empire during the seventeenth and eighteenth centuries.”
  • The Cornell University Libraries announces the opening of its Samuel J. May Anti-Slavery Collection, including a digitized pamphlet collection and digitized manuscripts. 
  •  On March 22, Montana State University hosts a panel discussion to celebrate the 50th anniversary of Montana’s Constitutional Convention of 1972.  One of the moderators: Sarah Vowell.  (More.)
  • "Plotting a land grab: A newly decoded map reveals that the famous American explorer William Clark planned the theft of 10.5 million acres of Indigenous land," by Tom Almeroth-Williams (University of Cambridge).
  • ICYMI: tu quoque, JFK: "The 1960 certificates that the false Trump electors say justify their gambit" (Politico).  Joseph Fishkin and William E. Forbath on How Progressives Can Take Back the Constitution (The Atlantic). Eunice Hunton Carter spotlighted at Bexley library event (Columbus Dispatch).  Remembering Isaac C. Hunt, Jr. (1937-2017), SEC Commissioner (SECHS).  "UNC Libraries Utilize Machine Learning to Uncover Racist Laws in South’s History" (ANH).

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

Friday, February 11, 2022

JPH 34:1

The Journal of Policy History 34:1 (January 2022) is available online.

New Policy Elites and the Affordable Care Act: The Making of Long-Term Insiders
William Genieys, Mohammad-Said Darviche, Brent Epperson
Race, Post-Reconstruction Politics, and the Birth of Federal Support for Black Colleges
Deondra Rose

Clandestine Networks and Closeted Bureaucrats: AIDS and the Forming of a Gay Policy Network in California
Stephen Colbrook

The Politics of Clemency in the Early American Presidency: Power Inherited, Power Refashioned
Bradley D. Hays

Critical Perspective

Understanding the Controversy: The Kerner Commission, The Harvest of American Racism, and the Dynamics of Incorporating Social Science with Public Policy
Rick Loessberg

--Dan Ernst

Thursday, February 10, 2022

Perry's "Law in American Meetinghouses"

Jeffrey Thomas Perry, Tusculum University, has published Law in American Meetinghouses
Church Discipline and Civil Authority in Kentucky, 1780–1845
(Johns Hopkins University Press):

Most Americans today would not think of their local church as a site for arbitration and would probably be hesitant to bring their property disputes, moral failings, or personal squabbles to their kin and neighbors for judgment. But from the Revolutionary Era through the mid-nineteenth century, many Protestants imbued local churches with immense authority. Through their ritual practice of discipline, churches insisted that brethren refrain from suing each other before "infidels" at local courts and claimed jurisdiction over a range of disputes: not only moral issues such as swearing, drunkenness, and adultery but also matters more typically considered to be under the purview of common law and courts of equity, including disputes over trespass, land, probate, slave warranty, and theft.

In Law in American Meetinghouses, Jeffrey Thomas Perry explores the ways that ordinary Americans—Black and white, enslaved and free—understood and created law in their local communities, uncovering a vibrant marketplace of authority in which church meetinghouses played a central role in maintaining their neighborhoods' social peace. Churches were once prominent sites for the creation of local law and in this period were a primary arena in which civil and religious authority collided and shaped one another. When church discipline failed, the wronged parties often pushed back, and their responses highlight the various forces that ultimately hindered that venue's ability to effectively arbitrate disputes between members. Relying primarily on a deep reading of church records and civil case files, Perry examines how legal transformations, an expanding market economy, and religious controversy led churchgoers to reimagine their congregations' authority. By the 1830s, unable to resolve doctrinal quibbles within the fellowship, church factions turned to state courts to secure control over their meetinghouses, often demanding that judges wade into messy ecclesiastical disputes.

Tracking changes in disciplinary rigor in Kentucky Baptist churches from that state's frontier period through 1845, and looking beyond statutes and court decrees, Law in American Meetinghouses is a fresh take on church-state relations. Ultimately, it highlights an oft-forgotten way that Americans subtly repositioned religious institutions alongside state authority.

An interview of Professor Perry about his book is here.

--Dan Ernst

Wednesday, February 9, 2022

Cohen, "The Rise and Fall and Rise Again of Informal Justice and the Death of ADR"

Amy J. Cohen (Temple University School of Law) has posted "The Rise and Fall and Rise Again of Informal Justice and the Death of ADR," which is forthcoming in the Connecticut Law Review. The abstract:

Today, the field of alternative dispute resolution (ADR) is often conceptualized and taught as an apolitical, institutional practice designed to enhance the effective and efficient settlement of legal disputes. But this was not always the case. In the 1970s, scholars imagined mediation as a technique of social and political transformation: a practice that might enable people to resolve disputes without reproducing the inequalities that shaped the society in which they lived. That view of ADR has largely disappeared from the American legal academy. But, as this Article shows, it has not disappeared entirely. Outside the legal academy, prison and police abolitionists are turning to the tools of dispute resolution as an important mechanism of social change. This Article embeds today’s movement for transformative justice in a longer genealogy of informal justice, and it revitalizes a sociolegal perspective that uses micro-level conflict as a critical framework through which to analyze macro-level transformations. The Article ventures that this sociolegal perspective can help respond to the disciplinary crisis that currently faces the field of ADR in American legal education, revealing ADR as a powerful tool for thinking through both the mechanisms and the difficulties of emancipating social and political change.

The full article is available here, at SSRN.

-- Karen Tani

CFP: The Search for Humanity after Atrocity

Call for Papers: The Search for Humanity after Atrocity: A Conference for Engaged Scholars and Informed Practitioners, October 16-17, 2022, Kean University, Union, NJ

The Holocaust and Genocide Studies Program at Kean University is pleased to invite presentation submissions for the conference "The Search for Humanity after Atrocity" to be held at Kean University in Union, NJ, on October 16-17, 2022. *Our intention is to have an in person conference with the understanding that the need may arise to shift to a virtual format depending on the current status of the Covid-19 pandemic.* The conference is an opportunity for scholars, especially at early stages of their careers, and NGO and other non-profit  practitioners to compare and reflect, in a spirit of reciprocity, on the search for post-atrocity humanity or at least order and stability, if not reconciliation, with an emphasis on victims' perspectives. The conference will culminate with proposals designed for enactment. The conference invites participants to submit abstracts addressing one or more of the following themes:

Collective memory: How do societies, and social groups within a society, remember or seek to forget atrocities in official and unofficial ways? How do societies, and social groups within a society, reinterpret atrocity over time? How do these memory modalities help or hurt the search for humanity after atrocity?

Civil Society-State Relationship
: What is the role of civil society, particularly in relationship with the state, to promote a post-atrocity social order or, broadly, humanity? What structural conditions enable civil society to play a role vis-à-vis government?

Lingering Adversarial Relationships
: How do survivors and perpetrators find ways to participate in public life after atrocity? How does living through atrocity inform survivors' intra- and inter-relationships? How do survivors manage relationships with known perpetrators particularly when perpetrator accountability is absent or compromised? When do survivors' testimonies help and when do they hurt the chances for post-atrocity humanity or stability?

Strategies for Mending Relationships: When has geographical partition worked? When and why is past wrongdoing deflected, acknowledged, suppressed, or confronted? How effective is education as a preventative measure? When do social media encourage or discourage favorable post-conflict trajectories? How is resource revitalization reimagined in the wake of environmental depletion? Are restorative/transitional justice and other peacemaking schemes effective?

The Arts, Memorials, and Material Culture: Are music, architecture, storytelling and other forms of artistic expression redemptive? Do these particular fields have the ability to help survivors and/or the broader community seek humanity after atrocity? How does commemoration of victims inform the direction of the search for humanity after atrocity?

Submitting your abstract:

  1. Group presentations that combine scholars and practitioners by topic will receive priority consideration.
  2. Presentations that explore concepts and practices from victims' perspectives will also receive priority consideration.
  3. Proposals that include models of enactment will additionally receive priority consideration. Examples are: open-source, interactive database of artifacts and interviews for use by survivors, educators, researchers, and practitioners; restorative and transitional justice projects; a published volume of essays by and for policymakers,  practitioners, and engaged scholars; special issues of academic and not-for-profit  journals for scholars and practitioners; and a website, a digital newsletter, and social media platforms for sustaining and increasing a network of concerned policymakers and engaged scholars in common search for humanity after atrocity.
  4. Complete the following Google Form to submit your abstract by March 31, 2022: Abstract Submission Form
  5. We will notify all submitters of the program committee's decisions no later than April 15, 2022.
  6. For details about the conference, visit the conference website. The conference is sponsored and hosted by Master of Arts in Holocaust and Genocide Studies at Kean University. It is cosponsored by The Jimmy and Rosalynn Carter School for Peace & Conflict Resolution, George Mason University; Ouachita Baptist University, Arkadelphia, Arkansas; College of Public Affairs, University Baltimore (in formation)

Tuesday, February 8, 2022

In Search of ASLH Panelists: An Update

Herewith, we revive a prior practice of inviting scholars seeking others for panelists for this November's annual meeting of the American Society for Legal History to post "in search of" notices as a comment here.  We'll occasionally move this post to the top of the feed, and expect to leave the comment function on through the submission deadline of Friday, March 18.  (The submission deadline for proposals for preconference workshops is February 18.)

[Update: when we first posted, we did not realize that Graduate Student Outreach (GSO) Committee of the ASLH had also been asked to maintain a shared spreadsheet with which students and others could identify others seeking to propose panels for November's ASLH meeting in Chicago.   Please feel free to post a comment to this post, to express your interest on the GSO Committee's spreadsheet, or both.]

--Dan Ernst

Brown-Nagin to Discuss "Civil Rights Queen"

Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, Daniel P.S. Paul Professor of Constitutional Law, and Professor of History at Harvard University has recently published Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (Penguin RandomHouse).  On Monday, February 14 at 4:00 pm ET, she will present the book to the Washington History Seminar as part of a Zoom webinar, which is open to the public on a first-come, first-served basis.  Register here.

We’re told that the space fills up very quickly, and if you are unable to connect you watch on the Facebook page of the National History Center or the website of the Wilson Center website.  A recording will be posted on the National History Center's YouTube Channel.  Commentators are Timothy Lovelace, John Hope Franklin Research Scholar and Professor of Law at Duke University, and Risa Goluboff, Arnold H. Leon Professor of Law, Professor of History, and Dean of the University of Virginia Law School.

From the Washington History Center’s announcement:

In her new book, Civil Rights Queen, Tomiko Brown-Nagin examines the life and work of pathbreaking lawyer, politician and judge, Constance Baker Motley. The counterpart to Thurgood Marshall—”Mr. Civil Rights”—Motley litigated hundreds of cases that remade American law and society, including Brown v. Board of Education. She also desegregated flagship public universities in Florida, Georgia, and Mississippi, and represented Dr. Martin Luther King, Jr., and the Birmingham Children’s Marchers—helping rescue the pivotal campaign that gave rise to the Civil Rights Act of 1964. Then, as the first black woman federal judge, Motley decided landmark cases that, among other things, implemented the Civil Rights Act. Yet she is not nearly as well known today as her impact on public life would suggest. Brown-Nagin argues that Motley’s gender, and scholars’ tendency to divide the civil rights movement into discrete and antagonistic legal and direct-action wings, help explain why. Looking at the civil rights movement and the legal profession through a woman’s eyes, Brown-Nagin explores themes such as law versus politics as pathways to reform, diversity in the Black experience, identity and judging, and the “price of the ticket” when outsiders become insiders in the power structure.

--Dan Ernst

Monday, February 7, 2022

Society for U.S. Intellectual History Upcoming Virtual Events

The Society for U.S. Intellectual History is hosting a number of virtual events this spring. Here's one of particular interest to legal historians:

February 24, 2022, 7PM EST (6PM CST) online via Zoom

Status, Discrimination, and the Market in American Law, 1960-1990
  • Sara Mayeux (Vanderbilt), chair
  • Gregory Briker (Yale University), “Projects, Playgrounds, and the Transformation of Fair Housing”
  • Deborah Dinner (Cornell University), “Difference as Proxy for Risk: Between Antidiscrimination and Actuarial Logics”
  • Gabriel Levine (Princeton University), “Property and The New Property”
  • Kate Redburn (Yale University), “Beyond Culture Wars: The Conservative Christian Legal Movement and Market Formation"

The full schedule of events is here. Advance registration is required.

-- Karen Tani

Enchantment in the History of Capitalism

 [We have the following announcement.  DRE]

We are a network of scholars who seek to develop enchantment as an organizing theme in historical studies of capitalism. We hope to provide a platform for those interested in the historical role of enchantment as a tool, structure, or foundation for the organization and the development of modern markets, economic institutions, and economic relationships.

The first meeting of the network will take place on February 24, at 14:30 GMT on Zoom. It will be led by two expert speakers on magic and religion, Professor Owen Davies and Professor Jason Ananda Josephson Storm.

This is the first of a series of reading-group style workshops, intended to reflect on the meaning of enchantment and its uses in existing scholarship across different disciplines, with a longer-term view to redirect the concept and shed new light on the history of capitalism.

More information on the first and future meetings, assigned pre-readings, as well as registration to the meeting and to the mailing list, are available on the network website.

Anat Rosenberg and Astrid Van den Bossche

Sunday, February 6, 2022

Tillman on a Religious Test for an Early State Legislator

Seth Barrett Tillman, National University of Ireland, Maynooth, has published A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, North Carolina Historical Review 98 (January 2021): 1-41.  Here’s the abstract from SSRN:

During 1776, but prior to announcing the Declaration of Independence, the Continental Congress instructed the state legislatures to call conventions to draft constitutions to regularize their local state governments so that each could be administered in the name of the People and absent royal governors and royal officers. North Carolina heeded the revolutionary call—in 1776, it implemented a new constitution with a bill of rights. One interesting feature of the 1776 North Carolina Constitution was that Article 32 imposed a religious test. Article 32 stated:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article 32’s religious test extended to four categories of persons. It extended to atheists, that is, those “who . . . deny the being of God.” It extended to non-Protestants, that is, those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians, that is, those “who . . . deny . . . the divine authority either of the Old or New Testaments.” And finally, it applied to an amorphous category of persons, that is, those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling in any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” What the scope of this latter language is has been a matter of debate.

This particular provision would remain on the books, and largely unenforced, until North Carolina revisited this issue during the 1835 North Carolina Constitutional Convention—which drafted proposed amendments, subsequently ratified by the People, to the 1776 North Carolina Constitution. Still, in 1809, there was one (apparent) attempt to enforce the religious test provision.

In 1809, Jacob Henry was elected and qualified for a second annual term in North Carolina’s lower legislative house: the House of Commons. Henry was Jewish. On December 5, 1809, another member, Hugh C. Mills, put forward a motion to declare Henry’s seat vacant based on the 1776 North Carolina Constitution’s religious test. The next day, the Commons adjudicated the motion, and the motion failed. Henry kept his seat.

The modern, postbellum tertiary literature relating to the 1809 motion to vacate Henry’s seat is largely based on an antebellum secondary literature: i.e., documents from the mid-1810s into the 1850s. Some of those early documents may have been part of the public debate surrounding reform of the 1776 North Carolina Constitution’s religious test, including debates on proposed amendments to reform or abolish Article 32 heard in the 1835 North Carolina Constitutional Convention. Some of those records carry good indicia of authenticity and reliability, as some of the 1835 participants had been part of the earlier 1809 drama. On the other hand, there is some reason to doubt the reliability of these records: they were created in light of debate surrounding ongoing political reform. Furthermore, these were not contemporaneous records—by 1835, when the state constitutional convention met, memories of 1809 might well have grown dim.

In this short paper, I intend to summarize the standard narrative handed down to us from the 1830s, to illustrate how that narrative has been misunderstood (at least in part) by historians and other academics in more modern times, along with problems in that narrative. Next, I will put forward newly found records from December 1809 and early 1810 offering a significantly different account of what happened on the floor of the Commons on December 5 and 6, 1809. Having done so, I offer some personal reflections in regard to the difficulties surrounding legal history, particularly where (as here) the underlying historical issues touch on our deeply held moral and political intuitions, about the good society, and our common historical past.
 --Dan Ernst

Saturday, February 5, 2022

Weekend Roundup

  • The Supreme Court Historical Society has announced the winners of two awards.  David W. Levy, Professor Emeritus of the Department of History of the University of Oklahoma, is the recipient of the 2020 Hughes-Gossett Award for the best article published in the Journal of Supreme Court History for "Twenty-One Months of Hell and the Supreme Court to the Rescue in McLaurin v. Oklahoma State Regents”  The winner of the 2020 Hughes-Gossett Award for best student paper is Rachael E. Jones for “Rosenberger’s Unexplored History,” on a 1995 case holding that the University of Virginia violated the First Amendment rights of its Christian
    magazine staff by denying them the funding provided secular student-run magazines.
  • "Buried in 5,000 cubic feet of court records, the New York State Archives has uncovered the 1828 documents thought lost to history detailing how Sojourner Truth became the first Black woman to successfully sue white men to get her son released from slavery" (Times-Union).
  • Barrington Walker, Wilfrid Laurier University, will deliver the 13th Annual DeLloyd J. Guth Visiting Lecture in Legal History at the University of Manitoba on Thursday, February 10 at 12:00 p.m. (CT).  His talk is entitiled “Inchoate Citizens: Black Canadians, Law and the Racial State” (More).
  • Daniel A. Farber on The Misuse of History to Undercut the Modern Regulatory State (Regulatory Review).
  • Jed Handelsman Shugerman reviews David M. Driesen's The Specter of Dictatorship: Judicial Enabling of Presidential Power (Stanford University Press, 2021) (Lawfare).
  • Joseph Fishkin and William Forbath discuss their book The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy on the Digging a Hole podcast.  Benjamin Morse reviews the book in Jacobin (How the Left Lost the Constitution).
  • Noah Feldman on his book The Broken Constitution: Lincoln, Slavery, and the Refounding of America (Harvard Law Bulletin).
  • Obituaries of Note: Yale Kamisar (Detroit News) and Jason Epstein, a founder of Anchor Books, the Library of America and the New York Review of Books, by Christopher Lehmann-Haupt (NYT).
  • ICYMI: "Frank Chuman, who was among the Japanese American students forced to leave [the University of Southern California] in 1942 and live in a detention facility, has received an expedited honorary degree (USC Today).  Wendell Pritchett will serve as Interim President of the University of Pennsylvania, effective at such time as Amy Gutmann may be confirmed and resign to serve as Ambassador to Germany and until M. Elizabeth Magill starts as President this summer (Penn Today).
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 4, 2022

CFP: Arbitration in Britain and its Empire

[We have the following Call For Papers.  DRE]

Arbitration in Britain and its Empire: Developments and Divergences

A symposium at the Institute of Advanced Legal Studies, University of London, organised by Francis Boorman (IALS), Christian Burset (Notre Dame) and Catharine MacMillan (King’s College London), 22 October 2022, 10am to 6pm.

Not all disputes in Britain and its Empire were resolved in courts in the period between 1600 and 1900; arbitration and other forms of alternative dispute resolution were commonly employed during this time.  Although scholars have long recognised the importance of dispute resolutions which occurred outside formal court structures, historians and social scientists still struggle to understand these processes.  The frequently informal nature of arbitration has made it hard to identify and even harder to quantify.  These factors have, in turn, impeded efforts both to assess the changing importance of arbitration over time and to assess the relative importance of arbitration within Britain and Empire.  Historiographical silos create further obstacles as the histories of colonial law and of British and imperial arbitration have largely developed independently of each other; each silo provides only a partial view of alternative dispute resolution in Britain and Empire. This symposium will work to overcome these difficulties by bringing together scholars from a range of subfields and disciplinary backgrounds.

We invite applicants to reflect on the many ways in which arbitration (both private and court-sponsored) was used to end disputes in early modern and modern Britain, and its colonies and dominions. We encourage papers relating to the British Empire that, for instance, explore how British dispute resolution mechanisms were transplanted and reinterpreted in colonies and former colonies, or how local systems and traditions were adapted, disrupted, or otherwise affected by colonial administrators. We welcome papers that take a comparative approach, anywhere across a long and loosely prescribed period of 1600 to 1900.

The event will involve several panel discussions relating to the development and changing practices of arbitration and alternative dispute resolution. Successful applicants will be placed in panels of three to four and asked to give a short presentation, then reflect on the wider themes suggested by other speakers and the audience. The symposium will culminate with a plenary lecture. We are especially pleased to announce that the plenary speaker will be Professor James Jaffe of the University of Wisconsin-Madison, who will give a lecture entitled ‘Crossing Borders, Crossing Cultures: Arbitration in India under the Company Raj and After’. Professor Jaffe has published important research into the history of arbitration in Britain and colonial India.

The event has arisen out of the arbitration history project based at IALS and will address themes related to arbitration, mediation and access to justice that are of historical interest and contemporary importance. This event will speak to the research interests of Derek Roebuck and Johnny Veeder, in whose memory the history of arbitration project is funded.

An important aspect of this symposium is that we hope it will interest and benefit graduate students and early career researchers.  We actively encourage participation of graduate students and early career researchers, and the attendance of students on taught postgraduates. The symposium will also be of interest to those practising law, particularly arbitrators.

• Please submit an abstract of no more than 400 words along with a short cv of not more than one page to by 30 April 2022.
• Each speaker will have 20 minutes to present. Papers will not be pre-circulated. There will be time for questions and discussion at each panel.
• We will notify presenters of their acceptance by 3 May.
• Registration will cost £35, or £10 for postgraduates. This will include tea, coffee and a sandwich lunch at IALS.
• We are able to offer four travel grants of up to £100 each. Priority will be given to postgraduate students and early career researchers. Applications will be invited once the programme is confirmed.
• The event will allow time for further conversations and networking. We hope to have a reasonably priced dinner, for those who wish to attend.
• This event will be held in-person.  Should government or institutional rules prohibit in-person events, the event will be moved online.

Pardo on Slavery and the 1841 Bankruptcy Act

Rafael I. Pardo, Emory University School of Law, has posted Racialized Bankruptcy Federalism, which is forthcoming in the Michigan State Law Review:

Notwithstanding the robust national power conferred by the U.S. Constitution’s Bankruptcy Clause, the design and administration of federal bankruptcy law entails choices about the extent to which nonbankruptcy-law entitlements will remain undisplaced. When such entitlements sound in domestic nonfederal law (i.e., state or local law), displacing them triggers federalism concerns. Considerations regarding the relationship between the federal government and the nation’s smaller political subdivisions might warrant preserving nonfederal-law entitlements even though their displacement would be authorized pursuant to the bankruptcy power. But such considerations might also suggest replacing those entitlements with bankruptcy-specific ones. Some scholarship has theorized about the principles that should govern the balancing of bankruptcy federalism concerns, though without considering the implications of race. Other scholarship has critically examined how federal bankruptcy law, which is facially neutral, has nevertheless been designed and administered in ways that are racially biased, though without considering the implications of federalism.

This Article offers a preliminary exploration of the origins of racialized bankruptcy federalism—that is, federalism policymaking in bankruptcy with racially harmful effects. Looking back to modern bankruptcy law’s first forebear, the 1841 Bankruptcy Act, the Article analyzes how the U.S. District Court for the Eastern District of Louisiana promulgated a rule that replaced creditors’ state-law entitlements to enslaved collateral with federal public control of the enslaved in cases under the Act. Not only did this rule routinely impose on enslaved Black Americans the trauma of forced sale by the federal government, it also frequently enriched federal officials without providing any pecuniary benefit to a bankrupt’s general unsecured creditors. This Article concludes with a brief commentary on the Supreme Court’s January 2021 decision in City of Chicago v. Fulton, arguing that, especially when viewed from a historical perspective, race matters in determining how bankruptcy federalism ought to be operationalized.

--Dan Ernst

Thursday, February 3, 2022

Telfer and Torrie's "Debt and Federalism"

Thomas G.W. Telfer, Western University, and Virginia Torrie, University of Manitoba, have published Debt and Federalism: Landmark Cases in Canadian Bankruptcy and Insolvency Law, 1894-1937. It appears in UBC Press’s series Landmark Cases in Canadian Law:

The legal meaning of bankruptcy and insolvency law has often remained elusive, even to practitioners and scholars in the field, despite having been enshrined in Canada’s Constitution since Confederation. Federal power in this area must be measured against provincial jurisdiction over property, civil rights, and other aspects of provincial power.

Debt and Federalism traces changing conceptions of the federal bankruptcy and insolvency power through four landmark cases that together form the constitutional foundation of the Canadian bankruptcy system: the Voluntary Assignments case in 1894, Royal Bank of Canada v Larue in 1928, the 1934 Companies’ Creditors Arrangement Act Reference, and the 1937 Farmers’ Creditors Arrangement Act Reference. At times when federal and provincial views appeared seemingly irreconcilable, each decision incrementally laid the groundwork for the next constitutional challenge, ultimately producing the bedrock for modern understandings of bankruptcy and insolvency law.

Thomas G.W. Telfer and Virginia Torrie draw on a wide array of archival and legal sources to analyze the four decisions from a historical and doctrinal perspective, and to situate them within the appropriate social, economic, and political contexts. This astute book demonstrates that together, the specific legal changes brought about by these landmark cases underpin contemporary bankruptcy and insolvency law and scholarship.

Scholars and students of bankruptcy and insolvency, debtor-creditor relations, constitutional law, and federalism will find this work invaluable, as will lawyers and judges who practise in these areas.

--Dan Ernst

Wednesday, February 2, 2022

Hartog's "Four Fragments on Doing Legal History"

Now available online in Law and History Review and Cambridge Core: Four Fragments on Doing Legal History, or Thinking with and against Willard Hurst, by Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus, at Princeton University.  From the introduction:

What does it mean to know law--to understand legal sources--as existing in historical time? That is the question, or rather, my question. Not how to mine a legal archive to make social or cultural or political or economic generalizations about a historical moment or an era. Not how to find the origins of the legal present, the power or failure of a regulation, or any number of other questions that historians and others today pose about law. Here my concerns are epistemological and jurisprudential. When I as a historian identify something as law, and when I find myself seduced by a legal source—by a trial transcript, a lawyer’s brief, a judicial opinion, a passage in a treatise, a letter or memoir of a litigant, a justification for a statute, or an interpretation of that statute—what is it that I am seduced by?

I have only glimmers of answers for the questions that consume me. But here are four fragments that will possibly play a part in a longer work: I begin with a sketch of what it is to do legal history today, in the wake of the enormous growth and development of the field of legal history in legal education, over the past 40 years. I continue with an extended examination of the answers that Willard Hurst, the founder of the modern discipline of legal history, gave more than 55 years ago to the question: What does legal history do? Finally, in the last two fragments, I spin off from Hurst to begin the work of suggesting an understanding of legal history less tied to legal thought and legal advocacy: How to practice a legal history that is something apart from legal scholarship.

--Dan Ernst