News of the Edinburgh Centre for Legal History

The Edinburgh Legal History Blog published John W. Cairns’s laureation address upon the occasion of the University of Edinburgh’s conferral of the degree of LL.D. honoris causa to Professor Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford.  The conferral of the degree upon Professor Ernst and of doctorates upon two Ph.D. students in legal history–Asya Ostroukh, for“Reception of the French Civil Code in Francophone Switzerland, Louisiana, and Quebec: A Socio-Legal Study," and Ilya Kotlyar, for “The Influence of the European Jus Commune on the Scots law of succession to moveables: 1560-1700”–“encouraged the Centre for Legal History, with the support of the School of Law, to organise a small conference entitled ‘Directions in Legal History and Roman Law,’ involving the new graduates and some current PhD students, to showcase the diversity of the research in the Centre."  Professor Cairn’s illustrated report is here.

Landmark Cases in Restitution

We have one more newly paperbacked volume for you in Hart's Landmark Cases series: University College London's Charles Mitchell and Paul Mitchell, ed., Landmark Cases in the Law of Restitution. We missed the hardback edition in 2006, so here is the full information. From Hart Publishing:

It is now well established that the law of unjust enrichment forms an important and distinctive part of the English law of obligations. Restitutionary awards for unjust enrichment and for wrongdoing are clearly recognised for what they are. But prior to the last decade of the twentieth century the very existence of a separate law of unjust enrichment was controversial, its scope and content matters of dispute. In this collection of essays, a group of leading scholars reappraise some of the landmark cases in the area. Their investigations shed new light on some classic decisions, and persuasively invite readers to think again about some well-known authorities.

TOC after the jump.

Grant: Negotiating Agreement in Congress

We were recently received the following announcement from Anxieties of Democracy, a project of Social Science Research Council:

The Negotiating Agreement in Congress Research Grants are aimed at scholars who seek to understand the conditions under which political negotiation can be achieved (or not achieved) in Congress and other legislative arenas. The grants provide up to $10,000 of funding for each awardee, to be used for up to one year of research and writing. Applicants must have a PhD in hand by the application deadline and must hold an affiliation with a college or university based in the United States. For more information, please visit [here] or contact us at democracy@ssrc.org.

Symposium: Kessler's "Inventing American Exceptionalism"

SLR Online, the digital sidekick of the Stanford Law Review, has a five-star book review symposium on the Stanford Law School's Amalia D. Kessler’s Inventing American Exceptionalism, with an introduction by Bernadette Meyler, reviews by Edward A. Purcell, Jr., Mark Tushnet, and Richard White and a response by Professor Kessler.

Ablavsky on the Rise of Federal Title

Gregory Ablavsky, Stanford Law School, has posted The Rise of Federal Title, which is forthcoming in the California Law Review:

Why did, and does, the federal government own most of the public domain within the United States? The standard historical answers — that states ceded their lands to the federal government and the Property Clause confirmed this authority — turn out to be incomplete, masking a neglected process in the 1780s and ‘90s in which legitimate ownership came to derive primarily from the federal government.

This transformation, which I call the rise of federal title, involved two intertwined controversies. The first was a federalist struggle over whether the federal government could retain land in former territories admitted as states notwithstanding the promise of equal footing. The second concerned the nature of ownership. As states’ unregulated land grants created endless litigation, claimants turned to the federal government to resolve conflicting rights and to create a land system that offered certain title. Both processes vindicated federal ownership, with the consequence that the federal government enjoyed a monopoly on one of the nation’s most important sources of wealth.

This history proves highly relevant. The rise of federal title is under threat, as many western states, and the Republican Party platform, have spun a theory based on erroneous history that argues federal landholding is unconstitutional. Simultaneously, in constructing a principle of equal sovereignty, the Supreme Court’s recent Shelby County decision relied on equal footing cases that ignored this early history. But the implications transcend immediate doctrinal concerns: this Article suggests theoretical interventions about the interplay between sovereignty and property, and commodification and regulation, in American history.

Landmark Cases in Contracts

Here’s another volume in Hart’s Landmark Cases series that is now out in paperback: Landmark Cases in the Law of Contract, edited by Charles Mitchell and Paul Mitchell, both of University College London. We missed the hardback version when it came out in 2008, so here is the full account. From the press:

Landmark Cases in the Law of Contract offers twelve original essays by leading contract scholars. As with the essays in the companion volumes in this series, each essay takes as its focus a particular leading case, and analyses that case in its historical or theoretical context. The cases range from the early eighteenth- to the late twentieth-centuries, and deal with an array of contractual doctrines. Some of the essays call for their case to be stripped of its landmark status, whilst others argue that it has more to offer than we have previously appreciated. The particular historical context of these landmark cases, as revealed by the authors, often shows that our current assumptions about the case and what it stands for are either mistaken, or require radical modification. The book also explores several common themes which are fundamental to the development of the law of contract: for instance, the influence of commercial expectations, appeals to 'reason' and the significance of particular judicial ideologies and techniques.

TOC after the jump.

Alexander on a Landmark Copyright Decision in Georgian England

James R. Alexander, University of Pittsburgh at Johnstown, has posted Libel and Copyright in the Satire of Peter Pindar:

In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that Wolcot should first establish his property in the contested works at law before seeking equitable relief, to thereby clear away any question of their criminality. This was arguably the first application to copyright of an eighteenth-century maxim that there could be no property in criminally-libelous literary works. Almost immediately and for over the next century in equity cases and both English and American legal treatises, Eldon’s ruling was interpreted as establishing the Court as censor morum, authorized under common law to rule exceptions to copyright protection based on a determination of illicit or illegal content, regardless of whether copyright statutes specified content-based exceptions. However, a careful review of the Chancery records reveals the ruling warrants a more tempered reading, and that the long-assumed legal precedent may have followed a hoped-for rather than established principle.

Elson on "A Notorious Divorce in Early Twentieth-Century America"

New from Temple University Press: Gross Misbehavior and Wickedness: A Notorious Divorce in Early Twentieth-Century America (June 2017), by Jean Elson (University of New Hampshire). A description from the Press:

The bitter and public court battle waged between Nina and James Walker of Newport, Rhode Island, from 1909 to 1916 created a sensation throughout the nation, with lurid accounts of their marital troubles fueling widespread gossip. The ordeal of this high-society couple, who wed as much for status as for love, is one of the prime examples of the growing trend of women seeking divorce during the early twentieth century.

Gross Misbehavior and Wickedness—which takes its title from the charges Nina levied against James for his adultery (with the family governess) and extreme cruelty—recounts the protracted legal proceedings in juicy detail.

More information is available here.

Landmark Cases in Torts

Another volume in the Landmark Cases by Hart Publishing came out in paperback in 2016. We didn't post on the hardback version when it originally came out in 2010, so here are the full details on Landmark Cases in the Law of Tort, edited by Charles Mitchell and Paul Mitchell, both of University College London. From the press:

Landmark Cases in the Law of Tort contains thirteen original essays on leading tort cases, ranging from the early nineteenth century to the present day. It is the third volume in a series of collected essays on landmark cases (the previous two volumes having dealt with restitution and contract). The cases examined raise a broad range of important issues across the law of tort, including such diverse areas as acts of state and public nuisance, as well as central questions relating to the tort of negligence. Several of the essays place cases in their historical context in ways that change our understanding of the case's significance. Sometimes the focus is on drawing out previously neglected aspects of cases which have been – undeservedly – assigned minor importance. Other essays explore the judicial methodologies and techniques that worked to shape leading principles of tort law.

So much of tort law turns on cases, and there are so many cases, that all but the most recent decisions have a tendency to become reduced to terse propositions of law, so as to keep the subject manageable. This collection shows how important it is, despite the constant temptation to compression, not to lose sight of the contexts and nuances which qualify and illuminate so many leading authorities.

TOC after the jump.

Sunday Book Review Roundup

The Guardian carries a review of Ibram X. Kendi's "brilliant and disturbing" Stamped from the Beginning: The Definitive History of Racist Ideas in America.

At the New Books Network, William Davenport Mercer speaks about his Diminishing the Bill of Rights Barron v. Baltimore and the Foundations of American Liberty.

Public Books carries a review of James Q. Whitman's Hitler’s American Model: The United States and the Making of Nazi Race Law.   According to the review, "Drawing on meeting transcripts, memos, and published work, Whitman argues that US models inspired the lawyers working to craft the Nuremburg laws that stripped Jews of citizenship, barred mixed marriages, and prohibited what the Americans called “miscegenation.”  The reviewer suggests that Whitman's story is a disturbing but timely reminder of those "who wove racism into the fabric of our legal system" in a not-so-distant past.

At The Atlantic is a review of Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America.

In The Washington Post is a review of Roy L. Brooks' The Racial Glass Ceiling: Subordination in American Law and Culture. 

H-Net has posted a review of Jenna Reinbold's Seeing the Myth in Human Rights.  Also reviewed at H-Net is Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights by Lennard J. Davis..

At the New Republic is a review of Scott Cooper's The Fall of Heaven: The Pahlavis and the Final Days of Imperial Iran. 

HNN carries a review of Nancy Weiss Malkiel's "Keep the Damned Women Out': The Struggle for Coeducation".

Geoff Mann's In the Long Run We Are All Dead: Keynesianism, Political Economy, and Revolution is reviewed at the Los Angeles Review of Books.  Also reviewed at LARB is The Origin of the Jews The Quest for Roots in a Rootless Age by Steven Weitzman.  Finally, The Perils of “Privilege” Why Injustice Can’t Be Solved By Accusing Others of Advantage by Phoebe Maltz Bovy and The Age of Responsibility: Luck, Choice, and the Welfare State by Yascha Mounk are also reviewed in an essay on the site.

In the New Statesman is a review of Peter Ackroyd's Queer City: Gay London from the Romans to the Present Day.

Edward Balleisen's Fraud: An American History from Barnum to Madoff has received a thoughtful review in The American Interest.

In Dissent's summer issue is a review of Melinda Cooper's Family Values: Between Neoliberalism and the New Social Conservatism. The review lauds Cooper's "magisterial" monograph for the work it does in theorizing deregulated capitalism's reliance on "reasserting hierarchies of gender and sexuality."  Across a broad range of themes, the reviewer argues, Cooper offers readers a "history that uncovers the laws and doctrines that structure the precarious families of the present, demonstrating that the history of gender and the family are not merely cultural artifacts, while the real work of capitalist expansion continues elsewhere."

At The New Rambler is a review of Geoffrey Stone's  Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.

Weekend Roundup

• There was lots of legal history action at the Law and Society Association meeting in Mexico City recently. We posted this before the conference on the Law and History CRN's many panels. Here are some details on what the South Asia CRN was up to.

• More from the Washington Post's Made by History section: Susanna Blumenthal (University of Minnesota) on "the fatal flaw in the court's understanding of insanity"; Katy Long on how "Chinese exclusion exposes the limits of the courts' power"; and Ben Railton (Fitchburg State University) on "How two Massachusetts slaves won their freedom -- and then abolished slavery."

•  On Sunday, July 23, 2017 at 2:00 in the Henry A. Wallace Center, the Franklin D. Roosevelt Presidential Library and Museum hosts Greg Robinson, Professor of History at the  l'Université du Québec À Montréal, on the conflict between Franklin and Eleanor Roosevelt over the incarceration of Japanese Americans during World War II.  Professor Robinson is the author of By Order of the President: FDR and the Internment of Japanese Americans.  Attendees may view the Roosevelt Library's new special exhibit, Images of Internment, free of charge, following the program. This is a free public event but registration is required.

• Job announcement: “The Department of History at the University of Toronto invites applications for a tenure-stream appointment in the area of Nineteenth Century United States History.  The appointment will be at the rank of Assistant Professor, and begin on July 1, 2018.”  More.

• ICYMI: Annette Gordon-Reed on removing Confederate statues (H/t: NNN).   Lisa W. Foderaro, A Constitutional Convention for New York? This May Be the Year, in the NYT.  Simon Haeder, Assistant Professor of Political Science, West Virginia University, on What happens when the federal government eliminates health coverage? (H/t HNN).  Seth Barrett Tillman's slides from his talk, Ex parte Merryman: Myth, History, and Scholarship, at the Federalist Society’s faculty conference in 2016.

• Update: Constitutional, the successor to the popular Presidential podcast of the Washington Post's Lillian Cunningham, launches July 24.

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

Muller on Voter Registration Battles, Then and Now

Derek T. Muller, Pepperdine University School of Law, has published What’s Old Is New Again: The Nineteenth Century Voter Registration Debates and Lessons About Voter Identification Disputes, Washburn Law Journal 56 (2017): 109-121.  Cribbing from the introduction:

There is a raging debate over the administration of elections, which is undoubtedly familiar to many. There has been a significant increase in a particular kind of election law pertaining to how states go about administering elections. These laws have largely been promulgated by Republicans and target election fraud—actual or perceived—in an attempt to restore some integrity to the electoral process. Democrats, for the most part, have opposed these laws and often critiqued them as a kind of voter suppression tactic, one that disproportionately burdens racial minorities, the poor, and those who have recently moved into a precinct. Over the years, these positions have hardened into fairly partisan and seemingly intractable positions.

This story, of course, is also the story of the voter registration debates in late nineteenth century America.

Rosenblum on Jewish Dietary Laws

Jordan D. Rosenblum, University of Wisconsin–Madison has published The Jewish Dietary Laws in the Ancient World with Cambridge University Press. From the publisher:

In The Jewish Dietary Laws in the Ancient World, Jordan D. Rosenblum explores how cultures critique and defend their religious food practices. In particular he focuses on how ancient Jews defended the kosher laws, or kashrut, and how ancient Greeks, Romans, and early Christians critiqued these practices. As the kosher laws are first encountered in the Hebrew Bible, this study is rooted in ancient biblical interpretation. It explores how commentators in antiquity understood, applied, altered, innovated upon, and contemporized biblical dietary regulations. He shows that these differing interpretations do not exist within a vacuum; rather, they are informed by a variety of motives, including theological, moral, political, social, and financial considerations. In analyzing these ancient conversations about culture and cuisine, he dissects three rhetorical strategies deployed when justifying various interpretations of ancient Jewish dietary regulations: reason, revelation, and allegory. Finally, Rosenblum reflects upon wider, contemporary debates about food ethics.

TOC after the jump.

Roberts's "Four Crises of American Democracy"

Alasdair Roberts, Professor of Public Affairs at the Truman School of Public Affairs, University of Missouri (and soon to be director of the UMass Amherst School of Public Policy) has published Four Crises of American Democracy: Representation, Mastery, Discipline, Anticipation, with the Oxford University Press:

In the last decade, observers of Western governments have become increasingly concerned about an apparent crisis of democracy. They argue that endemic corruption, inadequate services, and increasing voter disaffection have produced a dire result: a global resurgence of authoritarianism. The political climate surrounding the 2016 presidential election in the United States has only reinforced the perception of democratic crisis.

In Four Crises of American Democracy, Alasdair Roberts locates the U.S.'s recent bout of democratic malaise in a larger context, arguing that it is the latest in a series of very different crises that have plagued America throughout the entire post-Civil War era. He focuses on four crises, describing the features of each and outlining solutions the government adopted in response. The first crisis-the “crisis of representation”-occurred in the late nineteenth and early twentieth centuries, and was dominated by fears of plutocracy and debates about the rights of African Americans, women, and immigrants. The “crisis of mastery” spanned the years 1917-1948, and focused on building administrative capabilities so that government could better manage both an increasingly complex economy and volatile international system. The “crisis of discipline,” beginning in the 1970s, was triggered by the perception that voters and special interests were overloading governments with unreasonable demands, and the response was to limit government's reach. The current crisis, what Roberts calls the “crisis of anticipation,” is ongoing. Roberts pronounces it a future-oriented crisis, preoccupied with the capacity of democratic systems to deal with long-term problems such the rise of China and climate change.

Roberts suggests that democratic solutions to this present crisis will win out over more authoritarian ones, as occurred in previous crises. Features like societal openness and pragmatism give the democratic model a distinct advantage. A powerful account of how successive crises have shaped American democracy, this is essential reading for anyone interested in the forces driving the current democratic malaise both in the U.S. and around the world.

ASLH 2017

[We have the following announcement.]  Registration is now open for the American Society for Legal History Annual Meeting in Las Vegas, October 26-29, 2017.

The primary hotel is the Red Rock Casino Resort, but a block of sleeping rooms is also available at conference rates at Boulder Station, a recently-unionized, less expensive property. The Friday afternoon and evening program, including panels, the plenary address, and the plenary reception, will take place on the campus of the University of Nevada, Las Vegas. (UNLV will provide bus transportation between Red Rock and campus.) Friday morning and Saturday sessions will be at Red Rock. As part of the Friday afternoon program, there will be a special pre-plenary panel on “Unionization Strategies in Challenging Times,” with the participation of Richard McCracken, general counsel of Unite Here, the parent union for the Culinary Workers Union, which is currently campaigning for recognition as the bargaining agent for non-gaming workers at Red Rock Casino Resort. Further details are available [here].

Carney on the Background of Modern American Business Law

William J. Carney, Emory University School of Law, has posted The Background of Modern American Business Law, which is to appear in The Journal Jurisprudence 2017: 93:

This is an attempt to introduce lawyers trained in the civil law tradition about the unique features of the common law and equity traditions that influence American business entity law. The approach is historical, and traces the development of equitable ownership and equitable duties to the 14th century. It also introduces the uniquely English notion of the Internal Affairs Rule as the source of jurisdictional competition and innovation in the American system. It then proceeds with a more conventional discussion of the operation of American laws governing business entities.

Baum on Ideology in the Supreme Court

New from Princeton University Press: Ideology in the Supreme Court (2017), by Lawrence Baum (Ohio State University). A description from the Press:

Ideology in the Supreme Court is the first book to analyze the process by which the ideological stances of U.S. Supreme Court justices translate into the positions they take on the issues that the Court addresses. Eminent Supreme Court scholar Lawrence Baum argues that the links between ideology and issues are not simply a matter of reasoning logically from general premises. Rather, they reflect the development of shared understandings among political elites, including Supreme Court justices. And broad values about matters such as equality are not the only source of these understandings. Another potentially important source is the justices' attitudes about social or political groups, such as the business community and the Republican and Democratic parties.

The book probes these sources by analyzing three issues on which the relative positions of liberal and conservative justices changed between 1910 and 2013: freedom of expression, criminal justice, and government "takings" of property. Analyzing the Court's decisions and other developments during that period, Baum finds that the values underlying liberalism and conservatism help to explain these changes, but that justices' attitudes toward social and political groups also played a powerful role.
Providing a new perspective on how ideology functions in Supreme Court decision making, Ideology in the Supreme Court has important implications for how we think about the Court and its justices.

A few blurbs:

"Close observers of the Supreme Court know that sometimes its conservatives and liberals flip sides. Using the examples of free speech, criminal law, and takings, with glances at other topics, Lawrence Baum develops a systematic account of why and how these shifts occur. In doing so, he deepens our understanding of how ideology--apart from political theories and preferences about outcomes--shapes the Court’s decisions." --Mark Tushnet

"Baum offers a unique perspective on the Supreme Court. He makes a compelling case for reconsidering our traditional understanding of ideological voting on the Court, suggesting that justices' votes may be determined by their disposition toward particular litigants. Presenting a challenging new way to think about decision making on the Court, this is an important book." --Kevin T. McGuire

More information is available here.

Mayeri reviews Nadasen, "Household Workers Unite"

Over at JOTWELL, Serena Mayeri (Penn Law) has posted an admiring review of Premilla Nadasen's Household Workers Unite: The Untold Story of the African American Women Who Built a Movement (Beacon Press, 2015). Here's the first paragraph:

Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.

Read on here.

Join ASLH!

[We have the following announcement.]  On behalf of the American Society for Legal History (ASLH), we invite all legal historians, practitioners, graduate and law students, and interested parties to join the ASLH or renew their memberships.

The American Society for Legal History is a nonprofit membership organization dedicated to fostering scholarship, teaching, and study concerning the law and institutions of all legal systems, both Anglo-American and those that do not operate in the Anglo-American tradition. Founded in 1956, the Society sponsors the Law and History Review and Studies in Legal History.

Membership in the ASLH offers numerous benefits for scholars of legal history. The Society holds annual conferences to foster intellectual development in legal history worldwide. While the organization is based primarily in the United States, its membership and its scope are international.

With membership comes:
-fellowship and intellectual stimulation of your peers
-networking opportunities with scholars across legal history
-subscription to Law and History Review
-reduced rates for the ASLH 2017 Annual Meeting in Las Vegas, held October 26-29

Join or renew by July 15 to insure that you may vote in the upcoming ASLH election. Join today here.  Please contact Dr. Patricia Minter, Membership Committee Chair, for further information Patricia.minter@wku.edu. 

Plesch on "The Lost History of Prosecuting Axis War Crimes"

Here's a recent release from Georgetown University Press: Human Rights after Hitler: The Lost History of Prosecuting Axis War Crimes (March 2017), by Dan Plesch (University of London). A description from the Press:

Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.

From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC’s files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including “water treatment,” wartime sexual assault, and crimes by foot soldiers who were “just following orders.” Plesch’s book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.

Lots more information is available here, at the book's website.

Lambert's "Law and Order in Anglo-Saxon England"

Tom Lambert, a Fellow of Sidney Sussex College, Cambridge, has published Law and Order in Anglo-Saxon England (Oxford, Oxford University Press, 2017): 

Law and Order in Anglo-Saxon England explores English legal culture and practice across the Anglo-Saxon period, beginning with the essentially pre-Christian laws enshrined in writing by King AEthelberht of Kent in c. 600 and working forward to the Norman Conquest of 1066. It attempts to escape the traditional retrospective assumptions of legal history, focused on the late twelfth-century Common Law, and to establish a new interpretative framework for the subject, more sensitive to contemporary cultural assumptions and practical realities.

The focus of the volume is on the maintenance of order: what constituted good order; what forms of wrongdoing were threatening to it; what roles kings, lords, communities, and individuals were expected to play in maintaining it; and how that worked in practice. Its core argument is that the Anglo-Saxons had a coherent, stable, and enduring legal order that lacks modern analogies: it was neither state-like nor stateless, and needs to be understood on its own terms rather than as a variant or hybrid of these models. Tom Lambert elucidates a distinctively early medieval understanding of the tension between the interests of individuals and communities, and a vision of how that tension ought to be managed that, strikingly, treats strongly libertarian and communitarian features as complementary. Potentially violent, honour-focused feuding was an integral aspect of legitimate legal practice throughout the period, but so too was fearsome punishment for forms of wrongdoing judged socially threatening. Law and Order in Anglo-Saxon England charts the development of kings’ involvement in law, in terms both of their authority to legislate and their ability to influence local practice, presenting a picture of increasingly ambitious and effective royal legal innovation that relied more on the cooperation of local communal assemblies than kings’ sparse and patchy network of administrative officials.

An online review by Dr Philippa Byrne is here.  TOC after the jump.

Ernst on TR on the Structure of Government

Julia L. Ernst, North Dakota School of Law, has published The Legacy of Theodore Roosevelt’s Approach to Governmental Powers, North Dakota Law Review 92 (2016): 309-363:

TR 1899 (NYPL)

This Article explores how Theodore Roosevelt viewed the structure of government within the United States in the late 1800s and early 1900s.  It particularly considers his standpoints on the interrelationships between the three branches of government–executive, legislative, and judicial–at both the federal and state levels.  More specifically, it investigates Roosevelt’s perspectives on presidential use of executive orders to take action in the face of Congressional inertia in the federal government.  Considering state governments, it examines his views in favor of restricting the independence of the judiciary.  The Article suggests that, while Theodore Roosevelt’ s approach to the judiciary has not been followed, he helped set the stage for the active use of executive orders in shaping the federal laws, which has substantially  influenced  the  relationship  between  the  president  and Congress.  Whether or not one agrees with presidential use of executive orders to effectuate major legal and policy changes, Roosevelt’s legacy in originating the extensive use of this practice remains significant today.

Weekend Roundup

• From Notches: "A Portrait of Jane Crow." Rosalind Rosenberg (Barnard College) discusses her recently published book on Pauli Murray.

• The Washington Post will launch a new podcast "about the history of the U.S. Constitution and the great debates that have shaped it over time."

• And much more from the Washington Post: Earlier this week we mentioned the new "Made by History" section. Recent contributions include Sarah Milov (University of Virginia) on learning from the tobacco playbook and Bruce Schulman (Boston University) on the relationship between federalism and liberal policymaking.

• Over at the National Constitution Center's blog, Serena Mayeri (Penn Law) "explains what Loving v. Virginia did and did not do for marriage and racial equality in the United States."

• From Legal Planet: Dan Farber (UC Berkeley) on "environmental originalism." (h/t Environment, Law, and History) 

•  From the blog of the Maastricht European Private Law Institute: Agustín Parise on Comparative Legal History: It is Time to Speak of an Autonomous Discipline?

• Judge Jon O. Newman will deliver the 13th Annual Robert H. Jackson Lecture on the Supreme Court of the United States in the Hall of Philosophy at the Chautauqua Institution at 4PM on Wednesday, August 16, 2017.

• The Italian Society of Law and Economics welcomes submissions of papers on any topic regarding the Economic Analysis of Law [including the “History of Law and Economics Thought”] for its 13th annual conference to be held in Rome at LUMSA University on December 15-16, 2017.

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

Knapp on the New Jersey Plan

Aaron T. Knapp, a visiting assistant professor at the Boston University School of Law, has posted The New Jersey Plan and the Structure of the American Union, forthcoming in the Georgetown Journal of Law and Public Policy 15 (2017):

The scholarly consensus says that of the constitutional plans which received consideration at the Federal Convention in 1787, the plan introduced by the Virginia delegation (the so-called “Virginia Plan”) exerted the greatest influence on the final document. The opposite judgment has befallen the plan for reform introduced by the New Jersey delegation in mid-June—the so-called New Jersey Plan. Citing the nationalists’ tirades against it, its purportedly backward-looking provisions, and the delegates’ ultimate vote to table it on June 19, scholars have all but relegated the New Jersey Plan to the ash heap of history.

This article challenges the cutting-room floor narrative surrounding the New Jersey Plan. It demonstrates that, notwithstanding the June 19 vote, the New Jersey Plan’s core tenets went on to shape the fundamental structure of the American union as memorialized in the Constitution to a much greater degree than scholars have recognized. Its influence on the Constitution breaks down into three primary components, analyzed respectively in Parts I, II, and III. First, introduction of the New Jersey Plan effectuated a shift in the proposed constitutional order whereby the “national” government envisaged by the Virginia Plan became a “federal” one that preserved the sovereignties of the several states. Second, provisions from the New Jersey Plan that the delegates later reincorporated into the Constitution, deserve primary credit for constitutionalizing judicial review of legislation. Finally, the New Jersey Plan significantly influenced the Committee of Detail’s determination to replace the government with unenumerated police powers proposed by the Virginia Plan, with a government of defined powers.

In short, arguably the Constitution’s most distinctive structural features came from the New Jersey Plan and not the Virginia Plan. Yet the New Jersey Plan’s influence on the American constitutional order did not terminate with the signing of the Constitution in September 1787. Concluding remarks show that during the ratification debates and in the decade or so after ratification, early Americans placed enduring constructions on the Constitution that reflected the core principles underlying the New Jersey Plan, even where the Constitution’s text counseled a contrary result.

CFP: Mixed Familial Relations Viewed Globally and Comparatively

[We have the following call for papers for a special issue in The History of the Family: An International Quarterly, devoted to Mixed Marriage, Interracial Relationships and Binational Couples from Global and Comparative Perspectives and guest edited by Julia Moses, University of Sheffield/University of Göttingen and Julia Woesthoff, DePaul University.]

In response to the mass globalization of the twenty-first century and associated migration, a recent boom in social-scientific research has analyzed various manifestations of binational and interracial romantic relationships in the present and recent past. This theme issue seeks to historicize this research by drawing on key case studies from across the world and across time and drawing on relevant historiography and theoretical literature. This call for proposals welcomes both quantitative and qualitative studies that shed light on individual experiences of, as well as various practices of regulating, ‘interracial’, ‘binational’ and ‘mixed marriages’. The issue aims to parse the assumptions behind these contested concepts and to trace how these categories have shifted over time and space. In doing so, it also seeks to chart how intermarriages and other forms of interracial, binational and cross-confessional relationships took shape: who participated in these relationships? How common were they, and in which circumstances were they practiced (or banned)? Contributions investigating relationships involving regions in the Americas, Africa and Asia are particularly welcome.

JLH 38:2

The Journal of Legal History 38:2 (2017), devoted to the legal history of emotion, is out.  ESCLH Blog has the TOC.

Update: ESCLH Blog also has the TOC for Rechtsgeschiedenis/Revue d'histoire du droit/Legal History Review 85:1-2 (2017)

Morag-Levine on Sociological Jurisprudence

Noga Morag-Levine, Michigan State University College of Law, has posted Sociological Jurisprudence and the Spirit of the Common Law, which is forthcoming in the Oxford Handbook of European Legal History, edited by Markus D. Dubber and Christopher Tomlins.

Roscoe Pound’s Sociological Jurisprudence has long been understood to bear the mark of continental, primarily German writers. Notwithstanding this influence, the project represented, in large measure, an effort to stem transatlantic-inspired threats to the future of the common law. Most directly at issue was the rise of social science as an alternative, civil-law-based, administrative paradigm that simultaneously threatened the academic interests of the law schools, the professional concerns of the bar, and the core constitutional principles of judicial supremacy. Within this context, Pound selectively drew on European social legal theory with the goal of saving the common law from itself. The project, as it ultimately evolved, consisted of two primary proposals for reform, one focused on the universities, the other on the courts.

Late 19th-century German social science and attendant theories of the state aspired to an integrated field linking legal, political, social, and economic theories. Within this model the social science disciplines, rather than the law, would emerge as the proper academic homes for research on constitutional, legislative, administrative, and related public law subjects. Through the injection of social-scientific content into legal pedagogy and research, sociological jurisprudence countered with a socio-legal paradigm that, together with lowering the barriers separating law from society, also ensured that law would continue to exist as a distinct field of inquiry in the universities and beyond.

Where the courts were concerned, sociological jurisprudence answered contemporary pressures for radical curtailment of judicial review with a narrow construction of the deficiency at the core of the Lochner Court’s reasoning as mechanical, or formalist. It was a problem definition that successfully served to deflect direct attacks on judicial supremacy by shifting the conversation away from the very authority of courts to scrutinize the facts justifying social legislation to the methods they ought to employ in this regard. Obscured in the process was the extent to which the constitutional battle lines of the early twentieth century were drawn between rival common-law- and civil-law-based paradigms of administrative governance. The ease with which formalist constructions of the Lochner Court took hold—even as the Lochner justices themselves insisted on reviewing the underlying legislative facts—is difficult to explain, other than through the widely shared common-law sensibilities of progressive-era lawyers, well beyond Pound. In this, sociological jurisprudence seemingly offers legal historians one more lesson on the ways in which historical narratives that are consonant with the values of legal elites are liable to gain purchase.

Dubber on 19th-Century European Criminal Law

Markus D. Dubber, University of Toronto Faculty of Law, has posted Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Century, which is forthcoming in the Oxford Handbook of European Legal History, edited by him and Christopher Tomlins:

This paper has two parts. The first part reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth century. The second part lays out an alternative, two-track, conception of "modern" European criminal legal history. It does this by taking an upside-down - or outside-in - view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.

Baker on Osgoode's Marginalia

William Osgoode (wiki)

G. Blaine Baker, McGill University, has posted Musings and Silences of Chief Justice William Osgoode: Digest Marginalia about the Reception of Imperial Law, which is forthcoming in volume 54 of the Osgoode Hall Law Journal:

This essay focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode's late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of 'British justice' to the colonies. It concludes that role was limited, mostly by Osgoode's greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.

"Historians Enter the Fray"

At some point during my education as a historian, I came to believe that "presentism" was a professional sin. To me, this meant a few things: first, the good historian should not allow current events to influence her interpretations of the past, and second, she should be extremely circumspect in commenting on the present or the future. I soon realized the naivete of the first "rule." It is one thing to guard against anachronism, but another to imagine that we can ever escape our own context. The second "rule," I discovered, had a looser hold among scholars of law and history, thanks to the norms within legal academia. And today, in the wake of the 2016 Presidential election, I'm no longer sure it's a rule at all.

The occasion for these musings is a collection of articles and initiatives that have popped up in my Twitter feed and inbox of late. Together they suggest a movement among historians to go beyond simply, say, correcting the record about Frederick Douglass to offering sharp, accessible content to the reading public:

• The Washington Post has provided a platform for historians to "enter the fray," via its new "Made by History" section. As editors-in-chief of the new section, historians Brian Rosenwald (University of Pennsylvania) and Nicole Hemmer (University of Virginia - Miller Center) plan to offer daily doses of historical analysis, all designed "to situate the events making headlines in their larger historical context." Contributors so far include legal historian Sarah Seo (Iowa Law) (on the status of the Constitution in America's borderlands).

• Historian social media is abuzz over "How To Avoid a Post-Scholar America," a recent essay in the Chronicle of Higher Education by historians Keisha N. Blain (University of Pittsburgh) and Ibram X. Kendi (American University). "In the age of Trump," the authors write, "scholars must step out of the shadows of their libraries, their labs, and their classrooms — or risk the day when those libraries, labs, and classes will not be able to cast shadows. Today more than ever, scholars must produce scholarship for the public."

• Over at the website of the American Friends Service Committee, legal historian and Mellon/ACLS Fellow Carly Goodman has posted "Five Tips for Scholars Who Want to Reach a Broader Audience." 

• Going back some months, I have noticed the "syllabi" trend -- of historians circulating syllabi of scholarly texts that shed light on a current event or trend (#ImmigrationSyllabus is a recent one that comes to mind).

There has also been some push-back -- see, for example, Moshik Temkin's recent editorial in the New York Times, on why "historians shouldn't be pundits."

More examples? Feel free to chime in in the Comments. I'm sure a discussion of confederate monuments and naming controversies belongs here somewhere (and I'm not just saying that for you, Al Brophy). 

Bradt on a "Radical" Judicial Power Grab

Andrew Bradt, University of California, Berkeley School of Law, has posted “A Radical Proposal”: The Multidistrict Litigation Act of 1968, University of Pennsylvania Law Review 165 (2017): 831-916

One of the central stories in current procedural law is the recent and rapid ascendance of federal multidistrict litigation, or, as it is commonly known, MDL. As the class action has declined in prominence, MDL has surged: to wit, currently more than a third of the cases on the federal civil docket are part of an MDL. With MDL’s growth has come attention from scholars, much of it critical. One recurring aspect of this criticism is that MDL judges have expanded the MDL statute beyond its modest ambitions. But what were the original purposes of MDL, and where did the statute come from? This Article unearths the origins of MDL by examining the papers of its principal drafters. Those papers reveal that the aims of the small group—a handful of federal judges and one scholar—who developed and lobbied for the statute’s passage were anything but modest. Rather, the group believed that a mass-tort “litigation explosion” was coming and that a mechanism was needed to centralize power over nationwide litigation in the hands of individual judges committed to the principles of active case management. Moreover, the papers show that the judges were relentless in their pursuit of the statute’s passage and engaged in sharp-elbowed tactics and horse-trading to succeed. In short, MDL was a power grab—a well-intentioned and brilliant one, but a power grab all the same. Understanding the roots of the judges’ accomplishment clarifies current debates about MDL and should shift those debates away from fights over the scope of the statute to more normative assessments of the concentration of power the drafters sought and successfully achieved. In short, MDL currently does what its creators intended; critiques of the statute should proceed on those terms, not from the position that MDL has somehow grown beyond its modest ambitions.

H/t: Legal Theory Blog

Abrams and Barber on Gender Equality, Emerging Adulthood and Domicile

Kerry Abrams, University of Virginia School of Law, and Kathryn Barber,  a 2015 graduate of UVA Law, have posted Domicile Dismantled, which appears in the Indiana Law Journal 92 (2017): 387-433:

Domicile is more durable than residence: it is defined as a person’s “true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” This Article argues that, in the last fifty years, the legal fiction of domicile has become increasingly unmoored from the reality of people’s lives. This shift resulted from two historical changes. The first is the rise of gender equality. As women entered the workforce in increasing numbers and gained access to higher education, their mobility and autonomy increased. Simultaneously, they began to delay marriage, or to forego marriage altogether, and those who were married were less likely to reflexively adopt their husband’s domicile and were more inclined to make domiciliary choices for themselves and their families. The second is the increasingly long time it takes young adults to become financially and emotionally self-sufficient and independent from their parents. This so-called phenomenon of “emerging adulthood,” identified by psychologists as a new phase of life that sometimes lasts into a person’s thirties, has made it more difficult for young adults to establish a new domicile. Courts have thus increasingly relied upon a person’s domicile of origin in making these determinations, even where there is little chance that the party will ever return there. This Article uses the landmark 1971 case of Mas v. Perry to illustrate the dismantling of domicile. It traces the history of changing gender roles and adult development since Mas and argues that because of these two trends, the concept of domicile is no longer capable of doing the legal work it is supposed to do. Residence, rather than domicile, is a more sensible and accurate way to handle jurisdictional questions.

Norris on the History of the Innocence Movement

New from New York University Press: Exonerated: A History of the Innocence Movement, by Robert J. Norris (Appalachian State University). A description from the Press:

Documentaries like Making a Murderer, the first season of Serial, and the cause célèbre that was the West Memphis Three captured the attention of millions and focused the national discussion on wrongful convictions. This interest is warranted: more than 1,800 people have been set free in recent decades after being convicted of crimes they did not commit.

In response to these exonerations, federal and state governments have passed laws to prevent such injustices; lawyers and police have changed their practices; and advocacy organizations have multiplied across the country. Together, these activities are often referred to as the “innocence movement.” Exonerated provides the first in-depth look at the history of this movement through interviews with key leaders such as Barry Scheck and Rob Warden as well as archival and field research into the major cases that brought awareness to wrongful convictions in the United States.

Robert Norris also examines how and why the innocence movement took hold. He argues that while the innocence movement did not begin as an organized campaign, scientific, legal, and cultural developments led to a widespread understanding that new technology and renewed investigative diligence could both catch the guilty and free the innocent.

Exonerated reveals the rich background story to this complex movement. 

More information is available here.

Rabban Reviews Lebovic and Weinrib

David M. Rabban, University of Texas School of Law, has posted Challenging the "Worthy" Tradition: Revisionist Interpretations of Free Speech in American History, and appears in the June 2017 issue of Reviews in American History.  Professor Rabban jointly reviews Sam Lebovic’s Free Speech and Unfree News: The Paradox of Press Freedom in America and Laura Weinrib’s The Taming of Free Speech: America's Civil Liberties Compromise.

Lucas on Henry Friendly as a "Great Judge"

Tory L. Lucas, Liberty University School of Law, has posted Henry J. Friendly: Designed to Be a Great Federal Judge, which appears in the Drake Law Review 65 (2017): 421-480:

Who do you believe are great judges? Why do those judges make your list? Does Henry J. Friendly make your list as a great judge? He certainly makes mine. This Article challenges judges, attorneys, legal academics, and law students to explore the elementary question of what makes a great judge while asking whether Friendly was one. To aid that pursuit, this Article: (1) briefly lists the traits that make a great judge, (2) recounts Friendly’s amazing academic and legal careers that equipped him with the necessary traits to be a great judge, (3) discusses Friendly’s rise to the Second Circuit and his outsized presence on that court, and most importantly, (4) analyzes Friendly’s historic and lasting contributions to the law. Because Friendly exemplified all of the traits of a great judge, I conclude that he was a great judge. I recommend that you, too, contemplate, study, and discover what made Friendly a great judge. In the process, you might become a better judge, attorney, legal academic, or law student. Friendly’s impact on you would then only add to his monumental and lasting impact on the law itself.

In answering Professor Lucas’s first question, consider also Linda Przybyszewski's review essay on Gerald Gunther’s biography of Learned Hand, The Dilemma of Judicial Biography Or Who Cares Who Is the Great Appellate Judge?  Law and Social Inquiry 21 (January 1996): 135-140.

H/t: Legal Theory Blog

Mercer on "Barron v. Baltimore and the Foundations of American Liberty"

New from the University of Oklahoma Press: Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty, by William Davenport Mercer (University of Tennessee, Knoxville). A description from the Press:

The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore’s rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig’s wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city’s actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court’s decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century.

Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron’s claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered.

In explaining how the Court came to reject a multisourced view of human liberties—a position seemingly inconsistent with its previous decisions—William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall’s view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer’s work makes clear, is among the Jacksonian era’s significant democratic reforms and marks the emergence of a distinctly American constitutionalism.

More information is available here.

Sunday Book Review Roundup

There's a wide array of book reviews on offer for legal historians this week:

In The New York Times is a review of Edward Luce's sobering transnational treatise The Retreat of Western Liberalism. Also in the Times is Eric Foner's review of Fred Kaplan's Lincoln and the Abolitionists: John Quincy Adams, Slavery, and the Civil War.  Finally, the Times reviews Richard Rothstein's The Color of Law: A Forgotten History of How Our Government Segregated America.

NPR carries a review of Nancy MacLean's just-released Democracy in Chains The Deep History of the Radical Right's Stealth Plan for America.  

In The Washington Post is a review of Meredith Waldman's The Vaccine Race: Science, Politics, and the Human Costs of Defeating Disease.  Also reviewed in the Post is Mark Bowden's Hue 1968: A Turning Point of the American War in Vietnam.  

In The New York Review of Books is a wide-ranging review essay on recent scholarship and writing on the Six-Day War and its legacies.  Also reviewed in the NYRB is Marjorie Perloff's Edge of Irony: Modernism in the Shadow of the Habsburg Empire.  Christopher de Bellaigue's The Islamic Enlightenment: The Struggle Between Faith and Reason, 1798 to Modern Times and Wael Abu-‘Uksa's Freedom in the Arab World: Concepts and Ideologies in Arabic Thought in the Nineteenth Century are also reviewed in the publication.

Additionally, the NYRB carries a review Karissa Haugeberg's Women against Abortion: Inside the Largest Moral Reform Movement of the Twentieth Century and Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First-Century America. Behind a paywall (ironically?) is an essay on America's "Forgotten Poor" that features reviews of Jonathan Morduch and Rachel Schneider's The Financial Diaries: How American Families Cope in a World of Uncertainty and Carol Graham's Happiness for All?: Unequal Hopes and Lives in Pursuit of the American Dream.

In the Chicago Tribune is a review of From Warm Center to Ragged Edge: The Erosion of Midwestern Literary and Historical Regionalism, 1920-1965 by Jon K. Lauck.  Also reviewed in the Tribune is Bruce Lawrence's The Koran in English: A Biography.

Reviewed in the Los Angeles Review of Books is Heather Ann Thompson's Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy.  Also reviewed is Alvin Felzenberg's A Man and His Presidents: The Political Odyssey of William F. Buckley Jr.  Finally, LARB carries a review of Frances FitzGerald's The Evangelicals: The Struggle to Shape America.  

The New Republic has a review of Yascha Mounk's The Age of Responsibility: Luck, Choice, and the Welfare State.  Also reviewed in the New Republic is Fred Kaplan's Lincoln and the Abolitionists: John Quincy Adams, Slavery, and the Civil War.  The review notes that in documenting Lincoln's racial politics, the book "covers well-worn territory" but that it does so in service of tracing the persistence of "the nation's race problem."

At Public Books is provocative review essay based on Alex Soojung-Kim Pang's Rest: Why You Get More Done When You Work Less,  Daniel Fridman's Freedom from Work: Embracing Financial Self Help in the United States and Argentina, and Rutgers historian James Livingston's No More Work: Why Full Employment Is a Bad Idea.  Christina Lupton concludes her essay by encouraging readers to indulge in the postwork imaginary and imagine what they might do if their incomes were taken care of.  (As an aside, her question prompted me to ask what sort of research we might expect to be produced if a universal basic income had been or were to be realized in the States?  Conversely, what kind of research might we expect to be produced with the further adjunctification of the American academy?)

At the New Books Network, Josh Chafetz is interviewed about his Congress's Constitution Legislative Authority and the Separation of Powers.  

Finally, in the New Rambler Review is an understandably Trump era-inflected review of Reuel Schiller's narrative of postwar liberalism's dissolution in his monograph Forging Rivals: Race, Class, Law, and the Collapse of Postwar.