Burset's "Empire of Laws"

An Empire of Laws: Legal Pluralism in British Colonial Policy by Christian R Burset, Notre Dame Law School, has now been published by Yale University Press:

For many years, Britain tried to impose its own laws on the peoples it conquered, and English common law usually followed the Union Jack. But the common law became less common after Britain emerged from the Seven Years’ War (1754–63) as the world’s most powerful empire. At that point, imperial policymakers adopted a strategy of legal pluralism: some colonies remained under English law, while others, including parts of India and former French territories in North America, retained much of their previous legal regimes.
 
As legal historian Christian R. Burset argues, determining how much English law a colony received depended on what kind of colony Britain wanted to create. Policymakers thought English law could turn any territory into an anglicized, commercial colony; legal pluralism, in contrast, would ensure a colony’s economic and political subordination. Britain’s turn to legal pluralism thus reflected the victory of a new vision of empire—authoritarian, extractive, and tolerant—over more assimilationist and egalitarian alternatives. Among other implications, this helps explain American colonists’ reverence for the common law: it expressed and preserved their equal status in the empire. This book, the first empire-wide overview of law as an instrument of policy in the eighteenth-century British Empire, offers an imaginative rethinking of the relationship between tolerance and empire.

–Dan Ernst

Laurie Wood memorial (10/6) and remembrance

Earlier this year we noted the passing of legal historian Laurie Wood. We now share information about a memorial service, hosted by her home department at Florida State University:

Please join us on October 6, 2023, at 4:00pm [EST] on Zoom as we celebrate our colleague, friend, and mentor, Dr. Laurie Wood.

Registration is required: https://rb.gy/ts2er

In addition, a fuller written remembrance is now available here, on the "in memoriam" section of the ASLH's website. Thank you to Danna Agmon, Edward J. Kolla, Ada Kuskowski, and Mitra Sharafi for co-authoring it.

For those who wish to memorialize Laurie Wood with a donation, please consider the two suggestions that her family has offered: 

• The Dr. Laurie M. Wood Fund for the Undergraduate Study of History. This fund will provide support to undergraduate students studying in the FSU Department of History. (Fund number: F09472) 
  

• The Laurie M. Wood Fund for Breast Cancer Research. This fund will support breast cancer research by Dr. Amy S. Clark at the University of Pennsylvania.  
  

-- Karen Tani

Penningroth's "Before the Movement"

Dylan C Penningroth, University of California, Berkeley, has published Before the Movement: The Hidden History of Black Civil Rights (Liveright):

The familiar story of civil rights goes like this: once, America’s legal system shut Black people out and refused to recognize their rights, their basic human dignity, or even their very lives. When lynch mobs gathered, police and judges often closed their eyes, if they didn’t join in. For Black people, law was a hostile, fearsome power to be avoided whenever possible. Then, starting in the 1940s, a few brave lawyers ventured south, bent on changing the law. Soon, ordinary African Americans, awakened by Supreme Court victories and galvanized by racial justice activists, launched the civil rights movement.

In Before the Movement, acclaimed historian Dylan C. Penningroth brilliantly revises the conventional story. Drawing on long-forgotten sources found in the basements of county courthouses across the nation, Penningroth reveals that African Americans, far from being ignorant about law until the middle of the twentieth century, have thought about, talked about, and used it going as far back as even the era of slavery. They dealt constantly with the laws of property, contract, inheritance, marriage and divorce, of associations (like churches and businesses and activist groups), and more. By exercising these “rights of everyday use,” Penningroth demonstrates, they made Black rights seem unremarkable. And in innumerable subtle ways, they helped shape the law itself—the laws all of us live under today.

Penningroth’s narrative, which stretches from the last decades of slavery to the 1970s, partly traces the history of his own family. Challenging accepted understandings of Black history framed by relations with white people, he puts Black people at the center of the story—their loves and anger and loneliness, their efforts to stay afloat, their mistakes and embarrassments, their fights, their ideas, their hopes and disappointments, in all their messy humanness. Before the Movement is an account of Black legal lives that looks beyond the Constitution and the criminal justice system to recover a rich, broader vision of Black life—a vision allied with, yet distinct from, “the freedom struggle.”

The publisher’s Q&A with Professor Penningroth is here.  The Chicago Review of Books review is here.

--Dan Ernst

Schabas's "International Legal Order's Colour Line"

William A. Schabas has published The International Legal Order's Colour Line: Racism, Racial Discrimination, and the Making of International Law (Oxford University Press).

Prior to the twentieth century, international law was predominantly written by and for the 'civilised nations' of the white Global North. It justified doctrines of racial inequality and effectively drew a colour line that excluded citizens of the Global South and persons of African descent from participating in international law-making while subjecting them to colonialism and the slave trade.

The International Legal Order's Colour Line narrates this divide and charts the development of regulation on racism and racial discrimination at the international level, principally within the United Nations. Most notably, it outlines how these themes gained traction once the Global South gained more participation in international law-making after the First World War. It challenges the narrative that human rights are a creation of the Global North by focussing on the decisive contributions that countries of the Global South and people of colour made to anchor anti-racism in international law.

After assessing early historical developments, chapters are devoted to The League of Nations, the adoption and implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, the debates within UNESCO on the notion of race itself, expansion of crimes against humanity to cover peacetime violations, as well as challenges to apartheid in South Africa. At all stages, the focus lies on the role played by those who have been the victims of racial discrimination, primarily the countries of the Global South, in advancing the debate and promoting the development of new legal rules and institutions for their implementation. The International Legal Order's Colour Line provides a comprehensive history and compelling new approach to the history of human rights law.

--Dan Ernst

Weekend Roundup

• Marci Hamilton and Michael McConnell discussed he Founders and religious liberty at the National Constitution Center (YouTube). 
  

• There's some useful history of the Administrative Procedure Act and judicial deference to the statutory interpretation of administrative agencies in an administrative law professors' brief in Loper Bright Enterprises v. Raimondo.  Among other things, it engages with Aditya Bamzai's The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017).

• 
  From In Custodia Legis: The Haudenosaunee Confederacy and the Constitution.

• A symposium on Christian G. Fritz’s Monitoring American Federalism: The History of State Legislative Resistance (2023) is up over at H-FedHist.  John Dinan introduces; Todd Estes, Bradley D. Hays and G. Alan Tarr review the book; and Professor Fritz responds.
  

• From NPR's Throughline podcast: "A Tale of Two Tribal Nations" -- on the legacies of allotment. 

• Robert L. Tsai, Boston University, has reviewed Cliff Sloan’s The Court at War: FDR, His Justices, and the World They Made in the Washington Monthly.  “Sloan has written an eminently readable book,” Professor Tsai writes, but “it is hard to escape the sense that The Court at War misses an opportunity to show us all the ways in which the imperative to go to war presented both opportunity and peril.” The Washington Post's review is here.  Sloan, a Professor from Practice at Georgetown Law, discusses his book with Malcolm Ferguson in the Washingtonian.
  

•  A recording of a program held on September 7 by the Historical Society of the New York Courts’ on its exhibit on the "Lemmon Slave Case" is here.
  

• Paul Lombardo, Georgia State University, on Buck v. Bell and eugenics in Virginia (VPM).
  

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

Inniss on Abortion Law as Protection Narrative

Lolita Buckner Inniss, University of Colorado Law School, has posted Abortion Law as Protection Narrative, which is forthcoming in the Oregon Law Review:

Memoirs of the Rev. Ammi Rogers (LC)

Is there value in exploring centuries-old legal historical accounts in the assessment of contemporary legal matters? If the decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is any example, the answer is decidedly yes. In Dobbs, the Court relied upon understandings about abortion and fundamental rights that dated back to the early United States. That reliance, however, fails to address the ways that abortion law narratives have consistently been structured: most such narratives center on the idea of protection, in one form or another. Dobbs also fails to acknowledge that the notion of protection is contingent and contested. This Article centers on a key protection narrative in the history of United States abortion law: the case of the Reverend Ammi Rogers, a popular but unconventional Yale-educated Episcopalian minister. In 1820 Rogers was accused of engaging in nonmarital sex with Asenath Smith, impregnating her, and providing her with an abortion. In telling the story of Rogers’ sensational case, this Article urges analyzing the case as a protection narrative: a story whose goal is to promote the erection of defenses against attack, invasion, or injury or other loss. This Article concludes by asserting that contemporary protection narratives surrounding abortion, such as those seen in the opinion of Dobbs v. Jackson Women’s Health Organization, are still as much a part of the modern legal (and political) landscape as those protection narratives that helped to give birth to the earliest codified abortion law in the United States.

--Dan Ernst

LHR 41:3

Law and History Review 41:3 (August 2023) has been published.  It is a special issue, “Paper Empires: Layers of Law in Colonial South Asia and the Indian Ocean,” with guest editors Nandini Chatterjee, Alicia Schrikker, and Dries Lyna. (Links are provided to the articles published open access.)

Paper Empires: Layers of Law in Colonial South Asia and the Indian Ocean
Nandini Chatterjee, Alicia Schrikker, Dries Lyna

An Empire in Disguise: The Appropriation of Pre-Existing Modes of Governance in Dutch South Asia, 1650–1800
Alicia Schrikker, Byapti Sur

Material Pluralism and Symbolic Violence: Palm Leaf Deeds and Paper Land Grants in Colonial Sri Lanka, 1680–1795
Dries Lyna, Luc Bulten

The Power of Parwanas: Indo-Persian Grants and the Making of Empire in Eighteenth-Century Southern India
Leonard R. Hodges, Nandini Chatterjee
   
Registering and Regulating Family Life: The School Thombos in Dutch Sri Lanka
Bente de Leede, Nadeera Rupesinghe

A New Language of Rule: Alwar's Administrative Experiment, c. 1838–58
Elizabeth M. Thelen

A True Copy? Documents and the Production of Legality in the Bombay Inam Commission
Dominic Vendell

Oceanic Mobility and the Empire of the Pass System
Bhavani Raman

The Sailing Scribes: Circulating Law in the Twentieth-Century Indian Ocean
Fahad Ahmad Bishara

Persistence of Practice in Law's Parwana and Palm Leaf Empire
Paul D. Halliday
   
–Dan Ernst

Maltz on the "Entire 14th Amendment"

Earl M. Maltz, Rutgers Law School, has posted The Entire Fourteenth Amendment:

Discussions of the legislative history of the Fourteenth Amendment have almost uniformly focused on the background of section one. However, the recent debate about the proper interpretation of section three has reminded us that section one was in fact only one part of a multi-faceted measure that was designed to outline the conditions under which the states that had been part of the Confederacy would be allowed to regain their status as equal members of the United States. This article is the first to provide a comprehensive overview of the legislative history of the entire Fourteenth Amendment, including both section one and section three, as well as sections two and four.

--Dan Ernst

Katz on Religion and Family Policing

Elizabeth D. Katz, University of Florida Levin College of Law, has posted Fostering Faith: Religion in the History of Family Policing, which is forthcoming in the Fordham Law Review:

Each year in the United States, approximately 700,000 children live in foster care. Many of these children are placed in religiously oriented homes recruited and overseen by faith-based agencies (FBAs). This arrangement—as well as the scope and operation of child welfare services more broadly—is at a crucial moment of reckoning. Scholars and advocates focused on children’s rights and family integrity maintain that the child welfare system, increasingly termed the “family policing system,” harms children, families, and communities through unnecessary and racist child removal that is partly motivated by perverse financial incentives. Some call for abolition. Meanwhile, in a largely separate conversation, discussants focused on clashes between religious liberty rights and antidiscrimination laws spar over the legality and appropriateness of FBA involvement in fostering children because FBAs may exclude or provide ill-fitting services to LGBTQ individuals and religious minorities.

This Article excavates the persistent involvement of religious organizations in child placements in United States history to provide crucial missing context and valuable lessons for ongoing reform efforts. People and groups motivated by religion have participated in housing poor, orphaned, and otherwise dependent children since the colonial period, gradually securing laws to ensure public funding for their private organizations and to safeguard control over coreligionist youth. Though these services have benefitted many children in the absence of satisfactory public alternatives, they have also inflamed interfaith controversies and left children from minority religious and racial groups with unequal and inadequate care. Criminal law innovations, including the enactment of child abuse laws and the creation of juvenile courts, reinforced religious organizations’ involvement. As the preferred methods for child placement evolved, faith-based providers campaigned in legislatures and the press to preserve their power and control, slowing reforms. This Article’s account supports calls for change by emphasizing how the modern system developed through ad hoc and contingent changes that routinely prioritized cost concerns, crime reduction, and religious groups’ interests over children’s wellbeing. 

--Dan Ernst

A Symposium on the Naturalization Act of 1790

[We noted with interest the following livestreamed Symposium on the Naturalization Act of 1790 at UC Davis.  DRE.]

The 1790 Naturalization Act, the first U.S. citizenship law, reserved the privilege of becoming an American to "Free White Person[s].” Join us for a discussion of its lasting impact on the United States and its people.  Friday, September 22, 2023, 12 – 3pm.  King Hall, Room 1301.  Lunch Provided.  Join the Livestream here.  Co-Sponsored by Aoki Center, UC Davis School of Law, Free People of Color - UC Davis Department of History.  Paper and Response Essays to be published in the William and Mary Law Review.

Moderator, Giselle Garcia, J.D. Aoki Center Legal Fellow  

Opening Remarks by Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, UC Davis School of Law.  "The 'Free White Persons' Clause of the Naturalization Act of 1790 as Super-Statute"

Bethany Berger, Wallace Stevens Professor of Law, University of Connecticut School of Law.  "Separate, Sovereign, and Subjugated?: Native Citizenship and the 1790 Trade and Intercourse Act"

Ming Hsu Chen, Harry & Lillian Hastings Research Chair; Faculty-Director, Center for Race, Immigration, Citizenship & Equality.  "The Road Not Taken: A Critical Juncture in Racial Preferences for Naturalized Citizenship"

Rose Cuison-Villiazor, Professor of Law and Chancellor's Social Justice Scholar; Director, Center for Immigration Law, Policy and Justice, Rutgers Law School. "Occupying Liminal Space: Remedying the Racial Exclusion of Interstitial Citizens"

Amanda Frost, John A. Ewald Jr. Research Professor of Law, University of Virginia School of Law. "Schizophrenic Citizenship"

Please contact Nina Bell at nbell@ucdavis.edu with any questions.

Columbia Law School Legal History Workshop 2023-24

From our colleagues at Columbia Law School, we have the lineup for their Legal History Workshop:

Sept. 27

Kate Redburn: The Equal Right to Discriminate: Religious Liberty, Free Speech, and the Long Road to 303 Creative v. Elenis

Commentator: Kim Phillips-Fein

Oct. 25

Melissa Teixeira: Inflation and Economic Citizenship in Brazil: An Economic History of Democratic Transition in the 1970s and 1980s

Commentator: Lev Menand

Nov. 29

Youssef ben Ismail: On Autonomy: Provincial Representation and Imperial Governance in the late Ottoman Empire

Commentator: Greg Mann

Feb. 28

Kevin Arlyck: The Nation at Sea: Federal Courts and American Sovereignty in the Age of Revolution

Commentator: Kellen Funk

Mar. 6

Gautham Rao: Title TBA

Commentator: Sarah Seo

Apr. 3

Tamika K. Nunley: "Its Mother Had a Hard Lot": Black Women, Reproduction, and Early Medical Jurisprudence

Commentator: TBA

All workshops will be held on Wednesdays, 4:20-6pm, at Fayerweather 411.

-- Karen Tani

CFP: Legacies of the Roman Republic: Law, Text, and Spaces

[W e have the following CFP.  DRE.]

Call for papers: “Legacies of the Roman Republic: Law, text, and Spaces” conference, 18-19 January 2024, Helsinki.

Administrative professionalization has conventionally been the hallmark of a modern state. The conceptual separation of the office and its holder has long defined the European way of governance. The origin of this European tradition of the separation of public and private has often been seen in the Roman Republican political organization with its strict responsibilities, term limits and defined powers of its magistracies who operated in public spaces. Nonetheless, this view has been challenged by the recent research on the Roman Republic and its legacy. The conference aims to build a new interpretation of the Roman Republican governance: a comprehensive re-evaluation of the ancient Roman administrative tradition and its links with the European heritage through the lens of Republican and administrative space. The conference seeks to investigate this neglected issue through the spatial analysis of power relations and meanings. The significance of these issues extends much beyond this: the development of administrative space in the European context amounts to nothing less than the emergence of the concept of public.

The conference advances the idea of republicanism through changes that are addressed via developments in the political, economic and social context from the Roman Republic to the Empire and beyond. While much of the earlier research on Republican administration has been constitutional, focused on authority or the individual magistrates, the conference encourages a new interpretation through spatial and topographical analysis, using unconventional methodological tools to explore the social and cultural dimensions of legal and administrative space. At the center is the confrontation of ideas and their contexts from the Roman Republic to modern republicanism, building on the questions: How did the conflict between Republican ideals, political power, and administrative practices transform the spaces of administration? How did this conflict change the social topography of Rome and other cities and the public and private spheres of governance? How did Rome become the model for the Western administrative state?

Themes (suggested, but not limited to):
•    The idea of Republican space
•    Administration and space in practice
•    Republican, democratic, and authoritarian architecture?
•    Distinction of public and private in administration and the everyday
•    Development of institutional space from the Roman Republic to the modern era
•    New methodologies to study Republican administrative space
•    Gender, intersectionality and public space
•    Archaeology and topography of the Roman Republic and magistrates

Keynote speakers: Valentina Arena, Dunia Filippi, Greg Woolf and Aldo Schiavone.

The conference is organized by the ERC-funded project Law, Governance and Space: Questioning the Foundations of the Republican Tradition (SpaceLaw), based at the University of Helsinki. There is no conference fee. The organizers are unfortunately unable to aid in either travel or accommodation arrangements or the cost of travel or accommodation.

Abstracts should be 300 words maximum, for 20-minute papers to be delivered in English.  Abstracts should be sent to lawgovernanceandspace@gmail.com. The extended deadline for abstracts is 1 October 2023.  Questions may be sent to samuli.simelius@helsinki.fi.

Platt on Baldwin Bane and the Securities Act of 1933

We were just thinking to ourselves that someone should study Baldwin Bane.  It turns out, Alexander I. Platt, University of Kansas School of Law, has and has posted the result as The Administrative Origins of Mandatory Disclosure, which is forthcoming in the Journal of Corporation Law:

The birth of mandatory corporate disclosure is one of the defining narratives of the modern regulatory state. The brightest legal minds of their generation were called down from the ivory tower to help FDR rein in the excesses of Wall Street. Inspired by their intellectual mentor Louis Brandeis, they overcame fierce resistance from the securities industry (who opposed any regulation) as well as from the corporatist wing of New Deal reformers (who favored a broader economic planning role for the government) to craft a legislative solution that was so well-conceived that it has remained in place essentially unchanged for nearly a century – the Securities Act of 1933.

Except this foundational narrative turns out to be more of an origin MYTH. Drawing on archival sources, oral histories, and other primary documents, this paper presents a revisionist history of the origins of mandatory disclosure that looks past the abstractions of statutory text to the realities of administration. I show that the real mandatory disclosure regime implemented in the 1930s was not the Brandeisian statutory system crafted by legal luminaries, but was an entirely different, more corporatist regime invented by an obscure mid-level official in defiance of those legislative directives.

This paper excavates the lost history of mandatory disclosure. It is a story of how creative and resourceful administration by an ordinary mid-level official transformed – and likely redeemed – one of the foundational regulatory programs of the modern administrative state. But it is also a story of legislative failure by iconic lawyer intellectuals and their favored model of economic regulation.

--Dan Ernst

RFP: ASLH Projects and Proposals

[We have previously posted the following announcement from the Projects and Proposals Committee of the American Society of Legal History but are moving it up because the deadline has been extended to September 23.  DRE.]

The Projects and Proposals Committee of the American Society for Legal History invites proposals for the funding of new initiatives in the study, presentation, and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented new voices into our field, to promote novel forms of scholarly interchange, to support pedagogical experiments in legal history, and to seed new forms and venues for public history.

We welcome a broad range of proposals. We will consider providing support for conferences (including the costs of bringing together participants who could not otherwise afford to attend), scholarly publications, museum exhibits, pedagogical experiments, or any number of other collective pursuits. We encourage projects that seek to internationalize legal history by widening the study of legal history or by bringing a global array of scholars and students of legal history into conversation with one another. We also invite projects that promise to bring a younger generation of scholars and students into the field.

Most of the grants we have awarded have been less than $5000. Ordinarily, we would expect that projects would have other institutional collaborators and/or cosponsors (including home universities). Proposals may come from educational institutions or from informal groups or networks of individuals. In most cases, someone involved in the proposal will be a member of the Society, and we especially encourage proposals from members pursuing new endeavors or outreach in the field. Please note that we are not a funding source for ongoing and recurrent activities of the field or of the Society and will not recommend for funding projects that have already been funded at the recommendation of the committee three times. We do not support individual research projects.

Funds are usually expended in the calendar year following the award. However, in the event that a planned project must be postponed due to COVID-19 restrictions (or other unavoidable circumstances), allocated funds may be held over for future use for a reasonable period with approval of the Projects and Proposals Committee and in consultation with the ASLH Treasurer.

The deadline for receiving applications is [September 23, 2023]. The committee will then review the proposals and recommend a list to the Board of Directors of the Society in preparation for its meeting in November 2023.

The application form is available here.

Please direct any questions, as well as completed application forms, to Allison Tirres, Chair, at proposals@aslh.net. 

Committee members after the jump.

University of Pennsylvania Legal History Workshop Schedule

I am delighted to announce the schedule for the Legal History Workshop at my home institution, the University of Pennsylvania. (We have kept the fall schedule fairly light because of our hosting duties for this year's meeting of the American Society for Legal History. We are honored to be hosting the plenary address and reception on October 27.) 

October 5, 2023: Aziza Ahmed (Boston University School of Law), "'We Are Not Immune': How Feminists Transformed the Law and Science of AIDS"

November 9, 2023: Aaron Hall (University of Minnesota), "U.S. Constitutionalism Before 'the Founding,' 1789-1818"

January 25, 2024: Yanay Israeli (University of Michigan)

February 29, 2024, Danielle Boaz (University of North Carolina, Charlotte)

March 21, 2024: Rabia Belt (Stanford Law School)

April 18, 2024: Hardeep Dhillon (University of Pennsylvania)

May 2, 2024: Fahad Bishara (University of Virginia) 

If you convene a legal history workshop series and would like us to post your schedule, please reach out!

-- Karen Tani

Weekend Roundup

• “At UC Law SF this year, [UCLA History Professor Benjamin Madley] he will embark on a new research project, with Indigenous Law Center Faculty Director Jo Carrillo, to explore the laws, executive actions and court rulings that affect Native Americans in California” (UC Law SF).

• "The Division of the Humanities and Social Sciences at the California Institute of Technology invites applications for a two-year Postdoctoral Instructor appointment in medieval history, with a particular interest in the history of law and legal practices, documentary culture, power, or violence, in the broader Mediterranean (including Islamic and Byzantine) and North Atlantic/Scandinavian worlds as well as in Europe, which will begin Fall 2024." More information here.
  

• The latest catalog of Lawbook Exchange includes some interesting manuscripts.
  

• The American Political History Conference has posted a call for panel and paper submissions. The 2024 meeting will be June 6-8 at Vanderbilt University, on the theme "Reconstructing Democracy: Power, Politics, and Participation." Submissions are due December 31, 2023.
  

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

Parisot on Capitalism and the US Constitution

James Parisot an affiliate faculty member in Sociology at Drexel University, has published Capitalism and the Creation of the U.S. Constitution open access in Studies in American Political Development 37:2 (October 2023):

This article engages with scholars working on the history of capitalism and with scholars of American political development to form a historical materialist perspective on the creation of the American federal government. First, it returns to the debate about the state in capitalist society to develop an approach for theorizing the relations between class, capitalism, and states. Next, it addresses the position of American capitalism in the 1780s, arguing that it was still in a long transition phase. After this, it reinterprets the Constitutional Convention of 1787 in the context of the long and uneven history of American capitalist development. I argue that the U.S. Constitution created the foundations of a state that would serve capitalist interests, including capitalist slave owners, but, at the same time, provided some space for social relations of production not yet fully subordinated to the power of capitalism to coexist.

--Dan Ernst

Bruhl on Law, Equity and Appellate Procedure

Aaron-Andrew P. Bruhl, William & Mary Law School, has posted Equity on Appeal:

It is generally understood that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity and that they did so by adopting the equity practices at almost every turn. This paper traces the origins of federal appellate procedure, where there is also a story of merger, indeed an interesting and more complex one. Just as we used to have separate systems of trial-level procedure for common law (typified by juries and damages) and equity (the chancellor, depositions, and injunctions), we used to have two separate systems for appellate review. At common law, a reviewing court examined the record for errors of law using the procedural vehicle of the writ of error after the final trial judgment. In the equity tradition, by contrast, an appeal was a rehearing of the law and the facts aimed at achieving justice, and the appeal did not need to await a final judgment. Unlike the story with federal trial procedure, where we can identify a date of merger (1938, with the Federal Rules) and a winning side (equity as conqueror), the federal appellate procedure of today merged fitfully over the course of two centuries and left us with a blended system that incorporates important aspects of both of the old traditions.

In addition to revealing some of the complicated roots and hybrid character of current federal appellate practice, the paper has a second goal, namely to show that an appreciation of the history can explain some current pressures in the system and can suggest some modest reforms. Some odd things are happening in the world of appellate courts (e.g., “universal” injunctions and objections thereto, the shadow docket, disregard of the deferential clear-error standard in high-profile cases). Some of these phenomena can profitably be understood as suppressed features of equity practice reasserting themselves. And the federal courts could benefit from the reemergence of some lost practices from the distinctive equity appeal. To be very clear, I do not urge that we somehow transplant the bifurcated appellate procedure of the past into our modern federal court system. Many old distinctions have been abolished for good reason. Neither should we resurrect equity practice in full. Nonetheless, there are some circumstances in which the equitable model of appeal — review of the facts, reweighing of the equities, tolerance of interlocutory appeals, an orientation toward concluding a matter with full justice — still makes sense today. That is, there are good functional reasons for non-antiquarians to appreciate aspects of the equitable model of appeal. In sum, this paper aims to bring the revival of interest in equity, now the subject of a lively scholarly literature, to the law of appeals. 

--Dan Ernst

CFP: Objects of Law in the Medieval and Early Modern Worlds

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

Objects of Law in the Medieval and Early Modern Worlds.  Universität Bern, Institut für Kunstgeschichte, Aug 29–30, 2024.  Deadline: Nov 1, 2023.  Corinne Mühlemann und Fatima Quraishi

Materials and texts function in a variety of ways in legal contexts, they forge diplomatic ties, grant gifts of land, levy taxes, regulate markets, etc. In the medieval and early modern worlds, these objects took on many different guises. Some were highly ornate objects, such as Fatimid marriage contracts where text was embroidered on woven silk, or tablets of authority produced in gold, silver or wood which allowed travelers to cross the Mongol Empire without difficulty, or wax seals imprinted with imperial images protected in textile bags. Other objects facilitated the execution of law in everyday life; glass weights, stamps for marking loaves of bread, length standards embedded in architecture, volume standards. The connection between the materiality of these artefacts and the law are multiple, their very nature conveyed information, performed authority, and communicated authenticity.

Although legal objects fall between disciplinary categories, their texts have been the main subject of scholarship. The conference, Objects of Law, proposes thinking more deeply about the artistic practices that shaped the materiality, iconography, and texts of legal objects in the medieval and early modern period. What forms did these objects take? How did their form confer authenticity and legal authority? What training or knowledge are evident in the objects? Objects of Law seeks dialogue between scholars working in art history, history, archaeology, legal history, and related disciplines that deal with legal objects. We welcome contributions from all geographical regions that relate to the medieval and early modern period. We invite contributions that address, but are not limited to, the following topics:

- The role of objects in legal practices
- The aesthetics of objects of law
- The artistic practices of crafting legal objects

Proposals should consist of an abstract in English for 30-minute papers (max 2000 characters incl. spaces) and a brief biography (max 1500 characters incl. spaces) in a single document (pdf or word). They should be submitted to: Corinne Mühlemann (corinne.muehlemann@unibe.ch) and Fatima Quraishi (fatimaq@ucr.edu) by November 1, 2023. Graduate students are highly encouraged to apply. Conference participants will be provided with accommodation in Bern for 3 nights and some travel expenses will be covered.

NYU Legal History Colloquium Fall Schedule

The fall schedule for the New York University School of Law Legal History Colloquium, co-convened by David Golove, Daniel Hulsebosch, and Noah Rosenblum, is now available:

September 13

Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

"The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation" 

September 27

Joshua Getzler, Professor of Law and Legal History, St. Hugh’s College, University of Oxford; Global Professor of Law, NYU School of Law

"Equity, banking, and the seeds of crisis: Foley v Hill (1838-48)" 

October 11

Brittany Farr, Assistant Professor of Law, NYU School of Law

"The Other Walker-Thomas: Reading Race in Contracts" 

October 25

Shaun Ossei-Owusu, Presidential Professor of Law, University of Pennsylvania Carey Law School

"Social Engineers on a Grand Scale?: Federally-Funded Legal Aid and the Civil Rights Movement" 

November 8

Noam Maggor, Senior Lecturer, Queen Mary University of London; Visiting Fellow, Sciences Po Law School

"Law and Development: Railroad Regulation as American Industrial Policy" 

November 22

Rachel Shelden, Director of the Richards Civil War Era Center; Associate Professor of History, Penn State University

"Justices, Politics, and the Union in Crisis" 

November 29

Laura Savarese, Samuel I. Golieb Fellow in Legal History, NYU School of Law

More information is available here.

If you convene a legal history workshop or lecture series, please send us your lineup! We would be happy to share it with our readers.

 -- Karen Tani

Tillman and Blackman on Section 3 of the 14th Amendment

Seth Barrett Tillman, National University of Ireland, Maynooth Faculty of Law, and Josh Blackman, South Texas College of Law Houston, have posted Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen:

Does the full “sweep and force” of Section 3 of the Fourteenth Amendment disqualify Donald Trump from the presidency? In a new article, William Baude and Michael Stokes Paulsen argue that the answer is yes because “essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . .” This sweeping conclusion is not accurate. Establishing the original public meaning of Section 3 is difficult because there is originalist and textualist evidence pointing in different directions. Our research is built on more than a decade of scholarship in areas that are, regrettably, neglected in modern courts and scholarship, but would have been well understood in the 1860s.

Our Article proceeds in five parts. Part I begins with a threshold question: Is Section 3 of the Fourteenth Amendment self-executing? Baude and Paulsen say the answer is yes, pointing to other provisions of the Constitution as models. Yet, the answer is not so clear. Constitutional provisions are not automatically self-executing, nor is there any presumption of self-execution for such provisions. We will illustrate our position with discussions of the Supreme Court’s appellate jurisdiction, Article I qualifications, and more. Section 1 of the Fourteenth Amendment, which includes the Due Process and Equal Protection Clauses, can only be wielded as a sword supporting affirmative relief with federal enforcement legislation, such as Section 1983. But, even absent enforcement legislation, Section 1 of the Fourteenth Amendment can be wielded as a shield as a set of defenses. Section 1 is self-executing in the latter regard, but not the former. If Section 1 is a guide, then Section 3 cannot be used as a sword to disqualify Trump, absent federal enforcement legislation. Trump has not been disqualified pursuant to any federal enforcement legislation. If Section 3 requires federal enforcement legislation, then States cannot unilaterally remove Trump from the ballot.

Part II provides a careful study of Griffin’s Case, a federal circuit court case decided by Chief Justice Salmon P. Chase in 1869. Chase stated expressly that Section 3 can only be enforced by Congress through federal legislation. Yet, Baude and Paulsen tar-and-feather Griffin’s Case, and their article reads like an effort to discredit Chase. But their criticisms miss the mark. They fault Chase for not adhering to doctrines developed decades later, and they condemn Chase for breaching invented ethical standards. All things considered, Griffin’s Case lies in the heartland of judicial thinking and scholarship. Baude and Paulsen misread Griffin’s Case, misunderstood Chase, and misconstrued the holding. Chase’s opinion was, and remains, reasonably probative evidence of the original public meaning of Section 3, and whether it is or is not self-executing.

Part III turns to another case that Chief Justice Chase presided over. This case also implicated Section 3: the treason indictment against Jefferson Davis. A version of the case, reported nearly a decade after it was decided, includes a sentence which suggests that Chase viewed Section 3 as self-executing. If so, the Case of Jefferson Davis (1868) would seem to be in tension with Griffin’s Case (1869). However, this sentence was added to the report by a former confederate general who had apparently plotted to kidnap Abraham Lincoln. Plus, the general was subsequently the lawyer for the respondent, another former confederate, in Griffin’s Case. The reporter’s connection to the self-execution issue is some cause for concern. A contemporaneous report, published in 1869, does not include that sentence. Even taken on these terms, the two Chase opinions can be reconciled. Griffin was an applicant in a collateral challenge; he sought to use Section 3 as a sword, that is, offensively as a cause of action supporting affirmative relief, but he could not do so without enforcement legislation. By contrast, Davis sought to use Section 3 as a shield–as a defense in his criminal prosecution, and he could do so without enforcement legislation. Even under modern doctrine, Griffin’s Case is not in tension with the Case of Jefferson Davis.

Part IV focuses on the conduct that can trigger a disqualification. The offense element of Section 3 has two prongs: (i) engaging in insurrection or rebellion against the United States, and (ii) giving aid or comfort to the enemies thereof. These elements are textually distinct, and they reflect longstanding aspects of domestic and international law. Yet, Baude and Paulsen conflate “engaged” in insurrection, a direct and substantive criminal law offense, with giving “aid or comfort” to enemies, which permits liability based on indirect and inchoate wrongs. And in the process, they constructed a new offense that does not appear in the text of Section 3: giving aid or comfort to insurrection. The text of Section 3’s “engage” prong does not extend to wrongs and crimes that are inchoate or indirect. Nor does the “engage” prong extend to inaction—for example, failing to take action with regard to an insurrection or rebellion.

Part V considers another threshold question: was Trump ever subject to Section 3? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office on January 20, 2017. Section 3 of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an “Officer[] of the United States.” In 2021 we published an article concluding “that the President is not a Section 3 ‘officer of the United States.’” In their article, Baude and Paulsen summarily dismiss our position. But Baude and Paulsen disregard substantial evidence about the meaning of the phrase “Officers of the United States” in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic. Instead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism. These sorts of arguments are weak evidence of original public meaning and do not pass originalist muster. More importantly, Baude and Paulsen offer no complete or comprehensive theory to explain what other positions are included and excluded by the phrase “Officer of the United States.” Without ever explaining what Section 3’s “officer of the United States”-language means, they only seek to establish that the President falls in that category. In short, Baude and Paulsen punched a textualist ticket good for one ride on the Trump train.

The theoretical defects and other errors in Baude and Paulsen’s article are not insubstantial, and they span multiple independent issues. And we see no sound basis for their article’s startling conclusion: “In the end, essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . .” We suggest that scholars, litigants, elections administrators, and judges allow Baude and Paulsen’s article to percolate in the literature before placing too great a reliance on its novel claims.

--Dan Ernst

Frampton on the First Black Jurors

Thomas Frampton, University of Virginia School of Law, has posted The First Black Jurors and the Integration of the American Jury, which is forthcoming in the New York University Law Review:

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

--Dan Ernst

Call for Applications: George E. Pozzetta Dissertation Award

The Immigration and Ethnic History Society has posted a call for applications for the George E. Pozzetta Dissertation Award:

The IEHS presents two awards of $1,000 each to help graduate students with their dissertations on U.S. immigration, emigration, or ethnic history, broadly defined. These awards are intended for graduate students in the process of researching and writing their dissertations, and not for students completing and defending in 2024. For the 2024 award, the committee invites applications from any Ph.D. candidate who will have completed qualifying exams by 2023.

Applicants will submit the following materials to pozzetta_award@iehs.org, which will reach all committee members:

1. A 1500-word descriptive proposal in English discussing the significance of the work, the methodology, sources, and collections to be consulted.
2. A proposed budget.
3. A brief curriculum vitae.

In addition, applicants will arrange for their major advisor to submit a supporting letter to pozzetta_award@iehs.org

Application materials and the supporting letter must be received by the submission deadline: December 31, 2023.

More information is available here. 

-- Karen Tani

Daniel on How Railroad Lawyers Coopted the Carmack Amendment

Josiah M. Daniel III, Visiting Scholar, Department of History, The University of Texas at Austin, and a Retired Partner in Residence, Vinson & Elkins LLP, has posted Cooptation of the Carmack Amendment by the Railroads, 1906-1917: A Study in Associational Lawyering.  (Although a version appears in volume 50 of the Northern Kentucky Law Review, Mr. Daniel considers this posting to SSRN as the final version.)

Edward W. Carmack (LC)

The Carmack Amendment to the Interstate Commerce Act has governed interstate freight loss and damage claims since enactment in 1906 as a rider to the Hepburn Rate Bill. The conventional wisdom is that the Carmack Amendment is the exclusive claim a shipper may make, preempting all state-law rights and remedies. That view is reinforced by nearly two score of decisions that poured from the U.S. Supreme Court during the years from the statute’s enactment to World War I.

This article challenges the conventional wisdom. The author makes two claims. First, the purpose of the Carmack Amendment was not to benefit the common carriers but rather the shippers, by providing a simple, nonexclusive, federal cause of action against interstate railroads for cargo loss and damage. Second, the carriers co-opted that intention by means of associational lawyering from 1906 to 1917.

For the backdrop, the article reviews the realities of shippers’ loss-and-damage claims immediately before enactment of the Carmack Amendment. The railroads routinely snubbed such claims and avoided such liabilities by the contractual terms of their bills of lading and by their claims practices. Against that backdrop, the article presents, for the first time, a deep legislative history of the Carmack Amendment and demonstrates its shipper-centric purpose. The author defines "deep legislative history" as conventional legislative history coupled with serious research into the archive of the key legislator, here Senator Edward W. Carmack, and the shippers’ organization that proposed the legislation to him.

The author also coins a new collocation "associational lawyering" as “the deliberate work of the railroads,’ or any other industries,' attorneys who meet, discuss, formulate, share, and coordinate about legal strategy and appellate argumentation in order to seek on behalf of their collective clients to co-opt the Carmack Amendment, or any other legal development perceived as a threat to the industry.” The author finds and demonstrates the associational lawyering for the railroads that co-opted the Carmack Amendment. Leading railroads conducted periodic conferences of their important lawyers to analyze the statute, craft arguments against it or to limit it, and coordinate appellate strategy to obtain the avalanche of rulings of the Supreme Court, thirty-nine in all, substantially all in favor of the carriers, that the author charts in the appendix. The shippers’ lawyers were simply uncoordinated and overmatched.

Associational lawyering is the causal explanation of the cooptation of the Carmack Amendment by the railroads that occurred from 1906 to 1917.

Vorenberg on AI in the Legal History Seminar

We note a report of Michael Vorenberg's very interesting thoughts on an issue many of us are coming to grips, the use of Artificial Intelligence by students in our legal history seminars.  The following is from Sophia Barnett's story in today's Brown Daily Herald:

On the first day of his weekly seminar, “HIST 1972A: American Legal History, 1760-1920,” Vorenberg spoke candidly with his students about general attitudes regarding AI in education and the opportunities for exploration these developments afford.

“Most of what educators are hearing about are the negative sides of generative AI programs,” Vorenberg wrote in a message to The Herald. “I am also interested in how generative AI might be used as a teaching tool.”

Vorenberg outlined two broad potential uses for AI in his class: The examination of sources generated by ChatGPT — allowing students to probe into the “appropriateness” of the retrieved documents from a historian’s perspective — and the intentional criticism of said generated sources, understanding how a historian’s perspective could have produced a stronger source.

“The underlying assumption behind the exercise is that even a moderately skilled historian can do better at this sort of task than a generative AI program,” Vorenberg explained. “Until (this) situation changes, we who teach history have an opportunity to use generative AI to give concrete examples of the ways that well-trained human historians can do history better than AI historians.”

--Dan Ernst

Havasy on 19th-Century European Thought on Administrative Law

Christopher Havasy, Penn State Dickinson Law, has posted Radical Administrative Law, which is forthcoming in the Vanderbilt Law Review:

The administrative state is under attack as judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that they have a point to scrutinize the massive powers that agencies hold over citizens. However, their solution to augment the powers of Congress or the President over agencies to instill indirect democratic accountability is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates 19th-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify agency powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of 19th-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative “radicals,” presented a much more radical conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals had a much bolder proposal – democratizing the administrative state so the citizenry could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state.

The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation-of-powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates the concerns that give rise to reviving the nondelegation doctrine, eliminating removal protections, and expanding the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role to police the substance of agency decisions. 

--Dan Ernst

Harry Scheiber and the Law of the Sea

The legal historian Harry Scheiber has never been just a legal historian; he was also been a scholar of the Law of the Sea.  On September 13-14, 2023, the Law of the Sea Institute at Berkeley Law is hosting a Zoom-accessible conference in his honor:

The conference is being held to honor the lifetime achievements of Professor Harry N. Scheiber, a renowned scholar of the law of the sea, in his retirement. Professor Scheiber has been a pioneer in the field of ocean law, and his work has had a profound impact on the development of international law. It will bring together leading experts from the Law of the Sea Institute (LOSI) community and the broader ocean law, policy, and scientific communities to discuss the future of the law of the sea.

Day 1 of the conference will be held from 8:30 a.m. - 5:00 p.m., with a reception dinner from 7:00 - 9:00 p.m. Pacific on Wednesday, the 13th. Day 2 will be held from 9:00 a.m. - 2:00 p.m. on Thursday, the 14th. The conference program will be sent out soon to those interested in attending, and a Zoom schedule will be sent to those who express interest in the webinar. 

--Dan Ernst.  H/t SBG

Weekend Roundup

• 

  Edward Garrison Draper (Dartmouth College)
  

  “The Supreme Court of Maryland will hold a Special Session on October 26, 2023 for the posthumous bar admission of Edward Garrison Draper, the earliest known individual found fully qualified to practice law in Maryland, but who was denied the privilege of doing so based on his race.”  The Court is acting when, at its invitation, “Hon. John G. Browning, retired Justice of Texas’ Fifth Court of Appeals, Maryland attorney Domonique A. Flowers, and University of Baltimore School of Law Professor José F. Anderson filed a petition for Mr. Draper’s posthumous admission.”  Judge Browning had previously published “To Fight the Battle, First You Need Warriors: Edward Garrison Draper, Everett Waring, and the Quest for Maryland's First Black Lawyer” in the University of Baltimore Law Forum.  More here and in Bloomberg Law. 
  

• Martin J. Siegel, formerly a law clerk to Irving Robert Kaufman, will speak on his book, Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs at the University of Akron’s Center for Constitutional Law, directed by Tracy Thomas, on September 12 at noon in Room 180 at the Center.  Registration is not  required and the lecture is free and open to the public.  (Akron Legal News)
  

• On Thursday, September 14th, 2023, at 3 p.m. EDT, the Law Library of Congress will host its Constitution Day event, a discussion by University at Buffalo School of Law Professor Samantha Barbas of her book Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan.  Register here.

• "In the latest edition of the [University of Pennsylvania’s] 60-Second Lectures series, Sarah Barringer Gordon, the Arlin M. Adams Professor of Constitutional Law and Professor of History, discusses whether the U.S. Constitution is too old." Monday, September 18, 2023, 11:50 a.m., Benjamin Franklin Statue.
  

• Jack Goldsmith, HLS, interviews Samuel Moyn, YLS, on Moyn's Liberalism against Itself (Lawfare).
  

• On Wednesday, September 13, at 2 pm ET, at the FDR Library and Museum, Education Specialist Jeffrey Urbin will lecture on The Power of Employment: Jobs in the Roosevelt Administration.
  

• Five Ohio universities will receive “state funding for the creation of a civics center specifically focused on American constitutional history” (Miami Student).
  

•  The Law & Society Association has issued its Call for Submissions for its 2024 Annual Meeting to be held at the Hyatt Regency Denver at the Colorado Convention Center, June 6-9.  The theme is "Unsettling Territories: Tradition and Revolution in Law and Society."  The deadline for submissions is October 24, 2023.

• The July/August 2023 issue of the Archival Outlook (published by the Society of American Archivists) includes "three cases studies on Japanese American incarceree records from World War II."
  

• ICYMI: Alabama Cherishes Its History of Defying the Federal Courts (NYT).  US has a long history of state lawmakers silencing elected Black officials (Times-Union). 
  

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

Reiss Insitute Seminar of the Second Amendment

[We have the following announcement.  DRE]

The New-York Historical Society’s Bonnie and Richard Reiss Graduate Institute for Constitutional History is pleased to announce its fall 2023 seminar for advanced graduate students and junior faculty, "The Contested Meaning of the Second Amendment."  It will be presented in person at the New-York Historical Society and via Zoom on Fridays, November 17, December 1, 8, and 15, 2023, from 2–5 pm ET.  The instructors are Saul Cornell and Jennifer Tucker.

Few issues in American law are as deeply contested as the meaning of the Second Amendment and the scope of permissible gun regulation. Contemporary Second Amendment jurisprudence is distinctive in its focus on using history to shape contemporary legal interpretation. The Supreme Court’s recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen, for example, means that gun-control laws of today must demonstrate a clear historical pedigree or genealogy to pass constitutional muster. Weapons regulations without such a historical foundation are likely to be struck down regardless of the modern public-safety rationale behind them. This seminar will explore the contested history of the meaning of the Second Amendment by exploring a variety of historical, legal, and cultural sources. Although once a neglected field of historical inquiry, Second Amendment scholarship has been transformed by the rise of originalism and the Supreme Court’s embrace of this controversial but indisputably ascendant theory of constitutional interpretation. How do historians and originalists understand the constitutional past? What sources and interpretive tools do scholars employ to make sense of the historical record? How do we address the many silences in the record? This seminar will explore these questions and others as we make sense of the meaning of the right to keep and bear arms.
    
Apply by October 11, 2023.  More.

Rohde and Parra-Herraea on Contingency and Autonomy in 20th-Century Legal Historiography

Dan Rohde and Nicolas Parra-Herrera, SJD candidates at the Harvard Law School, have posted Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography, which is to appear in the Journal of Law and Political Economy:

This article addresses the power of law to make historical change. We begin by charting a rich debate on law’s autonomy held over the course of the twentieth century, overviewing contributions by Classical Legal Thought, Law and Society, Marxism, the New Left, Critical Legal History, and what we term the “Millennial Consensus.” We then sketch an alternative view that we feel is implicit in much legal history, where the law is seen as an “architecture”—a set of tools with which we build our society. On this view, law’s autonomy lies in the way that it facilitates specific forms of societal ordering at the expense of others. We emphasize that it also has an existential dimension in that we can never foresee all the future uses particular legal institutions may be put to. 

--Dan Ernst

Essays on Nationality, Law and Belonging in Australia and New Zealand

We have word of the publication of Subjects and Aliens: Histories of Nationality, Law and Belonging in Australia and New Zealand, edited by Kate Bagnall and Peter Prince  (ANU Press 2023):

Subjects and Aliens confronts the problematic history of belonging in Australia and New Zealand. In both countries, race has often been more important than the law in determining who is considered ‘one of us’.

Each chapter in the collection highlights the lived experiences of people who negotiated laws and policies relating to nationality and citizenship rights in twentieth-century Australasia, including Chinese Australians enlisting during the First World War, Dalmatian gum-diggers turned farmers in New Zealand, Indians in 1920s Australia arguing for their citizenship rights, and Australian women who lost their nationality after marrying non-British subjects.

The book also considers how the legal belonging—and accompanying rights and protections—of First Nations people has been denied, despite the High Court of Australia’s recent assertion (in the landmark Love & Thoms case of 2020) that Aboriginal people have never been considered ‘aliens’ or ‘foreigners’ since 1788. The experiences of world-famous artist Albert Namatjira, and of those made to apply for ‘certificates of citizenship’ under Western Australian law, suggest otherwise.

Subjects and Aliens demonstrates how people who legally belonged were denied rights and protections as citizens through the actions of those who created, administered and interpreted the law across the twentieth century, and how the legal ramifications of those actions can still be felt today.

TOC after the jump.

–Dan Ernst

Joshi, "Weaponizing Peace"

We missed this one when it was posted back in June: Yuvraj Joshi (Brooklyn Law School), "Weaponizing Peace," Columbia Law Review, Vol. 123 (2023). The abstract:

American racial justice opponents regularly wield a desire for peace, stability, and harmony as a weapon to hinder movement toward racial equality. This Essay examines the weaponization of peace historically and in legal cases about property, education, protest, and public utilities. Such peace claims were often made in bad faith and with little or no evidence, and the discord they claimed to address was actually the result of hostility to racial equality. For a time, the Supreme Court rejected dominant peace claims for precisely these reasons. This Essay further documents the weaponization of peace in current attempts to restrict Black Lives Matter protests, denigrate calls for police defunding, outlaw critical race theory, and dismantle affirmative action. By linking these historical and contemporary arguments, this Essay finds that dominant logics of peace mask the injustice, frustration, and despair felt by subordinated groups. The Essay urges closer scrutiny of appeals to peace that primarily function to stifle the pursuit of racial justice and to maintain status quo inequality. 

The full article is available here.

-- Karen Tani

Frazier on Requiring Study of US "Foundings"

Kevin Frazier, St. Thomas University School of Law, has posted The Next Required Law School Course: History of America’s Foundings, which is forthcoming in the St. Mary's Law Journal:

Columbia, the 14th Amendment & Andrew Johnson, 1866 (LC)

The Supreme Court has cited the Federalist Papers hundreds of times to analyze the meaning of the Constitution. The Anti-Federalist Papers, on the other hand, receive few citations in the Court’s opinions. The prevalence of Federalist Paper citations and the dearth of Anti-Federalist references necessitate a similar response from law schools everywhere: a required history class that covers the Founding Era, among other periods. The Court’s citations to the Federalist Papers alone evidence the importance of this era to constitutional law. The prominent role of amicus briefs from historians confirms that importance. But law schools must do more than teach what the advocates for ratifying the Constitution believed it meant. They must also provide students with the tools of historical analysis needed to develop a nuanced understanding of what made the Constitution so revolutionary and how its ratification process revealed important hopes and fears.

Law schools should also make the Reconstruction Era a part of that required course. Coined The Second Founding by Eric Foner and others, this era transformed the Constitution through the Thirteenth, Fourteenth, and Fifteenth Amendments and witnessed fundamental changes in the general understanding of “We, the People.” This era’s Congress has been called “the Congress of the Revolution” for its work on civil rights. Supreme Court opinions have hinged on channeling the spirit of these “Reconstruction Amendments” and their accompanying legislation.

Similarly, many justices have leaned on the spirit and text of these transformational amendments to ensure their core is preserved. For example, in Maine v. Thiboutot, the Court held that laws from the Reconstruction Era “‘must be given the meaning and sweep’ dictated by ‘their origins and their language’—not their language alone.” It is those “origins” that are unacceptably absent from legal pedagogy. Students must also learn how to analyze and respond to legal arguments grounded in historical analysis. Though students necessarily master a narrow type of historical inquiry, identifying and evaluating precedent, too few students learn how to spot and challenge historically-oriented adjudication that activist judges have used to break from precedent. Fearful of being called out for “law-office history,” courts avoid attempting to ground their decisions in superficial historical analysis. This Article makes a case for the American Bar Association requiring law students to complete a history class on the nation’s two “Foundings.” 

--Dan Ernst