CFP: South Asia Legal Studies Workshop

Just released: the Call for Proposals & Commentators for the 17th Annual South Asia Legal Studies Workshop, which will be held in person: October 18, 2023, at the University of Wisconsin Law School, and virtually on December 1-2, 2023.  It invites a short paper or project proposal “relating to any aspect of the study of law and South Asia.”  The organizers write:

We understand “law” in its broadest sense to encompass not only state law, but also norms emanating from non-state sources and actors. We welcome proposals from a diverse array of disciplines and career paths and research on issues of timely interest and concern have been particularly well received at past workshops. Please note that those who presented during the last two years (2021 and 2022) are not eligible to apply.

--Dan Ernst

A History and Inventory of the Records of the New York State Supreme Court

With financial help from the William Nelson Cromwell Foundation, the New York State Court of Appeals and the New York State Archives have published a second edition of "Duely & Constantly Kept:” A History of the New York Supreme Court and an Inventory of Its Records, 1691–1847:

In 1691 the Assembly of New York Colony passed an act establishing a Supreme Court of Judicature and provided that the court should be "Duely & Constantly Kept" at times to be provided. After over 350 years of political revolution and independence from Great Britain, four State constitutions, and four major reorganizations of the judiciary, the Supreme Court continues as the State’s court of “general, original jurisdiction." Extending the meaning of the phrase, a comprehensive collection of New York’s earliest court records, covering the period of 1690 to 1847, are now "duly and constantly kept" at the State Archives.

--Dan Ernst

Friedlander on the Delaware Companion Case in Brown

Joel Edan Friedlander, Friedlander & Gorris, has posted The Desegregation Decrees of the Delaware Court of Chancery, which is forthcoming in the Delaware Law Review:

It is often said that the United States Supreme Court affirmed Chancellor Collins J. Seitz in Brown v. Board of Education, but the legal history is more complex than that. Chancellor Seitz’s decision in Belton v. Gebhart and Bulah v. Gebhart was simultaneously historic, influential, and disregarded as a model for desegregation. In this essay, I discuss how Chancellor Seitz’s decision and decree can be seen as representing an alternative model for desegregation based on a more traditional form of equity jurisprudence. I examine Chancellor Seitz’s approach to desegregation by examining Belton/Bulah within the context of three other challenges to racial segregation adjudicated by the Delaware Court of Chancery in the decade between 1950 and 1959. The manner by which Chancellor Seitz and Vice Chancellor Marvel discharged their judicial oath in these four cases is worthy of study and honor several decades later.

--Dan Ernst

Bryson's Edition of Chancery Cases, 1660-1673

Just published: W. H. Bryson, ed. Reports of Cases in the Court of Chancery from 1660 to 1673 (Tempe: Arizona Center for Medieval and Renaissance Studies, 2022):

This edition of Chancery cases from the Restoration of Charles II in 1660 to the beginning of the juridical tenure of Lord Nottingham in 1673 includes all of the Chancery reports, both in print and in manuscript, known to date from this period. It also adds to the Chancery canon the law reports included in Lord Nottingham’s prolegomena. These reports come from the judicial tenures of Edward Hyde, Earl of Clarendon, Sir Orlando Bridgman, and the Earl of Shaftesbury, three very different types of equity judges. Yet there is a consistency among them, which shows the continuity of the administration of the court. These consolidated reports are presented chronologically according to the modern method of presenting cases.

--Dan Ernst

Raffield's "Shakespeare's Strangers and English Law"

Paul Raffield, University of Warwick, has published Shakespeare's Strangers and English Law (Hart/Bloomsbury):

Through analysis of 5 plays by Shakespeare, Paul Raffield examines what it meant to be a 'stranger' to English law in the late Elizabethan and early Jacobean period. The numbers of strangers increased dramatically in the late sixteenth century, as refugees fled religious persecution in continental Europe and sought sanctuary in Protestant England.

In the context of this book, strangers are not only persons ethnically or racially different from their English counterparts, be they immigrants, refugees, or visitors. The term also includes those who transgress or are simply excluded by their status from established legal norms by virtue of their faith, sexuality, or mode of employment.

Each chapter investigates a particular category of 'stranger'. Topics include the treatment of actors in late Elizabethan England and the punishment of 'counterfeits' (Measure for Measure); the standing of refugees under English law and the reception of these people by the indigenous population (The Comedy of Errors); the establishment of 'Troynovant' as an international trading centre on the banks of the Thames (Troilus and Cressida); the role of law and the state in determining the rights of citizens and aliens (The Merchant of Venice); and the disenfranchised, estranged position of the citizen in a dysfunctional society and an acephalous realm (King Lear).

--Dan Ernst

Sophia Lee to be Dean at Penn Law

We congratulate former LHB Guest Blogger Sophia Z. Lee on her naming as the next dean of the  University of Pennsyl-vania Carey Law School.  Professor Lee is the author of The Workplace Constitution from the New Deal to the New Right (2015).

--Dan Ernst

Halliday on English Laws and Global Histories

English Laws, Global Histories; or, What Makes a Court Supreme? the presidential address Paul D. Halliday, University of Virginia, delivered at the North American Conference on British Studies in November 2021, has now been published open access in the Journal of British Studies.  Here is a taste:

I will explore a question I've long puzzled over: how might one produce a global history of English laws? We need this history; a global orientation offers the only way to conceive English laws in all their Englishness. I stress English, for the laws of a British empire were peculiarly English. Yet they were also multiform: so much more than indicated by all the maps of common law countries one might find online. We also need this history because understanding English law's extra-English transformations will help us think through any number of problems that people around the globe confront now in the possession and protection of rights in all their forms: substantive and procedural, civil, constitutional, and human.

–Dan Ernst

Holt's "Very Short Introduction" to the Civil Rights Movement

Thomas C. Holt, the James Westfall Thompson Distinguished Service Professor Emeritus of American and African American History at the University of Chicago, has published The Civil Rights Movement: A Very Short Introduction (Oxford University Press):

The Civil Rights Movement was among the most important historical developments of the twentieth century and one of the most remarkable mass movements in American history. Not only did it decisively change the legal and political status of African Americans, but it prefigured as well the moral premises and methods of struggle for other historically oppressed groups seeking equal standing in American society. And, yet, despite a vague, sometimes begrudging recognition of its immense import, more often than not the movement has been misrepresented and misunderstood. For many, a singular moment, frozen in time at the Lincoln Memorial, sums up much of what Americans and the world know about that remarkable decade of struggle.

In The Civil Rights Movement: A Very Short Introduction, Thomas C. Holt provides an informed and nuanced understanding of the origins, character, and objectives of the mid-twentieth-century freedom struggle, privileging the aspirations and initiatives of the ordinary, grassroots people who made it. Holt conveys a sense of these developments as a social movement, one that shaped its participants even as they shaped it. He emphasizes the conditions of possibility that enabled the heroic initiatives of the common folk over those of their more celebrated leaders. This groundbreaking book reinserts the critical concept of "movement" back into our image and understanding of the Civil Rights Movement.

--Dan Ernst

Weekend Roundup

• Philippa Strum will receive the Spitzer Lifetime Achievement Award at the Bill of Rights Celebration of the District of Columbia Chapter of the ACLU on May 2.  
  

•  “'Legal Knowledge,' a new podcast produced by the Arthur J. Morris Law Library’s Special Collections department, will explore the history of legal education at the University of Virginia."
  

• Advocate, the memoir of “DC insider” James Hamilton, is published (ABAJ) .
  

• ICYMI: Amanda Frost on birthright citizenship (WaPo). Hardeep Dhillon on how birthright citizenship shaped Asian American families (Smithsonian).  Illinois’s history with slavery and its links to the present (Illinois Public Media).  A modern history of tenants' rights (Investopedia).
  

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

Aranha on Suffrage Reform in the Bahamas

[We have the following announcement.  DRE]

Stephen B. Aranha, Towards a Democratic Franchise. Suffrage Reform in the Twentieth-Century Bahamas (Global Perspectives on Legal History 20), Frankfurt am Main: Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie 2022, XII, 323 p., ISBN 978-3-944773-38-4, eISBN 978-3-944773-39-1

The book examines the process of electoral reform in the Bahamas during the twentieth century in the broader context of decolonisation. Beginning with the General Assembly Elections Act of 1919, which reaffirmed a franchise limited to propertied men, milestones include the introduction of voting by secret ballot between 1939 and 1946, universal adult male suffrage in 1959, women's suffrage in 1961, and the incremental abolition of plural voting between 1959 and 1969.

This legal and political historical study draws on a variety of sources from Great Britain and the Bahamas, such as legislation, legal cases, government records, newspapers and blogs. It also analyses the effect that the electoral reforms have had on the state of democracy in the modern-day Bahamas in shaping the relationship between the postcolonial state and its citizens. The author concludes that since independence in 1973 the reform progress has stalled. Civil society, the driving force behind the twentieth-century reforms, has been largely dormant since then.

After graduating from the Free University of Berlin, Stephen B. Aranha worked in the Bahamas where he joined the then College of The Bahamas as an Assistant Professor in History. In 2016, he returned to Germany as a doctoral student at the Max Planck Institute for Legal History and Legal Theory. He earned his doctorate from the Goethe University in Frankfurt am Main in 2021. 

More information about the book and its availability in Open Access and print [here].

Roberts on Cordell Hull and the Income Tax

Tracey M. Roberts, Cumberland School of Law, Samford University, has posted A Man for His Era and for Ours: Cordell Hull, Father of the Federal Income Tax, which is forthcoming in the Cumberland Law Review:

Cordell Hull (and Spittoon), 1939 (LC)

An 1891 graduate of Cumberland School of Law, Cordell Hull served our country in countless ways. He worked as captain of the Fourth Regiment of the Tennessee Volunteer Infantry in the Spanish-American War, as judge for the fifth judicial circuit of Tennessee, as state representative in the Tennessee House of Representatives, as a member of the United States House of Representatives, as a member of the United States Senate, and as United States Secretary of State. President Franklin D. Roosevelt referred to him as the “Father of the United Nations.” Hull subsequently received the Nobel Peace Prize in 1945 in honor of his work to establish that body. Hull is less well known for his work to establish another important and enduring institution—the modern income tax. In his 1948 memoir, Hull wrote that he probably would not be able to render public service equal to his work in long fight for enactment of the income-tax system, even if he had two lifetimes. This essay explains why Hull regarded the federal income tax as among his chief contributions. First, it outlines Hull’s personal history, his experiences with his mentor—United States Representative Benton McMillin— Hull’s efforts leading up to the adoption and ratification of the Sixteenth Amendment, and the passage of the Revenue Act of 1913. Second, it discusses the historical, economic, and political context that motivated Hull to introduce the tax reform that not only sustained the United States through the two world wars that followed but made possible widespread economic prosperity in the twentieth century. Finally, it discusses the original impetus for reform, comparing the economic conditions from over 100 years ago to those prevailing today, and outlines what it would take to fulfill Hull’s vision and intentions for the federal tax system and the country in the present.

--Dan Ernst

Schwartz on Bellia & Clark on Compact Theory of US Federalism

David S. Schwartz, University of Wisconsin Law School, has posted The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism, which is forthcoming in the Journal of American Constitutional History:

Compact theory will not stay dead. Justice Clarence Thomas seems intent on reviving it in some form. Recently, Professors Anthony J. Bellia Jr. and Bradford R. Clark have given a scholarly imprimatur to compact theory by arguing that the word “state” in the Constitution compels us to interpret American federalism doctrine in the manner that Emmerich de Vattel and other European international law theorists would have interpreted the various treaty arrangements that created confederacies of small European states. This international law doctrine holds that express waivers of sovereignty by member states in such leagues must be construed narrowly, and that waivers of sovereignty by implication are disallowed entirely. The authors claim that the doctrines of Vattel were so “well known to the Founders” that the word “state” in the Constitution was widely and tacitly understood to refer to independent, sovereign Vattelian nation-states.

This article argues that Bellia & Clark’s thesis is mistaken. The Framers consistently and systematically rejected this conception of American states as sovereign nation-states in creating the Constitution. To the extent that the Framers showed any awareness of Vattel’s international law understanding of confederacies, they associated it firmly with the central failing of the Articles of Confederation. The ratifying public was well aware that a Constitution established by the people and empowered to regulate the people directly was a fundamental departure from European-style confederacies. Vattelian international law theory as described by Bellia & Clark in essence became “compact theory” in the United States, where it served as the theoretical foundation for ultra-strict construction of implied powers, and later for nullification and secession. It was rejected repeatedly in U.S. constitutional history. Thus, while Bellia & Clark’s account could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.

--Dan Ernst

Thai to Speak on A Chinese Lawyer in Cold War Hong Kong

Tomorrow, Philip Thai, History and Asian Studies, Northeastern University, will be giving via Zoom an ABF Research Seminar, Fighting Containment with Colonial Law: The Strange Career of Percy Chen in Cold War Hong Kong;

Shortly after intervening in the Korean War (1950–53), the People’s Republic of China faced an array of economic sanctions by the United States and the United Nations. The nascent regime vowed to “oppose the American imperialist policy of economic blockade against our country,” and it sought to break what it denounced as an illegal and illegitimate embargo by any means necessary. One front in this campaign was the British colony of Hong Kong, where the People’s Republic hired a lawyer by the name of Percy Chen to work with its many front companies and file lawsuit after lawsuit challenging the U.S. embargo. At first glance, Chen seemed an unlikely figure to serve as legal counsel for Communist China. An Afro-Asian anglophile and a thoroughly bourgeois barrister who lived on the margins of the British empire, Chen found himself at the center of China’s legal offensive during a critical moment in the Cold War. This talk looks at Chen’s life and legal work during the early 1950s, retracing how he wielded colonial law as a weapon to chip away at the U.S. embargo and thereby circumscribe its reach. More broadly, it situates Chen’s role within the vast shadow economies of Greater China during the Cold War and explores the creative ways assorted actors leveraged the legacies of empire for survival and profit. The presentation is based on a draft chapter of Professor Thai’s forthcoming book, In the Shadows of the Bamboo Curtain.

To register, contact Sophie Kofman at skofman@abfn.org

The Docket 5:4

Issue 5:4 of The Docket, the online publication of Law and History Review, is now live, with an essay by David Tanenhaus, Christopher Tomlins's remembrance of David Lieberman (1953-2022), a review symposium on Christine Desan's Making Money and more.

LHR 40:4

Law and History Review  40:4 has now been published on Cambridge Core.

Original Articles

The Probate Regime: Enchanted Bureaucracy, Islamic Law, and the Capital of Orphans in Nineteenth-Century Egypt
Adam Mestyan, Rezk Nori

“To Save the Benefit of the Act of Parliamt”: Mapping an Early American Copyright
Nora Slonimsky

Protecting the Colony from its People: Bushranging, Vagrancy, and Social Control in Colonial New South Wales
Meg Foster

Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86
Kate Redburn

“They Call it Schaec in Flemish”: The Language of Abduction with Marital Intent in the Late Medieval Low Countries
Chanelle Delameillieure

Wool Smuggling and the Royal Government in England, c.1337–63: Law Enforcement and the Moral Economy in the Late Middle Ages
Matt Raven

From Slaves to Índios: Empire, Slavery, and Race (Maranhão, Brazil, c.1740–90)
Alexandre Pelegrino

Forum: Anna Lvovsky's Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall

Introduction: Rethinking the Policing of Homosexuality in Modern America
Angela Fernandez, Gautham Rao

Complicating Conformity
Marie-Amélie George

Meet Me in Pervert Park: Epistemology, Positionality, and Praxis in the Queer History of Policing and the Law
Steven Maynard

Into Law's Artifice: Postwar Policing, Sexual Difference, and the Epistemic Gap
Yvonne Pitts

Response
Anna Lvovsky

Review Essay

Seeing Like an Anti-Fraud State
Susanna L. Blumenthal

Book Reviews

Adriana Chira, Patchwork Freedoms: Law, Slavery, and Race Beyond Cuba's Plantations Cambridge: Cambridge University Press, 2022.
Mariana Dias Paes

Sascha Auerbach, Armed with Sword and Scales: Law, Culture, and Local Courtrooms in London, 1860–1913 Cambridge: Cambridge University Press, 2021
Allyson N. May

Michael Lobban, Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa Cambridge: Cambridge University Press, 2021
Erin Braatz

Lisa Ford, The King's Peace: Law and Order in the British Empire. Cambridge, MA: Harvard University Press, 2021
Christopher Roberts

Henrietta Harrison, The Perils of Interpreting. The Extraordinary Lives of Two Interpreters between Qing China and the British Empire Princeton: Princeton University Press, 2021
Guido Abbattista

Corrigendum

Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions
Will Smiley

Weekend Roundup

• From Environment, Law, and History: the final installment of David Schorr's series on "Nature versus the Common Law."
  

• The Law and Political Economy blog is running a series on the "LPE of Rural America." The post by Emily Prifogle (University of Michigan) and Jessica Shoemaker (University of Nebraska) may be of particular interest: "Rural and Racialized: How Property Law Perpetuates Racial Disparities."
  

• Via History News Network: Erik Baker on "The History and Politics of the Right to Grieve."
  

• Writing for Slate, Mary Ziegler (UC Davis) explains "Why the Effort to Make the Texas Abortion Bans More Humane Is Doomed."

• From the Washington Post's "Made by History" section: Michelle Bezark (Start Early/Northwestern University), "Addressing the child care crisis will take more than the CHIPS Act"; Michael Stewart Foley, "Farmers are mobilizing for action. It’s not the first time"; and more.
  

• Now online: The Center for the Study of Slavery and Its Legacies at Georgetown University. “The Center supports rigorous new scholarship and innovation in disseminating knowledge about the history of enslavement and its past and current legacies.  The history of Georgetown, the Jesuits, and enslavement is one area of focus, as well as the history of slavery and its legacies in the Washington, D.C. area, and in Catholic America.”
  

• At Stanford Law, on May 5, Felicia Kornbluh will “offer an overview of  the main arguments of her recent book, A Woman’s Life is a Human Life: My Mother, Our Neighbor, and the Journey from Reproductive Rights to Reproductive Justice (Grove, 2023)," in a session entitled Win a War on Women: My Mother, Her Neighbor, and the Fate of Reproductive Rights and Justice.  Estelle Freedman, Stanford University, will chair.  The event is part of the conference Legal Histories of the Body and the State: Dobbs and the Legacies of Regulating Gender & Sex.

• ICYMI: Illinois law, 200 years ago: Inside the quest to digitize state's legal history (Pantagraph.

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

 

Crum on the Fifteenth Amendment

Travis Crum, Washington University in St. Louis School of Law, has posted The Unabridged Fifteenth Amendment, which is forthcoming in the Yale Law Journal:

In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.

This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs a deep dive into the congressional debate, cataloguing every version of the Amendment that was voted on. It next turns to the ratification debate, an intense partisan affair that culminated in Congress compelling four Southern States’ ratification as part of their re-admission to the Union.

Rather than answer today’s doctrinal questions, this Article’s focus is on the issues debated by the ratifying generation. The Reconstruction Framers were united in their goal of enfranchising Black men nationwide, but they were deeply divided over how best to achieve that goal and whether other disenfranchised groups—such as women, Irish Americans, and Chinese immigrants—should be covered by the Amendment as well. In addition, the Reconstruction Framers debated whether and how the Amendment could be circumvented and whether officeholding should be explicitly protected.

This Article argues that the Fifteenth Amendment’s original understanding went beyond forbidding facially discriminatory voting qualifications; it also prohibited the use of racial proxies and, albeit less clearly, protected the right to hold office. But more fundamentally, the Fifteenth Amendment rejected the original Constitution’s theory of democracy, which delegated to States the authority to decide who deserved the franchise based on whether they had a sufficient stake in the community or their interests were virtually represented. In short, the Fifteenth Amendment is the first constitutional provision that embraced the idea that the right to vote is preservative of all other rights.

--Dan Ernst

Owens on "Barbara Jordan and the Politics of Scripture"

Georgetown University Press has published "My Faith in the Constitution Is Whole": Barbara Jordan and the Politics of Scripture (2022), by Robin L. Owens (Mount Saint Mary’s University). A description from the Press:

US Congresswoman Barbara Jordan is well-known as an interpreter and defender of the Constitution, particularly through her landmark speech during Richard Nixon’s 1974 impeachment hearings. However, before she developed faith in the Constitution, Jordan had faith in Christianity. In “My Faith in the Constitution is Whole”: Barbara Jordan and the Politics of Scripture, Robin L. Owens shows how Jordan turned her religious faith and her faith in the Constitution into a powerful civil religious expression of her social activism.

Owens begins by examining the lives and work of the nineteenth-century Black female orator-activists Maria W. Stewart and Anna Julia Cooper. Stewart and Cooper fought for emancipation and women’s rights by “scripturalizing,” or using religious scriptures to engage in political debate. Owens then demonstrates how Jordan built upon this tradition by treating the Constitution as an American “scripture” to advocate for racial justice and gender equality. Case studies of key speeches throughout Jordan’s career show how she quoted the Constitution and other founding documents as sacred texts, used them as sociolinguistic resources, and employed a discursive rhetorical strategy of indirection known as “signifying on scriptures.”

Jordan’s particular use of the Constitution—deeply connected with her background and religious, racial, and gender identity—represents the agency and power reflected in her speeches. Jordan’s strategies also illustrate a broader phenomenon of scripturalization outside of institutional religion and its rhetorical and interpretive possibilities.

More information is available here. An interview with Professor Owens is available here, at New Books Network.

-- Karen Tani

Schmidt on Legal Realism, Free Law, and Hermann Kantorowicz

Katharina Isabel Schmidt’s article How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34, is now available open access from  Law and History Review.  Highly recommended!

Hermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

–Dan Ernst

Yeager on the Exclusionary Rule

Daniel B. Yeager, California Western School of Law, has posted A History of Fruit of the Poisonous Tree (1916-1942):

Learned Hand (LC)

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916-1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt.

--Dan Ernst

Merges's "American Patent Law"

Robert P. Merges, University of California, Berkeley, has published American Patent Law: A Business and Economic History (Cambridge University Press):

Students and established scholars of intellectual property law often look for historical context when trying to understand the development and present-day contours of IP rules and systems. American Patent Law supplies this context, offering readers a comprehensive account of the evolution of the US patent system and patent doctrine beginning in 1790. From the technologies for harvesting wood and shoemaking in the earliest periods to computer software and biotechnology of the present, each chapter of the book covers the characteristic technologies of each historical era. The book also describes how businesspeople in each era acquired and enforced patents and used patents as the foundation of various business arrangements. This book is a landmark in the history of technologies, the US patent system, and the way private actors have deployed patents across American history.

Here is an endorsement:

"The product of Merges's decades of research on the patent system, this masterful study transcends the simple debate over patents as a stimulus to technological discovery and documents their role in helping ensure that inventions are put to productive use. Whatever your view of patents, you will find much that is new and intriguing in Merges's analysis of how patents have been used to obtain financing and organize enterprises to exploit promising new technologies."

Naomi R. Lamoreaux - Stanley B. Resor Professor of Economics and History, Yale University

–Dan Ernst

Gordon on Slavery in California

Sarah Barringer Gordon, University of Pennsylvania, has posted Unlikely Freedom: Slavery, Race, and Law in Antebellum California:

Slavery in a free state, such as California, was far more common than we have recognized -- its place in history has long been underestimated.

This article tells the story of a key freedom suit in Los Angeles in 1856. Fourteen women and children were freed at the conclusion of the case -- but by default, rather than a formal decision. Their slaveholder fled, abandoning his claim. Yet this case changed lives, especially those whose freedom was achieved. Others also took their freedom when they learned of the outcome in this case.

But the law of slavery in California supported white slaveholders, and the emancipation of all those held in slavery by the state's largest slaveholder was unpopular among southern California's proslavery Democrats. The women and children involved in the case included a remarkable midwife, healer, and philanthropist -- Biddy Mason, whose life and achievements were essential to the growth of Los Angeles, especially its free Black community. At her death in 1891, Mason was renowned and beloved, her capacity to give matched by her own success.

Recovering this story of freedom in California highlights the slaveholding of white migrants, particularly in San Bernardino, the Latter-day Saints' colony , where Biddy, her family, and many others labored in slavery. California's Supreme Court established a strong proslavery jurisprudence -- but a local judge in Los Angeles had presided over a case that ended in emancipation. The judge was widely criticized, and his work in the case has not been studied. Yet the result changed Los Angeles and undermined slavery in its most prosperous farm community, San Bernardino.

--Dan Ernst

A Celebration for Bill Casto

William R. Casto (TTU)

[We are moving up this post on “A Celebration for Bill Casto"--that is, for William R. Casto, the Paul Whitfield Horn Distinguished Professor at the Texas Tech University School of Law, as it will take place this Friday, March 24.  DRE]

The year 2023 will mark Bill Casto’s 40th year of teaching and 50th year of scholarly publications.  We invite you to help mark that milestone by participating in a celebration of his wide-ranging scholarship.  It’s also an opportunity to have some fun talking about an eclectic variety of his favorite subjects.  You can find his wide-ranging bibliography on his faculty webpage.  Judicial reliance on his scholarship is best seen in Sosa v. Alvarez-Machainv, 542 U.S. 692 (2004).

The Celebration will be on Friday, March 24, 2023.  It will be a Zoom event.  The Celebration will consist of 4 panels, as follows (all times are Central Time since Lubbock is in flyover country):

Panel 1 (9:00 -10:15): History of the Early Supreme Court and, more generally, the role of courts in the Founding Era.

Panel 2 (10:30 -11:45): History of the Alien Tort Claims Act and, more generally, of legal issues in conducting foreign affairs in the Founding Era.

Panel 3 (1:30 - 2:45): History of Justice Jackson’s role in the Roosevelt administration and, more generally, the role of a President’s legal counselor.

Panel 4 (3:00 – 4:15): A Historiography panel on techniques and approaches to source materials.

If any of this interest you, please register using this link.

Weekend Roundup

• The Center for the Southwest at The University of New Mexico announces that Katrina Jagodinsky, University of Nebraska-Lincoln, will deliver the 2023 C. Ruth and Calvin P. Horn Lecture in Western History and Culture, on Monday, March 20, from 5 to 6:30 p.m.  She will lecture on “The Many Faces of Habeas: Challenging Coercion and Confinement in the American West.”

• Johns Hopkins's notice on Martha S. Jones's appointment to the Permanent Committee for the Oliver Wendell Holmes Devise (Hub).
  

• Former ASLH President Bruce Mann et uxor will each receive the Doctor of Laws, honoris causa, from the Elisabeth Haub School of Law at Pace University on May 15, 2023.
  

• In James Bradley Thayer, Legal Realist? Mathew J. Franck reviews The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy, by Andrew Porwancher and his three recently graduated students (Jake Mazeitis, Taylor Jipp, and Austin Coffey) in Public Discourse, the journal of the Witherspoon Institute.
  

• "The Laws of Yesterday’s Wars," a book series with Brill Nijhoff, “highlights the wider customs and norms that regulate warfare to offer alternate models of conflict regulation and resolution” (Articles of War).
  

• Martin Riker's The Guest Lecture is just terrific.  DRE
  

• ICYMI:  Judge Cites 1849 Slavery Law in Ruling Embryos Can Be Considered Property (NYT).  Clare Sears on Cross-Dressing Bans in US History (Jacobin). Joshua Shanes, College of Charleston, on What is a Progrom? (Akron Legal News).
  

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

Kathryn T. Preyer Scholars Program

[We have the following announcement from the American Society for Legal History.  DRE.]

Kathryn T. Preyer Scholars Program.  The American Society for Legal History invites submissions for the annual Kathryn T. Preyer Award. Submissions are welcome on any topic in legal, institutional, and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply.

At the annual meeting of the Society, two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers. In addition to presenting their work at this specially-designated Preyer Panel, recipients receive a small honorarium to reimburse, in some measure or entirely, their costs of attending the conference.
 
This year's deadline is April 1, 2023. More information is available here.

Wallace Johnson Program for First Book Authors

[We have the following announcement from the American Society for Legal History.  DRE]

The biennial Wallace Johnson Program for First Book Authors provides advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants develop and revise book proposals and sample chapters, as well as meeting with guest editors to learn about approaching and working with publishers.

The Johnson Program is open to early career, pre-tenure scholars, publishing in English, who have completed PhDs, JDs, or equivalent degrees. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are applicants who may not (yet) identify as legal historians. The Program provides substantial travel and accommodation funding to support attendance at Program meetings.

[More.]

Fritz's "Monitoring American Federalism"

Christian G.  Fritz, Professor Emeritus of Law, University of New Mexico School of Law, has published Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University of Press).  It appears in Studies in Legal History, the book series of the American Society for Legal History:

Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.

 Here are some quite impressive endorsements:

"Fritz’s meticulously researched and timely book reframes our understanding of interposition and shows that it was distinct in important ways from nullification. This book fills a gap in our knowledge of the states’ role in early national federalism, placing the founders’ ideas in context and showing how those ideas were reshaped in the early nineteenth century." Alison L. LaCroix, University of Chicago, author of The Interbellum Constitution: Union, Commerce and Slavery in the Age of Federalisms

"Christian Fritz is one of the most illuminating students of American constitutional development. His latest book, on the theory and practice of state interposition, casts dazzling new light on the complexities of unified constitutional meaning in a fractious federal system." Sanford Levinson, University of Texas, author of Framed: America's 51 Constitutions and the Crisis of Governance

"With perfect timing, Fritz’s book on the history of state legislative resistance hits the market, just as debate about the theory of the independent state legislature heats up, and the Supreme Court considers it. Reading Fritz’s fascinating examination of state legislative actions should fill the need for accurate history absent from the debate thus far." Maeva Marcus, Research Professor of Law, The George Washington University

"In this deftly argued book, Christian Fritz traces the complex ways in which the American states attempted to 'interpose' their authority to challenge federal acts. He explains what the idea of interposition meant to its main author, James Madison, but also why Madison's concept proved so ambiguous and controversial to its interpreters." Jack Rakove, Stanford University, author of Original Meanings: Politics and Ideas in the Making of the Constitution

--Dan Ernst

Fletcher on the History of Tribal Courts

Matthew L. M. Fletcher, University of Michigan Law School, has posted The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction:

This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.

--Dan Ernst

Legal History as Business History (and vice versa)

The Business History Conference starts on Thursday in Detroit.  The program is here.  One session is of particular interest for legal historians in the 5:00pm - 6:15pm on Friday: "Legal History as Business History (and Business History as Legal History)."  Joanna Grisinger, Northwestern University, chairs and is a panelist.  The other panelists are Justin Simard, Michigan State University; Evelyn Atkinson, University of Chicago; and Geneva Smith, Princeton University>

Mezey Dissertation Prize

[We have the following announcement.  DRE.]

LCH Julien Mezey Dissertation Award 2023.  The Association for the Study of Law, Culture and the Humanities invites submissions for the Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities.

Applicants eligible for the 2023 award must have defended their dissertations successfully between March 2022 and March 2023.  The Association will cover the Mezey Prize winner’s travel and lodging costs to the annual meeting.  Nominations for the 2023 award must be received on or before April 14, 2023.

Each applicant must submit the following: (1) a letter by the nominee detailing the genesis, goal, and contribution of the dissertation; (2) a letter of support from a faculty member familiar with the work; an abstract, outline, and selected chapter of the dissertation; and (3)  contact information for the nominee.

Please submit these materials to lch@lawculturehumanities.com.  More information about this award is available on our website.
--
Martha M. Umphrey
President, Association for the Study of Law, Culture and the Humanities

Heeren on Immigration Law and Slavery

Geoffrey Heeren, University of Idaho College of Law, has posted Immigration Law and Slavery: Rethinking the Migration or Importation Clause, which is forthcoming in the Wisconsin Law Review:

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower pay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.

--Dan Ernst

Touro Law Review Conference on "The Life & Work of Felix Frankfurter"

On April 19, 2023, the Touro Law Review will convene a conference on "The Life & Work of Felix Frankfurter": 

Felix Frankfurter may have been the most influential lawyer in the United States during the first half of the 20th century. In 1939, President Roosevelt appointed Frankfurter to the Supreme Court, where he championed judicial restraint until his retirement in 1962.

Frankfurter’s biography is a story of immigration, academic achievement and scholarship, political activism, and public service as a prosecutor, advisor to Presidents, and judge.

Please join us for a conference exploring the life, work, and legacy of the lawyer and justice known as “FF.”

Participants include Professor Brad Snyder, author of the recent acclaimed biography of Frankfurter; the Hon. Jed Rakoff; and Professors John Q. Barrett; R. B. Bernstein; Rodger Citron; Tiffany Graham; Jeremy Kessler; Helen Knowles-Gardner; William Nelson; Noah Rosenblum; Dalia Tsuk; and John Witt.

More information is available here. 

-- Karen Tani

Spring Break

 Posts may be less frequent this week.  If so, look for them to resume at their usual rate starting March 20.

--Dan Ernst

Weekend Roundup

• Earlier this week, the White House announced appointments to Permanent Committee for the Oliver Wendell Holmes Devise.  The Committee is composed of the Librarian of Congress and four additional members appointed by the President.  The new appointees are Risa Lauren Goluboff, Martha S. Jones, and Trevor Morrison.  UVA's notice on Dean Goluboff's appointment is here; NYU's on Dean Emeritus Morrison's is here.  
  

• Ryan Reft, Library of Congress, has posted Gideon v. Wainwright at 60: Anthony Lewis, Clarence Gideon, and America’s Public Defenders on the blog, Unfolding History: Manuscripts at the Library of Congress.
  

• On March 23, Kevin Butterfield, director of the John W. Kluge Center at the Library of Congress, will discuss his book, The Making of Tocqueville’s America: Law and Association the Early United States, in support of the ongoing exhibit at the Library of Congress, Join In: Voluntary Associations in America.
  

• Nicole Carlson Maffei has posted Lucile Lomen (1920-1996), an essay on the first woman to serve as a clerk to a justice of the U.S. Supreme Court, on the Supreme Court Historical Society website.
• “An archive belonging to attorney Linda Coffee, who filed the initial lawsuit in Rowe v. Wade, will go up for auction" (Dallas Morning News).

• "Stanford University Historian Gregory Ablavsky will lecture on 'The Past, Present, and Future of Native Sovereignty in Federal Law' at 5 p.m. March 15 Shideler Hall room 152," University of Miami (Ohio).
  

• Queen Mary, University of London, announces its new LLM in Common Law Theory and Practice. “Unique in the landscape of legal postgraduate education, this programme combines theoretical and applied study of the common law. Whether you are you are unfamiliar with the common law or have studied in a common law jurisdiction and wish to deepen your knowledge, this programme offers a contextual and critical insight into the common law and its workings.” 
  

• ICYMI: From the Poor Laws to the Social Security Act (History Channel). A library exhibit on the buildings that housed the University of Arkansas School for Law.  A notice of Norman Silber’s oral history of Judge Guido Calabresi. (Law.com).  Diane Minear, an attorney in the Spencer Fane Overland Park, Kansas, on Myra Bradwell.
  

• Updates: A notice of  Laura M. Weinrib’s lecture,“Money, Politics, and the Constitution in the ‘Golden Age’ of Capitalism,” at an event honoring her 2021 appointment as the Fred N. Fishman Professor of Constitutional Law at the Harvard Law School (Harvard Crimson).  Also, we noted with interest that the William Nelson Cromwell Foundation supported this digitization project (NYT).
  

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

Andrias on Labor's Antimonopoly Vision

Kate Andrias, Columbia Law School, has posted Beyond the Labor Exemption: Labor's Antimonopoly Vision and the Fight for Greater Democracy, which is forthcoming in Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak (Oxford University Press):

Although the labor movement and the antimonopoly movement both oppose concentrated economic power and bemoan rising inequality, their projects are frequently viewed as divergent, if not incompatible. After all, courts have long used antitrust law against workers’ collective activity, and antimonopoly advocates have tended to deemphasize problems of class, focusing on breaking up business in ways that do not necessarily provide workers more power. This Essay shows, however, that the industrial unions of the early and mid-twentieth century saw themselves as antimonopoly advocates. They sought not only to free workers’ collective activity from antitrust law’s sanction, but also to advance an affirmative antimonopoly agenda. Yet their agenda was different in important respects from that of prominent antimonopolists, including Louis Brandeis: Labor’s focus was not on making business smaller, but rather on building workers’ countervailing power and increasing democratic control over the workplace and the economy, through a range of strategies including industrial organizing; changes to antitrust, tax, and banking policy; new forms of national economic planning; and public control of key industries. By examining labor’s antimonopoly vision beyond the struggle for a labor exemption, this Essay draws a more complicated picture of the American antimonopoly tradition—one that challenges the dominant narrative about the relationship between labor and antitrust and enriches our understanding of what the Progressive and New Deal-era antimonopoly vision entailed. It also suggests that, to unite the interests of workers, consumers, and citizens, the primary focus of a reform agenda going forward ought not be the size or even the market power of the firms in question, although those are certainly important factors, but rather the degree to which firms’ autonomy and power are democratically constrained either by the public or by the firms’ workers—in short, a program for greater democracy.

--Dan Ernst

Solimine and Walker on the Three-Judge District Court

Michael E. Solimine, University of Cincinnati College of Law, and, posthumously, James L. Walker, Wright State University, have published The Strange Career of the Three-Judge District Court in the Case Western Reserve Law Review 72 (2022): 909-975:

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later, plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time, the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases.

Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were  disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

--Dan Ernst

Funk and Mayson on Bail at the Founding

Kellen Funk, Columbia Law School, and Sandra G. Mayson, University of Pennsylvania Carey Law School, have posted Bail at the Founding:

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case law, legal treatises, and manuals for justices of the peace; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections.

The historical inquiry illuminates three key facts. First, the black-letter law of bail in the founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second: Things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: Both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the law-on-the-books and the practice of bail in the founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning.

--Dan Ernst

Park on Title Registries and Dispossession

My Georgetown Law colleague K-Sue Park has posted Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power.  It is forthcoming in the Yale Law Journal:

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property institutions did not issue from sovereigns with established authority to govern a territory—as in the understanding drawn from European legal traditions—but rather preceded and ushered in colonial and U.S. sovereign title to Native homelands.

Using established scholarship on the colonies and original research on county-creation for the United States, this analysis presents new questions about how the legal infrastructure of property furthered conquest, and how the progression of conquest on the ground produced the national jurisdiction and real estate market. It shows that in the haphazard process toward the American title registry, colonists borrowed the English legal forms of the registry and county to remake them into local nuclei of colonial territorial expansion—the key governmental forms that drew settlers into Native nations’ territories and encouraged them to claim lands by reassuring them that those claims would become real property. The United States adopted this colonial approach to perfecting the Discovery claims it inherited or acquired from other Empires. The timed map of county creation— not the creation of territories, nor states, nor treaties— most accurately tracks where the United States grew its jurisdictional power, and when. For between its plans to invade and ability to govern lands-- between mere white entitlement and actual title—it created counties and registries, before transitional territories and often before obtaining Native cessions to the lands by treaty. In this way, counties came to underpin the national jurisdiction and the local institution of the registry became the common and continuous infrastructure for the entire national real estate market.

This history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and legal development. In particular, it also challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in different ways, including through the familiar dynamics of exclusion from institutional protections and benefits and the predatory risks of formal inclusion. But the registry’s history also illustrates a third phenomenon: legal innovation spurred by the willingness to view racial violence as an economic resource, or the development of new institutions and practices that may appear to be facially “race-neutral,” but promote the production of property value through the dehumanizing logic of race. The minimal, low-accountability design of the title registry encouraged the proliferation of market claims without authenticating them, prioritizing the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all—above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all.

--Dan Ernst

Pritchard and Thompson's "Securities Law in the Supreme Court"

A.C. Pritchard, Michigan Law, and Robert B. Thompson, Georgetown Law, have published A History of Securities Law in the Supreme Court (Oxford University Press):

A History of Securities Law and the Supreme Court explores how the Supreme Court has made (and remade) securities law. It covers the history of the federal securities laws from their inception during the Great Depression, relying on the justices' conference notes, internal memoranda, and correspondence to shed light on how they came to their decisions and drafted their opinions. That history can be divided into five periods that parallel and illustrate key trends of the Court's jurisprudence more generally.

The first saw the administration of Franklin Delano Roosevelt--aided by his filling eight seats on the Court-triumph in its efforts to enact the securities laws and establish their constitutional legitimacy. This brought an end to the Court's long-standing hostility to the regulation of business. The arrival of Roosevelt's justices, all committed to social control of finance, ushered in an era of deference to the SEC's expertise that lasted through the 1940s and 1950s. The 1960s brought an era of judicial activism-and further expansion--by the Warren Court, with purpose taking precedence over text in statutory interpretation. The arrival of Lewis F. Powell, Jr. in 1972 brought a sharp reversal. Powell's leadership of the Court in securities law produced a counter-revolution in the field and an end to the SEC's long winning streak at the Court. Powell's retirement in 1987 marked the beginning of the final period of this study. In the absence of ideological consensus or strong leadership, the Court's securities jurisprudence meandered, taking a random walk between expansive and restrictive decisions.

--Dan Ernst

Witt on Kinsella on Lieber's Code and Settler Empire

In Lieber at Sand Creek: A New Critical Reinterpretation of the Laws of War, a post on Just Security, John Fabian Witt comments on Helen M. Kinsella’s Settler Empire and the United States: Francis Lieber on the Laws of War, which appeared in the American Political Science Review. The post concludes:

[T]he most exciting feature of Kinsella’s article is the foundational puzzle it raises for legal historical interpretation. What counts as an adequate historical explanation when the regime under study is pervasively conditioned by empire? On the one hand, empire’s ubiquity powerfully conditioned the Lieber Code, as it did virtually every development in the nineteenth-century laws of war. On the other hand, the very fact of empire’s pervasiveness limits its capacity to explain the distinctive features of something like the Lieber Code. Neither the Code’s special vices, nor its particular virtues, stand out in Kinsella’s account. And that is a loss – for it undoubtedly had plenty of both.

--Dan Ernst

Tilley on the 1st Amendment and the Women of the ACLU

Cristina Tilley, University of Iowa College of Law, has posted The First Amendment and the Second Sex, which is forthcoming in the Arizona Law Review:

Crystal Eastman (NYPL)

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing full legal and cultural equality with men—were complicit in this effort because they scoffed at the domesticated version of womanhood shielded by protective speech torts like slander.

This Article begins by surfacing the deep architecture of nineteenth-century life and law, with its bright boundaries between public and private. When speech regulation was commonplace and the First Amendment slept, public law was free to punish government criticism in the public sphere—a distinctly anti-democratic phenomenon. At the same time though, women in the private sphere targeted by domestic gossip had generous remedies in private law—a distinctly empowering phenomenon. It then shows how, throughout the twentieth century, the ACLU urged the Supreme Court to treat all law as public law and all life as public life. Across this new public terrain, the group argued, speech regulation should be replaced with self-help in the form of muscular counterspeech. ACLU luminaries on the distaff side joined this campaign, convinced that women were on the cusp of full public citizenship. Because this cultural turn would give women status to counterspeak, they were certain the protection of remedial speech torts would grow obsolete.

Today it appears that the women of the ACLU fatally miscalculated. American law has adopted the premise that all can navigate the deregulated marketplace of ideas by marshaling ideas and intellect. But American culture clings to the preference for private womanhood, producing gendered consequences for female speech. Modern women who bring their ideas into the public sphere are just as likely to be refuted with attacks on their domestic status or sexuality as they are with intellectual rejoinders. Stripped of the private law that used to repel such threats, these women are left either to counterspeak in ways that aggravate their personal peril or to withdraw from the speech arena altogether. The Article contends the time has come to acknowledge the tax that speech law extracts from women, and to ask whether today’s expressive marketplace is fair or foul.

--Dan Ernst