Saturday, July 22, 2017

Weekend Roundup

  • Have you registered for ASLH 2017?  We have.
  • From the Legal History Miscellany: two summer posts on coroners' inquests in English history--this by Cassie Watson on suicide and medico-legal experts and this by Krista Kesselring on deaths in custody.
  • Jed Shugerman, Fordham Law School, has posted his “historical tables/lists on major elected officials with prosecutorial backgrounds, 1880-2017,” which are part of his book project, “The Rise of the Prosecutor Politicians.”  What the Prison Policy Center made of them, for the recent American politics of “law and order” is here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, July 21, 2017

Dubber on the Criminal Process in the Dual Penal State

Markus D. Dubber, University of Toronto, has Criminal Process in the Dual Penal State: A Comparative-Historical Analysis, which appears in the Oxford Handbook of Criminal Process:
This paper is about a way of thinking about criminal process, with bits and pieces of criminal process making an appearance for illustrative purposes. Actually, it’s about two ways of thinking about criminal process, from parallel perspectives that correspond to two modes of state governance, law and police, characteristic of the law state (Rechtsstaat) and the police state (Polizeistaat), respectively. Using comparative-historical analysis, this chapter, locates the study of criminal process within the two-track project of critical analysis of penal power in the modern liberal state as penal law and penal police: the dual penal state. Illustrations include lay participation, plea bargaining, the legality principle, habeas corpus, and possession offenses, among others.

McKenzie on Spousal Murder at the Old Bailey

We received an advance alert on the publication of  "His Barbarous Usages", Her "Evil Tongue": Character and Class in Trials for Spouse Murder at the Old Bailey, 1674-1790, by Andrea McKenzie, Department of History, University of Victoria, in the American Journal of Legal History:
This article analyses and compares the defences, verdicts and punishments of both men and women tried at the Old Bailey for the murder of their spouses or common-law partners from 1674 to 1790, a period that witnessed the gradual if ultimately momentous ‘lawyerisation’ of criminal trial. The vast majority of these cases continued, however, to resemble ‘sentencing hearings’, focusing less on an adversarial contest over guilt or innocence than on mitigating circumstances and the character of defendants, witnesses and victims. While an emerging eighteenth-century culture of sensibility contributed to a decriminalisation of female passion and sexuality, these trials also testify to the continuity and vitality of a discretionary regime and more resilient assumptions about gender and class. In marked contrast with the handful of sensational murder trials that generated media attention and outrage and tended to end in execution, a large proportion of these more pedestrian and representative cases of domestic homicide—particularly women accused of murdering husbands after 1740—ended in acquittal or manslaughter verdicts, especially in cases where provocation could be established. This study suggests that this relative lenience speaks less to the compassion accorded to defendants than a lack of sympathetic identification with their largely working-class victims, especially those of perceived bad character.

Dubber on Legal History as Legal Scholarship

Markus D. Dubber, University of Toronto, has posted Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law, which is forthcoming in the Oxford Handbook of Historical Legal Research:
Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of “interdisciplinary” analysis (economical, philosophical, sociological, literary, etc.) and “doctrinal” analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between “modern” and “traditional” legal scholarship, and that between “common law” and “civil law” scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

Thursday, July 20, 2017

Getzler to Lecture on Leading Cases

Joshua Getzler, Oxford University, will speak on Leading Cases, Hermeneutics, and the Politics of Legal History at the Australian National University on Tuesday, August 1, 2017, from 1–2pm:
Joshua will reflect on the role of "leading cases" in forming the common law tradition, and re-examine the mode of historical analysis of cases pioneered by AWB Simpson. Simpson's historicisations dipped the law in cynical acid, using the surrounding context of court cases to show how accidental or arbitrary the doctrines of the law could be.

Another approach, more familiar from the Cambridge schools of political thought from Maitland to Skinner, is to site legal ideas in an intellectual longue durée, and then show how later actors changed and adapted the original meaning of old cases for political ends. In this seminar we will look at some examples drawn from equity and trusts, including cases establishing key principles of charitable trusts, floating charges, and fiduciary duties of loyalty. Possible applications of old jurisprudence to current controversies, such as First Nation rights, will conclude the discussion.

Wednesday, July 19, 2017

More on the Emoluments Clause

In a recent Weekend Roundup, we noted the New York Times op-ed on the Emoluments Clause by Joshua Blackman and Seth Barrett Tillman (as well as John Mikhail’s paper on how dictionaries published between 1523 and 1806 defined "emoluments").  The legal historians Gautham Rao and Jed Handelsman Shugerman have now replied to Blackman and Tillman in Slate

Goold on Owning Body Parts

Imogen Goold, St Anne’s College Oxford has published Flesh and Blood: Owning our Bodies and Their Parts with Hart Publishing. The book is in part historical in its approach. From the press:
Media of Flesh and BloodFor centuries, human bodies and their parts have been used for scientific and medical research, as a source of transplant organs and even for the creation of artistic works. Human tissue is taken, tested and stored during forensic investigations and stored in databases across the country. We can examine the DNA in almost any cell of the body to yield personal information, while increasingly tissue's importance for research and the production of treatments has seen it become an item of commerce. Tissue is both object and information, laden with psychological, cultural and emotional significance while also being a tool that is used daily in medicine, criminal investigations and research. Its use presents complex challenges for legal regulation. As a result common law legal systems have so far struggled to produce a coherent, principled approach to regulating the use of human body parts. Drawing on the fields of ethics, law and history, the author develops an interdisciplinary and holistic account of the challenges arising from human tissue use and the options for regulation. Part one of the book contextualizes the difficult issues surrounding the use of human tissue by presenting an historical account of how we have dealt with bodies and their parts since ancient times. Part two provides a detailed examination of the law covering tissue use in the United Kingdom, Australia and the United States. Part three explores the range of regulatory mechanisms that might be applied to human tissue, focusing on the notion of property at common law. The book concludes by analysing how property principles might be applied to human tissue and argues for why they should be.
Further information is available here

Campbell on Madison on Judicial Review and Unenumerated Rights

James Madison (LC)
Jud Campbell, University of Richmond School of Law, has posted Judicial Review and the Enumeration of Rights, which appears in the Georgetown Journal of Law and Public Policy 15 (2017): 560-592:
When introducing the Bill of Rights in Congress, James Madison explained that judges would “consider themselves in a peculiar manner the guardians” of those enumerated rights. This famous passage, often treated as authoritative, is conventionally understood to endorse the judicial enforceability of enumerated rights and deny the judicial enforceability of unenumerated rights. Enumeration, in other words, is considered as both a necessary and a sufficient condition for the judicial enforcement of rights against contrary legislation. This Essay disputes each of these orthodox views. Instead, it argues, Madison was commenting on judicial psychology and judicial politics, not judicial duty. Enumeration, in short, would facilitate the enforcement of rights, even if judges were already legally obliged to uphold them. Moreover, this Essay argues, both Madison’s proposed bill of rights and his speech in support were deliberately noncommittal about the legal significance of enumeration. Addressing an audience that had conflicting views on that issue, he drafted and defended the Bill of Rights to obtain support from all sides. Consequently, neither the Bill of Rights nor Madison’s advocacy reveal whether, legally speaking, enumeration is a necessary or sufficient condition for the judicial enforcement of rights against contrary legislation.

Tuesday, July 18, 2017

Funk and Mullen on Digital History and the Field Code

Kellen R. Funk, ABD, Princeton University, and Lincoln A. Mullen, Department of History and Art History, George Mason University, have posted The Spine of American Law: Digital Text Analysis and U.S. Legal Practice, which is forthcoming in American Historical Review (February 2018):
In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 30,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by a combination of creditors’ remedies the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in one Greater Reconstruction. Instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.

Opal on "Andrew Jackson, the Rule of Law, and the American Nation"

New from Oxford University Press: Avenging the People: Andrew Jackson, the Rule of Law, and the American Nation, by J. M. Opal (McGill University). A description from the Press:
Most Americans know Andrew Jackson as a frontier rebel against political and diplomatic norms, a "populist" champion of ordinary people against the elitist legacy of the Founding Fathers. Many date the onset of American democracy to his 1829 inauguration.

Despite his reverence for the "sovereign people," however, Jackson spent much of his career limiting that sovereignty, imposing new and often unpopular legal regimes over American lands and markets. He made his name as a lawyer, businessman, and official along the Carolina and Tennessee frontiers, at times ejecting white squatters from native lands and returning slaves to native planters in the name of federal authority and international law. On the other hand, he waged total war on the Cherokees and Creeks who terrorized western settlements and raged at the national statesmen who refused to "avenge the blood" of innocent colonists. During the long war in the south and west from 1811 to 1818 he brushed aside legal restraints on holy genocide and mass retaliation, presenting himself as the only man who would protect white families from hostile empires, "heathen" warriors, and rebellious slaves. He became a towering hero to those who saw the United States as uniquely lawful and victimized. And he used that legend to beat back a range of political, economic, and moral alternatives for the republican future.

Drawing from new evidence about Jackson and the southern frontiers, Avenging the People boldly reinterprets the grim and principled man whose version of American nationhood continues to shape American democracy.
A few blurbs:
"Many Americans long for a strong man to lead the nation and avenge their grievances. In this eloquent book, Jason Opal astutely and vividly recovers the backstory to that longing in the personal charisma, frontier violence, legal reasoning, and assertive self-righteousness of Andrew Jackson and his America." --Alan Taylor

"If you think there can't be much more to say about Andrew Jackson, you will share my excitement at how much Jason Opal has discovered. In his subject's diverse hatreds, against Whigs and Indians, Britons and bankers, Opal has found a unifying thread--Jackson's obsession with revenge--that helps to explain them all." --Woody Holton
More information is available here.

Monday, July 17, 2017

Likhovski on Tax Law in Mandatory Palestine and Israel

Just out with Cambridge University Press is Tax Law and Social Norms in Mandatory Palestine and Israel by Assaf Likhovski, Tel Aviv University. The book is part of the ASLH “Studies in Legal History” series. From the publisher:
Tax Law and Social Norms in Mandatory Palestine and IsraelThis book describes how a social-norms model of taxation rose and fell in British-ruled Palestine and the State of Israel in the mid-twentieth century. Such a model, in which non-legal means were used to foster compliance, appeared in the tax system created by the Jewish community in 1940s Palestine and was later adopted by the new Israeli state in the 1950s. It gradually disappeared in subsequent decades as law and its agents, lawyers and accountants, came to play a larger role in the process of taxation. By describing the historical interplay between formal and informal tools for creating compliance, Tax Law and Social Norms in Mandatory Palestine and Israel sheds new light on our understanding of the relationship between law and other methods of social control, and reveals the complex links between taxation and citizenship.
Praise for the book:

“This brilliant book tells the story of how tax law in Mandatory Palestine was transformed from an intimate institution relying on the voluntary cooperation of taxpayers to a formal system enforced by lawyers. It is a must-read for anyone interested in the nature of law and in how to make a legal system that necessarily depends on voluntary cooperation achieve its goals.” Reuven Avi-Yonah

TOC after the jump.

Gordon, "Taming the Past"

New from the Studies in Legal History Series at Cambridge University Press: Taming the Past: Essays on Law in History and History in Law, by Robert W. Gordon (Stanford Law School). A description from the Press:
Lawyers and judges often make arguments based on history - on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces - such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.
A sampling of advance praise for the book:
"The sparkling essays of one of the preeminent legal historians of our era are now collected in one place, where they can talk with each other. Here we see the vintage apercus that make us laugh aloud at Gordon’s wit and nod our head at his wisdom. So, for example, we see Gordon discussing ‘Willard Hurst’s benign, if also rather insistent, influence;’ talking about how ‘dead paradigms … never really get killed off [in law], but hang around and Dracula-like, rise from their coffins to stalk the earth;’ observing that E. P. Thompson ‘almost never (save when exposing an opponent as an ignorant twit) showed off how hard he had been working;’ and pointing out that ‘history does not make a good domestic pet.’ This book is a real treat!’" -- Laura Kalman

"Once an arcane backwater, mostly located in the backrooms of law schools, disconnected from the main themes of academic legal study, legal history has become a site of core controversies, ones that everyone involved with the study of law had to engage with. Legal history is where scholars from emerging fields of ‘non-legal’ history - including historical studies of gender, of race, and of market capitalism - found the scholarly perspectives that made possible exciting new work about law. The writings of Robert W. Gordon helped guide how it all happened. American scholarship owes him a debt of gratitude. And it is good that a new generation will be introduced to his analytic clarity, to his wisdom, and to his attractive voice, through this accessible edition." -- Hendrik Hartog
The Studies in Legal History Series website has additional content, including clips of interviews with Professor Gordon about the book.

Sunday, July 16, 2017

Sunday Book Review Roundup

Legal historians, you may be stuck behind a newspaper (or this summer, but if you’re not satisfied with the history of the present, check out these book reviews:

In the Washington Post, E.J. Graff also reviews Nathaniel Frank’s Awakening: How Gays and Lesbians Brought Marriage Equality to America which “misses the vast uprising of ordinary lesbians and gay men who pushed their reluctant leaders to focus on marriage,” but does report “meticulously on the gay and lesbian lawyers who envisioned and ran the fight for marriage and the funders who helped put the effort over the finish line, carefully recounting the legal arguments and opinions all along the way.” In the same publication, Manisha Sinha reviews Fred Kaplan’s dual biography of Abraham Lincoln and John Quincy Adams, which “compares Lincoln unfavorably with abolitionists on the great issues of the day.” According to Sinha, “Kaplan’s understanding of the interracial abolitionist movement is outdated, quaint and erroneous, which undermines his attempt to set it up as a foil to Lincoln.”

Relatedly, in the NYRB, James Oakes reviews two of Sidney Blumenthal’s books about Lincoln: A Self-Made Man: The Political Life of Abraham Lincoln, 1809–1849 and Wrestling with His Angel: The Political Life of Abraham Lincoln, 1849–1856. Bryan Stevenson also engages with the history of lynching in A Presumption of Guilt, which references Sherrilyn Ifill’s On the Courthouse Lawn and Devin Allen’s A Beautiful Ghetto.

In the Nation, Elizabeth Bruenig reviews several books on the reformation (Martin Luther: Renegade and Prophet by Lyndal Roper; The Protestants: The Faith That Made the Modern World by Alec Ryrie; Luther and His Progeny: 500 Years of Protestantism and Its Consequences for Church, State, and Society John C. Rao, ed.), positing a thesis that will please religious historians: “Theology is morality is politics is law—and whether or not it’s immediately obvious, the world is steeped in theology.” Jedidiah Purdy also reviews  Ganesh Sitaraman’s new book, The Crisis of the Middle-Class Constitution, which argues, according to Purdy, that “the Constitution was written and adopted with the understanding that the political system it established could only work in a fairly equal economy, with no vast concentration of wealth and power at the top, no wasteland of poverty and exploitation.” (Also referenced here and here).

Chris Maisano’s The Fall of Working Class New York, in Jacobin, reviews Kim Phillips-Fein’s Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics, “an excellent new book on the 1970s New York City fiscal crisis.” (Tim Shenk reviews the book here too, and Fein’s book is also quoted in this discussion of the 1977 blackout).

In the LARB, Darryl Holter reviews On Tyranny: Twenty Lessons from the Twentieth Century (which is “not really a book at all. It’s really a manifesto: an opinionated and passionate call to action”).

In the Guardian, Sofka Zinovieff reviews Last Hope Island by Lynne Olson (“an outsider with a keen sense of justice”), and Colm Tóibín reviews two books about James Joyce’s use of the law (Joyce in Court and The Ulysses Trials: Beauty and Truth Meet the Law), concluding that law helped Joyce “add spice to his work in progress, and to anchor it further in life in all its variety, particularity and strangeness.”Additionally, the New Books Network provides audible reviews of Max Krochmal’s Blue Texas: The Making of a Multiracial Democratic Coalition in the Civil Rights Era, Kiran Klaus Patel’s The New Deal: A Global History; Sarah Eltantawi’s Shari’ah on Trial: Northern Nigeria’s Islamic Revolution; Robert M. Browning Jr. Lincoln’s Trident: The West Gulf Blockading Squadron during the Civil War; William Davenport Mercer’s Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty, and David R. Mahew’s The Imprint of Congress.   

And finally, while we don’t always canvas the law reviews for these roundups, its hard to resist sharing this review of Risa Goluboff’s Vagrant Nation. In it, Tracey Meares revisits her 1998 article about constitutional criminal procedure, which argued that "a body of doctrine designed to ensure racial equality in law enforcement has now become an impediment to minority communities’ attempts to liberate themselves from rampant crime” and cautioned against “self defeating discretion skepticism.” Meares argues that “Goluboff appears to lament the Court’s inability to strike down vagrancy laws on the basis of substantive due process or something like it,” and adds that policing policy would feel no more equitable if courts had constrained it using fundamental rights principle, because “people place much more weight on how authorities exercise their power than on the ends for which that power is exercised.” Meares review also includes a detailed, if disheartening, review of New York City’s stop and frisk policy and the litigation that challenged it.

Saturday, July 15, 2017

Weekend Roundup

  • Attention Scalia, J., biographers: in an anecdote recounted here at 1:23, the director David O. Russell disrupts the justice's appearance in Hadley Arkes's class at Amherst.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 14, 2017

News of the Edinburgh Centre for Legal History

The Edinburgh Legal History Blog published John W. Cairns’s laureation address upon the occasion of the University of Edinburgh’s conferral of the degree of LL.D. honoris causa to Professor Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford.  The conferral of the degree upon Professor Ernst and of doctorates upon two Ph.D. students in legal history–Asya Ostroukh, for“Reception of the French Civil Code in Francophone Switzerland, Louisiana, and Quebec: A Socio-Legal Study," and Ilya Kotlyar, for “The Influence of the European Jus Commune on the Scots law of succession to moveables: 1560-1700”–“encouraged the Centre for Legal History, with the support of the School of Law, to organise a small conference entitled ‘Directions in Legal History and Roman Law,’ involving the new graduates and some current PhD students, to showcase the diversity of the research in the Centre."  Professor Cairn’s illustrated report is here.

Landmark Cases in Restitution

We have one more newly paperbacked volume for you in Hart's Landmark Cases series: University College London's Charles Mitchell and Paul Mitchell, ed., Landmark Cases in the Law of Restitution. We missed the hardback edition in 2006, so here is the full information. From Hart Publishing:
Media of Landmark Cases in the Law of RestitutionIt is now well established that the law of unjust enrichment forms an important and distinctive part of the English law of obligations. Restitutionary awards for unjust enrichment and for wrongdoing are clearly recognised for what they are. But prior to the last decade of the twentieth century the very existence of a separate law of unjust enrichment was controversial, its scope and content matters of dispute. In this collection of essays, a group of leading scholars reappraise some of the landmark cases in the area. Their investigations shed new light on some classic decisions, and persuasively invite readers to think again about some well-known authorities.
TOC after the jump.

Thursday, July 13, 2017

Grant: Negotiating Agreement in Congress

We were recently received the following announcement from Anxieties of Democracy, a project of Social Science Research Council:
The Negotiating Agreement in Congress Research Grants are aimed at scholars who seek to understand the conditions under which political negotiation can be achieved (or not achieved) in Congress and other legislative arenas. The grants provide up to $10,000 of funding for each awardee, to be used for up to one year of research and writing. Applicants must have a PhD in hand by the application deadline and must hold an affiliation with a college or university based in the United States. For more information, please visit [here] or contact us at

Symposium: Kessler's "Inventing American Exceptionalism"

SLR Online, the digital sidekick of the Stanford Law Review, has a five-star book review symposium on the Stanford Law School's Amalia D. Kessler’s Inventing American Exceptionalism, with an introduction by Bernadette Meyler, reviews by Edward A. Purcell, Jr., Mark Tushnet, and Richard White and a response by Professor Kessler.

Ablavsky on the Rise of Federal Title

Gregory Ablavsky, Stanford Law School, has posted The Rise of Federal Title, which is forthcoming in the California Law Review:
Why did, and does, the federal government own most of the public domain within the United States? The standard historical answers — that states ceded their lands to the federal government and the Property Clause confirmed this authority — turn out to be incomplete, masking a neglected process in the 1780s and ‘90s in which legitimate ownership came to derive primarily from the federal government.

This transformation, which I call the rise of federal title, involved two intertwined controversies. The first was a federalist struggle over whether the federal government could retain land in former territories admitted as states notwithstanding the promise of equal footing. The second concerned the nature of ownership. As states’ unregulated land grants created endless litigation, claimants turned to the federal government to resolve conflicting rights and to create a land system that offered certain title. Both processes vindicated federal ownership, with the consequence that the federal government enjoyed a monopoly on one of the nation’s most important sources of wealth.

This history proves highly relevant. The rise of federal title is under threat, as many western states, and the Republican Party platform, have spun a theory based on erroneous history that argues federal landholding is unconstitutional. Simultaneously, in constructing a principle of equal sovereignty, the Supreme Court’s recent Shelby County decision relied on equal footing cases that ignored this early history. But the implications transcend immediate doctrinal concerns: this Article suggests theoretical interventions about the interplay between sovereignty and property, and commodification and regulation, in American history.

Wednesday, July 12, 2017

Landmark Cases in Contracts

Here’s another volume in Hart’s Landmark Cases series that is now out in paperback: Landmark Cases in the Law of Contract, edited by Charles Mitchell and Paul Mitchell, both of University College London. We missed the hardback version when it came out in 2008, so here is the full account. From the press:
Media of Landmark Cases in the Law of ContractLandmark Cases in the Law of Contract offers twelve original essays by leading contract scholars. As with the essays in the companion volumes in this series, each essay takes as its focus a particular leading case, and analyses that case in its historical or theoretical context. The cases range from the early eighteenth- to the late twentieth-centuries, and deal with an array of contractual doctrines. Some of the essays call for their case to be stripped of its landmark status, whilst others argue that it has more to offer than we have previously appreciated. The particular historical context of these landmark cases, as revealed by the authors, often shows that our current assumptions about the case and what it stands for are either mistaken, or require radical modification. The book also explores several common themes which are fundamental to the development of the law of contract: for instance, the influence of commercial expectations, appeals to 'reason' and the significance of particular judicial ideologies and techniques.

TOC after the jump.

Alexander on a Landmark Copyright Decision in Georgian England

James R. Alexander, University of Pittsburgh at Johnstown, has posted Libel and Copyright in the Satire of Peter Pindar:
In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that Wolcot should first establish his property in the contested works at law before seeking equitable relief, to thereby clear away any question of their criminality. This was arguably the first application to copyright of an eighteenth-century maxim that there could be no property in criminally-libelous literary works. Almost immediately and for over the next century in equity cases and both English and American legal treatises, Eldon’s ruling was interpreted as establishing the Court as censor morum, authorized under common law to rule exceptions to copyright protection based on a determination of illicit or illegal content, regardless of whether copyright statutes specified content-based exceptions. However, a careful review of the Chancery records reveals the ruling warrants a more tempered reading, and that the long-assumed legal precedent may have followed a hoped-for rather than established principle.

Tuesday, July 11, 2017

Elson on "A Notorious Divorce in Early Twentieth-Century America"

New from Temple University Press: Gross Misbehavior and Wickedness: A Notorious Divorce in Early Twentieth-Century America (June 2017), by Jean Elson (University of New Hampshire). A description from the Press:
The bitter and public court battle waged between Nina and James Walker of Newport, Rhode Island, from 1909 to 1916 created a sensation throughout the nation, with lurid accounts of their marital troubles fueling widespread gossip. The ordeal of this high-society couple, who wed as much for status as for love, is one of the prime examples of the growing trend of women seeking divorce during the early twentieth century.

Gross Misbehavior and Wickedness—which takes its title from the charges Nina levied against James for his adultery (with the family governess) and extreme cruelty—recounts the protracted legal proceedings in juicy detail.
More information is available here.

Monday, July 10, 2017

Landmark Cases in Torts

Another volume in the Landmark Cases by Hart Publishing came out in paperback in 2016. We didn't post on the hardback version when it originally came out in 2010, so here are the full details on Landmark Cases in the Law of Tort, edited by Charles Mitchell and Paul Mitchell, both of University College London. From the press:
Media of Landmark Cases in the Law of TortLandmark Cases in the Law of Tort contains thirteen original essays on leading tort cases, ranging from the early nineteenth century to the present day. It is the third volume in a series of collected essays on landmark cases (the previous two volumes having dealt with restitution and contract). The cases examined raise a broad range of important issues across the law of tort, including such diverse areas as acts of state and public nuisance, as well as central questions relating to the tort of negligence. Several of the essays place cases in their historical context in ways that change our understanding of the case's significance. Sometimes the focus is on drawing out previously neglected aspects of cases which have been – undeservedly – assigned minor importance. Other essays explore the judicial methodologies and techniques that worked to shape leading principles of tort law.

So much of tort law turns on cases, and there are so many cases, that all but the most recent decisions have a tendency to become reduced to terse propositions of law, so as to keep the subject manageable. This collection shows how important it is, despite the constant temptation to compression, not to lose sight of the contexts and nuances which qualify and illuminate so many leading authorities.
TOC after the jump.

Sunday, July 9, 2017

Sunday Book Review Roundup

The Guardian carries a review of Ibram X. Kendi's "brilliant and disturbing" Stamped from the Beginning: The Definitive History of Racist Ideas in America.

At the New Books Network, William Davenport Mercer speaks about his Diminishing the Bill of Rights Barron v. Baltimore and the Foundations of American Liberty.

Public Books carries a review of James Q. Whitman's Hitler’s American Model: The United States and the Making of Nazi Race Law  According to the review, "Drawing on meeting transcripts, memos, and published work, Whitman argues that US models inspired the lawyers working to craft the Nuremburg laws that stripped Jews of citizenship, barred mixed marriages, and prohibited what the Americans called “miscegenation.”  The reviewer suggests that Whitman's story is a disturbing but timely reminder of those "who wove racism into the fabric of our legal system" in a not-so-distant past.

At The Atlantic is a review of Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America.

In The Washington Post is a review of Roy L. Brooks' The Racial Glass Ceiling: Subordination in American Law and Culture

H-Net has posted a review of Jenna Reinbold's Seeing the Myth in Human Rights.  Also reviewed at H-Net is Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights by Lennard J. Davis..

At the New Republic is a review of Scott Cooper's The Fall of Heaven: The Pahlavis and the Final Days of Imperial Iran. 

HNN carries a review of Nancy Weiss Malkiel's "Keep the Damned Women Out': The Struggle for Coeducation".

Geoff Mann's In the Long Run We Are All Dead: Keynesianism, Political Economy, and Revolution is reviewed at the Los Angeles Review of Books.  Also reviewed at LARB is The Origin of the Jews The Quest for Roots in a Rootless Age by Steven Weitzman.  Finally, The Perils of “Privilege” Why Injustice Can’t Be Solved By Accusing Others of Advantage by Phoebe Maltz Bovy and The Age of Responsibility: Luck, Choice, and the Welfare State by Yascha Mounk are also reviewed in an essay on the site.

In the New Statesman is a review of Peter Ackroyd's Queer City: Gay London from the Romans to the Present Day.

Edward Balleisen's Fraud: An American History from Barnum to Madoff has received a thoughtful review in The American Interest.

In Dissent's summer issue is a review of Melinda Cooper's Family Values: Between Neoliberalism and the New Social Conservatism. The review lauds Cooper's "magisterial" monograph for the work it does in theorizing deregulated capitalism's reliance on "reasserting hierarchies of gender and sexuality."  Across a broad range of themes, the reviewer argues, Cooper offers readers a "history that uncovers the laws and doctrines that structure the precarious families of the present, demonstrating that the history of gender and the family are not merely cultural artifacts, while the real work of capitalist expansion continues elsewhere."

At The New Rambler is a review of Geoffrey Stone's  Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.

Saturday, July 8, 2017

Weekend Roundup

  • There was lots of legal history action at the Law and Society Association meeting in Mexico City recently. We posted this before the conference on the Law and History CRN's many panels. Here are some details on what the South Asia CRN was up to.
  •  On Sunday, July 23, 2017 at 2:00 in the Henry A. Wallace Center, the Franklin D. Roosevelt Presidential Library and Museum hosts Greg Robinson, Professor of History at the  l'Université du Québec À Montréal, on the conflict between Franklin and Eleanor Roosevelt over the incarceration of Japanese Americans during World War II.  Professor Robinson is the author of By Order of the President: FDR and the Internment of Japanese Americans.  Attendees may view the Roosevelt Library's new special exhibit, Images of Internment, free of charge, following the program. This is a free public event but registration is required.
  • Job announcement: “The Department of History at the University of Toronto invites applications for a tenure-stream appointment in the area of Nineteenth Century United States History.  The appointment will be at the rank of Assistant Professor, and begin on July 1, 2018.”  More.
  • Update: Constitutional, the successor to the popular Presidential podcast of the Washington Post's Lillian Cunningham, launches July 24.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 7, 2017

Muller on Voter Registration Battles, Then and Now

Derek T. Muller, Pepperdine University School of Law, has published What’s Old Is New Again: The Nineteenth Century Voter Registration Debates and Lessons About Voter Identification Disputes, Washburn Law Journal 56 (2017): 109-121.  Cribbing from the introduction:
There is a raging debate over the administration of elections, which is undoubtedly familiar to many. There has been a significant increase in a particular kind of election law pertaining to how states go about administering elections. These laws have largely been promulgated by Republicans and target election fraud—actual or perceived—in an attempt to restore some integrity to the electoral process. Democrats, for the most part, have opposed these laws and often critiqued them as a kind of voter suppression tactic, one that disproportionately burdens racial minorities, the poor, and those who have recently moved into a precinct. Over the years, these positions have hardened into fairly partisan and seemingly intractable positions.

This story, of course, is also the story of the voter registration debates in late nineteenth century America.

Rosenblum on Jewish Dietary Laws

Jordan D. Rosenblum, University of Wisconsin–Madison has published The Jewish Dietary Laws in the Ancient World with Cambridge University Press. From the publisher:
The Jewish Dietary Laws in the Ancient WorldIn The Jewish Dietary Laws in the Ancient World, Jordan D. Rosenblum explores how cultures critique and defend their religious food practices. In particular he focuses on how ancient Jews defended the kosher laws, or kashrut, and how ancient Greeks, Romans, and early Christians critiqued these practices. As the kosher laws are first encountered in the Hebrew Bible, this study is rooted in ancient biblical interpretation. It explores how commentators in antiquity understood, applied, altered, innovated upon, and contemporized biblical dietary regulations. He shows that these differing interpretations do not exist within a vacuum; rather, they are informed by a variety of motives, including theological, moral, political, social, and financial considerations. In analyzing these ancient conversations about culture and cuisine, he dissects three rhetorical strategies deployed when justifying various interpretations of ancient Jewish dietary regulations: reason, revelation, and allegory. Finally, Rosenblum reflects upon wider, contemporary debates about food ethics.
TOC after the jump.

Roberts's "Four Crises of American Democracy"

Alasdair Roberts, Professor of Public Affairs at the Truman School of Public Affairs, University of Missouri (and soon to be director of the UMass Amherst School of Public Policy) has published Four Crises of American Democracy: Representation, Mastery, Discipline, Anticipation, with the Oxford University Press:
In the last decade, observers of Western governments have become increasingly concerned about an apparent crisis of democracy. They argue that endemic corruption, inadequate services, and increasing voter disaffection have produced a dire result: a global resurgence of authoritarianism. The political climate surrounding the 2016 presidential election in the United States has only reinforced the perception of democratic crisis.

In Four Crises of American Democracy, Alasdair Roberts locates the U.S.'s recent bout of democratic malaise in a larger context, arguing that it is the latest in a series of very different crises that have plagued America throughout the entire post-Civil War era. He focuses on four crises, describing the features of each and outlining solutions the government adopted in response. The first crisis-the “crisis of representation”-occurred in the late nineteenth and early twentieth centuries, and was dominated by fears of plutocracy and debates about the rights of African Americans, women, and immigrants. The “crisis of mastery” spanned the years 1917-1948, and focused on building administrative capabilities so that government could better manage both an increasingly complex economy and volatile international system. The “crisis of discipline,” beginning in the 1970s, was triggered by the perception that voters and special interests were overloading governments with unreasonable demands, and the response was to limit government's reach. The current crisis, what Roberts calls the “crisis of anticipation,” is ongoing. Roberts pronounces it a future-oriented crisis, preoccupied with the capacity of democratic systems to deal with long-term problems such the rise of China and climate change.

Roberts suggests that democratic solutions to this present crisis will win out over more authoritarian ones, as occurred in previous crises. Features like societal openness and pragmatism give the democratic model a distinct advantage. A powerful account of how successive crises have shaped American democracy, this is essential reading for anyone interested in the forces driving the current democratic malaise both in the U.S. and around the world.

Thursday, July 6, 2017

ASLH 2017

[We have the following announcement.]  Registration is now open for the American Society for Legal History Annual Meeting in Las Vegas, October 26-29, 2017.

The primary hotel is the Red Rock Casino Resort, but a block of sleeping rooms is also available at conference rates at Boulder Station, a recently-unionized, less expensive property. The Friday afternoon and evening program, including panels, the plenary address, and the plenary reception, will take place on the campus of the University of Nevada, Las Vegas. (UNLV will provide bus transportation between Red Rock and campus.) Friday morning and Saturday sessions will be at Red Rock. As part of the Friday afternoon program, there will be a special pre-plenary panel on “Unionization Strategies in Challenging Times,” with the participation of Richard McCracken, general counsel of Unite Here, the parent union for the Culinary Workers Union, which is currently campaigning for recognition as the bargaining agent for non-gaming workers at Red Rock Casino Resort. Further details are available [here].

Carney on the Background of Modern American Business Law

William J. Carney, Emory University School of Law, has posted The Background of Modern American Business Law, which is to appear in The Journal Jurisprudence 2017: 93:
This is an attempt to introduce lawyers trained in the civil law tradition about the unique features of the common law and equity traditions that influence American business entity law. The approach is historical, and traces the development of equitable ownership and equitable duties to the 14th century. It also introduces the uniquely English notion of the Internal Affairs Rule as the source of jurisdictional competition and innovation in the American system. It then proceeds with a more conventional discussion of the operation of American laws governing business entities.

Baum on Ideology in the Supreme Court

New from Princeton University Press: Ideology in the Supreme Court (2017), by Lawrence Baum (Ohio State University). A description from the Press:
Ideology in the Supreme Court is the first book to analyze the process by which the ideological stances of U.S. Supreme Court justices translate into the positions they take on the issues that the Court addresses. Eminent Supreme Court scholar Lawrence Baum argues that the links between ideology and issues are not simply a matter of reasoning logically from general premises. Rather, they reflect the development of shared understandings among political elites, including Supreme Court justices. And broad values about matters such as equality are not the only source of these understandings. Another potentially important source is the justices' attitudes about social or political groups, such as the business community and the Republican and Democratic parties.
The book probes these sources by analyzing three issues on which the relative positions of liberal and conservative justices changed between 1910 and 2013: freedom of expression, criminal justice, and government "takings" of property. Analyzing the Court's decisions and other developments during that period, Baum finds that the values underlying liberalism and conservatism help to explain these changes, but that justices' attitudes toward social and political groups also played a powerful role.
Providing a new perspective on how ideology functions in Supreme Court decision making, Ideology in the Supreme Court has important implications for how we think about the Court and its justices.
A few blurbs:
"Close observers of the Supreme Court know that sometimes its conservatives and liberals flip sides. Using the examples of free speech, criminal law, and takings, with glances at other topics, Lawrence Baum develops a systematic account of why and how these shifts occur. In doing so, he deepens our understanding of how ideology--apart from political theories and preferences about outcomes--shapes the Court’s decisions." --Mark Tushnet

"Baum offers a unique perspective on the Supreme Court. He makes a compelling case for reconsidering our traditional understanding of ideological voting on the Court, suggesting that justices' votes may be determined by their disposition toward particular litigants. Presenting a challenging new way to think about decision making on the Court, this is an important book." --Kevin T. McGuire
More information is available here.

Wednesday, July 5, 2017

Mayeri reviews Nadasen, "Household Workers Unite"

Over at JOTWELL, Serena Mayeri (Penn Law) has posted an admiring review of Premilla Nadasen's Household Workers Unite: The Untold Story of the African American Women Who Built a Movement (Beacon Press, 2015). Here's the first paragraph:
Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.
Read on here.

Join ASLH!

[We have the following announcement.]  On behalf of the American Society for Legal History (ASLH), we invite all legal historians, practitioners, graduate and law students, and interested parties to join the ASLH or renew their memberships.

The American Society for Legal History is a nonprofit membership organization dedicated to fostering scholarship, teaching, and study concerning the law and institutions of all legal systems, both Anglo-American and those that do not operate in the Anglo-American tradition. Founded in 1956, the Society sponsors the Law and History Review and Studies in Legal History.

Membership in the ASLH offers numerous benefits for scholars of legal history. The Society holds annual conferences to foster intellectual development in legal history worldwide. While the organization is based primarily in the United States, its membership and its scope are international.

With membership comes:
-fellowship and intellectual stimulation of your peers
-networking opportunities with scholars across legal history
-subscription to Law and History Review
-reduced rates for the ASLH 2017 Annual Meeting in Las Vegas, held October 26-29

Join or renew by July 15 to insure that you may vote in the upcoming ASLH election. Join today here.  Please contact Dr. Patricia Minter, Membership Committee Chair, for further information 

Plesch on "The Lost History of Prosecuting Axis War Crimes"

Here's a recent release from Georgetown University Press: Human Rights after Hitler: The Lost History of Prosecuting Axis War Crimes (March 2017), by Dan Plesch (University of London). A description from the Press:
Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.
From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC’s files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including “water treatment,” wartime sexual assault, and crimes by foot soldiers who were “just following orders.” Plesch’s book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.
Lots more information is available here, at the book's website.

Monday, July 3, 2017

Lambert's "Law and Order in Anglo-Saxon England"

Tom Lambert, a Fellow of Sidney Sussex College, Cambridge, has published Law and Order in Anglo-Saxon England (Oxford, Oxford University Press, 2017): 
Law and Order in Anglo-Saxon England explores English legal culture and practice across the Anglo-Saxon period, beginning with the essentially pre-Christian laws enshrined in writing by King AEthelberht of Kent in c. 600 and working forward to the Norman Conquest of 1066. It attempts to escape the traditional retrospective assumptions of legal history, focused on the late twelfth-century Common Law, and to establish a new interpretative framework for the subject, more sensitive to contemporary cultural assumptions and practical realities.

The focus of the volume is on the maintenance of order: what constituted good order; what forms of wrongdoing were threatening to it; what roles kings, lords, communities, and individuals were expected to play in maintaining it; and how that worked in practice. Its core argument is that the Anglo-Saxons had a coherent, stable, and enduring legal order that lacks modern analogies: it was neither state-like nor stateless, and needs to be understood on its own terms rather than as a variant or hybrid of these models. Tom Lambert elucidates a distinctively early medieval understanding of the tension between the interests of individuals and communities, and a vision of how that tension ought to be managed that, strikingly, treats strongly libertarian and communitarian features as complementary. Potentially violent, honour-focused feuding was an integral aspect of legitimate legal practice throughout the period, but so too was fearsome punishment for forms of wrongdoing judged socially threatening. Law and Order in Anglo-Saxon England charts the development of kings’ involvement in law, in terms both of their authority to legislate and their ability to influence local practice, presenting a picture of increasingly ambitious and effective royal legal innovation that relied more on the cooperation of local communal assemblies than kings’ sparse and patchy network of administrative officials.
An online review by Dr Philippa Byrne is here.  TOC after the jump.

Ernst on TR on the Structure of Government

Julia L. Ernst, North Dakota School of Law, has published The Legacy of Theodore Roosevelt’s Approach to Governmental Powers, North Dakota Law Review 92 (2016): 309-363:
TR 1899 (NYPL)
This Article explores how Theodore Roosevelt viewed the structure of government within the United States in the late 1800s and early 1900s.  It particularly considers his standpoints on the interrelationships between the three branches of government–executive, legislative, and judicial–at both the federal and state levels.  More specifically, it investigates Roosevelt’s perspectives on presidential use of executive orders to take action in the face of Congressional inertia in the federal government.  Considering state governments, it examines his views in favor of restricting the independence of the judiciary.  The Article suggests that, while Theodore Roosevelt’ s approach to the judiciary has not been followed, he helped set the stage for the active use of executive orders in shaping the federal laws, which has substantially  influenced  the  relationship  between  the  president  and Congress.  Whether or not one agrees with presidential use of executive orders to effectuate major legal and policy changes, Roosevelt’s legacy in originating the extensive use of this practice remains significant today.