Sunday, December 31, 2017

Upham's "Taking American Citizenship Seriously"

David R. Upham, University of Dallas, has posted the Introduction, Chapter 1, and Chapter 3 of Taking American Citizenship Seriously and the Recovery of the Fourteenth Amendment:   
Presented here is the rough draft of the introduction and first chapter of a book tentatively entitled Taking American Citizenship Seriously and the Recovery of the Fourteenth Amendment. In the introduction, I introduce the purpose and organization of the work. In the first chapter, "A Coherent and Conservative Measure," I argue that the drafters and supporters of the Amendment had a coherent understanding of the measure, and understood it as a means to secure principles that were old, that is, fundamental to free government and long recognized in the spirit if not letter of the American Declaration of Independence and Constitution.
Chapter 3.  In this chapter, I present a new history of the adoption of the Fourteenth Amendment. I rely, in part, on some documentary evidence that has not yet been discussed and, unlike most other accounts, I place heavy emphasis on those details that seem most relevant to recovery the original meaning of the Fourteenth Amendment, including explaining the actual and apparent disagreements among supporters as to its meaning. That explanation and that recovery will be the subject of chapters 4 and 5

Thank you, Taisu Zhang!

It has been a pleasure to have Professor Taisu Zhang (Yale Law School) with us as a guest blogger for the month of December. 

Using his recently published book as a jumping-off point, he wrote terrific posts on "Cultural Norms, Property Institutions, and Patterns of Economic Development"; the value of comparative legal history; "Methodological Divergence between Legal Subfields"; and "Resources for Chinese Law and History."

Thank you, Taisu Zhang!

Saturday, December 30, 2017

Silbernagl on Corruption and Habsburg Rule

Rainer Silbernagl has posted A Classification of Malpractice and Thoughts on Corruption in the 18th and 19th Centuries in Habsburg Legislation, which also appears in the Max Planck Institute for European Legal History Research Paper Series.
 "Corruption" has become a hotly contested term that is imputed to capture the symptoms of manipulative human legal behaviour and to label a clearly identifiable juridical disease. Despite its broad use across many academic disciplines and invocation in diverse research findings, the term is particularly vague in jurisprudence. This article examines the core of corruption that can be apprehended legislatively, focusing on Habsburg rule between 1750 and 1918. In this transitional period, the modern-day constitutional state emerged whose intellectual roots in many fields of dogmatic law constitute the foundation of our modern legal consciousness. With its penal law drafts, the second half of the 19th century is a particularly useful period to analyse how these legal fields interact.

Resources for Chinese Law and History

This marks the end of my one month guest blogging stint here at LHB.  Thanks again to the editors for this opportunity, and thanks to the many friends and colleagues who took time to engage the ideas I threw out in my posts.

As I'm heading out the door, here are some basic resources for Chinese legal history that may be of use to a more general audience.  A few institutions maintain online bibliographies of Chinese law and history-related sources: for example, YaleHarvard, and Oxford.  More systematically, for the past decade, scholars at the Max Planck Institute for Comparative and International Private Law have compiled a yearly bibliography of all academic writing on Chinese law in Western languages, and you can find them all on Professor Knut Pissler's SSRN page.  Each list has a specific section on legal history.

If you are interested in communities of scholars who work on these issues, there are several relevant groups on Facebook that have relatively open membership policies: Sinologists, Late Imperial China, and PRC History.  The largest and most important academic society on Chinese legal history outside of Mainland China (although it does draw many members from the Mainland) is the International Society for Chinese Law and History, which now has over 150 members, despite only coming into existence in early 2014.  The Society maintains a newsletter on recent events and publications in the field, and hosts workshops and conferences annually.

And with that, I wish you all a happy and prosperous 2018!  It's been a real pleasure.

Friday, December 29, 2017

Nolan on the Fatal Accidents Act

Donal Nolan, University of Oxford Faculty of Law, has posted The Fatal Accidents Act 1846, which appeared in Tort Law and the Legislature, TT Arvind and Jenny Steele ed. (Hart 2012), 131-157:
This chapter is a historical analysis of the Fatal Accidents Act 1846, which for the first time gave the relatives of a person who had been wrongfully killed a right to compensation from the wrongdoer. I argue that criticisms of the 1846 Act are largely groundless, and that giving the relatives of the deceased claims in tort was a pragmatic and rational response to the problem of wrongful death in the mid-nineteenth century. Furthermore, I argue that from the standpoint of legal analysis, the formula for recovery employed in the legislation was appropriate and effective, and that the legislation was a progressive measure, which had beneficial social effects. It is shown that the immediate catalyst for the legislation was the desire to protect the interests of the families of those who perished in mining accidents, and more generally it is argued that the passage of the Act was motivated by the humanitarian desire to reduce the incidence of fatal accidents and to make provision for those affected by them when they did occur. I conclude that the advent of the wrongful death action was an important and welcome development in the law of tort, which was appropriately brought about through legislative intervention.

Sandford's "Reluctant Reformer"

Ann Sandford, independent, has published Reluctant Reformer: Nathan Sanford in the Era of the Early Republic, with SUNY Press:
Set in the tumultuous decades of post-revolutionary America, Reluctant Reformer brings to light the long neglected New York lawyer-politician, Nathan Sanford. As a lawyer, Sanford contributed to modern property law. In the United States Senate, he dealt with central banking, struggled against slavery, and supported popular voting for presidential electors. He was a major designer of the program to rationalize the nation’s currency. Against a backdrop of European wars and the War of 1812, he capitalized on opportunities for upward social mobility in a period of nation-building and commercial expansion. At the New York State Constitutional Convention of 1821, he fought for universal manhood suffrage.

Educated in history and government at Clinton Academy on Long Island and at Yale, and a student at the Litchfield School of Law, Sanford rose quickly to prominence as the federal attorney appointed by President Jefferson to serve all of New York State. Fueled by ambition, he navigated a career among Republican factional leaders—DeWitt Clinton, Aaron Burr, and Martin Van Buren—first in New York City, and then in the state and the nation. In 1824, he ran for vice president on the ticket with Henry Clay. Attuned to his familial ties to eastern Long Island but beyond the bounds of the rural community of his youth, Sanford faced decisions about whom to trust with a militia’s gun and a citizen’s vote. He could shift from his principles toward political compromise, as in restricting black male suffrage and in the removal of Indians from their ancestral lands.

In this book, Sanford is revealed as a wealth-seeking lawyer and officeholder who contributed to the expansion of democratic rights and responsive government in the Early Republic. In doing so, he proved to be a reluctant reformer who deserves a place in our public memory.
Some endorsements:

“With this accessible biography, historian Ann Sandford rescues the public life of an influential New York politician in the days of Thomas Jefferson and Andrew Jackson. We now know why Nathan Sanford deserves a valued place in the history books of the nation.” — Alair Townsend, former deputy mayor, City of New York

“Ann Sandford’s lively and fascinating biography of her distant cousin provides significant insight into the social and political environment that established New York as the center of nineteenth-century commerce and intellectual ferment. Reluctant Reformer is an extremely good read for anyone interested in New York’s rich history.” — Hon. Helen E. Freedman, retired New York Supreme Court Justice

“New Yorkers played a major role in politics after the American Revolution. They helped to establish many of the traditions and institutions which are the foundation of today’s Republic. We know many of these New Yorkers from our history books (Alexander Hamilton, Aaron Burr, Dewitt Clinton, and Martin Van Buren). In her riveting biography Reluctant Reformer Ann Sandford reminds us that American history is not just the result of these well-known figures, but the effort of an entire generation of leaders. She tells us the unsung story of Nathan Sanford, her cousin, a lawyer/politician from Bridgehampton. She recounts his service as US Attorney, State Legislator, US Senator, and Vice Presidential candidate in the nineteenth century. We see issues such as slavery and a citizen’s right to vote through the eyes of a politician who had to confront them in America’s formative years. This book provides great insights not only into Nathan Sanford, the leader, but also politics in early America.” — New York State Assemblyman Fred W. Thiele

Thursday, December 28, 2017

Thiruvengadam on the Indian Constitution

Out this month with Hart is The Constitution of India: A Contextual Analysis by Arun K. Thiruvengadam, Azim Premji University. The book takes a historical approach to understanding India's Constitution. From the press: 
Media of The Constitution of India
This book provides an overview of the content and functioning of the Indian Constitution, with an emphasis on the broader socio-political context. It focuses on the overarching principles and the main institutions of constitutional governance that the world's longest written constitution inaugurated in 1950. The nine chapters of the book deal with specific aspects of the Indian constitutional tradition as it has evolved across seven decades of India's existence as an independent nation. Beginning with the pre-history of the Constitution and its making, the book moves onto an examination of the structural features and actual operation of the Constitution's principal governance institutions. These include the executive and the parliament, the institutions of federalism and local government, and the judiciary. An unusual feature of Indian constitutionalism that is highlighted here is the role played by technocratic institutions such as the Election Commission, the Comptroller and Auditor General, and a set of new regulatory institutions, most of which were created during the 1990s. A considerable portion of the book evaluates issues relating to constitutional rights, directive principles and the constitutional regulation of multiple forms of identity in India. The important issue of constitutional change in India is approached from an atypical perspective. 
The book employs a narrative form to describe the twists, turns and challenges confronted across nearly seven decades of the working of the constitutional order. It departs from conventional Indian constitutional scholarship in placing less emphasis on constitutional doctrine (as evolved in judicial decisions delivered by the High Courts and the Supreme Court). Instead, the book turns the spotlight on the political bargains and extra-legal developments that have influenced constitutional evolution. 
Written in accessible prose that avoids undue legal jargon, the book aims at a general audience that is interested in understanding the complex yet fascinating challenges posed by constitutionalism in India. Its unconventional approach to some classic issues will stimulate the more seasoned student of constitutional law and politics.
Further information is available here

Wednesday, December 27, 2017

Fellowships at the University of Texas at Austin

[We have the following announcement. Deadline: Jan.15, 2018.]

The Institute for Historical Studies at the University of Texas at Austin's Department of History offers one-year residential fellowships for tenured and tenure-track scholars, as well as post-doctoral and independent scholars. The theme for 2018-19 is "Genealogies of Freedom":
The meaning of the word “freedom” is often taken for granted today, as if it means the same thing to everyone. This is true for the English term as well as for its equivalents in other languages. Yet the concept and practice of freedom have a rich and complex history, one that has been written, in Foucault’s phrase, on “entangled and confused parchments.” For its 2018-19 theme, the Institute for Historical Studies calls for projects that can help us understand the dynamic, shifting course of concepts of freedom over time and space. We seek an understanding that is attentive to disparity, contingency, and rupture, and that takes into account issues of language, religion, class, race, gender and sexuality.  Among the questions that might be considered: How is the freedom of one group dependent upon the “unfreedom” of others? How have social practices served to thwart legally mandated freedoms (as in post-abolition societies)? How have theology and ideology molded conceptualizations of freedom? When cultures have come into contact, benignly or violently, how have concepts of freedom been conveyed across cultural and linguistic barriers? 
We invite applications for resident fellows at all ranks. For more information about the institute's fellowship and application process, please visit:

Willinsky on intellectual property & learning

Product DetailsOut soon with the University of Chicago Press by John Willinsky, Stanford University is The Intellectual Properties of Learning: A Prehistory from Saint Jerome to John Locke. From the publisher: 
Providing a sweeping millennium-plus history of the learned book in the West, John Willinsky puts current debates over intellectual property into context, asking what it is about learning that helped to create the concept even as it gave the products of knowledge a different legal and economic standing than other sorts of property.
Willinsky begins with Saint Jerome in the fifth century, then traces the evolution of reading, writing, and editing practices in monasteries, schools, universities, and among independent scholars through the medieval period and into the Renaissance. He delves into the influx of Islamic learning and the rediscovery of classical texts, the dissolution of the monasteries, and the founding of the Bodleian Library before finally arriving at John Locke, whose influential lobbying helped bring about the first copyright law, the Statute of Anne of 1710. Willinsky’s bravura tour through this history shows that learning gave rise to our idea of intellectual property while remaining distinct from, if not wholly uncompromised by, the commercial economy that this concept inspired, making it clear that today’s push for marketable intellectual property threatens the very nature of the quest for learning on which it rests.
Further information is available here.

Tuesday, December 26, 2017

Methodological Divergence Between Legal History Subfields

As someone who has done some work on the legal history of at least three or four geographical regions (China, England, the United States, and, to a much lesser extent, Japan), I have often been struck by how dramatically these fields are diverging from each other in terms of methodology.  Increasingly, new studies in European and American legal history seem willing, even eager, to engage the social sciences and political theory (two of my colleagues, Sam Moyn and Nick Parrillo, are leading examples of this).  Correspondingly, they have sometimes taken on a distinctly institutionalist bent that was often absent in the 80s and 90s, when contextualization, deconstruction, and the emphasis of contingency were the dominant methodological keywords--in many ways, they still are, but it's hard to escape the impression that a moderate countermovement is emerging.  In comparison, East Asian legal history seems ever more committed to the old methodological mainstream, and has, if anything, been moving away from a brief moment in the 1990s when social scientific debates over moral economy and socioeconomic causation captured the imagination of the field.  Ironically, this comes at a moment when social scientists are turning their attention to legal history as a core explanatory factor of East Asian economic development.

But why?  The most obvious and perhaps best answer is that these fields simply develop in different ways, and at different speeds.  If one has to go a bit deeper than that general truism, then it is worth remembering that East Asian history as a whole was somewhat slower than European and American history to embrace things like "the linguistic turn" and socio-cultural history in the first place, so perhaps it shouldn't be surprising that it has also been slower to move beyond them.  Insofar as non-Western historiography (lamentably) still takes its theoretical and methodological cues from Western historiography, there is usually a lag of several years, sometimes decades, between the two sides.

Nonetheless, there are at least two other institutional factors that are worth considering.  The first is the role of law schools in shaping methodology: critical legal studies has, in general, been on the decline in American legal academia since the 1980s, whereas the social sciences, and especially economics, have become dominant.  There continue to be, of course, many challenges to the hegemony of law and economics, but those challenges are now far more likely to be rooted in some other branch of social science, or in philosophy and political theory, than in some sort of critical method.  Insofar as American law schools continue to exert significant intellectual influence on the study of American and, to a lesser extent, European legal history, this has likely pushed those fields towards more engagement with theory and modeling.  In comparison, Asian legal history has virtually no representation in American legal academia, and is therefore largely immune from its methodological trends.  East Asian, and especially Chinese, law schools do employ a large number of legal historians who study local institutions, but are much less theoretically minded in general, and correspondingly exert relatively little methodological influence over historical research.

The second factor is the nature of the job market.  Compared to American and European history, the overall job market for Chinese history, including legal history, has been very robust over the past decade and a half, especially if we count academic jobs in Asia (many of which encourage teaching and writing in English).  The overall decline of societal interest in American and European history has quite possibly placed greater pressure on those fields to, essentially, justify their own existence, and therefore to engage more aggressively with broader questions of socioeconomic and political causation.  In comparison, Chinese historians have enjoyed a mini-hiring bubble, and have therefore faced significantly less existential pressure of this sort.  However, with the gradual saturation of both American and Chinese universities with a critical mass of such scholars, this could be coming to an end, in which case we may very well see the emergence of more interdisciplinary research on Chinese legal history.

ABF Fellowships

A bunch of fellowship deadlines with the American Bar Foundation are just around the corner. These are due Jan.15, 2018:
This opportunity is for undergraduates, and applications are due on Feb.15, 2018:
H/t: LSA

Sunday, December 24, 2017

Sunday Book Review Roundup

Whether you're in transit or staying in this weekend, there's an array of reviews to pique any legal historian's interest:

Mary Beard's Women & Power: A Manifesto  is reviewed in The Washington Post.  Also reviewed in the Post is The Gifted Generation: When Government Was Good by David Goldfield.

In The New York Review of Books is a review of Gareth Dale's new biography, Karl Polanyi: A Life on the LeftMike Wallace's Greater Gotham: A History of New York City from 1898 to 1919 is also reviewed in this issue.

The Economist joins a host of other publications in reviewing Yuri Slezkine's The House of Government: A Saga of the Russian Revolution,

Michelle McKinley's Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 is reviewed at H-Net.  Also at H-Net are reviews of Joseph Ranney's Wisconsin and the Shaping of American Law and John A. Haymond's The Infamous Dakota War Trials of 1862: Revenge, Military Law and the Judgment of History (links here and here).

In The Nation is a review of Anne Applebaum's Red Famine: Stalin's War on Ukraine.

In The New Republic is a review of Mary Beard's lecture-cum-treatise Women & Power: A ManifestoRichard White's The Republic for Which It Stands: The United States during Reconstruction and the Gilded Age, 1865-1896 is also reviewed.  Loaded: A Disarming History of the Second Amendment by
Roxanne Dunbar-Ortiz is also reviewed.

In History Today is a review of William Ashworth's The Industrial Revolution: The State, Knowledge and Global Trade.

In the New Statesman is a review of Beneath Another Sky: A Global Journey Into History by Norman Davis.

There are several interviews at the New Books Network that legal historians may be interested in giving a listen to.  Samantha Lomb discusses her Stalin's Constitution: Soviet Participatory Politics and the Discussion of the 1936 Draft Constitution.  Ashley Farmer speaks about her Remaking Black Power: How Black Women Transformed an Era.  Scholars interested in disaster citizenship may be interested in the interview with Christopher Church about his Paradise Destroyed: Catastrophe and Citizenship in the French Caribbean.

In the Los Angeles Review of Books is a review of Marked, Unmarked, Remembered: A Geography of American Memory, a joint endeavor by historian Alex Lichtenstein and photographer Andrew Lichtenstein.

On NPR's All Things Considered, Elaine Tyler May discusses her new Fortress America: How We Embraced Fear and Abandoned Democracy.  Also on NPR is a conversation with R. Marie Griffith about her Moral Combat: How Sex Divided American Christians and Fractured American Politics.

At Public Books is a review of Richard Rothstein's The Color of Law: A Forgotten History of How Our Government Segregated America.

Saturday, December 23, 2017

Slow Posting Ahead

Your humble LHB bloggers will be traveling through the start of the New Year.  We've banked some posts, but we might not respond as timely as we'd like to emails, comments, SSRN postings, and world events.  Do bear with us.  We'll be back.

Weekend Roundup

  • In Atlas Obscura, Jessica Leigh Hester was a very nice report on an exhibit on naturalization at the New-York Historical Society. 
  • A Vanderbilt press release and student newspaper note the conclusion of (ASLH President-Elect) Laura Benton's tenure as Dean of the College of Arts and Sciences.   
  • The First 100 Years Project: According to Legal Cheek, the two-year countdown has begun to “the centenary of the Sex Disqualification (Removal) Act 1919 which allowed women to practice law.”
  • The Mitchell Library hosts an event on “four of the grisliest murders of the 19th and 20th centuries” in Glasgow’s“square mile of murder.”  H/t: Glasgow Live.
  • The New York State Archives announces awards in support of historical research in its holdings. "The Larry J. Hackman Research Residency Program is intended to support advanced work on New York State history, government, or public policy by defraying travel-related research expenses."
  • ICYMI: An interview of St. Mary's Law School professor Michael Ariens on his book Lone Star Law, in the San Antonio Express-NewsJacob Heilburn on the West Coast Straussians as Donald Trump's Brains, in the NYRB.  Sarah Vowell’s suggested book gifts on “the increasingly reassuring 25th Amendment” for “the constitutional worrywarts and civic-minded hypochondriacs on your gift list.," in the NYT.  Also, a letter on the first deaf juror in Ireland.
  • As you start thinking about syllabi for the spring, you may want to have a look again at our earlier posts on teaching legal history through film--here and here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, December 22, 2017

Legal History at OAH 2018

We saw many panels of potential interest to legal historians at the annual meeting of the Organization of American Historians, to be held April 12-14, 2018, in Sacramento, including:

Taking the State Back Out: The Irrelevance of the Federal Government in the West, 1803-1861

New Perspectives on the History of Regulation: A Roundtable Discussion

Indigenous Legal Borderlands in North America

State of the Field: Abolition and Emancipation

Not My President: Questions of Legitimacy

Law, Resistance, and the Forms of Prison History: Roundtable on Rethinking the American Prison Movement

Law, Family, and the Logics of Commodification

State of the Field: Which Way Forward? A New Synthesis for Nineteenth-Century Women’s Rights

Black on Mercy and an Irish Murderess

Just out as a “first view” from Law and History Review on the Cambridge Core is “On the other hand the accused is a woman…”: Women and the Death Penalty in Post-Independence Ireland, by Lynsey Black:
Hannah Flynn was sentenced to death on February 27, 1924. She had been convicted of the murder of Margaret O'Sullivan, her former employer. Hannah worked for Margaret and her husband Daniel as a domestic servant, an arrangement that ended with bad feeling on both sides when Hannah was dismissed. On Easter Sunday, April 1, 1923, while Daniel was at church, Hannah returned to her former place of work, and killed 50-year-old Margaret with a hatchet. At her trial, the jury strongly recommended her to mercy, and sentence of death was subsequently commuted to penal servitude for life. Hannah spent almost two decades in Mountjoy Prison in Dublin, from where she was conditionally released on October 23, 1942 to the Good Shepherd Magdalen Laundry in Limerick. Although there is no precise date available for Hannah's eventual release from there, it is known that “a considerable time later,” and at a very advanced age, she was released from the laundry to a hospital, where she died. The case of Hannah Flynn, and the use of the Good Shepherd Laundry, represents an explicitly gendered example of the death penalty regime in Ireland following Independence in 1922, particularly the double-edged sword of mercy as it was experienced by condemned women.

Hasegawa on Crime & Punishment in the Russian Revolution

Tsuyoshi Hasegawa, UC Santa Barbara, has published Crime and Punishment in the Russian Revolution: Mob Justice and Police in Petrograd with Harvard University Press. From the publisher: 
Cover: Crime and Punishment in the Russian Revolution in HARDCOVERRussians from all walks of life poured into the streets of the imperial capital after the February Revolution of 1917, joyously celebrating the end of Tsar Nicholas II’s monarchy. One year later, with Lenin’s Bolsheviks now in power, Petrograd’s deserted streets presented a very different scene. No celebrations marked the Revolution’s anniversary. Amid widespread civil strife and lawlessness, a fearful citizenry stayed out of sight.
In Crime and Punishment in the Russian Revolution, Tsuyoshi Hasegawa offers a new perspective on Russia’s revolutionary year through the lens of violent crime and its devastating effect on ordinary people. When the Provisional Government assumed power after Nicholas II’s abdication, it set about instituting liberal reforms, including eliminating the tsar’s regular police. But dissolving this much-hated yet efficient police force and replacing it with a new municipal police led rapidly to the breakdown of order and services. Amid the chaos, crime flourished. Gangs of criminals, deserters, and hooligans brazenly roamed the streets. Mass prison escapes became common. And vigilantism spread widely as ordinary citizens felt compelled to take the law into their own hands, often meting out mob justice on suspected wrongdoers.
The Bolsheviks swept into power in the October Revolution but had no practical plans to reestablish order. As crime continued to escalate and violent alcohol riots almost drowned the revolutionary regime, they redefined it as “counterrevolutionary activity,” to be dealt with by the secret police, whose harshly repressive, extralegal means of enforcement helped pave the way for a Communist dictatorship.
Praise for the book:

Hasegawa is one of our leading historians of the February Revolution… [He] makes a strong case that the catastrophic social breakdown, most especially the violent crime that pervaded life in Petrograd after the collapse of the monarchy, ‘served as a stepping-stone toward the creation of the pervasive instrument of terror that became an integral part of the Communist dictatorship.’ -Joshua Rubenstein
This book makes a fundamental contribution to our understanding of the Russian Revolution by revealing the violent, chaotic lived experience of the revolution in the capital city. In a narrative full of colorful characters and stories, Hasegawa gives us a street-level view of the collapse of state authority that cleared the way for the Bolshevik seizure of power. -Eric Lohr
Hasegawa addresses the very important, largely ignored thus far, role of crime and the breakdown of social order and public safety. In doing so he changes the way we think and write about the Russian Revolution, making this one of the more original things I have seen in a very long time. -Rex Wade
Further information is available here.  

Thursday, December 21, 2017

Lewis on Gender Reassignment Surgery

The latest advance alert from the American Journal of Legal History is The Lawfulness of Gender Reassignment Surgery, by Penney Lewis, King’s College, London:
In the common law world, both the medical and legal professions initially considered gender reassignment surgery to be unlawful when first practised and discussed in the first half of the twentieth century. While most medical procedures are covered by the medical exception to the law governing serious offences against the person, many doctors and the lawyers they consulted doubted that this exception applied to gender reassignment surgery. In this article I trace the differing and changing interpretations of the medical exception as applied to gender reassignment surgery, and the shift towards legal acceptance in the two common law jurisdictions that led the way in both performing gender reassignment surgery and debating its legality, the United States and the United Kingdom. Although this shift occurred without formal legal intervention either through legislation or judicial decision (for example on a test case), inferences of legality drawn from related civil-law decisions bolstered the legal acceptance of gender reassignment surgery.

By increasing the suffering of patients and potential patients, the criminal law played both an important and primarily malign role prior to the eventual public, professional and legal acceptance of GRS. A real threat of criminal prosecution inhibited doctors from proceeding, distorted diagnoses and affected the kinds of procedures performed. After-care was expanded and manipulated to avoid the risk of prosecution or the appearance of unlawful surgery. By contrast, civil and administrative law played a more positive, albeit indirect, role in interpreting the medical exception and its application to gender reassignment surgery.

CFP: Social, Women’s, Labour and Radical Histories of International Law

[We have the following call for papers.]

The Local in the Universal: Social, Women’s, Labour and Radical Histories of International Law

The Interest Group on the History of International Law seeks abstracts for an Agora Proposal to be submitted to the European Society of International Law for its 2018 Conference on ‘International Law and Universality’ to be held 13–15 September 2018 in Manchester.

Universality’s flip side is the local and the particular. Locations are inescapable parts of any idea of universality. People are positioned in time, place, class, gender, race, ethnicity, indigeneity, and sexuality. These particulars formed familiar coordinates for locating different peoples within ideas of the universal; at the bottom of hierarchies — subsumed, excluded, ignored, erased.

The beginning of international legal history’s recent renaissance lay in exploring one assertion of universality — the liberal-democratic progressive narrative — and Europe as its location, and white male jurists as its particular. Later advances began to unpack the imperial, racial and class aspects of international law’s pasts, to understand how that universal spread to many localities. Some of the most recent and exciting historical projects have begun to draw our attention to the everyday, to materiality, objects, and archives beyond the legal, to tell personal, hidden and revealing histories of international law.

And yet, international legal history has so far been largely resistant to more radical forms of history that spurred so many of the main innovations in twentieth century historiography: social histories, women’s histories, labour histories, and histories of resistance and radicalism. Other themes at the 2018 ESIL Conference invite papers on universality and particularism’s histories at the juridical, conceptual and theoretical levels. This Agora seeks to expand that universe in the direction of something more local, personal and radical — to uncover histories that have been hidden within these longues durées and big trends.

Fitting with and interrogating the theme of universality, we seek papers that look for the local in the universal and the legal, from across the globe and from any period of historical inquiry. We are looking to share the hidden stories, archival gems, and accounts of everyday lives and movements that illuminate and contest the universal in new and powerful ways. It is particularly fitting that we do this in Manchester, a city that was one major birthplace of the industrial revolution, the labour movement, and the suffragette movement.

Issues arising within this theme might include, but are not limited to:
  • The role of women and women’s movements in constructing, challenging and critiquing the ideas of universality in international law.
  • Labour and international law: competing universals of solidarity and capitalism.
  • Race, ethnicity, indigeneity, intersectionality and the stories of challenging, rethinking and repurposing the universal.
  • Rebellions, radicalism and resistance: histories of popular debate, protests and discord over universality in law.
  • Shifting the ‘turn to biography’ in international legal histories: introducing the field to new lives and new, untold stories.
  • The significance of rural areas, cities, communities, migration and labour flows for rethinking law, the international, and the universal.
Submit an abstract of no more than 800 words, submitted by email to by 17 January 2018. No late submissions will be considered.  An interest group subcommittee will then blind review the abstracts and finalise the proposed format. The likely format will be a panel of 4 papers, but this may change depending on abstracts received. Selected abstracts will be sent, with the Agora theme, to the ESIL 2018 Conference organisers for their consideration by 31 January 2018. If the proposal is successful, full papers (minimum 3000 words) will need to be submitted by 15 July 2018 for circulation to other Agora participants.

We encourage proposals from scholars in any discipline — legal or not — and at any stage of career. Selection will be based on scholarly merit and with regard to producing an engaging workshop, without prejudice to gender, seniority, language or geographical location.

Please direct any questions to Martin Clark ( or Markus Beham (

O'Brien on "Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board"

New from the University Press of Kansas: Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation (Nov. 2017), by David M. O'Brien (University of Virginia). A description from the Press:
Brown v. Board of Education is widely recognized as one of the US Supreme Court’s most important decisions in the twentieth century. Robert H. Jackson, an associate justice on the case, is generally considered one of the Court’s most gifted writers. Though much has been written about Brown, citing the writing and remarks of the justices who participated in the 1954 decision, comparatively little has been said about Jackson or his unpublished opinion, which is sometimes even mistakenly taken as a dissenting opinion. This book visits Brown v. Board of Education from Jackson’s perspective and, in doing so, offers a reinterpretation of the justice's thinking, and of the Supreme Court's decision making, in a ruling that continues to reverberate through the nation’s politics and public life. 
Weaving together judicial biography, legal history, and judicial politics, Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board provides a nuanced look at constitutional interpretation, and the intersection of law and politics, from inside the mind of a justice, within the context of a Court deciding a seminal case. Through an analysis of six drafts of Jackson's unpublished concurring opinion, David M. O’Brien explores the justice’s evolving thoughts on relevant issues at critical moments in the case. His retelling of Brown presents a new view of longstanding arguments confronted by Jackson and the other justices over “original intent” versus a “living Constitution,” the role of the Court, and social change and justice in American political life. The book includes the final draft of Jackson’s unpublished opinion, as well as the Warren Court's opinions in Brown and in Bolling v. Sharpe, for comparison, along with a timeline of developments and decision making leading to the Court’s landmark ruling.
For more information--including nice advance reviews by Melvin Urofsky, Charles Zelden, and Robert Cottrol--follow the link.

A Roman Law & Legal History Job at KU Leuven

We've recently noted the following job listing:
The Faculty of Law and the Research Unit for Roman Law and Legal History [at KU Leuven] invite applications for a fulltime position as a member of the Senior Academic Staff in the field of legal history. The assignment consists of teaching in an academic context, scientific research and additional duties of an academic nature, along with those to the wider society.

Margolies & McClure on Transnational Frontiers

Transnational Frontiers of Asia and Latin America since 1800 (Hardback) book coverEdited by Jaime Moreno Tejada (Chulalongkorn University, Thailand) and Bradley Tatar (UNIST, South Korea), Transnational Frontiers of Asia and Latin America since 1800 (Routledge, 2017) includes two articles of legal historical interest.

The first is by Daniel S. Margolies, Virginia Wesleyan College: "Spatiality, jurisdiction, and sovereignty in early Latin American approaches to the Law of the Sea," 85-97. An excerpt:

Jurisdictional claims over oceanic spaces in the immediate postwar period deserve close attention, since the oceanic spaces proximate to sovereign coastlines were a central focus of global competition for control of seabed resources and the ability to construct and regulate the overall jurisdictional order of the post-World War II world system. Latin American nations were at the center of this moment of political-economic competition and legal innovation, particularly Mexico, Argentina, Chile, and Peru. These nations individually and forcefully pursued expansive sovereignty and jurisdictional claims on the offshore continental shelf....The purpose of this chapter is to explore the contingent involvement of...Latin American states in this project of reconceptualizing and restructuring global ocean spaces as new varieties of sovereign and jurisdictional space, or what can be conceptualized as new or freshly expanded state space. 
The second article is by Alastair McClure, McGill University: "State building and problematic geopolitical spaces in South Asia: The Himalayas and the extradition treaty of 1855," 98-110. A passage from the opening:
In the midst of...state building drives of the nineteenth century, the Himalayan border between colonial India and Nepal...remained a relatively unmanageable terrain...[As] ruling powers began to take steps towards modern statehood, the protection of trade, control of movement, and concerns surrounding rebellious networks became increasingly important issues. Once it was clear that neat lines of sovereignty could not be drawn across the Himalayan border, the region became a site of power play between these emerging neighboring states and the individuals that transgressed the thresholds. These issues of security and power consistently spilled over ill-defined boundaries as criminals and men of "bad character" resided in or traveled through this borderland to escape punishment....Piecing together information from the correspondence between the Resident of Nepal and the British Government of India, this chapter seeks to offer insight into the "specific cultures of governance" possessed by these states...The chapter will seek to outline how the priorities of Nepal and colonial India converged and clashed through attempts to pacify this region, particularly in relation to the formation of laws of extradition and the policing and maintenance of their borders.
Further information on the book is available here and on Google Books here

Wednesday, December 20, 2017

Washington History Seminar: Spring 2018

The Spring 2018 line-up is out for the Washington History Seminar at the Woodrow Wilson International Center for Scholars.  The seminar is jointly sponsored by the Wilson Center's History and Public Policy Program and National History Center of the American Historical Association.

January 8: Melvyn Leffler on Safeguarding Democratic Capitalism: U.S. Foreign Policy and National Security, 1920-2015

January 22: Sheryl Cashin on Loving: Interracial Intimacy in America and the Threat to White Surpremacy

January 29: Rebecca Erbelding on Rescue Board: The Untold Story of America’s Efforts to Save the Jews of Europe

February 2: Ibram Kendi on Stamped From the Beginning: The Definitive History of Racist Ideas in America

February 12: Andrew Demshuk on Demolition on Karl Marx Square: Cultural Barbarism and the People’s State in 1968

February 15 (Thursday): Vietnam: The Kissinger-Le Duc Tho Negotiations, August 1969-December 1973 with John Carland, George Herring, Winston Lord, and Steve Randolph

February 26: Xolela Mangcu on Nelson Mandela: The Aristocrat and the Revolution –A Historical Biography

March 5: John Lawrence on The Class of ’74: Congress After Watergate and the Roots of Partisanship

March 12: Steven Kotkin on Stalin: Waiting for Hitler, 1929-1941

March 19: Anne Fleming on City of Debtors: A Century of Fringe Finance

March 26: William Hitchcock on The Age of Eisenhower

April 2: A.G. Hopkins on American Empire: A Global History

April 9: Samuel Walker on Most of 14th Street Is Gone: The Washington, DC Riots of 1968

April 16: Steven Ross on Hitler in Los Angeles

April 23: Herrick Chapman on France’s Long Reconstruction: In Search of a the Modern Republic

April 30: Edward Ayers on The Thin Light of Freedom: The Civil War and Emancipation in the Heart of America

May 7: Jill Norgren on A Life in Law: Tales from 20th Century Women Lawyers

May 14: Elaine Weiss on The Woman's Hour: The Last Furious Fight to Win the Vote

May 21: Johann Neem on Democracy’s Schools: The Rise of Public Education in America

Ford, Jr., "Constance Baker Motley"

From the University of Alabama Press comes a new biography of Constance Baker Motley, by Gary L. Ford, Jr. (Lehman College). Here's how the Press describes Constance Baker Motley: One Woman's Fight for Civil Rights and Equal Justice under Law:
When the name Constance Baker Motley is mentioned, more often than not, the response is “Who was she?” or “What did she do?” The answer is multifaceted, complex, and inspiring. 
Constance Baker Motley was an African American woman; the daughter of immigrants from Nevis, British West Indies; a wife; and a mother who became a pioneer and trailblazer in the legal profession. She broke down barriers, overcame gender constraints, and operated outside the boundaries placed on black women by society and the civil rights movement. In Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice under Law, Gary L. Ford Jr. explores the key role Motley played in the legal fight to desegregate public schools as well as colleges, universities, housing, transportation, lunch counters, museums, libraries, parks, and other public accommodations. 
The only female attorney at the NAACP Legal Defense and Educational Fund, Inc., Motley was also the only woman who argued desegregation cases in court during much of the civil rights movement. From 1946 through 1964, she was a key litigator and legal strategist for landmark civil rights cases including the Montgomery Bus Boycott and represented Martin Luther King Jr. as well as other protesters arrested and jailed as a result of their participation in sit-ins, marches, and freedom rides. 
Motley was a leader who exhibited a leadership style that reflected her personality traits, skills, and strengths. She was a visionary who formed alliances and inspired local counsel to work with her to achieve the goals of the civil rights movement. As a leader and agent of change, she was committed to the cause of justice and she performed important work in the trenches in the South and behind the scene in courts that helped make the civil rights movement successful.
A few blurbs:
“Gary L. Ford Jr.’s well-researched book is more than a biography of Motley’s extraordinary life. It is an argument for recognizing the tenacious, courageous role African American women like her played in advancing the cause of civil rights and equal justice for all. To witness Judge Motley in action was to be fortified and astounded. Now, thanks to Ford, a new generation can bear witness to her immense talents.”
—Henry Louis Gates, Jr. 
“I had no idea how critical Constance Baker Motley’s role was until I read this book. Its insights about the way in which she, more than the males at the Legal Defense Fund, would get on a plane and head south time and again, into dangerous situations, defying racial and gender conventions, defying governors, legislatures, judges, and white mobs, persisting through every obfuscation, to make the Brown edict real, were a revelation!”
—Sheryll Cashin
More information is available here.

Tuesday, December 19, 2017

Maxwell on indigenous child-removal policies

Krista Maxwell has published "Settler-Humanitarianism: Healing the Indigenous Child-Victim," Comparative Studies in Society and History 59:4 (2017), 974-1007. Here is the abstract: 
Victims of colonial, Indigenous child-removal policies have attracted public expressions of compassion from Indigenous and settler-state political leaders in Canada since the 1990s. This public compassion has fueled legal and political mechanisms, leveraging resources for standardized interventions said to “heal” these victims: cash payments, a truth-telling forum, therapy. These claims to healing provide an entry-point for analyzing how and why the figure of the Indigenous child-victim, past and present, is morally and politically useful for settler-states and their public cultures. I use the formulation of “settler-humanitarianism” to express how liberal interventions of care and protection, intended to ameliorate Indigenous suffering, align with settler-colonialism's enduring goal of Indigenous elimination (Wolfe 2006). Removal of Indigenous children was integral to the late nineteenth-century formation of the Canadian and Australian settler-states. Missionaries and colonial administrators represented these practices as humanitarian rescue from depraved familial conditions. Settler-humanitarians have long employed universalizing moral registers, such as “idleness” and “neglect,” to compel state interventions into Indigenous families. More recently, “trauma” has emerged as a humanitarian signifier compelling urgent action. These settler-humanitarian registers do political work. Decontextualized representations of Indigenous children as victims negate children as social actors, obscure the particularities of how collective Indigenous suffering flows from settler-colonial dispossession, and oppose children's interests with those of their kin, community, and nation. I analyze how and why Aboriginal healing as settler-humanitarianism has been taken up by many Indigenous leaders alongside settler-state agents, and examine the ongoing social and political effects of the material and discursive interventions it has spawned.
Further information is available here.

Hinnershitz on "Asian American Civil Rights in the South"

New from the University of North Carolina Press: A Different Shade of Justice: Asian American Civil Rights in the South (Oct. 2017), by Stephanie Hinnershitz (Cleveland State University). A description from the Press:

In the Jim Crow South, Chinese, Filipino, Japanese, and, later, Vietnamese and Indian Americans faced obstacles similar to those experienced by African Americans in their fight for civil and human rights. Although they were not black, Asian Americans generally were not considered white and thus were subject to school segregation, antimiscegenation laws, and discriminatory business practices. As Asian Americans attempted to establish themselves in the South, they found that institutionalized racism thwarted their efforts time and again. However, this book tells the story of their resistance and documents how Asian American political actors and civil rights activists challenged existing definitions of rights and justice in the South. 
From the formation of Chinese and Japanese communities in the early twentieth century through Indian hotel owners’ battles against business discrimination in the 1980s and ’90s, Stephanie Hinnershitz shows how Asian Americans organized carefully constructed legal battles that often traveled to the state and federal supreme courts. Drawing from legislative and legal records as well as oral histories, memoirs, and newspapers, Hinnershitz describes a movement that ran alongside and at times intersected with the African American fight for justice, and she restores Asian Americans to the fraught legacy of civil rights in the South.
A few blurbs:
“A Different Shade of Justice is a marvelous accomplishment of shaping a mountain of archival work into a set of narratives that help depict Asian American struggles for civil rights in the South, stories that have, until now, been largely invisible in civil rights history.”—Daryl Joji Maeda 
“Accessible, well written, and thoroughly researched, this study elucidates a little-known archive of legal cases involving Asian Americans in the U.S. South. Demonstrating how Asians challenged racial discrimination through the court system, Hinnershitz’s innovative scholarship expands our notions of civil rights and racial justice under legal segregation and its legacy.”--Leslie Bow
More information is available here.

Monday, December 18, 2017

Johnson on New York's Ratification of the Constitution

Calvin H. Johnson, University of Texas School of Law, has posted “Impost Begat Convention": Albany and New York Confront the Ratification of the Constitution, which appears in the Albany Law Review 80 (2016/2017): 1489-1522:
The critical framework for the 1788 debates over ratification of the U.S. Constitution by New York was set by the debates over whether the tax on imports through New York harbor, then called the “impost,” would be a national or state tax. New York had vetoed the 1783 proposal to allow a national impost. The defeated proponents of the 1783 impost became the Federalists in favor of the Constitution in 1788 in New York, and the party that had defeated the 1783 impost remained intact to become the Anti-Federalists in opposition to the Constitution in 1788. In the end a group of delegates elected as Anti-Federalists, most prominently Melancton Smith, the New York delegate to the Articles of Confederation Congress, moved over to ratification to allow New York to avoid secession from the Union. “United We Stand, Divided We Fall” won both the Revolution and the Constitution.

The New York debates serve as synecdoche for the ratification debates as a whole. The first mission of the Constitution was to give Congress a tax of its own to maintain payments on the debts of the Revolutionary War. In the next and inevitably coming war, Congress would need to borrow from the Dutch again. The Confederate form of government, a mere league of friendship among sovereign states, would plausibly have survived, had New York not vetoed the 1783 impost. As Hamilton put it: “Impost begat Convention.”

This article was written for a panel before the Society of the History of the Early American Republic in celebration of publication of the five volumes on the New York debate in the magisterial Documentary History of the Ratification of the Constitution. The publication has expanded the available archives and our understanding of New York Ratification.

Gainford on the Birth of Female Criminality

Amy Gainford, University of Leeds, School of Law, has posted Mad, Bad or Sad? The Historical Persecution of Women and the Birth of Female Criminality:
Throughout history the notion of the ‘female criminal’ has been something of a taboo, an almost morbid curiosity to male dominated societies. As such through misogynist crusades they have attempted to eradicate the world of any women who did not meet the criteria that society dictates. Women who were outspoken and passionate were condemned. Numerous methods were employed to keep women in their place. From the early persecution of witch-hunts in the 15th-17th century to the medicalization of their melancholy in the Victorian era, women were suppressed. Early criminologists ‘discovered’ the biological elements of female criminality and contemporary Criminal Justice System and the mainstream media perpetuated this image. In doing so the disdain from the general public towards criminal women has grown. Often the combination of public hatred and the media’s macabre portrayal creates something of a modern day witch-hunt against these women. Perhaps this is because events of the past ‘demonstrate’ women behaving badly or because of misogyny so deeply ingrained within out society that we cannot escape it. These beliefs that women are fundamentally, biologically evil have seeped into mainstream societal systems that aim to serve the people but instead persecute an entire sub-section of society.

Sunday, December 17, 2017

Sunday Book Review Roundup

Looking for something to put on that Christmas list?  Here are some suggestions for your favorite lil' legal historian ...

In the NY Times, Jeffrey Frank reviews The Gifted Generation: When Government Was Good by historian David Goldfield, who “points to the risks of government’s increasingly recessive role, and [makes] one worry how it will play out by the time the millennials become grandparents.” There’s a similar theme to the Times’ review of Robert Dallek’s Franklin D. Roosevelt: A Political Life, which admits that “Dallek’s is a workmanlike addition to the literature on Roosevelt,” but offers “little to distinguish it from the many excellent biographies that came before it and on which it draws.”

In The Nation, Kevin Kruse reviews Linda Gordon’s The Second Coming of the KKK, engaging with the historian’s quest for “an ever-elusive objectivity,” and coming out on the side of Gordon’s opinionated--if measured--take on the Klan’s Americanism. As I mentioned last week, Adam Hoschild reviewed the book in the NYRB as well.

In the Washington Post, but behind a paywall, Herb Boyd reviews The Dawn of Detroit by Tiya Miles, “a book that will make you rethink slavery and the North.”

The Guardian features a review of The House of Government by the “puzzlingly esoteric, thrillingly fervent” Yuri Slezkine, which “aims to capture the rise and fall of Bolshevism through a building and its residents,” and argues--fascinatingly but a bit untenably (and puzzlingly and thrillingly fervently)--that the “the problem with Bolshevism is that it was not totalitarian enough.” The same publication features Mark Mazower’s review of The Internationalists and Their Plan to Outlaw War, which “is a marvellously readable book that makes what could have been arcane matters of international jurisprudence comprehensible and lively,” despite ignoring the Bolshevik alternative in its triumphalist narrative.

In the LA Review of Books, Nicholas Tampio reviews Democracy's Schools: The Rise of Public Education in America by Johann N. Neem, which “defends the American public school system by recovering the ideals of its founders,” including Horace Mann, Reverend William Ellery Channing, Catharine Beecher, and other antebellum advocates of the United States’s common schools. Suzanne Fischer also reviews Hans Sloane and the Origins of the British Museum, in which James Delbourgo offers a “detailed excavation of the ways Sloane’s collections required the knowledge, labor, and suffering of enslaved people.” In Young Radicals: In the War for American Ideals, Jeremy McCarter serves up a “well-written and compelling introduction to the lives of five young radicals who embarked upon a similar journey of resistance one century ago.” According to reviewer Tom Gallagher, McCarter’s five were shaped by global conflict and the threat of war service.

The Federal Lawyer includes a book review of The Murder of William of Norwich: The Origins of the Blood Libel in Medieval Europe by E. M. Rose. The book tracks the “upsurge in blood libel accusations” after they arose in medieval England in 1140, and connects the accusations with various debt crises experienced by the upper royalty in Medieval Europe.

The New Books Network features more Legal History reviews than this blogger can listen to, especially with Eminem’s new album and all. Here are a few suggestions:

Saturday, December 16, 2017

Weekend Roundup

  • The Franklin D. Roosevelt Presidential Library and Museum will host a screening of "Witness: The Legacy of Heart Mountain" on Sunday, December 17, 2017.  “The program will begin at 1:00 p.m. in the Henry A. Wallace Center at the FDR Presidential Library and Home. A Q&A with filmmaker David Ono will follow the screening. This is a free public event."
  • Submit Your Proposals for the 2018 American Political Science Association's Annual Meeting by January 16th!  The theme: Democracy and Its Discontents.
  • The Tobin Project is looking for “talented and motivated individuals to join our collaborative and entrepreneurial team.”  It is “currently accepting applications to the following positions: Research Analyst, Economic Inequality Research Analyst, and Case Writer.”  Btw, check out this notice of panels on Tobin’s edited volume Corporations and American Democracy on November 15-16 in Baltimore and Washington, D.C.
  • Update: We posted earlier about the upcoming conference on religious freedom in South Asia (Jan.8, 2018 in Washington DC, right after the AHA). That conference website is now up here.
  • A still later update: Mary Beth Tinker, at a reenactment of the argument of her free speech for high school students, sponsored by the Historical Society of the DC Circuit.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.