Saturday, December 30, 2023

Weekend Roundup

  • Could be worse: In Martinez and Tobia's recent survey, Legal History is in the middle of the pack for "should be central to the law school curriculum," although well back for "is central to the law school curriculum." H/t: Tommy Bennett.
  • Jack Goldsmith discusses The Court at War: FDR, His Justices, and the World They Made with its author, Cliff Sloan, Georgetown Law (Lawfare Podcast). And Scott R. Anderson discusses State of Silence: The Espionage Act and the Rise of America's Secrecy Regime, with Sam Lebovic, George Mason University (Lawfare Podcast).
  • The latest on Section 3 and the Presidency: Kurt Lash in the NYT and Mark Graber's reply in Balkinization.  Also: Seth Barrett Tilman's brief in LeBrant v. Benson.
  • ICYMI: Storm King Mountain, Oppenheimer and the birth of environmental law (Times Union). 

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

Friday, December 29, 2023

Edmonds, "Isaac Backus and the Influence of Evangelical Separationism on the Religion Clauses of the First Amendment"

Christian Edmonds has posted "Isaac Backus and the Influence of Evangelical Separationism on the Religion Clauses of the First Amendment." The article appears in Volume 56, no. 4 of the Creighton Law Review (2023). Here's the abstract: 

In an 1802 letter to the Danbury Baptist Association in Connecticut, then-president Thomas Jefferson highlighted the “wall of separation” metaphor. Jefferson stated that “only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views.” This doctrine, also known as “strict separationism,” would become extremely influential in the Supreme Court understandings of the relationship between church and state. For example, in Everson v. Board of Education, the Supreme Court relied on Jefferson’s metaphor, stating that “[t]he First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” The Court “recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.” Since Everson, there has been ongoing debate whether that metaphor accurately reflects the meaning of the Religion Clauses. Some have branded “wall of separation” jurisprudence as revisionist history, but many still rely on enlightenment separationists like Madison and Jefferson to understand the origins of the Religion Clauses. Believing that enlightenment separationists’ opinions were “instrumental” in the phrasing of the Religion Clauses, many scholars have “looked behind the words of the First Amendment” to determine their “purest expressions” in the views of Madison and Jefferson.

Interestingly, Jefferson and Madison’s views were far from typical of most Americans during the time of the United States’ founding. Their positions were far too rationalistic and anticlerical to represent the views characteristic of most eighteenth-century Americans. The Great Awakening altered “the evangelical tradition from a collection of beleaguered congregations into a formidable force of Baptist, Methodist, Presbyterian, and other free church communities.” By the late eighteenth-century, the United States was a “largely Protestant population,” and the country’s denominational makeup at the time proves such—most Americans were Baptist, Presbyterian, or Methodist. As historian Henry May remarked, the Enlightenment worldview “excludes many, probably most, people who lived in America in the eighteenth and nineteenth centuries.” Thus, it seems hardly logical to expect the views of eighteenth-century deistic Episcopalians to accurately represent the views of a rapidly growing evangelical majority.

If this is true, scholars should recognize that a balanced account of the creation of the Religion Clauses cannot rely too heavily on the writings of enlightenment separationists. The context in which the Religion Clauses were written requires an understanding of the influence evangelical separationism had on American culture. Of the evangelical separationists, there were none more outspoken than Baptists. Historian Willard L. Sperry observed that “[t]he Baptists were undoubtably the most aggressive and also the most effective single religious body in the colonies, so far as the demand for religious liberty was concerned.” And historians have claimed that “the most important American Baptist leader and polemicist of the eighteenth century” was Isaac Backus, whose “dedicated, effective leadership for eighteenth-century pietism . . . entitles him to rank with … Jefferson, and Madison as a key proponent of [the separation of church and state].” Though Backus played a central role in the United States’ formative period, his contributions have been neglected. This has created a “gap in understanding the rise of the dissenting sects and the development of evangelical [separationism] in America.” This article will attempt to give Backus and evangelical separationism their rightful place in future evaluations of the separation of church and state.

The twofold focuses of this article are, first, to introduce Backus to those who may not have been aware of his importance and of his approach to issues of religious freedom. And second, to present and evaluate the evidence of Backus and evangelical separatists’ impact on the Religion Clauses of the First Amendment. The paper will highlight why Backus’s views and writings are critical to understanding the context in which the Religion Clauses were written and ratified. If jurists and scholars insist on using history as a means to interpretation, they must discuss the prominent American tradition that influenced the drafting of the First Amendment—evangelical separationism. Backus’s perspective on government and religion represented the majority of Americans in the eighteenth-century, and therefore, his church–state theory provides scholars and jurists with a focused synopsis of the evangelical separationist tradition and a way to better understand the 18th century cultural climate.

Read on here, at SSRN. (h/t Legal Theory Blog)

-- Karen Tani

Thursday, December 28, 2023

Brown, "Laws of the Land: Fengshui and the State in Qing Dynasty China"

Princeton University Press has published Laws of the Land: Fengshui and the State in Qing Dynasty China (2023), by Tristan G. Brown (Massachusetts Institute of Technology). A description from the praise:

Today the term fengshui, which literally means “wind and water,” is recognized around the world. Yet few know exactly what it means, let alone its fascinating history. In Laws of the Land, Tristan Brown tells the story of the important roles—especially legal ones—played by fengshui in Chinese society during China’s last imperial dynasty, the Manchu Qing (1644–1912).

Employing archives from Mainland China and Taiwan that have only recently become available, this is the first book to document fengshui’s invocations in Chinese law during the Qing dynasty. Facing a growing population, dwindling natural resources, and an overburdened rural government, judicial administrators across China grappled with disputes and petitions about fengshui in their efforts to sustain forestry, farming, mining, and city planning. Laws of the Land offers a radically new interpretation of these legal arrangements: they worked. An intelligent, considered, and sustained engagement with fengshui on the ground helped the imperial state keep the peace and maintain its legitimacy, especially during the increasingly turbulent decades of the nineteenth century. As the century came to an end, contentious debates over industrialization swept across the bureaucracy, with fengshui invoked by officials and scholars opposed to the establishment of railways, telegraphs, and foreign-owned mines.

Demonstrating that the only way to understand those debates and their profound stakes is to grasp fengshui’s longstanding roles in Chinese public life, Laws of the Land rethinks key issues in the history of Chinese law, politics, science, religion, and economics.

A sample of advance praise:

“Brown offers an impressive, fine-combed reading of sources that paint a vivid picture of fengshui’s signature importance within local life and Qing law. A terrific contribution to Chinese history.”—Jonathan Schlesinger

“A rare look into the intersection of state power and cosmic power in Qing China, Laws of the Land demonstrates how this intersection was intentional and vital to the survival of the empire. Breaking from the Orientalist and imperialist denigrations of fengshui as a superstition, this meticulously researched book argues that the persistence of fengshui resulted from its mutual constitution with Qing law itself.” -- He Brian

More information is available here. An interview with the author is available here, at New Books Network.

-- Karen Tani

Wednesday, December 27, 2023

Ely on the Late Nineteenth Century Emergence of the Regulatory Takings Doctrine

James W. Ely (Vanderbilt University) has posted "'To protect all the essential elements of ownership:' Late Nineteenth Century Emergence of the Regulatory Takings Doctrine." The article will appear in the Brigham-Kanner Property Rights Journal (2024) Here's the abstract:

This article examines the gradual emergence of the regulatory takings doctrine in the years between the end of the Civil War and the decision in Pennsylvania Coal v Mahon (1922). It is often asserted that the takings clause of the 5th Amendment, and its state counterparts, were understood to cover only appropriation of title and physical invasion, and had no application to regulations of property until the opinion by Holmes in Pennsylvania Coal. This article challenges that reading of the historical record. It concludes that the doctrine of regulatory takings began to take shape in the last decades of the nineteenth century and that the Pennsylvania Coal decision was not the innovation that is so often pictured. 
The Supreme Court heard relatively few takings cases in the late nineteenth century and provided little guidance as to the evolution of the regulatory takings doctrine. Although in Pumpelly v Green Bay Company (1872) the Court declared that an interference with the common use of property could be the equivalent of a taking, it subsequently retreated to the view that 5th Amendment was confined to appropriation of title or physical takings. Consequently, state courts took the head in fashioning the contours of takings jurisprudence.
State courts played a crucial role in two respects. First, they increasingly understood private property in terms of various attributes, such as the right to use, exclusively possess, and dispose of, a thing rather than the thing itself. In 1888 eminent treatise writer John Lewis famously characterized property as “a bundle of rights.” This redefinition of property profoundly changed and enlarged the notion of a taking. A number of state courts began to treat property as a cluster of rights each of which was entitled to constitutional protection. For example, during the late nineteenth century some state courts invalidated land use regulations as a taking even though neither the title or physical possession of the owner was challenged. Second, there was renewed emphasis on the protective function of the federal and state constitutional guarantees as security for individual rights against the government.
Two prominent jurists helped to formulate the regulatory takings doctrine in the closing years of the nineteenth century. In 1891 Justice David J. Brewer maintained that regulations which destroyed the use of property effectively deprived the owner of his property. Justice Holmes, while on the Supreme Judicial Court of Massachusetts, equated physical appropriation and regulations which stripped an owner of his rights. He suggested that there could be a taking of property without any physical interference. 
Although some state courts continued to adhere to the narrow physical concept of a taking, a substantial number of jurisdictions ruled that restrictions on use could amount to a taking. In short, Pennsylvania Coal merely brought to fruition developments which had been germinating in the state courts and among commentators for decades. 

The full article is available here, at SSRN. (h/t Legal Theory Blog)

-- Karen Tani

Tuesday, December 26, 2023

Simon, "The Pirates' Code: Laws and Life Aboard Ship"

Reaktion Press has published The Pirates' Code: Laws and Life Aboard Ship, by Rebecca Simon (Santa Monica College). A description from the Press:

Pirates have long captured the imagination with images of cutlass-wielding swashbucklers, eye patches and buried treasure. But what was life really like on a pirate ship? Piracy was a risky, sometimes deadly occupation, and strict orders were essential for everyone’s survival. These ‘Laws’ were sets of rules that determined everything from how much each pirate earned from their plunder to compensation for injuries, punishments and even the entertainment allowed on ships. These rules became known as the ‘Pirates’ Code’, which all pirates had to publicly swear by.
Using primary sources such as eyewitness accounts, trial proceedings and maritime logs, this book explains how these codes were the key to pirates’ success in battle, both on sea and on land.

A sample of advance praise:

"A comprehensive and highly engaging study of the operations and everyday life at sea on pirate ships in the "Golden Age" of piracy. Using a wide range of archival material, Rebecca Simon has produced a meticulous examination of how pirate crews used "articles" to organise their ships and lives. An in-depth exploration of not only the most notorious pirates and their lesser-known brethren, but every aspect of pirate life from the motivations of men to turn to piracy, to how they shared out plunder and food, to discipline and health care for injured pirates. The Pirates' Code is a pleasure to read." -- Elaine Murphy

More information is available here. An interview with the author is available here, at New Books Network.

-- Karen Tani

Transportation Library Travel Grant

[We have the following announcement.  DRE.]

We are pleased to share that applications are open for the 2024-2025 Transportation Library Travel Grant.

The Northwestern University Transportation Library holds one of the largest transportation research collections in the world, covering all modes of transportation including aviation, rail, highway, public transit, and pedestrian and bicycle transportation. In addition to our technical collections that support research on current transportation issues, the library maintains special and archival collections such as timetables, passenger ephemera, and rare books and journals. It also holds a substantial collection of mid-19th to early 21st century transportation annual reports, and one of the most complete U.S. Environmental Impact Statement (EIS) collections in existence.

This research grant was established in 2021 to facilitate and support research projects that significantly benefit from substantial onsite use of the Transportation Library’s unique technical, special, and archival collections.

  Each year we will award one or more grants, up to a total of $3,000.  Grants will be awarded to reimburse expenses for transportation, accommodations, and meals for one or more on-site visits to Northwestern University Libraries.

Eligibility.  Open to academic and independent researchers. We encourage applications by those working in traditional academic practice as well as those whose research is interdisciplinary, or oriented towards creative arts and practices.  There are no restrictions as to the applicant’s nationality or academic status.    Research may be in any field supported by the collections of the Transportation Library. At the discretion of the selection committee and Northwestern University Libraries, the grant may be awarded to an individual applicant, a team, or divided among multiple applicants and/or teams. Further, if a suitable recipient is not identified among the applications received, we reserve the right to withhold the grant for that particular year.  Applicants who are not awarded the grant in a specific year may resubmit proposals in following years without prejudice.  An applicant may receive only one award for any one project as determined by the selection committee and Northwestern Libraries. Researchers affiliated with Northwestern University will not be considered for this travel grant.

How to apply.  To apply, please submit the following:

  • A project proposal (1,200 words max) that describes the proposed research; explains the significance of the collection materials to the project; [and] proposes specific outcomes (e.g., dissertation, article, book, creative or artistic work) that will result from this research
  • A curriculum vitae
  • A detailed budget indicating the total amount requested with itemized list of projected expenses for transportation, accommodations and meals. For meals and incidentals, applicants should use the U.S. General Services Administration Per Diem Rates for Meals & Incidentals (M&IE) for Chicago. Applicants should indicate any other sources of funding that will be applied to the project, if applicable. For additional information on planning a budget, see allowable expenses and Out-of-Town Visitor Resources.

Applicants should arrange for one (1) letter of recommendation from someone qualified to judge the quality, feasibility, and significance of the proposal and the qualifications of the applicant to successfully complete the project to be sent in support of their proposed project. Those writing recommendations should submit their letters directly to

Applicants should submit the research description, curriculum vitae, and budget by e-mail attachment (PDF format) to

Please note: The selection committee is unable to provide feedback with regard to unsuccessful applications.

.  All grant awardees will be required to submit receipts for expenses incurred and will be reimbursed, in accordance with Northwestern University policies. For meals and incidentals, we require that recipients use the U.S. General Services Administration Per Diem Rates for Meals &Incidentals (M&IE) instead of itemized receipts. Reimbursement requests must be made within 30 days of last day of visit.

Grant awardees must conduct their research visit within the academic year following the grant being awarded (between September 1st and August 1st).

Upon completion of the research, grant awardees will be required to submit a brief report [1-2 pages] summarizing the use of the collection(s) and how the visit benefited their research to

Questions?  Contact

Monday, December 25, 2023

Post-Doc on Policing and Carcerality at the University of Minnesota

 [We have the following announcement.  DRE.]

The Andrew W. Mellon Foundation Sawyer Seminar on “Just Policing: Transnational Perspectives on the Definition and Possibility of Justice in Law Enforcement,” housed at the Institute for Advanced Study (IAS) at the University of Minnesota, invites applications for a post-doctoral fellow in the 2024-2025 Academic Year. The successful candidate will have a research agenda that is concerned with policing and/or carcerality broadly conceived.

The majority of the fellowship time is devoted to research and writing in line with the fellow’s research agenda. Fellow will be expected to participate in Sawyer Seminar and IAS Fellow activities, and to present their research to the seminar; assist graduate seminar and mentor graduate students in connection to the seminar; engage with seminar participants and visiting scholars; and lead panel discussions and small group meetings.


  • Ability to be in residence on the Twin Cities campus of the University of Minnesota for the period of the fellowship. The postdoctoral fellow is expected to attend in-person meetings and events at the IAS several times a week
  • Ph.D. or other doctoral degree (including J.D.) completed by August 15, 2024 and no earlier than 2019
  • Scholarly background in areas related to policing, the criminal legal system, or carcerality
  • Excellent writing and analytical skills

This is a full-time, 9-month position and is funded for one year. The salary is $62,000 with a comprehensive benefits package. Start date is August 28, 2024.  Applications received before January 15, 2024 will receive priority consideration. Notification is in early spring. Applications are submitted through the University of Minnesota’s Employment System. Search for job #359021.

Applications must include:

  • Cover letter discussing your background in policing or carceral studies and interests in engaging with the seminar
  • Completed application form (see below)
  • Curriculum Vitae
  • A research proposal describing what you would do during the fellowship year and how it articulates with the Sawyer Seminar description; this should include a statement of the problem you will investigate, the methods you will use to investigate it, and the significance of your research (1,400 words maximum)
  • Writing sample (one published article or book chapter, or a work in progress)
  • One confidential letter of recommendation sent to IAS by the recommender. Letter should be sent directly to Susannah Smith at The subject line should read “Sawyer recommendation: [applicant’s name]”

Saturday, December 23, 2023

Weekend Roundup

  • The U.S. Intellectual History Blog has published a roundtable on Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St Martins, 2022), by Andrew Koppelman (Northwestern Law). Here's a link to the final post, which references earlier contributions. (h/t Balkinization)
  • For the Brennan Center, Gautham Rao, Richard John, and Jane Manners have filed an amicus curiae brief in the U.S. Supreme Court case, Relentless Inc. v. Department of Commerce on the history of judicial deference to administrative agencies.
  • A special episode of the podcast All Things Judicial celebrated North Carolina Constitution Day with “excerpts of a discussion between Chief Justice Paul Newby and former University of North Carolina School of Law Professor John Orth on the history of the North Carolina Constitution”  (NC Judicial Branch).
  • Located at the University at Buffalo School of Law, the Baldy Center for Law and Social Policy "plans to award post-doctoral and senior or mid-career fellowships to scholars pursuing important topics in law, legal institutions, and social policy. " More
  • On the Stanford Legal podcast, Richard Thompson Ford and Pamela Karlan discuss Ford's book, Dress Codes: How the Laws of Fashion Made History (SLS Blogs)

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

Friday, December 22, 2023

GLOSSAE 20 (2023)

[We have the following announcement.  DRE]

The last issue of GLOSSAE: European Journal of Legal History 20 (2023) came out some time ago [and is here].

For more information about the content of this issue: [here].

If someone is interested in submitting an article for the next issue, keep in mind the deadline (May 31, 2024), the submission procedure and the rules of publication [are here].

The Editorial Board of GLOSSAE welcomes articles written in English dealing with legal history, no matter their geographical and chronological context.

On behalf of the Editorial Board of GLOSSAE, I wish you all a Merry Christmas and a peaceful New Year 2024!

With my best wishes,

Professor Aniceto Masferrer
Legal History & Comparative Law
Faculty of Law
University of Valencia
Avda. dels Tarongers s/n
Edificio Departamental Occidental
E - 46022 VALENCIA (Spain)

Donoghue's "Prisoners of Congress"

Norman E. Donoghue II, has posted Prisoners of Congress: Philadelphia's Quakers in Exile, 1777–1778 (Penn State University Press):

In 1777, Congress labeled Quakers who would not take up arms in support of the War of Independence as “the most Dangerous Enemies America knows” and ordered Pennsylvania and Delaware to apprehend them. In response, Keystone State officials sent twenty men—seventeen of whom were Quakers—into exile, banishing them to Virginia, where they were held for a year.

Prisoners of Congress reconstructs this moment in American history through the experiences of four families: the Drinkers, the Fishers, the Pembertons, and the Gilpins. Identifying them as the new nation’s first political prisoners, Norman E. Donoghue II relates how the Quakers, once the preeminent power in Pennsylvania and an integral constituency of the colonies and early republic, came to be reviled by patriots who saw refusal to fight the English as borderline sedition.

Surprising, vital, and vividly told, this narrative of political and literal warfare waged by the United States against a pacifist religious group during the Revolutionary War era sheds new light on an essential aspect of American history. It will appeal to anyone interested in learning more about the nation’s founding.
--Dan Ernst

Thursday, December 21, 2023

CFP: American Society for Legal History 2024 Annual Meeting

 The American Society for Legal History has issued the CFP for the 2024 Annual Meeting:

American Society for Legal History 2024 ASLH Annual Meeting (October 24 - 26, 2024)

The Program Committee of the American Society for Legal History invites proposals for the 2024 meeting to be held October 24-26 in San Francisco. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The deadline for Pre-Conference Symposia proposals is Friday, February 16, 2024. The deadline for all other submissions is Friday, March 15, 2024.

Panel proposals should include the following: a CV with complete contact information for each person on the panel, including chairs and commentators; 300-word abstracts of individual papers; and a 300-word description of the panel. Only complete panel proposals will be considered.

Scholars looking to build a panel may post their potential paper topics here. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All program presenters must be current members of the Society by the date of the Annual Meeting. Information on how to build a successful panel can be found here. The Program Committee especially encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

In addition to traditional panels featuring presentations of work in progress, the Program Committee welcomes other forms of structured presentation for a 90-minute slot, such as a skills/pedagogical workshop (chair, 3-4 presenters) or a roundtable format (chair, 3-5 presenters).

The Committee will also consider author-meets-reader panel proposals. We encourage panels that put two books in conversation (at least one of which must bear a copyright date of 2023), with up to three commentators total. Books featured in the ASLH Virtual Book Club are not eligible. Following the general guidelines for panel proposals, proposals for author-meets-reader panels must provide sufficient information about the panel’s content for the Committee to assess the merits of the proposal. Please note that, as in previous years, the Program Committee will devote only a small number of sessions to this type of panel.

In addition to the above formats, this year’s Annual Meeting will also dedicate a session to a presentation and discussion of Digital Legal History projects. Individuals interested in participating in this session should submit a short description of their project (up to 300 words) as well as a CV. As a complement to the session, there will be a poster display of the accepted projects. Accepted participants in the Digital Legal History session will be asked to submit a poster design to the organizers by early October; these posters will then be printed onsite.
. . .

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. We especially encourage proposals for pre-conference events that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development. Please provide a short proposal (1-2 pages) including program title, the intended length of program, and a program description, as well as a CV and contact information for each presenter. The Program Committee is available to consult with organizers of such symposia as they develop their proposal, but pre-conference symposia must be self-funded. Organizers are encouraged but not required to host their symposia at the conference hotel. Please note that the deadline for these submissions is earlier than the deadline for main conference submissions so that organizers whose symposia are not selected have an opportunity to submit their panels to the main conference.

As a general matter, we will not be able to accommodate special scheduling requests, nor will we be able to support hybrid or virtual presentations or panels. (For a fuller explanation of this policy, please see the ASLH Annual Meetings FAQ page.) Until a draft of the program is circulated, prospective presenters, chairs, and commentators at the main conference should plan to be available in person on Friday, October 25, and Saturday, October 26.

The ASLH has a strict one-appearance policy (excluding appearances at pre-conference symposia). Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows, contingent faculty, and scholars from abroad.

The members of the Program Committee are Kevin Arlyck, Juandrea Bates, Ofra Bloch, Wes Chaney, Rohit De, Lisa Ford, José Argueta Funes, Kate Masur, and Sarah Seo. The co-chairs of the Program Committee are Rowan Dorin ( and Karen Tani (

More information is available here.

-- Karen Tani

White's "Shipwrecked"

Jonathan W. White has published Shipwrecked: A True Civil War Story of Mutinies, Jailbreaks, Blockade-Running, and the Slave Trade (Rowman & Littlefield Publishers):
Historian Jonathan W. White tells the riveting story of Appleton Oaksmith, a swashbuckling sea captain whose life intersected with some of the most important moments, movements, and individuals of the mid-19th century, from the California Gold Rush, filibustering schemes in Nicaragua, Cuban liberation, and the Civil War and Reconstruction. Most importantly, the book depicts the extraordinary lengths the Lincoln Administration went to destroy the illegal trans-Atlantic slave trade. Using Oaksmith’s case as a lens, White takes readers into the murky underworld of New York City, where federal marshals plied the docks in lower Manhattan in search of evidence of slave trading. Once they suspected Oaksmith, federal authorities had him arrested and convicted, but in 1862 he escaped from jail and became a Confederate blockade-runner in Havana. The Lincoln Administration tried to have him kidnapped in violation of international law, but the attempt was foiled. Always claiming innocence, Oaksmith spent the next decade in exile until he received a presidential pardon from U.S. Grant, at which point he moved to North Carolina and became an anti-Klan politician. Through a remarkable, fast-paced story, this book will give readers a new perspective on slavery and shifting political alliances during the turbulent Civil War Era.

--Dan Ernst.  H/t: JG

Wednesday, December 20, 2023

Stein's "Justice for Sale"

Gary Stein has published Justice for Sale: Graft, Greed, and a Crooked Federal Judge in 1930s Gotham (Blackstone Publishing):

The never-before-told story of Martin T. Manton, a corrupt federal appeals court judge in New York who was convicted in 1939 and sent to prison. From his misconduct, to his co-conspirators, to the sensational prosecution and trial, this is the exhaustively researched account of a discovery that shocked the nation.

Martin T. Manton was a corrupt federal appeals court judge in New York who was convicted in 1939 and sent to prison. At the time, this was a hugely important story: Manton was considered the highest-ranking judge in the United States after the nine Justices of the Supreme Court, and was nearly appointed to that august body in 1922. Yet his story has never been told in book-length form before, and never with the benefit of such exhaustive research. More than just a biography, Justice for Sale examines Manton’s misconduct in the context of the culture of corruption and organized crime that permeated New York City in the first part of the twentieth century. Dozens of others—prominent business executives, leading Wall Street lawyers, accountants, bankers, fixers, con men, another federal judge—participated in Manton’s crimes. The book profiles these unscrupulous and often colorful characters as well. It wasn’t until Manhattan D.A. and future presidential candidate Thomas Dewey’s successful pursuit of Manton, a federal grand jury investigation, and a sensational prosecution and trial in federal court that shocked the nation that Manton and his corrupt schemes were finally brought down.
--Dan Ernst. H/t: JG

Tuesday, December 19, 2023

Howlin's "Barristers in Ireland"

Niamh Howlin, Sutherland School of Law, University College Dublin, has published Barristers in Ireland: An evolving profession since 1921 (Four Courts Press):

Barristers played significant roles in Irish public life in the twentieth century as lawmakers, politicians, civil servants, broadcasters, judges, academics and social reformers. This book is the first to examine the profession from the turbulent twenties until the Celtic Tiger years. It looks at who the barristers were, how they worked and how they were perceived. It also examines the impact of partition, the experiences of women at the bar, and traces how the profession changed over the course of the twentieth century. Drawing upon interviews conducted with barristers, published memoirs, records of the Bar Council and the King’s Inns, government publications and archival sources, this book paints a picture of a profession that was rooted in tradition yet constantly evolving.

Extracts are here

--Dan Ernst

Monday, December 18, 2023

Delgado on Charles Sumner's Constitutionalism

Sebastián Delgado, University of Cambridge, has posted The Utopian Liberal: Continuity and Change in the Thought of Charles Sumner, which also appeared in The Docket’s series, “A Focus on Undergraduate Scholarship, which aims to spotlight outstanding legal history projects being done by undergraduate students.”  

Charles Sumner (LC)
Charles Sumner cannot be accused of having an unwarranted consideration for the virtues of consistency. The New Englander Sumner of the 1840s advocated for sectionalist interests so long as they provided a strong counter to the Southern warmongering and slave-owning desires, while the nationalist Sumner of the 1850s championed the federal government as far as it committed itself to limiting slavery’s growth and then eradicating it. The strict constructionist Sumner of 1855 advocated for a narrow construction of the Constitution in discrediting the Fugitive Slave Act, while the Sumner of the 1860s and 1870s demanded an elastic construction for carrying out Reconstruction and ensuring equal rights.

Despite these swings in his interpretive philosophy and party switches, Sumner’s thought was consistent, founded on an integral idealism that remained constant despite politics’ vicissitudes. “His partisanship … served as a means to advance moral ends." 
--Dan Ernst

Saturday, December 16, 2023

Weekend Roundup

  • Jeffrey Rosen's interview for the National Constitution Center of Robert Post about Dean Post's Holmes Devise history of the Taft Court is now available as a podcast and on YouTube.
  • "The Organization of American Historians will award two grants of $10,000—one for an advanced Ph.D. student or early-career scholar, and the other for a mid/later-career scholar—to support research in The Visiting Room archive, a collection of over 100 filmed interviews with incarcerated individuals at the Louisiana State Penitentiary Angola who are serving life sentences without the possibility of parole." More
  • ICYMI: How Civil Rights came to Madison, Wisconsin (WORT). A new Oklahoma City exhibit about the Osage murders reveals new legal history (KOSU).
  • UpdateJ.G.A. Pocock remembered (Current).

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

Friday, December 15, 2023

CSCHS Review (Fall/Winter 2023)

The (Fall/Winter 2023) issue of the California Supreme Court Historical Society Review is now available here.  And here is the TOC:

Serranus Clinton Hastings: A Counterpoint on Culpability, by Kristian Whitten

The California Academy of Appellate Lawyers: A Half Century of Accomplishments, by Benjamin G. Schatz

Appreciations by Justice John A. Arguelles and Norman L. Epstein

On the Bookshelf: Stephen Field Reconsidered, by Bob Snider; Doing Well While Doing Good, by Hon. Joseph R. Grodin

California Legal History's New Editor, Justice George Nicholson

Legal History Winners recognized at Virtual Roundtable

The editor writes: 

Our lead story continues a debate we began in our spring/summer issue over the legacy of Serranus Hastings, California's first chief justice and founder of what became UC Hastings College of the Law--a debate that should be of interest to historians well beyond California. As you may know, the California Legislature, following the recommendation of the school's board of directors, voted last year to drop Hastings' name from the school based on research into his involvement in the Indian massacres of the mid-19th century. Gov. Newsom approved the change, and the school has been renamed UC College of the Law, San Francisco. In our current issue, Kristian Whitten, a Hastings alum and retired California deputy attorney general, asserts that renaming the law school was unjustified and that Hastings has been accused of crimes he didn’t commit under the laws of the time, including murder and the theft of native lands. In our spring/summer issue, San Francisco attorney and historian John Briscoe detailed what he regards as the ample evidence of Hastings involvement in these massacres and appropriation. This debate over Serranus Hastings' culpability mirrors painful and ongoing conversations across the nation in recent years about how to weigh tradition against changing appraisals of our past.

Also in this issue, Benjamin Shatz, who leads appellate practice at Manatt, Phelps & Phillips, marks the fiftieth anniversary of the founding of the California Academy of Appellate Lawyers with an account of this accomplished group of elite practitioners. The academy came together in the 1970s as an effort by the deans of the state’s appellate bar to encourage best practices and help address burgeoning caseloads, particularly in the California Court of Appeal. What its founders once jocularly called the “Appellate Lawyers Eating and Drinking Association” — the group coalesced over dinners at La Scala and Trader Vic’s, venerable Beverly Hills restaurants — has become an influential and respected force for significant improvements in appellate practice and judicial administration. And there's more in this issue.

Finally, we warmly welcome readers of this blog to solicit article ideas and suggestions of books to review. Is there a topic you're itching to write about? We're a place for shorter (1500-5000 words) articles on just about any subject involving our state's legal system and the men and women whose tragedies and triumphs built that system. Email me with your ideas at

--Dan Ernst

Thursday, December 14, 2023

Frohlich, "From Label to Table: Regulating Food in America in the Information Age"

The University of California Press has published From Label to Table: Regulating Food in America in the Information Age (Oct. 2023), by Xaq Frohlich (Auburn University). A description from the Press:

How did the Nutrition Facts label come to appear on millions of everyday American household food products? As Xaq Frohlich reveals, this legal, scientific, and seemingly innocuous strip of information can be a prism through which to view the high-stakes political battles and development of scientific ideas that have shaped the realms of American health, nutrition, and public communication. By tracing policy debates at the U.S. Food and Drug Administration, Frohlich describes the emergence of our present information age in food and diet markets and examines how powerful government offices inform the public about what they consume. From Label to Table explores evolving popular ideas about food, diet, and responsibility for health that have influenced what goes on the Nutrition Facts label—and who gets to decide that.

Praise from reviewers:

"This absorbingly interesting book shines a novel light on the development of nutritional labeling in the United States. Taking its inspiration from science and technology studies, it knowledgeably identifies shifting 'assemblages' of people-plus-things in an intriguing and detailed history."—Anne Murcott

"From Label to Table is an archaeology of the food label, digging down through the sedimentary levels that the label's seemingly simple contents conceal. Tracing this story is a signal accomplishment, but there is more. Interwoven with the narrative is an analysis that maps the FDA's changing methods of food regulation onto the broader dynamics of twentieth-century American capitalism, especially the shift from the New Deal order to post-1980 neoliberal politics. The book adeptly moves between these levels, thereby inserting the emergence of informational food labeling as part of the transformations of late capitalism."—Roger Horowitz

More information is available here. An interview with Professor Frohlich is available here, at Nursing Clio. 

-- Karen Tani 

Wednesday, December 13, 2023

Soufi, "The Rise of Critical Islam: 10th-13th Century Legal Debate"

Oxford University Press has published The Rise of Critical Islam: 10th-13th Century Legal Debate (2023), by Youcef L. Soufi (University of Toronto). A description from the Press:

In a richly narrated historical study, Youcef Soufi excavates an Islamic legal culture of critique from the 10th to 13th centuries. Focusing on the practice of munāẓara (disputation), Soufi explores how and why oral debates became a pervasive and revered part of the intellectual legal landscape of Iraq and Persia. Using the life and career of celebrated Iraqi jurist Abū Isḥāq al-Shīrāzī, he traces the formalization of debate gatherings at the dawn of the classical legal schools (al-madhāhib) in the early 10th century and analyzes the wider institutional, social, and discursive conditions that made debate an important feature of any jurist's practice.

Pushing back against claims that classical Muslim jurists sought to weed out differences of opinion, The Rise of Critical Islam presents a community committed to the openness, fluidity, and continued exploration of the law. Challenging the view of debate gatherings simply as mechanisms of doctrinal resolution before codification, the study reveals a classical culture where critical debates were part of a continual and personal quest to discover God's law. In uncovering this classical legal culture, Soufi invites readers to question claims about the promise of secular critique in disciplining religious passions and forging human solidarity.

More information is available here. An interview with Professor Soufi is available here, at New Books Network.

-- Karen Tani

Tuesday, December 12, 2023

CFP: Conservatism, History, and Defending Democracy in Latin America

[We have the folllowing call for papers for an international, on-line conference.  H/t: JW.  DRE]

The Conservative Turn, the Uses of the Past and the Defense of Democracy in Latin America: The Agenda of the 21st Century, March 20-22, 2024

The Organizing Committee of the International Workshop "The Conservative Turn, the Uses of the Past and the Defense of Democracy in Latin America: The Agenda of the 21st Century" invites everyone to participate in the event, which will be held from March 20 to 22, 2024 virtually, thus allowing the participation of experts from Latin America and the world. It is sponsored by the Latin American Council of Social Sciences (CLACSO) as part of its initiative "Democracy, Human Rights and Peace: Crossroads and Challenges from the State and Social Organizations", and co-organized by the Centre for Argentine and American History at the University of La Plata (CHAyA-UNLP, Argentina), the Department of History at the Industrial University of Santander (UIS, Colombia), the Network of Anthropologies of the South (RedAS), and the Network of Connected History of the Atlantic World (RHCMA).

Call for Papers.  Research on the political uses of the past has been closely related to the experiences of traumatic pasts: repressive cycles during military dictatorships, containment of political dissidence in so-called "democratic" contexts, and systematic genocides not recognized by the State. Since the end of the last century, in Latin America, we have witnessed the rapid development of literature that addresses sensitive issues such as the politics of memory and forgetting, the perceptions of time among communities victimized by violence and their disputes with the State, the tensions over the reinterpretation and reappropriation of public spaces, the manipulation of historical narratives through governmental through government spokespersons, media and social networks, the creative responses of social movements to counteract the creative responses of social movements to counteract hate speeches, the role of the management of the past in the of the past in processes of transitional justice and national reconciliation, among other topics. These processes take place in the midst of constant tension in various relational spaces, which makes relevant the growing concern of humanists and social scientists about the humanists and social scientists on these issues, which are essential to understanding the construction, restructuring and social scientists about these issues, which are essential to understand the construction, restructuring and weakening of democratic experiences. However, we continue to note that, in most cases, the analyses are constructed under the idea of enclosed or closed "national laboratories".

Recently, we have witnessed a period of instability characterized by political cycles oscillating between, on the one hand, a (re)emergence of the neoliberal promise and a rise in the influence of right-wing ideologies, and, on the other hand, new alliances and political reconfiguration among progressive sectors interested in slowing or counteracting the advance of the conservative turn. There has been a "cascade effect" of ideologies that promote militarism, anti-communism and intolerance based on criteria of race, ethnicity, gender and social class, insinuating that state violence should - once again - be considered as a fundamental strategy for the construction of a "new" social order, even though, at times, imaginations of a "new" social order are not as novel as they may seem. In Brazil, this situation became evident with the endorsement of former president Bolsonaro's support for the commemoration of the civil-military dictatorship, considering it a patriotic experience that could be a patriotic experience capable of boosting national pride. In Argentina, the traditional right-wing, in the figure of Patricia Bullrich, centered their 2023 electoral campaign on the promise of the 2023 electoral campaign to strengthen the penal system, linking this political proposal with the slogan "An orderly country". The strengthening of the police state in El Salvador has inspired the most radical sectors in the region. Even headlines in influential newspapers, such as El Pais in Colombia, have suggested that "Bukele replaces Uribe as a source of inspiration for the right." The domino effects these projects, and their discourses in the recent past have had on political contests in Latin American countries are just a few examples that draw attention to connections and points of convergence that await and are waiting to be studied.

We consider it necessary to promote a dialogue with a regional approach. In this sense, we encourage Latin American researchers and Latin Americanists to participate in this space interested in both comparisons and connections, within the region and from a global perspective. Participants are expected to share research advances, theoretical-methodological approaches and practical experiences that help to think about the challenges that the Conservative Turn has generated - and continues to generate - in the region, as well as the mobilization of discourses on traumatic pasts and their impact on democratic coexistence. The event will emphasize addressing issues related to the harmful uses of the past, highlighting the complex intersections between memory, forgetting, trauma and processes of politicization related to repressive experiences or politicization related to repressive experiences.

We do not consider the notion of harmful uses of the past closed. Still, we frame it within the codes of shared ethics of human rights, understanding that noxious understanding that harmful encompasses any idea, discourse or action that violates the recognition of human rights, the recognition of the human condition, and institutional structures that guarantee this condition. We leave numerous possibilities for the researchers invited to the workshop to creatively analyze how these processes shape shared democratic challenges in the region.

[More after the jump.]

Benham, "International law in Europe, 700-1200"

Via New Books Network, we have word of a 2022 publication that we missed: International law in Europe, 700-1200 (Manchester University Press), by Jenny Benham (Cardiff University). A description from the Press:

Was there international law in the Middle Ages? Using treaties as its main source, this book examines the extent to which such a system of rules was known and followed in the period 700 to 1200. It considers how consistently international legal rules were obeyed, whether there was a reliance on justification of action and whether the system had the capacity to resolve disputed questions of fact and law. The book further sheds light on issues such as compliance, enforcement, deterrence, authority and jurisdiction, challenging traditional ideas over their role and function in the history of international law.

International law in Europe, 700-1200 will appeal to students and scholars of medieval Europe, international law and its history, as well as those with a more general interest in warfare, diplomacy and international relations.

More information is available here.

-- Karen Tani

Monday, December 11, 2023

Milligan & Ross, "We (Who Are Not) the People: Interpreting the Undemocratic Constitution"

Joy Milligan and Bertrall Ross (both of the University of Virginia) have posted "We (Who Are Not) the People: Interpreting the Undemocratic Constitution." The article is forthcoming in the Texas Law Review. The abstract:

How should we interpret a Constitution that was not written for us? For most of American history, “We the people” excluded women and racial minorities. The Constitution and all but a few amendments were adopted amidst profoundly undemocratic conditions in which majorities of the population did not participate or see their interests represented. The United States did not approach even minimally egalitarian democracy until 1965, when the Voting Rights Act finally assured the right to vote to people of color, implementing the Fifteenth and Nineteenth Amendments’ guarantees.

In this Article, we argue that the undemocratic nature of the Constitution must be addressed in interpreting the document. Interpreters can exacerbate or ameliorate the Constitution’s democratic flaws; the methods they select may entrench old forms of political exclusion or help equalize rights and status across the citizenry.

To illustrate, we offer a case study of the perils and possibilities of interpretation, focusing on unenumerated rights. Such rights may have been unwritten because they were liberties commonly exercised by white men as full citizens, and hence could be assumed. Or they may have been unwritten because they mattered primarily for politically excluded populations and therefore could be ignored. We show that the Supreme Court’s recent adoption of an approach to unenumerated rights resting on “history and tradition” unjustifiably reinforces prior undemocratic conditions. As a corrective, we advocate a set of interpretive steps designed to ameliorate the Constitution’s democratic flaws and advance equal citizenship. Such methods may move us closer to egalitarian democracy, a prerequisite if we are ever to reshape our constitutional framework under truly inclusive conditions. 

The full article is available here. (h/t Legal Theory Blog)

-- Karen Tani

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