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.
  • Historians' response to Dobbs and Bruen has blown up as we go to press, and we have can't keep up, but 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.
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.

Monday, June 13, 2022

Atkinson, "Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection"

The Virginia Law Review has published "Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection," by Evelyn Atkinson (University of Chicago). The abstract:

This Article highlights the crucial role corporations played in crafting an expansive interpretation of the Fourteenth Amendment. Exposing the role of race in the history of the constitutional law of corporate personhood for the first time, this Article argues that corporations were instrumental in laying the foundation of the Equal Protection Clause that underlies civil rights jurisprudence today. By simultaneously bringing cases involving both corporations and Chinese immigrants, corporate lawyers and sympathetic federal judges crafted a broad interpretation of equal protection in order to draw a through-line from African Americans, to Chinese immigrants, and finally to corporate shareholders. At the same time that corporate litigation expanded the umbrella of protected “persons,” however, it limited the capacity of the Fourteenth Amendment to address issues of substantive inequality.

This Article reveals that central to the argument in favor of corporate constitutional personhood was a direct analogy between corporate shareholders and racial minorities. This Article thus highlights the intersection of corporate personhood and race, a connection that has rarely, if ever, been explored. Corporate lawyers’ expansive interpretation of equal protection ultimately triumphed in the Supreme Court with the twin cases of Yick Wo v. Hopkins, a bedrock of modern civil rights doctrine, and Santa Clara v. Southern Pacific Railroad, a case credited with extending equal protection rights to corporations. This is the first Article to juxtapose these two seminal cases and to expose the deep and long-standing connections between them. In so doing, this Article uncovers a neglected history of the link between corporations and race, as well as a lost history of the Fourteenth Amendment.

The full article is available here.

-- Karen Tani

Rawlings on a Thieftaker and Gaoler

Philip Rawlings, Queen Mary University of London, School of Law, has posted The Highwayman's Case: John Everett - Soldier, Robber, Publican, Gaoler:

Of the two parties named in The Highwayman's Case, only John Everett (or Everet) has left a significant trace. Born in Hitchin in 1690, he abandoned his wife and an apprenticeship in around 1709, becoming a soldier, then a court bailiff, a robber, an informer, an alehouse keeper, an inmate of the Fleet prison, a gaoler, a thieftaker, and, finally, around the age of 40, he returned to robbery, was arrested, convicted, and executed. His life provides insights into the relationship between criminals and the justice system. In the 1720s, when Everett was active, the authorities became increasingly concerned about gangs of robbers believed to be infesting London, and breaking these gangs meant depending on robbers like Everett giving evidence against their former comrades. But it was his work as a keeper in the Fleet prison that made him notorious. He was brought before the first parliamentary inquiry into the prisons, and, although never prosecuted, his involvement in the abuse of prisoners brought the financial ruin that, according to Everett, led him to commit his final robbery.

--Dan Ernst

Saturday, June 11, 2022

Weekend Roundup

  • "The Unknown History of Reproductive Rights and Eugenics: From Skinner to Roe," a webinar co-sponsored by the Georgetown University Law Center and the Robert H. Jackson Society is now viewable on C-SPAN.  The participants were Victoria F. Nourse, Michele Bratcher Goodwin, Melissa Murray, Brad Snyder, and John Q. Barrett.
  • Geoffrey R. Kirsch, a doctoral candidate in Harvard's English Department, reviews The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution, by James Oakes, and The Broken Constitution: Abraham Lincoln, Slavery, and the Refounding of America, by Noah Feldman (New Rambler).
  • ICYMI: Newly discovered lawsuit involving Joseph Smith in St. Louis gives new insight into Church history (Church News).  Clyde W. Ford on Key v. Mottrom, a freedom suit in seventeenth-century Virginia (HNN).  Jack Goldsmith on Watergate (Harvard Law Today). The New York Review of Books recently published an exchange between Noah Feldman and James Oakes on whether Lincoln's Emancipation Proclamation was constitutional. Over at Balkinization, John Fabian Witt weighs in.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.


 

Friday, June 10, 2022

CFP: "Legacies of Slavery | Landscapes of Segregation"

We have the following Call for Papers/Panels:

Legacies of Slavery | Landscapes of Segregation
Universities Studying Slavery Fall 2022 Conference
September 28-October 1, 2022
Charlottesville, Virginia

In Fall 2022, the University of Virginia and its President’s Commission on the University in the Age of Segregation (PCUAS) will host the USS conference: Legacies of Slavery | Landscapes of Segregation, highlighting slavery’s many enduring legacies after emancipation and also confront the American academy’s history of both benefiting from and perpetuating those legacies. We seek to examine a wide variety of topics: reconstruction, disfranchisement, redlining, racially restrictive zoning, racial terrorism, policing and incarceration, racist science’s impacts on public policy, and resulting inequalities in health, industry, housing, and education. Although the central theme focuses on the post-emancipation world, the conference will address a wide array of topics related to slavery, slavery’s afterlives, and universities.

We encourage submissions for both single papers and full panel proposals (max. 4 presenters and moderator/chair) that address any aspects of the theme as well as those that consider the history, public history, preservation, or memorialization of sites of enslavement or segregation. Faculty, graduate students, public historians, preservationists, university administrators, and independent scholars are welcome to submit individual papers or full panels. We also invite undergraduate student posters on research, activism, and student organizational work, among other topics.

Panel proposal submissions must include a 125-word maximum panel description that includes a proposed title as well as individual 250-word maximum paper proposals and brief bios (100 words max) for each participant.

Individual paper and poster proposal submissions should provide 250-word proposal and 100-word maximum brief bio.

Proposals are due by July 1, 2022

Please submit proposals at USS Conference Fall 2022.

-- Karen Tani

Mazzone on Incorporating the Guarantee Clause

Jason Mazzone, University of Illinois College of Law, has posted The Incorporation of the Republican Guarantee Clause, which is forthcoming in the Notre Dame Law Review:

This Article makes the case for understanding the Fourteenth Amendment to incorporate the Republican Guarantee Clause of Article IV. Incorporation shifts the focus of the Guarantee Clause from the interests of states to the interests of citizens; from protecting popular sovereignty as a political ideal to safeguarding more specifically rights that citizens hold and exercise in a republican system. Once incorporated, the Guarantee Clause should be understood to require states themselves to maintain a republican form of government and to act to correct departures from republicanism within their own governing arrangements. In addition, an incorporated Guarantee Clause informs the meaning of rights protected against state interference under Section 1 of the Fourteenth Amendment: safeguards for privileges and immunities, due process of law, and equal protection of the laws, are all usefully understood with an eye to republicanism. So, too, an incorporated Guarantee Clause informs the meaning of provisions of the Bill of Rights when they are applied to state governments. Incorporation also has implications for the national government: its role shifts from a duty owed to the states to an obligation to protect from state interference citizenship rights that serve republican ends. Finally, incorporation alters the traditional assessment that Guarantee Clause claims are nonjusticiable.
--Dan Ernst

Thursday, June 9, 2022

CFP: "Somerset v. Steuart @ 250"

We have the following Call for Papers:
Somerset v. Steuart @ 250: Facts, Interpretations, and Legacies

In recent years, the Somerset v. Steuart trial of 1772 has emerged as an event of much discussion in the history of transatlantic antislavery. Scholars have debated the decision’s importance and centrality to the emancipatory impulses in the British Atlantic, and, more recently, its role in the outbreak of the American Revolution. Some have argued that Lord Mansfield’s decision in James Somerset’s favor was a central, even epochal event, while others maintain that North Americans scarcely noticed the decision. With the two hundred and fiftieth anniversary of the trial upon us, the David Center is convening a scholarly symposium to continue this conversation and offer fresh appraisals of the causes, nature, and consequences of the decision.

The program committee seeks paper proposals from scholars in all fields to assess what we have learned and how we might interpret events before, during, and after the 1772 decision. We seek to evaluate the origins of the trial and to examine the question of how important the trial was to the momentous changes of the period,

Potential topics and themes include but are not limited to:

· New analysis on the causes and nature of the Somerset decision in 1772.

· Exploration of the impact and reception of the Somerset decision.

· The direct and indirect effects of the decision on the lives of the enslaved and enslavers.

· The influence of the decision on the law, the empire, the politics, and the African diaspora within the British Empire and beyond it.

· The importance or unimportance of ideas, of law, and of courts.

· The historiography of the Somerset case.

· Memory and public commemoration of the decision, both historically and contemporaneously.

· The current use and depiction of the case in educational materials, public debates, the media, and sites of public history.

· The role of James Somerset himself and other African actors.

We will meet on Thursday and Friday, December 1-2, 2022, for online and in-person sessions, all of which will be open to the public. Papers will be distributed in advance. Participants should be committed to read all the papers and to serve as a discussion leader for another session. We expect to produce a book of revised essays from the conference to be published in a new book series of the David Center for the American Revolution with University of Pennsylvania Press.

To propose a paper, please send an abstract of 250 words, a one-page cv, and a brief cover letter about how this topic fits into your past, present, and/or developing research, by June 15, 2022, to Interfolio.

-- Karen Tani

Legal & Literary Perspectives on Fox-hunting

Ross Davies's edited work, Regulation & Imagination: Legal & Literary Perspectives on Fox-hunting, is now out from Green Bag Press:

This is our first try at an odd mode of legal scholarship: the coffee-table treatise. It is
handsome enough to merit display (many nice pictures, and maps), and scholarly enough to merit study (many eloquent experts).

The story at the center of the book — Arthur Conan Doyle's The King of the Foxes — is both an exciting tale and a provocative prompt for discussion of law and literature affecting, and affected by, fox-hunting.
Jennifer L. Behrens, Duke University School of Law, J. Michael Goodson Law Library, has separately posted her chapter from the volume, On the Scent: A History of 'The King of the Foxes' Autograph Manuscript:
Frank Hogan (LC)
The autograph manuscript of Sir Arthur Conan Doyle's 1898 short story "The King of the Foxes" now resides in the Dartmouth College Library. While the complete provenance of the manuscript remains elusive, bookplates and notations provide enough information to sketch an approximate timeline of its travels and a brief biography of several holders, including legendary attorney and former American Bar Association president Frank Hogan (1877-1944), the founder of law firm Hogan & Hartson (now Hogan Lovells). 

--Dan Ernst

Wednesday, June 8, 2022

JPH 34:3

Journal of Policy History 34:3 (July 2022) has been published online:

Explaining the Prevalence of State Constitutional Conventions in the Nineteenth and Twentieth Centuries
John Dinan

Defining Rockefeller Republicanism: Promise and Peril at the Edge of the Liberal Consensus, 1958–1975
Marsha E. Barrett

From Labor Rights to the Right to Work: Constituting and Resisting Social Citizenship, 1932–1953
Dolores Janiewski

An Industry Worth Protecting? The Manufacturers Aircraft Association’s Struggle against the British Surplus, 1919–1922
Sean Seyer

Evolution and Electoral Implications of Congressional Gun Control Issue Framing: “From Crime Control to Mass Shootings”
Genevieve Quinn

--Dan Ernst

Tate's "Power and Justice in Medieval England"

Joshua C. Tate,  SMU Dedman School of Law, has published Power and Justice in Medieval England: The Law of Patronage and the Royal Courts (Yale University Press) in the Yale Law Library Series in Legal History and Reference:

Appointing a parson to the local church following a vacancy—an “advowson”—was one of the most important rights in medieval England. The king, the monasteries, and local landowners all wanted to control advowsons because they meant political, social, and economic influence. The question of law turned on who had the superior legal claim to the vacancy—which was a type of property—at the time the position needed to be filled.

In tracing how these conflicts were resolved, Joshua C. Tate takes a sharply different view from that of historians who focus only on questions of land ownership, and he shows that the English needed new legal contours to address the questions of ownership and possession that arose from these disputes. Tate argues that the innovations made necessary by advowson law helped give birth to modern common law and common law courts.

Here are some endorsements:

“A praiseworthy and original investigation of a subject that straddled the line between secular and spiritual: the early history of the English common law of advowsons.”—R.H. Helmholz, University of Chicago Law School
 
"Tate brings to this book just the qualities it needs: he asks the right questions and knows the common law and canon law materials which supply the answers. His study makes a significant contribution to our understanding of an important part of the early English Common Law."—Paul Brand, University of Oxford

“It has been a great pleasure to watch what began as a tentative, but intriguing, doctoral dissertation turn through a series of articles on seemingly small points into the small masterpiece that is this book.”—Charles Donahue Jr., Harvard Law School
–Dan Ernst

Tuesday, June 7, 2022

Legal History at the American Political History Conference, June 9-11, 2022

The program for this week's American Political History Conference includes many items of note for readers of this blog. Here's a sampling: 

DOCUMENTING CRIMINALIZATION, CONFINEMENT, AND RESISTANCE THROUGH HISTORY LAB RESEARCH COLLABORATIONS

  • Matt Lassiter, University of Michigan, Director of Policing and Social Justice History Lab and lead author of the website exhibit "Detroit Under Fire: Police Violence, Crime Politics, and the Struggle for Racial Justice in the Civil Rights Era"
  • Nicole Navarro, University of Michigan, Graduate Supervisor of Policing and Social Justice History Lab and coauthor/mapping consultant of "Detroit Under Fire"
  • Alexander Stephens, University of Michigan, Coordinator of U-M Carceral State Project’s “Immigration and the Carceral State” research initiative and community liaison to the Michigan Immigrant Rights Center’s “Know Your Rights” project
  • Alex Burnett, University of Michigan, Graduate Coordinator of Prisoner Uprisings in America Lab and coauthor of “Kinross Uprising, Michigan 2016: The Silenced Revolt Over Basic Human Rights in Prison”
 
DE JURE POLITICS: HOW LAW SHAPED MODERN POLITICS AND SOCIETY

Moderator: Natalia Mehlman-Petrzela, The New School

Panelists: 

  • Logan Sawyer, University of Georgia School of Law, “Government by Originalism: Constitutional Law and Party Politics Inside the Reagan Department of Justice, 1983-1988” 
  • Devan Lindey, Purdue University, “Experience as Education: The Political Effects of Student Life and Judeo-Christian Education at Grove City College”
  • Anne Blaschke, University of Massachusetts—Boston, “Title IX at 50"


PROGRESSIVE ERA POLITICS

Moderator: Bruce Schulman, Boston University

Panelists: 

  • Kimberly Hamlin, Miami University in Ohio, “How Raising the Age of Sexual Consent in the 1890s Convinced Female Reforms that They Needed the Vote”
  • Leslie Lindenauer and H. Howell Williams, Western Connecticut State University, “Workers Built Danbury: Deindustrialized Memory in a Hatting Town”
  • Josh Kluever, Binghamton University (SUNY), “Sorry Waldman, We Just Couldn’t Help It: Socialist State Legislators in New York, 1912-1922”


CARCERAL STATE, CARCERAL SOCIETY

Moderator: Elizabeth Hinton, Yale University

Panelists: 

  • Max Felker-Kantor, Ball State University, “Arresting the Demand for Drugs: DARE and the Politics of Supply and Demand Reduction in the War on Drugs”
  • Charlotte Rosen, Northwestern University, “The Wheels of Justice Are Grinding to a Halt: Harris v. Philadelphia and the Dilemma of Mass Imprisonment in the 1990s Law and Order Philadelphia”
  • Kenneth S. Alyass, Harvard University, “The People’s War on Drugs: Community Activism, the Carceral State, and the Crack Crisis in 1980s Detroit”
  • Michael Z. Dean, UCLA, “The Politics of Decarceration in Ronald Reagan’s California”


ENVISIONING A COMPASSIONATE STATE: LEFT AND LIBERAL CHALLENGES TO
“TOUGH” POLICIES IN THE TWENTIETH-CENTURY UNITED STATES ** 

Moderator: LaDale Winling, Virginia Tech

Panelists: 

  • Brooke Depenbusch, Colgate University, “The Lost Promise of General Relief: Activists, Reformers, and the Midcentury Struggle to Expand the Safety Net”
  • Emma Amador, University of Connecticut, Storrs, “Demanding Equal Care: Puerto Rican Women Activists, US Colonialism, and the Politics of Social Security in Puerto Rico”
  • Amanda Hughett, University of Illinois Springfield, “‘An Honest Day’s Pay for an Honest Day’s Work’: Liberal Lawyers, Incarcerated Activists, and the Remaking of Prison Labor During the 1970s”


RACIAL INNOCENCE AND CARCERAL POWER IN THE TWENTIETH-CENTURY
UNITED STATES 

Moderator: Matthew Lassiter, University of Michigan 

Panelists: 

  • Kathleen Frydl, “Corporate Personhood, the ‘Guilty Mind,’ and the 1980s War on Drugs”
  • Paul M. Renfro, Florida State University, “Criminalizing CARE: AIDS, the Ryan White CARE Act, and the Politics of Innocence”
  • Kirstine Taylor, Ohio University, “Producing Racial Innocence: The Fall of Chain Gangs and the Rise of Prisons in North Carolina"
  • Abby Whitaker, Temple University, “‘C is for Colorblindness’: Sesame Street, Race, and the Transformation of Liberalism"


REPRODUCTIVE RIGHTS AND POLITICS  

Moderator: Gillian Frank, Host of Sexing History Podcast 

Panelists: 

  • Jennifer Holland, University of Oklahoma
  • Amrita Chakrabarti Myers, Indiana University
  • Mary Ziegler, Florida State University


ROUNDTABLE: CONSTITUTIONAL HISTORY IS POLITICAL HISTORY

Moderator: Yvonne Pitts, Purdue University 

Panelists: 

  • H. Robert Baker, Georgia State University
  • Jane Manners, Temple University
  • Julian Mortenson, University of Michigan
  • Joshua Sellers, Arizona State Law School


DEBATES OVER THE REGULATORY STATE

Moderator: Daniel Rowe, Oxford University

Panelists: 

  • Patrick Andelic, Northumbria University, “Smoke-Free Rooms: The Waxman Committee and the Congressional Campaign against Big Tobacco”
  • Jeff Berryhill, Rutgers University, “Condoms, Clean Needles, and Crisis: Conflict over HIV/AIDS Prevention in New York City, 1988-1994”
  • Whitney McIntosh, Columbia University, “Reclaiming the Mainstream: The Individualist Feminist Push to Protect Freedom of Choice, 1980-1995”


AUTHOR MEETS CRITICS: DISCUSSION OF WILLIAM NOVAK’S NEW DEMOCRACY: THE CREATION OF THE MODERN AMERICAN STATE

  • William Novak, University of Michigan
  • Sophia Lee, University of Pennsylvania
  • Ajay Mehrotra, ABF/Northwestern University
  • James Sparrow, University of Chicago
  • Karen Tani, University of Pennsylvania


And there is more! The full program is available here. Some panels are accessible virtually.

-- Karen Tani

2022-23 Katz Center fellows: "Jews and Modern Legal Culture"

"Jews and Modern Legal Culture" is the theme of the Herbert D. Katz Center for Advanced Judaic Studies at the University of Pennsylvania in 2022-23. Here's an announcement about the Katz Center's incoming fellowship class:

The Katz Center is thrilled to announce the cohort for the 2022–23 academic year, engaging the theme of Jews and Modern Legal Culture. The fellows will join us from Israel, France, Germany, Canada, and the United States, and represent a range of methodological, disciplinary, and historical specializations. Our goal as always is to promote generative intellectual exchange not only among the fellows but also with the Penn community and the public more broadly.

Continuing and building on the 2021–22 fellowship year devoted to Rethinking Premodern Jewish Legal Cultures, the Katz Center’s coming year turns its attention to the study of law between the eighteenth and twenty-first centuries, an era of transition from a world of empires to the modern age of the nation-state and international law. 

We are also pleased to include in this announcement the names of two University of Pennsylvania faculty members who will join the cohort as part of a new Penn faculty fellowship initiative. We are grateful to the deans of the School of Arts and Sciences and Graduate School of Education for their support. 

We look forward to hosting these distinguished scholars and seeing how they expand our understanding of Jewish culture’s engagement with law, democracy, the state, modernity, and justice.

20222023 Katz Center Fellows

Itamar Ben Ami, Humboldt University of Berlin
Ruth Meltzer Fellowship
Legal Theocracy: The Ultra-Orthodox Adaptation of Halakhah to the Statist Era

Sigal Ben-Porath, Graduate School of Education
University of Pennsylvania Faculty Fellowship
Free Speech for and about Jews: A Legal and Normative Analysis

Leora Bilsky, Tel Aviv University
Primo Levi Fellowship
Cultural Genocide in the Eichmann Trial: A View from Below

Emmanuel Bloch, UC Berkeley School of Law
Thomas and Elissa Ellant Katz Fellowship
The Tsni’ut Laws: Halakhah and Metahalakhah in the Twentieth and Twenty-First Centuries

Yonatan Y. Brafman, Tufts University
Thomas and Elissa Ellant Katz Fellowship
Jewish Law, Philosophy, Systematicity

Julie Cooper, Tel Aviv University
Ariel and Joshua Weiner Family Fellowship
Legal Foundations of the Diasporic Jewish Nation

Carolyn J. Dean, Yale University
Primo Levi Fellowship
Bystanders, Jews, and the Legal Imagination in Vichy France

Noëmie Duhaut, Leibniz Institute of European History, Mainz
Ariel and Joshua Weiner Family Fellowship
French Jews, Legal Practice, and the Construction of Empire

Ayala Fader, Fordham University
Ivan and Nina Ross Family Fellowship
Haredi Jews, Health, and Legal Cultures

Marc Flandreau, Department of History
University of Pennsylvania Faculty Fellowship
Sovereign Default, International Law, and the Anglo-Jewish Financial Community in the Nineteenth Century

Elisabeth Gallas, Leibniz Institute for Jewish History and Culture – Simon Dubnow
Jody Ellant and Howard Reiter Family Fellowship
“We Accuse!”: History of Jewish Indictments in the Nineteenth and Twentieth Centuries

Nan Goodman, University of Colorado
Ivan and Nina Ross Family Fellowship
The Memory of Sabbatianism and American Legal Culture

Tafat Hacohen-Bick, Ben Gurion University of the Negev
Louis Apfelbaum and Hortense Braunstein Apfelbaum Fellowship
Yirah, Law, and the Birth of Modern Hebrew Literature

Dana Hollander, McMaster University
Louis Apfelbaum and Hortense Braunstein Apfelbaum Fellowship
German Legal Comparatism and the Modern Understanding of Jewish Law

Tamir Karkason, Martin Luther University of Halle – Wittenberg
Dalck and Rose Feith Family Fellowship
Translating Citizenship: Jews and Ottoman Law in the Nineteenth Century

Jessica Marglin, University of Southern California
Thomas and Elissa Ellant Katz Fellowship
The Extraterritorial Mediterranean: Jews, Sovereignty, and Law in the Nineteenth Century

Thomas Prendergast, Hebrew University of Jerusalem
Maurice Amado Foundation Fellowship
Habsburg Jewish Legal Scholars, Sociology, and the Global Imperial Turn

Chaim Saiman, Villanova University
Albert J. Wood Fellowship
The New American Halakhah: Praxis of Contemporary American Beth Dins

Nomi Stolzenberg, University of Southern California
Ellie and Herbert D. Katz Distinguished Fellowship
The Place of the Jew in the Law of Religious Liberty

Elly Teman, Ruppin Academic Center, Israel
Charles W. and Sally Rothfeld Fellowship
Surrogacy in Israel: Between Jewish and Secular Law

Avishalom Westreich, College of Law and Business, Israel
Israel Institute Visiting Faculty Fellowship; Roberta and Stanley Bogen Visiting Scholar
The Civil Revolution of Jewish Law in Israel

Sarah Zager, St. Olaf College
Ruth Meltzer Fellowship
Deontology and Virtue Ethics in Halakhah

-- Karen Tani