CFP: On the Origins of International Legal Thought

[We have the following call for papers.]

On the Origins of International Legal Thought. Lauterpacht Centre for International Law, University of Cambridge, Friday, December 7, 2018

Comprehension of the development of legal thought over time is necessary for any historical, philosophical, practical, or theoretical enquiry into the subject today. Perspective is everything. When seen against the background of broad geopolitical, diplomatic, administrative, intellectual, religious, and commercial changes, law begins to appear very resilient. It withstands the rise and fall of empires. It provides the framework for the establishment of new orders in the place of the old. Today what analogies, principles, and authorities of law have survived these changes continue to inform so much of the international legal tradition, and it is unobvious why tomorrow will be any different.

An intimate seminar will take place across one day at the Lauterpacht Centre for International Law towards the end of Michaelmas Term. Participation is open to academics from around the world. The conference is free, with little chance of a per diem reimbursement, however there may be some prospect for the remuneration of a portion of travel and accommodation expenses in exceptional cases.

A handful of candidates will be invited to participate personally, and this line-up will be confirmed at a later date. On top of this, there are between three and four positions available to be filled. Although the call is open to historians and legal scholars working in any period from Ancient Rome to the present, preference will be shown towards historical research framed within the period between 1860 and 1939, especially if concern is shown for private international law, public international law, or legal/state personality in this period. Sympathy towards imperial, interpolitical, and/or interreligious perspectives will be especially welcome. More than anything else, participants should be prepared to contemplate the dynamism of legal thought in various contexts. If your work meets a good standard, there is every prospect of inclusion within an edited collection of chapters, entitled Empire and Legal Thought (Oxford University Press). If you would like to be included within this collection, a full chapter of 8,000 words will need to be provided before the end of the calendar year. Please, therefore, send an abstract of between 200 and 500 words, along with some indication of whether or not you would like to contribute a chapter to a volume for OUP, to lawandempirecambridge@gmail.com, by July 31st, 2018. All things considered, participants who are prepared to publish a chapter along the lines of the presentation will be favoured at the shortlisting stage.

This seminar will be organised and led by Dr Edward Cavanagh FRHistS is a Fellow of Downing College, a Fellow of the Lauterpacht Centre of International Law, an Associate Fellow at the Institute for Commonwealth Studies, and a member of the Faculty of History at the University of Cambridge. He has published several articles across law and history in a number of well reputed outlets, including Law and History Review, Itinerario, Modern Intellectual History, Historical Journal, Comparative Legal History, History Compass, South African Journal on Human Rights, and Journal of Imperial and Commonwealth History.

AHA Littleton-Griswold Research Grants to Cyna, Ito, Manners

The American Historical Association has announced its 2018 Research Grant Winners. Of particular interest to readers of this blog is the Littleton-Griswold Research Grant "to support research in US legal history and in the general field of law and society." This year's winners are:

Esther Cyna, for "From Equity to Excellence? Shifting Strategies in School Finance Litigation and Education Policy in North Carolina, 1970s–1990s" 

Koji Ito, for "Contested Imperial Waters: Disputes over Migratory Fish and the Origins of the Territorialization of the Bering Sea, 1925–1952" 

Jane Manners, for "The Great New York Fire of 1835 and the Law and Politics of Disaster Relief in Jacksonian America"

Hughett Wins LSA Dissertation Prize

[We have the following announcement.]

The Law and Society Association’s Dissertation Prize is awarded annually to a dissertation written within 12 months of the prize year that best represents outstanding law and society scholarship.   This year’s winner is Amanda Hughett, for “Silencing the Cell Block: The Making of Modern Prison Policy in North Carolina and the Nation,” (PhD 2017, History, Duke University).  

Hughett's dissertation “Silencing the Cell Block: The Making of Modern Prison Policy in North Carolina and the Nation” has a wonderful manner of examining and writing about historical sources. Reading “Silencing the Cell Block” is to have history come alive.  The chapters are beautifully titled and there is a storytelling element in her writing despite the gravity of the legal analysis included in the chapters. Hughett intricately interweaves law into the narrative, exemplifying how masterfully a law and society work may engage law’s myriad impacts. Shen draws the reader in immediately by providing a twist on the rights litigation literature. Showing the irony behind constitutionalism, Hughett demonstrates how it subverts true prisoners’ rights reforms. Hughett’s historical and legal archival research is expansive and impressive, including sources ranging from state reports from the 1890s to prisoner civil rights cases spanning over a century to letters from activists and attorneys in the critical decades of the 1970s-1990s to personal interviews.  Hughett is an extraordinary legal historian, clearly documenting change over time in the field of prisoner rights with painstaking archival research while simultaneously providing an original reading of the impact of such well-intentioned legal advocacy as actually limiting activists seeking more substantive change within prisons. Hughett takes a critical but sympathetic lens on the minutely administrative forms of legal redress that may otherwise be easy to see as straightforward victories, and highlights the secondary silencing impacts on more radical prisoner movements that were attempting to emerge at the same time. This work incisively exposes the contradictions in rights work. This dissertation makes an immediate and important contribution to the field.  

Dr. Hughett is currently a post-doctoral fellow at the Baldy Center, State University of New York at Buffalo.

Weekend Roundup

• “Two retired judges of the Supreme Court of Canada say 50 years is too long to seal internal court documents revealing the communications between judges on cases.”  More. 

• Last Wednesday, the Nelson Mandela University held a launch of The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism by Tembeka Ngcukaitobi

• Although we were aware that the Historical and Special Collections of the Harvard Law School Library had opened the papers of Stanley S. Surrey, we only recently realized that the manuscript memoir of this great tax scholar and policymaker, "Fifty Years [A Half-Century] with the Internal Revenue Code," is readable on-line. 

• UCLA’s Luskin Center for History and Policy “is inviting proposals for innovative new research projects that have three defining qualities: (1) they bring historical analysis to bear on issues of contemporary political or social relevance; (2) they explicitly aim to contribute to solving an identifiable problem; and (3) they are collaborative in nature.”

• My Georgetown Law colleague Randy Barnett has tweeted a list of Books on the Constitution for Libertarians and Conservatives.  DRE

• And in Scottish legal history: new online resources by Rory MacLellan make more accessible the court and guild records of one Scottish town, the burgh of St. Andrews, 1550-1700.

• Update: Former LHB Guest Blogger Mary Ziegler, Florida State Law, to NPR on the history of Title X and the gag rule.

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

Kent on Congress and the Independence of Federal Law Enforcement

Andrew Kent, Fordham University School of Law, has posted Congress and the Independence of Federal Law Enforcement, which is forthcoming in 52 U.C. Davis Law Review (2018):

Richard Nixon, 1992 (LC)

Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this article recounts the abuses of the Hoover era at the FBI, and the ways the Nixon White House sought to both impede and corrupt the Department of Justice and the FBI. It then provides a rich description of what an engaged Congress looked like—the Congress of the 1970s—when it reacted to these abuses by helping to develop laws, structures, and norms of law enforcement independence and neutrality that served this country well for two generations. Drawing both on ideas floated in Congress post-Watergate, as well as institutional design features from independent regulatory agencies, this article then suggests a menu of options for a future Congress, if it could move beyond gridlock and partisanship to engage again with pressing issues about the White House's relationship to federal law enforcement. Most options I survey here are constitutionally uncontroversial. But two options, both of which were proposed by reformist Senators soon after Watergate, are more aggressive and constitutionally problematic: statutory qualifications limiting the range of appointees for senior DOJ roles, and a statutory for-cause restriction on the President's ability to remove the FBI Director. After setting out arguments for the constitutionality of these proposals, I conclude with a menu of concrete policy recommendations for a future Congress that wishes to get off the sidelines and again play a constructive role in protecting the country from the abuse and misuse of our powerful and essential federal law enforcement institutions.

Durling on DC and Article III

James Durling, a student at the Yale Law School, has posted The District of Columbia and Article III:

Today, nearly everyone assumes that the District of Columbia is an exception to Article III. They assume, in other words, that Congress may create non-Article III courts in the District and staff them with judges who lack salary protections and life tenure. Indeed, forty-five years ago, the Supreme Court specifically upheld the newly created non-Article III court system in the capital. And since that decision, nearly every major scholar of federal courts has accepted the District’s Article III exceptionalism.

This Article challenges the current judicial and scholarly consensus. Drawing upon extensive historical research, it shows that both the original meaning of the Seat of Government Clause and 170 years of historical practice make clear that Article III’s judicial protections apply fully to the District. It further shows that the various functional justifications typically used to defend adjudication by non-Article III tribunals do not apply to the courts in the capital. In short, this Article establishes that the current D.C. local court system is unconstitutional.

For the thousands of D.C. residents who have to go before non-Article III courts each year, this conclusion should be significant in its own right. Indeed, the history of non-Article III courts in the District reveals the concerning political influence of crime and race on Congress’s decision to create non-Article III tribunals in the capital. But this Article’s conclusion also has broader implications outside the Seat of Government. Perhaps most importantly, it identifies a new principle—Article III’s “one-way ratchet”—that would limit the use of non-Article III tribunals in other contexts. And more broadly, the history of the District of Columbia’s relationship to Article III may provide us with new substantive and methodological insights on our Article III history and jurisprudence.

H/t: Legal Theory Blog

Cummings on the Law and Social Movements Canon

Scott L. Cummings, UCLA School of Law, has posted Law and Social Movements: Reimagining the Progressive Canon, which is forthcoming in the Wisconsin Law Review (2018):

This Article examines the “progressive legal canon” — iconic legal campaigns to advance progressive causes — and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice. The comparison of old canon to new yields an important insight. Although the form of legal mobilization is generally quite different in contemporary campaigns, with greater emphasis on constituent accountability and integrated advocacy, the outcome is often quite familiar: legal success and positive change alongside weak implementation, countermobilization, and intramovement dissent. Although the comparison is not systematic, it points toward a potentially significant conclusion: that the progressive critique of old canon lawyering is misplaced. What stymied old canon campaigns was not an overreliance on law or top-down planning, but rather the inevitable pushback by more powerful forces, causing gains to slide back or be undercut in the enforcement stage and aggravating internal movement debates over goals and strategies.

Ngcukaitobi on Black Lawyers and Constitutionalism in South Africa

Tembeka Ngcukaitobi has published The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa with Penguin Random House South Africa:

The Land Is Ours tells the story of South Africa’s first black lawyers, who operated in the late nineteenth and early twentieth centuries. In an age of aggressive colonial expansion, land dispossession and forced labour, these men believed in a constitutional system that respected individual rights and freedoms, and they used the law as an instrument against injustice.

The book follows the lives, ideas and careers of Henry Sylvester Williams, Alfred Mangena, Richard Msimang, Pixley ka Isaka Seme, Ngcubu Poswayo and George Montsioa, who were all members of the ANC. It analyses the legal cases they took on, explores how they reconciled the law with the political upheavals of the day, and considers how they sustained their fidelity to the law when legal victories were undermined by politics.

The Land Is Ours shows that these lawyers developed the concept of a Bill of Rights, which is now an international norm. The book is particularly relevant in light of current calls to scrap the Constitution and its protections of individual rights: it clearly demonstrates that, from the beginning, the struggle for freedom was based on the idea of the rule of law

Happy Endings in History

Do I want my story to have a happy ending or a sad ending? As I was completing The Sit-Ins: Protest and Legal Change in the Civil Rights Era, I found myself, to my surprise, stuck on this question.

Not the typical question the historian asks, right? If the history ends happily, then go happy. If not, go sad. Of course academic historians are serious folk, we write serious history, and sad is more serious than happy, so we usually go sad. If things are looking bright, point out the shadows. If things are looking dark, show just how serious (systemic, structural, durable) the dark is.

I suppose we’re allowed a happy-ending pass if we focus on groups who are working against immeasurable odds and resisting oppressive circumstances. But here too, even as we praise remarkable accomplishments, we must then rein in that optimism by ensuring the reader’s attention never strays far from the oppressive forces that remain, of setbacks down the road, of other groups that remain left behind.

Here’s the problem: I’m a happy guy. My glass is half full. I tend to be more curious about why good things happen than why bad things happen. This surely helps explain why I first became fascinated with the 1960 lunch counter sit-in movement, a moment in history that even the most pessimistic of historians would recognize as a remarkable achievement.

But, still, as I finished writing The Sit-Ins, I was stuck. Did I want to close the book by emphasizing what was achieved by this protest movement and the ensuing national debate over racial discrimination in public life? Or did I want to emphasize what the sit-ins failed to achieve? Was this to be a story of victory or noble defeat?

I went with a victory. I wanted to write a book that could not just explain but also inspire. Plus, historians are trained to listen carefully to the words of those whose lives they describe, and the students who sat in protests at lunch counters in the spring of 1960 talked all the time (during and afterwards) about the movement’s victories.

It is important to note that I had a choice here. And the reason I had a choice is because there are so many viable options for measuring victory. This point holds whether we impose our own definition of victory or whether we locate a definition of victory held by the historical actors themselves.

The most obvious measure of victory for the sit-in movement was the desegregation of pubic accommodations, a process that culminated in the passage and successful implementation of Title II of the 1964 Civil Rights Act. But well before that unmistakable achievement, the students themselves identified countless other measures of success. Standing (and sitting) alongside thousands of other college students as part of this new, defiant movement was an achievement. Creating student-run organizations that would strategize and coordinate sit-in protests might be cited as a win for the movement. Students saw going to jail as a valuable experience, both for the individual protester and the larger movement. For the most dedicated of freedom fighters, even enduring a beating was a victory. “This was an experience we needed,” one participant explained about the violence against sit-in protesters. The Sit-Ins documents the many opportunities the protesters found to declare victory.

But there is another side to this story, one that emphasizes the conspicuous failures of the sit-in movement. Even as they strategized and touted these attainable movement victories, activists and their allies also defined their goals in a more idealistic, aspirational register. The sit-ins, as Ella Baker famously proclaimed, “are concerned with something much bigger than a hamburger or even a giant-sized Coke.” The true goal of the movement, she said, was “to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”

“We are willing to go to jail, be ridiculed, spat upon and even suffer physical violence to obtain First Class Citizenship,” one student group declared. For James Baldwin, the sit-in movement was aimed at “nothing less than the liberation of the entire country from its most crippling attitudes and habits.”

Measured by these standards, the sit-in movement might be classified as, at best, a qualified success. Or perhaps, if we use Baldwin’s standard as the benchmark, a noble failure.

In the midst of the battle over discrimination in public accommodations, few questioned the importance of the issue they were fighting over. The mere fact that white southerners fought so hard to protect their “right” to discriminate confirmed the importance of the issue. Yet once the battle was won, and Title II of the 1964 Civil Rights Act was the law of the land, people on both sides began questioning the significance of the victory.

“Desegregation of public accommodations does not basically alter the pattern of social life anywhere,” observed a Mississippi restaurant operator. “That is why it has been accomplished as easily as it has.”

From a very different perspective, civil rights organizer Bayard Rustin arrived at much the same conclusion. “[W]e must recognize that in desegregating public accommodations, we affected institutions that are relatively peripheral both to the American socio-economic order and to the fundamental conditions of life of the Negro people,” he wrote in his famous 1965 essay, “From Protest to Politics.” The sit-ins had targeted “Jim Crow precisely where it was most anachronistic.” They had toppled an “imposing but hollow structure.”

Or, as the African American comedian Dick Gregory once explained: “I sat in six months once at a Southern lunch counter.  When they finally served me, they didn’t have what I wanted.” It’s a funny line, with enough truth to cast a shadow over any victory celebration.

What I settled on in the end was to acknowledge these voices of caution and pessimism but to not let them be the final word. I sought to convey the limitations of the changes the sit-in movement made possible, but to leave the reader with something more hopeful. Not quite a happy ending, but something closer to happy than sad.

Here are the closing paragraphs of The Sit-Ins:

The resolution of the issue first given prominence by the students sitting at lunch counters in the winter of 1960 was one of the greatest achievements of the civil rights era. This book is, in part, an effort to celebrate the sit- in movement and the legal battles over discrimination in public accommodations that the movement sparked. It is an effort to draw attention to this triumphant moment in our ongoing struggle for racial justice, to better understand why this campaign for social and legal change worked, when so many others did not.

Other battlefronts in the African American freedom struggle proved far more difficult to uproot than racial exclusion in public accommodations. The powerful synergy between social protest and legal change that made the campaign against racial discrimination in public accommodations so powerful and consequential was hard to replicate in other areas. The struggle to implement Brown dragged out for decades, and we still face pervasive segregation in our schools. Disparities of wealth and income across racial lines persist, a particularly stubborn reminder of the continuing effects of slavery and Jim Crow. Racial disparities in our criminal justice system—from the stunning overrepresentation of racial minorities in our bloated prison populations to racially discriminatory police practices—remain one of the most significant challenges we face as a nation.

Our challenge is to find new ways combine social protest and legal claims to disrupt those practices and policies that perpetuate old inequalities and create new ones. The lunch counter sit- in movement shows that it can be done.

Legal Biography of the European Union at Max Planck

[We’ve received the following announcement of the conference Key Biographies in the Legal History of European Union, 1950-1993, to take place June 21-22, 2018 at the Max Planck Institute for European Legal History in Frankfurt.  It is the “annual conference of the research field ‘Legal History of the European Union’” at the Institute.]

The history of European Union law is still to a large extent uncharted territory. This conference is based on the assumption that biographical approaches are a valuable addition to this new field.
For a long time during the last century, biographies were regarded as stale and reductionist. In the field of legal history they tended to focus on prominent jurists and doctrines, to the exclusion of the broader legal and historical context. General historians were criticized for their cradle to grave approach, which stressed the continuities and coherence of life over fragmentation, and for their inclination to give too much importance to one actor over other historical factors. It is only recently that the disciplines of history as well as law have returned to the biographical approach.

At the intersection of law and history, the historiographical turn in international law has been particularly successful. Following the lead of Finnish scholar Martti Koskenniemi, many scholars used biographies to analyse international law and its discourses over time. This intellectual history has been exceptionally sophisticated with respect to analysing the nuances of how the doctrines of international law were created and further developed. However, this strand of research was foremost produced with the purpose of contributing to contemporary theoretical debate in international law. Perhaps for this reason, and also because it was mostly written by legal scholars, it has with few exceptions ignored archival sources and generally not used the broader historiography of international history, nor did it contribute to his historiography.   

Biographical approaches have also made a significant comeback in international history in recent years. Here, biographies have been used to transcend the national context and capture the social practice of the new international and transnational reality that emerged during the twentieth century. Biographical approaches, in particular when using private archives, have allowed historians to tap into the informal politics of international organisations and transnational networks, but also to trace the elusive links between worldviews, ideology, ideas and political practice. This approach can also be made fruitful for legal history because systematic archival research allows to explore the social practice that produces law and thus the intricate relationships between law, interests and institutional self-empowerment.

This conference invites both lawyers and historians to use their particular methodologies with regard to biographies of key figures in the history of European law. Such biographies will contribute to the development of the intellectual history of the field, focusing on the development of ideas and doctrines. At the same time they will explore the links between social practices and the broader context of law and legal thinking.

[The program and registration form are accessible here.]

Project Archivist, Justice Antonin Scalia Papers

From the Association for Documentary Editing website:

The Harvard Law School Library seeks an experienced, collaborative, and service-oriented processing archivist for a one-year term beginning July 1, 2018. Reporting to the Curator of Modern Manuscripts within the Historical & Special Collections unit (HSC), the successful candidate will survey United States Supreme Court Justice Antonin Scalia’s collection of scholarly and professional work, develop a multi-year processing plan, and begin describing the collection in an Encoded Archival Description (EAD) finding aid.

More information available at Et Seq.

Gordon Wins LSA's Wheeler Award

We're delighted to learn that Robert W Gordon, Stanford Law school, has won the Stanton Wheeler Mentorship Award of the Law and Society Association.  He shares the honor with Laura Beth Nielsen of the American Bar Foundation and Northwestern University.  The Wheeler Award is given to “an outstanding mentor for graduate, professional or undergraduate students who are working on issues of law and society.”  Here’s the citation:

Robert W. Gordon (credit)

Robert Gordon, a pillar in the field of legal history, “has guided, supported, and inspired several generations of legal historians,” so many that “nearly everyone in the field of legal history in the U.S., and many outside the U.S., has been mentored by Bob in some way.” As one mentee put it, you would be hard-pressed “to find any significant legal historian younger than fifty who does not claim some intellectual genealogical connection to Bob.” Mentees described Gordon’s generosity in time, energy, and intellect given to them throughout their careers, from early law students to fully-established faculty. Many described “critically important” mentoring lessons they learned from Robert Gordon that they carry with them as they mentor their own students and colleagues, such as: “One of the [lessons] is to always find the best thing in a paper or an article or a book and to focus on that. All work is flawed. That goes without saying. What we can learn from is the good stuff in, and most serious work in the history of the law has some spark of genius, or some bit of material that adds important insights into one or another important legal-historical question.” In addition, Gordon is an “influential and widely respected” legal historian who has made “lasting contributions” to the Law & Society community. He has served as President of the ASLH, Trustee for LSA, twice served as chair of the Hurst Prize Committee, and has co-directed the Hurst Summer Institute for Legal History. “Whatever the venue or endeavor,” one of his nominees writes, “Bob invariably energizes everyone in the room with his infectious curiosity about legal ideas, institutions, and practices and his utterly unique way of engaging with the work of scholars across fields and at every career stage.”

H/t  Susanna Blumenthal

Kamali on Anger in Medieval Felonies

Elizabeth Papp Kamali, Harvard Law School, has posted The Devil's Daughter of Hell Fire: Anger's Role in Medieval English Felony Cases, which appeared in Law and History Review 35 (2017): 155-200:

During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.

CFP: Grad Student & Early-Career Scholar Panel, Medieval Legal History Workshop, ASLH 2018

[We have the following CFP.]

The American Society for Legal History invites paper submissions from graduate students and early-career scholars for a panel at a pre-conference workshop, which will take place immediately preceding the annual meeting on Thursday, Nov. 8, 2018. The topic of the workshop is Medieval Legal History, with medieval broadly defined as between late antiquity and early modernity. Applications for the panel at due June 15th.

The Medieval Legal History Workshop aims to present the work of a number of scholars of medieval law and society who are new to the ASLH’s annual meeting. In this way, we hope to promote scholarship in this area of legal history and to encourage medieval historians to attend the Society's meeting. The graduate student and early-career scholar panel will be composed of four speakers, who will present short papers of 10-12 minutes, followed by a robust discussion period afterward. Besides this panel, the event will also be composed of two longer-form talks with commentators, and a pre-circulated-paper workshop of three papers with two commentators.

As such, we encourage applications from PhD students, postdocs and VAPs who work on or with law in the late antique and medieval periods in its political, social, and cultural aspects and who have not traditionally attended the society’s meetings. We notably encourage applications from any legal tradition of the period, including (among others) Byzantine, Canon, Chinese, Islamic, or Jewish law. The goal of the panel is to provide graduate students and early-career scholars the opportunity to participate in the ASLH community in a more intimate setting, present their own work, and make meaningful contact with other presenters, attendant faculty, and other participants.

Applications to the workshop should include a current curriculum vitae, a title and abstract for the proposed talk. Applicants whose proposals are accepted will receive some support toward conference hotel and travel.

Queries and applications should be sent by email to Ada Kuskowski (akusk@upenn.edu) by June 15th, with the subject line “ASLH 2018 Graduate Student and Early-Career Scholar Panel.”

Baldwin on Islamic law and empire in Ottoman Cairo

James E. Baldwin (Royal Holloway, University of London) published Islamic Law and Empire in Ottoman Cairo with Oxford University Press in 2017. From the publisher:

What did Islamic law mean in the early modern period, a world of great Muslim empires? Often portrayed as the quintessential jurists' law, to a large extent it was developed by scholars outside the purview of the state. However, for the Sultans of the Ottoman Empire, justice was the ultimate duty of the monarch, and Islamic law was a tool of legitimation and governance. James E. Baldwin examines how the interplay of these two conceptions of Islamic law - religious scholarship and royal justice - undergirded legal practice in Cairo, the largest and richest city in the Ottoman provinces. Through detailed studies of the various formal and informal dispute resolution institutions and practices that formed the fabric of law in Ottoman Cairo, his book contributes to key questions concerning the relationship between the shari'a and political power, the plurality of Islamic legal practice, and the nature of centre-periphery relations in the Ottoman Empire.

Praise for the book:

"Drawing on a rich variety of primary sources in both Arabic and Ottoman Turkish, Baldwin provides a very valuable reinterpretation of law and politics in Ottoman Egypt. In particular, he convincingly challenges the image of the autonomous judge as the pivot of Ottoman legal system, and instead argues that the judge should be placed within a complex network of legal institutions with overlapping jurisdictions. As a result a very rich and detailed picture of law and politics emerges, a picture that illustrates the relationship between imperial center and provincial societies, between shari'a and state power, and between sultan and litigants. This is a very significant contribution to Islamic legal studies, Ottoman history and scholarship on early-modern Egypt." -Khaled Fahmy

Here is the Table of Contents:

Introduction

1. A Brief Portrait of Cairo under Ottoman Rule

2. Cairo's Legal System: Institutions and Actors

3. Royal Justice: The Divan-i Hümayun and the Diwan al-Ali

4. Government Authority, the Interpretation of Fiqh, and the Production of Applied Law

5. The Privatization of Justice: Dispute Resolution as a Domain of Political Competition

6. A Culture of Disputing: How Did Cairenes Use the Legal System?

Conclusion: Ottoman Cairo's legal system and grand narratives

Appendix: Examples of Documents Used in this Study

Further information is available here.

Arlyck to Georgetown Law

Kevin Arlyck (credit)

I’m very pleased to announce that Kevin Arlyck will be joining Georgetown Law’s faculty this fall as an Associate Professor of Law, where he will teach courses on civil procedure, federal courts, and legal history.  Currently, he is an associate in the Supreme Court and Appellate practice at Orrick, Herrington & Sutcliffe in New York.  Kevin has both a JD and PhD from NYU; prior to joining Orrick, he clerked for Sonia Sotomayor on the United States Supreme Court and Robert Katzmann on the U.S. Court of Appeals for the Second Circuit, and held fellowships at Columbia and NYU.

Kevin's scholarship explores the early history of the federal courts, with a particular focus on the courts' role in national governance.  His dissertation, "Forged by War: The Federal Courts and Foreign Affairs in the Age of Revolution," argues that the courts played a central role in U.S. foreign affairs in the four decades following ratification of the Constitution.  Legal historians also know him for his articles, including “Plaintiffs v. Privateers: Litigation and Foreign Affairs in the Federal Courts, 1816–1822,” Law and History Review (2012) and “The Courts and Foreign Affairs at the Founding,” Brigham Young University Law Review (2017).  Kevin was a fellow in the Hurst Summer Institute in Legal History in 2009, was a Kathryn T. Preyer Scholar of the ASLH in 2011, and has been a regular presenter at the annual meeting of the American Society for Legal History and in other venues.

Kroncke Reviews Rahman, "Democracy Against Domination"

From JOTWELL's Legal History section comes an admiring review of K. Sabeel Rahman's Democracy Against Domination (Oxford University Press, 2016). Reviewer Jedidiah Kroncke describes the book as "a leading example of a new generation of scholarship that demonstrates both the descriptive and normative promise of law and political economy." Read on here.

ICYMI, Rahman's Democracy Against Domination was the subject of another JOTWELL review earlier this year. Rosalind Dixon flagged it for the International & Comparative Law section.

Siems on Malicious Legal Transplants

Mathias M. Siems, Durham University Law School, has posted Malicious Legal Transplants, which is forthcoming in Legal Studies 38 (2018): 103-119:

It is frequently assumed that legal transplants can help law makers in choosing the best ideas from elsewhere in the world. However, this paper suggests that there can also be cases of "malicious legal transplants." This analysis is based on three paradigmatic examples of such type of transplant. The paper explains why such transplants emerge and how they may be prevented. This discussion fills a gap in the normative debate about legal transplants: while it is valuable to identify good models, it is equally important to understand how the impact of malicious ideas can be prevented.

Duranti on the Conservative Human Rights Revolution

Marco Duranti, University of Sydney, published The Conservative Human Rights Revolution with Oxford University Press in 2017. From the publisher:

The European Court of Human Rights has long held unparalleled sway over questions of human rights violations across continental Europe, Britain, and beyond. Both its supporters and detractors accept the common view that the European human rights system was originally devised as a means of containing communism and fascism after World War II.

In The Conservative Human Rights Revolution, Marco Duranti radically reinterprets the origins of the European Convention on Human Rights (ECHR), arguing that conservatives conceived of the treaty not only as a Cold War measure, but also as a vehicle for pursuing a controversial domestic political agenda on either side of the Channel. Just as the Supreme Court of the United States had sought to overturn Franklin Roosevelt's New Deal, a European Court of Human Rights was meant to constrain the ability of democratically elected governments to implement left-wing policies that British and French conservatives believed violated their basic liberties. Conservative human rights rhetoric, Duranti argues, evoked a romantic Christian vision of Europe. Rather than follow the model of the Universal Declaration of Human Rights, conservatives such as Winston Churchill grounded their appeals for new human rights safeguards in the values of a bygone European civilization. All told, these efforts served as a basis for reconciliation between Germans and the "West," the exclusion of communists from the European project, and the denial of equal protection to colonized peoples. Illuminating the history of internationalism and international law, and elucidating Churchill's Europeanism and critical contribution to the genesis of the ECHR, this book revisits the ethical foundations of European integration across the first half of the twentieth century and offers a new perspective on the crisis in which the European Union finds itself today.

Praise for the book:

"Human rights history at its best. Duranti's well-written analysis of twentieth-century European internationalism is of lasting value. The insights into Euroskepticism that he provides could not be more timely. Necessary reading." -Lora Wildenthal

"Marco Duranti's enthralling and meditative study of the origins of the European Convention on Human Rights is not merely a lesson in historical imagination, restoring Winston Churchill's role as the project's prime mover and detailing the importance of a fateful alliance of religious conservatives and free-market defenders in its origins. For The Conservative Human Rights Revolution appears at a moment when it is even more instructive and ironic, with the Tories Duranti shows were instrumental in the beginning in full revolt against their own creation. Students of the past and observers of the present will welcome Duranti's own creation with gratitude." -Samuel Moyn

"Required reading for anyone interested in the ideological foundations of the European Union." -Stefan-Ludwig Hoffmann

"In this masterful--and timely--book, Marco Duranti plunges deep into rarely used archives to tell us the conservative origins of the European Convention on Human Rights. A magisterial and innovative piece of history that reshapes our understanding of human rights." -Patrick Weil

Further information is available here.

Goold on the Lost Tort of Moral Rights Invasion

Patrick Russell Goold, Qualcomm Fellow at the Harvard Law School, has posted The Lost Tort of Moral Rights Invasion, which is forthcoming in the Akron Law Review:

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply with international obligations.

This Article presents a history of moral rights protection that challenges, to a degree, that common historical narrative. The Article tracks how American courts adjudicated attribution and integrity disputes during the twentieth century. Doing so not only reveals that the American judiciary was more sympathetic to these claims than commonly appreciated, but, even more surprisingly, came close to developing a tort of moral rights invasion. While copyright historians know that courts have long provided proxy protection for moral rights under preexisting common law causes of action (e.g., defamation, unfair competition, privacy, etc.), what is not widely known is how frequently courts were willing to protect attribution and integrity interests directly under the banner of moral rights. This Article tells the story of how courts in the mid-twentieth century, applying state law, increasingly articulated a "sui generis tort" of moral rights invasion. It then proceeds to question why the moral rights tort stagnated and was forgotten about in the late twentieth century.

Pre-Register for ASLH 2018!

[From the ASLH website.]

The American Society for Legal History will be having its 48th annual meeting in Houston, Texas from November 8 -11, 2018. The meeting hotel is the Hilton-Américas, and the meeting is being sponsored by the University of Houston Law Center and the University of Houston. Pre-registration is now available.

Widener and Weiner Win AALL Andrews Award

[We have the following announcement.]

2018 Joseph L. Andrews Legal Literature Award Winners: Michael Widener & Mark S. Weiner authored Law’s Picture Books: The Yale Law Library Collection

CHICAGO - May 8, 2018 -The American Association of Law Libraries’ (AALL) today announces Michael Widener and Mark S. Weiner are the 2018 recipients of the Joseph L. Andrews Legal Literature Award. Widener, the rare book librarian at Yale Law School’s Lillian Goldman Law Library, and Weiner, a professor of law (on leave) at Rutgers Law School, together published Law’s Picture Books: The Yale Law Library Collection, a unique pictoral contribution in the area of legal literature.

The Joseph L. Andrews Legal Literature Award recognizes a significant textual contribution-a book, pamphlet, periodical, website, database, or other publication-to legal literature. Nominations are measured by their creative, evaluative elements, and the extent to which originality and judgment factored into the work’s formation.

“The winners of the 2018 Joseph L. Andrews Legal Literature Award have authored a unique and detailed assessment of the role of illustrations in legal literature,” said AALL President Greg Lambert. “A reflection of innovative collection development by an academic law library, this book is important to our profession and the work of AALL. It defines the role of illustrations or images in increasing our understanding of legal literature.”

“I am deeply honored to receive the 2018 Joseph L. Andrews Legal Literature Award for Law’s Picture Books,” Widener said. “My distinguished co-author and I examined the use of images in legal literature to teach, criticize, explain, and popularize the law, from the Middle Ages to the present. We hope to raise new questions and suggest new answers to old questions.”

“I’m delighted that AALL and our readers have recognized the important role of illustrations in legal literature by awarding us this year’s Joseph L. Andrews Legal Literature Award,” Weiner said. “We wanted to go beyond compiling a collection of law-related artwork or conducting a study in legal iconography. Instead, we provided a thorough analysis of the role of illustrations in everything from textbooks and treatises to statutes, case law, practitioner manuals, and litigation documents. I am honored to accept this award with my co-author.”

The Joseph L. Andrews Legal Literature recipients will be honored at the upcoming 111th AALL Annual Meeting & Conference, to be held in Baltimore from July 14-17, 2018.

Boyd on Public Utility Regulation and the Just Price

William Boyd, University of Colorado Law School, has posted Just Price, Public Utility, and the Long History of Economic Regulation in America, which is forthcoming in the Yale Journal on Regulation:

This Essay investigates the history of “just price” and its influence on the concept and practice of public utility regulation in the United States. It begins with a discussion of the Scholastic understanding of just price and its relationship to commutative justice, with particular attention to the problem of coercion in economic exchange. The Essay then discusses the centrality of just price to broader ideas of moral economy and to economic thought and regulation in colonial America and the early United States. The heart of the Essay shows how the idea of just price influenced public utility regulation as it took shape during the late nineteenth and early twentieth centuries. As the Essay demonstrates, received understandings of just price were fundamental to the public utility idea and were at the heart of battles over the proper approach to utility valuation and rate regulation during the first half of the twentieth century. The Essay concludes with a discussion of efforts to restructure formerly regulated industries during the last quarter of the twentieth century, with particular attention to the challenges faced by the Federal Energy Regulatory Commission as it seeks to ensure that prices in restructured natural gas and electricity markets are just and reasonable. Although much of the Essay’s purpose is descriptive, several larger points emerge from this study. First, the history of just price reveals that relations of reciprocity and fairness in exchange are at the very core of the public utility idea. When seen from this perspective, public utility represents an important experiment in translating abstract principles of economic justice and fair pricing into working rules for governing key systems of provisioning in a modern industrial society. Second, the history of just price reminds us that prices are more than signals; that they are also relationships and that price relationships can be coercive. At root, the economics of just price is an economics of coercion and, as such, an economics that resonates quite strongly with efforts by Progressive lawyers, legal realists, and institutional economists to develop an approach to law and economics (and economic regulation) that would put coercion at its center. Third, the history of just price shows that competitive markets, when functioning properly, can be powerful instruments for protecting consumers and facilitating fairness in exchange. But it also underscores the importance of taking individual markets on their own terms and recognizing that some markets, and the mechanisms of price formation at their center, are more vulnerable to disruption and manipulation than standard economic models suggest. Finally, at the most general level, the history of just price reminds us that for a very long time—far longer than the lifespan of classical and neoclassical economics—ethical and social concerns have been intimately bound up with conceptions of economy, economic life, and the provision of necessities.

Howard on Ending Extralegal Violence in West Virginia

Josh Howard’s Defending Person and Reputation: Efforts to End Extralegal Violence in Western Virginia, 1890-1900, is now available online in the American Journal of Legal History:

Violence peaked in Virginia during the early-1890s with a series of racially-motivated lynchings and honor killings in the western mountains. Governor Charles O'Ferrall responded by demanding county courts rededicate themselves to enforcing law and preventing extralegal violence, which led to a statewide decrease in lynchings. The governor's demands were not intended to create better race or labor relations, but were more to create social stability attractive to outside investors. As a result, county courts did just that: prevent extralegal violence, make arrests, and hold trials all in the interest of presenting an image of stability. One specific town in western Virginia – Clifton Forge – provides an excellent case study to explore this phenomenon. Clifton Forge became a major railroad hub in 1888, and residents committed one of the state's most brutal lynchings in 1891. The governor's call for order certainly targeted Clifton Forge, yet violence persisted there throughout the mid-1890s. Most visible to outsiders was two murders and the subsequent trials. A railroad conductor shot dead a prominent Natural Bridge businessman, and a young African-American man assaulted a white woman and murdered a black girl. Clifton Forge residents demanded different types of mob justice in each of these cases, but the legal system prevailed. However, both trials had flaws; one was overturned on appeal, the other a clear sham. These trials reveal that judges and local media were committed to both justice and presenting the image of justice, the latter of which being more important both for the town's future and in appeasing the governor.

Lefkovitz, "Strange Bedfellows Marriage in the Age of Women's Liberation"

New from the University of Pennsylvania Press: Strange Bedfellows: Marriage in the Age of Women's Liberation, by Alison Lefkovitz (New Jersey Institute of Technology/Rutgers University-Newark). A description from the Press:

In the inaugural issue of Ms. Magazine, the feminist activist Judy Syfers proclaimed that she "would like a wife," offering a wry critique of the state of marriage in modern America. After all, she observed, a wife could provide Syfers with free childcare and housecleaning services as well as wages from a job. Outside the pages of Ms., divorced men's rights activist Charles Metz opened his own manifesto on marriage reform with a triumphant recognition that "noise is swelling from hundreds of thousands of divorced male victims." In the 1960s and 70s, a broad array of Americans identified marriage as a problem, and according to Alison Lefkovitz, the subsequent changes to marriage law at the state and federal levels constituted a social and legal revolution. 

The law had long imposed breadwinner and homemaker roles on husbands and wives respectively. In the 1960s, state legislatures heeded the calls of divorced men and feminist activists, but their reforms, such as no-fault divorce, generally benefitted husbands more than wives. Meanwhile, radical feminists, welfare rights activists, gay liberationists, and immigrant spouses fought for a much broader agenda, such as the extension of gender-neutral financial obligations to all families or the separation of benefits from family relationships entirely. But a host of conservatives stymied this broader revolution. Therefore, even the modest victories that feminists won eluded less prosperous Americans—marriage rights were available to those who could afford them.  

Examining the effects of law and politics on the intimate space of the home, Strange Bedfellows recounts how the marriage revolution at once instituted formal legal equality while also creating new forms of political and economic inequality that historians—like most Americans—have yet to fully understand.

A few blurbs:

"Strange Bedfellows offers an original perspective on the post-World War II 'marriage revolution.' By focusing on the interactions of feminist advocates, 'men's rights' groups, legislatures, and the courts, Alison Lefkovitz insightfully charts the emergence of new policies toward divorce, alimony, and marital property. In so doing, she reveals the disparate and harmful impact of marriage reform on the poor, racial and ethnic minorities, immigrants, and gay couples. This is an important and timely book."—Kathy Peiss 

"The legal evolution of marriage in the United States is as old as the Republic. But beginning in the 1960s, the pace of legal change accelerated with the universal adoption of no-fault divorce. Strange Bedfellows traces this unfinished revolution, highlighting the roles played by men as much as women in challenging the gendered obligations of marriage. As Alison Lefkovitz brilliantly shows, even as the breadwinning/homemaking model of marriage was dismantled for the privileged with decidedly unequal results for women and men, it was redeployed against the poor, especially racial minorities, immigrants, and LGBTQ couples. Placing the legal revolution of marriage firmly in the economic, cultural, and political transformation of the 1960s to the present, Lefkovitz offers a sobering picture of marriage as Americans' fundamental social safety net."—Barbara Young Welke

More information is available here.

Coffey's "Drafting the Irish Constitution"

Donal K. Coffey, Senior Research Fellow, Max Planck Institute for European Legal History, has just published Drafting the Irish Constitution, 1935–1937: Transnational Influences in Interwar Europe, with Palgrave Macmillan:

The second of two volumes, this book situates the drafting of the Irish Constitution within broader transnational constitutional currents. Donal K. Coffey pioneers a new method of draft sequencing in order to track early influences in the drafting process and demonstrate the importance of European influences such as the German, Polish, and Portuguese Constitutions to the Irish drafts. He also analyses the role that religion played in the drafting process, and considers the new institutions of state, such as the presidency and the senate, tracing the genesis of these institutions to other continental constitutions. Together with volume I, Constitutionalism in Ireland, 1932–1938, this book argues that the 1937 Constitution is only explicable within the context of the European and international trends which inspired it.

We’ll note when the (chronologically) first volume is out!

Penningroth Named 2018 ACLS Fellow

Congratulations to my UC Berkeley colleague Dylan Penningroth, who is among the American Council for Learned Society's 2018-19 class of fellows. The fellowship will support work on "Doing Civil Rights: African Americans and Law, 1865-1970."

A full list of fellows, along with their project abstracts, is available here.

LHR 36:2

Law and History Review 36:2 is out.  After a preface by editor Gautham Rao and with book reviews by Paul J. du Plessis, Taisu Zhang, Malick W. Ghachem, Chandra Murdoch, and Asa McKercher, the issue consists of the following:

Heart of Ice: Indigenous Defendants and Colonial Law in the Canadian North-West, by Catherine L. Evans

Peripheral Vision: Polish-Jewish Lawyers and Early Israeli Law, by Assaf Likhovski

The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya 1952–60, by David M. Anderson and Julianne Weis

Revocation of Citizenship and Rule of Law: How Judicial Review Defeated Britain's First Denaturalization Regime, by Patrick Weil and Nicholas Handler

Colonial Charters: Possessory or Regulatory? by James Muldoon

The Law of Negligence as Reported in in The Times, 1785–1820, by James Oldham

Review Essay: Taming the Past: Essays on Law in History and History in Law, by David M. Rabban

US Legal History Roundtable at the ABF

Yesterday the American Bar Foundation held its annual United States Legal History Roundtable at the ABF.  The papers were:

• Kate Masur, Northwestern University, “Poverty, Mobility, and Race in the Early Republic,” with comments by Dan Farbman, Boston College, and Kunal Parker, University of Miami;

• Rabia Belt, Stanford University, “Race, Disability, and the Vote,” with comments by Susan Pearson, Northwestern History, and Dan Sharfstein, Vanderbilt Law;

• Timothy Lovelace, Indiana University, “Taking Affirmative Action Around the World,” with comments by Joanna Grisinger, Northwestern University, and Ken Mack, Harvard University; and 

• Tracy Steffes, Brown University, “School Finance and Property Tax Reform,” with comments by David Freund, University of Maryland, and James Sparrow, University of Chicago. 

 H/t: LHB Guest Blogger Christopher W. Schmidt.

Weekend Roundup

• Congratulations to Linda Przybyszewski, Notre Dame University, for winning the 2017 Hughes-Gossett Award of the Supreme Court Historical Society for best article in the Journal of Supreme Court History, for her article Scarlet Fever, Stanley Matthews, and the Cincinnati Bible War! 

• "The Arizona Board of Regents named Robert A. Williams, Jr. Regents’ Professor, the highest faculty honor awarded at Arizona’s public universities.”  He is the author of many works on American Indians and the law, including The American Indian in Western Legal Thought:  The Discourses of Conquest (1990).  More.

• The final schedule for the Policy History Conference is here.

• Over at Balkinization, John Fabian Witt (Yale Law School) reflects on history and the Haspel nomination.

• ICYMI: The law of spreading false news in the Massachusetts Bay Colony. 

• Some Updates.  (We’ve been traveling and have a few more than is our norm.) Last Tuesday, at an event sponsored by the Supreme Court Historical Society, Justice Ruth Bader Ginsburg asked Richard Primus and Randy Barnett how each would have decided Loving v. Virginia?  Their answers on SCOTUSblog.

• More ICYMI.  Nicola Peart, University of Otago, on Ethel Benjamin, New Zealand’s first female barrister and solicitor. Mary Beth Norton on "witch hunts" in AHA Perspectives.  Exhibiting 95 years of  Mauritius’s constitutional history.  A report of Jill Norgren on Stories From Trailblazing Women Lawyers at the Wilson Center.

• Also, Program Committee Chair Claire Potter and Co-Chair Brian Ogilvie preview the annual meeting in Chicago, January 3-6, 2019.  It will include an ASLH-sponsored panel or two showcasing doctoral candidates and recent hires in legal history.

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

Li's "Nixon in New York"

Victor Li, an assistant managing editor with the ABA Journal, has published Nixon in New York: How Wall Street Helped Richard Nixon Win the White House with Rowman & Littlefield:

Richard Nixon’s loss in the 1962 gubernatorial election in California was more than just a simple electoral defeat. His once-promising political career was in ruins as he dropped his second high-profile race in as many years. Nixon, himself, rubbed salt in his own self-inflicted wounds by delivering a growling, bitter concession speech that made him seem like a sore loser. In the months following his defeat and self-immolation, he left California to move to New York so that he could work for a prestigious Wall Street law firm. His new career only seemed to confirm what everyone already knew: Richard Nixon was finished as a politician.

Except, he wasn’t. Nixon’s political resurrection was virtually unprecedented in American history role, and he had his law firm to thank for paving his way to the White House. His role as public partner at Nixon, Mudge, Rose, Guthrie & Alexander was the ideal platform for him as he looked to reinvent himself after his back-to-back losses in 1960 and 1962. Nixon’s firm gave him access to deep-pocketed clients, many of whom became donors when he decided to take the plunge in 1968. Furthermore, working for so many international clients allowed him to travel the world and burnish his foreign policy credentials – a vital quality that voters were looking for as the Cold War raged on and the Vietnam War showed no signs of slowing down. Nixon’s time at the firm also allowed him to build a formidable campaign staff consisting of top-notch lawyers, researchers and writers – a staff that did just about everything for him when it came time to ramp up for the 1968 campaign

On Choosing a Protagonist

This may sound strange, but in The Sit-Ins I wrote a book whose protagonist is a constitutional claim. The student activists are the heroes of the book; their bold actions set the story in motion. But the principal character of that story is a claim about what the Constitution means.

That claim, in its simplest form, is that the Fourteenth Amendment’s equal protection clause prohibits racial discrimination in “public accommodations”—the legal term for privately owned and operated businesses that serve the general public. This is my protagonist. It strides on the scene in the opening pages. I offer some backstory, letting the reader know where this character has been and why its appearance is so disruptive and challenging. I then set my protagonist in motion. 

 

Narrowing my focus along certain dimensions—a single legal claim, charted over a five-year period—allows me to expand my cast of characters and institutional settings. Each of the book’s chapters revolves around a distinctly situated group of people who confronted this claim: the student protesters, civil rights lawyers, movement sympathizers, civil rights opponents (a group that included white business owners, southern state officials, racist demagogues, and libertarian ideologues), the justices of the U.S. Supreme Court, and federal lawmakers who played a role in the passage of the Civil Rights Act of 1964.

The lunch counter sit-in protests in the spring of 1960 made this Fourteenth Amendment claim a salient, urgent national issue. Although the students initiated the sit-ins with little conscious intention of making a formal claim of constitutional reconstruction, their actions sparked a wide-ranging debate on the scope of the constitutional meaning of equality. The book follows this claim as it travels up and down the legal and political landscape of early-1960s America.

Soon after the protests begin, civil rights lawyers translated the students’ bold claims for dignity and equality into the language of judicial doctrine. Outside sympathizers translated these same claims into the language of “popular constitutionalism”—the rich blend of legal norms, moral sensibilities, and public policy with which the American people contest, and sometimes remake, the meaning of the Constitution. Opponents too played a role in the story, launching a constitutional counter-offensive in which they proclaimed that private business operators had a “right to discriminate.”

In the closing chapters, our protagonist moves into more conventional legal settings. At the Supreme Court, the justices struggled with the legal issues raised by the sit-ins. They were hesitant to give the civil rights movement another sweeping Brown-like constitutional victory—at least not on this particular constitutional claim. The justices overturned protester convictions in the sit-in cases, but they did so on narrow grounds, concluding that there was insufficient evidence to support a conviction or that there was direct state encouragement of or involvement in the lunch counter manager’s decision to discriminate. The ultimate victory of the claim set in motion by the sit-in movement came not from the Supreme Court but from Congress. Title II of the Civil Rights Act of 1964 effectively outlawed racial discrimination in public accommodations across the nation.

Choosing the right protagonist is surely one of the most important choices any writer makes. Legal historians may select a person or group of people as their protagonists, but often the more useful and appropriate protagonist is something else: an institution, such as a court or administrative agency; a city; a text; or a legal claim.

For my story, choosing a constitutional claim as my central character allows me to explore how this claim fared in different contexts and different institutional settings. I have character development. My claim evolved over time; the way in which one institution treated the claim affected how other institutions subsequently evaluated it.

Of course selecting a protagonist comes with tradeoffs. My story lacks a constant cast of characters, for example. People come to center stage and then fade into the background, sometimes to reappear, but not always. It all depends on where my protagonist’s next challenge lies. So the student protests who feature so prominently in my early chapters are largely off stage by the closing chapters, when my protagonist is occupied at the Supreme Court, the White House, and Congress.  The protagonist needs to work for the story you’re trying to tell.

Yackee on Congolese Expropriation

Jason W. Yackee, University of Wisconsin Law School, has posted Protecting the French Investor Abroad: Expropriation, Diplomacy, and Sugar in the Congo, 1970-1978:

This article examines the methods and mechanics, the scope and the limitations, of France’s efforts to protect its investors abroad during the post-colonial period. The article tells the story of the Republic of Congo’s nationalization in 1970 of the Société industrielle et agricole du Niari (SIAN). At the time of independence, the company, controlled by the powerful Vilgrain family, was the Congo’s largest private employer. The SIAN episode provides fertile ground for exploring the theme of post-colonial entanglements from a political-economic perspective. It especially illustrates how those entanglements provided both obstacles to and opportunities for neo-imperial influence, just as they provided obstacles to and opportunities for acts of authentic sovereign independence. The article suggests that France’s, the Congo’s, and the Vilgrain family’s mutual interdependence served to insulate the effects of the SIAN nationalization on the larger Franco-Congolese relationship while also providing, eventually, a certain measure of compensation for the despoiled investor.