International conference, Paris, 26-27 January 2023
Varieties of supervision: The surveillance of banks in a long-term perspective, 19th – early 21st century
Since the global financial crisis of 2008, the history of banking regulation and supervision has experienced a revival of scholarly interest. Regulation, understood as the general framework defining the rules for banking activities, has attracted more attention than the practices of supervision. Nevertheless, supervisory histories continue to multiply. Scholars have widely examined the history of banking supervision in a national perspective and in an international perspective. The field now extends to colonial areas. But this historiography of banking supervision has several shortcomings. First, the literature has devoted more attention to the supervision of banks by government authorities, which could be described as “external” control, than to forms of control exerted by the banking sector, which could be labelled “internal” control, such as inspection and audit services, accounting practices, and proprietary risk models. Further, the literature more often deals with the second half of the 20th century than with the 19th century. The conference will aim to extend the scholarship on banking supervision by examining new actors, new periods, and by scrutinizing the practices more than the rules of control. In doing so, it aims to resituate the history of banking supervision in a broader history and thereby cast new light on the concept of “regulation”.
The conference aims to explore five main research avenues:
- Why supervise banks? What have been the purposes and objectives of banking control over the last two centuries, and what have been the historical factors for its development or evolution? In particular, we can question the role of crises, which were neither necessary (United States) nor sufficient (France) for the establishment of banking supervisory systems; the embeddedness of the various forms of banking control in national political, legal, economic and social structures; the influence exerted by other countries or other economic sectors than the financial sector; the role of wars and of monetary regimes.
- Which institutions have been in charge of banking control? This research avenue raises four questions: first, that of the necessity (or not) of the formalization of control, and the degree of formalization; second, that of the arbitration between hierarchical authority and self-regulation of the banking profession; third, that of the allocation of the supervisory authority to single or multiple institutions and to the central bank; fourth, that of the internal organization of these institutions.
- Control practices. In particular, we are interested in the words, procedures and human dimension of control. For example, the conference will reflect on the organization of information systems within banking institutions and networks (including the role of technology), and on the role of accounting, whose heterogeneity and complexity have made fraud and risk difficult to prevent and assess.
- Actors and stakeholders (individual and collective, private and public). The conference will aim to widen the actors responsible for control beyond the “external” public controllers usually considered – that is to say, the authorities – to also include the actors in charge of the “internal” control (for example, in banks’ own inspection services), as well as accountants, auditing companies, bankers’ associations, and rating agencies. Who were these actors? What was their expertise? What type of control have they exercised over banks? How were they organized? What was their vision of control? Biographical and prosopographical studies, analyses of actors’ networks or discourses shedding light on the social and political conditions for the evolution of the regulatory culture, from laissez-faire to state intervention, will be particularly welcome.
- The effectiveness and efficiency of control. This question refers both to fraud and control failures (from the controllers’ point of view), and to the cost and resources of supervisory systems. This question also invites us to re-examine the objectives of control and its place in the political economy of regulation: is the aim of banking control to preserve the stability or respectability of a bank or a financial centre? To ensure the compliance with a rule? To protect a profession? Or to defend the general interest (or specific interests, like bank shareholders, noteholders, managers, or depositors)? How have these goals evolved over time?
The conference will combine approaches from different disciplines (history, economics, sociology, law, management sciences, political science) and testimonials from actors involved in banking supervision. Innovative papers, particularly those filling the historiographical gaps mentioned above (internal control; 19th and first half of the 20th centuries; biographical and prosopographical studies), will be particularly welcome. The conference will also welcome contributions adopting a comparative perspective (for instance, between countries or between banks), analyses looking at the intersection of discourses and practices, or the circulation of people and techniques. We will be particularly interested in the varieties of scales (local, national, international) and levels of analysis (micro and macro) and in case studies linking “external” and “internal” control.
The conference will be held in French and English.
Paper proposals (approximately 600 words), accompanied by a short CV, should be sent by 31 May, 2022, to:
Participants will be asked to send preliminary papers (or extended abstracts) by November 2022.
Scientific committee:Edoardo Altamura (Graduate Institute, Geneva)
Alexis Drach (University of Paris 8, IDHES UMR 8533 CNRS)
Thibaud Giddey (University of Oxford)
Michel Margairaz (University Paris 1 Panthéon-Sorbonne, IDHES UMR 8533 CNRS)
Jean-Luc Mastin (University Paris 8, IDHES UMR 8533 CNRS)
Olivier Feiertag (University Paris 1 Panthéon-Sorbonne, IDHES UMR 8533 CNRS)
Béatrice Touchelay (University of Lille, IRHiS UMR 8529 CNRS)
Sean Vanatta (University of Glasgow)
[Note: Original footnotes have been removed for ease of posting]
Thursday, March 31, 2022
CFP: "Varieties of supervision: The surveillance of banks in a long-term perspective, 19th – early 21st century"
Tuesday, March 29, 2022
Tzouvala on Eurocentrism in International Legal History
Ntina Tzouvala, ANU College of Law, has posted The Specter of Eurocentrism in International Legal History, which appears in the Yale Journal of Law & the Humanities:
The honeymoon period of the “turn to history” in international law did not last long. On the surface everyone agreed that the past of the discipline remained under-examined and under-theorized. Additionally, few (if any) international legal scholars still believed in the most extreme versions of linear, progressivist narratives that imagined (international) law to be part and parcel of “the long march of mankind from the cave to the computer.” Nevertheless, important methodological differences persisted. These disagreements include the nature of historical time and, correspondingly, the relationship between the present and the past, the appropriate and permissible sources, the relationship between contingency and necessity, agency and structure, and aesthetic and theoretical choices between “thick description” and explanation. These deep theoretical divisions and the increasingly sour tone of the debate make the apparent consensus over the question of Eurocentrism worthy of closer examination. Simply put, scholars who agree on little else nonetheless acknowledge that the history of international law has been profoundly Eurocentric and that correcting this bias should be one of the main preoccupations of contemporary historical efforts. In fact, it is not uncommon that battles over other methodological questions are fought on the terrain of Eurocentrism, a point to which I will return shortly.--Dan Ernst
Monday, March 28, 2022
Novak's "New Democracy" (and Pro Lecture)
William Novak’s Philip Pro Lecture in Legal History at the William S. Boyd School of Law, University of Nevada, Las Vegas, last week, is now available online. (The sound soon after David Tanenhaus begins his introduction, so hang in there.) Professor Novak spoke about his new book, New Democracy: The Creation of the Modern American State (Harvard University Press, 2022), in its own right and in relation to his first book, The People’s Welfare. Independently, he was interviewed about the new book on Current.
Here's more on New Democracy, from HUP:
And here are some endorsements:
William J. Novak shows how Americans translated new conceptions of citizenship, social welfare, and economic democracy into demands for law and policy that delivered public services and vindicated people’s rights. Over the course of decades, Americans progressively discarded earlier understandings of the reach and responsibilities of government and embraced the idea that legislators and administrators in Washington could tackle economic regulation and social-welfare problems. As citizens witnessed the successes of an energetic, interventionist state, they demanded more of the same, calling on politicians and civil servants to address unfair competition and labor exploitation, form public utilities, and reform police power.
Arguing against the myth that America was a weak state until the New Deal, New Democracy traces a steadily aggrandizing authority well before the Roosevelt years. The United States was flexing power domestically and intervening on behalf of redistributive goals for far longer than is commonly recognized, putting the lie to libertarian claims that the New Deal was an aberration in American history.
This much anticipated book is a magisterial revision of the history of modern American governance. More powerfully than any work I have read, it shows concretely when and how the modern American state took shape and what made it fundamentally different from what came before. Perhaps even more important, Novak’s account centers democracy in a way other works have simply overlooked. Outstanding, truly field-changing, New Democracy is sure to spark vital conversations for decades to come.”—Karen M. Tani, author of States of Dependency: Welfare, Rights, and American Governance, 1935–1972
“Novak’s dazzling New Democracy offers a striking reconceptualization of a pivotal era in the history of American governance. As he demonstrates, brilliantly and convincingly, the New Deal was built upon the radical ideas and novel administrative practices that reshaped American politics and law in the decades preceding FDR’s election in 1932.”—James T. Kloppenberg, author of Toward Democracy: The Struggle for Self-Rule in European and American Thought
“In this sweeping and provocative book, Novak forces us to think anew about public power and democracy in America and how both were transformed in the period from 1866 to 1932. Encompassing everything from citizenship to social policy, the profound changes he chronicles notably preceded the New Deal. Novak challenges us as never before to reexamine what we thought we knew about ‘the creation of the modern American state.’”—David A. Moss, author of Democracy: A Case Study
“A grand synthesis that retells the story of the rise of the modern American state by examining the fundamental grammar of state-building. Novak shows that Americans took ideas about citizenship, police power, public utility, social welfare, antimonopoly, and, most importantly, democracy and invested them with new power and meaning between the close of the Civil War and the beginning of the Great Depression. They laid the foundations for how Americans would continue to grapple with public problems, and how they would struggle over the meaning of democratic governance. A fitting capstone to a brilliant career.”—Kenneth W. Mack, author of Representing the Race: The Creation of the Civil Rights Lawyer
“The Progressive period, the decisive turning point in the rise of modern American government, law, policy, and planning, has attracted some of the greatest historians of our time. Novak now joins their ranks with New Democracy, dazzling in its erudition and provocative argumentation. It will be impossible to think about Progressivism—and the American state today—without reading this book first.”—Thomas J. Sugrue, author of The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit
“Novak’s New Democracy is a remarkable achievement. Beautifully written and superbly researched, it illuminates the transformation of the American system of government between the Civil War and the New Deal, debunking the myths of both a weak American state and the New Deal as an aberration. An essential read for anyone who cares about the past and future of American democracy.”—Kate Andrias, Columbia Law School
Sunday, March 27, 2022
Call for Projects and Proposals
The Projects and Proposals Committee of the American Society for Legal History invites proposals for the funding of new initiatives in the study, presentation, and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented new voices into our field, to promote novel forms of scholarly interchange, to support pedagogical experiments in legal history, and to seed new forms and venues for public history.
We welcome a broad range of proposals. We will consider providing support for conferences (including the costs of bringing together participants who could not otherwise afford to attend), scholarly publications, museum exhibits, pedagogical experiments, or any number of other collective pursuits. We encourage projects that seek to internationalize legal history by widening the study of legal history or by bringing a global array of scholars and students of legal history into conversation with one another. We also invite projects that promise to bring a younger generation of scholars and students into the field.
Most of the grants we have awarded have been less than $5000. Ordinarily, we would expect that projects would have other institutional collaborators and/or cosponsors (including home universities). Proposals may come from educational institutions or from informal groups or networks of individuals. In most cases, someone involved in the proposal will be a member of the Society, and we especially encourage proposals from members pursuing new endeavors or outreach in the field. Please note that we are not a funding source for ongoing and recurrent activities of the field or of the Society and will not recommend for funding projects that have already been funded at the recommendation of the committee three times. We do not support individual research projects.
Funds are usually expended in the calendar year following the award. However, in the event that a planned project must be postponed due to COVID-19 restrictions (or other unavoidable circumstances), allocated funds may be held over for future use for a reasonable period with approval of the Projects and Proposals Committee and in consultation with the ASLH Treasurer.
The deadline for receiving applications is September 15, 2022. The committee will then review the proposals and recommend a list to the Board of Directors of the Society in preparation for its meeting in November 2022.
Saturday, March 26, 2022
- The University of Illinois Chicago notes the receipt of the Bancroft Dissertation Prize by Ivón Padilla-Rodríguez, “a socio-legal historian of child migration,” who currently is one of UIC’s “Bridge to the Faculty” postdoctoral research associates.
- Tomiko Brown-Nagin, Harvard University, will discuss her book Civil Rights Queen: Constance Baker Motley and the Struggle for Equality, in conversation with Sherrilyn Ifill, President and Director-Counsel Emeritus, NAACP Legal Defense and Educational Fund, Inc., on Monday, March 28, 2022, 6:30 PM - 7:30 PM. To register and for more: here.
- reviews Carolyn Strange’s The Death Penalty And Sex Murder in Canadian History (University of Toronto Press, 2020).
- Legal Historians Recorded: UVA Dean Risa Goluboff testifies in favor of the confirmation of Judge Ketanji Brown Jackson. Executive Director Ajay Mehrotra in the Season One finale of the ABF’s podcast "Whose Law Is It Anyway?"
- Chasing Justice: Florida Justice Association, 1950-2000 by Larry S. Stewart is now available.
- The Delaware Heritage Commission’s notice of the death of Delaware Supreme Court Justice Randy J. Holland, whose 2013 book, Delaware’s Destiny Determined by Lewes appears on the Commission's website.
- Marcus Rediker's eight tips “about the vexatious business of getting unruly words down onto the page.”
- Gerard Magliocca, Samuel R. Rosen Professor of Law at Indiana University McKinney School of Law, explains why he wrote Washington’s Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) (Current).
- ICYMI: Senator Cruz, Bushrod Washington's slaves beg to differ (WaPo). Six influential Black judges (History Channel).
Friday, March 25, 2022
Yackee on Colonialism, Foreign Investment and the Frieden Thesis
Jason W. Yackee, University of Wisconsin Law School, has posted Colonialism, Foreign Investment and Property Rights Reconsidered, a paper he will present next month at the 79th Annual Midwest Political Science Conference:
In an article in [International Organization], now somewhat old but still regularly cited, Professor Jeffrey Frieden (1994) imaginatively presented European colonialism as resolving what has become known as the “credible commitment” problem in the IPE literature on foreign investment. Frieden claimed that colonialism’s aim or function was to prevent expropriation of metropolitan investment. I revisit Frieden’s provocative interpretation, arguing that it gets things wrong—both about colonialism and investment. The better interpretation highlights themes associated with the school of historical rather than of rational institutionalism: the role of subjective ideas; of path dependence, and of unintended consequences. Through a close examination of French colonialism in Africa I show that the problem of credible commitment was both subjectively and objectively absent, and that patterns of colonial investment are better explained as a function of material factors, then-dominant economic beliefs and ideas, and the French government’s policy interventions and abstentions. The investment story of French colonialism in Africa is about the relative lack of private investment—arguably due, at least in part, to an excess of rights, allocated to the wrong people and of the wrong type—even in those sectors of the economy that Frieden suggests are most sensitive to the colonial resolution of credible commitment problems.–Dan Ernst
Thursday, March 24, 2022
Kesselring and Stretton"s "Marriage, Separation, and Divorce in England, 1500-1700"
K. J. Kesselring and Tim Stretton have published Marriage, Separation, and Divorce in England, 1500-1700, with the Oxford University Press:
Wednesday, March 23, 2022
Bilder on Harriot and Lurie on Taft at SCHS
The second is a lecture by Jonathan Lurie, Professor Emeritus of History at Rutgers University-Newark, on "Chief Justice William Howard Taft and the Judicial Conference–A Centennial Retrospective." The lecture will take place on May 4, 2022, at12 p.m. (EDT) and draw upon Professor Lurie’s book, The Chief Justiceship of William Howard Taft, 1921-1930. Register here.
Tuesday, March 22, 2022
Karol on Durer's Trademark Suits
Peter Karol, New England Law, has posted Albrecht Durer's Enforcement Actions: A Trademark Origin Story, which is forthcoming in the Vanderbilt Journal of Entertainment & Technology Law:
This article offers a reappraisal of a pair of remarkably contemporary enforcement actions brought by the Northern Renaissance artist Albrecht Dürer (1471-1528) against copyists of his work. These cases have long been debated by art, cultural and copyright historians insofar as they appear to reject Dürer’s demand for proto-copyright protection for his prints. But surprisingly little attention has been paid by trademark scholars to the companion holdings—in the same cases—that affirm Dürer’s right to prevent use of his monogram on unauthorized reproductions.
This article seeks to fill that gap by analyzing Dürer’s cases through the lens of contemporary trademark theory. It argues that, properly contextualized and understood, these cases provide the first complete record we have of tribunals enjoining the unsanctioned use of a famous mark in commerce both to protect consumers from purchasing mislabeled goods and preserve the source-associative power of that sign. In so doing, they show us a path towards recentralizing the role of artists and authors as a core aspect of trademark law’s otherwise industrial legal history.
Monday, March 21, 2022
Dodge et al. on Forum Non Conveniens
William S. Dodge, University of California, Davis School of Law, Maggie Gardner, Cornell Law School, and Christopher A. Whytock, University of California, Irvine, School of Law, have published The Many State Doctrines of Forum Non Conveniens, which is forthcoming in the Duke Law Journal:
Forum non conveniens is not as “ancient” or as monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, is often used today by both state and federal courts to dismiss claims brought by against local businesses. The Supreme Court, however, only adopted a general doctrine of forum non conveniens in 1947; the doctrine’s “deep roots in the common law” are thought instead to be planted in the states.--Dan Ernst
This Article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What we found should change how judges, practitioners, and scholars view the doctrine. First, forum non conveniens in the states does not have a “long history”—it is a twentieth-century phenomenon. Second, before the 1950s, no states permitted dismissal of claims brought against local defendants. Third, state experience with forum non conveniens has been and continues to be highly variable. Most states adopted a forum non conveniens doctrine only after the Supreme Court did; many initially rejected it; and half a dozen still prohibit its use in cases involving in-state plaintiffs or in-state causes of action. Idaho has not recognized the doctrine at all.
In addition to these doctrinal lessons, the states’ experience with forum non conveniens provides a useful case study for examining what we term “procedural federalism,” meaning the interactions between state and federal institutions that affect procedural development.
Procedural federalism reminds us that the procedure we have is not necessarily the “best” procedure we could conceive, while drawing our attention to pockets of divergence that may offer promising reforms. More broadly, it suggests a different approach to history than the one currently ascendant in federal courts and commentary. The iterative nature of procedural federalism makes clear that doctrines like forum non conveniens do not have perfect pasts, needing only to be rediscovered to be understood properly. Rather, procedural history is useful because it can help us understand how we ended up with the doctrines we have today, in order to better evaluate where we should go next.
Sunday, March 20, 2022
American Legal History Symposium at Quinnipiac Law
Saturday, March 19, 2022
- "Rules and Exceptions: Casuistry, Equity, and Prerogative," the 2021-22 Cotterrell Lecture in Sociological Jurisprudence delivered by Lorraine Daston, Director Emerita of Max Planck Institute for the History of Science and Professor at the Committee on Social Thought at the University of Chicago, is now available on Queen Mary University of London’s YouTube channel.
- On March 31, the American Foundings series at the Catholic University of America continues with How Should We Remember? History, Meaning, and Community. The panelists are Jack Rakove, Coe Professor of History and American Studies Emeritus, Stanford University; Jamelle Bouie, Opinion Columnist, New York Times, and Kate Masur, Professor of History, Northwestern University. Samuel Fisher, Assistant Professor of History, Catholic University of America, moderates.
- On March 30, The National Museum of American History will posthumously present its Great Americans Medal to Ruth Bader Ginsburg “for her groundbreaking judicial work and commitment to gender equality and human rights accepted by her daughter and son Professor Jane C. Ginsburg and James Ginsburg followed by a donation of significant artifacts representing Justice Ginsburg's Supreme Court career.” More.
- Working for Suffrage: How Class and Race Shaped the U.S. Suffrage Movement, with Page Harrington, Cathleen Cahill and Alison Parker. More.
- Also via National Archives Museum Online: Laura F. Edwards in conversation with Adam Rothman on her book, Only the Clothes on Her Back. More.
- "The Cold War and the Canon of Liberalism," the 2022 Carlyle Lectures at the University of Oxford, by Samuel Moyn, Yale Law School, are available here.
- The New-York Historical Society has an new installation: Our Composite Nation: Frederick Douglass’ America.
- In “The Economic Constitution,” Mark A. Graber reviews The Anti-Oligarchy Constitution: Reconstructing The Economic Foundations of American Democracy, by Joseph Fishkin and William Forbath (Democracy).
- From the Washington Post's "Made by History" section: Salmon A. Shomade (Emory University), "Colonial legacies endure in Africa’s legal systems — undermining rule of law"; N. D. B. Connolly (Johns Hopkins University), "Biden’s push for an infrastructure presidency risks sacrificing Black communities"; Natalie Shibley (Wesleyan University), "Congress is taking a good first step to address the mistreatment of LGBT veterans"; and more.
- ICYMI: "Historian Eric Foner on three constitutional amendments that altered history" (MPR News). Amanda Frost, the author of You Are Not American: Citizen Stripping From Dred Scott to the Dreamers (Beacon Press), moves from American University to University of Virginia Law.
- Update: Legal history figures among the twenty-nine finalists for the ABA’s 2022 Silver Gavel Awards for Media and the Arts (ABA Journal).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, March 18, 2022
Steilen on the Steel Seizure Case
Matthew J. Steilen, SUNY at Buffalo Law School, has posted Life and Afterlife in the Steel Seizure Case, which is forthcoming in the Buffalo Law Review:
This Essay examines the proper role of the Supreme Court in deciding disputes between Congress and the President. Progressive commentators have recently argued that the Court ought to dismiss these cases as political questions, at least where doing so would give effect to congressional regulations of the President. The Court's interference is criticized as anti-democratic. The Essay advances a different conception of the Supreme Court's role by examining the famous Steel Seizure Case. In that case, the Court upheld an injunction barring President Truman from seizing the nation's steel mills, on grounds that doing so conflicted with a federal statute. The subsequent embrace of Justice Jackson's concurrence shows how Supreme Court decisions can guide the political resolution of disputes between Congress and the President. In its "afterlife"--its use by members of Congress, Executive Branch lawyers, and in later litigation--Jackson's concurrence has acquired a kind of democratic authority. It was quoted in legislative debates preceding the passage of the War Powers Resolution, the National Emergencies Act, and the Presidential Recordings Act, among other statutes. Justice Jackson’s broad, theoretical language and flexible framework proved useful to representatives. By constructing his concurrence this way, Jackson helped give it an afterlife and an essential place in structuring the political maintenance of our Constitution's separation of powers.
Robert H. Jackson (LC)
Belt to Speak on "Disabling Democracy" at Georgetown Law
[We have the following announcement. DRE]
The Georgetown Legal History Colloquium continues on Monday, March 21 from 3:30-5:00, with Rabia Belt, Stanford Law School. We will be discussing a chapter from Professor Belt's forthcoming book, "Disabling Democracy in America: Mental Incompetence, Citizenship, Suffrage, and the Law, 1819-1920." The book examines how ideas about mental incompetence shaped the development of voting rights over the course of the long 19th century. The chapter we will be discussing explores the implications a continuous preoccupation with the meaning of mental incompetence had for Black voters both before and after the Civil War. The chapter is attached; please do not share it with others without permission.
Please note that this session will be online. Please register in advance using this link. You will receive a Zoom link for the event after you register. If you have any difficulty registering, please let us know.
As before, if you know anyone who would like to attend, please ask them to contact us directly, and we will send them the registration link and paper. We look forward to seeing you!
K-Sue Park & Kevin Arlyck
Thursday, March 17, 2022
Legal History Fellowships Announced
It must be that time of year: We recently received word of the award of three leading fellowships in Legal History. First, the Berger-Howe:
Harvard Law School is pleased to announce that Jesse James will be the Raoul Berger-Mark DeWolfe Howe Legal History Fellow for the academic year 2022-2023. Mr. James is a Ph.D. candidate in the Department of Classics at Columbia University, where he is completing his dissertation on “Greek International Law: Networks, Socialization, and Compliance.” He received his B.A. in Classics from Cornell University and a J.D. from the University of California at Berkeley School of Law. He is a regular member of the American School of Classical Studies at Athens.Second, the Stanford Center for Law and History has announced that its fellow for 2022-2024 is Doris Morgan Rueda, a Ph.D. candidate at the University of Nevada, Las Vegas. "Her research focuses on the development of juvenile justice systems in the American Southwest with a special interest in international juvenile justice, race, and Latinidad in the 20th century."
Finally, a little bird (i.e. Twitter) just told us that Rafi Stern, a J.D.-Ph.D. candidate at Harvard, will be the Golieb Fellow at NYU Law for 2022-2023.
RFP: History of the Third Circuit
The US Court of Appeals for the Third Circuit has issued the following request for proposals for "publication of a history of the United States Court of Appeals for the Third Circuit” DRE]
Project overview: This request seeks proposals for a publication memorializing the history of the United States Court of Appeals for the Third Circuit.
Background: In 1982, a book titled Studies in the History of the United States Courts of the Third Circuit 1790-1980 was published. The Third Circuit Bicentennial Committee engaged Professor Stephen B. Presser to prepare this work. Much of the book chronicles the history of the United States District Courts within the Third Circuit. As Professor Presser acknowledged in his introduction, he “had written relatively little on the Court of Appeals,” (page viii), and only dedicated the final chapter in the book—thirty-two pages in length—to the Court of Appeals. The book may be accessed [here]. In the following years, many of the District Courts within the Third Circuit published histories of their courts. The Court of Appeals for the Third Circuit now seeks to publish its own history.
Research: A robust collection of primary and secondary sources is in the Court of Appeals for the Third Circuit’s archives and available for this project. These sources include judges’ papers, minutes, oral histories, photographs, annual reports, Third Circuit publications, and various books and articles. In addition, the substance of Studies in the History of the United States Courts of the Third Circuit 1790-1980 may be reproduced and otherwise employed, as the author does not own a copyright in that book.
Substantive Contents: Possible topics for the book may include the growth of the Court to its present size and changes over time, the culture and traditions of the Court, its role in shaping the law in certain areas (e.g., class actions, bankruptcy) and in different epochs (e.g., women’s suffrage, prohibition and organized crime, Civil Rights era decisions, the internet age), the influence of technology on Court business, and the COVID-19 experience.
Project Term: Thirty-six months or less from the signing of a contract with the author or authors.
Content of Proposal: Proposals should, among other things, detail the submitter’s vision for the project (including substantive content), the author(s) and each author’s biography, and suggested compensation.
Deadline for Proposal: The deadline for proposals is June 30, 2022.
Submit Proposals to:
Hon. Michael A. Chagares, Chief Judge
United States Court of Appeals for the Third Circuit
James A. Byrne United States Courthouse
601 Market Street
Philadelphia, PA 19106
For inquiries, contact:
Deputy Circuit Executive
United States Court of Appeals for the Third Circuit
James A. Byrne United States Courthouse
601 Market Street
Philadelphia, PA 19106
Wednesday, March 16, 2022
New FJC Exhibit on the U.S. Court of Appeals
Supreme Court Justice Byron White said in 1984, “Each of the courts of appeals . . . is for all practical purposes the final expositor of the federal law within its geographical jurisdiction.” More recently, a law professor wrote, “In large measure, it is the circuit courts that create U.S. law. They represent the true iceberg, of which the Supreme Court is but the most visible tip. The circuit courts play by far the greatest legal policymaking role in the United States judicial system.”
When Congress established them in 1891, the U.S. circuit courts of appeals (as they were known then) did not occupy such a lofty position in the federal judiciary. Created as a level of intermediate courts, their job consisted almost entirely of correcting errors made by the trial courts to relieve caseload pressure on the Supreme Court of the United States. Since that time, however, the U.S. courts of appeals have undergone significant change. As caseloads continued to rise during the early twentieth century, the Supreme Court lobbied for and was granted more discretion over its docket. A growing number of federal appeals became final in the courts of appeals unless the Supreme Court elected to hear them. With the courts of appeals as the last point of appellate review for the vast majority of federal cases, they expanded upon their initial—but still crucial—function of error correction and became instrumental in expounding the law as well.
The evolution of the courts of appeals and the increasing importance of their role are important themes permeating the broad historical overview of the courts provided here. This feature is divided into ten sections: 1) The Creation of the U.S. Courts of Appeals; 2) The Judges’ Bill of 1925; 3) Changing Dockets; 4) Differences Between Circuits; 5) Law of the Circuit; 6) En Banc Review; 7) Circuit Splits; 8) Implementation of Remedies; 9) Cases; and 10) Judges.
This feature is intended to expand upon the following existing resources from the FJC’s History of the Federal Judiciary website:
An overview page provides a brief history of the courts of appeals and links to more specific information about the appellate court in each judicial circuit. A page on the Evarts Act of 1891 summarizes the statute that created the courts of appeals and gives the full text of the law. An essay on the appellate jurisdiction of the federal courts details the kinds of cases the appellate courts have heard throughout their history. Finally, Volume II of Debates on the Federal Judiciary: A Documentary History covers legislative debates concerning the establishment of the courts of appeals.
Jansen to Lecture on Kantorowicz
On Wednesday, March 30, Professor Nils Jansen will give the Wilson Memorial Lecture at the Edinburgh Law School. His topic will be "Hermann Kantorowicz' Concept of Legal Science and the Social Role of Legal Scholarship, Today":
Hermann Kantorowicz was a scholar who bridged the intellectual divide between Common and Civil Law both through his biography and his highly extensive work, which connected legal history, legal theory, and criminal law. This lecture will focus on Kantorowicz's idea of legal science. It will endeavour to show that Kantorowicz's problems still face us today and that there is a lot to learn from the questions he raised. One reason is that he discussed these questions in a manner which engaged deeply with contemporary philosophical scholarship (i.e. Heinrich Rickert, Wilhelm Windelband, and Max Weber). The other reason is that Kantorowicz developed his ideas of legal science wholly independently of 19th century (or contemporary) programmes aimed at re-constructing the law in the form of a fully rational and internally coherent system. In this respect, Kantorowicz's ideas fit in well with modern, more fluid, and complex notions of law and multi-layered legal systems.You may attend in person or online. Details here.
Tuesday, March 15, 2022
Fischer, "The Streets Belong to Us Sex, Race, and Police Power from Segregation to Gentrification"
New from the University of North Carolina Press: The Streets Belong to Us: Sex, Race, and Police Power from Segregation to Gentrification, by Anne Gray Fischer (University of Texas at Dallas). A description from the Press:
Police power was built on women's bodies.
Men, especially Black men, often stand in as the ultimate symbol of the mass incarceration crisis in the United States. Women are treated as marginal, if not overlooked altogether, in histories of the criminal legal system. In The Streets Belong to Us—a searing history of women and police in the modern United States—Anne Gray Fischer narrates how sexual policing fueled a dramatic expansion of police power. The enormous discretionary power that police officers wield to surveil, target, and arrest anyone they deem suspicious was tested, legitimized, and legalized through the policing of women's sexuality and their right to move freely through city streets.
Throughout the twentieth century, police departments achieved a stunning consolidation of urban authority through the strategic discretionary enforcement of morals laws, including disorderly conduct, vagrancy, and other prostitution-related misdemeanors. Between Prohibition in the 1920s and the rise of "broken windows" policing in the 1980s, police targeted white and Black women in distinct but interconnected ways. These tactics reveal the centrality of racist and sexist myths to the justification and deployment of state power. Sexual policing did not just enhance police power. It also transformed cities from segregated sites of "urban vice" into the gentrified sites of Black displacement and banishment we live in today. By illuminating both the racial dimension of sexual liberalism and the gender dimension of policing in Black neighborhoods, The Streets Belong to Us illustrates the decisive role that race, gender, and sexuality played in the construction of urban police regimes.
A sample of advance praise:
“Anne Gray Fischer’s crucial book reveals the utterly pivotal role of the sexual policing of Black women in the vast buildup of police power across the twentieth-century United States. Brilliantly researched and compellingly argued, The Streets Belong to Us is a must-read for all who seek to understand the making of today’s policing crisis.”—Emily Thuma"Well written, intellectually rigorous, and compelling, this impressive book tackles long-standing issues of policing and gender through the legal policies that impacted American women from the Great Depression to the mid-1990s. Its argument is historical and yet all too timely, making devastatingly clear how women's bodies, and particularly Black women's bodies, were central to strengthening and legitimizing the same carceral policing that violated and oppressed them."—Cheryl Hicks
The book is part of the Press's Justice, Power, and Politics series, edited by Heather Ann Thompson and Rhonda Y. Williams.
More information is available here.
-- Karen Tani
Monday, March 14, 2022
Zoldan on the Right to an Individualized Hearing
Evan C. Zoldan, University of Toledo College of Law, has posted The Right to an Individualized Hearing:
Due process requires the government to provide notice and a hearing before depriving individuals of protected rights. This right—the right to an individualized hearing—is powerful. It gives individuals the ability to know why the government is taking action against them; and it lets them oppose the government, often by presenting facts and arguments to a neutral decision-maker. As a result, the right to an individualized hearing can help shape the government’s substantive aims—and it even can determine whether the government acts at all. But, despite its importance, there is a longstanding exception to the right to an individualized hearing. Individualized procedures are not required when the government acts on more than a few people at the same time. Although the right to an individualized hearing, and its exception, are fundamental to due process doctrine, the justification for the distinction between them has not been adequately explained. Accordingly, scholars disagree about the origin of the distinction and courts have struggled to delineate its contours.–Dan Ernst
This Article offers a new explanation for the scope of the right to an individualized hearing. The distinction is a relic of the once-pervasive “class legislation” doctrine. At one time, class legislation doctrine was the primary constitutional mechanism for courts to prevent arbitrary distinctions between groups—or the elevation of one “class” of society at the expense of another. Accordingly, class legislation doctrine helped courts enforce key rule of law values. Although class legislation doctrine has faded from its prominent place in constitutional law, shades of it survive in the right to an individualized hearing. Reconnecting the right to an individualized hearing with its class legislation origin will shed light on this mysterious but fundamental corner of due process doctrine. It also will help courts apply the right to an individualized hearing in ways that emphasize its crucial role in protecting rule of law values.
Craig on Natural Justice in Administrative Law
Paul P. Craig, University of Oxford Faculty of Law, has posted Natural Justice in English Administrative Law: Continuity and Change from the 17th Century, which is forthcoming in Liber amicorum per Marco D'Alberti (Torino: Giappichelli, 2022):
This chapter is concerned with the historical development of natural justice from the early 17th century onwards. It is a rich and interesting story. It is also important for the overall thesis of a book that I am writing on English Administrative Law 1600-2022: Continuity and Change. Contrary to popular belief, England developed a system of administrative law from the 17th century onwards, with origins that date back considerably earlier. Natural justice/due process was central to that system, as it is to any regime of administrative law. The reality is that the courts developed a sophisticated body of jurisprudence from first principles concerning both the right to be heard and the rule against bias. It was applied not only to public bodies broadly defined, but also to clubs, trade associations and mutual associations alike. The courts thus reasoned across the public/private divide. The structure of the ensuing argument is as follows.
The story begins with the foundational case law concerning the right to a hearing, which is followed by discussion of its applicability and content. The focus then shifts to analysis of bias, with discussion of the doctrinal foundations, followed by consideration of the breadth of its application. The analysis thereafter is on the 20th century case law prior to the 1960s, which exhibited elements of continuity with the earlier case law, but also change, in the sense of limitations engrafted on natural justice that were not present in the earlier case law. The final section of the chapter examines the seminal decision in Ridge v Baldwin, which reconnected with the case law from the 17th-19th centuries and struck down a number of the limitations imposed in the earlier part of the 20th century. The remainder of this section charts the continuity and refinement of natural justice in the modern law when viewed in the light of the historic jurisprudence.
Saturday, March 12, 2022
- The Law and Political Economy (LPE) Blog is running a mini-symposium on Gabriel Winant's The Next Shift: The Fall of Industry and the Rise of Health Care in Rustbelt America (Harvard University Press, 2021).
- From the Washington Post's Made by History section: Mical Raz (University of Rochester), "Anti-trans laws weaponize child protection systems that have long harmed kids"; Marie-Amélie George (Wake Forest University School of Law), "Florida’s bill restricting LGBTQ discussion will hurt all children, LGBTQ and straight."
- Via Nursing Clio: Chelsea Gibson, "Teaching about the Russian Invasion of Ukraine in US History Classrooms."
- David Sugarman, Professor of Law Emeritus at the Law School of Lancaster University and an Honorary Fellow of the American Society for Legal History, has posted The Humanities and Law: More Intertwined Than You Might Think, which is the lead post in the series Where Law Meets the Humanities, sponsored by Talking Humanities. School of Advanced Studies, University of London.
- ASLH Past President Lauren Benton and Rohit De are interviewed on David Schleicher and Samuel Moyn’s Digging a Hole podcast.
- ICYMI: Tony Mauro appreciates Marin Levy's Supreme Court history tweets (Marble Palace Blog). The early legal profession of Columbus, Ohio (Columbus Dispatch).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Friday, March 11, 2022
Dehm on Passports as Jurisdictional Documents
Sara Dehm, University of Technology Sydney, Faculty of Law, has posted Passport Struggles: Lawful Documents and the Politics of Recognition and Refusal, which appears in Law’s Documents: Authority, Materiality, Aesthetics, ed. Katherine Biber, Trish Luker and Priya Vaughan (Routledge, 2022), 71-93:
This chapter thus seeks to trace and interrogate the legal histories and contemporary reception of the modern passport as a legal document. There is a rich body of migration studies scholarship showing how state documents such as the passport are used to solidify and police the stark legal distinction between people deemed to be citizens or non-citizens. This includes analysing how migrants ‘on the ground experience, accept and reject state bureaucratic practices in a time of increasing securitization’ (Horton, 2020, 6). The two passport struggles that I explore in this chapter, however, play out either at the margins of state citizenship such that they seek to expand ideas and practices of inclusive citizenship and identity inscription, or reject state-bestowed citizenship outright in favour of other modes of identification, nationhood and political belonging. For this reason, state regimes of documentation and their embedded politics of recognition also need to be read alongside situated and embodied politics of refusal articulated within collective struggles for different legal arrangements or legal categories.
Srivastava on the English East India Company and State Soveriegnty
Swati Srivastava has published open access in the journal International Organization, Corporate Sovereign Awakening and the Making of Modern State Sovereignty: New Archival Evidence from the English East India Company:
–Dan Ernst. H/t: NR
The English East India Company's “company-state” lasted 274 years—longer than most states. This research note uses new archival evidence to study the Company as a catalyst in the development of modern state sovereignty. Drawing on the records of 16,740 managerial and shareholder meetings between 1678 and 1795, I find that as the Company grew through wars, its claim to sovereign authority shifted from a privilege delegated by Crown and Parliament to a self-possessed right. This “sovereign awakening” sparked a reckoning within the English state, which had thus far tolerated ambiguity in Company sovereignty based on the early modern shared international understanding of divisible, nonhierarchical layered sovereignty. But self-possessed nonstate sovereignty claimed from the core of the state became too much. State actors responded by anchoring sovereign authority along more hierarchical, indivisible foundations espoused by theorists centuries earlier. The new research makes two contributions. First, it introduces the conceptual dynamic of “war awakens sovereigns” (beyond making states) by entangling entities in peacemaking to defend sovereign claims. Second, it extends arguments about the European switch from layered sovereignty to hierarchical statist forms by situating the Company's sovereign evolution in this transformation. Ultimately, this study enables fuller historicization of both nonstate authority and the social construction of sovereignty in international politics.
Thursday, March 10, 2022
Legal Histories of Disease: The Stanford Legal History Conference
The Stanford Center for Law and History is delighted to share the full information for our Center's fourth annual conference, which will be held on April 29, 2022 as a hybrid event in-person at the Stanford Humanities Center and online via Zoom. The conference theme is Legal Histories of Disease.
The conference will explore how the law has historically responded to health crises and what contemporary insights can be drawn from this history. The one-day conference will be held on Friday, April 29, 2022, and is cosponsored by the Stanford Humanities Center; Program in History & Philosophy of Science, Stanford University; and Medical Humanities and the Arts Program (Medicine & the Muse).
The conference will include three panels followed by a keynote session featuring Professor John Witt of Yale Law School who will take part in a discussion of his recently published book, American Contagions: Epidemics and the Law from Smallpox to COVID-19 with Professor Deirdre Cooper Owens of the University of Nebraska.
The complete schedule and panel abstracts are available here.
Register here to reserve your in-person space at the Stanford Humanities Center or to receive the Zoom link details which will be sent about a week before the event. All are welcome to attend every session or particular sessions of interest. Breakfast, lunch, and snacks will be served for those who attend in-person. Note: in-person registration is on a first-come, first-served basis and seating is limited.
We also ask all those who attend in-person to comply with current Stanford event guidelines regarding COVID which can be found here.
This event is open to the general public, as well as the Stanford community, both in-person and online. If you have any questions, please contact firstname.lastname@example.org
Wednesday, March 9, 2022
Dudziak on War Powers and the "Gloss of History"
LHB Founder Mary L. Dudziak, Emory University School of Law, has posted The Gloss of War, which is forthcoming in the Michigan Law Review:
In war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the separation of powers, and embeds past actions into the law of presidential power. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the thin “history” in legal authority and the deeper historical understanding in scholarly works of history. The consequence is that presidential overreach is not recognized and corrected, but instead built into the doctrine of expanding unilateral power.
Korean War Veterans Memorial (Highsmith)
This Article is the first to examine how static ideas about history in legal analysis have aggrandized presidential war power. It analyzes the most important example of this: President Harry Truman’s unilateral actions in the Korean War and subsequent reliance on Truman’s example in Executive Branch legal opinions. The war is a principal precedent supporting the idea that presidents may use substantial military force without congressional authorization. Decades of historical scholarship, however, have shown that Truman disregarded Congress’s role, and misunderstood the nature of the conflict. Nevertheless, the Korean War is calcified as a significant precedent supporting executive unilateralism, undermining democratic limits, and enabling ongoing war. The Article argues that gloss of history analysis must be dynamic, attentive to the way understandings of the past change over time.
Novak to Speak on "New Democracy" at UNLV
Tuesday, March 8, 2022
CFP: ASLH 2022
The Program Committee of the [American Society for Legal History] invites proposals for complete panels and individual papers for the 2022 meeting to be held November 10-12 in Chicago. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography.
Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows and scholars from abroad.
Panel proposals should include the following: a c.v. with complete contact information for each person on the panel, including chairs and commentators; 300-word abstracts of individual papers; and a 300-word description of the panel.
The Program Committee also welcomes other forms of structured presentation for a 90-minute slot, including lightning round (1-2 chairs, 8-12 presenters for a few minutes each on projects in a related field at any stage of development), skills/pedagogical workshop (chair, 3-4 presenters), or roundtable format (1-2 chairs, 3-4 presenters). The Committee will also consider author-meets-reader panel proposals concerning books with a copyright date of 2021. We encourage panels that put two or three books in conversation, with up to three commentators total. Sufficient information following the general guidelines for panel proposals should be provided for the Committee to assess the merits of the presentation.
The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. Please provide a program title, the intended length of program, a program description, a c.v. and contact information for each presenter, and any information technology requirements. The Program Committee is available to consult with organizers of such symposia as they develop their proposal. Pre-conference symposia must be self-funded. Organizers are encouraged but not required to host their symposia at the conference hotel. Please note that the deadline for these submissions is earlier than the deadline for main conference submissions so that organizers whose symposia are not selected have an opportunity to submit their panels to the main conference.
As a general matter, we will not be able to accommodate special scheduling requests, so prospective presenters, chairs, and commentators at the main conference should plan to be available on Friday, November 11, and Saturday, November 12. The ASLH has a strict one-appearance policy (excluding appearances at pre-conference symposia). Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.
The Program Committee encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.
The members of the Program Committee are Nora Bakarat, Nikolas Bowie, Sara Butler, Nandini Chatterjee, Adriana Chira, Samuel F. C. Daly, Catherine Evans, Rui Hua, Jessica Marglin, and Kyle Volk. The co-chairs of the Program Committee are Fahad Bishara (email@example.com) and Sophia Lee (firstname.lastname@example.org).
All program presenters must be current members of the Society by the date of the Annual Meeting. All proposals must be submitted through the ASLH website, which will be available to take submissions starting January 3, 2022. Please visit [here] for updates and additional information.
The deadline for Pre-Conference submissions is Friday February 18, 2022. The deadline for all other submissions is Friday March 18, 2022.
Katz on the Poll Tax and the 19th Amendment
Ellen D. Katz, University of Michigan Law School, has posted Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment, which is forthcoming in the Georgetown Journal of Law & Public Policy:
This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that – contrary to the general understanding in the scholarly literature – the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote social hierarchies more generally, specifically those based on race and gender.
NAWL Seeks a "World Code of Equality" (LC)
ICH Seminar: The Contested Right to Vote
The New-York Historical Society's Bonnie and Richard Reiss Graduate Institute for Constitutional History's spring seminar has been announced. It is “The Contested Right to Vote.” The instructors are Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School, and Eugene D. Mazo, a “visiting professor of law at the Seton Hall University School of Law and a nationally recognized scholar of election law.” The seminar will be presented in person at the New-York Historical Society, 170 Central Park West, New York, NY 10024 on Fridays, May 13 and 20, June 3 and 10, 2022, from 2–5 pm ET.
The ICH seminar–which is not to be confused with the Institute for Constitutional Studies seminar–“is produced twice per year and designed for graduate students, junior faculty, and other educators, in history, political science, law, and related disciplines. There is no tuition or other charge for this seminar.” More information about the seminar and how to apply can be found here.
The right to vote is the foundation of democracy, yet the extent, meaning, and effectiveness of
A. Philip Randolph Educational Fund (LC)
the vote have been contested throughout American history. Voting eligibility has expanded since the Revolution from a limited number of white men, who in most states had to be property owners or taxpayers, to include most adult citizens today. But significant obstacles to voting and to the institutions that protect the right to vote remain, serving to undermine democracy. The Constitution itself does not confer the right to vote, but, since the ratification of the Bill of Rights, more amendments have addressed voting than any other subject, and constitutional law—along with important federal statutes—has played a key role in structuring the ongoing debate over voting. In this seminar, Professors Richard Briffault and Eugene Mazo will trace the evolution of the right to vote from the founding to the present day, paying particular attention to the legal, political, and social forces that led to the expansion of the right to vote, and to the forces—both historical and contemporary—that have sought to curtail it.