Tuesday, April 30, 2024

Ruskola on Liberalism, Authoritarianism, and China

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted The Limits of Liberal Justice: On Authoritarianism and Instrumental Theories of Law, which is forthcoming in the Asia Pacific Law Review:

Baron de Montesquieu (NYPL)
In this essay, I use Professor Sucheng Wang's recent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. I suggest that opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu's The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democracies and authoritarian states). I then turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality. I conclude by focusing on the People's Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.
--Dan Ernst

Monday, April 29, 2024

PhD Fellowship on the Court of Chancery during the English Civil War

[We have the following announcement.  DRE]

University College London and The National Archives are pleased to announce the availability of a fully funded Collaborative doctoral studentship from 1st October 2024, under the Arts and Humanities Research Council (AHRC) Collaborative Doctoral Partnership Scheme.

The PhD project will investigate the records of the Court of Chancery during the English Civil War and Interregnum (c. 1640-1660). The key aims of this project are to better understand how the Court of Chancery was being used by litigants between 1640 and 1660, and to unlock the records of this court through original research and cataloguing. The project has intentionally broad research aims to allow the student to develop their own research questions and answers based on discoveries in these collections. Their initial investigation of these records will provide them with case studies, which can be approached in a variety of ways depending on the student’s interests.

The richness of the records, the high stakes of the litigation, and the political uncertainty of the period promise to make this project an insightful and important archival study which will serve as a benchmark for future studies.

The key research questions of the project are:

  • How did the Court of Chancery function during this tumultuous period?
  • How and for what reason did litigants use this court?

Applicants should ideally have or expect to receive a relevant Masters-level qualification or be able to demonstrate equivalent experience in a setting involving knowledge of and critical reflection on relevant topics, such as Legal History, Constitutional History, and Political History. Suitable disciplines are flexible but might include Law or History.

As a collaborative award, students will be expected to spend time at both the University and The National Archives.

Any questions should be directed to UCL’s Faculty of Laws PhD team at phd-law@ucl.ac.uk

Applications will be considered following the 24th June application deadline, initially to be short-listed for interview.  Interviews will take place online, via Zoom, in July 2024.

[Tuition fees up to the full-time home rate for PhD degrees. The UKRI Indicative Fee Level for 2024/25 is £4,786 for full-time home students, plus an annual maintenance stipend which will be £21,237 in academic year 2024/25.  Closing date: June 29, 2024.]

Siegel on "History and Tradition" as the Right's "Living Constitutionalism"

Reva Siegel, Yale Law School, has posted The "Levels of Generality" Game, or "History and Tradition" as the Right’s Living Constitution, which is forthcoming in the Harvard Journal of Law and Public Policy:

Why does the Roberts Court appeal to history and tradition as reason to change the law? We see this logic in Dobbs v. Jackson Women’s Health Organization (reversing the abortion right) and in New York State Rifle & Pistol Ass’n v. Bruen (striking down gun-licensing restrictions under the Second Amendment). This Essay shows that what explains the turn to history in these cases is not an identifiable method that directs interpreters how to decide contested constitutional questions but instead a mode of justification. Both Dobbs and Bruen claim that fidelity to the nation’s history and tradition in interpreting the Constitution will constrain judicial discretion as traditional forms of doctrine or openly value-based judgment cannot.

For some years now, I have analyzed the value-laden claims on the past that Americans make as they are arguing about the Constitution as “constitutional memory” claims. As this Essay demonstrates, my account of constitutional memory poses a direct challenge to originalism’s judicial-constraint thesis. What appear to be positive, descriptive claims about the past in constitutional argument are often normative claims about the Constitution’s meaning. I analyze this dynamic in the Justices’ decades-long debate over levels of generality: a judge who employs the most specific level of generality in describing past practice can conceal rather than constrain value-based judgment. And I illustrate this logic at work in United States v. Rahimi, a Second Amendment case before the Supreme Court this Term, in which the Fifth Circuit applied Bruen’s history and tradition analysis to hold that 18 U.S.C. § 922(g)(8), a federal law that disarms persons subject to domestic-violence restraining orders, is unconstitutional under the Second Amendment.

The Essay argues that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

Update: Emily Bazelon on "How ‘History and Tradition’ Rulings Are Changing American Law" in today's NYT.

--Dan Ernst

Saturday, April 27, 2024

Weekend Roundup

  • Holly Brewer, University of Maryland, discusses the Trump immunity case on the Law Dork podcast Nancy Isenberg, Louisiana State University, does so as well, here.  And Donald Nieman, University of Binghamton does here.
  • Legal history was well represented when the Society for Historians of the Gilded Age and Progressive Era met for its annual luncheon at the annual meeting of the Organization of American Historians.  Laura Edwards, Princeton University, gave the Distinguished Historian Address, “No Account: Rethinking the Narrative of Women and Property in the Late Nineteenth Century.”  Michael Willrich, Brandeis University, won the President’s Book Prize for American Anarchy: The Epic Struggle between Immigrant Radicals and the U.S. Government at the Dawn of the Twentieth Century (Basic Books, 2023).  Elizabeth D. Katz, University of Florida, received Honorable Mention for the Fishel-Calhoun Prize, an article prize for new scholars, for “Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office,” Yale Journal of Law and Feminism (2022).  And Mazie Hough, University of Maine, won the 2024 JGAPE Best Article Prize for “‘There is Nothing So Sacred as Human Life:’ Infanticide and the State of Maine, 1877-1917.” (SHGAPE Blog).   
  • ICYMI: Throckmorton's Case continues to fascinate decades after we first encountered it in John Langbein's DLI  (The Leaflet).  Ronald G. Shafer on Justice Joseph P. Bradley and the Hayes-Tilden Commission (WaPo Retropolis). A notice of Michael Hoeflich’s Legal Feasts (KU News).

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

Friday, April 26, 2024

Brown on the Pennsylvania Council of Censors and the US Constitution

Angus Harwood Brown, University of Cambridge, has published open access The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States in the American Journal of Legal History:

In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

 --Dan Ernst

Thursday, April 25, 2024

Daly to Speak on Africa's Military Regimes

Samuel Fury Childs Daly, University of Chicago, will present "Forward March: Time and Ideology in Africa’s Military Regimes, 1970-2000," in the EuroStorie research seminar series "Time and Identity" in Room 247, Unioninkatu 33, University of Helsinki, on Friday, May 3, 1:00pm-2:00pm (UTC+2).  You may also join via Zoom.

Across Africa, independence was followed by a wave of military coups and martial revolutions. The men who staged them had utopian visions. In Nigeria and other former British colonies, military officers believed they could remake their countries in the image of an army. Soldiers tried to condition civilians to think like they did—and when that failed they tried to beat the bad habits out of them by force. Militarism became the animating force of African politics. Like its better-known counterparts – communism, capitalism – militarism had a culture, an aesthetic, and a philosophy. It also had a theory of time, and military ideas about temporality permeated military dictatorships. Africa’s military regimes had revolutionary ambitions. Nearly all soldiers were committed to transforming their societies – though they didn’t always spell out what they wanted them to become. Coups were power grabs, but they also came with ideas. After they mopped up the blood in the barracks, soldiers set about governing. The ideology they created – militarism – is one of the twentieth century’s most neglected ideologies.
--Dan Ernst


Wednesday, April 24, 2024

Booth on Policing in Atlanta after Slavery

Jonathon Booth,  University of Colorado Law School, has posted Policing after Slavery: Race, Crime, and Resistance in Atlanta, which is forthcoming in the University of Colorado Law Review:

This Article places the birth and growth of the Atlanta police in context by exploring the full scope of Atlanta’s criminal legal system in the four decades after the end of slavery. To do so, it analyzes the connections Atlantans made between race and crime, the adjudication and punishment of minor offenses, and the variety of Black protest against the criminal legal system. This Article is based in part on a variety of archival sources, including decades of arrest and prosecution data that, for the first time, allow for a quantitative assessment of the impact of the new system of policing on Atlanta’s residents.

This Article breaks new ground in four ways. First, demonstrates that Southern police forces responded to the challenges of freedom: Atlanta’s police force was designed to maintain white supremacy in an urban space in which residents, theoretically, had equal rights. Second, it shows that white citizens’ beliefs about the causes of crime and the connections between race and crime, which I call “lay criminology,” influenced policing strategies. Third, it adds a new layer to our understanding of the history of order maintenance policing by showing that mass criminalization for minor offenses such as disorderly conduct began soon after emancipation. This type of policing caused a variety of harms to the city’s Black residents, leading thousands each year to be forced to pay fines or labor for weeks on the chain gang. Fourth, it shows that the complaints of biased and brutal policing that animate contemporary police reform activists have been present for a century and a half. Atlanta’s Black residents, across class lines, protested the racist criminal legal system and police abuses while envisioning a more equitable city where improved social conditions would reduce crime.
--Dan Ernst

Tuesday, April 23, 2024

The Legal History of the Church of England

Hart has published The Legal History of the Church of England: From the Reformation to the Present, edited by Norman Doe and the Reverend Stephen Coleman, Cardiff University:
The law has often been the site of major political and theological controversies, within and outside the church, including the Reformation itself, the English civil war, the Restoration and rise of religious toleration, the impact of the industrial revolution, the ritualist disputes of the 19th century, and the rise of secularisation in the twentieth. The book examines key statutes, canons, case-law, and other instruments in fields such as church governance and ministry, doctrine and liturgy, rites of passage (from baptism to burial) and church property.

Each chapter studies a broadly 50-year period, analysing it in terms of continuity and change, explaining the laws by reference to politics and theology, and evaluating the significance of the legal landmarks for the development of church law and its place in wider English society.

For the discount price of £80 (20% off), order online at www.bloomsbury.com and use the code GLR AT5.

--Dan Ernst.  Table of Contents after the jump.

Monday, April 22, 2024

Rare Book School: Seats Still Available

We hear that there are still a few open seats for the Rare Book School course, "Law Books: History & Connoisseurship," which will be offered June 9-14 in the Yale Law School Library, New Haven, CT.  As we said in an earlier post, the instructors are Mike Widener (rare book advisor, retired curator), who has taught the class since 2010, and Kathryn James (rare book librarian, Yale Law Library), who has been the co-instructor since 2023. The class features extensive hands-on experience with the Yale Law Library's outstanding rare book collection. Details on the class, including comments from past students and links to registration information, are available here.

--Dan Ernst

Waddilove on Equity in 1600

D.P. Waddilove, Notre Dame Law School, has posted Aspects of Equity in 1600: Wills, Forfeitures, and Trusts, which is forthcoming in Essays on the History of Equity, edited by David Foster and Charles Mitchel:

The Court of Chancery in 1600 stood somewhere on the bridge between medieval dispenser of ad-hoc justice and sclerotically rigid Regency court of punctilio. Equity was in an uncertain state, no longer unpredictably free-form, but not yet driven to the regularity of fully precedential lawlikeness.

At the time, the Great Seal was in the hands of Sir Thomas Egerton, Lord Keeper from 1596 to 1603, and Lord Chancellor (as Lord Ellesmere) from 1603 to his death in 1617. Although recognized in his own day and immediately afterward as particularly significant for the development of equity, legal history has tended to disregard him thanks to overreliance upon printed reports, which begin to cover the court meaningfully only after his tenure.

This paper, based on a comprehensive review of the daily record of the court, the Chancery Register, for the legal year beginning 1600 (9 October 1600 - 8 October 1601), considers aspects of equity to assess their state of development and shed light on Egerton's influence. Supplemented with the manuscript Chancery reports first printed by Professor Hamilton Bryson in Selden Society volumes of 2000-2001, it considers three major areas of equitable jurisdiction. Two of these, securities (such as bonds and mortgages) and trusts, are often considered the main jurisdictions of Chancery. The third, disputes over testamentary matters and decedents’ estates, became stereotypically associated with Chancery in Dickens's Bleak House, and also formed a major aspect of equitable jurisdiction. This paper thus sheds light on the nature of equitable development in these major areas in an under-studied period.
--Dan Ernst

Saturday, April 20, 2024

Weekend Roundup

  • Maximilian Del Mar, Queen Mary University of London, will present "Beyond Belief and Deeper than Argument: Character and Intellectual Historiography" in the Helsinki Legal History Series on Monday on April 29.  More.
  • Holly Brewer, University of Maryland, on that historians' brief in the Trump immunity case (Maryland Today).
  • The American Historical Association will conduct a Congressional Briefing “offering historical perspectives on federal safety regulations in transportation” on Thursday, May 9 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  More.
  • Carol Anderson, Emory University; Orville Vernon Burton, Clemson University; Alexander Keyssar, Harvard University; and J. Morgan Kousser, Emeritus, California Institute of Technology, have signed a Historians’ Amicus Brief in Alpha Phi Alpha Fraternity, Inc., et al., v. Secretary of State of Georgia (Brennan Center). 
  • "The Joseph Smith Papers Project has unveiled its latest historical study aid, Legal Records: Case Introductions. This compilation contextualizes Joseph Smith’s multifaceted interactions with the law, casting light on his roles as a plaintiff, defendant, witness, or judge in approximately 200 cases spanning the years 1819 to 1844" (Church News).
  • Paul Finkelman makes the case for the landmark status of the  home of Alexander Clark, who brought Clark v. Muscatine (1868) to racially integrate the schools of Muscatine, Iowa (Bleeding Heartland).
  • Hardeep Dhillon says that a grossly racialised legal structure was put in place by the British government to compensate Europeans affected in the [Jallianwala Bagh] massacre while undervaluing the claims made by families of Indians killed or injured in the incident” (Indian Express).

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

Friday, April 19, 2024

The Hunt for Iudex Non Calculat

We have the following announcement.  If we taught contracts, we might be tempted to put this on our exam.  DRE]

Whence “iudex non calculat”?  Research Competition 2024 in History of Language and Law

Seventy-five years ago, US professor Curt Gruneberg described “an old Roman proverb” supposedly “indicating the general dislike of Roman jurists against determining amounts by way of mathematical processes.” This proverb was “Iudex non calculat” – “a judge does not calculate.”  Like other writers before and after 1949, Gruneberg failed to cite a source for this supposedly ancient maxim. In fact, even today there is no known reference to “non calculat” in any source before 1850. Or is there?

The Professorship for Legal Linguistics at the Wiesbaden University of Business and Law (EBS Law School) holds the 2024 research competition to crowd-source the oldest available reference to “non calculat.”  Early career researchers and anyone else interested in legal language or history are invited to submit digitized primary sources (written or printed, published or not) containing the exact phrase “(i/j)udex non calculat” prior to 1850. The three oldest sources each win (fame and) a book prize.

The deadline to submit answers to Prof. Dr. Dr. Hamann, JSM, is Sunday, June 20, 2024.  The first, second, and third prizes are a book of your choice and an official award letter.

The Lemmon Slave Case: The Audio Drama

The Historical Society of the New York Courts has announced an event, Celebrating the Enslaved Heroine of the Lemmon Slave Case: A High-water Mark for the New York Courts.  It will include the world premiere of "How Emeline Got Free: An Untold Story of History," which the Society describes as “a 30-minute audio drama that tells the story of the landmark Lemmon Slave Case from the perspective of Emeline Thompson, the eldest of the eight enslaved women and children whose freedom was at stake at this 1852 trial.”  The playing of the drama will be followed by followed by a discussion with the director Mustapha Khan, author of The Eight: The Lemmon Slave Case and The Fight for Freedom, the Hon. Albert M. Rosenblatt, and the actors, moderated by Hon. Dianne T. Renwick, Presiding Justice of the Appellate Division, First Department.
The event will take place on Tuesday, May 21, 2024. From 6:00 - 8:00 PM, livestreamed and in person at the Schomburg Center for Research in Black Culture, 515 Malcolm X Boulevard (135th St and Malcolm X Blvd) New York, NY.  Register here.

--Dan Ernst

Latest Issue of Federal History

Issue 16 of the journal Federal History is now out. Some highlights from the contents:

Two "Reviews in Legal History": David E. Wilkins on Maggie Blackhawk, “Legislative Constitutionalism and Federal Indian Law”; Lisa K. Parshall on Gerald S. Dickinson, “The Fourth Amendment’s Constitutional Home.”
A roundtable on The Partisan Republic: Democracy. Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s by Gerald Leonard and Saul Cornell: Introduction by Matthew Crow; reviews by Katlyn Marie Carter, Graham G. Dodds, Jessica K. Lowe, Stephen J. Rockwell; author responses by Saul Cornell and Gerald Leonard. 
Full contents are available here.

-- Karen Tani

Thursday, April 18, 2024

Sinanis on Exemplary Damages in 18th- and 19th-Century England

Nicholas Sinanis, Lecturer on the Faculty of Law at Monash University, has published open access Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England in the American Journal of Legal History:

A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.

--Dan Ernst

Stanley-Ryan on Maori History and International Law

Ash Stanley-Ryan has posted Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law, which is forthcoming in Law&History, the journal of the Australian and New Zealand Legal History Society:

He Whakaputanga
This article examines how our understanding of international law is harmed by the systematic erasure of indigenous experiences and histories. He Whakaputanga o te Rangatira o Nu Tireni is used as a case study. The article first considers several methodological considerations for legal historians. A theoretical approach is constructed which centres Maori voices and Te Reo Maori, and accepts that history is both political and contingent. In the next section, two parallel histories are detailed: pakeha stories of he whakaputanga as act to secure Imperial interests; and Maori recollections of he whakaputanga as an affirmation of independence, in response to an ever-more-intrusive world. The two histories are then considered through the lenses of jurisdictional encounter and international legal reproduction. These lenses show how history and law have undertaken a demarcating exercise, concealing Maori histories and removing he whakaputanga from legal relevance. This process has harmed international law, because it legitimises imperialism and hides law’s contingent nature. The article closes by recalling Moana Jackson’s call for ‘honesty about the misremembered stories and the foresight to see where different stories might lead’.

--Dan Ernst

Wednesday, April 17, 2024

A Symposium on Rana's "Constitutional Bind"

Over at the blog of the LPE Project, a symposium is under way on Aziz Rana’s The Constitutional Bind: How Americans Came to Idolize a Document.  Professor Rana has started it off with Toward a New Constitutional Politics:
Given the manifest flaws of the U.S. Constitution, how did Americans come to idolize this document? Aziz Rana kicks off a symposium on his new book, The Constitutional Bind, by reflecting on the path that led to our current political predicament, and how long-buried Left thinking about state and economy might help us find our way out of it.
William E. Forbath has continued the symposium with Constitutional Politics and Dilemmas on the Left:
Aziz Rana aims to free us from Constitution worship. An abiding faith in “redemptive” constitutionalism, his new book argues, has long held back liberals, progressives, and even the Left from seriously promoting major change in our structures of government. Yet key left figures and movements have always made canny use of redemptive constitutional narratives and arguments. Rejecting that tradition leaves far too much on the table.

--Dan Ernst

When Law Left the Lawbooks in Medieval Europe

[We have the following announcement.  DRE.]

When Law Leaves the Lawbooks: Legal Diffusion and Normative Instability in Medieval EuropeRowan Dorin, Stanford University, April 23, 2024, 06:00 PM (Local Time Germany).  Contact: Benedetta Albani, albani@lhlt.mpg.de

Like medieval jurists, modern scholars frequently rely on the authoritative, codified versions of legal norms when considering the relationship between legal developments and social change in the European Middle Ages. Too rarely have medievalists followed the lead of early modernists in emphasizing the multi-sited production and translation of legal knowledge. Yet just as in the early modern era, medieval law did not circulate only in its codified forms; knowledge of its language and provisions could also be transmitted and transformed through other written genres, to say nothing of oral renderings and visual representations. Using a thirteenth-century conciliar decree as a starting point (and building on a newly available online database of medieval ecclesiastical legislation), this talk will accordingly explore the paths by which legal innovations moved from medieval council chambers and university classrooms into local contexts, undergoing significant textual and interpretative transformations along the way.

Rowan Dorin (AB & PhD Harvard; MPhil Cambridge) is Associate Professor of History at Stanford University. In addition to his recent book, No Return: Jews, Christian Usurers, and the Spread of Mass Expulsion in Medieval Europe (Princeton UP, 2023), he has published articles on medieval canon law, Jewish-Christian relations, digital humanities, and the circulation of people, goods, and manuscripts in the premodern world.

We kindly ask those interested in participating in person or online to register here.

Book Event: Antimonopoly and American Democracy

[We have word of the following book event.  DRE]

Antimonopoly and American Democracy, April 22, 2024, 1:30 PM to 03:00 PM.  The Forum at Columbia University, Room 315 (Third Floor), 601 West 125th Street, New York, NY 10027

At this roundtable hosted by the Columbia Center for Political Economy and The Tobin Project, Bill Novak (University of Michigan Law School), an editor and contributor to the book, will join fellow contributors Richard John (Columbia Journalism School), Kate Andrias (Columbia Law School), and Tim Wu (Columbia Law School), to discuss how antimonopoly has figured importantly in the history of American democracy, and what lessons this history may hold for the challenges of market power, economic concentration, and democracy that we confront today. Center Co-Director Suresh Naidu (Columbia University) will moderate the discussion.

[The discussion] will address the deep links between concentrated economic power and durability of meaningful self-governance in American history; the wide range of places where monopoly power was seen as a threat, and the similarly wide range of tools and techniques that people across the society wielded to push back against these perceived threats, especially the ways tools of politics beyond antitrust law have been wielded in democratic politics.

This event is free and open to the public. It will not be livestreamed but is to be recorded and released publicly later.  Register here.

Tuesday, April 16, 2024

OAH Merle Curti Award, Ellis W. Hawley Prize to Penningroth for "Before the Movement"

At the annual meeting of the Organization of American Historians, Dylan Penningroth (UC Berkeley) came away with two big book awards: the Merle Curti Social History Award ("recognizing the best book in American social history") and the Ellis W. Hawley Prize ("recognizing the best book-length historical study of the political economy, politics, or institutions of the United States, in its domestic or international affairs, from the Civil War to the present"). 

His prize-winning book is Before the Movement: The Hidden History of Black Civil Rights (Liveright).

From the Merle Curti Award Committee: 

Beautifully written, deeply researched, and brilliantly argued, Before the Movement shows how Black people used the law in everyday ways that shaped how they lived as people. Through painstaking research in county legal records, Dylan Penningroth, University of California,  Berkeley, shows how Black litigants invoked the right to property and the right to contract to secure civil rights—a process that historians have overlooked because of modern conceptions of civil rights as distinct from private law. But not only did Black people engage with the law as an act of resistance against white supremacy but they also used the law, sometimes against one another, to secure everyday gains. Penningroth urges us to see Black history as more than a story of resistance. This is an agenda-setting book that both transforms how we think and teach about slavery, segregation, and civil rights, and also provides a model for how to use legal sources in social history.

From the Ellis W. Hawley Prize Committee:

In this beautifully written book, Dylan C. Penningroth shows how ordinary African Americans used the law in their everyday lives from the last decades of slavery to the 1970s. Even during the height of Jim Crow, indeed, even during slavery, Black people exercised a wide range of civil rights—what Penningroth calls “the rights of everyday use,” embedded in contract, property, marriage, and inheritance law. Through extensive archival research, conducted in courthouse basements, Penningroth unearths this neglected history of the movement. The book centers the story of Black people who knew, understood, and used the law generations before the mass marches of the 1950s and 1960s. Penningroth also engages readers by weaving in the narrative of his own family. This extraordinary book shifts our focus from federal courts to county courts, and from iconic leaders to ordinary people. Its excavation of the long history of Black legal life will broaden and transform our understanding of African Americans’ fight for justice.

Congratulations to Dylan Penningroth!

-- Karen Tani

Dissertation Prize: European Legal History in Global Perspective

[We have the following announcement.  DRE]

Max Planck–ASLH Dissertation Prize for European Legal History in Global Perspective

Announcement and Deadline for Submissions:  June 1, 2024
The American Society for Legal History (ASLH) is delighted to announce a new dissertation prize: the Max Planck–ASLH Dissertation Prize for European Legal History in Global Perspective.
The prize will honor exceptional dissertations on topics in European legal history in global perspective and presented for PhD or JSD degrees awarded in the previous calendar year. Topics may include European legal interactions with people or places outside Europe, legal processes spanning Europe and other world regions, and developments in legal theory closely related to imperial, transnational, or trans-regional trends.
The prize this year is for dissertations submitted for degrees awarded in 2023. Dissertations must be written in English. The prize recipient will receive a three-month residential fellowship at the Max Planck Institute for Legal History and Legal Theory in Frankfurt. The fellowship includes a monthly stipend, in accordance with the regulations of the Institute’s visitor program, round-trip airfare to Frankfurt (up to €1,500), and accommodation in an institute apartment (valued at €700 per month). Currently, the monthly stipend is €2,500 for scholars with a PhD or JSD, and an additional €100 allowance for mandatory health insurance. The stipend will be offset against other sources of income. The timing of the period in residence at the Max Planck Institute is flexible and will be arranged in consultation with the Institute directors. Typically, the three-month period will take place in the fall or spring within a year or two of the date of the award.
Elements of Submission
(1) Curriculum Vitae (including date of degree);
(2) Plan for Use of Fellowship Time at the Max Planck Institute (up to 500 words);
(3) Dissertation (including abstract); and
(4) Letter from Dissertation Advisor
Please submit items 1-3 in a single pdf. The Dissertation Advisor should submit the letter of recommendation directly.
All application materials should be sent to mpdissertation@aslh.net
The deadline for submissions is June 1, 2024. Only complete submissions will be considered.
Questions? Write to Barbara Welke (welke004@umn.edu)

Monday, April 15, 2024

Doing History After Dobbs

A forum, Doing History After Dobbs: Applications, Implications, and Critiques of Dobbs's Historical Methodology, which originated in a panel at the annual meeting of the American Society for Legal History last fall, is now out in the Yale Law Journal.  The contributions are:

Making History
Melissa Murray

Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Aaron Tang

The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
Reva B. Siegel

The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
Mary Ziegler

History and Tradition’s Equality Problem
Cary Franklin

--Dan Ernst

Saturday, April 13, 2024

Weekend Roundup

  • A report on the chair lecture of Harvard Law School professor Elizabeth P. Kamali, "on the development of 13th century English felony law through the lens of historical artifacts" (Harvard Crimson).
  • The latest podcast in the series of Historical Society of the New York Courts on articles published in Judicial Notice is with John Q. Barrett and Henry “Hank” M. Greenberg on Benjamin N. Cardozo.  “Together, they explore lesser-known stories of Cardozo’s life, emphasizing his sense of humor and his writing style.” 
  • An interview with Annette Gordon-Reed on on Book Banning, Originalism, and "Hamilton" (FM).
  • The ABA Commission on Women has conferred its Margaret Brent Prize on Dolores Atencio, visiting scholar at the University of Denver Latinx Center in the Sturm College of Law, who “created the national legal history project Luminarias de la Ley/Luminaries of the Law™ to identify and chronicle the accomplishments of Latina lawyers.”
  • The New York State Library in Albany will host a webinar, on The Sewing Girl's Tale: A Story of Crime and Consequences in Revolutionary America (Holt, 2022), with the author John Wood Sweet, on Wednesday, April 24, 2024 from noon until 1 pm (New York Almanack).
  • We were interested to learn recently of the archives of the Feminist Legal Theory Project at Emory University.  A presentation by visiting scholar Samuel S. Burry, on the value of the archive for his research is here.
  • We were impressed by a thread illustrating how GPT-4 could be used to modernize a page of an Admiralty Court deposition from 1635 @Marinelives.org
  • In May 2025, the McNeil Center for Early American Studies at the University of Pennsylvania will convene a conference on the theme Where is Early America? The call for papers is available here. 
  • ICYMI: Andrew Silow-Carroll on how a 100-year-old law changed American immigration policy to this day (JTA).  Joan Biskupic went into Justice O’Connor's papers and came out with some documents on the writing of Chevron (CNN).  The truth about the Comstock Act (American Prospect).  That 1864 Arizona abortion law, via the AZ Mirror, NPR, WaPo, and the NYT.  A student on that digital habeas corpus project at the University of Nebraska.  An appreciation of Kellis E. Parker, the first Black professor at Columbia Law School (CLS).

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

Friday, April 12, 2024

Book Launch: Arbitration and Mediation in 19th-Century England

We have word of a book launch for Arbitration and Mediation in Nineteenth-Century England by Francis Calvert Boorman and Rhiannon Markless:

Arbitration and Mediation In Nineteenth-Century England rounds off Derek Roebuck’s series on the history of English arbitration, and is written by his collaborators on the previous volume, English Arbitration and Mediation in the Long Eighteenth Century, Francis Calvert Boorman and Rhiannon Markless. Arbitration remained a vital institution in nineteenth-century England and we investigate how the settlement of disputes changed from the end of the Napoleonic Wars to the Arbitration Act 1889. This was a period of upheaval in the demographics, society and economy of England. The booming population, coupled with urbanisation and the spread of factory production, created newly enriched industrialists, a burgeoning working class and squalid urban conditions. The spread of new technologies such as the railways increased mobility and brought new business organisations and opportunities. England’s production and international trade flourished, along with its imperial ambitions. All of these changes led to new forms of dispute to go with the age-old differences over land and debts, and within families. We explain how arbitration continued to be used and was adapted to suit novel and diverse challenges, including an overloaded legal system, the rise of anonymous credit transactions and an increasingly organised labour movement. We chart the relationship of arbitration to the legal profession and the commercial community, with their differing visions of how arbitration should be structured and regulated. We also describe the expanding use of arbitration as a tool of governance, increasingly included in statutes with both a local and national focus. Finally, we take an international perspective, considering how arbitration was touted as a method to bring peace between nations, but was also deployed in various aspects of the slave trade. Most importantly, we seek to elucidate the varied experiences of both parties, from aristocratic mine-owners to widowed businesswomen, and arbitrators. We show how these arbitrations differed by region and were affected by the gender and class of participants.

The book launch will take place at the Institute of Advanced Legal Studies, School of Advanced Study, University of London at Charles Clore House, 17 Russell Square, London, WC1B 5DR, on Thursday, 9 May 2024, from 6pm.  The authors will introduce and discuss the book in a session chaired by Karyl Nairn KC and including time for questions from the audience.  “A drinks reception will follow.”  Direct questions to development@london.ac.uk.  Reserve your place here.

--Dan Ernst

Thursday, April 11, 2024

Podcast: Goluboff Interviews Nicoletti and Milligan

The University of Virginia School of Law has just posted a new episode in its “Common Law” podcast, a series in which Dean Risa Goluboff discusses recent scholarship with its authors on the UVA faculty.  It is entitled Digging into Our Forgotten Legal History.

In the season’s fifth episode, released Tuesday, Professors Cynthia Nicoletti and Joy Milligan talk with host Dean Risa Goluboff, who is also a legal historian, about two of their articles that share something in common: both show instances of people and institutions using the law to preserve the status quo against movements that were trying to improve conditions for Black Americans.

Yet the professors took distinctly different paths during the process of researching and writing about legal history. The trio discuss their decisions to focus on institutions versus people, “historical forgetting,” how the present affects our ideas of the past and the pitfalls of bringing historical work to bear on today’s concerns.

Nicoletti, the Paul G. Mahoney Research Professor of Law and a professor of history at UVA, discusses her paper “William Henry Trescot: Pardon Broker,” which was published in The Journal of the Civil War Era. The paper won the 2021 George and Ann Richards Prize for the best article published in the journal that year. Trescot, a lawyer and lobbyist for the South Carolina Lowcountry elite whites, helped his clients obtain pardons after the Civil War to avoid having their land redistributed to formerly enslaved people.

Milligan, the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, discusses her paper “Subsidizing Segregation,” published in the Virginia Law Review. The article exposes how the federal government played a role in extending racial segregation and discrimination by funding segregated schools up to 10 years after the Brown v. Board of Education decision outlawed “separate but equal” education.

--Dan Ernst

Wednesday, April 10, 2024

Fadel on Classical Muslim International Law

Mohammad Fadel, University of Toronto Faculty of Law, has published, open access, Sovereignty, Territoriality, and Private International Law in Classical Muslim International Law in the American Journal of Comparative Law:

Scholars in recent years have shown interest in challenging the historical origins of international law and its normative claims to universality. This Article challenges the prevailing conceptions of Islamic international law (al-siyar), first set out in English-language scholarship by Majid Khadduri, as primarily an ad-hoc response to the failed aspiration of a universal Muslim commonwealth. It shows that Islamic international law, in its classical phase (eighth–thirteenth centuries), as first formulated by Iraqi, and later, Central Asian, scholars (who together later came to be known as Hanafis), understood all legal order as being rooted in sovereignty and territoriality, with shared religion a secondary concern. This theory of legal order arose out of an understanding of political order as emerging from a natural and universal condition of war that is incidental to the individual’s natural sovereignty. I trace the genealogy of this conception to the founding moment of the Muslim commonwealth and describe its manifestation in classical Hanafi solutions to a series of cases in “private international law.”

--Dan Ernst

Tuesday, April 9, 2024

Tully, "The Unenumerated Power"

Caitlin B. Tully (Golieb Fellow, New York University Law) has posted "The Unenumerated Power." The article is forthcoming in Volume 111 of the Virginia Law Review (2025). The abstract:

Scholars and courts have long viewed unenumerated powers and rights as constitutionally dubious. This skepticism has produced far-ranging effects: most recently, it has undergirded the Court’s invalidation of privacy rights. Many others have contested the presumption against unenumerated law, including a recent wave of scholarship which criticizes “enumerationism.” These efforts have been hampered, however, by the fact that they are unable to point to a concrete example of a tacit power or right that is entirely independent from an enumerated power or right.

This Article demonstrates – for the first time – that at least one such power exists: the power to charter corporations. Trillions of dollars circulate through the federal corporate form. Yet scholars often assume that the Constitution has nothing to say about corporations. The doctrine of federal incorporation, meanwhile, is confused: courts analogize federal corporations to state corporations or federal agencies, despite obvious inconsistencies, or avoid them altogether. As this Article demonstrates, however, the Framers understood the power to charter as an independent power with its own prerogatives and limits, and there was little doubt about the power’s constitutionality following ratification. In fact, as this Article shows, the Marshall Court constructed doctrine defining this pre-existing power across three cases: Dartmouth College v. Woodward, McCulloch v. Maryland, and Osborn v. Bank of the United States, establishing an independent threshold for the creation of federal corporations: “constitutional” purpose. Congress has effectively relied on this tacit, but independent, legal power for over two centuries.

This Article provides the first comprehensive account of the doctrine of federal incorporation and its current use, as well as an index of all federal corporations from the Founding to the present. In addition, this Article makes two important interventions. First, by clarifying the legal basis of federal incorporation, the existence of the charter power may offer alternative rationales for the constitutionality of federal legislation; alternatives to existing constructions of administrative law; and a coherent way to analyze large transactions which currently defy categorization. Second, as the current Court considers whether to invalidate existing jurisprudence which endorses “implied” rights, the existence of the charter power cuts against the theoretical case for doing so. Challenging the presumption against the legitimacy of unenumerated powers and rights, the charter power demonstrates that, in at least one case, a “silent” power was concrete, constrained, and original. 

The full article is available here.

-- Karen Tani

Ohanian on the Cardozo-[Cuthbert] Pound Correspondence

Edward J. Ohanian, Assistant Deputy Clerk at the New York State Court of Appeals, has posted Letters from Cardozo to Pound, in the Albany Law Review.  From the introduction:

Benjamin N. Cardozo (NYPL)
Judges Benjamin N. Cardozo and Cuthbert W. Pound are towering figures in the landscape of New York jurisprudence. A descendent of Pound donated to the New York State Court of Appeals (the Court) correspondence from Cardozo to Pound spanning the period from 1932-1934 when Cardozo sat on the United States Supreme Court (the Supreme Court), and Pound served as Chief Judge of the Court—having been appointed by Governor Franklin D. Roosevelt to succeed Cardozo in that role upon Cardozo's appointment to the nation's high court. These missives, penned in an endearing and witty style characteristic of Cardozo's private correspondence, shed light on both Cardozo's sentiments upon leaving the Court to assume his new role in Washington—along with his well-documented preference for Eagle Street—and the enduring friendship and mutual admiration between Cardozo and Pound.

--Dan Ernst.  M/t: JQB

Historians' Brief in Trump v. United States

Brief of Amici Curiae Scholars of the Founding Era in Support of Respondent”is out in Trump v. United States (U.S. No. 23-939).  Part 1 argues that “Petitioner’s Immunity Claim Contravenes Overwhelming Historical Evidence of a Founding Generation Concerned with Abuse of Executive Power.”  The signatories are Holly Brewer, Rosemarie Zagarri, Jack N. Rakove, Jonathan Gienapp, Jane Manners, Gautham Rao, Saul Cornell, Alexander Keyssar, Jane E. Calvert, Joanne Freeman, David Konig, Jill Lepore, Peter S. Onuf, Michael A. Ross, and Alan Taylor.

--Dan Ernst

Monday, April 8, 2024

Knowles-Gardner on NAACP v. Alabama ex rel. Patterson

Helen J. Knowles-Gardner, Institute for Free Speech, has posted The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP:

Harry Kalven (wiki)
Sixty years ago, on Wednesday April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized NAACP v. Alabama ex rel. Patterson (1958) as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, this article argues that Kalven’s categorization of Patterson (and the three other U.S. Supreme Court rulings it ultimately took to ensure Alabama’s compliance with the 1958 decision) was mistaken. Instead, the litigation was designed and intended to put the NAACP out of business (which, in Alabama, it did for eight years).

Part of an extensive research project focused on the history of this protracted litigation, this article is narrowly focused on the two years leading up to, and the first few months following, the June 1, 1956, injunction preventing the NAACP from doing business in the state that Alabama’s Attorney General John Patterson secured from Montgomery County Circuit Court Judge Walter B. Jones. Ultimately, that injunction led to an effort to compel the NAACP to turn over its Alabama membership lists to the Attorney General. To borrow and only slightly change Jason Robards’s famous line in All The President’s Men, nothing was riding on this litigation except the First Amendment, which guarantees the right to peaceably assemble, and the future of the country.
--Dan Ernst

Saturday, April 6, 2024

Weekend Roundup

  • Penn Law Dean Sophia Lee discusses "her work as a legal scholar and historian of administrative law" (Regulatory Review).  And outgoing UVA Law Dean Risa Goluboff reflects on her tenure (UVA Today).
  • Congratulations to Bethany Berger upon her receipt of the Perry Zirkel ’76 Distinguished Teaching Award at UConn Law (UConn Today).
  • Jacob Coffelt  University of Padova, on Codifying IHL before Lieber and Dunant: the 1820 treaty for the regularization of war (Humanitarian Law & Policy).
  • Joy Milligan and Bertrall Ross, UVA Law, “discuss how we should interpret a Constitution that was not written for or drafted by ‘We the People,” on the Sidebar podcast.
  • Prairie View A&M history professor Ronald Goodwin discussed the early Republic and how Americans tried to define equality and interpret the Constitution in the first decades of the United States. (C-SPAN)
  • Jedidiah Kroncke reviews Aziz Rana's The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (Jotwell).
  • George Fisher, Stanford Law School , discusses his latest book, Beware Euphoria: The Moral Roots and Racial Myths of Today’s War on Drugs, a history of criminal law and criminal institutions, including the regulation of alcohol and drugs (Legal Aggregate).
  • The April 2024 issue of the Newsletter of the Historical Society of the DC Circuit is now available
  • ICYMI:  Judge John Bush of the US Court of Appeals for the Sixth Circuit said the originalist approach to interpreting text “is consistent with, and indeed will thrive” with advancements in AI (Bloomberg).  Mississippi’s Jim Crow Laws Still Haunt Black Voters Today  (Marshall Project). Sponsors of removed historical marker dedicated to Elizabeth Gurley Flynn ask judge to reconsider (Concord Monitor).
  • ICYMI, April Fools Edition: Dueling, the Second Amendment, and the Fifth Circuit (Dorf on Law). 

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

Friday, April 5, 2024

Springer on Contracts and Homophile Legal Strategy

Jackson Springer, a 3L at Columbia Law School, has published his note, Contracts and Homophile Legal Strategy, in the Columbia Law Review.

One Magazine (USC)
Law was central to the homophile movement, the main movement for queer rights between World War II and Stonewall. But examinations of this movement’s engagement with law have exclusively focused on public law. Private law has received virtually no attention. This Note corrects that oversight. It unearths instances in which groups advocating for queer rights invoked contract law during the 1950s and 1960s. These moments reveal contract law’s important—and previously overlooked—role in homophile legal strategy.

Homophile groups’ use of contract law changed over the two decades of the movement. During the 1950s, those in the homophile movement used contract law to avoid legal disputes—a sort of “preventative law” that shielded queer people from the outside world’s scrutiny. But after the movement’s militarization in the early 1960s, queer organizations began making affirmative claims based in contract law. These claims served two purposes. On one hand, they were a tool queer people used to protect their public law rights when those rights were under attack. But organizations also saw the assertion of contract law rights as a goal itself—a key part of queer people’s growing rights consciousness.

This Note thus gives contract law its rightful due in the history of homophile legal strategy. Its findings demonstrate that private law should play a larger role in both our study of social movements’ legal strategy and our vision of a future in which marginalized groups have full equality under the law.
The Note draws upon the archives of ONE Magazine, “the United States’ first widely distributed queer publication.”

--Dan Ernst

ICS Seminar: Legal History of the Warren Court

Earl Warren (Bancroft)
 [We have the following announcement.  DRE]

The Institute for Constitutional Studies is pleased to announce another seminar for advanced graduate students and junior faculty, Legal History of the Warren Court.  

InstructorBrad Snyder is a Professor of Law at Georgetown University Law Center. He teaches Constitutional Law I & II, Constitutional History, Civil Procedure, Sports Law, Legal Justice, and a seminar on the Warren Court. He is the author of Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, The House of Truth: A Washington Political Salon and the Foundations of American Liberalism, A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports, Beyond the Shadow of the Senators: The Untold Story of the Homestead Grays and the Integration of Baseball, and The Bondage of Irrational Fears: Angelo Herndon’s Fight for Freedom (forthcoming January 2025).

Program Content.  This seven-session seminar looks at the Warren Court from a historical perspective. Guided by articles by legal historians, we will explore the Court’s major cases and issues in their historical and political context: school desegregation, the Little Rock school crisis, denaturalization, access to justice, prayer in schools, redistricting, civil rights sit-ins/freedom of the press, right to privacy/access to contraception, criminal justice, and interracial marriage. We will also discuss the strong personalities and jurisprudential philosophies of the Justices and how alliances, conflicts, and new Justices affected the Court’s decisionmaking.

Logistics.  Meeting Time: Monday evenings, 6-8 pm.  Dates: August 26; September 9, 16, 23, and 30; October 7, and 21, 2024.  Location: The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until June 30, 2024. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information
. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.