Monday, July 4, 2022

Farbman on "Redemption" and Localism

Daniel Farbman, Boston College Law School, has posted Redemption Localism, which appears in the North Carolina Law Review:

In the decades after the end of the Civil War, avowed white supremacists across the South sought to “redeem” their state and county governments from the clutches of the hated “radicals” who had taken control during Reconstruction. These Redeemers developed an approach to local power and local control that served their broader political goal of reestablishing white supremacist rule. In their effort to ensure that white citizens were not subjected to “negro rule,” they developed a “Redemption Localism” that consistently sought to limit local power, curtail local democracy, and defund or eliminate local services. This Article tells the story of Redemption Localism as it operated in one state: North Carolina. But I argue that this story has much to teach us about localism across the post- Civil War South and about our localism today. While much of the scholarly conversation about localism focuses on the virtues (and vices) of local control versus centralization, the question for Redeemers was never whether, as an abstract matter, local control was preferable to centralized control. Rather, at decision point after decision point, the question was how the balance between local and state power could be manipulated and adjusted to protect the Redeemers’ political power and further the struggle for white supremacy. This instrumental attitude towards localism remains familiar today as the tools and structures of local power are manipulated to suppress Black voting power, dilute the voices of multiracial local democracies, and maintain existing distributions of power, wealth, and privilege.

--Dan Ernst

Saturday, July 2, 2022

Barbarians in the Dock: How Vulgar Speech Become a Crime in 18th-Century Massachusetts

     I'd like to thank Dan Ernst and LHB for the opportunity to be a guest blogger this month. I'm excited to participate in this community of scholars. As Dan mentioned in his introduction, I recently published my first book, The Dreadful Word:  Speech Crime and Polite Gentlemen in Massachusetts, 1690-1776, with the Studies in Legal History at CUP.                                   

    For the book, I looked at provincial statutes and General Sessions of the Peace (local courts) records to determine what kinds of verbal offenses were criminalized, prosecuted, and punished in eighteenth-century Massachusetts. I considered how contemporaries described these crimes and the offenders, and tracked who was most likely to be prosecuted and receive the harshest punishments. 
    Unlike the previous century, when colonists criminalized speech they deemed ungodly, now colonists criminalized speech they considered impolite. In many ways, the statutory scheme and enforcement practices of the 1700s regarding criminal speech reflected the ethos of conduct and courtesy literature.
    Surprising patterns emerged. Even as Puritan influence waned, Massachusetts colonists remained deeply interested in criminalizing and punishing speech as part of preserving the King's peace. They enacted and renewed numerous statutes throughout the century outlawing acts such as profane cursing and swearing, defamation, lying, sedition, spreading false news (not yet a political catchphrase), threats, contempt, false swearing and perjury, and mumping (the eighteenth-century version of a confidence man). Additional common law crimes were also avidly prosecuted: noise, abuse, rudeness, and "ill manners."
    Moreover, these crimes were not generally applicable, but were associated in legal records with particular sorts of people--the lower orders. Explicit references to soldiers, sailors, and servants, and language that bent the law's ear toward speech occurring in the work and social spaces of the meaner sort make clear whose speech provincial legislators believed was most threatening to good social order.
    Meanwhile, patterns of prosecution and punishment also reveal strong associations between "vulgar" speech and "the vulgar." Notably, the participatory and highly discretionary nature of the General Sessions Courts meant that the law could not be employed as a blunt cudgel of power by the elite; the system had to look legitimate. Although historians usually stress the shift to property-related offenses in the caseload of eighteenth-century Massachusetts courts, the more than 1600 cases of speech crime that I uncovered suggest a broad community consensus that these crimes, too, posed significant threat to the King's peace.
    In my next post, I'll discuss how the turmoil and chaos of protest and revolution splintered a speech economy premised upon politeness, and created opportunities to recalibrate the relationship between language and power.

--Kristin A. Olbertson

Weekend Roundup

  • “Abortion, Choice, and the Supreme Court: History Behind the Headlines,” an online event sponsored by the American Historical Association, will take place on Wednesday, July 6, at 3 PM ET.  The panelists are Nancy F. Cott, Jonathan Trumbull Research Professor of American History, Harvard University; Melissa Murray, Frederick I. and Grace Stokes Professor of Law and Faculty Director, Birnbaum Women’s Leadership Network, New York University School of Law; and Aaron Tang, Professor of Law, University of California, Davis School of Law.  Leslie J. Reagan, Professor of History, University of Illinois Urbana-Champaign, will moderate.  Register here, and look for the posting of the recording to the AHA's YouTube channel.
  • "Rachel Shelden, director of the George and Ann Richards Civil War Era Center in the Penn State College of the Liberal Arts, has received a fellowship from the National Endowment for the Humanities (NEH) for a project titled 'The Political Supreme Court: Justices, Partisanship, & Power, 1830–1900'”  (PSU). 
  • Hannah Boston, a Lecturer in Medieval History at Magdalen College, Oxford, will, as an Early Career Fellowship of the Leverhulme Trust at the University of Lincoln, a Lecturer in Medieval History at Magdalen College, Oxford, will “complete a study titled ‘Private charters and the transmission of ideas in English society, 1000-1307.’  The research will examine how ideas and practices around loyalty, property and authority developed, were transmitted and experienced across regional society outside the court-attending elite.”  More.
  • John Q. Barrett, St. John's University,  is now a trustee of The Franklin D. Roosevelt Presidential Library.
  • Last week, we noted a published student paper that drew upon the methods of corpus linguistics to address the early American history of abortion.  We, among others, expressed skepticism.  Here is a reply.
  • There's much legal issue in the recent special issue of the Journal of Global History devoted to the history of international organizations and decolonization.  
  • ICYMI on Bruen and Dobbs: Saul Cornell on Cherry-picked history and ideology-driven outcomes in Bruen (SCOTUSblog). David Cole on originalism in Bruen and Dobbs (WaPo).  Akhil Reed Amar on Why Liberal Justices Need to Start Thinking Like Conservatives (Time)."Say what you will about Roe, Justice Alito, but leave Lochner out of it," Damon Root--in effect--says of the justice's "junk history" in Dobbs (Reason).  Mary Ziegler says Justice Thomas isn't joking (Harvard Gazette).

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

Friday, July 1, 2022

Job Alert: Constitutional History at Johns Hopkins

[We have the following announcement.  DRE]

The Department of History at the Johns Hopkins University invites applications for an open-rank chair in Constitutional History, with an anticipated start date on July 1, 2024. We encourage applications from scholars working in any field related to the constitutional history of the Americas, broadly construed. We are especially interested in applicants whose research addresses national and transnational legal movements; Latinx history; Asian American and diasporic history; indigenous history; disability history; immigration and citizenship; human rights, civil rights, and civil liberties; slavery and its legacies; constitutional ideas; popular constitutionalism; legal pluralism; and/or the history of gender and sexualities. Queer, trans, and scholars of color are strongly encouraged to apply.

Johns Hopkins University is committed to active recruitment of a diverse faculty and student body. The University is an Affirmative Action/Equal Opportunity Employer of women, minorities, protected veterans and individuals with disabilities and encourages applications from these and other protected group members. Consistent with the University's goals of achieving excellence in all areas, we will assess the comprehensive qualifications of each applicant.---
Qualifications

PhD must be in hand at the time of the application.  Please submit a cover letter, CV, research statement, and writing sample online via Interfolio. Materials will begin to be reviewed on September 23, 2022. To apply for this position, visit [interfolio link]

The Johns Hopkins University is committed to equal opportunity for its faculty, staff, and students. To that end, the university does not discriminate on the basis of sex, gender, marital status, pregnancy, race, color, ethnicity, national origin, age, disability, religion, sexual orientation, gender identity or expression, veteran status or other legally protected characteristic. The university is committed to providing qualified individuals access to all academic and employment programs, benefits and activities on the basis of demonstrated ability, performance and merit without regard to personal factors that are irrelevant to the program involved.

The successful candidate(s) for this position will be subject to a pre-employment background check.

If you are interested in applying for employment with The Johns Hopkins University and require special assistance or accommodation during any part of the pre-employment process, please contact the HR Business Services Office at jhurecruitment@jhu.edu. For TTY users, call via Maryland Relay or dial 711.

Thursday, June 30, 2022

Legal Historians as Authority in West Virginia v. EPA

Here are the rival resorts to legal historians on nondelegation and the Founding in today's West Virginia v. EPA.  First, Justice Kagan’s dissent:

The kind of agency delegations at issue here go all the way back to this Nation’s founding. “[T]he founding era,”scholars have shown, “wasn’t concerned about delegation.” E. Posner & A. Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1734 (2002) (Posner & Vermeule). The records of the Constitutional Convention, the ratification debates, the Federalist—none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice. The very first Congress gave sweeping authority to the Executive Branch to resolve some of the day’s most pressing problems, including questions of “territorial administration,” “Indian affairs,” “foreign and domestic debt,” “military service,” and “the federal courts.” J. Mortenson & N. Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 349 (2021) (Mortenson & Bagley). That Congress, to use a few examples, gave the Executive power to devise a licensing scheme for trading with Indians; to craft appropriate laws for the Territories; and to decide how to pay down the (potentially ruinous) national debt. See id., at 334–338, 340–342, 344–345; C. Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 113–134(2021) (Chabot). Barely anyone objected on delegation grounds. See Mortenson & Bagley 281–282, 332, 339; Chabot 117–119; Posner & Vermeule 1733–1736.
And here is Justice Gorsuch's concurrence:
In the course of its argument, the dissent leans heavily on two recent academic articles. Post, at 29. But if a battle of law reviews were the order of the day, it might be worth adding to the reading list. See, e.g., I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1493–1494 (2021); D. Candeub, Preference and Administrative Law, 72 Admin. L. Rev. 607, 614–628 (2020); P. Hamburger, Delegation or Divesting?, 115 Nw. L. Rev. Online 88, 91–110 (2020); M. McConnell, The President Who Would Not Be King 326–335 (2020); A. Gordon, Nondelegation, 12 N. Y. U. J. L. & Liberty 718, 719 (2019); R. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv. J. L. & Pub. Pol’y 147, 155–161 (2017); G. Lawson & G. Seidman,“A Great Power of Attorney:” Understanding the Fiduciary Constitution104–129 (2017); P. Hamburger, Is Administrative Law Unlawful? 377– 402 (2014); L. Alexander & S. Prakash, Reports of the Nondelegation Doctrine’s Death are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297, 1298–1299 (2003); G. Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 335–343 (2002); D. Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance? 83 Mich. L. Rev. 1223, 1252–1255, 1260–1261 (1985); see generally P. Wallison & J. Yoo, The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine (2022).

H/t: Rafi Stern for noting my earlier, erroneous attribution of the second quotation to the Chief Justice.

--Dan Ernst

The Lawsuit that Closed Willowbrook

 [We have the following announcement. DRE]

Willowbrook State School: How a Lawsuit Closed the Gates to a Notorious Institution and Opened the Doors of Opportunity for Thousands, presented by the Historical Society of the New York Courts in collaboration with the Willowbrook Legacy Committee.  September 22 @ 6:00 pm - 8:00 pm EDT. Free In-Person and Online Event at the New York City Bar Association.  Open to the Public.

Credit: NYPL
Willowbrook State School was an infamous institution on Staten Island built to care for those with developmental disabilities.  In January 1972, television reporter Geraldo Rivera brought his camera to Willowbrook  and reported on the horrible conditions at the  “school,” once described by Sen. Robert Kennedy as a “snake pit.” Two months later, lawyers from the NYCLU and the NY Legal Aid Society, on behalf of residents, parents and organizations filed a class action lawsuit arguing that residents had a constitutional right to treatment and sought injunctive relief. A distinguished panel of attorneys who have been involved with this case will discuss the filing of the complaint, the entry of a Consent Judgment and the continuing nature of the litigation. The panel will also discuss the importance and relevance of Willowbrook today.
See images of the terrible conditions those with developmental disabilities were forced to endure on the Pennhurst Memorial & Preservation Alliance website.

PANEL DISCUSSION
Beth Haroules, Esq., Senior Staff Attorney, New York Civil Liberties Union
Christopher Hansen, Esq., Senior National Staff Counsel, American Civil Liberties Union
Hon. Robert M. Levy, United States Magistrate Judge for the Eastern District of New York
Paul Kietzman, Esq., Of Counsel, Barclay Damon LLP

NY CLE Credits currently pending for members of the Historical Society of the New York Courts. Registration Opening Soon!

Welcome, Kristin Olbertson!

We're very pleased to have Kristin A. Olbertson with us as a guest blogger in the month of July.  Professor Olbertson is an Associate Professor at Alma College, the holder of a J.D. and a Ph.D from the University of Michigan, a historian of colonial America and of US constitutional and legal history, and the author of The Dreadful Word: Criminal Speech and Polite Gentlemen in Massachusetts, 1690-1776, published earlier this year by Cambridge University Press in Studies in Legal History, the books series of the American Society for Legal History.  "The first comprehensive study of criminal speech in eighteenth-century New England," The Dreadful Word "traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness."  Based on her reading of statutes and hundreds criminal prosecutions, Professor Olbertson argues that "colonists transformed their understanding of speech offenses from fundamentally ungodly to primarily impolite."  In the process, "a distinct cadre of politely pious men " came to define themselves "largely in contrast to the vulgar, the impious, and the unmanly."

Some endorsements:

“Olbertson reveals how, prior to the Revolution, prosecution of speech misbehavior increasingly marked the boundaries between the refined and the vulgar. Convictions (and acquittals) for threats, contempt, defamation, and false reports distinguished the 'lower sort' from their 'betters'. Slowly but surely, Massachusetts judges and juries gave greater weight to sensibility, civility, and credibility as markers of distinction, while moving away from prosecuting sinful speech and toward defining genteel masculinity. A tour de force.”

Sally E. Hadden, Western Michigan University

“Olbertson builds on two generations of scholarship that have taught us to understand New England's legal culture as enmeshed with English notions of hierarchy. She transforms our understanding by her relentless and pointed focus on the ways speech offences were, for a time at least, integral to governance. A witty and beautifully researched study of how, in a time and place that prized sincerity and restraint and deference, noise and irreverence were everywhere.”

Hendrik Hartog, author of The Trouble with Minna: A Case of Slavery and Emancipation in the Antebellum North

 “Kristin Olbertson has given us a wide-ranging, wonderfully textured, and deeply insightful exploration of how generations of elites in early Massachusetts reinforced their identity and patrolled the boundaries of the status they claimed by criminalizing the speech of people they deemed their inferiors or who might challenge their authority. The Dreadful Word is a masterly accomplishment that teaches us not simply to see the past with new understanding, but to hear it, as well.”

Bruce H. Mann, Harvard Law School

Welcome, Kristin!

--Dan Ernst

Wednesday, June 29, 2022

Wednesday Roundup: More Legal Historians on Dobbs and Bruen

Here are some more legal historians in the public forum on Bruen and Dobbs whom we've spotted since our Sunday Roundup.  On Bruen: Adam Winkler interviewed on cherry-picked history in the New Yorker. On Dobbs: Eric Freedman's "Hari-Kari on First Street" (Justitia).  Ariela Gross on the parallel to comity and fugitive slaves in the antebellum United States  (NBC News).  Richard F. Hamm on what Prohibition tells us about returning abortion to the states (HNN).  Joanna L. Grossman on "The End of Roe" (Verdict).  And today at 12:30 EDT, Mary Ziegler with The Atlantic’s executive editor, Adrienne LaFrance and David French in a live virtual event: "The Big Story: After Roe."  Register here.  Professor Ziegler is also on a panel sponsored by the University of Texas School of Law, moderated by Steve Vladeck, at 12:30 EDT on Friday, July 1.  Register here.

Also: David D. Cole, Michelle Bratcher Goodwin, and others on “The Dobbs Decision” at 2:00 EDT today in a webinar sponsored by Georgetown Law.  Register here.

--Dan Ernst

Tuesday, June 28, 2022

Brimmer, "Claiming Union Widowhood"

We missed this one back when Duke University Press published it in 2020 (thanks to New Books Network for flagging it): Claiming Union Widowhood: Race, Respectability, and Poverty in the Post-Emancipation South, by Brandi Clay Brimmer(Spelman College). About the book:

In Claiming Union Widowhood, Brandi Clay Brimmer analyzes the US pension system from the perspective of poor black women during and after the Civil War. Reconstructing the grassroots pension network in New Bern, North Carolina, through a broad range of historical sources, she outlines how the mothers, wives, and widows of black Union soldiers struggled to claim pensions in the face of evidentiary obstacles and personal scrutiny. Brimmer exposes and examines the numerous attempts by the federal government to exclude black women from receiving the federal pensions that they had been promised. Her analyses illustrate the complexities of social policy and law administration and the interconnectedness of race, gender, and class formation. Expanding on previous analyses of pension records, Brimmer offers an interpretive framework of emancipation and the freedom narrative that places black women at the forefront of demands for black citizenship.

A few blurbs: 

“Brandi Clay Brimmer has written an amazing social history that transforms the study of poor black women’s quest for citizenship and recognition. Through finely grained research she revises our understanding of the racialized gendered state from the standpoint of poor women themselves. She advances how we think about the agency of newly emancipated women from after the Civil War into the late nineteenth century, in the process challenging existing interpretations about the origins of social assistance in the modern United States. This is historical research at its best.” — Eileen Boris

“This compelling study of eastern North Carolina black women’s claims for Union widows’ pensions marshals methodologically complex evidence to make striking arguments on questions of racialized motherhood, the origins of the welfare state, class formation, and Reconstruction’s failures. Brandi Clay Brimmer recaptures in rich detail the lives of heretofore unknown women who tried and often failed to secure their full Fourteenth Amendment rights. This book is a timely contribution to current debates on the nation’s history of racial injustice and a poignant saga of promises made and promises broken.” — Glenda Elizabeth Gilmore

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

-- Karen Tani

Monday, June 27, 2022

Priel on the Myth of Legal Realist Skepticism

Dan Priel, Osgoode Hall Law School of York University, has posted The Myth of Legal Realist Skepticism:

Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their work burst the myth of legal objectivity by mercilessly exposing the political ideology of Lochner v. New York. More generally, their skepticism about legal rules exposed the inherent contradictions of liberal legalism.

Now for some inconvenient facts: Most legal realists believed legal rules existed and mattered for legal decisions, they believed the law is mostly determinate, and worked to make it more so. Most of them never mentioned Lochner in their writings; the few who did dismissed the idea that the majority was driven by laissez faire ideology. What did they stand for, then? I argue in this Article that one way of getting a sense of what the realists believed is by looking at who they considered their intellectual allies. This exercise yields some surprising results. Rather than seeing the writing of a legal treatise as inconsistent with legal realism, they praised Arthur Corbin’s treatise for its realism. Benjamin Cardozo was described as one of the most sophisticated “anti-realist” judges of the last century, and yet virtually all the legal realists admired him. The realists similarly admired the work of Wesley Hohfeld, not because it revealed law’s reactionary politics, but because, as Llewellyn put it, it “cuts very close to the atomic structure of the law on its conceptual side.” Almost all legal realists spoke in favor of the Restatements, and many were involved in them.

Does this mean the familiar narrative of the realists’ opposition to the ideas of Langdell and Beale is also mistaken? Not quite. The realists did object to their ideas, but—and here comes another surprise—theirs was not a modernist challenge to the “classical” ideas of their predecessors. Rather, legal realists like Llewellyn and Frank were traditionalists who sought to revive old ideas being lost due to the modernistic project spearheaded by Langdell’s Harvard.
--Dan Ernst

Green, "Separating Church and State"

Cornell University Press has published by Separating Church and State, by Steven K. Green (Willamette University). A description from the Press:

In 1802, President Thomas Jefferson distilled a leading idea in the early American republic and wrote of a wall of separation between church and state. That metaphor has come down from Jefferson to twenty-first-century Americans through a long history of jurisprudence, political contestation, and cultural influence. This book traces the development of the concept of separation of church and state and the Supreme Court's application of it in the law.
Green finds that conservative criticisms of a separation of church and state overlook the strong historical and jurisprudential pedigree of the idea. Yet, arguing with liberal advocates of the doctrine, he notes that the idea remains fundamentally vague and thus open to loose interpretation in the courts. As such, the history of a wall of separation is more a variable index of American attitudes toward the forces of religion and state. 
Indeed, Green argues that the Supreme Court's use of the wall metaphor has never been essential to its rulings. The contemporary battle over the idea of a wall of separation has thus been a distraction from the real jurisprudential issues animating the contemporary courts. 

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

-- Karen Tani

Sunday, June 26, 2022

Roundup: Legal Historians on Dobbs

In addition to the historians listed in yesterday's Weekend Roundup, we've since spotted Michele Goodwin, Joanna Grisinger, Felicia Kornbluh, Bernadette Meyler, and Reva Siegel.

--Dan Ernst

Ph.D. Program in Global History and Governance in Naples

[We have the following announcement of a Ph.D. Program in Global History and Governance.  DRE]

Seven 4-year doctoral scholarships are available at the Scuola Superiore Meridionale, the University of Naples Federico II, Napoli (Italy), a.y. 2022-2023

The Program: The Ph.D. in Global History and Governance consists of an advanced course of study and research at the end of which the student defends a thesis based on original and independent scientific work.

The course offers an educational program based on a multi-disciplinary approach centred on history and law and opened to contributions of other disciplines. The Ph.D. program in Global History and Governance is aimed at highly motivated students with a solid personal background and diverse language skills.

The Ph.D. in Global History and Governance is an advanced research degree at the end of which each student must defend a dissertation based on independent and original scientific research. The programme focuses on the comparisons, connections, and processes of globalization that have characterized different areas of the planet between the 16th and the 20th century and does so by concentrating on the relational dimension of historical processes, legal regimes, and the organization of power; on the interconnections between economic, political, legal, cultural and social factors; and on circulation, exchange and interconnection of ideas, persons, institutions, legal cultures, political models, concepts, rights and goods on a global scale.

Program coordinator: Prof. Daniela Luigia Caglioti.  Ph.D. program’s webpage is hereFunding amount: Annual stipend of € 19,000.00; 50% increase of the scholarship for research abroad; up to 20% of the scholarship in research funds per year; no tuition fees.   Starting date: November 2, 2022

Admission requirements: Candidates must possess an MA/MS degree, an excellent command of English, and possibly a second language other than their mother tongue. They must present a personal statement, a research proposal on a subject relevant to the Ph.D. program, and the discussion of a text that particularly inspired applicants in the choice to pursue their studies as well as in the conception and writing of the proposal itself.

Application deadline: August 24, 2022, 02:00 pm (CET)

Please visit the SSM website for full details of the funding of the award, eligibility, and how to apply:
English versionItalian version.  For further information, please write to ghg@unina.it

Saturday, June 25, 2022

Weekend Roundup

  • We heard that the recently concluded "Unsettling Law," a conference on Law, Culture and the Humanities at Emory Law included several presentations by legal historians, including the roundtable,"Dignity, Indignation, and Unsettling: Disability and Legal History," chaired by Susanna Blumenthal, Professor of Law and History, University of Minnesota, with presentations by Nathan Stenberg, PhD Candidate, University of Minnesota; Nate Holdren, Associate Professor, Drake University; and Rabia Belt, Associate Professor, Stanford Law School
  • Here is the book of abstracts for the European Society for Comparative Legal History Biennial Conference.  H/t: ESCLH Blog.
  • The historians' response to Dobbs and Bruen has blown up as we go to press, and we can't keep up, but here are a few: Mary Ziegler discussed her new book, Dollars for Life, on Fresh Air on Thursday and on Friday wrote in The Atlantic that If the Supreme Court Can Reverse Roe, It Can Reverse AnythingPatricia Cline Cohen writes that Dobbs "relies on history to rescind the constitutional right to a legal abortion established by Roe v. Wade in 1973. There’s just one problem: the history it relies on is not correct" (WaPo).   Also: an interview of Geoffrey R. Stone on the history of American thought on abortion (CSM).
  • We've been struck by historians' exasperated reactions to the publication by the Harvard law students Stephanie Nicole Miller and Mary Kay Bacallao of an essay in Harvard Journal of Law & Public Policy Per Curiam using corpus linguistic methods to counter the AHA brief. Gillian Frank, a visiting fellow at Princeton University’s Center for the Study of Religion remarks, "Just because you don't find evidence in one database when you type in the word 'abortion,' doesn't mean a practice didn't exist.”  Digitized anachronism!   DRE
  • It feels crushingly ironic to note that the Supreme Court Historical Society's 2022 Annual Lecture has just been posted to YouTube"Chief Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit is joined by California Supreme Court Justice Leondra Kruger for conversation inspired by his book, Who Decides? States as Laboratories of Constitutional Experimentation."  Between Bruen and Dobbs, I believe we just found out.  DRE
  • If you're a second- or third-year at Columbia and you haven't signed up for this course, you aren't doing law school right.
  • "E-archive to collate data on ancient, colonial Indian laws" (Times of India).
  • ICYMI: Scott Douglas Gerber says America’s religious history is more complicated than the Supreme Court’s liberal justices understand (New York Post).  Another notice of that LGBTQ archive at William & Mary (Virginia Gazette).  And a notice of a mock trial of Donoghue v Stevenson, the "snail in a bottle" case, at St. Andrews (Daily Record).
  • Update: "Reva Siegel will give Chautauqua Institution’s 18th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 11, 2022, at 3:30 p.m.  She will speak about Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s abortion decision." More.  H/t: John Q. Barrett.
  • Update: Martha S. Jones looks for traces of Harriet Tubman on Maryland's Eastern Shore 200 years after her birth  (NYT).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 24, 2022

Schneiderman Reviews Orford's "International Law and the Politics of History"

David Schneiderman, University of Toronto - Faculty of Law, has posted his review of Anne Orford's International Law and the Politics of History (Cambridge 2021), entitled Investment Law and its Others:

Anne Orford’s International Law and the Politics of History takes up international investment law, alongside international trade and human rights law, as an exemplar of how history serves contending sides in debates over the regime’s legitimacy. Appeals to history, in other words, are assimilated into debates over the politics of international law. This review essay argues otherwise that the post 1989 torrent of international investment law scholarship and practice largely steers clear of history. For the most part, rather than seeking assistance from history international lawyers are content to rely on a more archaic formalism that is stuck in the classical legal past. By doing so, they dodge connections to arguments, justifications, and discourses that are reminiscent of a more recent past, associated with colonialism and imperialism. Neglecting this discredited past authorizes investment law’s norm entrepreneurs to pretend as if the contemporary regime has no connection to the ruinous adventures of metropolitan states.

We're pleased to see from this review, Orford's book, Felipe Ford Cole's forthcoming work, and other recent scholarship that the history of international investment law is getting the attention it deserved, if only to have something to point to the next time a historically minded colleague in international economic law asks me why she can't find any.

Here's the publisher's summary of International Law and the Politics of History:

As the future of international law has become a growing site of struggle within and between powerful states, debates over the history of international law have become increasingly heated. International Law and the Politics of History explores the ideological, political, and material stakes of apparently technical disputes over how the legal past should be studied and understood. Drawing on a deep knowledge of the history, theory, and practice of international law, Anne Orford argues that there can be no impartial accounts of international law's past and its relation to empire and capitalism. Rather than looking to history in a doomed attempt to find a new ground for formalist interpretations of what past legal texts really mean or what international regimes are really for, she urges lawyers and historians to embrace the creative role they play in making rather than finding the meaning of international law.

And here are some endorsements:

'In this extensive study, Anne Orford brilliantly traces international law’s engagements with history across a century and more, weaving abstruse methodological disputes into an arresting narrative of political possibility foregone. What is history for? And how should it be practiced by those who manage the world’s legal affairs? Anne Orford makes the case for doing things with history, for history as a political practice which can as well be apologetic as transformative. For Orford, international legal history is contested ground, an open field of political possibility and struggle. Everyone is here - the footnotes alone are worth the price! Her plea for an engaged and politically responsible history attuned to the ambiguities of the historical record is an invigorating challenge to everyone who dabbles - or dives deep - into the history of international law.'

David W. Kennedy - Manley O Hudson Professor of Law and Director, Institute for Global Law and Policy, Harvard Law School

‘This is a hugely important intervention in cross-disciplinary debates about the politics of history in international law and international relations. Anne Orford has written a brilliant defence of heterodox approaches to international legal history against both narrowly empiricist and contextualist approaches and recent ‘new’ histories of international law that are not as new or methodologically robust as they seem. International Law and the Politics of History should have a major influence on scholars and students across International Law, History, and International Relations.’

Patricia Owens - Professor of International Relations, University of Oxford

‘The recent ‘turn to history’ in the study of international law began with high hopes of rapprochement between disciplines yet has too often served to draw battle lines and multiply misunderstandings. Anne Orford now stands authoritatively above the fray, to clarify the stakes of critical practice for lawyers and historians alike. Her patient, engaged scrutiny of the politics of scholarship may not quieten contention but it should make future engagements both more productive and much more firmly grounded.’

David Armitage - Lloyd C. Blankfein Professor of History, Harvard University

International Law and the Politics of History is a powerful rejoinder to the critical excesses to which scholarship in international law has been made subject in recent years by historians claiming law’s habitual misrepresentation of its past. Anne Orford knows her own field far better than the complainants, and it shows. Historians would do well to understand better what they poke before they decide to poke it.’

Christopher Tomlins - Elizabeth Josselyn Boalt Professor of Law, University of California, Berkeley

--Dan Ernst

Schmidt on Brown and Constitutional History of Reconstruction (and a Postscript on Hurst and Gutman)

Christopher W. Schmidt, Chicago-Kent College of Law and the American Bar Foundation, has posted Brown, History, and the Fourteenth Amendment, which appears in the Notre Dame Law Review:

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and legal scholars have approached the constitutional history of Reconstruction. I highlight in particular the efforts of the lawyers for the NAACP, who advocated a reading of the Equal Protection Clause that most scholars at the time believed conflicted with the Fourteenth Amendment’s original meaning. With the aid of a group of historians sympathetic to their cause, the NAACP lawyers prepared a brief that presented a bold (if often tendentious) revisionist history of the Fourteenth Amendment that advanced an originalist justification for striking down segregation laws. The Supreme Court did not accept the NAACP’s reading of history; in his Brown opinion, Chief Justice Earl Warren concluded the historical record was “inconclusive” on the question of school segregation. Yet the basic assumption about Reconstruction history on which the NAACP legal brief turned—that the aspirations of the most egalitarian voices of the day deserve special weight in assessing the meaning of the Reconstruction amendments—has today become a core tenet of legal and historical scholarship.
I’ll add a postscript concerning the legal historian Willard Hurst and the labor historian Herbert Gutman, at the time, a graduate student in the History Department at the University of Wisconsin.  Professor Schmidt writes that among William T. Coleman, the first Black American to clerk for a U.S. Supreme Court justice,  while a lawyer in private practice, assisted the NAACP’s efforts by using his contacts as a Harvard Law School alumnus to “commission studies of the circumstances surrounding the ratification of the Fourteenth Amendment in the various states” and that two folders of the research material Coleman thus obtained survive in the NAACP Papers in the Library of Congress.  

One of Coleman’s contacts was Willard Hurst, as I learned some years ago while researching the legal historian in the Frances and Willard Hurst Papers at the State Historical Society of Wisconsin. (I have never worked in the NAACP files Professor Schmidt cites.)   Hurst summarized his research into official sources on Wisconsin’s ratification of the Amendments in the twenty-one-page “Memorandum Regarding the 13th and 14th Amendments, in Wisconsin, and Related Subjects.”  As he explained to Coleman, “Mr. Herbert Gutman, a graduate student in our history department”--and subsequently a great American labor historian--took on “local newspaper files.” Hurst’s memorandum and Gutman’s nine-page statement also survives in the Frances and Willard Hurst Papers.  Hurst noted the relatively small number of African Americans resident in Wisconsin in the 1860s–only 1,171 in the 1860 census.  “It seems plain that there would have been no thought of segregated schools in this situation.”  Gutman similarly concluded, “Nowhere was the question of segregation raised or discussed by the opponents” of the 13th and 14th amendments.  

Hurst sent the memoranda to Coleman with a letter of transmittal dated July 28, 1953.  “Realistically, I suppose about everything which I send you is at best only tangential to the key issue in the pending cases,” Hurst explained.  “All of this Wisconsin material convincingly adds up to a clearly preponderant contemporary opinion in support of equality of treatment before the law.  But this, in itself, is logically compatible with segregation; and nothing in the Wisconsin materials seems to me to bear directly on the separate-but-equal position.”

A section of the NAACP brief that fall argued that “There is convincing evidence that the State Legislature and conventions which ratified the Fourteenth Amendment contemplated and understood that it prohibited State legislation which would require racial segregation in public schools,” although it acknowledged that the evidence was of “somewhat less uniform character” for Northern than Southern states.  The two pages devoted to Wisconsin (176-177) echoed a point Hurst’s memorandum: “during the crucial years [Wisconsin’s] Negro population was insignificant–less than two tenths of one-percent.  Thus it seems obvious why segregation in schools or elsewhere never merited the attention of the legislature at the time of its ratification of the Amendment or thereafter.”  The brief continued with quotations of the governor, who seemed to think the Fourteenth Amendment would apply only to the South, and to the minority member a legislative committee that recommended adoption because it would “give to the federal government the supervision of all the social and domestic relations of the citizen of the state and to subordinate state governments to federal power.”   

I’m afraid my notes do not verify that the Wisconsin governor’s and committeeman’s statements appear in Hurst’s memorandum.  If they do appear there and it in fact was the source for the passage in the NAACP brief, Hurst may be said to have contributed to the “bold (if often tendentious) revisionist history of the Fourteenth Amendment” Professor Schmidt describes, even though Hurst himself concluded that the Wisconsin history was as inconclusive as Alexander Bickel, Felix Frankfurter, and Earl Warren found the congressional history to be.

--Dan Ernst

Thursday, June 23, 2022

Roberts on the Global Red Scare, 1913-1927

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted The Global Red Scare and the Anti-Worker Repressive Model, 1913-1927, which appears in the Cardozo Journal of International and Comparative Law:

This article considers the extensive repressive measures enacted around the world during and in the wake of the First World War. While repressive developments in the World War I and post-war periods have previously been examined in different national contexts, little scholarship has adopted a more global lens. To better organize and consider the relevant developments, this article develops a typology of six different categories of public order governance into which the majority of the repressive measures of the period may be classified: the passage of new laws; the development of new institutions; raids, arrests, prosecutions, and other judicial and administrative measures taken against suspected dissidents; direct suppression via the deployment of state force; the development of new ideological formations; and the creation and strengthening of parastatal organizations. Considering developments around the world during and in the aftermath of World War I with the help of this typology helps to make clear how extensive in both kind and scope the innovations and extensions of repressive public order governance in the period were. Global study of such developments helps to reveal, moreover, how little such measures were solely or even primarily concerned with wartime exigencies, and how much, in contrast, they were concerned with clamping down on labor unrest, socialist agitation, and anti-colonial resistance. The developments of the period are not only a historical curiosity; rather, they continue to inform key components of repressive governance in numerous states today. As such, more directly confronting and addressing the history of such laws is essential to achieving greater respect for human rights in the contemporary world. 
--Dan Ernst

Wednesday, June 22, 2022

LHR 40:2

Law and History Review 40:2 (May 2022) is now available online:

Using Topic-Modeling in Legal History, with an Application to Pre-Industrial English Case Law on Finance
Peter Grajzl, Peter Murrell

Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions
Will Smiley

The Surveillance State and the Surveillance Private Sector: Pathways to Undercover Policing in France and the United States
Jacqueline E. Ross

Religion, Law, and the Dynamics of Intellectual Transmission: Weimar Jurisprudence among Religious Socialists in Israel
Alexander Kaye

Heart Transplants, Legislating Death, and Disruptive Anti-Apartheid Advocacy
Meredith Terretta

Book Reviews


Sara M. Butler, Pain, Penance, and Protest: Peine Forte et Dure in Medieval England. Cambridge: Cambridge University Press, 2022. Pp. xiv, 474. $135.00 hardcover (ISBN 9781316512388)
Henry Summerson

Tom Johnson, Law in Common: Legal Cultures in Late-Medieval England. Oxford: Oxford University Press, 2020. Pp. xii, 324. $105.00 hardcover (ISBN 9780198785613)
Anthony Musson

Catherine L. Evans, Unsound Empire: Civilization & Madness in Late-Victorian Law. New Haven and London: Yale University Press, 2021. Pp. 304. $65.00 hardcover (ISBN 9780300242744)
Katherine D. Watson

Christopher W. Schmidt, Civil Rights in America: A History. Cambridge: Cambridge University Press, 2020. Pp.250. $114.95 hardcover (ISBN 9781108426251); $39.95 paperback (ISBN 9781108444972)
Sophia Z. Lee

--Dan Ernst

Schwartz on Treanor on Gouverneur Morris

New in MLR Online: David S. Schwartz’s Framing the Framer: A Commentary on Treanor’s Gouverneur Morris as “Dishonest Scrivener,” a response to William Treanor’s article, "The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution," in the Michigan Law Review 120  (2021): 1:

Gouverneur Morris (LC)
The “framing” of Morris as the “dishonest scrivener”—“framing” both as an organizing device and as an unfair accusation—detracts from Treanor’s superbly presented research. There is an understandable writerly appeal to building a historical narrative around the brilliant and roguish character of Gouverneur Morris (who Treanor brings to life in a vivid biographical sketch). But ultimately, as I will try to show, the evidence of dishonest intent on the part of Morris is too thin and speculative to sustain the “dishonest scrivener” narrative.

--Dan Ernst

Tuesday, June 21, 2022

Wonnacott's "Forgotten Land Law"

Mark Wonnacott has published Forgotten Land Law, with Talbot Publishing, an imprint of The Lawbook Exchange.  Mr. Wonnacott “spent more than thirty years in full time practice at the Chancery Bar, the last ten in silk."

Do you ever worry that all our modern textbooks tell the same story about land law in England and Wales, and that it might be the wrong story? That fewer than half a dozen books came through the great extinction event of the 1925 Birkenhead legislation, to frame the way that we have thought about land law ever since? This book is about the narratives that were forgotten. It is about what needs to be remembered, for principled decision making today. And if it were possible to write a thoroughly subversive book about black-letter land law, then this would be it.

--Dan Ernst

Berger and Scherpa on Mohegan Women and the Mohegan Church

Bethany Berger, University of Connecticut School of Law, and Chloe Scherpa, have posted Mohegan Women, the Mohegan Church, and the Lasting of the Mohegan Nation:

On a hill at the end of Church Lane in rural Uncasville, Connecticut, stands the Mohegan Congregational Church. To someone unfamiliar with its history, the church might represent Mohegan acculturation, a triumph of missionaries in breaking an Indigenous people from their “heathen” ways. But the church is part of a long history of Mohegan transformation of non-Indian ways to preserve their land and community in the face of colonialism. While most of these efforts won only temporary success, the church remained as a center of the tribe, paving the way for tribal recognition and reestablishment of the Mohegan Reservation in the late twentieth century. And women were always the center of this history, recovering and making visible women’s traditional importance in Mohegan politics and culture. This Article tells this story, along with the story of the missionary woman whose work with the Mohegans allowed her to resist prescribed roles for early-nineteenth-century White women.

Sherpa, who now is in house at the Travelers Indemnity Company, worked on this topic as a student in Professor Berger’s Race and Property in U.S. History class

--Dan Ernst

Monday, June 20, 2022

Mechanick on Common-Law Arbitrary and Capricious Review

Alexander Mechanick, Policy Advisor, Office of Information and Regulatory Affairs in the Office of Management and Budget, has posted The Interpretive Foundations of Arbitrary or Capricious Review, which is forthcoming in the Kentucky Law Journal:

This Article argues that arbitrary or capricious review would exist even if the Administrative Procedure Act (APA) had never been enacted. Indeed, stretching back to the common law of England, 19th century municipal law, and decades of challenges to federal agency actions preceding the APA, courts were reviewing the reasonableness of actions taken by those vested with government power under similar standards. Because this history has been overlooked, it has commonly been asserted that arbitrary or capricious review at the time of the APA’s enactment meant little more than rational-basis review. Under this standard narrative, it was only decades later that arbitrary or capricious review gained teeth, during the rise of “hard look” review. This Article demonstrates that the standard narrative is wrong. In fact—while arbitrary or capricious review always emphasized the breadth of reasonable disagreement and the need to defer to agencies’ specialized expertise—a strong form of review existed decades before the rise of rational-basis review in the late 1930s, and persisted through the adoption of the APA in 1946. Arising originally as a canon of interpretation, arbitrary or capricious review—even after it was incorporated into statutes—set a binding limit on the unreasonableness with which an agency could wield the discretionary power granted to it. This Article shows that scholars and judges alike will only succeed in creating a clear and workable administrative law jurisprudence when they accept and embrace the interpretive foundations of arbitrary or capricious review.

–Dan Ernst

Saturday, June 18, 2022

Weekend Roundup

  • The Supreme Court Historical Society has announced the virtual conversation, The Jay Family of New York: Abolition, Slavery and an Enslaved Woman Named Abigail: A Conversation between Martha Jones and David Gellman, to be held on July 26, 2022, starting at 12:00 PM ET.  More.
  • Scott Gerber, Ohio Northern University,  reviews Evan Haefeli’s Accidental Pluralism: America and the Religious Politics of English Expansion, 1497–1662 (Law & Liberty).
  • Kyle Mays, University of California, Los Angeles, discusses his new book, City of Dispossessions: Indigenous Peoples, African Americans, and the Creation of Modern Detroit (University of Pennsylvania Press, 2022) (Current).
  • Podcast aficionados, we've had History is Us, by Eddie S. Galude, Princeton University, commended to us, and, two episodes in, we can say that we are enjoying and learning from Joshua Lash's four-part podcast on the life and legacy of Dietrich Bonhoeffer, which is the first season of the Patheos series, From Sin to Saint.  DRE
  • ICYMI: The records of the Sojourner Truth’s freedom suit for her son have been discovered (AP NEWS).  A video on same from USA Today.  The Surprising History of Abortion Rights (CNN).  Before Roe: the abortionist Nathan Rappaport (Slate).  The New Haven Roots of Roe v. Wade (New Haven Independent).   "Blue discharges" and homosexual behavior in the US military (History Channel).  A Short History of LGBTQ Rights at UVA Law and Beyond (UVA Law).  The worst decision of the Washington State Supreme Court (Chronicle).

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

Friday, June 17, 2022

Ross to Lecture on the Rule of Law in British North America

On June 23rd, Richard Ross, the David C. Baum Professor of Law and Professor of History at the University of Illinois (Urbana-Champaign), will deliver the Max Planck Lecture in Legal History and Legal Theory at the Max Planck Institute of Legal History and Legal Theory in Frankfurt, Germany.  The title of the lecture is The Rule of Law in British America: Thinking with Indians While Comparing to Spaniards.

Settlers in British North America used stylized depictions of indigenous peoples to argue about what the rule of law meant in a New World polity.  Colonial rule invited accusations of arbitrary government, extortion, and systematic lawlessness.  By pointing to specific features of caricatured Native life and law, settlers could affirm that their polity adhered to law rather than to arbitrary will, passion, and predation.  Or they could deny it.  Or they could try to change what the rule of law meant in practice.  Accounts of indigenous peoples served as a contrast or counterpoint that helped British Americans legitimate, shape, and critique their own rule of law.  The paper explores four ways this happened. Examples from Native neighbors provided a background against which colonists argued about violent self-help, the meaning of “despotism,” and the implications for their legal system of anglicization.  In arguing about the rule of law, English settlers were thinking with Indians.

At various points, the paper will contrast the Spanish to the British American use of Natives to reflect on the rule of law.  In particular, the essay will focus on how different reconstructions of pre-contact Inca and Aztec history could be turned towards defending the rule of law in New Spain and Peru.  These Spanish American moves, some among many, can help identify what was distinctive and interesting in the British American strategies.

Professor Ross, with his co-authors Jane Ohlmeyer and Philip Stern, will also deliver the keynote lecture at the conference Beyond the Pale: Legal Histories on the Edges of Empires, 29 June-1 July 2022, Maynooth University, Ireland: “Anglicisation of and through Law in British America, Ireland, and India, c.1550-1800.”

Early Illinois Supreme Court Case Files to Be Digitized

[We have the following announcement from John A. Lupton, Executive Director of the Illinois Supreme Court Historic Preservation Commission.  DRE. H/t: JLG]

The Illinois Supreme Court Historic Preservation Commission was notified that we received a grant from the National Historical Publications and Records Commission for $135,000 to digitize early Illinois Supreme Court case files (1818-1865). This period includes the transformation of Illinois from a frontier state to one of the largest states in the country and covers the rise of Chicago, manufacturing/agrarian disputes, Abraham Lincoln’s legal career, slavery in Illinois, the Civil War, and a host of other topics of interest to historians, museum professionals, genealogists, and the legal community.

The grant is over a period of two years in which we will scan documents and create metadata for the cases. The end product will be a freely accessible website to search for cases via subject matter, participants, counties, etc., in order to look at PDFs of the case files.

We’re excited about this opportunity and follow in the footsteps of states like Missouri, Tennessee, and others that have their early Supreme Court records online and available for research.

For more details, here’s a link to our Illinois State Bar Association newsfeed.

Thursday, June 16, 2022

Recent Books on the Constitution: A Reading List

Over at Volokh Conspiracy, my Georgetown Law colleague Randy Barnett has listed the selections for his seminar, “Recent Books on the Constitution,” since 2005.  He explains:

Every year, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. Because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me.

The complete list of all the books I have assigned is below. Since 2005, I have assigned 85 books by 79 authors, with Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Philip Hamburger, and David Bernstein each making 2 appearances. Four books were assigned in manuscript before publication. This fall, I am assigning a portion of my book with Evan Bernick: The Original Meaning of the 14th Amendment: Its Letter and Spirit [and five other books].

--Dan Ernst

Wednesday, June 15, 2022

Bowie and Rast on Chinese Exclusion and the "Imaginary Immigration Clause"

Nikolas Bowie and Norah Rast have published The Imaginary Immigration Clause in the Michigan Law Review 120:7:

For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws.

This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws.

In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.
--Dan Ernst

Zelenak and Mehrotra on Surrey

Lawrence Zelenak, Duke University School of Law, and Ajay K. Mehrotra American Bar Foundation and Northwestern Pritzker School of Law, have posted Stanley S. Surrey: A Life in Taxes, the introductory chapter to A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey (eds. Zelenak and Mehrotra, 2022):

Stanley S. Surrey was the most prominent mid-twentieth-century American tax law academic, and the federal government official with the greatest influence on tax policy over that same period (aside from politicians). His professional life with the federal tax system spanned half a century, ending only with his death at the age of 73 in 1984. As Surrey writes in his memoirs, he had good reason to "doubt that any person alive today has had as close and as varied a relationship with the Internal Revenue Code as I have had."

He divided the five decades of his professional life between academia (three early years at the University of California, Berkeley, followed by many years at Harvard Law School), and two lengthy tours of duty in the service of the U.S. Treasury Department. In his second Treasury stint he served as the Assistant Secretary of the Treasury for Tax Policy, the highest executive branch position exclusively focused on taxation. Surrey's influence on the federal tax system was deep and pervasive and continues to this day; perhaps his most enduring accomplishment has been his development of tax expenditure analysis, which since the 1970s has played a central role in a wide range of tax policy discussions.

At his death in 1984, Surrey had written polished drafts of the majority of his planned professional memoirs. Until now, the memoirs have remained unpublished in the archives of the Harvard Law School Library. Lawrence Zelenak and Ajay K. Mehrotra have edited and annotated the memoirs for publication to produce this collection. This SSRN paper contains the comprehensive introductory essay from the volume. The book, as a whole, focuses on Surrey's professional life and his contributions to tax policy, as well as extensive annotations providing important background on the people and events Surrey discusses in the memoirs.
--Dan Ernst

Tuesday, June 14, 2022

The Docket's Special Issue on Hobbs

The Docket, which is the digital sidekick to Law and History Review, has just posted a special issue prompted by the leaked draft opinion in Dobbs v. Jackson Women's Health Organization.  As the editor, Gautham Rao, writes: 

An undercurrent in the tidal wave of commentary on the Dobbs draft has concerned Justice Alito’s historical analysis that serves as the foundation of his decision to overturn Roe v. Wade. Constitutional law scholars such as Aziz Huq have explained: “For instance, the draft majority opinion spills a good deal of ink on the history of abortion regulation in England and the United States (skimming over, as it does it, the considerable periods in which abortion was left to the free choice of women).”

Here are the contents:

Editor’s Note: The Dobbs Special Issue

Dr. Lauren MacIvor Thompson: Roe v Wade and Feminism: The Limits of Public Memory

“Abortion Was a Crime”? Three Medievalists respond to “English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime.”

Felicity Turner: A View of Dobbs from the 19th Century

Alison Lefkovitz
: The Population Politics of Dobbs?

Dr. Deborah Dinner: Originalism and the Misogynist Distortion of History in Dobbs?

--Dan Ernst

CfC: Journal for Digital Legal History

 [We have the following Call for Contributions.  DRE]

The Journal for Digital Legal History (DLH) is a diamond Open Access and peer-reviewed international journal hosted by the Open UGent platform. We are pleased to invite contributions from researchers working on legal history with digital, empirical and computational approaches for our first annual issue to be published in November 2022. The journal welcomes all research questions and outputs at the intersection of legal history, digital humanities and empirical legal studies, broadly defined.

In the field of legal history, digital methods are hardly ever the centrepiece of a publication itself, if not downplayed. In 1997, Richard Evans claimed that: 'How we know about the past, what historical causation is, how we define a historical fact, whether there is such a thing as historical truth or objectivity - these are questions that most historians have happily left to one side as unnecessary distractions from their essential work in the archives' (R. Evans, In Defence of History, 1997, p. 9). Nevertheless, in the 21st century, the work of a historian or legal scholar does not stop in the archives. Often, digital or computational techniques are applied in seemingly pedestrian ways such as "searching" full texts, or they are applied in more elaborate methods to transform the historical facts embedded in our precious archival material or legal documents, to answer novel research questions or to explore well-trodden paths from an innovative perspective.

The application of digital techniques to legal history research is often overlooked or omitted from discussions on methodology. We encourage you to highlight the technical tools or methods that proved effective to your research projects, without neglecting all the trials and errors that helped structure your final choice of any particular technique. You are welcome to illustrate your work with all forms of outputs, from notebooks to graphs, networks, maps, diagrams, etc.. If you have developed software, a database or a dataset that others could reuse, feel welcome to publish it with us.

General Call for Contributions: continuous call for submissions

Submissions that address legal sources from any historical period and any part of the world are welcome. We actively encourage collaborative and multi-authored pieces by authors from different countries working across disciplines.

We accept publications in English; we can also support German, French, Spanish, Italian and Portuguese but do contact the editorial board in advance. If you wish to publish in another language than mentioned here, please consult us beforehand.

Beyond the following suggestions, feel free to contact us through the DLH website if you have any original ideas that you want to discuss.

Topic suggestions

  • Original research articles (up to 10,000 words).
  • Reproduction-pieces: Can the results of classic studies be replicated through DLH-techniques?
  • A dedicated section for your Digital Legal History events: If you are organising a panel, conference or webinar series that prominently features Digital Humanities performed on legal sources, contact us for a dedicated focus section allowing you to publish the papers or conclusions of your meeting.
  • Shorter focus pieces or provocations (around 5,000 words with fewer footnotes).
    • Conference and seminar reports.
    • Spotlight articles: inspiration from other social sciences fields on the promising benefits of specific Digital Humanities techniques that could be successfully applied to Digital Legal History.
  • Presentations or Reviews of softwares, databases, datasets, websites, and platforms.
    • Tutorials: general presentation, application through a specific study angle (legal linguistics, marginalia analysis).
  • Trials & errors: reflections on the productive role of wandering and errors in abandoned, rejected or substantially modified past projects that could help improve the current methodology (inspired by the Journal of Trial & Error).

Formats.  We are open to submissions in traditional and non-traditional formats: from traditional articles to blog posts, from plain text to linked data or hyperlinked texts, from posters to Notebooks, etc.. Illustrations could be included in the form of notebooks, graphs, diagrams, maps, networks, and images.

Timeline
.  Upon receiving your contribution, we aim to publish it within 2-4 months, depending on a positive peer-review. Please send us a short abstract of 150 words, including a provisional title, suggested format and up to five keywords. You can find the detailed guidelines for authors on the journal's website. Please include a short biographical statement for the proposed contributor(s), including the area of expertise, interests, affiliation (if applicable), and any other relevant information. We will respond to all abstract submissions within 14 days (in July and August, this may take a bit longer).

We have two specific calls for contributions open (see below):

Call for Contributions: Dedicated "Focus-section: Early Career Digital Legal Historians: dare, test and surprise".

We are pleased to invite proposals from researchers and others working with digital legal history in the early stages of their careers, for a special section of the Journal for Digital Legal History for publication in November 2022. The theme of this section is "dare, test and surprise".

Digital techniques are often not explicitly discussed, and we would encourage you to show us which techniques worked for your research - but we are also open to explaining which techniques failed. You are welcome to illustrate your work with e.g. notebooks. If you have developed software, databases or -sets that others could reuse: feel welcome to publish with us.

  • Length: Pieces in this section should count 2,500-5,000 words (up to 10,000 words max.). Do also consider alternative formats, such as fully explained Notebooks, posters with an additional explanation or linked videos, tutorials or course outlines.
  • We accept publications in English; we can also support German, French, Spanish, Italian and Portuguese but do contact the editorial board in advance. If you wish to publish in another language than mentioned here, please consult us beforehand.
  • Timeline:
    • Please send an email before July 1st, 2022, with a short proposal (150 words), including a provisional title and suggested format (and length) for your contribution. Please also include a short biographical statement for the proposed contributor(s), including the area of expertise, interests, affiliation (if applicable), and any other relevant information. We will respond to all submissions within 14 days. Mention in the subject line of the contact form to which CfC you are submitting.
    • Submission of your full contribution (of any kind) before September 30th, 2022.
    • Peer-review reports before November 4th, 2022.
    • Submission of the final version between November 18th - 25th, 2022.
    • Appearance on the website – pending positive peer review – two to three weeks after final submission.

Call for Contributions: dedicated "Focus-section: Global DLH: show, tell and teach".

We are pleased to invite proposals from researchers and others working with digital legal history at any stage of their career for a special section of the Journal for Digital Legal History for publication in November 2022. The theme of this section is "Global DLH: Show, tell and teach".

We actively encourage ECR and researchers from more diverse background to publish with us (non-English primary sources, institutions based outside Europe and North America) to contribute to this focus-section on the particular challenges they encountered in their research, either through necessary adaptations of certain digital techniques or through decisions to implement specific settings in their collaborative work.

  • Length: Pieces in this section can count 2,500-5,000 words (up to 10,000 words max.). Consider alternative formats, such as fully explained notebooks, posters with additional explanations or linked videos, tutorials or course outlines.
  • We accept publications in English; we can also support German, French, Spanish, Italian and Portuguese but do contact the editorial board in advance. If you wish to publish in another language than mentioned here, please consult us beforehand.
  • Timeline:
    • Please send an email before July 1st, 2022, with a short proposal (150 words), including a provisional title and suggested format (and length) for your contribution. Please also include a short biographical statement for the proposed contributor(s), including an area of expertise, interests, affiliation (if applicable), and any other relevant information. We will respond to all submissions within 14 days. Mention in the subject line of the contact form to which CfC you are submitting.
    • Submission of your full contribution (of any kind) before September 30th, 2022.
    • Peer-review reports before November 4th, 2022.
    • Submission of the final version between November 18th - 25th, 2022.
    • Appearance on the website – pending positive peer review – two to three weeks after final submission.