Thursday, January 19, 2017

Strange on Pardon and Parole



Carolyn Strange, Australian National University has published Discretionary Justice:Pardon and Parole in New York from the Revolution to the Depression with NYU Press. From the publisher:
The pardon is an act of mercy, tied to the divine right of kings. Why did New York retain this mode of discretionary justice after the Revolution? And how did governors’ use of this prerogative change with the advent of the penitentiary and the introduction of parole? This book answers these questions by mining previously unexplored evidence held in official pardon registers, clemency files, prisoner aid association reports and parole records.

This is the first book to analyze the histories of mercy and parole through the same lens, as related but distinct forms of discretionary decision-making. It draws on governors’ public papers and private correspondence to probe their approach to clemency, and it uses qualitative and quantitative methods to profile petitions for mercy, highlighting controversial cases that stirred public debate. Political pressure to render the use of discretion more certain and less personal grew stronger over the nineteenth century, peaking during constitutional conventions and reaching its height in the Progressive Era. Yet, New York’s legislators left the power to pardon in the governor’s hands, where it remains today.  

Unlike previous works that portray parole as the successor to the pardon, this book shows that reliance upon and faith in discretion has proven remarkably resilient, even in the state that led the world toward penal modernity.

Praise for the book:


Exploiting a wide range of new sources, this original and innovative book illuminates the importance of the criminal law to race, gender, and social and political power in America from an entirely new perspective. It puts the spotlight on prison reform and capital punishment at the state level in the most important jurisdiction in the country. An invaluable contribution to understanding the complex history of criminal law and punishment over 150 years. -Douglas C. Hay


This book offers a wonderful history of pardon and parole and, at the same time, a sophisticated analysis of discretionary justice. I know of no other book like it. Focusing on the state of New York, it is a pleasure to read. Scholars interested in understanding the complexities of pardon and parole and the rise of the administrative state will find this book to be an invaluable resource. -Austin Sarat


For good reason, issues of criminal law and criminal justice in the United States recently have become a subject of both popular and academic interest. While scholars of law and history have done much to explore the problems and perspectives in the past that have helped give rise to the workings of criminal justice in the present, much more needs to be done, particularly in the less familiar areas of criminal law, like pardon and parole. This book offers a welcome exploration of how and why New York state handled those less visible aspects of criminal law up through the first decades of the twentieth century. In the process of unpacking New York’s pardon and parole systems, it helps us understand the nature of discretionary justice and the ways in which law and politics could and did intersect. -Elizabeth Dale


More information is available here.

Sellars on British Efforts to Try the Kaiser

Kirsten Sellars, Chinese University of Hong Kong Faculty of Law, has posted The First World War, Wilhelm II, and Article 227: The Origin of the Idea of "Aggression" in International Criminal Law, which appears in The Crime of Aggression: A Commentary, ed. Claus Kress and Stefan Barriga (Cambridge University Press, 2016):
It is well known that David Lloyd George declared his intent to try the Kaiser for starting World War I, but it is not known that British lawyers embarked on detailed behind-the-scenes plans for prosecuting him — plans now brought to light in newly uncovered archival documents.

At the end of the First World War, Lloyd George declared: "The Kaiser must be prosecuted. The war was a crime." This was a radical departure from the traditional approach to war, advancing the then-novel ideas that starting an aggressive war was a crime, and that national leader could be held criminally responsible.

After the signing of the Versailles Treaty in June 1919, the British Attorney General, Sir Gordon Hewart, quietly began laying the groundwork for Wilhelm II’s prosecution, in case the latter fell into entente hands. These plans – unheralded then and overlooked since – were set in motion in August 1919, when Hewart convened a meeting between himself, the Solicitor General, the Procurator General, and two senior barristers, Frederick Pollock and George Branson.

As it turned out, the ex-Kaiser never faced trial. Six days after the Versailles Treaty came into force, the entente powers requested that the Netherlands, where Wilhelm II had sought asylum, deliver him for trial. The Dutch refused, and Hewart pulled the plug on the British prosecution project.

Wednesday, January 18, 2017

Gender, the State, and the 1977 International Women's Year Conference

[We have the following announcement of Gender, the State, and the 1977 International Women's Year Conference, an NEH Summer Seminar hosted by Drs. Nancy Beck Young and Leandra Zarnow.]

In November 1977, 2000 elected delegates and 20,000 observers descended upon Houston, Texas to participate in the first and only federally funded National Women's Conference to be held in U.S. history.  Hosted in a Sunbelt city on the rise, this conference was the domestic answer to the United Nations' International Women's Year conference and tribune held in Mexico City in 1975. The Houston Conference reflected the tensions of a nation at a crossroads with some seeing it as a promising expression of a more representative, rights-centered democracy and others viewing it as a liberal cooptation of taxpayers' dollars and a threat to the American family.  It is fitting at this conference's 40th Anniversary to take stock of its significance in a one-week National Endowment for the Humanities (NEH) Summer Seminar. 

We now invite applications from all college and university educators to "Gender, The State, and the 1977 International Women's Year Conference," to be held on the University of Houston-main campus June 12-18, 2017.  A stipend (taxable) will be provided to each selected Summer Scholar. 

This NEH Summer Seminar is designed to engage and equip educators with fresh scholarship, classroom resources, and pedagogy addressing U.S. politics, economics, and culture from the 1970s to the late twentieth century.  The National Women's Conference will be our entry point into broader thematic discussions addressing topics including the changing workplace and family, political realignment, identity politics, religious revival, Cold War tensions, social movement organizing, deindustrialization, and globalization.  In this fast-paced week, we will join in participant driven discussions, visit local archives and historic sites, and develop curriculum for a variety of classroom settings.  While the history of this period will be featured and debated, we welcome participants from a variety of disciplines and teaching backgrounds.  

The objectives of this one-week seminar include:
To rediscover the importance of the 1977 IWY National Women's Conference as a bellwether of shifting gender, sex, race, and class terrain during a pivotal Decade of Women.

To achieve an understanding of the 1970s as a "bridge" between midcentury liberalism and modern conservatism.

To juxtapose the mass feminist movement of the 1970s and its influence in party politics with the coinciding coalescence of grassroots conservatism and politicization of the imagined American family.

To consider the local, federal, and global implications of the National Women's Conference, thinking about its setting in a particular time and place.

To provide educators with pedagogical methods for teaching this subject through foundational texts, digital history tools, and oral histories.
For more about our NEH Summer Seminar and to apply please visit our website.

The deadline for applications is March 1, 2017. Notification letters for all applicants will be sent via email by March 31, 2017.

Drs. Nancy Beck Young & Leandra Zarnow, Seminar Co-Directors
The University of Houston, Houston, Texas
Department of History
Center for Public History
Carey C. Shuart Women's Archive and Research Collection

Schlegel on Hohfeld and the American Legal Academe

Trust me: this one is a gem.  John Henry Schlegel, University at Buffalo Law School, has posted Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor, which is forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, ed. Shyam Balganesh, Ted Sichelman and Henry Smith (Cambridge University Press, 2018):
Wesley N. Hohfeld (YLS)
Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence.
H/t: Legal Theory Blog

Tuesday, January 17, 2017

Workshop on Modern East Asian Law in Global Perspective

[We have the following Call for Papers.  We understand that the workshop is funded by the American Society for Legal History as well as the Weatherhead East Asian Institute and that the conference organizers are especially interested in receiving papers from advanced graduate students and junior scholars in the field.]

The Weatherhead East Asia Institution at Columbia University invites early-career scholars to
submit proposals for an international workshop on modern East Asian legal history, to be held
on April 15, 2017.   

Recent scholarship has reinvigorated the study of legal history, expanding the set of concerns
beyond their traditional conceptual, geographic and methodological boundaries. For students of
East Asia, the prospects this presents are exciting. What to do with the modifier “modern” in
modern law has always been a thorny issue in our field. But as we have come to see familiar
Western legal concepts as vitally conditioned by globalization, as opposed to distillates of a
universally valid modernity, there are new opportunities to appraise the nature and significance
of the transformation of East Asian legal systems in the nineteenth and twentieth centuries. With
this workshop, we will provide a venue for current graduate students, postdoctoral scholars and
new faculty to come together to discuss the theoretical and historiographic issues at stake.

The overarching goal is to consider how East Asia fits into an emerging global history of modern
law. Where is there common ground? Where are the possibilities to speak to scholars who
specialize in other regions the greatest? And where does a global perspective need to give way to
more circumscribed regional and national legal histories? These questions will be brought to bear
as participants engage with each other’s papers and research, guided by established historians
and legal scholars including Madeline Zelin, Andrew Sartori, Arnulf Becker Lorca, and Taisu
Zhang.

The day will consist of two panels of presentations, followed by a breakout session at the end.
Papers will be pre-circulated, and participants are expected to come to the workshop having read
all papers and ready with questions and comments. Presenters will give a 15-minute introduction
and synthesis of their work. Each panel will be followed by faculty comments and discussion.
Interested scholars should send a one-page proposal and a CV to globalealaw@gmail.com by
February 10, 2017. Acceptance notices will be issued by February 20. Selected presenters are
asked to send completed papers to the conference committee by March 19 for pre-circulation.
Limited funding is available for conference participants. Please indicate your need at the time of
application and include where you are traveling from and whether you require lodging.   

For all other inquiries, please contact globalealaw@gmail.com.

Conference Organizers: Colin Jones, Idriss Fofana and Tristan Brown

Balleisen's "Fraud"

Many legal historians will be interested in the newly published Fraud: An American History from Barnum to Madoff (Princeton University Press), by Edward J. Balleisen, associate professor of history and public policy and vice provost for Interdisciplinary Studies at Duke UniversityFraud
examines the evolution of marketplace deceptions and anti-fraud policies in the United States from the early nineteenth-century to the present.  The book emphasizes that the worst business frauds have consistently clustered in economic sectors undergoing rapid technological or organizational change.  It also charts the gradual move away from a legal culture predicated on caveat emptor to one that gave investors and consumers greater protections, as well as the emergence of modern regulatory agencies with anti-fraud missions, at both the subnational and national levels.  At the same time, Fraud traces the evolving regulatory functions of non-state actors, like the press and private regulators like the American Better Business Bureaus.  Throughout, the book pays close attention to regulatory governance in action – how agencies operate on a day to day basis, and how businesses responded to their efforts.  This approach reveals a recurring tendency of anti-fraud institutions to develop modes of denying allegedly deceptive firms access to the marketplace through such policies as mail fraud orders, declarations that advertising is not in the public interest, and orders to prohibit firms from access to online payment systems.  Such policies inevitably bump up against American legal culture, prompting the fashioning of procedural protections that impose requirements of fairness at the expense of speed and effectiveness.   Fraud concludes with an extended consideration of the resurgent problem of business fraud during the deregulatory decades since the mid-1970s, an episode that underscores the importance of regulatory structures that provide fraud containment. 
Publisher’s Weekly:

“Balleisen shows how anti-fraud regulations were perennially weakened by Americans’ grudging admiration for clever con-men, industry lobbying, the doctrine of caveat emptor (the notion that buyers are responsible for avoiding scams), and fears that cracking down too harshly on fraudulent promises might dampen the investor enthusiasm powering the economy. Balleisen’s lucid, engagingly written mix of institutional and legal history, behavioral economics, and entertaining anecdotes illuminates this land of bilk and money”

Kirkus Reviews:

“Balleisen casts a gimlet eye on the passing parade of hucksters and charlatans, peppering a narrative long on theory with juicy asides that build toward a comprehensive catalog of ‘Old Swindles in New Jargon….’ Ranging among the disciplines of history, economics, and psychology, Balleisen constructs a sturdy narrative of the many ways in which we have fallen prey to the swindler, and continue to do so, as well as of how American society and its institutions have tried to build protections against the con. But these protections eventually run up against accusations of violating ‘longstanding principles of due process,’ since the bigger the con, the more lawyers arrayed behind it.”

Me:

"Often vivid and always thoughtful, this is a very important and impressive work by a rigorous, venturesome historian at the top of his game. When so much public debate about regulation is polemical and hyperbolic, Edward Balleisen has made a major contribution by writing a book that thoroughly, comprehensively, even-handedly, and engagingly examines the history of American fraud and its regulation from the early nineteenth century to today."--Daniel R. Ernst, Georgetown University Law Center

Professor Balleisen discusses the book here.

Monday, January 16, 2017

Tushnet on "Important Shifts in Constitutional Doctrine"

I'm not the only person reassessing the constitutional history of the New Deal in light of the impending Trump presidency.  HLS's Mark Tushnet has a post on conservatives and civil liberties over at Balkinization.  I, for one, am prepared to let Barry Cushman say, "I told you so."

Kim on Small Debt Litigation in Colonial New York

 “In a Summary Way, with Expedition and at a Small Expence”: Justices of the Peace and Small Debt Litigation in Late Colonial New York, by Sung Yup Kim a visiting assistant professor of history at Pacific Lutheran University,is  available on-line now and in print late in the American Journal of Legal History (2017):
This essay examines the role of justices of the peace in upholding local credit networks among small farmers, tenants, artisans, and small traders in late colonial New York. Bolstered by a colonial statute enlarging their jurisdiction, New York’s justices handled a heavy volume of small debt cases, predominantly based on book debts or informal promissory notes. These were typically debt obligations arising from ongoing personal exchanges, in which the exchange of goods and services was the main objective, not the extension of credit itself. Partly in accordance with the traditionally acknowledged summary adjudication of individual justices and partly to adapt to the informal nature of debt cases that were brought to them, New York’s justices handled these cases in a distinctively informal but effective manner. Fully acknowledging and even taking advantage of the personal bases of such debt, justices’ courts offered a low cost, speedy alternative to higher courts such as inferior courts of common pleas. These findings suggest that well into the eve of the American Revolution, New York’s middling and lower sorts maintained vibrant local credit networks undergirded by the single justice’s court. At least for the case of New York, then, recent scholarship on early American law emphasizing the increased use of written credit instruments and the concomitant formalization of legal procedure, which, understandably, paid scant attention to the single justices’ courts, may have categorically discounted the lasting viability of localized legal and economic practices in early America.

Sunday, January 15, 2017

Sunday Book Review Roundup

Happy New Year, all.  In the NYRB, Annette Gordon-Reed reviews Robert Parkinson’s The Common Cause: Creating Race and Nation in the American Revolution, which “offers a provocative alternative to the conventional views that blacks’ perpetual alien status in the United States is simply a natural outgrowth of having been enslaved.” Instead, Gordon-Reed says, “Americans were deciding who was “in” and who was “out” as soon as they began to fight Great Britain.”

The Nation features a review of Steven Hahn’s A Nation Without Borders: The United States and Its World in an Age of Civil Wars, 1830-1910. This praiseful review tracks Hahn’s argument (“The nation-state has never been a stable political form that is distinct from empires. It has always emerged out of and then sustained itself on the imperial conquest of new territories”) and ends in a call for new political forms in a global era.  There’s also an essay on Harvey Cox, a Baptist minister, Harvard divinity professor, and “Christian left-wing intellectual to the core” that may be of interest to legal historians.

In the Wall St. Journal, legal historians can read Alex Beam’s review of A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870, by Laurel Thatcher Ulrich, Willard Spiegelman’s review of Berlin for Jews by Leonard Barkan, and Adrian Goldsworthy’s review of The Triumph of Empire by Michael Kulikowski, a history of the Roman Empire (“Ancient Rome continues to fascinate us, with each new generation seeing echoes of its own hopes and fears in the rise and fall of an empire that seems simultaneously modern and alien”).

 The LA Times reviews David Silverman’s Thundersticks: Firearms and the Violent Transformation of Native America, which “uses military history and political economy to chip away at Jared Diamond’s “Guns, Germs, and Steel” narrative.” Instead, he argues that American Indians “cornered the market” on firearms in Early America, so much that the U.S. army resorted to “scorched earth techniques” in armed encounters (this phrase is used literally, at least to describe wars with the Seminoles, which involved “burning Seminole villages to the ground” and destroying cattle herds).

There are a few reviews of biographies and autobiographies that may be of interest. In the Guardian, William Davies reviews David Cannadine’s new book on Margaret Thatcher; Patricia Williams reviews Coretta Scott King’s autobiography in the Times and LA Times reviews Xu Hongci’s No Wall Too High, “one of the most compelling and moving memoirs to emerge from Communist China, which is now appearing in English for the first time.”

I couldn't find a legal history review in The Economist or on its website. I did, however, find this piece on the “The far right’s new fascination with the Middle Ages,” which has prompted many Medievalists to defend their period (with broadswords, and bludgeons, one imagines) to ensure that it is not "weaponised against people of colour and marginalised communities in our own contemporary world."

Saturday, January 14, 2017

Weekend Roundup

  • Via H-Law: The University of Glasgow School of Law invites applications from PhD students in Roman law/legal history for the post of Alan Rodger Postgraduate Visiting Researcher, to be held during the 2017/18 academic year. The selected candidate will spend a term in Glasgow and receive a £2,000 award for support. The deadline for applications is 10 February 2017. Full details are available here
  • Also via H-Law: a call for papers “that engage the relationship of Jewish law and social justice, broadly construed,” from the Jewish Law Association for a conference on Social Justice & Jewish Law at Yeshiva University, New York, NY, on March 27, 2017.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 13, 2017

Fraser on religion & education in Canadian legal history

Back in 2015, we missed the publication of Honorary Protestants: The Jewish School Question in Montreal, 1867-1997 by David Fraser, University of Nottingham. From the University of Toronto Press:
Honorary Protestants: The Jewish School Question in Montreal, 1867-1997When the Constitution Act of 1867 was enacted, section 93 guaranteed certain educational rights to Catholics and Protestants in Quebec, but not to any others. Over the course of the next century, the Jewish community in Montreal carved out an often tenuous arrangement for public schooling as “honorary Protestants,” based on complex negotiations with the Protestant and Catholic school boards, the provincial government, and individual municipalities. In the face of the constitution’s exclusionary language, all parties gave their compromise a legal form which was frankly unconstitutional, but unavoidable if Jewish children were to have access to public schools. Bargaining in the shadow of the law, they made their own constitution long before the formal constitutional amendment of 1997 finally put an end to the issue. 
In Honorary Protestants, David Fraser presents the first legal history of the Jewish school question in Montreal. Based on extensive archival research, it highlights the complex evolution of concepts of rights, citizenship, and identity, negotiated outside the strict legal boundaries of the constitution.
Praise for the book:

“The story of the ‘Jewish School Question’ has never before been told in such compelling detail, nor within the context of a learned discussion of ‘rights,’ ‘citizenship,’ and ‘identity.’ ‘Honorary Protestants’ constitutes an exceedingly important contribution to the history of Canadian education, the social politics of the Montreal Jewish community, and the relationships between the Jewish, Protestant, and Roman Catholic constituencies in the province of Quebec.” -Gerald Tulchinsky

‘Honorary Protestants’ presents an important corrective to the twentieth-century focus of much of the history of civil liberties in Quebec and Canada. As David Fraser demonstrates, fundamental rights and liberties were being debated already in the nineteenth century, long before conscription crises, the Red Scares, and Duplessis’s guerre sans merci of the 1930s and 1940s.” -Eric H. Reiter

You can read more about the book here.

In re Judith Miller: The Oral Argument Reenacted

[We have the following announcement of In re Judith Miller: National Security and the Reporter’s Privilege, sponsored by the D.C. Circuit Historical Society to be held Tuesday, February 14, 2017, 4:30 p.m.–6:00 p.m., in the Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.  Admission is free.  Reservations are not required.  A reception with light refreshments will follow the program.]

In 2003, following articles in the press identifying Valerie Plame as a CIA agent, the Department of Justice undertook an investigation into whether government employees had violated federal law by unauthorized disclosure of her identity.  A special counsel was named and a grand jury convened.  The Government issued a subpoena to New York Times reporter Judith Miller seeking documents and testimony related to conversations she had had with a government official concerning Valerie Plame. Ms. Miller refused to comply with the subpoena and was held in civil contempt. She appealed, arguing both that the First Amendment affords journalists a constitutional right to conceal their sources and that reporters enjoy an evidentiary privilege under the common law to conceal confidential sources. The Court of Appeals (with separate concurring opinions by Judges Sentelle, Henderson, and Tatel) rejected both arguments and affirmed the District Court’s orders compelling Ms. Miller’s testimony. Our program will include a reenactment of arguments presented to the Court of Appeals, focusing on the existence of a reporter’s privilege founded on federal common law. Professor David Pozen will set the stage. Laura Handman will argue for Ms. Miller, Amy Jeffress for the United States, and Judges Tatel and Sentelle will preside.

Following the reenactment, Stuart Taylor will moderate a discussion exploring the appropriate balance between free speech and common law protections of reporters’ sources, on the one hand, and the government’s need to know in aid of its law enforcement and national security responsibilities, on the other.  Panelists will include Professor Pozen, the advocates Ms. Handman and Ms. Jeffress, as well as James Cole, who, as Deputy Attorney General, was a key person in the 2014 revision of the Department of Justice’s news media policies.

Setting the Stage
David Pozen, Professor of Law, Columbia University

Reenactment
For appellant Judith Miller, Laura R. Handman, Davis Wright Tremain LLP
For appellee United States, Amy Jeffress, Arnold & Porter LLP
Sitting as judges: David S. Tatel, Judge, U.S. Court of Appeals for the D.C. Circuit; David B. Sentelle, Senior Judge, U.S. Court of Appeals for the D.C. Circuit

Panel Discussion
Moderator: Stuart S. Taylor, Jr., author, journalist, and lawyer
Panelists: James M. Cole, Sidney LLP; Laura R. Handman, Amy Jeffress, David Pozen

Thursday, January 12, 2017

Judging a Book By Its Cover

You’ve spent so much time writing your book, why wouldn’t you spend time on the cover design? Like the introduction, the cover design goes a long way in enticing readers to pick your book up in a bricks-and-mortar bookstore, or on a display shelf at the conference exhibit booth. Most importantly, it should be an image or a composite that conveys the themes of your book. For those who work with a piece of art, it should represent an artist or an emblematic theme that visually communicates what the book is about. (Like titles—subject of a later post).

Since the theme of my book is domestic slavery, I thought I would use a famous painting by a Peruvian artist (Francisco Laso) that depicts the “downstairs” conviviality of servant life in colonial Lima. Initially I chose this image because I loved it, and because it was one of the few paintings that did not incorporate domestic slaves as status symbols displaying the wealth of Spaniards. Neither did it use people of color as an exotic prop to highlight the normative ideals of European beauty. As critics of the painting have noted, the criollo boy plays a deferential role vis-a-vis the intense vitality of the two girls. The painting inverted—or at least complicated--a world in which Africans were slaves, Indians were servants, and Spaniards were owners.

Las tres razas, ca. 1859. MALI -- Francisco Laso de los Ríos


But years after I had secured the rights to use this image from the Museum of Art in Lima, I changed my mind. I ultimately ended up using another Laso painting. Ultimately, I chose this image because my book is about domestic slavery and servitude. The main characters are enslaved women and their owners. Because I deal principally with relationships that were not based on sexuality, I thought the image problematized our received wisdom of the power dynamics of these relationships.

Negrita Con Su Dueña, 1845. MALI -- Francisco Laso de los Ríos

For many scholars of domestic slavery and servitude, the mammy figure has been contested and at times vilified. She is ubiquitous in all slaveholding societies, yet she is surprisingly under-theorized--limited to a sexual object or located as the site of black maternalism within a hierarchical household structure. I maintain throughout Fractional Freedoms that these are theoretically insufficient frames to  think through what I call "thick" relationships of care-work. This image steers the onlooker into an intimate site of contested struggle and emotion--this was the work that I intended the image to perform.

Above all, a cover image should leave a lasting impression on the reader. Readers of this blog will remember the photo of the patriarch holding out his gleaming pocket-watch, taunting his greedy heirs on the cover of Dirk Hartog's Someday this will all be yours. And Harry Bridges with his laughing bride in the marriage clerk's office in Peggy Pascoe's What Comes Naturally. The cover is a great piece of real estate--don't squander the opportunity to build on it. Plus as previous blogger Karen Tani points out, it's a lot of fun!

The ABA, the Court-Packing Plan, and the Anti-Parliamentarian Tradition

In revising the materials for my legal history course, I reminded myself of an interesting example of what might be called the tactical comparative constitutionalism of the organized bar.  It was March 5, 1937, exactly one month after President Franklin D. Roosevelt announced his plan to “pack” the U.S. Supreme Court.  The chieftains of the American Bar Association, in a process studied by Stephen Botein, Rayman Solomon, and others, had already begun organizing the opposition.  To give a lofty tone to his appeal to the public to rally to the Court, President Frederick Stinchfield liked to invoke an eminent foreign observer of the American scene.  “‘To the people we come sooner or later,’ says James Bryce in The American Commonwealth," Stinchfield editorialized in the ABA Journal:   ‘It is upon their wisdom and self restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.’”

Stinchfield’s predecessor, William L. Ransom, evidently had less faith in the "broad good sense and attachment to the great principles of the Constitution" of the American people than Bryce did.  After FDR’s legislative triumphs in 1935, he certainly doubted Congress’s will to resist the president.  The ABA should “stop quoting from James Bryce or any other Englishman, in favor of the American tradition of the powers and functions of the Courts,” he counseled Stinchfield in a letter surviving in Newton Baker's papers at the Library of Congress.  “This counsel is not due to prejudice against things British, but to a realization that the President’s fight is veering toward an advocacy of the parliamentary system (executive and legislative powers merged and made supreme, with no judicial curb), and that the President will claim that liberty and individualism have not been destroyed in England.” 

The Court-packing plan died that summer, but the denunciation of “parliamentarism” survived, especially among senators of the president’s party seeking to justify their opposition to FDR's agenda.  For example, the majority report on a proposal to reform agencies' procedures explained, “The basic purpose of this administrative law bill is to stem and, if possible, to reverse the drift into parliamentarism which, if it should succeed in any substantial degree in this country, could but result in totalitarianism with complete destruction of the division of governmental power between the Federal and the State Governments and with the entire subordination of both the legislative and judicial branches of the Federal Government to the executive branch wherein are included the administrative agencies and tribunals of that Government.”

Although Congressional Republicans are big believers in American exceptionalism, I don’t expect them to invoke the anti-parliamentarian tradition until a constitutional crisis forces them to do so.  When the time comes, I hope it works.

California Supreme Court Historical Society Seeks Submissions

Over at the Faculty Lounge, Al Brophy reports that Molly Selvin, the editor of the California Supreme Court Historical Society Newsletter, seeks contributions for that semi-annual publication, which treats all of California’s legal history and not just the history of the California Supreme Court.  The most recent newsletter is here.

Center for the Study of Law & Society: Spring 2017 Speaker Series

The Center for the Study of Law and Society at the University of California, Berkeley has posted the lineup for its Spring 2017 Speaker Series. Some items of interest for our readers [UPDATED as of 1.13.17 to reflect revised dates]:
February 6: TOM LAQUEUR (UC Berkeley), "The Law of Dead Bodies and the Making of a Liberal Civil Order"
February 13: CATHERINE FISK (UC Irvine), "Writing for Hire: Unions, Hollywood, and Madison Avenue" (Harvard University Press, Oct. 2016)

April 3: ELIZABETH HINTON (Harvard University), “The Making of Mass Incarceration”
More information about the speaker series is available here

Wednesday, January 11, 2017

Shaw on refugees, religion, & empire

Oxford University Press has published Britannia’s Embrace: Modern Humanitarianism and the Imperial Origins of Refugee Relief by Caroline Shaw, Bates College. From the publisher:

Cover for 

Britannias Embrace






On the eve of the American Revolution, the refugee was, according to British tradition, a Protestant who sought shelter from continental persecution. By the turn of the twentieth century, however, British refuge would be celebrated internationally as being open to all persecuted foreigners. Britain had become a haven for fugitives as diverse as Karl Marx and Louis Napoleon, Simon Bolivar and Frederick Douglass. How and why did the refugee category expand? How, in a period when no law forbade foreigners entry to Britain, did the refugee emerge as a category for humanitarian and political action? Why did the plight of these particular foreigners become such a characteristically British concern? 
Current understandings about the origins of refuge have focused on the period after 1914. Britannia's Embrace offers the first historical analysis of the origins of this modern humanitarian norm in the long nineteenth century. At a time when Britons were reshaping their own political culture, this charitable endeavor became constitutive of what it meant to be liberal on the global stage. Like British anti-slavery, its sister movement, campaigning on behalf of foreign refugees seemed to give purpose to the growing empire and the resources of empire gave it greater strength. By the dawn of the twentieth century, British efforts on behalf of persecuted foreigners declined precipitously, but its legacies in law and in modern humanitarian politics would be long-lasting. 
In telling this story, Britannia's Embrace puts refugee relief front and center in histories of human rights and international law and of studies of Britain in the world. In so doing, it describes the dynamic relationship between law, resources, and moral storytelling that remains critical to humanitarianism today.
You can read the author’s thought-provoking piece on the OUPblog. "The fate of foreign refugees, past and present" considers today's global refugee crisis in light of themes explored in Britannia's Embrace.

More information about the book is available here.

Milsom Studentship in English Legal History 2017

[We have the following announcement.]

The Selden Society, founded in 1887 by F.W. Maitland and others to encourage the study and advance the knowledge of the history of English law, offers a Milsom Studentship (named in honour of the late Professor S.F.C. Milsom, sometime Literary Director and President of the Society) for a person commencing research in English legal history leading to the degree of PhD (or equivalent) at a university in the United Kingdom in September/October 2017.

The studentship will be tenable for a maximum of three years, subject to an annual review of progress. The annual value of the studentship will be a sum equivalent to the current total of the home/EU fees and recommended minimum maintenance allowance at the university at which the student is registered for the PhD degree, to a total maximum of £21,500 (account will be taken of funding available from other sources).

Application forms may be obtained from the Secretary of the Society, School of Law, Queen Mary University of London, Mile End Road, London, E1 4NS, selden-society@qmul.ac.uk.

The deadline for receipt of applications and references is 1 March 2017.

Tuesday, January 10, 2017

Antony on crime in late imperial South China

Robert J. Antony, Canton Thirteen Hongs Research Center at Guangzhou University has published Unruly People: Crime, Community,and State in Late Imperial South China with Hong Kong University Press. From the publisher:

Unruly PeopleUnruly People shows that in mid-Qing Guangdong banditry occurred mainly in the densely populated core Canton delta where state power was strongest, challenging the conventional wisdom that banditry was most prevalent in peripheral areas. Through extensive archival research, Antony reveals that this is because the local working poor had no other options to ensure their livelihood. 
In 1780 the Qing government enacted the first of a series of special laws to deal specifically with Guangdong bandits who plundered on land and water. The new law was prompted by what officials described as a spiraling "bandit miasma" in the province that had been simmering for decades. To understand the need for the special laws, Unruly People takes a closer look at the complex relationships and interconnections between bandits, sworn brotherhoods, local communities, and the Qing state in Guangdong from 1760 to 1845. 
Antony treats collective crime as a symptom of the dysfunction in local society and breakdown of the imperial legal system. He analyzes over 2,300 criminal cases found in palace and routine memorials in the Qing archives, as well as extant Chinese literary and foreign sources and fieldwork in rural Guangdong, to recreate vivid details of late imperial China's underworld of crime and violence.

Praise for the book:

“In this excellent and deeply researched study, Robert Antony portrays the economy and ecology of violence in mid-Qing Guangdong. Banditry and sworn brotherhoods had long existed in a tenuous equilibrium with agrarian society and the state, he finds, but as chronic underemployment rose in the decades after 1760, the incidence of organized crime grew to new and unmanageable levels.” -William T. Rowe
“A rich account of the day-to-day struggle to maintain law and order in mid-Qing Guangdong, Unruly People shows us the petty outlaws and sworn brotherhoods that were endemic to local society, and challenges basic notions about the nature of crime, banditry, and violence in China.” -Thomas David DuBois


More information is available here.

Kessler's "Origins of American Adversarial Legal Culture"

Amalia D. Kessler, Stanford Law School, has published Inventing American ExceptionalismThe Origins of American Adversarial Legal Culture, 1800-1877, with the Yale University Press:
When Americans imagine their legal system, it is the adversarial trial—dominated by dueling larger-than-life lawyers undertaking grand public performances—that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources—and by recovering neglected influences (including from Europe)—the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity.
Some endorsements:
"Adversarial procedure’s presence is old. But America’s conscious idea (or ideal or ideology) of adversarialism as the exclusionary motif of civil procedure is young. This adversarialism has an origin, a history, and, most importantly, a set of social effects separate from those of mere adversarial procedure. Amalia Kessler draws this original distinction and develops all its consequences. Every proceduralist will have to read her book."—Kevin M. Clermont, Cornell Law School

"Learned and thoughtful, crisply articulated and brilliantly conceived, Inventing American Exceptionalism offers a powerful reinterpretation of our legal past.  More than that, it holds trenchant prescriptions for our badly broken system of justice today."—John Witt, Yale University

"During the 19th century, Amalia Kessler shows us, various modes of judge-dominated, non-adversarial adjudication arose as alternatives to American 'adversarial legalism.' Inventing American Exceptionalism provides a fascinating, lucid, and politically illuminating account of how  those alternative systems were transformed or defeated and of the enduring consequences of these developments."—Robert A. Kagan, author of Adversarial Legalism: The American Way of Law

Monday, January 9, 2017

Bowman on the Court of Claims

Recently published in the Federal Lawyer is A Brief History of the Court of Claims, by Winston Bowman, an associate historian in the Federal Judicial History Office at the Federal Judicial Center.  It commences:
President Abraham Lincoln was a busy man in 1861. He was also not renowned for his advocacy of federal judicial power, having attacked the very notion of judicial review in his First Inaugural Address. Even so, in his First Annual Message that December, Lincoln pressed Congress to enhance the power and independence of the Court of Claims as a matter of national urgency. Though forgotten by many contemporary lawyers and absorbed into modern tribunals in 1982, the Court of Claims was created in 1855 to adjudicate monetary claims against the United States and was the first national trial court and first federal court of special jurisdiction. Adjudicating claims on the national purse may sound like the stuff of painstaking detail rather than earthshaking principle, but Lincoln and his compatriots understood that, as the primary vehicle for the government “to render prompt justice against itself,” the Court of Claims could bolster confidence in the federal government’s fairness in times of crisis.

McDougall's "Royal Bastards"

Sara McDougall, John Jay College of Criminal Justice of the City University of New York, has published Royal Bastards: The Birth of Illegitimacy, 800-1230, in the Oxford University Press's series, Studies in Medieval European History:
The stigmatization as ‘bastards’ of children born outside of wedlock is commonly thought to have emerged early in Medieval European history. Christian ideas about legitimate marriage, it is assumed, set the standard for legitimate birth. Children born to anything other than marriage had fewer rights or opportunities. They certainly could not become king or queen. As this volume demonstrates, however, well into the late twelfth century, ideas of what made a child a legitimate heir had little to do with the validity of his or her parents’ union according to the dictates of Christian marriage law. Instead a child’s prospects depended upon the social status, and above all the lineage, of both parents. To inherit a royal or noble title, being born to the right father mattered immensely, but also being born to the right kind of mother. Such parents could provide the most promising futures for their children, even if doubt was cast on the validity of the parents’ marriage. Only in the late twelfth century did children born to illegal marriages begin to suffer the same disadvantages as the children born to parents of mixed social status. Even once this change took place we cannot point to ‘the Church’ as instigator. Instead, exclusion of illegitimate children from inheritance and succession was the work of individual litigants who made strategic use of Christian marriage law. This new history of illegitimacy rethinks many long-held notions of medieval social, political, and legal history.
TOC after the jump

Sunday, January 8, 2017

The Constitution and the Administrative State at the NCC

On Tuesday, January 10, 2017, from 9 - 11:45 A.M, the National Constitution Center, in conjunction with the Federal Judicial center hosts the symposium, The Constitution and the Administrative State:
Federal judges and scholars explore important historical and constitutional issues related to the administrative state, including the Founders’ vision for the federal government, the legacy of the New Deal, the development of the administrative state, and current debates over its significance and constitutionality.
The Founders and Ideas about the Role of Government in Society
Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown Law
Elizabeth Wydra, President, Constitutional Accountability Center
Moderated by Jeffrey Rosen, President and CEO, National Constitution Center

The Development of the Administrative State
Ilya Somin, Professor of Law, George Mason University
Michele Landis Dauber, Frederick I. Richman Professor of Law, Stanford Law School
Moderated by Judge Jeremy Fogel, Director, Federal Judicial Center

The Significance of the History of the Administrative State for the Federal Judiciary

William A. Fletcher, Circuit Judge, Ninth Circuit Court of Appeals
Kent A. Jordan, Circuit Judge, Third Circuit Court of Appeals
Moderated by Judge Jeremy Fogel, Director, Federal Judicial Center
H/t: Joanna Grisinger

Saturday, January 7, 2017

The very beginning

As the novitiate Maria wisely counseled the von Trapp children, the beginning is a very good place to start. So let me start with writing the introduction.
Unlike many monograph writers, I did not have a dissertation to “turn into a book.” (I do remember a conversation with Barbara Welke who fumed at the seamlessness that this phrase implied…)  As a pre-tenure professor, I dutifully attended many faculty development workshops devoted to this process of dissertation into book. Not once did anyone offer a workshop on the inverse: how to turn articles and a decade of archival hoarding into a book.
En route to nirvana (i.e. sabbatical), a close friend and mentor told me that if I intended to finish a book in a year, I needed to write 600 words a day. I’m not sure how she arrived at that particular calculus, but I trusted her and told my son (who trudged out to Princeton with me) that I needed to write 600 words per day. And he swore that he would keep me to it.
I went to my sabbatical office, opened up a new computer and proceeded to write 600 words a day. If I did not make my quota, my son sent me back to the office after dinner. Conversations unfolded in this way: “Mom, did you write 600 words today?”
                   “No.” (I would answer sheepishly).
                  “Well go do it, because we’re not staying.”
(Did I mention how miserable my poor child was in Princeton? Later post on parenting, academia, and sabbatical).
Early on, I had decided to do a couple things with my introduction. First, I wanted to ensure that if readers did nothing more than give the introduction a hard skim, they would understand—and maybe even appreciate what I intended to do in the book. I avidly read introductions of books that I admired from my field and from others, and I also picked random books from my shelf. From that unscientific survey method (since these were all my books), it seemed that introductions fell into two categories. The first category was a stately “walk-the-reader-through-the-chapters” with bits of historiographical breadcrumbs sprinkled in to keep the reader on the path. The second was the kind that took issue with the big historiographical claims head-on and showed how the book would dispute those claims. Not surprisingly, the former seemed to correspond with the deferential tone of the “dissertation into book” and the latter with the magisterial reflections of senior scholars. 
     
So, what path does one take? My book engaged with so many historiographical conversations—gender, slavery, emotions, Atlantic World, diaspora, the cultural turn, the biographical turn, Iberoamerican religiosity, early modern governance, sociolegal studies of legal consciousness, colonial Latin American history, prosopography—that I decided to plunge deeply into writing a synthetic historiographical essay that wove everything together. In other words, I didn’t do a conventional “lit review,” rather I tried to map out how all these debates contributed to my understanding of the field of slavery studies and shaped what I wanted to do with the book. It took me exactly one month at 600 words per day to write it. Since like Marvell, at my back I always heard/time’s wingéd chariot hurrying near—I did not indulge in historiographical flirtation.  I had no particular attachment to any set of arguments.
In a way, this self-imposed time crunch was cathartic. I helped me make sense of literatures and by September 30, I knew I had to move onto Chapter one the next day. And I only had one extra day in October!!
So, on October 1, I moved on. I deposited the Introduction into the Dropbox savings account where it accrued hard drive interest. After a fatigue-ridden day of writing, I would re-read it and tweak it in light of what I was writing in Chapter one, but I couldn’t touch it or go back to it with the characteristic obsession of the wordsmith.

Weekend Roundup

  • The latest issue of the American Journal of Legal History features a forum on the interpretation of the Second Amendment. You can access the three papers here for a limited time.
  • We missed this one last month. "Oceans of Law II: Islamic Legal Crossings in the Indian Ocean World" took place at Leiden University on Dec.12-14, 2016. Here is the program.
  • ICYMI: A New York court archives move made the front page (screen) of the NYT this week!  (The AP story, courtesy of Eric Freedman, is here.)
  • Quick reminder of a deadline just 10 days away: here's our earlier post on the Baldy Fellowships in Interdisciplinary Legal Studies at SUNY Buffalo Law School. Applications for post-doctoral, mid-career and senior fellowships are due Jan.17.
  • On Inauguration Day, the Princeton University professors Jeremy Adelman, Melissa Lane, Dan Rodgers, and Kim Lane Scheppele will participate in a roundtable on  Global Liberalism in Crisis?” 
  • Congratulations to the U.S. District Court for the Southern District of Indiana for receiving a $25,000 grant for a documentary film called Federal Justice in IndianaEx parte Milligan will figure prominently in it.
  • Anuj Bhuwania's new book, Courting the People: Public Interest Litigation in Post-Emergency India has been excerpted and featured in Scroll.in. This part makes interesting connections between PIL and the legal aid movement.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, January 6, 2017

    Writing "Fractional Freedoms"

    Thank you to Dan, Karen and the LHB team for this kind invitation. I am a late adopter of social media (just went on FB in November!) but I have reliably checked LHB since I began thinking of myself as a legal historian. I have greatly enjoyed reading about the processes of writing monographs that bloggers described with such aplomb. I still remember Sophia Lee’s post about the ground-staking chapters of her book, Karen Tani’s description of working on her cover design, Ajay Mehotra’s meditations on intellectual history and the fiscal state, Mitra Sharafi’s delightful entries on undiscovered archives, among other memorable posts over the years. And of course I have pondered the sage advice dispensed by Mrs. Peppercorn to the clueless Peregrina. At the last ASLH meeting in Toronto, Reuel Schiller counseled me to blog about things that I may have wished I did in the book, or plan to explore in book two. Are you kidding? (I asked)…. This book took me a decade to write.

    But I have put quite a bit of thought into what I wanted to talk about that would benefit LHB readers and those in the finishing stages of writing their books. I will blog about--in no particular order—the process of writing a sprawling introduction, choosing a cover, the tense arabesque of working with a copyeditor, waiting till the reviews come back to write a conclusion, what to do with unexpected and late potentially argument-changing archival evidence, and how to make best use of a year away-sabbatical to write.


    Looking forward!