Boes on Antivaccination and American Antistatism

Julia Bowes, University of Melbourne, has published “Another Human Sacrifice Thrown to the Pitiless Moloch of Police Power”: The Anti-Vaccination Movement, Parental Rights, and the Roots of American Anti-Statism, 1890–1917, in Law and History Review:

This article revisits the roots of anti-statism in the United States by analyzing opposition to the introduction of compulsory school vaccination and medical examinations at the local and state levels in the Progressive Era. It shows that the widespread use of compulsory schooling laws to promote vaccination in the late nineteenth century, which led to establishing compulsory school medical exams and school nurse programs in the early twentieth, precipitated intense conflicts over states’ police powers. Exploring the controversy over school vaccine requirements in Utah between 1899 and 1901, the article reveals that resistance to public health interventions in schools fused skepticism of science with a gendered defense of individual and parental rights to challenge states’ power over children. The article then traces how these conflicts filtered up to the federal level, framing arguments against a proposed federal department of health in the 1910s. Led by the National League for Medical Freedom, opponents directly linked the reach of the police powers via compulsory school health initiatives with the expansion of federal power, arguing they were connected in a plot to establish “state medicine” that imperiled the gendered freedom of the “individual”—i.e., the white male citizen—over the home.

--Dan Ernst 

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

Weekend Roundup

• 
  Kate Masur, Northwestern University, discussed on Professor Masur's Until Justice Be Done on Crooked Media's Strict Scrutiny podcast.
  

• Long ago, we wrote a seminar paper on the coroner in England and New Hampshire, so our pulse quickened when we learned that the Australasian Legal Information Institute has brought online the Australian Coronial Law Library “The free access Library on AustLII provides an expansive perspective on the coronial function over at least the past twenty years.”  More.  DRE.
  

• Last month, the Historical Society of the District of Columbia Circuit held a reenactment of the argument in United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), “the first federal major appellate court opinion to address application of traditional ‘old economy’ antitrust rules to the new, dynamic and fast-paced technology markets of the late 20th Century.”  Two of the judges who presided at the original argument also presided over the reenactment.  A recording of the event is now available.
  

• Berkeley Law's announces its new faculty members, including the legal historian José Argueta Funes.
  

• New from the American Journal of Legal History and Oxford Academic: Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow, by Hunter Harris, Postdoctoral Research Fellow, Nuffield College, University of Oxford.
  

• The Lawbook Exchange’s new catalogue of Scholarly Law & Legal History is here.
  

•  ICYMI: Henrietta Lacks’s family reaches settlement in extracted cell lawsuit (WaPo).  Behind the scenes at the American Historical Review (AHA).  The Brennan Center for Justice on the history of Supreme Court appointments.  The New York Times reviews the exhibit "Black Americans, Civil Rights and the Roosevelts," which opened earlier this summer at the FDR Library and Museum.    Joseph Patrick Kelly on Ku Klux Klan Acts (The Conversation).
  

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

Friedman's "Law, Science, and Technology" and "Personal Identity in the Modern World"

Rowman & Littlefield has published Law, Science, and Technology: Historical and Social Context (May 2023), by Lawrence M. Friedman (Stanford Law School). A description from the Press:

Through a series of historical analyses, Friedman explores the relationship between the legal system and the development of modern science and technology. The scientific revolution produced major changes in culture; and these in turn led to changes in government and law. The book covers, among other topics, the transportation revolution; the camera and the entertainment industry; the “germ theory” and its influence on modern society; and the role of culture and technology in the sexual revolution.

A selection of advance praise:

Why does the law change? In a discussion that is somehow both erudite and fun to read, drawing on case studies ranging from cars to cameras to vaccines, Lawrence Friedman persuasively suggests that technological developments lead to cultural transformations, which in turn produce changes in the law. Anyone interested in the relationship between law and technology will want to read this book. -- Stuart Banner

Friedman has written a wonderful book that investigates the intertwined nature of law, science and technology, and the role played by law in a modern complex society. As is true for all Friedman’s books, he presents a social history that is accessible to lay persons as well as legal history devotees. As a reader, you are drawn in by the stories that shed light on dramatic cultural and legal change. -- Joyce Sterling

Also of note: Friedman's Personal Identity in the Modern World: A Society of Strangers, published by Rowman & Littlefield in August 2022:

In a society of strangers, there develops what can be called crimes of mobility -- forms of criminality rare in traditional societies: bigamy, the confidence game, and blackmail, for example. What they have in common is a kind of fraudulent role-playing, which the new society makes possible. This book explores the social and legal consequences of social and geographical mobility in the United States and Great Britain from the beginning of the 19th century on. Personal identity became more fluid. Lines between classes blurred. Impostors abound.

A selection from the blurbs:

On a sweeping canvas that covers two centuries of legal and literary history, eminent historian Lawrence Friedman shares his observations about the power of mobility—both geographic and social—to transform personal identity. During the 19^th century, the United States morphed from a collection of face-to-face local communities into an anonymous, urbanized nation in which men and, to a lesser extent, women could alter their socioeconomic status, their religion, and even their perceived race, along with their place of residence. But the potential to craft new identities also raised the disconcerting prospect that people were not who they seemed and that, beneath the veneer presented to the outside world, deviance and criminality might lurk. America and Great Britain gradually shed repressive Victorian norms in favor of “expressive individualism,” but prisons and other institutions developed for law-breakers and the poor continued to exert control. Friedman concludes with the insight that 21^st-century globalization and technology have created a new type of village that sacrifices privacy for connectedness. His latest book makes an entertaining and thought-provoking read. -- Carolyn B. Ramsey

-- Karen Tani 

Daston to Lecture on Rules and Exceptions

 [We have the following announcement.  DRE]

The 2021-22 Cotterrell Lecture in Sociological Jurisprudence, "Rules and Exceptions: Casuistry,
Equity, and Prerogative," will be delivered by Professor Lorraine Daston on Monday, March 14, 2022, 4:00 PM - 5:30 PM.  Register here.  

The 2021-22 Cotterrell Lecture in Sociological Jurisprudence will be delivered by Professor Lorraine Daston. Professor Daston is Director Emerita of Max Planck Institute for the History of Science, and Professor at the Committee on Social Thought at the University of Chicago. The event is chaired by Professor Maksymilian Del Mar.

No rule evades its exceptions, and institutions have evolved over time in order to bend the rule as necessary without breaking it. In early modern Europe, three such institutions came under increasingly critical scrutiny: casuistry in moral theology, equity in law, and royal prerogative in politics. Exceptions by no means disappeared, but they became morally, philosophically, and even theologically disreputable. A new ideal of the rule emerged, one that prized uniformity and predictability in the generality of cases over fairness and justice in the individual case – a tension still very much with us.

About the Speaker.  Lorraine Daston has published on a wide range of topics in the history of science, including the history of probability and statistics, wonders in early modern science, the emergence of the scientific fact, scientific models, objects of scientific inquiry, the moral authority of nature, and the history of scientific objectivity. Recent books include Gegen die Natur (2018; English edition Against Nature, 2019) as well as Science in the Archives (2017) and (with Paul Erikson et al.) How Reason Almost Lost Its Mind: The Strange Career of Cold War Rationality (2014), the latter two both products of MPIWG Working Groups.

Her current projects include a history of rules, the meaning of modernity in the history of science, international governance in science since the late nineteenth century, and the relationship between moral and natural orders.  She is the recipient of the Pfizer Prize and Sarton Medal of the History of Science Society, the Schelling Prize of the Bavarian Academy of Sciences, the Lichtenberg Medal of the Göttingen Academy of Sciences, the Luhmann Prize of the University of Bielefeld, and honorary doctorates from Princeton University and the Hebrew University. In 2018 she was awarded the Dan David Prize in the History of Science. In addition to directing Department II of the MPIWG, she is a regular Visiting Professor in the Committee on Social Thought at the University of Chicago and Permanent Fellow of the Wissenschaftskolleg zu Berlin.

Grossman's "Choose Your Medicine"

It’s hard to imagine a more timely book or an author who has devoted more thought and research to his subject.  Lewis A. Grossman, American University, has just published Choose Your Medicine: Freedom of Therapeutic Choice in America (Oxford University Press):

Throughout American history, lawmakers have limited the range of treatments available to patients, often with the backing of the medical establishment. The country's history is also, however, brimming with social movements that have condemned such restrictions as violations of fundamental American liberties. This fierce conflict is one of the defining features of the social history of medicine in the United States.

In Choose Your Medicine, Lewis A. Grossman presents a compelling look at how persistent but evolving notions of a right to therapeutic choice have affected American health policy, law, and regulation from the Revolution through the Trump Era. Grossman grounds his analysis in historical examples ranging from unschooled supporters of botanical medicine in the early nineteenth century to sophisticated cancer patient advocacy groups in the twenty-first. He vividly describes how activists and lawyers have resisted a wide variety of legal constraints on therapeutic choice, including medical licensing statutes, FDA limitations on unapproved drugs and alternative remedies, abortion restrictions, and prohibitions against medical marijuana and physician-assisted suicide. Grossman also considers the relationship between these campaigns for desired treatments and widespread opposition to state-compelled health measures such as vaccines and face masks.

From the streets of San Francisco to the US Supreme Court, Choose Your Medicine examines an underexplored theme of American history, politics, and law that is more relevant today than ever.

Some encomia:

"Grossman's work displays his mastery not only of the law, but also of everything else that makes medicine and health enduringly fascinating aspects of human history. Life, death, fear, love, pride, greed, envy, and ambition spring repeatedly from its pages. If you only read one book to understand the social cleavages that make it hard for Americans and their political leaders to 'follow the science' and end the pandemic, it should be this one." -- William M. Sage, Professor of Law and Medicine, The University of Texas at Austin

"What have 'life, liberty, and the pursuit of happiness' meant for medicine? Lewis Grossman provides a provocative answer, showing how Americans across the political spectrum used the law to fight—often against their physicians—for therapeutic choice. The legalization of medical marijuana and compassionate use of experimental cancer drugs are, in his view, just the most recent examples of a 200-year-old tradition of medical rights-making in the US, often linked to expressions of religious freedom. A fascinating diagnosis of the American wariness of the state and medical science." -- Angela N. H. Creager, Thomas M. Siebel Professor in the History of Science, Princeton University

"From George Washington's Deathbed in 1799 to the D.C. Circuit's courtroom in 2007 hearing argument in the landmark case of Abigail Alliance, Grossman's book takes readers on a thrilling historical ride to understand what 'therapeutic choice' has meant for this country and what the sometimes unstable marriage between medicine and law has wrought." -- I. Glenn Cohen, Deputy Dean and James A. Attwood and Leslie Williams Professor of Law, Harvard Law School, and Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics

"Meticulously researched, engagingly written, and deeply relevant, Lewis Grossman begins with the question of therapeutic freedom in the early 21st century and traces a vital thread connecting two centuries of legal studies, consumer history, and American politics. Choose Your Medicine provides a thorough and trenchant meditation on what is gained—and what has been lost—in foregrounding individual choice in the forging of US health policy and law." -- Jeremy Greene, William H. Welch Professor of Medicine and the History of Medicine, Johns Hopkins University

--Dan Ernst

Tilley and friends on global medical cultures & law

[We share the following announcement of a new publication.]

 Osiris, Volume 36:

Therapeutic Properties: Global Medical Cultures, Knowledge, and Law

Edited by Helen Tilley

Published by the University of Chicago Press on behalf of the History of Science Society

This volume of Osiris takes as its point of departure a simple premise: we have yet to fully flesh out the complex historical interplay between medicine and law across the globe. Therapeutic Properties takes an inventive look at the issue, presenting welcome insights on the worldwide ascendancy of biomedicine, the persistence of nonofficial and unorthodox approaches to healing, and the legal contexts that have served to shape these dynamics.

The contributions draw upon source material from the Americas, Africa, Western Europe, the Caribbean, and Asia to trace the influence of penal and civil codes, courts and constitutions, and patents and intellectual properties on not only health practices, but also the very foundations of state-sanctioned medicine. The authors explore, too, how institutions of global governance, including those underpinning empires and trade, have historically created feedback loops that enabled laws and regulatory regimes to spread, amplifying their effects and standardizing approaches to diseases, drugs, professions, personhood, and well-being along the way. Highlighting the payoff of interdisciplinary and transnational analyses, Therapeutic Properties adroitly teases apart how different actors fought to write the rules of global health, rendering certain approaches to life and death irrelevant and invisible, others pathological and punishable by law, and others still, normal and natural.

Table of Contents after the jump:

Murder Mystery and Legal History: Part I

An elderly memsahib’s body lies crushed at the bottom of a moonlit ski slope in Kashmir in the twilight of the Raj. Prominent businessmen in colonial Calcutta are mysteriously stabbed in the heart by a gramophone needle as they cross the street. The British governor of the fictional African country of Chania is strangled in his study at the end of a dinner party. A French governess is drowned in an abandoned swimming pool in postwar Berlin. This was not what I had expected I’d be writing about when I was invited to invite to join the Legal History blog as a guest blogger in April 2020.

I was eager to use the opportunity to work through theoretical and methodological questions that were arising out of my current research project which seeks to write an alternate international history of radical lawyering emerging from Asia and Africa in the 1950s, by following a network of civil liberties lawyers as they navigate colonial rule, postcolonial authoritarianism, mass migrations and new social movements. Focusing on legal practice across time, I hoped would make visible how the engagement with anti-colonial trials were formative for a generation of young lawyers who would go onto pioneer new forms of progressive lawyering. As a lawyer and a historian of South Asia, I was moving out to explore new geographies and histories and the challenge of writing a transnational history of local legal events. I wanted to think about how sedition trials in Guyana, Pakistan and Singapore would tell us about the nature of “postcolonial” sedition. And how does one understand how a legal practice for political lawyering is funded and sustained. Or, more curiously, why did so many of the lawyers that I was studying enjoy listening to Paul Robeson. 

Yet, before I could begin, the COVID epidemic reached worrying proportions. I relocated countries in short notice, was working with hastily photographed books and consumed with worry about friends and family. Reading difficult texts or grainy archival photos remains challenging and I found myself regressing to comfort reading, consisting of historical novels and mid 20^th century murder mysteries. As historian Aparna Balachandran confirmed in her wonderful essay on “Agatha Christie as Pandemic Reading”, I was not the only person to turn to detective stories. As I was contemplating what, then, to write for the blog, Surabhi Ranganathan suggested that instead of seeing reading for comfort as external to my research, I should think about the links between the two. 
In the series of post to follow, I draw upon three sets of mid 20^th century detective novels, both as sources to think about legal history and as worldbuilders for the terrain that the figures I am studying operated in. I am neither a literary scholar nor a book historian, so my explorations should be taken as akin to the amateur detective, often treading over ground already covered by professionals. 

The Game is Afoot

While murders mark the beginning of human civilization, the public fascination with a murder mystery is a particularly modern phenomenon. Scholars ranging from Michael Foucault to Judith Flanders have shown how public fascination with violent crime arose during the 19^th century, linked to the growth of the popular press, the emergence of the modern police, new medical, forensic and psychological sciences that sought to claim authority and particularly the separation of the public from the private. Indeed, it is not assassinations or public brawls that fed the Victorian public, but the voyeuristic interest in the crime domestic, the opening up of a private home for public consumption. Literary historians argue that the emergence of detective fiction by the late 19^th century developed forms and conventions that were markers of modernity. There remain a number of debates over whether detective stories are inherently leftwing (as opposed to thrillers which are conservative); whether it has literary value or what are the distinct politics of the genre in different languages and regions. There seems to be an overwhelming consensus, that despite its origins in the US with Edgar Alan Poe’s Murders in Rue Morgue and its immense popularity in countries like Japan., the 20^th century genre was distinctly centered and influenced by Britain peaking as a genre in the 1930s and 1940s, described as the “Golden Age of Detective Fiction".

Curiously while these are decades of  extreme political turmoil in Europe, economic depression and contentious politics in Britain and radical left wing and nationalist movements across the empire, the Golden Age Detective story remains almost unaffected from the turmoil. There are occasionally shadowy organizations seeking to overthrow regimes in the Balkans (Comrades of the Red Hand in  Secret of the Chimneys), pointedly non-ideological plots for world domination (The Big Four), and whispers of colonial disturbances (Colonel Race in Christie’s Death on the Nile). The idealized setting is what novelist Colin Watson has evocatively described as Mayhem Parva,

            “a cross between a village and commuters' dormitory in the South of England, self-contained and largely self-sufficient. It would have a well-attended church, an inn with reasonable accommodation for itinerant detective-inspectors, a village institute, library and shop — including a chemist's where weed killer and hair dye might conveniently be bought. The district would be rural, but not uncompromisingly so — there would be a good bus service for the keeping of suspicious appointments in the nearby town, for instance — but its general character would be sufficiently picturesque to chime with the English suburb dweller's sadly uninformed hankering after retirement to `the country.”

            While the locations might occasionally be more exotic, such Miss Marple’sinvestigation in St Honore, Hercule Poirot’s visit to Petra or Roderick Alleyn’s trip on a ship from London to South Africa, in reality this was just “Mayhem Parva’ exported. The victim, detective and group of relevant suspects (carefully excluding the “natives” and most of the service staff) were inhabitants of Mayhem Parva transplanted to more colorful settings. The murderer, the detective and usually the victim (making exceptions for blackmailing butlers) were recognizably gentry. The working/service classes if they appeared were crusty but loyal retainers or adenoidal maids who were “pathetically stupid”. 
 Given this general setting of the genre, I was pleasantly surprised to stumble upon Verdict of Twelve by Raymond Postgate.

Part I: Leftists Litigating: Raymond Postgate and the Trouble with Juries

The murder at the heart of the book is classic Mayhem Parva. The setting is a country house in Devon, inhabited by eleven year old orphan Philip Arkwright, his widowed aunt, two long term family retainers, with occasional visits by the local vicar, the aging doctor, a stolid maidservant and the boy’s tutor.  Philip is the owner of considerable fortune and his death would make his aunt a very wealthy woman and his cook and gardener considerable legacies. When Philip dies a lingering and painful death after eating salad for lunch, the autopsy finds the dressing was sprinkled were hederin (found in ivy dust) which grows plentifully around the house.

But this is where Postgate changes the game. The novel doesn’t follow the painstaking investigation into Arkwright’s murder. At the beginning, we know his aunt, Rosalie Van Beer is under arrest and on trial for murder of the nephew and our setting is the Court of the Assizes in London where the clerk is summoning the jurors to take their oaths. The focus of the book remains the twelve jurors, who represent a cross-section of British society.

The book opens with two epigraphs. The first is the juror’s oath in a trial for murder, “Swearing by almighty God, that I will well and truly try and true deliverance make between our Sovereign Lord the King and the Prisoner at the Bar whom I shall have in charge and a true verdict give according to evidence”. The second more intriguingly is from Karl Marx, and notes “it is not the consciousness of men that determines their existence but on the contrary their social existence that determines their consciousness”. It is the tension between these two epigraphs that holds the book together. While both the police, the tutor (who likes to snoop) and the two lawyers narrate their own investigations, the real detectives in this case are the twelve jurors who are trying to put together  and evaluate the truth drawing on their own social experiences.

The jury trial had long been fetishised as a fundamental right of every Englishman and by the mid 20^th century was presented as a mark of civilisational development and testament to freedom. As Kalyani Ramnath shows, in the colonies, “native subjects” demanded the right to trial by jury of their peers and protested the limited system of assessors. Arthur George Popsegrove, the jury foreman, savours as he repeats his oath, these were “splendid words, each phrase with a patina of history upon it. The consciousness of their meaning and their beauty seemed to radiate to him. No one could doubt, watching him, that he would true deliverance make, as far as ever his powers would let him”. A true Englishman named after the original English king (Arthur) and the present one (George) savouring his rights. Yet, as Postgate’s readers know Arthur Popesgrove was born Achilles Papanastasiou in a small village in Greece. And his move to stolid Englishness, was achieved through Athens and the Riviera, using his skills as a “young Levantine who was willing to work, a promising cook, a graceful and even beautiful waiter and dancer, ..with scruples and inhibitions”. Popesgrove’s career to respectability has been marked with petty theft, fraud, blackmail, seducing older men which makes his faith in the British jury system particularly ironic. As foreman he decides his duty is to combat prejudice arguing that the failure of the defendant to give evidence could not be held against her (“the judge made the English law on the point absolutely clear) and that not everyone can keep their head when questioned by a clever lawyer”.

Other jurors view the oath with some dubiousness, Alice Morris, whose husband was murdered in an anti-Semitic attack and whose killers were never prosecuted, wonders why when the law did nothing to protect her, did it expect her to protect and punish others. It wanted her time, “it claims it as a debt”, but couldn’t do anything to save her husband. The fanatical shop assistant, Mr Bryant kinds the oath “our sovereign Lord the King” almost blasphemous, while Victoria Atkins, the tobacconist, thinks it’s a “silly way of talking”. The Verdict of Twelve, is unusual in being a courtroom drama where the professional legal actors come across very poorly.

“All men in wigs and gowns at first sight look like puppets. The room seemed full of marionettes. The judge looked like a shriveled and malicious doll made of leather. Sir Isambard Burns, the chief counsel, for the defense, had a thing long body and a crow like face. Into one eye, he continually fitted and removed an eyeglass; he looked like a Christmas toy performing a tedious trick. Counsel …for the Crown looked like a wax doll; his shiny pink face under his wig looked as unreal as it had been painted”.

The prosecution counsel’s speeches created an atmosphere of resigned tedium, while the defence counsel dramatic cross-examination is shown as hollow, since he “did not mean to imply anything in particular, but hoped to start some irrelevant doubt in the mind of a stupid juror”. As Postgate notes, “ despite the descriptions in detective novels, court cases are rarely dramatic. For one five minute scene, there are hours of dull and formal proceedings”. The introduction of cutting edge psychiatric evidence is played out to gentle ridicule with the jury feeling they “nearly understood what he said, and if they had only paid more attention to the context they would have understood it altogether”. The expert witness ends his cross examination by declaring the victim was a “concealed sado-masochist” with an Oedipal complex. By the end the audience in the courtroom were “openly yawning”, the “air was stale and the room was cold”. The juror Smith, “being a reader of detective novels and expecting scenes of thrilling excitement, did not realize he was going to be “abominably bored”.

Postgate presents the much fetishized British legal machinery under a harsh and unrelenting neon light. While the Golden Age author frequently showed disdain for the bumbling (and often lower middle class) police inspector, at its core was the ideal of British justice, fair trial and the idea that no innocent be wrongly punished. For instance, Superintendent Spence in Mrs McGinty's Dead engages Hercule Poirot to prove the innocence of the man Spence had himself arrested and had been found guilty in a jury trial. The traditional genre of the detective story, as Franco Moretti observes, absolves society of innocence for the crime. The “crime” is resolved by the arrest of the criminal, and the genre rarely goes into the social conditions that made the crime possible. Postgate turns the genre on it’s head, not in the obvious way as many socially minded figures of his times did, in the psychology or economic conditions that is experienced by the “criminal”. Not only is the psychologist a figure of mockery, so is the upper class Socialist poet on the jury, who while “patiently assembling a Marxist interpretation of the evidence”, loudly declaims against “ridiculous, narrow minded and baseless class prejudice”, and ends up subverting justice.

Juries and Class Consciousness

Class remains the defining feature of every character in the narrative, and attempts to shift or alter class positions brings down the ire of the other characters. The jury is resolutely middle class, property and tax qualifications being necessary for jury service. Victoria Atkins, who began life in a backslum and worked as a housemaid, only qualifies because of a recent legacy from an aunt. Postgate however remains firmly attuned to the fine gradations of class in British society. Describing two jurors, Dr Homes as Oxford don, “who was ill bred, repulsive to look at at and grotesquely idle was a gentleman”, while Mr Stannard, “who had worked hard all his life, who was  kindly to all and was as agreeable in presence as in mind” was not because he ran a pub. The jurors range largely through the lower middle class, including a Plasterer’s Union Shop Steward, a hairdresser’s assistant, a door to door salesman and a shop manager. Class mobility and class camouflage, where accents were neutralized and postures copied are heavily police by all classes. Yet class shapes the ability of the jurors to see and empathize, Dr Holmes, the morbidly obese Oxford professor of classics, and perhaps the highest social class in the jury, realizes with sudden shock that his redoubtable analytic skills was little help in the jury It was not “what would a rather dirty minded poet probably have written in the times of Domitian?, but “How to ordinary human beings behave in the times of stress? What did that unpleasant looking woman over there probably do to a boy I have never seen?”

While Postgate is careful to draw attention to economic conditions and class consciousness, there isn’t a patronizing glorification of working classes. He’s acutely conscious of British working class xenophobia. Edward George, plasterer and trade union official, recounts how men drew benefits that they were not entitled to, even drawing strike pay for dead men. Describing the cook and the gardener in the victim’s household, he notes, “they were to all appearances the typical “old retainers”, devoted to the memory of the Old Master, affectionate to the Young Master and resenting the vulgar intruder….but does the Old Retainer ever really exist? Most people who talk of him have never heard servants talk among themselves or have any idea of what goes on when the green baize door closes and talk is really free in the servants hall”. The servants, regarded themselves merely as “two persons, reasonably well rewarded, who performed very well a skilled task, one of whose conditions were a demeanor of respect and loyalty. Affection entered into it very little”, their chief interest was the “accumulation of enough money to retire upon in a cottage of their own”. The young upper class radical Francis Allen’s socialism, despite a bookshelf groaning under Marx’s Capital and selections from the Left Book Club, is described as emotional rather than economic in origin, “his real teachers were Auden, Isherwood, Lewis and Spender”.

Strikingly two of the most significant jurors are women, one an unmarried tobacconist “severe looking, very plain middle aged woman in black, wearing glasses”, and the other a wealthy widow, who stood out “like a single yellow flower in a green field among the dingy collection of mostly middle aged men with grey and red faces”. Given the property qualifications for jury service, it is not surprising that both the women were unmarried. Women had only begun to be serve of British juries in 1920, two years after the passing of the Sex Disqualification (Removal) Act, 1919 and were the subject of critique and caricature in public media as “lacking the constitution or intellect to serve”. Amid ten inattentive, indecisive and prejudiced male jurors, the two women stand out in the clarity of their decisions. Mrs Morris retorts “I don’t think women on juries look at evidence any differently to men”. I know we are supposed to be softer and more gentle and so on, but that doesn’t seem to me to have anything to do with it. Actually, we need the protection of law more than women do.”.

Raymond Postgate’s murder mysteries are not his best known works. A founding member of the British Communist Party, Postgate’s first major work was Bolshevik Theory (1920), a book appreciated by Lenin himself. In 1934, he would publish How to Make a Revolution, drawing on his own experiences as “labour agitator and editor of a communist newspaper” to discuss comparative revolutionary ideas (Marxism, Fascism, Anarchism, Syndicalism etc) and practices (general strikes, financial pressure, armed revolution) keeping in mind current developments in Germany and Russia. His magum opus, The Common People 1746-1946(1939) co-authored his brother in law GDH Cole, was a history of English working classes and political movements over 200 years. Ironically, and perhaps reflecting the peculiar nature of upper-class British communism, his most widely read work remains The Good Food Guide (1951) (originally titled, Society for Prevention of Cruelty to Food) complied because he was aghast at the standard of cooking in post-ward Britain and sought to “ to raise the standard of cooking in Britain’ and ‘to do ourselves all a bit of good by making our holidays, travels and evenings-out in due course more enjoyable”.

Despite his affinities to Fabian socialism and interest in Marxism, Postgate according to Marc Mullholland, insisted upon the agency of individual men and women, drawing attention to the “strength of will, the ability, the courage and even the arguments of his protagonists”. Given that the book began by invoking Marx’s , “conditions create consciousness”, much of the book is an investigation into the conditions behind the individuals who come to represent public will.

The Verdict of Twelve was set in the 1930s but published in 1940, at a moment with British victory in the 2^nd World War was less than certain and faced both a political and ideological challenge from both Germany and Russia. What was the value of the British system of justice? Alice Morris, the widow whose husband was killed by an anti-Semitic mob in London, fulminates remembering that her husband’s killers were never punished,

“the arm of the law was weak: after (her husband) died the police had explained to her again and again that they had not got the power to arrest all the likely suspects and force them to confess. In Germany, and for that matter in the United States, the law wasn’t made a fool of like that. They fetched in everybody they suspected and if the guilty did’nt confess right away, they were made to all right. Over there they knew how. But here they couldn’t even question people properly, so her husband was dead and not avenged”.

The equation of criminal justice in Nazi Germany and the USA might seem startling to the contemporary reader, but as James Whitman shows, American race, segregation and citizenship laws were eagerly studied by Nazi lawyers as models.  In the 1930s, questions of fair trialwere internationalized and debated across the public sphere, be it the ScottsboroTrials in the US or the Meerut Conspiracy Cases in India. 

D.N Pritt, the Labour MP and flamboyant lawyer (who as Manav Kapur noted makes an offstage cameo in the Verdict of Twelve as competition for the defense counsel, Sir Isambard for posts in a future Labour government), chaired an independent public enquiry in the Reichstag Fire. He also offered a defense of the fairness of the Stalin’s show trials in the 1936. Several left wing lawyers authored studies and defenses of Soviet Justice, contrasting it with the British system. During the Second World War, the stakes of presenting "British justice" as superior, and the nagging doubts that the system was flawed both become starkly apparent.

A Matter of Poison

Legal history has recently taken a toxic turn, with increasing attention to availability and use of poisons in crime, the development of forensic mechanisms to detect poisons and the "poison panics" fed by the popular press. Historians of science and media in Britain have pointed to the use of non-traditional poisons that were increasingly available to ordinary people in the form of arsenic (soaking fly papers), cyanide (destroying wasps nests) or eserine (eye drops)

 But could the suspects in the Arkwright household have known that ivy dust would be fatal? Or how was the doctor able to make the diagnoses in the post-mortem? The clue in this case is a newspaper cutting found in the house that reported a similar case of accidental poisoning in Essex, providing the knowhow to the poisoner. This was not an uncommon incident, as knowledge of poisons proliferated through both the media coverage of "poison panics" and the consumption of detective fiction.

Perhaps the most effective murder mystery has been Agatha Christie's The Pale Horse. As an apothecaries assistant during the First World War, Agatha Christie had a formbidale knowledge of poisons that she put to good use in her books. In Pale Horse, the poison of choice is Thallium, an odourless and tasteless poison that leaves little traces in the body but has a distinctive symptoms such as hair-fall.

There have been atleast three instances, where a Latin American woman was saved from slow poisoning, a baby in Qatar was stopped from accidental poisoning and an American serial killer caught, because the medical and police staff had read Christie's Pale Horse and were able to identify the symptoms of thallium poisoning.

In the next installment of Murder Mystery and Legal History, I'll turn to murders set amid decolonization in Asia and Africa.

PS: A note of thanks to Surabhi Ranganathan for talking through these ideas

Vinsel, "Moving Violations"

We missed this book when it came out last summer (thanks to New Books in Law for alerting us to it now): Lee Vinsel, Moving Violations: Automobiles, Experts, and Regulations in the United States (Johns Hopkins University Press, 2019). Here's description from the Press:

Regulation has shaped the evolution of the automobile from the beginning. In Moving Violations, Lee Vinsel shows that, contrary to popular opinion, these restrictions have not hindered technological change. Rather, by drawing together communities of scientific and technical experts, auto regulations have actually fostered innovation.

Vinsel tracks the history of American auto regulation from the era of horseless carriages and the first, faltering efforts to establish speed limits in cities to recent experiments with self-driving cars. He examines how the government has tried to address car-related problems, from accidents to air pollution, and demonstrates that automotive safety, emissions, and fuel economy have all improved massively over time. Touching on fuel economy standards, the rise of traffic laws, the birth of drivers' education classes, and the science of distraction, he also describes how the government's changing activities have reshaped the automobile and its drivers, as well as the country's entire system of roadways and supporting technologies, including traffic lights and gas pumps.

Moving Violations examines how policymakers, elected officials, consumer advocates, environmentalists, and other interested parties wrestled to control the negative aspects of American car culture while attempting to preserve what they saw as its positive contributions to society. Written in a clear, approachable, and jargon-free voice, Moving Violations will appeal to makers and analysts of policy, historians of science, technology, business, and the environment, and any readers interested in the history of cars and government.

A few blurbs:

"A truly excellent book: well written, deeply researched, exceptionally wide-ranging, and compelling in both its large interpretations and its detailed assessments. Moving Violations will stand as a pioneering and authoritative treatment of government regulation across the long twentieth century." — Steven W. Usselman

"From traffic lights to emission controls, airbags, and autonomous vehicles, Vinsel studies how varying types of automobile regulation, broadly construed, affected technological innovation. Ultimately, he shows that well-crafted regulations can serve the public good and encourage technological creativity. This engaging book is highly recommended for historians, scholars of innovation, and policymakers." — JoAnne Yates

More information is available here. An interview with Professor Vinsel (Virginia Tech) about the book is available here.

-- Karen Tani

Rogers on the Origins of Quasi-Property

Alix Rogers, a fellow at Stanford Law’s Center for Law and Biosciences and the Stanford Program in Neuroscience and Society, as well as a PhD candidate at Cambridge University and a Yale Law JD,  has posted Unearthing the Origins of Quasi-Property Status, a paper she presented at the ASLH in 2018.  It is forthcoming in the Hastings Law Journal in 2020:

Under contemporary American law human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically associated with intellectual property given the Supreme Court decision of International News Services v. Associated Press. That human remains and bodily materials are classified as quasi-property is less well known. The confusion surrounding the quasi-property status of the dead has negative implications for current and future research, medicine and broader society. Litigation surrounding the treatment and status of those who died in the 9/11 World Trade Center attack hinged on quasi-property. Clearly resolving the quasi-property status of the dead is becoming increasingly important in the wake of biotechnological advances. In March 2018 a Y Combinator start-up, Nectome, promised to preserve, digitize and reanimate brains. The project is concerning for many reasons, but one major concern is the ambiguous status of the dead that the company will experiment upon and, ultimately, offer services to.

This paper explores the origins of quasi-property and investigates why American judges ascribed quasi-property status to human remains. The adoption of quasi-property status is notable because judges broke with hundreds of years of inherited common law, and forsook a legal tenant prescribed by Blackstone and Coke. Understanding its origins, therefore, has broader implications for our understanding of the development of American law. I show that the academic literature and case law have mistaken both the origin of, and reasoning behind quasi-property status. Scholars and judges cite a 1872 Rhode Island Supreme Court decision as the foundational case on quasi-property status of the dead. My research shows that, in fact, the first case occurred instead in Cleveland, Ohio a year earlier. Further, my analysis of this initial case, and surrounding socio-cultural context, reframes our understanding of the forces behind quasi-property status. The traditional account in the literature and case law of the emergence of quasi-property status points to America's lack of ecclesiastical courts, which historically had jurisdiction over cemeteries and burial in England. I argue that the existing explanation does not sufficiently account for the initial application, the dominance, or the persistence of the unique status of quasi-property by American courts. This paper advances a novel argument that socio-cultural changes forged in the maelstrom of the Civil War precipitated the initial use and later systematic adoption by American courts of quasi-property status for human remains. My discovery and re-examination of the subsequent rise of quasi-property at the turn of the nineteenth century has important implications for how contemporary courts should conceive of this deeply contested legal category.

--Dan Ernst

The Limits of Law: Cases

We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):

Fahmy on Islamic Law and Forensic Medicine

Out this month with the University of California Press is In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt by Khaled Fahmy, University of Cambridge. From the press: 

In Quest of Justice provides the first full account of the establishment and workings of a new kind of state in Egypt in the modern period. Drawing on groundbreaking research in the Egyptian archives, this highly original book shows how the state affected those subject to it and their response. Illustrating how shari’a was actually implemented, how criminal justice functioned, and how scientific-medical knowledges and practices were introduced, Khaled Fahmy offers exciting new interpretations that are neither colonial nor nationalist. Moreover he shows how lower-class Egyptians did not see modern practices that fused medical and legal purposes in new ways as contrary to Islam. This is a major contribution to our understanding of Islam and modernity.

 Some reviews: 

"Through extensive research in Egyptian archives, engaging and creative scholarship, and deep engagement with the history of colonial law and medicine, Khaled Fahmy has produced a masterpiece that confirms his standing as the preeminent social and cultural historian of nineteenth century Egypt." -Eugene Rogan

"Fahmy rewrites the narrative of legal and institutional development by bringing in the Egyptian state with its new capacities and its elite as actors with clear interests and strategies of their own, as well as the broader Egyptian population whose protests and accommodations shaped this history.  This book will make a very major impact in a variety of fields, including those of the history of Islamic law and legal institutions, public health, and urban planning in Egypt." -Judith Tucker

"A deft and original historian, Khaled Fahmy mobilizes the richly populated medical and legal records of a hybrid system of mid-nineteenth century tribunals to rethink the foundations of a distinctive Egyptian modernity." -Brinkley Messick

"Khaled Fahmy's In Quest of Justice is an excellent study on nineteenth-century Egyptian modernization in the Ottoman social and cultural context.The author uses the human body as a metaphor to explain modernization politics and elegantly arranges the book around the five senses: sight, sound, smell, taste and touch. We read about practices such as dissection, sewers, vaccination, torture, quarantine, market control and procedural justice. In addition, Fahmy elaborates on the lives of the non-elite population in a fascinating way, based on archival documents." -Rudolph Peters

Further information is available here.

Malleck on drugs in Canadian legal history

We missed this one in 2015, when Dan Malleck, Brock University, published When Good Drugs Go Back: Opium, Medicine, and the Origins of Canada's Drug Laws with UBC Press. From the publisher:

There is something enduring about the image of the Victorian drug addict, languishing in the smoky confines of an underground opium den, the embodiment of moral lassitude. When Good Drugs Go Bad reveals that in nineteenth-century Canada, most Canadians were drug users – everyday people taking addictive drugs prescribed by their doctors and purchased at the local pharmacy.

Throughout the 1800s, opium and cocaine could be easily obtained to treat a range of ailments. Drug dependency, when it occurred, was considered a matter of personal vice. Near the end of the century, attitudes shifted and access to drugs became more restricted. How did this happen?

Dan Malleck examines the conditions that led to Canada’s current drug laws. Drawing on newspaper accounts, medical and pharmacy journals, professional association files, asylum documents, physicians’ case books, and pharmacy records, he demonstrates how a number of social, economic, and cultural forces converged in the early 1900s to influence lawmakers and criminalize addiction. His research exposes how social concerns about drug addiction had less to do with the long pipe and shadowy den than with lobbying by medical associations, a growing pharmaceutical industry, and national concern about the morality and future of the nation.

Scholars and students of the history of medicine, the history of law, and social history, will enjoy this engagingly written book about drugs, alcohol, tobacco use, and legislation in Canada. This book will also be of interest to professionals who work in the area of drug advocacy and addiction.

Praise for the book after the jump:

Appleman on the Forgotten History of Eugenics and Mass Incarceration

Laura I. Appleman, Willamette University College of Law, has posted Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration, which is forthcoming in the Duke Law Journal:

Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state. These three narratives, however, only partially explain where we are. Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.

Mitford on Fulton's Lawyers

Emmet’s opinion on Fulton’s steamboat patent (NYPL)

Over the weekend we received an “advance alert” from the American Society of Legal History on the publication of “Patent Property”: The Fulton Lawyers and the Franchising of Progress, by Timothy Milford, St. John's University:

Cadwallader D. Colden and Thomas Addis Emmet could not help but practice intellectual property law: Robert Fulton was their client. Yet their engagement with the subject went far beyond what professional expediency demanded. Their transatlantic backgrounds and careers encouraged their affinity for liberal political economy and for entrepreneurial adventure. On the frontier, in the shadowy zones between early-nineteenth-century empires and land speculations, the line between enterprise and piratical intrigue was easily leapt, and Colden and Emmet were involved in the era’s cross-border confusions. More typically, their work anticipated a world where private business and public improvement were managed in tandem, by interested franchisees, and underwritten by more sophisticated financial arrangements. The defense of Fulton’s patent privileges was an unabashed apology for banks, corporations, and wealth. These lawyers celebrated canals and steamboats and argued that such tangible achievements were impossible without a flexible understanding of property. Their practice was bound up in the franchise model of development and reconciled government patronage with what was then, and is still, a controversial and liberal vision of progress.

Using film to teach US legal history

[This is the first of two posts on film & pedagogy. The second is on global and non-US legal history.]

Credit: IMDb

What films (and film clips) do you use when teaching legal history? This summer, we asked many of you this question (H/t: Law & History CRN). We received an avalanche of responses. Here they are, hopefully just in time for your fall syllabus needs. (Most responders describe films and video clips shown in class, but some assign videos to be watched in advance.)

For teaching US legal history:

• Winston Bowman: I frequently use two clips: (1) the scene from Dirty Harry in which a prosecutor tells Clint Eastwood's character that a serial killer will be set loose because he failed to follow proper procedures. Rather oddly, the scene includes a judge and professor from Berkeley who scolds him for failing to obtain a warrant. (2) a surprisingly affecting cartoon from Orson Welles' adaptation of Kafka's The Trial. The cartoon is an interpretation of "Before the Law," a parable about the tantalizing and confounding promise of access to justice that is included in the novel and was also published as a short story. 
• Al Brophy: I brought my legal history seminar students (it was a seminar on slavery and property) to 12 Years a Slave back when it was a first run movie.
• Orna Alyagon Darr: I use Gideon's Trumpet that tells the story of Gideon v. Wainwright when I teach the history of the right to counsel & the public defenders system.

More after the jump.

Translation of Leibniz on Legal Education

Carmelo Massimo De Iuliis, Universita Cattolica del Sacro Cuore in Milan, has published an English translation of Leibniz’s 1667 treatise, The New Method of Learning and Teaching Jurisprudence with Talbot Publishing. From the press:

The first complete English translation from the Latin of Gottfried Wilhelm Leibniz's Nova methodus discendae docendaeque Jurisprudentiae. Better known for his contributions to philosophy, metaphysics and mathematics, as co-discoverer along with Isaac Newton of calculus, Gottfried Wilhelm Leibniz was also an attorney, diplomat, state official and judge of the Mainz Court of Appeals. The New Method of Learning and Teaching Jurisprudence is his prescription for a curriculum of study for lawyers and as such is an important indicator of the origins of legal education in the late renaissance year of 1667, when John Milton published Paradise Lost. Already translated into German and French, this is the first unabridged translation of the 1667 Frankfurt edition in a modern language, a new direct translation of the Latin text with notes by Carmelo Massimo de Iuliis (Department of Public and Private Economy Law, Universita Cattolica del Sacro Cuore, Milano). The translation is enhanced by De Iuliis' introduction that offers a biographical sketch of Leibniz, an overview of the reception of his ideas and a discussion of Leibniz' views on the philosophical concepts of logic and rhetoric as applied to the study of jurisprudence and a systematic reconstruction of legal systems.

Full information on the book is available here.