Siegel on The Pregnant Citizen

Reva Siegel, Yale Law School, has posted The Pregnant Citizen, from Suffrage to the Present, which is forthcoming in the Georgetown Law Journal:

This Article examines how courts have responded to the equal protection claims of pregnant citizens over the century women were enfranchised. The lost history it recovers shows how equal protection changed—initially allowing government to enforce traditional family roles by exempting laws regulating pregnancy from close review, then over time subjecting laws regulating pregnancy to heightened equal protection scrutiny.

It is generally assumed that the Supreme Court’s 1974 decision in Geduldig v. Aiello insulates the regulation of pregnancy from equal protection scrutiny. The Article documents the traditional sex-role understandings Geduldig preserved and then demonstrates how the Supreme Court itself has limited the decision’s authority.

In particular, I show that the Rehnquist Court integrated laws regulating pregnancy into the equal protection sex-discrimination framework. In United States v. Virginia, the Supreme Court analyzed a law mandating the accommodation of pregnancy as classifying on the basis of sex and subject to heightened scrutiny; Virginia directs judges to look to history in enforcing the Equal Protection Clause to ensure that laws regulating pregnancy are not “used, as they once were . . . to create or perpetuate the legal, social, and economic inferiority of women.” In Nevada Department of Human Resources v. Hibbs, the Court then applied the antistereotyping principle to laws regulating pregnancy, as a growing number of commentators and courts have observed.

I conclude the Article by considering how courts and Congress might enforce the rights in Virginia and Hibbs in cases involving pregnancy under both the Fourteenth and the Nineteenth Amendments. To remedy law-driven sex-role stereotyping that has shaped the workplace, the household, and politics, the Article proposes that Congress adopt legislation mandating the reasonable accommodation of pregnant employees, such as the Pregnant Workers Fairness Act. These sex-role stereotypes affect all workers, but exact the greatest toll on low-wage workers and workers of color who are subject to rigid managerial supervision.

When we locate equal protection cases in history, we can see how an appeal to biology can enforce traditional sex roles as it did in Geduldig—and see why a court invoking Geduldig today to insulate the regulation of pregnancy from scrutiny under Virginia and Hibbs would not respect stare decisis, but instead retreat from core principles of the equal protection sex-discrimination case law.

--Dan Ernst

Empires of Vice: A First Book with Multiple Audiences

It is a pleasure to contribute to the Legal History Blog. My first book, entitled Empires of Vice: The Rise of Opium Prohibition across Southeast Asia was published recently. Throughout the month of June, I’ll be sharing a set of posts about this book, dwelling on the multiple audiences that I hope it may “speak” to.

As Dan Ernst mentioned in his kind introduction, I received my Ph.D. in political science, currently teach at an interdisciplinary school oriented toward international affairs and policy, and have written a book in the Histories of Economic Life series of Princeton University Press. Like many interdisciplinary creatures, I find it both exciting and challenging to articulate how and why my work matters to whom.

Empires of Vice is a book for political scientists, historians, specialists of Asian Studies, and policy makers, in overlapping but different ways. It is a book about the inner life of a bureaucratic state (that urges political scientists to be more curious about how the nitty-gritty ways that states actually govern). It is also a book about the anti-opium turn of multiple European empires across Southeast Asia during the late 19^th and early 20^th centuries (that gives reasons for historians to pay more attention to a place and process of change often run roughshod over in prevailing narratives about empires and opium that focus mainly on the British empire, India, and China). And Empires of Vice is also a book about how colonial legacies have shaped Southeast Asia's illicit economies and punitive drug laws today, which more broadly addresses normative challenges and policy implications for transnational problem-solving. 

Each of my posts will elaborate on these points. In addition, I plan to incorporate brief reflections on the practical aspects of “speaking” to different audiences in our current moment.

I write a time when the COVID-19 epidemic continues to unfold globally, making travel, in-person gatherings, conferences, and many conventional ways of presenting scholarship not possible. It is also an impassioned time in the United States where I live, with resounding calls for social change, anxious aspirations for and collective action aimed at profoundly refashioning the existing order. It thus feels like an especially difficult and selfish time to have a new book out. At the same time, it is also feels like an especially important time to think about alternative modes of virtual presentation that may very well become a new norm; to figure out ways to be clear about relevance, in the sense of being explicit about when and how one’s scholarship may (or may not) speak to ongoing events without detracting from its value. 

I have benefitted immensely from wonderful examples of scholars sharing their new books through podcasts (see Claire Edington’s Beyond the Asylum with the New Books Network), online interviews (see Durba Mitra’s Indian Sex Life with Notches), blogposts (see Jill Hasday’s Intimate Lies and the Law with the Legal History Blog) and other forms of virtual presentation (see this online book party for Arunabh Ghosh’s Making it Count). I hope to add to this growing digital archive, by sharing what I wish I had known in advance of some of the podcasts, interviews, short essays that I have done recently: seemingly mundane practical details that ended up mattering a lot for expressing ideas and communicating through different types of media (zoom, phone chats, written scripts), with different types of interlocutors (interviewers as my own students, colleagues, total strangers), and for different audiences (across disciplines and beyond the academy). I’ll also be linking to recently published books by people I admire, especially first-time authors in legal history, histories of empire, political science, and Southeast Asian studies.

I’ll wrap up this first post with an invitation. I’d love to learn from others with first books with multiple audiences, and also welcome suggestions from more seasoned authors and colleagues with more experience ushering their books into the virtual world. 

In my next post, I’ll be writing with legal historians in mind as an audience, highlighting how Empires of Vice explores the inner life of bureaucracies and its use of administrative archives for British and French colonial opium monopolies across Southeast Asia. I’ll also dwell on preparing for my interview with The Docket, the digital imprint of Law and History Review. 

—Diana Kim

Author’s Photograph.
Card Catalogue at Archives nationales d’outre-mer (Aix-en-Provence, France)

Thank you, Rohit De!

We are so fortunate to have had Professor Rohit De with us these past weeks. He offered a thoughtful series of posts on "Murder Mystery and Legal History." Explaining this choice of subject, De wrote about the challenges of working as usual under pandemic conditions, and how he found himself "regressing to comfort reading, consisting of historical novels and mid 20th century murder mysteries."

As I was contemplating what, then, to write for the blog, Surabhi Ranganathan suggested that instead of seeing reading for comfort as external to my research, I should think about the links between the two.

In the series of post to follow, I draw upon three sets of mid 20th century detective novels, both as sources to think about legal history and as worldbuilders for the terrain that the figures I am studying operated in. I am neither a literary scholar nor a book historian, so my explorations should be taken as akin to the amateur detective, often treading over ground already covered by professionals.

A roundup of these posts:

• Murder Mystery and Legal History: Part I
• Murder Mystery, Legal History Part II: Death in the Colony
• Murder Mystery, Legal History III: The Afterlives of Empire in MM Kaye and Agatha Christie

Thank you, Rohit De!

-- Karen Tani

Weekend Roundup

• Reminder: Applications for the William Nelson Cromwell Foundation awards to support research and writing in American legal history by early-career scholar are due on July 1.  (The Committee for Research Fellowships and Awards of the American Society for Legal History reviews the applications and makes recommendations to the Foundation.)  More.

• This year’s recipients of Charlotte W. Newcombe Doctoral Dissertation Fellowships include Tamar Menashe, Columbia University, for "People of the Law: The Imperial Supreme Court and Jews in Cross-Confessional Legal Cultures in Germany, 1495–1690," and Lila Teeters, University of New Hampshire, for “Native Citizens: The Fight For and Against Native Citizenship in the United States, 1866–1924.”

• Process, the blog of the Journal of American History and the Organization of American Historians, has put out a call for submissions on "all aspects of the history of disability in the United States."

• Two new articles online in the American Journal of Legal History: “Law at a Critical Juncture: The US Army’s Command Responsibility Trials at Manila 1945–1947,” by Jamie Fellows; and “Reforming Criminal Justice in the Ottoman Empire: Police, Courts and Prisons in Rusçuk, 1839-1864,” by Mehmet Celik.

• Here is the Harvard Law School faculty's open letter condemning "a series of acts by President Trump and other public servants that endorse violence and are inconsistent with a democratic legal order." Signatories include every legal historian we can think of who teaches there.

• The Consortium for Undergraduate Law & Justice Programs recently announced its 2020 awards for teaching and best undergraduate paper.

• Justin W. Aimonetti, a recent graduate of the University of Virginia School of Law, has posted his student note Colonial Virginia: The Intellectual Incubator of Judicial Review, published in the Virginia Law Review 106 (2020): 765-810.  He thanks UVA Law’s Cynthia Nicoletti.

• From the Riesenfeld Rare Books Blog at the University of Minnesota: Law in Times of Crisis, II

• ICYMI: Dean Risa Goluboff draws on her own historical research in her message to UVA law students.  David Blight on Frederick Douglass and "the tortured relationship between protest and change" (The Atlantic). Alexander Zhang on this history of "school-to-prison pipeline" policing in Minneapolis (Slate).

• ICYMI, Insurrection Act Edition:  Gautham Rao on the Posse Comitatus and Insurrection Acts (CNN).  The History Channel on the Jeffersonian origins of the Insurrection Act.  Still more, in WaPo's Retropolis.
  

• Over at Balkinization, Stephen Griffin develops an aspect of his recent SSRN post "Optimistic Originalism and the Reconstruction Amendments."Also at Balkinization: Gregory Ablavsky (Stanford Law School) on "PROMESA and Original Understandings of the Territories’ Constitutional Status."

• Lots of important content in the Washington Post's "Made by History" section this week, including Elizabeth Kolsky (Villanova University) on "how autopsies can uphold white supremacy."
  

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

Sepper and Dinner on Feminist and Gay Lib Movements

Elizabeth Sepper, University of Texas at Austin School of Law, and Deborah Dinner, Emory University School of Law, have posted Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public, which is forthcoming in the University of Richmond Law Review 54 (2020): 759-797:

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. That same year, the growing feminist movement also launched protests for women's equality in public accommodations.

Our essay analyzes two case studies, from New Jersey in the late 1960s and California in the mid-1980s, to show what we might learn by integrating the histories of LGBTQ and feminist public accommodations activism. These case studies offer two lessons. First, the regulation of cisgender women and LGBTQ people stemmed from common sources of both law and custom. Public authorities and private businesses limited the access of unescorted heterosexual women, gay people, and gender nonconformists to public accommodations and surveilled their gathering in public space. For each of these groups, such policing was justified by fears of sexuality perceived to threaten the hetero-patriarchal family. Second, feminist and LGBTQ people's respective fights for equality in public reinforced one another. Before 1969, no city, state, or federal law prohibited sex, sexual orientation, or gender identity discrimination in public accommodations. Beginning in the 1960s, the LGBTQ and feminist movements pursued court battles and legal reforms. They ensured that liquor licensing no longer targeted cisgender women and LGBTQ people. Over the course of the 1970s and ‘80s, virtually all states came to adopt public accommodations laws prohibiting sex discrimination, and cities and states slowly began to explicitly include sexual orientation as well. Feminist and LGBTQ legal victories evolved in an interdependent rather than isolated manner.

--Dan Ernst

Toler on the Missing Indian Affairs Clause

Lorianne Updike Toler, a Visiting Fellow, at Information Society Project at the Yale Law School, has posted The Missing Indian Affairs Clause, which is forthcoming in the University of Chicago Law Review:

Conflicting lines of precedent and philosophy are the defining characteristics of Federal Indian Affairs law. Scholarship and case law run the gamut from finding a pre-constitutional federal plenary power over Native Americans to narrow readings of the Indian Commerce Clause limiting Congressional power to trade only. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution, or, conversely, why the new federal government never limited themselves to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution.

In fact, the Framers did make a mistake, or at least five of them did. This article examines the drafting history of the Constitution and suggests a startling explanation for the omission of an Indian Affairs Clause: at its heart is an innocent but consequential scrivener’s error. The Committee of Detail, tasked by the Constitutional Convention to produce a working draft of a Constitution, seems to have accidentally omitted an Indian Affairs Clause. Not only was inclusion of a Congressional power over Indian Affairs compelled by its long pre-history and a unanimous vote by the Convention, but John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check-mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, only one caught the mistake, a handful (at most) addressed the lapse and provided an awkward, partial fix by importing “Indians” into the Commerce Clause, and none thereafter fixed the fix. The omission has thereafter caused a bicentennial of confusion to the detriment of the tribes.

This history raises serious questions for constitutional theory, federal Native American policy, state-tribal relations, and Commerce Clause jurisprudence. This article addresses the question of whether the partially-fixed scrivener’s error should be fixed, and suggests some possible responses. These responses include judicial correction via statutory construction’s mistake doctrine, constitutional amendment, or re-implementation of the Washington Administration’s accord to treat with tribes as foreign nations, but with a textual twist: the United States would have to treat with a tribe before Congress could enact legislation to address subjects external to the Indian Commerce Clause. Though it does not provide a clean textual fix, the last option provides a practical one and affords the greatest normative benefits — it is consistent with precedent, the Constitution, and separation of powers principles. Moreover, treating with tribes again would restore tribal sovereignty and dignity.

--Dan Ernst

Murder Mystery, Legal History III: The Afterlives of Empire in MM Kaye and Agatha Christie

An Indian butler is shot on a moonlit island filled with radiant Chinars at the centre of Kashmir’s dal lake. A German housemaid is clubbed to death on a Berlin street lined with families of British officers occupying former homes of wealthy Nazis. An English secretary is strangled in a charming white washed cottage “amid the scent of roses and jasmine” in sunny Cyprus. A leftwing Arab Zanzibari is poisoned on a flight from Mombasa throwing suspicion on a small group of English and American tourists. A picnicking party finds itself stranded on an Andaman island, amid a raging hurricane, as a killer picks off the guests one by one. Pirate treasures, Nazi diamonds, Russian spies, gun runners and Mau-Mau fighters are thrown into alongside love, hate, lust, greed, fear and revenge in the mix of motives.

As I moved on from Nairobi following research leads to London and then Delhi, I found my research sites mirrored in the work of M.M Kaye. I was looking at histories of civil liberty lawyering across territories that had been part of the British empire, most of my lawyers were engaged in resisting the powers of a variety of Emergency regimes, be it during anti-colonial wars of independence (Kenya, Malaysia, Cyprus); struggles of postcolonial state formation (India, Pakistan, Sri Lanka), or during military occupation (postwar Europe). These mobile lawyers moved across colonial/postcolonial jurisdictions in the course of their practice, and using their lives as an archive helped think across fields that are usually historiographicaly distinct. The independence and partitions in South Asia are seen as distinct from the long drawn out wars of decolonization in Kenya, Malaysia, Cyprus and Palestine, while the British occupation in post-war Europe is rarely put together with events in Asia and Africa. Yet they come together in concert in Kaye’s mystery volumes, as places deeply interconnected. Lt. Colonel Robert Melville in Death inBerlin for instance has served in Egypt and is headed to Malaya after Berlin (Berlin counts as a home posting, according to his horrified wife). The murder of Monica Ford’s brother in a Mau Mau in Kenya is a turning point in the plot of Death in Cyprus.

These interconnections are not a coincidence, Kaye’s murder mysteries are based on notes she had taken while following countries where her husband served as a British military officer during the 2^nd World War and after. Death in Berlin (1955) is dedicated to “army wives like (herself) who have followed the drum”. Mary Margaret (Mollie) Kaye was very much a child of the Raj. Born to an intelligence officer in the British Indian Army, M.M Kaye returned to Simla in 1941 after a decade of living in London and earning a living as a writer and children’s book illustrator. Like many of her heroines, she got engaged a British Indian army officer in a whirlwind romance, having two children before his divorce with his wife in Ireland got finalized. As she would later explain, “We just couldn't wait. Had it been peacetime, I wouldn't have done it because of the way I had been brought up. But these were the pressures of war." Kaye’s considerable fame came from her hugely popular Indian historical novels, The Far Pavilions  and the Shadow of the Moon which are both set in the aftermath of the Indian Rebellion of 1857 (Kaye’s great uncle Sir John Kaye was a leading historian of the Revolt of 1857 and the First Afghan War). However, her lesser known works include a set of six murder mysteries set in India (Andamans and Kashmir), Kenya, Germany, Cyprus and Zanzibar.

Read together they tell a story of an Empire in retreat, carrying it’s flotsam and jetsam with it. Discussing their contemporaries in a Srinagar ball on the eve of Indian independence, Major Hugo Creed, dispassionately notes that the eccentric Lady Candera, was a “special brand in the Indian Empire. Next year there will be no Indian Empire, so that brand will become extinct- along with Johnnies and Helens and their ilk. They won’t go to ground in England, because it will not be able to give them what they want, so the Lady Candera’s will retire to infest places like Cyprus and Maderia and the Johnnies and Helens will probably get themselves to Kenya”. As recent scholarship has shown, tools of colonial governance including the managing of anti-colonial emergencies were exported from region to region. Binyamin Blum for instance shows how Palestinian policemen and forensic practices were exported to Kenya, and as were counter-insurgency tactics from Malaya. The legal infrastructure in place in East Africa and South-east Asia, were often transplants of law codes developed in colonial India. 

 Kaye’s cast of characters is always led by a plucky damsel (often in distress and a silent, strong, sardonic hero, usually with a job in military intelligence. Their frequent clashes animate the investigation, with slaps, rough kissing and making sounds like “infuriated and frightened kitten’. Military men (bluff and genial, old and doddery, young and resentful); military wives, ranging from Mrs Leslie in Berlin , “the model of an army wife (“one knew instinctively that she referred to her husband’s regiment as “My regiment”, to the regimental wives as “my wives”, did her duty as to Welfare, and all that concerned the good of the battalion, played an excellent game of bridge, and adequate game of tennis and gold, read all the bestsellers, and was sincerely convinced that there was only one regiment in the British army that counted”) to those that absolutely hated army life, Stella Melville for whom the East was “uncivilized and frightening). There are several predatory women on the lookout for other men’s husbands (Death in Cyprus actually has four); eccentric spinsters like Miss Pond in Death in Kashmir who wore in “addition to an anxious expression, a haphazard collection of garments that gave the impression of being flung together in a hurry…including short buttoned boots, a batik scarf, mustard yellow gloves and several assorted beads”;   middle aged secretaries in love with their bosses, an occasional loud American or an extremely Anglicized “native” who can mix with the English such as Sayyide Zuhra-binti-Salem, who the heroines discovers with some shock, speaks seven languages, has a BA degree and was “considerably better educated than herself or for that matter the majority of European women”. While superficially similar to say Orwell’s cast of colonials in Burmese Days, written several decades later, Kaye’s gaze is sympathetic of the dying breed. Reviewing Johnny and Helen Warrender, the hardrinking polo playing office of the Lunjore Lancers and his social climbing wife in Death in Kashmir as “their world crumbled around them” with the mechanization of the cavalry, the “makrs of dissipation and weakness” and “discontented middle age settled upon them”.  India was to be given her freedom and there was “nothing left for the Johnnies and Helens except memories and debts”. Kaye’s heroine notes, “there is always something more pitiful in the destruction of petty but prized possessions than in the crash of dynasties, for the latter is at least spectacular and dramatic, while the former is of no more account in the eye of history than the breaking of the child’s toy”. Trapped into an army routine, Stella Melville draws a quivering breath and says “I hate the army! I hate it, Oh why did Robert have to be a soldier? Why couldn’t he have been a farmer or a pig-breeder or a stockbroker or anything but a solider?.....the dirt, the dust, the flies, the dark secret faces, the horrible heat and the awful club life?..the awfulness of brassy sunshine?

The advantage of a detective novel, is no one needs to be what they seem, and the easy stereotypes could actually be an effective disguise. So the rosy cheeked Bonzo and Alec, 18 year old twin military officers in Kashmir who spend most of their time skiing and wooing the heroine, are Boris and Alexis with a White Russian mother, and possible communist sympathies? Why passions seeth under the regimental Memsahib’s sensible tweeds. Is the bluff and hearty colonel, looking forward to his retirement on an pension in an converted “worker’s flat” or can his loyalties be tempted by financial game? If the crime in the detective novel arises out of social conditions, the “malice domestic” in Kaye’s novels arise out of the temptations of Empire.  

           

The Occupation Detective Novel: Berlin as a Space of Emergency

Written during the travels of an army wife, it is no surprise that every site is one of a legal exception/Emergency. Her two Indian novels are set in Kashmir and the Andaman Islands. Kashmir, was a semi-autonomous princely state in 1947 operating outside of colonial law, soon to be drawn into a long drawn out international conflict between India and Pakistan with successive emergency regimes in both Indian and Pakistani administered Kashmir. The Andamans, a penal colony in the Indian Ocean, as Uditi Sen argues, was imagined as “terra nullius” open to colonial/postcolonial authority and transformation. Cyprus and Kenya are both sites of violence wars of decolonization and draconian laws, while Zanzibar (though semi-autonomous) is on the brink of revolution.

             Novels written in the wake of an occupying army adds Berlin and postwar Germany to the mix of sites of decolonization in interesting ways. Postwar Berlin was divided into sectors run by different allied powers and was a site of jurisdictional conflict. While military authorities exercised jurisdiction over uniformed servicemen, their authority over civilians remained ambiguous. These tensions played out in the real life case of Madsen v Kinsella, where the glamorous Brooklyn born wife of an American serviceman was convicted of murdering her pilot husband in occupied Germany. Mrs Madsen’s filed a habeas corpus petition arguing that the US Court for the Allied High Commission in Germany did not have the jurisdiction to try her. A suspect, like Madmoiselle Beljame in Death in Berlin might easily disappear into the Soviet sector, never to reappear. 

While Kaye’s gaze on Asia and Africa is appreciative of the colour and natural beauty, the “shattered ruins” of Berlin remind her of the “stupidity of it all! The waste and horror of man’s inhumanity to man”. The devastation is there to see, unlike in the British colony, where the devastation is imagined in the future. The naïve heroine in Death in Zanzibar is reminded that of the romanticism of the colony, “It is the only place I have yet hit upon where black and white and every shade in between’em appear to be able to live together in complete friendliness and harmony with no color bar. It is a living proof and practical demonstration that it can be done, They are all, whatever their race or caste or religion, loyal subjects of His Highness the Sultan..but it won’t last, In the end one …of them will manage to destroy it…Progress is a Lout”. In Berlin, Britain’s changing role in the world is underlined, as Norah Leslie, the Brigadier’s wife confesses that German’s terrified her, not because of their politics, but their industry. In contrast to postwar Britain with its welfare state, a country “too intent on its tea breaks, five day week and next pay rise”, the German workmen were willing and eager to work flat out, they are finding their feet and bursting with confidence. The changing world stage would requires special measures that might seem “un British”, a young schoolboy told off for snooping as “not British” austerely replies, “ “the secret service has to snoop. Where’d us British be if we didn’t? Beat by the Russians and the Japanese, and the FBI, that’s what”.  As AWB Brian Simpson charts, the 1950s, saw Britain trying to simultaneously build a postwar order with lipservice to human rights and the rule of law, while trying to keep it’s colonial territories and counter-insurgencies outside their jurisdiction. 

Crime in the Colony: Empire and the Golden Age Detective Novel

"Take all this business about Kenya," said Major Palgrave. "Lots of chaps gabbing away who know nothing about the place! Now I spent fourteen years of my life there. Some of the best years of my life, too."

Despite Major Palgrave’s central role in the plot of Agatha Christie’s A CaribbeanMystery, the readers never do get to know much about the “business in Kenya” or apart from the convenience of drowning, a chance remark by a Venezuelan tourist and a blackmailing housekeeper, do we know much of the Caribbean either.

In contrast, empire, in all its forms, courses through early English detective fiction. Wilkie Collin’s  The Moonstone, which set the rules for the early genre, centered on a diamond (named after the Hindu god Chandra) that was stolen during the Siege of Seringapatnam and a troupe of Indian jugglers. Dr Watson meets Holmes after being injured in service in the 2^nd Afghan War. The Indian Rebellion of 1857 drives the plot in the Sign of Four. Sumatran bacteria, Lime house Opium dens, comrades from the Boer Wars, mysterious Malays and Calcutta trained snake charmers menace who young women with swamp adders . It existed as part of the landscape, as a racial stereotypes, as a signifier of criminality, of oriental exoticism and shaping the political economy. An Indian student, Daulat Ras (“quiet and methodical”) is one of the key suspects in the Adventure of the Three Students, while the key antagonist in the Sign of Four is a blow dart wielding Tonga, from the Andaman Islands. Laura Otis even suggests that Holmes is the creation of a physician, who see’s the detective as protecting the “British nation” from the ills of contamination of the empire.  Holmes’s himself declares that he spent two years in Tibet after his “death” at the Reichenbach Falls (an episode delightfully reimagined by Jamyang Norbu in the Mandala of Sherlock Homes).

            In contrast, the Empire recedes from view in the Golden Age Detective Novel. Take for example, the work of Agatha Christie (whose first husband was born in Peshawar and the second worked as an archeologist in Iraq and Syria), the empire functions largely as a backstage to remove characters from the scene. Never doe’ll sons are sent off to Australia (Dumb Witness), mining prospects in Africa are occasionally "motives for murder (A Pocketful of Rye), grandchildren in Ceylon remove an eyewitness from the scene (4:50 fromPaddington) returning memsahibs struggle with the absence of a fleet of servants (Mrs McGinty’s Dead) and a policeman retiring from Malaysia (perhaps service during the insurgency) investigates a serial killer in an English Village (Murder in Easy). Earnest archaeologists (Murder in Mesopotamia), women politicians (Appointment with Death) and writers of salacious novels (Death on the Nile) may voyage to the east, but travel with a self-contained world of Home Counties Englishman and a smattering of temperamental Europeans. Historian Christopher Prior contrasting Christie’s pre-war and postwar fiction notes a general trend where the postwar books showed a spike in the number of murderers who had connections to or were born in the colonies. The “natives” are clearly ruled out as suspects, though occasionally a clever murderer might disguise themselves with a turban.  I pick Christie as the key example, because she is the third most published writer in  the English language, outsold only by William Shakespeare (and the Bible!) and sells more in India than in the UK at present. In contrast, her contemporaries with the exception of the New Zealand settings of Ngaio Marsh (a New Zealander herself) limit themselves to London squares and English country houses.

The central conceit of picking a Belgian detective, was Christie’s (and Poirot’s) self-awareness of how contemptuously the English viewed foreigners. Poirot self-consciously becomes more foreign, when he wants suspects to under-estimate him. Christie’s pre-war works are full of casual anti-Semitic and racist observances, made bearable only by the ruthless decimation of European nationalities, the French are mendacious, the Italians and Spaniards temperamental, the Americans are flashy and tasteless, and one character is gently dismissed with the words “Poor creature, she’s a Swede”.  Significantly, unlike say Holmes, race and nationality are never correlated to criminality. It was usually the “Old School Tie” wearing establishment Englishman or the gentle paragon of the Women’s Institute who was pouring strychnine into the soup.

            The one stock character is the retired colonial army officer/official, neatly summed up as Miss Marple listens to Major Palgrave drone on “somewhat uninteresting recollections of a lifetime”,

 “ It was a routine with which she was well acquainted. The locale varied. In the past, it had been predominantly India. Majors, Colonels, Lieutenant-Generals - and a familiar series of words: Simla. Bearers. Tigers. Chota Hazri - Tiffin. Khitmagars, and so on. With Major Palgrave the terms were slightly different. Safari. Kikuyu. Elephants. Swahili. But the pattern was essentially the same. An elderly man who needed a listener so that he could, in memory, relive days in which he had been happy. Days when his back had been straight, his eyesight keen, his hearing acute. Some of these talkers had been handsome soldierly old boys, some again had been regrettably unattractive, and Major Palgrave, purple of face, with a glass eye, and the general appearance of a stuffed frog, belonged in the latter category.”

Indeed, the stock character is so familiar, it allows a villain to disguise themselves as an Anglo Indian colonel with a turbaned Indian butler, choleric temper, gout and tables laden with Benares brass. But as Poirot points out, the “retired Anglo Indian army officer, a well-known comic figure with a liver and choleric temper” is “bogus, very bogus”. Empire is both an exit and a disguise. 

Hickory Dickory Death: Decolonizing London

            I want to briefly turn to Hickory DickoryDock  (1955),  the one Christie novel that has a sizable number of  non-White characters (apart from Death Comes as the End, which is set in Thebes in 2000 BC). An international student’s boarding house in London (built by knocking down through two Victorian townhouses) is disturbed by a series of mysterious thefts of items ranging from a diamond ring, a stethoscope, lightbulbs and bath salts. Set in the 1950s, it’s one of the few to reflect the changing composition of University of London students, it’s inhabitants include two Indians studying political science, a Jamaican law student, a West African, an Egyptian, an American Fulbright scholar, several Frenchwomen, a stolid Dutchman and two unnamed Turks and an Iraqi. Owned by a Greek proprietress (often drunk) and excitable Italian staff, it’s managed by a cheerful Englishwoman just returned from Singapore, which meant she “understood racial differences and people’s susceptibilities”. Scholarly appreciation of Christie, gingerly steps around Hickory Dickory Dock, embarrassed by the racial stereotypes and the extremely improbably plot that leads to 3 murders within 48 hours and the plausibility of three-way switch between a bottle of morphine, a bottle of bicarbonate of soda and a bottle of boracic acid.  The TV adaptation changes the settings to the 1930s and erases all the non-White characters from the script.

            This is one of the few Christie’s that gives a sense of a changing United Kingdom, and there are ways of reading her stereotypical representations against the grain . As Poirot’s secretary Miss Lemon remarks, “half our nurses in our hospitals seem to be black nowadays….and I understand much pleasanter and more attentive than the English ones”. The expansion of the National Health Service at the end of the Second World War had led to a severe shortage in medical personnel, which was met by increased recruitment of nurses from Jamaica and the Bahamas. Beginning with arrivals on Windrush, the Carribeannurses and medical professionals were integral to building the NHS and faced both arduous working conditions and racism. The passing acknowledgement in Christie’s murder mystery, comes up sharply in contrast with say the absence of Caribbean nurses in Call the Midwife, a contemporary TV show depicting the lives of midwives in East London in the 1950s (the first West Indian nurse joins the cast in Series Seven). With increasing numbers of students from the colonies/former colonies coming to the UK to study, London increasingly became a hub of anti-colonial activism in the 1950s, allowing the creation of networks across regions and colonies. Mitra Sharafi’s new work shows, several were studying law in the Inns of Court and would return to lead movements for political and social change in their homes. While colonial law students had been coming to London since the late 19th century, the second world war widened the demographics and politics. Wartime travel restrictions changed the requirements for legal training in London. Instead of spending two years in London to train at the Inns of Court, prospective students could do the first year of coursework in  their own countries and only spend nine months in the UK keeping their dinners and giving the qualifying exams. These changes opened up the profession to wider demographic, including women and students from working class backgrounds, including several lawyers who I follow in my current research.  Unlike the sons of merchants, colonial officials and landed gentry who came to study in the late 19th and early 20th century, the 1940s saw children of schoolteachers, railway engine drivers and small shopkeepers making their way to LOndon.  It is not surprising that Elizabeth Johnston, the Jamaican lawyer is described by Poirot as the most intelligent person in the hostel, is both studying law and is found to be card carrying member of the Communist Party.  This also makes student hostels, like the one on Hickory Road, a site for police surveillance 

            Christopher Prior classifies thenon-white cast into one of three stereotypes: arrogant and condescending; simple and credulous and excitable and temperamental. Yet, each of Christie’s stereotypes can be inverted to reveal something about the politics of the time. Take Elizabeth Johnstone, the Jamaican law student dismisses her American housemate’s feeling that something is wrong, as “her American way of thought. They are all the same, these Americans, nervous, apprehensive, suspecting every kind of foolish thing! Look at the fools they have made of themselves with their witch hunts, their hysterical spy mania and their obsession over communism”. As a left wing Carribean student, Johnstone is acutely aware of the McCarthy era witch hunts which were actively criticized for their departure from ordinary legal norms in London’s leftists circles. Pamplets were written on the Rosenberg prosecution and the Smith Act cases, and student groups debated and followed the American “Red Scare”.

            The West African student, Akibombo, discomfits his housemates by suggesting the murder is the result of a blood feud or an honor killing. While much of his description is a crude caricature, the actual solution involves convoluted family relationships, dressed up in modern scientific language.  Finally, the Indian medical student, Chandra Lal is dismissed as a suspect by Poirot, given that his mind is entirely occupied by “politics and persecution mania”, and indeed Lal is in full form, threatening to cause an international incident when his room is searched as part of the murder investigation and calling out his housemates for borderline racist humor. When the housemates express surprise at a “seemingly senseless” damage to Elizabeth Johnstone’s notes, Lal becomes “excited and voluble” pointing out this is “oppression, deliberate oppression of native races, contempt and prejudice, colour prejudice”. Christie intends Lal to be a figure of caricature, but reading him in the 21^st century, shows him to be astute, analogizing the narrative of “senseless violence” with the British who claim to not know, “Why the Mau Mau? Why does Egypt resent the Suez Canal”. The answers, he suggests are clear, well authenticated examples of racial oppression. With Indian independence, the postcolonial Indian state had emerged as a powerful voice in international affairs pointing out racial discrimination and arguing for decolonization. It successfully passed a General Assemblyresolution condemning the anti-Indian legislation in South Africa,  was engaged in drafting the UDHR, drew attention to atrocities carried out by colonial authorities in Malaysia and East Africa and sharply responded to racial discrimination against it’s citizens in the UK. The British state was both embarrassed and exasperated by Indian use of the international institutions and media, and believed them to by hypocritical given its military action in Hyderabad, Goa and Kashmir, and limiting of rights of its own citizens through constitutional amendments. As mysterious thefts plague the hostel, the other Indian student Gopal Ram just “smiles and says material possessions do not matter” but only because nothing has yet been stolen from him. 

My posts so far have largely looked at murder mysteries written by British authors with colonial settings, in my last post I will turn to a set of detective stories written by Indians, Singaporeans and Kenyans set in the same period.

Dudziak on the Global Consequences of Trump's Militarist Turn

LHB Founder Mary Dudziak, Emory Law, has an op-end in the New York Times, The Damage Trump Has Done This Week Extends Far Beyond America’s Borders.  DRE.

Baier's Biography of Frederick Bernays Wiener

Paul R. Baier, LSU Law, has published Written in Water: Biography of Frederick Bernays Wiener (Twelve Tables Press/Carolina Academic Press):

Frederick Bernays Wiener, was a leading advocate at the Bar of the Supreme Court in the last century. Colonel Wiener argued, and won, cases that set the legal boundaries between the military and civilians, as well as those between what is public and what remains private. No cases could carry greater social weight; ergo, few collections of papers could be more important. Written in Water is not the usual legal tome. There is nothing usual about Frederick Bernays Wiener just as there is nothing usual about Mr. Justice Frankfurter or Frederic William Maitland. Both of whom also appear in these pages. Written in Water is a lively celebration of Frederick Bernays Wiener and his times. We experience his slightly angular personality and his inimitable legal pursuits. Colonel Wiener was of the old school: charming, courteous, elegant, learned, witty, generous. True, Colonel Wiener did not suffer fools lightly. He did not suffer them at all. Frederick B. Wiener abhorred stupidity. He and Margaret Thatcher would have enjoyed a London pub together. Written in Water fulfills both halves of Horace's dictum. It charms; it instructs. And we fortunate readers, will smile as we learn. Paul came to know Colonel Wiener well. He produced a television interview with Colonel and Mrs. Doris Merchant Wiener at the LSU Law Center. The thought of a book saving Colonel Wiener for all time followed at the suggestion of Washington, D.C. lawyer Jacob A. Stein, founding partner of Stein, Mitchell & Muse.

The Twelve Tables Press notice is here.

--Dan Ernst.  Hat tip: Brad Snyder

Kirmse on law and cultural diversity in the Russian empire

Earlier in 2020, Stefan B. Kirmse (Leibniz-Zentrum Moderner Orient, Berlin) published The Lawful Empire: Legal Change and Cultural Diversity in Late Tsarist Russia with Cambridge University Press. From the publisher:             

The Russian Empire and its legal institutions have often been associated with arbitrariness, corruption, and the lack of a 'rule of law'. Stefan B. Kirmse challenges these assumptions in this important new study of empire-building, minority rights, and legal practice in late Tsarist Russia, revealing how legal reform transformed ordinary people's interaction with state institutions from the 1860s to the 1890s. By focusing on two regions that stood out for their ethnic and religious diversity, the book follows the spread of the new legal institutions into the open steppe of Southern Russia, especially Crimea, and into the fields and forests of the Middle Volga region around the ancient Tatar capital of Kazan. It explores the degree to which the courts served as instruments of integration: the integration of former borderlands with the imperial centre and the integration of the empire's internal 'others' with the rest of society. 

Table of Contents after the jump:

What is a Legal Book?

[We have the following announcement of an on-line workshop from Max Planck.  DRE]

Workshop: Current topic in legal history: What is a legal book? Crossing perspectives between legal history and book history.  June 18, 2020, 15:00-17:00
Manuela Bragagnolo

In a 2008 article published in Rg, Antonio Manuel Hespanha stated the importance of bridging the gap between material bibliography and legal history. He stressed the need to expand the scope of legal historical research, which had up to that point traditionally focused on the intellectual output of the so-called ‘author’. In particular, he suggested to take into account the materiality the object that, with the emergence of print, contributed more than any other form of media to the storage, mobilisation and communication of normative knowledge: books, namely legal books. In that article Hespanha clearly showed the interdependence between form and content in early modern legal books.

Legal books served a variety of different purposes and consisted of different literary genres catering to different readerships. Books were much more than instruments used by the ‘men of law’ at the universities and in courts. Handbooks and pragmatic books, the topics of which also included the expansive fields of moral theology and religious normativity, were also fundamental tools through which ‘legal literacy’ reached a wider audience.

But what was a legal book for the actors involved in the book production (eg printers), book circulation (books sellers) and, in general, book consumption (for instance ‘universal bibliographers’)? What categories did these actors use to classify them? If we think about the Ibero-American world, what was considered a ‘libro juridico’? And how did this category change over time? These are some of the questions that the workshop aims to address, by creating the space for a dialogue between legal historians and book historians, starting from a methodological discussion on the sources and the methods that can be used to analyse the ‘legal book’.

Since the exchange and production of knowledge can never truly be stopped, new avenues of communication and dialogue must be explored. In accordance with this guiding principle, we will hold this workshop online. For more information, please send an email to bragagnolo@rg.mpg.de.

Mayeux's "Free Justice"

Out this month is Free Justice: A History of the Public Defender in Twentieth-Century America (University of North Carolina Press), by Sara Mayeux, Vanderbilt Law School.  It appears in the book series Justice, Power and Politics, edited by Heather Ann Thompson and Rhonda Y. Williams.

Every day, in courtrooms around the United States, thousands of criminal defendants are represented by public defenders--lawyers provided by the government for those who cannot afford private counsel. Though often taken for granted, the modern American public defender has a surprisingly contentious history--one that offers insights not only about the "carceral state," but also about the contours and compromises of twentieth-century liberalism.

First gaining appeal amidst the Progressive Era fervor for court reform, the public defender idea was swiftly quashed by elite corporate lawyers who believed the legal profession should remain independent from the state. Public defenders took hold in some localities but not yet as a nationwide standard. By the 1960s, views had shifted. Gideon v. Wainwright enshrined the right to counsel into law and the legal profession mobilized to expand the ranks of public defenders nationwide. Yet within a few years, lawyers had already diagnosed a "crisis" of underfunded, overworked defenders providing inadequate representation--a crisis that persists today. This book shows how these conditions, often attributed to recent fiscal emergencies, have deep roots, and it chronicles the intertwined histories of constitutional doctrine, big philanthropy, professional in-fighting, and Cold War culture that made public defenders ubiquitous but embattled figures in American courtrooms.

Here are some endorsements:

"This is an excellent work of legal history that speaks to the present as we systemically think about the connections between poverty, race, incarceration, and the criminal justice system."--Felice Batlan, author of Women and Justice for the Poor: A History of Legal Aid, 1863–1945

"Mayeux reveals core features of American political culture and political economy across a changing twentieth century. This is a brilliant book that should be read by everyone interested in the dimensions of the contemporary American legal regime."--Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus, Princeton University

"Sara Mayeux brilliantly uses the contested history of public defenders as a lens to examine and illuminate American conceptions of democracy, liberalism, socialism, and even our broader political culture.  Free Justice marks the dazzling debut of a supremely gifted legal historian."--Justin Driver, author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind

"Free Justice details a remarkable transformation in the attitudes of white-shoe lawyers, Supreme Court justices, and law professors. In the early 1900s, they envisioned indigent criminal defense as an endeavor for private charity and equated public defense with totalitarianism. By mid-century, they insisted on public defense in criminal trials as a Cold War imperative. And by the end of the 1960s, necessity had forced them to redefine it as a vital element of the War on Crime. Only in the United States! Sara Mayeux's important, beautifully written book shows us the elite legal profession shaping and being shaped by society and reminds us of the tension between the Warren Court's great ideals and their implementation. Brava!"--Laura Kalman, author of The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court

--Dan Ernst

Campbell, McCoy, & Méthot, eds., "Canada's Legal Pasts" (open access!)

The University of Calgary Press has published Canada’s Legal Pasts: Looking Forward, Looking Back, edited by Lyndsay Campbell (University of Calgary), Ted McCoy (University of Calgary), and Mélanie Méthot (University of Alberta, Augustana Campus). A description from the Press:

Canada’s Legal Pasts presents new essays on a range of topics and episodes in Canadian legal history, provides an introduction to legal methodologies, shows researchers new to the field how to locate and use a variety of sources, and includes a combined bibliography arranged to demonstrate best practices in gathering and listing primary sources. It is an essential welcome for scholars who wish to learn about Canada’s legal pasts—and why we study them.

Telling new stories—about a fishing vessel that became the subject of an extraordinarily long diplomatic dispute, young Northwest Mounted Police constables subject to an odd mixture of police discipline and criminal procedure, and more—this book presents the vibrant evolution of Canada’s legal tradition. Explorations of primary sources, including provincial archival records that suggest how Quebec courts have been used in interfamilial conflict, newspaper records that disclose the details of bigamy cases, and penitentiary records that reveal the details of the lives and legal entanglements of Canada’s most marginalized people, show the many different ways of researching and understanding legal history.

This is Canadian legal history as you’ve never seen it before. Canada’s Legal Pasts dives into new topics in Canada’s fascinating history and presents practical approaches to legal scholarship, bringing together established and emerging scholars in collection essential for researchers at all levels.

Advance praise:

"This work will appeal to a broad range of scholars working at the intersections of law and history. Featuring both established scholars and newer voices in the field, this volume introduces the ‘how’ of legal history and illustrates the deepening political commitment of scholars who seek to challenge the structures of inequality in Canadian society by interrogating legal history as an avenue toward change." —Philip Girard

Contributors include Nick Austin, Dominique Clément, Angela Fernandez, Jean-Philippe Garneau, Shelly A.M. Gavigan, Alexandra Havrylyshyn, Louis A. Knafla, Catherine McMillan, Eric A. Reiter, and Christopher Shorey.

The Table of Contents is available here.

Here's the best part: readers may download the book in its entirety or chapter-by-chapter as a free pdf from the Press's page, here.

-- Karen Tani

Purcell's "Scalia and American Constitutionalism"

Edward A. Purcell, Jr., has published Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press):

Antonin Scalia and American Constitutionalism is an in-depth study of Justice Antonin Scalia's jurisprudence, his work on the Supreme Court, and his significance in the history of American constitutionalism. After tracing Scalia's rise to Associate Justice and his subsequent emergence as a hero of the Republican Party and the political right, this book reviews and criticizes his general jurisprudential theory, arguing that he failed to produce either the objective method he claimed or the correct constitutional results he promised. Focusing on his judicial performance over his thirty years on the Court, it examines his decisions and opinions on virtually all of the constitutional issues he addressed from the fundamentals of structure (federalism, separation of powers, and the Article III judicial power) to specific interpretations of most major constitutional provisions involving governmental powers and the rights of individuals under the Bill of Rights and the Fourteenth Amendment. This book argues that Scalia applied his jurisprudential theories in inconsistent and contradictory ways and often ignored, distorted, or abandoned the interpretive methods he proclaimed to reach the results he sought, results that were aligned with and supported by the post-Reagan Republican coalition. Scalia was far more consistent in enforcing such ideologically compatible results than he was in following his proclaimed jurisprudential theories. Finally, assessing Scalia's historical significance, Antonin Scalia and American Constitutionalism argues that his jurisprudence and career are particularly illuminating because they exemplify--contrary to his persistent claims--three paramount characteristics of American constitutionalism: the inherent inadequacy of originalism and other formal interpretive methodologies to produce consistent and correct answers to controverted constitutional questions; the close relationship that exists, particularly so in Scalia's case, between constitutional theories and interpretations on one hand and substantive political goals and values on the other; and the unavoidably living nature of American constitutionalism itself. All in all, Scalia stands as a towering figure of irony because his judicial career deconstructed the central claims of his own jurisprudence.

–Dan Ernst

Welcome, Diana Kim!

We are very pleased to welcome as Guest Blogger for the month of June, Diana Kim, who is an assistant professor in the Edmund A. Walsh School of Foreign Service at Georgetown University.  The holder of a doctorate in political science from the University of Chicago, her "scholarship is animated by concerns with how modern states develop capacity to define people at the edges of respectable society, constructing what it means to be illicit, marginal, and deviant."  She is the author of Empires of Vice: The Rise of Opium Prohibition across Southeast Asia (2020), with appeared in the Princeton University Press series Histories of Economic Life.  From the press:

During the late nineteenth century, opium was integral to European colonial rule in Southeast Asia. The taxation of opium was a major source of revenue for British and French colonizers, who also derived moral authority from imposing a tax on a peculiar vice of their non-European subjects. Yet between the 1890s and the 1940s, colonial states began to ban opium, upsetting the very foundations of overseas rule—how did this happen? Empires of Vice traces the history of this dramatic reversal, revealing the colonial legacies that set the stage for the region’s drug problems today.

Diana Kim challenges the conventional wisdom about opium prohibition—that it came about because doctors awoke to the dangers of drug addiction or that it was a response to moral crusaders—uncovering a more complex story deep within the colonial bureaucracy. Drawing on a wealth of archival evidence across Southeast Asia and Europe, she shows how prohibition was made possible by the pivotal contributions of seemingly weak bureaucratic officials. Comparing British and French experiences across today’s Burma, Cambodia, Laos, Malaysia, Singapore, and Vietnam, Kim examines how the everyday work of local administrators delegitimized the taxing of opium, which in turn made major anti-opium reforms possible.

Empires of Vice reveals the inner life of colonial bureaucracy, illuminating how European rulers reconfigured their opium-entangled foundations of governance and shaped Southeast Asia’s political economy of illicit drugs and the punitive state.

Welcome, Professor Kim!

–Dan Ernst