Thursday, September 29, 2022

Fletcher on FDR's "Limited" Emergency of 1939

I missed until quite recently the publication in the Journal of National Security Law and Policy of Roosevelt’s “Limited” National Emergency: Crisis Powers in the Emergency Proclamation and Economic Studies of 1939, by Alden Fletcher, Georgetown Law JD '20:

Shortly after Nazi Germany invaded Poland in 1939, President Franklin D. Roosevelt issued a proclamation of a “limited” national emergency. This proclamation cited no statutory or inherent authority. Alden Fletcher looks to the historical record to suggest Roosevelt’s proclamation was relying on ambiguous statutes that provided for executive power to declare emergencies or take emergency action.

Fletcher finds that even as Roosevelt acted independently to issue an emergency declaration, his administration recognized that such a declaration could be regulated by Congress or reviewed by the courts. Indeed, Fletcher finds historical memos, papers, and briefings showing that the theories advanced by Roosevelt’s Justice Department implicitly accepted a flexible doctrine in part because inter-branch checks were presumed to remain open. This historic approach stands in contrast to today’s Executive Branch practice—and Fletcher concludes that today’s practitioners would do well to remember it.

--Dan Ernst

Wednesday, September 28, 2022

Bibliography of the History of International Law

[We recently learned of the Bibliography of the History of International Law, edited by Randall Lesaffer of the Tilburg Law School.  DRE]

The Bibliography of the History of International Law is a current bibliography of primary sources and secondary works on the history of international law. The Bibliography is constantly expanded and updated on a 3-monthly basis (on the first Monday of January, April, July and October).

On this site, the Bibliography is available in a PDF-file, which is an alphabetical list by author. There is also an Endnote version, which can be obtained via the download link below.

The Endnote version is searchable through ‘keywords’. For each item there are at least three keywords, one for the period, one for the continent and one for subject matter. The keyword ‘source’ indicates that it is a primary source; ‘sources’ indicates that the subject matter is sources of international law. When a publication covers more than two periods, it is classified as ‘all ages’; for more than two continents it is classified as ‘global’.

The Bibliography considers all writings on international law, which pre-date 1919, as primary sources. So the first edition of Oppenheim’s International Law (1905) is listed as a primary source, but the 3rd and later editions, which are dated after 1919, are not included. The Bibliography will thus include as many doctrinal writings on international law, written before 1919, as possible. For publications that are dated from 1919 or later, only historical source editions or scholarly works are included.

Tomlins Reviews Novak's "New Democracy"

Christopher Tomlins, Berkeley Law, has published the review essay The State Before The State: A Critique of New Democracy: The Creation of the Modern American State, by William J. Novak, in the (gated) American Journal of Legal History:

This essay is a critical appraisal of William Novak’s New Democracy, published in March 2022. A sequel to The People’s Welfare, published in 1996, New Democracy continues Novak’s revisionist account of American state building in the nineteenth and twentieth centuries. In particular, the book draws attention to the years between the American Civil War and the onset of the Great Depression as the formative period of the American administrative–regulatory state, assailing a historiography that has credited the epoch of the New Deal as the definitive creative moment of the modern American state. Assessing New Democracy’s evidence and arguments, the essay finds that Novak’s book makes an important contribution to the intellectual history of state advocacy, but fails to offer definitive empirical measures for its central claim that the New Deal origin of the modern American state is a myth. Examining the philosophy of history that lies beneath New Democracy’s arguments, the essay holds that Novak’s claim that history is irreversibly linear markedly constricts the interpretive possibilities open to him and to those who may follow his lead.
--Dan Ernst

Tuesday, September 27, 2022

Rosenbaum on Segregation and the University of Tennesee Law Faculty

Briana Rosenbaum, University of Tennessee College of Law, has posted Deflect, Delay, Deny: A Case Study of Segregation by Law School Faculty, which is forthcoming in the Tennessee Law Review:

Many histories of school desegregation litigation center on the natural protagonists, such as the lawyers and plaintiffs who fought the status quo. Little attention is paid to the role that individual faculty members played in the perpetuation of segregated legal education. When the antagonists in the historiographies do appear, it is usually as anonymous individuals and groups. Thus, “the Board of Regents” refused to change its policy and “the University” denied a person’s application.

But recently discovered and rarely accessed historic documents provide proof of the direct role that some law school faculty members played in the perpetuation of segregation. For example, records at the University of Tennessee College of Law (“UT Law”) reveal that several UT Law faculty members helped to design and implement UT’s segregation strategy, including by acting as legal and policy advisers to state and university officials and by organizing and executing a concerted obfuscation plan to deny black applicants based not on their race, but on “neutral” technicalities. These faculty members are honored and memorialized still today, including through a named professorship and in portraits hanging on campus walls.

This Article seeks to excavate the truths of one law faculty’s segregationist history. To do this, it tells the story of Rudolph Valentino McKamey, a black citizen of Knoxville, TN who applied to UT Law in June 1948 but was denied. The Article reconstructs the facts of Mr. McKamey’s efforts to achieve his goal of becoming a lawyer at Tennessee’s flagship institution and, at the same time, the tactics that UT Law faculty used to obstruct that effort. This history of UT Law adds to the recent efforts of scholars to thoroughly document the roles of educational institutions in slavery and segregation.
--Dan Ernst

Kalman's "FDR"s Gambit"

Today is the publication date for Laura Kalman’s FDR's Gambit: The Court Packing Fight and the Rise of Legal Liberalism (Oxford University Press), a meticulously researched and engagingly written study that's bound to alter the role this iconic event plays in contemporary debates on reform of the U.S. Supreme Court

In the last past few years, liberals concerned about the prospect of long-term conservative dominance of the federal courts have revived an idea that famously crashed and burned in the 1930s: court packing. Not surprisingly, today's court packing advocates have run into a wall of opposition, with most citing the 1930s episode as one FDR's greatest failures. In early 1937, Roosevelt-fresh off a landslide victory-stunned the country when he proposed a plan to expand the size of the court by up to six justices. Today, that scheme is generally seen as an act of hubris-an instance where FDR failed to read Congress and the public properly.

In FDR's Gambit, the eminent legal historian Laura Kalman challenges the conventional wisdom by telling the story as it unfolded, without the distortions of hindsight. Indeed, while scholars have portrayed the Court Bill as the ill-fated brainchild of a hubristic President made overbold by victory, Kalman argues to the contrary that acumen, not arrogance, accounted for Roosevelt's actions. Far from erring tragically from the beginning, FDR came very close to getting additional justices, and the Court itself changed course. As Kalman shows, the episode suggests that proposing a change in the Court might give the justices reason to consider whether their present course is endangering the institution and its vital role in a liberal democracy.

Based on extensive archival research, FDR's Gambit offers a novel perspective on the long-term effects of court packing's failure, as a legacy that remains with us today. Whether or not it is the right remedy for today's troubles, Kalman argues that court packing does not deserve to be recalled as one fated for failure in 1937.

Endorsements by Linda Greenhouse, Sanford Levinson, Brad Snyder, Mark Tushnet, Barry Cushman, and G. Edward White after the jump.

Monday, September 26, 2022

Columbia Law School Legal History Workshop 2022-23

 The 2022-23 lineup for the Columbia Law School Legal History Workshop is now available:

FALL 2022

September 21st from 4:20pm - 6:00pm Workshop with Gary Gerstle (University of Cambridge, History). "The Rise of the Neoliberal Order"  Co-sponsored with the Law & Econ Workshop and the Center of Political Economy.  Location: Case Lounge (Room 701), Jerome Greene Hall, 435 W. 116th Street NY NY.

September 28th from 4:20pm - 6:00pm Workshop with Craig Green (Temple, Law & History). "A Constitutional History of Territory, Statehood, and Nation-Building." Comment by Gillian Metzger (Columbia, Law). Location:  JGH 807, Jerome Greene Hall, 435 W. 116th Street NY NY.

October 19th from 4:20pm - 6:00pm Workshop with Jose E. Argueta Funes (Columbia, Law & History). "The Common Law Goes to Hawai’i: Customary Order, Legislation, and the Meaning of Property Reform" Comment by Shyam Balganesh (Columbia, Law). Location: JGH 807 Jerome Greene Hall, 435 W. 116th Street NY NY.

November 15th from 4:20pm - 6:00pm Workshop with Helen Kinsella. (Minnesota, Political Science and Law). "No Comfort in the Historical Context”: US-Native Wars and Unlawful Combatancy." Commentor TBD


Feburary 8th from 4:20pm - 6:00pm  Workshop with Jungwon Kim (Columbia, Legal History). "Who Triggered My Death: Suicide and Punishment in Early Modern Korea" Comment by Pablo Piccato (Columbia, History).

March 22nd from 4:20pm -6:00pm  Workshop with Kunal Parker. (U Miami, History). "The Turn to Process: Legal, Political, and Economic Thought in America, 1870-1970" Commentor Alma Steingart (Columbia, History)

April 12th from 4:20pm - 6:00pm  Workshop with Maria Adele Carrai (NYU, History). "The Human Frontier: The Chinese Overseas and the Making of Modern China" Commentator: Madeleine Zelin (Columbia, History).

More information is available here.

-- Karen Tani

Rosenberg's "Rise of Mass Advertising"

Anat Rosenberg’s The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity has been published by Oxford University Press. From the website:

The Rise of Mass Advertising is a first cultural legal history of advertising in Britain, tracing the rise of mass advertising c.1840-1914 and its legal shaping. The emergence of this new system disrupted the perceived foundations of modernity. The idea that culture was organized by identifiable fields of knowledge, experience, and authority came under strain as advertisers claimed to share values with the era's most prominent fields, including news, art, science, and religiously inflected morality. While cultural boundaries grew blurry, the assumption that the world was becoming progressively disenchanted was undermined, as enchanted experiences multiplied with the transformation of everyday environments by advertising. Magical thinking, a dwelling in mysteries, searches for transfiguration, affective connection between humans and things, and powerful fantasy disrupted assumptions that the capitalist economy was a victory of reason.

The Rise of Mass Advertising examines how contemporaries came to terms with the disruptive impact by mobilizing legal processes, powers, and concepts. Law was implicated in performing boundary work that preserved the modern sense of field distinctions. Advertising's cultural meanings and its organization were shaped dialectically vis-à-vis other fields in a process that mainstreamed and legitimized it with legal means, but also construed it as an inferior simulation of the values of a progressive modernity, exhibiting epistemological shortfalls and aesthetic compromises that marked it apart from adjacent fields. The dual treatment meanwhile disavowed the central role of enchantment, in what amounted to a normative enterprise of disenchantment. One of the ironies of this enterprise was that it ultimately drove professional advertisers to embrace enchantment as their peculiar expertise.

The analysis draws on an extensive archive that bridges disciplinary divides. It offers a novel methodological approach to the study of advertising, which brings together the history of capitalism, the history of knowledge, and the history of modern disenchantment, and yields a new account of advertising's significance for modernity.

Review copies can be obtained by filling out this form or emailing This code: AAFLYG6 provides a 30% discount on the OUP website.

Michigan Supreme Court Historical Society Seeks Executive Director

[We have the following announcement of an "immediate job opening":  Executive Director of the Michigan Supreme Court Historical Society.  H/t JLG.  DRE]

The Michigan Supreme Court Historical Society is a nonprofit 501(c)(3) organization dedicated to preserving documents, records, and memorabilia relating to the Michigan Supreme Court and educating the public about the role and history of the Court. The Society produces publications, special events, and other projects to achieve its goals in preservation and education. The Society is led by a Board of Directors and has a membership that has varied between approximately 250 and 400 members. The headquarters of the Society is in the Hall of Justice in Lansing, Michigan. The Society is scrupulously nonpartisan and nonpolitical.

The executive director reports to the Board of Directors (typically through the President and the officers), serves as the on-site liaison to the Michigan Supreme Court justices and staff, and administers the day to day operations of the Society. Job duties involve project management and office management tasks and require skills in communication, organization, development, and marketing.

Project management duties (working in coordination with the Board and its Committees) include planning for two regular events per year (a membership luncheon and Advocates Guild Dinner) as well as other special events as needed including investiture ceremonies and portrait dedications at the Court; preparation and editing quarterly publication of a member newsletter and other society publications; social media (via Facebook and the like) and website updates; managing the historic portrait collection and arranging for restoration as needed; coordinating oral history interviews with former Michigan Supreme Court justices; selecting and supervising the interns working for the Society, serving as liaison with the Learning Center at the Hall of Justice, and new Society initiatives.

Office management duties include preparing and tracking the annual budget; bookkeeping and paying bills; data entry and tracking membership; processing donations; fundraising via payment reminders and acknowledgements; filing; scheduling meetings of the Board and its committees and arranging for catering and parking; and correspondence via memorandum, letter and email.

The ideal candidate will be familiar with the bench and bar of Michigan, have an interest in law and history, and a background in a complementary field such as communications, education, law, or development. Undergraduate and advanced degrees will be looked on favorably. Experience with nonprofit organizations is a plus. The ability to work collaboratively with the Board as well as independently is essential, as are initiative and enthusiasm. Supervisory skill with respect to the interns employed by the Society is also required. Writing skills and the ability to plan and manage a budget are essential, as are computer skills with Word, Word Press, budgeting software and the like.   

Presence at the Society’s office at the Hall of Justice is required two to three days a week to receive mail; inspect the portrait collection; host meetings; liaison with the Learning Center; and perform other duties. Remote work is otherwise discretionary. An average of a 40 hour week is expected but there is flexibility as to when the work is performed. Limited travel is involved for events in Michigan. Professional development through relevant group membership is encouraged and the Society reimburses expenses for an annual conference.

The salary range for this position (depending on the skills and experience of the candidate) is $50,000 to $60,000 annually. Parking is paid by the Society but there are no additional benefits.

Please submit a letter of interest, resume and list of three professional references to the Society President Carl Herstein at

Saturday, September 24, 2022

Weekend Roundup

  • Columbia University has announced a new Center for Political Economy. The faculty co-directors include scholars with interests in law, policy, and history. They are Kate Andrias, Ira Katznelson, Suresh Naidu, and Katharina Pistor.
  • Over at the Law & Political Economy Blog: a symposium on Elizabeth Popp Berman's Thinking Like an Economist. The post by historian Landon Storrs may be of particular interest.
  • A video of the Constitution Day chat between Kermit Roosevelt III and John Q. Barrett for the FDR Library is here.
  • The National Constitution Center has posted a podcast of its Constitution Day discussion of originalism with Emily Bazelon, Rich Lowry, Steven Mazie, Ilan Wurman, and host Jeffrey Rosen.
  • My Twitter followers posted some helpful responses to my request for their "preferred app for taking archive pics on [one's] phone & converting to PDFs." [KMT]
  • Tributes and remembrances continue to pour in for the late David Lieberman. Read them here and, if you knew him, post your own.
  • The School of Nursing at Emory University has launched a Center for Healthcare History and Policy. Historian Kylie Smith directs it.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 23, 2022

Smith on the Independent State Legislature Doctrine

Hayward H. Smith has published Revisiting the History of the Independent State Legislature
in the St. Mary's Law Journal 53 (2022): 445-582.  From the introduction:

In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this Article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” during the nineteenth century (before it was abandoned in the twentieth century).

This Article debunks the Substance/Procedure Thesis. Previously unreviewed historical evidence, including that arising from a review of the 1776 drafting history of the predecessor language of Article V of the Articles of Confederation, confirms that the Founding generation understood that “legislatures” would be subject to substantive state constitutional restrictions as well as constitutionally-mandated lawmaking procedures. The evidence shows that the Framers of the Elector Appointment and Elections Clauses—including in particular John Dickinson and James Madison—expected that state constitutions would impose substantive limitations on “legislatures.” The evidence also demonstrates that the Framers’ subjective expectations were shared by other members of the Founding generation. State constitutions adopted in the years immediately following the Founding contained substantive restrictions on election law that, although they did not explicitly refer to federal elections (as did the Delaware constitution of 1792), were understood to apply to all elections, including federal elections.

This Article also debunks the Prevailing View Thesis. It cannot be sustained on any objective view of the evidence. A review of every state constitution adopted during the 1800s reveals that both explicit and non- explicit limitations on “legislatures” were widespread before, during, and after the Civil War. On the other hand, apart from the House of Representatives’ contested election case of Baldwin v. Trowbridge, the doctrine was little more than a lawyer argument episodically invoked in House contested election cases or state courts, without prevailing in either forum. Suggestions to the contrary are based on mischaracterizations of the cases
--Dan Ernst

Dunn on the First All-Female Appellate Decision

Jeffrey D. Dunn has published The Legacy of Johnson v. Darr: The 1925 Decision of the All-Woman
Texas Supreme Court
in the St. Mary's Law Journal 53 (2022): 409-444:

The Texas Supreme Court case of Johnson v. Darr, the first case decided in any state by an all-woman appellate court, was a singular event in American legal history. On January 9, 1925, three women lawyers appointed by Texas Governor Pat Neff met at the state capitol in Austin to issue rulings solely on one case involving conflicting claims to several residential properties in El Paso. The special court was appointed because the three elected justices recused themselves over a conflict of interest involving one of the litigants, a popular fraternal organization called Woodmen of the World. The special court granted the writ of error to enable the appeal, heard oral arguments on Januay30, issued its decision on May 23, and disbanded on June 12 after denying a motion for rehearing. It would take fifty-seventy years, 1982, before another woman was appointed to the court, and ten more years, 1992, before the first woman was elected to the court. After 1925, and particularly after women became ubiquitous as attorneys during and after the 1980s, Johnson v. Darr was noted as a curious oddity and celebrated milestone in the history of women in the legal profession.
The following Article was presented at the annual meeting of the Texas State Historical Association on March 6, 2004, in Austin, Texas. The paper's objective is to examine the circumstances that led to Governor Neff's appointments, his motivations in appointing the women, and the legal legacy of the substantive result of the decision. The paper has been cited many times and with this publication is now more easily accessible. Except for a few edits, corrections, and the addition of new case citations in the appendix, the paper is published as it was presented in 2004.
-Dan Ernst

Thursday, September 22, 2022

Lee on Racial Justice and the APA

Sophia Z. Lee, University of Pennsylvania Carey Law School, has posted Racial Justice and Administrative Procedure, which is forthcoming in the Chicago-Kent Law Review:

This article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their mark on administrative law, including an underappreciated role in administrative law's participatory turn. Better understanding the interaction of racial justice and administrative procedure, I argue, would benefit historical and legal scholarship on race, administrative law, and their many underexplored yet consequential intersections.
–Dan Ernst

University of Pennsylvania Legal History Workshop 2022-23

On behalf of my law & history colleagues at the University of Pennsylvania, I'm pleased to announce the lineup for our 2022-23 Legal History Workshop:

October 20, 2022: Nurfadzilah Yahaya (Yale University)

November 17, 2022: George Aumoithe (Harvard University)

December 8, 2022: Logan Sawyer (University of Georgia)

January 19, 2023: Joanna Grisinger (Northwestern University)

February 2, 2023: Malick Ghachem (Massachusetts Institute of Technology)

March 30, 2023: Jessica Marglin (University of Southern California)

-- Karen Tani

Wednesday, September 21, 2022

Stanford Center for Law and History 2022-2023 Workshop

In our last "weekend roundup" we posted a link to the line-up for the Stanford Center for Law and History's 2022-23 workshop series. We're posting the information in full here:

  • Oct. 4, 2022- Bruno Lima, Max Planck Institute, The Untold Story of Abolitionism: Luiz Gama’s Freedom Claims in Brazil
  • Oct. 11, 2022- Adnan Zulfiqar, Rutgers Law and Stanford Humanities Center, The Caliph’s Jihad: Medieval Jurists, Duties, and the Search for Political Cohesion
  • Nov. 1, 2022- James Campbell, Stanford History Department, Race and Voting in Mississippi: A Brief History
  • Nov. 15, 2022 – Yuhe Faye Want, Stanford IDEAL Postdoc American Studies & Yale, Making an Exception: Racializing the Merchant Status and the Chinese Exclusion Law
  • Jan. 24, 2023 – Tanner Allread, Stanford Law, The Origins of Indigenous Constitutionalism: Choctow Law and Governance, 1826-1830
  • Feb. 7, 2023 – Judith Surkis, Rutgers History Department, The Intimate Life of International Law after Decolonization: Custody, Nationality, and Franco-Algerian Children
  • Feb. 21, 2023 – Doris Morgan Rueda, Stanford Center for Law & History, The Court of Desert Devil’s Island: Disciplinary Boards and Juvenile Justice within Fort Grant State Industrial School
  • April 11, 2023 – Gina Dent, UC Santa Cruz Feminist Studies Department, Prison as a Border: Punishment, Visuality, History 
  • April 25, 2023 – Mohammed Fadel, University of Toronto Law, Khalil’s Restatement (mukhtaṣar), the Rule of Recognition, and the Consolidation of the Maliki School of Law in the 14th Century
  • May 9, 2023 – K-Sue Park, Georgetown Law, Property and Sovereignty in America: A History of Title Registries and Jurisdictional Power

More information is available here.

-- Karen Tani

Honorary Fellows of the ASLH

The Honors Committee of the American Society for Legal History solicits nominations of senior scholars for consideration for election as Honorary Fellows of the Society.  Election as Honorary Fellow is the highest honor the Society can confer.  It recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others.  Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.  The Society seeks to recognize scholars who are not simply distinguished in their fields, but who also have given back to the discipline and made their fields stronger by creating communities of scholars and scholarship and by helping other (often younger) scholars to stand on their shoulders.  In other words, scholars who are as committed to building a future for their fields as they are to studying the past.  Commensurate with the growing international reach of the Society, we seek nominations of senior scholars who, collectively, similarly encompass the wide scope of scholarship in legal history.

Nominations should be submitted to Bruce H. Mann, chair of the Honors Committee, by email ( before December 1, 2022.  Each nomination should include a statement of why the nominee merits election.  Statements should address the nominee’s scholarly distinction and their citizenship in the field.  A list of current and past honorary fellows is [here].

--Dan Ernst

Tuesday, September 20, 2022

Three PhD Candidates in Legal History

[We have the following announcement from Tilburg University, via IAMEXPAT.  DRE.)

The Department of Public Law and Governance (PLG) is looking for 3 PhD Candidates who will be working within the project ‘Causal Pattern Analysis of Economic Sovereignty’ (CaPANES), which is funded by the European Research Council (ERC, ERC Consolidator Grant 2021, nr 101044356). PLG is a large, diverse and interdisciplinary department, home to nearly 100 academic staff and a range of legal and social science disciplines. You will develop and grow in research, both individually and as part of a team of ambitious scholars.

As PhD Candidate in legal history, you will analyze the historical use of sovereignty concepts in cities of commerce. The CaPANES project hypothesizes that in the early modern period cities of commerce, even within states, had foreign relations of their own and made strategic use of legal terms that defined their economic sovereignty. The CaPANES project pursues legal-historical analysis of both the domestic context of cities of commerce and of their interactions with other cities and states. The CaPANES combines qualitative and quantitative methods (social network analysis, modelling), and aims to yield conclusions that are relevant also for discussions on present-day economic sovereignty. The PhD Candidates will analyze the law, institutions and correspondence of six cities of commerce (Florence, Toulouse, Rouen, Bruges, Southampton and Lübeck). The first PhD position is concerned with Bruges and Southampton (c. 1400-c. 1520), the second PhD position with Rouen and Lübeck (c. 1450-c. 1620) and the third one with Florence and Toulouse (c. 1400-c. 1550). 20% of the appointment may be dedicated to teaching and/or administration.

Monday, September 19, 2022

Ehrlich at Max Planck

The Max Planck Institute for Legal History and Legal Theory is hosting a conference on Eugen Ehrlich

100 years after his death, Eugen Ehrlich is perhaps better known than he was then. Today, he is considered a pioneer of legal pluralism, the father of the sociology of law and the founder of the free law movement. Of course, he was no stranger to the world even during his lifetime. But he taught and worked mainly on the fringes of the Habsburg Empire in the Bucovina until World War I drove him from there. The conference on 29 and 30 September 2022 will be devoted to this enigmatic and original figure of the early 20th century in four panels (1.) on Eugen Ehrlich and his historical contexts, (2.) on the reception of Eugen Ehrlich, (3.) on Eugen Ehrlich as a jurist and (4.) on his relevance today.
–Dan Ernst

Saturday, September 17, 2022

Weekend Roundup

  • The schedule for the Stanford Center for Law and History 2022-2023 Workshop is here.
  • "As [first-year law students at the University of Alberta] walk on a floor covered with blankets at the old powwow grounds of Maskêkosihk (Enoch Cree Nation) — while facilitators recount the Canadian government’s progressive seizure of Indigenous land over hundreds of years — the blankets are randomly removed.”  More.  
  • The Museum of Durham History has honored John Hope Franklin by naming a grove in a Durham's Central park in his honor. (Duke Today). 
  • Charlie Savage writes on the OLC war powers memos that the Knight First Amendment Institute at Columbia University obtained through a Freedom of Information Act lawsuit.  “They open a window into how executive branch lawyers can expand White House power, allowing presidents to feel free to act in ways Congress sought to constrain” (NYT).
  •  Law & Society Association has issued its CFP for its next annual meeting, June 1-4, 2023, in San Juan, Puerto Rico.
  • ICYMI: Civil rights history in Salem, Oregon (Salem Reporter).  An essay on the history for the Fifteenth Amendment (History).  Confronting history, Congress studies addition of lynching sites to national park system (Florida Phoenix).  Vikram David Amar and Jason Mazzone respond to Erwin Chemerinsky on originalism (Verdict). "The Arkansas Tech University Department of History and Political Science will host a Constitution Day observance as part of ATU’s football pre-game tailgating activities on Saturday, Sept. 17" (ATU).  
  • Update: Scott Gerber on Bruen's "footnote six" (The Hill).  At noon on Monday, Keith Whittington will speak on “Freedom of Thought and the Struggle to End Slavery” at noon at Adrian College (Daily Telegram)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 16, 2022

Mehrotra on "The Missing U.S. VAT"

Ajay K. Mehrotra, Northwestern Pritzker School of Law and the American Bar Foundation, has posted The Missing U.S. Vat: Economic Inequality, American Fiscal Exceptionalism, and the Historical U.S. Resistance to National Consumption Taxes, which is forthcoming as 117 Northwestern University Law Review 151 (2022):

Since the 1970s, economic inequality has soared dramatically across the globe and particularly in the United States. In that time, one of the obstacles of using fiscal policy to address inequality has been the growing myth of the “overtaxed American”—the misguided notion that U.S. taxpayers pay more in taxes than residents of other advanced, industrialized countries. This myth has persisted, in part, because of the peculiar and distinctive nature of the fractured American fiscal and social welfare state. Even a cursory review of comparative tax data shows that the United States, by most measures, is a low-tax country compared to other affluent nations. One reason for this shortfall is the missing U.S. value-added tax (VAT).

Unlike the United States, other developed countries fund robust social spending through a balanced mix of levies, including by relying on broad-based national consumption taxes such as a VAT, which produces a tremendous amount of government revenue. By contrast, the United States has historically rejected comprehensive national consumption taxes, suggesting something distinctive about American fiscal policy. This American fiscal exceptionalism leads to a series of important research questions that may help us understand the relationship among fiscal policy, social welfare spending, and economic inequality: Why is the United States such an outlier in global comparisons of national taxes? Why have Americans historically resisted broad-based national consumption taxes of any kind? Simply put, why is there no U.S. VAT?

This Essay begins to address these fundamental questions by, first, synthesizing the existing literature to provide several stylized facts about global economic inequality and the particular concentration of wealth in the United States. Second, the Essay explores the distinctive and peculiar nature of the modern American fiscal and social welfare state, illustrating how the U.S. reliance on direct and progressive taxes and indirect and stealth social welfare spending may be perpetuating the myth of the overtaxed American. Finally, the essay identifies three key historical time periods when the United States seriously considered, but ultimately rejected, a broad-based national consumption tax. This Essay focuses mainly on the first period of the early 1920s, when post-World War I historical conditions provided tax experts, lawmakers, and social groups an opportunity to consider the adoption of a wide-ranging national consumption tax. The Essay concludes with some reflections on how the missing U.S. VAT may inform future tax reform and attempts to address economic inequality.

--Dan Ernst

Thursday, September 15, 2022

Sklansky on Slavery and the Hearsay Rule

David Alan Sklansky, Stanford Law School, has posted The Neglected Origins of the Hearsay Rule in American Slavery: Recovering Queen v. Hepburn, which is forthcoming in the Supreme Court Review:

The American hearsay rule took its modern form in Queen v. Hepburn, an 1813 decision by the United States Supreme Court that kept a woman and her daughter enslaved by blocking evidence that one of their ancestors had been free. More than any other decision, Queen v. Hepburn transformed the hearsay doctrine from a flexible preference for live testimony into a rigid rule of evidentiary exclusion. It also buttressed the institution of slavery by closing off one of the few legal avenues through which people in bondage could seek their freedom. It is the most important hearsay case in American history, but most law students never learn about it, and most evidence instructors are unfamiliar with it.

This article traces the background of Queen v. Hepburn, explains how the Supreme Court decided the case, and explores its momentous ramifications. It also discusses how and why the case should be taught in American law schools. Lawyers should know the full background of the rule that, more than any other, distinguishes the law of evidence in the United States from the procedures followed in almost every other liberal democracy. They should understand the role that the ban on hearsay evidence played in supporting American slavery and, conversely, the role that American slavery played in the development of the hearsay rule.
--Dan Ernst

Wednesday, September 14, 2022

Podcast: Dayton on Abortion in 18th-Century New England

Cornelia Dayton, University of Connecticut, is interviewed on Kelley Therese Pollock's Unsung History podcast about Abortion in 18th Century New England:

In 1742, in Pomfret, Connecticut, 19-year-old Sarah Grosvenor discovered she was pregnant, the result of a liaison with 27-year-old Amasa Sessions. Instead of marrying Sarah, Amasa provided her with a physician-prescribed abortifacient, what the youth of Pomfret called “taking the trade." When that didn’t work to end the pregnancy, the physician attempted a manual abortion, which led to Sarah’s death. Three years later, the physician was tried for “highhanded Misdemeanour." The surviving trial documentation gives us an unusually detailed look into the reproductive lives of Connecticut youths in the mid-18th Century.

Joining me in this episode to help us learn more about the Sarah Grosvenor case and its historical context is Dr. Cornelia H. Dayton, Professor of History at the University of Connecticut and author of the 1991 article, “Taking the Trade: Abortion and Gender Relations in an Eighteenth-Century New England Village,” in The William and Mary Quarterly, vol. 48, no. 1, 1991, pp. 19–49, and co-creator of the Taking the Trade website.
--Dan Ernst

Tuesday, September 13, 2022

Ghosh on Haitian and Cuban Asylum-Seekers in the '90s

Smita Ghosh, Appellate Counsel, Constitutional Accountability Center, and a former LHB Associate Blogger, has published Border Games in the Michigan Journal of Law and Society:

Immigration prisons have become central to immigration law enforcement. Abolishing them is central to immigration reform. But abolition may have unexpected consequences, especially for the large—and growing—portion of asylum-seekers who are confined after a border arrest. Ending or limiting border detention may encourage the government to exclude asylum-seekers altogether.

This Article illustrates this dynamic using archival records. It investigates official responses to the arrival of Haitian and Cuban asylum-seekers in the 1980s, a founding moment in the history of immigrant detention. During these perceived crises, officials responded by detaining asylum-seekers, planting the seeds for today’s system of mass immigrant incarceration. Officials also developed new ways to bar asylum-seekers from the country in the first place. These exclusionary tactics complemented the government’s detention efforts: they were cheaper and more effective than detention. Even after the 1980s, detention and exclusion—the two faces of sovereignty—travel side-by-side. They are time-tested and deeply related ways to control immigration.

What should we take from this history? This Article explains why courts, lawmakers, and reformers must turn their attention to immigration enforcement on both sides of the border. In addition to abolishing immigration prisons, policymakers and reformers should attend to the understudied exclusionary policies that complement imprisonment. Considering detention and exclusion together makes clear that abolition is an important, but incomplete, solution.
–Dan Ernst

Monday, September 12, 2022

David Lieberman

We have just learned the very sad--and shocking--news that David Lieberman has died.  We have the following report from Christopher L. Tomlins:

David Lieberman
I am deeply saddened to report that our colleague and friend, David Lieberman died in a hiking accident in Lassen, California, this past weekend.  David joined the Berkeley Law faculty in 1984, where he was the James W. and Isabel Coffroth Professor of Jurisprudence.  He was a wonderful colleague and teacher, an eminent historian in the Berkeley tradition, and one of the wisest voices in the JSP Program, the Law School, and the wider campus. David suffered a serious bicycle accident several years ago, from which he managed to recover in a show of indomitable good spirits that was an example to all of us. He took emeritus status on July 1, 2022.  We will miss him terribly.
Professor Lieberman’s webpage at Berkeley Law is here.  He  was the author of The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (1989) and served on the Board of Directors of the American Society for Legal History from 2010 to 2013.

--Dan Ernst

Roosevelt and Barrett on Constitution Day at the FDR Library

The Franklin D. Roosevelt Presidential Library and Museum presents a Constitution Day program, "Equality and the Constitution: A Conversation and Book Signing with Kermit Roosevelt III and John Q. Barrett" at 2:00 p.m. on Saturday, September 17, 2022. St. John’s University law professor and Library Trustee John Q. Barrett and University of Pennsylvania Professor of Constitutional Law Kermit Roosevelt III will discuss how the "standard story" of the origin and development of American values has helped -- or hindered -- the Nation's journey towards a more universal equality for all Americans. Following the program, Roosevelt will sign copies of his new book, The Nation That Never Was: Reconstructing America’s Story.

It will be both in-person (local health metrics permitting) at the Henry A. Wallace Center at the FDR Presidential Library and Home and streamed live to the official FDR Library social media accounts: YouTube, Twitter and Facebook.

--Dan Ernst

Sunday, September 11, 2022

Portraits in Congressional Oversight

The Levin Center for Oversight and Democracy at the Wayne State University School of Law has announced the publication of Joint Inquiry into Intelligence Issues Related to the September 11, 2001 Terrorist Attack, which appears in Portraits in Oversight, a series of "short profiles of historic Congressional oversight investigations that have shaped our understanding of the American story. " Here's the complete list:

1: Congress’ First Investigation: General St. Clair’s Defeat

2: Joint Committee on the Conduct of the Civil War

3: Congress Investigates KKK Violence During Reconstruction

4: Thomas Walsh and the Teapot Dome Investigation

5: Ferdinand Pecora and the 1929 Stock Market Crash

6: Harry Truman and the Investigation of Waste, Fraud, and Abuse in World War II

7: Joe McCarthy’s Oversight Abuses

8: Abraham Ribicoff and the Traffic Safety Hearings

9: The Watergate Hearings

10: Frank Church and the Church Committee

11: Representative John Dingell

12: The Iran Contra Affair

13: Senator Tom Coburn

14: Investigation into 9/11 Terrorist Attack

15: Congress and the Enron Scandal

16: Representative Elijah Cummings

--Dan Ernst

Saturday, September 10, 2022

Weekend Roundup

  • The latest issue of the Michigan Journal of Law and Society includes two book reviews of legal histories: James Kloppenberg reviews William Novak's New Democracy and Andrew Lanham reviews Linda Colley's  The Gun, the Ship, and the Pen.
  • Judge M. Margaret McKeown discusses her new book, Citizen Justice: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion in a podcast (ABAJ).
  • Yale’s Beinecke Library “is delighted to announce that, as of February 2021, the Walter O. Evans Collection of Frederick Douglass and Douglass Family Papers has been processed and digitized and is now accessible online to scholars, students, and the public."  (More.)
  • "Historical documents offer glimpses of the Underground Railroad in Chicago" (Sun Times).
  • ICYMI: Kenneth Mack and Manisha Sinha are quoted in this story on the historians who advised President Biden (NPR).  Erwin Chemerinsky says that Even the Founders Didn’t Believe in Originalism (The Atlantic). Lauren Thompson says that the Supreme Court’s selective reading of US history ignored 19th-century women’s support for "voluntary motherhood" (The Conversation).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.