12th Annual Israeli History and Law Association

[We have the following announcement.]

The Twelfth Annual Conference of the Israeli History and Law Association will be held on Monday, October 10, 2016, at  Yad Izhak Ben-Zvi, Ibn Gvirol 14, Jerusalem.  Enquiries can be directed to berg@post.tau.ac.il.

Complete schedule after the jump.

Smail on Households and Debt Collection in Late Medieval Europe

New from Harvard University Press: Legal Plunder: Households and Debt Collection in Late Medieval Europe (2016), by Daniel Lord Smail (Harvard University). A description from the Press:

As Europe began to grow rich during the Middle Ages, its wealth materialized in the
well-made clothes, linens, and wares of ordinary households. Such items were indicators of one’s station in life in a society accustomed to reading visible signs of rank. In a world without banking, household goods became valuable commodities that often substituted for hard currency. Pawnbrokers and resellers sprang up, helping to push these goods into circulation. Simultaneously, a harshly coercive legal system developed to ensure that debtors paid their due.

Focusing on the Mediterranean cities of Marseille and Lucca, Legal Plunder explores how the newfound wealth embodied in household goods shaped the beginnings of a modern consumer economy in late medieval Europe. The vigorous trade in goods that grew up in the fourteenth and fifteenth centuries entangled households in complex relationships of credit and debt, and one of the most common activities of law courts during the period was debt recovery. Sergeants of the law were empowered to march into debtors’ homes and seize belongings equal in value to the debt owed. These officials were agents of a predatory economy, cogs in a political machinery of state-sponsored plunder.

As Daniel Smail shows, the records of medieval European law courts offer some of the most vivid descriptions of material culture in this period, providing insights into the lives of men and women on the cusp of modern capitalism. Then as now, money and value were implicated in questions of power and patterns of violence.

A few blurbs:

“Full of unexpected insights, this exciting and innovative social history brings the late Middle Ages to life through everyday objects that served as the basis of an emotional package of vanity, optimism, humiliation, and violence surrounding debt seizures.”—Paul Freedman, Yale University

“A terrific book, rich with well-told anecdotes as well as smart analytical interventions. Smail makes ordinary people more than mere onlookers or victims of the long so-called commercial revolution of Europe.”—Martha Howell

More information is available here.

Lederman on History's Lessons for Wartime Military Tribunals

Martin Lederman, Georgetown University Law Center, has posted If George Washington Did it, Does that Make it Constitutional? History's Lessons for Wartime Military Tribunals, which is forthcoming in the Georgetown Law Journal:    

Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a

Joshua Hett Smith House, Treason Hill (wiki)

1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.

Sweeney on Cohabitation Statutes

Joanne Sweeney, University of Louisville, has posted Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws, which appeared in the Loyola University of Chicago Law Journal 46 (2014); 127-173:

Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.

The article should be read in conjunction with Elizabeth Pleck’s Not Just Roommates, perhaps while listening to this.

Legal History @ LAPA, Fall 2016

Three of the five meetings of the seminar of Princeton University's Law and Public Affairs(LAPA) Program this semester are legal historical.  The seminar meets Mondays at 4:30 PM, in 301 Marx Hall.  The format is paper in advance with a commentator who summarizes the main themes of the paper and presents topics for discussion.

September 26, 2016
The Systems Fallacy: The Perils of Systems Analysis, Past and Present (From Operations Research to Contemporary Cost-Benefit Analysis)
Bernard E. Harcourt, Columbia University

At the height of the Cold War in the late 1950s and early 1960s, a decision-making technique called Systems Analysis was perfected and began to be applied broadly from matters of national defense strategy to government policy to criminal justice. The turn to systems analysis has been deeply consequential in the field of law and public policy, and is essentially responsible for the dominant role that cost-benefit analysis plays today throughout the administrative state. A close examination of the attempt to extend the use of systems models from the narrow military domain to the broader public policy context, however, reveals a recurring problem centered on the choice of scope of the analysis. I call this “The Systems Fallacy” and I demonstrate it in this essay.

November 7, 2016
Outcasts from the Vote: Women Suffrage and Disability over the Long 19th Century
Rabia Belt, Stanford Law School

November 28, 2016
Distraction Framed: Law and Mental Disabilities in Early New England
Cornelia Dayton, LAPA Fellow; University of Connecticut

Levinson, ed., "Nullification and Secession in Modern Constitutional Thought"

New from the University Press of Kansas: Nullification and Secession in Modern Constitutional Thought (Sept. 2016), edited by Sanford Levinson (University of Texas). A description from the Press:

The Missouri legislature passes a bill to flout federal gun-control laws it deems unconstitutional. Texas refuses to recognize same-sex marriages, citing the state's sovereignty. The Tenth Amendment Center promotes the “Federal Health Care Nullification Act.” In these and many other similar instances, the spirit of nullification is seeing a resurgence in an ever-more politically fragmented and decentralized America. What this means—in legal, cultural, and historical terms—is the question explored in Nullification and Secession in Modern Constitutional Thought. Bringing together a number of distinguished scholars, the book offers a variety of informed perspectives on what editor Sanford Levinson terms “neo-nullification,” a category that extends from formal declarations on the invalidity of federal law to what might be called “uncooperative federalism.”

Mark Tushnet, Mark Graber, James Read, Jared Goldstein, Vicki Jackson, and Alison La Croix are among the contributors who consider a strain of federalism stretching from the framing of the Constitution to the state of Texas’'s most recent threat to secede from the United States. The authors look at the theory and practice of nullification and secession here and abroad, discussing how contemporary advocates use the text and history of the Constitution to make their cases, and how very different texts and histories influence such movements outside of the United States—in Scotland, for instance, or Catalonia, or Quebec, or even England vis-à-vis the European Union. Together these essays provide a nuanced account of the practical and philosophical implications of a concept that has marked America's troubled times, from the build-up to the Civil War to the struggle over civil rights to battles over the Second Amendment and Obamacare.

Subscribers to Project Muse may access full content here.

We've previously noted the contribution by Alison LaCroix (University of Chicago), on "Secession and the Confederate Constitution."

Sunday Book Review Roundup

There's an exciting collection of reviews out this week.

In The Nation, Stephanie McCurry reviews Manisha Sinha's The Slave’s Cause: A History of Abolition.  Also in Then Nation is a review of Habermas: A Biography by Stefan Müller-Doohm.  Finally, readers might find interesting this review essay on Picturing Frederick Douglass: An Illustrated Biography of the Nineteenth Century's Most Photographed American and Racecraft: The Soul of Inequality in American Life by Karen E. Fields and Barbara J. Fields.

The New York Times has a review of Richard Kluger's Indelible Ink: The Trials of John Peter Zenger and the Birth of America's Free Press.  Also reviewed is Blood at the Root: A Racial Cleansing in America by Patrick Phillips (Blood at the Root is also featured on NPR's Fresh Air).

The Washington Post has a review of Candice Millard's Hero of the Empire: The Boer War, a Daring Escape, and the Making of Winston Churchill.  His Final Battle: The Last Months of Franklin Roosevelt by Joseph Lelyveld is also reviewed in The Washington Post.

His Final Battle has also received a review in The New York Review of Books.

At the New Book Network is an interview with Barbara Hahn and Bruce Baker, authors of The Cotton Kings: Capitalism and Corruption in Turn-of-the-Century New York and New Orleans.  Also interviewed is Holly Allen, author of Forgotten Men and Fallen Women The Cultural Politics of New Deal Narratives.  Finally, there is an interview with Mireya Loza about her Defiant Braceros How Migrant Workers Fought for Racial, Sexual, and Political Freedom.


On H-Net is a review of Elizabeth Dale's Robert Nixon and Police Torture in Chicago, 1871-1972

Common-Place has released a new issue.  In it is a review of Mary Sarah Bilder's Madison's Hand: Revising the Constitutional Convention.   Also reviewed is Padraig Riley's Slavery and the Democratic Conscience: Political Life in Jeffersonian America.

In the Los Angeles Review of Books is a review of Akhil Reed Amar's The Constitution Today: Timeless Lessons for the Issues of Our Era.

Public Books carries a review of Sebastian Conrad's What Is Global History?.  Also in Public Books is a review of Roger Casement: The Black Diaries - with a study of his background, sexuality, and Irish political life by Jeffrey Dudgeon.

Finally, though it's well outside the realm of legal history, the New Yorker has an enjoyable review essay on Paul Freedman's Ten Restaurants That Changed America.

Weekend Roundup

• Kalyani Ramnath, a doctoral candidate at Princeton University, is interviewed on a bollywood film's depiction of the Nanavati trial.

• Margaret Wood, a legal reference librarian at the Law Library of Congress, on conscription in World War I, on Library of Congress Blog.

• The President and the Constitution, a report of the National Constitutional Literacy Campaign, published as a special section of the Washington Times, introduced, here, by ConSource.

• From the latest issue of Commonplace: John Craig Hammond (Penn State University) on "Slavery, Sectionalism, and the Constitution of 1787." 

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

CFP: A Return to the Archives

[Whoever left?  But, seriously, we have the following CFP.  H/t: Jay Stewart.]

The Society for History in the Federal Government (SHFG) will hold its annual meeting on April 13, 2017, at the National Archives and Records Administration (NARA) Building in Washington D.C.

Throughout its 37-year history, the SHFG has enjoyed a unique & fruitful relationship with the National Archives (NARA). As the primary steward of the nation’s records, NARA’s holdings are indispensable to federal historians and public history professionals across the nation. In turn, SHFG members have used NARA’s resources for official work duties and personal projects. Thus, the Society’s annual meeting will highlight the interplay among archivists, historical researchers, and public history professionals that enables a greater understanding of our collective past.

The program committee invites participants to broadly interpret the conference theme, “A Return to the Archives.” Topics might include: the impact of technology and archival resources on the sharing of public history; the challenges of managing and preserving data in a digital age; recent projects from local and state archives, special collections, and non-government archival collections; how archival repositories use the web for outreach and to promote their collections; the use of archival resources  in oral history programs; and research into the history of the federal government using archival sources.

The program committee invites entire panels and roundtables, as well as individual papers. We welcome proposals from graduate students, federal historians, public historians, archivists from varied institutions, oral historians, digital archivists, and scholars from other disciplines. We also welcome panels composed of practitioners from a variety of backgrounds and experiences in these topics.

Paper proposals should include a brief abstract of 250-300 words, a brief biographical paragraph for the presenter, and contact information. Panel proposals should include brief abstracts of each paper as well as biographical paragraphs and contact information for each presenter.  Deadline for proposals is November 15, 2016.

Please visit SHFG’s website for further information. Please send all correspondence, including questions and proposals, to shfgannualmeeting@gmail.com.

Call for Applications: Hurst Summer Institute in Legal History

Attention advanced graduate students and junior scholars -- the Hurst Summer Institute is now accepting applications. This year's Institute will be led by LHB's own Mitra Sharafi (University of Wisconsin):

Call for Applications

Hurst Summer Institute in Legal History: June 4-17, 2017

University of Wisconsin-Madison

Application Deadline: 12/1/2016

Invitation

The American Society for Legal History and the Institute for Legal Studies at the University of Wisconsin Law School are pleased to invite applications for the ninth biennial Hurst Summer Institute in Legal History. The purpose of the Hurst Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The Hurst Institute assists scholars from law, history, and other disciplines in pursuing research on the legal history of any part of the world.

The 2017 Hurst Institute will be led by Mitra Sharafi, Associate Professor of Law and Legal Studies (with History affiliation) at University of Wisconsin-Madison. The two‑week program features presentations by guest scholars, discussions of core readings in legal history, and analysis of the work of the participants in the Institute. The ASLH Hurst Selection Committee will select twelve Fellows to participate in this event.

Applicant Qualifications

Scholars in law, history and other disciplines pursuing research on legal history of any part of the world are eligible to apply. Preference will be given to applications from scholars at an early stage of their career (beginning faculty members, doctoral students who have completed or almost completed their dissertations, and J.D. graduates with appropriate backgrounds).

Fellowship Requirements

Fellows are expected to be in residence for the entire two‑week term of the Institute, to participate in all program activities of the Institute, and to give an informal works‑in‑progress presentation in the second week of the Institute.

Application Process

(1) Submit the following materials in a single pdf file starting with your last name to ils@law.wisc.edu. Multiple attachments will not be accepted.

·         Curriculum Vitae with your complete contact information.

·         Statement of Purpose (maximum 500 words) describing your current work, specific research interests, and the broader perspectives on legal history that inform your work.

(2) Arrange to have two letters of recommendation sent electronically as a pdf files (these must be on institutional letterhead and signed) to ils@law.wisc.edu by the deadline.

Please note that late or incomplete applications will not be accepted.

Additional Information: http://www.law.wisc.edu/ils/hurst_institute.htm

Questions: Contact ils@law.wisc.edu

AJLH 56:3

The latest issue of volume 56 (September 2016) of the American Journal of Legal History is now available (in its entirety) on-line.

Articles
“The Heart Knows its Own Bitterness”: Authority, Self, and the Origins of Patient Autonomy in Early Jewish Law
Ayelet Hoffmann Libson

Federal Coercion and National Constitutional Identity in the United States 1776-1861
Pekka Pohjankoski

Book Reviews
Daniel R. Coquillette and Bruce A. Kimball, On the Battlefield of Merit: Harvard Law School, the First Century.
Thomas Rogers Hunter

Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue
Linda Przybyszewski

Karen L. Walloch The Antivaccine Heresy: Jacobson v. Massachusetts and the Troubled History of Compulsory Vaccination.
Wendy E. Parmet

Reuel Schiller, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism
Arthur F. McEvoy

Rudenstine on "The Supreme Court, National Security, and the Constitutional Order"

New from Oxford University Press: The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (August 2016), by David Rudenstine (Cardozo School of Law). A description from the Press:

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch.

David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.

A few blurbs:

"David Rudenstine's new book is a calmly worded expression of outrage at the Supreme Court's violation of the rights of the individual in the name of deference to the Executive branch of the government. Massively documented, this troubling account of secret courts, unregulated surveillance, and unlawful detentions could not be more timely at a point when the future composition of the Court hangs in the political balance. It is not often that scholarship impeccably performed intersects with the urgent needs of the country and of Democracy." -- Stanley Fish 

"A compelling account of how courts have abdicated their responsibility when it comes to holding the executive branch accountable to constitutional limits in the realm of national security. Rudenstine persuasively shows that judicial deference has afforded the executive a blank check, and illustrates why such an approach is fundamentally irresponsible." -- David Cole

More information is available here.

Trabsky on Bureacracy, Professionalism and the Coroner in Australia

We usually only post abstracts for publicly available papers, but I’m posting the abstract for this gated paper anyway, not simply because, as a law student, I wrote a never-published paper on coroners, but also because a work that historicizes the blurred and shifting line between judicial and administrative officials and functions is very welcome.  The paper is The Coronial Manual and the Bureaucratic Logic of the Coroner's Office, written by Marc Trabsky, La Trobe University School of Law, and published in the International Journal of Law in Context 12 (June 2016): 195-209.  Professor Trabsky’s article is part of a symposium issue, Frontiers in Coronial Justice.

This paper examines the coronial manual as a technique of occupying office in the nineteenth and twentieth centuries. The manual guided coroners in the performance of their duties, obligations and responsibilities. It was preoccupied with questions of technical knowledge, operational processes and administrative procedure. The language of office that characterised coronial treatises prior to the eighteenth century was gradually supplemented in the nineteenth century by the discourse of bureaucracy. This paper argues that the guidebook professionalised the office of coroner in Australia by setting out procedures, forms and rituals for assuming responsibility for the dead. It also provided advice to coroners for devoting themselves to a vocation in the public service. The paper thus traces historical shifts in the technology of the coronial manual in British colonies and examines how a bureaucratic logic of the coroner's office affected the way in which coroners pursued justice during the death investigation process.

UNC-Charlotte Seeks Assistant Professor, U.S. History since 1960

Via H-Net, we have the following ad for a tenure-track position as Assistant Professor in the field of United States History since 1960. Note that law is one of the desired sub-fields:

The Department of History at the University of North Carolina at Charlotte invites applications for a tenure-track position as Assistant Professor in the field of United States History since 1960 to begin August 2017. Applicants are required to have a Ph.D. in History or a related field at the time of appointment, show evidence of a strong potential for professional development as a scholar and teacher, and demonstrate a commitment to promoting diversity as a value in the department and college.  A research and teaching focus on United States History since 1960 is required.  We are especially interested in applications from historians of the United States since 1960 doing innovative work in one or more of the following areas: politics, labor and business, law, medicine and health, and foreign policy.

Claus on "Power Enumeration" and Constitutional Federalism

Laurence Claus, University of San Diego School of Law, has posted Power Enumeration and the Silences of Constitutional Federalism, a paper given at the International Symposium on Constitutional Silence, Trinity College Dublin, August 31-September 1, 2016:

Enumerating power by subject is a familiar feature of federal constitutions that aspire to apportion power among governments. Long-serving federal constitutions seem to say a lot more about how power to govern their communities should be distributed among their governments than about how those governments should treat each other. Yet those texts come no closer to supplying actual answers to disputes about power distribution than they do to disputes about institutional independence. Power enumeration is indeterminate not merely because subjects of power are abstract, but because federal constitutions are silent about aboutness. Federal drafting conventions that resorted to the judiciary to enforce power enumeration seemed to assume that the range of rationally conceivable ways to decide whether laws are inside or outside specified subjects of power (the range of rationally conceivable tests of aboutness) would generally yield the same answers. The assumption is false; laws do not have single subjects. Laws are almost always susceptible of more than one characterization, almost always about more than one thing. Power enumeration defaults to constitutional dispute resolvers an open discretion to decide what to make of it, and an adjudicative necessity to develop a law of aboutness. In deciding disputes about power distribution, as surely as in deciding disputes about intergovernmental independence, constitutional courts have unavoidably responded to constitutional silence with court-created core constitutional law. That law of characterization has sometimes deferred to rational legislative judgment, and sometimes not.

Thomas on How Corporations Became Persons under Criminal Law

W. Robert Thomas, an associate at Cleary Gottlieb Steen & Hamilton LLP who received, in 2015, a doctorate in philosophy), and, in 2011, a JD, from the University of Michigan, has posted When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now:   

The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense.

Yale Legal History Forum, 2016–2017

We have an announcement of the line up in the Yale Legal History Forum for 2016–2017, which meets 4:15-5:45 p.m., with a reception commencing at 4:00 p.m., in the Yale Law School Faculty Lounge (unless otherwise specified).  For more information, please contact Will Sullivan (william.sullivan@yale.edu) or Idriss Fofana (idriss.fofana@yale.edu).

Fall

Noel Lenski, Yale University (Classics & History),
Thursday, September 22
The Significance of the Edict of Milan

Gregory Ablavsky, Stanford Law School
Thursday, October 20
The Expenses of Sovereignty: Dependence, Allegiance, and Federal Finance in the Early U.S. Territories

Sam Erman, University of Southern California Gould School of Law
Thursday, November 17
The Constitution and the New Expansion: Debating the Status of the Islands

Spring

Sara McDougall, John Jay College & CUNY Graduate Center (History)
Thursday, February 2
Like Father like Son? Clerical Celibacy and the Inheritance of Priestly Office in Medieval Europe

Risa Goluboff (Dean’s Lecture), University of Virginia School of Law
Tuesday, February 21 (4:30 p.m., location TBA)
Title TBA

Michele Dauber, Stanford Law School
Tuesday, March 23
Title TBA

Isabel Hull, Cornell University (History)
Thursday, March 30 (SLB 129)
Carl Schmitt, International Law, and Imperialism

Dylan Penningroth | University of California, Berkeley (History & Law)
Thursday, April 20
Title TBA

Sexy History, Legal History and History Departments: Part 1

“Why is this not about slavery?”  So rang another skeptical question during a campus visit approaching its 12^th hour.  I think it was clear within the first hour or so to both job seeker and employer that this was not the right fit.  But the show must go on.  And there is nothing quite like the experience of a campus visit gone awry to make one rethink their choice of profession.  Thankfully I already had a good job.  I muzzled my instincts to answer combatively, and responded.  In short, the story of the federal government’s relationship to slavery deserved its own treatment.  With that I offered a few examples of how federal customs officers dealt with slaves before pointing to some really good books that did a better job on the broader subject of slavery and governance (books by George Van Cleve and Sally Hadden, for instance).  I also hurriedly mentioned that my second project was entirely about the regulation of runaway and fugitive slaves, but nothing seemed to sway my audience, which had grown increasingly shifty and distracted.

This was not the first time a campus visit did not go my way.  I had thus developed an appropriately unhealthy way to deal with it: go over every second in my head and yell at myself for not doing things better.  (As a side note, the experience of serving on search committees over the years has taught me that most times with searches, things are really not in any one individual’s control.)  In any case, once I went through my tried and tested bout of self-flagellation, I kept coming back to the question of why my book was not about slavery.

The question pointed to a difficult reality: as a matter of demand, some topics are more marketable and desirable than others.  I do not think I will surprise anyone when I say that there is less demand in history departments for commercial regulation, the law of administration, and political economy, than for the history of slavery.  How would I make the manuscript that became National Duties: Custom Houses and theMaking of the American State, more attractive and marketable?

The book itself is about the relationship between the state and the marketplace between the American Revolution and the antebellum era.  I argue that the challenge of governing Atlantic capitalism transformed the early federal government from a diffuse structure patterned on the British Empire toward a modern central government.  Starved for revenue and desperate for political legitimacy in the shadow of the American Revolution, the architects of the first federal government emulated the British Empire’s practices of governance that emerged after the Glorious Revolution.  In the nation’s capital, Alexander Hamilton built a central Treasury and put into motion the power to tax.  But in practice, at the customhouses on the maritime frontier, federal officers negotiated their authority with the merchant capitalists whose taxes would constitute the lion’s share of the federal government’s revenue. In exchange for their taxes, Atlantic merchant capitalists secured the power to shape how federal officers collected taxes and administered commercial regulations.  Though this negotiated authority created reliable revenue for the new federal government, it gave merchant capitalists profound influence over the inner workings of the state.  This much became clear during the Jeffersonian era, as waterfront communities thwarted the embargoes and commercial restrictions that aimed to punish European commerce during the Haitian Revolution and the French Revolutionary and Napoleonic Wars.  After the War of 1812, legal and political reformers too aimed at the moral and material problems posed by merchant capital’s ostensible capture of the federal state.  By 1836, officeholders, jurists, and politicians who contemplated the problem of the customhouse had established a key axiom of the modern liberal state: the necessity of separating the state and the marketplace.  The stage was set for a bureaucratic expansion of federal governance that would occur gradually over the next century.

Can’t get less sexy than that, or so my recent experiences led me to think.

During a meeting with one of the biggest university presses the acquisition editor offered me one solution: go ‘founders chic.’  This would require gutting the argument and most of the evidence about the custom houses themselves and making the stewards of federal governance in the early republic—especially Alexander Hamilton, George Washington, Albert Gallatin, and Thomas Jefferson—the main exhibits.  What the ‘founders’ thought about what was going on with the custom houses, in other words, would have more appeal to readers than what was actually going on at the custom houses.  The sheer prospect of rewriting basically every page of my book made this a most undesirable possibility. 

A second option was to take the capitalism turn.  In what I view as a generally salutary development for the historiography of eighteenth and nineteenth-century economic and cultural life, capitalism has returned to the lexicon of many seeking to make sense of multiple revolutions in transportation, communication, and market culture.  This was a far more attractive option because of the incredible quality of leading works in the field: Jonathan Levy’s Freaks of Fortune and Michael Zakim’s works writ large for instance.  But these books seemed so different from mine because they were far more invested in ideological and cultural problems. 

Ultimately the problem that came into view after that dismal question-and-answer-session-for-a-job-I-was-never-going-to-get was a problem with a solution.  Perhaps it was not a problem at all.  I would have to write the book that I wanted to write and people would either be interested in it or they would not.  But for a junior scholar in a field without a huge footprint in history departments throughout the country it was difficult to avoid asking it nonetheless.  Indeed, even now that the book is out, and I find myself in a wonderful, supportive department, I still sometimes feel that same insecurity.

In my next post I’ll seek to explain why this uncomfortable feeling persists. Here’s a preview: aside from my personality, one reason for this insecurity about my own work is about the place of legal history within history departments.  

A New Tool for Historians of the US Supreme Court

Probably all you historians of the U.S. Supreme Court already knew that the Supreme Court Database (SCDB), first created by the political scientist Harold Spaeth for the Court since 1945, has recently been extended, in the “Legacy” release, back to 1791.  Colin Starger, University of Baltimore School of Law, has recently alerted us the Free Law Project, in which he is a participant, has updated its Supreme Court Citation mapping tool to take advantage of the new data. “Interested users can create their own historical citation networks and then have complete access to all opinion text and SCDB data. To assess the potential of the tool, consult this example.  “The tool is entirely free and open source.”

Memoirs by Judge William Norris and Professor Barbara Babcock

Quid Pro Books has published two legal memoirs.  The first is Liberal Opinions: My Life in the Stream of History, by Judge William A. Norris:

Author of the controversial but prescient judicial opinion striking down the ban on gays in the military—two decades before the Supreme Court finally recognized such equal rights—Judge Bill Norris made law and waves on the Ninth Circuit Court of Appeals. Yet his legal and civic life before and after, though less well known, is equally the measure of the man.

Among the endorsers is Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit:

Recounted in this remarkable book is a conversation Bill Norris had with Justice White following his opinion for the Supreme Court in Bowers v. Hardwick, upholding Georgia’s sodomy law. Shortly after, Justice White visited the Ninth Circuit Judicial Conference and Bill confronted him about the injustice of the decision. I witnessed the interaction. No one else was bold enough to challenge the Justice, though others harbored the same doubts. Justice White shrugged off Bill’s concerns as trivial, but Bill stood firm and I could see from his tone and look that he would have none of it. Soon, Bill set about undermining Bowers with his brilliant opinion in the Perry Watkins case. The theory in Watkins resulted, a decade and a half later, in the overruling of Bowers and, eventually, to marriage equality. This story, among many others, makes this personal history a gripping and fulfilling read.

The other memoir is Fish Raincoats, by Barbara Babcock, emerita Stanford Law School.

The life and times of a trailblazing feminist in American law. The first female Stanford law professor was also first director of the District of Columbia Public Defender Service, one of the first women to be an Assistant Attorney General of the United States, and the biographer of California’s first woman lawyer, Clara Foltz. Survivor, pioneer, leader, and fervent defender of the powerless and colorful mobsters alike, Barbara Babcock led by example and by the written word — and recounts her part of history in this candid and personal memoir. 

Says Slate’s Dahlia Lithwick:

Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.

Rg 24

[We have the following announcement.]

The most recent issue of Rechtsgeschichte /Legal History, the journal of the Max Planck Institute for European Legal History, has just been released and is now available online in open access and in print.

Rg 24 is dedicated to the concept of translation.  The research section opens the issue with a contribution from Gerhard Dilcher that has been translated into English: “The Germanists and the Historical School of Law: German Legal Science between Romanticism, Realism, and Rationalization.” This article is followed by an analysis by Jakob Zollmann that sheds light on an almost forgotten legal historical phenomenon, “Austrägalgerichtsbarkeit - Interstate Dispute Settlement in a Confederate Arrangement, 1815 to 1866.” Finally, Pedro Cardim addresses the expansive and fundamental field of research within legal history focusing on European empires, in particular the status of the overseas territories of the Iberian monarchy in the 16th and 17th centuries.

The first focus section, “Translators: Mediators in Legal Transfers,” deals with cultural translators of normativity, and the second focus, “Legal History in Action: Laying Down Indigenous Customs in Writing,” treats the translation of legal customs into writing – a translation into another medium. Such processes of translation may very well represent a key to understanding local, national, regional, or even global legal histories; however, in the past they have simply received insufficient consideration.

The two forum sections strive to provide a snapshot of a broad discussion concerning issues important to legal historical research. The first one poses the following question: what kind of research results can be expected from the much discussed “Digital Humanities”? In the second forum, legal historians were asked to assess the “State and Perspectives of the History of Social Law.”

In the critique section, important works within legal historical research published within the last two years are discussed, several of which also deal with translation. As always, we have again done our best to discuss as many publications as possible in a language other than that in which they were written. Journals are indeed also translators.

Click here to get to the Rg website, where you will find all contributions online in open access, or you can order a hardcopy directly from the publisher.