Monday, December 11, 2017

Ablavsky on Original Meanings of "Indian Tribes"

Gregory Ablavsky, Stanford Law School, has posted "With the Indian Tribes": Race, Citizenship, and Original Constitutional Meanings, which is forthcoming in the Stanford Law Review.
Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

Sunday, December 10, 2017

Why Comparative Legal History?

Comparative legal historians often confront an existential question: "what does your comparison add?"  The majority of legal historians focus on a single country, and often a single jurisdiction.  Most of us probably do intuitively believe that comparative work is valuable, but it is increasingly difficult to explain why.  Legal historians generally cannot take shelter under the most common rationale for comparative legal research--the search for alternative legal solutions to functional problems.  Instead, they need to explain why cross-system comparison helps us understand historical developments.  The problem is that nearly all explanations of this sort tend to run afoul of the deep rooted skepticism that historians generally hold towards theoretical abstraction and conventional causal analysis.

The explanation that I personally prefer (and implicitly adopt in my recently published book), for example, is an explicitly causal one.  Comparative legal history, like any other causal analysis, can help isolate pathways of influence.  Within a single-system context, the question of "how did phenomenon A arise" is necessarily a complex one.  Realistically, any significant historical phenomenon is the product of multiple forces, ranging from ecology and geography to cultural context to sheer chance.  Whereas historians may choose to emphasize one or more factors from this usually very long list over others, they tend to have a hard time teasing out the specific kind of influence those factors wielded within this general context of interweaving forces.  Comparative analysis between two systems that share some common features allows us to sidestep at least part of this obstacle, essentially by controlling for those common features.  The goal, in the end, is to isolate a set of factors that plausibly explain systemic differences, which then helps us isolate the specific mechanisms through which those factors influenced the system's historical trajectory.

In fact, I would go a step further and argue that any attempt to justify a comparative historical analysis will necessarily be somewhat causal.   The general observation that "system A and system B differed in the following ways" is only intellectually significant if the differences tell us something deeper about those systems that we cannot learn simply by observing either system in isolation.  This "something deeper" can come either in the form of the differences' underlying conditions or in the form of their consequences, but either option would demand at least some kind of causal analysis, whether towards the differences or away from them.  Unless we believe that a description of systemic historical difference is intellectually--as opposed to politically or socially--significant in and of itself, then some causal claim is needed to explain why we should care.

This is true even when the need for comparison arises from transnational legal history, which, perhaps prudently, focuses on the transmission and reception of laws and legal ideas from one country to another, rather than, say, the socioeconomic origins of legal differences or the legal origins of socioeconomic development.  For example, arguably the single most successful driver (in the English-speaking world, at least) of interest in non-Western legal systems over the past two decades has been the burgeoning literature on law and empire.  Within this literature, the primary reason to care about differences between, say, colonial Indian law and English law has been the institutional feedback loop between the imperial periphery and the center, which reverses conventional assumptions about the direction of institutional and intellectual transmission.  But, properly understood, this involves a very powerful causal claim about legislation and the development of legal thought in the center.  In fact, all claims about institutional or intellectual transmission are innately causal in some basic sense.

All in all, it is much easier--and probably impossible otherwise--to understand the value of comparative legal history if one is willing to accept that historians must be in the business of making at least some arguments about causation.  This may imply that comparative legal history is more naturally seen as a branch of the social sciences than of the humanities, but that is something that I would personally welcome.  Comparative analysis is, by its very nature, an act of abstraction and simplification, an attempt to highlight some parts of the picture over others.  This gives comparative legal history a distinct social scientific flavor that other kinds of legal history, which are perhaps more interested in complication and contextualization, are often hesitant to embrace.

Sunday Book Review Roundup

There are quite a few books of interest in this week's review pages:

In the London Review of Books Eric Foner reviews James E. Lewis Jr.'s The Burr Conspiracy: Uncovering the Story of an Early American Crisis.  

In Dissent's fall issue is a review of Mark Wilson's Destructive Creation: American Business and the Winning of World War II.  The True Flag: Theodore Roosevelt, Mark Twain, and the Birth of American Empire by Stephen Kinzer is also reviewed in the issue.

There is an assortment of relevant reviews to be found in The New York Times.  Among them is a review of Mary Beard's Women & Power: A Manifesto.  Also reviewed is Franklin D. Roosevelt: A Political Life by Robert Dallek.  Ramp Hollow: The Ordeal of Appalachia by Steven Stoll is reviewed.   The Second Coming of the KKK is reviewed and Linda Gordon speaks about the book with the Book Review Podcast.

In The Washington Post is a review of Gordon Wood's Friends Divided: John Adams and Thomas JeffersonAlso in the post is a review of The Taste of Empire: How Britain's Quest for Food Shaped the Modern World by Lizzie Collingham.

In The New York Review of Books is a review of Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America and Gordon Lafer's The One Percent Solution: How Corporations Are Remaking America One State at a TimeAlso in The NYRB is a review of Linda Gordon's The Second Coming of the KKK: The Ku Klux Klan of the 1920s and the American Political Tradition and Ku Klux Kulture: America and the Klan in the 1920s by Felix Harcourt.

At the History News Network is a review of Nullification and Secession in Modern Constitutional Thought, edited by Sanford Levinson.

The Los Angeles Review of Books has a review of The Fate of Rome: Climate, Disease, and the End of an Empire by historian Kyle Harper.

At the New Books Network Padraic Scanlan speaks about his Freedom’s Debtors: British Antislavery in Sierra Leone in the Age of Revolution.  Padraic Kenney is interviewed about his Dance in Chains: Political Imprisonment in the Modern WorldSheshalatha Reddy discusses her British Empire and the Literature of Rebellion: Revolting Bodies, Laboring Subjects.  Finally James F. Brooks is interviewed about his Mesa of Sorrows A History of the Awat'ovi Massacre.

Saturday, December 9, 2017

Weekend Roundup

  • And on Friday, January 26, 2018, from 12:00pm to 1:00pm, Gerard Magliocca, Indiana University Robert H. McKinney School of Law, will speak on his new book, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights, in the William G. McGowan Theater, of the National Archives in Washington, DC. 
  • Samuel Moyn, Yale Law School, will deliver the 2018 Annual Nicolai Rubinstein Lecture in Intellectual History and the History of Political Thought at Queen Mary University of London on February 8, 2018.  His topic will be “Judith Shklar’s Critique of Cold War Liberalism.”
  • O Mar no Direito Romano: the latest conference from Teoria e História do Direito, Centro de Investigação da ULisboa.
  • One week away: the deadline for Newberry Library short-term fellowships is Dec.15, 2018. Details here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, December 8, 2017

Toronto Remembers John Beattie

John Maurice Beattie: Giant of British legal history taught at U of T for 35 years, an appreciation of Professor Beattie, is now up on the University of Toronto's website.  It commences:
Those who knew John Maurice (J.M.) Beattie say he showed genuine interest in the lives of others: family, friends, acquaintances – and people who lived centuries ago.

Beattie, who died in July of this year, was a professor of history at the University of Toronto for 35 years and a former director of its Centre for Criminology and Sociolegal Studies. In academic circles, he was known from Australia to England for his pioneering work on the history of the British courts, crime and policing.
More.

Bazyler and Jarvis's "Law and the Holocaust"

Carolina Academic Press recently published Law and the Holocaust by Michael J. Bazyler, Chapman University Dale E. Fowler School of Law, and Robert M. Jarvis, Nova Southeastern University Shepard Broad College of Law.
Law and the Holocaust: U.S. Cases and Materials uses federal and state court decisions to teach students about one of humanity's greatest calamities. Part I situates the Holocaust as a legal event. Part II focuses on the prosecution of Nazi war criminals. Part III describes the efforts of Holocaust victims to obtain financial compensation through civil lawsuits. Lastly, Part IV considers the extent to which the First Amendment protects modern Nazis. The first casebook of its kind, Law and the Holocaust features 71 principal cases, 295 notes, 26 statutory appendices, 31 photographs, and three maps.

LeDuc on the Originialism Debate

Andre LeDuc has posted Striding Out of Babel: Originalism, its Critics, and the Promise of Our American Constitution, which appears in the William & Mary Bill of Rights 26 (2017):
This Article pursues a therapeutic approach to end the debate over constitutional originalism. For almost fifty years that debate has wrestled with the question whether constitutional interpretations and decisions should look to the original intentions, expectations, and understandings with respect to the constitutional text, and if not, what. Building on a series of prior articles exploring the jurisprudential foundations of the debate, this Article characterizes the debate over originalism as pathological. The Article begins by describing what a constitutional therapy is.

The debate about originalism has been and remains sterile and unproductive, and the lack of progress argues powerfully for the conclusion that a successful resolution of the debate is not likely to be achieved by any of the protagonists. Instead, the debate should be abandoned.

At a conceptual level, there are a variety of sources for the pathology of the debate, but a series of tacit ontological and other jurisprudential assumptions play a central role. The Article explains why neither side in the debate over constitutional originalism can hope to prevail. Any hope to revive or reconstruct the debate seems at once implausible and unlikely to deliver any significant doctrinal or methodological payoff to our American constitutional law. If we articulate the tacit premises of the debate, we can recognize why the debate over originalism reflects more confusion than substantive disagreements. As we do so, we begin to see the way forward beyond the debate. Making the source of the debate’s disagreements appear confused rather than important also provides ample motivation to move on. This Article concludes by arguing that such a postdebate constitutional discourse and practice is indeed possible, as well as desirable.
H/t: Legal Theory Blog

Cajas on Judicial Review of Constitutional Amendments in Colombia

Mario Cajas, Universidad Icesi, Colombia, has published Judicial Review of Constitutional Amendments in Colombia: A Political and Historical Perspective, 1955-2016” in the journal Theory and Practice of Legislation (2017):
The Colombian Constitutional Court is widely known for being one of the emblematic and activist Courts representing the New-constitutionalism of the Global South, and also for the judicial review of the constitutional amendments under the ‘constitutional replacement doctrine’ (substitution doctrine). The Court adopted the substitution doctrine since its decision C-551/2003, in a time that coincides with the global expansion of the judicial review of constitutional amendments. However, it is far less known that, in Colombia, the debate about the judicial review of the constitutional amendments commenced several decades before that global expansion. This article intends to reconstruct the judicial review path of the constitutional amendments, and to show the interdependence between the political context and the doctrines of both the Supreme Court (1955–1991) and the Constitutional Court (1992–2016). The article examines this interdependence to contribute to a better understanding of the role of the Legislature, the Executive and the Judiciary in the construction of legal doctrines, such as the supremacy of the Constitution, the principle of separation of powers, the intangibility of constitutional clauses or the power of constitutional reform in the complex political context of a South American country. In sum, this article seeks to present how the judicial review path of the constitutional amendments in Colombia began long before the ‘expansion’ of that phenomenon at a global level, to show the interdependence between Law and Politics on that path, and to highlight the different Supreme Court and the Constitutional Court judicial activism in this topic since 1955 to the present.

Thursday, December 7, 2017

Freedman's "Making Habeas Work"

And, while we’re on the subject, we might as well mention that Making Habeas Work: A Legal History, by Eric M. Freedman, Hofstra Law, is due out in May from NYU Press.
Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

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

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

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

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.
Professor Freedman's recent lecture on the book is here.

Tyler's "Habeas Corpus in Wartime"

Amanda L. Tyler, University of California, Berkeley School of Law, has published Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017):
Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law, particularly during World War II when the United States government detained tens of thousands of Japanese American citizens and later during the War on Terror. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.
Professor Tyler has posted the introduction on SSRN.  Gerard N. Magliocca’s appreciation on Balkinization is hereJames Pfander's review for Lawfare is here.  Among the many strong endorsements are the following:
 "Amanda Tyler has written the definitive political and legal history of the writ of habeas corpus during war, from its modern origins in the seventeenth century England to its contemporary use by U.S. courts to check the Commander in Chief in the post-9/11 era. Since the writ's history is so relevant to its modern scope, Habeas Corpus in Wartime will be an indispensable guide for lawyers, judges, and scholars of various stripes who grapple with the meaning of the Great Writ." - Jack Goldsmith, Henry L. Shattuck Professor of Law, Harvard Law School
"This meticulously researched book shows how America's Founding Fathers constitutionalised the English Habeas Corpus Act, which provided that only parliament could suspend the writ of liberty. In a series of studies which are rich both in illustration and insight, Amanda Tyler shows how the long-held understanding of the Suspension Clause came under pressure in the twentieth century. The history she has written is not only fascinating in itself, but has important ramifications for contemporary debates on liberty and the constitution." - Michael Lobban, Professor of Legal History, London School of Economic

CFP: PHC 2018

[We're moving this post up because the deadline for submissions is tomorrow.]

[We have the following call for papers.]

The Institute for Political History, the Journal of Policy History, and the Center for Political Thought and Leadership at Arizona State University are hosting the tenth biennial Policy History Conference at the Mission Palms Hotel in Tempe, Arizona from Wednesday, May 16 to Saturday, May 19, 2018. The Journal of Policy History is celebrating 30 years of publication. The Policy History Conference is celebrating 20 years of continued academic excellence. We hope you will join us for this historic event.

The Keynote Address is "Reflections of a Political Historian," by Daniel Howe (Oxford).

National History Center Panels at AHA (and a Landmark LHB Post)

The National History Center yesterday sent out a list of its panels at the Annual Meeting of the American Historical Association next month in Washington, DC.  Links to the sessions are here.

Thursday, January 4
Understanding the Past to Plan the Future: Historical Inquiry and Philanthropic Grant-Making
History and Public Policy Centers: A Roundtable Discussion

Friday, January 5
The End of the Palestine Mandate
What Does Brexit Mean for British History?
Documenting the History of the First Federal Congress
Remembering Marilyn Young, Activist Historian: A Memorial Panel

Saturday, January 6
Federal Government Historians and the Public
The Possibilities and Pitfalls of Big History (AKA Big History Meets the History of Science)
Executive Orders and Presidential Power since FDR
(credit)
NHC Reception

Sunday, January 7
Nationalism: Notions and Practices

[Cue the confetti: This is the 10,000 post on Legal History Blog!]

New AHA Panel: Revolt against Regulation in the Time of Trump

We have word of a “late-breaking session” at the American Historical Association annual meeting in Washington, D.C. on January 5, 3:30-5:00, entitled  “Revolt against Regulation in the Time of Trump: Historical Perspectives.”
We are currently witnessing a broad-scale attempt to by the Trump Administration to “deconstruct the administrative state.”  At such a moment of profound reorientation across so many domains of policy-making, we stand in great of need of historical perspective.  This roundtable brings together historians, a political scientist/legal scholar, and two former high legal regulatory officials (one a Democrat, one a Republican), to engage with such questions as: (1) what explains why regulatory endeavors have accumulated so broadly over the last century or so; (2) what has driven the waxing discontent with the regulatory state (among whom, exactly, and on what basis); (3) how best to understand the origins of the emerging, widespread populist distrust of technocracy (distrust that extends beyond those large corporations that want a reduction in regulatory burden); (4) how to make sense of the disconnect between strong popular support for many specific regulatory objectives and much weaker popular support for technocratic governance in general; (5) how best to understand the processes underway at federal agencies
Participants:

Edward Balleisen, Vice Provost for Interdisciplinary Studies, Duke University (chair)

Sally Katzen, Former Administrator of the Office of Information and Regulatory Affairs (in the Clinton Administration)

Susan Dudley, Former Administrator of the Office of Information and Regulatory Affairs (in the George W. Bush Administration)

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, University of Pennsylvania

Nelson Lichtenstein, Distinguished Professor of History, University of California-Santa Barbara

Christy Ford Chapin, Associate Professor of History, University of Maryland-Baltimore County

Update: The other late breaking sessions are:

Contextualizing Catalonia - the History of Catalan Nationalism and the Spanish Constitution with Respect to the 1st of October

A Fateful Misunderstanding: A Discussion of the Film Documentary The Vietnam War by Ken Burns and Lynn Novick

Historians and Sexual Harassment: The Challenge for the AHA

Immigration Control and Resistance: Historicizing the Present Moment, a Conversation between Historians and Activists

The North Korean Nuclear Crisis in History

Links are here.

A conversation about law's priorities

Comparative Studies in Society and History has come out with an online discussion, Priorities of Law: A Conversation with Judith Scheele, Daniel Lord Smail, Bianca Premo, and Bhavani Raman. All four scholars have published articles in CSSH over the past decade. Now, they interact in this blogpost. 

Here is the set-up:
...we invite four CSSH authors...to talk about law as a kind of evidence, one that tells us about other aspects of social life. In many of our best essays on law, it would seem that legality is shaped by something else, and the point of analysis is to understand how law interacts with a second or third factor. It might be gender, community formation, material culture, or ideas of power and truth. Often, law does not account for as much as it should. The analyst has access to a rich body of legal documents, but in treating them as evidence, it turns out that these materials point to (or belong to) discursive fields that are above the law, or beyond it, or that simultaneously call for and contradict legal decisions. The special relationship between legalism and other modes of interaction can be pervasive, even formative, without being easy to model or understand. 
In short, much of society and history remains oddly adjacent to law. Law seems always to be set apart, no matter how intimately entangled it is with the rest of life. The inadequacy of legal procedures, and their necessity, is related to this distance, which is discernible in old archival records and in ethnographic observations of contemporary legal practice. Our four interlocutors agree, for instance, that law is a specialized activity, that it involves rule-making and breaking, and that, despite its enduring ties to government, law can develop against or apart from state institutions and their interests. Law insists on its own significance and, in many cases, makes disrespect for its protocols a punishable offence. Indeed, law’s priority—in the double sense of its importance and its basis in historical precedent—pushes the conversation toward problems of origin and grounding: when is law really law, what is it ultimately based on, and who can decide? 
...We are invited to think of law as a field of mediating concepts that are variously expressed in objects (palm leaf manuscripts and websites), words (sworn oaths and public declarations), sensibilities (honor, humiliation, probity), and statuses (household head, slave, guest). We are asked to consider law as a vehicle of moral display, in which fines and damages are paid in a proud attempt to assert membership and social value. Law is compared to a coral reef, a body of materials sedimented and alive, growing and calcifying. The process, we are told, has an almost necessary relationship with formality, with texts, technicalities, and legitimating props, all of them weaponized in competitive attempts to impose the best, most authoritative forms of law. In the end, the conversation suggests that law falls prey, forever and inevitably, to its own reliance on authenticity, as its practitioners and subjects forge legal documents, swear false oaths, and bring their own extra-judicial values and social forms into the very heart of law.
You can follow the full conversation here

Tomlins on Bachelard, Benjamin and Legal Historiography

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjamin, which is forthcoming in The Oxford Handbook of Law and Humanities:
As the linguistic/cultural turn of the last forty years has begun to ebb, socio-legal and legal-humanist scholarship has seen an accelerating return to materiality. This paper asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and older materialisms – both historical and literary, both Marxist and non-Marxist – that held sway prior to post-structuralism? What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in current legal studies? To attempt answers, the paper turns to two figures from more than half a century ago: Gaston Bachelard – once famous, now mostly forgotten; and Walter Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The paper argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.

Wednesday, December 6, 2017

Shani on Citizenship & Democracy in India

Out this month with Cambridge University Press is How India Became Democratic: Citizenship and the Making of the Universal Franchise by Ornit Shani, University of Haifa. From the publisher: 
How India Became DemocraticHow India Became Democratic explores the greatest experiment in democratic human history. It tells the untold story of the preparation of the electoral roll on the basis of universal adult franchise in the world's largest democracy. Ornit Shani offers a new view of the institutionalisation of democracy in India, and of the way democracy captured the political imagination of its diverse peoples. Turning all adult Indians into voters against the backdrop of the partition of India and Pakistan, and in anticipation of the drawing up of a constitution, was a staggering task. Indians became voters before they were citizens - by the time the constitution came into force in 1950, the abstract notion of universal franchise and electoral democracy were already grounded. Drawing on rich archival materials, Shani shows how the Indian people were a driving force in the making of democratic citizenship as they struggled for their voting rights.
Praise for the book:
This is a subtle and impressive work of scholarship, which breaks new ground in the history of modern India. Using the rich, previously neglected, archive of the Election Commission, Ornit Shani documents how multi-party democracy based on adult franchise was established in a large, diverse, divided, and desperately poor country. The research is deep and thorough, the analysis robust and thought-provoking, the writing clear and often vivid. All those interested in modern India, as well as in the history of democratic practice more generally, would profit from a close reading of this book. -Ramachandra Guha
Table of Contents after the jump.

Spieler on Worker's Comp in the US, 1900-2017

Emily A. Spieler, Northeastern University School of Law, has posted (Re)Assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017, which appears in the Rutgers University Law Review 69 (2017): 891-1013.
Scene at Cramp's Ship Yards, 1917 (NYPL)
This article presents a comprehensive history and analysis of work injury compensation in the U.S. from the time of the initial adoption of workers’ compensation laws in the early 20th century to 2017. Workers’ compensation is almost entirely the domain of state legislatures and state courts without any federal oversight or standards, making it particularly difficult to study. In this article, Part I (the Introduction) situates workers’ compensation within the social benefit system of the U.S. Part II provides a history of the evolution of the laws, describing three periods: an early period, during which state variation and inadequacy of benefits were commonplace; a turn toward concern about adequacy of benefits and reforms in state legislatures after the 1972 report of the National Commission on State Workmen’s Compensation Laws noted the inadequacy and inequity of the state systems; and retrenchment, starting in the early 1990s, as employers and insurers successfully have fought to reduce the growing costs of the program by limiting access to benefits. Part II also briefly describes recently successful litigation that relies on state constitutions to challenge the inadequacies of the state programs. Part III focuses on the key contextual forces influencing workers’ compensation, noting the ways in which the nature and regulation of work, conceptions of safety, the surrounding social safety net and the health care system have affected the evolution and functioning of the state workers’ compensation systems. This section concludes with a discussion of the way in which changes in political equilibrium play out in these programs. Part IV provides a review of the current status of workers’ compensation in the U.S., including the adequacy of benefits and the dueling views that underlie some of the political battles in the states. It summarizes evidence that suggests that many injured workers never receive compensation, and explores the problems caused by inconsistent narratives regarding the purpose of the program. Finally, Part V addresses the future of workers’ compensation in the U.S.

Tuesday, December 5, 2017

Finkelman Named Gratz College President

Congratulations to the legal historian Paul Finkelman, who has been named named president of Gratz College in the Philadelphia suburb of Melrose Park.  From the press release:
Paul Finkelman (Credit)
After a months-long, nationwide search, Gratz College has named Dr. Paul Finkelman as its new president. The eleventh president in the institution’s 122-year history, Dr. Finkelman succeeds Joy Goldstein, who resigned in December 2016.

Dr. Finkelman brings decades of academic and legal experience to Gratz. He has published in a wide variety of areas including American Jewish history, religious liberty and separation of church and state, American legal history, constitutional law, slavery and race, and legal issues surrounding baseball.
More

Tomlins on Marxist Legal History

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted Marxist Legal History, which is forthcoming in The Oxford Handbook of Historical Legal Research:
Karl Marx (NYPL)
“Marxism,” wrote the American legal historian William E. Nelson in 1985, “is not about to disappear as an attractive ideology or as a powerful political force in the world.” The prediction was not well timed. The Marxism of the socialist bloc was anything but an attractive ideology or a powerful force (in any intellectually defensible sense) in the world of the mid-1980s. The bloc’s inability to recover from the early 1980s world recession, combined with Soviet entrapment in war in Afghanistan, had already turned the historical conjuncture decisively against Soviet and Eastern European socialism. Western Marxism, meanwhile, was enmeshed in its own deep theoretical crisis, impaled on the stake of materialist determination, and increasingly “rigid and scholastic” in its attempts to escape. Given all this, Nelson’s coda – “I expect neo-Marxist legal history … to flourish” – was mystifying. Then in the “take-off” stage of what would prove to be thirty years of extraordinary growth, Anglophone legal history actually lacked any clear Marxist component. Nor has one been forthcoming. This paper charts the possibility for a Marxist historiography of law such as it existed in the 1970s and the reasons for its failure to materialize. Forty years on, in the grip of a new fast-forming historical conjuncture in which capital, both globally and within its historic Anglophone heartlands, is at war with itself, the paper asks what opportunities exist for renewing the attempt to create a Marxist legal historiography, and what responsibilities attend that effort.

Madison on the Football as an IP Object

Michael J. Madison, University of Pittsburgh School of Law, has posted The Football as Intellectual Property Object, which is forthcoming in A History of Intellectual Property in 50 Objects, edited by Dan Hunter and Claudy Op Den Kamp (Cambridge University Press).
Soccer Match, 1928 (NYPL)
The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and broader one. The football lies at the core of football. Intersections between the football and intellectual property law are relatively few in number, but the football supplies a focal object through which the great themes of intellectual property have shaped the game: origins; innovation and standardization; and relationships among law and rules, on the one hand, and the organization of society, culture, and the economy, on the other.

Jerome Hall Postdoctoral Fellowship at IU-Bloomington

[We have the following announcement.]

The Center for Law, Society & Culture and the Indiana University Maurer School of Law invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies for the Jerome Hall Postdoctoral Fellowship.

The fellow will devote substantial time to research and writing in furtherance of a major scholarly project and will participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. The fellowship provides a salary plus a research allowance, health insurance, other benefits, and workspace at the School of Law. If both sides are amenable, the option of teaching a research seminar is also possible, with a commensurate adjustment to the salary. The term of the appointment will be 24 months, beginning August 1, 2018.

In evaluating applications, the Center will focus on: 1) The originality and significance of the candidate’s proposed research project within the field of sociolegal studies; 2) the candidate’s scholarly promise, achievements, and ability to complete the project; and 3) the potential contribution of the candidate to the intellectual life of the Center, the School of Law, and Indiana University.

[The fellowship is open to] Scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.

Questions regarding the position or application process can be directed to Professor Victor Quintanilla, IU Maurer School of Law 211 S. Indiana Ave., Bloomington, IN 47405 or vdq@indiana.edu.

Treanor on Hamilton and the Modern Theory of the Judiciary

My Georgetown Law colleague (and dean) William Michael Treanor has posted The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary, which is forthcoming in the Cambridge Companion to The Federalist, edited by Jack Rakove and Colleen Sheehan:
Hamilton (NYPL)
In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.

Monday, December 4, 2017

CFP: Pacific Coast Branch of the AHA

[We’ve received the following announcement.]

111th Annual Meeting of the Pacific Coast Branch of the American Historical Association
August 2-4, 2018, Santa Clara University, Santa Clara CA

CALL FOR PAPERS

The PCB serves all AHA members residing and working in the twenty-two states west of the Mississippi and the four western provinces of Canada. Our annual meeting brings together historians of all spatial, temporal, and thematic specializations.

The 2018 Program Committee invites proposals for panels, papers, and roundtables on any subject but particularly welcomes proposals that address the theme:  The Historian's Scholarly and Public Roles. In light of today's roiling debates over the meanings of the past, it is critical that historians explore how we can speak to broad audiences; share our critical methods; illuminate questions of context and interpretation; & guide discussions of policy, representation, and commemoration.

We encourage proposals that enable conversation across specialist boundaries and engage the audience. We welcome submissions from graduate students and K-12 teachers.  

Anniversaries that may provide inspiration include the Meiji Restoration and founding of the University of California (1868); the abolition of slavery in Brazil (1888); the end of WWI (1918); the Universal Declaration of Human Rights (1948); the many transformative events of 1968; the financial crisis and election of Barack Obama (2008).

To make inquiries, submit proposals, find prospective co-panelists and more details (on the venue, registration, lodgings), please visit here.

Proposals must include a contact person; a title and 250-word abstract of the panel, paper, or roundtable; the title and brief description of each presentation; a one-page C.V. (including the email address and affiliation) of each participant; and any AV requests.

Deadline for submitting proposals: January 8, 2018.  Decisions about acceptance will be conveyed by March 10, 2018.

Please note that submission of a proposal constitutes a commitment to attend the conference if the proposal is accepted. Graduate student presenters will receive information about travel subventions.

2018 Program Committee Co-Chairs:
Matthew Mason, Brigham Young University
Daniel McInerney, Utah State University

A Court Transformed: The Ninth Circuit, the 1978 Judgeship Act, and the Carter Judge

[Via H-Law, we have word of the following conference.]

A Court Transformed: The Ninth Circuit, the 1978 Judgeship Act, and the Carter Judges

Pasadena, California, Saturday, February 17, 2018

The Omnibus Judgeship Act of 1978 was a transformative event for the Ninth Circuit Court of Appeals. The Act created ten new judgeships for the court, all of which were filled by President Carter, who also appointed five judges to fill other vacancies. Additionally, the Act authorized the Ninth Circuit to create its unique “limited en banc court” of fewer than all active judges. The California Academy of Appellate Lawyers, the Appellate Courts Section of the Los Angeles County Bar Association, and the Department of Political Science of Loyola Marymount University are pleased to announce a conference to mark the 40th anniversary of the Act and the resulting transformation of the Ninth Circuit.

The conference will explore the institutional and procedural changes that followed the Act, particularly the infusion of so many judges into a court of appeals in a short period. It will be an opportunity for those involved – and those affected – to share recollections of the era and to provide contemporary perspectives on what the changes were, how they came about, and what they have meant for the Ninth Circuit, both in the immediate aftermath and in the longer term.

The central figures in the conference will be a number of the Carter judges, joined by judges who were there before the expansion of the court or who joined the court later. Confirmed speakers include seven Ninth Circuit judges: Hon. J. Clifford Wallace, Hon. Mary M. Schroeder, Hon. William C. Canby, Jr., Hon. Stephen Reinhardt, Hon. A. Wallace Tashima, Hon. Kim McLane Wardlaw, and Hon. Milan D. Smith, Jr. The principal moderator will be Professor Arthur D. Hellman of the University of Pittsburgh School of Law.

The one-day conference will consist of two morning sessions, a luncheon at which those attending can meet the participating judges, and two afternoon sessions.

More.

Lee on the History and Theory of Administrative Constitutionalism

Sophia Z. Lee, University of Pennsylvania Law School, has posted From the History to the Theory of Administrative Constitutionalism, which appears in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw, edited by Nicholas R. Parrillo (Cambridge University Press, 2017).
Legal scholars and historians have shown growing interest in how agencies interpret and implement the Constitution, what is called “administrative constitutionalism.” The points of contact between the history and theory of administrative constitutionalism are sufficiently extensive to merit systematic analysis. This chapter focuses on what history can offer the theory of administrative constitutionalism. It argues that historical accounts of administrative constitutionalism invite a more robust normative defense of the practice than theorists have thus far provided. There is much to the transparent, participatory versions of administrative constitutionalism that its defenders have primarily focused on thus far. This chapter is a preliminary effort to develop historically informed theoretical arguments that administrative constitutionalism can be virtuous even when it lacks those attributes. Also, while critics have reason to worry that administrative constitutionalism can be insufficiently deferential to courts and Congress, I contend that administrative constitutionalism can even be defensible if it varies from court doctrine and is contrary to congressional command.

Mitford on Fulton's Lawyers

Emmet’s opinion on Fulton’s steamboat patent (NYPL)
Over the weekend we received an “advance alert” from the American Society of Legal History on the publication of “Patent Property”: The Fulton Lawyers and the Franchising of Progress, by Timothy Milford, St. John's University:
Cadwallader D. Colden and Thomas Addis Emmet could not help but practice intellectual property law: Robert Fulton was their client. Yet their engagement with the subject went far beyond what professional expediency demanded. Their transatlantic backgrounds and careers encouraged their affinity for liberal political economy and for entrepreneurial adventure. On the frontier, in the shadowy zones between early-nineteenth-century empires and land speculations, the line between enterprise and piratical intrigue was easily leapt, and Colden and Emmet were involved in the era’s cross-border confusions. More typically, their work anticipated a world where private business and public improvement were managed in tandem, by interested franchisees, and underwritten by more sophisticated financial arrangements. The defense of Fulton’s patent privileges was an unabashed apology for banks, corporations, and wealth. These lawyers celebrated canals and steamboats and argued that such tangible achievements were impossible without a flexible understanding of property. Their practice was bound up in the franchise model of development and reconciled government patronage with what was then, and is still, a controversial and liberal vision of progress.

Law Text Culture v. 21: "Law As . . . Minor Jurisprudence in Historical Key"

Volume 21 of Law Text Culture is out, and it contains much to interest our readers. Guest edited by my Berkeley Law colleague Christopher Tomlins, the volume brings together essays presented at the most recent "Law As..." conference. The theme of that conference was "Law As . . . Minor Jurisprudence in Historical Key." Here's the TOC.
Contents, Contributions and Introduction, LTC, volume 21  Christoper Tomlins 
Law As … IV: Minor Jurisprudence in Historical Key. An Introduction  Christopher Tomlins 
How Strange the Change from Major to Minor  Peter Goodrich 
Making Sense of Minor Jurisprudence  Mark Antaki 
Manuel Quintín Lame: Legal Thought as Minor Jurisprudence  Julieta Lemaitre 
Toward a Self-Reflexive Law? Narrating Torture’s Legality in Human Rights Litigation  Natalie R. Davidson 
On the Magic of Law  Laurent de Sutter 
‘Life Grasps Life’: Wilhelm Dilthey’s Minor Jurisprudence  Panu Minkkinen 
Conditions of Carriage: Finding a Place  Shaun McVeigh 
Law As…Forest: Eco-logic, Stories and Spirits in Indigenous Jurisprudence  Kirsten Anker 
Legal Footprints / Legal Footprints in Redfern: A photoessay of Carol Ruff’s ‘40,000 Years’ Mural in Lawson Street, Redfern, Sydney, Australia  Olivia Barr 
A Minor Jurisprudence of Spectacular War: Law As Eye in the Sky  Jothie Rajah 
Law as Minor Jurisprudence: Is it a Mistake?  Genevieve Renard Painter
Read on here.

Sunday, December 3, 2017

Cultural Norms, Property Institutions, and Patterns of Economic Development

Having been an avid reader of the Legal History Blog for many years now, I am delighted to be guest blogging this month.  Many thanks to Karen, Mitra, and Dan for the invitation!

As some LHB readers may have noticed, my first book, The Laws and Economics of Confucianism: Kinship and Property in Pre-Industrial China and England, has recently been published by Cambridge University Press.  As is customary for LHB guest bloggers, I will use my initial post to say a few things about the book.  Later posts will move beyond this to explore methodological challenges unique to the intersection of institutional and economic history, and to some of the intellectual trends that now seem to distinguish Asian legal history (particularly East Asian legal history) from American and European legal history.

The book seeks to explain why certain Chinese property institutions in the early modern era--defined as roughly the 150-200 years before industrialization--were significantly more "poor-friendly" than functionally similar institutions in early modern England.  That is, they protected the economic and social interests of smallholders over those of wealthier landowners.  Most notably, Chinese customary laws governing mortgage transactions gave debtors (who were usually smallholders in this period) extremely strong protections against default and seizure, thereby minimizing the economic risks involved with collateralized borrowing.  In contrast, early modern English laws decisively favored the interests of the (usually wealthier) creditor, who tended to desire limited redemption rights and harsh penalties for default.  Over the long run, this institutional divergence led the English agrarian economy down a path of escalating inequality, with a small minority of landholders owning the vast majority of arable land by 1750.  Chinese agriculture, on the other hand, resisted agglomeration throughout the early modern era, remaining smallholder-heavy until collectivization in the early Communist era.

The core of the book is devoted to explaining this institution comparison.  The explanation relies on differences in social status allocation: existing evidence strongly suggests that smallholders held, on aggregate, significantly greater amounts of sociopolitical status and power in rural China than they did in rural England, and were therefore able to negotiate more favorable property institutions.  The dominance of Neo-Confucian social hierarchies in Late Imperial and Republican China, under which advanced age and generational seniority were the primary determinants of sociopolitical status, allowed many poor but senior individuals to possess status and political authority highly disproportionate to their wealth. In comparison, landed wealth was a fairly strict prerequisite for high status and authority in the far more 'individualist' society of early modern England, essentially excluding low-income individuals from secular positions of prestige and leadership. Thus, whereas smallholders had some level of representation among the local political elite in rural China, they had virtually none in England.  For the negotiation of property institutions that triggered substantial amounts of rich-poor conflict--mortgage redemption, tenancy, and so on--this could make all the difference.

The primary explanatory factor here is the seniority-based status hierarchy enshrined in Neo-Confucian ethics (hence the title "The Laws and Economics of Confucianism"): senior relatives within any kinship group were supposedly superior--socially, politically, and legally--to younger ones, parents to children, uncles to nephews.  The book shows how this led to a general norm of gerontocracy in local communities, and from there to "poor-friendly" property institutions.  It also argues in some detail that these status-distribution norms were fundamentally "cultural," in that, by at least the 17th Century, their popularity and influence was predominantly the product of widespread cultural internalization, rather than the equilibrium outcome of some material self-interest-based political economy.  For the vast majority of rural households, seniority-based social hierarchies were simply "right," so fundamental to their moral worldview that very few people dared challenge its legitimacy.

The book therefore seeks to link cultural commitments to legal change, and then to patterns of economic development.  It has many thematic connections to, but does not directly seek to explain, the early modern economic divergence between China and England that has driven an enormous amount of recent academic debate.  That literature has moved decisively against Weberian cultural paradigms in recent decades, but nonetheless remains enamored of institutional explanations for economic change.  If it continues to do so, then this book may serve as a cautionary note against rejecting cultural analysis in absolute terms.  Underlying cultural commitments can influence the shape and content of economic institutions even when those institutions themselves are not commonly thought of in moralistic or cultural terms. 

Sunday Book Review Roundup

If you want to curl up with a steaming cup of commodity history this winter, check out Simon Winchester’s review of two not-too-creatively titled books on the history of the British empire. The Taste of Empire: How Britain’s Quest for Food Shaped the Modern World is Lizzie Collingham’s “pointilliste picture of the world’s food economy in all its magical complexity,” encapsulated in the recreation of several dozen British meals. Erika Rappaport’s A Thirst for Empire: How Tea Shaped the Modern World is a history of the changing tea market. It is “a somewhat drier work than Collingham’s,” but “nonetheless fascinating,” according to Winchester, “especially for an academic
audience.” The paper’s collection of “notable books” of 2017 also includes several legal histories, like Ganesh Sitaraman’s The Crisis of the Middle‑Class Constitution: Why Economic Inequality Threatens Our Republic and Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America.

Michael Taube reviews Kenneth Whyte’s new biography of Hoover, which argues that “it was a Republican who opened the awful Pandora’s box to big government.” The Washington Post also reviews Linda Gordon’s The Second Coming of the KKK, which traces “the KKK’s tentacles across the country, particularly in the North,” “upending notions that the Klan was a marginalized group of backward, uneducated Southerners.”

The New York Review of Books is characteristically interested in histories with present-day ramifications. Adam Hoschild reviews Gordon’s book and Felix Harcourt’s Ku Klux Kulture: America and the Klan in the 1920's in a NYRB article called “Klu Klux Klambakes,” observing that the Klan of the 1920s “was a movement, but also a profit-making business.” Diane Ravitch’s Big Money Rules covers Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America by Nancy MacLean and The One Percent Solution: How Corporations Are Remaking America One State at a Time by Gordon Lafer, which “meticulously demonstrates how the Koch brothers and the Supreme Court’s Citizens United decision of 2010 have influenced elections and public policy in the state”. Robert Cottrell’s Russia’s Gay Demons is a review of The Future Is History: How Totalitarianism Reclaimed Russia by Masha Gessen.

In the Times Literary Supplement, Sarah J. Young reviews Daniel Beer’s The House of the Dead: Siberian exile under the Tsars. And in The Nation, J. Hoberman reviews Left Wing Melancholia: Marxism, History and Memory by Enzo Traverso. Although Traverso’s book takes its title from a 1931 essay in which Walter Benjamin “excoriated a fashionable group of Weimar writers for a left-liberalism that he believed was pitifully devoid of any corresponding action,” Traverso, according to Hoberman, “seeks to commemorate and dignify the vanquished.” 

Finally, NBN features interviews with Richard White about The Republic for Which it Stands: The United States during Reconstruction and the Gilded Age, 1865-1896 (which “makes a strong case for a wholesale reevaluation of the long period after the Civil War as more than just decades of missed opportunity; Americans spent those years fundamentally reshaping the republic itself.”); Paul Irish about Hidden in Plain View: The Aboriginal People of Coastal Sydney (which “debunks the myth that local Aboriginal people disappeared from Sydney within decades of the arrival of Europeans in 1788.”); Stephen F. Williams about The Reformer: How One Liberal Fought to Preempt the Russian Revolution (which “uses a biographic account of the life and career of Vasily Maklakov to explore issues of legality and rule of law in Tsarist Russia” from 1905 til the Bolshevik Revolution); Nikhil Pal Singh on Race and America’s Long War (a long history which “highlights how the policies and cultural norms of war have become deeply intertwined with, and often dependent on, the architecture of racial difference inside and outside the United States.”),Lawrence R. Douglas about The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial (which “examines the trial of John Demjanjuk,” once thought to be the “Ivan the Terrible of Treblinka”).

Saturday, December 2, 2017

Benton, Clulow & Attwood's Protection and Empire

Out now with Cambridge University Press is Protection and Empire: A Global History, edited by Lauren Benton (Vanderbilt), Adam Clulow (Monash), and Bain Attwood (Monash). From the publisher:
Protection and Empire
For five centuries protection has provided a basic currency for organizing relations among polities. Protection underpinned sprawling tributary systems, permeated networks of long-distance trade, reinforced claims of royal authority in distant colonies and structured treaties. Empires made routine use of protection as they extended their influence, projecting authority over old and new subjects, forcing weaker parties to pay them for safe conduct and, sometimes, paying for it themselves. The result was a fluid politics that absorbed both the powerful and the weak while giving rise to institutions and jurisdictional arrangements with broad geographic scope and influence. This volume brings together leading scholars to trace the long history of protection across empires in Asia, Africa, Australasia, Europe and the Americas. Employing a global lens, it offers an innovative way of understanding the formation and growth of empires and uncovers new dimensions of the relation of empires to regional and global order.
Table of Contents after the jump.