Saturday, May 21, 2022

Weekend Roundup

  • William & Mary Libraries announces a new Archive of American LGBTQ Political and Legal History.
  • ABA Silver Gavel Awards went to "My Name is Pauli Murray," directed by Betty West and Julie Cohen, and to the issue “Black Legal History in Oklahoma,” Oklahoma Bar Journal (May 2021).
  • Tomorrow in Quincy, Illinois, a program “on Lincoln’s years as lawyer in Illinois and how those years shaped his presidency.”  (Herald-Whig).
  • Tomiko Brown-Nagin on Civil Rights Queen: Constance Baker Motley and the Struggle for Equality, before the Columbia Alumni Association, Washington, DC, Chapter on July 12, 2022 at 6:00pm - 7pm, moderated by Rhonda Colvin.   More.
  • "A Constitution Against Oligarchy?" In the New Rambler, Evan Bernick (Northern Illinois University College of Law) reviews The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, by Joseph Fishkin and William E. Forbath

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

Thursday, May 19, 2022

The Search for Humanity after Atrocity

[We have the following announcement of a conference.  DRE]

The Search for Humanity After Atrocity.  October 16-17, 2022. In-person at Kean University, Union, NJ

Keynote Speaker: Loung Ung - Khmer Rouge Genocide Survivor, Activist, Author
Plenary Speakers: Eduardo Gonzalez and Ines Hernandes-Avila

Please click here to visit our website to register and for more information. Registration is open now. Discounted rate for students.

Recognizing that the search for humanity after atrocity is as imperative as it is elusive, this two-day conference will interrogate recent strides that are renewing scholarly and popular interest and debate. The conference, based on an NEH-funded seminar held at Kean University in June, 2021, will assemble engaged scholars and informed practitioners who honor the reciprocity of scholarship and activism for energizing a network in common search for humanity after atrocity. The conference's premise is the belief that post-atrocity renewal possesses the most promise if it is propelled by those who were and are vulnerable and victimized. *The intention is to have an in-person conference with the understanding that the need may arise to shift to a virtual format depending on the status of the pandemic this fall.

Contact Stephanie Reese at reeseste@kean.edu for details or to inquire about co-sponsorship opportunities.

Wednesday, May 18, 2022

Seidman on America's Racial Stain

Louis Michael Seidman, Georgetown University Law Center, has posted America's Racial Stain: The Taint Argument and the Limits of Constitutional Law and Rhetoric, which is forthcoming in the American Journal of Law and Equality:

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of whether they can do so successfully. Least promising, I argue, are responses grounded in constitutional law understood as judicial parsing of constitutional text and precedent. This social practice is too deeply mired in a pernicious history, set of conventions, and restraints to pull itself out of its own muck.

Political redemption offers more promise. Tactics used outside the courthouse that invoke the vaguer, higher ideals supposedly implicit in constitutional text and that reimagine and reconstruct our history in a more favorable light might provide a foundation for renewal. But the effective use of these tactics requires extraordinary political and rhetorical skill that no one on the current scene has yet demonstrated. Perhaps more importantly, it also requires a willingness of Americans, also yet to be demonstrated, to follow such a leader toward racial reconciliation.

--Dan Ernst

Tuesday, May 17, 2022

CFP: Black Reparations: Insights from the Social Sciences

 [We have the following Call for Articles from RSF: The Russell Sage Foundation Journal of the Social 
Sciences
.  DRE]

Black Reparations: Insights from the Social Sciences.  Edited by William Darity Jr., Duke University; Daina Ramey Berry, University of Texas at Austin; Thomas Craemer, University of Connecticut; Dania Frank Francis, University of Massachusetts, Boston

Since the failed promise of the provision of 40-acre land grants to the formerly enslaved in the immediate aftermath of the Civil War as restitution for their years of bondage, reparations for Black Americans has lived off-stage from the center of American political discourse—until now. In 2019, during the Democratic Party's primary race for the 2020 presidential election, candidates actually invoked the term "reparations," previously verboten in credible policy conversations. While some Democratic candidates endorsed direct cash reparations, other candidates took the safer route of expressing some support for HR 40, legislation to establish a study commission for black reparations that had lain fallow in the U.S. House of Representatives for over 30 years since it was introduced by the late Rep. John Conyers (D-Michigan) in 1989.

In 2000, a national survey conducted by University of Chicago scholars Michael Dawson and Rovana Popoff, found that only 4 percent of white Americans supported reparations in the form of monetary payments. A PRRI survey in 2020 found that percentage was closer to 20 percent. By early April 2021, a University of Massachusetts at Amherst research team reported that the share had risen to nearly 30 percent. Moreover, a number of cities and two states, California and New York, have activated initiatives to execute or develop what they call "reparations" plans.

For this issue of RSF, we solicit empirically grounded papers from scholars in all of social science disciplines, including history and public health. We encourage contributions from across the ideological spectrum, especially on such topics as eligibility for reparations; long-term impacts of racial gaps on wealth; and potential unintended consequences of a black reparations plan.

Please click here for a full description of the topics covered in this call for articles.

Anticipated Timeline. Prospective contributors should submit a CV and an abstract (up to two pages in length, single or double spaced) of their study along with up to two pages of supporting material (e.g., tables, figures, pictures, references that don't fit on the proposal pages, etc.) no later than 5 PM EST on July 15, 2022 to [grant portal.]

NOTE that if you wish to submit an abstract and do not yet have an account with us, it can take up to 48 hours to get credentials, so please start your application at least two days before the deadline. All submissions must be original work that has not been previously published in part or in full. Only abstracts submitted here will be considered. Each paper will receive a $1,000 honorarium when the issue is published. All questions regarding this issue should be directed to Suzanne Nichols, Director of Publications, at journal@rsage.org and not to the email addresses of the editors of the issue.

A conference will take place at the Russell Sage Foundation in New York City on April 21, 2023. The selected contributors will gather for a one-day workshop to present draft papers (due a month prior to the conference on 3/24/23) and receive feedback from the other contributors and editors. Travel costs, food, and lodging for one author per paper will be covered by the foundation. Papers will be circulated before the conference. After the conference, the authors will submit their revised drafts by 7/14/23. The papers will then be sent out to three additional scholars for formal peer review. Having received feedback from reviewers and the RSF board, authors will revise their papers by 10/4/23. The full and final issue will be published in the June of 2024. Papers will be published open access on the RSF website as well as in several digital repositories, including JSTOR and UPCC/Muse.

Please click here for a full description of the topics covered in this call for articles.

Monday, May 16, 2022

O'Gorman on Langdell and Contract Law

Daniel P. O’Gorman, Barry University School of Law, has published Langdell and the Foundation of Classical Contract Law in the Cleveland State Law Review:

C.C. Langdell (HLS)
In the late nineteenth and early twentieth centuries, scholars seeking to bring order to the common law developed what has since become known as classical contract law. Its leading architects were Christopher Columbus Langdell, Oliver Wendell Holmes, Jr., and Samuel Williston, and their efforts involved seeking to provide an objective foundation for contract law. Any idea, however, that these three worked in coordination to create classical contract law would be mistaken. Holmes is considered a relentless critic of Langdell, and even Williston distanced himself from Langdell. This Article identifies in what ways Holmes and Williston differed from Langdell in their approach to contract law and, to do so, focuses on the doctrine of consideration, the foundation upon which classical contract law was built. This Article concludes that, as a result of these differences, classical contracts scholars’ quest to create an objective foundation for contract law that could withstand erosion was doomed to fail. First, the leading architects did not agree on a fundamental concept—a theory of law. The disagreement between Langdell and Holmes about the nature of law (logic versus experience) virtually ensured they would be unable to agree on something like the meaning of consideration and would thus be unable to agree on a foundational theory of contract law. Second, even when the architects sought to construct principles upon the same foundation (logic), the foundation proved unable to provide a clear answer to the meaning of consideration.
–Dan Ernst

Saturday, May 14, 2022

Weekend Roundup

  • On May 10, William Novak, University of Michigan,  participated in a town hall with Lisa Heinzerling and Ilan Wurman on Rights, Regulation, and the Modern Administrative State at the National Constitution Center.  A recording is here.
  • Congratulations to Kate Masur, professor of history at Northwestern University, on being a finalist for the 2022 Pulitzer Prize in History for Until Justice Be Done: America's First Civil Rights Movement, from the Revolution to Reconstruction (W. W. Norton).
  • Entry-level hiring by American law schools: the data and the PrawfsBlawg summary.
  • More criticism of the history in Justice Alito's draft Hobbs opinion.  Jill Hasday on his citation to Matthew Hale (WaPo).  Matt Ford on what Justice Alito "Gets Wrong About English Common Law" (New Republic).  
  • Also, an interview of Julian Zelizer on the conservative and legal movement and Roe (WBUR's Here & Now).  Mary Ziegler and predictions for a post-Roe America (The Atlantic).

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

Friday, May 13, 2022

Affirmative Action: The ICS Seminar

Our friends at the Institute for Constitutional Studies have announced another seminar for advanced graduate students and junior faculty, “Affirmative Action”:

Prior to the pandemic and the economic downturn, affirmative action was one of the most divisive issues in public policy.  While it is closely tied to issues of racism (past and present), it also has strong ties to the women’s movement, Hispanic rights, and disability programs. Normally we start looking at affirmative action in the Kennedy-Johnson years, but in fact its roots go back to Reconstruction after the Civil War. There are two types of affirmative action programs, which I label “hard” and “soft,” and the distinction will be at the heart of the discussion. There is a story of an administrative agency run wild, and of course, there are court cases. One must bear in mind that this is not a simple liberal vs. conservative debate, for some of the fiercest critics have been liberals.  We will end the course with a look at the most recent case that involved Harvard and Asian-American students.
InstructorMelvin I. Urofsky is professor emeritus of history at Virginia Commonwealth University.  He is the longtime editor of the Journal of Supreme Court History and has written widely on American constitutional development.  His most recent books are the prize-winning Louis D. Brandeis: A Life (2009), Dissent and the Supreme Court (2015), and The Affirmative Action Puzzle (2020).

Logistics
.  Tuesday afternoons, 3:50–5:50 p.m., October 11, 18, 25, November 1, 8, 15, and 22, 2022. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until September 15, 2022. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history. icsgw@law.gwu.edu

Thursday, May 12, 2022

Steinbach, Marcus, and Cohen's "With Liberty and Justice for All?"

Just out from Oxford University Press: With Liberty and Justice for All?: The Constitution in the Classroom, by Steven A. Steinbach, Maeva Marcus, and Robert Cohen.  

With Liberty and Justice for All?: The Constitution in the Classroom is designed to help teachers and students generate analysis and debate in our nation’s classrooms about an aspect of US history that has produced intense disagreements about rights and wrongs: constitutional history. For more than two centuries, Americans have argued about what the US Constitution permits or requires (or not), and what values and ideals it enshrines (or not)—indeed, who is to be included (or not) in the very definition of “We the People.” Because the Constitution remains the framework under which the United States governs itself, American history can be told as the story of the use and misuse of the Constitution over time, from early disputes about liberty and slavery to more recent quarrels over equality and dignity. This book—which opens with a “Foreword” from the late Justice Ruth Bader Ginsburg—provides abundant resources to explore key moments of debate about the Constitution and its meaning, focusing on fundamental questions of citizenship and rights. Constitutional history is explored via succinct and probing essays by prize-winning historians—including Linda Greenhouse, Mary Sarah Bilder, Annette Gordon-Reed, Eric Foner, Sam Erman, Julie Suk, Laura Kalman, and Melissa Murray—and through lively primary sources and focused discussion questions. As this book amply demonstrates, United States history IS constitutional history.

--Dan Ernst

Lebovic's "Righteous Smokescreen"

Sam Lebovic, George Mason University, has published A Righteous Smokescreen: Postwar America and the Politics of Cultural Globalization, with the University of Chicago Press:

When the dust settled after World War II, the United States stood as the world’s unquestionably pre-eminent military and economic power. In the decades that followed, the country exerted its dominant force in less visible but equally powerful ways, too, spreading its trade protocols, its media, and—perhaps most importantly—its alleged values. In A Righteous Smokescreen, Sam Lebovic homes in on one of the most prominent, yet ethereal, of those professed values: the free flow of information. This trope was seen as capturing what was most liberal about America’s self-declared leadership of the free world. But as Lebovic makes clear, even though diplomats and public figures trumpeted the importance of widespread cultural exchange, these transmissions flowed in only one direction: outward from the United States. Though other countries did try to promote their own cultural visions, Lebovic shows that the US moved to marginalize or block those visions outright, highlighting the shallowness of American commitments to multilateral institutions, the depth of its unstated devotion to cultural and economic supremacy, and its surprising hostility to importing foreign cultures. His book uncovers the unexpectedly profound global consequences buried in such ostensibly mundane matters as visa and passport policy, international educational funding, and land purchases for embassies. Even more crucially, A Righteous Smokescreen does nothing less than reveal that globalization was not the inevitable consequence of cultural convergence or the natural outcome of putatively free flows of information—it was always political to its core.
--Dan Ernst.  TOC after the jump

Wednesday, May 11, 2022

Hulsebosch on Confiscation and Property at the Founding

Daniel J. Hulsebosch, New York University School of Law, has posted Confiscation Nation: Settler Postcolonialism and the Property Paradox, which is forthcoming in the Yale Journal of Law and the Humanities:

This essay, part of a forum on Claire Priest’s Credit Nation: Property Laws and Institutions in Early America, points toward a different framing for the history of property and credit in early America, one compatible with many of Priest’s finding but that trades off the theoretical elegance of the New Institutional Economics in favor of wider historical context that includes space for revolutionary ideas. It places the destabilization of property, including confiscation, at the center of the creation of American property law. Consequently, it focuses on the revolutionary struggle for property: a struggle over how property was supposed to function politically; who could own it; and where to resolve conflicting claims to it. Although much American property law remained the same after as before the Revolution, the changes were significant. The Treaty of Peace memorialized the largest changes by including substantial guarantees to British creditors and confirming a trend in the law of nations toward shielding foreign debt from wartime predations. That same treaty, however, contained no guarantee that the states would return or provide restitution for the massive confiscation of property from American loyalists and absentee Britons. The resulting compound of the new American property included well-advertised solicitude toward foreign creditors; public subsidies of patriotic debtors; and the expropriation of property from those excluded from political membership. These elements helped build states, not just markets. Finally, the essay contributes to answering one of the chestnuts of American legal history to which Priest gives new urgency: Why did some (but not all) states eliminate the property estate of fee tail in the revolutionary era? Building on the republican or anti-aristocracy explanation, the essay argues that eliminating fee tail enabled some states to perfect the confiscation of massive loyalist estates held, in some instances, by actual aristocrats.

--Dan Ernst

Tuesday, May 10, 2022

No Trespassing? Property/Theory between the Disciplines

 [We have the following announcement.  DRE.]

No Trespassing? Property/Theory between the Disciplines.  8th International Osnabrueck Summer Institute on the Cultural Study of the Law.  Please Note: Extended Deadline for Applications: May 15th 2022!

The International Osnabrueck Summer Institute on the Cultural Study of the Law (OSI) will be held from July 16 to 24, 2022 at the University of Osnabrueck, Germany. Since 2009, the OSI has successfully encouraged and promoted the interdisciplinary study and research of the interrelations between law and culture, based on the idea that the extended cultural study of the law will foster profitable scholarly exchange and dialogue between legal studies and the humanities. We are committed more than ever to build on and continue these efforts, especially in the face of the current challenges to democratic and open societies.

The Institute will offer a combination of thematic workshop sessions, small group seminars and a final conference for up to 20 international participants (doctoral, post-doctoral and advanced M.A. – see below for eligibility). The introductory workshop will address the range and potential of interdisciplinary studies and approaches in the field of law and the humanities. The remaining thematic sessions and small group seminars will focus on key issues and debates in current cultural legal studies which touch on questions of property, ownership or appropriation, such as

  • The historical emergence of dominant (legal) concepts of property as well as current struggles about culture as heritage, property and resource for creativity (including concepts such as copyright, intellectual property and authorship, cultural appropriation);
  • The cultural presence and representation of the law and the role of culture in the representation and dissemination of concepts of property, ownership, appropriation, dispossession etc. (e.g. in fields like law and literature, life writing and human rights, philosophy of human rights, migration and property);
  • The ways in which the (cultural and historical) semantics of property and ownership are reflected in critical theory and discourse, including the use of property theory in the humanities and critical cultural studies

The main objective of the OSI is to encourage scholarly exchange across disciplines and the critical debate of current research projects as well as work in progress. Participants will have the opportunity to present and discuss their own work both within the larger group and in individual sessions with members of the OSI faculty. The program will be concluded with a two day conference on the topic of the institute with invited speakers and panel sessions.

Confirmed faculty for the 2022 OSI include Marianne Constable (Rhetoric, UC Berkeley); Cristina S. Martinez (Art History, U of Ottawa); Nora Slonimsky (History, Iona College); Leti Volpp (Law, UC Berkeley)

The OSI 2022 will be organized in collaboration with the Collaborative Research Center (SFB 1385) "Recht und Literature / Law and Literature" at the University of Münster/Germany.

Eligibility.  The Summer Institute invites doctoral and postdoctoral students from various academic fields whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are encouraged to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute will also consider strong applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.

Application Process
.  Students interested in taking part in the Summer Institute should submit their applications no later than May 15th, 2022. Detailed and updated information about the Institute, the sessions, international faculty, admission and fees can be found [here].

Questions.  Please direct all inquiries and questions to the OSI coordinator at lawandculture@uos.de

Farbman on Antislavery and Judge Hoar

Daniel Farbman, Boston College Law School, has posted Judicial Solidarity? which is forthcoming in the Yale Journal of Law and the Humanities:

We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law in order to effectuate the power of the resistance. He argued that making Thoreau’s theory of change work required sympathetic judges to enforce the law to expose its injustice. From this colloquy between judge and activist, I draw the beginnings of a counter-narrative of how judges may strive towards (if not achieve) solidarity with resistance movements. Judges, like any other institutional actor, have the capacity and perhaps the obligation to be strategic about how they act within and against the social movements that find their ways into their courtrooms.

--Dan Ernst

CFP: Feminists Confront State Violence

[We have the following CFP.]

Feminists Confront State Violence

Issue number 148 (January 2024).  Abstract Deadline: June 1, 2022.  Co-Edited by Anne Gray Fischer, Sara Matthiesen, and Marisol LeBrón.  Contact: contactrhr@gmail.com

Radical History Review
seeks proposals for feminist analyses that explore how communities have conceptualized, negotiated, and challenged structures of state violence. Historically, people on the front lines of a range of historical and contemporary struggles have exposed how state violence operates in the lives of women and vulnerable populations through forms of active harm as well as organized abandonment. Spectacular forms of state violence, such as religious persecution, enslavement, colonial dispossession, genocide, sterilization, policing, and human caging coexist alongside formal and informal practices of state neglect that harm and kill by refusing to cultivate healthy, safe, and dignified lives for all. In the face of the violence of the (pre)modern state, many people have developed strategies of survival, care, and reproduction that aim to reduce harm such as mutual aid projects, intentional communes, and worker collectives. These efforts can, however, be quickly overwhelmed by the enormous scope of need created by state neglect. Ironically, modern-day global emergencies—from femicide in Latin America and medical apartheid in the Global South to the climate catastrophe worldwide—expose the unique capacity of the state to respond on a massive scale to its own harms and failures. Feminist scholars, then, have identified a formidable contradiction: how to make demands for the equitable distribution of care, safety, and life on a (pre)modern state that unequally distributes violence, immiseration, and death? We invite feminist contributions that examine how communities have historically negotiated the difficult contradiction of making reparative demands on a violent state. In particular, we are interested in pieces that draw from surprising examples and unexpected archives in order to show efforts to deliver care, organize practices of survival, and foster societal transformation while laboring under conditions of structural violence; and to ask what alternative visions of social organization such struggles have produced. This issue aims to create a feminist archive of campaigns, tactics, frameworks, and circumstances that illuminate how people have named, analyzed, and struggled against the multiscalar and capacious nature of regimes of violence across all time periods, geographic contexts, and conceptions of governance. Some topics may include, but are not limited to:

    The interrelationship between state abandonment and state violence
    Crime, punishment, anti-carceral projects, and abolitionism
    Indigenous, decolonial, and anti-colonial projects
    Natural disaster, famine, and environmental crisis
    Gender-based and transphobic violence, serial murders, and femicide
    Migration and contests over borders
    Riot, rebellion, revolution, and war
    Struggles between capital and labor, especially around reproductive labor
    Electoral politics, suffrage, and disenfranchisement

The RHR publishes material in a variety of forms. We welcome submissions that use images as well as text. In addition to conventional research articles, we encourage submissions to our various departments, including Historians at Work; Teaching Radical History; Public History; Interviews; (Re)Views and The Abusable Past. We encourage contributions from historically under-represented groups. Procedures for submission of articles: By June 1, 2022, please submit a one-page abstract summarizing the article as an attachment to contactrhr@gmail.com with “Issue 148 Abstract Submission” in the subject line. By July 15, 2022, authors will be notified whether they should submit a full version of their article for peer review. The due date for full-length article submissions will be in November 2022. Please send any images as low-resolution digital files embedded in a Word document along with the text. If chosen for publication, you will need to supply high-resolution image files (at a minimum of 300 dpi) and secure permission to reprint the images. Those articles selected for publication after the peer review process will be included in issue 148 of the Radical History Review, scheduled to appear in January 2024.

Monday, May 9, 2022

Register for ASLH 2022!

Pre-registration for the 2022 annual meeting of the American Society for Legal History, to be held November 10-12 in Chicago is now open.  The ASLH encourages early registration. “Registration is fully refundable until October 19, 2022.”  More.

Saturday, May 7, 2022

Weekend Roundup

  • "On Agriculture & Antitrust: A Brief Summary of Legislative History," an illustrated white paper by  Jonathan Coppess, Department of Agricultural and Consumer Economics, University of Illinois, is here.
  • In December 1980, Richard A. Posner and George J. Stigler advised Ronald Reagan’s transition team how the new president could “throttle back on antitrust enforcement.” Read it here.
  • "How Japanese Americans Fought for—and Won—Redress for WWII Incarceration," by Mitchell T. Maki (History).

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

Friday, May 6, 2022

Wurman on Reconstructing Reconstruction-Era Rights

Ilan Wurman, Arizona State University Sandra Day O'Connor College of Law, has posted Reconstructing Reconstruction-Era Rights, which is forthcoming in the Virginia Law Review:

It is conventional wisdom that the Reconstruction generation distinguished between civil rights, with respect to which the Fourteenth Amendment would require equality, and political and social rights, which would be excluded from coverage. This paper challenges that wisdom. It demonstrates that social rights were not a concept relevant to the coverage of Article IV’s Privileges and Immunities Clause (the Comity Clause), the precursor to the Fourteenth Amendment’s Privileges or Immunities Clause. Antebellum legal and political sources used the term “social rights” in a variety of ways, but none tracked the purported Reconstruction-era trichotomy of civil, political, and social rights; most uses of the term connected social rights to civil rights, which Article IV (and therefore the Fourteenth Amendment) reached.

The harder question is whether the Fourteenth Amendment reaches “public” rights and privileges as opposed to “private” rights. A close examination of antebellum jurisprudence suggests that public rights were excluded from the scope of Article IV because they were privileges of “special” citizenship but not “general” citizenship common to the citizens “in the several states.” Public privileges are likely included under the Fourteenth Amendment, however, which guarantees the privileges and immunities of citizens “of the United States” within particular states, including the privilege of all U.S. citizens to the public privileges of their own states to which they contribute through general taxation. If this framing is correct, then both the interracial marriage and school desegregation cases are easier to sustain on originalist grounds than prior studies have suggested.
--Dan Ernst

Thursday, May 5, 2022

Simard to Speak on the Precedential Weight of Slavery

 [We have the following announcement.  DRE]

The Northwestern University Center for Legal Studies announces its Law in Motion Lecture with Justin Simard.  Thursday, May 12, 2022, 4:00 PM - 6:00 PM Central.  McCormick Foundation Center, McCormick Foundation Center Forum, 1870 Campus Drive, Evanston, IL 60208

Law was critical to the establishment and growth of American slavery. American judges authored roughly 10,000 appellate cases involving enslaved people and those cases continue to be cited by judges and lawyers and to serve as the basis for contemporary legal doctrine. Although thirteen percent of all published American cases are within two citations of a slave case, the significant influence of the law of slavery is almost never acknowledged by lawyers or legal scholars.

The Citing Slavery Project aims to uncover the history and legacy of the law of slavery. Once completed, our database of American slave cases available at www.citingslavery.org will offer open access to thousands of slave cases and give users the tools they need to analyze the continued influence of these cases on modern law. Slave cases are too deeply entwined in American law to excise their influence but ignoring their influence should no longer be an option.

Wednesday, May 4, 2022

Deadlines for ASLH prizes

An announcement from our friends at the American Society for Legal History. Close to our hearts here at the LHB is the new Anne Fleming Article prize. Please spread the word!

The ASLH awards a number of annual prizes that celebrate legal history research published or defended in the previous calendar year. Please see the following award descriptions below, and visit specific prize pages on our website for complete information. Note that each prize that requires nomination has a June 1, 2022 deadline.

Please also note that 2022 bring us a new prize, the Anne Fleming Article Prize.

Anne Fleming Article 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 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). No submission is necessary. The prize will be awarded in 2022, for work published in 2020 and 2021. 

Jane Burbank Global Legal History Article Prize 

The Jane Burbank Article Prize in global legal history is awarded annually to the best article in regional, global, imperial, comparative, or transnational legal history published in the previous calendar year. Submissions may address any topic or period, and may focus on case studies in which the analysis relates to broader processes or comparisons. Articles on methodological or theoretical contributions are also welcome. Annual nominations or self-nominations for the Burbank Prize are due June 1. Applicants should send an electronic copy of the nominated work to burbankprize@aslh.net.

Cromwell Article Prize

The William Nelson Cromwell Foundation Article Prize is awarded annually to the best article in American legal history published in the previous calendar year by an early career scholar. Articles published in the field of American legal history, broadly conceived, will be considered. There is a preference for articles in the colonial and early National periods. Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize. The author of the winning article receives $5,000. This prize is awarded by the Foundation after a review of the recommendation of the Cromwell Article Advisory Committee of the American Society for Legal History. Annual nominations or self-nominations for the Cromwell Article Prize are due June 1. Applicants should send an electronic copy of the nominated work, as well as necessary supporting documents detailed on the prize page, to Cromwell Foundation Secretary John Gordan at johngordan3@gmail.com and the Cromwell Article Prize Advisory Committee cromwellarticleprize@aslh.net.

Cromwell Book Prize

The William Nelson Cromwell Foundation Book Prize is awarded annually to the best book in the field of American legal history by an early career scholar published in the previous calendar year. The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference. The author of the winning book receives a prize of $5,000. This prize is awarded by the Foundation after a review of the recommendation of the Cromwell Book Prize Advisory Committee. Nominations for this prize, which may be made by the publisher of the nominated work, authors, or anyone else, are due June 1. Nominators should send copies of the nominated work, as well as necessary supporting documents detailed on the prize page, to each member of the Cromwell Book Prize Advisory Committee.

Cromwell Dissertation Prize

The William Nelson Cromwell Foundation Dissertation Prize is awarded annually to the best dissertation completed in the previous calendar year in any area of American legal history, including constitutional and comparative studies. Topics dealing with the colonial and early national periods will receive some preference. The author of the winning dissertation receives $5,000. This prize is awarded by the Foundation after a review of the recommendation of the Cromwell Dissertation Prize Advisory Committee of the American Society for Legal History. Annual nominations or self-nominations for the Cromwell Dissertation Prize are due June 1. Applicants should send an electronic copy of the nominated work, as well as necessary supporting documents detailed on the prize page, to Cromwell Foundation Secretary John Gordan at johngordan3@gmail.com and the Cromwell Dissertation Prize Advisory Committee cromwelldissertationprize@aslh.net.

Mary L. Dudziak Digital Legal History Prize

The Mary L. Dudziak Legal History Prize is awarded annually to an outstanding digital legal history project. These projects may take the form of either traditionally published peer reviewed scholarship or born-digital projects of equivalent depth and scope. Annual nominations or self-nominations for the Dudziak Prize are due June 1. Applicants should send an electronic copy of the nominated work, as well as necessary supporting documents detailed on the prize page, to dudziakprize@aslh.net

John Phillip Reid Book Award

The John Phillip Reid Book Award is 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, in the previous year. When awarding this prize, preference is given to work that examines seventeenth- through nineteenth-century Anglo-America and Native American law. Nominations for this prize, which must be made by the publisher of the nominated work, are due June 1. Publishers should send copies of the nominated work, as well as necessary supporting documents detailed on the prize page, to each member of the Reid Book Award Committee.

Peter Gonville Stein Book Award

The Peter Gonville Stein Book Award is awarded annually for the best book in non-US legal history written in English in the previous calendar year. Nominations for this prize, which may be made by the publisher of the nominated work, authors, or anyone else, are due June 1. Nominators should send copies of the nominated work, as well as necessary supporting documents detailed on the prize page, to each member of the Stein Book Award Committee.

Surrency Article Prize

The Surrency Prize is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year. The Surrency Prize Committee reviews every article published in the Law and History Review in the previous year. As such, nominations for this prize are unnecessary.

Sutherland Article Prize

The Sutherland Prize is 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. Annual nominations or self-nominations for the Sutherland Prize are due June 1, although, in keeping with past practice, the committee may also consider eligible articles nominated by the chair. To ensure consideration, authors are invited to nominate an article by sending an electronic copy to sutherlandprize@aslh.net.

-- Karen Tani

Jain, "Policing the Polity"

The Yale Law Journal has published "Policing the Polity," by Eisha Jain (University of North Carolina School of Law). Here's the abstract:

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S. communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices—including race-based demands to justify one’s presence—in light of the aim of building an integrated political community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine.

Read on here.

-- Karen Tani

Tuesday, May 3, 2022

Law, History and Visual Culture Seminar Series

[We have the following announcement.  DRE]

Law, History and Visual Culture Seminar Series
Every Thursday online from 26th May to 23rd June, 3:00-6:30 pm BST


This five part seminar series encourages and facilitates the growing interest in the interdisciplinary field of law, history and visual culture. As such, these reflections break away from the traditional view of law as an image-less, a text-based discourse.  Registration for each event is in the links below:

Seminar 1: Art, Law and Social Justice (Thursday 26 May 3:00-6:30 pm BST)

Pierangelo Blandino (University of Lapland)
Through a Legal Lens: Law, History, and Visual Culture

Elena Cooper (University of Glasgow)
Art, Copyright and Justice in the Nineteenth Century: Connecting Abraham Solomon’s ‘Waiting for the Verdict’ and ‘Not Guilty’ (1857) to Graves’ Case (1869)

Marcus V. A. B. De Matos (Brunel University London)
The Shadows of Modern State Law: a Visual Genealogy of Dark Knights

Sophie Doherty (Dublin City University)
What does Justice in the Aftermath of Sexual Violence look like?

Benjamin Goh (London School of Economics)
Perceiving Breitkopf Fraktur

Jack Quirk (Brown University)
Animus Possidendi: Nation Building and Settler Colonial Aesthetics

Seminar 2: Reflections of Law and Legal Prisms (Thursday 2 June 3:00-6:30 pm BST)

Agnes Barr-Klouman (University of Ottowa)
Mapping the Free North: Law, Geography, and Cartography in Early Canadian Arctic Sovereignty Claims

Zeynep Devrim Gürsel (Rutgers)
Portraits of Unbelonging: Photography, the Ottoman State and Armenian Expatriation

Matheus Gobbato Leichtweis and Davi Perin Adorn (Federal University of Rio Grande do Sul)
Law, History and Visual Culture: Critical Reflections from Brazil and Ideas for a New Research Agenda

Elizabeth Rajapakshe (University of Peradeniya)
The Images of Japanese Juvenile Law in Television: An Analysis of ‘Reiko to Reiko’ and ‘Hanzai Shokogun’

Joan Torrents Juncà (Universitat Autònoma de Barcelona)
A Weapon to Cut the ‘Plug’: The Visual Discourse on the Law of Incompatibilities During the Second Spanish Republic (1931-1936)

Li Zheng (Ecole des Hautes Etudes en Sciences Sociales/Max Planck Institute for Legal History and Legal Theory)
Seeing Law Through the Legal Costumes in Modern China

Seminar 3: Visual Evidence in Law and Legal Processes (Thursday 9 June 3:00-6:30 pm BST)

Thomas Giddens (University of Dundee)
Touching the Images of Judgment

Johannah Latchem (University of Oxford)
My Bloody Oar: Law’s Materials Reimagined in Contemporary British Art

Craig Newberry-Jones (University of Exeter)
‘The Jolly Young Barrister’: The Visual Representation of the Bar in the Popular Illustrated Press of the Nineteenth Century

Gee Semmalar (University of Kent)
The Evidencing of Difference: Caste, Gender and Ethnographic Photography in 19th c British India

Jennifer Tucker (Wesleyan University)
Moving Beyond the 'Mug Shot': Expanding the Frame for Considering how Photographs were used as Metropolitan and Colonial Evidence in Britain in the 1860s and 1870s

Diana Volonakis (Northumbria University)
Agents of the Law and the Court as Depicted by Press Photography in The New York World, 1922-1927

Seminar 4: Visualising Law in Society (Thursday 16 June 3:00-6:30 pm BST)


Patrick Brian Smith (University of Warwick)
Mediated Forensics: Visual Cultures of Resistance

Anat Rosenberg (Reichman University)
Ways of Seeing Advertising: Law and the Making of Visual Commercial Culture

Chris Ashford (Northumbria University)
Legal Perspectives on Visualising Queer Sex: Case Studies from Queer Theatre 1973-2019

Teresa Sutton (University of Sussex)
Ecclesiastical Exemption, Visual Culture and the Law

Lara Tessaro (University of Kent)
‘No Ban on Romance!’: Materializing Cosmetics through Product Labels, 1947-1960

Giulia Walter (University of Zurich) and Filippo Contarini (University of Lucerne)
Fabrizio De André’s Storia di un Impiegato

Seminar 5: Visual Legal Iconography (Thursday 23 June 3:00-6:30 pm BST)

Valentin Jeutner (Lund University)
The Relation between Law, Aesthetics and Empathy

Amanda Perry-Kessaris (University of Kent)
Will Future Legal Histories be more Visual?

Nicholas Mignanelli (Yale University)
The Lost Swedish-Language Minnesota Practice Rules of John B. West

Daniel Quiroga (Graduate Institute, Geneva)
‘Architects of the Better World’: The Birth of the International Conference Complex (1918-1998)

Katharina Isabel Schmidt (Max Planck Institute for Comparative and International Private Law)
Nazi Law and Visual Culture in the Exhibition ‘Das Recht’ (1936)

Grigorij Tschernjawskyj (Max Planck Institute for Legal History and Legal Theory)
Of Mirrors and Hammers: Women in Law and in Art of the Weimar Republic (1918–1933)

Monday, May 2, 2022

The Memoirs of Stanley Surrey

My copy of A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey, edited by Lawrence Zelenak and Ajay Mehrotra (Carolina Academic Press, 2022), has arrived.  The very extensive and thoughtful introduction by the editors is an imprortant contribution to legal history in itself, but of course the main event is, as the title suggests, Surrey's recollection of his career as the foremost scholar and policymaker of taxation in the late twentieth century.  I'll add that  work is also useful for historians of the New Deal, thanks to Surrey's pre-Treasury years with the National Recovery Administration and the National Labor Relations Board.  Here's the press's summary:

Stanley S. Surrey was the most prominent mid-twentieth-century American tax law academic, and the federal government official with the greatest influence on tax policy over that same period (aside from politicians). His professional life with the federal tax system spanned half a century, ending only with his death at the age of 73 in 1984. As Surrey writes in his memoirs, he had good reason to "doubt that any person alive today has had as close and as varied a relationship with the Internal Revenue Code as I have had."

He divided the five decades of his professional life between academia (three early years at the University of California, Berkeley, followed by many years at Harvard Law School), and two lengthy tours of duty in the service of the U.S. Treasury Department. In his second Treasury stint he served as the Assistant Secretary of the Treasury for Tax Policy, the highest executive branch position exclusively focused on taxation. Surrey's influence on the federal tax system was deep and pervasive and continues to this day; perhaps his most enduring accomplishment has been his development of tax expenditure analysis, which since the 1970s has played a central role in a wide range of tax policy discussions.

At his death in 1984, Surrey had written polished drafts of the majority of his planned professional memoirs. Until now, the memoirs have remained unpublished in the archives of the Harvard Law School Library. Lawrence Zelenak and Ajay K. Mehrotra have edited the memoirs for publication to produce this collection. This edited volume includes an comprehensive introductory essay on Surrey's professional life and his contributions to tax policy, as well as extensive annotations providing important background on the people and events Surrey discusses in the memoirs.
Dan Ernst

Saturday, April 30, 2022

Weekend Roundup

  • Congratulations to our friends at BC law for winning the American Association of Law Libraries’ 2022 Innovations in Technology Award for its website, “Robert Morris: Civil Rights Lawyer and Antislavery Activist.” 
  • Congratulations to Katrina Jagodinsky for her receipt of a Research Experience for Undergraduates site award from the National Science Foundation "to host eight undergraduate researchers for a ten-week summer program in digital legal research at University of Nebraska Lincoln for the next three years."  (More.)  She tells us she is eager to speak to those seeking more information about her project and the award.
  • That Harvard report on the university's legacy of slavery has generated related statements and commentary.  Among them is HLS Dean John F. Manning’s announcement of “initiatives to honor the enslaved people whose labor generated wealth that contributed to Harvard Law School’s founding and to better understand the legacy of slavery” (Harvard Law Today).  WaPo's report is here; Lawrence S. Bacow and Tomiko Brown-Nagin's op-ed in WaPo is here.
  • Registration for British Legal History Conference 2022 closes on Monday, May 2.
  •  The Death Panel podcast is spotlighting the history of Section 504, a landmark disability rights law. Part one is here.
  • NPR's Morning Edition interviewed Mary Ziegler (Florida State University College of Law) about "red state abortion restrictions" and their relationship to the Supreme Court's evolving reproductive rights jurisprudence.

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