Friday, May 25, 2018

Law & History Review launches new digital imprint, The Docket

We are excited to report that the Law & History Review has officially launched its new online companion, The Docket. From LHR editor Gautham Rao:
I am pleased to announce the launch of The Docket, the new digital imprint of Law and History Review. The Docket aims to bring legal historians' outstanding work to a broader audience, without any paywall or registration. We'll be featuring content that mirrors articles in our print journal, while also running original articles, reviews and opinion pieces. Readers will also find interviews with scholars at different career stages, who discuss challenges in the field and new and particularly creative frameworks. We also hope to begin a broader conversation about teaching legal history in a digital age as the first of what we hope to be many projects. The Docket is edited by Dr. Michan Connor. Our inaugural issue features articles by Sarah Barringer Gordon of The University of Pennsylvania, Adriana Chira of Emory University, Anders Walker of St. Louis University, and Catherine Evans of the University of Toronto, plus an interview with University of Wisconsin doctoral candidate, Brooke Depenbusch. Our next issue will be a special volume on the career of eminent legal historian, Robert W. Gordon. We are also seeking contributors for future issues. Those interested in contributing to The Docket can find our contact information on the site.
Check it out here.

Kearley on Early 20th-Century Roman Law Translations

Timothy G. Kearley, University of Wyoming College of Law, has posted Roman Law Scholarship and Translation in Early Twentieth-Century America:
This article provides an overview of the book Lost in Translations, which examines the lives and work of five twentieth century American Roman law translator-scholars: Wyoming Supreme Court Justice Fred H. Blume (1875-1971), who single-handedly translated Justinian’s Code and Novels; gentleman-scholar Samuel Parsons Scott (1846-1929) and classics professor Clyde Pharr (1883-1972), both of whom created massive translations of ancient Roman law; Charles Phineas Sherman (1874-1962), a lawyer-professor who translated some Roman law and wrote prolifically about it; and, finally, Charles Sumner Lobingier (1866-1956), a judge-professor who wrote about Roman law, translated a little, championed the publication of Scott’s work, and was connected to all of the others. All of these men were prominent during their lifetimes but are largely forgotten now. It is hoped that Lost in Translations will draw attention to the work these extraordinary men did and stir an interest to our classical past.

Mirow on the Expansion of Spanish Law

M. C. Mirow, Florida International University College of Law, has posted Spanish Law and Its Expansion, which is forthcoming in the Oxford Handbook of European Legal History, ed. Heikki Pihlajamaki, Markus D. Dubber, and Mark Godfrey (Oxford: Oxford University Press, 2018):
This chapter provides an overview of the legal aspects of Spain's enterprise in the Americas. It addresses the uses of law in discovery, exploration and conquest; Castilian law before its expansion to new territories; the use of law to justify conquest; slavery and indigenous labour; institutions; sources of law; legal actors; and Spanish law after independence. It also presents some of the present debates surrounding the nature and construction of derecho indiano.

Walsh on "Schools, Segregation, and Taxpayer Citizenship, 1869–1973"

The University of North Carolina Press has released Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973 (Feb. 2018), by Camille Walsh (University of Washington Bothell). A description from the Press:
In the United States, it is quite common to lay claim to the benefits of society by appealing to “taxpayer citizenship”--the idea that, as taxpayers, we deserve access to certain social services like a public education. Tracing the genealogy of this concept, Camille Walsh shows how tax policy and taxpayer identity were built on the foundations of white supremacy and intertwined with ideas of whiteness. From the origins of unequal public school funding after the Civil War through school desegregation cases from Brown v. Board of Education to San Antonio v. Rodriguez in the 1970s, this study spans over a century of racial injustice, dramatic courtroom clashes, and white supremacist backlash to collective justice claims. 
Incorporating letters from everyday individuals as well as the private notes of Supreme Court justices as they deliberated, Walsh reveals how the idea of a “taxpayer” identity contributed to the contemporary crises of public education, racial disparity, and income inequality.
A few blurbs:
“Walsh's discovery of a popular legal consciousness that defined citizenship with reference to taxation is fresh, striking, original, and highly significant. In a rhetorical landscape filled with pitfalls and ironies, Walsh guides the reader through not only the linguistic thickets but also the financial and educational realities behind them.”--Robin Einhorn 
“Walsh deftly brings together political theory, legal studies, and critical race analysis in the historical examination of two fundamental issues at the heart of pressing challenges to democracy and equality: taxation and public education. A combination of original analysis and careful archival work, this powerful, passionately written book explains why the United States continues to reproduce racial inequality while relying on an increasingly anemic notion of citizenship.”--Joseph Lowndes
For a preview, follow the link.

Thursday, May 24, 2018

Lindsay on "Invasion" in Nativist Thought

Matthew J. Lindsay, University of Baltimore School of Law, has posted The Perpetual “Invasion”:  Past as Prologue in Constitutional Immigration Law, which is forthcoming in Roger Williams University Law Review 23 (2018): 369-392
Donald Trump ascended to the presidency largely on the promise to protect the American people — their physical and financial security, their culture and language, even the integrity of their electoral system — against an invading foreign menace. Only extraordinary defensive measures, including “extreme vetting” of would-be immigrants, a ban on Muslims entering the United States, and a 2,000-mile-long wall along the nation’s southern border could repel the encroaching hordes. If candidate Trump’s scapegoating of unauthorized migrants and refugees was disarmingly effective, it was also eerily familiar to those of us who study the history of immigration law and policy. Indeed, the trope of an immigrant “invasion” has long been a rhetorical mainstay of American political discourse. Much less well understood, however, is the extent to which the invasion trope has also shaped the federal government’s vast, extra-constitutional, and largely unrestrained authority to exclude or expel noncitizens from the United States.

Anti-Chinese Riot, Seattle, 1886 (NYPL)
This Article describes the origin of that authority in the nativist movements of the late-nineteenth century, including both the virulent anti-Chinese crusade that culminated in the Chinese Exclusion Act, and the decades-long and ultimately successful campaign to severely curtail the immigration of “new” Europeans from Southern and Eastern Europe. The legacy of this history endures to the present, as the Supreme Court continues to account for its broad deference to the political branches on immigration matters in terms of an inextricable connection between immigration regulation and the conduct of national security. This Article concludes by considering whether President Trump’s unusually candid (unusual, at least, during the last half-century) deployment of the invasion trope might have an edifying effect on the Supreme Court in Trump v. Hawaii, the travel ban case, as the justices contemplate the implications of deferring to a President whose campaign-season political demagoguery has now mutated to official United States policy.

Zinos on Fundamental Rights in Early American Case Law

Nicholas Zinos, Mitchell Hamline School of Law, has posted Fundamental Rights in Early American Case Law: 1789-1859, which is forthcoming in volume 7 of the British Journal of American Legal Studies:
Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Collin's "Regulated Self-Regulation" in Germany

Peter Collin, Max Planck Institute for European Legal History, has posted all 781 pages of Regulated Self-Regulation from a Legal Historical Perspective: Studies and Sources, published auf Deustch as a Max Planck Institute for European Legal History Research.  Here is the English abstract:
This publication familiarises the reader with a number of fields of “regulated self-regulation,” i.e. regulatory complexes, in which state and non-state regulatory activities are intertwined. The area examined is Germany, and the period of investigation is the 19th and early 20th centuries. Each chapter begins with a comprehensive introduction, which provides an overview of the regulated self-regulation sector in question. This is then followed by the normative sources that illustrate the regulatory framework for the related sector. This contribution documents the results of the research project “Regulated Self-Regulation from a Legal Historical Perspective” at the Max Planck Institute for European Legal History. It offers an introduction to the field of research, familiarises the reader with central legal sources and, at the same time, is intended to stimulate further research.

Hoffer's "Uncivil Warriors"

Peter Charles Hoffer, University of Georgia, has published Uncivil Warriors: The Lawyers’ Civil War with Oxford University Press:
It was a law that empowered as well as limited the government, a law that conferred personal dignity and rights on those who, at the war’s beginning could claim neither in law.

The American Civil War from 1861 to 1865 is arguably the most important event in American history. The United States and the Confederate States of America engaged in combat to defend distinct legal regimes and the social order they embodied and protected. In a “nation of laws,” lawyers and politicians found themselves at the center of this violent maelstrom.  For these men, as for their countrymen in the years following the conflict, the sacrifices of the war gave legitimacy to new kinds of laws defining citizenship and civil rights.

Well-known legal historian Peter Charles Hoffer gives a detailed account on why law and lawyers played such an important role during the Civil War in his new book, Uncivil Warriors. He concentrates on the legal professionals who plotted the course of the war from seats of power, scenes of battle, and the home front.  Lawyers and politicians were everywhere in the executive and legislative branches of government as well as the judiciary.  From the Confederate constitution in Montgomery through the passage of the Thirteenth Amendment in Washington, DC – government lawyers, performing as policymakers, litigators, and jurisprudents, shaped the Union and Confederate causes. Both sides had their complement of lawyers, and in this book, Hoffer provides readers with coverage of both sides’ leading lawyers.

Uncivil Warriors focuses on the centrality of lawyers and the law in America’s worst conflict will transform how we think about the civil war itself.
Endorsements after the jump.

Wednesday, May 23, 2018

Eisenstadt on Religion and Loving

Leora F. Eisenstadt, Temple University, has posted Enemy and Ally: Religion in Loving v. Virginia and Beyond, which is forthcoming in volume 86 of the Fordham Law Review:
In his 1965 opinion refusing to vacate the convictions of Richard and Mildred Loving, Judge Leon M. Bazile of Caroline County Circuit Court wrote," Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix." Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. In a brief but memorable interaction during oral arguments, Chief Justice Warren analogized interracial relationships to interfaith ones and managed, in a few words, to underscore the absurdity of treating religion and race differently under the law. The inherent tension between religion as both enemy and potential ally of those with vulnerable social identities is the subject of this essay. The fact that Loving incorporates both aspects of religion is telling. The story of America’s progression toward equal treatment of race, gender, and sexual orientation is inherently intertwined with religion, and the fiftieth anniversary of the Loving case provides an unparalleled opportunity to explore both sides of this fraught relationship.

Coffey's "Constitutionalism in Ireland, 1932-1938"

We’ve previously noted the publication of Drafting the Irish Constitution, 1935–1937: Transnational Influences in Interwar Europe (Palgrave Macmillan), by Donal K. Coffey, Senior Research Fellow, Max Planck Institute for European Legal History.  Now comes its companion volume, Constitutionalism in Ireland, 1932–1938: National, Commonwealth, and International Perspectives:
The first of two volumes, this book examines constitutionalism in Ireland in the 1930s. Donal K. Coffey places the document and its drafters in the context of a turbulent decade for the United Kingdom, the Commonwealth, and Europe. He considers a series of key issues leading up to its drafting, including the failure of the 1922 Constitution, the rise of nationalism in the 1920s and 1930s, and the abdication of Edward VIII. He sketches the drafting process, examines the roles of individual drafters and their intellectual influences, and considers the Constitution’s public reception, both domestically and internationally. This book illuminates a critical moment in Irish history and the confluence of national, Commonwealth, and international influences that gave rise to it, for scholars of Irish history as well as of legal, constitutional, and Commonwealth history more broadly.

Barzun on Three Forms of Legal Pragmatism

Charles L. Barzun, University of Virginia School of Law, has posted Three Forms of Legal Pragmatism, which is forthcoming in the Washington University Law Review 95 (2018):
The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick. Although there are diverse strands of legal pragmatism, there is also unity among them. This essay distinguishes among three such forms of legal pragmatism. It dubs them instrumentalist, quietist, and holist strands, and it offers, as representatives of each, the views of Richard Posner, Ronald Dworkin, and David Souter, respectively. Each of these forms of pragmatism has developed as a response to the same underlying philosophical problem, namely that of justifying moral and legal values within a naturalistic, nontheological worldview. That problem is an old one and a fundamental one. And it is one felt acutely by those judges and legal theorists over the last century or more who have sought to make sense of the judge’s task when deciding hard cases. The essay does not defend any one or more of these three understandings of law and adjudication against its critics. But it does suggest that the feature they share, in virtue of which they are all plausibly classed as “pragmatist,” may also be an important and distinctive feature of law as a discipline – that is, as a form of reasoning about matters practical and theoretical.

Edwards on FDR and the Gold Clause Cases

Sebastian Edwards, the Henry Ford II Professor of International Economics at the University of California, Los Angeles, has published American Default The Untold Story of FDR, the Supreme Court, and the Battle over Gold with Princeton University Press:
The American economy is strong in large part because nobody believes that America would ever default on its debt. Yet in 1933, Franklin D. Roosevelt did just that, when in a bid to pull the country out of depression, he depreciated the U.S. dollar in relation to gold, effectively annulling all debt contracts. American Default is the story of this forgotten chapter in America's history.

Sebastian Edwards provides a compelling account of the economic and legal drama that embroiled a nation already reeling from global financial collapse. It began on April 5, 1933, when FDR ordered Americans to sell all their gold holdings to the government. This was followed by the abandonment of the gold standard, the unilateral and retroactive rewriting of contracts, and the devaluation of the dollar. Anyone who held public and private debt suddenly saw its value reduced by nearly half, and debtors--including the U.S. government—suddenly owed their creditors far less. Revaluing the dollar imposed a hefty loss on investors and savers, many of them middle-class American families. The banks fought back, and a bitter battle for gold ensued. In early 1935, the case went to the Supreme Court. Edwards describes FDR's rancorous clashes with conservative Chief Justice Charles Evans Hughes, a confrontation that threatened to finish the New Deal for good—and that led to FDR's attempt to pack the court in 1937.

At a time when several major economies never approached the brink of default or devaluing or recalling currencies, American Default is a timely account of a little-known yet drastic experiment with these policies, the inevitable backlash, and the ultimate result.

Tuesday, May 22, 2018

Deregulation, Past and Present: An ABA Teleforum

We have word of a teleconference sponsored by Administrative Law and Regulatory Practice Section of the American Bar Association, Deregulation, Past and Present.  It will take place from
12:00 PM - 1:30 PM ET on June 8, 2018.  It is open to ABA members and the general public, without cost, although registration is required.For additional information, call 202-662-1528 or e-mail Rebecca.Mobley@americanbar.org.  “Dial-in information will be sent one day before the program.”
The present administration has seen what many consider the most dramatic effort at deregulation since Ronald Reagan took office in 1981. This teleforum considers what the proponents and opponents of deregulation can learn by looking back at deregulation’s history, particularly the Reagan era.

What factors have caused deregulation to succeed or fail as a legal matter, and to thrive or sputter as a political matter?  When does deregulation last, and when does it not?  This program brings together veterans of the deregulation initiatives and debates of the 1980s with historians and political scientists who have begun to produce a rich scholarly literature on deregulation’s history and what that history means for us today.
The confirmed panelists are:
  
Christopher DeMuth, Distinguished Fellow, Hudson Institute, former Administrator, Office of Information and Regulatory Affairs
  
David Vladeck, Professor of Law, Georgetown University, former Director, Public Citizen Litigation Group 

Marissa Martino Golden, Associate Professor of Political Science, Bryn Mawr College
  
Reuel Schiller, Professor of Law, UC-Hastings College of Law

Jefferson Decker, Assistant Professor of American Studies, Rutgers University

Nicholas Parrillo, Professor of Law, Yale University (moderator)

CFP: “Migrants and Refugees in the Law" at Universidad Católica de Murcia

We a call for papers for the Fourth International Conference of the Chair Innocent III and the Universidad Católica de Murcia.  It is entitled “Migrants and Refugees in the Law: Historic Evolution, Current Situation and Unsolved Questions" and will be held in Murcia (Spain), December 12-14, 2018.
International Chair Innocent III calls on all interested researchers to submit papers related to the human mobility and the reception of refugees according to History of Law, Canon Law, Roman Law, Comparative Law, Philosophy, Theology, History, Sociology, Historiography and any other discipline related to the main theme, as stated in the following sessions:
December 12: session 1. The Migration in the Ancient and Medieval History. Historical approach to human mobility. 
December 13: session 2. Nation, State, Revolution.  The situation of the migrants and the refugees from the origin of the modern State. 
December 14: session 3. Between Emergency and Ordinariness.  Proposals for the enhancement of a constant phenomenon in the contemporary age. 
Proposals:  Title, academic affiliation, short CV and Abstract - 200 words - (EN, IT, ES, DE, FR), via mail: catedrainocencio@gmail.com 
Deadline: September 15, 2018. The Scientific Committee will respond to the proposal before September 30, 2018.
Publication: Papers selected by the Scientific Committee will be published in the special issue of the journal Vergentis (ISSN: 2445-2394) in the first half of 2019.

Mayeux on the Federal Courts and Criminal Justice

Sara Mayeux, Vanderbilt University Law School, has posted The Federal Courts and Criminal Justice, which is forthcoming in Approaches to Federal Judicial History, ed. Clara Altman, Gautham Rao & Winston Bowman (Federal Judicial Center):
Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy. What role has the federal judiciary played in this complex history? This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state—even or especially those who do not define themselves primarily as legal historians—to join the conversation. The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation. This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

Ahmed on Islamic law and empire in Afghanistan


Faiz Ahmed, Brown University, published Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires with Harvard University Press in 2017. From the publisher:
Cover: Afghanistan Rising in HARDCOVERDebunking conventional narratives of Afghanistan as a perennial war zone and  the rule of law as a secular-liberal monopoly, Faiz Ahmed presents a vibrant account of the first Muslim-majority country to gain independence, codify its own laws, and ratify a constitution after the fall of the Ottoman Empire.
 Afghanistan Rising illustrates how turn-of-the-twentieth-century Kabul—far from being a landlocked wilderness or remote frontier—became a magnet for itinerant scholars and statesmen shuttling between Ottoman and British imperial domains. Tracing the country’s longstanding but often ignored scholarly and educational ties to Baghdad, Damascus, and Istanbul as well as greater Delhi and Lahore, Ahmed explains how the court of Kabul attracted thinkers eager to craft a modern state within the interpretive traditions of Islamic law and ethics, or shariʿa, and international norms of legality. From Turkish lawyers and Arab officers to Pashtun clerics and Indian bureaucrats, this rich narrative focuses on encounters between divergent streams of modern Muslim thought and politics, beginning with the Sublime Porte’s first mission to Afghanistan in 1877 and concluding with the collapse of Ottoman rule after World War I. By unearthing a lost history behind Afghanistan’s founding national charter, Ahmed shows how debates today on Islam, governance, and the rule of law have deep roots in a beleaguered land. Based on archival research in six countries and as many languages, Afghanistan Rising rediscovers a time when Kabul stood proudly as a center of constitutional politics, Muslim cosmopolitanism, and contested visions of reform in the greater Islamicate world.
Praise for the book:

“A groundbreaking book that will reorient the way we think about not only Afghan modernity, but also political and legal thought in Muslim societies during the twentieth century. Ahmed describes the emergence of a modern Islamicate region during the age of imperial globalization and demonstrates the appeal of multiple governance models in the ideas exchanged within this region among different Muslim publics. More importantly, he shows how Afghan kings experimented with novel legal and political models to assert their legitimacy while establishing on the global stage Afghanistan’s sovereignty as a modern nation state. The book persuasively shows us how Afghanistan’s transformation exemplifies a model of Muslim modernity that was not Eurocentric.”—Cemil Aydin

“Afghanistan Rising uncovers the lost history behind the first constitution of Afghanistan and that country’s evolution into a modern Islamic state. Ahmed provides highly original insights into Muslim legal history, modernization in non-European contexts, and transnational Muslim networks. Exploring the ideological and social factors that shaped Afghanistan during an age of turmoil and transformation, the work is conceived on a broad scale. This is a well-crafted, theoretically rich, tightly argued, and rigorously executed book. In addition, its lucid style makes for enjoyable reading.”—M. Şükrü Hanioğlu

Here is the Table of Contents:

Introduction
1. An Ottoman Scholar in Victorian Kabul: The First Ottoman Mission to Afghanistan
2. A Damascene Road Meets a Passage to India: Ottoman and Indian Experts in Afghanistan
3. Exit Great Game, Enter Great War: Afghanistan and the Ottoman Empire during World War I
4. Converging Crescents: Turco-Afghan Entente and an Indian Exodus to Kabul
5. Legalizing Afghanistan: Islamic Legal Modernism and the Making of the 1923 Constitution
6. Turkish Tremors, Afghan Aftershocks: Anatolia and Afghanistan after the Ottomans
Conclusion

Further information is available here.

The Art of the Op-Ed

Around the time of the publication of my book, The Sit-Ins, I decided to give more attention to something I had mostly avoided up to that point: writing op-eds. I was looking for ways to draw more attention to the book, and this seemed a good way to do that. I placed an op-ed in USA Today that ran on the anniversary of the seminal 1960 lunch counter sit-in in Greensboro, North Carolina. I also wrote several pieces for the Washington Post’s “Made By History” section.

I have two takeaways from this experience. One is that an academic writing an op-ed should know some basic tricks. The other is that a historian writing an op-ed faces distinct challenges. Effective op-ed writing often demands the kind of presentist orientation to the past that conflicts with the essence of effective historical writing.

The Tricks

I quickly learned there are basic tricks to writing pieces op-eds. The most important is to remember your audience. Op-eds are aimed toward a general readership, and you need to make sure to pitch your prose at the right level. Make it accessible. Don’t assume knowledge. Avoid abstract concepts and technical terminology. Use details selectively, and then only to illustrate or to add texture to the point you’re trying to make.

A related trick: Don’t try to do too much. Figure out what the point of the piece is and stick to it. Avoid excessive qualifications. Accept that nuance is not the coin of this realm. For scholars who dedicate their careers to the complexity of historical material, who carefully craft article and books by threading together subtle arguments and sub-arguments, this can be a difficult and painful process.

And then there is the always-looming word count. You need to cut, cut, and cut some more. You might get some more space if you’re writing an exclusively online essay, but if you have a chance to get into actual print, this requires even more cuts.

The Challenges

Beyond figuring out how to express yourself in accessible 800-word form, there are more substantive concerns that historians face when writing op-eds.

If you want an editor to pick up your op-ed, you need a hook. What do you have to say that will make a general reader stop to take a detour into history with you? Sometimes the historical material itself is the enticement. But if you’re trying to get the attention of an editor receiving hundreds of submissions every week, you probably need something more. And often that something more is a “lesson” of history. You’re a historian, and you want to show the world that you have something to add to the discussion. And what clearer, more relevant way to declare your importance than to say that history provides special insight on some issue of contemporary importance?

In navigating this terrain, there are two basic moves the historian can make: critique and construction. The historian as critic might simply seek to correct some historical misconception that has entered into public debate. Or, the historian as critic might seek to undermine present-day assumptions, to destabilize established certainties. The historian does this by showing that the status quo was constructed out of lost alternatives, that the present does not need to be the way it is. History shows us that things have changed and that things can change again.

The other move is probably more appealing to op-ed editors, but it is the one I find far more challenging and more potentially problematic. This move involves the historian extracting a lesson from history that says something about the way the present should be.

Some lessons of history focus on lineage. The historian shows how present debates are the legacies of past debates. Understanding the past illuminates the stakes of the present. So, for example, liberal historians argue that the embrace of a “color-blind” reading of the equal protection clause by segregationists in the 1960s and 1970s illuminates the sins of modern-day color-blind constitutionalists. Conservative historians critique modern liberalism by tracing its lineage to the paternalistic, racist, and eugenicist strands of the Progressives.

Another kind of lesson of history is comparative. The historian places the past alongside the present so as to illuminate the present. This was how I framed my op-eds on the sit-ins. One described lessons the sit-in movement offered for present-day protest efforts. The other compared the 1960 student movement to the recent student-led gun rights movement.

The reason I find this kind of writing challenging is because Rule #1 for any serious historian is that past is different from the present. The most common mistake for nonhistorians engaging with the past is anachronism and presentism. Recovering the past requires attention to the distinctive circumstances and worldviews of historical actors. Finding ourselves in the past is easy—probably because it says more about us than about the past. The best historical work tends to show difference.

Extracting lessons from the past that are useful to the present is an exercise in selection in which the selection criteria is as much about present-day utility than about historical fidelity. To make history serviceable to the present also requires compromise and simplification. Richness and complexity of history inevitably is lost in the process.

So, for example, to reduce modern color-blind constitutionalism to the legacy of segregationism requires placing aside many other strands of historical influence that played a role in its rise to conservative orthodoxy. My comparison of the lunch counter sit-in protesters to the post-Parkland student gun-control activists required me to pick out points of intersection and push aside points of differentiation. The comparison was driven by my admiration for the students and what they were trying to do, both then and now. I want the students today to succeed, and it was this desire, as much as or more so than my knowledge of history, that moved me to compare them to one of the most inspirational and successful students movements in history.

*** 

These are the tricks and challenges of writing op-eds. The tricks I found sometimes frustrating, always time-consuming, but readily manageable. The more substantive challenges I found harder to navigate. I had to recognize that the art of the op-ed simply requires tapping into a different skill set than that of an academic historian.

In the end, I was proud of the op-eds I wrote. I felt I was able to minimize the inevitable trade-offs of the genre. They drew attention to historical material I felt deserved more attention. And the linkages I drew between the past and the present hopefully enriched some readers’ understanding of both.

Freedman's "Making Habeas Work"

Eric M. Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at the Maurice A. Deane School of Law at Hofstra University, has published Making Habeas WorkA Legal History, with NYU Press.
Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.
Here are some endorsements:

“Eric M. Freedman is one of the most important legal thinkers in the area of habeas corpus, and this book reaffirms that status. Keeping one foot in the present and the other firmly planted in the past, Freedman shows how, without the perspective of history, modern jurisprudence can and does go wrong. A compelling reformulation of our understanding of habeas based on extensive historical research.”
 —Austin Sarat, William Nelson Cromwell Professor Of Jurisprudence & Political Science, Amherst College

“This impressive work of scholarship by one of the leading national experts on habeas corpus draws deeply on history to expand and enrich the modern understanding of the writ. The book is an invaluable resource for legal scholars, the judiciary, and the practicing bar. Its insights will almost certainly surprise  readers, just as they have surprised and informed us notwithstanding our long immersion in the topic.”
—Randy Hertz and James S. Liebman, co-authors, Federal Habeas Corpus Practice and Procedure (LexisNexis 7th ed. & annual supplements)

“Professor Eric Freedman has written a wonderful book explaining the historical and contemporary importance of habeas corpus in protecting liberty.  The book is original in its research and also in its analysis, as Professor Freedman explains the role of habeas corpus in a system of checks and balances.  This clearly written, thorough examination of habeas corpus is an important contribution to the literature of constitutional law, criminal procedure, and federal jurisdiction.”
—Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor, University of California, Berkeley Law School

Monday, May 21, 2018

Spruhan on "The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity"

Just out from the American Indian Law Journal: "CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity," by Paul Spruhan (Navajo Nation Department of Justice). ("CDIB" stands for "Certificate of Degree of Indian or Alaska Native Blood.") Here's a paragraph from the Introduction:
This article is about the CDIB and its role in defining Native American legal identity. The purpose of the article is to describe the CDIB, its function, its statutory authority (or lack thereof), and the BIA’s recent attempts at issuing regulations, which no other article or book has done. First, I discuss its primary purpose as proof of blood quantum for specific federal statutes and regulations, and how its use has expanded to other purposes, including by tribes to define eligibility for membership. Second, I discuss its origins as an internal BIA document lacking any direct congressional authorization or published regulations and suggest several possibilities for its first appearance. I then discuss a 1986 Interior Board of Indian Appeals (IBIA) decision, Underwood v. Deputy Ass’t Secretary- Indian Affairs (Operations). In that decision, the IBIA blocked an attempt by the BIA to unilaterally alter a person’s blood quantum on a CDIB, because there were no properly issued regulations. I then discuss the BIA’s attempts at issuing regulations since 2000 and the possible reasons for why they have never been finalized. I then discuss potential remedies the BIA might consider in order to solve problems arising out of the CDIB program, including the potential misuse of CDIBs in current disenrollment conflicts within some tribes. In the conclusion, I discuss the CDIB’s role in enshrining “blood” as the dominant definition of Native American legal identity. I also argue that, for as long as the CDIB continues, the BIA has an affirmative obligation to issue clear policies that prevent its misuse in internal tribal conflicts.
The full article is available here.

CFP: On the Origins of International Legal Thought

[We have the following call for papers.]

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

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

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

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

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

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

The American Historical Association has announced its 2018 Research Grant Winners. Of particular interest to readers of this blog is the Littleton-Griswold Research Grant "to support research in US legal history and in the general field of law and society." This year's winners are:
Esther Cyna, for "From Equity to Excellence? Shifting Strategies in School Finance Litigation and Education Policy in North Carolina, 1970s–1990s" 
Koji Ito, for "Contested Imperial Waters: Disputes over Migratory Fish and the Origins of the Territorialization of the Bering Sea, 1925–1952" 
Jane Manners, for "The Great New York Fire of 1835 and the Law and Politics of Disaster Relief in Jacksonian America"

Hughett Wins LSA Dissertation Prize

[We have the following announcement.]

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

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

Saturday, May 19, 2018

Weekend Roundup

  • “Two retired judges of the Supreme Court of Canada say 50 years is too long to seal internal court documents revealing the communications between judges on cases.”  More
  • Although we were aware that the Historical and Special Collections of the Harvard Law School Library had opened the papers of Stanley S. Surrey, we only recently realized that the manuscript memoir of this great tax scholar and policymaker, "Fifty Years [A Half-Century] with the Internal Revenue Code," is readable on-line
  • UCLA’s Luskin Center for History and Policy “is inviting proposals for innovative new research projects that have three defining qualities: (1) they bring historical analysis to bear on issues of contemporary political or social relevance; (2) they explicitly aim to contribute to solving an identifiable problem; and (3) they are collaborative in nature.”
  • And in Scottish legal history: new online resources by Rory MacLellan make more accessible the court and guild records of one Scottish town, the burgh of St. Andrews, 1550-1700.
  • Update: Former LHB Guest Blogger Mary Ziegler, Florida State Law, to NPR on the history of Title X and the gag rule.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 18, 2018

Kent on Congress and the Independence of Federal Law Enforcement

Andrew Kent, Fordham University School of Law, has posted Congress and the Independence of Federal Law Enforcement, which is forthcoming in 52 U.C. Davis Law Review (2018):
Richard Nixon, 1992 (LC)
Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this article recounts the abuses of the Hoover era at the FBI, and the ways the Nixon White House sought to both impede and corrupt the Department of Justice and the FBI. It then provides a rich description of what an engaged Congress looked like—the Congress of the 1970s—when it reacted to these abuses by helping to develop laws, structures, and norms of law enforcement independence and neutrality that served this country well for two generations. Drawing both on ideas floated in Congress post-Watergate, as well as institutional design features from independent regulatory agencies, this article then suggests a menu of options for a future Congress, if it could move beyond gridlock and partisanship to engage again with pressing issues about the White House's relationship to federal law enforcement. Most options I survey here are constitutionally uncontroversial. But two options, both of which were proposed by reformist Senators soon after Watergate, are more aggressive and constitutionally problematic: statutory qualifications limiting the range of appointees for senior DOJ roles, and a statutory for-cause restriction on the President's ability to remove the FBI Director. After setting out arguments for the constitutionality of these proposals, I conclude with a menu of concrete policy recommendations for a future Congress that wishes to get off the sidelines and again play a constructive role in protecting the country from the abuse and misuse of our powerful and essential federal law enforcement institutions.

Durling on DC and Article III

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

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

For the thousands of D.C. residents who have to go before non-Article III courts each year, this conclusion should be significant in its own right. Indeed, the history of non-Article III courts in the District reveals the concerning political influence of crime and race on Congress’s decision to create non-Article III tribunals in the capital. But this Article’s conclusion also has broader implications outside the Seat of Government. Perhaps most importantly, it identifies a new principle—Article III’s “one-way ratchet”—that would limit the use of non-Article III tribunals in other contexts. And more broadly, the history of the District of Columbia’s relationship to Article III may provide us with new substantive and methodological insights on our Article III history and jurisprudence.
H/t: Legal Theory Blog

Cummings on the Law and Social Movements Canon

Scott L. Cummings, UCLA School of Law, has posted Law and Social Movements: Reimagining the Progressive Canon, which is forthcoming in the Wisconsin Law Review (2018):
This Article examines the “progressive legal canon” — iconic legal campaigns to advance progressive causes — and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice. The comparison of old canon to new yields an important insight. Although the form of legal mobilization is generally quite different in contemporary campaigns, with greater emphasis on constituent accountability and integrated advocacy, the outcome is often quite familiar: legal success and positive change alongside weak implementation, countermobilization, and intramovement dissent. Although the comparison is not systematic, it points toward a potentially significant conclusion: that the progressive critique of old canon lawyering is misplaced. What stymied old canon campaigns was not an overreliance on law or top-down planning, but rather the inevitable pushback by more powerful forces, causing gains to slide back or be undercut in the enforcement stage and aggravating internal movement debates over goals and strategies.

Ngcukaitobi on Black Lawyers and Constitutionalism in South Africa

Tembeka Ngcukaitobi has published The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa with Penguin Random House South Africa:
The Land Is Ours tells the story of South Africa’s first black lawyers, who operated in the late nineteenth and early twentieth centuries. In an age of aggressive colonial expansion, land dispossession and forced labour, these men believed in a constitutional system that respected individual rights and freedoms, and they used the law as an instrument against injustice.

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

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

Happy Endings in History

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Here are the closing paragraphs of The Sit-Ins:

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

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

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

Legal Biography of the European Union at Max Planck

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

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

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

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

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

[The program and registration form are accessible here.]

Thursday, May 17, 2018

Project Archivist, Justice Antonin Scalia Papers

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

Gordon Wins LSA's Wheeler Award

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

Kamali on Anger in Medieval Felonies

Elizabeth Papp Kamali, Harvard Law School, has posted The Devil's Daughter of Hell Fire: Anger's Role in Medieval English Felony Cases, which appeared in Law and History Review 35 (2017): 155-200:
During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.

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

[We have the following CFP.]

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

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

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

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

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

Baldwin on Islamic law and empire in Ottoman Cairo


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

Islamic Law and Empire in Ottoman Cairo






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

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

Here is the Table of Contents:

Introduction
1. A Brief Portrait of Cairo under Ottoman Rule
2. Cairo's Legal System: Institutions and Actors
3. Royal Justice: The Divan-i Hümayun and the Diwan al-Ali
4. Government Authority, the Interpretation of Fiqh, and the Production of Applied Law
5. The Privatization of Justice: Dispute Resolution as a Domain of Political Competition
6. A Culture of Disputing: How Did Cairenes Use the Legal System?
Conclusion: Ottoman Cairo's legal system and grand narratives
Appendix: Examples of Documents Used in this Study

Further information is available here.