A World of Law in a Scrap of Paper

In my last post, I suggested that writing the history of law in a space like the Indian Ocean “means that we have to rid ourselves of any singular, grounded notion of what “law” is, and take in a polyphonic world of multiple legalities, of circulations, of connections, and (invariably) of translations.” It sounds like a lofty goal – and in some ways it is – but if the growing literature on global history has taught us anything, it is that these sorts of histories are not just possible, they are eminently manageable.

Wood to Lecture on Constitutionalism and the American Revolution at Northwestern Law

[We’re authorized to post the following notice.  Attendees are asked to register here.  DRE]

The Northwestern Pritzker School of Law will sponsor a series of lectures by Professor Gordon Wood, the prizewinning historian of the American Revolution and early Republic.

The lectures, devoted to the topic “Constitutionalism in the American Revolution,” will take place on six successive Tuesdays and Thursdays, from October 15 to October 31, 2019, each
beginning at 4:00 pm at the Northwestern Pritzker School of Law in Rubloff 180.

Along with students enrolled in a class built around the lectures, and Northwestern faculty, we
cordially invite members of the Chicago legal history community to attend the lectures and a
reception for Professor Wood. The reception, co-sponsored by the American Bar Foundation, will occur following the fifth lecture on October 29, 2019.

Please Note: Attending all six lectures is not required. We hope you will join us for any lectures
as your schedule allows.

Gordon Wood will join the Northwestern Pritzker School of Law as Visiting Professor of Law in October 2019. Wood is the Alva O. Way University Professor and Professor of History Emeritus at Brown University, where he served on the faculty from 1969 until his retirement. Wood is the preeminent scholar of the American Revolution. He is the author of The Radicalism of the American Revolution, which earned the Pulitzer Prize and the Ralph Waldo Emerson Prize in 1993, as well as dozens of other acclaimed books and articles. In 2010, Wood was awarded a National Humanities Medal. Wood earned his M.A. and Ph.D. from Harvard.

Please RSVP [here] for the lectures and reception:

Lectures, 4 p.m. Rubloff 180
Tuesday, October 15 / Thursday, October 17
Tuesday, October 22 / Thursday, October 24
Tuesday, October 29 / Thursday, October 31

Reception: Tuesday, October 29, 5:30 p.m. Lowden Hall

The events are co-sponsored by the American Bar Foundation.  For more information, please contact Professor James Pfander at Northwestern Law.

Griffin on Historical Practice and Constitutional Change

Stephen M. Griffin, Tulane University Law School, has posted Against Historical Practice: Facing Up to the Challenge of Informal Constitutional Change, which is forthcoming in volume 35 of Constitutional Commentary (2020):

Contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases have drawn increased attention to the use of historical “practice” in American constitutional law. The use of governmental practice to inform legal analysis has a long pedigree in the American constitutional tradition. In this essay I argue that it is nonetheless fundamentally flawed in multiple ways that suggest it should be replaced or, at least, reconstructed. Practice-based accounts of constitutional law should be understood as raising the crucial question of how to understand informal constitutional change. This is change that is in some sense legal, perhaps even equivalent in significance to a formal amendment, but falls outside the Article V process. To replace the use of practice, I advocate an approach which I call “constitutional change as state building.”

In Part I, I review two types of appeals to practice that are suggested by the literature. First, there is the “comity” version associated with Justice Frankfurter’s influential test in Youngstown. Second, there is the “invitation to struggle” version suggested by Edward Corwin’s famous remark concerning the locus of constitutional power in foreign policy. This latter version is perhaps best exemplified by the controversy over presidential war powers. I argue that both of these versions are underdeveloped. They tend to bypass the relationship of the various incidents of the use of governmental power to the kind of contextual shifts best analyzed by historians. In addition, they fail to answer the practical question of how we are to know when enough incidents of “practice” are sufficient to generate law.

To develop my argument, I specify seven objections to practice-based accounts of constitutional law in Part II. I illustrate the force of these objections in Part III by discussing several examples drawn from the dispute over presidential war powers. Part IV presents my alternative theory, constitutional change as state building, which requires incidents of governmental action to be institutionalized in a constitutional order before they can be regarded as valid law.

–Dan Ernst.  H/t: Legal Theory Blog

Prifogle on Seo, "Policing the Open Road"

We were excited to learn of the August 2019 relaunch of the online book review outlet The New Rambler Review, now edited by Cindy Ewing, Connor Ewing, Simon Stern, and Anna Su. And we were particularly pleased to see legal history represented in the recent content under review. Here's an excerpt from (former LHB associate blogger) Emily Prifogle's review of (recent LHB guest blogger) Sarah Seo's Policing the Open Road (2019):

Policing the Open Road is a beautifully written book that moves seamlessly from doctrinal analysis to exploration of themes in popular culture, like Jay-Z’s song, “99 Problems.” The legal history will be of interest to criminal law scholars and historians of policing. Yet, Seo is also particularly adept at clearly explaining legal concepts for those not so versed in Fourth Amendment doctrine, and the book is readily accessible to those more generally curious about how we came to live in a Driving While Black—even Parking While Black—society. Her history of cars and the Fourth Amendment also provides crucial context for considering the public and private nature of new searchable private property like cell phones connected to the public information superhighway. Seo has convinced me that even if the Fourth Amendment jurisprudence solved one generation’s problem, we need to start “defining freedom anew” for this generation (275).

Read on here.

-- Karen Tani

The Chicago Federal District Court at 200

[We have the following announcement.  DRE] 

A Symposium to Commemorate the Bicentennial of the Federal District Court in Chicago. Friday, October 11, 2019,Chicago-Kent College of Law,565 West Adams Street, Chicago.Marovitz Courtroom. This event is free and open to the public. Please register here. 9:00 – 9:10 am Welcome and Opening Remarks

Kenesaw Mountain Landis (LC)

Christopher Schmidt (Chicago-Kent College of Law)

Dean Anita Krug (Chicago-Kent College of Law)

9:10 – 10:15 am Panel I—Radicalism on Trial

Christopher Schmidt (Chicago-Kent College of Law): “The Case of Judge Kenesaw Mountain Landis” 

Dean Strang (StrangBradley LLC): “The 1918 Bombing of the Federal Courthouse in Chicago” 

Richard Kling (Chicago-Kent College of Law): “The Chicago Seven Trial” 

Chair: Sheldon Nahmod (Chicago-Kent College of Law)

10:30 – 11:45 Panel II—Housing, Schools, and Race

Leonard Rubinowitz (Northwestern School of Law): “The Role of the Federal Courts in Desegregating Public Housing” 

Beryl Satter (Rutgers University, History Department) and Jack Macnamara (Loyola University Chicago, Center for Urban Research and Learning): “Courts, Racism, and the Creation of American Ghettos”

Benjamin Superfine (University of Illinois at Chicago, Department of Educational Policy Studies): “School Finance Reform Litigation” 

Chair: Christopher Schmidt (Chicago-Kent College of Law)

12:00 – 1:00 pm Lunch [Morris Hall, 10th Floor]

Keynote Address by Flint Taylor (People’s Law Office and author of Torture Machine: Racism and Police Violence in Chicago)

1:30 – 2:00 “The Federal Courts, Then and Now,” an Address by Clara Altman (Federal Judicial Center)

2:00 – 3:00 Panel III: Policing

Andrew Baer (University of Alabama, Birmingham, History Department): “The Trials of Jon Burge” 

Stephen Rushin (Loyola University Chicago, School of Law) “Police Accountability Litigation”

Chair: Joanna Grisinger (Northwestern University, Legal Studies)

3:00 – 3:15 Remarks by Chief Judge Rebecca R. Pallmeyer, United States District Court for the Northern District of Illinois

Weekend Roundup

• Two items of interest from John Fabian Witt (Yale Law School): (1) He and other torts scholars (Mark Gergen, Paul Hoffman) have submitted an amicus brief to the U.S. Supreme Court in the current Section 1981 case Comcast v. National Association of African American-Owned Media. The brief challenges Comcast's characterization of a number of 19th-century torts cases and in doing so offers insights about the history of "but-for" causation as an element of negligence. (2) The latest issue of the New Republic includes his thoughts on "the shrinking legacy" of former Supreme Court Oliver Wendell Holmes, "first celebrity justice of the U.S. Supreme Court": why is Holmes veneration "in decline"?

• The 12th Annual Court History and Continuing Legal Education Symposium of the Historical Society of the U.S. District Court for the Southern District of Indiana will be devoted to the history of judicial confirmation.  The symposium includes the presentation, “Paths to the Bench: Southern District of Indiana Appointments from William E. Steckler to Gene E. Brooks,” by Doria Lynch and “a brief synopsis of the Chief Justice Robert B. Taney mural alternation project, which is part of the national trend to remove inappropriate historical symbols from public spaces.”  It will be held from 1 to 4:30 p.m. on November 1 in the Sarah Evans Barker Courtroom of the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis.   (The Indiana Lawyer.)

• John W. Kluge Center has announced the arrival of several scholars-in-residence at the Library of Congress.  The holder of the Kluge Chair in American Law and Governance is Andrea Campbell, the Arthur and Ruth Sloan professor of political science at MIT, who is working on a book project titled “How Americans Think About Taxes.” 

• Notorious RBG: The Life and Times of Ruth Bader Ginsburg is on exhibit at the National Museum of American Jewish History, 5th and Market Streets, Philadelphia, through January 12, 2020.

• Here at LHB we usually try to keep things nonpartisan, but we still feel obliged to note, in case you somehow missed it, the recent interview ASLH past-president Bruce Mann gave to CNN.  And, while we're on the subject of legal historian spouses to presidential candidates, thank you John Bessler for that shout out at the 2019 Hall of Fame Celebration of the Dubuque County Democratic Party.  DRE 

• Over at Jotwell: Binyamin Blum (UC Hastings) reviews Orna Alyagon Darr's Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine (CUP, 2018)

• ICYMI:  How Did Magna Carta Influence the U.S. Constitution? (History).  Frank Bowman on the history of impeachment in Rolling Stone.

• From the Washington Post's "Made by History" section: many historically informed observations about impeachment and President Donald Trump, including by Sidney Milkis (University of Virginia, Miller Center) and Daniel Tichenor (University of Oregon) (here); Thomas Balcerski (Eastern Connecticut State University) (here); and Doug Rossinow (University of Oslo) (here). Also Jessica Wang (University of British Columbia) on "How New York defeated rabies" and why "the city’s history with the disease offers a blueprint for eliminating deaths around the world." More.

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

Cunninham & Egbert on Emoluments & Originalism

Clark D. Cunningham, Georgia State University College of Law, and Jesse Egbert, Northern Arizona University, have posted Using Empirical Data to Investigate the Original Meaning of "Emolument" in the Constitution which is forthcoming in volume 36 of the Georgia State University Law Review:

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’.” However, in trying to determine the “normal” meaning of emolument in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word emolument has virtually vanished from contemporary American English.

In this article, we investigate the mysterious meaning of “emolument” by doing computer-assisted searches and linguistic analyses of a massive data base of texts from the time of the Constitution: the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. We found strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified.

There is virtually no judicial precedent about the meaning of “emolument” because there has been no significant court litigation over the Emoluments Clauses since the founding – that is until the Presidency of Donald J. Trump.

There is little doubt that President Donald J. Trump owns businesses that have received millions of dollars from foreign governments during his time in office, including revenue from The Trump International Hotel Washington, D.C., located a few blocks from the White House. Lawsuits have been filed in federal courts in New York, Maryland and the District of Columbia claiming that President Trump’s continued ownership of the Trump Hotel and other businesses violates the emolument clauses of the Constitution.

The three cases are in various stages of litigation. President Trump claims in each of the three cases that one usage of “emolument” that was common in the Founding Era – to refer to something received from a government for performance of official duty or employment -- is the exclusive meaning dictated by the Constitutional context.

These cases prompted us to frame our research question as: “Would Americans in the Founding Era have used the word “emolument” to describe revenue derived from ownership of a hotel?” Our research results, indicating that emolument had a broad meaning and wide usage, would support a tentative “yes” answer to this question. Indeed, our research revealed two examples where emolument was in fact used to refer to revenue received (or not received) from ownership interest in a business.

We further conclude that in each of the three clauses in the Constitution that use the word emolument, the structure of each clause indicates that the emoluments are not received for performing an official duty. Indeed, the common theme of all three clauses is to guard against federal officials receiving emoluments that are separate and outside of the compensation they are properly entitled to receive for performing their office.

Although emolument is no longer in the semantic toolbox of modern Americans, it appears that it was a very useful word in the Founding Era: useful indeed precisely in the ways it was used in the Constitution. If the drafters and ratifiers of the Constitution were concerned that foreign states could be endlessly ingenious in conceiving ways to corrupt federal officials, then there was wisdom in using a term of general inclusion like emolument.

In January 2019 the authors filed an amicus brief in support of neither party reporting our research results. The brief was submitted in the case filed against President Trump in Maryland, then pending on appeal before the US Court of Appeals for the Fourth Circuit. The brief can be downloaded from Cunningham’s home page (internet search “Clark Cunningham”) following the links for “Law & Linguistics” and then “The original meaning of "cases" in Article III of the US Constitution.”

–Dan Ernst.  H/t: Legal Theory Blog

Gerber on Colonial Pennsylvania's Holy Experiment

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted Law and the Holy Experiment in Colonial Pennsylvania, which appeared in the NYU Journal of Law & Liberty 12 (2019): 618-717:

Religious liberty is a core component of America’s legal culture. William Penn, the Quaker founder and proprietor of colonial Pennsylvania, played an indispensable role in ensuring that it is. Indeed, Thomas Jefferson — the author of one of the most celebrated religious liberty laws in American history, the Virginia Statute for Religious Freedom of 1786 — described Penn as “the greatest lawgiver the world has produced, the first in either ancient or modern times who has laid the foundation of govmt in the pure and unadulterated principles of peace of reason and right.” Jefferson was correct. After all, the commitment to liberty of conscience that characterized colonial Pennsylvania traced directly to Penn’s vision, example, and determination: Pennsylvania enacted more laws about religious tolerance than any other British American colony, both before and after Penn’s death. Delaware, which Penn also owned and which constituted the “lower counties” of Pennsylvania until it became an independent state in 1776, likewise enacted religiously tolerant laws even when Penn permitted it to govern itself with a separate assembly after 1704. Although generations of scholars have explored the political and social history of Penn’s “Holy Experiment,” no one has examined how colonial Pennsylvania used law to ensure its success. This article endeavors to do that through an exegesis of Pennsylvania’s charter, colonial constitutions, statutes, and judicial decisions.

--Dan Ernst

McNeil on indigenous land rights

Kent McNeil (Osgoode Hall Law School, York University) has published Flawed Precedent: The St. Catherine's Case and Aboriginal Title in UBC Press' Landmark Cases in Canadian Law series. From the publisher:

In 1888, the Judicial Committee of the Privy Council in London ruled in St. Catherine’s Milling and Lumber Company v. The Queen, a case involving the Saulteaux people’s land rights in Ontario. This precedent-setting case would define the legal contours of Aboriginal title in Canada for almost a hundred years, despite the racist assumptions about Indigenous peoples at the heart of the case.

In Flawed Precedent, preeminent legal scholar Kent McNeil thoroughly investigates this contentious case. He begins by delving into the historical and ideological context of the 1880s. He then examines the trial in detail, demonstrating how prejudicial attitudes towards Indigenous peoples and their use of the land influenced the decision. He also discusses the effects that St. Catherine’s had on Canadian law and policy until the 1970s when its authority was finally questioned by the Supreme Court in Calder, then in Delgamuukw, Marshall/Bernard, Tsilhqot’in, and other key rulings.

McNeil has written a compelling and illuminating account of a landmark case that influenced law and policy on Indigenous land rights for almost a century. He also provides an informative analysis of the current judicial understanding of Aboriginal title in Canada, now driven by evidence of Indigenous law and land use rather than by the discarded prejudicial assumptions of a bygone era.

This book is vital reading for everyone involved in Aboriginal law or title, for legal historians and scholars, and for anyone interested in Indigenous rights in Canada.

Some blurbs:

"Flawed Precedent is a brilliant, critical analysis of St. Catherine’s Milling, the 1888 decision that, for a century, had the enormous and pernicious effect of denying Aboriginal peoples the right to own their homelands … This book also charts the way forward to a jurisprudence that overcomes the racist attitudes that underlay St. Catherine’s." - Peter Russell

"Contemporary Canadian law is profoundly shaped by the racism embedded in its foundation. Kent McNeil has written the definitive work about Canada’s 'leading' Indigenous land rights case. He successfully packs a lifetime of scholarly research into this work." -John Borrows

"Kent McNeil provides a masterful examination of one of the most significant cases in Canadian law and the precedents it set for Aboriginal title and provincial rights within the federal system. He lays bare the racism and prejudice inherent in the ruling, and explains subsequent appeal court decisions in the case. His findings have the potential to affect contemporary land claims cases today." -Heidi Bohaker

Further information is available here.

Swimming with the Law

Thanks to Mitra for the introduction, but also for the invitation to write on here! I’ve been reading LHB for a long time, and I’ve enjoyed these guest blog posts. I’m not sure I’ll live up to the standards that others have set, but it’s too late now – you’ll have to suffer through it all anyway.

Although I have written a lot in legal history, I wouldn’t primarily identify as a legal historian. I am, above all, a historian of the Indian Ocean – a broad, maritime space that stretches from East Africa to Southeast Asia. For me, working on the Indian Ocean intertwines challenges and opportunities, particularly in conceptualizing a project and in writing it. How does one write oceanically? I’ll leave that question on the table, since this isn’t an oceanic history blog, but it is worth asking: what does it mean to do legal history in an oceanic context?

Siegel on the 19th Amendment Now

Neil Siegel, Duke University School of Law, has posted Why the Nineteenth Amendment Matters Today: A Citizen's Guide for the Centennial:

Susan B. Anthony (LC)

This year marks the one hundredth anniversary of the ratification of the Nineteenth
Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.

Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.

–Dan Ernst

Wang on copyright in China

Fei-Hsien Wang, Indiana University Bloomington has published Pirates and Publishers: A Social History of Copyright in Modern China with Princeton University Press. From the press: 

In Pirates and Publishers, Fei-Hsien Wang reveals the unknown social and cultural history of copyright in China from the 1890s through the 1950s, a time of profound sociopolitical changes. Wang draws on a vast range of previously underutilized archival sources to show how copyright was received, appropriated, and practiced in China, within and beyond the legal institutions of the state. Contrary to common belief, copyright was not a problematic doctrine simply imposed on China by foreign powers with little regard for Chinese cultural and social traditions. Shifting the focus from the state legislation of copyright to the daily, on-the-ground negotiations among Chinese authors, publishers, and state agents, Wang presents a more dynamic, nuanced picture of the encounter between Chinese and foreign ideas and customs.

Developing multiple ways for articulating their understanding of copyright, Chinese authors, booksellers, and publishers played a crucial role in its growth and eventual institutionalization in China. These individuals enforced what they viewed as copyright to justify their profit, protect their books, and crack down on piracy in a changing knowledge economy. As China transitioned from a late imperial system to a modern state, booksellers and publishers created and maintained their own economic rules and regulations when faced with the absence of an effective legal framework.

Exploring how copyright was transplanted, adopted, and practiced, Pirates and Publishers demonstrates the pivotal roles of those who produce and circulate knowledge.

Praise for the book:

 "Richly detailed, this social history reconstructs the meanings of copyright in modern China as they were understood by authors, publishers, and the state, and the strategies developed by these players to protect it. Intellectual property and copyright are hot topics, and this masterfully organized book provides insights into issues still very much in contest."—Cynthia Brokaw

"This well-researched social and cultural history looks at the emerging modern Chinese system of copyright law and practice from the late nineteenth through the mid-twentieth centuries. Shedding fresh light on an important and underexamined topic, this outstanding work makes a valuable contribution to the history of modern China, comparative study of law and copyright, and the history of the book and print culture."—Li Chen

"Pirates and Publishers may well be the most important book on intellectual property in China ever to be published in English. With deep research and sharp analysis, Wang overturns conventional wisdom about the incompatibility of copyright with Chinese culture, and shows instead how authors and publishers fought hard to protect their livelihoods. Anyone interested in the information economy in China will find this book revelatory and indispensable."—Adrian Johns

"Offering an inspired look through the archives and back rooms of the publishing worlds of Shanghai and Beijing, Pirates and Publishers is a wonderfully wise introduction to the complexities of China’s adoption of copyright. Wang not only lucidly unravels the twists and turns of this idea's fate in a country afflicted with chronic disorder, but also uses her findings to retell with considerable wit and flair much of modern China's intellectual and cultural history. A tour de force and a pleasure to read."—Joseph McDermott

Further information is available here. 

--Mitra Sharafi

Princeton Conference on Law and Legality in Modern Eastern Europe

We have the following announcement, about an upcoming conference at Princeton University:

Law and Legality in Modern Eastern Europe
Princeton University
Shelby Cullom Davis Center for Historical Studies
October 4-5, 2019

FRIDAY, OCTOBER 4

1:15 p.m. Welcome and Introductions
Emily Greble (Vanderbilt University)
Iryna Vushko (Princeton University)

1:30 p.m. - 3:15 p.m. Politics of Punishment in the Habsburg and
Russian Empires

Chair: Emily Greble
Commentator: Ekaterina Pravilova (Princeton University)

Alison Frank (Harvard University), “The Emperor and the
Executioner: Justice, Mercy, and Capital Punishment in
the Habsburg Monarchy”

Iryna Vushko (Princeton University), “Imperial Golgotha:
Spielberg Prison in the Habsburg Empire”

Daniel Beer (Royal Holloway), “Rituals of Civil Death:
Sovereignty and Subversion in the Reign of Alexander II”

3:15 p.m. - 3:30 p.m. Coffee Break

3:30 p.m. - 5:30 p.m. Overlapping and Contested Sovereignties

Chair: Iryna Vushko

Commentator: Lauren Benton (Vanderbilt University)

Natasha Wheatley (Princeton University), “Sovereignty as
a Knowledge Problem”

Aimee Genell (Western Georgia University), “From the
Legalist Empire to the Sovereign State”

Emily Greble (Vanderbilt University), “Debating Concepts
of Sovereignty: Muslims in Post-Ottoman Europe”

Dominique Reill (University of Miami), “Eeeny, Meeny,
Miny, Law: Law-Making and Self-Determination in
Absence of a State”

SATURDAY, OCTOBER 5

9 a.m. - 10:45 a.m. International Law and Regional Implications

Chair: Emily Greble  

Commentator: Eric Weitz (The City College of New York and the Graduate Center, CUNY)

Peter Holquist (University of Pennsylvania), “Testing the
New ‘Laws of War’: Imperial Russia and the 1877-78
Russo-Turkish War”

Jared Manasek (Pace University), “Occupation, Sovereignty,
and the Presumption of Legality: the “Forgotten” Ottoman Exclave of Ada Kale in the Danube International Waterway”

Kent Schull (State University of New York, Binghamton),
“Repatriating POWs in Post-Great War Eastern Europe:
Negotiating Citizenship & Belonging in the Wake of
Dismantled Empires, New Nation States & Imperial
Ambitions”

10:45 a.m. - 11 a.m. Coffee Break

11 a.m. - 12:45 p.m. The Transformation of the East European Legal Order in the 20th Century

Chair: Iryna Vushko 

Commentator: Benjamin Nathans (University of Pennsylvania)

Gábor Egry (Institute of Political History, Budapest), “The
Law of the State, the State of the Nation: the Idea of the
Nation and the Transformation of Legal Categories in
Interwar Eastern Europe”

Melissa Feinberg (Rutgers University), “The Dilemmas of
De-Austrianization: Family and Marriage Law in the First
Czechoslovak Republic”

Rebecca Reich (Cambridge University), “Journalism and
Judgment in the Post-Stalin Period”

 -- Karen Tani

Larson, "The Trials of Allegiance"

New from Oxford University Press: The Trials of Allegiance: Treason, Juries, and the American Revolution (Sept. 2019), by Carlton F.W. Larson (University of California, Davis). A description from the press:

The Trials of Allegiance examines the law of treason during the American Revolution: a convulsive, violent civil war in which nearly everyone could be considered a traitor, either to Great Britain or to America.

Drawing from extensive archival research in Pennsylvania, one of the main centers of the revolution, Carlton Larson provides the most comprehensive analysis yet of the treason prosecutions brought by Americans against British adherents: through committees of safety, military tribunals, and ordinary criminal trials. Although popular rhetoric against traitors was pervasive in Pennsylvania, jurors consistently viewed treason defendants not as incorrigibly evil, but as fellow Americans who had made a political mistake. This book explains the repeated and violently controversial pattern of acquittals. Juries were carefully selected in ways that benefited the defendants, and jurors refused to accept the death penalty as an appropriate punishment for treason. The American Revolution, unlike many others, would not be enforced with the gallows.

More broadly, Larson explores how the Revolution's treason trials shaped American national identity and perceptions of national allegiance. He concludes with the adoption of the Treason Clause of the United States Constitution, which was immediately put to use in the early 1790s in response to the Whiskey Rebellion and Fries's Rebellion.

In taking a fresh look at these formative events, The Trials of Allegiance reframes how we think about treason in American history, up to and including the present.

More information is available here.

-- Karen Tani

Rg 27

[Rg 27, that is, volume 27 of Rechtsgeschichte - Legal History (2019), is now available from the Max Planck Institute for European Legal History, both in print (Verlag Klostermann) and online in Open Access on the journal's new website.  Here is the editors’ introduction.]

A close associate of the Max Planck Institute for European Legal History for many years, the first article in the new issue of the Rg is also one of António Manuel Hespanha's very last publications. Unfortunately, he passed away only a few weeks before the publication of this issue. His contribution summarises the prosopographical work on Portuguese lawyers of the early modern period that have been carried out in the last three decades. The second essay in the Research section is by Jean-Louis Halpérin. It deals with the surprising connection of criminal law and the law of nations at German-speaking universities from the 16th to the early 20th century - long before the advent of international criminal law.

The starting point of the first thematic topic (Focus "Tridentine Marriage") is the Council of Trento (1545-1563). Ten authors examine the effects and implications of the marriage law reforms enacted by the council in a variety of different regions around the world (Europe, Pakistan, Japan, the Philippines, Latin America) up to the 19th century. To mark the 100th anniversary of the Weimar Constitution, the Focus section "Translating Weimar" addresses its transnational resonance. Five contributions analyse local perspectives from Asia, Latin America and the Common Law World.

This year's Forum takes a closer look at two books, namely the handbooks on legal history published last year by Oxford University Press. Focusing on specific themes related to their own research interests, researchers from our institute have reviewed the volumes and offered their own comments to the discussion on the status of the discipline.

Luckily, the book review section treats more than just two books. As always, the books have been published within the past two years and are discussed in order to facilitate the transfer of knowledge beyond linguistic, regional and historical borders.

Finally, Anette Baumann shares her observations on the evidentiary inspection practices of the Reichskammergericht (1495-1806), and she has selected a number of inspection maps (Augenscheinkarten) to illustrate the print edition of the journal.

--posted by Dan Ernst

Welcome, Fahad Bishara!

In October 2019, Fahad Bishara, Assistant Professor of History at the University of Virginia will be guest blogging here. 

Prof. Bishara specializes in the economic and legal history of the Indian Ocean and Islamic world. His  book, A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780-1950 (Cambridge University Press, 2017) is a legal history of economic life in the Western Indian Ocean, told through the story of the Arab and Indian settlement and commercialization of East Africa during the nineteenth century. It won the J. Willard Hurst Prize (awarded by the Law and Society Association), the Jerry Bentley prize (awarded by the World History Association), and the Peter Gonville Stein book award (given by the American Society for Legal History). 

Prof. Bishara is currently working on two projects. The first narrates 500 years of world history from the deck of an Indian Ocean dhow, and takes on issues of global capitalism, international law, empire, mobility, and scale in historical writing. The second explores the Indian Ocean trade in dates and uses it as a platform for examining the dynamics of a transregional bazaar economy in the 19th and early 20th centuries, but also sets that story against the backdrop of a longer connected history of the Gulf and Indian Ocean.

Welcome, Fahad Bishara!

--Mitra Sharafi

Thank you, Caroline Shaw!

We are very happy to have had Professor Caroline Shaw (Bates College) join us as guest blogger in September 2019. Here's a round-up of her posts: 

• An Introduction: Finding a Common Thread
• Thoughts from the Trenches: How to Make the Longue Durée Manageable
• A Pedagogical Interlude
• Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool
• The Strange Symbiosis of Libel and the Popular Press

Thank you for sharing your insights on everything from 19th-c. newspapers to student writing strategies, Prof. Shaw! 

--Mitra Sharafi

CFP: 2020 Law and Humanities Junior Scholars Workshop

We have the following call for papers:

2020 LAW AND HUMANITIES JUNIOR SCHOLARS WORKSHOP

Columbia Law School, Georgetown University Law School, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the nineteenth meeting of the Law and Humanities Junior Scholars Workshop, to be held at UCLA School of Law in Los Angeles, CA, on Sunday, June 7, and Monday, June 8, 2020.

ABOUT THE WORKSHOP

The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities. In addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. We are especially interested in submissions from members of traditionally underrepresented groups. We welcome submissions from those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.)

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1000.

SUBMISSION INSTRUCTIONS

Papers must be works-in-progress that do not exceed 15,000 words in length (including footnotes/ endnotes); most papers selected for inclusion in recent years have been at least 10,000 words long. An abstract of no more than 200 words must also be included with the paper submission. A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting papers be careful to omit or redact any information in the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

Submissions (in Microsoft Word—no pdf files, please) will be accepted until December 2, 2019, and should be sent by e-mail to: juniorscholarsworkshop@sas.upenn.edu. Please be sure to include your name, institutional affiliation (if any), and phone and e-mail contact information in your covering email, not in the paper itself.

For more information, please send an email inquiry to juniorscholarsworkshop@sas.upenn.edu.

To see selected papers from some previous years’ workshops, go to:
http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Anne Dailey, University of Connecticut Law School
Katherine Franke, Columbia Law School
Sarah Barringer Gordon, University of Pennsylvania
Nan Goodman, University of Colorado
Ariela Gross, University of Southern California
Martha Jones, Johns Hopkins University
Naomi Mezey, Georgetown University Law Center
Paul Saint-Amour, University of Pennsylvania
Hilary Schor, University of Southern California
Norman Spaulding, Stanford Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, University of Southern California
Martha Umphrey, Amherst College

Conveners, 2020 Law and Humanities Junior Scholars Workshop

Kadens on Twyne's Case at Georgetown Law, 10/25

We here at Georgetown Law had a great time Friday when my fellow LHB Blogger Mitra Sharafi inaugurated the Georgetown Legal History Colloquium with her paper, "South Asians and West Africans at the Inns of Court: Empire and Expulsion circa 1900."

We are also looking forward to our next session, on October 25, at which Emily Kadens,  Northwestern Pritzker Law School, will present "New Light on Twyne’s Case":

Edward Coke (NYPL)

In 1602, the English Court of Star Chamber decided the fraudulent conveyance case Attorney General v. Twyne & Pearce. The opinion offered factors to consider in identifying when the conveyance of goods or property was fraudulent. These factors have been so useful to judges that Twyne’s Case has proven to be among the most enduring old English cases in the common law. Courts still routinely cite it for its specific analysis, and scholars reference it frequently in their studies of fraudulent conveyance law. And yet the report of the case, written by Edward Coke (who was the Attorney General in the suit), upon which judges and scholars rely contains many inaccuracies and omissions. A large number of case documents from Twyne and related actions remain in the National Archives in London, however, and they permit us to flesh out the story behind this iconic case. It turns out that the allegedly fraudulent transaction and its aftermath were very complicated, involving a rural economy of credit without banks, the ties among and feuds between local gentry and their partisans, the late Elizabethan government’s terror of popular unrest, and possibly even official malfeasance. The article unpacks this convoluted tale to provide a more accurate account of the events leading to the lawsuit. In addition, it both (1) examines fraudulent conveyance cases before Twyne in an attempt to discern whether Twyne raised novel or particularly useful issues around which the Star Chamber could fashion its interpretation of fraudulent conveyance law, and (2) examines the immediate impact of Twyne’s new jurisprudence on fraudulent conveyance cases brought in equity courts in the years shortly after Coke’s report was published.

If you’re a legal historian or student who would like to attend, please contact me or my co-convener Anne Fleming at Georgetown Law.

--Dan Ernst

Weekend Roundup

• David Sugarman, professor emeritus at the law school at Lancaster University, has posted a truly lovely appreciation of the law W. Wesley Pue (1954-2019) that appeared in the Newsletter of the Research Committee of the Sociology of Law.

• Professor Sugarman’s assessment of the work of the late Christopher W. Brooks, entitled "Law, Law-Consciousness and Lawyers as Constitutive of Early Modern England: Christopher W. Brooks’s Singular Journey," published in Law, Lawyers and Litigants in Early Modern English Society. Essays in Memory of Christopher W. Brooks, ed. Michael Lobban, Joanne Begiato, Adrian Green (Cambridge: Cambridge University Press, 2019),  32-57, is not available online, but the abstract is here.

• Out online from Law and History Review and Cambridge Core: Law of Nations Theory and the Native Sovereignty Debates in Colonial India, by Zak Leonard, and Of “Masculine Tyranny” and the “Women's Jury”: The Gender Politics of Jury Service in Third Republic France, by Sara L. Kimble. 

• Joanna Grisinger (Northwestern), Kimberly Welch (Vanderbilt), Logan Sawyer (Georgia), and Kathryn Schumaker (Oklahoma), the co-organizers of the Law and History Collaborative Research Network of the Law and Society Association, have posted a call for legal history panels for LSA’s annual meeting in Denver, Colorado, May 28-31, 2020.  They also seek volunteers to join their ranks as co-organizers.

• We can't possibly keep up with historically informed, impeachment-related posts, but here's a few: U.S. Whistleblowers First Got Government Protection in 1777 (History).  HNN rounded up hot takes from seven historians.  A brief history of presidential impeachment (BBC History Extra).

• In other news: A descendant of a Virginia slaveholders sues a professor et al. for saying as much, apparently on the theory that in noting this and his opposition to the removal of Charlottesville’s statue of Robert E. Lee, the defendants claimed he was “a racist and an opponent of people of color” (Roanoke Times). Meanwhile, at Chapel Hill, UNC professors bring the history of Jim Crow to the present.

• The Franklin D. Roosevelt Presidential Library and Museum will present Freedom of Speech and the First Amendment, a conversation and book signing with Ronald K. L. Collins, coauthor of We Must Not Be Afraid to Be Free: Stories of Free Expression in America at 2:00 p.m. on Saturday, October 12, 2019.

• Over at Nursing Clio: "'Immoderate Menses' or Abortion? Bodily Knowledge and Illicit Intimacy in an 1851 Divorce trial" by Sara Lampert (University of South Dakota)

• CNN's "Black in America" series recently featured Martha Jones (Johns Hopkins), author of Birthright Citizens. Video here.

• From the Washington Post's "Made by History" section: David Farber (University of Kansas) on "how drug-related violence complicates criminal justice reform." And more.

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

Loeffler on Jewish International Legal Biography

James Loeffler, University of Virginia, has posted Promise and Peril: Reflections on Jewish International Legal Biography, which is forthcoming in Émigré Lawyers and International Law, ed. Annette Weinke and Leora Bilsky:

The burgeoning field of Jewish legal biography has produced a profusion of new studies of Jewish lawyers, lawyering, and legal thought in the international arena. This biographicalization of legal history promises obvious rewards. Biography can unlock deeper chains of influence and forgotten acts of invention. It possesses the moral potential to restore lives displaced or disrupted by the Holocaust to their rightful places in the history of the law and law’s memory. In our own fraught moment of historical reckoning, the European Jewish experience beckons as a rich historical resource with which to rethink transnational activism and individual agency, migration and statelessness, antisemitism and fascism. Yet biography is never a neutral art. The very choice of which life to deem worthy of attention depends on an often implicit set of assumptions about relevance and uniqueness that risk historical essentialism.

In this chapter, I explore these challenges by discussing the specter of “interest” in the writing of Jewish legal biography, past and present. I take “interest” in a variety of senses: the reasons why so many Jews gravitated in disproportionate numbers to international law as a profession; the biographer’s underlying motivation for choosing which specific Jewish legal lives to chronicle; and international law’s own image of itself as a neutral sphere of human action transcending political interests. Reviewing assorted key moments in the past century of attempts at Jewish legal biography, I posit that two different approaches have governed these biographical efforts vis-à-vis the concept of interest: a liberal cosmopolitan meta-narrative that frames international Jewish lawyering as a form of legalist anti-politics; and a liberal nationalist meta-narrative that hails Jewish politics as the proper starting point for a necessary legal reordering of the world. As we shall see, the links and tensions between these different kinds of interest are crucial to questions of method and meaning. They come together in the challenge at the root of all contemporary legal biography: How do we relate the one to the many without flattening individual lives into essentialist fables in the process?

The Strange Symbiosis of Libel and the Popular Press

My thanks once more for the opportunity to be your guest blogger this month. This will be my final post.

The Strange Symbiosis of Libel and the Popular Press

In late 1920, London daily newspapers had a field day recounting the scene before the King’s Bench and a special jury. A slander case pitted writer Marguerite Radclyffe-Hall against St. George Lane Fox-Pitt, son of famed archeologist Augustus Pitt-Rivers. Fox-Pitt had recently learned from Admiral Troubridge that Radclyffe-Hall had taken up with the Admiral’s estranged wife. Fox-Pitt used this information to discredit Radclyffe-Hall at the Society of Psychical Research, purportedly calling her a “grossly immoral woman.” In court, Fox-Pitt denied that he had ever called the plaintiff “immoral.” Or, he equivocated, if he had done so, he had not meant it maliciously. Indeed, if he meant it at all, the claim pertained to her work, not to Radclyffe-Hall herself. According to the Daily Mirror, the courtroom burst into laughter as Fox-Pitt attempted to describe the immorality implicit in Radclyffe-Hall’s psychic account of a “spook horse” bathing in heaven. Not even the judge seemed able to move past the strangeness of spiritualist study to follow Fox-Pitt’s point [1]. Radclyffe-Hall won her slander suit, receiving £500 damages, a decision upheld on appeal in 1921 [2]. She won thanks to the little-known 1891 Slander of Women Act that allowed women (and only women) in England and Wales to sue for sexual slander without having to prove damages. The law would remain on the books until 2013.

I have been thinking quite a bit about this Act since starting research on reputation. It gets mentioned regularly in legal primers as one of the few caveats in British defamation law. Whereas the law generally requires proof of financial damages in cases of oral slander, the 1891 Act exempted women, since the quintessential middle-class Victorian woman presumably had no market income to lose. There are only a few hits when one searches for cases in the law reports, not leaving the historian much to draw from. If one shifts one’s view from law reports to the newspapers, however, one finds several dozen cases over the law’s 122-year life, the bulk of them taking place between its 1891 passage and 1940. With each expansion of the online British Newspaper Archive, I find more. Some of the stories are set up as general-interest stories, while other slander of women cases were less visible. Editors clearly deemed Radclyffe-Hall’s trial to be good entertainment for readers, and covered it on the first or second pages of their papers.   

As a historical repository of courtroom drama, newspapers are unparalleled sources. But they are far from being neutral parties, of course. It is perhaps hard to find an area of research in which this is more the case than in questions surrounding defamation. Members of the press were outspoken in their critique of libel law at every stage. Nevertheless, journalist critics of libel laws rarely advocated the outright abolition of defamation law. Radclyffe-Hall’s case and Kelly v. Sherlock (see my previous post) offer useful ways of thinking about newspapers’ relationship with defamation cases and how historians might take the relationship into account.

Radclyffe-Hall’s case was a society case. It was entertaining, and it would sell well. Thanks to amendments to the libel laws in the 1880s, news outlets could report on court proceedings so long as the reporting was done accurately and without malice. Targeting an ever-wider readership, especially among women, mass newspapers could bank on the appeal of a social celebrity like Radclyffe-Hall. The seeming ridiculousness of the whole affair likely made the courtroom drama all the more appealing. The laughter in the courtroom stood in for newspaper editorializing, which would have been off limits—or, rather, open to libel charges in turn. Indeed, the entire scene underscores an implicit agreement about the bounds of civility in the period. It was permissible to laugh at Fox-Pitt for his unchivalrous and inept condemnation of Radclyffe-Hall. His inhibitions about addressing her sexuality in the courtroom can be attributed to the Slander of Women Act’s blanket prohibition on criticism of a woman’s virtue. But the courtroom and wider public also seemed remarkably at ease with Radclyffe-Hall’s well-known lesbianism a decade before she published her seminal (and censored) Well of Loneliness. It helped, of course, that the case involved a psychical society, not politics; the stakes were lower. This could not be said about Kelly v. Sherlock. 

Sherlock got into trouble not because he published about Kelly but because of the manner in which he discussed Kelly. Kelly was indeed fair game. He’d made himself a target of public interest, as Baron Bramwell ruled in the trial at the Manchester assizes in August 1865. While there might be a privilege in sermonizing to one’s flock (Bramwell was doubtful, but upheld it), there was no pastoral privilege to criticize civil officials. By so doing, Bramwell held, Kelly opened himself to public rebuke [3]. Sherlock’s infraction, then, was not criticizing Kelly, but doing so in an overly vitriolic manner. It was a contemptuous attack on his professional persona. Newspapers that reported on Kelly and Sherlock could do so without feeling that they were betraying their profession or inviting trouble themselves because, to them, the case helped clarify the boundaries of legitimate journalistic practice. Journalists were not unqualified defenders of journalistic latitude, and saw no reason to be so. They were comfortable with a legally-enforced code of journalistic civility.

It is significant when even those with an interest in criticizing a norm assent to it in principle, since this reflects the power of a social norm. On my bus ride home today, I was reading the 1967 Report of the Joint Committee on Censorship of the Theatre. In his testimony to the committee, Kenneth Tynan, then fighting to have Hochhuth’s Soldiers staged, demanded the end of censorship. His phrasing early in his testimony is of note: “there should be no restriction short of libel on the presentation of historical characters living or dead” [4]. 

[1] Daily Express, November 19, 1920, p. 1; Daily Mirror, November 19, 1920, p. 2. 

[2] "Court of Appeal." Times, March 16, 1921, p. 5.

[3] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686, 689.

[4] Testimony of Kenneth Tynan January 24, 1967, as found in the Minutes of Evidence appended to the Joint Committee on Censorship of the Theatre, p. 80.

--Caroline Shaw