Fernandez Interviewed on Pierson v. Post

The Long Island History Project has posted a recording of its interview of Angela Fernandez, University of Toronto, on Pierson v Post:

When Jessie Pierson and Lodowick Post argued over a fox in early 19th century Southampton, they probably didn’t think the resulting court case would echo down the ages. Yet here we are 220 years later talking with legal historian Angela Fernandez about the odd, improbable history of Pierson v Post.

A professor of law and history at the University of Toronto, Fernandez has delved deep into the case. Her “legal archaeology” uncovered important, presumed-lost information on the early phases of the proceedings. Her 2018 book Pierson v. Post, The Hunt for the Fox: Law and Professionalization in American Legal Culture, unpacks more of the impact and context around the decision.

On today’s episode we discuss the local history surrounding the case, more about the Piersons and the Posts, and the surprisingly whimsical inner life of the legal profession.

--Dan Ernst.  H/t: New York Almanack

Ankersen on Sea Turtle Conservation Law

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

Shipping Green Turtle, Key West, 1898 (NYPL)

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

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

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

--Dan Ernst

Lessard and Plante on Animals and the Law in Québec

Let the Wild Rumpus Start! Michaël Lessard and Marie-Andrée Plante, Université de Sherbrooke, have posted Where the Wild Things Are (and Have Been): An Archeology of Legal Discourses on Animals in Québec, which is forthcoming in the Alberta Law Review:

Are animals mere things in the eyes of the law? Public discourse suggests so. However, the history of legal discourses about animals reveals another story. For better or for worse, animals have not been considered as mere things in law. It was long recognized that animals possess certain characteristics that are observable in beings, such as agency, sentience, and sociability. Together, agency, sentience, and sociability constitute a cluster of being-like characteristics sketching, through time, a portrait of the animal that is distanced from the image of a mere object of property. To support this conclusion, we ask where the “wild things” are and have been in our legal history. We relocate animals in the history of legal discourses surrounding them in the territory of Québec, beginning slightly before codification. As many individuals worldwide would like to see their own jurisdiction explicitly recognize that animals are not things but beings, Québec provides a fruitful case study for international readers on the impact that such a change may have on legal norms and discourses.

--Dan Ernst

Whitely on Property in Wolves

Jack Whiteley, a Fellow and Supervisory Attorney in the Environmental Law & Justice Clinic at the Georgetown University Law Center, has posted Property in Wolves, which is forthcoming in the Cornell Law Review:

"A Wintry Scene" (NYPL)

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

–Dan Ernst

Grisel's "Limits of Private Governance"

Florian Grisel, Associate Professor of Socio-Legal Studies at the Centre for Socio-Legal Studies, University of Oxford, has published The Limits of Private Governance: Norms and Rules in a Mediterranean Fishery (Bloomsbury):

Is there a future for the law? In this book, Florian Grisel addresses one of the most fascinating questions raised by social scientists in the past few decades. Since the 1980s, socio-legal scholars have argued that governance based on social norms (or “private governance”) can offer an alternative to regulation by the law. On this account, private governance could be socially efficient and even optimal compared with other modes of governance.

The Limits of Private Governance supplements this optimistic analysis of private governance by assessing the long-term evolution of a private order in the fishery of Marseille. In the last eight centuries, the fishers of Marseille have regulated their community without apparent means of legal support from the French state. In the early 15th century, they even created an organisation called the Prud'homie de Pêche in order to regulate their fishery.

Based on archival evidence, interviews and ethnographic data, Grisel examines the evolution of the Prud'homie de Pêche and argues that the strong social norms in which it is embedded are not only powerful tools of governance, but also forces of inertia that have constrained its regulatory action.

The lessons drawn from this book will appeal to academics, policy-makers and members of the general public who have an interest in the governance of our modern societies.

–Dan Ernst

Weekend Roundup

• In the New Republic: Gabriel Rosenberg and Jan Dutkiewicz on the place where the meat industry meets anti-bestiality laws, past and present.

• Catch this virtual event with Ashley Rubin on her forthcoming book, The Deviant Prison: Philadelphia's Eastern State Penitentiary and the Origins of America's Modern Penal System, 1829-1913: Jan.5 at 6-7pm EST. 

• The Wiener Library for the Study of the Nazi Era and the Holocaust, at the Sourasky Central Library, Tel Aviv University, has put some of its collections online, including prosecutions for distributing the Protocols of the Elders of Zion and the Nazi Justice Collection, which "contains information on the judiciary in Nazi Germany and hundreds of trial transcripts."  H/t: JQB
  

• “The new feature documentary, My Native Air: Charles Evans Hughes and the Adirondacks, co-produced by MDT Publishing and Snarky Aardvark Films, is premiering on-demand in a limited run from January 15th to February 15th, 2021.”  H/t: JQB
  

• Brittany Nichole Adams, Special Collections, Digitization, and Archival Services Librarian, Northwestern University is profiled in the Bright Young Librarians series at FineBooks and Collections.
  

• From the Washington Post's "Made by History" section: Anya Jabour (University of Montana) on why "Referring to female PhDs as ‘Dr.’ promotes equal treatment and values women’s work," including a discussion of trailblazing law reformers (and PhD holders) Sophonisba Breckenridge and Edith Abbott.

• ICYMI:  University of Mississippi fires Garrett Felber, a tenure-track assistant professor in the Arch Dalrymple III Department of History, who has studied the American carceral state. (Mississippi Free Press).  Greg Melleuish on Constitutional History in Australia (Telos Press Podcast).

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

Federal Grazing Policy, 1891-1950

Harold Ickes (center); Edward Taylor (left) LC

[Longtime LHB readers will recall that for the exam in my legal history course I write an essay about some regulatory regime I did not cover in class and ask students to compare it with the ones we did.  The topics of previous essays include motor carrier regulation, meat inspection, and the US Commerce Court.  This year’s essay, on federal grazing policy, follows.  Dan Ernst.]

The federal government once owned all the land in the continental United States, except for the original thirteen colonies and Texas. It disposed of most of the land in the East and Midwest through land sales, overseen by the General Land Office (GLO), an agency within the Department of the Interior.  After the passage of the Homestead Act of 1862, Americans could obtain title to 160 acres by paying a small fee, making some improvements, and residing on the “homestead” for five years.  By the 1890s, most fertile land was in private hands, but most of the land west of the 100th meridian, a line running from North Dakota through Texas, had too little rainfall for crops without irrigation and remained in the public domain.  The land was chiefly valuable for grazing, principally beef cattle, run by stockmen in specific ranges, and sheep, herded over great distances.  Aside from scattered homesteads (ultimately expanded to 640 acres for ranches), use of the public domain was unregulated, as the GLO’s mission was to distribute land and not to plan its wise use.  Range wars between large and small cattle operators and between cattle stockmen and sheep herders abounded.  The latter conflicts were particularly intense, because sheep left grass too short for cattle to graze upon, and cattle refused to graze where sheep were pasturing.  Cattlemen referred to sheep as “hoofed locusts,” yet, as Farrington Carpenter, a Colorado stockman who will play a large role in our story, once complained, “We had no way of keeping a sheep man off a cow range.”

Weekend Roundup

• Floyd Abrams reviews Wendell Bird’s The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act” over at First Amendment News.

• The Federal Judicial Center has arranged its collection of its Notable Federal Trials series in this nifty timeline.  

• Bound By Every Tie of Duty: John Lewes Pedder, Chief Justice of Van Diemen’s Land, by Jacqueline Fox (Australian Scholarly Publishing Pty Ltd), has made the short list for the Dick and Joan Green Family Award for Tasmanian History.

Robert A. Taft (LC)

• We felt late to the party when we saw how many legal historians had done Brian Frye's Ipse Dixit podcast.  We aren't scanning all 556 episodes but can report they include Christopher Tomlins, Nicholas Bagley and Julian Davis Mortenson  Alejandro de la Fuente and Ariela Gross, Thomas McSweeney, Elizabeth Katz, Taja-Nia Henderson and Lutie A. Lytle, Jilll Hasday, Seth Barrett Tillman, and Justin Simaud. Also, from February 1947, Robert A. Taft calls for "curbs on the power of the executive branch of the government"!!

• Sure, you're on lock down, but that doesn't mean you can't (virtually) browse the George Wythe Room at the Wolf Law Library at William & Mary.  H/t: Tom McSweeney.

• The sixth edition of Borkowski's Textbook on Roman Law, by Paul J. du Plessis, is now available.

• A more accessible version of John Fabian Witt's lecture on the legal history of infectious diseases is here.

• Over at the Legal History Miscellany: Can you steal a peacock? A post by Krista J. Kesselring on animals in early modern law.

• The Hoover-Roosevelt Transition premiers on the Facebook page of the FDR Library on Wednesday, May 13.  FDR Library Director Paul Sparrow and Hoover Library Director Thomas Schwartz discuss the relationship between FDR and HH “during the 1932 campaign and the transition between their presidencies, examining their different philosophies in the role of government and the protection of individual liberty and freedom. Followed by a Q&A in the comments.

• The Tagore Law Lectures (1870-1986) are now available here on the University of Calcutta Digital Library.

• And also on South Asia: check out this Twitter thread by Kalyani Ramnath (@kalramnath) on epidemics, contagion, migration, and law.

• ICYMI: Mary Ziegler interviewed on Abortion and the Law in America in Mother Jones and on WORT.  WaPo's obituary of Barbara Babcock. 

• I was very sorry to learn of the death of John M. Murrin, from whom (and Douglas Greenberg) I took a marvelous reading course on early America while a graduate student at Princeton.  Vast knowledge, zero pretension, kind, and witty (especially if you went in for atrocious puns).  His essays include a landmark study of the colonial legal profession and the brilliant "A Roof without Walls: The Dilemma of American National Identity."  They are collected in Rethinking America: From Empire to Republic, ed. Andrew Shankman (Oxford University Press, 2018), reviewed here.  John Fea's remembrance is here. H/t: Al Brophy. DRE

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