Mattix's "National Parks and the Supreme Court"

It is publication day for National Parks and the Supreme Court: Groundbreaking Legal Battles (University of Nevada Press), by Carla Chung Mattix, who for over twenty-five years was an attorney for the National Park Service in the U.S. Department of the Interior’s Office of the Solicitor.

Many Americans revere their national parks as places of natural beauty and cultural significance—but few realize how often these landscapes have been shaped by the courtroom as much as by conservation policy. With more than 3,500 lawsuits involving the National Park Service, litigation has defined, defended, and sometimes even threatened the character of the parks. Without these legal fights, the Gettysburg battlefield might be covered with strip malls and the Grand Canyon reduced to a mining site.

This book examines five landmark Supreme Court cases involving national parks—Gettysburg, Yellowstone, Grand Canyon, Death Valley, and the National Mall. Each chapter blends legal analysis with historical context, tracing the origins of the parks and the disputes that brought them before the nation’s highest court. Spanning nearly a century, these cases reveal how the Court has shaped park policy, land use, Native American rights, water law, and free speech.

Through these pivotal decisions, National Parks and the Supreme Court offers a new lens on the contested terrain of the national parks, where legal, environmental, and cultural values collide. By exploring the courts’ influence on public lands, it deepens our understanding of the complexities of managing America’s most cherished landscapes.

Ms. Mattix discusses her "path to publication" here. 

--Dan Ernst 

Shanks-Dumont on Godzilla and the Imaginal Legal History of Ecocide

Daimeon Shanks-Dumont, a Ph.D. Candidate in the Jurisprudence and Social Policy Program at the 
University of California, Berkeley, School of Law, has published Godzilla Cinema and the Imaginal Legal History of Ecocide in the Yale Journal of Law & the Humanities:

This Article develops a theory of imaginal legal history in the service of recovering aspects of social phenomena that are habitually suppressed in contemporary modes of legal history. It offers a retrospective account of the emerging international crime of ecocide through the use of unlikely source material: Godzilla cinema. Through the use of moving images, this history surfaces latent meaning within the concept of ecocide that has been concealed in traditional narratives, namely an anthropocentric grounding that is at odds with its self-professed environmentalism.

The Article is divided into two main Parts. The first lays out a speculative theory of imaginal history. It begins by critiquing the dominate modality of professional historiography, contextualism, and the reduction of narrative that is a result of the hegemony of the written word. It then considers how images operate in and through legal practices and materials as a general matter of symbolic ordering, before moving on to discuss what the concept of the imaginal offers legal-historical study. It then outlines a novel methodological paradigm—imaginal legal history—that promises a way out of the obsession with radical contingency that has arrested legal history since its encounter with Critical Legal Studies in the 1980s.

The second Part is an attempt to operationalize imaginal legal history with film—to create what Walter Benjamin called a “critical constellation”—to better appreciate current efforts to leverage international law to address the climate crisis. It begins by explaining why Godzilla cinema is an apt repository of moving images with which to engage the histories of international law, arguing that the genre’s global scope, international scale, and deep inventories of symbolic imagery and fantasy recommend it as a tool of imaginal legal history. It then analyzes a foundational moment of international environmental law’s history in the 1960s and 1970s—the invention of the concept of ecocide, the beginning of the modern environmental movement, and the articulation of environmental consciousness in American jurisprudence. Finally, the Article “reads” the 1971 film, Godzilla vs. Hedorah, and what its imagery, symbolism, and structure reveals of contemporaneous and current environmental and legal consciousness.

The dénouement comes in the Conclusion, which takes the montage of images brought forward in the Article, dissolved of their contexts, and through a critical interpretation integrates them in ecocide’s horizons of meaning. A short Coda to the text follows, meditating on a materialist reading of Godzilla vs. Hedorah, and the traces of the Real that survive in the interstices of the film.

--Dan Ernst 

Camacho and Daniels's "Lessons for a Warming Planet"

Alejandro E. Camacho and Brigham Daniels have published Lessons for a Warming Planet:
A Vital History of US Environmental Law (NYU Press): 

The relationship between humans and the environment in the United States reflects tales of countless contrasting and overlapping trends, movements, and tensions. Law has cultivated both the planet’s biggest environmental threats and its most creative innovations for protecting human and ecological health. U.S. laws have driven both exploitation and temperance; destruction and restoration; and resistance and adaptation.

Lessons for a Warming Planet showcases the fundamental role the law has served in reckoning with environmental harm in the United States. Authors Alejandro E. Camacho and Brigham Daniels explore the full arc of U.S. environmental legal history across five major periods in the United States, reaching as far back as North America’s colonization and ending with the present. Through this rich history, the book considers the ways leadership, social movements, political coalitions, information, and technologies have both been catalyzed by the law and have advanced environmental change.

Camacho and Daniels provide a fascinating and insightful history of environmental law. They ask readers to consider: What lessons can we draw from environmental legal history for contemporary challenges like climate change, AI, and emerging biotechnologies? In looking to the past, Lessons for a Warming Planet illustrates how prior generations each used legal imagination to navigate seemingly insurmountable environmental threats.

--Dan Ernst 

Blumm on the Rise and Fall of Environmental Law

Michael C. Blumm, Lewis & Clark Law School, has posted The Rise and Fall of Environmental Law:

This article is an impressionistic, nonexhaustive look at the rise and fall of environmental law, beginning in the 19th century, extending through the statutes of the environmental decade of the 1970s and their implementation during the ensuing decades, and the quick deconstruction of environmental implementation by the Roberts Court and the Trump administration in recent years. Remarkably, the deconstruction occurred without major statutory change. 

--Dan Ernst 

"Law and Justice in the 1950s" (in England and Wales)

Just out from University of London Press: Law and Justice in the 1950s: Case Studies From a Neglected Decade, edited by Fiona Cownie and Rosemary Auchmuty and published in association with the Institute of Advanced Legal Studies:

The 1950s was a decade of considerable legal development in England and Wales, despite often being regarded as very conservative in contrast to the more radical 1960s and 1970s. This collection illustrates the breadth of those developments, providing a sociolegal perspective on a range of topics across criminal, property, family, commercial, environmental and public law, and legal education. It examines the social, political and economic context of the decade to reveal how legal developments in the 1950s have much greater significance than has generally been acknowledged to date. Drawing on case studies from the Great London Smog in 1952, the treatment of women in the Wolfenden Report and divorce law reform, to the takeover battle for the Savoy Hotel in 1953, law on the radio and more, the chapters throw new light on current debates about the relationship between law and issues of justice, inclusion and equality in different spheres of activity.

Written for historians and legal specialists alike, this book explores the stories behind the laws in this neglected decade. In revealing the historical context, arguments and controversies raised at the time and the different perspectives of the parties involved, it offers a greater understanding of why we have the law we have now and of these issues as they continue to be played out in the early twenty-first century.

Here is an endorsement that matters: 

This ground-breaking book provides an exciting new perspective on the role of law in England and Wales during the 1950s. New stories not already recorded in standard legal histories are carefully examined, including an eye-opening series on education, and the conjunction between women and the home. Wide-ranging and engaging, it is a fine achievement.  

—David Sugarman, Professor Emeritus, Law School, Lancaster University, UK

--Dan Ernst.  TOC after the jump. 

Weekend Roundup

• Congratulations to Alison LaCroix, University of Chicago Law School, upon the awarding to her of the American Historical Association’s Littleton-Griswold Prize in American Law and Society for The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms!

• Laura F. Edwards, Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, will deliver three lectures on the theme “The Legal Geography of the Civil War Era and Its Lasting Legacy,” as the 2025 Steven and Janice Brose Distinguished Lecture Series at Penn State University on October 23-25. 

• A notice of Emma Brush, a legal historian recently appointed Assistant Professor of Law, Jurisprudence and Social Thought at Amherst College (Amherst Student).  

• A symposium on John Fabian Witt's Radical Fund is underway over at Balkinization.  So far the contributors have been Michelle Adams, Risa Goluboff, and Willy Forbath.

• Evan D. Bernick, Northern Illinois University College of Law, has posted his review of Born Equal by Akhil Amar, Yale Law School.

• Jane Manners's historian's amicus brief for the Brennan Center in Grundmann v. Trump (D.C. Cir.), involving the Trump administration’s motion to dismiss Susan Tsui Grundmann's challenge to her removal from the Federal Labor Relations Authority.   

• “The Origins of the Major Questions Doctrine,” which Rachel Rothschild, Michigan Law, presented at last year's annual meeting of the ASLH, has been selected "one of the top 10 environmental law papers published in 2024" (Michigan Law). 

• In Time's "Made by History" series: If the Supreme Court Forgets the Past; When the Government was Re-Segregated. 

• ICYMI: Still more Lepore: Arts Fuse.  Justice Amy Coney Barrett on originalism (and more) (C-SPAN).  Marcus Rediker reviews The Zorg by Siddharth Kara (NYT).

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

ASLH Environment, Law, and History Global Workshop

[We have the following announcement.  DRE]

The next meeting of the ASLH Environment, Law, and History Global Workshop will take place on 3 October at 11am UTC. Eddie Kola will be presenting his draft paper "Lessons for the Upcoming Age of Climate Refugees":

Many of the people who enjoy the least freedom of mobility in the world today, are also those most susceptible to the deleterious effects of climate change. And yet, neither those who must flee their homes due to urgent environmental catastrophes, nor economic migrants whose livelihoods are destroyed by the climate crisis, enjoy any protection under the 1951 Convention relating to the Status of Refugees. The plight of these so-called climate refugees are only set to worsen as time goes on. Through a detailed contextualization of the development of international refugee law, and the impact refugees have had on the development of the modern passport system, this paper will use historical lessons to make normative arguments that existing legal instruments must be amended and new ones negotiated, to address what is undoubtedly going to soon become an age of climate refugees.

Ben Richardson will provide commentary.  If you would like to attend the session, please email Susan Bartie (susan.bartie[at]anu.edu.au) or David Schorr (dschorr[at]tauex.tau.ac.il) and they will send you the paper and a link.

Weekend Roundup

• Notre Dame Law’s notice of its two prize winners at the recent annual meeting of the Supreme Court Historical Society, Barry Cushman and Dennis Wieboldt.   

• Harvard Law's notice of Kenneth W. Mack's election to the American Academy of Arts and Sciences (Harvard Law Today).

• More historians' amicus briefs from the Brennan Center for Justice: a third one on birthright citizenship by Martha Jones and Kate Masur (New Hampshire Indonesian Community Support et al. v. Trump) and another on voting rights by Alexander Keyssar, Carol Anderson, Orville Vernon Burton, and J. Morgan Kousser (Turtle Mountain Band of Chippewa Indians v. Howe). 

• The U.S. Department of Justice, Then & Now: Barbara McQuade, Michigan Law and a former U.S. Attorney for the Eastern District of Michigan, in conversation with John Q. Barrett at the Robert H. Jackson Center. 

• W.E.B. Du Bois and His Impact on America: David Levering Lewis in conversation with Jeffrey Rosen at the National Constitution Center, Thursday, June 19, at Noon ET. Register here to attend online. 

• Also at the National Constitution Center, in person and online: The Story of the U.S. Constitution: Past and Present, with Akhil Reed Amar, David Blight, and Annette Gordon-Reed, on Monday, June 23 at 6:30 p.m. ET.  Register here to attend online.

• If, like me, you teach the rise of the residential subdivision, you might want to check out this post by the Library of Congress's Geography and Maps Division.  DRE 

• ICYMI: "The Constitution—Not Trump—Demands Allegiance" says Christian Fritz (Albuquerque Journal) (link fixed). The Cato Institute says history teaches that fighting tyranny requires mobilizing the people as well as the courts (Cato).  A history of the Antiquities Act in 1906 (Wilderness Society).

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

Morag-Levine on American and European Air Pollution Law

Noga Morag-Levine, Michigan State University College of Law, has posted Uniform and Locally Tailored Emissions Standards in American and European Air Pollution Law: The Impact of Historical Regulatory Traditions, which also appears in the Columbia Law Review Forum:

This Piece operates at the intersection of comparative environmental law and legal history. It introduces a novel distinction between two paradigms of technology-based pollution standards: the first, uniform across all places and environmental conditions, and the second, tailored to local environmental and economic circumstances. It then compares the air pollution regimes of the United States and the European Union with an eye to the relative place of the two types of standards within each regime. This Piece finds that, in general, uniform standards characterize European regulation, whereas American regulation favors tailored standards. This Piece argues that longstanding historical differences between Continental and Anglo-American approaches to regulating pollution are at the root of this transatlantic difference. Uniform technology standards accord with the permitting practices of France, Germany, and other European countries going back to the early Industrial Era. By contrast, tailored standards fit with the localist sensibilities of English common law-based environmental regulation going back centuries. This Piece seeks to illuminate the historical origins of transnational differences in environmental policy and how this history continues to shape contemporary environmental choices and debates.

--Dan Ernst

Ankersen on Sea Turtle Conservation Law

Tom Ankersen, University of Florida Levin College of Law, has posted, in three parts, "Not for Long a Fishe: The Early History of Sea Turtle Conservation Law and Policy in Florida":

Shipping Green Turtle, Key West, 1898 (NYPL)

[Part I] reviews the broad history during the colonial era and then focuses on some of the first laws Florida’s territorial and early statehood years, when sea turtles were considered a fishery. By the end of the 19th century and continuing into the 20th century, the State’s sea turtle population had declined significantly due to over-harvest and a poor understanding of the species biology.  In 1897, a federally commissioned Fisheries Report sounded the alarm.  The Florida Legislation acted on one of the report’s conclusions, leading to the first law to protect nesting sea turtles in the state in 1907.

[Part II] tracks the efforts of the Florida Legislature to establish and regulate a managed fishery through county-specific legislation in the first half of the 20th century, and documents the early efforts to understand the late-maturing and highly migratory animal’s life history. With little understanding of sea turtle biology and behavior, the State attempted to maintain a viable sea turtle fishery during this period, with little success.  In the 1950s, Dr. Archie Carr from the University of Florida laid the foundation for sea turtle science, along with a handful of other pioneering researchers.  Carr founded the first advocacy group devoted to sea turtle conservation, which he and the founders called the “Brotherhood of the Green Turtle.” This advocacy group would eventually become the Sea Turtle Conservancy.

[Part III concludes the series.]  Not without controversy, the 1970s brought an end to the sea turtle fishery in Florida, and along with it the classification of sea turtles as legally endangered. In this era, both international and federal law began to play a role in how sea turtles were legally treated by the State of Florida.

--Dan Ernst

Online Workshop on Environment, Law, and History

[We have the following announcement.  DRE.]

While environmental history and legal history are well-developed fields with dedicated forums for discussion new scholarship, those of us interested in the intersection of these two fields have to date had a harder time meeting up with scholars with similar interests. After successful sessions at last year's conference of the European Society for Environmental History and this past summer's meeting of the World Congress of Environmental History, we will finally be kicking off an ongoing online workshop, in which we will discuss pre-circulated drafts with the authors from around the world. We plan to meet on Zoom a few times a year, for about an hour each time.
 
Our first workshop session will take place 15 November 2024 at 8 am GMT. We will discuss with David Wilson of the Department of Humanities at the University of Strathclyde his paper, "Towards an Optimum Yield: Science, Technology, and Fisheries Development in Lake Malawi, 1930-1964". The following session, in January 2025, will feature Rebecca McLennan of the UC Berkeley History Department.
 
To receive a copy of David's paper and a Zoom link, or to ask to be put on the list for messages about future workshop sessions, please email one of us. 

Susan Bartie (susan.bartie[at]anu.edu.au)
David Schorr (dschorr[at]tauex.tau.ac.il)

ASLH 2024

Starting today, your Legal History Bloggers will be in San Francisco at the annual meeting of the American Society for Legal History, for which Karen served as co-chair of the Program Committee.  This year, we appear on the same panel, Foundations of the Modern Administrative State, at 3:00 tomorrow.  Karen will chair, and I will comment.  The papers and their authors are:

A Presidency of Statutes: Gilded Age Reform and the Roots of the Modern Executive (1868-1921)
Andrea Scoceria Katz, Washington University in St. Louis School of Law

The Progressive Origins of Centralized Administrative Review
Edgar Melgar, Yale Law School

The Lost English Roots of Notice-and-Comment Rulemaking
Rephael Stern, Harvard University/Harvard Law School

The Origins of the Major Questions Doctrine
Rachel Rothschild, University of Michigan Law

As in the past, we welcome otherwise unsolicited reports of sessions at the meeting, and we expect to post on the prizes announced there after the meeting concludes.

--Dan Ernst

Rothschild, "The Origins of the Major Questions Doctrine"

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

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

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

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

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

The full paper is available here.

-- Karen Tani

The Centenary of the Irish Free State Constitution

Palgrave Macmillan has published the essay collection, The Centenary of the Irish Free State Constitution: Constituting a Polity?  Its editors are Laura Cahillane, Senior Lecturer in the School of Law at the University of Limerick, and Donal K. Coffey, Assistant Professor in the School of Law and Criminology at the National University of Ireland, Maynooth.  It appears in the series Palgrave Modern Legal History.

This book deals with the role, development, and legacy of the first Constitution of independent Ireland within the wider context of the establishment of the State. After decades of relative neglect, the 1920s have been receiving increased attention from historians recently thanks to the centenary of the State’s foundation. This book continues this trend of re-examination of this period and looks at key themes, such as the establishment of institutions under the Irish Free State Constitution and the focus on the ideals of popular sovereignty and democracy. It does so from novel and cross-disciplinary perspectives, and it also looks at areas which have received little to no previous attention; from individual aspects like property rights, the Irish language and environmental rights to aspects such as opposition and partition.

 The TOC is here.

–Dan Ernst

Transportation Library Travel Grant

[We have the following announcement.  DRE.]

We are pleased to share that applications are open for the 2024-2025 Transportation Library Travel Grant.

The Northwestern University Transportation Library holds one of the largest transportation research collections in the world, covering all modes of transportation including aviation, rail, highway, public transit, and pedestrian and bicycle transportation. In addition to our technical collections that support research on current transportation issues, the library maintains special and archival collections such as timetables, passenger ephemera, and rare books and journals. It also holds a substantial collection of mid-19th to early 21st century transportation annual reports, and one of the most complete U.S. Environmental Impact Statement (EIS) collections in existence.

This research grant was established in 2021 to facilitate and support research projects that significantly benefit from substantial onsite use of the Transportation Library’s unique technical, special, and archival collections.

Funding.  Each year we will award one or more grants, up to a total of $3,000.  Grants will be awarded to reimburse expenses for transportation, accommodations, and meals for one or more on-site visits to Northwestern University Libraries.

Eligibility.  Open to academic and independent researchers. We encourage applications by those working in traditional academic practice as well as those whose research is interdisciplinary, or oriented towards creative arts and practices.  There are no restrictions as to the applicant’s nationality or academic status.    Research may be in any field supported by the collections of the Transportation Library. At the discretion of the selection committee and Northwestern University Libraries, the grant may be awarded to an individual applicant, a team, or divided among multiple applicants and/or teams. Further, if a suitable recipient is not identified among the applications received, we reserve the right to withhold the grant for that particular year.  Applicants who are not awarded the grant in a specific year may resubmit proposals in following years without prejudice.  An applicant may receive only one award for any one project as determined by the selection committee and Northwestern Libraries. Researchers affiliated with Northwestern University will not be considered for this travel grant.

How to apply.  To apply, please submit the following:

• A project proposal (1,200 words max) that describes the proposed research; explains the significance of the collection materials to the project; [and] proposes specific outcomes (e.g., dissertation, article, book, creative or artistic work) that will result from this research
• A curriculum vitae
• A detailed budget indicating the total amount requested with itemized list of projected expenses for transportation, accommodations and meals. For meals and incidentals, applicants should use the U.S. General Services Administration Per Diem Rates for Meals & Incidentals (M&IE) for Chicago. Applicants should indicate any other sources of funding that will be applied to the project, if applicable. For additional information on planning a budget, see allowable expenses and Out-of-Town Visitor Resources.

Applicants should arrange for one (1) letter of recommendation from someone qualified to judge the quality, feasibility, and significance of the proposal and the qualifications of the applicant to successfully complete the project to be sent in support of their proposed project. Those writing recommendations should submit their letters directly to librarygrants@northwestern.edu.

Applicants should submit the research description, curriculum vitae, and budget by e-mail attachment (PDF format) to librarygrants@northwestern.edu.

Please note: The selection committee is unable to provide feedback with regard to unsuccessful applications.

Expectations.  All grant awardees will be required to submit receipts for expenses incurred and will be reimbursed, in accordance with Northwestern University policies. For meals and incidentals, we require that recipients use the U.S. General Services Administration Per Diem Rates for Meals &Incidentals (M&IE) instead of itemized receipts. Reimbursement requests must be made within 30 days of last day of visit.

Grant awardees must conduct their research visit within the academic year following the grant being awarded (between September 1st and August 1st).

Upon completion of the research, grant awardees will be required to submit a brief report [1-2 pages] summarizing the use of the collection(s) and how the visit benefited their research to librarygrants@northwestern.edu.

Questions?  Contact librarygrants@northwestern.edu.

MPI-TAU Transnational Legal History Workshop

[We have the schedule for the Transnational Legal History Workshop, sponsored by the Max Planck Institute and Tel Aviv University.  DRE]

The Berg Foundation Institute for Law and History at The Buchmann Faculty of Law, Tel Aviv University, and the Max-Planck-Institute for Legal History and Legal Theory will continue the joint MPI-TAU Transnational Legal History Workshop in the Fall Semester 2023/2024.

The workshop will meet from 19:00-20:30 (Frankfurt time) and 20:00-21:30 (Tel Aviv time). This year's organizers and moderators are Leora Bilsky (TAU), Thomas Duve (MPI), Rachel Friedman (TAU), David Schorr (TAU), and Stefan Vogenauer (MPI).

Sessions will be conducted on Zoom and will be based on pre-circulated papers. The papers will be sent to each participant one week in advance.

Registration for participation is required: mpitauwkshp@gmail.com

6 December                Assaf Likhovski (TAU)

Studying Ancient Constitutional Law in Colonial India and Mandatory Palestine

13 December              Jan-Henrik Meyer (MPILHLT)

European Community Environmental Law in the 1970s: Combatting Water Pollution

20 December              Noga Morag-Levine (Michigan State University)

England’s Missing Boards of Health: The Medieval Beginnings of an Anglo-Continental Divergence

10 January                  Alon Jasper (TAU)

Transforming a Polity into an Economy: The Five Nations and the Railroads, 1855-1894

17 January                  Raquel Sirotti (MPILHLT)

State-like powers? Charter Companies and the production of knowledge of normativity in Mozambique (1891-1942)

24 January                  Egas Moniz Bandeira (FAU)

Changing Legal Professions in China, Japan, and the Ottoman Empire in the long 19th century: Towards a Historical Comparison

31 January                  Aparna Balachandran (Delhi University)

Religion, Law and Urban Governance: Subaltern Christians as Legal Subjects in Early Colonial South India

7 February                  Cristiano Paixão (University of Brasília)

Transnational legal mobilization: repressive structures and networks of resistance in S. American dictatorships (1964-1988)

14 February                Julia Moses (University of Sheffield)

Harmonizing the Family? International Law, Cultural Norms and Marriage at the Turn of the Twentieth Century

21 February                Sarina Kuersteiner (Union College)

Whatever God Gives: Arabic and Judaeo-Arabic Rizq and Latin Resicum in Commercial Vocabulary, 1154-1164 CE

Richardson's "Before Environmental Law"

Benjamin J. Richardson has published Before Environmental Law: A History of a Vanishing Continent (Hart/Bloomsbury):

This landmark book unveils the history of defending Australia's natural environment and examines the subject's legal and political contexts from the birth of the nation in 1901 until the advent of the so-called modern era of environmental regulation in the late 1960s. It rejects the mythology that Australia lacked environmental law before the late 1960s in revealing how many of today's environmental laws, from pollution control to nature conservation, emerged from precedents or events much earlier in the 20th century.

This history however reveals a discrepancy between lawmakers' greater efficacy to exploit rather than protect the environment, a discrepancy that grew as nature's backlash intensified in a rapidly degrading continent colonised to build the Australian nation. In exploring these dynamics, the book offers a rich tapestry of case studies illustrated with historic photographs that show the origins of Australia's environmental laws and how they borrowed from international precedents or furnished lessons for other nations.

Through its multi-disciplinary enquiry, the book offers scholars and students of environmental law, legal history and the environmental humanities a unique story about the failures and successes in the making of environmental law.

--Dan Ernst

CFP: Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

Via H-Net, we have the following announcement:

Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

David Schorr

Susan Bartie (ANU), Ben Pontin (Cardiff), and I are organizing a double session on environment, law, and history for the 4th World Congress of Environmental History, to be held (in hybrid format) in Oulu, Finland, 19-23 August 2024. This double session will showcase environmental-legal-historical research that demonstrates the opportunities as well as the challenges inherent in this meeting of disciplines, and discuss strategies, theories, and research methods that might help in overcoming these challenges. The sessions' abstract is below.

If you're interested in joining (in person or remotely, you need not decide now), please submit a proposal through this link by 18 September 2023. Please indicate in your submission whether you wish to propose a traditional research paper (the first session) or make a presentation as part of the roundtable (second session).

Abstract:

The triangle ‘environment–history–law’ suggests a wealth of opportunities for productive transdisciplinary scholarship: Historical analysis of environmental law, environmental histories of legal change, legal histories of the environment, etc. Yet such transdisciplinary projects have to date been tentative and largely tangential to the thriving fields of environmental history, legal history, and environmental law. Legal history, while having moved beyond its previously narrow focus on legal doctrine to embrace wider contexts of society, economy, and culture, has to date remained largely indifferent to environmental issues or to the environment as a category of analysis. The field of environmental law, so salient in pressing issues such as climate change and biodiversity conservation, tends to see itself as brand new, overlooking centuries of environmental laws. And while environmental histories frequently reference legal issues and institutions, from common property to rights of nature, they are often insensitive to the legal context in which these institutions operate.

The first session will showcase new environmental-legal-historical research that demonstrates both the opportunities and challenges inherent in this meeting of disciplines. The following, roundtable session will bring together scholars working across the boundaries of environment, history, and law, in order to discuss the challenges facing this intersection of disciplines, from institutional obstacles to the difficulty in meshing historical and normative analysis. With the participation of the audience, it will seek to identify strategies, theories, and methods that might help in overcoming these challenges. Panelists will be drawn from a variety of disciplines, regions, and methodological approaches.

Contact Email

- Karen Tani

Legal Historians on "The Disability Frame"

Last February, we noted that several legal historians would be participating in a University of Pennsylvania Law Review symposium on "The Disability Frame." The published volume is now available online at the Law Review's website. Contributions of interest for readers of this blog include:

Nate Holdren (Drake University), Capitalism Disables: The Case of Workers' Compensation Laws. Abstract:

This article presents an account of disability as social and thus variable, connected to an account of capitalism as an inherently disabling type of society, such that different capitalist societies may disable in different ways, but all of them will disable. The article then takes the early history of workers’ compensation laws in the United States as a case study for the theoretical account of disability and capitalism, arguing that those laws created new incentives for discrimination against disabled people and thus re-organized the process of disabling. The article concludes with brief speculation about what these points imply for the prospects of achieving justice for disabled people through law.

Karen Tani (University of Pennsylvania), Disability Benefits as Poverty Law: Revisiting the "Disabled State". Abstract:

This essay, a contribution to "The Disability Frame" symposium, uses the history of a famous and influential disability benefits case to revisit political scientist Deborah Stone’s argument in THE DISABLED STATE (1984). Observing that “[m]edical certification” of disability had “become one of the major paths to public aid in the modern welfare state,” Stone wondered whether policymakers were asking the “concept of disability” to do too much and whether they were sufficiently alert to the concept’s tendency to expand over time.

Filed in 1983 and decided by the Supreme Court in 1990, Sullivan v. Zebley is an example of those expansionary pressures and their significant results. When the Social Security Administration stopped making Supplemental Security Income payments to 5-year-old Brian Zebley, despite his continuing and severe disabilities, lawyers at the legal aid organization Community Legal Services filed a class action. Operating from a foundational belief that the welfare state should be more robust, Zebley's lawyers contended that not only had the Social Security Administration erred in Zebley’s case, but also that the Agency’s overall eligibility determination process for child disability benefit claimants was too restrictive. The plaintiffs’ ultimate victory before the Supreme Court, and the surprising allies it amassed along the way, illustrate how readily many actors and institutions connected disability to deservingness and embraced disability as a distributional device in the late twentieth century. The post-Zebley backlash against child claimants, however, illustrates how closely the public continued to associate disability with deviance and fraud, especially when they observed take-up among Black citizens. Negative perceptions contributed to the program’s reform in 1996. Congress preserved the new path to eligibility that Zebley created, but also narrowed it. Decisional power, meanwhile, remained in the hands of medical gatekeepers.

This essay casts the Zebley story as one of triumph and tragedy. It was a triumph for poverty lawyers and their clients, who, under hostile circumstances, pressed for a more generous and life-affirming social welfare system. They saw that the boundaries of disability were malleable and they pushed on them. But it remains a tragedy that the best route to subsistence for so many children has further entangled disability with medicalization, suspicion, and surveillance. 

Also of interest: Britney Wilson (New York Law School), Making Me Ill: Environmental Racism and Justice as Disability. Although not a historian, Wilson drew on historical research to explore the intersection of disability, race, civil rights, and environmental justice: Abstract:

Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both race and disability are salient and affect one another, is one such context in which advocates have tried to use the ADA to challenge broader structural harm. This Article analyzes cases in which practitioners have used the ADA to challenge issues of environmental injustice to examine the purported utility of the ADA, and disability and medicalization framing, more generally, in addressing structural racism and injustice. Specifically, I discuss the attempted use of the ADA to stop the construction of a petrochemical plant in “Cancer Alley,” Louisiana and to challenge mold on behalf of public housing residents in New York City.

The use of the ADA to challenge environmental injustice has clear legal and social justice narrative benefits that explain its appeal, including the required inclusion of people with disabilities in environmental justice campaigns that disproportionately impact them, but from which they are often left out—except for as examples of the negative consequences of harm. However, the promise of these legal theories has not been adequately tested to proffer the ADA as a true alternative to race-based civil rights laws, and there are many suggestions that it is not. Furthermore, the use of disability as both narrative harm and legal strategy in environmental justice campaigns raises important considerations for racism and ableism as interrelated institutional harms. Therefore, any attempt to expand the disability frame in this direction requires an understanding of racism that does not exclude or otherwise undervalue ableism and vice versa. Otherwise, we risk perpetuating the same problems.

The symposium event featured many other scholars. Rabia Belt's remarks may be of particular interest to readers of this blog. A YouTube recording of her panel is available here.

-- Karen Tani

Weekend Roundup

• The Federal Judicial Center is seeking applications for Assistant Division Director for Judicial and Legal Education.
  

• Samantha Barbas, University at Buffalo School of Law, is interviewed about Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press, 2023) (Current).
  

• We received a CFP for “Legal Infrastructures of Democracy. Legal Fields, Public Spheres, and the Twin Challenges of State and Market.”  The workshop will take place in Frankfurt on September 7-8.

• From the Washington Post's "Made by History" section: Carly Goodman, "We’ve erased Black immigrants from our story, obscuring a racist system"; John Gleb (University of Texas at Austin), "Anti-Asian bigotry is behind a Texas land bill"; and more.

• From Environment, Law, and History: David Schorr's series of posts on "Nature and the Common Law" continues, here and here.

• At Balkinization, Mary Dudziak (Emory Law) has posted part one of what looks like a series of posts on the "Forever War Chronicles": "How, exactly, did Truman decide not to seek a war declaration for the Korean War?"
  

• Also at Balkinization: posts have started going up for the symposium on Joanna Schwartz's new book Shielded: How the Police Became Untouchable (Viking, 2023).

• New online from the American Journal of Legal History and Oxford Academic: O’Connor v Donaldson (1975): Legal Challenges, Psychiatric Authority, and the Dangerousness Problem in Deinstitutionalization, by Laura Hirshbein.
  

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