The Antislavery Moment: Capitalism, Democracy, and Abolition

Abolitionist Coins (NYPL)

 [We have the following announcement. DRE.]

The Antislavery Moment: Capitalism, Democracy, and Abolition in the Nineteenth-Century Atlantic Princeton University

This conference will feature prominent scholars who work on abolition, anti-slavery politics, capitalism, and slavery, and will attempt to revisit the classic questions about the relationship between the marketplace and abolition in light of the new historiographical trends.

This conference is organized by Professor Matthew Karp, Professor Peter Wrizbicki and the Center for Collaboration History at Princeton University.

Friday, October 7
1:30 – 3:15 p.m.

    Introductory Remarks; Peter Wirzbicki, Princeton University

    Keynote “Conversation”
        James Oakes, The Graduate Center, CUNY
        Manisha Sinha, University of Connecticut
        Amy Dru Stanley, University of Chicago
        Moderator: Sean Wilentz, Princeton University

3:30 – 5:15 p.m. | Panel 1 | The Antislavery Struggle
    Chris Bonner, University of Maryland | “Moses Grandy’s Pursuits of Freedom”
    Sean Griffin, Manhattan College | “Antislavery Struggle, Labor Struggle: Recovering Lost Connections and Missed Opportunities in the Labor-Abolitionist Coalition”
    Kate Masur, Northwestern University | “Poor Laws and Black Codes: Problems of Race, Class, and Mobility in the 19th Century United States”
    Comment: Matthew Karp, Princeton University

Saturday, October 8
9 – 10:45 a.m. | Panel 2 | Antislavery & Democracy
    Sarah Gronningsater, University of Pennsylvania | “Gradual Abolition in Practice: Law, Experience, and the Local Archive”
    Ariel Ron, Southern Methodist University | “The Republicans’ Grassroots Leviathan”
    Alex Gourevitch, Brown University | “Servitude and Self-Emancipation After Slavery”
    Comment: Anton Jäger, KU Leuven

11 a.m. – 12:15 p.m. | Panel 3 | Antislavery & Capitalism
    Yesenia Barragan, Rutgers University | “Free Womb Captives and Slavery’s Capitalism in Nineteenth-Century Colombia and Spanish South America”
    John Clegg, Harvard University | “The Real Wages of Whiteness: Fear of Slave Competition in the Abolitionist Imagination”
    Comment: Wendy Warren, Princeton University

1:15 – 2:30 p.m. | Panel 4 | Antislavery & Violence
    Kellie Carter Jackson, Wellesley College | “Forcing Freedom: Black Abolitionists and the Politics of Violence”
    Isadora Moura Mota, Princeton University | “Radicalizing Atlantic Antislavery: Insurgent Abolitionism in Nineteenth-Century Brazil”
    Comment: Corinna Zeltsman, Princeton University

2:45 – 4 p.m. | Panel 5 | Antislavery & Revolution
    Lenora Warren, Cornell University | “Insurrection and the Oceanic Imaginary”
    Angela Zimmerman, George Washington University | “Conjure and Colonization: Fighting the Empire of ‘Lincoln and them other big emancipator men’”
    Comment: Reena Goldthree, Princeton University

4 – 5 p.m. | Closing Remarks & Conversation
Moderated by Matthew Karp and Peter Wirzbicki

CFP: Centennial Conference on the Irish Constitution

Here is the CFP, from the Irish Legal News

A landmark conference taking place this year will mark the centenary of independent Ireland’s first constitution and the birth of the modern Irish state.

Taking place on Monday 5 December, the conference has been jointly convened by the School of Law at the University of Limerick, Maynooth University Social Sciences Institute and the Courts Service and sponsored by the Shelbourne Hotel, where it will take place.

It aims to bring together lawyers, historians, judges and scholars of all levels to discuss aspects of the important document at what was a turning point in Irish legal history.

Those who might like to contribute to the event have been invited to respond to the call for papers by Friday 23 September 2022.

More.

--Dan Ernst

CFP: European Society for Comparative Legal History

[We have the following CFP.  DRE.]

The European Society for Comparative Legal History's Seventh Biennial Conference, 21 - 23 June 2023, University of Augsburg, Germany.

The Organising Committee and the Executive Council of the European Society for Comparative Legal History are pleased to call for papers for the upcoming Society's Seventh Biennial Conference to be held from 21 to 23 June 2023 at the University of Augsburg, Germany.

A conference in 2023 will be a change to our normal timing. We began in Valencia (2010), followed by Amsterdam (2012), Macerata (2014), Gda?sk (2016), Paris (2018), and most recently, after a delay caused by Covid, we enjoyed the event in Lisboa (2022). However, not only does that mean we did not have a conference for four years. Covid has also moved some other large international conferences now to even-numbered years. To avoid collision with these other conferences, the ESCHL conferences would after 2023 continue at two-year intervals moving them to uneven-numbered years. The offer from Augsburg was made some years ago, but kindly deferred and the Executive Council is delighted to be able to take it up now.

For the Augsburg event in 2023, there is no general conference theme. Rather, the organisers hope that the sessions will reflect - in terms of covered topics, time periods, and regions - the full breadth of international research in comparative legal history. The Organising Committee does so in the believe that the Society's Biennial Conference should foremost be a platform for researchers to present their most recent research in comparative legal. Papers should address and explore doctrinal, theoretical, cultural, or methodological aspects of comparative legal history. Papers should also be comparative, covering at least two legal systems, as well as historical.

To offer a paper, please send an abstract of up to 400 words by 15 November 2022. Papers, and abstracts, should be in English. The abstract should give the title of your paper and your personal data (full name, email address, work affiliation). Please also send a short CV (no more than 4 pag-es). Everyone, at whatever stage in their research career can offer a paper. The application should be sent to: phillip.hellwege@jura.uni-augsburg.de. Abstracts will be assessed against: (1) the aim to have a diverse conference; (2) the novelty of the work; (3) the evidence of scholarly rigour and promise of a fully researched and referenced paper; (4) in order to allow as many people as possible to speak at the conference, a person may normally offer only one paper. 

It is also possible to submit a proposal for a complete panel. Panels normally consist of three pa-pers. A panel proposal should - in addition to the abstracts and CVs of those who wish to present a paper in that panel - include an abstract for the entire panel as well as a CV of the panel organizer.

Applicants will be informed by 15 December 2022 whether their paper has been accepted. The conference programme will be published on 31 December 2022 on the conference website[, which] will also contain information on the attendance fee for those who are not members of the ESCLH, on transport to and from Augsburg, [and] on accommodation in Augsburg. [Registration will open, on the conference website, on 15 December 2022.]  Finally, the conference will be preceded by an additional PhD-workshop on 21 June 2023. Further information about the workshop will also be published on 15 December 2022.

Witt on the First Amendment: Weaponized from the Beginning

John Fabian Witt, Yale Law School, has posted Weaponized from the Beginning:

Standard accounts of the modern First Amendment attribute its origins to a moment of hopeful discovery of the value of free speech for democratic self-government. But the reverse is also true. The modern law of speech arose simultaneous with the World War One-era realization that unregulated communication in mass society also meant propaganda, lies, and the distortion of public opinion. Key figures in the first generation of modern free speech thus treated speech freedoms as necessary but radically insufficient in the production of democratic public opinion. Intermediary institutions, they believed, shaped information flows and helped produce public opinion. Some, like Walter Lippmann, turned to the administrative state. Others, like Roger Baldwin, championed labor organizations and industrial democracy. A century later, our crisis arises in part out of attacks on the administrative state and the collapse of labor unions, which have undermined the very institutions that prescient observers a century ago believed crucial for managing distortion in the democratic public sphere.

--Dan Ernst

David Ibbetson's Valedictory Lecture

The Centre for English Legal History has announced “a valedictory lecture to mark the retirement of David Ibbetson FBA from the Regius Professorship of Civil Law at Cambridge. The lecture will be introduced by Mr Justice Foxton.” It will take place on November 25, 2022, at 5:15pm.  “All are welcome, though booking is essential. You can reserve your place [here]."

From the announcement:

David Ibbetson has been at the forefront of legal historical scholarship for four decades. He began his legal historical studies at Corpus Christi College in Cambridge, reading Law as an undergraduate and staying on for a doctorate on the development of assumpsit under John Baker. He moved to Oxford to take up a Fellowship at Magdalen College in 1980, where he spent the next twenty years developing research interests spanning English legal history, European legal history, the law of ancient Rome and pre-Roman legal systems. He returned to Cambridge in 2000 to take up the Regius Professorship of Civil Law, and to Corpus where he took a particularly central role in the mentoring of the graduate community. His work in fostering graduate communities made him an ideal fit for Clare Hall, where he was President between 2013 and 2020.

Ibbetson's legal historical scholarship is marked by its breadth, with publications spanning topics as varied as medieval contracts, wrongdoing in Mesopotamian codes, early modern natural law and modern tort. His early career was characterised by work on the development of the English law of obligations, exemplified by his book A Historical Introduction to the Law of Obligations, which remains a central point of reference for any account of how the modern law of tort and contract have taken their present shapes. Roman Law, a subject Ibbetson taught since his days as a PhD student, developed into a second focal point for his research, with a series of articles on the Roman law of obligations applying the methods of English legal history to the ancient sources. His more recent work has increasingly taken on a multi-jurisdictional approach, and further explored the way in which legal concepts were understood at an intellectual level as well as in the courtrooms.

--Dan Ernst

Virtual Launch of a Special Issue: Rethinking Chaucer and Cecily Chaumpaigne

After a content warning that the event would "discuss sensitive and potentially triggering topics including sexual assault," the National Archives of the United Kingdom posted the following announcement of and registration for a virtual launch of a special issue of the Chaucer Review, entitled Geoffrey Chaucer and Cecily Chaumpaigne: Rethinking the Record:

NYPL

Few medieval records have received as much attention from literary scholars as a group of documents dating from May to July 1380 that involve Geoffrey Chaucer and Cecily Chaumpaigne, the daughter of a London baker. At the heart of this group of records is a quitclaim of May 4, enrolled in the Close Rolls of the English Chancery, releasing Chaucer from “all manner of actions related to my raptus”. The word raptus, which in legal contexts can denote “rape,” “abduction,” and much of the spectrum lying between these terms, has challenged Chaucer scholars ever since Frederick J. Furnivall announced this find in 1873. The matter was given significant new impetus in 1993, when Christopher Cannon discovered a second quitclaim by Chaumpaigne – with the word raptus removed – enrolled in the plea rolls of the Court of King’s Bench a few days after the first. Cannon’s discovery has energised foundational strands of Chaucer studies, in particular feminist scholarship, over the last thirty years, but in this time no new documentary evidence has come to light.

Now, new research into the medieval legal collections at The National Archives has uncovered two new life-records relating to the dispute of 1380 – including evidence of the original legal accusations brought against the poet – which offer a radically different understanding of the documentary evidence

More.

--Dan Ernst

JSCH 47:2

[Journal of Supreme Court History 47:2 has been published.  DRE]

Introduction

Timothy S. Huebner

Articles

"So Forcibly Presented by His Counsel, Who Are of His Race": Cornelius Jones, Forgotten Black Supreme Court Advocate and Fighter for Civil Rights in the Plessy Era
James A. Feldman

Influence Without Impeachment: How the Impeach Earl Warren Movement Began, Faltered But Avoided Irrelevance
Brett Bethune

Goldberg v. Kelly: The Case, the Clerk, and the Justice
Michael Nelson

Northern Schools and Lemon's Forgotten Segregation Claim
Catherine Ward

Justice Thurgood Marshall's Last Stand
Daniel Kiel

Book Reviews

The Yankee from Olympus Redivivus by Melvin I. Urofsky

Stephen Budiansky, Oliver Wendell Holmes: A Life in War, Law, and Ideas 

Catherine Pierce Wells, Oliver Wendell Holmes: A Willing Servant to an Unknown God

Michael H. Hoeflich, Ross E. Davies, eds., The Black Book of Justice Holmes: Text Transcript and Commentary

Weekend Roundup

• 
   "'Voting Rights: Identifying the Deep Roots of #BLM,' a lecture by Department of History Associate Professor Jennifer Hildebrand, will be presented as part of the Constitution Day observance at SUNY Fredonia on Wednesday, Sept. 14, at 2 p.m. in Williams Center Room S204."  More.

•  A Virtual Conversation via Zoom: “Join the Supreme Court Historical Society for an engaging and frank look at Supreme Court Justice Felix Frankfurter with Professor Brad Snyder in honor of the publication of his long-awaited biography of the justice: Democratic Justice: Felix Frankfurter, the Supreme Court and the making of the Liberal Establishment.  Professor Snyder will be in conversation with Professor Laura Kalman of the University of California, Santa Barbara on October 17, 2022 at 7 pm (EDT).  Register here.
  

• Brian Hochman, Georgetown University, discusses his book, The Listeners: A History of Wiretapping in the United States, on C-SPAN Classroom.
  

• ICYMI: Alison L. LaCroix, University of Chicago Law, on James Madison v. Originalism.  More on that statue and freedom suit of Elizabeth Freeman (Smithsonian)
  

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

Call for Applications: George E. Pozzetta Dissertation Award

We have the following announcement from the Immigration and Ethnic History Society (IEHS):

The IEHS presents two awards of $1,000 each to help graduate students with their dissertations on American immigration, emigration, or ethnic history, broadly defined. These awards are intended for students in the process of researching and writing their dissertations, and not for students completing and defending in 2023. For the 2023 award, the committee invites applications from any Ph.D. candidate who will have completed qualifying exams by 2022.

Applicants will submit the following materials to pozzetta_award@iehs.org, which will reach all committee members:

1. A 1500-word descriptive proposal in English discussing the significance of the work, the methodology, sources, and collections to be consulted.

2. A proposed budget.

3. A brief curriculum vitae.

 In addition, applicants will arrange for their major advisor to submit a supporting letter to pozzetta_award@iehs.org

Application materials and the supporting letter must be received by the submission deadline: December 31, 2022.

More information is available here.

-- Karen Tani

Legal Historians in Berkeley's CSLS Speaker Series

The Speaker Series at the Center for the Study of Law and Society at Berkeley Law includes some legal
historians this fall:   

On Monday, October 3, Bruno Rodriguez de Lima, a Researcher at the Max Planck Institute for Legal History and Legal Theory, presents “Luiz Gama: Brazil’s Frederick Douglass”

On Monday, October 17, Hidetaka Hirota, Associate Professor of History at UC Berkeley, presents “The Influence of the Alien Contract Labor Law on the Development of U.S. Immigration Policy”

--Dan Ernst

Turner on Morris Cohen

Over at the blog of the Journal of the History of Ideas, Samuel Turner. a history graduate student at Yale, has a post, Morris R. Cohen’s Critical Lessons in Legal Reasoning.

--Dan Ernst

NYU Legal History Colloquium Fall 2022 Lineup

The New York University Legal History Colloquium has released its Fall 2022 schedule:

September 14

José Argueta Funes, Postdoctoral Research Scholar, Columbia Law School

The Civilization Canon: Common Law, Legislation, and the Case of Hawaiian Adoption

 

September 28

Catherine Baylin Duryea, Visiting Professor of Law, Villanova School of Law (Fall 2022) / Assistant Professor, St. John’s School of Law

Crumbs of Judicial Relief? Judicial Review of Price Control During WW2

 

October 12

Sarah L. H. Gronningsater, Assistant Professor of History, University of Pennsylvania

The Arc of Abolition: The Children of Gradual Emancipation and the Origins of National Freedom (chapter 4)

 

October 26

Sophia Lee, Professor of Law and History, University of Pennsylvania Carey Law School

TBA

 

November 9

Deborah Dinner, Professor of Law, Cornell Law School

The Sex Equality Dilemma: Work, Family, and Legal Change in Neoliberal America (selected chapters)

 

November 23

Bernadette Meyler, Carl and Sheila Spaeth Professor of Law and Associate Dean for Research, Stanford Law School

TBA

The conveners of this year's colloquium are Noah Rosenblum, Daniel Hulsebosch, and David Golove.

-- Karen Tani

Fox on Gold Clauses

David Fox, University of Edinburgh School of Law, has posted Gold Clauses in the Capital Markets of the Early Twentieth Century:

Gold clauses were one of the most legally troublesome issues in international contracting during the 1920s-1930s. The litigation over gold clauses was a sign that the old monetary order based on the international gold standard was breaking down, despite all the efforts of national governments and central banks to restore it. The aim of this paper is not to recount the doctrinal rules developed by F A Mann and other contemporary commentators on the interpretation and implementation of gold clauses in monetary obligations. Rather, it scratches beneath the doctrinal analysis to the commercial and political purposes served by gold clauses. It seeks to connect them with the prevailing understandings of money and monetary valuation in the early decades of the 20th century. It considers the gold-clause contracts as historical instances of the early international bond markets in operation, and the litigation over them as one reaction to the financial instability of the era. The gold clause cases are a neglected chapter in the larger story of international debt payments and settlements of the inter-war years. They mark an important transition between the old monetary order of the international gold standard and the new order of the Bretton Woods system established after the Second World War.

--Dan Ernst

Baird's "Unwritten Law of Corporate Reorganizations"

Douglas G. Baird, University of Chicago Law School, has published The Unwritten Law of Corporate Reorganizations (Cambridge University Press, 2022):

The law of corporate reorganizations controls the fate of enterprises worth billions of dollars and has reshaped entire sectors of the economy, yet its inner workings largely remain a mystery. Judges must police a small and closed fraternity of professionals as they sit down at a conference table and forge a new future for a distressed business, but little appears to tell judges how they are to do this. Judges, however, are in fact bound by a coherent set of unwritten principles that derive from a statute Parliament passed in 1571. These principles are not simply norms or customary practices. They have hard edges, judges must enforce them, and parties are bound by them as they are by any other law. This book traces the evolution of these unwritten principles and makes accessible a legal world that has long been closed off to outsiders.

Here is (quite) an endorsement:

'When the leading bankruptcy scholar of the past generation writes his magnum opus, The Unwritten Law of Corporate Reorganizations is what we get. Reaching back through the centuries, with an especially acute lens on the period from the late nineteenth century to today, Douglas Baird flips the conventional wisdom about corporate reorganization on its head, demonstrating that the solution to financial distress has not been technical legal rules; it has been the unwritten practices of generations of bankruptcy insiders. Baird tells the story in a way no other legal scholar can, with remarkable historical discoveries, vivid anecdotes, subtle analysis, and a prose style that makes The Unwritten Law of Corporate Reorganizations the most unlikely of page turners. It is destined to be a classic not just of bankruptcy, but of American business history.'

David A. Skeel - S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School

--Dan Ernst

Brady on Convention History in State Constitutional Law

Maureen E. Brady, Harvard Law School, has posted Uses of Convention History in State Constitutional Law, which is forthcoming in the Wisconsin Law Review:

The Constitutional Convention at Albany, 1867 (NYPL)

For decades now, scholars have been interested in the reliability of historical evidence surrounding the drafting of the federal Constitution. The intrigues surrounding the publication of records of the federal constitutional convention—the Philadelphia Convention, held in 1787—are nearly worthy of their own Netflix special (though maybe not quite another installation of the National Treasure franchise). As compared with the amount of material available to federal constitutional law scholars and interpreters, the quantity of historical material pertaining to state constitutions is vast. And yet, no comparable literature exists to assess the reliability of those records. This leaves a question: if scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent might the same sorts of concerns plague the records in the states?

Now is an opportune time to consider the production and use of the historical evidence surrounding state constitutions for at least three reasons. First, while much scholarly interest in uses of historical material focuses on originalism as deployed in the Supreme Court, more recent work is starting to engage originalism and uses of history in state and lower federal forums. Second, the Supreme Court’s turn in recent federal constitutional decisions toward “history” and “tradition” may mean more lawyers turn to state constitutions and associated records for evidence of historical understandings of rights and their limits. And lastly, recent progressive losses in the Supreme Court seem likely to reinvigorate interest in pursuing state constitutional causes of action to protect rights not recognized at the federal level, a move that may likewise trigger renewed interest in state constitutional sources.

This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters. Although hardly the most frequent way that state constitutions are changed, state convention evidence can be helpfully viewed through the critical lens that has already been applied to records of the federal Constitutional Convention. In this brief work, I will illustrate some of the problems and possibilities that this material can pose for interpreters of state constitutions, informed by the critiques that scholars have made of convention evidence in the federal context.

Part I begins by examining the extent to which the evidentiary weaknesses identified by federal constitutional scholars apply to material produced in conjunction with state constitutional conventions. Part II traces the history of state-court reliance on convention evidence, examining its emergence as an interpretive aid in the first half of the nineteenth century and its acceptance in an increasing number of judicial decisions. Given the frequency with which courts turn to convention evidence, Part III identifies some puzzles and directions for further research on the uses of historical material to shed light on the meaning of state constitutional provisions.

--Dan Ernst

Weekend Roundup

• The amicus brief of the Organization of American Historians in Brackeen v. Haaland, on “whether the placement preferences of the 1978 Indian Child Welfare Act discriminates on the basis of race,” is here.
  

• Have you browsed the National Constitution Center's Historic Documents Library?  How about its podcasts?

• From the Washington Post's "Made by History" section: Jaipreet Virdi (University of Delaware), "The FDA’s new hearing aid won’t solve the bigger problems in the market"; Laura Ellyn Smith (Oxford University), "Mike Pence is wrong about vice presidents testifying before Congress."

• “The Institute for Political History, the Journal of Policy History and the newly established Arizona State University Center for American Institutions are hosting the Policy History Conference in Columbus, Ohio from Wednesday, June 7 to Friday, June 9, 2023.”  Deadline for submissions of panels and papers is December 31. 
  

• Jeffrey Rosen reviews Democratic Justice, Brad Snyder's biography of Felix Frankfurter, in the New York Times (NYT).  Update: we understand that John Fabian Witt's review in The New Republic is now ungated.
  

• The 2021-2022 Stanford Law School Legal History Paper Prize has been awarded to joint JD/PhD (History) candidate, Tanner Allread, for The Origins of Indigenous Constitutionalism: Choctow Law and Governance, 1826-1830.  Honorable mentions go to recent JD graduate, Taylor Nicolas, for Who Was Your Grandfather on Your Mother's Side: Seduction, Race, and Gender in 1932 Virginia, and JD candidate, Audrey Spensley, for The Specter of Class in Fourteenth Amendment Equal Protection Doctrine: Housing Claims and the Burger Court Era.  
  

• UConn historians discuss abortion in Colonial America in  Kimberly Phillips’s “Abortion in Colonial America: A Time of Herbal Remedies and Accepted Actions” (UConn Today).
  

• AP History versus new CRT laws (The Conversation).  Also: An AP African American Studies course (Time).
  

• The Summer 2022 issue of the Journal of the Texas Historical Supreme Court Society "features influential women in Texas legal history." Check it out here.

• ICYMI: SCOTUSblog on Reva Siegel's Jackson lecture on Dobbs and Cherry-Picked history.  Annette Gordon-Reed interviewed (E-International Relations).  Sheffeld, Massachusetts, honors Elizabeth Freeman, who prevailed in a freedom suit 241 years ago, with a bronze statue (NPR).  Thoughts on moral panics as Massachusetts exonerates a witch (HNN).
  

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

Lash on the 14th Amendment's State Citizenship Clause

Kurt T. Lash, University of Richmond School of Law, has posted The State Citizenship Clause:

The first sentence of the Fourteenth Amendment contains not one, but two citizenship clauses. The first defines national citizenship and the second defines state citizenship. Although a significant body of scholarship exists regarding the history and meaning of the former, no prior work has investigated the origins and original understanding of the latter.

Unlike the National Citizenship Clause, the State Citizenship Clause had no analogue in the 1866 Civil Rights Act. The unique language of State Citizenship Clause emerged out of a private Republican Senate Caucus which met to address concerns about the Joint Committee’s proposed Fourteenth Amendment. Post-passage criticism of the 1866 Civil Rights Act had revealed a major flaw in the Act: The statute failed to secure the status of state citizenship and potentially left open a loophole through which states might continue to deny Black Americans equal civil rights. The State Citizenship Clause closed this loophole by securing the status of local citizenship for every resident American citizen, regardless of race. Any state law that denied a local civil right on the basis of race by definition denied that resident their status of equal state citizenship. Throughout the ratification period, proponents of the Fourteenth Amendment repeatedly insisted that the final language of Section One prohibited states from denying equal civil rights to any resident American citizen. This prohibition on racial discrimination was not limited to certain “fundamental” civil rights. It applied to all state level civil rights, no matter how trivial. This history suggests that the original understanding of the Fourteenth Amendment supports decisions like Brown v. Board of Education but does so on the basis of the original understanding of the State Citizenship Clause.

–Dan Ernst

Tani, "The Pennhurst Doctrines and the Lost Disability History of the 'New Federalism'"

I recently posted the finalized version of an article I've been working on for a long time, on the landmark deinstitutionalization case Halderman v. Pennhurst State School & Hospital and its broader public law significance. "The Pennhurst Doctrines and the Lost Disability History of the 'New Federalism'" is forthcoming in Volume 110 of the California Law Review. Here's the abstract:

This Article reconstructs the litigation over an infamous institution for people with disabilities—Pennhurst State School & Hospital—and demonstrates that litigation’s powerful and underappreciated significance for American life and law. It is a tale of two legacies. In U.S. disability history, Halderman v. Pennhurst State School & Hospital is a celebrated case. The 1977 trial court decision recognized a constitutional “right to habilitation” and ordered the complete closure of an overcrowded, dehumanizing facility. For people concerned with present-day mass incarceration, the case retains relevance as an example of court-ordered abolition.

For those outside the world of deinstitutionalization and disability rights, however, the Pennhurst case carries different associations, drawn from the two Supreme Court decisions (in 1981 and 1984) that the litigation produced. Although rarely analyzed in tandem, both decisions were about the scope of federal power vis-à-vis the states: the first about how to interpret the terms of federal-state grants-in-aid, a ubiquitous policy device by the second half of the twentieth century; the second about state sovereign immunity.

Bringing these multiple legacies together for the first time—with the benefit of interviews and archival research—this Article shows how an unprecedented victory for disabled and institutionalized Americans limited the role of the federal government in the lives of all Americans. The litigation did so by (1) restricting Congress’s ability to incentivize fair and adequate treatment and (2) constraining individuals’ use of federal courts to hold accountable the level of government with the most meaningful ability to harm or help them. This Article concludes by suggesting what we gain from restoring historical context to these doctrinal innovations. Future research should explore how ideas about intellectual and developmental disability in the late twentieth century informed equality doctrines and the judicial enforcement of positive rights.

You can download the full article here, on SSRN. It should also be up soon on the California Law Review website.

I may do a few follow-up posts about particular facets of the article and the broader literatures and legal debates I hope it will contribute to. And stay tuned for a follow-on article I'm writing with Katie Eyer (Rutgers Law) -- elaborating on the under-appreciated importance of disability-related cases to constitutional federalism doctrines in the late 20th century.

Special thanks to Rabia Belt (Stanford Law) for being a trailblazer and community builder at the intersection of disability history and legal history. I would not have ventured into this research area but for her inspiration.

-- Karen Tani

A Symposium on Koskenniemi's "To the Uttermost Parts of the Earth"

 [We have the following announcement.  DRE]

On 6 September 2022, the Journal of the History of International Law is organising an online evening symposium (CET 20.00h-22.00) to celebrate the publication of Martti Koskenniemi's book “To the Uttermost Parts of the Earth”: Legal Imagination and International Power, 1300-1870 (Cambridge University Press, 2021). The event will take place on Zoom.

This is the program:

Chair: Dr. Inge Van Hulle (Max Planck Institute for Legal History and Legal Theory)

20.00h: Welcome by Prof. Randall Lesaffer (KU Leuven/Tilburg University)

20.05h: Presentation of book by Prof. Martti Koskenniemi (University of Helsinki)

20.30h: Comments by Prof. Koen Stapelbroek (James Cook University): 'Commerce, capitalism and the law of nations'

20.45h: Comments by Prof. Jennifer Pitts (University of Chicago): 'The struggle between statehood and civil society'

21.00h: Comments by Prof. Wim Decock (UCLouvain): 'Theology and the justification of sovereignty and property'

21.15h: Response by Prof. Martti Koskenniemi

21.30h: Open discussion and questions

Please register by sending an email to: vanhulle@lhlt.mpg.de

Anderson on the Merchant Ship as Proto-Corporation

Robert Anderson, Pepperdine University Rick J. Caruso School of Law, has posted  The Sea Corporation:

Over the two centuries the corporation has become the dominant form of business organization, accounting for more productive assets than all other business forms combined. Yet the corporation is relatively young for a legal institution of such economic importance. As late as the middle of the nineteenth century, most business was still conducted through partnerships, with corporations active only in a few industries. Only in the ensuing decades did restrictions ease allowing the corporation to secure its economic dominance.

Commentators widely attribute the corporation’s success to a set of features thought to be unique to the corporation, including limited liability, transferable shares, centralized management, and entity shielding. Indeed, the consensus among economic and legal historians is that these essential corporate features created a unique economic entity that rapidly displaced the obsolete partnership.

This Article argues that these economic features were not unique to the corporation, nor did

NYPL Digital

they first develop in the business corporation. Over many centuries, the maritime law developed a sophisticated system of business organization around the entity of the merchant ship, creating a framework of legal principles that operated as a proto-corporate law. Like modern corporate law, this maritime organizational law gave legal personality to the ship, limited liability, transferable shares, centralized management, and entity shielding. The resulting “sea corporations” were the closest to a modern corporation that was available continuously throughout the 17th through early 19th centuries in Europe and the United States.

The fact that maritime law developed all the most important features of corporate law offers important lessons for business organizational law itself. The parallel development of the same characteristics, with different and independent mechanisms, is strong evidence of the economic importance of the features of the modern corporation. The maritime law employed a unique device—the maritime lien—to achieve the same economic results as the nascent corporation. The key turn was the use of a property mechanism, rather than the contract mechanisms of partnership law, to implement in rem attributes. The vessel is property come to life in the eyes of the law, developing a form of legal personhood. Viewed in this broader context, the corporation is not a unique institutional solution to recurrent economic problems; it was a convenient vehicle for expanding and generalizing a set of economic solutions.

This new organizational theory of maritime law provides potentially important lessons for both maritime law and business organizations law. First, the theory provides a guiding principle for otherwise disorganized features of maritime law. It suggests that courts should explicitly interpret maritime law as a form of business entity law, keeping maritime law’s distinctive purposes, but drawing from the rich theoretical insights of law of other business associations to inform its unique institutions. At the same time, the long history of maritime law as business organization law provides hints for enduring challenges in corporate law, such as externalities of limited liability on involuntary creditors, such as tort creditors. Here, maritime law provides time-tested solutions, providing a system that provides priority for such creditors over contract creditors, solving one of corporate law’s most vexing problems.

--Dan Ernst

Snyder's "Democratic Justice"

At last, there is a full-scale biography of Felix Frankfurter!  My Georgetown Law colleague Brad Snyder has published Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (W. W. Norton):

The conventional wisdom about Felix Frankfurter—Harvard law professor and Supreme Court justice—is that he struggled to fill the seat once held by Oliver Wendell Holmes. Scholars have portrayed Frankfurter as a judicial failure, a liberal lawyer turned conservative justice, and the Warren Court’s principal villain. And yet none of these characterizations rings true.

A pro-government, pro-civil rights liberal who rejected shifting political labels, Frankfurter advocated for judicial restraint—he believed that people should seek change not from the courts but through the democratic political process. Indeed, he knew American presidents from Theodore Roosevelt to Lyndon Johnson, advised Franklin Roosevelt, and inspired his students and law clerks to enter government service.

Organized around presidential administrations and major political and world events, this definitive biography chronicles Frankfurter’s impact on American life. As a young government lawyer, he befriended Theodore Roosevelt, Louis Brandeis, and Holmes. As a Harvard law professor, he earned fame as a civil libertarian, Zionist, and New Deal power broker. As a justice, he hired the first African American law clerk and helped the Court achieve unanimity in outlawing racially segregated schools in Brown v. Board of Education.

In this sweeping narrative, Brad Snyder offers a full and fascinating portrait of the remarkable life and legacy of a long misunderstood American figure. This is the biography of an Austrian Jewish immigrant who arrived in the United States at age eleven speaking not a word of English, who by age twenty-six befriended former president Theodore Roosevelt, and who by age fifty was one of Franklin Roosevelt’s most trusted advisers. It is the story of a man devoted to democratic ideals, a natural orator and often overbearing justice, whose passion allowed him to amass highly influential friends and helped create the liberal establishment.

Some endorsements:

"Exhaustively researched, gracefully written, persuasively argued, and historically grounded, [Democratic Justice] enriches our understanding of American democracy, politics, jurisprudence, and the liberal establishment.… One comes away from a reading of this book with a profound and renewed admiration for Felix Frankfurter and the obligation to reexamine his steadfast adherence to what he believed to be the limited role of an appointed judiciary in a liberal democracy."
David Nasaw, author of The Last Million and The Patriarch

"The conventional wisdom is that Felix Frankfurter was a liberal lawyer who became—surprisingly—a conservative justice. Brad Snyder’s spellbinding biography brilliantly revises this understanding to present Frankfurter as a champion of democracy in his day—and for our own as well."
Laura Kalman, Distinguished Research Professor, University of California, Santa Barbara

"For years people interested in constitutional law and US history have missed a comprehensive biography of Felix Frankfurter, in his time the most influential figure in constitutional law and an important contributor to progressive thought and politics. Finally we have one.… This is a major achievement that deserves to be widely read."
Mark Tushnet, William Nelson Cromwell Professor of Law Emeritus, Harvard Law School

"A magnificent and indeed definitive biography of a vitally important but highly imperfect justice."
David J. Garrow, Pulitzer Prize–winning author of Bearing the Cross and Liberty and Sexuality

--Dan Ernst

Whitely on Property in Wolves

Jack Whiteley, a Fellow and Supervisory Attorney in the Environmental Law & Justice Clinic at the Georgetown University Law Center, has posted Property in Wolves, which is forthcoming in the Cornell Law Review:

"A Wintry Scene" (NYPL)

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.

The Article finally offers thoughts as to why animal eradication was such a pronounced public policy. The phenomenon suggests the influence of cultural preferences on property regimes.

–Dan Ernst

Hewer, "Beyond Exclusion in Medieval Ireland"

Brepols Publisher has released Beyond Exclusion in Medieval Ireland: Intersections of Ethnicity, Sex, and Society Under English Law (2022), by Stephen Hewer (University of Liverpool). A description from the Press:

The notion that all Gaelic peoples were immediately and ipso facto denied access to the English royal courts in Ireland, upon the advent of the English in 1167, has become so accepted in academic and popular histories of Ireland that it is no longer questioned. This book tackles this narrative of absolute ethnic discrimination in thirteenth- and early fourteenth-century English Ireland on the basis of a thorough re-examination of the Irish plea rolls. A forensic study of these records reveals a great deal of variation in how members of various ethnic groups and women who came before the royal courts in Ireland were treated. Specifically, it demonstrates the existence of a large, and hitherto scarcely noticed, population of Gaels with regular and unimpeded access to English law, identifiable as Gaelic either through explicit ethnic labelling in the records or implicitly through their naming practices.  

More information is available here. (h/t New Books Network.)

-- Karen Tani

Weekend Roundup

• "Although the U.S. Congressional Record has been in a digital format for some time, a version that can easily be searched is now available on an online platform—offered by the Brigham Young University J. Reuben Clark Law School"  (ABA Journal).  For all of BYU Law's legal corpora: this.
  

• 
  An interview with Julie Stone Peters, Columbia University, about her book Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe (Columbia News).
  

• On Monday, July 11, 2022, Reva Siegel, Yale Law School, delivered the eighteenth annual Robert H. Jackson Lecturer on the Supreme Court of the United States at the Chautauqua Institution.  A video of her lecture, on Dobbs v. Jackson Women’s Health Organization is here.  The lecture drew upon her article, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance,” which is forthcoming in the Texas Law Review. 
  

• Andrew Delbanco, the Alexander Hamilton Professor of American Studies at Columbia University, will deliver the 2022 Jefferson Lecture in the Humanities, entitled, “The Question of Reparations: Our Past, Our Present, Our Future,” on October 19, 2022, “at President Lincoln’s Cottage historic site and museum in Washington, D.C., at 6:30 p.m. The lecture is free and open to the public and will stream online [here.] In his remarks, Delbanco will address reparations for slavery in the United States, using history, philosophy, and literature to examine a wide range of perspectives on the debate.”
  

• Ananda V. Burra, a Michigan Law JD and PhD who served as the McCurdy Legal History Fellow at the University of Virginia in 2016-2017, is now an Associate Professor at BML Munjal University in Delhi.
  

• “The New Haven Museum will commemorate Connecticut Freedom Trail Month with a virtual presentation, ‘Uncovering Their History: African, African American, and Native American Burials in Hartford’s Ancient Burying Ground, 1640-1815,’ by historian, educator, author, and recently named publisher of Connecticut Explored magazine, Dr. Katherine A. Hermes, on Wednesday, September 14, 2022, at 6 p.m. Register here" (Patch).
  

• Two Trinity College students spent ten weeks this summer researching “the stories of inmates at the country’s first state prison and to investigate the roots of mass incarceration” for their project, ‘Humanizing History at Old New-Gate Prison’” (More).
  

• A notice of Dame Priscilla Olabori Kuye, “the first and only woman to become the President of the Nigerian Bar Association” (The Nigerian Lawyers).
  

• John Fabian Witt, Yale Law School, has published the essay American Contagions: Unexpected Pasts, Unwieldy Presents, and Contested Futures, in the University of St. Thomas Law Review 18 (2022): 510-524.

•  From the Washington Post's "Made by History" section: Molly Michelmore (Washington & Lee), "Biden’s Inflation Reduction Act exposes our allergy to taxes"; Shannon Withycombe (University of New Mexico), "Dobbs may exacerbate our racially disparate infant mortality rates"; Hidetaka Hirota (UC Berkeley), "The disturbing precedent for busing migrants to other states"; JoAnne Sweeny (University of Louisville), "Ireland changed its antiabortion laws. Can it offer a blueprint for the U.S.?"; William E. Nelson (New York University School of Law), "What Justice Kavanaugh gets wrong about the Supreme Court and politics"; Jeremy A. Greene (Johns Hopkins University), "The Inflation Reduction Act reflects the changing politics of RX drugs."

• ICYMI: From Poison Control Statutes to Pope Pius IX: The History of Anti-Abortion Law, by Elisabeth Griffith (Literary Hub).  Seth Barrett Tillman, Maynooth University School of Law and Criminology, questions a reference to the British Conservative politician John Enoch Powell (SSRN).  DRE.  David Adler on John Marshall Harlan's imperishable Plessey dissent (NLJ).
  

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

Abraham and White on Cardozo's "Forks-in-the-Road"

Kenneth S. Abraham and G. Edward White, University of Virginia School of Law, have posted Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial Process, which is forthcoming in the Yale Journal of Law and the Humanities:

This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921. Revisiting these lectures presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal 'path', or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.

We then show how Cardozo employed the concepts of doctrinal paths and 'forks in the road' in several of his most famous torts cases. We conclude that when Cardozo’s discussion of those concepts is understood as one of the principal contributions of The Nature of the Judicial Process, the lectures can be understood to be of lasting as well as historical significance.

--Dan Ernst

Affirmative Action: The ICS Seminar

[We are moving this up, as the deadline is approaching.  DRE]

Our friends at the Institute for Constitutional Studies have announced another seminar for advanced graduate students and junior faculty, “Affirmative Action”:

Prior to the pandemic and the economic downturn, affirmative action was one of the most divisive issues in public policy.  While it is closely tied to issues of racism (past and present), it also has strong ties to the women’s movement, Hispanic rights, and disability programs. Normally we start looking at affirmative action in the Kennedy-Johnson years, but in fact its roots go back to Reconstruction after the Civil War. There are two types of affirmative action programs, which I label “hard” and “soft,” and the distinction will be at the heart of the discussion. There is a story of an administrative agency run wild, and of course, there are court cases. One must bear in mind that this is not a simple liberal vs. conservative debate, for some of the fiercest critics have been liberals.  We will end the course with a look at the most recent case that involved Harvard and Asian-American students.

Instructor.  Melvin I. Urofsky is professor emeritus of history at Virginia Commonwealth University.  He is the longtime editor of the Journal of Supreme Court History and has written widely on American constitutional development.  His most recent books are the prize-winning Louis D. Brandeis: A Life (2009), Dissent and the Supreme Court (2015), and The Affirmative Action Puzzle (2020).

Logistics.  Tuesday afternoons, 3:50–5:50 p.m., October 11, 18, 25, November 1, 8, 15, and 22, 2022. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until September 15, 2022. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history. icsgw@law.gwu.edu

Herzfeld on How Lawyers Came to Dominate Tax Policy

It’s gated, but, as the star footnote explains, it’s an article that some of us have been awaiting for a long time: Mindy Herzfeld, Professor of Tax Practice, University of Florida Levin College of Law, has published The Role of Professional Organizations in Practice and Policy: How Lawyers Overtook Accountants and Economists in the Early 20th Century Tax Field, in Tax Lawyer 75 (Fall 2021): 79-124:

Tax policy and practice are inherently interdisciplinary, involving the close collaboration of lawyers, accountants, and economists. But the presence and strength of the legal profession in a field that was from its start dominated by accountants and economists was not preordained. To no small degree, self-conscious action by the organized profession and effective engagement by its professional associations allowed tax attorneys to establish dominance in an area in which they saw a lucrative future. The American Bar Association (ABA) Tax Committee played an important role in helping to propel lawyers from their poor starting position in the newly created field of federal income tax after the passage of the 16th Amendment to a position of strength in a lucrative practice area with the ability to shape the development of policy.

The story of how tax attorneys came to dominate the fields of tax policy and sophisticated tax practice for much of the 20th century is a success story of strong professional organizations. This Article illustrates how the organization of attorneys focusing on taxation into a specialized group within bar associations has played an important role in making lawyers the central players in tax policy and tax practice in the United States over the 20th century. It places some of the contemporary challenges facing the legal profession in the tax area and questions over its interaction with other disciplines in historical perspective by tracing the early history of the specialization of tax lawyers within professional associations. These associations laid the groundwork for the creation of a tax bar with its own self-identity and ethical guidelines.

This Article explores the role played by the bar associations, in particular the ABA, in developing and promoting the practice of tax law among attorneys and the prestige of lawyers as tax practitioners and developers of tax policy. As part of the effort to map out the expansion of the professional associations of tax attorneys, the Article first sets out the historical background of the growth of professional organizations in the United States. It then examines the development of the U.S. federal income tax law during its first decades, along with the role economists played in that development, followed by a study of the role of the accounting profession in tax practice during this time. An exploration of the role played by a number of prominent attorneys in tax policy and tax practice and of the Association of the Bar of the City of New York sets the stage for consideration of the formation and development of the ABA Tax Committee in the 1920s. The history of the organization and activities of the ABA Tax Committee demonstrates how it became so effective in propelling attorneys to a position of significant influence within the worlds of tax legislation, tax policy, and tax practice.

--Dan Ernst

CFP: History of Prison Reform in Colonial and Postcolonial Contexts

[Here is a legible version of a previously posted call for papers.  DRE]

History of Prison Reform in Colonial and Postcolonial Contexts: Hope and Disappointment
17-19 June 2024, Sapir Academic College, Israel

This workshop will explore the history of prison reform in the colonial context, its hopes and failures. It seeks to broaden our understanding of the distinctiveness of penal reform in colonial and postcolonial territories, and to clarify how it differs from its implementation in other, non-colonial settings. The claim of promoting penal reform was often an explicit part of the colonial 'civilizing mission' and its application an indicator of progress. Proclaimed reformist intentions, however, were often not fulfilled in practice. Historians have examined the violent and oppressive practices of colonial penal regimes. A considerable part of this scholarship criticizes the Eurocentricity of the progressive reformist narratives, often underpinned by the Foucauldian argument about a shift from corporal punishment to imprisonment, and laced with disciplinary and surveillance knowledge-power technologies. These studies reveal that within the colonial context, the European penal model underwent transformations, both deliberate and unintended ones.

Postcolonial accounts of penal regimes critically analyze the implementation of reformist, humanitarian institutions and ideas. While reformist ideology explicitly advocates for humanistic values, in practice it can nonetheless support imperial projects of control over foreign bodies. The proposed workshop will explore the implementation, rejection and manipulation of reform mechanisms of the penal system in colonial settings by the various social players that were involved in these practices. Who were the players advocating for reform and what was their agenda? When reformist practices and institutions were transplanted to colonial settings, how did they change? In what ways were the subalterns able to influence the meaning of these practices? What impact did the broader political, administrative and societal context have on these practices? In what ways are the achievements and failures of reform different in a colonial and non-colonial context? The participants in the proposed international workshop will work together towards providing answers to these fundamental questions that stand at the heart of current debates on colonial punishment and the shortcomings of penal reforms.

Submission Guidelines:  The workshop will be held at Sapir Academic College, Israel on 17-19 June 2024. All participants will be expected to submit a working paper by 10 May 2024, to be distributed to the other participants. Those interested in participating in the workshop are welcome to send a one-page proposal in English, along with a short C.V., by 18 October 2022. The proposal should briefly state the topic and outline how the paper contributes to the aims of the workshop. We hope to publish selected papers from the workshop as a book or a special journal issue. Please send the above and refer any questions to Orna Alyagon Darr (oad@mail.sapir.ac.il). Financial assistance for airfare and accommodation will be offered depending on funding.

Rabb on Punishment in Medieval Islamic Law

Intisar A. Rabb, Harvard Law School, has posted Enforcement and Punishment in Medieval Islamic Law, which is forthcoming in Cultural History of Crime and Punishment in the Medieval Age, ed. Sarah McDougall and Karl Shoemaker (Bloomsbury 2022):

The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.

Examining both principles and practices of medieval Islamic criminal law can shed light on some of the most pressing questions of old criminal law (Islamic and otherwise): What is the extent of convergence or divergence between Islam’s principles and practices? How, from juristic or social-political accounts of criminal justice, can we explain the types of punishments we see on the books and in the world as we know it?

To answer these questions, I will explore the principles-practices divergence by first examining the legal sources. Then I will review them alongside narratives of social-political practices. For the legal principles, I draw on previous work outlining medieval Islamic criminal law and the expansive role of doubt in substantive law and in criminal procedure. To explore the practices, I canvas Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (MMawsūʿat al-ʿadhāb), in which he collects all mentions of “punishment” from a well-known set of historical chronicles and other literary sources from the eighth century onward. I supplement his sources with the less-covered Seljuq, Mamlūk, and Ottoman-era accounts of punishment that Christian Lange (2012), Carl Petry (2008), and others have collected in their studies. By combining views of criminal law from the pens of medieval jurists together with accounts of contemporaneous acts reporting on their less verbose executive counterparts, I offer depictions of how each side tended to approach crime and punishment.

--Dan Ernst

Ryan on the Cy-Près Doctrine

Christopher J. Ryan, University of Louisville Louis D. Brandeis School of Law, has posted An Historical and Empirical Analysis of the Cy-Près Doctrine, which is forthcoming in the ACTEC Law Journal:

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field.

First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

--Dan Ernst

Walker, Silva Campo, Manners, Hébrard, & Scott, "Impunity for Acts of Peremptory Enslavement: James Madison, the U.S. Congress, and the Saint Domingue Refugees"

The July issue of the William and Mary Quarterly includes an article of likely interest to our readers: "Impunity for Acts of Peremptory Enslavement: James Madison, the U.S. Congress, and the Saint Domingue Refugees," by Andrew J. Walker (Omohundro Institute of Early American History and Culture), Ana María Silva Campo (University of North Carolina, Chapel Hill), Jane Manners (Temple Law), Jean M. Hébrard (Paris’s École des Hautes Études en Sciences Sociales), and Rebecca J. Scott (University of Michigan). The article is behind a paywall, unfortunately, but here's the abstract:

In 1809 more than three thousand people were claimed as slaves upon arrival in Louisiana, in violation of the 1807 U.S. law against the international trade in persons to be held or sold as slaves. Having lived as free persons in Saint Domingue since the revolutionary emancipations of the 1790s, these people had been swept into a large exodus of war refugees in 1803, as the Napoleonic expeditionary assault ravaged the colony. When France and Spain went to war in 1808, the Spanish government in Cuba expelled the “French” refugees. More than ten thousand soon made their way toward Louisiana. Before their departure, one hundred prosperous white refugees penned a petition to President James Madison, seeking to bring into the United States those whom they coyly described as their “domestics.” In June 1809 the U.S. Congress passed, and the president signed, a law granting the requested “remission of penalties” for those from Saint Domingue via Cuba who had violated the 1807 law. The Louisiana legislature, in turn, authorized putative owners to buy and sell those they now claimed as slaves. The dynamics of these acts of peremptory enslavement reframe our understanding of Caribbean connections in the early U.S. Republic, and of the 1807 law.

-- Karen Tani