Saturday, June 19, 2021

Weekend Roundup

  • A Call for Applications for visiting fellowships at the Institute for Interdisciplinary Legal Studies, University of Lucerne (deadline: 30 Sept. 2021)
  • Nate Holdren is interviewed on Injury Impoverished (In These Times). 
  • Arizona State University History PhD candidate William Hobby has won a scholarship to
    research he “legal and cultural history of conflicts surrounding proposed expansion of the Arizona Snowbowl ski area on the San Francisco Peaks north of Flagstaff, primarily during the 1970s. . . .  'The San Francisco Peaks are sacred to numerous Indigenous nations of the American Southwest, and representatives from the tribes, especially the Diné and Hopi, were active in attempting to stop further development,' Hobby said."
  • ICYMI:

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

Friday, June 18, 2021

Barrett on RBG and the Dumbbell-Lifting Case

John Q. Barrett, St. John's University School of Law, has posted Ruth Bader Ginsburg: Litigating Against Gender Discrimination...and Remembering One Such New York Case, which appears in 16 Judicial Notice 51-61 (2021).

RBG (LC)
This tribute to Justice Ginsburg, published by the Historical Society of the New York Courts, focuses on her New York State ties and activities.

Ruth Bader Ginsburg was born and raised in Brooklyn and graduated from Cornell University and, later, Columbia Law School. She became a New York lawyer and, in time, a law professor at Columbia and, in 1972, co-director of the American Civil Liberties Union’s Women’s Rights Project.

From her ACLU base in New York City, Professor Ginsburg litigated pathmaking cases regarding the equal rights of women and men. She participated in thirty-four cases before the Supreme Court of the United States, including presenting oral arguments to the Justices in six cases.

This article describes that history, and also Ginsburg’s participation in one New York City gender discrimination case that went up to the New York Court of Appeals, the State’s high court, but not, ultimately, to the U.S. Supreme Court. The New York Civil Liberties Union (NYCLU), the national ACLU’s New York City affiliate, brought this case, Sontag v. Bronstein. It concerned a dumbbell-lifting test that New York City’s civil service commission imposed as a job qualification on two women who were school audio-visual aides; because they failed the weight-lifting test, the City moved to dismiss them from their jobs. They sued, claiming gender discrimination. Their lead attorney was NYCLU lawyer Eve Cary. Joining her on the brief in the New York Court of Appeals was then-Professor Ginsburg. They won—the dumbbell test was sexist government harassment of women, not a bona fide job test.

Justice Ginsburg always remembered the Sontag case, its striking facts, and Eve Cary’s powerful brief. Justice Ginsburg kept that brief close at hand, including as she wrote the Supreme Court’s 1996 landmark gender equality decision, United States v. Virginia. In many senses, that decision was a culmination of the constitutional lawyering that Cary, Ginsburg, and their NYCLU and ACLU colleagues had done, including in Sontag, two decades earlier.

--Dan Ernst

A Symposium on Lash's "Reconstruction Amendments"

This week Balkinization is hosting a symposium on Kurt Lash's new two-volume collection, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021).  The commentators are Christopher Green (Mississippi), Sandy Levinson (Texas), Gerard Magliocca (Indiana), Jennifer Mascot (George Mason), Darrell Miller (Duke), Richard Primus (Michigan), Bradley Rebeiro (BYU), Lee Strang (Toledo), Lea Vandervelde (Iowa), and Jack Balkin (Yale).  Lash will respond.

--Dan Ernst

Thursday, June 17, 2021

Job Announcement: KU Leuven

 [We have the following announcement.  DRE]

The Faculty of Law of KU Leuven, invites scholars to apply for a full-time research professorship in the Research Unit for Roman Law and Legal History. This position is funded by the Special Research Fund (BOFZAP), established by the Flemish Government.    

We are looking for motivated and internationally oriented candidates with an excellent research record and with educational competence in the field of modern legal history. The appointment is expected to start on October 1, 2022. Applications will be evaluated in parallel and independently by 1) the KU Leuven Research Council in a competitive process across academic domains and 2) the faculty advisory committee.  During the first 10 years, the teaching obligations as a research professor will be limited. Afterwards, the position will be transformed into a regular professorship.

This vacancy concerns modern legal history, since 1750. Preferably, the candidate should be adept in the comparative study of historical law, have a view on the Europeanisation and globalization of legal scholarship and see legal history as an integral part of legal thought.

This position is imbedded in the Research Unit for Roman Law and Legal History. The unit consist of 3 professors and about 10 junior researchers. Its research focuses on European and international legal history since the 16th century, and in particular on three themes: the intellectual history of the jus commune, the history of economic law and the history of international law.

Venzke & Heller, eds., "Contingency in International Law: On the Possibility of Different Legal Histories"

New from Oxford University Press: Contingency in International Law: On the Possibility of Different Legal Histories, edited by Ingo Venzke (University of Amsterdam) and Kevin Jon Heller (University of Copenhagen). A description from the Press:

This book poses a question that is deceptive in its simplicity: could international law have been otherwise? Today, there is hardly a serious account left that would consider the path of international law to be necessary, and that would refute the possibility of a different law altogether. But behind every possibility of the past stands a reason why the law developed as it did. Only with a keen sense of why things turned out the way they did is it possible to argue about how the law could plausibly have turned out differently.

The search for contingency in international law is often motivated, as it is in this volume, by a refusal to resign to the present state of affairs. By recovering past possibilities, this volume aims to inform projects of transformative legal change for the future. The book situates that search for contingency theoretically and carries it into practice across many fields, with chapters discussing human rights and armed conflict, migrants and refugees, the sea and natural resources, foreign investments and trade. In doing so, it shows how politically charged questions about contingency have always been.

The Table of Contents:

Tambe on sexual maturity laws in India

 We missed this one back in 2019, when Ashwini Tambe (University of Maryland College Park) published Defining Girlhood in India: A Transnational History of Sexual Maturity Laws with the University of Illinois Press. From the publisher: 

At what age do girls gain the maturity to make sexual choices? This question provokes especially vexed debates in India, where early marriage is a widespread practice. India has served as a focal problem site in NGO campaigns and intergovernmental conferences setting age standards for sexual maturity. Over the last century, the country shifted the legal age of marriage from twelve, among the lowest in the world, to eighteen, at the high end of the global spectrum.

Ashwini Tambe illuminates the ideas that shaped such shifts: how the concept of adolescence as a sheltered phase led to delaying both marriage and legal adulthood; how the imperative of population control influenced laws on marriage age; and how imperial moral hierarchies between nations provoked defensive postures within India. Tambe's transnational feminist approach to legal history shows how intergovernmental debates influenced Indian laws and how expert discourses in India changed UN terminology about girls. Ultimately, the well-meaning focus on child marriage became tethered less to the well-being of girls themselves and more to parents' interests, population control targets, and the preservation of national reputation.

Praise for the book:

 "Defining Girlhood makes significant interventions in the historiography of childhood and youth in South Asia, which often treats the child as ungendered and has had little to say about girls specifically. Tambe's work also speaks to historians of gender, who have tended to neglect the significance of girlhood as a category distinct from womanhood. Perhaps most importantly, the book brings historical and geographic specificity to our understanding of girlhood."--Journal of the History of Childhood and Youth

"Tambe’s book is a compelling read, making the case that contemporary development engagements with girls are rooted in a history of imperialist discourse that rendered girlhood central to debates on civilization and modernity."--Journal of South Asian Development

"Who is a girl? Tracking this not-so-simple question from the late-colonial to the contemporary moment, Ashwini Tambe weaves an intellectual, cultural, and transnational history of the girl question in India. Garnering an astonishing range of sources and crafted in sparkling prose, Defining Girlhood in India illuminates the scientific racism at the heart of British colonial efforts to link early puberty to climate and Indian backwardness; Indian nationalist arguments about parental control of the sexual lives of girls; US and Indian psychologist constructions of adolescence and their playful representations in vernacular magazines; demographers' claims about raising the marriage age to control high fertility rates; and the state and international development agencies' discovery that investing in girls is good for development. In the process, the travels of knowledge from the imperial heartland to India but also from South Asia to international forums and discourses are meticulously mapped. This book should be required reading for courses in transnational feminism and South Asian studies." - Priti Ramamurthy

"A fascinating book on the politics of girlhood in India within the contexts of a global morality discourse, national interests, and international law. Tambe makes an exceptional contribution to girlhood studies." - Sylvanna M. Falcón

Further information is available here.

--Mitra Sharafi

Wednesday, June 16, 2021

Lovelace, Jr., "Of Protest and Property: An Essay in Pursuit of Justice for Breonna Taylor"

Thirteen law journals recently published symposium essays on the theme of "Reckoning and Reformation: Reflections and Legal Responses to Racial Subordination and Structural Marginalization." One of the essays published by Northwestern Law Review was by legal historian H. Timothy Lovelace, Jr. (Duke University School of Law). Here's the abstract:

In March 2020, Louisville police officers fatally shot Breonna Taylor in her apartment while executing a no-knock warrant. There was great outrage over the killing of the innocent woman, and Kentucky Attorney General Daniel Cameron led an investigation of the officer-involved shooting.

Activists protested in Louisville after Taylor’s killing,and when Cameron’s investigation appeared stalled, these activists even conducted a sit-in on Cameron’s front lawn. They demanded immediate justice for Taylor. Cameron sharply responded, lecturing the activists on how to achieve justice. He contended that neither trespassing on private property nor escalationi n tactics could advance the cause of justice.

Cameron’s bold assertion invites a discussion of how civil rights activists have and continue to use trespassing and escalation to pursue justice. This Essay explores the relationship between civil rights and property rights and finds parallels between the sit-in movement of the 1960s and the Black Lives Matter Movement. This Essay also finds parallels between Cameron’s criticisms of the Black Lives Matter Movement and criticisms of the sit-in movement of the 1960s. The Essay concludes by suggesting paths forward in the struggle to find justice for Taylor.

The full essay, titled "Of Protest and Property: An Essay in Pursuit of Justice for Breonna Taylor," is available here.

-- Karen Tani

CFP: American Political History Conference 2022

[We have the following CFP.  DRE]

American Political History Conference: The Past, Present, and Future of American Democracy.  June 10-11, 2022, Purdue University, West Lafayette, Indiana

At a moment when democracy is under assault in the U.S. and abroad, and when grassroots activism is rapidly and radically altering the terms of political debate, U.S. political history has been thriving, both inside the academy and in the wider world of activism, journalism, and politics. This conference aims to bring together cutting-edge scholarship with new forms of public engagement to use historical research and thinking to understand and address twenty-first century political challenges. This event will bring political historians into conversation with one another and the broader public and grapple with the idea of what it means to study American political history.  It will create opportunities to build networks, share new research, debate ideas, think about the implications of this research in our contemporary setting, and discuss strategies for public engagement.  This conference aims to encourage expansive reassessments of the parameters of American political history and the ways in which we disseminate historical scholarship within and outside the academy.

This conference encourages a diversity of approaches and perspectives while cultivating opportunities for robust dialogue that will continue to expand the field in new ways.  By also including new media formats and individuals who serve as bridges between scholars and the broader public, this conference will address the question of how historians adjust to the abundance of digital opportunities for scholarship, publication, and engagement while confronting the reality of collapsing academic support.

We invite panel and paper submissions that reflect the diversity of the field of American political history, from the Early Republic to recent history, and that will generate debates and discussions over how to define and pursue political history.  As such, we invite historians in a range of subfields and disciplines—legal history, urban history, policy history, diplomatic and transnational history, history of capitalism, history of science, medicine and technology, media studies, and political science—to think about how we write and discuss political history.

We also welcome scholars from different arenas—including academia, public history, public policy, journalism, documentary film, television, and radio—to launch conversations about the contemporary meaning and uses of history.  More than just sharing specific historical insights, this conference aims to bring together an intellectual community of historians within and beyond academia to inspire conversations about the uses of history, the public responsibilities of historians to engage a broader audience and the skills needed to do this.  As such, we especially welcome proposals for sessions that move beyond the traditional panel structure and encourage roundtable debates, collaborative think sessions in which participants grapple with certain themes and map out new approaches to them, forums on methodology, and workshops in which participants discuss and develop skills (writing for different genres, political history for the digital age, for example). The program committee is deeply committed to inclusion and diversity. We request session proposals with attention to gendered, racial, and career diversity and will have limited funds available to support graduate students and contingent faculty.  We plan to hold the conference in-person but will also consider proposals for virtual sessions.
 
Proposal Deadlines: December 15, 2021

Submission Details: Submissions should be up to 500 words with proposals for individual papers or panel, roundtable, or workshop sessions. Each proposal should also include a biographical statement for each participant of up to 150 words that includes contact information. Please submit proposals in one Word or PDF document to Kathryn Cramer Brownell (brownell@purdue.edu).

Program Committee:

Kathryn Cramer Brownell, Purdue University, Co-chair
Nicole Hemmer, Columbia University, Co-chair
Leah Wright Rigueur, Co-chair
Brent Cebul, University of Pennsylvania
Lindsay Chervinsky, Center for Presidential History, Southern Methodist University
Elizabeth Hinton, Yale University
John S. Huntington, Houston Community College
Kellie Carter Jackson, Wellesley College
Michael Koncewicz, Tamiment Library, New York University
Rachel Shelden, Penn State University

Support for this conference is generously provided by Office of the Provost, Purdue University; Department of History, Purdue University; Jack Miller Center.

Stern on Proximate Causation in Legal Historiography

It is paywalled but interesting: Simon Stern, University of Toronto, has published Proximate Causation in Legal Historiography in the journal History and Theory:

The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play more attenuated roles, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography and to question their persuasive force.

--Dan Ernst

Tuesday, June 15, 2021

CFP: “Sovereignty, States, and Inclusion”

We have word of a new law journal at the University of Michigan, the Michigan Journal of Law and Society, which “promises to blend the best of both worlds in law and society scholarly publishing with both a level of peer review and the publication speed and insights that come with student editing.”  It has issued a call for papers on “Sovereignty, States, and Inclusion”:

In “Politics as a Vocation” (1918), Max Weber defines the state as a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” Much has changed since 1918, as has our understanding of sovereignty.

Scholarship at the nexus of law and social science has grappled with the implications of global integration across many dimensions: national identity, territorial boundaries, regulatory autonomy, socioeconomic and human rights, and integrity of democratic processes, among many others. In the last decade, some scholars went so far as to declare sovereignty a thing of the past, while others continue to insist that it is the central organizing principle of our world. Still others argue that for many of the world’s developing countries, sovereignty has always been illusory.

Given these contrary developments, some suggest that, despite its alleged crisis, national sovereignty retains a great deal of discursive and prescriptive power. The imagined national community continues to structure institutional logics both within and beyond the nation-state. This issue asks writers and reviewers to think critically about the meaning of both sovereignty and the state, broadly conceived. We are interested in how these concepts operate in the present and how they developed and transformed historically. Submissions should recognize that no state is a monolith, and that we often cannot understand states to act in a neat, unilateral, top-down manner. Exploring different dynamics of power and the relationship between various aspects of states, public rights, and identities may also reveal inflection points, helping us to make sense of the past and of our own turbulent times.

We will not place spatial or temporal limits on article solicitations. Possible topics for entries include, but are not limited to:

    • Law, (im)migration, borders & territory
    • The legal construction of sovereignty over time
    • Law & political economy perspectives on the state and/or sovereignty
    • Law & racial capitalism
    • Legal mobilization and the challenges of inclusion
    • International law and national regulatory autonomy & democracy
    • Human and/or socioeconomic rights at the national/supranational level
    • New constitutionalism and global governance
    • The transnationalization of the legal profession and the global rule of law
    • Changing forms of legal consciousness
    • Legal pluralism in a post-globalized world
    • Movement politics, legal institutions, and transcommunal solidarity networks
    • Precarious citizenship, the nation-state, and crisis

If you have any questions about our inaugural theme, please email mjls.execs@umich.edu.
-Dan Ernst

Reiter on wounded feelings in Quebec

 We missed this back in 2019, when Eric H. Reiter (Concordia University) published Wounded Feelings: Litigating Emotions in Quebec, 1870-1950 with the University of Toronto Press. In 2020, the book won the Canadian Historical Association's Best Scholarly Book in Canadian History Prize and the Governor General's History Award for Excellence in Scholarly Research. From the publisher: 

 Wounded Feelings is the first legal history of emotions in Canada. Through detailed histories of how people litigated emotional injuries like dishonour, humiliation, grief, and betrayal before the Quebec civil courts from 1870 to 1950, Eric H. Reiter explores the confrontation between people’s lived experience of emotion and the legal categories and terminology of lawyers, judges, and courts. Drawing on archival case files, newspapers, and contemporary legal writings, he examines how individuals narrated their claims of injured feelings and how the courts assessed those claims using legal rules, social norms, and the judges’ own feelings to validate certain emotional injuries and reject others.

The cases reveal both contemporary views of emotion as well as the family, gender, class, linguistic, and racial dynamics that shaped those understandings and their adjudication. Examples include a family’s grief over their infant son’s death due to a physician’s prescription error, a wealthy woman’s mortification at being harassed by a conductor aboard a train, and a Black man's indignation at being denied seats at a Montreal cinema. The book also traces an important legal change in how moral injury was conceptualized in Quebec civil law over the period as it came to be linked to the developing idea of personality rights. By 1950 the subjective richness of stories of wounded feelings was increasingly put into the language of violated rights, a development with implications for both social understandings of emotion and how individuals presented their emotional injuries in court.

Praise for the book:

 "Wounded Feelings is a very rich book that less seeks to provide a simple explanation of what emotional suffering was meant to be than to use discussions of such feeling as an access point to how people considered questions of self, reputation, bodily autonomy, and personal rights." - Katie Barclay

"Wounded Feelings is an excellent study of how Quebec individuals, lawyers, and judges dealt with legal claims touching broadly on issues in the realm of the emotions. Building on this growing interest in the history of emotions, Wounded Feelings provides fascinating discussion on cases that reveal much about day-to-day life, functional and dysfunctional families, and the social and power dynamics of class, status, age, race, and gender across an eighty-year period of Quebec history." - Bettina Bradbury

"The ground-breaking thesis of Wounded Feelings is supported by outstanding research and an abundance of sources." - Michel Morin

Further information is available here.

--Mitra Sharafi

Monday, June 14, 2021

Guest post: The 1960s lesbian bar that will haunt me forever

[This is one in a series of guest posts by Anna Lvovsky. Her book, Vice Patrol, examines the history of antigay policing at midcentury.]

I imagine all historians have at least one: that story that they cut for perfectible sensible, defensible, perhaps even good reasons, but that continues to haunt them whenever they think back on the book. For me, that story is about Helene’s, a lesbian bar operating in the fall of 1960 in the small borough of Roselle, New Jersey.

In many ways, Helene’s was similar to other lesbian bars in the 1960s. It ran under a veil of secrecy, with a front room catering largely to men giving way to a hidden bar with a jukebox, a dance floor, and tables crowded almost entirely by women. Patrons at Helene’s could cast off the outward trappings of femininity demanded of women in public, sauntering “with a heavy step” around the bar, waving cigarettes and buying each other drinks, wearing men’s slacks, sweaters, ties, and dress shoes. They also cast off any signs of deference in their interactions with the men who wandered in. After one liquor agent tried his luck asking a regular to dance, she cut him short. “You kidding me?” she asked and walked off with a flourish, to the barely concealed delight of the other women. Wary of drawing too much attention, the bartender sometimes warned patrons against dancing together, but on multiple occasions liquor agents reported seeing women clasping each other’s waists in the middle of the dance floor, gazing “very intimately” into each other’s eyes or swaying cheek-to-cheek.

It was that intimacy that made Helene’s stand out. Lesbian bars in the 1960s were often owned and operated by straight men, some (though not all) of whom viewed their patrons with a mix of derision and cold business interest. But both the owner, Helene, and her bartender, Marilyn, were women, and both seemed to be part of the crowd they served. Helene’s routinely hosted the same group of friends; to an unusually degree, agents remarked on how many regulars they recognized. One night, Helene herself was standing by the jukebox when a woman dancing nearby reached out and began tickling her stomach, encountering some playful resistance before Helene gamely submitted to the attack. (At a hearing before the liquor board months later, Helene would testify that the woman was alerting her to an open zipper.) Another night, a patron named Lulu celebrated her birthday. That same group of women gathered around to serenade her while Marilyn emerged from the kitchen bearing a small cake. I wasn’t there, of course, but I imagine the liquor agents receding against the back walls of the bar, watching as the women crowded together, the lights dimmed, their faces lit up by candles.

Lulu’s birthday was the fourth time that liquor agents visited Helene’s that fall. Questioned in her kitchen about the “apparent lesbians” singing to Lulu, Helene was unflappable. “I don’t see any,” she replied. “How can you tell?” By that point, the agents had amassed more than enough evidence to convince the director that Helene was guilty of serving gay customers. Taking into account Helene’s clean record—and acknowledging “little, if any, improper conduct” by her patrons beyond the fact of being lesbian to begin with—the director issued a forty-day suspension rather than revoking her license. But the suspension may have been enough to doom the bar. Within roughly a year, the same location was being operated by a different owner, serving a clientele that raised no similar suspicions.

Happily, though, that wasn’t the end of Helene’s involvement in New Jersey nightlife. Five years later and roughly forty miles south, city officials in Long Branch would gather to celebrate the opening of Off-Broadway, a cocktail lounge with a nightly singer and a live band. A local reporter captured a picture of the mayor presenting flowers to the two owners: a “Miss Claire Tischler” and “her partner, Helene Borisewski.” The nature of the partnership, of course, remains unknown.

Helene passed away at the age of 103, about a year before I discovered these materials. Her obituary celebrated the same charisma and irrepressible spirit on display in her encounters with the liquor board, as well as her loving ties to a host of nieces, nephews, and friends. It made no mention of a spouse or partner. Nor did it bear any traces, really, of Helene’s life as a daring entrepreneur. I tried to contact a relative to ask if they might be interested in sharing more about Helene’s remarkable life, but I never received a response.

Few of these details appear in my book. With earlier drafts of my first chapter already far too long, the argument seemed to be disappearing behind the weight of too many anecdotes. Perhaps it would have made sense to dig deeper with additional leads from the family, I told myself, but the lack of response felt like a sign. Looking back, I suspect that I was also wary of following the research trail too closely—afraid that learning more about Helene’s might have led to a story that betrayed that vibrant, blissful place glimpsed, however briefly, in the records. Perhaps another historian, though, will pick up the trail, and write the account that Helene and her friends deserve.

Daniel on Hatton Sumners and the Court-Packing Plan

Josiah M. Daniel III, a Visiting Scholar in the Department of History of the University of Texas at Austin and a Retired Partner in Residence in the Dallas office of Vinson & Elkins, LLP, has published “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis, in the UIC John Marshall Law Review 54 (2021): 379-428.  From the introduction:

Hatton Sumners, 1938 (LC)
Later in the year, after Roosevelt had lost [the battle over the Court-packing plan], journalists Joseph Alsop and Turner Catledge published in the September 18th Saturday Evening Post an article titled “The 168 Days: The Story Behind the Story of the Supreme Court Fight,” in which, under a subheading of “No. 1 Opposition Man,” they reported that, immediately after the announcement, Vice President John Nance Garner, House Majority Leader Sam Rayburn, and [Chair of the House Judiciary Committee, Representative Hatton W.] Sumners returned in a taxi to the Capitol together:

After they had left the White House, after they had turned down past the Treasury, Hatton Sumners spoke to the men with him. “Boys,” he said, “here’s where I cash in my chips.” 
It was the first announcement of opposition to the plan . . . .

The journalists slightly misquoted Sumners’s pithy remark, and historians and legal scholars have almost uniformly perpetuated the mistake, countless times, to the present day. They have, moreover, misunderstood it.

--Dan Ernst

Saturday, June 12, 2021

Weekend Roundup

  • Current LHB Guest Blogger Anna Lvovsky discusses Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall, over at the ABA Journal’s Legal Talk Network.
  • OUP's History of International Law Collection is open-access until July 31. Load up here.\
  • We join those mourning the passing of Robert Katzmann, former chief justice of US Court of Appeals for the Second Circuit and an excellent scholar of courts, administration, and statutory interpretation. His Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy (1981) was, among other things, an important contribution to the legal history history of the “proministrative state” for its demonstration of the different approaches of the FTC’s lawyers and economists to antitrust enforcement.
  • Best names in law and legal history: here and here.
  • We note, a little belatedly, that Evelyn Atkinson has reviewed Ex Parte Milligan Reconsidered: Race and Civil Liberties from the Lincoln Administration to the War on Terror, ed. Stewart L. Winger and Jonathan W. White (University Press of Kansas, 2020) on H-Nationalism.
  • Celebration of yesterday's 75th anniversary of the Administrative Procedure Act was, shall we say, muted, in our environs at least, but we were pleased to learn that Emily S. Bremer, Notre Dame Law, and Kathryn E. Kovacs, Rutgers Law, have compiled the Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946, which is forthcoming on HeinOnline.
  •  ICYMI: News and commentary on bans of Critical Race Theory arrive too fast for us to keep up, but note this comment by Jill Richardson, a doctoral student in sociology at the University of Wisconsin-Madison.

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

Friday, June 11, 2021

2021 Hurst Fellows

 The 2021 J. Willard Hurst Summer Institute in Legal History, co-sponsored by the University of Wisconsin Law School and the American Society for Legal History, runs June 13-26, 2021. The faculty co-hosts are Sarah Barringer Gordon (University of Pennsylvania) and Lauren Benton (Yale University). The Hurst Institute will be virtual this year.

Here are the 2021 Hurst Fellows:

  • Lauren Catterson (Hendrik Hartog/Princeton University Fellow), PhD candidate, University of Toronto
  • Jon Connolly (Morton Horwitz Fellow), Assistant Professor, University of Illinois at Chicago
  • Hardeep Dhillon (Harry Scheiber Fellow), ABF-NSF Post-Doctoral Fellow in Law and Inequality
  • Zachary Herz (Charles McCurdy/University of Virginia Law School Fellow), Assistant Professor, University of Colorado
  • Naama Maor (Mary Frances Berry Fellow), Postdoctoral Teaching Fellow, University of Chicago
  • Ángela Pérez-Villa (Rebecca Scott Fellow), Assistant Professor, Western Michigan University
  • Sarath Pillai (Hurst Alumni Fellow), PhD candidate, University of Chicago
  • Jake Subryan Richards (David Seipp Fellow in English Legal History), Assistant Professor, London School of Economics
  • Geneva Smith (Robert Gordon Fellow), PhD candidate, Princeton University
  • Lila Teeters (William Nelson Fellow), recently completed PhD, University of New Hampshire
  • Lauren MacIvor Thompson (Reva Siegel Fellow), Lecturer, Perimeter College
  • Kent Weber (Barbara Welke Fellow), Post-doctoral Fellow, Dartmouth College
You can read more about the fellows and their research projects here.

As the Hurst Institute's website explains, "the J. Willard Hurst Summer Institute in Legal History is a biennial event sponsored by the Institute for Legal Studies (UW Law School) in conjunction with the American Society for Legal History (ASLH). Each Hurst Institute is organized and chaired by a well-known legal historian and includes visiting senior scholars who lead specialized sessions."

Congratulations to all!

--Mitra Sharafi

Kearney and Merrill's "Lakefront"

Joseph D. Kearney, Marquette Law, and Thomas W. Merrill, Columbia Law, have published Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press):

How did Chicago, a city known for commerce, come to have such a splendid public waterfront—its most treasured asset? Lakefront reveals a story of social, political, and legal conflict in which private and public rights have clashed repeatedly over time, only to produce, as a kind of miracle, a generally happy ending.

Joseph D. Kearney and Thomas W. Merrill study the lakefront's evolution from the middle of the nineteenth century to the twenty-first. Their findings have significance for understanding not only Chicago's history but also the law's part in determining the future of significant urban resources such as waterfronts.

The Chicago lakefront is where the American public trust doctrine, holding certain public resources off limits to private development, was born. This book describes the circumstances that gave rise to the doctrine and its fluctuating importance over time, and reveals how it was resurrected in the later twentieth century to become the primary principle for mediating clashes between public and private lakefront rights. Lakefront compares the effectiveness of the public trust idea to other property doctrines, and assesses the role of the law as compared to more institutional developments, such as the emergence of sanitary commissions and park districts, in securing the protection of the lakefront for public uses.

By charting its history, Kearney and Merrill demonstrate that the lakefront's current status is in part a product of individuals and events unique to Chicago. But technological changes, and a transformation in social values in favor of recreational and preservationist uses, also have been critical. Throughout, the law, while also in a state of continual change, has played at least a supporting role.
Fulsome encomia by the likes of Banner and Hartog after the jump.

Thursday, June 10, 2021

Wagner, Marusek and friends on flags

 Anne Wagner (Université Lille – Nord de France) and Sarah Marusek (University of Hawai‘i Hilo) have co-edited Flags, Color, and the Legal Narrative: Public Memory, Identity, and Critique, now out with Springer. The collection includes lots of legal history, although it is not exclusively historical in its focus. From the press: 

The book deals with the identification of “identity” based on culturally specific color codes and images that conceal assumptions about members of a people comprising a nation, or a people within a nation. Flags narrate constructions of belonging that become tethered to negotiations for power and resistance over time and throughout a people’s history. Bennet (2005) defines identity as “the imagined sameness of a person or social group at all times and in all circumstances”. While such likeness may be imagined or even perpetuated, the idea of sameness may be socially, politically, culturally, and historically contested to reveal competing pasts and presents. Visually evocative and ideologically representative, flags are recognized symbols fusing color with meaning that prescribe a story of unity. Yet, through semiotic confrontation, there may be different paths leading to different truths and applications of significance. Knowing this and their function, the book investigates these transmitted values over time and space. Indeed, flags may have evolved in key historical periods, but contemporaneously transpire in a variety of ways.

The book investigates these transmitted values: Which values are being transmitted? Have their colors evolved through space and time? Is there a shift in cultural and/or collective meaning from one space to another? What are their sources? What is the relationship between law and flags in their visual representations? What is the shared collective and/or cultural memory beyond this visual representation? Considering the complexity and diversity in the building of a common memory with flags, the book interrogates the complex color-coded sign system of particular flags and their meanings attentive to a complex configuration of historical, social and cultural conditions that shift over time.

Praise for the collection after the jump:

Wednesday, June 9, 2021

Intro to Vice Patrol and the Rich Archives of Antigay Policing

[This is the first in a series of guest posts by Anna Lvovsky.] 

Thank you to the Legal History Blog for bringing me on board as a guest blogger! Pride month feels like an especially apt time for the invitation, since my recently published book, Vice Patrol, is a history of antigay policing before Stonewall. Curious about how undercover officers learned to imitate gay men in bars? Or why owners of gay bars retained football coaches and clothing boutique owners as expert witnesses at state liquor board proceedings? Or how trial judges secretly (and some not-so-secretly) dismissed solicitation charges brought by the vice squads? This is the book for you!

While working on the project, I was lucky to stumble on a number of extraordinary sources, from confidential American Bar Foundation interviews with trial judges in the 1950s to over 120 cases against LGBT-friendly bars in New Jersey to an extended correspondence with a former LAPD vice squad instructor. These sources raised some intriguing, and often painful, questions about both narrative economy and the ethics of historical representation, which I’ll be writing about in the coming weeks. What to do, for example, when archival confidentiality agreements give more protection to the officers who entrapped gay men than to those men themselves? Or how to showcase the richness of a forgotten queer social scene without losing the thread of your argument in anecdotes and asides?

First, though, I want to start with a quick introduction to the book. Vice Patrol began as an open question lingering around my favorite books in grad school. Histories of gay life typically focus on incredible grassroots stories of community-building and resistance.  Policing invariably hovers in the background of these stories, but it rarely enters the spotlight, and certainly not long enough to reveal its own internal politics and complications. I wanted to take a type of revised top-down approach to this story, examining the internal logic and daily operations of state regulation itself. Not least, I suspected that foregrounding the police might complicate some more familiar stories about gay history—suggesting, for example, that pockets of queer visibility often seen as relatively progressive might not be so progressive after all.

Taking a national lens, Vice Patrol focuses on three sites of enforcement: liquor charges brought against gay-friendly bars, entrapment by plainclothes officers, and clandestine surveillance in public bathrooms. A key goal of the book is to excavate the sheer complexity and sordidness of the police’s attempts to regulate queer life—the effort and ingenuity required to make an ostensibly “overt” urban subculture visible to the law to begin with. Much of the book, accordingly, examines how vice squads refined their most devastating methods, like enticement and peephole surveillance—as well as how they justified such practices to recruits who didn’t exactly see them as a model of intrepid crime-fighting.  But it also delves into the life of the courts, tracing the often-surprising battles that the police’s campaigns inspired in the legal system.

At heart, I see the book as making three core arguments, which I’ll briefly describe here. The first aims to disaggregate the law’s relationship with policed communities like gay men. The project of antigay policing often figures in histories as a monolithic site of repression, commanding the shared commitment of policemen, prosecutors, and judges alike. In fact, I argue, the vice squads’ campaigns inspired profound ambivalence and contestation, reflecting a range of personal, political, and institutional pressures from judicial impatience with petty cases to sympathy for individual defendants to qualms about sexual privacy to distaste for immoral police practices. These less visible disputes about the administration of the law, no less than legal actors’ shifting commitments to the regulation of sexual difference, shaped gay men’s legal rights and freedoms at midcentury.

The second argument looks at the link between policing and public understandings of gay life. Beyond disputes about the value of vice enforcement, the midcentury witnessed a live debate about the nature of homosexuality itself, with the public’s familiar presumptions often abutting against the wisdom of “expert” doctors, sociologists, and empirical researchers. I argue that legal battles around vice policing were a crucial arena for determining the relative power and ultimate legacy of these competing voices—both a site that brought the weight of the law to bear in choosing which bodies of knowledge were deemed authoritative, and one where their impact was often unexpected. Due to the unique pressures of the courts, especially, the political valence of these shifting paradigms was often different at trial than outside it, with developments celebrated as liberal redounding to have deeply repressive effects and vice versa. Shifting public understandings of sexual difference at midcentury, in short, cannot be fully understood without a history of the police.

Finally, the third argument has to do with the politics of knowledge in the criminal system. I argue that, amid these conflicting accounts of both the value of vice policing and the nature of homosexuality itself, the power of the police’s campaigns rested on the coexistence in the legal system of multiple competing understandings of gay life, dividing how policemen and judges understood the communities they regulated. Even as vice officers developed rarefied insights into gay cruising culture—and even as they used those insights to facilitate their arrests—officers defended those tactics in court by downplaying their insights, letting judges rely instead on their own (often-outdated) understandings of queer practice. These differences, in turn, repeatedly shielded controversial police practices from judicial scrutiny. In this sense, the rights and freedoms of gay individuals at midcentury did not just reflect the legal system’s disputes about the merits of antigay policing. They often reflected its deeper disagreements about the very thing being policed.

That’s a broad overview of the book’s core claims. Next time, something far more specific: the story of the lesbian bar that I had to cut from the book but am sure will haunt me to my dying days.

 

CFP: "Law v. Antisemitism"

[We have the following Call for Papers.  DRE.]

Indiana University McKinney School of Law and Indiana Journal of Law and Social Equality (IU Maurer School of Law) present “Law vs. Antisemitism” March 13-14, 2022, a hybrid conference to be held on campus and virtually at IU McKinney School of Law, Indianapolis, Indiana.  Deadline: August 1, 2021.

Antisemitism has been called “the oldest hatred.” In the United States, as elsewhere, the law has been used both to perpetrate and to combat antisemitism, historically and today. Different aspects and instrumentalities of law, and specifically U.S. law, have been used to fight antisemitism, including the Constitutional separation of church and state, enshrined in the First Amendment to the United States Constitution; laws against discrimination in employment, housing, and other settings, that explicitly identify religious and ethnic groups as entitled to protection from discrimination; and “hate crimes” laws and sentencing enhancements applied to anti-Jewish violence. Despite these laws, however, there has been a recent resurgence in anti-Jewish violence and antisemitism more generally, ranging from online hate speech to cemetery desecration to the “Tree of Life” synagogue shooting in 2018. Does this mean the law has failed? Do we need new or different laws? Is there reason for doubt or skepticism about the efficacy of law in combating antisemitism?

At the same time, obstacles posed by antisemitism, while serious at times, have not kept Jews from entering American law and legal institutions. Despite a history of antisemitism in the legal profession and legal education, many Jews have found success as lawyers, law professors, and judges. Other Jews, both secular and religious, have looked to Jewish tradition to ground their involvement in 20th and 21st-century civil rights and economic justice movements, including challenging and defying what they believed to be unjust laws. Yet Jews encounter antisemitism on the left as well.

Possible topics for conference presentations and papers may include, but are not limited to:

  • Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Jerusalem Declaration on Antisemitism (JDA))
  •  Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
  • Title VII and employment antidiscrimination law as a tool against antisemitism
  • Antisemitism in the legal profession
  • BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel
  • Jewish involvement/antisemitism in civil rights movements, including BLM
  • Holocaust reparations (e.g. legal remedies for looted art)
  • 1st Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
  • 1st Amendment religious freedom/free expression as these relate to Jews and Judaism
  • Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
  • Antisemitism and White nationalism/White supremacy
  • Antisemitism and antisemitic laws in American legal history
  • Jewish stereotypes and stereotype-based discrimination
  • Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
  • The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
  • The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
  • Zionism, Anti-Zionism, and antisemitism
  • Jewish prisoners’ rights

 We invite scholars to reflect on the relationship between Jews, Judaism, antisemitism, and the law, historically and in the contemporary environment. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects.

We anticipate that this Conference will take place in person in a hybrid format, and we are able to offer a limited number of travel grants to support attendance. We believe that giving scholars and attendees an opportunity to meet in person is very valuable, and we hope you will strongly consider it. However, in light of COVID-19 protocols and in the hope of attracting the widest range of presenters from throughout the U.S. and the world, presenting and  attending virtually are also possible..

The Indiana Journal of Law and Social Equality (IJLSE) is the primary conference co-host and publication outlet. Selected papers from the Conference will be eligible for publication in Volume 10 of the IJLSE. This mission of the IJLSE is to serve as an interdisciplinary academic forum for scholars, practitioners, policymakers, and students to contribute to society’s understanding of legal and policy issues concerning social justice and equality.

The Journal of Contemporary Antisemitism (peer-reviewed) has also agreed to publish selected papers from the conference in its Fall 2022 issue. The JCA focuses on antisemitism in the contemporary world (the post-Holocaust era), submissions may include relevant empirical studies dealing with the 19th or early 20th century. Specifically, the JCA focuses on 21st century forms of antisemitism, including but not limited to, antisemitism in the Islamic world, in Europe, on the left and the right of the political spectra, secular antisemitism, antisemitism in the church, and anti-Zionism. The JCA aims to provide a forum in which scholars from diverse political and intellectual backgrounds can analyze, debate, and formulate effective responses to the ever-evolving and insidious threat of antisemitism.

The Notre Dame Journal of Law, Ethics & Public Policy has also graciously agreed to provide special consideration for publication of one selected paper from the Conference. To be considered, the paper must relate to the mission of the JLEPP, “to explore the legal, ethical, and policy considerations of each topic within the framework of the Judeo-Christian intellectual and moral tradition. The JLEPP seeks to publish authors who address that tradition while forming a compelling analysis of issues relevant to the current legal landscape.” For consideration for inclusion in Volume 35, No. 1, full drafts (not Abstracts) must be received by July 15, 2021.

Tuesday, June 8, 2021

Welcome, Anna Lvovsky!

Professor Anna Lvovsky
Professor Anna Lvovsky (credit)

We are delighted to welcome Professor Anna Lvovsky to the blog this month. An assistant professor at Harvard Law School, she teaches American legal history, the history of policing, criminal law, and evidence. Her research focuses on "the legal and cultural dimensions of policing, judicial uses of professional knowledge, and the regulation of gender, sexuality, and morality."

One of her major research projects these past years has been her recently published book, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (University of Chicago Press), which grew out of her award-winning dissertation. Vice Patrol is a history of state repression of queer communities in the mid-twentieth-century U.S. 

Cribbing here from the Press's description, the book 

trac[es] the tactics used to criminalize, profile, and suppress gay life from the 1930s through the 1960s, and the surprising controversies those tactics often inspired in court. Lvovsky shows that the vice squads’ campaigns stood at the center of live debates about not only the law’s treatment of queer people, but also the limits of ethical policing, the authority of experts, and the nature of sexual difference itself—debates that had often unexpected effects on the gay community’s rights and freedoms. Examining those battles, Vice Patrol enriches understandings of the regulation of queer life in the twentieth century and disputes about police power that continue today. 

For more about the book, as well as links to her other publications, check out her personal website.

Prior to joining the faculty at HLS, Professor Lvovsky clerked for two federal appellate court judges, the Honorable Michael Boudin on the First Circuit and the Honorable Gerard E. Lynch on the Second Circuit Court, and then was an Academic Fellow at Columbia Law School. She received her J.D. and Ph.D. (History of American Civilization) from Harvard and her B.A. from Yale.

Welcome, Anna Lvovksy! 

Conference funding for scholars in Global South

 [We share the following announcement, from the Max Planck Institute. It is also posted on the Legal Histories of Empire website here.]

The Max Planck Institute for Legal History and Legal Theory, based in Frankfurt am Main, Germany, is delighted to offer a bursary scheme for scholars who wish to attend and deliver a talk at the Legal Histories of Empires conference (29 June-1 July 2022 at Maynooth University, Ireland) and who are currently based in the Global South. The Institute is promoting research on, among others, legal transfers in the common law world, where the development of law on the Indian subcontinent is of particular interest, and the legal history of Ibero-America.

The Institute offers a bursary to attend the conference comprised of: flights to and from the conference, the registration fee, accommodation, a daily stipend, and the expenses associated with a visa application. Applicants must be currently based at an institution in one of the G77 Group of countries at the United Nations.

In order to apply for the scholarship, candidates will be asked to submit the following information: a statement of interest, the proposed topic to be delivered, and a short CV (no more than 3 pages). Applications should be sent to vogenauer@lhlt.mpg.de by 31 October 2021. Acceptances will be sent around mid-December.

--posted by Mitra Sharafi


Canellos, "The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero"

Simon & Schuster has published The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero, by Peter S. Canellos. A description from the Press:

They say that history is written by the victors. But not in the case of the most famous dissenter on the Supreme Court. Almost a century after his death, it was John Marshall Harlan’s words that helped end segregation, and gave us our civil rights and our modern economic freedom.

But his legacy would not have been possible without the courage of Robert Harlan, a slave who John’s father raised like a son in the same household. After the Civil War, Robert emerges as a political leader. With Black people holding power in the Republican Party, it is Robert who helps John land his appointment to the Supreme Court.

At first, John is awed by his fellow justices, but the country is changing. Northern whites are prepared to take away black rights to appease the South. Giant trusts are monopolizing entire industries. Against this onslaught, the Supreme Court seemed all too willing to strip away civil rights and invalidate labor protections. As case after case comes before the court, challenging his core values, John makes a fateful decision: He breaks with his colleagues in fundamental ways, becoming the nation’s prime defender of the rights of Black people, immigrant laborers, and people in distant lands occupied by the United States.

Harlan’s dissents, particularly in Plessy v. Ferguson, were widely read and a source of hope for decades. Thurgood Marshall called Harlan’s Plessy dissent his “Bible”—and his legal roadmap to overturning segregation. In the end, Harlan’s words built the foundations for the legal revolutions of the New Deal and Civil Rights eras.

Spanning from the Civil War to the Civil Rights movement and beyond, The Great Dissenter is an epic rendering of the American legal system’s greatest failures and most inspiring successes.
Advance praise:

"The Great Dissenter is a magnificent biography of the righteous legal trailblazer John Marshall Harlan.  Drawing upon a wealth of archival and published sources, deep-diving into the American horror-show of systemic racism, Canellos showcases Harlan as the rare Supreme Court Justice fighting for a more equitable economic system and civil rights for all people.  Highly recommended!" — Douglas Brinkley

"John Marshall Harlan is one of the most fascinating and important figures of modern America, and this book does him justice.  Carefully researched, and rewarding even informed readers with rich insight into Harlan’s life and work, The Great Dissenter is a must-read, both for students of the Supreme Court, and for those concerned about the past, present, and future of racial equality in the United States.” — Gabriel J. Chin

More information is available here.

-- Karen Tani

Saturday, June 5, 2021

Weekend Roundup

  • Nate Holdren, Drake University, discusses Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (2020) over at New Books Network. The book also just picked up another award: the Philip Taft Labor History Award, offered by the ILR School at Cornell University, in cooperation with the Labor and Working-Class History Association (LAWCHA). You can read the citation here.
  • The American Bar Foundation has announced its 2021-22 Doctoral and Post-Doctoral Fellows. We were excited to see a few historians on the list, including Hardeep Dhillon and Alex Reiss-Sorokin. You can read more about them and their research here.
  • Here's a web portal on Legal History at the  University of Michigan
  • The Call for the Asian Law and Society Association's conference is up. The conference will be virtual on 17-18 Sept.2021 with the theme: Law, Crisis and Revival in Asia. Proposals are due July 15. 
  • Over at UVic in British Columbia: Pooja Parmar and John McLaren (both of the U. of Victoria) gave a Dean's Lecture series, "Racism, Rights, and Empire in the Dominion of Canada: The Case of the Komegata Maru." Video here.
  • The following events at the annual Roosevelt Reading Festival of the FDR Presidential Library  are of potential interest to legal historians: Eric Rauchway, Why the New Deal Matters (6/15, 4pm); John A. Riggs, High Tension: FDR's Battle to Power America (6/15, 6pm); David Levering Lewis, The Improbable Wendell Willkie: The Businessman Who Saved the Republican Party and His Country, and Conceived a New World Order (6/16, 4pm).  More.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 4, 2021

Call: Stanford Law School Legal History Paper Prize

 [We share the following announcement.]

Applications are now being received for the Stanford Law School Legal History Paper Prize. The Stanford Center for Law and History invites paper submissions from SLS students (including all JD and Advanced Degree students) on any topic in legal history. The prize committee will consider only work completed during the 2020-2021 academic year. Please include a brief abstract at the beginning of your paper.

The prize committee will select one SLS student as the winner of the Legal History Paper Prize who will receive a $1000 cash award.

The prize committee members will include: Gregory Ablavsky, Rabia Belt, Robert Gordon, Lawrence Friedman, Amalia Kessler, Bernadette Meyler, and Brent Salter.

The application deadline is Friday, June 25, 2021.  To apply, and for conditions of entry, click here.  Please direct any questions to the committee chair, Amalia Kessler: akessler@law.stanford.edu.

--Mitra Sharafi

Thursday, June 3, 2021

Cohn and Schulz on John Hooker, CT Law Reporter

Henry S. Cohn, a judge trial referee of the Connecticut Superior Court, and Michael Schulz, a 2021 graduate of the University of Connecticut School of Law, have posted John Hooker, Reporter of Judicial Decisions, which appears in the Connecticut Law Review 53 (1921): 265-305.  Judge Cohn tells us:

John Hooker, who lived from 1816 to 1901, was a founder of Nook Farm, which became a literary community in Hartford, CT.  This community was where Mark Twain, Harriet Beecher Stowe and Charles Dudley Warner lived, as well as lesser known authors and politicians.  John Hooker was Harriet Beecher Stowe’s brother-in-law. Hooker’s wife, Isabella Beecher Hooker, was president of the Connecticut Suffrage Society.
He adds, from the article itself:
This article discusses the life and reportership of John Hooker, an early Connecticut Judicial Reporter and participant in the Women’s Suffrage movement in Connecticut.  This article analyzes Hooker’s letters, written primarily to his wife Isabella . . . to better understand Hooker’s experiences and thinking.  This article then addresses three points of contention regarding Hooker’s life.  First the article discusses Hooker’s unique style of adding footnotes with his own commentary to judicial opinions.  Second, this article argues that Hooker’s contributions to the In re Mary Hall decision [allowing her admission to the Connecticut Bar] may have been more significant than some of his modern critics contend.  Third, the article pushes back on criticism of Hooker’s obituary tributes [placed in the Connecticut Reports], particularly his obituary of Chief Justice Park, arguing that these were in keeping with the style of the time rather than indicative of jealousy.

For more on Mary Hall: this and this.

--Dan Ernst

Dehm on Émigré Lawyers in Australia

Sara Dehm, University of Technology Sydney Faculty of Law, has posted Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession, which also appears online in the Federal Law Review 49:3 (2021):

Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.
–Dan Ernst

Wednesday, June 2, 2021

Hoeflich and Davies Discus Holmes's "Black Book"

Michael H. Hoeflich and Ross E. Davies discuss their transcription of The Black Book of Justice Holmes
(Talbot Publishing, 2021) on YouTube.  As the press’s announcement states, the two “recount the story of its publication and its insights into Holmes’s intellectual development.”  Yes, Virginia, Holmes did read Mr. Herbert Spencer’s Social Statics (and just about everything else he wrote, plus Dashiell Hammett and much more).

--Dan Ernst

Gross on Hart, Fuller, and Germany

Oren Gross, University of Minnesota Law School, has posted What Both Hart and Fuller Got Wrong, which appears as 11 Wake Forest L. Rev. Online 54:

In the famous debate between H.L.A. Hart and Lon Fuller on the pages of the Harvard Law Review, Nazi law served as a litmus test against which each side measured how his, and the other’s, position stacked up. For Hart, law was law regardless of its possible immoral nature. However, if too evil, it could be disobeyed. For Fuller, morally repugnant laws were simply not laws at all. 
While disagreeing on this fundamental point, both Hart and Fuller shared, uncritically, a basic factual premise with respect to the legal situation that existed in the Weimar Republic and later on in the Third Reich. In “Positivism and Fidelity to Law” Fuller argued that “in the seventy-five years before the Nazi regime the positivistic philosophy had achieved in Germany a standing such as it enjoyed in no other country.” For his part, Hart accepts comments made by Gustav Radbruch including Radbruch’s statement that legal positivism has been virtually “unopposed by German lawyers for many decades” prior to the rise of National Socialism.

This article argues that while Hart’s and Fuller’s shared view of the legal experience in both the Weimar Republic and the Nazi state may not have impacted greatly their jurisprudential stances, it is significant to point out the historical distortions inherent in their understanding of the legal reality leading up to, and pertaining during, the Nazi regime. In fact, it is argued, while National Socialism employed its particular—perverted to be sure—vision of “natural law,” it was the opponents of that regime that argued from the perspective of legal positivism.
--Dan Ernst