Saturday, June 29, 2024

Weekend Roundup

  • In the Talking about Methods podcast series over at Frontiers of Socio-Legal Studies, Linda Mulcahy talks to Michael Lobban, All Souls College, Oxford, about working with archives as a legal historian.
  • The commentaries continue on the U.S. Supreme Court's use of history (and various reflections on the use of history in judicial decisionmaking) in the recently decided Second Amendment case United States v. Rahimi: Eric Segall at Dorf on Law; Mark Tushnet at Balkinization; Jennifer Tucker at CNN; Saul Cornell at Slate.
  • "Australia’s first civilian jury was entirely female. Here’s how ‘juries of matrons’ shaped our legal history," by Alice Neikirk, University of Newcastle (The Conversation).
  • Balkinization is hosting a symposium on Mark A. Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).  The first posts are by Anne Twitty, David S. Schwartz, and Evan D. Bernick.
  • Queens University has noted the prizes won by two of its doctoral candidates.  Michael Borsk received two awards for his article, “Conveyance to Kin: Property, Preemption, and Indigenous Nations in North America, 1763-1822,” William and Mary Quarterly 80, no. 1 (January 2023): 87-124.  They are the Peter Oliver Prize in Canadian Legal History from the Osgoode Society for Canadian Legal History, awarded to the best published work by a student, and the 2024 Jean-Marie Fecteau Prize by the Canadian Historical Association, awarded to the best article published in a peer-reviewed journal.  Margaret Ross won the best article prize awarded by the Canadian Committee on the History of Sexuality for her article, “‘Your Town Is Rotten’: Prostitution, Profit, and the Governing of Vice in Kingston, Ontario, 1860s–1920s,” Journal of the History of Sexuality 32 (May 2023).
  • ICYMI:  Washington [State's] legal history, including West Coast Hotel v. Parrish, captured in murals for a Wenatchee courtroom (NCWLIFE). John A. Lupton on John Doe and Richard RoeMark Tushnet thinks some more about originalism (after stopping trying to make sense of originalism) (X).  Blake Emerson puts Jarkesy in historical context (Marketplace).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 28, 2024

AJLH 64:1

American Journal of Legal History 64:1 (March 2024) is now published online.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States
Angus Harwood Brown

Alexander Hamilton’s Constitutional Jurisprudence and the Bank Bill
Peter Charles Hoffer

Letter Writing and Legal Consciousness during World War I
Elizabeth A Hoffmann

Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England
Nicholas Sinanis

A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea
Marie Seong-Hak Kim

--Dan Ernst

Mossoff on Injunctions for Patent Infringement

Adam Mossoff, George Mason University Antonin Scalia Law School, has posted Injunctions for Patent Infringement: Historical Equity Practice Between 1790-1882:

A significant debate in patent law today concerns what remedy a patent owner may receive when a court finds a defendant liable for patent infringement. In eBay v. MercExchange (2006), the Supreme Court held that courts must use a “four-factor test historically employed by courts” for issuing injunctions that represented a “long tradition of equity practice.” Chief Justice John Roberts further claimed in a concurrence that, from “the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases.”

Both of these historical claims are conventional wisdom today in law and scholarship, and both claims are empirically unverified. This article tests both historical claims in reporting the results of a database of 899 opinions in which federal courts sat in equity in patent lawsuits. The database comprises opinions by trial courts and appellate courts in lawsuits filed between 1790 and 1880 that are compiled in the Federal Cases reporter.

The database confirms and challenges the conventional wisdom. First, eBay is wrong: there was no four-factor test in the “long tradition of equity practice” in patent cases. In the 899 opinions, no judge applied a four-factor test in granting an injunction, either for a permanent or a preliminary injunction. Second, Chief Justice Roberts is correct: courts did grant permanent injunctions in a vast majority of cases as a remedy for patent infringement. In the 899 opinions, courts awarded permanent injunctions in 93.7% of the cases in which a defendant infringed a valid patent. Given the stark absence of a four-factor test, the article concludes by describing the historical equitable jurisprudence applied by federal courts. Based on the opinions, it describes how courts applied the same equitable doctrines and principles in patent cases as in redressing continuing trespasses of real property, protecting patents as much as they protected real estate and other property interests.

--Dan Ernst

Saucedo's "Poulterers’ Case"

Victor Saucedo, Universidad Carlos III de Madrid, has posted a book-length, thoroughly and extensively introduced edition of the testimony of a landmark case, entitled, The Poulterers’ Case (1611): A Landmark in the History of Criminal Conspiracy:

Every student of criminal law knows for a fact that the Poulterers' Case (1611) launched modern criminal conspiracy. This decision laid the first stone of the principle that an agreement to commit a crime is also a crime. However, besides what the law reports say, little is known about the facts of the case. This edition of the testimonies collected by the Star Chamber intends to fill this gap. Additionally, an introductory study will discuss how these facts shed new light on the reasons that were mustered in support of the decision. It will also argue that modern conspiracy was not a creation of the courts but rather of the nineteenth-century scholars who turned the Poulterers' Case into a landmark case.

Update: Saucedo has also posted a separate monograph, Conspiracy. A Conceptual Genealogy (Thirteenth to Early Eighteenth Century)

--Dan Ernst

Parrillo Replies to Critics on Nondelegation at the Founding

Nicholas R. Parrillo, Yale Law School, has posted Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics, which appears in the Drake Law Review 71 (2024): 367-434

Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings.

This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.
--Dan Ernst

Thursday, June 27, 2024

Amann on the Woman Acquitted at Nuremberg

Diane Marie Amann, University of Georgia School of Law, has posted Inge Viermetz, Woman Acquitted at Nuremberg:

Inge Viermetz (wiki)
Conventional narratives tend to represent the post-World War II international criminal proceedings as a men’s project, thus obscuring the many women who participated, as lawyers, journalists, analysts, interpreters, witnesses, and defendants. Indeed, two women stood trial before Nuremberg Military Tribunals. This article examines the case of the only woman found not-guilty: Inge Viermetz, who had been an administrator at Lebensborn, the Nazi SS adoption and placement agency. The article outlines the prosecution’s child-taking case against Viermetz, as well as her successful gendered self-portrayal as a conventionally feminine caregiver. With references to Professor Megan A. Fairlie, at whose memorial symposium it was presented, the article concludes by considering contemporary implications of this acquittal at Nuremberg.

--Dan Ernst

Wednesday, June 26, 2024

Lanham on the NYC Draft Riots and the Equal Protection Clause

Andrew J. Lanham, a Climenko Fellow and Lecturer on Law, Harvard Law School, has published “Protection for Every Class of Citizens”: The New York City Draft Riots of 1863, the Equal Protection Clause, and the Government’s Duty to Protect Civil Rights, in the UC Irvine Law Review 13 (December 2023): 1067-1118:

Burning of the 2d Avenue Armory (NYPL)
This Article examines an important but little-noticed moment in the intellectual history of the Equal Protection Clause: the New York City draft riots of 1863. In mid-July of that year, New York was engulfed by a weeklong riot against the Union military draft, as mobs of predominantly working-class white men beat and murdered Black New Yorkers, looted and burned stores and government buildings, and battled the police in the streets. The scale and intensity of the violence foreshadowed the white supremacist terrorism that subsequently consumed the postwar South. In the wake of the draft riots, though, New York City embarked on a remarkable project of remediation, mobilizing a variety of legal processes as it prosecuted rioters, paid civil damages to riot victims, raised philanthropic funds to provide free legal aid, charged police officers with dereliction of duty, and published extensive volumes of witness testimony to build a record of the events. Those measures anticipated the wider legal efforts at racial redress that were made during Reconstruction, and they also resonate with urgent debates about civil rights protections, racial justice, and police accountability today.

Crucially, moreover, as this remedial process unfolded in New York, a powerful discourse of equality took shape, and it sheds new light on the meaning of the Equal Protection Clause. In particular, it demonstrates that the idea of equal protection in 1863 included affirmative duties for the government to protect its people against harms caused by private parties, which stands in sharp contrast to the limitations on equal protection law set by the modern state action doctrine. Republican leaders in New York City, for example, promised to “protect” Black New Yorkers’ “full and equal right[s]” and “call[ed] upon the proper authorities to take immediate steps to afford them such protection,” while the Board of Police Commissioners charged one of its own officers, Sergeant Jones, with failing to provide “protection for every class of citizens[,] black or white, rich or poor,” during the draft riots. Sergeant Jones’s trial was then covered in the press under the front-page headline “Equal Protection Under the Law,” directly linking the affirmative duty to guarantee “protection for every class of citizens” with the “Equal Protection” vocabulary that would be written into the Fourteenth Amendment just over two years later. Rereading the Fourteenth Amendment in the context of the New York City draft riots, this Article therefore argues that the state action doctrine is an anachronism and that a much broader vision of equality, equal rights, and antidiscrimination law resides within the Equal Protection Clause.

--Dan Ernst

Tuesday, June 25, 2024

Smith on Emancipation in Roman Law

Lionel Smith, Cambridge University, has posted From Mancipatio to Emancipation in Roman Law, which appears in Revue du Notariat 124 (2024): 347-60:

This text was produced as a contribution to a series of seminars entitled Emancip(ense): penser l’émancipation en droit privé (‘Thinking about emancipation in private law’), which took place in 2021-23 and which was co-organized by the Groupe de réflexion en droit privé and the Groupe de recherche sur les humanités juridiques. In the modern civilian tradition, "emancipation" refers to the acquisition of some or all of the incidents of full legal capacity by a person who has not reached the age of majority. This short text traces the development of emancipation in Roman law through the adaptation of an institution of property law, exploring in the process the links between family law and property law in ancient Rome. It argues that in the Roman understanding of one of the most ancient written texts of law, found in the XII Tables, we can see a feature that is in common with modern law, both in the common law and the civil law: when a person acquires a legal power for an other-regarding purpose, they do not hold that power as patrimonial wealth, but on the contrary the power can be taken away if it is misused.
--Dan Ernst

Monday, June 24, 2024

Monday Roundup

  • Holly Brewer, University of Maryland, and Laura Edwards, Princeton University, on Rahimi (Washington Monthly).
  • Jill Lepore, Harvard University, on the history of the U.S. Constitution (NPR). 
  • John Fabian Witt, Yale Law School, review Aziz Rana's Constitutional Bind (New Republic).

--Dan Ernst

Hoffer's "Supreme Court Footnote"

Peter Charles Hoffer, University of Georgia, has published The Supreme Court Footnote: A Surprising History (NYU Press):

In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail emerged: over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice.

The Supreme Court Footnote
offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time.

At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.

--Dan Ernst

Saturday, June 22, 2024

Weekend Roundup

  • Justin Simard, Michigan State University Law School, on the Citing Slavery Project (The Conversation).
  • Giuliana Perrone, UC Santa Barbara, from Juneteenth to Reparations (The Current).
  • Amy Hart, UC Davis, says historians have a difficult task in guiding Supreme Court justices because 2024 is not 1789 or 1866 (The Conversation).
  • The National Constitution Center honors the civil rights lawyer William T. Coleman, Jr., with a bronze bas-relief (WHYY).
  • A historical marker for Emma Coger, refused a seat at a table of white women on the steamboat S.S. Merrill, despite her first-class ticket, in 1872 (Quincy, IL Herald-Whig).
  • As Vanderbilt Law’s George Barrett Social Justice Lecture, Sara Mayeux and Robert L. Tsai discuss Tsai's Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (Norton 2024) (YouTube).
  • Undergraduates can again research slavery cases this summer in the University of Nebraska–Lincoln’s Center for Digital Research in the Humanities, led by Katrina Jagodinsky (Nebraska Today).
  • The Lawbook Exchange's June 2024 catalogue of Scholarly Law and Legal History is here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 21, 2024

Schizer and Calabresi's Originalist Analysis of the Wealth Tax

David M. Schizer, Columbia Law School, and Steven G. Calabresi, Northwestern University Pritzker School of Law, have posted Wealth Taxes Under the Constitution: An Originalist Analysis:

A federal wealth tax is high on the wish list of progressive icons like Elizabeth Warren and Bernie Sanders, but is it constitutional? This Article shows that it is a "direct tax," which must be apportioned among the states. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states each have three percent of the population, each must provide three percent of the revenue from a wealth tax. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share. To rescue wealth taxes from apportionment, distinguished commentators have offered a range of theories. For example, some treat apportionment as a mistake, while others dismiss it as a protection for the shameful institution of slavery.

But these commentators do not give the Framers enough credit. The taxing power was too important for them to be sloppy or to focus only on the institution of slavery. In our view, the taxing power reflects the same influences as the rest of the Constitution. Like the new government’s other features, the taxing power was supposed to be effective but limited. The Framers wanted to solve the fundamental problem under the Articles of Confederation (insufficient revenue), without recreating the fundamental problem under imperial rule (taxation without representation). Specifically, they sought to discourage what we call “fiscal raids,” in which states join forces to enact national taxes that mostly burden other states. As Professors Ackerman and Amar have shown, this risk could arise with an unapportioned tax on enslaved persons, since it would have been collected mainly in the South. But we show that the same was true of other region-specific practices, such as tobacco plantations and undeveloped land in the South, as well as ships, timber, farms, and manufacturing in the North. Apportionment was supposed to protect all these region-specific assets from fiscal raids.

In pursuing these various goals, what did the Framers mean by a “direct tax”? They considered a tax “direct” if it applied to taxpayers themselves, instead of to their transactions. A direct tax could be triggered merely by residing in the jurisdiction or owning property. In contrast, taxes on transactions—including on imports (“imposts”) and on domestic production and consumption (“excises”)—did not have to be apportioned. Admittedly, some courts and commentators have offered the narrower interpretation that “direct” is limited to head taxes and real estate taxes. But at ratifying conventions, John Marshall, Oliver Ellsworth, and other Framers offered a broader definition, which included livestock, business assets, and other personal property. Dicta in an early case, Hylton v. United States offered the narrower interpretation (head and land taxes), but the holding can be reconciled plausibly (although not perfectly) with our interpretation, while most other Supreme Court cases on the Direct Tax Clause align with our reading.

--Dan Ernst

Ward's "Reformation of the Constitution"

Ian Ward, Newcastle University, has published The Reformation of the Constitution: Law, Culture and Conflict in Jacobean England (Hart/Bloomsbury):

This book revisits one of the defining judicial engagements in English legal history.

It provides a fresh account of the years 1606 to 1616 which witnessed a series of increasingly volatile confrontations between, on the one side, King James I and his Attorney-General, Sir Francis Bacon, and on the other, Sir Edward Coke, successively Chief Justice of Common Pleas and Lord Chief Justice.

At the heart of the dispute were differing opinions regarding the nature of kingship and the reach of prerogative in reformation England. Appreciating the longer context, in the summer of 1616 King James appealed for a reformation of law and constitution to complement the reformation of his Church.

Later historians would discern in these debates the seeding of a century of revolution, followed by another four centuries of reform. This book ventures the further thought that the arguments which echoed around Westminster Hall in the first years of the seventeenth century have lost little of their resonance half a millennium on. Breaks with Rome are little easier to "get done," the margins of executive governance little easier to draw.
If lawyers in common-law countries have an origin story for the Rule of Law, it is the very controversy Ward relates in the revealing context of the English Reformation.

–Dan Ernst

Thursday, June 20, 2024

Özsu's "Completing Humanity"

Umut Özsu, Carleton University,has published Completing Humanity: The International Law of Decolonization, 1960–82 (Cambridge University Press):

After the Second World War, the dissolution of European empires and emergence of 'new states' in Asia, Africa, Oceania, and elsewhere necessitated large-scale structural changes in international legal order. In Completing Humanity, Umut Özsu recounts the history of the struggle to transform international law during the twentieth century's last major wave of decolonization. Commencing in 1960, with the General Assembly's landmark decolonization resolution, and concluding in 1982, with the close of the third UN Conference on the Law of the Sea and the onset of the Latin American debt crisis, the book examines the work of elite international lawyers from newly independent states alongside that of international law specialists from "First World" and socialist states. A study in modifications to legal theory and doctrine over time, it documents and reassesses post-1945 decolonization from the standpoint of the 'Third World' and the jurists who elaborated and defended its interests.

Among the endorsements:

"In his stunning and unprecedented book, Umut Özsu describes the ambition and breadth of the decolonizing agenda — and why international law mattered so much to it – while probing the impasses, limits, and resistance that foiled it. An accessible and dramatic story, Completing Humanity is based on exemplary learning and overflowing with insight and provocation: the most significant and sophisticated contribution to the history of international law written in many years."

Samuel Moyn, Yale University

--Dan Ernst

Moffitt on the Cayuse Five and Formal Responses to Historical Injustices

Michael L. Moffitt (University of Oregon School of Law) has posted "Truth. Regardless of Reconciliation?" The abstract:

Formal responses to historical injustices have typically taken one of two fundamental forms in the past hundred years. The first form is familiar to legal systems—a retributive process in which an adjudicative body measures the conduct of alleged wrongdoers against some set of established standards (think Nuremberg Trials). The second form is often labeled “alternative,” particularly in Western legal systems, despite its long history and increasing prevalence within the past few generations. It focuses on broad inclusion, shared responsibility for the outcomes, and a forward-looking perspective on the next steps beyond or in lieu of traditional criminal sanctions (think South Africa’s Truth and Reconciliation Commissions). Some cases of historical injustice on larger timescales, however, do not lend themselves neatly to either of these basic models. Sometimes, clarifying foundational factual matters is essential, but testimony by people with first-hand knowledge of the incidents in question is impossible. What then? This Article takes up the case of the 1850 wrongful execution of five Cayuse Indians, men who became known as the Cayuse Five. The Five had been convicted of murdering Dr. Marcus Whitman in 1847, in what would eventually become the Oregon Territory. Their conviction came despite considerable evidence that some or all had no direct involvement, after a deeply problematic trial. Where the Five were buried is unknown, and that fact stands in the way of repatriation. The ongoing search for their burial location sits astride the prospect of a non-adjudicative process aimed at reconciliation, justice, healing, or whatever the living may deem the best course of action. The Article provides background on the undertold history of the Cayuse and white settlers in the mid-nineteenth century and then notes the ongoing significance of the fact that the burial locations of the Cayuse Five remain unknown. The Article then argues that although this work is not focused on resolution, it nonetheless belongs under the broad umbrella of dispute resolution, peacemaking, and conflict resolution. The Tribe’s ongoing search (as well as the assistance others are providing to them) is best understood through the lenses of ethics and practice within dispute resolution—even though the search does not share the familiar trappings of classic reconciliation or restorative processes. 

The full paper is available here.

-- Karen Tani

Wednesday, June 19, 2024

Hamilton, "A Widow's Vengeance after the Wars of Religion"

A belated notice that Oxford University Press has published A Widow's Vengeance after the Wars of Religion (2023), by Tom Hamilton (Durham University). A description from the Press:

Paris, 1599. At the end of the French Wars of Religion, the widow Renée Chevalier instigated the prosecution of the military captain Mathurin Delacanche, who had committed multiple acts of rape, homicide, and theft against the villagers who lived around her château near the cathedral city of Sens. But how could Chevalier win her case when King Henri IV's Edict of Nantes ordered that the recent troubles should be forgotten as 'things that had never been'?

A Widow's Vengeance after the Wars of Religion is a dramatic account of the impact of the troubles on daily life. Based on neglected archival sources and an exceptional criminal trial, it recovers the experiences of women, peasants, and foot soldiers, who are marginalized in most historical studies.

Tom Hamilton shows how this trial contributed to a wider struggle for justice and an end to violence in postwar France. People throughout the society of the Old Regime did not consider rape and pillage as inevitable consequences of war, and denounced soldiers' illicit violence when they were given the chance. As a result, the early modern laws of war need to be understood not only as the idealistic invention of great legal thinkers, but also as a practical framework that enabled magistrates to do justice for plaintiffs and witnesses, like Chevalier and the villagers who lived under her protection.

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

-- Karen Tani

Tuesday, June 18, 2024

European and Latin American Experiences from a Legal Historical Perspective

An initial volume of Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective (2023), edited by Peter Collin and Agustin Casagrande and devoted to "Fundamental Questions" has been published open access in the Global Perspectives on Legal History series of the Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie:

The principle of equality is one of the cornerstones of modern legal systems. Modern law is based on equality, and therefore assumed to stand in sharp contrast to the law of pre-modern, estates-based societies characterised by special legal regimes for particular groups or individuals. However, it is worth asking if this dichotomy can perhaps only be maintained if one looks solely at the fundamental postulates and the major codifications with their equality-orientated system formations. ‘Modernity’, too, is highly socially differentiated and continues or transforms ‘pre-modern’ distinctions to a not inconsiderable extent. All of this is often reflected in special rules created by the state or by the groups themselves – even if, in the latter case, they are often not recognised as law.

In this volume, the term ‘diversity’ denotes constellations of social difference that are relevant to normativity. This understanding of diversity only partially overlaps with the categories of postmodern diversity discourses. Rather, this volume’s central questions ask what social differences are relevant to normativity, to what extent and in what respect. Or, to relate it more specifically to the relationship between law and diversity: which social differences also make a difference to the law?

A comparative look at European and non-European developments provides a broader perspective on these issues. In this context, Latin America is a particularly fruitful field of investigation. On the one hand, a translation of European legal traditions already took place during the colonial period and, after independence, Latin American states striving for modernity often took recourse to European legal ideas and regulatory models. On the other hand, the legacy of the colonial past continued to have a formative influence, and the social differentiation to which the law had to respond was largely different from that in European societies.

To ensure that bringing together European and Latin American perspectives did not result in a series of mere juxtapositions, the contributions on the development of a specific national legal system are accompanied by comments written by experts on other national legal systems. These comments, firstly, outline the comparative development in a different state and, secondly, highlight differences and similarities. European and Latin American authors alternate. The period under discussion is the last 200 years.  

In volume 1, the authors deal with fundamental questions of law and diversity. Further volumes on public law, private law and criminal law will follow.

--Dan Ernst

Monday, June 17, 2024

Vanatta, "Plastic Capitalism: Banks, Credit Cards, and the End of Financial Control"

Yale University Press has published Plastic Capitalism: Banks, Credit Cards, and the End of Financial Control (2024), by Sean Vanatta (University of Glasgow). A description from the Press:

American households are awash in expensive credit card debt. But where did all this debt come from? In this history of the rise of postwar American finance, Sean H. Vanatta shows how bankers created our credit card economy and, with it, the indebted nation we know today.

America’s consumer debt machine was not inevitable. In the years after World War II, state and federal regulations ensured that many Americans enjoyed safe banks and inexpensive credit. Bankers, though, grew restless amid restrictive rules that made profits scarce. They experimented with new services and new technologies. They settled on credit cards, and in the 1960s mailed out reams of high-interest plastic to build a debt industry from scratch.

In the 1960s and ’70s consumers fought back, using federal and state policy to make credit cards safer and more affordable. But bankers found ways to work around local rules. Beginning in 1980, Citibank and its peers relocated their card plans to South Dakota and Delaware, states with the weakest consumer regulations, creating “on-shore” financial havens and drawing consumers into an exploitative credit economy over which they had little control. We live in the world these bankers made.

An additional author note for readers of this blog: "Plastic Capitalism is fundamentally a history of how stakeholders used law—and especially state law—to structure consumer financial markets through the post-World War II era. It also shows how American bankers, through financial innovation and clever lawyering (including a cameo by Robert Bork), broke down the system of regulatory federalism that had restrained finance since the New Deal."

From the reviewers:

“Sean Vanatta’s remarkable Plastic Capitalism is the finest account we have yet of the rise of the now-ubiquitous credit card and the steady expansion of its role in American capitalism and in our own financial lives. In a narrative history that draws on deep archival research, Vanatta shows clearly how our financial technologies and economic world are built by law and politics, instead of emerging through consumer desire.”—Kimberly Phillips-Fein

“Vanatta illuminates the complex tapestry that is the US financial system by following one important thread—the history of the credit card industry. In this way he provides a novel and compelling account of how bankers made use of our divided federal system of government to break free of the constraints imposed on them by New Deal regulation. The mountains of credit card debt under which American households have come to labor was the unhappy result.”—Naomi Lamoreaux

More information is available here.

-- Karen Tani

Saturday, June 15, 2024

Weekend Roundup

  • Wisconsin Lawyer continues its series Women History Makers with a profile of Jo Deen Lowe, chief judge of the Ho-Chunk Nation Trial Court.
  • ICYMI: A Brief History of the Phrase No One is above the Law" (NYT).  Magna Carta: The Atlantic Crossing (History Today). New research shows how white women profited from slavery, too (The Conversation).

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

Friday, June 14, 2024

Rothschild, "The Origins of the Major Questions Doctrine"

Rachel Rothschild (University of Michigan Law) has posted "The Origins of the Major Questions Doctrine." The abstract:

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first, paradigmatic example of this line of cases is the 1980 “benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the toxic chemical benzene.

This paper argues that we cannot make sense of contemporary debates about the major questions doctrine without a deep understanding of the doctrine’s supposed origins in the benzene case. It relies on hundreds of archival documents and a dozen oral histories collected over several years to provide a historical study of the decision and its aftermath. No other legal scholars or historians have analyzed these materials, which the author amassed from Freedom of Information Act requests as well as visits to government and university archives. They include internal agency documents, court records, and the personal papers of multiple Supreme Court Justices involved in the benzene decision.

Based on this novel set of materials and interviews, the article shows that the Justices’ misunderstanding of OSHA’s scientific evidence and fears of overregulation led them to demand that the agency use a specific analytical method to demonstrate benzene’s harms in order to avoid a constitutional delegation problem. Yet OSHA had decided not to utilize the method – now called quantitative risk assessment – because of insufficient data. The court instead deferred to industry-funded experts with little or no background in environmental and public health research, who argued that the method could be used and would reveal that the rule saved very few lives. The Justices’ embrace of quantitative risk assessment contradicted Congress’s clear desire to avoid industry influence over public health research when passing the OSH Act as well as judicial precedent on deferring to agencies working at the frontiers of scientific knowledge.

Rather than upholding separation of powers principles or agency adherence to the text of its authorizing statute, the Supreme Court’s benzene decision is best characterized as a judicial power grab at the expense of both agency expertise and the democratically elected branches of government. The paper concludes by showing how the Supreme Court’s missteps in the benzene case – exaggeration of economic costs, ignoring statutory constraints on agency discretion, and deferring to unqualified experts – have continued to plague the Supreme Court’s “major questions” decisions, and provides suggestions for how the courts and agencies can avoid these problems.

The full paper is available here.

-- Karen Tani

Thursday, June 13, 2024

Russell on Models of Dispute Resolution and Street Railway Claims

Thomas D. Russell, University of Denver, Sturm College of Law, as posted Claims on the Tracks:

A Trip Down Market Street, 2016 (Upchurch)
Using original empirical evidence, this Article challenges the prevailing conception of a “dispute pyramid”—a smooth process of attrition from personal injury through claiming to litigation. Instead, I argue for the metaphor of a “salmon run,” with huge drop-offs from the levels of injuries to claims and, especially, to litigation.

As support for the proposed model, the Article analyzes the claims department records of Alameda County’s principal street railway company during the early twentieth century. Using data drawn from archival records of the street railway company’s attorney, Harmon Bell, the Article examines the operation of the street railway’s claims department in detail. This never-before-assembled data reveals the hidden operation of the systems of claims compensation within an industry that injured approximately one in 331 urban Americans in 1907. For a sense of the street scene, see this video of San Francisco in April 1906.

The assembled data include all the personal injury suits filed in Alameda County’s Superior Court, all appellate cases involving the street railway company, and other sources concerning the street railway industry. In particular, the Article describes the relationship between the amount paid through the claims department and the amount paid in Superior Court judgments and costs. The average payments that successful claimants received were tiny, averaging just $127.32 in the claims department.

This Article presents a series of research and methodological critiques. No scholar has assembled a universe of data linking business operations, injuries, and claims to litigation and appeals. Empirical researchers who seek to understand compensation systems should collect data on the operation of claims departments. Today, such studies must include insurance claims departments. If I could find these data from more than a century ago, researchers today could do likewise.  Second, the common idea that injured claimants bargain in the shadow of the law is naïve. The claims department casts its own, longer shadow than the trial court.  The final critique focuses on anyone who relies upon reported appellate cases as representations of any realm below. Appellate cases, especially those in casebooks, misrepresent the trial court and, more dramatically, misrepresent the empirical world of the claims department and business operation.

--Dan Ernst

Tuesday, June 11, 2024

Sanctis de Brito's "Seeking Capture, Resisting Slavery"

A new book is out, open access, in the Global Perspectives on Legal History series of the Max-Planck-Institut for Legal History and Legal Theory: Adriane Sanctis de Brito's Seeking Capture, Resisting Seizure: An International Legal History of the Anglo-Brazilian Treaty for the Suppression of the Slave Trade (1826–1845):

The treaties to suppress the slave trade were the subject of intense legal battles and debates in the first half of the 19th century. By delving into the legal disputes that took place within the context of the Anglo-Brazilian treaty, this book highlights the political importance of what might at first glance be perceived as little more than argumentative hurdles over the rules and proceedings regarding the search and capture of ships. Some of these legal battles were carried out in the correspondence between the Foreign Offices, sometimes between diplomatic representatives or within mixed commissions, while still others involved the process of interpretation and the resignification that took place over the course of years and involved a multiplicity of exchanges between various actors and institutions.

Britain constantly pushed to expand the legal use of force and possibilities of capture within the spaces outlined by the treaty regime. Brazil actively engaged in the legal interpretation, and in so doing created an argumentative onus that would later continue to transform British legal approaches and the very expectations about the content of the law the two parties were applying.

By constantly challenging the scope and limits of the treaty, Brazilian representatives slowed down the process of abolishing the slave trade, thus preserving the perverse practice, while at the same time protecting Brazil’s independence against the expansion of British interference. Whether reading the bilateral treaty clauses as analogous to or differently from prize law or general international law, the day-to-day interpretation forged anti-slave trade rules that kept ships, instead on enslaved people, protagonists of slave trade suppression mechanisms.

This history of the Anglo-Brazilian treaty provides more detail about the mechanisms created by international law to combat the slave trade. It also reveals the complex legal translations of state inequality, humanitarianism, violence, and the fine line between war and peace.

--Dan Ernst

CSCHS Review (Spring/Summer 2024)

[The Spring/Summer '24 issue of the California Supreme Court Historical Society Review is now available.  Here is the editor's description of its contents.  DRE]

The upcoming presidential election and ongoing debate over who is entitled to vote and how votes should  be counted make this an appropriate time to look back at how Californians expanded the franchise since the early days of statehood. In our lead story, the first of two parts, a team of UCLA researchers explores how California systematically discriminated during its first hundred years against different groups of prospective voters, employing some of the same tools used under the Jim Crow regime of the South. Part II, which will run in our Fall / Winter ’24 issue, will focus on the post-World War II decades when the pendulum began to swing the other way and state law evolved to make voting easier and broaden voting rights, while maintaining the integrity of voting systems.

Next, Mitchell Keiter looks back at the Robins v. Pruneyard Shopping Center litigation and whether private property owners — there, a shopping mall owner — could evict high school students who were peacefully gathering signatures for a petition opposing both a U.N. resolution against Zionism and Syria’s emigration restrictions. Keiter, an appellate attorney and member of the Society’s Board of Directors, analyzes the California and U.S. Supreme Courts’ decisions in this case against historical tradition and earlier litigation between speakers who wish to express ideas and property owners who wish not to host that expression. The question lies at the core of two cases currently before the U.S. Supreme Court concerning the constitutionality of Florida and Texas laws requiring viewpoint-neutral access to privately owned social media platforms.

Elsewhere in this issue, Society Board member John Caragozian traces how litigation about California’s remote Mineral King Valley changed the U.S. environmental movement by opening the door to claims by citizen groups and individuals challenging proposed land use and development. Also, UC College of the Law, San Francisco Professor Mark Aaronson reviews Jeffrey Rosen’s The Pursuit of Happiness. The new book looks at the founding generation’s philosophical understanding of that phrase from the Declaration of Independence, which also appears in many state constitutions, including California’s. In his thoughtful essay, Aaronson sees helpful insights in Rosen’s book for thinking about a revitalized conception of happiness as a source of constitutional protections and aspirations going forward.

Monday, June 10, 2024

Klass on the History of the Interpretation-Construction Distinction

My Georgetown Law colleague Gregory Klass has posted A Short History of the Interpretation-Construction Distinction:

Francis Lieber (NYPL)
This document collects for ease of access and citation three of my posts on the New Private Law Blog, which chart the conceptual history of the interpretation-construction distinction. The posts begin with Francis Lieber’s 1939 introduction of the concepts, then describes Samual Williston’s 1920 account of the distinction in the first edition of Williston on Contracts, and concludes with Arthur Linton Corbin’s 1951 reconceptualization in the first edition of Corbin on Contracts. The posts identify two different conceptions of the distinction. Under the first (Lieber and Williston), construction supplements interpretation. Under the second (Corbin), the two activities complement one another. The complementary conception is the better one.
--Dan Ernst

Hartog's "Nobody's Boy and His Pals"

Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus, at Princeton University, has published Nobody’s Boy and His Pals: The Story of Jack Robbins and the Boys’ Brotherhood Republic (University of Chicago Press):

In 1914, social reformer Jack Robbins and a group of adolescent boys in Chicago founded the Boys’ Brotherhood Republic, an unconventional and unusual institution. During a moral panic about delinquent boys, Robbins did not seek to rehabilitate and/or punish wayward youths. Instead, the boys governed themselves, democratically and with compassion for one another, and lived by their mantra “So long as there are boys in trouble, we too are in trouble.” For nearly thirty years, Robbins was their “supervisor,” and the will he drafted in the late 1950s suggests that he continued to care about forgotten boys, even as the political and legal contexts that shaped children’s lives changed dramatically.
Nobody’s Boy and His Pals is a lively investigation that challenges our ideas about the history of American childhood and the law. Scouring the archives for traces of the elusive Jack Robbins, Hendrik Hartog examines the legal histories of Progressive reform, childhood, criminality, repression, and free speech. The curiosity of Robbins’s story is compounded by the legal challenges to his will, which wound up establishing the extent to which last wishes must conform to dominant social values. Filled with persistent mysteries and surprising connections, Nobody’s Boy and His Pals illuminates themes of childhood and adolescence, race and ethnicity, sexuality, wealth and poverty, and civil liberties, across the American Century. 

Encomia from Barbara Y. Welke, Martha Minow, and David Sugarman are here.

--Dan Ernst

Saturday, June 8, 2024

Weekend Roundup

  • Natasha Wheatley, Princeton University, discusses her book, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton, 2023) on the Talking Legal History podcast with Siobhan M. M. Barco.

  • LHB Co-Blogger Karen Tani was part of a stellar lineup at a plenary session of this weekend's American Political History Conference, entitled "The Courts and American Democracy." The other panelists were Julian Mortenson, and Gautham RaoRachel Shelden moderated.  DRE
  • Another book event for Alison LaCroix's Interbellum Constitution: On June 17, Professor LaCroix is on the program of a Town Hall of the National Constitution Center with William B. Allen, a political theorist who was edited and translated Montesquieu’s The Spirit of the Laws.  Register here.  
  • Dylan C. Penningroth will discuss Before the Movement: The Hidden History of Black Civil Rights on Tuesday, June 18, 2024, at 6 p.m. at the City of West Hollywood’s Council Chambers/Public Meeting Room located at 625 N. San Vicente Boulevard. The event is free and open to the public. Reservations are requested, here.
  • The Historical Society of the New York Courts and the Supreme Court, New York County Civil Branch, are sponsoring a hybrid event, NY County Courthouse WPA Murals: Who Created Them and What Do They Represent? at the New York County Courthouse Rotunda at 60 Centre Street, NYC, Tuesday, June 25, 2024, from 1:00 - 2:30 PM.  The speakers are Greta Berman, emerita The Julliard School, and Helen A. Harrison, the former director of the Pollock-Krasner House and Study Center, Stony Brook Foundation.  Jon Ritter, Clinical Professor of Art History, New York University, will moderate.
  • Dueling books on American constitutionalism at the NCC's next Town Hall, on June 12, btw: Center: Yuval Levin’s American Covenant: How the Constitution Unified Our Nation—and Could Again and Aziz Rana’s The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them.  Jeffrey Rosen moderates.  Register here.
  • The Organization of American Historians has announced  two new awards: the Award for Contributions to Public Policy, and the Joseph L. Peyser Prize for New France History.  "The Award for Contributions to Public Policy will annually recognize a scholar of any discipline who has made a significant contribution to U.S. public policy through historical research. The award is made possible through the generosity of J. Morgan Kousser, Professor of History and Social Science Emeritus at California Institute of Technology." 
  • The intellectual historian and author of a great book on the history of social science, Dorothy Ross, has died.  Here is Johns Hopkins's notice. 
  • On the ABAJ's Modern Law Library podcast: Madiba K. Dennie discusses her book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.
  • ICYMI:  Why Americans Have a Right to Trial by Jury (History).  A historical marker for Sully Jaymes, the first Black lawyer in Springfield, Ohio (Springfield News-Sun).

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

Friday, June 7, 2024

CFP: Law, colonialism and gender in the Muslim world

[Via H-Law, we have the following CFP.  DRE]

Law, colonialism and gender in the Muslim world

This conference aims to bring together scholars working on the legal history of the Muslim world who focus on the colonial period and are interested in ‘gender-coded law’ (i.e. all legal domains that automatically invoke connotations of gender).

Several scholars have implied that imperialism did not affect gender relations in the Muslim world, since family law remained relatively untouched by the colonial powers (Anderson, Buskens, Peters). There are, however, several examples in colonial legal history that point to the influence of imperial powers on gender relations through law. The interdiction of homosexuality in British India (Radics) and the ban on interreligious marriage in the Dutch East-Indies (De Hart) are only two examples of the imperial footprint on gender laws. Moreover, nineteenth-century Western imperialism affected the thinking about gender in the Muslim world (Massad, Cuno, Khouloussy, Surkis). This suggests that contemporary gender-coded laws in Muslim-majority countries cannot be understood without studying the legislation issued by the imperial powers.

Academics who work in the field of legal history, gender history and/or social history (or a combination of these) are invited to share their research on the laws that were introduced in the Muslim territories during French, Dutch, British, Russian, or other colonial rule that touch upon gender. Proposals may concern various periods and topics, ranging from property law and land tenure to criminal law and family law.

The conference will be held at the University of Amsterdam on December 19 and 20, 2024. It will be a small (max. 15 participants) research seminar/workshop. Applications for participation, including 250-word abstracts and a 100-word brief biography should be sent to by July 1, 2024. If selected, the conference organization provides for travel and accommodation. The conference will be held at the historical building of the Allard Pierson Museum in the city centre of Amsterdam, which is close to Central Station.

Suggested paper topics include, but are not limited to:

  • The participation of colonial bureaucrats and local (religious) elites to the formation of colonial gender-coded law
  • Debates on gender-coded law in the press and other sources such as colonial law magazines
  • The circulation of law between the ‘homeland’ and the colonies as between various colonies and empires
  • Crosspollination and circulation of ideas about law and gender within the Muslim world during the Age of Empire/Nahda period

Contact Information: dr. Maaike Voorhoeve, Amsterdam School of Historical Studies, University of Amsterdam, the Netherlands

Hunt on Taxation in the Irish Free State

Emer Hunt, Sutherland School of Law, University College Dublin, has posted Transition without Change: Taxation by the Irish Free State, which is to appear in volume 11 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan (Hart Publishing):

The Irish Free State, established in 1922, saw an effective continuation of the tax laws in force during the previous colonial period. This was quite marked, both in the continuity of legislation and tax administration and, indeed, was viewed as positive by some revolutionary politicians of the era. The degree of continuity-or stasis-could be a reflection of the nationalist focus on the identity of the ruler rather than the content of the rules, an answer to the economic imperative of raising revenue for the new state or a desire to impress the erstwhile rulers with the conservatism of the new regime. This chapter examines the formation of the modern Irish state in 1922 within the microcosm of tax laws and against the backdrop of a desire for self-determination which was not expressed through tax law and policies.
--Dan Ernst

Thursday, June 6, 2024

McMahon's "Supreme Court Unlike Any Other"

Kevin J. McMahon, Trinity College, has published A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People (University of Chicago Press):

Today’s Supreme Court is unlike any other in American history. This is not just because of its jurisprudence but also because the current Court has a tenuous relationship with the democratic processes that help establish its authority. Historically, this “democracy gap” was not nearly as severe as it is today. Simply put, past Supreme Courts were constructed in a fashion far more in line with the promise of democracy—that the people decide and the majority rules.

Drawing on historical and contemporary data alongside a deep knowledge of court battles during presidencies ranging from FDR to Donald Trump, Kevin J. McMahon charts the developments that brought us here. McMahon offers insight into the altered politics of nominating and confirming justices, the shifting pool of Supreme Court hopefuls, and the increased salience of the Court in elections. A Supreme Court Unlike Any Other is an eye-opening account of today’s Court within the context of US history and the broader structure of contemporary politics.

--Dan Ernst

Wednesday, June 5, 2024

Job Alert: Teaching Fellow in Legal History at Edinburgh Law School

The Edinburgh Law School is advertising for "a Teaching Fellow in Legal History on a fixed term basis 1 October 2024 to 30 April 2026.  . . . The successful candidate should have completed a PhD (or be close to completion) in a relevant discipline, or have equivalent practical experience."  More.

--Dan Ernst

Kent on Executive Power and the Founders' Presidency

Andrew Kent, Fordham University School of Law, has posted Executive Power, the Royal Prerogative, and the Founders' Presidency:

George Washington, Under Construction (NYPL)
The original meaning of the opening clause of Article II of the Constitution--which vests "[t]he executive power ... in a President of the United States"--has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered "executive" in nature in the eighteenth century, defined by reference to the royal prerogative powers of the British monarchy. Other scholarship views the Clause as granting only the power to execute the law. A third approach interprets the Clause even more minimally, as a mere designation provision, not granting power at all but making clear that there would be a singular chief magistrate called the president, with power flowing from enumerations such as the Commander in Chief, Appointments, Pardons, and Treaty Clauses. This Article comprehensively reviews the British and American legal, political, and ideological backgrounds relevant to understanding the Executive Power Clause; carefully reads the text in light of interpretive conventions used in the founding era and extrinsic evidence from the Philadelphia Convention and state ratification debates; and critically evaluates the current scholarship. The wide divergence among modern scholars about the meaning of the Executive Power Clause is found to reflect real ambiguity in the text of the Constitution and the historical records. Unlike many previous scholars, who have settled on their preferred reading as the clearly correct choice, I find that there are several plausible original public meanings of the Executive Power Clause. When the new government under the Constitution became operational in 1789, the ambiguous Clause was sitting there ready to become a site of contestation. That said, the text and history I review here support at least one firm conclusion: by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.
--Dan Ernst