Wednesday, November 30, 2022

van den Meerssche's "World Bank's Lawyers"

Dimitri van den Meerssche has published The World Bank's Lawyers: The Life of International Law as Institutional Practice (Oxford University Press):

The World Bank's Lawyers
provides an original socio-legal account of the evolving institutional life of international law. Informed by oral archives, months of participant observation, interviews, legal memoranda, and documents obtained through freedom-of-information requests, it tells a previously untold story of the World Bank's legal department between 1983 and 2016. This is a story of people and the beliefs they have, the influence they seek, and the tools they employ. It is an account of the practices they cling to and how these practices gain traction, or how they fail to do so, in an international bureaucracy. Inspired by actor-network theory, relational sociologies of association, and performativity theory, this ethnographic exploration multiplies the matters of concern in our study of international law (and lawyering): the human and non-human, material and semantic, visible and evasive actants that tie together the fragile fabric of legality.

In tracing these threads, this book signals important changes in the conceptual repertoire and materiality of international legal practice, as liberal ideals were gradually displaced by managerial modes of evaluation. It reveals a world teeming with life—a space where professional postures and prototypes, aesthetic styles, and technical routines are woven together in law's shifting mode of existence. This history of international law as a contingent cultural technique enriches our understanding of the discipline's disenchantment and the displacement of its traditional tropes by unexpected and unruly actors. It thereby inspires new ways of critical thinking about international law's political pathways, promises, and pathologies, as its language is inscribed in ever-evolving rationalities of rule.

--Dan Ernst

Logan's "Ex Post Facto Clause"

Wayne A. Logan, Florida State University, has published The Ex Post Facto Clause: Its History and Role in a Punitive Society (Oxford University Press):

The Ex Post Facto Clause, one of the few civil liberty protections found in the body of the US Constitution, reflects the Framers' acute concern over the tendency of legislatures to enact burdensome retroactive laws targeting unpopular individuals. Over time, a broad array of Americans have invoked the protective cloak of the Clause, including Confederate sympathizers in the late 1860s; immigrants in the early 1900s; Communist Party members in the 1950s; and, since the 1990s, convicted sex offenders. Although the Supreme Court enforced the Clause with vigor during the first several decades of the nation's history, of late the justices have been less than zealous defenders of the security it was intended to provide. And, even more problematic, they have done so amid major changes in the nation's social, political, and institutional life that have made the protections of the Ex Post Facto Clause all the more important.

The Ex Post Facto Clause provides the first book-length examination of the history of the Clause and its potential for tempering the punitive impulses of modern American legislatures. Wayne A. Logan chronicles and critiques the evolving treatment of ex post facto claims by the Supreme Court, which has created a body of law that is both at odds with the Framers' intent and ill-suited to the unforgiving and harshly punitive nation that America has become. Drawing on Framing Era history, seminal Supreme Court decisions, and the global embrace of the values underlying the Ex Post Facto Clause, Logan provides a blueprint for how the Clause can play a reinvigorated and more robust role in guarding against the penal populism besetting modern American legislatures

--Dan Ernst

Tuesday, November 29, 2022

Stanford Center for Law and History Graduate Student Annual Conference & Paper Prize - Applications now open

[We are re-upping this announcement from October. Applications are now open! Please direct any questions to KMT]

The Stanford Center for Law and History will invite paper submissions from graduate students for its fifth annual conference, “Legal Histories of the Body and the State: Dobbs and the Legacies of Regulating Gender and Sex.” This conference seeks to bring together scholars who examine the intersectional legal histories of regulating and policing sex, gender, and reproduction. As attacks on gender and sexual equality are on the rise, advocates point towards history as justification for state-enforced heteronormativity and traditional gender roles. This conference addresses the court’s claim to diagnose Roe’s “faulty historical analysis” and invites attendees to examine the interwoven legal histories of gender, race, class, and sexuality that have shaped today’s sociolegal and political landscape. As women, migrants, LGBTQIA, and many more are left trying to navigate a post-Dobbs present, this conference aims to give us a better understanding of how past communities have challenged the law to guarantee greater equality for all.  This one-day conference will be held on Friday, May 5th, 2023, at Stanford and is cosponsored by the Stanford Humanities Center. This conference will include three panels and a book talk focused on Felicia Kornbluh’s forthcoming book, A Woman’s Life is a Human Life: My Mother, Our Neighbor, and the Journey from Reproductive Rights to Reproductive Justice. It will conclude with a keynote session featuring Professor Mary Zeigler of UC Davis Law who will present, “Dobbs v Jackson Women’s Health Organization and the Remaking of Constitutional Politics.”

Areas of possible, but certainly not exhaustive, legal-historical interest for the conference include:

    Reproductive Rights and Race
    Race, Gender,  and Access to Medical Care/Medical Decisions
    Reproductive Rights and Disability
    Rhetoric around Reproductive Rights
    Race, Law, and Gender
    Barriers to Reproductive Autonomy
    Race and Eugenics
    Law and Contraception

More information is available here.

-- Karen Tani

Lowe on Ruffin and Hartog

Jessica Lowe, University of Virginia School of Law, has posted"Our Experiences Make Us Who We Are": Lessons from Thomas Ruffin and Dirk Hartog:

It was 1804, and Thomas Ruffin, future Chief Justice of the North Carolina Supreme Court, was having doubts about slavery. Ruffin was a young student at what would become Princeton University, experiencing New Jersey's debate over gradual emancipation; looking for help, he wrote home to his father in Virginia. The elder Ruffin was a recent convert to Methodism, but despite the anti-slavery leanings of that sect, Sterling Ruffin took a hard line: he advised his son that, whatever moral qualms there might be, southern slavery needed to be based on “servile fear” for it to operate. That stark advice would echo twenty-five years later in Judge Ruffin’s notorious opinion in the slave law case of State v. Mann. This essay, originally prepared for the retirement conference of legal historian Hendrik Hartog, delves into the striking similarities between Sterling Ruffin’s letter and Judge Ruffin’s opinion, meditating on the other options available to Ruffin and the importance of the choices we make when our worldviews are threatened. A version will be published in a forthcoming volume edited by Kenneth Mack and Jacob Cogan.
--Dan Ernst

Monday, November 28, 2022

Lara, Roberts, Harris named ASLH Honorary Fellows

Another announcement from this year's meeting of the American Society for Legal History: the naming of three new honorary fellows. From the announcement: "Election as an Honorary Fellow of the American Society for Legal History 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 honorees are Silvia Lara (State University of Campinas), Richard Roberts (Stanford University), and Ron Harris (Tel Aviv University). Citations after the jump:

Burnham-Nobles Digital Archive of Racial Homicides

 [We recently learned of the following announcement from September 27, 2022  DRE.  H/t: RG]

Today, the Civil Rights and Restorative Justice Project (CRRJ) at Northeastern University School of Law released the Burnham-Nobles Digital Archive, one of the most comprehensive digital archives of racial homicides collected to date. The Archive brings together evidence demonstrating the extensive scale and scope of killings between 1930 and 1954 in the Jim Crow South. Many of the 1,000 cases of anti-Black killings were mishandled by local police and prosecutors or went unreported until investigated by Northeastern students in law and journalism and their faculty. Built on open-source architecture, the Archive offers users the opportunity to learn about how violence affected people’s lives, defined legal rights and shaped politics during the Jim Crow era.

Saturday, November 26, 2022

Weekend Roundup

  • "Immigration Restriction Then and Now: Re-Examining the Impact and Legacy of the 1921 and 1924 Immigration Acts," "an OAH Future of the Past conversation of the contributors to the Journal of American History special issue on immigration (September 2022), is now available on YouTube.  The Hosts are the Co-editors Maddalena Marinari, Gustavus Adolphus College, and Erika Lee, University of Minnesota.  The guests are Ashley Johnson Bavery, Eastern Michigan University; Kevin Kenny, New York University; Carl D. Lindskoog, Raritan Valley Community College; Mireya Loza, Georgetown University; and Yael Schacher, Refugees International.
  • ICYMI: Maryland Attorney General Brian Frosh "nullifies 22 old legal opinions that once helped state agencies uphold segregation and bans on interracial marriage" (WaPo).  Another report of the new findings on Geoffrey Chaucer and Cecily Chaumpaigne (History Today).

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

Friday, November 25, 2022

Surrency Prize to Marglin

Continuing our recap of recent ASLH honorees, we turn now to the winner of the Surrency Article Prize, awarded annually "for the best article published in the Society’s journal, the Law and History Review, in the previous year." That winner is Jessica Marglin (University of Southern California), for her article “Extraterritoriality and Legal Belonging in the Nineteenth-Century Mediterranean,” Law and History Review 39:4 (2021): 679-706. The citation: 

Jessica Marglin’s “Extraterritoriality and Legal Belonging in the Nineteenth- Century Mediterranean” transforms historical understandings of international law, state membership, empire building, and modernity. The article upends a simple narrative that nationality law evolved wholly within national boundaries. Instead, Marglin shows that “the challenges and opportunities presented by extraterritoriality” – specifically, Middle Eastern states’ need to assert jurisdiction over their subjects and Western Empires’ desire to intervene in local affairs – shaped the evolution of legal membership that was fragmentary and differentiated among classes of people. This extraordinary article features rigorous research in multilingual archives, deep thought, careful analysis, and compelling stories. Marglin presents two case studies: the legislation of legal belonging in Tunisia, the Ottoman Empire, and Morocco and the evolution of belonging in colonial North Africa. She introduces readers to a widow living in Istanbul who sought the resolution of an estate under Greek law, Algerians living in Tripolitania and Algeria who appealed to French consular authority, and other creative legal entrepreneurs. Marglin excavates the legal entanglements of consular officers, foreign affairs ministers, and judges respecting the status of individuals living within the jurisdiction of one state while claiming the protection of another. Offering new insight into the nature and historical evolution of legal membership in the Middle East, Marglin demonstrates the exciting potential global legal history holds to illuminate trans-regional sources.

Congratulations to Professor Marglin, and thank you to the members of the prize committee, chaired by Deborah Dinner, for their service!

-- Karen Tani

Jane Burbank Global Legal History prize to Millett

Continuing our recap of the awards from this year's meeting of the ASLH, we turn to the Jane Burbank Global Legal History Article Prize, awarded annually "to the best article in regional, global, imperial, comparative, or transnational legal history published in the previous calendar year." This year's award went to Nathaniel Millett (Saint Louis University), for “Law, Lineage, Gender and the Lives of Enslaved Indigenous People on the Edge of the Nineteenth-Century Caribbean,” William & Mary Quarterly 78:4 (October) 2021, pp.687-720. The citation: 

Millett uses a remarkable documentary record to examine the unraveling of slavery in nineteenth century Belize. Plaintiffs who were generations removed from the initial place of enslavement used prohibitions against indigenous slavery by incorporating genealogical memories, racial ambiguity, geographical mobility, and legal loopholes to argue for their freedom.

Congratulations to Professor Millett, and thank you to the members of the prize committee, chaired by Michelle McKinley, for their service!

-- Karen Tani

Anne Fleming Article Prize to Lurtz and to Di Martino, Latham, & Vasta

Continuing our recap of the prizes announced at this year's meeting of the American Society for Legal History we turn today to the Anne Fleming Article Prize. As readers may remember, the late Anne Fleming was very special to us here at the blog (you can read our remembrance here). About the prize:

The Anne Fleming Article Prize is a joint prize of the the ASLH and the Business History Conference (BHC). It is awarded every other year to the author or authors of the best article published in the previous two years in either Law and History Review or Enterprise and Society on the relation of law and business/economy in any region or historical period.  
The Anne Fleming Article Prize is awarded on the recommendation of the editors of the Law and History Review (the official journal of ASLH) and Enterprise and Society (the official journal of Business History Conference).

This year's prize winners were Casey Marina Lurtz for “Codifying Credit: Everyday Contracting and the Spread of the Civil Code in Nineteenth-Century Mexico,” Law and History Review 39, no. 1 (2021): 97-133, and Paolo Di Martino, Mark Latham, and Michelangelo Vasta for “Bankruptcy Laws around Europe (1850-2015): Institutional Change and Institutional Features,” Enterprise & Society 21, no. 4 (2020): 936-990.

We thank the editors of the two journals, as well as all the colleagues who helped create this wonderful tribute to our friend Anne Fleming.  

-- Karen Tani

Thursday, November 24, 2022

Legal History in Tulane European and Civil Law Forum (2022)

Volume 37 of the Tulane European and Civil Law Forum, “Essays in Honor of Reinhard Zimmermann,” contains many essays of interest to legal historians.  Here is the TOC:

Opening Greetings

Reception in Real Time: Reinhard Zimmermann and the Influence of the German Law of Unjustified Enrichment in Scotland and South Africa
Daniel Visser

The Doctrinal Relationship Between the Public Records Doctrine and the Acquisitive Prescription of Immovables in Louisiana: Comparative Insights
Markus G. Puder

Civil-Law Systems, Judges, and the British Empire
John W. Cairns

Loss, Knowledge, and Prescription: Some Problems in Scots Law
David Johnston

English Common Law and the Ius Commune: The Contributions of an English Civilian
R. H. Helmholz

An Endless Web of Jurists for the Development of Comparative Legal History: John H. Wigmore, the Committee on Legal History of the AALS, and the Continental Legal History Series
Agustín Parise

Regulae Iuris and Legal Principles: Whence and Whither?
James Gordley 

 --Dan Ernst

Wednesday, November 23, 2022

Gerber to Lecture on the Origins of the Federal Judiciary at SCHS

On January 11, 2023, at 7:00 p.m. (ET) via Zoom, the Civics and American Democracy lecture series of the Supreme Court Historical Society continues with The Historical Origins of An Independent Federal Judiciary: A Lecture and Conversation with Professor Scott Gerber.  He is Professor of Law at Ohio Northern University and the author of A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press) and To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York University Press).

--Dan Ernst

Sutherland Prize to Brewer, Kamali

Continuing our recap of the prizes awarded at this year's meeting of the American Society for Legal History, we turn now to the Sutherland Article Prize, awarded annually "to the person or persons who wrote the best article on the legal history of Britain and/or the British Empire published in the previous year." 

This years co-winners were Holly Brewer (University of Maryland), for “Creating a Common Law of Slavery for England and its New World Empire,” Law and History Review 39, no 4 (November 2021): 765-834, and Elizabeth Papp Kamali (Harvard Law School), for “Tales of the Living Dead: Dealing with Doubt in Medieval English Law," Speculum 96, no. 2 (April 2021): 367-417. The citations:

Holly Brewer’s “Creating a Common Law of Slavery for England and its New World Empire,” is a provocative, ambitious, and deeply researched article, which offers a fundamentally revisionist account of the origins and evolution of the way in which the English common law came to allow human beings to be owned as property. Far from absent at home and merely tolerated abroad, slavery was, Brewer argues, embedded in the English common law for at least a century before the 1772 Somerset decision. Beginning with the efforts of the common law courts under Charles II to support a struggling Royal African Company by contriving a legal fiction by which people could be considered as “things” and thus owned and traded as goods, the article traces the lasting impact of these efforts into the eighteenth century and beyond. Even as later common law judges from John Holt to the Earl of Mansfield attempted to undo the precedent, the damage had been done, having embedded itself through subsequent Parliamentary statute and colonial law across the Atlantic, including in the legal regimes of the new United States. Brewer thus not only locates a place for slavery in the common law—long assumed, not least thanks to Mansfield’s famous ruling, to have resisted it—but inverts our usual understanding of slavery’s path through the law, following it from England into the colonial world rather than vice versa. This process, this article argues, had profound effects, inadvertently producing a “blunt and clumsy instrument” that allowed for both less nuanced and harsher regimes of slavery than developed in other European empires. As if this were not enough, Brewer along the way also offers perspective on a range of other key questions in British legal history, asking readers to reflect on issues such as the role judges play as instruments of policy, how religion and race shape legal argument and precedent, and the need for more complex and multifarious approaches to understanding how the common law itself evolves over time. 

Elizabeth Papp Kamali’s “Tales of the Living Dead: Dealing with Doubt in Medieval English Law,” is a remarkably erudite, creative, well-written, and original exploration of how medieval criminal and civil law dealt with the surprisingly complex problem of establishing proof of death in the absence of a body or corpse. Kamali takes what might seem at first glance to be a rather narrow concern and shows how the question raises an impressive range of thorny and profound issues about the nature of evidence and proof in the common and civil law. Kamali shows how this problem reached into a range of corners of the law, from homicide prosecutions to probate, along the way encountering conundrums such as how to deal with another kind of “living dead,” namely convicts who for one reason or another survived the gallows. The work not only engages felony law (criminal context) in common law but also similar quandaries in common law actions on property (private law context), Mort d’Ancestor and dower. Reading beyond the formation of substantive rules and norms, the article reveals rhetorical strategies in the law by mining scattered traces in the archival record, especially those of the Court of King’s Bench, alongside chronicles, ballads, and other “nonlegal” materials. Kamali’s work thus presents both a critical perspective on how medieval lawyers and litigants accommodated the absence of traditional evidence as well as a ready model for the tools and techniques legal historians might deploy when confronted with the very same problem.

Congratulations to Professor Brewer and Professor Kamali, and thank you to the members of the prize committee, chaired by Philip Stern, for their service!

-- Karen Tani

Penna and Meijering's "Sourcebook on Byzantine Law"

Daphne Penna and and Roos Meijering have published A Sourcebook on Byzantine Law: Illustrating Byzantine Law through the Sources (Brill).  

This is the first book in English providing a wide range of Byzantine legal sources. In six chapters, this book explains and illustrates Byzantine law through a selection of fundamental Byzantine legal sources, beginning with the sources before the time of Justinian, and extending up to AD 1453.
For all sources English translations are provided next to the original Greek (and Latin) text. In some cases, tables or other features are included that help further elucidate the source and illustrate its nature. The volume offers a clear yet detailed primer to Byzantine law, its sources, and its significance.

--Dan Ernst

Tuesday, November 22, 2022

Dudziak Digital Legal History Prize to Dorin for Corpus Synodalium

We have been recapping the awards announced at the recent meeting of the American Society for Legal History. Today we cover an award that is near and dear to our hearts here at LHB: the Mary L. Dudziak Digital Legal History Prize, "awarded annually to an outstanding digital legal history project."

This year's prize went to Rowan Dorin for Corpus Synodalium. The citation: 

Corpus Synodalium, created by Rowan Dorin, Assistant Professor of History at Stanford University, is a database-in-progress that includes 90 percent (approximately 1,400 texts) of the extant local ecclesiastical legislation issued across Latin Christendom from ca. 1215 - ca. 1400. It includes a mapping tool that offers a first-of-its-kind method for tracing change over time across an ecclesiastical geography. As Professor Sara McDougall explains, this database “is a vital resource in seeking to understand local church law, the legislative activity of bishops, as iterated throughout medieval Europe. Previously. . . trying to get at what local church law was in any one place in Medieval Europe, let alone compare it to other places, or try to track changes over time, was quite impossible. This matters because it is so useful to know what was actually happening ‘on the ground’ all over Europe as opposed to focusing only on the decrees issued by the papacy, if we want to know anything about the spread and implementation of any of these ideas and what all that meant for people in practice.” The committee applauds Dr. Dorin for the scholarly importance, creativity, and intellectual generosity of this marvelous digital legal history project.

Congratulations to Professor Dorin! And thank you to the members of the prize committee, chaired by David Tanenhaus, for their service.

-- Karen Tani

Bessler's "Death Penalty's Denial of Fundamental Human Rights"

The Death Penalty's Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm, by John Bessler, University of Baltimore, is due out next month from Cambridge University Press, in its series, ASIL Studies in International Legal Theory:

The Death Penalty's Denial of Fundamental Human Rights details how capital punishment violates universal human rights-to life; to be free from torture and other forms of cruelty; to be treated in a non-arbitrary, non-discriminatory manner; and to dignity. In tracing the evolution of the world's understanding of torture, which now absolutely prohibits physical and psychological torture, the book argues that an immutable characteristic of capital punishment-already outlawed in many countries and American states-is that it makes use of death threats. Mock executions and other credible death threats, in fact, have long been treated as torturous acts. When crime victims are threatened with death and are helpless to prevent their deaths, for example, courts routinely find such threats inflict psychological torture. With simulated executions and non-lethal corporal punishments already prohibited as torturous acts, death sentences and real executions, the book contends, must be classified as torturous acts, too.
Here is a post on the book in which Professor Bessler explains how Cesare Beccaria and other Enlightenment thinkers understood torture differently than we do today.  And here is an appearance by Professor Bessler on German TV during the recently concluded 8th World Congress Against the Death Penalty.  Finally, here is the book’s TOC:

1. The death penalty: from draconian legal codes to the enlightenment
2. The abolitionist movement: state practice, international law, and global progress
3. Death threats and the law of torture: the death penalty's inherently cruel and torturous characteristics
4. Human dignity and the law's evolution: prohibiting capital punishment through a jus cogens norm
--Dan Ernst

Monday, November 21, 2022

Cromwell Foundation Early Career Fellowships to Estess, Cervantes, Beaudreau, Berkowitz, Devlin

Continuing our recap of the awards announced at this year's meeting of the American Society for Legal History, we focus today on those given by the William Nelson Cromwell Foundation. This post covers the Cromwell Foundation Early Career Fellowships, which the Foundation awards to "support research and writing in American legal history by early-career scholars."

Here are the winning scholars, along with descriptions of their projects:

Jonah Estess is presently a PhD candidate in American History at American University. He is currently working on his dissertation entitled “Bank and State: Money, Law, and Moral Economy, 1775-1896.” Estess expects to receive his doctorate in 2024. Estess’ dissertation explores how the federal government’s monetary system of paper currency and coins was long steeped in conflict. Conflicts regarding U.S. currency and monetary policy related to the developing national character of the U.S., its political economy, market morality, and ultimately the meaning of democracy. Struggles and debates included those between farmers, merchants, investors, and the state, each with their own demands, needs, and interests. Professor Gautham Rao is Estess’ dissertation advisor. Rao, as the Executive Editor of Law and History Review, reads many manuscripts and comments that Estess’ work is highly innovative in both its approach and methodology, combining the innovative use of primary sources with an intense understanding of the complex economic, political, and cultural role of money, its use, production and meaning. The dissertation will provide a significant intervention into the existing literature by combining a cultural understanding of money from the ground-up as well as a high-level analysis of monetary policy and the state. Connected to this is the way in which Estess’ actors are both everyday people as well as a policy makers and state actors, functioning on a national and even international stage. This is a truly momentous and ambitious project. Estess intends to use Cromwell funding to write a specific chapter in his dissertation that will examine federal monetary reforms and the creation of the national banking system in the decade after the American Civil War. Specifically, the funds will be used to underwrite visits to a number of archives that are crucial to Estess’ work. 

Bobby Cervantes is a PhD candidate in American Studies at the University of Kansas. Cervantes’ dissertation is entitled “Las Colonias: The Housing of Poverty in Modern Americas.” The dissertation examines the development of rural and impoverished Mexican-American communities in Texas in the Post World War II period. These unincorporated towns or colonias are largely composed of substandard housing and lack a variety of even basic municipal utilities, such as water or electricity. The dissertation analyzes how these entities developed as a consequence of U.S. immigration policy, local Texas ordinances regarding the incorporation of cities, municipal regulation, and property law. More specifically, such towns grew out of a need by landowners for Mexican agricultural workers. Such low paid workers needed housing which was largely controlled by landowners who also exerted significant political power. This process of development was hastened by the termination of the U.S. Bracero (or “guest worker”) program in the 1950s. Colonias thus continued to expand and these now permanent residents increasingly became the victims of a variety of predatory land, leasing, and lending contracts. The dissertation in part examines such contracts, eviction proceedings, and the defenses raised. Moreover, residents of colonias were not passive and at various times organized and asserted significant agency to demand better provisions of utilities and amenities. This is far from a linear story of progressive improvement as global conditions and international treaties such as NAFTA continually erased or slowed residents’ ongoing struggles for better housing and living conditions. Ultimately, the dissertation will provide an important intervention on a little-known subject while situating such colonias into a broader framework about racialized poverty, “rural urbanism,” immigration, and property law. Cervantes will use Cromwell Funds to travel to Texas to conduct research regarding local housing deeds and lending contracts, as well as other documents.

Kimberly Beaudreau is a graduate student in American History at the University of Illinois in Chicago. She is currently working on her dissertation “Economic Migrants and the Decline of the American Refugee and Asylum System,1975-2000,” which examines the racialized development and genealogy of the category “economic migrant.” This is a crucial issue in U.S. immigration law as “economic migrants” as opposed to “political refugees” do not qualify for asylum in the U.S. Beaudreau will analyze how the Refugee Act of 1980 dramatically curtailed, rather than expanded, the granting of asylum during the last decades of the twentieth century. In part, the continuing contraction of ineligibility for asylum was accomplished through international treaties, congressional laws, and the rules and administrative action of various federal agencies. These measures disproportionately targeted poor, non-white border crossers from around the world and prevented most people from ever reaching US soil. Beaudreau’s project will make an especially important contribution in the field of immigration law and history by connecting the experiences of Southeast Asian, Haitian, and Central American refugees. Moreover, she puts into dialogue official state documents with oral histories of migrants as well as documents from a variety of immigrant and human rights organizations. Beaudreau will use Cromwell funding to conduct archival research in Washington, DC, and Maryland, specifically at the US Coast Guard Historian’s Office and USCIS History Office and Library.

Jared Berkowitz is a PhD Candidate in the Department of History at Brandeis University. His dissertation is entitled “Creature of Capitalism: A Legal History of Corporate Personhood in America, 1789-1890.” It explores the history of the complex development of corporate personhood and argues that corporate personhood at the turn of the nineteenth century was understood as endowing upon a corporation a certain limited type of artificial personhood rather than an actual legal person endowed with a variety of rights. More specifically, the project narrates how corporate personhood transformed in the 19 th century from a populist tactic designed to mitigate legislative corruption into a legal tool deployed against emerging government regulation. The dissertation will explore the contingent and often shifting meaning of corporate personhood in a range of legal, political, and social contexts including the establishment of the First National Bank, issues of personal jurisdiction, creditor rights, and a variety of tax cases. Following the Civil War, corporate personhood became increasingly concretized with courts endowing corporations with due process rights. Importantly for the project, Berkowitz uses a wide range of sources that have not been typically employed when examining the history of corporations or the history of capitalism. As one of his dissertation advisor’s states, Berkowitz’s dissertation has the potential to be enormously significant and offer the fullest and richest history of corporations to date. Berkowitz has completed his archival research and will use Cromwell funds to assist with living costs as he finishes writing his dissertation.

Donna Devlin is a PhD candidate in American History at the University of Nebraska-Lincoln. Her dissertation is entitled, “Women of the Great Plains and the “Disruption” of Neighborhoods: Challenging Sexual Violence and Coercion through Local Courts of Law in Kansas and Nebraska, 1870-1900, with a Segue to the Present.” Devlin is examining the role of rape and sexual violence in the context of the frontier societies of the Great Plain states. She argues that the tremendous difficulty in prosecuting such cases (when they are prosecuted at all) is one of continuity and provides a mechanism for creating and maintaining white male power while normalizing sexual violence. More specifically, the dissertation examines both law on the books as well as law on the ground. In doing so, she contextualizes sexual violence, political power, and women’s agency in bringing a variety of legal cases related to sexual violence. This is a highly innovative and creative project as studies about the history of sexual violence have concentrated either in the South or in urban areas. As such work is so new, Devlin’s primary sources include an intense scrutiny of local court records and other local material. This project will contribute significantly to women’s legal history as well as Western history. Cromwell funds will be used to travel to archives in Kansas and Nebraska.

Congratulations to all the fellowship recipients! And many thanks to the members of the fellowship subcommittee, chaired by Felice Batlan.

-- Karen Tani

Cromwell Article Prize to Clements

Continuing our recap of the awards announced at this year's meeting of the American Society for Legal History, we focus today on those given by the William Nelson Cromwell Foundation. This post covers the Cromwell Article Prize, "awarded annually to the best article in American legal history published in the preceding calendar year by an early career scholar."

On the recommendation of the subcommittee chaired by Laura Edwards, the Cromwell Article Prize went to Christopher Clements (Harvard University) for “‘There isn't no trouble at all if the state would just keep out’: Indigenous People and New York's Carceral State," Journal of American History 108 (September 2021): 296-319. The citation: 

In this deeply researched, gracefully written article, Christopher Clements explores the jurisdictional dynamics that resulted in the over-policing of the Akwesasne Mohawk Nation, located on the border between New York and Canada, in the twentieth century. While the title suggests that the focus is Native people and the carcel state, the analysis has much broader implications for understanding the evolving balance of power in the federal system and changing conceptions of sovereignty. Clements places Native people and their claims to sovereignty at the center of these issues, underscoring the continuing importance of federal Indian policies and Native assertions of sovereignty, while revealing the human cost of the transition from federal to state jurisdiction for the Akwesanse people.

Congratulations to Professor Clements, and thank you to the members of the article prize subcommittee for their service!

-- Karen Tani

Lecture Series: International Law: Chinese and Global Perspectives

The Centre for Chinese and Comparative Law of the City University of Hong Kong (CUHK), in partnership with Wuhan University School of Law and Fudan University School of Law, announces the lecture series "International Law: Chinese and Global Perspectives," to complement the forthcoming Histories of International Law in China: All under Heaven? edited by by Ignacio de la Rasilla, Jiangyu Wang, and Congyan Cai (Oxford University Press, 2025).

A full schedule of the series, which runs from December 2022 through June 2023, is here.  It commences on Friday, December 16, with China and The Turn to the National: Peripheral and Semi-Peripheral Histories of International Law, by Ignacio de la Rasilla, Wuhan University.

In the same posting, CUHK also announces a second lecture series, Distinguished Lectures in the History the History of International Law, given by Martti Koskenniemi, David Armitage, Jose Maria Beneyto, and Randall Lesaffer.

--Dan Ernst

Cromwell Dissertation Prize to Padilla-Rodríguez

Continuing our recap of the awards announced at this year's meeting of the American Society for Legal History, we focus today on those given by the William Nelson Cromwell Foundation. This post covers the Cromwell Dissertation Prize, "awarded annually to the best dissertation in any area of American legal history." 

On the recommendation of the subcommittee chaired by Anne Kornhauser, the Cromwell Dissertation Prize went to Ivón Padilla-Rodríguez (University of Illinois Chicago) for “Undocumented Youth: The Labor, Education, and Rights of Migrant Children in Twentieth Century America.” Padilla-Rodríguez received her Ph.D. from Columbia University. The citation:

In a highly original and resonant sociolegal history dissertation, “Undocumented Youth: The Labor, Education, and Rights of Migrant Children in Twentieth Century America,” Ivón Padilla-Rodríguez illuminates the multiple sites of repression of child migrants from Latin America. She does so by combining institutional and social history, charting the rise of legal and quasi-legal international and domestic border controls that disproportionately hurt child migrants, while viscerally conveying the everyday experiences of children trying to make their way to and through the United States. She details the exclusions, restrictions, and removals these young people faced as they and their families sought economic stability and social opportunities through work and education. But Padilla-Rodríguez also widens the lens to examine the complex legal and cultural valences of childhood innocence and “adultification.” As she delves into the child migrants’ experiences of economic privation, near-constant movement, and racialization, Padilla-Rodríguez herself crosses borders to draw on archival sources both in Mexico and the United States. Through elegantly written and accessible storytelling and impressive archival research, Padilla-Rodríguez shows us a “hybrid system of restriction and removal” that operated across both state and national borders, in farms and in schools, in public and in private. Padilla-Rodríguez details how local activists’ responses to increased child labor trafficking and detention led to national reform and new statutory rights in the 1960s. Yet by emphasizing the innocence and vulnerability of children, these well- meaning activists unwittingly handed the state yet more means of repression, including new points of conflict over rights, growing child imprisonment, and additional rationales for deportation. In confronting the paradoxes of reform, Padilla-Rodríguez adds to a burgeoning body of literature by historians that highlights the unintended consequences of socio-legal change.

Congratulations to Professor Padilla-Rodríguez, and thank you to the members of the dissertation prize subcommittee for their service!

-- Karen Tani

Cromwell Foundation Book Prize to Ablavsky

Every year, at the annual meeting of the American Society for Legal History, the William Nelson Cromwell Foundation announces a series of prizes awarded on the recommendation of subcommittees of the ASLH’s Advisory Committee on the Cromwell Prizes.  At the Chicago meeting earlier this month, John D. Gordan III, who chairs the William Nelson Cromwell Foundation and the ASLH’s Advisory Committee on the Cromwell Prize, announced this year's winners. Today we will recap those announcements, starting with the Cromwell Foundation Book Prize, "awarded annually to the best book in the field of American legal history by an early career scholar."

This year's winner is Gregory Ablavsky (Stanford Law School), for Federal Ground: Governing Property and Violence in the First U.S. Territories (Oxford: Oxford University Press, 2021). Here is the citation: 

Federal Ground, an analysis of early territorial governance, is beautifully written, deeply researched, innovative, and sophisticated. Mining a wide variety of legal and governmental sources, Ablavsky makes original arguments of consequence to several fields in addition to legal history, including Native American history, settler colonialism, and early American state-building. What appears at first to be a narrative of a failed state turns, unexpectedly, into a curious story of limited state “success,” illuminating how the federal state earned legitimacy and practical power in the only regions where it was in charge. Ablavsky shows how both the Natives and white settlers/speculators used or lobbied inchoate federal institutions – at first, just a handful of officers and their ad hoc commissions – to shape the legal landscape in ways that furthered their interests and visions of the Ohio and Mississippi Valleys. These contestants constructed the state by demanding that it arbitrate disputes – and then taking its money. Ablavsky uses contests over property and federal responses to violence as his chief examples, pulling from diverse and scattered records to weave a complex yet coherent story of competing claims and their often-contingent resolution. He traces federal officials’ encounters with Indigenous law and with Native understandings of consent, efforts to monopolize the legitimate use of violence, and deployment of federal funds with nuance and sensitivity to his sources’ limitations even as he wrings insights from what must have been an unwieldy archive. In Ablavsky’s telling, the federal government emerged not because of an effective or even coherent federal plan of pacification, land-granting, or settlement, but literally from the ground up. His is a knotty tale of furious claims-making in which there are few heroes and that perhaps only in retrospect takes on the majesty of the tragic. The story is complicated and sometimes counterintuitive, yet told crisply and with wit and insight. Ablavsky unearths and interprets sources with the creativity and mastery of a much more senior scholar. Federal Ground is ambitious and illuminating, without overestimating historians’ ability to reconstruct a contested and thorny past. For years to come, this should be the authoritative history for understanding the earliest phase of American territorial, and thus imperial, history.

Congratulations to Professor Ablavsky! And thank you to the members of the book prize subcommittee, chaired by Serena Mayeri.

-- Karen Tani

Sunday, November 20, 2022

NCC Podcast: The Battle for the American West

The "We the People" series of the National Constitution Center has a new podcast: The Battle for the American West:

For Native American Heritage Month, the National Constitution Center presents a discussion with historians H.W. Brands, author of The Last Campaign: Sherman, Geronimo and the War for America; Lori Daggar, author of Cultivating Empire: Capitalism, Philanthropy, and the Negotiation of American Imperialism in Indian Country; and Lindsay Robertson, author of Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, for a historical overview of U.S. westward expansion, manifest destiny, and the impact on native peoples and tribes. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

--Dan Ernst

Saturday, November 19, 2022

Weekend Roundup

  • Who Owns A Photo of Your Face? The Right to Privacy & The Courts, a session in the New York State Archives Partnership Trust’s Speaker Series, by Bruce W. Dearstyne and Henry M. Greenberg is now available online.  “This session explores the 1902 landmark decision Roberson v. Rochester Folding-Box Company[, in which] 17-year-old Abigail Roberson went to court to stop a company from using her face in ads for its flour." 
  • "Cleveland State University’s Board of Trustees voted unanimously Thursday to change the longtime name of the Cleveland-Marshall College of Law in light of increased scrutiny of the college’s namesake, former U.S. Supreme Court Chief Justice John Marshall, who owned slaves."  More
  • Congratulations to this year’s participants in the Student Research Colloquium and Wallace Johnson First Book Program, who gathered at last week’s annual meeting of the American Society for Legal History and are listed here!
  • New discoveries in the search for Joseph Smith’s legal cases (Church News).
  • Darren Ranco, chair of Native American Programs at the University of Maine, and Rebecca Tsosie, University of Arizona School of Law, gave the virtual Indian Law and History Lecture, co-hosted by the University of Maine School of Law and Maine Conservation Voters yesterday.  The lecture treated “the Doctrine of Discovery, a millennia-old legal principle that formed the foundation for Western property law and was used to justify the Christian Crusades and colonization of the America” (University of Maine). 
  • ICYMI: Allan J. Lichtman against the ISL doctrine (NY Daily News).  Steven Lubet on the Supreme Court's "bad history” in Bruen (The Hill).  on Harry S Truman and the Federal Records Act (WaPo).
  • Updates:  A report on a panel on the history of reproductive health at Case Western Reserve University (The Observer).  And today's NYT includes a story on an alleged leak of the result and authorship of Hobby Lobby in 2014.  The Times story incidentally reports that anti-abortion activists contributed to the Supreme Court Historical Society at least in part to "mingle with justices at its functions."  The long-serving Executive Director of the SCHS mentioned in the story retired in February 2021.  A related Politico story from last summer is here.

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

Friday, November 18, 2022

Zhang's History of Early Chinese Civil Law

Zhaoyang Zhang, Shanghai Jiao Tong Universityg, has published A History of Civil Law in Early China: Cases, Statutes, Concepts and Beyond (Brill, 2022).  It is volume 60 in Brill's Legal History Library.

How did people solve their disputes over debt, compensation, inheritance and other civil matters in early China? Did they go to court? How did the authorities view those problems? Using recently excavated early Chinese legal materials, Zhang Zhaoyang makes the compelling argument that civil law was not only developed, but also acquired a certain degree of sophistication during the Qin and Han dynasties. The state promulgated detailed regulations to deal with economic and personal relationships between individuals. The authorities formed an integral part of the formal justice system, and heard civil cases on a regular basis. 
--Dan Ernst

Thursday, November 17, 2022

Peter Gonville Stein Book Award to Christopoulos

Continuing our recap of the award winners announced at last week's meeting of the American Society for Legal History, we turn to the Peter Gonville Stein Book Award, "awarded annually for the best book in non-US legal history written in English." This year's award went to John Christopoulos (University of British Columbia), for Abortion in Early Modern Italy (Harvard University Press, 2021). Here is the citation from the selection committee: 

John Christopoulos’s Abortion in Early Modern Italy is a masterful interweaving of medical, religious, and legal perspectives on abortion in Italy in the sixteenth and seventeenth centuries. Drawing in part on records of trials in criminal and ecclesiastical courts, Christopoulos reveals the full complexity of how women and men from all parts of society thought about and experienced abortion. He demonstrates how large the gulf could be between prescription and practice. In its careful interrogation of a wide range of sources, and in its thoughtful discussion of an issue that the book shows to have been no less controversial in the early modern period than it is today, Abortion in Early Modern Italy is a model of historical scholarship.

An Honorable Mention went to Jocelyn Hendrickson (University of Alberta) for Leaving Iberia: Islamic Law and Christian Conquest in North West Africa (Harvard University Press, 2021).

Congratulations to Professor Christopoulos and Professor Hendrickson, and thank you to the selection committee for their service! 

-- Karen Tani

Wednesday, November 16, 2022

John Phillip Reid Book Award to Masur

It is our pleasure to post news about the prizes and awards announced at last week's meeting of the American Society for Legal History. We'll start with the John Phillip Reid Book Award, "awarded annually for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history." 

This year's award went to Kate Masur (Northwestern University) for Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (New York: W.W. Norton & Co., 2021). Here's the citation from the prize committee: 

Engagingly written and thoroughly researched, Kate Masur’s Until Justice Be Done uncovers the long arc of civil rights activism in the North, showing how it arose as distinct from antislavery activism and laid the intellectual and political foundations for the later emergence of the Fourteenth Amendment. Centered in the states, rather than the federal government, this First Civil Rights Movement, she shows, was championed by black activists, who were, in turn, supported, by a range of white allies. Together, they challenged the moral and constitutional illegitimacy of the black codes that were enacted throughout the country (including the North) and that were rooted not only in racism, but also in the widely accepted authority of the state to regulate the poor and others deemed to pose a threat to the social order. Combining insights and methods from political, socio-cultural and legal history, Masur’s clear-eyed account explores both the possibilities and the limits of legal reform, offering lessons that are deeply resonant with our own time.

Congratulations to Professor Masur! And thank you to the members of the selection committee for their service.

-- Karen Tani

Thompson's "Quiet Revolutionaries"

Sharon Thompson, Cardiff University, has published Quiet Revolutionaries: The Married Women's Association and Family Law (Bloomsbury):

This book tells the untold story of the Married Women's Association. Unlike more conventional histories of family law, which focus on legal actors, it highlights the little-known yet indispensable work of a dedicated group of life-long activists.

Formed in 1938, the Married Women's Association took reform of family property law as its chief focus. The name is deceptively innocuous, suggesting tea parties and charity fundraisers, but in fact the MWA was often involved in dramatic confrontations with politicians, civil servants, and Law Commissioners. The Association boasted powerful public figures, including MP Edith Summerskill, authors Vera Brittain and Dora Russell, and barrister Helena Normanton. They campaigned on matters that are still being debated in family law today.

Quiet Revolutionaries sheds new light upon legal reform then and now by challenging longstanding assumptions, showing that piecemeal legislation can be an effective stepping stone to comprehensive reform and highlighting how unsuccessful bills, though often now forgotten, can still be important triggers for change. Drawing upon interviews with members' friends and family, and thousands of archival documents, the book is compulsory reading for lawyers, legal historians, and anyone who wishes to explore histories of law reform from the ground up.
To listen to podcast episodes about the Married Women's Association, featuring interviews and archival research, visit [here].

--Dan Ernst

Tuesday, November 15, 2022

CFP: Michigan Law Junior Scholars Conference

 [We have the following call for papers.  DRE]

The University of Michigan Law School invites junior scholars to attend the 9th Annual Junior Scholars Conference, which will take place in person on April 21-22, 2023 in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty and other participants. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcome.

Applications are due by January 9, 2023. For further details, see Conference's website.

Monday, November 14, 2022

Book Event: Strum's "On Account of Sex"

[We have the following announcement.  DRE]

Please join [the American Historical Association and Woodrow Wilson Center] for a Washington History Seminar Panel with Philippa Strum on On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law, Monday, November 21 at 4:00 pm ET.  Click here to register for the webinar, which will be recorded and the video will be posted on the Washington History Seminar YouTube Channel.  Commenting is Deborah Archer, the president of the ACLU, a tenured professor of clinical law and director of the Civil Rights Clinic at New York University School of Law, and co-faculty director of the Center on Race, Inequality, and the Law at NYU Law.

Long before she was “Notorious,” RBG was an attorney arguing and winning gender equality cases before the Supreme Court. Dr. Strum contends that RBG’s greatest contribution came not as a jurist but in persuading the Justices of the 1970s, whom RBG described as needing a grade school-level education about sex discrimination, to rethink stereotypes about the proper roles for men and women and declare sex discrimination to be unconstitutional. Her pathbreaking approach to the law could not be more relevant today.

Journal of American Constitutional History

[We have the following announcement and call for submissions for an exciting new journal, on whose editorial board Karen and I serve.  DRE]  

You are cordially invited to submit articles to the Journal of American Constitutional History, a new online peer-reviewed journal. At a time when law office history is increasingly casting its shadow over both scholarship and jurisprudence, the Journal of American Constitutional History will offer a space for scholarship that tries to understand the past, rather than to distort it to influence present controversies.

The Journal seeks to promote inter- and multi-disciplinary scholarly dialogue on constitutional history, and we therefore invite submissions from disciplines outside of law, including history and political science. The Journal will publish articles of all lengths, from shorter essays and thought-pieces in the 4,000-to-6,000-word range to longer, traditional articles. Authors will be able to conform to the norms and citation styles of their respective fields.

Why this journal?

The Journal of American Constitutional History offers a serious alternative to student-edited law reviews and the constraining expectations of student editors. Authors will not need to erect elaborate scaffolding that shows some present-day "doctrinal payoff." Nor will authors have to devote thousands of words to well-known background material, unnecessary footnotes, or literature reviews.

The Journal offers much faster publication decisions and time-to-publication than most peer-reviewed journals. Authors can expect to receive first-level decisions within a week of submission, and articles submitted for double-blind peer review will receive a decision within 3-4 weeks. Each author will receive written feedback explaining our publication decision. Articles will be published via the Journal website as soon they are completed rather than awaiting compilation of a full issue. Each article will be assigned a unique page range for citation purposes, and published articles will be carried by Hein Online and other searchable electronic databases.

The Journal's Board of Editors comprises leading scholars in the field of constitutional history. (Please see listing on reverse page.) Authors can thus be assured of reaching their target audience from a distinguished platform and need not associate "prestige" with killing trees.

To submit articles, please visit our website, starting December 1, 2022. For questions, please contact the Journal's editor-in-chief, David Schwartz, at

Saturday, November 12, 2022

Weekend Roundup

  • Over at the Jus Commune podcast, Paul du Plessis, Edinburgh Law School, discusses litigation in the Roman Republic.
  • Seth Barrett Tillman, Maynooth University School of Law and Criminology, has been awarded the North Carolina Society of Historians’ 2021 Award of Excellence for Outstanding Contribution to the Preservation and Perpetuation of North Carolina History and Heritage in connection with his two publications on Jacob Henry: "What Oath (if any) did Jacob Henry take in 1809?;Deconstructing the Historical Myths," American Journal of Legal History 61 (2021): 349-384; and "A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources," North Carolina Historical Review 98 (2021): 1-41.
  • The transcript of Judith Heumann’s Jefferson Lecture, a conversation with Karen Tani introduced by Christopher Tomlins, on the long fight for disability rights has now been posted.
  • Congratulations to Professor Tamika Nunley (Cornell University): The Journal of Southern History reports that her article "Thrice Condemned: Enslaved Women, Violence, and the Practice of Leniency in Antebellum Virginia Courts" has won the (first ever!) Anne Braden Prize in southern women's history from the Southern Historical Association.
  • For those on Twitter, you can find updates from the ongoing American Society for Legal History conference via the hashtag #ASLH2022.

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

Friday, November 11, 2022

Spagnolo on Victoria's Torrens Act

Lisa Spagnolo, Macquarie Law School, has posted A Conceptual Framework: What the Forgotten History of the Victorian Torrens Legislation Tells Us about Priority Disputes Involving Paramount Interests, which appeared in the Sydney Law Review:

The history of the Transfer of Land Act 1958 (Vic) can tell us much about exceptions to indefeasibility known as ‘paramount interests’. Current case law suggests these interests do not enjoy automatic priority in Victoria. Instead, once a paramount interest is established, the registered interest is effectively stripped of indefeasibility and a priority dispute ensues, with the outcome determined under general law priority rules. In this article I analyse Victorian legislative history to argue paramount interests were legislatively intended to enjoy ipso facto priority over registered interests. I develop a historically based conceptual policy framework to support future purposive interpretations of the Victorian paramount interest provision (s 42(2) of the Act). My insights demonstrate how the paramount interest exception was intended to operate in Victoria, how competing legislative aims were balanced within it, as well as the way in which it interacts with other exceptions to elucidate how priority operates for exceptions to indefeasibility more broadly. Moreover, I outline the vulnerability of other jurisdictions to case law outcomes similar to that which has arisen in Victoria. A deeper understanding of the Victorian legislative history can help prevent a similar folly in those jurisdictions.

--Dan Ernst

Thursday, November 10, 2022

Grove on the History of Textualism as Statutory Interpretation

Tara Leigh Grove, University of Texas School of Law, has posted The Misunderstood History of Textualism, which is forthcoming in the Northwestern University Law Review:

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a “literal” and “wooden” “plain meaning school.” More surprisingly, modern textualists later accepted this account—a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the “literal” old plain meaning school, modern textualists defined “textualism” so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on “conventional wisdom.” Second, the analysis suggests that theorists should set aside debates over “literalism” in statutory interpretation. The question is not—and has never been—whether interpreters should look to context but rather which context they should consider.
--Dan Ernst

Wednesday, November 9, 2022

Yovel on Renaissance Drama's Lessons for Lawyers

Jonathan Yovel, University of Haifa Faculty of Law, has posted What Can Lawyers Learn from Renaissance Drama?

Sampson Bringing Down the Temple (NYPL)
What can lawyers, who are typically engaged in challenges of persuasion across the entire spectrum of practice, learn from the use of normative language in literature, particularly drama? Normative -- and specifically legal -- language offers parties shared vocabularies for forming and organizing disputes. It mediates grievances, shapes positions, and restricts the expression of legitimate argument. While it does so in legal settings, the reach of legal language extends beyond the law. Legal and normative languages are restrictive and generative: like grammar, they restrict valid modes of expression while inviting speakers to challenge, explore, expand and create new ones. Normative language is relevant to argument since it responds to the latter's need to bridge different points of view through a commitment to effective communication. Absent a shared basis of discourse ethics and the recognition it entails, talk deteriorates to linguistic quarrel and a struggle for domination.

The present study looks at the creative and restrictive roles of legal and normative language in two central dramas of the renaissance, that present distinctive and diverse approaches to normativity and the use of legal language: Bradamante (1582) by Robert Garnier (who was also a high ranking judge), and John Milton’s passionately personal work, Samson Agonistes (1671). While The latter abounds with legal metaphors and structures, the former lacks them almost entirely. The article explores the effects of this variance and offers a systematic treatment of key elements of discourse ethics and their role in persuasion and the construction of dispute.
--Dan Ernst

Tuesday, November 8, 2022

Ablavsky, "Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs"

This post provides an update to an entry in our October 15, 2022, Weekend Roundup, where we noted the following:

It is rare for a seven-year-old law review article to prompt much debate, but with the Indian Child Welfare Act before the Supreme Court this term (in Brackeen v. Haaland), Greg Ablavsky's "Beyond the Indian Commerce Clause" (published in the Yale Law Journal in 2015) is newly relevant. In a recently posted SSRN piece (also available on the Stanford Law School website), Ablavsky details how and why his article came to be "cite-checked" by another scholar earlier this year and what the stakes are of getting this history right. 

Ablavsky (Stanford Law School) has now posted "Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs." The abstract:

This short piece builds on my earlier response to Robert Natelson's purported "cite check" of my 2015 Yale Law Journal article by addressing some of the arguments in his new Federalist Society Review article. It argues 1) that Natelson misinterprets Federalist 42, 2) that colonial-era regulations of Indian trade support a quite broad scope for the law merchant, and 3) that Natelson mischaracterized my methodology while making some odd methodological choices of his own.

It also briefly offers some new evidence on the historical scope of federal authority in Indian affairs that further supports an interpretation of the meaning of "commerce with the Indian tribes" that encompasses intercourse. 

An abbreviated response is available here, at the FedSoc blog.

The Supreme Court will hear arguments in the Brackeen v. Haaland case on November 9.

-- Karen Tani

Zagarri on the Independent State Legislature Theory

Rosemarie Zagarri, George Mason University, has posted The Historian's Case Against the Independent State Legislature Theory, which is forthcoming in the Boston College Law Review:

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.
--Dan Ernst

Monday, November 7, 2022

Kuskowski, "Vernacular Law Writing and the Reinvention of Customary Law in Medieval France"

 The Studies in Legal History Series at Cambridge University Press has released by Vernacular Law: Writing and the Reinvention of Customary Law in Medieval France, by Ada Maria Kuskowski (University of Pennsylvania). A description from the Press:

Custom was fundamental to medieval legal practice. Whether in a property dispute or a trial for murder, the aggrieved and accused would go to lay court where cases were resolved according to custom. What custom meant, however, went through a radical shift in the medieval period. Between the twelfth and thirteenth centuries, custom went from being a largely oral and performed practice to one that was also conceptualized in writing. Based on French lawbooks known as coutumiers, Ada Maria Kuskowski traces the repercussions this transformation – in the form of custom from unwritten to written and in the language of law from elite Latin to common vernacular – had on the cultural world of law. Vernacular Law offers a new understanding of the formation of a new field of knowledge: authors combined ideas, experience and critical thought to write lawbooks that made disparate customs into the field known as customary law.

Advance praise:

"This book is a marvel, mixing erudition and imagination. Describing the cultural upheaval of the writing of custom, Ada Kuskowski opens new doors to the understanding of medieval law." -- James Q. Whitman, 

"By studying the first coutumiers as a coherent whole, with a focus on language and manuscripts and an eye toward recent scholarship in legal history generally, Kuskowski defines a subject every bit as complex, interesting, and influential as the medieval Roman and canon laws that overshadow it in the historiography." -- Adam Kosto

More information is available here.

-- Karen Tani

Saturday, November 5, 2022

Weekend Roundup

  • Kenneth W. Mack, Harvard Law School, reviewed Charlayne Hunter-Gault’s My People: Five Decades of Writing About Black Lives (WaPo).
  • NPR’s Hansi Lo Wang has published an explainer on the Pinkney Plan, for those of you trying to come up to speed on the Independent State Legislature case.
  • All three of the founders of the Yale Law School “were well-known for their involvement in cases revolving around slavery — David Daggett and Samuel Johnson Hitchcock in pro-slavery cases and Seth Perkins Staples in pro-abolition cases.”  A tour now visits their graves in New Haven’s Grove Street Cemetery.  It "accompanies a broader exhibit at the Lillian Goldman Law Library, “Race, Slavery & the Founders of Yale Law School," curated by Fred Shapiro and rare book librarian Kathryn James" (Yale Daily News).
  • "A rare copy from the first printing of the U.S. Constitution is hitting the auction block on December 13. The copy of the Constitution, dubbed the 'Adrian Van Sinderen Constitution' after its longtime owner, is one of only 13 originals known to be in existence, and one of two copies from the first run of prints." (PBS Newshour).
  • The annual meeting of the American Society for Legal History starts Thursday in Chicago.  Look for us there! The ASLH is inviting live-tweeting (#ASLH2022) if tweeting is still a thing then.

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