Chin and Ormonde on Infamous Misdemeanors and the Grand Jury Clause

Gabriel "Jack" Chin and John Ormonde, respectively, a professor and student at the University of California, Davis School of Law, have posted Infamous Misdemeanors and the Grand Jury Clause, which is forthcoming in volume 102 of the Minnesota Law Review:

Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended.

Brockman-Hawe on Bismark's Proposed International Criminal Court

Ben Brockman-Hawe, an independent scholar, has posted Punishing Warmongers for Their 'Mad and Criminal Projects' - Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War, which appeared in volume 52 of the Tulsa Law Review:

The idea of punishing aggressive war is routinely presented as having been first conceived of in the wake of the First World War. This conventional narrative is incorrect; the intellectual seed for the project had begun to take root long before, in the reactions to the interstate conflicts of the nineteenth century. This article explores one of the most significant moments from aggression’s unappreciated ‘pre-history’; Chancellor Bismarck’s pursuit of a trial before an international criminal court of the Franco-Prussian War’s (1870-1) French ‘intellectual originators and instigators.’ Although the proposal ultimately failed to attract the political and public support necessary for its implementation, it prompted in its own time an unprecedented discussion on the viability of international criminal responsibility for aggression and international criminal courts. The proposal later took on new life as both a precedent and an anti-precedent as these ideas resurfaced periodically after 1870.

The goal of this paper is to restore Bismarck’s proposal to its rightful place in the story of the crime’s development. At stake is more than historic fidelity; contemporary expectations of what international criminal law can accomplish, what circumstances should or could accompany international criminal law’s invocation, and what the parameters of the crime of aggression should be are shaped by such histories. As the 2010 Kampala Amendments to the Rome Statute are now a single accession away from accumulating the requisite number of ratifications to come into effect, raising the prospect that the International Criminal Court will imminently be tasked with adjudicating the first aggression case in over seventy years, the need for reflection on these issues has taken on unusual salience.

CFP: ASLH Student Research Colloquium

The American Society for Legal History will host a Student Research Colloquium (SRC) on Wednesday, October 25, and Thursday, October 26, 2017, immediately preceding the ASLH's annual meeting in Las Vegas, Nevada.  The SRC enables a small number of Ph.D. students and law students to discuss their in-progress dissertations and law review articles with distinguished ASLH-affiliated scholars. 

The SRC's target audience includes early-post-coursework graduate students and historically minded law students.  The colloquium seeks to introduce such students to legal history, to each other, to the ASLH, and to the legal-historical scholarly community generally.  Students working in all chronological and geographical fields are encouraged to apply, as are students whose projects engage legal-historical themes but who have not yet received any formal training in legal history.  Applicants who have not had an opportunity to present their work at ASLH annual meetings or who have not otherwise had an opportunity to discuss their work with legal historians are particularly encouraged to apply.  A student may be on the program for the annual meeting and participate in the SRC in the same year.

Each participating student will pre-circulate a twenty-page, double-spaced, footnoted paper to the entire group.  The group will discuss these papers at the colloquium, under the guidance of two faculty directors.  The ASLH will provide at least partial and, in most cases, total reimbursement for travel, hotel, and conference-registration costs. 

The application deadline is July 15, 2017.  Applicants should submit (1) a cover letter; (2)  a CV; (3) a two-page, single-spaced "research statement," describing an in-progress project; and (4) a letter of recommendation from a faculty member, sent separately from, or together with, the other materials.

Organizers will notify all applicants of their decisions by August 15, 2017.  Please direct questions and applications to John Wertheimer at srcproposals@aslh.net.

Guggenheims for Colley and Lanni

Last week, the Board of Trustees of the John Simon Guggenheim Memorial Foundation awarded 173 Guggenheim Fellowships "to a diverse group of scholars, artists, and scientists."

Two legal historians received fellowships.  Linda Colley, the Shelby M.C. Davis 1958 Professor of History at Princeton University, will complete “a book on war and words: how rising levels of conflict after 1750 fostered the world-wide spread of new constitutions.  Adriaan Lanni, the Touroff-Glueck Professor of Law at the Harvard Law School, will complete “a book entitled Crime and Justice in Democratic Athens.”  It is foreshadowed by her recent talk, Why Study Athenian Law: Adventures in Institutional Design,  which “discusses what modern lawyers and democratic citizens can learn from ancient Athens.”

Moyn to Yale

More lateral hiring news: Samuel Moyn will join the faculty at Yale Law School this fall.

Moyn is currently the Jeremiah Smith, Jr. Professor of Law and a Professor of History at Harvard University. His research focuses on international law, human rights, and legal and political thought. He holds a J.D. from Harvard and a Ph.D. from the University of California, Berkeley.

Snyder to Georgetown

More lateral hiring news: we have word that Brad Snyder is leaving the University of Wisconsin Law School for Georgetown University Law Center.

Snyder is a historian of constitutional law, Supreme Court justices, and baseball, among other things. His most recent book is The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (Oxford University Press). He is a graduate of Yale Law School.

Buckner Inniss to Southern Methodist University

More lateral hiring news: Lolita Buckner Inniss is reportedly leaving Cleveland-Marshall College of Law for Southern Methodist University.

Cribbing here from her Cleveland-Marshall faculty bio, Buckner Inniss's "research addresses geographic, historic and visual norms of law, especially in the context of comparative constitutionalism, gender and race." She is currently at work on a book titled The Princeton Fugitive Slave: James Collins Johnson, "an account of race, gender, slavery and the law at Princeton University." She received a J.D. from UCLA and an LL.M. and Ph.D. from Osgoode Hall, York University.

Blum to UC Hastings

The season for lateral hiring is upon us, and legal historians are among those on the move. We have learned that Binyamin Blum, currently appointed at the Law Faculty of Hebrew University and visiting at Stanford Law School, is headed to University of California, Hastings College of the Law. According to Blum's Stanford bio, he is currently at work on a book project that explores "the colonial origins of forensic science." He "also writes on current issues of evidence and proof, such as the suppression of confessions and the exclusion of unlawfully obtained evidence more generally, the spousal privilege, DNA and circumstantial evidence, rape shield statutes and character evidence." Blum received his B.A. and LL.B from Hebrew University and his doctorate in Law from Stanford.

Friedman et al. on Concurrences

Thomas B. Bennett, Kellogg, Huber [et al.]; Barry Friedman, New York University School of Law; Andrew D. Martin, University of Michigan; and Susan Navarro Smelcer, Emory University, have posted Divide & Concur: Separate Opinions & Legal Change, which is forthcoming in Cornell Law Review:

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions, is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what it is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true of a type of concurrence we identify here for the first time: the “pivotal” concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority’s rule in the case. Under the Supreme Court’s “rule of five,” lower courts ought to disregard pivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case.

Armitage to Lecture on "Civil War Time"; Comment by Dudziak

The 111th annual meeting of the American Society of International Law commences tomorrow, Wednesday, April 12, 2017, with the nineteenth annual Grotius Lecture, “Civil War Time: From Grotius to the Global War on Terror,” to be delivered by David Armitage, Harvard University, with a comment by Mary Dudziak, Asa Griggs Candler Professor of Law, Emory University School of Law (and LHB Founder).  Professor Armitage will speak from 4:30 PM - 6:00 PM, in the Hyatt Regency Capitol Hill, 400 New Jersey Ave, NW,  Washington, DC 20001.  The event is open to the public free of charge with no RSVP required.  A reception is to follow.  H/t: Lawfare

Chin and Ormonde on the War against Chinese Restaurants

Gabriel "Jack" Chin and John Ormonde, respectively, a professor and student at the University of California, Davis School of Law, have posted The War against Chinese Restaurants, which is forthcoming in volume 67 of the Duke Law Journal:

"Oriental Dinner Menu" (NYPL)

Chinese restaurants are now a cultural fixture, as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, they threatened white women, who were subject to seduction by Chinese men, through intrinsic female weakness, or employment of nefarious techniques such as opium addiction. In addition, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks and servers; unions were the driving force behind the movement.

The effort was creative; Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities decreed Chinese restaurants would be denied licenses, the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. However, Asians still lost; the unions did not eliminate Chinese restaurants, but they achieved their more important goal, extending the federal policy of racial exclusion in immigration from Chinese to all Asians. The campaign is of more than historical interest. As current anti-immigration sentiments and efforts show, even today the idea that white Americans should have a privileged place in the economy, or that non-whites are culturally incongruous, persists among some.

Maltese Constitutional and Legal History

[Whitelocke Publications Limited has alerted us to their publication of three works of Maltese legal and constitutional history.]

Raymond Mangion's Constitutions and Legislation in Malta 1914-1964 (Vols. 1 & 2).  Professor Raymond Mangion, Head of the Department of Legal History and Methodology at the University of Malta, studied at the University of Malta (MA History, LLD) and at the University of Oxford (DPhil). He has been lecturing in legal and legislative history at the Faculty of Laws, University of Malta, since 1993.

He undertakes the unprecedented task in this book of drawing the constitutional and legislative landscape of Malta between the years 1914 and 1964. This he does with attention to detail, rigour and precision. He brings the story to life by interweaving social developments with the evolution of the constitutions and legislation of Malta.

Professor Mangion provides the reader with a dazzling tapestry, full of detail and connections. Themes include the influence of outstanding personalities in law-making, the changing structure of the government, questions of language and the free trade issue. He analyses the role of the local Church, the adoption of public, private and criminal laws, the tension between pro-Italian and pro-British feelings and the need to reconcile Imperial defence strategies with the wish of the Maltese for more autonomy. He masterfully demonstrates that the history of pre-Independence British Malta cannot be fully grasped without a clear understanding of the role played by its constitutions and legislation.

Hilda Lee's Constitutional History of Malta 1800-1914, with an introductory essay by Barry Hough & Howard Davis.  Hilda I. Lee, MA, was Lecturer in International History at the London School of Economics and Political Science.  Barry Hough, LLM LLB, is Associate Senior Lecturer at the University of Portsmouth School of Law. Dr Howard Davis is Reader in Public Law at Bournemouth University.

This book provides a detailed constitutional history of Malta during the first part of British rule, from initial occupation in 1800 to 1914, with an Epilogue bringing the story to Independence in 1964. The first part consists of an essay written by Barry Hough and Dr Howard Davis discussing the nature of the legal authority exercised in Malta by British officials prior to 1813, the date of the first appointment of a British official with the title of ‘governor’. The second, and majority, part of the book consists of an edited reprint of the acclaimed work by Hilda I. Lee, Malta 1813-1914: A Study in Constitutional and Strategic Development, published in 1973. Here, the many typographical errors originally found in Lee’s book have been corrected and the text conformed. This is the first time Lee’s book has appeared in print in over 30 years. This book is the first volume in the Whitelocke Series of Commonwealth Constitutions.

Mark A. Sammut's Essays in Maltese Legal History and Comparative Law, Vol. 1.  Mark A. Sammut, a member of the Royal Historical Society, the European Society for Comparative Legal History, and of the Malta Historical Society, studied law and translation studies at the University of Malta (LL.D., M.Jur. (summa cum laude), M.A.), Western European legal history at the University of London (LL.M.), and historical sociology at the London School of Economics.

This book contains four essays:

1. Judicial Importation into Maltese Law of Italian Private Law Solutions and Its Implications
2. Historical Facts and Myths surrounding the Criminal Code of Malta
3. Medieval (Legal) Beasts in our Midst? A Terminological Ad Fontes Look at the Dissolution of Contracts under Maltese Law
4. Latin Wine Decanted into a Semitic Carafe: The Obscure Term “Midheb” in Vassalli’s Lexicon and its Possible Usefulness for the Legal Historian

It is of interest not only to those analysing Maltese law, but also to those interested in Scots (Criminal) Law, British Imperialism, the translation of the Code Napoleon, Islamic Law, Jewish Law, and Maltese History.

Signing Off

I wanted to post a final note at the end of my guest blogging stint here at LHB. I am appreciative for the opportunity to write about some of the issues that came up in the process of producing Futility and reflect on the many challenges and rewards of doing transnational and global legal history in the contemporary moment. Especially coming from the less traditional legal interdisciplinary perspective of anthropology, it was productive to discipline into words some of the internal dialogue that had accompanied my particular process of becoming a legal historian.

Intro: What Are You?: Producing A First Book Amid Disciplinary and Geographic Migrations (link)

  1) The Affinities and Disjunctures of History and Anthropology (link)

  2) Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation (link)

  3) Functionalism and Synthetic History (link)

  4) The Challenges of Comparative Law and Transnational History (link)

  5) Empire and Imperialism: (Mis)Framing Cross-Cultural Engagements (link)

  6) The Young Interdisciplinary Scholar in a Global Academic Market (link)

I think all scholars can relate to the fact that we have many potential inspirations that will never quite make it into formal writing projects, and exist in the hazier space between the personal and professional. LHB provides this distinct type of space for its guest bloggers, and I have enjoyed working through my thoughts therein, and hope they find some resonance out there in the digital ether.

And my thanks to the lead bloggers for the steady work of putting together a high-quality community resource which takes so much time out of our already impacted academic lives. The internet has the potential to both further silo and broaden our perspectives as scholars, and as catholic as the field of legal history has become this type of collective work helps us all take better advantage of the latter. Until next time!

VanderVelde on Henry Wilson and the 13th Amendment

Lea S. VanderVelde, University of Iowa College of Law, has posted Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment, which appears in the Georgetown Journal of Law & Public Policy 15 (2017): 173-264:

Henry Wilson (LC)

This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.

OAH Book Prizes Announced

The Organization of American Historians has announced its book prizes.  The whole list is here.  Of special interest to legal historians are the following:

Merle Curti Award for the best book published in American social history and American intellectual history

Intellectual history: Susanna L. Blumenthal, University of Minnesota for Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press).

Social history: Wendy Warren, Princeton University, New England Bound: Slavery and Colonization in Early America (Liveright Publishing Corporation).

Ellis W. Hawley Prize for the best book-length historical study of the political economy, politics, or institutions of the United States, in its domestic or international affairs, from the Civil War to the present

Sam Lebovic, George Mason University, Free Speech and Unfree News: The Paradox of Press Freedom in America (Harvard University Press)

Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.

Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press)

A Review Essay on the American Revolution and Desan's "Making Money"

Just out in Law and Social Inquiry is The American Revolution and Christine Desan's New History of Money, by Andrew David Edwards, a graduate student in history at Princeton University.  As the title suggests, it is a review essay on Making Money: Coin, Currency and the Coming of Capitalism (Oxford University Press, 2015), by Christine Desan, Harvard Law School.

Kent on the Insular Cases and the Anti-Jury Movement

Andrew Kent, Fordham University School of Law, has posted The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era, which is forthcoming in the Southern California Law Review 91 (2018):

This article contributes to several debates and literatures, which have not previously been all linked together: the history of the jury in the United States, the nature of U.S. imperialism and colonial governance in Puerto Rico and the Philippines, and Progressive era legal reform. The story starts with the Insular Cases — landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.

The article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. So while deep, institutional racism was certainly present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights.

William H. Taft, Governor-General of the Philippines (LC)

To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this article fills out a largely overlooked history of the jury in the mainland United States during the Gilded Age and Progressive Era. Most histories of the jury skip from the adulation of the institution at the Founding, to the Warren-Burger Courts' decisions over 150 years later that racial and gender discrimination in jury service were unconstitutional and that the criminal petit jury was a fundamental right. It turns out that the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist popular press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court held then that states should not be forced to "straight jacket" themselves (in the Court's words) to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment to create more efficient criminal and civil procedure. Leaders of the anti-jury reform movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about governance of the new territories helps enrich our understanding of both.

More on that New Website on Federal Judicial History

[We’ve previously noted the new website at the Federal Judicial History Center.  Clara Altman, the Director of the Federal Judicial History Office at the Federal Judicial Center, has written to highlight a few features.]

The Biographical Directory of Article III Federal Judges, 1789-Present.  The directory includes the biographies of judges presidentially appointed to serve during good behavior since 1789 on the U.S. District Courts, U.S. Courts of Appeals, Supreme Court of the United States, and U.S. Court of International Trade, as well as the former U.S. Circuit Courts, Court of Claims, U.S. Customs Court, and U.S. Court of Customs and Patent Appeals. Also included are judges who received presidential recess appointments to the above named courts but were not confirmed by the Senate to serve during good behavior.

Charts and Graphs related to the Demography of Article III Judges, 1789-2015.  This feature includes interactive charts and graphs on the composition of the courts over time, the age and experience of judges, gender of judges, race and ethnicity of judges, and the geographical distribution of the courts and judges including an interactive map of the judicial circuits over time and of authorized judgeships by state and by circuit.

Timelines of Federal Judicial History.  Timelines on the structure of the federal courts, the jurisdiction of the federal courts, the administration of the federal courts, and cases that shaped the federal courts.

Teaching Resources on Famous Federal Trials.  This section includes teaching resources on the Sedition Act trials, the Aaron Burr treason trial, Amistad, Ex parte Merryman, U.S. v. Susan B. Anthony, Chew Heong v. U.S., In re Debs, Olmstead v. U.S., the Rosenberg trial, Bush v. Orleans Parish School Board, and the Chicago Seven Conspiracy trial.

Historic Federal Courthouses.  This section includes nearly 600 images of historic federal courthouses and other buildings that have served as the meeting places of federal courts. These photographs were compiled from the collections of various federal repositories and agencies. They include an image of every meeting place of a federal court for which there was a photograph of acceptable quality.

Visitors to the site can also find historical information about particular courts, judicial salaries, unsuccessful nominations and recess appointments, impeachments, caseloads, administration of the courts, court officers and staff, judicial appropriations, and more...

Weekend Roundup

• The VU Amsterdam Summer School is offering a summer course on Laws in Antiquity: Law and Legal Systems from Mesopotamia, Egypt, Rome and Byzantium.  H/t ESCLH

• Legal Scholarship Blog tells us that earlier this week Alexander “Sasha” Volokh, Emory University School of Law, presented "Suing Your Employer in 1798: A Dispatch from the Legal History Trenches."  And, next week, Maeva Marcus, the founding director of the Institute for Constitutional History, and the New York Times’s Adam Liptak will “discuss their insights into politics and the Supreme Court” at Oklahoma University.

• Late last month, “Rep. Dave Brat (R-Va.) and Rep. Seth Moulton (D-Mass.) introduced the bipartisan Statutes at Large Modernization Act, H.R. 1729. This legislation will require the U.S. Statutes at Large to be placed online in a digital and searchable format, just like the U.S. Code. . . . Currently the U.S. Statutes at Large are not available online in a searchable, non-proprietary format."

• Seth Barrett Tillman, interviewed on the Military Law Review’s podcast, on Ex Parte Merryman: Myth, History, and Scholarship. 

• ICYMI: Our Georgetown Law colleague Lawrence Solum has a series of posts on "The Case for Originalism" on his Legal Theory Blog.  The latest at this writing (with links to earlier posts) is here.  Professor Solum also has a some reflections on Professor Gienapp's latest and a reply by Michael Ramsey.  He also notes Professor Christopher Green’s comment on Judge Richard Posner’s reference to originalism in a recent opinion in Hively v. Ivy Tech.

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

Grossman Named LAPA Fellow

Congratulations to the legal historian Lewis Grossman, Washington College of Law, American University, on his being named a Law and Public Affairs Fellow at Princeton University for 2017-2018.  "He will work on his book-in-progress, entitled Choose Your Medicine: Freedom of Therapeutic Choice in American Law and History."  The announcement and list of fellows is here.

Habermas on Thieves in Germany

An English-language version of Thieves in Court: The Making of the German Legal System in the Nineteenth Century by Rebekka Habermas, Georg-August-Universität, Göttingen has come out, translated by Kathleen Mitchell Dell’Orto. The original German version was published in 2008. From Cambridge University Press:

From the seemingly insignificant theft of some bread and a dozen apples in nineteenth century rural Germany, to the high courts and modern-day property laws, this English-language translation of Habermas' Diebe vor Gericht explores how everyday incidents of petty stealing and the ordinary people involved in these cases came to shape the current legal system. Habermas draws from an unusual cache of archival documents of theft cases, tracing the evolution and practice of the legal system of Germany through the nineteenth century. This close reading, relying on approaches of legal anthropology, challenges long-standing narratives of legal development, state building, and modern notions of the rule of law. Ideal for legal historians and scholars of modern German and nineteenth-century European history, this innovative volume steps outside the classic narratives of legal history and gives an insight into the interconnectedness of social, legal and criminal history.

Praise includes:

"In a brilliant study of 'jurisdictional politics', Rebekka Habermas delivers a fresh and sophisticated account of the social grounding, cultural performance, and public staging that shaped a reformed legal system in the wake of the 1848 revolutions. Challenging not only the celebratory liberal story of the progressive march of the rule of law but also the social historian's class-based critique of the rule of property, she derives the rise of 'the modern legal order' from an elaborate process of cultural conflict and everyday transactions." -Geoff Eley

Full information is available here. 

Hutchison on the Progressive Campaign for Federal Corporate Chartering

Camden Hutchison, currently dissertating at the University of Wisconsin-Madison but as of this summer a member of the law faculty of the University of British Columbia, has posted Progressive Era Conceptions of the Corporation and the Failure of the Federal Chartering Movement, which is forthcoming in the Columbia Business Law Review:

Despite the economic integration of the several states and the broad regulatory authority of the federal government, the internal affairs of business corporations remain primarily governed by state law. The origins of this system are closely tied to the decentralized history of the United States, but the reasons for its continued persistence—in the face of significant federalization pressures—are not obvious.  Indeed, federalization of corporate law was a major political goal during the Progressive Era, a period which witnessed significant expansion of federal involvement in the national economy. By examining the historical record of Progressive Era policy debates, this article bridges the analytical gap between historical and corporate legal scholarship, bringing to light the specific reasons why a federal corporation law was never enacted.

Drawing on primary source evidence, the conclusions of this article are as follows: First, proponents of federal chartering were deeply divided in their attitudes toward corporations, some viewing them as a dangerous threat, others viewing them as central to economic progress. These divisions led to conflicting views on the very purpose of corporate regulation, making agreement on the content of a federal corporation act unlikely. Second, notwithstanding these divisions, many reformers viewed corporations as directly responsible to the public interest. Legislative proposals were therefore framed in terms of benefiting the general public, and only secondarily addressed the shareholder interests that dominate corporate law today. Finally, it was the conflicted nature of the political support for federal chartering legislation—not any specific policy preference for maintaining corporate law federalism—that led to the persistence of state-based corporate law. Ultimately, the absence of federal corporate law was a product of historical circumstance, rather than any conscious determination of optimal legal or economic policy.

The Young Interdisciplinary Scholar in a Global Academic Market

Working historically almost always implies some sort of critical position on past scholarship. Hardly any topic of investigation is fully novel, so new sources or new theories of interpretation are brought to bear on old sources or old theories of interpretation to advance the state of knowledge in one’s respective field. In the context of transnational and comparative legal history, this is almost a given as past scholarship is often presented as an active enabler of colonialism, imperialism and all manner of undesirable cross-cultural practices.

In my own work on China, I routinely feel this pull as I trace back misconceptions about Chinese law in American legal culture through different eras. Perhaps no better example is the long-standing impact of Max Weber’s characterizations of Chinese law as developed in his four-fold typology of legal ideal types. The academic and popular life of Weber’s use of Chinese law, parallel to his use of Islamic law, grew out of its redeployment in negative normative contrasts with Western law (even though Weber’s critique of the common law is generally elided in the process). In particular, Talcott Parson’s embedding of his interpretation of Weber in modernization theory helped normalize many of these pernicious characterizations, which have achieved near hegemonic status in legal studies.

This may seem odd as a way of opening a post on the globalizing market for young academics. But I am motivated to do so because much advice regarding new opportunities for teaching beyond one’s home country is so focused on entry-level hiring. This is understandable for numerous reasons. The intense competition for scarce academic position induces a now well-recognized anxiety for most graduate students throughout their training. And as someone who made the leap to securing my first full-time teaching post abroad, I often get very detailed questions about how to engage the emerging market for international legal teaching from those facing these anxieties.

I am generally happy to do so with the caveat that as increasingly common it is for US-trained legal academics to teach abroad, most experiences are still fairly singular. A quick comparison of the internet resources for the entry-level hiring markets in economics and law reveals a wide-gulf in expectations. There are both demand and supply reasons for the late-coming US participation in the international legal market, many of which anyone who works in comparative or transnational law understands well.

But I preface this post with comments on Weber with the same objective as when I carry out conversations about how to access the international legal academic market(s). For all my criticism of Weber’s comparative legal sociology, much of which has been twisted beyond his own intentions, I generally consider Weber an inspiration, and singularly brilliant. When I teach socio-legal courses, I always try to relay to students how pioneering and innovative Weber’s work was in founding modern social science and legal sociology specifically.

But in the realm of comparison, for his work on both economics and religion, Weber was limited by the possibilities of his era. He could not flick a switch and encounter Chinese legal discourse in real-time, nor was he likely to have Chinese interlocutors at the conferences he attended. More concretely, the material sources on Chinese law that he had access to were filtered through the decisively Sinophobic turn that had afflicted European studies of China in the 19^th century. To his credit, his use of comparative examples in his legal sociology was aimed at better explaining Europe than it was to specifically diagnose foreign developments. In fact, when I read Weber’s opus Economy and Society, I am still struck by the industry required to produce such an interdisciplinary and synthetic work in an age with quite different informational technologies readily available. If Weber were alive today, I have little reservation that his depictions of foreign law would not mirror those he produced almost a century past.

An Upgrade to the Federal Judicial History Website

[We note the following release of the Federal Judicial Center.  H/t: Chris Beauchamp and Karen Tani.]

The history and workings of the U.S. court system can now be explored with a variety of easy-to-navigate and interactive tools available on the Federal Judicial Center’s revamped website. The site, which launched this week, is aimed at providing more information in engaging ways to judicial history buffs, academics and researchers, court personnel, and just about anyone with an interest in the Third Branch.

The website has been upgraded on several fronts. It is fully mobile for the first time, allowing users to get what they need on their cell phones or iPads in addition to computers and laptops. The content is more interactive. For example, researchers can conduct custom searches of databases of court case data or Judiciary demographics, which in some instances can also be downloaded. The content is also shareable via email and social media platforms.

[Read on here or jump straight to the new Federal Judicial History page.]

A Remembrance of Clinton Bamberger

Earlier we noted my Georgetown Law colleague Wallace Mlyniec’s appreciation of Clinton Bamberger, who, among other things, directed "the Office of Economic Opportunity’s legal services program before the creation of the Legal Services Corporation."  Here is another, written by Brendan Kearney, formerly a journalist in Baltimore and currently a student in my legal history seminar this semester.

Katz Named Inaugural Stanford Center for Law & History Fellow

The Stanford Center for Law and History, directed by Professor Amalia Kessler, has selected Elizabeth D. Katz as its inaugural fellow. 

Elizabeth Katz is currently a Ph.D. candidate in the History Department at Harvard University, where her research explores the laws governing families. She received a J.D. and M.A. in American Legal History from the University of Virginia School of Law. After law school, she clerked for the Honorable J. Frederick Motz on the United States District Court for the District of Maryland and worked as a litigation associate at Covington & Burling. She is a previous recipient of the ASLH's Kathryn T. Preyer award, as well as the author of several articles and book chapters, including a prize-winning Note in the Virginia Law Review and an article in the William & Mary Journal of Women and the Law.

Do you have other hiring or fellowship announcements to report? Please feel free to email us. We love spreading good news.

van Deusen's Global Indios

We missed this one back in 2015. Nancy E. van Deusen, Queen’s University, published Global Indios: The Indigenous Struggle for Justice in Sixteenth-Century Spain. From the press:

In the sixteenth century hundreds of thousands of indios—indigenous peoples from the territories of the Spanish empire—were enslaved and relocated throughout the Iberian world. Although various laws and decrees outlawed indio enslavement, several loopholes allowed the practice to continue. In Global Indios, Nancy E. van Deusen documents the more than one hundred lawsuits between 1530 and 1585 that indio slaves living in Castile brought to the Spanish courts to secure their freedom. Because plaintiffs had to prove their indio-ness in a Spanish imperial context, these lawsuits reveal the difficulties of determining who was an indio and who was not—especially since it was an all-encompassing construct connoting subservience and political personhood and at times could refer to people from Mexico, Peru, or South or East Asia. Van Deusen demonstrates that the categories of free and slave were often not easily defined, and she forces a rethinking of the meaning of indio in ways that emphasize the need to situate colonial Spanish American indigenous subjects in a global context.

Praise for the book:

"Weaving names and fragments of lives into a richly textured narrative, van Deusen does justice to their stories, placing the reader in the heart of the empire, facing its darkest moment." -Kathryn Lehman

"This book offers many interesting insights into the experiences of indio slaves and servants who ended up in Castile." - Ida Altman

"Van Deusen concentrates her attention on the microcosm of a village society in the area of Seville and on the part played in it by indios imported from America, but she also gives consideration to the indio menials of the New World and to the Asian context from which some slaves were drawn. The evidence throws light mainly on the southern part of Castile, but the book’s perspective is global, sophisticated, admirable, and pathbreaking." - Henry Kamen

"Nancy van Deusen has written a masterpiece of early modern ethnohistory that brings to light a veritable diaspora of indigenous slaves in Spain, while expanding the meaning of indio as a global and changing identifier constructed outside the colonial confines of America." - Alcira Dueñas

Further information is available here.

Gienapp Reponds to Barnett

Here is Jonathan Gienapp's reply to Randy Barnett's response to Professor Gienapp's original post.

Empire and Imperialism: (Mis)Framing Cross-Cultural Engagements

One major shift in modern anthropology occurred when the discipline “came home.” By the mid-20th century the neat division between sociological studies of Western nations and anthropological studies of non-Western societies progressively broke down. Harold Miner penned the classic article “Body Ritual Among the Nacirema” to highlight the necessity and discomfort of subjecting American culture to the same sort of dispassionate analysis of ritual as had been applied with such rigor abroad.

This move spurred ongoing debates about the inter-relationship between theories of interpretation and various subjects of analysis. The thread therein that became increasingly relevant in my experience writing Futility was examining the assumption that those studied were on the other side of various social inequalities. Edward Said’s influential work on the concept of Orientalism spawned numerous analyses about how foreign cultures are represented in academic writing. Implicit in these debates were the implications that arise when these representations are applied across power asymmetries. One book that impacted my own thinking on overseas state-action in this regard was James Scott’s Seeing Like a State, which explored attempts to “modernize” populations by powerful foreign agents who had deemed them underdeveloped.

What then did it mean then for anthropologists to study American law and lawyers, who were most often socially more powerful than anthropologists themselves? The answer to this is still unsettled, and there is still a great deal of discomfit when anthropologists write about the powerful. In my own work, I confronted this tension when my subject of study became American lawyers in China, and where the dominant frames of analysis I inherited from my home discipline were ill-fit to capture the structure of Sino-American relations.

The most common term used by critical scholars to describe almost all American legal interactions abroad in the contemporary era is imperialism. Imperialism is a decidedly capacious concept, as it can capture modes of influence from direct territorial colonialism to a range of cultural and economic influences between and within nations.

In my graduate studies, I first came to the literature on “law and development” not through the frequently cited article by David Trubek and Marc Galanter, “Scholars in Self-Estrangement,” but through their contemporary James Gardner, who wrote an extensive post-mortem on US legal reform efforts in Latin America entitled Legal Imperialism. Gardner’s choice of the frame of imperialism reflected the implicit normative judgment of the word, and tried to capture the ethnocentrism he came to see at the heart of his own work as an exporter of American law.

Yet, the central irony of Gardner’s work was that whatever type of imperialist he had been, he was not only a failed imperialist—in that his and his cohort’s attempt to influence Latin American legal education did not come to fruition—but also that from Gardner’s own analysis it is clear that the project was doomed from the start by a whole host of conceptual and logistical presumptions that the American lawyers engaged in the project carried with them.

Goldstein on the Vice Presidency

Joel K. Goldstein, St. Louis University School of Law, has published History and Constitutional Interpretation: Some Lessons from the Vice Presidency, Arkansas Law Review 69 (2016): 647-694:

This article discusses the use of history in constitutional interpretation by focusing on the Constitution’s provisions relating to the vice presidency.  Professor Goldstein argues that the vice presidency is successful today because it has evolved in response to practice, consequential considerations, and structure, while pushing away from the framers’ original design.

Aykut on Poisoning in Ottoman legal history

Ebru Aykut, Mimar Sinan Fine Arts University published an article on poisoning in Ottoman legal history back in 2016. Here is the abstract for her article, "Toxic Murder, Female Poisoners, and the Question of Agency at the Late Ottoman Law Courts, 1840-1908," Journal of Women's History 28:3 (fall 2016), 114-37:

This article aims to fill a void in the history of Ottoman Empire by examining the role gender played at the nineteenth-century Ottoman courts, which becomes visible only through a close scrutiny of nizamiye court records pertaining to female criminals, more specifically to women who stood trial for poisoning their husbands. So far, in the Ottoman history writing, violent female criminality has rarely attracted the attention of scholars, while female poisoners have only come to the fore in the context of imperial harem narratives. In this article, I focus on the voices of “ordinary” actors involved in such a crime and draw attention to the complex reasons that led women to kill in this particular way as well as the gender-based solidarity networks among women, the defensive strategies employed at the court, and judicial perceptions about female criminals, which regarded women as incompetent agents—nâkısat-ülakl—and denied them agency.

For more on Ebru Aykut's work, here is a Dissertation Review on her dissertation, "Alternative Claims on Justice and Law: Rural Arson and Poison Murder in the 19th Century Ottoman Empire" (Boğaziçi University, 2011).

JOTWELL reviews of interest: Cowie, Joslin, Shugerman, George

We're behind on our announcement of JOTWELL reviews of interest. Here are a bunch:

Earlier this month Christopher Schmidt (IIT Chicago-Kent College of Law/American Bar Foundation) reviewed Jefferson Cowie, The Great Exception: The New Deal and the Limits of American Politics (2016). A taste:

In The Great Exception: The New Deal and the Limits of American Politics, Jefferson Cowie has written a slim, brisk work of historical synthesis in which he seeks to reframe how we understand twentieth-century American political history. In this essay, I describe Cowie’s insightful and provocative revisionist account of the New Deal and its place in American history. At the end of the essay, I consider some questions the book raises for legal historians.

Kerry Abrams (University of Virginia) reviewed Courtney G. Joslin, "Federalism and Family Status," published in 2015 in the Indiana Law Journal. The review begins:

Should the definition of “marriage” be federal? What about the definitions of “parent” and “child”? Courtney Joslin’s carefully written article, Federalism and Family Status, traces the history of how the law has treated family status determinations and sets forth a framework, grounded in the federalism literature, on when family status should be determined on a state-by-state basis or as a federal matter.

Jack Beerman (Boston University) reviewed Jed Handelsman Shugerman, "The Dependent Origins of Independent Agencies: The Interstate Commerce Commission, the Tenure of Office Act, and the Rise of Modern Campaign Finance," published in 2015 in the Journal of Law and Policy. From the first paragraph:

Many law review articles fail to live up to the promise of their titles or abstracts, leaving disappointed readers in their wake. Others have titles that hide the ball. Behind the wordy and somewhat bland title of Jed Shugerman’s 2015 article—The Dependent Origins of Independent Agencies: The Interstate Commerce Commission, the Tenure of Office Act, and the Rise of Modern Campaign Finance—lies a fascinating new take on the origins of independent agencies. 

And, most recently, Mary Ziegler (Florida State University) reviewed Marie-Amélie George, "The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents," which appeared in Volume 34 of the Law and History Review (2016). Here's her take:

Marie-Amélie George’s meticulously researched, provocative study of early gay-and-lesbian custody cases focuses on the power of social science research to reshape both the law and the larger society. George takes us inside the courtroom fights, landmark parenting studies, and conservative strategies that have defined debates about the meaning and origins of homosexuality. Using published opinions, rare trial records, oral histories, personal correspondence, and social-movement records, The Custody Crucible describes how social-science arguments made the difference to gay and lesbian parents seeking to prove that their sexual orientation in no way harmed their children.

Full content is available at JOTWELL (with links embedded above).

Bilder on Originalism and the Gorsuch Nomination

“Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers,” writes Mary Sarah Bilder, Boston College Law, in an op-ed prompted by Judge Gorsuch’s confirmation hearings, in today’s Boston Globe.   And, while I’m on the topic of originalism, here is my Georgetown Law colleague Randy Barnett’s response to Jonathan Gienapp’s blog post, Constitutional Originalism and History, and here is an additional observation by another Georgetown Law colleague, Lawrence Solum.

An Essay Collection on the Timing of Lawmaking

Out soon from Edward Elgar is The Timing of Lawmaking, ed. Frank Fagan, EDHEC Business School, and Saul Levmore, University of Chicago Law School:

Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book revisits older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future?

TOC after the jump.

Kalman's "Long Reach of the Sixties"

Although it won't ship until April 5, you can now pre-order what a Kirkus reviewer calls "an accessible, lucid brief on how our Supreme Court appointment system became the mess that it is.”  It's The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (Oxford University Press), by Laura Kalman, Professor of History at the University of California, Santa Barbara, and a past president of the American Society for Legal History:

The Warren Court of the 1950s and 1960s was the most liberal in American history. Yet within a few short years, new appointments redirected the Court in a more conservative direction, a trend that continued for decades. However, even after Warren retired and the makeup of the court changed, his Court cast a shadow that extends to our own era.

In The Long Reach of the Sixties, Laura Kalman focuses on the late 1960s and early 1970s, when Presidents Johnson and Nixon attempted to dominate the Court and alter its course. Using newly released--and consistently entertaining--recordings of Lyndon Johnson's and Richard Nixon's telephone conversations, she roots their efforts to mold the Court in their desire to protect their Presidencies. The fierce ideological battles--between the executive, legislative, and judicial branches--that ensued transformed the meaning of the Warren Court in American memory. Despite the fact that the Court's decisions generally reflected public opinion, the surrounding debate calcified the image of the Warren Court as activist and liberal. Abe Fortas's embarrassing fall and Nixon's campaign against liberal justices helped make the term "activist Warren Court" totemic for liberals and conservatives alike.

The fear of a liberal court has changed the appointment process forever, Kalman argues. Drawing from sources in the Ford, Reagan, Bush I, and Clinton presidential libraries, as well as the justices' papers, she shows how the desire to avoid another Warren Court has politicized appointments by an order of magnitude. Among other things, presidents now almost never nominate politicians as Supreme Court justices (another response to Warren, who had been the governor of California). Sophisticated, lively, and attuned to the ironies of history, The Long Reach of the Sixties is essential reading for all students of the modern Court and U.S. political history.

That Kirkus reviewer writes, “Not all legal history is as readable as this, nor is it as crisply argued without turgid legalese.”  Those of us who heard Professor Kalman’s plenary address, drawn from the book and her extensive research in the archives and presidential recordings of LBJ and Richard Nixon, already knew that.  We can’t wait to read the book-length development of her argument that the crucial turning point in the recent history of U.S. Supreme Court nominations was not the Bork hearing but an earlier spate of judicial nominations in which combatants fought to preserve or discard the legacy of the Warren Court.  TOC after the jump

Heuschert-Laage on Mongolian legal history

We recently mentioned the new journal, Buddhism, Law & Society. Here is a legal history article from its inaugural issue: Dorothea Heuschert-Laage, University of Bern, "Negotiating Modalities of Succession: The interplay between different legal spheres in eighteenth-century Mongolia," Buddhism, Law & Society 1 (2015-16): 165-94. Here's the abstract:

For 18th-century Mongols living under Qing rule, the imperial state was not the only source of law. Among the rules acknowledged to have binding character were Buddhist legal traditions, customary legal practices as well as rights and duties emanating from dependencies and prerogatives. Yet, the existence of these different legal practices and codes raises many questions about the specific way these different realms of law were interwoven, how Mongols used them and how they could be acting in different spheres of law at the same time. On the basis of archival material, this paper discusses how in the 18th century people switched between different regulatory orders, but also demonstrates that since legal disputes often—maybe even regularly—occurred in more than one legal realm at the same time, it is not always possible to determine where the one sphere began and the other ended. To address complexity of this legal environment, this paper draws on theoretical approaches from legal anthropology, especially research on legal pluralism. I begin with some general remarks on the legal situation in Qing-dynasty Mongolia and the relationship between the law of the Qing state, Buddhist law and local legal conditions. Then, I address two legal cases from the late 18th century that will illustrate how individual litigants and courts chose between different fields of legal reasoning. I argue that the wide spectrum of legal actors within this complex legal environment both enabled and compelled people to switch between different spheres of law.

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.

Kiel to Present in Chicago-Area Legal History Workshop

We hear that the Chicago-area Legal History Workshop will meet Wednesday, April 5, at 4pm, at the American Bar Foundation, 750 N. Lake Shore Drive, 4th Floor Woods Conference Room, where Doug Kiel, Department of History, Northwestern University, will present “Oneida Nation v. Village of Hobart: Indigenous Land Recovery and Settler Resentment.”  For more information, contact Joanna Grisinger, Northwestern University, joanna.grisinger  @northwestern.edu

The Challenges of Comparative Law and Transnational History

One of the ever-impressive aspects of working on transnational legal history is encountering the careers of many pioneering international lawyers. For an academic, one is struck by the polymath capabilities of those who moved between legal cultures and traditions well before the easy access of information that the internet has allowed.

What these internationalized careers help convey is that transnational law, and thus transnational legal history, is always concurrently engaged in comparative law. Distinct bodies of law formally divorced from any particular nation state, say WTO dispute resolution, are ever a hybrid amalgam of various national traditions, in construction and more so in practice.

In my own graduate education, I came to this realization first through the work of Yves Dezalay and Bryant Garth. Their first book, Dealing in Virtue, highlighted both this polymath quality in early international arbitrators and that the focal function of their abilities was not so much to practice professionally in distinct national settings (though many did) but to be able to navigate the linguistic and practical challenges of transnational spaces where these influences collided.

During my research for Futility, I came to appreciate this for many of the missionaries I studied. The term “cosmopolitan” is often used quite superficially, and today can simply denote a well-funded travel itinerary that substitutes taxi driver conversations for cultural immersion. By contrast, I was taken with, and without any personal religious sentiment, the serious intellectual rigor with which many dedicated missionaries confronted their transnational, inter-cultural challenges.

Even though I would come to be critical of the overall impact of missionaries on Sino-American relations, I could find little fault with the reflexive positions many missionaries eventual came to. John Nevius was one example who challenged my own preexisting assumptions about the critical cosmopolitanism of missionaries, and who was considered an iconoclast in Chinese missionary circles for his committed focus on local ownership and criticisms of naïveté about unequal power relationships in inter-cultural contexts

Wu Jinxiong (Wiki)

For Chinese actors, this type of relative sophistication was matched by difficulties navigating stark power asymmetries both with outside actors and their own domestic regimes. In the context of law, this led many lawyers to struggle with representational strategies at home while trying to critically understand the foreign legal systems and ideas they engaged with. A key example here was Wu Jingxiong (吳經熊) or John Wu, a Catholic convert who wrote throughout his career on Asian and Western legal systems in critical juxtaposition. Wu also actively engaged as a liberal minded reformer within the authoritarian Guomingdang regime who putatively governed Chinese from the late 1910s to the late 1940s. His life was a decidedly transnational one, but at its core one of a comparative lawyer.

Schlag on Hohfeld, Liberalism, and Adjudication

Pierre Schlag, University of Colorado Law School, has posted Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions), forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, ed. Shyam Balganesh, Ted Sichelman and Henry Smith (Cambridge University Press, 2018):

Wesley Newcomb Hohfeld’s 1913 article, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” is in some ways a stunning success. It has played an important role in shaping a variety of schools of thought—analytical jurisprudence, legal realism, law and economics, critical legal studies, and property theory. At the same time, Hohfeld’s platform, has been largely ignored among the judiciary and among those legal academics who embrace judicial or doctrinal discourse.

In this chapter, I immediately put aside the easy and obvious explanations (without prejudice) for a deeper account—namely, the suggestion that there are ongoing tensions between the Hohfeldian platform on the one hand and liberalism as well as liberal forms of adjudication on the other. The Hohfeldian platform enables us see in liberalism and its forms of adjudication certain aspects that neither endeavor might otherwise want to recognize and address.

The chapter closes with an entreaty that, in this particular moment of political and legal uncertainty, legal thinkers move beyond the cloisteredlu comforts of liberal thought and consider the organization of state and civil society in broader, even if more challenging, theoretical terms.

We love Schlag's characterization of Hohfeld’s “extremely elegant, irreducible, and ostensibly universal set of relations of form” as “double-entry bookkeeping for law.”