Saturday, December 9, 2023

Weekend Roundup

  • The Ius Commune Podcast has released on Spotify the first of a two-part series on French Medieval Law with Ada Kuskowski, University of Pennsylvania.
  • Congratulations to Tomiko Brown-Nagin upon her receipt of the 2023 the Order of the Coif award for Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (Harvard Law Today).
  • Lee Wilson leads the new “legal history emphasis area” in the Department of History and Geography’s at Clemson University (Clemson News).
  • Here is the historians' amicus brief in the free speech case, Moody v. NetChoice, in the U.S. Supreme Court.
  • ICYMI: Saul Cornell on How the Supreme Court's Conservatives Can Solve Their Guns Dilemma Without Losing Face (Slate).  Unraveling Ulysses S. Grant’s Complex Relationship With Slavery (Smithsonian).  A six-episode, "true  crimes" podcast on the trial of Levi Weeks for the murder of Emma Sands in 1800.  (“I’m standing in this clothing store,” said the creator Allison Flom, and “see people around trying on sweaters and slacks, and mannequins everywhere, wanting to just scream, like, 'Someone was killed here!'”) (CBS News)

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

Friday, December 8, 2023

International Customary Laws Database Project

We have received a request for participants for an international research project, International Customary Laws Database Project, coordinated by Sylvain Soleil, professor in legal history at the University of Rennes.  It aims to

(1) put on line the sets of customary laws published throughout the world; (2) conduct an epistemological and interdisciplinary reflection on the writing down of oral traditions; (3) understand why certain political authorities have refused to put their legal traditions in writing; [and] (4) bring together researchers from all over the world to address these two issues.
Participants will transmit the text of customary laws in word form with a short introductory note.  The text and note would then be “integrated into the website of the Société de Législation Comparée (2024 - 2025).”  In exchange, participants would receive official certification of their participation, have access to the international network of participants, and be invited to take part in two videoconferences, in 2024 and 2025.

--Dan Ernst

Hoeflich's "Legal Feasts"

M.H. Hoeflich has published Legal Feasts (Talbot Publishing):

In this book, the author discusses the history and significance of gatherings of lawyers to share food, wine, and conversation. Conviviality is a cornerstone of these gatherings. He includes sample menus with commentary and sample recipes of dishes listed in these menus. This volume should entertain and instruct every lawyer and person interested in the legal profession, the law, food, and social occasions.

--Dan Ernst

Larson, "The Origins of Adversary Criminal Trial in America"

Carlton F. W. Larson (University of California, Davis) has posted "The Origins of Adversary Criminal Trial in America." The article appears in Volume 57 of the UC Davis Law Review. The abstract:

This Article explains how defense counsel were introduced into American felony trials. Building on John Langbein’s work on England in The Origins of Adversarial Criminal Trial, it argues that American jurisdictions pioneered the use of defense counsel in felony cases, a practice that was not allowed in England until the 1730s (and then only in piecemeal fashion). Rejecting some earlier attempts that have sought to locate this right in the seventeenth century, it argues that the relevant time frame is the first decades of the eighteenth century, when American jurisdictions, either by statute or by judicial practice, extended the right of counsel to felony defendants. Pennsylvania, perhaps spurred by Parliament’s elimination of jury trials in piracy cases, took the lead in 1701. The American innovation of defense counsel for accused felons would eventually spread throughout the common law world. Famed American defense lawyers, such as the fictional Perry Mason, are not American copies of English originals, but a distinctive American creation.

The Article then turns to the most plausible explanation for this innovation: the parallel development of public prosecution by lawyer prosecutors. Every American jurisdiction that recognized felony defense counsel had previously introduced public prosecutors. But the connection was not necessarily automatic or immediate. Not every jurisdiction that introduced public prosecutors recognized a right to felony defense counsel, and those that did often delayed the introduction by several decades or more. At minimum, the process was far messier and less predictable than some accounts have suggested.

Finally, the Article turns to the possibility of American influences on England. It argues that the American introduction of felony defense counsel may have made it easier for English courts to do the same. English judges would have been more likely to adopt a procedural innovation if they knew that it had been adopted successfully elsewhere. The Article suggests that the English Inns of Court may have helped transmit transatlantic legal knowledge, and it identifies specific American members of the Inns who could have played a crucial role. Although direct evidence on this point will likely remain elusive, it is plausible that the American introduction of felony counsel contributed to the rise of such counsel in England. Unlike many other areas of common law, where American courts simply followed English practice, this aspect of English law may have deep American roots. 

The full article is available here.

-- Karen Tani

Thursday, December 7, 2023

Grant, "Sir Edward Coke’s Infidel: Imperial Anxiety and the Origins of a ‘Strange Extrajudicial Opinion’”

The Journal of Modern History has published "Sir Edward Coke’s Infidel: Imperial Anxiety and the Origins of a 'Strange Extrajudicial Opinion,'" by Daragh Grant (University of Chicago). Here's the abstract:

In the middle of his report on the Case of the Post-nati, also known as Calvin’s Case (1608), Sir Edward Coke drew a distinction between the status of laws in conquered Christian and conquered infidel territories. Scholars have long interpreted this distinction as an expression of Coke’s interest in the Virginia Company, but the assumptions that underpin this colonial reading have recently been called into question. In this article, I revisit the influence of England’s early colonial ventures on Coke’s report. His remarks on infidels, I maintain, were intended to respond to a particular line of argument advanced before the Exchequer Chamber. Specifically, Coke aimed to foreclose the denization of Indigenous Americans in England as a result of colonial conquests, a possibility raised by counsel for both the plaintiff and the defense. Anxious about the potentially disordering implications of imperial expansion, Coke hoped to secure England’s legal order by excluding infidels from English subjecthood. But if this was what Coke intended by his remarks on infidels, what he did was furnish a new justification for colonial conquest that ran contrary to his own aims. In the conclusion of this article, I exploit this disconnect between Coke’s intentions and his actions to make a modest contribution to ongoing debates over the relationship between law and history.

Access to the full article appears to be behind a paywall.

-- Karen Tani

Friedman on Chinese Law and the Confucius Myth

Daniel Friedman, Villanova University Charles Widger School of Law, has posted “Confucius” and America’s Dangerous Myths about Chinese Law, which is forthcoming in the University of Pennsylvania Journal of International Law:

Confucius (NYPL)
American legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this article will show, the reality is very different.

From the 16th century to the present day, scholars, politicians, and others with an axe to grind have constructed a series of legally influential “Confuciuses” to score points in the debates of their day. Unfortunately, American legal scholars are stuck repeating these self- interested stories with little idea of where they came from or what they mean. American authors largely view this “Confucian” legal legacy as something suspicious, or at least exotic, and their descriptions exacerbate the Sino-American cultural and political gulf. Chinese authors, on the other hand, often view it as a matter of national pride, a demonstration of the power and centrality of a Chinese civilization destined to sway modern Asia.

In this article, I argue that these erroneous views of the “Confucian” nature of Chinese legal culture have profound implications, impairing our ability to clearly understand contemporary Chinese law and contributing to a global and domestic atmosphere of suspicion and hatred. Only by untangling where our ideas about “Confucian law” come from and what they really imply can we hope to avoid exacerbating Sino-American hostility on the one hand and nationalist Chinese expansionism (of the kind felt most sharply in Tibet, Hong Kong, Taiwan, and Xinjiang) on the other. 
--Dan Ernst

Zhang on the Great Qing Code and Private Law

Taisu Zhang, Yale Law School, has posted The Private Law Influence of the Great Qing Code, which appears in The Making of the Chinese Civil Code, ed. Hao Jiang and Pietro Sirena (Cambridge University Press, 2023), 249-68:

This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020. 
--Dan Ernst

Wednesday, December 6, 2023

Gifford, Boldt & Robinette on Torts and Originalism

Donald G. Gifford and Richard C. Boldt, University of Maryland Francis King Carey School of Law, and Christopher J. Robinette, Southwestern Law School, have posted When Originalism Failed: Lessons from Tort Law, which is forthcoming in the Florida State University Law Review:

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first is practical: the historical meaning and intended application of constitutional provisions often are elusive. In some instances, courts simply commit outright errors in constructing the historical narratives on which the decisions rest. In other cases, the use of thick originalism requires judges to exercise wide discretion to determine where to begin a historical inquiry and which sources to consult. This wide discretion, and the related problem of judicial bias associated with highly discretionary interpretive practices, are the very problems originalism is said to solve. The use of thick originalism may create the appearance of objectivity, but in fact considerable subjectivity of judgment is simply buried in the construction of the histories governing the out-come in these cases. The second problem associated with the use of thick originalism is normative. The use of a rigid form of originalism to define the contours of constitutional rights interrupts the ordinary operation of the common law and imposes on today’s society the values of the dominant white, male, and propertied power structure existing at the time of the adoptions of the Constitution and the Fourteenth Amendment. Society today is different than in the largely agrarian communities that composed the United States at the Founding. Solutions to Founding-era problems do not necessarily translate to the modern United States.

--Dan Ernst

Tuesday, December 5, 2023

CFP: Law Culture and Humanities Graduate Student Workshop 2024

We have the following Call for Proposals:

Law Culture and Humanities Graduate Student Workshop 2024

University of British Columbia

The Annual Association for the Study of Law, Culture, and the Humanities Graduate Student Workshop will be held on Thursday 16 May 2024 (the day before the annual meeting begins).

The workshop is designed for graduate students who are undertaking research that cuts across law, cultural studies, literature, philosophy, legal studies, anthropology, political science, and history, among others. The workshop is designed to afford graduate students the opportunity to experience the LCH community in a smaller venue with more sustained contact with one another and some faculty. The workshop also provides graduate students with an opportunity to discuss their research projects in a small group setting in anticipation of such things as job talks and publication.

Applications to the workshop should consist of a current curriculum vitae (2-3 page maximum), an abstract of a current project not exceeding 700 words, as well as a short (5- page maximum) text relating to that project. This “text” could be a case, literary work, a time-line, a photo, a sound or video file, or some other relevant text. The text you choose should be something that helps you reflect on the subject of your work and your methods of analysis. Please use your judgment and best guess in deciding how audio, visual, or audio-visual materials "translate" into pages of text.

Applicants whose proposals are accepted will receive some support towards an extra night's accommodation from LCH as well as some support (varying, depending on distance traveled) towards the cost of transportation to the conference site. While those who participated in a previous workshop may re-apply and participate again, should space and/or funds be limited, we will prioritize new participants. Please email your applications to by January 31, 2024.

-- Karen Tani

CFP: Law, Culture, and the Humanities Conference (2024)

We have the following Call for Papers:

Law, Culture, and Humanities 26th Annual Conference, University of British Columbia, May 17-18, 2024

Senses of Law

Law is heard, seen, experienced, felt, and understood in many ways. This year’s theme invites submissions on legal senses, sensibilities, and sensations. What satisfies “the sense of justice”? What makes for a legal sensation? How does law depend on, appeal to, or defy common sense(s)? What are the different sensibilities that law creates, cultivates, challenges, and ignores? How do the meanings that law takes for granted, or brings into being, fall differently on different ears?

Submission Guidelines

We encourage the submission of fully constituted panels, as well as panels that reimagine or experiment with models for academic presentation, such as roundtables, author meet reader sessions (which may include multiple books and their authors in conversation), collaborative presentations, multi-panel streams, etc. Individual proposals should include a title and an abstract of no more than 250 words.

Please note that online presenters should organize a full panel (we will not be accepting individual papers for online presentations this year) and that, though we traditionally accept most papers, we may need to limit the number of online panels we accept, depending on demand.

Panels, whether virtual or in-person, should include three papers (or, exceptionally, four papers). Please specify a title and designate a chair for your panel. The panel chair may also be a panel presenter. It is not necessary to write an abstract or proposal for the panel itself.

To indicate your pre-constituted panel, roundtable, or stream, please ensure that individual registrants provide the name of the panel and the chair in their individual submissions on the registration site. All panel, roundtable, or stream participants must make an individual submission on the registration site. When submitting a proposal, we also ask that registrants identify two keywords to help us align sessions with each other.


The twenty-sixth annual conference will emphasize the LCH tradition of in-person conversation. While we encourage participants to join us in Vancouver, we recognize that in-person attendance may be prohibitive for some. To that end, we will also accept the submission of virtual panels.

Since we will not be providing technical support for virtual participants, panel chairs will be responsible for providing Zoom links that will be listed in the program. All plenary sessions will be available streaming online as well as in person.

How to Submit?

Submissions may be made through our website:

Creating a Panel

While participants may submit individual paper proposals that the Program Committee will later combine into full panels, we strongly encourage applicants to create full panels prior to submission. Pre-formed panels may cohere better, and allow collaborators to craft focused scholarly exchanges. Panels comprising a diversity of institutions, academic ranks, disciplines, and identities are often the most rewarding.

If you would like support in finding others who might be interested in forming a panel, please contact our Graduate Coordinators, Tyler King ( and Linsday Stern (, with “LCH panel” in the subject line. The Graduate Coordinators will act as intermediaries, and may be able to put you in contact with others working on related topics.

We especially encourage graduate students and those new to LCH to consider reaching out to the Graduate Coordinators if they’re struggling to identify potential co-panelists. Please contact them well before the submission deadline, to allow time for follow-up. 

Submission Deadline: January 31, 2024
Dates of Conference: May 17-18, 2023

Contact Information

In case of any query mail us at

-- Karen Tani 

Monday, December 4, 2023

Nachbar on Politically Dynamic Competition

Thomas Nachbar, University of Virginia School of Law, has posted Politically Dynamic Competition:

James Landis (LC)
There is a live debate going on over whether antitrust should take a broader view of the economics of market concentration. When antitrust reformers like Lina Khan (Chair of the Federal Trade Commission) argue for a return to “Brandeisian” approaches to antitrust, they offer arguments sounding in the economics of dynamic competition (in opposition to the currently dominant approach to antitrust: the consumer welfare standard frequently attributed to Robert Bork). But their real argument is not about the economics of efficiency; it’s about the relative roles of government and business in the structuring of competition.

This tension has been at the root of trade regulation since the inception of nationalized trade regulation during the British mercantile order. Couching political disputes such as these in the rhetoric of technical expertise is not new; it was a major part of the movement (James Landis’s “administrative process”) underlying the creation of the larger administrative state of which Federal Trade Commission is only a part. But the FTC has never fit comfortably in the technocratic approach to administrative regulation, and recent proposals by antitrust regulators only highlight why.

When understood in political rather than technical terms, the current battle over the politics of both innovation and competition highlights the inherently political role of politically insulated agencies like the FTC. Although ostensibly appealing to the technical application of economic concepts like the choice between static and dynamic competition, the FTC’s arguments for increased deference to determine what types of conduct constitute “unfair methods of competition” have implications that go far beyond the ambit of economics. Claims by antitrust enforcers that they should have stronger antitrust law to enforce (and more power to interpret antitrust law) should be viewed not through the lens of economics but instead through the lens of the political and constitutional order. That much was clear in 1624, when the Statute of Monopolies was adopted, and 1914, when the Federal Trade Commission Act was; it should be equally so today.

Political claims are hardly new to antitrust, although relative stability in antitrust scholarship since the late 1970s has misled many to think those political questions had been resolved. Antitrust has been dominated over the last forty-five years by seemingly technical, neoclassical microeconomics, but the privileged placement of such concerns has been the product of a separate, political commitment: the consumer welfare standard. The consumer welfare standard is best seen not as a statement about economics but about antitrust’s role in the political, regulatory order. The current attack on the consumer welfare standard is clearly political; its defense needs to be political as well.
--Dan Ernst

Prakash on the Commander-in-Chief Clause

Saikrishna Prakash, University of Virginia School of Law, has posted Deciphering the Commander-in-Chief Clause, which appears in the Yale Law Journal:

George Washington (LC)
The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of “commander in chief” is as obvious as it is unequivocal—it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power begins and ends. In particular, establishing the Clause’s limits is an acute and persistent problem.

Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause’s elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistently directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the “first General and Admiral.” The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term “commander in chief” would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them.

To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these other clauses.

How we read the Commander-in-Chief Clause matters. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause. 
--Dan Ernst

Saturday, December 2, 2023

Weekend Roundup

  • Dorothea Heron (ILN)
    "The Law Society of Northern Ireland has unveiled a portrait of Dorothea Heron, who made legal history as the first woman to qualify as a solicitor anywhere on the island of Ireland" (Irish Legal News).  
  • The Supreme Court of Pennsylvania has opened a center on its history within the Pennsylvania Judicial Center, in the Capitol Complex (Penn Live).
  • Noah Rosenblum, NYU Law, weighed in on the legal and historical issues in SEC v. Jarkesy, which was argued before the US Supreme Court this week, in "The Case That Could Destroy the Government" (The Atlantic).  "Many conservative judges don’t even bother to make substantial originalist arguments anymore," Professor Rosenblum writes.  "A lazy hand-waving suffices instead. They sprinkle in a few historical quotations, refuse to engage seriously with historians’ findings, and then declare that their right-wing policy preferences are dictated by the authority of history."  He and Ilan Wurman discussed the case and scholarship on the delegation of Congressional power and the Unitary Executive at the Founding in a National Constitution Center podcast moderated by Jeffrey Rosen.  
  • The 43-minute documentary My Native Air: Charles Evans Hughes and the Adirondacks is now available on YouTube.  M/t: JQB. 
  • “On December 9, at 1 p.m. Paul Ellis Graham will lecture on “Henry Lawrence Burnett: Prosecuting the Lincoln Conspirators” in the lower level of Monroe Town Hall (1465 Orange Turnpike, Monroe, [New York]) (The Chronicle).
  • The Program Committee of the Organization of American Historicans, whose co-chairs include Kate Masur, Northwestern University, has issued a call for proposals for its in-person Conference on American History to be held in Chicago, April 3-6, 2025.
  • ICYMI: Mark Graber on  Donald Trump and the Jefferson Davis Problem (NYT).

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

Friday, December 1, 2023

Donges et al. on Patent Litigation in the German Empire

Alexander Donges, University of Mannheim, Felix Selgert, University of Bonn, and Jochen Streb, University of Mannheim, have posted Patent Litigation in the German Empire:

Factory of Westingtouse-Eisenbaum-Bremsen (wiki)
We provide an empirical analysis of patent litigation in the German Empire by using a new data set that includes detailed information on patent proceedings. Our data combine micro-level information on nullification decisions by the Imperial Patent Office and the court of appeal, the Imperial Court, with data on high-value patents. By using nullification decisions as a proxy for patent conflicts, we analyze the differences in the intensity of patent conflicts across industries. Our results reveal a significant heterogeneity. By introducing the new concept of technological concentration, we show that in industries with high technological concentration patent litigation was less frequent. We argue that, unlike small and medium-sized enterprises, innovative companies with market power had the option of resolving patent disputes outside the courts through cartel-like agreements such as patent pools. 
--Dan Ernst

Black's "Branding Trust"

Jennifer M. Black, Misericordia University, has published Branding Trust: Advertising and Trademarks in Nineteenth-Century America (University of Pennsylvania Press):

In the early nineteenth century, the American commercial marketplace was a chaotic, unregulated environment in which knock-offs and outright frauds thrived. Appearances could be deceiving, and entrepreneurs often relied on their personal reputations to close deals and make sales. Rapid industrialization and expanding trade routes opened new markets with enormous potential, but how could distant merchants convince potential customers, whom they had never met, that they could be trusted? Through wide-ranging visual and textual evidence, including a robust selection of early advertisements, Branding Trust tells the story of how advertising evolved to meet these challenges, tracing the themes of character and class as they intertwined with and influenced graphic design, trademark law, and ideas about ethical business practice in the United States.

As early as the 1830s, printers, advertising agents, and manufacturers collaborated to devise new ways to advertise goods. They used eye-catching designs and fonts to grab viewers’ attention and wove together meaningful images and prose to gain the public’s trust. At the same time, manufacturers took legal steps to safeguard their intellectual property, formulating new ways to protect their brands by taking legal action against counterfeits and frauds. By the end of the nineteenth century, these advertising and legal strategies came together to form the primary components of modern branding: demonstrating character, protecting goodwill, entertaining viewers to build rapport, and deploying the latest graphic innovations in print. Trademarks became the symbols that embodied these ideas—in print, in the law, and to the public.

Branding Trust
thus identifies and explains the visual rhetoric of trust and legitimacy that has come to reign over American capitalism. Though the 1920s has often been held up as the birth of modern advertising, Jennifer M. Black argues that advertising professionals had in fact learned how to navigate public relations over the previous century by adapting the language, imagery, and ideas of the American middle class.

--Dan Ernst

Thursday, November 30, 2023

Max Planck Summer Academy for Legal History

[We have the following announcement.  H/t: KIS.  DRE]

Max Planck Summer Academy for Legal History 2024, 1 July – 12 July 2024

The Max Planck Summer Academy for Legal History provides a selected group of highly motivated early-stage research students, usually PhD candidates, with an in-depth introduction to traditional and contemporary approaches and methods in legal history.

The Summer Academy consists of three parts. The first part introduces the international group of PhD students to sources, methodological approaches and theoretical models as well as to controversial research debates on fundamental issues of legal history. The introductory courses are led by members of the Institute and external guest speakers. In the second part, the invited participants present their own projects within the context of the respective year’s special topic. The third part of the Academy offers the opportunity to all participants to further develop their own research by making use of the library and by discussing their projects with the Institute’s experts in the different fields of legal history.

The course will take place at the Max Planck Institute for Legal History and Legal Theory in Frankfurt am Main, Germany (mpilhlt).

This year’s theme: The mediality and materiality of law.  ‘Mediality’ and ‘materiality’ are important keywords in historical and cultural studies debates. Legal scholarship has also been devoting a great deal of thought to the material and medial conditions of the production and enforcement of law. Legal history has been pursuing this avenue of research for quite some time, noteworthy examples of which include legal archaeology and the long-standing discussions on orality and writing, for example, in medieval legal history.

As of late, more theoretically grounded considerations have entered this discussion, which ask, for instance, about the interplay between the form and content of legal texts through the advent of new technologies such as printing or digitisation. There is a fair amount of interest in the legal significance of of rituals and how they are performed, the connections between architecture, furnishings, and attire as well as the normative power of images. Some even question whether the history of law would look very different if it had not been written solely based on written sources but, for example, on images and artefacts. The question of the ‘mediality’ and the ‘materiality’ of law thus also touches on fundamental aspects of legalhistorical research such as the concepts of the ‘source’, the ‘archive’ and ultimately even that of law.

Such issues will be the focus of the 2024 Summer Academy.

Eligibility Requirements.  Early-stage research students, usually PhD candidates. Working knowledge of English is required, German is not a prerequisite.

Application.  All applications must be supported by a CV, a project summary (approx. 10 pages) and a letter of motivation. Please send your applications via e-mail to:  Submission deadline for applications is 31 January 2024.

Fees.  The Academy is generously funded by mpilhlt. There is no participation fee. Accommodation will be provided by the organisers for free. Participants, however, will be responsible for covering their travel expenses (in cases of hardship these can be covered by a limited number of scholarships).

Kontakt.  Stefanie Rüther, Forschungskoordinatorin +49 (69) 789 78 - 190 ruether@...

Parker's "Turn to Process"

Kunal M. Parker, University of Miami School of Law, has published The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970, in the series Cambridge Historical Studies in American Law and Society, edited by Christopher L. Tomlins.

In The Turn to Process, Kunal M. Parker explores the massive reorientation of American legal, political, and economic thinking between 1870 and 1970. Over this period, American conceptions of law, democracy, and markets went from being oriented around truths, ends, and foundations to being oriented around methods, processes, and techniques. No longer viewed as founded in justice and morality, law became a way of doing things centered around legal procedure. Shedding its foundations in the 'people, ' democracy became a technique of governance consisting of an endless process of interacting groups. Liberating themselves from the truths of labor, markets and market actors became intellectual and political techniques without necessary grounding in the reality of human behavior. Contrasting nineteenth and twentieth century legal, political, and economic thought, this book situates this transformation in the philosophical crisis of modernism and the rise of the administrative state.
Here are some endorsements:
‘Ranging widely across disciplines, crossing political boundaries, and unsettling conventional wisdom at every turn, The Turn to Process provides a brilliant new synthesis of a transformative period in American intellectual life.’

Angus Burgin - Johns Hopkins University

‘This book is a real tour de force, a return to intellectual history in the grand manner. In Kunal Parker’s synthesis, the leading theorists of law, political science, and economics in the twentieth century all contributed to, and followed, a shift away from theorizing their sciences as means to substantive ends such as justice or morality, to thinking about them only as methods or procedures. The book is marked by deep learning in the sources of all three fields and an uncommon lucidity in exposition.’

Robert W. Gordon - author of Taming the Past: Essays on Law in History and History in Law

‘In this revelatory account of ‘a world rendered process’, Kunal Parker brilliantly reframes the history of modern American knowledge-making. As foundational certainties faltered in the late nineteenth century, he contends, the language of tools, methods, and techniques remade entire disciplines and professions - with enduring consequences for how we understand law, democracy, and markets.’

Sarah Igo - author of The Known Citizen: A History of Privacy in Modern America
Professor Parker discusses the book here.

--Dan Ernst

Wednesday, November 29, 2023

Blackhawk, "The Constitution of American Colonialism"

The Harvard Law Review has published "The Constitution of American Colonialism," by Maggie Blackhawk (New York University). The article appears as the Foreword to the law review's annual Supreme Court Issue. Here is an excerpt from the introduction to the piece:

The United States holds hundreds of governments in subordination. Not historically. Today. It dominates these governments and their peoples, exploits their resources, prohibits political independence, withholds representation, and imposes its own laws, values, and norms upon these governments without consent. Mere decades ago, the United States forcefully sterilized citizens of these nations3 and removed a quarter or more of Native children from their families.4 At the same time, the Supreme Court stripped these governments of the ability to police crimes in their own communities,5 unleashing widespread sexual violence and leaving more than one in three Native women vulnerable to rape.6 Just over a hundred years ago, the United States invaded these nations and held them under decades of martial law before unilaterally appointing civil governments.7 It ran detention camps on the lands of these governments8 and forced their children into boarding schools that promised to “[k]ill the Indian in [them], and save the man.”9 Federal agents beat Native children in such schools for speaking Native languages,10 held them in unsanitary conditions,11 and forced them into manual and dangerous forms of labor.12 Thousands died.13 Federal law also criminalized political and spiritual practices14 and outlawed traditional marriage and family structures.15 In the last two hundred years, the United States has engaged in campaigns of mass execution16 and slaughter against citizens of these governments to a level that many have called genocide.17

But we do not consider these problems to be problems of constitutionalism. We do not invoke this history when considering questions of good governance, citizenship, representation, the ideal design of our governing institutions, or the best distribution of power across the national government and within “our federalism.” Constitutional scholars rarely discuss the problem of American colonialism at all. We lack the very language to confront these problems in a constitutional register. Our common parlance of rights, equality, and integration fails us. Our antisubordination discourse runs out. The limits of our constitutional language are seemingly the limits of our world.18

Instead, we call the component parts of American colonialism sui generis.19 We banish each to its silo. The United States did not engage in a structured and mass campaign to remove, detain, assimilate, and destroy these governments and their peoples in the name of “civilization.” Rather, we have federal Indian law;20 the law of the territories;21 foreign relations law;22 treaty law;23 the war powers;24 and the laws of naturalization, immigration, and citizenship.25 We have the puzzle of Puerto Rico,26 the fascinating but marginalized question of Native nations,27 and the forgotten history and ongoing struggles of the state of Hawai‘i.28 All of these puzzles are seen as so illogical and alien as to withstand theorization, defy understanding, and refuse any common logic. Rather than engage with questions born of American colonialism, we have instead declared these puzzles as beyond our constitutional theory and left them to the “plenary power” of the political branches to solve.29

Yet, these colonized nations and peoples have lived on and continue to shape the government, the Constitution, and the empire we live with today.

Read on here. The journal has also published a response by Jennifer M. Chacón (Stanford Law School).

-- Karen Tani

MPI-TAU Transnational Legal History Workshop

[We have the schedule for the Transnational Legal History Workshop, sponsored by the Max Planck Institute and Tel Aviv University.  DRE]

The Berg Foundation Institute for Law and History at The Buchmann Faculty of Law, Tel Aviv University, and the Max-Planck-Institute for Legal History and Legal Theory will continue the joint MPI-TAU Transnational Legal History Workshop in the Fall Semester 2023/2024.

The workshop will meet from 19:00-20:30 (Frankfurt time) and 20:00-21:30 (Tel Aviv time). This year's organizers and moderators are Leora Bilsky (TAU), Thomas Duve (MPI), Rachel Friedman (TAU), David Schorr (TAU), and Stefan Vogenauer (MPI).

Sessions will be conducted on Zoom and will be based on pre-circulated papers. The papers will be sent to each participant one week in advance.

Registration for participation is required:

6 December                Assaf Likhovski (TAU)

Studying Ancient Constitutional Law in Colonial India and Mandatory Palestine

13 December              Jan-Henrik Meyer (MPILHLT)

European Community Environmental Law in the 1970s: Combatting Water Pollution

20 December              Noga Morag-Levine (Michigan State University)

England’s Missing Boards of Health: The Medieval Beginnings of an Anglo-Continental Divergence

10 January                  Alon Jasper (TAU)

Transforming a Polity into an Economy: The Five Nations and the Railroads, 1855-1894

17 January                  Raquel Sirotti (MPILHLT)

State-like powers? Charter Companies and the production of knowledge of normativity in Mozambique (1891-1942)

24 January                  Egas Moniz Bandeira (FAU)

Changing Legal Professions in China, Japan, and the Ottoman Empire in the long 19th century: Towards a Historical Comparison

31 January                  Aparna Balachandran (Delhi University)

Religion, Law and Urban Governance: Subaltern Christians as Legal Subjects in Early Colonial South India

7 February                  Cristiano Paixão (University of Brasília)

Transnational legal mobilization: repressive structures and networks of resistance in S. American dictatorships (1964-1988)

14 February                Julia Moses (University of Sheffield)

Harmonizing the Family? International Law, Cultural Norms and Marriage at the Turn of the Twentieth Century

21 February                Sarina Kuersteiner (Union College)

Whatever God Gives: Arabic and Judaeo-Arabic Rizq and Latin Resicum in Commercial Vocabulary, 1154-1164 CE

Willrich's "American Anarchy"

Michael Willrich, Brandeis University, the immediate past president of the American Society for Legal History, has published American Anarchy: The Epic Struggle between Immigrant Radicals and the US Government at the Dawn of the Twentieth Century (Basic Books):

In the early twentieth century, anarchists like Emma Goldman and Alexander Berkman championed a radical vision of a world without states, laws, or private property. Militant and sometimes violent, anarchists were heroes to many working-class immigrants. But to many others, anarchism was a terrifyingly foreign ideology. Determined to crush it, government officials launched a decades-long “war on anarchy,” a brutal program of spying, censorship, and deportation that set the foundations of the modern surveillance state. The lawyers who came to the anarchists’ defense advanced groundbreaking arguments for free speech and due process, inspiring the emergence of the civil liberties movement.

American Anarchy
tells the gripping tale of the anarchists, their allies, and their enemies, showing how their battles over freedom and power still shape our public life. 

Some endorsements:

"Michael Willrich's genius is to bring to life vitally important but little-known struggles in U.S. history. In American Anarchy, he explains why some late nineteenth-century Americans rejected a rule of law they believed privileged the wealthy, and shows how the government's attempt to silence them gave rise to the protections of civil liberties. Brilliantly written and deeply engaging; every page illuminates today's America."
Heather Cox Richardson, author of How the South Won the Civil War

"In American Anarchy, Michael Willrich recaptures the high drama and ultimate tragedy of the anarchist movement in the United States. A century ago, Emma Goldman and her comrades were household names, inspirations for both liberatory promise and deep, abiding fear. With their challenges to the social order—sometimes through spectacular violence and terrorism—they upended assumptions about safety, liberty, and capitalism itself. In the process, they remade American law, for both better and worse. Willrich's book provides a compelling account of the cases and conflicts that once preoccupied the nation."
Beverly Gage, Pulitzer Prize–winning author of G-Man

--Dan Ernst

Tuesday, November 28, 2023

English Law, the Legal Profession, and Colonialism

English Law, the Legal Profession, and Colonialism: Histories, Parallels, and Influences, edited by Cerian Griffiths, Northumbria University, and Lukasz Jan Korporowicz, University of Lodz (Routledge, 2024):

Modern legal history is increasingly interested in exploring the development of legal systems from novel and nuanced approaches. This edited collection harnesses the lesser-researched perspectives of the impact of global and imperial factors on the development of law. It is argued that to better understand these timely discussions, we must understand the process and significance of colonisation itself. The volume brings together experts in the field of law and history to explore the ways in which law and lawyers contributed to the expansion of the British Empire, and the ways in which the Empire influenced the Metropole. The book sheds new light on the role of the law and legal actors during the pivotal centuries that saw the establishment of the Empire. Exploring such topics as Atlantic relations, the impact of British jurists upon Indian law, and the development of the law settler colonies, this collection reveals some of the lesser-known intersections between law, history, and empire. The book will be of interest to students and researchers in legal history, comparative history, equity and trusts, contract law, the legal profession, slavery, and the British Empire.
TOC after the jump.

--Dan Ernst

Monday, November 27, 2023

Keay, Inwood, & Long on Criminal Sentencing in BC, 1864-1913

Ian Keay, Queen's University, Kris Inwood, University of Guelph, and Blair Long, Cape Breton University, have posted Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913:

BC Penitentiary 1877 (wiki)
In this paper we document the effect of transformative institutional change on criminal sentencing in a frontier environment. New historical evidence digitized from British Columbia’s (BC) prison admission ledgers allows us to track changes in sentencing distributions from 1864 to 1913. We find that as BC's criminal justice system moved from informal and locally independent colonial institutions, toward a set of institutions that closely resemble the system in place today, average sentences got longer and sentence dispersion fell. We isolate the increase in sentence length and decrease in sentence dispersion that can be attributed to changes in judicial decision-making by controlling for changes in the observable characteristics of the province's prison population. We also show that changes in the sentencing distribution were coincident with a reduction in judicial discretion, an increase in sentence predictability, and an expansion in the criminal justice system along the extensive margin. 
--Dan Ernst

Wang's "Making of Felony Procedure in Middle English Literature"

Elise Wang, California State University, Fullerton, has published The Making of Felony Procedure in Middle English Literature in the Law and literature series at Oxford University Press:

The Making of Felony Procedure in Middle English Literature explores the literary inheritance of criminal procedure in thirteenth to fifteenth century English law, focusing on felony, the gravest common law offense. Most scholarship in medieval law and literature has focused on statute and theory, drawing from the instantiating texts of English law: acts of Parliament, judicial treatises, the Magna Carta. But those whose job it was to write about the law rarely wrote about felony. Its definition was left to its practice--from investigation to conviction--and that procedure fell to local communities who were generally untrained in the law. Left with many practical and ethical questions and few legal answers, they turned to cultural ones, archived in sermons they had heard, plays they had seen, and poetry they knew. This book reads the documents of criminal procedure--coroners' reports, plea rolls, and gaol delivery records--alongside literary scenes of investigation, interrogation, and witnessing to tell a new intellectual history of criminal procedure's beginnings.

The chapters of The Making of Felony Procedure guide the reader through the steps of a felony prosecution, from act to conviction, examining the questions local communities faced at each step. What evidence should be prioritized in a death investigation? Should the accused consider narrative satisfaction when building his plea? What are the dangers of a witnessing system that depends so heavily on a few "oathworthy" men? What can a jury do if the accused's guilt seems partial or complex? And what if the defendant-for whatever reason--refuses to participate in this new, still--delicate system of justice? The book argues that answers they found, and the sources that informed them, created the system that became modern criminal procedure. The epilogue offers some thoughts about the resilience and incoherence of the concept of felony, from the start of the jury trial to the present day.

The TOC is here.

--Dan Ernst

Saturday, November 25, 2023

Weekend Roundup

  • The Birnbaum Women's Leadership Center at New York University invites applications for Visiting Fellows-in-Residence for the 2024-25 academic year. "Ideal candidates are legal scholars with sabbatical funding who seek to undertake research and writing, organize events, and otherwise collaborate on projects focused on women’s rights and gender equity and justice."

  • Judge Ryan Nelson of the U.S. Court of Appeals for the Ninth Circuit, will be teaching Constitution in the Early Republic next semester at Berkeley Law.  H/t: Orin Kerr.
  • The Oral History Center at the University of California, Berkeley, has announced "the launch of the Japanese American Intergenerational Narratives Project, featuring 100 hours of oral history interviews with 23 Japanese American narrators who are survivors and descendants of two World War II-era sites of incarceration." 
  • More on “Legacies of 1619: Law and Race at Jamestown,” a public education project, in which the Jamestown Rediscovery Foundation has partnered with the William & Mary Law School’s Legal History Society, a student organization advised by Thomas McSweeney.  The public historian Mark Summers explains that the project will “connect programs looking at the early days of race-based slavery in Virginia and the First Assembly, the first representative governing body to meet in the Americas” (Virginia Gazette).
  • Himanshu Agarwal, an associate professor at Jindal Global Law School; Sebastian Spitz, a doctoral student in Sociology at Harvard; and Rohit Sharma, a researcher at the Mittal Institute”  “presented archival research on the history of punishment in India during a webinar panel Monday morning hosted by Harvard’s South Asia Institute. ... The event was moderated by Adaner Usmani, an assistant professor of Sociology and Social Studies at Harvard (Harvard Crimson).
  • The Law Society of Irelands Barry Whelan will speak about the life of Michael Noyk, “legal advisor to Michael Collins during the War of Independence” and “one of the principal solicitors acting on behalf of arrested Republican figures,” on Wednesday, January 24 (6pm to 8pm) at the Moya Quinlan Lecture Theatre, Education Centre, Law Society of Ireland, Blackhall Place, Dublin 7 (Law Society Gazette).
  • ICYMI: Prosecuting a Wobbly in Iowa in the 1920s (Cedar Rapids Gazette). Amanda Levendowski on Barbara Ringer, from 2014, but on the 50th anniversary of Ringer's appointment as the first female Register of Copyrights (The Atlantic, via Internet Archive).  Joshua Getzler joins Cornerstone Barristers as an associate member (Local Government Lawyer).

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

Friday, November 24, 2023

Avi-Yonah on the First US Tax Treaty

Reuven S. Avi-Yonah, University of Michigan Law School, on the The First US Tax Treaty and Its Influence:

This paper discusses the first US tax treaty concluded with France in 1932 and ratified in 1935. This treaty is interesting because it follows the League of Nations model of 1928 but with significant differences. It is also a treaty between a global jurisdiction and (at the time) a purely territorial one. This meant that while reductions in French taxes benefited the US fisc because they resulted in lower foreign tax credits (but the overall tax level was the same), French investors into the US could derive some types of income (e.g., royalties) without any tax being imposed by either country. This may also explain why the treaty was more limited in scope than the League of Nations model. But the main importance of the treaty is because it is the first ever appearance of the Arms Length Principle in international tax, which had a profound influence.
--Dan Ernst

Sood and Ehrman-Solberg on the Effects of Racial Restrictive Covenants

Aradhya Sood, University of Toronto, and the late Kevin Ehrman-Solberg, have posted Mapping Prejudice:
Racial covenants, which were used throughout the U.S. during the first half of the 20th century, were clauses in property deeds that prohibited the sale or rental of property to racial and ethnic minorities. This paper studies the long-run causal and persistent effects of racially restrictive covenants on racial sorting, racial homeownership differentials, and house prices. Using novel data on racial covenants and a quasi-experimental design that exploits time to build delays in housing and the 1948 U.S. Supreme Court ruling that made racial covenants unenforceable, we compare newly built, covenanted (and hence all-white) neighborhoods built before 1948 with covenanted neighborhoods constructed after the verdict, as the post-1948 neighborhoods lost a primary legal way to coordinate segregation. We find that about 5-17% of the observed neighborhood racial residential sorting and 6-17% of racial homeownership sorting, measured from 1980 to 2020, can be causally linked to racial covenants of the past. In addition, while the treated and control neighborhoods exhibit some differences in public amenities, particularly in the distance to highways and the restrictiveness of zoning regulations, these differences do not drive the observed persistent effects. Instead, homophily bias or unobserved housing quality are the likely drivers behind the persistent effects.

--Dan Ernst

Journal of the Texas Supreme Court Historical Society 13:1

The Texas Supreme Court Historical Society has published the Fall 2023 issue (13:1) of its Journal.  Sports is the major theme of the issue, although a few other subjects sneak in, including my profile of Marguerite Rawalt.  I’m grateful to the editor for soliciting it.  Here are the principal articles:

Baseball, Kenesaw Mountain Landis, and the Judicial Strike Zone —Home Run or Foul on the Play?
Jan L. Jacobowitz

Float Like a Butterfly, and Sting Like a Supreme Court Opinion: Muhammad Ali’s Draft Evasion Trial
Hon. John G. Browning

Trouble and Justice: How Trouble in Texas Led to the Court Martial Trial of America’s Beloved Jackie Robinson.
Alia L. Adkins-Derrick

Punching Above His Weight: “Sporty” Harvey and the Fight to Integrate Boxing in Texas
Hon. John G. Browning

Undistinguished Distinction: Texas’s (Scant) History of Removal Impeachment
Bruce Tomaso

Jack Johnson and the Mann Act
Hon. John G. Browning

A Profile of Marguerite Rawalt
Daniel R. Ernst

--Dan Ernst

Thursday, November 23, 2023

Allread on State Supremacy and Indian Removal

W. Tanner Allread, Stanford University, has posted The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law, which appears in the Columbia Law Review:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism argument.
--Dan Ernst

The Saint Petersburg School of International Law

New from Talbot Publishing: The Saint Petersburg School of International Law: A Bio-Bibliographical Study (Petrine Russia to the 1920s), by W. E. Butler and V. S. Ivanenko.

Based on unprecedented use of archival sources in St. Petersburg and the United States, this encyclopedic treatise is dedicated to the individuals associated with the development of international legal doctrine and state practice for two centuries in the capital of the Russian Empire. Well over four hundred are identified and the contributions of principal figures are summarized or critiqued. St. Petersburg University, which celebrated its 300th anniversary in 2024, is the key institution, but others played a role. The contributions of each are examined.

The "St. Petersburg School" is broadly construed to encompass jurists and international legal practitioners whose contact with the capital was brief, but nonetheless documented. The ethnic origins of the St. Petersburg international legal community are impressive in their diversity: Russians, Ukrainians, Belorussians, Georgians, Moldovans, Poles, Estonians, Latvians, Lithuanians, Baltic Germans, Jews, and Hungarians, augmented by individuals from Scandinavian and Western European countries. Extensive bibliographical references, as well as photographs of 60 of the lawyers, enrich the existing corpus of contributions by St. Petersburg to international legal doctrine.

Table of Contents here.

Dan Ernst

Wednesday, November 22, 2023

Shelden on Lincoln, Dred Scott, Politics and the Judiciary

Rachel A. Shelden, Penn State, has published “I Shall Not Forget or Entirely Forsake Politics on the Bench”: Abraham Lincoln, Dred Scott, and the Political Culture of the Judiciary in the 1850s in the Maryland Law Review.  From the introduction:

Raymond Massie in "Lincoln in Illinois" (NYPL)
In his first debate with Stephen Douglas at Ottawa on August 21, 1858, Abraham Lincoln repeated a theory that he had been touting for nearly two months, since his famed “House Divided” speech in June. According to the Illinois Republican, there had been a conspiracy among four “workmen” of the Democratic Party to nationalize slavery in the United States, which had culminated in Dred Scott v. Sanford. First in the conspiracy was Senator Douglas, whose Kansas-Nebraska Act in 1854 upended a thirty-year ban on slavery in the U.S. territories above the 36º 30’ latitude in favor of “popular sovereignty”—letting the people of a territory decide. Next came former-president Franklin Pierce, who encouraged acceptance of the Kansas-Nebraska legislation and any potential consequences, including the violence that exploded in Kansas between pro- and anti-slavery settlers. Third in the plot: newly-elected President James Buchanan, who pressed his inaugural audience in March 1857 to accept any decision on slavery in the territories that the Supreme Court might make. And finally, with all of these pieces set in place, Chief Justice Taney delivered his opinion in Dred Scott just two days after Buchanan’s inaugural address, declaring that Congress had no power to legislate on slavery in the territories. Clearly, Lincoln argued, all these men knew in advance what the result would be in Dred Scott; after all, when asked by a Senate colleague if it was constitutional for the people of a territory to ban slavery from their borders, Douglas answered that “it was a judicial question.” Thus, Lincoln concluded, “we find it impossible to not believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck.”

Read in a modern context, Lincoln’s charge appears quite serious—at least as it relates to the Chief Justice. . . . .  Accusations that a Justice discussed a pending case make front page news today. Proof of such conduct would likely be a full-blown scandal. Yet there was little public reaction in 1858 to Lincoln’s charge of a conspiracy among all three branches of government. Illinois papers printed the “House Divided” speech, but without much commentary, and over the course of the remaining debates, the two Senate candidates referred to it infrequently. . . .

Buried in the broader story of Lincoln’s political rise, this little episode reveals a great deal about the relationship between judges and politics in the mid-nineteenth century. The sheer ordinariness of Lincoln’s accusation—and the lack of public outrage in response—illustrates how boundaries of judicial conduct were understood differently at the time. Rather than relegated to their own separate judicial sphere, judges were key players in nineteenth-century politics; they served as partisan presidential electors, advised political candidates (or were candidates themselves), and collaborated on legislation. Judges’ courtrooms also served as key political spaces: During judicial terms, grand juries pressed political leaders for their views on important issues, lawyers with business before the courts delivered campaign speeches, and partisans protested opponents at the courthouse. This integrated relationship between courts and politics meant that Americans typically measured judges’ conduct against the broader political culture—the unspoken and underlying (though evolving) beliefs, attitudes, norms, and available mechanisms that guided politics in that era.
--Dan Ernst