Friday, June 30, 2023

Eldridge's "Law and the Medieval Village Community"

Lorren Eldridge, an Early Career Fellow at the University of Edinburgh, has published Law and the Medieval Village Community Reinvigorating Historical Jurisprudence (Routledge):

This book expands on established doctrine in legal history and sets out a challenge for legal philosophers. The English medieval village community offers a historical and philosophical lens on the concept of custom, which challenges accepted notions of what law is. The book traces the study of the medieval village community from early historical works in the nineteenth century through to current research. It demonstrates that some law-making can and has been ‘bottom-up’ in English law, with community-led decision-making having a particularly important role in the early common law. The detailed consideration of law in the English village community reveals alternative ways of making and conceiving of law which are not dependent on state authority, particularly in relation to customary and communal property rights. Acknowledging this poses challenges for legal theory: the legal positivism that dominates Western legal philosophy tends to reject custom as a source of law. However, this book argues that medieval customary law ought to be considered ‘law’ if we are ever going to fully understand law - both then and now. The book will be a valuable resource for researchers and academics working in the areas of Legal History, Legal Theory, and Jurisprudence.

--Dan Ernst

Thursday, June 29, 2023

Tsai and Ziegler on Dobbs and "Movement Jurists"

Robert L. Tsai. Boston University School of Law, and Mary Ziegler, University of California, Davis School of Law, have posted Abortion Politics and the Rise of Movement Jurists, which is forthcoming in the UC Davis Law Review:

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial codification can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists.

Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty.

We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court. 
--Dan Ernst

Robison on Ex parte Crouse

Erica Robison, a  J.D. Candidate in the Class of 2025 at the Stanford Law School, has published
Confronting the ghost of Elizabeth Gillam: A new look at Ex parte Crouse (1839) in the Juvenile & Family Court Journal 74 (June 2023): 43-60, where it appears open access.  Ms. Robison is a recent graduate of the University of Notre Dame, where Linda Przybyszewski, advised her on the writing of the paper.

This article revisits the 1839 Pennsylvania Supreme Court case Ex parte Crouse in light of new historical information. While most legal scholars and historians have analyzed Ex parte Crouse with the assumption that Mary Ann Crouse was sent to the Philadelphia House of Refuge without committing any crime, a search at the Historical Society of Pennsylvania revealed the existence of Crouse's admission record detailing how she had killed a two-year-old child. This finding undermines the extensive conclusions that scholars have drawn about the case's significance and highlights the importance of archival work in legal studies.

--Dan Ernst

Wednesday, June 28, 2023

Calabritto, "Murder and Madness on Trial: A Tale of True Crime from Early Modern Bologna"

Penn State University Press has published Murder and Madness on Trial: A Tale of True Crime from Early Modern Bologna (2023), by Mònica Calabritto (Hunter College and the CUNY Graduate Center). A description from the Press:

On October 24, 1588, Paolo Barbieri murdered his wife, Isabella Caccianemici, stabbing her to death with his sword. Later, Paolo would claim to have acted in a fit of madness—but was he criminally insane or merely pretending to be? In this riveting book, Mònica Calabritto addresses this controversy by reconstructing Paolo’s life, prosecution, and medical diagnoses.
Skillfully combining archival documents unearthed throughout Italy, Calabritto brings to light the case of one person and his family as insanity ravaged their financial security, honor, and reputation. The very notion of insanity is as much on trial in Paolo’s case as the defendant himself. A case study in the diagnosis of insanity in the early modern era, Barbieri’s story reveals discrepancies between medical and legal definitions of a person’s mental state at the time of a crime. Murder and Madness on Trial bridges the micro-historical dimensions of Paolo’s murder case and the macro-historical perspectives on medical and legal evidence used to identify intermittent madness.

A tragic and gripping tale, Murder and Madness on Trial allows readers to look “through a glass darkly” at early modern violence, madness, criminal justice, medical and legal expertise, and the construction and circulation of news. This erudite and engaging book will appeal to early modern historians and true crime fans alike.

Praise from reviewers:

Murder and Madness on Trial, in dialogue with both historians of medicine and social and legal historians, paints a complex and rich picture of early modern madness. Thanks to the unusual abundance of the documentation of the case—legal, medical, literary—Calabritto describes in detail a nuanced case of murder, illness, and conflict of expertise, interpretation, and political cultures.”
“When a young Bolognese nobleman prone to delusion and rage slaughtered his well-born wife in 1588, the shocking crime set off a drama that drew in men of law and medicine, stirred up the city’s chronicles, and subverted the host family’s authority for decades to come. Murder and Madness on Trial ties everything together in a literary, medical, legal, and social history that traces discordant understandings of crime and mental illness and tracks the crime’s lasting repercussions within the wider family.”

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

-- Karen Tani

Richard B. Bernstein (1956-2023)


Although the sad news of the unexpected death of Richard B. Bernstein has circulated among legal historians via email and social media since Monday, we have been waiting for an obituary to notice it here. We can now link to a moving Twitter thread by Joanne Freeman. (Read the replies and the "quote tweets" for recollections by many others.) 

We will simply add that we join in the many expressions of shock at his death and in the recollections of his kindness, generosity, commitment to teaching, command of the history of the founding era, and deep and almost ingenuous love of the historical craft that touched even the most worldly scholar.  He was a unique presence in the political and constitutional history of early America; his absence will long be felt by those who came to know him well in the ASLH, NYU's legal history workshop, and other venues. 

We will post a more formal obituary when it becomes available. 

--Dan Ernst and Karen Tani

Update:  A funeral service for Richard Bernstein will take place on  Friday, June 30, 2023, from 12:00 PM to 1:00 PM at Sinai Chapels, 114-03 Queens Blvd, Forest Hills, NY 11375. The memorial page is here.  His informative biographical page on Amazon is here.  H/t: JQB, EMF.

Kuehn, "Patrimony and Law in Renaissance Italy"

Cambridge University Press has published Patrimony and Law in Renaissance Italy (2022), by Thomas Kuehn (Clemson University). A description from the Press:

Family was a central feature of social life in Italian cities. In the Renaissance, jurists, humanists, and moralists began to theorize on the relations between people and property that formed the 'substance' of the family and what held it together over the years. Family property was a bundle of shared rights. This was most evident when brothers shared a household and enterprise, but it also faced overlapping claims from children and wives which the paterfamilias had to recognize. Thomas Kuehn explores patrimony in legal thought, and how property was inherited, managed and shared in Renaissance Italy. Managing a patrimony was not a simple task. This led to a complex and active conceptualization of shared rights, and a conscious application of devices in the law that could override liabilities and preserve the group, or carve out distinct shares for each member. This wide-ranging volume charts the ever-present conflicts that arose and were a constant feature of family life.

Praise from reviewers:

'Patrimony and Law in Renaissance Italy analyzes the family as part of the sharing economy at the intersection of law, property, and households in Renaissance Italy. It is an essential work for scholars seeking to understand the entangled development of individual legal rights amidst the increasing codification of family law and the evolving familial economy of medieval and Renaissance Italy.' -- Caroline Castiglione

'This important study features the creative tension between a legal environment oriented toward individuals and a social world that prized families and patrimonies. The writings of jurists who wrestled with this tension reveal a 'sharing economy,' a form of economic behavior whose existence upends our simple teleologies of gift and market.' -- Daniel Lord Smail

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

-- Karen Tani

Tuesday, June 27, 2023

Likhovski on Jurisprudence and Nationalism in the British Empire

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted Jurisprudence and Nationalism in the British Empire in the Early Twentieth Century: India, Egypt, and Palestine Compared, which is forthcoming in the English Historical Review:

Radhabinod Pal (Wiki)
This article discusses works on jurisprudence produced by authors from three British-ruled territories (India, Egypt, and Palestine) in the early decades of the twentieth century. It argues that these works were part of a non-Western jurisprudential wave that appeared in different parts of the British Empire at the time. Legal scholars working in these territories were not passive recipients of legal ideas imported from the metropole: their works were more cosmopolitan than those produced in the United Kingdom, using ideas drawn from English thinkers but also referring to Continental and American historical and sociological theories of law. The use of such theories was combined with an interest in the ideas and values of local religious legal systems (Hindu law, Islamic law, and Jewish law, respectively). These systems were depicted as superior to Western law—not only because local legal scholars saw them as the historical source of Western jurisprudential conceptions but also because they were viewed as a possible source of collectivist values that would replace the individualist values of transplanted Western law. While there were many similarities between the works written in the three territories, the article also highlights certain differences in the way religious legal systems were viewed in the places examined. 
--Dan Ernst

Barakat, "Bedouin Bureaucrats: Mobility and Property in the Ottoman Empire"

Stanford University Press has published Bedouin Bureaucrats: Mobility and Property in the Ottoman Empire (2023), by Nora Elizabeth Barakat (Stanford University). A description from the Press:

In the late nineteenth century, the Ottoman government sought to fill landscapes they legally defined as "empty." Both land and people were incorporated into territorially bounded grids of administrative law. Bedouin Bureaucrats examines how tent-dwelling, seasonally migrating Bedouin engaged in these processes of Ottoman state transformation on local, imperial, and global scales. As the "tribe" became a category of Ottoman administration, Bedouin in the Syrian interior used this category both to gain political influence and to organize community resistance to maintain control over land.

Narrating the lives of Bedouin individuals involved in Ottoman administration, Nora Elizabeth Barakat brings this population to the center of modern state-making, from their involvement in the pilgrimage administration in the eighteenth century and their performance of land registration and taxation as the Ottoman bureaucracy expanded in the nineteenth, to their eventual rejection of Ottoman attempts to reallocate the "empty land" they inhabited in the twentieth. She places the Syrian interior in a global context of imperial expansion into regions formerly deemed marginal, especially in relation to American and Russian empires. Ultimately, the book illuminates Ottoman state formation attempts within Bedouin communities and the unique trajectory of Bedouin in Syria, who maintained their control over land.

Praise from reviewers:

"Bedouin Bureaucrats is a marvel. It is necessary reading for anybody interested in the complexities of state-building, governance, and sovereignty. Nora Barakat has given us a book that will be debated and admired for years to come." —Pekka Hämäläinen

"Through rigorous research and exceptional prose, Nora Barakat shows how Bedouin chiefs participated in the creation of new state structures to ensure their power and privilege and the long-term survival of their communities. Bedouin Bureaucrats convinces us to rethink our assumptions about tribes and their place in the modern Middle East."—Reşat Kasaba,

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

-- Karen Tani

Monday, June 26, 2023

Chabot on Delegation and the Appropriations Clause at the Founding

Christine Kexel Chabot, Marquette University Law School, has posted The Founders' Purse:

Alexander Hamilton (NYPL)
This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.”

Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.
--Dan Ernst

Citron on "Alexander Hamilton and Administrative Law"

The Cleveland State Law Review has published "Alexander Hamilton and Administrative Law: How America's First Great Public Administrator Informs and Challenges Our Understanding of Contemporary Administrative Law," by Rodger D. Citron (Touro University, Jacob F. Fuchsberg College of Law). The abstract: 

Alexander Hamilton (LC)
Alexander Hamilton’s recognition and reputation have soared since the premiere of "Hamilton," Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, "Hamilton" reminds us that questions of administration and administrative law have been with us since the first days of the Republic.

Inspired by the musical, this Article examines three related aspects of Hamilton and administrative law. First, while the typical administrative law course is preoccupied with the last century and is anchored in the New Deal, Hamilton’s tenure as Treasury Secretary shows that (administrative) law guided the Treasury Department’s operations and, moreover, that Hamilton took the law into account when leading the Department. Second, in law school, administrative law focuses on legal constraints on the agency rather than internal aspects of administration. Hamilton’s career, which fused contemporary notions of public administration and administrative law, challenges the separation of these two disciplines. Third, separation of powers is the foundation of the administrative law course. As the Article discusses, the Supreme Court considered Hamilton’s views on this subject, specifically in the context of the President’s removal authority, when deciding Seila Law LLC v. Consumer Protection Final Bureau in 2020. In sum, Hamilton and "Hamilton" have much to say about contemporary administrative law.

Read on here.

-- Karen Tani

Saturday, June 24, 2023

Weekend Roundup

  • Word from George Burton Adams, via Samuel Bray, Notre Dame Law (Volokh Conspiracy). 
  • Legal historians continue to garner teaching awards! Congratulations to Greg Ablavsky (Stanford Law School) on being selected by the SLS graduating class for the John Bingham Hurlbut Award for Excellence in Teaching.
  •  The recording of the Supreme Court Historical Society’s commemoration of Juneteenth, a “conversation on the lynching of Ed Johnson in 1906 and United States v. Shipp with Judge Curtis Collier and the Society’s Executive Director, Jim Duff,” is now on YouTube.
  • The historians and law professors amicus curiae brief in  CFPB v. Cmty. Fin. Servs. Ass’n Am., Ltd., No. 22-448 (U.S. May 15, 2023) is here.  Its authors are Kevin Arlyck, Georgetown University Law Center; Brian Balogh, University of Virginia; Aziz Z. Huq, University of Chicago Law School; Richard R. John, Columbia University; Gautham Rao, American University; and Noah A. Rosenblum, New York University School of Law.  Check back on LHB for links to two articles relating to this case on Monday.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 23, 2023

Telfer and Torrie on the Saskatchewan Moratorium Act

Thomas G. W. Telfer, Western University Faculty of Law, and Virginia Torrie, Affiliated Researcher, Desautels Centre for Private Enterprise and the Law, University of Manitoba Faculty of Law, have posted Debt Postponement, Debtor Protection, and Creditor Interests: The Role of the Saskatchewan Moratorium Act Reference Case in Reinforcing the Bankruptcy and Insolvency Power, which appears in the Saskatchewan Law Review (2023) 86.1 SLR 41-82:

Canada’s prairie provinces have long attempted to secure the economic fortunes of their residents by enacting legislation to restrict the enforcement of debt. Provincial efforts to restrict creditor collection actions date back to the Financial Crisis in 1914 and extended through the Dust Bowl and Great Depression of the 1930s, and into the early 1940s. Saskatchewan enacted its first such statute in 1914, but by 1929 it had followed Alberta’s lead and created a comprehensive scheme of debt relief with its Debt Adjustment Act. In 1941, Alberta’s Debt Adjustment Act was declared ultra vires by the Supreme Court of Canada. The ruling cast doubt on the validity Saskatchewan’s Act by implication. Saskatchewan responded by repealing its Debt Adjustment Act and enacting the Moratorium Act in 1943. However, the province’s constitutional problems did not end there. In 1955 it referred the validity of its newest Moratorium Act to the Saskatchewan Court of Appeal, and on appeal the Supreme Court of Canada declared that the statute ultra vires for trenching on the federal government’s jurisdiction over bankruptcy and insolvency. The decision continued the trend of expanding the bankruptcy power and was influential for clarifying the broad scope of this federal power, articulating clear definitions of bankruptcy and insolvency, and acknowledging the stigma of bankruptcy and the dual policy goals of social and economic rehabilitation. This paper argues that the Moratorium Act Reference case is a landmark decision, for affirming that debt adjustment legislation is exclusively within the scope of federal bankruptcy and insolvency law, and the enduring influence of Justice Rand’s judgment on the further development of the modern Canadian bankruptcy and insolvency system.

--Dan Ernst

Tawfik, "For the Encouragement of Learning: The Origins of Canadian Copyright Law"

The University of Toronto Press has published For the Encouragement of Learning: The Origins of Canadian Copyright Law (2023), by Myra Tawfik (University of Windsor). A description from the Press:

For the Encouragement of Learning addresses the contested history of copyright law in Canada, where the economic and reputational interests of authors and the commercial interests of publishers often conflict with the public interest in access to knowledge. It chronicles Canada’s earliest copyright law to explain how pre-Confederation policy-makers understood copyright’s normative purpose.

Using government and private archives and copyright registration records, Myra Tawfik demonstrates that the nineteenth-century originators of copyright law intended to promote the advancement of learning in schools by encouraging the mass production of educational material. The book reveals that copyright laws were integral features of British North American education policy and highlights the important roles played by teachers, education reformers, and politicians in the emergence and development of the laws. It also explains how policy-makers began to consider the relationship between copyright and cultural identity formation once British interference into domestic copyright affairs increased, and as Canadian Confederation neared. Using methodologies at the intersection of legal history and book history, For the Encouragement of Learning embeds the copyright legal framework within the history of Canada’s book and print culture.

From reviewers:

"For the Encouragement of Learning is an essential text for fully understanding the origins and development of copyright law in Canada. By grounding her insights in deeply researched historical contexts – colonial and Anglo-American copyright, educational and cultural trends, resistance to British copyright laws, the reading needs of French Canadians, to name but a few – Myra Tawfik has given us a landmark study for assessing Canadian copyright law’s past, present, and future." -- Robert Spoo

"Painstakingly researched and meticulously written, Myra Tawfik’s book provides a sweeping picture of early Canadian copyright history while dropping delicious anecdotes. Vast amounts of information are put together and transformed for the reader to experience an easy storytelling of Canadian copyright law within general Canadian history. It is the pre-Confederation copyright history book that was missing in Canada." -- Ysolde Gendreau

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

-- Karen Tani

Thursday, June 22, 2023

CFP: ANZLHS Conference

[The website for the 42nd Annual Conference of the ANZLHS is now online.  Here's the CFP.  DRE]

The Australian and New Zealand Law and History Society invites abstract submissions for its 42nd Annual Conference. Personal attendance is warmly encouraged, but an online component will be available.  The theme for 2023 is Intersectionality and Legal Identities.  Abstracts should be no more than 300 words and should be accompanied by a brief statement of the author's academic affiliation and/or CV. Please submit abstracts via email:

Abstracts should be submitted by 15 August 2023, and notification of acceptance will be sent in late September.  A PDF of the Call for Papers is available for download and circulation here. Conference registration details will be available via the 2023 ANZLHS Annual Conference website in the coming months.

"The Long Law and Economics Movement" -- Gocke on "Outside In: The Oral History of Guido Calabresi"

This post, by Alison Gocke (Associate Professor of Law, University of Virginia School of Law) is the tenth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber.

The Long Law and Economics Movement
In Karen Tani’s earlier posts on Guido’s life and work (which readers can find here, here, here, and here), she has reflected on the ways in which Guido does and does not embody a certain kind of “economic style of reasoning.” As Tani points out, Guido is associated with bringing “economics precepts and insights into legal domains where they had not previously had much purchase.” But Tani, I think rightfully, also distinguishes Guido from others whom we might group in the Law and Economics school because of his recognition that economics provides only one way of thinking about legal problems, and that societies often settle on “mixed” collectivist and market-based systems. This analysis leaves Tani somewhat ambiguous about where Guido falls in the Law and Economics tradition. I would like to use this post to suggest a different law and economics legacy to which it may be useful to compare and contrast Guido, with the hope of shedding further light on his scholarship and the history of law and economics in the United States.
The body of legal thought which interests me here is that of public utility regulation. Public utility regulation describes the doctrine we use to regulate certain industries, including electricity, natural gas, telecommunications, transportation, and finance and banking. It has a close association with the Law and Economics school of Guido’s cohort. Indeed, many of the economists and lawyers that make appearances in Outside In—including Harold Demsetz, George Stigler, and Richard Posner (see, e.g., OI, v.1, 228, 292-95, 327, 357-58)—cut their teeth writing influential pieces on public utility regulation before they extended their law and economics ideas to other contexts. In this light, it is curious that Guido himself chose not to step into the public utility mix early in his career.
But the connection between public utility regulation and law and economics appeared decades before the modern Law and Economics movement, and it is this earlier instantiation that is of interest to me. Public utility regulation as a distinct field of law arose at the end of the nineteenth and the beginning of the twentieth centuries in the United States. (For those who are interested, William Novak has written about how public utility regulation as a body of administrative law developed from a variety of common law and other principles.) Many of the economists and lawyers involved in crafting public utility regulation were part of what Herbert Hovenkamp has dubbed “The First Great Law and Economics Movement.” Hovenkamp describes members of this movement as being, on the whole, more liberal in their ideology, more “interested in the relationship between the law and the distribution of wealth in American society,” and more “dubious about markets and about the common law as a welfare-enhancing device” as compared to the modern Law and Economics movement. (Hovenkamp, p. 995)

Wednesday, June 21, 2023

CSCHS Review (Spring/Summer 2023)

The Spring/Summer '23 issue of the California Supreme Court Historical Society's Review is now available here. Dr. Molly Selvin, the editor, writes:
Our lead story tackles the ongoing debate over historical figures long venerated by law schools, universities, monuments and other public memorials. San Francisco attorney and historian John Briscoe takes off from the recent “denaming” of UC Hastings College of the Law (now UC College of the Law, San Francisco) with a careful examination of the role California’s first chief justice and later attorney general, Serranus Hastings, played in the massacres of the state’s native population between 1834 and 1880. John also broadens his scope to address naming controversies at other universities and law schools. In so doing, he explores how various universities and professional organizations have struggled to weigh tradition with Americans’ changing understanding of our past.

Next, CSCHS board member John Caragozian explores the prosecution of 19-year old Yetta Stromberg, a counselor at a “red” summer camp. In 1929, during the so-called First Red Scare, the Southern California teenager was charged with raising a homemade hammer-and-sickle flag each morning, leading the children in pledging allegiance to it, and singing “Communist songs.” Stromberg was convicted of violating a California Penal Code section barring activities in opposition to “organized government.” Although the U.S. Supreme Court ultimately reversed her conviction, explicitly holding that the First Amendment’s free speech protections were enforceable against states and that “visual symbols like the red flag” qualified as speech, Stromberg’s case can be seen as a prelude to the Communist persecutions of the 1940s and ’50s. 

For the complete TOC scroll down to the end of the pdf linked to above.  Dr. Selvin adds, "We welcome comments from your readers — as well as their article ideas.”  Write her at

--Dan Ernst

Masters, "We, the King: Creating Royal Legislation in the Sixteenth-Century Spanish New World"

Cambridge University Press has published We, the King: Creating Royal Legislation in the Sixteenth-Century Spanish New World (2023), by Adrian Masters (Universität Trier, Germany). A description from the Press:

We, the King challenges the dominant top-down interpretation of the Spanish Empire and its monarchs' decrees in the New World, revealing how ordinary subjects had much more say in government and law-making than previously acknowledged. During the viceregal period spanning the post-1492 conquest until 1598, the King signed more than 110,000 pages of decrees concerning state policies, minutiae, and everything in between. Through careful analysis of these decrees, Adrian Masters illustrates how law-making was aided and abetted by subjects from various backgrounds, including powerful court women, indigenous commoners, Afro-descendant raftsmen, secret saboteurs, pirates, sovereign Chiriguano Indians, and secretaries' wives. Subjects' innumerable petitions and labor prompted – and even phrased - a complex body of legislation and legal categories demonstrating the degree to which this empire was created from the “bottom up”. Innovative and unique, We, the King reimagines our understandings of kingship, imperial rule, colonialism, and the origins of racial categories.

A sample of praise from reviewers:

‘Meticulously researched and beautifully written, We, the King unveils the labyrinthine petitioning process involved in enacting thousands of legislative decrees and reveals how diligent vassals shaped colonial policies and categories of difference. It dismantles the standard view of the Spanish colonial state as the architect of legal rule that was all-seeing and all-pervasive. This outstanding work should be required reading for all colonial Latin Americanists.’ -- Nancy E. van Deusen

‘Adrian Masters has produced an ambitious study of early modern bureaucracy, law-making, and subaltern agency. Deeply researched and carefully written, We, the King is an indispensable resource for scholars of the Iberian empire.’ -- Michelle McKinley

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

-- Karen Tani

Tuesday, June 20, 2023

AALS Section on Minority Groups: Lessons from the Past

[We have the following announcement.  DRE]

The [Association of American Law Schools] Section on Minority Groups is excited to announce its programming for the AALS Annual Meeting to be held January 3-6, 2024, in Washington, D.C. The Section will host a main program, Works-In-Progress/New Voices session, and pedagogy panel. Below you will find a brief description of each program and links to additional information regarding: calls for proposals and papers; deadlines; and contact information for individuals able to answer further questions. 

Main Program (co-sponsored by the AALS Sections on Critical Theories, Sexual Orientation and Gender Identity Issues, Poverty Law, and Women in Legal Education)

Everything Old is New Again

Every day seems to present a new crisis of democracy. Shifts in judicial deference to history and tradition, executive actions, and legislative initiatives disproportionally impacting diverse and marginalized communities-and the rhetoric surrounding them-have caused many scholars, community leaders, and activists to draw parallels between the modern political and social atmosphere and the atmosphere of the Jim Crow era and the early days of the Civil Rights Movement. How accurate are these comparisons? If we truly are reliving a version of this part of history, how important is it to also understand the resistance and opposition movements and strategies that ultimately lead to change? What lessons does this history offer to the legal profession today? This panel will examine both whether there is a resurgence in the political and social dynamics of the Jim Crow era and to what extent resistance movements and strategies may inform pushes for social change today. For additional information, click here.

CFP: Family Law History

We have learned that the American Academy of Matrimonial Lawyers will devote a special issue of its Journal to the legal history of family law.  Proposals are welcome now, with drafts due in the fall of 2024 and publication in the spring of 2025. The submission guidelines are here.  Gary A. Debele, a Minneapolis-based family law practitioner who teaches the University of Minnesota Law School’s Family Law Capstone course and is one of the editors of the special issue, writes:
The topic can be of  the writer’s choosing, so long as it relates to some historical aspect of  family law or family law practice and procedure. We define family law practice broadly, including all aspects of divorce, custody and parentage, but also assisted reproduction, adoption, the Indian Child Welfare Act, child protection, domestic abuse, as well as topics such as changing family demographics, LGBTQ+ issues, and gender issues. 

Update: Interested authors may send their proposals to our executive editor, Mary Kay Kisthardt (whose email address appears in the linked guidelines) who will forward them to the special issue's editors, Mr. Debele and Steven Peskind.

--Dan Ernst

Monday, June 19, 2023

Encounters with Books from Other Disciplines

[We have word of a new series, published by Cambridge University Press and edited by Maksymilian Del Mar, Professor of Legal Theory and Legal Humanities, School of Law, Queen Mary University of London.  DRE]

Encounters with Books from Other Disciplines is a new series encouraging a new form of writing, i.e., as reading generatively from another discipline. Each piece in the series takes a recently published book from another discipline, and one which might at first seem to have little explicitly to do with law, and relates it to legal scholarship. The focus is on the generative potential of the book for thinking about and researching law: what new questions does the book open up for legal scholarship? What new resources and topics of investigation does the book offer? If interested in contributing to the series, please email the Encounters Editor, Maksymilian Del Mar:

Green, "Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building"

Craig Green (Temple University - Beasley School of Law) has posted "Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building." The article appears in Volume 90, no. 3, of the University of Chicago Law Review (2023). The abstract:

The United States has always been more than simply a group of united states. The constitutional history of national union and component states is linked to a third category: federal territory. This Article uses an integrated history of territory, statehood, and union to develop a new framework for analyzing constitutional statehood. Three historical periods are crucial—the Founding Era, the Civil War, and Reconstruction—as times when statehood was especially malleable as a matter of constitutional law. During each of those formative periods, the most important constitutional struggles about statehood and the union involved federal territories.

Conflicts about territories reveal an important distinction between theories of states’ constitutional authority to participate in national politics (the “skeleton” of statehood) and their constitutional authority to resist the national government (the “muscle” of statehood). The skeletal authority of states to participate in federal politics has been legally explicit and essential since the Articles of Confederation. By comparison, advocates for muscular states’ rights have relied on dubious inferences and historical distortions.

During the Founding Era and the Civil War, pivotal disputes concerning territories were resolved to favor the skeleton of representational statehood instead of the muscular statehood of antifederal resistance. During Reconstruction, however, the Supreme Court created new doctrines of muscular statehood that were based on inaccurate histories of the Founding and the Civil War. Judicial decisions like the Slaughter-House Cases and the Civil Rights Cases applied those doctrinal theories of muscular statehood to limit individual rights and congressional power under the Reconstruction Amendments. In the late twentieth century, such precedents gained force after the confirmation of politically conservative Supreme Court Justices, and similar doctrines might be even more powerful with the modern Court’s conservative supermajority.

This is not how constitutional law should work. Muscular statehood achieved doctrinal success much later than most observers assume, and it has neither the positivist pedigree nor the compelling results to justify antimajoritarian constitutional status. Although the constitutional skeleton for states’ participation in the federal government is foundationally important, constitutional doctrines of muscular statehood to resist national democracy should be presumptively disfavored. 

The full article is available here, at SSRN.

-- Karen Tani

Kennedy on Walker-Thomas

Duncan Kennedy, Harvard Law School, has posted The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, which appears in the Buffalo Law Review:

This article severely criticizes the way first-year law teachers and casebook writers teach the famous case of Williams vs. Walker-Thomas Furniture Co. The court granted relief to a poor Black woman, living on welfare in a poor neighborhood of the District of Columbia in 1965, who had signed a series of one-sided credit sale contracts for household goods. The case has stood, against the intention of the holding, for the conventional wisdom that the regulation of terms in consumer contracts hurts the people it is supposed to help (Part I and II). The second part of the article presents in strictly conventional neo-classical welfare economic terms the better, although still only marginally accepted, position that the consequences are variable depending on the configuration of the market in question (Part III). The third part collects the surprisingly large amount of data available about the market and the specific transaction in Williams. It shows that given the exploitative character of the seller/lender’s sales practices, it is overwhelmingly likely that banning the clause in question benefited Ms. Williams at the expense of Walker-Thomas (Part IV and V). The conclusion argues for the relevance of the analysis to today’s analogous consumer credit abuses. 
--Dan Ernst

Saturday, June 17, 2023

Weekend Roundup

  • Grace Mallon on federalism in the early American republic on the podcast of the University of Cambridge American History Seminar.
  • Historians appear prominently in the Supreme Court's decision in Haaland v. Brackeen. We spotted the Brief for American Historical Association et al. as Amici Curiae cited on page 4 (h/t Gautham Rao, Maggie Blackhawk). Other historians are cited throughout the various opinions.
  • Kaius Tuori on pacta sunt servanda and the role of tradition and history in the making and legitimizing legal rules.
  • There is still time to register for the Supreme Court Historical Society's commemoration of Juneteenth, a conversation with Judge Curtis Collier and the Society’s Executive Director, Jim Duff, on the lynching of Ed Johnson in 1906 and the resulting US Supreme Court decisions, United States v. Shipp.  It will take place on June 21, 2023 at Noon (ET)
  • Steven Mintz analogizes between how Morton Horwitz and William Nelson transformed the legal history of the early nineteenth century United States by treating it as a response to "the market revolution—the rise of modern financial markets, wage labor and labor unions" and the need for a comparable legal history for recent "transformations in medicine, psychological treatment, disabilities and teaching and learning "(IHE). 
  • ICYMI: Gautham Rao thinks DJT is "thumbing his nose at our system of government and at the rule of law itself" (CNN).  H. W. Brands finds lessons from the prosecution of Aaron Burr (Messenger).  Omotoyosi Adisa on Nigeria's first lawyer, Christopher Alexander Sapara Williams (RNN).  History wars within the Texas State Historical Association (Brownwood News).  More on Comstock and his laws (Smithsonian).  How Lauren Davila, a Grad Student at the College of Charleston, Uncovered the Largest Known Slave Auction in the U.S. (ProPublica).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 16, 2023

Wheatley's "Life and Death of States"

Natasha Wheatley, Princeton University, has published The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton University Press):

Sprawled across the heartlands of Europe, the Habsburg Empire resisted all the standard theories of singular sovereignty. The 1848 revolutions sparked decades of heady constitutional experimentation that pushed the very concept of “the state” to its limits. This intricate multinational polity became a hothouse for public law and legal philosophy and spawned ideas that still shape our understanding of the sovereign state today. The Life and Death of States traces the history of sovereignty over one hundred tumultuous years, explaining how a regime of nation-states theoretically equal under international law emerged from the ashes of a dynastic empire.

Natasha Wheatley shows how a new sort of experimentation began when the First World War brought the Habsburg Empire crashing down: the making of new states. Habsburg lands then became a laboratory for postimperial sovereignty and a new international order, and the results would echo through global debates about decolonization for decades to come. Wheatley explores how the Central European experience opens a unique perspective on a pivotal legal fiction—the supposed juridical immortality of states.

A sweeping work of intellectual history, The Life and Death of States offers a penetrating and original analysis of the relationship between sovereignty and time, illustrating how the many deaths and precarious lives of the region’s states expose the tension between the law’s need for continuity and history’s volatility.
--Dan Ernst

Job Alert: Democracy Project at NYU's Brennan Center

[Judging from the following announcement, liberal lawyers are "historianing up."  The job is said to be "great for someone with a B.A. or M.A. in history and an interest in law," who would "be embedded in a full-time legal practice."  DRE. H/t: LK]

The Brennan Center [for Justice at NYU School of Law] seeks a full-time Program Associate to join our Democracy Program, which seeks to expand access to the franchise, counter political entrenchment, respond to regressive judicial rulings, and reform our courts and other democratic institutions, through litigation, legal strategy development, policy campaigns, and strategic communications.

The Program Associate will join an inter-disciplinary team working with historians, legal scholars, and lawyers to address misuses of history in the courts and develop new ways to invoke history to protect our democracy. This position should be especially interesting for students of history or political science who are seeking experience with the law.

The team’s work responds to the extreme rightward turn that the federal courts have taken in recent years. The courts—led by the United States Supreme Court—have justified overruling significant precedents and issuing anti-democracy decisions by invoking widely criticized “originalist” theories of constitutional interpretation that limit the scope of our rights to eighteenth-century values. These originalist opinions often also get the history wrong. Their effects have been devastating for abortion rights, gun control, and other critical issues.

The Program Associate will provide research and writing support to the team, along with broad logistical support for the team’s day-to-day operations. This is an entry-level position reporting to a designated program manager, although the Program Associate may be assigned to work with a variety of team members as needed. Over the course of their tenure, the Program Associate may also be assigned to work on other emergent issues affecting our democracy.

Thursday, June 15, 2023

Alldridge and Mumford's Hunt for Hutchinson

We’re grateful to Eric M. Freedman for drawing our attention to this paywalled story in the National Law Journal by Jimmy Hoover, on the publication of ‘The History of Double Jeopardy and Criminal Jurisdiction: US v Gamble (2019) and R v Hutchinson (1677),"  Law Quarterly Review 139 (2023): 390-411, by Peter Alldridge, Queen Mary University of London, and Ann Mumford, Kings College London.  A prepublication draft of the LQR article is here.

In Gamble, Justice Samuel Alito Jr., writing for a 7-2 majority, stated that the defendant, Terrance Gamble, could not rely on the seventeenth-century Hutchinson decision, which was said to have barred an English trial for murder after the suspect had been acquitted in Portugal, in arguing that double jeopardy barred his conviction for a gun possession offense in state and federal court.  Justice Alito noted that the only reported decision Gamble’s lawyers had found was a denial of Hutchinson’s motion for bail before King’s Bench.  Their evidence of the disposition of the case on the merits was, he said,“indirect and shaky.”

“As an American living in the UK, I had developed this faith that you could always find the case,” Professor Mumford recently told the National Law Journal.  “I thought, well, I’m here. [Hutchinson’s case is] going to be in a box somewhere here, isn’t it? So let’s see if we can find it.”  She enlisted Professor Alldridge in her quest. As he explained to the NLJ, “There is something about the tone in which Alito writes that makes you want to show him to be wrong."

The LQR article reports how the pair’s “Hunt for Hutchinson” ended in the manuscript law reports of Sir Edward Northey, where they found the following, written in Law French:

The judges certify, that a trial and acquittal according to the laws of Portugal, would in this instance be as available for the offender, as would a trial and acquittal here. Thereupon Hutchinson was now discharged nisi etc.
--Dan Ernst

LHR 41:1

Law and History Review 41:1 is now published in print.  Articles published Open Access (OA) are noted below.


Hardeep Dhillon, The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law” (OA)

Hayden J. Bellenoit, “Legal Limbo and Caste Consternation: Determining Kayasthas’ Varna Rank in Indian Law Courts, 1860-1930” (OA)

Paolo Astorri, “The Redefinition of Clandestine Marriage by Sixteenth-Century Lutheran Theologians and Jurists” (OA)

Katharina Isabel Schmidt, “How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927-1934” (OA)

Lauren Feldman, “Creating Law through Regulating Intimacy: The Case of Slave Marriage in Nineteenth-Century New York and the United States” (OA)

Teal Arcadi, “Concrete Leviathan: The Interstate Highway System and Infrastructural Inequality in the Age of Liberalism”

William B. Meyer, “‘No Quixotry in Redress of Grievances’: How Community Abatement of Public Nuisances Disappeared from American Law”

Jonathan Connolly, “Re-Reading Morant Bay: Protest, Inquiry, and Colonial Rule” (OA)

Review Article

Angela Fernandez, “Genuine Concern for Animals in England’s Nineteenth-Century Animal Protection Movement: The Case Against Reductionist Interpretations” (OA)

Book Reviews

Carlton F. W. Larson, The Trials of Allegiance: Treason, Juries, and the American Revolution New York: Oxford University Press, 2019. Pp.424. $40.95 hardcover (ISBN 9780190932749).
Susan Brynne Long

Lisa Kloppenberg, The Best Beloved Thing is Justice: The Life of Dorothy Wright Nelson New York: Oxford University Press, 2022. Pp. 216. $39.95 hardcover (ISBN 9780197608579); ebook (ISBN 9780197608609).
Patricia I. McMahon

Wolfgang P. Müller, Marriage Litigation in the Western Church, 1215–1517 Cambridge, UK; New York, NY: Cambridge University Press, 2021. Pp. viii, 270. $99.99 hardcover (ISBN-13: 978-1108845427). doi:10.1017/9781108955812
Charles Donahue, Jr.

Yue Du, State and Family in China: Filial Piety and Its Modern Reform Cambridge: Cambridge University Press, 2021. Pp. 312. Hardcover £ 75.00 (ISBN: 9781108838351). doi:10.1017/9781108974479
Qiliang He

Radha Kumar, Police Matters: The Everyday State and Caste Politics in South India, 1900–1975 Ithaca and London: Cornell University Press, 2021. Pp. 241. $19.95 paperback (ISBN 9781501761065).
Partha Pratim Shil


How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34 (OA)
Katharina Isabel Schmidt

Legal Limbo and Caste Consternation: Determining Kayasthas' Varna Rank in Indian Law Courts, 1860–1930
Hayden J. Bellenoit

A Postscript: I've taught a draft of Teal Arcadi's "Concrete Leviathan" article in my first-year Property course, offered in the second semester, when many of the students encounter Overton Park in a Leg-Reg elective. I've found that it provides an excellent bridge between the discussion of the disparate racial impact of eminent domain in the one course and judicial review of agency action in the other.

--Dan Ernst

Wednesday, June 14, 2023

Hurst Fellows Announced

The American Society for Legal History has announced the recipients of the 2023 Hurst fellowships, who will attend the twelfth James Willard Hurst Summer Institute in Legal History, a biennial workshop devoted to in-depth discussion of the research of early career legal historians.

Also, we note that the deadline for applications for the ASLH’s Virtual Book Club is July 1, 2023.

--Dan Ernst

The Social History of Legal Responses to Infectious Disease

 [We have the following announcement.  DRE.]

The Social History of Legal Responses to Infectious Disease

22 September 2023–23 September 2023, 9:30 am–5:00 pm, University College London Faculty of Laws.  A hybrid conference convened by Emily Gordon, Charles Mitchell, and Ian Williams

Legal responses to infectious disease have recently been at the forefront of public health policy debates, but the issues raised by epidemics are not new and a better understanding of the effects of legal measures can be gained from a study of historical precedents. Studying the social history of legal responses to disease also reveals much about the evolution of social and political attitudes, the evolution of legal doctrine, and the interaction between social, political and legal change. Legal historians, political historians and social historians of medicine have worked on these topics but have not always looked outside their specialist areas and this inter-disciplinary event aims to bring them together. The focus of the discussion will be on Great Britain, the British Empire and the Commonwealth, starting in the medieval period and continuing into the twentieth century.

Conference themes: Social crises are agents of legal as well as social change. Legal as well as social responses to infectious disease, especially during epidemics, are a well-known example. Laws responding to infectious disease are affected by medical and scientific understandings of diseases, their causes and treatment. The causal flow also goes the other way: medical and therapeutic practice is affected by legal constructs of personhood (slaves and non-slaves, children and adults) and of what counts as ‘medical and therapeutic practice’.

Different types of law work in different ways, making them more or less suitable vehicles to implement policies responding to differently conceived problems, e.g. short-term solutions focussed on individuals (quarantine), long-term solutions focussed on individuals or urban infrastructure (immigration controls, vaccination programmes, building standards, sewage systems), coercive or enabling solutions, solutions which do or do not require public spending.  This all leads into questions about the role played by law as a tool for public health policy implementation, such as:

  • whether different types of legal response to infectious disease make a measurable difference – little epidemiological research has been done to measure this even in modern times and data from earlier periods is crude; 
  • whether successes can be attributed not only to medical expertise but also to policymaking and lawmaking expertise, to answer which it is necessary to consider how good ‘governance’ should be conceived and measured; 
  • whether failures can be attributed to technical failures by lawmakers, e.g. picking the wrong type of rule to implement a policy, or poor drafting of rules which are then misunderstood by those to whom they apply, or inept use of existing rules which are a poor fit for a new situation, or inept transplantation of laws from one jurisdiction to another; 
  • whether legal responses to infectious disease alter or perpetuate existing legal structures and whether they alter or perpetuate existing social and political norms, e.g. because law is used as a tool of imperial control, endorses and reinforces racial constructs, and/or exacerbates tensions between imperial rulers and ruled; and/or because law perpetuates the stigmatisation, scapegoating and othering of social groups, including victims of particular diseases, immigrants and racial minorities, the unemployed poor, gay men and other LGBQT+ people, and members of particular professions e.g. seamen and prostitutes; and/or because epidemics can promote social solidarity as well as social conflict, and because law can also pull in this direction, e.g. by ‘individualist’ outlawing of discriminatory acts and/or macrosocial responses to structural social inequalities and by signalling that public health problems are not generated by any particular social group and that solutions lie in lawmaking that applies to all.

Laws constraining individual freedoms for the common good are controversial and coercive laws responding to infectious disease are no exception. The historical record suggests that policymakers and lawmakers are not always alive to this concern, and that even when they are, they often enact coercive laws anyway. This also prompts questions, including:

  • whether policymakers and lawmakers always put the same considerations in the balance and weigh them off in the same way; and how their decisions, and the implementation of these decisions through law, affect general social attitudes regarding the costs and benefits of individualism and collectivism, civil liberties and state power;
  • given that administrative initiatives have a general tendency towards mission creep and increase of state power, and given that laws have a general tendency to stay in place after the reasons for their creation have gone, and/or after they are proved to have had negative rather than positive effects, and/or after they are seen to be ill-adapted to new cases, whether the administrative and legal responses to infectious disease have displayed these tendencies.

Legal responses to disease are not limited to state regulatory measures: evolving conceptions of disease and their causes can also affect the rules of private law, i.e. the laws governing relationships between private individuals such as tortious liability for harms – prompting further questions about fitness for purpose and justification.

Confirmed speakers include:

Mark Bailey, University of East Anglia
Alison Bashford, University of New South Wales, Sydney
Roberta Bivins, Warwick
Alex Chase-Levenson, Binghamton University
Tom Crook, Oxford Brookes University
Manikarnika Dutta, University of Bristol
Lorren Eldridge, University of Edinburgh
Jonathan Garton, Warwick
Colm McGrath, Dickson Poon School of Law at King’s College London
Noga Mora-Levine, Michigan State University College of Law
Charles Mitchell, UCL
Joe Sampson, Cambridge
Christopher Szabla, Durham University
Chantal Stebbings, University of Exeter
Katherine D Watson, Oxford Brookes University
Janet Weston, London School of Hygiene and Tropical Medicine

Tuesday, June 13, 2023

Carstensen on the Chicago Board of Trade Case

Peter Carstensen, University of Wisconsin Law School, has recently posted a classic study, which previously circulated as a working paper, of a landmark of antitrust history, The Content of the Hollow Core of Antitrust: The Chicago Board of Trade Case and the Meaning of the "Rule of Reason" in Restraint of Trade Analysis:

Louis D. Brandeis (NYPL)
Antitrust law's rule of reason for determining the validity of contracts in restraint of trade is enigmatic at best. A primary source of its contemporary Delphic character is the common understanding of the Chicago Board of Trade decision, one of the few cases in which the Supreme Court has upheld a restraint as reasonable. Using several potential meanings for the rule of reason, this study examines the factual context of the case, the record made by the parties, their legal and factual arguments to the Supreme Court, and the contemporaneous state of the law. The objective is to determine what rule of. reason was being employed in the case. The factual evidence established that the most likely explanation for the restraint was that it was to facilitate and protect from opportunistic exploitation the efforts of the members of the Board who were collectively creating a more efficient market system for certain classes of grain. Moreover, the legal arguments of the parties show that the characterization of the function of the restraint was a crucial issue in the case. Finally, a defense of reasonableness based on the ancillarity of a restraint to some other primary transaction or activity among the parties is entirely consistent with the then existing case law. In combination, these considerations show that the rule of reason employed in the case was not the open-ended balancing test commonly supposed, but a focused inquiry into the function of the restraint and its relationship to the joint productive activities of the parties. Therefore, when read in context of the record, argument and relevant case law, the Board of Trade decision does not provide a basis for making the rule of reason the unstructured hollow core of antitrust law. 
--Dan Ernst