Watkins on BYU's Moral Policing

Grace Watkins, a recent graduate from the Yale Law School and a DPhil student in History at Oxford University has published her note, Piety Police, in the Yale Law Journal.  She received the Kathryn T. Preyer Scholars Award of the American Society for Legal History for the paper.

Religiously affiliated universities are permitted to maintain their own private police under the rationale that these departments serve an educational, rather than religious, mission. This Note calls that rationale into question by uncovering the history of the Brigham Young University Police Department’s (BYUPD’s) morals policing, which blurred the lines between the enforcement of the law and the school’s religious Honor Code. Drawing on extensive archival research and previously unexamined legal materials, this history reveals how the BYUPD waged vice- and sexual-policing campaigns that extended far beyond campus borders.

The Note argues that BYU’s religious affiliation shaped the methods, priorities, and powers of its campus police. In the 1960s, the BYUPD enlisted students and professors to assist with undercover drug operations, resulting in haphazard investigative tactics that disrupted campus life. During the 1970s, university administrators encouraged the BYUPD to aggressively police sexual morality. In response, campus officers used undercover student agents to conduct surveillance and sting operations targeting gay men living in Provo. Then, following a significant expansion of the BYUPD’s statutory authority in 1979, local residents reported that officers were using their law-enforcement powers to conduct Honor Code investigations off campus. In the 2010s, similar concerns resurfaced when it was discovered that a BYUPD officer had shared confidential police reports with administrators to punish victims of sexual violence for Honor Code violations related to their assaults.

Despite repeated attempts to separate the BYUPD’s law-enforcement and student-discipline functions, misconduct continued. This cycle suggests that the BYUPD’s religious and police duties are inextricably entangled. These findings provide a cautionary tale as more religious universities—and, more recently, megachurches—establish their own law-enforcement agencies nationwide. The Note concludes by mapping the legal landscape of this growing category of private police and reflecting on the inherent risks posed by departments acting under the authority of both church and state.

--Dan Ernst

Weekend Roundup

• My fellow LHBlogger Karen Tani discusses her recent foreword to the Harvard Law Review's issue on the Supreme Court on David Schleicher and Samuel Moyn's Digging a Hole podcast.  DRE
  

• The latest in the "In Black America" series is a tribute to the late John Hope Franklin (KUT 90.5).
  

• The Loudoun County, Virginia courthouse has been renamed to honor Charles Hamilton Houston and been designated as a national historical landmark (WaPo).
  

• Orin Kerr on English common-law on emergency entry into a home and the Fourth Amendment (Volokh Conspiracy). 
  

• The Newsletter of the Historical Society of the District of Columbia Circuit for January 2025 is here.
  

• Michelle Adams, will discuss her book, The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North, at the Literati Bookstore in Ann Arbor, Michigan on January 16 from 6:30 pm - 8:00 pm EST (ACS).
  

• President Biden awarded the Presidential Citizens Medal to the son of Mitsuye Endo Tsutsumi in honor of his mother, the litigant in Ex parte Endo (Pacific Citizen). H/t Eric Muller.
  

• "The John Carter Brown Library invites applications for a 2 year postdoctoral position helping to coordinate the library’s programs and events to commemorate the 250th anniversary of the independence of the United States."  More.
  

• A review, in Swedish, of Allen D. Boyer and Mark Nicholls's The Rise and Fall of Treason in English History" by Boris Benulic in The Epoch Times.  English translation after the jump.

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

Weekend Roundup

• Bernie Meyler, Stanford Law School, on presidential pardons, with Pamela Karlan and Richard Thompson Ford on the Stanford Legal podcast.  
  

• Over at JOTWELL: Richard Murphy (Texas Tech University) has posted an admiring review of Ashraf Ahmed, Lev Menand, & Noah A. Rosenblum, The Making of Presidential Administration, 137 Harv. L. Rev. 2131 (2024).

• Amanda Tyler, Berkeley Law, will discuss Mitsuye Endo before the Supreme Court Historical Society via Zoom on January 23, 2025, 12:00 pm (EDT).  Register here.
  

• "Johns Hopkins University’s recently launched School of Government and Policy seeks to recruit members of its founding faculty in multiple disciplines and fields of study, including (but not limited to) political science, economics, law, sociology, and history" (H-Law).

• 
  The Balkinization blog is running a symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). Here's a link to a recent post, by Rebecca Zeitlow (University of Toledo). Other contributors include Evan Bernick (Northern Illinois), Alexandra Filindra (Illinois-Chicago), Jim Fleming (B.U.), Damon Linker (Penn), Linda McClain (B.U.), Carol Nackenoff (Swarthmore), Corey Robin (Brooklyn College), and Chloe Thurston (Northwestern). 
  

• Over at the LPEBlog: Henry Tonks (PhD candidate, Boston University) on Mehrsa Baradaran's Quiet Coup: Neoliberalism and the Looting of America.

• An interview of John Bardes, Louisiana State University, about his book, The Carceral City:Slavery and the Making of Mass Incarceration in New Orleans, 1803-1930 (WWNO). 
  

• Much of the discussion of Nicholas Bagley's forthcoming book on the administrative state was historical when he presented to Yale’s Institution for Social and Policy Studies.  Amy Kapczynski, Dave Schleicher, and Stephen Skowronek provided comments.
  

• Otto Vervaart’s notice of the new portal Goetgevonden for the resolutions of the Staten-Generaal of the Dutch Republic between 1576 and 1786 launched by the Huygens Institute of the Royal Dutch Academy of Sciences
  

• Allison S. Finkelstein on Finding Fulfillment as a Federal Historian: From PhD to Arlington National Cemetery (AHA Perspectives). 
  

• Lawbook Exchange's December 2024 catalogue of Scholarly Law and Legal History.
  

• ICYMI: Andrew Jackson and prorouging Congress (WaPo).  Korematsu v. United States remembered (Smithsonian; The Nation).   Audrey Pope's Feminist History and Tradition for SisterSong v. State of Georgia (HLRblog)
  

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

Weekend Roundup

•  The Balkinization symposium on Alison LaCroix's The Interbellum Constitution continued this week. Since our last Weekend Roundup, there have been contributions from John Mikhail, Connor M. Ewing, David S. Schwartz, and Christian G. Fritz.

• "The Bar Exam: Then and Now" -- via In Custodia Legis.
  

•  From Process (the blog of the Organization of American Historians): Cindy Hahamovitch on "The Peculiar World of American Sheriffs."

• Independent scholar Patrick S. O'Donnell has posted some thoughts on the U.S. atomic bombing of Hiroshima and Nagasaki, along with a helpful roundup of relevant secondary sources. 

• Some JOTWELL items of interest: Ilya Somin reviews David Pozen's The Constitution of the War on Drugs; Scott Cummings reviews Ann Southworth's Big Money Unleashed: The Campaign to Deregulate Election Spending (2023); Jedidiah Kroncke reviews J. Benton Heath's "Economic Sanctions as Legal Ordering," forthcoming in the Michigan Journal of International Law.
  

• ICYMI: Justin Simard on the Citing Slavery Project (Mississippi Free Press). James H. Coleman Jr., the first Black associate justice of the New Jersey Supreme Court, has died (northjersey.com).
  

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

Weekend Roundup

• Over at Balkinization, an interesting symposium on David Pozen's The Constitution of the War on Drugs (Oxford University Press, 2024) has wrapped up. This response by Pozen (Columbia Law) links to the various contributions, including by legal historian Shaun Ossei-Owusu (Penn Law).

• Also at Balkinization: Reva Siegel (Yale Law) and Mary Ziegler (UC Davis) on "Access to Life- and Health-Preserving Care - A History and Tradition."
  

• Edward A. Purcell, New York Law School, looks back to Charles Evans Hughes's Supreme Court of the United States for inspiration on how Chief Justices can induce the resignations of Associate Justices  (The Hill).

• Barbara Lauriat, Texas Tech University School of Law, has published Robinson & Roberts v. Wheble (1771): A New “First” Trademark Case at Common Law in The Docket.
  

• You may still register for the virtual event of the Supreme Court Historical Society, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, with Alison LaCroix, to be held at 12:00 PM (EST) on May 28, 2024, via Zoom.  It will be posted to YouTube following the event.
  

• 
  Jus Gentium is out with a special issue (9:2), The Historicization of International Law and its Limits, organized by Jean d’Aspremont and Thomas Kleinlein.  It includes the article “Lather, Rinse, Repeat: The Historical Returns of International Law,” by Carl Landauer.

• “On May 16, in celebration of the 70th anniversary of the Supreme Court Brown v. Board of Education decision, the National Archives in Washington, DC, hosted a panel discussion on the lasting impact of the historic legal decision.”  The panel included Sheryll D. Cashin, Georgetown Law; Randall L. Kennedy, of Harvard Law School; and Michael K. Powell, who moderated.  More.
  

• Also, “Meet all the families behind the 5 school cases that swayed the Supreme Court” (LA School Report).
  

• “Dr. John Kirk, George W. Donaghey Distinguished Professor of History at UA Little Rock, and the students in his fall 2023 Seminar in Public History class, a capstone course that focuses on collaborative research for students who are earning a Master of Arts in public history, have received the Lucille Westbrook Award from the Arkansas Historical Association” for the paper “Racial Discrimination in Jury Selection: The Arkansas Cases of the Bone Brothers, 1938-1940.”  More.
  

• The ABA's Silver Gavel Awards have been announced.  The Book Prize went to Joanna Schwartz for Shielded: How The Police Became Untouchable."  Honorable Mention went to Cliff Sloan for The Court at War: FDR, His Justices, and the World They Made.
  

• The program for the 2024 annual meeting of the American Political Science Association is now online.
  

• ICYMI: Hardeep Dhillon on The Immigration Act of 1924 (Penn Today). "The 'Originalist' Justices Keep Getting History Spectacularly Wrong" (Balls & Strikes).  That "Appeal to Heaven" flag (AP; MSNBC).
  

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

Booth on Policing in Atlanta after Slavery

Jonathon Booth,  University of Colorado Law School, has posted Policing after Slavery: Race, Crime, and Resistance in Atlanta, which is forthcoming in the University of Colorado Law Review:

This Article places the birth and growth of the Atlanta police in context by exploring the full scope of Atlanta’s criminal legal system in the four decades after the end of slavery. To do so, it analyzes the connections Atlantans made between race and crime, the adjudication and punishment of minor offenses, and the variety of Black protest against the criminal legal system. This Article is based in part on a variety of archival sources, including decades of arrest and prosecution data that, for the first time, allow for a quantitative assessment of the impact of the new system of policing on Atlanta’s residents.

This Article breaks new ground in four ways. First, demonstrates that Southern police forces responded to the challenges of freedom: Atlanta’s police force was designed to maintain white supremacy in an urban space in which residents, theoretically, had equal rights. Second, it shows that white citizens’ beliefs about the causes of crime and the connections between race and crime, which I call “lay criminology,” influenced policing strategies. Third, it adds a new layer to our understanding of the history of order maintenance policing by showing that mass criminalization for minor offenses such as disorderly conduct began soon after emancipation. This type of policing caused a variety of harms to the city’s Black residents, leading thousands each year to be forced to pay fines or labor for weeks on the chain gang. Fourth, it shows that the complaints of biased and brutal policing that animate contemporary police reform activists have been present for a century and a half. Atlanta’s Black residents, across class lines, protested the racist criminal legal system and police abuses while envisioning a more equitable city where improved social conditions would reduce crime.

--Dan Ernst

Banerjee, Deland, Tefoya - Prize-winning Essays on California Legal History

Earlier this week we posted the CFP for the Student Writing Competition on California Legal History, sponsored by the California Supreme Court Historical Society. Last year's prize-winning essays have now been published in California Legal History:

Kyle Deland (University of California, Berkeley), The End of Free Land: The Commodification of Suscol Rancho and the Liberalization of American Colonial Policy

Michael Banerjee (University of California, Berkeley), California's Constitutional University:  Private Property, Public Power, and the Constitutional Corporation, 1868–1900

Miranda Tafoya (University of California, Irvine), A Shameful Legacy: Tracing The Japanese American Experience of Police Violence and Racism From the Late 19th Century Through the Aftermath Of World War II

This issue (Vol. 18) of California Legal History also includes other articles of interest, which we will profile in a separate post. The full issue is available here.

-- Karen Tani

Post-Doc on Policing and Carcerality at the University of Minnesota

 [We have the following announcement.  DRE.]

The Andrew W. Mellon Foundation Sawyer Seminar on “Just Policing: Transnational Perspectives on the Definition and Possibility of Justice in Law Enforcement,” housed at the Institute for Advanced Study (IAS) at the University of Minnesota, invites applications for a post-doctoral fellow in the 2024-2025 Academic Year. The successful candidate will have a research agenda that is concerned with policing and/or carcerality broadly conceived.

The majority of the fellowship time is devoted to research and writing in line with the fellow’s research agenda. Fellow will be expected to participate in Sawyer Seminar and IAS Fellow activities, and to present their research to the seminar; assist graduate seminar and mentor graduate students in connection to the seminar; engage with seminar participants and visiting scholars; and lead panel discussions and small group meetings.

Qualifications.  

• Ability to be in residence on the Twin Cities campus of the University of Minnesota for the period of the fellowship. The postdoctoral fellow is expected to attend in-person meetings and events at the IAS several times a week
  

• Ph.D. or other doctoral degree (including J.D.) completed by August 15, 2024 and no earlier than 2019
  

• Scholarly background in areas related to policing, the criminal legal system, or carcerality
  

• Excellent writing and analytical skills

This is a full-time, 9-month position and is funded for one year. The salary is $62,000 with a comprehensive benefits package. Start date is August 28, 2024.  Applications received before January 15, 2024 will receive priority consideration. Notification is in early spring. Applications are submitted through the University of Minnesota’s Employment System. Search for job #359021.

Applications must include:

• Cover letter discussing your background in policing or carceral studies and interests in engaging with the seminar
  

• Completed application form (see below)
  

• Curriculum Vitae
  

• A research proposal describing what you would do during the fellowship year and how it articulates with the Sawyer Seminar description; this should include a statement of the problem you will investigate, the methods you will use to investigate it, and the significance of your research (1,400 words maximum)
  

• Writing sample (one published article or book chapter, or a work in progress)
  

• One confidential letter of recommendation sent to IAS by the recommender. Letter should be sent directly to Susannah Smith at slsmith@umn.edu. The subject line should read “Sawyer recommendation: [applicant’s name]”slsmith@umn.edu

Brooks's "Birth of Law-and-Order Liberalism"

Emily Brooks, “a full-time curriculum writer at the New York Public Library's Center for Educators and Schools [who] received her PhD in history from the Graduate Center at the City University in New York,” has published Gotham’s War within a War: Policing and the Birth of Law-and-Order Liberalism in World War II–Era New York City (University of North Carolina Press):

A surprising history unfolded in New Deal– and World War II–era New York City under Mayor Fiorello La Guardia. Throughout the late nineteenth and early twentieth centuries, members of the NYPD had worked to enforce partisan political power rather than focus on crime. That changed when La Guardia took office in 1934 and shifted the city's priorities toward liberal reform. La Guardia's approach to low-level policing anticipated later trends in law enforcement, including "broken windows" theory and "stop and frisk" policy. Police officers worked to preserve urban order by controlling vice, including juvenile delinquency, prostitution, gambling, and the "disorderly" establishments that officials believed housed these activities.

This mode of policing was central to La Guardia's influential vision of urban governance, but it was met with resistance from the Black New Yorkers, youth, and working-class women it primarily targeted. The mobilization for World War II introduced new opportunities for the NYPD to intensify policing and criminalize these groups with federal support. In the 1930s these communities were framed as perils to urban order; during the militarized war years, they became a supposed threat to national security itself. Emily M. Brooks recasts the evolution of urban policing by revealing that the rise of law-and-order liberalism was inseparable from the surveillance, militarism, and nationalism of war.

--Dan Ernst

Robbins on Citizen's Arrest and Race

Ira P. Robbins, American University Washington College of Law, has posted Citizen's Arrest and Race, which appears in the Ohio State Journal of Criminal Law:

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen came in off the street and attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and widespread law-enforcement entities. I surveyed developments across the United States and highlighted numerous problems with the doctrine that led to confusion and abuse. I concluded by recommending abolition of the doctrine in most instances, and proposed a model statute to address appropriate applications of citizen’s arrest.

But I did not discuss race. Indeed, I did not even use that word in the entire forty-three page article. It is not that I had intentionally ignored the issue. Rather, my research stopped short and I failed to consider the bigger picture. Until three men killed Ahmaud Arbery in Brunswick, Georgia on February 23, 2020.

In this Article, I examine the history of citizen’s arrest laws through a racial lens, drawing a direct line from the slave patrol laws of the eighteenth and nineteenth centuries to the Fugitive Slave Acts, to emancipation, to the discriminatory use and disparate impact of citizen’s arrest laws today. I consider the background and context of Georgia’s codification of citizen’s arrest in 1863—the first state statute of its kind in the United States—enacted just thirteen years after the repeal of the Fugitive Slave Acts and the same year as the Emancipation Proclamation. The deeply rooted racism that permeated this enactment almost 160 years ago must inform the use of any law giving private individuals the right to arrest others. While in my earlier article I did not discuss the racial aspects of the citizen’s arrest doctrine, it is clear that citizen’s arrest in this country has been mostly about race. Coupled with the reality of systemic racism, the perpetuation of citizen’s arrest laws provides unwarranted justification for the vigilante justice—or, better said, the vigilante injustice—that killed Ahmaud Arbery and so many others. Under the pretext of citizen’s arrest, what happened to each of these individuals was nothing short of a modern-day lynching. This point is too obvious to ignore.

--Dan Ernst

Yeager on the Exclusionary Rule

Daniel B. Yeager, California Western School of Law, has posted A History of Fruit of the Poisonous Tree (1916-1942):

Learned Hand (LC)

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916-1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt.

--Dan Ernst

Weekend Roundup

• 
   "'Voting Rights: Identifying the Deep Roots of #BLM,' a lecture by Department of History Associate Professor Jennifer Hildebrand, will be presented as part of the Constitution Day observance at SUNY Fredonia on Wednesday, Sept. 14, at 2 p.m. in Williams Center Room S204."  More.

•  A Virtual Conversation via Zoom: “Join the Supreme Court Historical Society for an engaging and frank look at Supreme Court Justice Felix Frankfurter with Professor Brad Snyder in honor of the publication of his long-awaited biography of the justice: Democratic Justice: Felix Frankfurter, the Supreme Court and the making of the Liberal Establishment.  Professor Snyder will be in conversation with Professor Laura Kalman of the University of California, Santa Barbara on October 17, 2022 at 7 pm (EDT).  Register here.
  

• Brian Hochman, Georgetown University, discusses his book, The Listeners: A History of Wiretapping in the United States, on C-SPAN Classroom.
  

• ICYMI: Alison L. LaCroix, University of Chicago Law, on James Madison v. Originalism.  More on that statue and freedom suit of Elizabeth Freeman (Smithsonian)
  

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

AJLH 62:2

Here is the TOC for American Journal of Legal History 62:2 (June 2022):

British Policy towards the Incorporation of the Baltic States into the USSR: A Dilemma of de facto and de jure Recognition    
Evgeny Tikhonravov
 
The Judicial Failsafe: American Legal Colonialism in the Philippines    
Timothy J Foley
 
Amnesty and the Limits of Transitional Justice in Brazil: The Case of Expelled Low-Ranking Soldiers, 1964–2014    
Marilia Corrêa
 
Book Reviews
 
Susan J. Pearson, The Birth Certificate: An American History    
Teal Arcadi
 
Inge Van Hulle, Britain and International Law in West Africa    
Joyman Lee
 
Anne Gray Fischer, The Streets Belong to Us: Sex, Race, and Police Power from Segregation to Gentrification    
Marie-Amélie George

--Dan Ernst

Jain, "Policing the Polity"

The Yale Law Journal has published "Policing the Polity," by Eisha Jain (University of North Carolina School of Law). Here's the abstract:

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S. communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices—including race-based demands to justify one’s presence—in light of the aim of building an integrated political community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine.

Read on here.

-- Karen Tani

"The Bill of Rights in Modern America"

The third, revised, and expanded edition of The Bill of Rights in Modern America, edited by David J. Bodenhamer and James W. Ely, Jr., has now been published by the Indiana University Press:

Newly revised and expanded to address immigration, gay rights, privacy rights, affirmative action, and more, The Bill of Rights in Modern America provides clear insights into the issues currently shaping the United States. Essays explore the law and history behind contentious debates over such topics as gun rights, limits on the powers of law enforcement, the death penalty, abortion, and states' rights.

Accessible and easy to read, the discerning research offered in The Bill of Rights in Modern America will help inform critical discussions for years to come.

Table of Contents after the jump.

--Dan Ernst

Yang on Black Alternative to Police Ambulances in the Sixties

Tiffany Yang, Georgetown University Law Center, has posted “Send Freedom House!”: A Study in Police Abolition in volume 96 of the Washington Law Review:

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian paramedic service in Pittsburgh, Pennsylvania, that was created in the late 1960s to confront the racialized violence and neglect inflicted by police ambulance drivers. This Essay outlines the now abolished practice of ambulance policing, explores the city’s response to Freedom House’s revolutionary program, and analyzes current efforts of police reform through this historical lens.

--Dan Ernst

Long on "How a New Orleans DA Prosecuted the Kennedy Assassination as a Sex Crime"

The University of North Carolina Press has published Cruising for Conspirators: How a New Orleans DA Prosecuted the Kennedy Assassination as a Sex Crime, by Alecia P. Long (Louisiana State University). The book is part of the Press's Boundless South series. A description from the Press:

New Orleans district attorney Jim Garrison’s decision to arrest Clay Shaw on March 1, 1967, set off a chain of events that culminated in the only prosecution undertaken in the assassination of John F. Kennedy. In the decades since Garrison captured headlines with this high-profile legal spectacle, historians, conspiracy advocates, and Hollywood directors alike have fixated on how a New Orleans–based assassination conspiracy might have worked. Cruising for Conspirators settles the debate for good, conclusively showing that the Shaw prosecution was not based in fact but was a product of the criminal justice system’s long-standing preoccupation with homosexuality.   

Tapping into the public’s willingness to take seriously conspiratorial explanations of the Kennedy assassination, Garrison drew on the copious files the New Orleans police had accumulated as they surveilled, harassed, and arrested increasingly large numbers of gay men in the early 1960s. He blended unfounded accusations with homophobia to produce a salacious story of a New Orleans-based scheme to assassinate JFK that would become a national phenomenon. 

At once a dramatic courtroom narrative and a deeper meditation on the enduring power of homophobia, Cruising for Conspirators shows how the same dynamics that promoted Garrison’s unjust prosecution continue to inform conspiratorial thinking to this day.

Advance praise:

“This shocking narrative uncovers how decades of police surveillance in New Orleans created a vast paper trail that set the stage for a corrupt district attorney to frame the only man to face prosecution for John F. Kennedy’s assassination, creating a lasting homophobic conspiracy theory in the process. With keen historical sensitivity, Alecia Long reveals the longer patterns and plots that frame this must-read story.”— Jim Downs

"Exposing the corrupt world of New Orleans policing and the complex gay subculture that thrived in the city’s shadow, Long’s book features an intriguing cast of characters, including ambitious prosecutor Jim Garrison and closeted businessman Clay Shaw. More importantly, it uncovers how cultural notions of gay men as criminal sexual psychopaths came to permeate JFK conspiracy theories and American culture more generally."— David K. Johnson

More information is available here. You can find an interview with Professor Long about the book at New Books Network.

-- Karen Tani

O'Sullivan on Civil Liability for Policing in Chicago, 1954-1967

Philip O'Sullivan, the holder of a bachelor’s and a master’s degree from the University of Chicago, now enrolled in JD and PhD programs at Harvard University, has posted Putting a Check on Police Violence: The Legal Services Market, Section 1983, Torture, Abusive Detention Practices, and the Chicago Police Department from 1954 to 1967, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review 56 (2021):

This article explores the conception, rise, and initial implementation of a legal strategy which sought to fashion civil liability into a tool for reforming the Chicago Police Department (CPD) from the mid-1950s to 1967. A group of lawyers, working in close concert with the Illinois Division (their preferred name of choice at the time) of the American Civil Liberties Union (ACLU) sought to weaponize civil suits into a means of forcing CPD leadership to crack down on abusive and harmful police behavior. Drawing from a strand of contemporary scholarship on how private civil actions could shape municipal policy, the lawyers theorized that, with the correct imposition of civil liability, they could spur the legal industry to cause the number of successful civil suits to become more commensurate with the prevalence of abusive police practices. The lawyers thought the total cost, or fear of future costs, of the resulting civil suits would compel CPD leadership to enact reforms to crack down on a culture of impunity and widespread police misconduct within the CPD.

This article examines the attempt to carry out this legal strategy in the federal civil court system from the early 1950s to the end of Superintendent O.W. Wilson’s tenure in 1967, with a specific focus on police torture and abusive detention practices. This article argues that while this may have been a novel strategy, it was ultimately unsuccessful in forcing CPD leadership to make the changes in departmental policy and discipline which might have stopped police torture and abusive detention practices. A close examination of this legal strategy and the flawed underlying assumptions it made about the interplay between the market dynamics of the legal industry, federal civil court, and police violence offers insight into the utility of private civil suits to rectify and prevent civil rights abuses by the police.

–Dan Ernst

Waldman on Moderating LGBTQ+ Content, Then and Now

Ari Ezra Waldman, Northeastern University School of Law, has posted Disorderly Content:

 Content moderation plays an increasingly important role in the creation and dissemination of expression, thought, and knowledge. And yet, throughout the social media ecosystem, nonnormative and LGBTQ+ sexual expression is disproportionately taken down, restricted, and banned. The current sociolegal literature, which focuses on content moderation as a whole and traces the evolution of its values and mechanics, insufficiently captures the ways in which those principles and practices are not only discriminatory, but also resemble structures of power that have long been used to police queer sexual behavior in public spaces.

This Article contributes to the sociolegal literature by approaching content moderation from an explicitly queer perspective, bridging siloed scholarship on law, technology, and LGBTQ history. It argues that content moderation for “sexual activity” is an assemblage of social forces that resembles oppressive anti-vice campaigns from the middle of the last century in which “disorderly conduct”, “vagrancy”, “lewdness”, and other vague morality statutes were disproportionately enforced against queer behavior in public. This analogy highlights underappreciated pieces of the content moderation puzzle. Compared to anti-vice campaigns, content moderation emerged from similar sociolegal contexts, relies on similar justificatory discourses, leverages similarly vague rules, similarly operates mostly without expertise in sexual content, also disproportionately silences queer content, and similarly does so without due process. Ultimately, I argue that like anti-vice enforcement, the consequence of sexual content moderation is the maintenance and reification of social media as straight spaces that are hostile to queer, nonnormative expression.

This Article provides a full, critical account of sexual content moderation and its effects on queer expression. It details and challenges the current content moderation literature and explores potential new directions for scholarship, moderation, and law. The similarities and differences between anti-vice enforcement and sexual content moderation also suggests a way forward, offering a queer, social justice justification for modest legal reform, social activism, and platform responsibility.

--Dan Ernst

Weekend Roundup

• The Historical Society of the New York Courts has posted the podcast Litchfield Law School’s Influence on NY State Bench & Bar and a Young Nation.  Host David L. Goodwin, Society Trustee, interviews Paul DeForest Hicks. 
  

• Joseph D. Kearney, Marquette Law, and Thomas W. Merrill, Columbia Law, “discuss the shenanigans that ultimately gave the city and the state of Illinois one of its most priceless parcels of land and preserves it for public use” in a podcast on the ABA Journal’s Legal Talk Network.  They are the authors of  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).
  

• The abstracts for papers in the Asian Legal History Conference, July 24-25, are here.
  

• Congratulations to William & Mary Assistant Professor of History Brianna Nofil, the recipient of the 61st annual Allan Nevins Prize by the Society of American Historians for her dissertation, “Detention Power: Jails, Camps, and the Origins of Immigrant Incarceration, 1900-2002.”  (More.)
  

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  New online from Law and History Review and Cambridge Core: From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations, by Alyssa Penick, and Policing, Profits, and the Rise of Immigration Detention in New York's “Chinese Jails,” by Brianna Nofil.
  

• More on those indexes to those unpublished Office of Legal Counsel opinions, on Just Security.
  

• More CRT: The New Hampshire attorney general says that “teaching about the country’s history of slavery, its racist Jim Crow Laws, the Civil Rights Movement of the 1960s and the modern Black Lives Matter movement won’t violate state law even if those lessons make students uncomfortable, according to legal advice from the state Attorney General’s Office" (Concord Monitor).  
  

• And still more: Over 140 organizations, have signed onto this Joint Statement on Legislative Efforts to Restrict Education about Racism in American History, authored by American Association of University Professors, the American Historical Association, the Association of American Colleges & Universities, and PEN America. 

• From the History News Network: Ronald A. Smith (Penn State University), "How Historians Convinced SCOTUS that the NCAA's Idea of Amateurism is a Myth."
  

• We recently discovered the "Now & Then" podcast, hosted by historians Joanne Freeman (Yale University) and Heather Cox Richardson (Boston College). For a particularly relevant recent episode, checkout "Judging the Supreme Court."   

• The Law Library of Congress invites you to a webinar on federal statutes.
  

• From the Washington Post's "Made by History" section: Adam R. Shapiro, "When opponents decry critical race theory, they’re really fighting against change: the lessons of the Scopes trial for today."
  

• Fire in the White House!  At 7 PM EDT on July 28, the Elk Rapids Area Historical Society hosts a live stream of Craig G. Wright, Herbert Hoover Presidential Library and Museum, discussing the fire that gutted the West Wing and ruined the Oval Office on Christmas Eve, 1929.

• For anyone working on socio-legal history and technology: check out the new Law and Society Fellowship at the Simons Institute at Berkeley.

• ICYMI: George Thomas on America’s Imperfect Founding (The Bulwark). A notice of The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, by Peter S. Canellos (Courier Journal). Woman suffrage and Prohibition in Iowa (Cedar Rapids Gazette).  The Buffalo-Niagara LGBTQ History Project’s first historic marker recognizes “local gay rights activist Bob Uplinger,” whose battle in an entrapment case contributed to decriminalization in New York (Buffalo Rising).
  

• Update: Colbert King on Karen Hastie Williams (WaPo).
  

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