Thursday, March 23, 2023

Schmidt on Legal Realism, Free Law, and Hermann Kantorowicz

Katharina Isabel Schmidt’s article How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34, is now available open access from  Law and History Review.  Highly recommended!

Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.
–Dan Ernst

Owens on "Barbara Jordan and the Politics of Scripture"

Georgetown University Press has published "My Faith in the Constitution Is Whole": Barbara Jordan and the Politics of Scripture (2022), by Robin L. Owens (Mount Saint Mary’s University). A description from the Press:

US Congresswoman Barbara Jordan is well-known as an interpreter and defender of the Constitution, particularly through her landmark speech during Richard Nixon’s 1974 impeachment hearings. However, before she developed faith in the Constitution, Jordan had faith in Christianity. In “My Faith in the Constitution is Whole”: Barbara Jordan and the Politics of Scripture, Robin L. Owens shows how Jordan turned her religious faith and her faith in the Constitution into a powerful civil religious expression of her social activism.

Owens begins by examining the lives and work of the nineteenth-century Black female orator-activists Maria W. Stewart and Anna Julia Cooper. Stewart and Cooper fought for emancipation and women’s rights by “scripturalizing,” or using religious scriptures to engage in political debate. Owens then demonstrates how Jordan built upon this tradition by treating the Constitution as an American “scripture” to advocate for racial justice and gender equality. Case studies of key speeches throughout Jordan’s career show how she quoted the Constitution and other founding documents as sacred texts, used them as sociolinguistic resources, and employed a discursive rhetorical strategy of indirection known as “signifying on scriptures.”

Jordan’s particular use of the Constitution—deeply connected with her background and religious, racial, and gender identity—represents the agency and power reflected in her speeches. Jordan’s strategies also illustrate a broader phenomenon of scripturalization outside of institutional religion and its rhetorical and interpretive possibilities.

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

-- Karen Tani

Wednesday, March 22, 2023

Yeager on the Exclusionary Rule

Daniel B. Yeager, California Western School of Law, has posted A History of Fruit of the Poisonous Tree (1916-1942):

Learned Hand (LC)
This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916-1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt.
--Dan Ernst

Tuesday, March 21, 2023

Merges's "American Patent Law"

Robert P. Merges, University of California, Berkeley, has published American Patent Law: A Business and Economic History (Cambridge University Press):

Students and established scholars of intellectual property law often look for historical context when trying to understand the development and present-day contours of IP rules and systems. American Patent Law supplies this context, offering readers a comprehensive account of the evolution of the US patent system and patent doctrine beginning in 1790. From the technologies for harvesting wood and shoemaking in the earliest periods to computer software and biotechnology of the present, each chapter of the book covers the characteristic technologies of each historical era. The book also describes how businesspeople in each era acquired and enforced patents and used patents as the foundation of various business arrangements. This book is a landmark in the history of technologies, the US patent system, and the way private actors have deployed patents across American history.
Here is an endorsement:
"The product of Merges's decades of research on the patent system, this masterful study transcends the simple debate over patents as a stimulus to technological discovery and documents their role in helping ensure that inventions are put to productive use. Whatever your view of patents, you will find much that is new and intriguing in Merges's analysis of how patents have been used to obtain financing and organize enterprises to exploit promising new technologies."

Naomi R. Lamoreaux - Stanley B. Resor Professor of Economics and History, Yale University
–Dan Ernst

Monday, March 20, 2023

Gordon on Slavery in California

Sarah Barringer Gordon, University of Pennsylvania, has posted Unlikely Freedom: Slavery, Race, and Law in Antebellum California:

Slavery in a free state, such as California, was far more common than we have recognized -- its place in history has long been underestimated.

This article tells the story of a key freedom suit in Los Angeles in 1856. Fourteen women and children were freed at the conclusion of the case -- but by default, rather than a formal decision. Their slaveholder fled, abandoning his claim. Yet this case changed lives, especially those whose freedom was achieved. Others also took their freedom when they learned of the outcome in this case.

But the law of slavery in California supported white slaveholders, and the emancipation of all those held in slavery by the state's largest slaveholder was unpopular among southern California's proslavery Democrats. The women and children involved in the case included a remarkable midwife, healer, and philanthropist -- Biddy Mason, whose life and achievements were essential to the growth of Los Angeles, especially its free Black community. At her death in 1891, Mason was renowned and beloved, her capacity to give matched by her own success.

Recovering this story of freedom in California highlights the slaveholding of white migrants, particularly in San Bernardino, the Latter-day Saints' colony , where Biddy, her family, and many others labored in slavery. California's Supreme Court established a strong proslavery jurisprudence -- but a local judge in Los Angeles had presided over a case that ended in emancipation. The judge was widely criticized, and his work in the case has not been studied. Yet the result changed Los Angeles and undermined slavery in its most prosperous farm community, San Bernardino.
--Dan Ernst

Sunday, March 19, 2023

A Celebration for Bill Casto

William R. Casto (TTU)
[We are moving up this post on “A Celebration for Bill Casto"--that is, for William R. Casto, the Paul Whitfield Horn Distinguished Professor at the Texas Tech University School of Law, as it will take place this Friday, March 24.  DRE]

The year 2023 will mark Bill Casto’s 40th year of teaching and 50th year of scholarly publications.  We invite you to help mark that milestone by participating in a celebration of his wide-ranging scholarship.  It’s also an opportunity to have some fun talking about an eclectic variety of his favorite subjects.  You can find his wide-ranging bibliography on his faculty webpage.  Judicial reliance on his scholarship is best seen in Sosa v. Alvarez-Machainv, 542 U.S. 692 (2004).

The Celebration will be on Friday, March 24, 2023.  It will be a Zoom event.  The Celebration will consist of 4 panels, as follows (all times are Central Time since Lubbock is in flyover country):

Panel 1 (9:00 -10:15): History of the Early Supreme Court and, more generally, the role of courts in the Founding Era.

Panel 2 (10:30 -11:45): History of the Alien Tort Claims Act and, more generally, of legal issues in conducting foreign affairs in the Founding Era.

Panel 3 (1:30 - 2:45): History of Justice Jackson’s role in the Roosevelt administration and, more generally, the role of a President’s legal counselor.

Panel 4 (3:00 – 4:15): A Historiography panel on techniques and approaches to source materials.

If any of this interest you, please register using this link.

Saturday, March 18, 2023

Weekend Roundup

  • The Center for the Southwest at The University of New Mexico announces that Katrina Jagodinsky, University of Nebraska-Lincoln, will deliver the 2023 C. Ruth and Calvin P. Horn Lecture in Western History and Culture, on Monday, March 20, from 5 to 6:30 p.m.  She will lecture on “The Many Faces of Habeas: Challenging Coercion and Confinement in the American West.”

  • Johns Hopkins's notice on Martha S. Jones's appointment to the Permanent Committee for the Oliver Wendell Holmes Devise (Hub).
  • Former ASLH President Bruce Mann et uxor will each receive the Doctor of Laws, honoris causa, from the Elisabeth Haub School of Law at Pace University on May 15, 2023.
  • In James Bradley Thayer, Legal Realist? Mathew J. Franck reviews The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy, by Andrew Porwancher and his three recently graduated students (Jake Mazeitis, Taylor Jipp, and Austin Coffey) in Public Discourse, the journal of the Witherspoon Institute.
  • "The Laws of Yesterday’s Wars," a book series with Brill Nijhoff, “highlights the wider customs and norms that regulate warfare to offer alternate models of conflict regulation and resolution” (Articles of War).
  • Martin Riker's The Guest Lecture is just terrific.  DRE
  • ICYMI:  Judge Cites 1849 Slavery Law in Ruling Embryos Can Be Considered Property (NYT).  Clare Sears on Cross-Dressing Bans in US History (Jacobin). Joshua Shanes, College of Charleston, on What is a Progrom? (Akron Legal News).

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

Friday, March 17, 2023

Kathryn T. Preyer Scholars Program

[We have the following announcement from the American Society for Legal History.  DRE.]

Kathryn T. Preyer Scholars Program.  The American Society for Legal History invites submissions for the annual Kathryn T. Preyer Award. Submissions are welcome on any topic in legal, institutional, and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply.

At the annual meeting of the Society, two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers. In addition to presenting their work at this specially-designated Preyer Panel, recipients receive a small honorarium to reimburse, in some measure or entirely, their costs of attending the conference.
This year's deadline is April 1, 2023. More information is available here.

Thursday, March 16, 2023

Wallace Johnson Program for First Book Authors

[We have the following announcement from the American Society for Legal History.  DRE]

The biennial Wallace Johnson Program for First Book Authors provides advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants develop and revise book proposals and sample chapters, as well as meeting with guest editors to learn about approaching and working with publishers.

The Johnson Program is open to early career, pre-tenure scholars, publishing in English, who have completed PhDs, JDs, or equivalent degrees. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are applicants who may not (yet) identify as legal historians. The Program provides substantial travel and accommodation funding to support attendance at Program meetings.


Fritz's "Monitoring American Federalism"

Christian G.  Fritz, Professor Emeritus of Law, University of New Mexico School of Law, has published Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University of Press).  It appears in Studies in Legal History, the book series of the American Society for Legal History:

Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.

 Here are some quite impressive endorsements:

"Fritz’s meticulously researched and timely book reframes our understanding of interposition and shows that it was distinct in important ways from nullification. This book fills a gap in our knowledge of the states’ role in early national federalism, placing the founders’ ideas in context and showing how those ideas were reshaped in the early nineteenth century." Alison L. LaCroix, University of Chicago, author of The Interbellum Constitution: Union, Commerce and Slavery in the Age of Federalisms

"Christian Fritz is one of the most illuminating students of American constitutional development. His latest book, on the theory and practice of state interposition, casts dazzling new light on the complexities of unified constitutional meaning in a fractious federal system." Sanford Levinson, University of Texas, author of Framed: America's 51 Constitutions and the Crisis of Governance

"With perfect timing, Fritz’s book on the history of state legislative resistance hits the market, just as debate about the theory of the independent state legislature heats up, and the Supreme Court considers it. Reading Fritz’s fascinating examination of state legislative actions should fill the need for accurate history absent from the debate thus far." Maeva Marcus, Research Professor of Law, The George Washington University

"In this deftly argued book, Christian Fritz traces the complex ways in which the American states attempted to 'interpose' their authority to challenge federal acts. He explains what the idea of interposition meant to its main author, James Madison, but also why Madison's concept proved so ambiguous and controversial to its interpreters." Jack Rakove, Stanford University, author of Original Meanings: Politics and Ideas in the Making of the Constitution

--Dan Ernst

Wednesday, March 15, 2023

Fletcher on the History of Tribal Courts

Matthew L. M. Fletcher, University of Michigan Law School, has posted The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction:

This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.
--Dan Ernst

Legal History as Business History (and vice versa)

The Business History Conference starts on Thursday in Detroit.  The program is here.  One session is of particular interest for legal historians in the 5:00pm - 6:15pm on Friday: "Legal History as Business History (and Business History as Legal History)."  Joanna Grisinger, Northwestern University, chairs and is a panelist.  The other panelists are Justin Simard, Michigan State University; Evelyn Atkinson, University of Chicago; and Geneva Smith, Princeton University>

Tuesday, March 14, 2023

Mezey Dissertation Prize

[We have the following announcement.  DRE.]

LCH Julien Mezey Dissertation Award 2023.  The Association for the Study of Law, Culture and the Humanities invites submissions for the Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities.

Applicants eligible for the 2023 award must have defended their dissertations successfully between March 2022 and March 2023.  The Association will cover the Mezey Prize winner’s travel and lodging costs to the annual meeting.  Nominations for the 2023 award must be received on or before April 14, 2023.

Each applicant must submit the following: (1) a letter by the nominee detailing the genesis, goal, and contribution of the dissertation; (2) a letter of support from a faculty member familiar with the work; an abstract, outline, and selected chapter of the dissertation; and (3)  contact information for the nominee.

Please submit these materials to  More information about this award is available on our website.
Martha M. Umphrey
President, Association for the Study of Law, Culture and the Humanities

Heeren on Immigration Law and Slavery

Geoffrey Heeren, University of Idaho College of Law, has posted Immigration Law and Slavery: Rethinking the Migration or Importation Clause, which is forthcoming in the Wisconsin Law Review:

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower pay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.
--Dan Ernst

Monday, March 13, 2023

Touro Law Review Conference on "The Life & Work of Felix Frankfurter"

On April 19, 2023, the Touro Law Review will convene a conference on "The Life & Work of Felix Frankfurter": 

Felix Frankfurter may have been the most influential lawyer in the United States during the first half of the 20th century. In 1939, President Roosevelt appointed Frankfurter to the Supreme Court, where he championed judicial restraint until his retirement in 1962.

Frankfurter’s biography is a story of immigration, academic achievement and scholarship, political activism, and public service as a prosecutor, advisor to Presidents, and judge.

Please join us for a conference exploring the life, work, and legacy of the lawyer and justice known as “FF.”

Participants include Professor Brad Snyder, author of the recent acclaimed biography of Frankfurter; the Hon. Jed Rakoff; and Professors John Q. Barrett; R. B. Bernstein; Rodger Citron; Tiffany Graham; Jeremy Kessler; Helen Knowles-Gardner; William Nelson; Noah Rosenblum; Dalia Tsuk; and John Witt.

More information is available here

-- Karen Tani

Spring Break

 Posts may be less frequent this week.  If so, look for them to resume at their usual rate starting March 20.

--Dan Ernst

Saturday, March 11, 2023

Weekend Roundup

  • Earlier this week, the White House announced appointments to Permanent Committee for the Oliver Wendell Holmes Devise.  The Committee is composed of the Librarian of Congress and four additional members appointed by the President.  The new appointees are Risa Lauren Goluboff, Martha S. Jones, and Trevor Morrison.  UVA's notice on Dean Goluboff's appointment is here; NYU's on Dean Emeritus Morrison's is here.  
  • On March 23, Kevin Butterfield, director of the John W. Kluge Center at the Library of Congress, will discuss his book, The Making of Tocqueville’s America: Law and Association the Early United States, in support of the ongoing exhibit at the Library of Congress, Join In: Voluntary Associations in America.
  • Nicole Carlson Maffei has posted Lucile Lomen (1920-1996), an essay on the first woman to serve as a clerk to a justice of the U.S. Supreme Court, on the Supreme Court Historical Society website.
  • “An archive belonging to attorney Linda Coffee, who filed the initial lawsuit in Rowe v. Wade, will go up for auction" (Dallas Morning News).
  • "Stanford University Historian Gregory Ablavsky will lecture on 'The Past, Present, and Future of Native Sovereignty in Federal Law' at 5 p.m. March 15 Shideler Hall room 152," University of Miami (Ohio).

  • Queen Mary, University of London, announces its new LLM in Common Law Theory and Practice. “Unique in the landscape of legal postgraduate education, this programme combines theoretical and applied study of the common law. Whether you are you are unfamiliar with the common law or have studied in a common law jurisdiction and wish to deepen your knowledge, this programme offers a contextual and critical insight into the common law and its workings.” 
  • ICYMI: From the Poor Laws to the Social Security Act (History Channel). A library exhibit on the buildings that housed the University of Arkansas School for Law.  A notice of Norman Silber’s oral history of Judge Guido Calabresi. (  Diane Minear, an attorney in the Spencer Fane Overland Park, Kansas, on Myra Bradwell.
  • Updates: A notice of  Laura M. Weinrib’s lecture,“Money, Politics, and the Constitution in the ‘Golden Age’ of Capitalism,” at an event honoring her 2021 appointment as the Fred N. Fishman Professor of Constitutional Law at the Harvard Law School (Harvard Crimson).  Also, we noted with interest that the William Nelson Cromwell Foundation supported this digitization project (NYT).

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

Friday, March 10, 2023

Andrias on Labor's Antimonopoly Vision

Kate Andrias, Columbia Law School, has posted Beyond the Labor Exemption: Labor's Antimonopoly Vision and the Fight for Greater Democracy, which is forthcoming in Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak (Oxford University Press):

Although the labor movement and the antimonopoly movement both oppose concentrated economic power and bemoan rising inequality, their projects are frequently viewed as divergent, if not incompatible. After all, courts have long used antitrust law against workers’ collective activity, and antimonopoly advocates have tended to deemphasize problems of class, focusing on breaking up business in ways that do not necessarily provide workers more power. This Essay shows, however, that the industrial unions of the early and mid-twentieth century saw themselves as antimonopoly advocates. They sought not only to free workers’ collective activity from antitrust law’s sanction, but also to advance an affirmative antimonopoly agenda. Yet their agenda was different in important respects from that of prominent antimonopolists, including Louis Brandeis: Labor’s focus was not on making business smaller, but rather on building workers’ countervailing power and increasing democratic control over the workplace and the economy, through a range of strategies including industrial organizing; changes to antitrust, tax, and banking policy; new forms of national economic planning; and public control of key industries. By examining labor’s antimonopoly vision beyond the struggle for a labor exemption, this Essay draws a more complicated picture of the American antimonopoly tradition—one that challenges the dominant narrative about the relationship between labor and antitrust and enriches our understanding of what the Progressive and New Deal-era antimonopoly vision entailed. It also suggests that, to unite the interests of workers, consumers, and citizens, the primary focus of a reform agenda going forward ought not be the size or even the market power of the firms in question, although those are certainly important factors, but rather the degree to which firms’ autonomy and power are democratically constrained either by the public or by the firms’ workers—in short, a program for greater democracy.

--Dan Ernst

Thursday, March 9, 2023

Solimine and Walker on the Three-Judge District Court

Michael E. Solimine, University of Cincinnati College of Law, and, posthumously, James L. Walker, Wright State University, have published The Strange Career of the Three-Judge District Court in the Case Western Reserve Law Review 72 (2022): 909-975:

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later, plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time, the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases.

Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were  disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

--Dan Ernst

Wednesday, March 8, 2023

Funk and Mayson on Bail at the Founding

Kellen Funk, Columbia Law School, and Sandra G. Mayson, University of Pennsylvania Carey Law School, have posted Bail at the Founding:

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case law, legal treatises, and manuals for justices of the peace; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections.

The historical inquiry illuminates three key facts. First, the black-letter law of bail in the founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second: Things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: Both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the law-on-the-books and the practice of bail in the founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning.
--Dan Ernst

Tuesday, March 7, 2023

Park on Title Registries and Dispossession

My Georgetown Law colleague K-Sue Park has posted Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power.  It is forthcoming in the Yale Law Journal:

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property institutions did not issue from sovereigns with established authority to govern a territory—as in the understanding drawn from European legal traditions—but rather preceded and ushered in colonial and U.S. sovereign title to Native homelands.

Using established scholarship on the colonies and original research on county-creation for the United States, this analysis presents new questions about how the legal infrastructure of property furthered conquest, and how the progression of conquest on the ground produced the national jurisdiction and real estate market. It shows that in the haphazard process toward the American title registry, colonists borrowed the English legal forms of the registry and county to remake them into local nuclei of colonial territorial expansion—the key governmental forms that drew settlers into Native nations’ territories and encouraged them to claim lands by reassuring them that those claims would become real property. The United States adopted this colonial approach to perfecting the Discovery claims it inherited or acquired from other Empires. The timed map of county creation— not the creation of territories, nor states, nor treaties— most accurately tracks where the United States grew its jurisdictional power, and when. For between its plans to invade and ability to govern lands-- between mere white entitlement and actual title—it created counties and registries, before transitional territories and often before obtaining Native cessions to the lands by treaty. In this way, counties came to underpin the national jurisdiction and the local institution of the registry became the common and continuous infrastructure for the entire national real estate market.

This history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and legal development. In particular, it also challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in different ways, including through the familiar dynamics of exclusion from institutional protections and benefits and the predatory risks of formal inclusion. But the registry’s history also illustrates a third phenomenon: legal innovation spurred by the willingness to view racial violence as an economic resource, or the development of new institutions and practices that may appear to be facially “race-neutral,” but promote the production of property value through the dehumanizing logic of race. The minimal, low-accountability design of the title registry encouraged the proliferation of market claims without authenticating them, prioritizing the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all—above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all.
--Dan Ernst

Pritchard and Thompson's "Securities Law in the Supreme Court"

A.C. Pritchard, Michigan Law, and Robert B. Thompson, Georgetown Law, have published A History of Securities Law in the Supreme Court (Oxford University Press):

A History of Securities Law and the Supreme Court explores how the Supreme Court has made (and remade) securities law. It covers the history of the federal securities laws from their inception during the Great Depression, relying on the justices' conference notes, internal memoranda, and correspondence to shed light on how they came to their decisions and drafted their opinions. That history can be divided into five periods that parallel and illustrate key trends of the Court's jurisprudence more generally.

The first saw the administration of Franklin Delano Roosevelt--aided by his filling eight seats on the Court-triumph in its efforts to enact the securities laws and establish their constitutional legitimacy. This brought an end to the Court's long-standing hostility to the regulation of business. The arrival of Roosevelt's justices, all committed to social control of finance, ushered in an era of deference to the SEC's expertise that lasted through the 1940s and 1950s. The 1960s brought an era of judicial activism-and further expansion--by the Warren Court, with purpose taking precedence over text in statutory interpretation. The arrival of Lewis F. Powell, Jr. in 1972 brought a sharp reversal. Powell's leadership of the Court in securities law produced a counter-revolution in the field and an end to the SEC's long winning streak at the Court. Powell's retirement in 1987 marked the beginning of the final period of this study. In the absence of ideological consensus or strong leadership, the Court's securities jurisprudence meandered, taking a random walk between expansive and restrictive decisions.

--Dan Ernst

Monday, March 6, 2023

Witt on Kinsella on Lieber's Code and Settler Empire

In Lieber at Sand Creek: A New Critical Reinterpretation of the Laws of War, a post on Just Security, John Fabian Witt comments on Helen M. Kinsella’s Settler Empire and the United States: Francis Lieber on the Laws of War, which appeared in the American Political Science Review. The post concludes:

[T]he most exciting feature of Kinsella’s article is the foundational puzzle it raises for legal historical interpretation. What counts as an adequate historical explanation when the regime under study is pervasively conditioned by empire? On the one hand, empire’s ubiquity powerfully conditioned the Lieber Code, as it did virtually every development in the nineteenth-century laws of war. On the other hand, the very fact of empire’s pervasiveness limits its capacity to explain the distinctive features of something like the Lieber Code. Neither the Code’s special vices, nor its particular virtues, stand out in Kinsella’s account. And that is a loss – for it undoubtedly had plenty of both.

--Dan Ernst

Tilley on the 1st Amendment and the Women of the ACLU

Cristina Tilley, University of Iowa College of Law, has posted The First Amendment and the Second Sex, which is forthcoming in the Arizona Law Review:

Crystal Eastman (NYPL)
Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing full legal and cultural equality with men—were complicit in this effort because they scoffed at the domesticated version of womanhood shielded by protective speech torts like slander.

This Article begins by surfacing the deep architecture of nineteenth-century life and law, with its bright boundaries between public and private. When speech regulation was commonplace and the First Amendment slept, public law was free to punish government criticism in the public sphere—a distinctly anti-democratic phenomenon. At the same time though, women in the private sphere targeted by domestic gossip had generous remedies in private law—a distinctly empowering phenomenon. It then shows how, throughout the twentieth century, the ACLU urged the Supreme Court to treat all law as public law and all life as public life. Across this new public terrain, the group argued, speech regulation should be replaced with self-help in the form of muscular counterspeech. ACLU luminaries on the distaff side joined this campaign, convinced that women were on the cusp of full public citizenship. Because this cultural turn would give women status to counterspeak, they were certain the protection of remedial speech torts would grow obsolete.

Today it appears that the women of the ACLU fatally miscalculated. American law has adopted the premise that all can navigate the deregulated marketplace of ideas by marshaling ideas and intellect. But American culture clings to the preference for private womanhood, producing gendered consequences for female speech. Modern women who bring their ideas into the public sphere are just as likely to be refuted with attacks on their domestic status or sexuality as they are with intellectual rejoinders. Stripped of the private law that used to repel such threats, these women are left either to counterspeak in ways that aggravate their personal peril or to withdraw from the speech arena altogether. The Article contends the time has come to acknowledge the tax that speech law extracts from women, and to ask whether today’s expressive marketplace is fair or foul.
--Dan Ernst

Saturday, March 4, 2023

Weekend Roundup

  • The Federal Judicial Center is seeking applications for Assistant Division Director for Judicial and Legal Education.
  • We received a CFP for “Legal Infrastructures of Democracy. Legal Fields, Public Spheres, and the Twin Challenges of State and Market.”  The workshop will take place in Frankfurt on September 7-8.
  • From Environment, Law, and History: David Schorr's series of posts on "Nature and the Common Law" continues, here and here.

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

CFP: Law, Culture, & the Humanities Twenty-Fifth Annual Conference

A Call for Papers has been posted for the 2023 Law, Culture, & the Humanities Conference, to be held at the University of Toronto on June 22 and 23, 2023. This year's theme is "Absence, the Present and the Past": 

The last few years have been marked by palpable absence: the absence of face-to-face encounters, shared meals, shared lives; the absence of in-person study, of spontaneous meetings in hallways and coffee shops — a seemingly interminable stretch of missed experiences and encounters. As we come back together and restart our offline lives, we carry the absences and missed opportunities of the recent pandemic with us. Absence signals both a void and a clearing: a call for us to be present once more to ourselves and each other. In some instances, we know what we have missed; at other times, we find ourselves surprised and undone by what we have not realized has been missing all this time. To dwell on this absence is not only to live in a state of lament or regret; it is also to imagine the possibilities that arise when we attend closely to what has been missing.

In this spirit of absence as loss and potential, we invite papers from across the disciplines that consider law in relation to absence. How might we conceive of law in the absence of justice, or imagine jurisprudence in the absence of precedent? What juridical potential arises in a moment of crisis and deprivation? What does law miss in entering these moments—and how might law’s missed encounters bring into relief the gaps in the interstices of contemporary culture? What does law miss—and what does it engage—when it serves as a source of social meaning and remediation?

More information is available here. The deadline for submissions is March 17, 2023.

-- Karen Tani

Friday, March 3, 2023

"Scholars of Contract Law"

New from Hart Publishing/Bloomsbury: Scholars of Contract Law, edited by James Goudkamp and Donal Nolan:

This book provides a counter-balance to the traditional focus on judicial decisions by exploring the contribution of legal scholars to the development of private law.

In the book the work of a selection of leading scholars of contract law from across the common law world, ranging from Sir Jeffrey Gilbert (1674–1726) to Professor Brian Coote (1929–2019), is addressed by legal historians and current scholars in the field. The focus is on the nature of the work produced by the scholars in question, important influences on their work, and the impact which that work in turn had on thinking about contract law. The book also includes an introductory chapter and an afterword by Professor William Twining that explore connections between the scholars and recurrent themes.

The process of subjecting contract law scholarship to sustained analysis provides new insights into the intellectual development of contract law and reveals the central role played by scholars in that process. And by focusing attention on the work of influential contract scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.

TOC after the jump. I can recommend my colleague Greg Klass's illuminating chapter on Arthur Corbin.

--Dan Ernst

Thursday, March 2, 2023

Lhost, "Everyday Islamic Law and the Making of Modern South Asia"

The University of North Carolina Press has published Everyday Islamic Law and the Making of Modern South Asia (2022) by Elizabeth Lhost (Dartmouth College). A description from the Press:

Beginning in the late eighteenth century, British rule transformed the relationship between law, society, and the state in South Asia. But qazis and muftis, alongside ordinary people without formal training in law, fought back as the colonial system in India sidelined Islamic legal experts. They petitioned the East India Company for employment, lobbied imperial legislators for recognition, and built robust institutions to serve their communities. By bringing legal debates into the public sphere, they resisted the colonial state’s authority over personal law and rejected legal codification by embracing flexibility and possibility. With postcards, letters, and telegrams, they made everyday Islamic law vibrant and resilient and challenged the hegemony of the Anglo-Indian legal system.

Following these developments from the beginning of the Raj through independence, Elizabeth Lhost rejects narratives of stagnation and decline to show how an unexpected coterie of scholars, practitioners, and ordinary individuals negotiated the contests and challenges of colonial legal change. The rich archive of unpublished fatwa files, qazi notebooks, and legal documents they left behind chronicles their efforts to make Islamic law relevant for everyday life, even beyond colonial courtrooms and the confines of family law. Lhost shows how ordinary Muslims shaped colonial legal life and how their diversity and difference have contributed to contemporary debates about religion, law, pluralism, and democracy in South Asia and beyond.

Advance praise:

“Opening a window on a virtually unexplored domain, Elizabeth Lhost foregrounds lawmaking in South Asian Islam as a process, providing a diachronic view of how the relationship between Muslim judges and the British state developed throughout the colonial period. Lhost also gives readers an unprecedented glimpse into the everyday lives of litigants, especially women, who attempted to use the law to better their lives. A landmark study of Islamic law in any time or period.”—Brannon Ingram

“Elizabeth Lhost draws on a remarkable and largely unexplored collection of archives, many of which require rare skill sets to interpret. The result is a lively, bottom-up perspective on everyday legal encounters. For historians and legal scholars alike, this book enriches our understanding of the ongoing importance of non-state legal forums and their complex interfaces with state courts and legislation.”—Julia Stephens

More information about the book is available here. An interview with Professor Lhost is available here, at New Books Network.

-- Karen Tani

Wednesday, March 1, 2023

Owens, "Consent in the Presence of Force Sexual Violence and Black Women's Survival in Antebellum New Orleans"

The University of North Carolina press has published Consent in the Presence of Force
Sexual Violence and Black Women's Survival in Antebellum New Orleans
(2022), by Emily A. Owens (Brown University). A description from the Press: 

In histories of enslavement and in Black women's history, coercion looms large in any discussion of sex and sexuality. At a time when sexual violence against Black women was virtually unregulated—even normalized—a vast economy developed specifically to sell the sexual labor of Black women. In this vividly rendered book, Emily A. Owens wrestles with the question of why white men paid notoriously high prices to gain sexual access to the bodies of enslaved women to whom they already had legal and social access.

Owens centers the survival strategies and intellectual labor of Black women enslaved in New Orleans to unravel the culture of violence they endured, in which slaveholders obscured "the presence of force" with arrangements that included gifts and money. Owens's storytelling highlights that the classic formulation of rape law that requires "the presence of force" and "the absence of consent" to denote a crime was in fact a key legal fixture that packaged predation as pleasure and produced, rather than prevented, violence against Black women. Owens dramatically reorients our understanding of enslaved women's lives as well as of the nature of violence in the entire venture of racial slavery in the U.S. South. Unsettling the idea that consent is necessarily incompatible with structural and interpersonal violence, this history shows that when sex is understood as a transaction, women are imagined as responsible for their own violation.

Advance praise:

"In Consent in the Presence of Force, Owens exactingly demonstrates the gaping and lingering question in the historiography of gender and slavery—how do we read sexual relations between enslaved women and white men beyond the failing dichotomy of consent and coercion? This question has been raised, theorized, and analyzed without a satisfying resolution that approximates the actual legal, social, and affective conditions of female-gendered enslavement. Owens offers completely new ways to account for Black women's subtle, but not less violent, vulnerability to sexual danger in the antebellum South."—Marisa J. Fuentes

"A necessary and highly anticipated work that dramatically upends current conceptions of sexual violence. Owens has given us a book that both crucially advances the historical literature and supersedes that historiography with broader scholarly and political reverberations."—Sarah Haley

More information is available here. An interview with Professor Owens about the book is available here, at New Books Network.

-- Karen Tani

SCHS Event: Kalman on "FDR's Gambit"

Registration (here) closes at 5PM (ET) today for the Supreme Court Historical Society-sponsored event, a conversation with Professors Laura Kalman and Brad Snyder about Professor Kalman’s latest book, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism.  It takes place via Zoom tomorrow, March 2, 2023 at 7:00 pm (ET).

--Dan Ernst

Tuesday, February 28, 2023

Camphuijsen, "Scripting Justice in Late Medieval Europe: Legal Practice and Communication in the Law Courts of Utrecht, York and Paris"

Amsterdam University Press has published Scripting Justice in Late Medieval Europe: Legal Practice and Communication in the Law Courts of Utrecht, York and Paris, by Frans Camphuijsen. A description from the Press:

Late medieval societies witnessed the emergence of a particular form of socio-legal practice and logic, focused on the law court and its legal process. In a context of legal pluralism, courts tried to carve out their own position by influencing people’s conception of what justice was and how one was supposed to achieve it. These “scripts of justice” took shape through a range of media, including texts, speech, embodied activities and the spaces used to perform all these. Looking beyond traditional historiographical narratives of state building or the professionalization of law, this book argues that the development of law courts was grounded in changing forms of multimedial interaction between those who sought justice and those who claimed to provide it. Through a comparative study of three markedly different types of courts, it involves both local contexts and broader developments in tracing the communication strategies of these late medieval claimants to socio-legal authority.

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

 -- Karen Tani

Thank You, Michael Ariens!

We're grateful to Michael Ariens for his posts this month on his new book, The Lawyer's Conscience.

Honor, Conscience, and Rules
The Zealous Rufus Choate
David Dudley Field and the Limits of Conscience
Lon L. Fuller and the 1969 ABA Code of Professional Responsibility
What's the Point of an Ethics Code?  The ABA's 1983 Model Rules
The Professionalism Crisis and Core Values

--Dan Ernst

Monday, February 27, 2023

Book Talk: Zhang's "Ideological Foundations of Qing Taxation"

[We have the following announcement.  DRE]

Please join the Lillian Goldman Law Library for a talk with Professor Taisu Zhang about his new book, The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, with commentary by Professor Samuel Moyn.  This event will take place on Thursday, March 9, at 12:10 PM in SLB 127.  Boxed lunch will be available for those who register here by March 7.  This book talk will be recorded and available to watch on the Law Library’s YouTube channel following the event.

Gajda, "Seek and Hide: The Tangled History of the Right to Privacy"

We missed this book when it came out last year: Amy Gajda (Tulane Law School), Seek and Hide: The Tangled History of the Right to Privacy (Viking, 2022). A description from the Press:

Should everyone have privacy in their personal lives? Can privacy exist in a public place? Is there a right to be left alone even in the United States? You may be startled to realize that the original framers were sensitive to the importance of   privacy interests relating to sexuality and intimate life, but mostly just for powerful and privileged (and usually white) men. 

The battle between an individual’s right to privacy and the public’s right to know has been fought for centuries. The founders demanded privacy for all the wrong press-quashing reasons. Supreme Court jus­tice Louis Brandeis famously promoted First Amend­ment freedoms but argued strongly for privacy too; and presidents from Thomas Jefferson through Don­ald Trump confidently hid behind privacy despite intense public interest in their lives.  
Today privacy seems simultaneously under siege and surging. And that’s doubly dangerous, as legal expert Amy Gajda argues. Too little privacy leaves ordinary people vulnerable to those who deal in and publish soul-crushing secrets. Too much means the famous and infamous can cloak themselves in secrecy and dodge accountability.
Seek and Hide carries us from the very start, when privacy concepts first entered American law and society, to now, when the law al­lows a Silicon Valley titan to destroy a media site like Gawker out of spite. Muckraker Upton Sinclair, like Nellie Bly before him, pushed the envelope of privacy and propriety and then became a privacy advocate when journalists used the same techniques against him.  By the early 2000s we were on our way to today’s full-blown crisis in the digital age, worrying that smartphones, webcams, basement publishers, and the forever internet had erased the right to privacy completely.
Praise from reviewers:

“For anyone who mistakenly believes that the debate about press freedom and privacy is a twenty-first-century problem, Amy Gajda’s Seek and Hide is a reminder that ‘gotcha’ journalism, political sex scandals, and hand-wringing over new technologies date back to the Founding Era. In this gorgeously written, rollicking account of a very complicated, very Ameri­can history of the smackdown between privacy versus the right to know, Gajda offers indispensable and timely context for contemporary debates about the boundaries of both. Ultimately Seek and Hide also serves as a bracing reminder that the laws of privacy and politics are often shaped by self-interested parties with the most to gain and the most to hide.” -- Dahlia Lithwick 

“A magnificent book that shows us that the tension between the right to privacy and freedom of expres­sion is as old as this country yet as recent as social media and doorbell cameras. At a time when we all must be concerned about what it all means for each of us, Amy Gajda has written the definitive book about privacy and the right to know.”— Erwin Chemerinsky

An excerpt is available here, via the American Bar Association. An interview with Professor Gadja is available here, at New Books Network.

-- Karen Tani

Saturday, February 25, 2023

Weekend Roundup

  • John Mikhail, Georgetown Law, will deliver a Law Day lecture for the Supreme Court Historical Society on James Wilson and "We The People” on Tuesday, May 2, 2023 at Noon (ET) via Zoom.
  • John Witt on reanimating the modern Torts curriculum, collaborating with students, and writing legal history from the baseball field, as part of the Inside Yale Law School podcast.
  • The Policy History Conference in Columbus, Ohio from Wednesday, June 7 to Friday, June 9, 2023, has extended its paper and panel submission deadline to March 1, 2023.
  • Kevin M. Kruse and Julian E. Zelizer discuss Myth America: Historians Take On the Biggest Legends and Lies About Our Past on the ABA Journal’s Modern Law Library podcast.
  •  ICYMI: George Boyer Vashon, New York’s first Black lawyer (  Elizabeth Jennings and the Desegregation of Public Transportation in New York City (Historical Society of the New York Courts).  Hidetaka Hirota, University of California, Berkeley, on the historical stigma of undocumented immigrants at Boston College (The Heights).

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

Friday, February 24, 2023

Schlag's "Twilight of the American State"

Pierre Schlag, Colorado Law, has published Twilight of the American State (University of Michigan Press) open access, at the press’s website and on Kindle:

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.
--Dan Ernst

Thursday, February 23, 2023

Freedom of Speech, 1500-1850

We missed the publication of Freedom of speech, 1500-1850, a collection of essays edited by Robert Ingram, Jason Peacey and Alex W. Barber appearing in the University of Manchester Press’s book series, Politics, Culture and Society in Early Modern Britain:

This collection brings together historians, political theorists and literary scholars to provide historical perspectives on the modern debate over freedom of speech, particularly the question of whether limitations might be necessary given religious pluralism and concerns about hate speech. It integrates religion into the history of free speech and rethinks what is sometimes regarded as a coherent tradition of more or less absolutist justifications for free expression. Contributors examine the aims and effectiveness of government policies, the sometimes contingent ways in which freedom of speech became a reality and a wide range of canonical and non-canonical texts in which contemporaries outlined their ideas and ideals. Overall, the book argues that while the period from 1500 to 1850 witnessed considerable change in terms of both ideas and practices, these were more or less distinct from those that characterise modern debates.
TOC after the jump.

--Dan Ernst.  H/t: RC

Armitage to Lecture on Opera and International Law

The Centre for Chinese and Comparative Law, City University of Hong Kong in partnership with Wuhan University School of Law and Fudan University School of Law announce the latest in its series of Distinguished Lectures in the History of International Law: What Has Opera To Do with International Law? by David Armitage, the Lloyd C. Blankfein Professor of History, Harvard University. It will take place via Zoom on March 27, 2023, at 9 pm Hong Kong Time, which is 2 pm London Time, 9 am Eastern Standard Time.  Register here.

--Dan Ernst

The Professionalism Crisis and Core Values

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

At its 1983 annual meeting, the ABA promoted a "Presidential Showcase" on the subject of the lawyer's professional independence. The panelists largely concluded that such independence was diminishing. The lawyer's desire for independence from clients was being replaced by "commercialism," the "basic posture of 'my client, first, last, and always.'" The triumph of the client's interests over the lawyer's duty to the public generated what was called the "professionalism" crisis. In his last column for the ABA Journal, President Morris Harrell inveighed against commercialism. He urged lawyers embrace professionalism, which he defined as "involv[ing] acceptance of high ethical standards, which generally include a dedication to public services for the benefit and protection of society that looks beyond the mere earning of a livelihood." The importance of the topic led the ABA to showcase another panel on lawyer independence at its 1984 annual meeting. In between those showcases, Chief Justice Warren Burger spoke to the ABA at its February 1984 Midyear meeting about a loss of professionalism. The ABA responded to Burger's speech by creating a Committee on Professionalism. That committee issued a Report, known as the Stanley Report, recommending a recovery from this loss.

In 1988, the ABA's Tort and Insurance Practice Section (TIPS) adopted a "Lawyer's Creed of Professionalism," At the same meeting the ABA agreed to send to its members a "Lawyers' Pledge of Professionalism." As of 1990, "forty-five states ha[d] issued formal reports on lawyer professionalism." The ABA and state bar associations were joined in the professionalism crusade by the Conference of Chief Justices, which issued a "National Action Plan" on professionalism in 1999.

These efforts (and others) emphasizing the lawyer's duty to meet the tenets of professionalism were spurred by fears of economic insecurity and decline. The lawyer income premium over the median worker dropped significantly. Lawyers in private practice were "sorted" into those representing individuals and those representing corporations and other organizations. They were further sorted as legal specialization narrowed more finely the work of lawyers. With the notable exception of some personal injury lawyers, the income of those who ordinarily represented individuals stalled. The income of lawyers who represented organizations increased, but remaining a well-paid member of firm serving corporations became less secure for those other than "rainmakers" (a newly-coined term). Additionally, elite lawyers regularly wrote bemoaning the consequences of "rapid change" in technology and society, which generated an anxiousness regarding their status.

The professionalism crisis has arguably continued through the present. At the very least, it lasted until the turn of the millennium. In a 2015 count, 123 courts and lawyer organizations had adopted a civility or professionalism creed. If lawyers truly faced a professionalism crisis, the organizational adoption of creeds was a useful but insufficient response. An additional response began during the late 1990s. The ABA looked to identify the professional ideals all (or at least many) lawyers acknowledged. What were the profession's "core values"?

Although today the phrase "core values" is commonly used by private organizations, universities, and other institutions, particularly when an employee is charged with behaving contrary the employer's values, the phrase was not used within the legal profession until the publication in 1990 of an article titled The Future of the Legal Profession, written by Geoffrey Hazard, the most prominent American legal ethics expert of the era. Soon after Hazard's article was published, an important ABA Task Force listed four "fundamental values of the profession," which both overlapped and underdetermined such values.

At the end of the decade, two issues brought the question of core values back to the forefront of the ABA's work. First, the American Institute of Certified Public Accountants announced its intention to adopt a "vision statement" encouraging accountants to undertake work lawyers believed was in their domain. This led to a committee to assess whether law firms should be permitted to offer multidisciplinary practice, services that included both law and non-legal services in an institution owned by lawyers and non-lawyers alike. Second, the ABA created a committee to review the 1983 Model Rules and suggest amendments.

The ABA eventually rejected a proposal by the Multidisciplinary Practice Commission, which included the influential Hazard as a member, to permit multidisciplinary practice. It did so even though the Commission declared its recommendation fully protected the "core values of the legal profession." In 2001, the committee reviewing the Model Rules proposed two major amendments permitting a lawyer to disclose a client's confidential communication. The proposal was defeated after its opponents claimed they were the steadfast defenders of the profession's core values.

By early 2002, Enron and other high-flying businesses were bankrupt, and the ABA was engaged in damage control. It had created a Task Force to reassess the circumstances in which a lawyer might disclose a client's confidential communication. When the ABA debated in 2003 the proposed adoption of rules killed in 2001, proponents and opponents used the language of core values in attempting to persuade the undecided. This included comments made by two future ABA presidents, who voiced opposing views. Though they disagreed, both agreed that their position best protected the core values of the profession. Core values was an empty vessel, sufficiently capacious to store whatever struck a lawyer's fancy.