Kelly on Militarized Medicine and Corporate Punishment in Australia

Catherine Kelly, University of Bristol, has posted Medicine, Law, and the Lash: Militarized Medicine and Corporal Punishment in the Australian Colonies 1788–1850, which is forthcoming in Legal History:

The service of medical practitioners in the early Australian colonies was inextricably bound up with a heavily militarized culture. This article explores the relationships between those medical practitioners, legal punishment, and the British Empire in the first half of the nineteenth century. The service of medical practitioners in the Australian colonies, coming as it did so close on the heels of two generations of war, gives us an important insight into the effects of the Napoleonic wars both upon the practice of medicine in the service of the British State, and also the State’s attitude to the use of medical expertise. In the military spaces of transport and colony, the medical officer became an important lynch pin in the discipline and control exercised over convict bodies. Military medical expertise was useful to the State in understanding the best ways to discomfort and hurt convicts, without quite killing them. This expertise was further cultivated by the State in the ongoing design of the medical role in the colonies that came to hark forward to the prison officer of the later nineteenth century whose position, balanced precariously between punishment and care, has been of such interest to penologists and medical historians.

–Dan Ernst

Roy Chaudhury on the Indian Poisons Act

Out soon by Shrimoy Roy Chaudhury, Shiv Nadar University (India) is "Toxic Matters: Medical Jurisprudence and the Making of the Indian Poisons Act (1904)" in Crime, History & Societies/Crime, Histoire & Sociétés 22:1 (2018), 81-105. Here's the abstract: 

The article seeks to problematize the relationship between law and medicine by studying the tensions which accompanied the emergence of medical jurisprudence in British India during the second half of the nineteenth century. In a context of British government apprehension as to the legality of its rule in India, the article focuses on official concerns about the unmonitored circulation of toxic substances, particularly arsenic, which culminated in the Poisons Act (1904). The article investigates the role of toxic substances in historical narratives of expertise, and also traces the emergence of the idea of an autonomous native society in colonial and medical/forensic discourse, locating its articulation in exchanges between British and native salaried experts.

Further information is available here.

--Mitra Sharafi 

Zietlow on Slavery, Liberty and the Right to Contract

Rebecca E. Zietlow, University of Toledo College of Law, has posted Slavery, Liberty and the Right to Contract, which is forthcoming in the Nevada Law Journal 19 (2019): 447-478:

This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract.

Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract,

---Dan Ernst

Weekend Roundup

• The Library of Congress recently announced the launch of the Foreign Law Web Archive, with a collection period commencing June 20, 2016.

• Lots out this week for the the 100th anniversary of the end of World War I, including this and this on South Asian soldiers' experiences in the trenches, Anya Jabour's Nursing Clio article on an American Red Cross nurse named Mary Curry, and our blogger Mitra Sharafi's piece on the longer history of poison as a weapon. From a few years ago, here is an NEH interview with Chad L. Williams on African-American soldiers in WWI. 

• Mark Leeming, University of Sydney Law School, has posted his review of Jonathan Rose’s Maintenance in Medieval England, which appears in the Cambridge Law Journal 77 (2018): 402-05.  The review highlights the “free access to plea rolls provided by the Anglo-American Legal Tradition Archive,” about which those who attended the ASLH's Annual Luncheon from its creator Robert C. Palmer, Houston Law, in his remarks upon being named a Honorary Fellow.

• Congratulations to Deborah Hamer (William & Mary History), for winning an honorable mention for Best Article from the Society for the Study of Early Modern Women. The article: “Marriage and the Construction of Colonial Order: Jurisdiction, Gender and Class in Seventeenth-century Dutch Batavia,” Gender & History 29, no. 3 (2017): 622-640.

• Michael A. Livingston (Rutgers Law School) has posted The Other F-Word: Fascism, The “Rule of Law,” and the Trump Era, a review essay on several books “that have suggested parallels between 1930s-style fascism and present day politics, especially that of the Trump Administration,” including some of our summer reading (Timothy Snyder’s Road to Unfreedom and Steven Levitsky and Daniel Ziblatt’s How Democracies Die).  His verdict: “these parallels are generally unconvincing.”

• From the Washington Post's "Made by History" section: Daniel Rodgers (Princeton) on "What we get wrong about 'a city on a hill'"; Martha Jones (Johns Hopkins) on "when black women journalists fight back"; and much more.

• In the New York Times: an op-ed by Gregory Downs (UC Davis) and Kate Masur (Northwestern) on "How To Remember Reconstruction" (and why Congress should pass the Reconstruction Era National Historical Park Act).

• Update: John Fabian Witt on "Lincoln's Code" via YaleNews.

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

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.

Lewis on Gender Reassignment Surgery

The latest advance alert from the American Journal of Legal History is The Lawfulness of Gender Reassignment Surgery, by Penney Lewis, King’s College, London:

In the common law world, both the medical and legal professions initially considered gender reassignment surgery to be unlawful when first practised and discussed in the first half of the twentieth century. While most medical procedures are covered by the medical exception to the law governing serious offences against the person, many doctors and the lawyers they consulted doubted that this exception applied to gender reassignment surgery. In this article I trace the differing and changing interpretations of the medical exception as applied to gender reassignment surgery, and the shift towards legal acceptance in the two common law jurisdictions that led the way in both performing gender reassignment surgery and debating its legality, the United States and the United Kingdom. Although this shift occurred without formal legal intervention either through legislation or judicial decision (for example on a test case), inferences of legality drawn from related civil-law decisions bolstered the legal acceptance of gender reassignment surgery.

By increasing the suffering of patients and potential patients, the criminal law played both an important and primarily malign role prior to the eventual public, professional and legal acceptance of GRS. A real threat of criminal prosecution inhibited doctors from proceeding, distorted diagnoses and affected the kinds of procedures performed. After-care was expanded and manipulated to avoid the risk of prosecution or the appearance of unlawful surgery. By contrast, civil and administrative law played a more positive, albeit indirect, role in interpreting the medical exception and its application to gender reassignment surgery.

Two by George on LGBT Rights

Marie-Amelie George, currently a fellow at Columbia Law School and soon to be the Berger-Howe fellow at Harvard Law School, has posted two articles.

"Bureaucratic Agency: Administering the Transformation of LGBT Rights" appears in Volume 36 of the Yale Law & Policy Review (2017). Here's the abstract:

In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit bathroom access for transgender students. The bureaucratic resistance this Article uncovers demonstrates the dynamism of the administrative state and how bureaucracy is important site of legal change.

Using this untold history of LGBT rights, this Article identifies when bureaucratic resistance is a permissible means of protecting minority rights. Resistance as a mechanism of legal change raises separation of powers and democratic legitimacy concerns, since administrative agencies are charged with executing enacted legislation. However, the very structure of administrative bureaucracies gives rise to this problem, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that same expertise. This Article argues that this type of bureaucratic resistance can be both permissible and desirable. It presents parameters for when bureaucrats may legitimately resist legislation based on their expertise so as to allow bureaucrats to introduce viewpoint diversifying scientific developments that promote minority rights, while mitigating the potential for harm.

The second article, "Expressive Ends: Understanding Conversion Therapy Bans," appears in Volume 68 of the Alabama Law Review (2017). Here's the abstract:

LGBT rights groups have recently made bans on conversion therapy, a practice intended to reduce or eliminate a person’s same-sex sexual attractions, a primary piece of their legislative agenda. However, the statutes only apply to licensed mental health professionals, even though most conversion therapy is practiced by religious counselors and lay ministers. Conversion therapy bans thus present a striking legal question: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers? Based on archival research and original interviews, this Article argues that the bans are significant because of their expressive function, rather than their prescriptive effects.

The laws’ proponents are using the statutes to create a social norm against conversion therapy writ large, thus broadening the bans’ reach to the religious practitioners the law cannot directly regulate. LGBT rights groups are also extending the bans’ expressive message to support the argument that sexual orientation is immutable and to reverse a historical narrative that cast gays and lesbians as dangerous to children. These related claims have been central to gay rights efforts for much of the twentieth century and continue to shape LGBT rights battles.

While the expressive effects of the bans are important, the laws and the campaign around them may have a negative effect. LGBT rights organizations working on the laws do not distinguish between conversion therapy efforts aimed at changing sexual orientation and those targeting behavior. This is troubling, not only because it fails to acknowledge the needs of same-sex attracted individuals who wish to live in accordance with their religious beliefs, but also because it reinforces a limited view of gay identity. Many within the LGBT movement contest the identity model that legal advocates have championed, and that conception of sexual orientation may in fact hinder the movement’s long-term goals. Differentiating between the various types of conversion therapy would help remedy this by emphasizing the law’s need to respect and protect sexual decisions and expressions, as well as create a platform from which to promote a more expansive vision of LGBT rights.

Full text is available on SSRN.

Hurren on the Criminal Corpse

Elizabeth T. Hurren, University of Leicester, has published Dissecting the Criminal Corpse: Staging Post-Execution Punishment in Early Modern England with Palgrave Macmillan (2016). From the press:

Those convicted of homicide were hanged on the public gallows before being dissected under the Murder Act in Georgian England. Yet, from 1752, whether criminals actually died on the hanging tree or in the dissection room remained a medical mystery in early modern society. Dissecting the Criminal Corpse takes issue with the historical cliché of corpses dangling from the hangman’s rope in crime studies. Some convicted murderers did survive execution in early modern England. Establishing medical death in the heart-lungs-brain was a physical enigma. Criminals had large bull-necks, strong willpowers, and hearty survival instincts. Extreme hypothermia often disguised coma in a prisoner hanged in the winter cold. The youngest and fittest were capable of reviving on the dissection table. Many died under the lancet. Capital legislation disguised a complex medical choreography that surgeons staged. They broke the Hippocratic Oath by executing the Dangerous Dead across England from 1752 until 1832.

Remarkably (by North American standards), this book is open access under a CC-BY license. You can download it for free here.

Dissecting the Criminal Corpse is part of the Palgrave series “Historical Studies in the Criminal Corpse and its Afterlife.”

Here’s the Table of Contents:

Part I-Introduction

Ch.1: The Condemned Body Leaving the Courtroom

Ch.2: Becoming Really Dead: Dying by Degrees

Ch.3: In Bad Shape: Sensing the Criminal Corpse

Part II- Preamble

Ch.4: Delivering Post-Mortem ‘Harm’: Cutting the Corpse

Ch.5: Mapping Punishmnet: Provincial Places to Dissect

Ch.6: The Disappearing Body: Dissection to the Extremities

Ch.7: “He that Hath an Ill-Name Is Half-Hanged”: The Anatomical Legacy of the Criminal Corpse

Full information is available here.