Saturday, April 21, 2018

Weekend Roundup

  • DC Public Libraries are digitizing and publishing online, “on an ongoing basis,” the photo archive of the Washington Star.  The first batch are images of “the 1968 uprisings” after the assassination of Dr. Martin Luther King.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 20, 2018

Maxeiner's "Failure of American Methods of Lawmaking"

James R. Maxeiner, University of Baltimore, has posted Failures of American Methods of Lawmaking in Historical and Comparative Perspectives, with the Cambridge University Press:
In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and would be a solution for the American legal system as well.
In an abstract, posted with the book’s front matter on SSRN, Professor Maxeiner elaborates:
America’s eighteenth-century founders expected that the people of the United States would establish a wise and happy government of written laws adopted with a single eye to reason and the good of those governed. Few Americans today would say that America’s lawmaking fulfills the founders’ expectations. Dysfunctional is the word that many Americans use to describe their methods of lawmaking. The legal professions tell the American people that they are doing the best the can. They tell a myth of common law. They say the people should rejoice, and not complain, when America’s judges make law, for such lawmaking makes America’s laws exceptional. It is how America has always made law, they say. Judges make better laws than legislatures, they claim.

The historical part of this book explodes the common law myth of dominance of judge-made law in American history. Using sources hardly accessible until 21st century digitization, it shows that statutes have had a much greater role in American law than the legal professions acknowledge.

The comparative part of this book dismantles the claim that judges make better law then legislatures. It shows how the methods of American legislative lawmaking, owing to neglect, have failed to keep up with their counterparts abroad, and have thus denied the people the government of laws that the founders expected.

This book shows how such a system works in Germany and would be a solution for the American legal system as well
TOC after the jump.

An Essay Collection on Blackstone and His Critics

Just out from Hart is Blackstone and His Critics, edited by Anthony Page, University of Tasmania, and Wilfrid Prest, emeritus, University of Adelaide:
William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014).

This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.
Hart tells us it will sell the volume to LHB readers at a 20-percent discount.

TOC after the jump.

Malka on "Policing Baltimore in the Age of Slavery and Emancipation"

New from the University of North Carolina Press: The Men of Mobtown: Policing Baltimore in the Age of Slavery and Emancipation (March 2018), by Adam Malka (University at Buffalo, SUNY). A description from the Press: 
What if racialized mass incarceration is not a perversion of our criminal justice system’s liberal ideals, but rather a natural conclusion? Adam Malka raises this disturbing possibility through a gripping look at the origins of modern policing in the influential hub of Baltimore during and after slavery’s final decades. He argues that America’s new professional police forces and prisons were developed to expand, not curb, the reach of white vigilantes, and are best understood as a uniformed wing of the gangs that controlled free black people by branding them—and treating them—as criminals. The post–Civil War triumph of liberal ideals thus also marked a triumph of an institutionalized belief in black criminality.

Mass incarceration may be a recent phenomenon, but the problems that undergird the “new Jim Crow” are very, very old. As Malka makes clear, a real reckoning with this national calamity requires not easy reforms but a deeper, more radical effort to overcome the racial legacies encoded into the very DNA of our police institutions.
A few blurbs:
The Men of Mobtown tells a new and significant story of policing, one that accounts both for the rise of men in uniforms and for the role that private citizens, often constituted as mobs, played in regulating life on the streets of a teeming port city. Malka demonstrates how white supremacy and racism provided a cover and a rationalization for the acts of men who aimed to marginalize, if not wholly suppress, the ambitions and the lives of black city dwellers.”--Martha S. Jones 
“In this provocative history of policing in nineteenth-century Baltimore, Adam Malka demonstrates that the vexed relationship between African Americans and law enforcement is nothing new. Malka persuasively demonstrates that modern policing, never mind the prison industrial complex, was built on an older tradition of white male vigilantism disproportionately directed at African Americans. Men of Mobtown provides a much-needed historical perspective on contemporary racial injustice.”—Stephen Mihm
More information is available here.

h/t: Michael Meranze

Thursday, April 19, 2018

Alexandrowicz on international law

David Armitage, Harvard University and Jennifer Pitts, University of Chicago, have co-edited C. H. Alexandrowicz's The Law of Nations in Global History, published with Oxford University Press. From the publisher:
Cover for 

The Law of Nations in Global History

The history and theory of international law have been transformed in recent years by post-colonial and post-imperial critiques of the universalistic claims of Western international law. The origins of those critiques lie in the often overlooked work of the remarkable Polish-British lawyer-historian C. H. Alexandrowicz (1902-75). This volume collects Alexandrowicz's shorter historical writings, on subjects from the law of nations in pre-colonial India to the New International Economic Order of the 1970s, and presents them as a challenging portrait of early modern and modern world history seen through the lens of the law of nations.
The book includes the first complete bibliography of Alexandrowicz's writings and the first biographical and critical introduction to his life and works. It reveals the formative influence of his Polish roots and early work on canon law for his later scholarship undertaken in Madras (1951-61) and Sydney (1961-67) and the development of his thought regarding sovereignty, statehood, self-determination, and legal personality, among many other topics still of urgent interest to international lawyers, political theorists, and global historians.
Praise for the book:

"Charles Henry Alexandrowicz (1902-1975) was among the few who recognized the presence of multiple international, or regional, legal systems on the planet co-terminus with European international law. That a superhuman effort was required to trace his numerous publications is further evidence of how valuable this collection is." - Jus Gentium

Table of Contents after the jump.

Goluboff Elected to American Academy of Arts & Sciences

The American Academy of Arts & Sciences has announced its newly elected members. Among them is legal historian Risa Goluboff (University of Virginia Law). Here's an excerpt from the University of Virginia press release:
Goluboff, a nationally renowned legal historian who became the first female dean of UVA Law in 2016, is also the first woman on the school’s faculty to be elected to the academy. Her scholarship and teaching focuses on American constitutional and civil rights law, and especially their historical development in the 20th century. She is an affiliated scholar at the Miller Center and a faculty affiliate at the Carter G. Woodson Institute for African-American and African Studies. She was elected to the American Law Institute in 2017. 
“It’s a privilege to be elected to the academy and to join such an esteemed group of scholars,” Goluboff said. “I’m deeply honored. I’m also thankful for the support the Law School and UVA have given me over the years, which has been critical to my growth as a legal historian and scholar.”
Congratulations to Risa Goluboff!

Wednesday, April 18, 2018

Property, Personhood, and Picking Favorites

In my teaching, I often make a point to use—and discuss—the research I did for Black Litigants in the Antebellum American South (the cases, findings, implications, and so on). One question that undergraduates, in particular, almost always ask me is: “what is your favorite case?”
Photo by the author

My response varies. I have many “favorites.” Sometimes my answer involves evidence that felt particularly hard won, such as one of the cases I found amongst the bugs and rats in a Plaquemine, Louisiana, storage shed (research I mentioned in a previous post). It involved a free black man who chased a white man on horseback for miles, screaming insults and waving a loaded pistol. Sometimes my response to the “favorites” question involves the women of the Belly family, who took to the courts with regularity to protect and convey their property, to enforce the terms of their contracts, and to adjudicate a number of other disputes. They even sued their husbands. But most often my answer involves the case that I used to open the book—the case that I see as emblematic of the larger points about personhood and property that I make throughout. This case involved an assault, and I will share excerpts of my discussion of this lawsuit below.
Photo by the author
On Sunday, September 6, 1857, two white men, William Calmes and John Buford, violently seized, whipped, and attempted to kidnap Valerien Joseph in Pointe Coupee Parish, Louisiana. Empowered by their duties as slave patrollers, Calmes and Buford entered the property of another white man in search of runaway slaves. There, they came upon Joseph, a free black carpenter engaged in his work. Although Joseph had not given them any reason to believe he was a runaway, and despite the protests of onlookers and Joseph’s own declarations that he was a free man, Calmes and Buford grabbed Joseph and attempted to carry him away. When others tried to intervene, Calmes yelled that he “would do what he pleased,” for he intended to seize and then sell Joseph as a slave. In order to subdue their prey, they took turns beating him in the head with a large stick. Then Calmes removed Joseph’s clothing, forced him on his belly, and whipped his naked body with a cowhide “forty to fifty times” while an armed Buford stood guard to prevent others from assisting their bloodied captive. Eventually the onlookers helped pull Joseph from the clutches of his captors, and he managed to escape.
Five days after the attack, Joseph sued Calmes and Buford in the Ninth Judicial District Court, a local trial court held in Pointe Coupee Parish. He demanded damages: the “illegal and wicked acts of said Calmes and Buford,” Joseph insisted, “have caused your petitioner damage to the amount of fifteen hundred dollars.” To that end, he requested that the white judge, A. D. M. Haralson, summon his attackers to court for a public accounting of their offenses against him, and “after due course of law,” “they be condemned” to pay him $1,500, plus interest and court costs. The defendants denied the charges against them, and the case went to trial. The court subpoenaed the testimony of several witnesses, and each verified Joseph’s claims: one white man testified that Calmes and Buford “fell upon Joseph” and “pulled him out of the yard and struck him on the head with a stick.” Another white man (in charge of organizing slave patrols) testified that Calmes and Buford were not in fact on patrol that day. And still other white witnesses relayed that Joseph was “born free” of an Indian mother and a black father. After hearing the evidence, a white jury found for the plaintiff and issued a judgment for damages: $300 from Calmes and $200 from Buford. The judge denied the defendants’ request for a new trial and ordered the men to pay their debt. Both men also faced criminal charges for Joseph’s attack, but the outcome is unknown.
Photo by the author
That a black man would take his white attackers to court in the first place seems paradoxical in itself. That he would win is yet more surprising. But perhaps more interesting still is how Joseph framed his suit.
Joseph did not begin his petition to the court with a description of the violence inflicted upon him (as one might in a lawsuit for damages). Instead, he framed the case as a debt action, using the language of property and obligation. Calmes and Buford, he insisted, owed him money: “The petition of Valerien Joseph, a free man of color, residing in the parish, Respectfully shows,” he began, “That William Calmes and [John] Buford, residents of the parish aforesaid, are justly and legally indebted, in solido, unto him in the sum of fifteen hundred dollars, with interest of 50% from judicial demand until paid.” They owed him this amount, moreover, for their illegal assault on his property: his body.
The jury agreed and awarded him $500 for his trouble. Buford paid the $200 shortly after the trial, but Calmes ignored the judgment. When the amount went unpaid over a year later, Joseph initiated additional legal proceedings against him. This time, Judge Haralson ordered the sheriff to seize Calmes’s property, sell it at auction, and settle his obligation to Joseph. Although Calmes absconded to Mississippi before the court could seize his property, Joseph continued to press his case. He made another white man, John A. Warren, a party to the lawsuit and pursued garnishment proceedings against him. Warren possessed property belonging to Calmes, property that could be seized and sold. When Warren failed to attend court, Joseph received a judgment against him (in default). On April 20, 1860, mere months before Louisiana left the Union to join a slaveholders’ republic, the court ordered Warren to pay Joseph $350 (the original amount plus court costs and interest). When Warren did not pay, the sheriff seized his property, sold it at auction, and provided Joseph with the proceeds. One year later, almost to the day, shots would be fired at Ft. Sumter initiating a war over the right to hold black people as property.
At work in Joseph’s “demand” are a series of interlocking understandings about the relation of one’s property to one’s person, both in the sense of one’s physical body and in the more abstract sense of one’s ability to be seen at law as someone who “counts” such that he or she can make a claim. These relations between one’s person, one’s property, and one’s legal claims form the subject of this book. To properly understand Joseph’s suit, why he went to court, why he insisted on describing assault as a matter of debt and obligation, why he won, and why he eventually managed to have a white man’s property placed on the auction block, requires that we re-evaluate our understandings of the relationship between black people, claims-making, racial exclusion, and the legal system in the antebellum South more broadly.
This case raises questions about who had access to the power of the law and under what circumstances. Calmes and Buford certainly expected that they did. After all, they were white men, men whose race and status gave them claims to legal and political standing. They were slave patrollers, empowered by state statute to detain possible runaways. As slaveholders, they held property rights in black people. Thus, with the law on their side, they might then get away with kidnapping and selling a free black man. Their property, however, ended up on the auction block. Joseph, by contrast, harnessed the power of the state to serve his interests and to do his bidding: he sued two white men, bound them in obligation to him through debt, and compelled the courts to seize white property and sell it at auction to settle his claims and compensate him for his degradation. The court record of the slave South is rife with stories like Joseph’s.

Finkelman & Kennon, eds., "Congress and the People's Contest: The Conduct of the Civil War"

New from Ohio University Press: Congress and the People’s Contest: The Conduct of the Civil War, edited by Paul Finkelman (President, Gratz College) and Donald R. Kennon (former chief historian and vice president of the United States Capitol Historical Society). A description from the Press:
The American Civil War was the first military conflict in history to be fought with railroads moving troops and the telegraph connecting civilian leadership to commanders in the field. New developments arose at a moment’s notice. As a result, the young nation’s political structure and culture often struggled to keep up. When war began, Congress was not even in session. By the time it met, the government had mobilized over 100,000 soldiers, battles had been fought, casualties had been taken, some civilians had violently opposed the war effort, and emancipation was under way.

This set the stage for Congress to play catch-up for much of the conflict. The result was an ongoing race to pass new laws and set policies. Throughout it all, Congress had to answer to a fractured and demanding public. In addition, Congress, no longer paralyzed by large numbers of Southern slave owners, moved forward on progressive economic and social issues—such as the transcontinental railroad and the land grant college act—which could not previously have been passed.

In Congress and the People’s Contest, Paul Finkelman and Donald R. Kennon have assembled some of the nation’s finest scholars of American history and law to evaluate the interactions between Congress and the American people as they navigated a cataclysmic and unprecedented war. Displaying a variety and range of focus that will make the book a classroom must, these essays show how these interactions took place—sometimes successfully, and sometimes less so.
Contributors to the volume: L. Diane Barnes, Fergus M. Bordewich, Jenny Bourne, Jonathan Earle, Lesley J. Gordon, Mischa Honeck, Chandra Manning, Nikki M. Taylor, and Eric Walther.

More information is available here

Tuesday, April 17, 2018

Bodenhamer's "Very Short Introduction" to the U.S. Constitution

The latest volume of interest to constitutional and legal historians in Oxford’s “Very Short Introduction” series is The U.S. Constitution: A Very Short Introduction, by David J. Bodenhamer, Indiana University-Purdue University, Indianapolis.  (We're sending our review copy to the President.)
Though the U.S. Constitution was ratified in 1788, its impact on our lives is as recent as today's news. Claims and counterclaims about the constitutionality of governmental actions are a habit of American politics. This document, which its framers designed to limit power, often has made political conflict inevitable. It also has accommodated and legitimized the political and social changes of a vibrant, powerful democratic nation. A product of history's first modern revolution, the Constitution embraced a new formula for government: it restrained power on behalf of liberty, but it also granted power to promote and protect liberty.

The U.S. Constitution: A Very Short Introduction explores the major themes that have shaped American constitutional history: federalism, the balance of powers, property, representation, equality, rights, and security. Informed by the latest scholarship, this book places constitutional history within the context of American political and social history. As our nation's circumstances have changed, so has our Constitution.

Today we face serious challenges to the nation's constitutional legacy. Endless wars, a sharply divided electorate, economic inequality, and immigration, along with a host of other issues, have placed demands on government and on society that test our constitutional values. Understanding how the Constitution has evolved will help us adapt its principles to the challenges of our age.
TOC after the jump.

Koposov on memory, history, and law

Memory Laws, Memory WarsNikolay Koposov, Emory University, has published Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia with Cambridge University Press. From the publisher:
Laws against Holocaust denial are perhaps the best-known manifestation of the present-day politics of historical memory. In Memory Laws, Memory Wars, Nikolay Koposov examines the phenomenon of memory laws in Western and Eastern Europe, Ukraine, and Russia and exposes their very different purposes in the East and West. In Western Europe, he shows how memory laws were designed to create a common European memory centred on the memory of the Holocaust as a means of integrating Europe, combating racism, and averting national and ethnic conflicts. In Russia and Eastern Europe, by contrast, legislation on the issues of the past is often used to give the force of law to narratives which serve the narrower interests of nation states and protect the memory of perpetrators rather than victims. This will be essential reading for all those interested in ongoing conflicts over the legacy of the Second World War, Nazism, and communism.
Here is the Table of Contents:
  • Introduction
  • 1. The rise of memory and the origins of memory laws
  • 2. Memory laws in Western Europe
  • 3. Memory laws in Eastern Europe
  • 4. Memory laws in Ukraine
  • 5. Memory laws in Yeltsin's Russia
  • 6. Memory laws in Putin's Russia
  • Conclusion
Further information is available here.

A New Essay Collection on Ancient Greek Law

The University of Texas Press has published Ancient Greek Law in the 21st Century, “eleven essays by leading scholars [that] chart new directions for the study of ancient Greek law.”  It is edited by Paula Perlman, a professor of classics at the University of Texas at Austin.  The volume includes an introduction jointly authored and achapter authored by Adriaan Lanni, Harvard Law School.  Professor Lanni's chapter is "From Anthropology to Sociology: New Directions in Ancient Greek Law Research."
The ancient Greeks invented written law. Yet, in contrast to later societies in which law became a professional discipline, the Greeks treated laws as components of social and political history, reflecting the daily realities of managing society. To understand Greek law, then, requires looking into extant legal, forensic, and historical texts for evidence of the law in action. From such study has arisen the field of ancient Greek law as a scholarly discipline within classical studies, a field that has come into its own since the 1970s.

This edited volume charts new directions for the study of Greek law in the twenty-first century through contributions from eleven leading scholars. The essays in the book’s first section reassess some of the central debates in the field by looking at questions about the role of law in society, the notion of “contracts,” feuding and revenge in the court system, and legal protections for slaves engaged in commerce. The second section breaks new ground by redefining substantive areas of law such as administrative law and sacred law, as well as by examining sources such as Hellenistic inscriptions that have been comparatively neglected in recent scholarship. The third section evaluates the potential of methodological approaches to the study of Greek law, including comparative studies with other cultures and with modern legal theory. The volume ends with an essay that explores pedagogy and the relevance of teaching Greek law in the twenty-first century.
TOC after the jump

Monday, April 16, 2018

Immigration & Ethnic History Society Awards to Kang, Hirota

The Immigration and Ethnic History Society just announced the winners of its annual awards, and legal history fared well.  

According to the Society's Twitter account, the Theodore Saloutos Book Award, "for the book judged best on any aspect of the immigration history of the United States," went to S. Deborah Kang (California State University, San Marcos) for The INS on the Line: Making Immigration Law on the US-Mexico Border, 1917-1954 (Oxford University Press, 2017). Julian Lim (Arizona State University) received an honorable mention for Porous BordersMultiracial Migrations and the Law in the U.S.-Mexico Borderlands (University of North Carolina Press, 2017).

The First Book Award went to Hidetaka Hirota (City College of New York) for Expelling the Poor:
Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy
(Oxford University Press, 2017)

Congratulations to all!

García, "Strategies of Segregation: Race, Residence, and the Struggle for Educational Equality"

We missed this Nov. 2017 publication from the University of California Press: Strategies of Segregation: Race, Residence, and the Struggle for Educational Equality, by David G. García (University of California, Los Angeles). A description from the Press:

Strategies of Segregation unearths the ideological and structural architecture of enduring racial inequality within and beyond schools in Oxnard, California. In this meticulously researched narrative spanning 1903 to 1974, David G. García excavates an extensive array of archival sources to expose a separate and unequal school system and its purposeful links with racially restrictive housing covenants. He recovers powerful oral accounts of Mexican Americans and African Americans who endured disparate treatment and protested discrimination. His analysis is skillfully woven into a compelling narrative that culminates in an examination of one of the nation’s first desegregation cases filed jointly by Mexican American and Black plaintiffs. This transdisciplinary history advances our understanding of racism and community resistance across time and place.
A few blurbs:
Strategies of Segregation is a carefully researched, effectively argued, and beautifully written study of the centrality of school segregation to the racialization of space and the spatialization of race in Oxnard, California. Its deft blend of evidence from archival and oral history sources makes a major contribution to the histories of school and residential segregation. This fine book also reveals how Mexican Americans and Blacks fought back and battled for educational equity and racial justice.”—George Lipsitz 
“Through a study of how school segregation and residential segregation reinforce one another, Strategies of Segregation examines how structural racism became embedded in Oxnard, a city just north of Los Angeles. David G. García’s analysis across multiple urban institutions and interlocking racial practices will make this a model book for years to come.”—Natalia Molina
More information is available here.

Sunday, April 15, 2018

Sunday Book Review Roundup

At Dissent, Gaiutra Bahadur reviews Peter James Hudson's Bankers and Empire: How Wall Street Colonized the Caribbean and Stuart Hall's Familiar Stranger: A Life Between Two Islands.

Kathleen Belew's Bring the War Home: The White Power Movement and Paramilitary America is reviewed in the Los Angeles Review of Books.  Also at LARB is a review of Steven J. Zipperstein's Pogrom: Kishinev and the Tilt of History  

The Republic of Arabic Letters: Islam and the European Enlightenment by Alexander Bevilacqua is reviewed in The New Republic.  Also in The New Republic is Linda Gordon's review of R. Marie Griffith's Moral Combat: How Sex Divided American Christians and Fractured American Politics 

Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America is reviewed at Slate.  Also on the site is a review of Behemoth: A History of the Factory and the Making of the Modern World by Joshua B. Freeman.

Ronit Stahl's Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America is reviewed at H-Net.

In The Nation, William P. Jones reviews Steven M. Gillon's Separate and Unequal: The Kerner Commission and the Unraveling of American Liberalism  Separate and Unequal is also reviewed in The Atlantic.
Image result for Raza Sí, Migra No: Chicano Movement Struggles for Immigrant Rights in San Diego.
In the New York Review of Books is a review of Lawrence James' Empires in the Sun: The Struggle for the Mastery of Africa.

The Washington Post has a review of Show Trial: Hollywood, HUAC , and the Birth of the Blacklist by Thomas Doherty.

Ben Austen's High-Risers: Cabrini-Green and the Fate of American Public Housing is reviewed in The New York Times.  Also reviewed in the paper is Benn Steil's The Marshall Plan: Dawn of the Cold War.  Priya Satia's Empire of Guns: The Violent Making of the Industrial Revolution is also reviewed.

Fahad Bishara discusses his A Sea of Debt: Law and Economic Life in the Western Indian Ocean, 1780-1950.  Also on the site, Jimmy Patino speaks about his Raza Sí, Migra No: Chicano Movement Struggles for Immigrant Rights in San Diego.

Saturday, April 14, 2018

Weekend Roundup

  • Over at JOTWELL's Property section, Shelley Ross Saxer (Pepperdine Law) has posted an admiring review of University of Virginia legal historian Maureen Brady's forthcoming article on "Damagings Clauses."
  • Also in JOTWELL, from the Intellectual Property section, Mark McKenna (University of Notre Dame) praises "The Article of Manufacture in 1877," by Sarah Burstein (University of Oklahoma).  The article appeared in Volume 32 of the Berkeley Technology Law Journal (2017).
  • Martha S. Jones, Johns Hopkins University, will deliver the keynote speaker at the Spring 2018 Commencement Ceremonies at the University of Michigan-Flint
  • “So you want to synthesize filmmaking with legal history? Davidson has a course for that": John Wertheimer’s "Filming Southern Legal History" seminar.  More.
  • Timothy Snyder's revelatory essay on Ivan Ilyin and his influence on Putin's Russia.  Chilling reading, after reports of Stephen Bannon's advice to the White House on executive privilege.
  •  Our friends at the Max Plank Institute for European Legal History have announced Legal Journals of the 19th Century (Juristische Zeitschriften des 19. Jahrhunderts).  It provides “online access to a vast collection of legal journals . . .   Seventy-five journals were selected, compiled in uninterrupted series, supplemented with structural and meta-data, and published.”  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 13, 2018

Vlahoplus on Lee on “Natural Born Citizen”

John Vlahoplus, a member of the New York State Bar, has posted “Natural Born Citizen”: A Response to Thomas H. Lee, which is forthcoming in American University Law Review Forum:
In "Natural Born Citizen," Thomas H. Lee provides a challenging and in his own words "novel interpretation" of the original meaning of that constitutional term. Lee analyzes a wide range of sources including American constitutional history, Anglo-American legal treatises, continental natural law theory, and four centuries of English and British statutes and political and economic history. He concludes that the original meaning of the term at the adoption of the Constitution includes foreign-born children of "U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose," following the natural law principle of jus sanguinis (right of blood). He considers the analysis to be important in part because it shows how to do originalism.

This Response disputes Lee's conclusion and argues that he overlooks or misinterprets important authorities including writings of the Founders, legislative history from the First Congress, the 1608 English decision in Calvin's Case, relevant portions of Blackstone's Commentaries, and the English and British statutes and cases interpreting them. It suggests that "Natural Born Citizen" represents a constructive rather than an originalist interpretation of the Constitution. Finally, it suggests that Lee's conclusion implies significant additional rights to birthright citizenship and judicial power to interpret natural law in the constitutional context. "Natural Born Citizen" may not be originalism, and it may not constrain judicial power as some intend originalism to do, but it is certainly a bold and challenging interpretation of Anglo-American legal history that merits close attention.
Mr. Vlahoplus has also posted Other Lands and Other Skies: Birthright Citizenship and Self-Government in Unincorporated Territories, which is forthcoming in the William & Mary Bill of Rights:
By denying certiorari in Tuaua v. United States the Supreme Court declined to answer the question whether the Constitution confers birthright citizenship in unincorporated territories. Many believe that the question presents a fundamental conflict between individual rights and local self-determination. Denying birthright citizenship discriminates against those born in unincorporated territories, leaves their nationality to the grace of Congress, and extends the racist foundation of the Insular Cases beyond their express holdings. On the other hand, some fear that acknowledging birthright citizenship in unincorporated territories could undermine their self-determination by tightening equal protection constraints on their local governments.

This article argues that there is no fundamental conflict between birthright citizenship and self-government in unincorporated territories. English common law embodied in the original Constitution confers birthright citizenship and permits self-government there. Most of the principal objections to recognizing birthright citizenship were raised in England and rejected in the 1608 decision in Calvin's Case. The remainder are inconsistent with either the common law rule or American legal precedent. The extent to which equal protection doctrine constrains territorial governments is a separate constitutional issue.

Easton, "Defending the Masses: A Progressive Lawyer's Battles for Free Speech"

New from the University of Wisconsin Press: Defending the Masses: A Progressive Lawyer's Battles for Free Speech, by Eric B. Easton (University of Baltimore). A description from the Press:

Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail. 
Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin's progressive senator Robert La Follette since their law partnership as young men, Roe defended "Fighting Bob" when the Senate tried to expel him for opposing America's entry into World War I. 
In articulating and upholding Americans' fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.
More information is available here.

Thursday, April 12, 2018

Mulligan on Diverse Originalism

Christina Mulligan, Brooklyn Law School, has posted Diverse Originalism, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:
Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.
H/t: Legal Theory Blog

The American Administrate State at Holy Cross/Word from A. V. Dicey

Later today and tomorrow I get to attend a terrifically interesting conference at Holy Cross organized by Donald Brand on the past, present, and future of the administrative state.  The keynote address by R. Shep Melnick, is "The Administrative State in Action: Lessons from Title IX."  Among the participants are several scholars who’ve addressed historical topics or taken a historical approach to the subject, including Aditya Bamzai, Daniel Carpenter, Paul Moreno, Ronald J. Pestritto, Joseph Postell, and Elizabeth Sanders.

My brief is to present the argument of Tocqueville’s Nightmare, much of which develops how American lawyers and judges revised the first of three aspects of the Rule of Law stated by Albert Venn Dicey in his Introduction to the Study of the Law of the Constitution (1885): “that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”  In case something happens while I’m away, here’s the second:
Albert Venn Dicey (wiki)
We mean in the second place, when we speak of the “rule of law” as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. . . .  With us every official, from the prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. 

Gillis on heresy and dissent

Matthew Bryan Gillis, University of Tennessee, Knoxville, has published Heresy and Dissent in the Carolingian Empire: The Case of Gottschalk of Orbais with Oxford University Press. (We noted the book earlier here.) From the publisher:
Cover for 

Heresy and Dissent in the Carolingian Empire
Heresy and Dissent in the Carolingian Empire recounts the history of an exceptional ninth-century religious outlaw, Gottschalk of Orbais. Frankish Christianity required obedience to ecclesiastical superiors, voluntary participation in reform, and the belief that salvation was possible for all baptized believers. Yet Gottschalk--a mere priest--developed a controversial, Augustinian-based theology of predestination, claiming that only divine election through grace enabled eternal life. Gottschalk preached to Christians within the Frankish empire--including bishops--and non-Christians beyond its borders, scandalously demanding they confess his doctrine or be revealed as wicked reprobates. Even after his condemnations for heresy in the late 840s, Gottschalk continued his activities from prison thanks to monks who smuggled his pamphlets to a subterranean community of supporters. This study reconstructs the career of the Carolingian Empire's foremost religious dissenter in order to imagine that empire from the perspective of someone who worked to subvert its most fundamental beliefs. Examining the surviving evidence (including his own writings), Matthew Gillis analyzes Gottschalk's literary and spiritual self-representations, his modes of argument, his prophetic claims to martyrdom and miraculous powers, and his shocking defiance to bishops as strategies for influencing contemporaries in changing political circumstances. In the larger history of medieval heresy and dissent, Gottschalk's case reveals how the Carolingian Empire preserved order within the church through coercive reform. The hierarchy compelled Christians to accept correction of perceived sins and errors, while punishing as sources of spiritual corruption those rare dissenters who resisted its authority.
 In praise of the book:

"This is an important study that scholars of the Carolingian world and of early-medieval religious culture in general will read and use for many years to come. It is a book we should be grateful to have..." -Scott Ashley

Here's the Table of Contents:
  • Introduction: The Scandals of God's Servant
  • 1. A Monk Against His Abbot, 829
  • 2. Betrayal and Injustice in the Early 830s
  • 3. A Missionary of Grace, c. 835-848
  • 4. A Theologian-Martyr in 849
  • 5. Letters from Prison, 849-851
  • 6. A Master of Subterranean Dissent, 850s
  • 7. Resisting Heresy unto Death in the 860s
  • Conclusion: Heresy and Dissent in the Carolingian Empire

Further information is available here.

Archives and Dumping Grounds, Part Two

In my previous post, I wrote about the “archives” I used to research Black Litigants in the Antebellum American South. Today’s post is part two.
Photo by the author
Searching lower court records involving black litigants is tricky. Over the course of several years, I developed a method for searching for and working with local court records. Because these cases are unpublished and unavailable outside of the county and parish court of origin, I began by traveling to the clerks’ offices to locate the extant records. Typically, they are not indexed, and docket books summarizing cases are few and far between. Sometimes an entire decade (or decades) of cases is missing.
Finding cases that involved free black or enslaved litigants required examining each box, drawer, or trash bag of trial court records beginning with the earliest ones (this varied in each county, but all opened their doors and began hearing cases in the late 18th or early 19th century) and continuing until the courthouse closed its doors during the Civil War (this also varied by county). As a research method, sampling every fifth (or pick your number) box or drawer of cases would not produce representative results. Many of these records are not organized by date or type—or even organized at all. In Claiborne County, Mississippi, for example, cases from 1820 could be filed in the same drawer as cases from three decades later (and the drawer labeled “miscellaneous”).
Photo by the author
In order to get a sense of the presence of black litigants in the antebellum southern courts, the meaning of that presence, and how that presence might change over time, I had to look through everything. It took me several years (I traveled to the region and stayed two-to-four months at a time one-to-two times a year until I managed to read all of the extant records). Searching for black litigants was a daunting task because it meant reading through thousands and thousands of cases. But by law, the Mississippi and Louisiana courts had to identify the race of litigants and witnesses of color with the designation “fpc” if free and “slave” if enslaved. Of course, clerks and lawyers did not always do this. But just because the designation is missing, we cannot assume that the plaintiff or defendant was white. Indeed, black litigants were common, and many sued more than once. If the designation was missing, I attempted to ascertain an individual’s status in other ways. Then I took digital photographs of the entire case and organized those photos into separate files (such that I could easily find them later). Next, I read the case and entered a number of pertinent details into an Excel database, including: case number, name of complainant and defendant, filing dates, outcome (if known), race and gender of litigants, names of witnesses, lawyers, and judges, keywords identifying the type of case, and notes about the circumstances of the case.
In the end, I found more than 1,000 civil cases involving free black and enslaved litigants. As I have mentioned in a previous post, they sued whites and other people of color over a wide range of disagreements—from debt recovery to lawsuits for freedom. What is more, these extant cases reveal much about the networks black litigants formed, the language they used to petition the local courts, and the particular dynamics of black Americans’ legal claims-making in communities throughout the Natchez district.
Photo by the author

Finding these records is hard enough; interpreting them brings different challenges. Often the records are incomplete, missing relevant petitions or testimony. Final judgments are frequently absent, making outcomes unclear. And many cases are formulaic. Clerks, lawyers, and other officials also mediated the evidence. Moreover, it is difficult to ascertain what information court officials withheld from the record—from the common knowledge to the hearsay. Genre, form, and the type of legal action people chose to take (or even could take) also conditioned what people could say or do in court.
But as I have written in the book, within the given constraints, remarkable space exists for performing all sorts of operations. Genre limits what people can say, but it also allows people to say certain things in court and make that speech recognizable as a legal claim. Speakers can sift or manipulate facts and events as they chose to sift them (and then make a claim to what is “fact”). They can make normative claims—claims that insist that what happened is not what should have happened. In so doing, they can also invoke the state and demand that the state take responsibility for making things happen as the claimant said it should. Finally, by making claims in court, litigants compel their opponents to answer in kind. In my next post, I will discuss some of these claims.