Weekend Roundup

• We may be late to the party, but, wow, Social Networks and Archival Context is a great guide to archival collections.  H/t: HKM
  

• Writing in the Washington Post, John Fabian Witt (Yale Law School) reviews Kate Masur's Until Justice Be Done.
  

• Also in the Washington Post ("Made by History"), Matthew Lassiter (University of Washington) on "How White Americans’ refusal to accept busing has kept schools segregated."

• "The scholarly e-journal Locus-Tijdschrift voor Cultuurwetenschappen, published by the Open University of the Netherlands, seeks papers around the issue of ‘The Coloniality of Natural History Collections.'"  More.  
  

• 
  Law, Politics, Public Health and Deadly Epidemics: A Conversation with John Fabian Witt on American Contagions (HNN).
  

• Stephen Sachs recalls being in Charles Donahue's legal history course--as an undergraduate (Harvard Crimson).   

• Catch the ABF book event for Tom Ginsburg and Aziz Z. Huq's edited volume, From Parchment to Practice: Implementing New Constitutions (CUP 2020): May 5 at 4-5pm CT. Register here.

• NARA transcribes documents from United States of America v. Alger Hiss (Catalog).  H/t: JQB

• Karla Luzmer Escobar Hernández (Max Planck Institute for Legal History and Legal Theory) wants legal historians to use transmedia history-telling to reach larger audiences. More here.

• From In Custodia Legis, a post in honor of National Deaf History Month (March 13 – April 15): Legislative History and Gallaudet University.

• Brittany Hunter of the Pacific Legal Foundation on America’s tragic history of discrimination against Asian-Americans.  Noah Feldman on the myth of Anglo-Saxon constitutionalism (Bloomberg).
  

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 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Symposium: The Federalist Constitution

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We have already noted some contributions to this excellent symposium issue, The Federalist Constitution, but it has now been published in full as Fordham Law Review 89:5 (April 2021):

Foreword
David S. Schwartz, Jonathan Gienapp, John Mikhail, & Richard Primus

Two Federalist Constitutions of Empire
Gregory Ablavsky

Without Doors: Native Nations and the Convention
Mary Sarah Bilder

President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era
Saul Cornell

In Search of Nationhood at the Founding
Jonathan Gienapp

Slavery’s Constitution: Rethinking the Federal Consensus
Maeve Glass

The Federalist Constitution as a Project in International Law
David M. Golove & Daniel J. Hulsebosch

The Unwritten Constitution for Admitting States
Roderick M. Hills Jr.

Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792
Thomas H. Lee

Executive Power and the Rule of Law in the Marshall Court: A Rereading of Little v. Barreme and Murray v. Schooner Charming Betsy
Jane Manners

Equal Footing and the States “Now Existing”: Slavery and State Equality over Time
James E. Pfander & Elena Joffroy

Reframing Article I, Section 8
Richard Primus

The Other Madison Problem
David S. Schwartz & John Mikhail

Presidential Removal: The Marbury Problem and the Madison Solutions
Jed Handelsman Shugerman

–Dan Ernst

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A French-Brazilian Legal History Webinar Series

[We have the following announcement of the online workshop series, French-Brazilian Chair of Legal History 2021 organized by José Reinaldo de Lima Lopes (University of São Paulo) and Nader Hakim (University of Bordeaux).  DRE.]

 

Details after the jump.

Today: Jones to Deliver Chase Lecture

Martha S. Jones (credit)

Today, from 7:00 - 8:30 p.m. EDT, Martha S. Jones,  Society of Black Alumni Presidential Professor and Professor of History, Johns Hopkins University, will deliver the Salmon P. Chase Distinguished Lecture, sponsored by the Georgetown Center for the Constitution and the Supreme Court Historical Society.  It will commemorate the centennial of the Nineteenth Amendment.  RSVP here for the link.

--Dan Ernst

Bilder on Native Nations and the Federal Convention

Mary Sarah Bilder, Boston College Law School, has posted Without Doors: Native Nations and the Convention, which is forthcoming in the symposium The Federalist Constitution, just out in volume 89 of the Fordham Law Review:

Henry Knox (LC)

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government.

--Dan Ernst

Telfer on Canada's First Superintendent of Bankruptcy

Thomas G. W. Telfer, Western Law, has posted an installment of his book in progress on Canadian bankruptcy law during the Great Depression as The New Bankruptcy "Detective Agency"? The Origins of the Superintendent of Bankruptcy in Great Depression Canada. It also appears in Canadian Business Law Journal 64 (2020): 22.  Here is the abstract:

W.J Reilley (credit)

In the depths of the Great Depression, R.B. Bennett’s Conservative government appointed W.J. Reilley as Canada’s first Superintendent of Bankruptcy. Reilley’s experience made him eminently qualified. He had trained as a lawyer and had been the Registrar of the Bankruptcy Court of Ontario at Osgoode Hall for many years. The creation of the federal Superintendent’s office in 1932 is one of the major milestones in the legislative history of Canadian bankruptcy law. In the bankruptcy law literature, there is a broad recognition that the 1932 reforms were vital. These accounts are incomplete. This article seeks to provide a fuller understanding of these reforms by examining sources of opposition to the establishment of the Superintendent’s office. Not all accepted the new regulatory approach and the prospects of a bankruptcy bureaucracy during the Depression. Within months of Reilley taking office, critics called into question his qualifications and demanded his resignation. Little is known about the 1932 reforms as the creation of the Superintendent’s office has largely been overshadowed in the insolvency field by the enactment of corporate reorganization legislation in 1933 and farm credit legislation in 1934

Dan Ernst

Barnes on Fleming on Law and Consumer Finance

Victoria Barnes has published Anne Fleming’s History of Law and Consumer Finance in Enterprise & Society.  The essay is available online and open access.  It commences:

This review article does not set out to retell the story of Anne Fleming’s life in a chronological fashion, but rather it engages intellectually with the themes in Anne’s scholarship. Anne’s passing means that her thoughts, guidance, and encouragement are lost to the scholarly communities of which she was a part. Over the course of her career, Anne offered sage advice, she helped others to develop their work, and she supported them wherever she could.1 Now, there will no longer be that voice in the conference room, the office, or the lecture hall. We will not know how her presence would have influenced the field in the years to come and how her engagement with other scholars would have shaped them. So I write to gather together the ideas within Anne’s work, hoping to provide a fuller set of insights than can be gleaned by reading pieces of her scholarship individually. This integrated and coordinated view is the sort of comprehensive thinking that she would have given in her interactions.

–Dan Ernst

Virtual Workshop: Law in Transmission, c. 400-1500

[We share the following announcement.]

The Comparative Law Workshop 2021 will take place as a Zoom webinar on 5-7 May 2021. Please register here for "Law in Transmission: The Movement of Practices, Texts and Concepts across Time and Space, c.400-1500." 

All times are given in British Summer Time.

Zier on "Feminism, Insanity, and Property Rights in 1940s America"

Magdalene Zier (JD/PhD candidate, Stanford Law School) has posted "'Champion Man-Hater of All Time': Feminism, Insanity, and Property Rights in 1940s America," which is forthcoming in the Michigan Journal of Gender & Law. Here's the abstract:

Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist.

This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy. 

The full article is available here.

-- Karen Tani

Merle Curti Intellectual History Award Honorable Mention to Holdren

The Organization of American Historians has announced its 2021 awards winners. We were pleased to see former guest blogger Nate Holdren (Drake University) come away with an Honorable Mention for the Merle Curti Intellectual History Award. The citation reads:

Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press) is a beautifully written andmoving study that unearths the values and assumptions that shaped the development of workers’ compensation law in the early twentieth century. Through careful and rigorous research, Holdren highlights the moral and bodily consequences of this new legal regime for accident victims, compellingly suggesting that workers’ compensation law reinforces the injustices of capitalism rather than producing what he calls the “justice of recognition.” This book offers new and compelling insights for various fields of study, including legal history, histories of capitalism, and disability history.

The winner of the award was Garrett Felber (University of Mississippi), for Those Who Know Don’t Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State (University of North Carolina Press). 

-- Karen Tani

TerBeek on the history of living constitutionalism

 Calvin TerBeek (University of Chicago) has published the following review essay: "The Search for an Anchor: Living Constitutionalism from the Progressives to Trump," Law & Social Inquiry (published online on 12 April 2021), 1-30. Here's the abstract: 

Over a century after the Progressives’ devised “living constitutionalism,” its latter day adherents have fought conservatives’ originalism to an intellectual standstill and a political rout. Bookended by discussions of three books by legal liberals (Jack Balkin, Erwin Chemerinsky, Geoffrey Stone and David Strauss) and a book and article by progressive constitutional scholars (Mark Tushnet, David Pozen and Adam Samaha), this essay argues that legal liberalism today is intellectually exhausted. In developing a “critical constitutionalism,” those to their left have better identified constitutional law and theory’s pathologies and potential. The overarching claim is that professional and ideological factors have led legal liberals to misapprehend the uses and limitations of constitutional theory. The essay concludes by suggesting legal liberals move past debates about originalism and begin to think anew about what (legal) liberalism has to offer American constitutionalism.

Further information is available here.

--Mitra Sharafi

Peck on the Failed Attempt to Tax West Virginia Coal

Alison Peck, West Virginia University College of Law, has posted Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, which is forthcoming in the West Virginia Law Review:

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state. 

--Dan Ernst

Book Launch for Lustig's "Veiled Power"

The Institute for International Law and Justice at NYU Law is hosting a book launch for Veiled Power, International Law and the Private Corporation 1886-1981 by Doreen Lustig on April 20, 2021, from 9:00am - 11:00am ET:

Veiled Power chronicles the emergence of the contemporary legal architecture for corporations in international law between 1886 and 1981. Weaving together five in-depth case studies—Firestone in Liberia, the Industrialist Trials at Nuremberg, the Anglo-Iranian Oil Company, Barcelona Traction and the emergence of the international investment law regime—Doreen Lustig traces the relationship between two legal ‘veils’: the sovereign veil of the state and the corporate veil of the company. The interplay between these two veils constitutes a conceptual framework that the book offers for the legal analysis of corporations in international law. Ultimately, Lustig suggests that, contrary to the prevailing belief that international law failed to adequately regulate private corporations, history reveals a close engagement between the two that allowed corporations to exert influence under a variety of legal regimes while obscuring their agency.

Responders:

B. S. Chimni, Distinguish Professor of International Law, Jindal Global Law School.

Megan Donaldson, Lecturer in Public International Law Faculty of Laws, UCL.

Martti Koskenniemi, Professor of International Law and Director of the Erik Castrén Institute of International Law and Human Rights, University of Helsinki.

Glenda Sluga, Professor of International History, University of Sydney.

Moderator: Benedict Kingsbury, Director of the Institute for International Law and Justice, Murry and Ida Becker Professor of Law, and Vice Dean for Global Programs, NYU School of Law.

--Dan Ernst

Weekend Roundup

•  On April 22, Georgetown University Law Center will host an event on "Violence against Asian Americans: What Legal History Reveals," featuring Gabriel "Jack" Chin (UC Davis) and Madhavi Sunder (Georgetown Law). Register here. 
  

• 
  The Department of Legal and Constitutional History of the University of Vienna warmly invites everyone interested to participate in the online book symposium on Martin Schennach’s (Innsbruck) ‚Austria inventa?‘ Zu den Anfängen der österreichischen Staatsrechtslehre.  The panelists are Natasha G. Wheatley (Princeton), Jana Osterkamp (Munich), Peter Becker (Vienna), Gerald Kohl (Vienna), and Sebastian M. Spitra (Moderator).  The symposium takes place via Zoom on Thursday, 22 April 2021, 3pm (Vienna time).
  

• "At Harvard, a growing focus on Islamic law: Professor Intisar Rabb discusses interpreting ancient principles for a new world" (Harvard Law Today).

• For interdisciplinary legal scholars concerned about US News' proposed use of Hein citation metrics (which exclude many peer-reviewed journals and books): Bonnie J. Shucha (University of Wisconsin Law Library) shows here just how big this effect can be.

• Scholars of colonialism: UN Human Rights Special Rapporteur Fabián Salvioli is seeking information on "the legacy of serious violations of human rights and humanitarian law committed in colonial contexts" by 7 May 2021. Questionnaire here (all questions optional).

• The Historical Society of the New York Courts has posted The Lemmon Case: 1852-1860: A Prelude to the Civil War, a seven-minute film “about a New York Court of Appeals decision that freed eight slaves brought to New York from Virginia in 1852.” (Queens Daily Eagle). 

• The virtual Buddhism and Comparative Constitutional Law workshop, organized by Tom Ginsburg and Benjamin Schonthal, is ongoing this semester. Plenty of legal history included.

• From the Washington Post's "Made by History" section: Max Felker-Kantor (Ball State University) on "the hidden obstacle to police accountability."

• Department of Institutional Kvelling. Guggenheim Division: North Carolina State on Julia Rudolph for her project “The Search for Security: Mortgage, Fairness and Fraud in the British Empire.”  Stanford Law on Amalia Kessler for her project on the origins of American arbitration.  Presidential Supreme Court Reform Commission Division: Princeton on Keith Whittington and three alumni (Heather Gerken, Rick Pildes, Bertrall Ross).  University of Chicago Law School on faculty members William A. Baude, Alison L. LaCroix, and David A. Strauss.
  

• ICYMI: Sarah Seo on overpolicing traffic violations (NYT).  Clarence Darrow speaks in Quincy, Illinois in 1913 (Herald-Whig).  Kate Masur’s Until Justice Be Done reviewed (NYT).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Virtual conference: Working with Intellectual Property

 [We share the following announcement.] 

The Third Annual Conference of the Stanford Center for Law and History will take place virtually on April 23, April 30, and May 7, 2021. 

Here is the program with abstracts for Working with Intellectual Property: Legal Histories of Innovation, Labor, and Creativity. 

You can register here.

--Mitra Sharafi

Federal History 2021

Federal History: Journal of the Society for History in the Federal Government 13: 2021 is available online.  Here’s the TOC:

Editor’s Note
Benjamin Guterman

Roger R. Trask Lecture
Bill Williams

The Case for John Jay’s Nomination as First Chief Justice
Benjamin Lyons

“This disease . . . knows no State boundaries”: The 1918 Spanish Influenza Epidemic and Federal Public Health
Jonathan Chilcote

“America must remain American”: The Liberal Contribution to Race Restrictions in the 1924 Immigration Act
Kevin Yuill

The Combined Chiefs of Staff and the Public Health Building, 1942–1946
Christopher Holmes

Federalism and the Limits on Regulating Products Liability Law, 1977–1981
Ian J. Drake

Gerald Ford’s Clemency Board Reconsidered
Alan Jaroslovsky

Interview An Interview with Chandra Manning
Benjamin Guterman

--Dan Ernst

Bose and friends on South Asian migrations

 Neilesh Bose (University of Victoria) has edited South Asian Migrations in Global History: Labor, Law, and Wayward Lives, published with Bloomsbury in 2020. From the press: 

This collection explores how South Asian migrations in modern history have shaped key aspects of globalization since the 1830s. Including original research from colonial India, Fiji, Mexico, South Africa, North America and the Middle East, the essays explore indentured labour and its legacies, law as a site of regulation and historical biography.

Including recent scholarship on the legacy of issues such as consent, sovereignty and skilled/unskilled labour distinctions from the history of indentured labour migrations, this volume brings together a range of historical changes that can only be understood by studying South Asian migrants within a globalized world system.

Centering South Asian migrations as a site of analysis in global history, the contributors offer a lens into the ongoing regulation of labourers after the abolition of slavery that intersect with histories in the Global North and Global South. The use of historical biography showcases experiences from below, and showcases a world history outside empire and nation.

Table of Contents after the jump 

Foreword, Victor V. Ramraj
Prologue: Archives, Paper Regimes, and Mobility, Uma Dhupelia-Meshtrie
Introduction, Neilesh Bose

Part 1: Impacts of Indentured Labor

1. Gokhale, Polak, and the end of Indian indenture in South Africa, 1860 – 1911, Goolam Vahed
2. Imperial Labor: Labor, Security, and the Depoliticization of Oil Production in the Arabian Peninsula, Andrea Wright
3. Legal Discourse on 'Coolies' Migration from India to the Sugar Colonies, 1837-1922, Ashutosh Kumar

Part II: Law in Migration Histories

4. Slavery, Abolitionism, Indentured Labor: the Problem of Exit and the Border Between Land and Sea in Colonial India, Riyad Koya

5. Who is Asiatic? Drawing the Boundary in the Legal and Political Framing of Indian South Africans, 1860-1960, Marina Martin


Part III: Historical Biography

6. Taraknath Das: A Global Biography, Neilesh Bose

7. Beyond the Reach of Empire: Pandurang Khankhoje´s Transit from British Colonial Subject to Mexican 'Naturalizado' (1924-1954), Daniel Kent-Carrasco

8. A Woman of Peace and Calm: the Story of Senthamani Govender, Devarakshanam Govinden

Epilogue: Oceanic Currents and Wayward Crossings, Renisa Mawani

Further information is available here.

--Mitra Sharafi

Jones to Deliver Fulton Lecture

 Tomorrow (Friday, April 16, 2021) from 12:15pm-1:20pm Central Time, Martha S. Jones, Society of Black Alumni Presidential Professor, Professor of History, and a Professor at the SNF Agora Institute at The Johns Hopkins University, will deliver the 2021 Maurice and Muriel Fulton Lecture in Legal History at the University of Chicago Law School–or rather virtually.  Register here.  Her topic is Vanguard: Leading on Voting Rights, Leading the Nation:

When Vice President Kamala Harris invoked six women from the past in August 2020, she explained it was on their shoulders that she stood: Mary Church Terrell, Ida B. Wells, Mary McLeod Bethune, Diane Nash, Fannie Lous Hamer, and Constance Baker Motley. Harris is the inheritor of these women of the Vanguard. For them, the 19th Amendment was a milestone but not a victory. When we appreciate what an open secret Black women’s disenfranchisement was in 1920, the facts of the 19th Amendment fit awkwardly with events that feature light shows, period costumes, and marching bands. Members of Congress who promulgated the 19th Amendment, state lawmakers who ratified it, and suffragists themselves all understood that nothing in its terms prohibited states from strategically using poll taxes, literacy tests, and understanding tests to keep Black women from registering to vote. Nothing in the new amendment promised to curb the intimidation and violence that threatened Black women who came out to polling places. Voting rights and voter suppression went hand in hand in 1920. Out of the ashes of these scenes, Black women built a new movement for voting rights, one that took them 45 years, until 1965, when they won passage of the Voting Rights Act.

--Dan Ernst.  H/t:JG

ASLH's Wallace Johnson Program for First Book Authors

 [We share the following announcement. -MS]

Wallace Johnson Program for First Book Authors Sponsored by the American Society for Legal History 

Deadline for Applications:  July 15, 2021

The Wallace Johnson Program for First Book Authors organized by the American Society for Legal History (ASLH) is designed to provide advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants will learn about approaching and working with publishers, and will develop and revise a book proposal and one to two sample chapters.

Applications for Johnson Fellows are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs and are working on first books in legal history. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are scholars who may not (yet) identify as legal historians.

The 2021-22 Johnson Program will be led by Professor Reuel Schiller, with the participation of other senior legal historians.

Up to 5 Fellows will be selected. Fellows must commit to participation in all elements of the program. Each will receive substantial funding for travel and accommodation related to the program, with a small supplement to participants who do not have institutional support for travel and research.

Fellowship details and application instructions are available at: https://aslh.net/award/wallace-johnson-first-book-program/

Please direct any questions to Barbara Young Welke, Chair of the 2021 Johnson Program for First Books Authors Committee, University of Minnesota, [email protected]..

--Mitra Sharafi

Virtual book talk: Fei-Hsien Wang on copyright in China

 [We share the following announcement. Fei-Hsien Wang's book, Pirates and Publishers won the Stein Award in 2020.]

Asian Legal History Seminar Series 

Book Talk: Pirates and Publishers: A Social History of Copyright in Modern China (Princeton: Princeton University Press, 2019)

Date & time: Friday, 16 April 2021, 10am-11.30am Hong Kong time

Speaker: Dr. Fei-Hsien Wang (Indiana University Bloomington)

Respondent: Dr. Michael Ng (University of Hong Kong)

Fei-Hsien Wang is an associate professor in the Department of History in Indiana University Bloomington. She is a historian of modern China with a particular interest in how information, ideas, and practices were produced, transmitted and consumed across different societies in East Asia. 

Michael Ng is an associate professor in the Faculty of Law in the University of Hong Kong. His research focuses on the legal history of China and Hong Kong in the 19th and 20th centuries. 

Please register here.

--Mitra Sharafi

Berger on Race and Property

Bethany Berger, University of Connecticut School of Law, has posted Property to Race/Race to Property:

In the United States, property and race shape each other. This has been true since colonization and is equally true today.

First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism.

Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all.

Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.

–Dan Ernst

Quadri on Islamic Law in Colonial Modernity

Oxford University Press has published Transformations of Tradition: Islamic Law in Colonial Modernity (Mar. 2021), by Junaid Quadri (University of Illinois at Chicago). A description from the Press: 

Transformations of Tradition probes how the encounter with colonial modernity conditioned Islamic jurists' conceptualizations of the shari'a. Departing from the tendency to focus on reformist-minded thinkers and politically charged issues, Junaid Quadri directs his attention towards the overlooked jurisprudential writings of Muhammad Bakhit al-Muti-i (1854-1935), Mufti of Egypt and a frequent critic of the famed reformists Muhammad 'Abduh and Rashid Rida. There, he locates a remarkable series of foundational intellectual shifts. Offering a fresh perspective on a pivotal period in the history of Islamic thought, Quadri tracks how Bakhit reworks the relationship of the shari'a to categories of understanding as fundamental as history and authority, science and technology, and religion and the secular, thereby upending the very ground upon which Islamic law had until then functioned. Through close readings of complex legal texts and mining of oft-neglected archives, this carefully researched study situates its argument in both the contested scholarly world of a quickly-changing Cairo, and the transregional school of Hanafi law as represented by jurists writing in Kazan, Lucknow, and Baghdad. Examining Islamic jurisprudential discourse in the colonial moment, Transformations of Tradition uncovers a shari'a that is neither a medieval holdover nor merely a pragmatic concession to the demands of a new world, but rather deeply entangled with the epistemological commitments of colonial modernity.

More information is available here. You can listen to an interview with the author here, at New Books Network.

-- Karen Tani

Documents from Nigeria: The Self-Help Books of Nkem Liliwhite-Nwosu

In this series, Samuel Fury Childs Daly looks at four legal documents (broadly construed) from Nigeria during its long period of military rule. This is the second of four.

In the same way that a historian might consult Samuel Pepys’ diary on just about any topic in 17th century England, I turn to a little-known self-help writer named Nkem Liliwhite-Nwosu about 20th century Nigeria. She was a sharp observer of her world, and I reach for her books whenever I’m looking for an unvarnished take on a debate or controversy from the 1960s to the 1990s. There is hardly a topic that she did not feel strongly about, nor an event that she did not find herself on the fringes of. She was an autodidact and a natural writer, and it’s easy to get lost in her propulsive, expletive-filled prose.

Liliwhite-Nwosu was not an important figure in Nigerian history. She owned a motel in Surulere, a working-class part of Lagos, and she made a modest fortune by striking a deal with the Nigerian Football Association to accommodate visiting teams when they came to town. But her success did not make her easygoing. She lived her life in a near-constant rage, doing battle with every authority figure who had the misfortune of crossing her path. Her piety did not mellow her, and even though her books are nominally guides for how to be a better Christian woman, they are also unrelentingly angry descriptions of life under military rule. The “jackboots” who controlled the country, she wrote, were “blue-blooded aristocrats who spoke with authority through the nozzle of the gun; ignorant greenhorns who claimed to have the solution to problems which their refined, erudite, old fathers could not solve, and who ended up compounding the problems for us all.” She writes vividly about the humiliations she experienced, and her books are a reminder of how much fury civilians – especially women – felt towards Gowon, Buhari, and other soldier-leaders who are now remembered as “moderates.” 

She was also extremely litigious, which is why I find her writings so useful. She obtained her motel in shady circumstances, and she spent decades in court defending her claim to the property (and hashing out the details of her ever-contentious relationship with the football association). She did not suffer fools gladly. This put her at odds with her neighbors, her rivals, and, as she put it, the “fools in uniform” who ran the country during her lifetime. This stance got her in trouble constantly, so she also became an expert at combating criminal charges. She describes the law from the perspective of someone who lived in it; her accounts of her legal battles show much more about Nigeria’s legal culture than court records would alone. She describes what it was like to navigate martial law as a civilian, and how people wielded it against both the state, and against one another. She tells us not only how she and her lawyers crafted arguments, but which gimmicks worked in front of a military judge and which ones didn’t. 

It is important to think about what law meant to someone like Nkem Liliwhite-Nwosu. In Nigeria’s military regimes, there were few avenues for ordinary people to stick up for themselves, or to criticize the state. There was no legislature that spoke for them, and no constitution that enshrined their basic rights. Petitions usually fell on deaf ears. Publicly shaming soldiers sometimes worked, but it could backfire dramatically if one wasn’t careful. Liliwhite-Nwosu embraced the legal system because she had nowhere else to turn. The courtroom was the only place where she could corner the authorities, and she cornered them whenever she could. She saw life in Nigeria as one long “trial,” as her book titles attest, and she spent a substantial chunk of hers in court. I hope every historian of law has a litigant who left behind as poetic (and exhaustive) an account of her trials as Nkem Liliwhite-Nwosu. 

Nkem Liliwhite-Nwosu’s books, which overlap substantially in content, are Divine Restoration!: Testimonies of Our Motherland on Trial (Lagos: self-published, 2002) and Divine Restoration of Nigeria: Eyewitness Account of Her Trials and Triumphs (Lagos: CSS Bookshops, 2004). 

-- Samuel Fury Childs Daly 

[email protected]

@sfcdaly

Chin and Finkelman on Birthright Citizenship and the Slave Trade

Gabriel Jackson Chin, University of California, Davis School of Law, and Paul Finkelman, Gratz College, have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation, which is forthcoming in volume 54 of the UC Davis Law Review (2021):

In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.

This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.

–Dan Ernst

CFP: 6th TAU Workshop for Junior Scholars in Law

Legal Change in Revolutionary Times: The 6th TAU Workshop for Junior  Scholars in Law, November 14-16, 2021

The Tel Aviv University Buchmann Faculty of Law is pleased to invite submissions to its sixth junior legal scholar workshop. The workshop provides junior scholars with the opportunity to present and discuss their work, receive meaningful feedback from faculty members and peers, and actively participate in an international community of junior legal scholars.

The upcoming 2021 TAU workshop for junior scholars in law, which will be held in Tel-Aviv University Law School on November 14-16, 2021, will be dedicated to "Legal Change in Revolutionary Times." We are seeking cutting-edge works in progress, in varied legal fields and written from a variety of methodological and theoretical perspectives, that investigate the role of law in revolutionary times, and we welcome works that broadly relate to the core themes of the workshop.

Themes of the Workshop.  We live in revolutionary times. The word change fails to capture the radical transformations, revolutions indeed, that our planet and societies are undergoing: climate change, extreme automation and the emergence of artificial intelligence, genetic modification, the rise of new authoritarian regimes and radical political ideologies, and the spread of the Covid-19–just to name a few. Together and separately, these revolutions threaten individuals and communities (but also create and foster the emergence of new ones), reorient industries and work, disrupt ways of life, reinvent what is the human, and reorganize hierarchies of power.  Questions regarding the social, moral and political order, which seemed to have been long settled–such as the normative dominance of liberal democracy–are now in accelerating flux, seemingly more open to debate but also more vulnerable to violent conflict than before.

The question of legal change and its interaction with-resistance to, collaboration with, responsibility for, responses to-ecological, economic, technological, cultural, and social changes, perhaps revolutions, is paramount. In the Workshop we will be exploring various related questions, contemporary as well as historical, for example: Is there a difference between the role of law in times of change and gradual evolution as against its function in revolutionary times? And if so - what is the difference? What is the function of law in framing changes as "evolutions" or conversely, as "revolutions"? What is its role in designating political and social struggles as revolutionary? Are current theoretical frameworks, such as transitional justice or theories of democratization, well suited for addressing new forms of change? Is the law a tool that fosters and enables social change or is it a tool for mitigation and preservation of the status quo?  Consider, for example, the division of labour between government and civil society - Does the law function as an agent of change, as directing it, or only reacting to it - and how should it function? Why do some changes seem to appear sudden, thus creating a sense of emergency? Is a state of emergency only an excuse to implement radical legal change, such as enforcing strict limitations on civil liberties, and civil society organizations? Or is a state of emergency a necessary legal mechanism implemented momentarily?     

Those questions are not new, and the balance between dynamic change and traditional stasis lies at the heart of many legal theories. Yet engaging with them in times of what could, at least in retrospect, be considered as revolutions, can make us reconsider our approach to change, specifically regarding the balance between the law's flexibility and predictability.

ICS Seminar on Affirmative Action

[We have the following announcement.  DRE]

The Institute for Constitutional Studies is pleased to announce another seminar for advanced graduate students and junior faculty, Affirmative Action.

Prior to the pandemic and the economic downturn, affirmative action was one of the most divisive issues in public policy. While it is closely tied to issues of racism (past and present), it also has strong ties to the women’s movement, Hispanic rights, and disability programs. Normally we start looking at affirmative action in the Kennedy-Johnson years, but in fact its roots go back to Reconstruction after the Civil War. There are two types of affirmative action programs, which I label “hard” and “soft,” and the distinction will be at the heart of the discussion. There is a story of an administrative agency run wild, and of course, there are court cases. One must bear in mind that this is not a simple liberal vs. conservative debate, for some of the fiercest critics have been liberals. We will end the course with a look at the most recent case that involved Harvard and Asian-American students.

Instructor.  Melvin I. Urofsky is professor emeritus of history at Virginia Commonwealth University. He is the longtime editor of the Journal of Supreme Court History and has written widely on American constitutional development. His most recent books are the prize-winning Louis D. Brandeis: A Life (2009), Dissent and the Supreme Court (2015), and The Affirmative Action Puzzle (2020).

Logistics.  Thursday afternoons, 3:50–5:50 p.m., October 7, 14, 21, 28, November 11, and 18, 2021. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at [email protected] until September 1, 2021. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at [email protected].

Additional information.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Symposium on Corpus Linguistics and Original Meaning

Georgia State University Law Review 36:5 (2020) was a symposium issue devoted to papers on corpus linguistics and original meeting, the result of a workshop jointly sponsored by the College of Law and the Department of Applied Linguistics and English as a Second Language at Georgia State University in October 2019.  Here are the contents:

Foreword: Lawyers and Linguists Collaborate in Using Corpus Linguistics to Produce New Insights Into Original Meaning
Clark D. Cunningham

Using Empirical Data to Investigate the Original Meaning of “Emolument” in the Constitution.
Clark D. Cunningham and Jesse Egbert

Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer?
Tammy Gales and Lawrence M. Solan

“Questions Involving National Peace and Harmony” or “Injured Plaintiff Litigation”? The Original Meaning of “Cases” in Article III of the Constitution
Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, and Jesse Egbert

Effective but Limited: A Corpus Linguistic Analysis of the Original Public Meaning of Executive Power
Eleanor Miller and Heather Obelgoner

“We the Citizens?”: A Corpus Linguistic Inquiry into the Use of “People” and “Citizens” in the Founding Era

--Dan Ernst

Mikhail reviews Schwartz's "Spirit of the Constitution"

John Mikhail, Georgetown University Law Center, has posted McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause, a review essay on David Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland for Constitutional Commentary:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution. On a broad reading, these ends also include the six great objects of the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

This extended review of David Schwartz’s masterful new study of McCulloch (“The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland”) shines a spotlight on the second, broader reading of the “Let the end be legitimate” passage, focusing on what happened to its robust conception of implied powers during five key episodes of the early Republic:

(1) The Virginia Ratifying Convention (1788);
(2) Congressional debates over constitutional amendments (1789);
(3) Congressional debates over abolition petitions (1790);
(4) Congressional debates over a national bank (1791); and
(5) United States v. Fisher (1805), the Marshall Court’s first Necessary and Proper Clause case.

Like Thomas Jefferson, James Madison, and other elite Virginians whose wealth rested on human bondage, John Marshall probably did not believe, or at any rate was unwilling to accept, that Congress could abolish slavery—even though he knew that a plausible interpretation of the Preamble and Sweeping Clause justified that conclusion. Likely for that very reason, his defense of implied powers in McCulloch was deliberately ambiguous.

--Dan Ernst

Weekend Roundup

• On Thursday, Victoria Woeste, who is retired from a Research Professorship at the American Bar Foundation (virtually) presented her article in progress “Practicing God’s Law in a Secular World: The Civil Rights Law Practice of the Rev. Fred W. Phelps Sr., 1964-2011,” at the University of North Carolina School of Law. 
  

• Congratulations to Maeve Glass, associate professor of law at the Columbia Law School, upon her being awarded the Willis L.M. Reese Prize for Excellence in Teaching by students in the graduating Class of 2021.  Her teaching includes a seminar of the Legal History of American Slavery.
  

• The Essex Historical Society is holding a three-part lecture series, “A Shared Past: Early African Americans in the Lower Connecticut River Valley.”  We note particularly that on Sunday, May 16 at 3 p.m. Dr. Jesse Nasta, a visiting assistant professor of African American studies at Wesleyan University, is scheduled to present “Sailors and Freedom Fighters: African Americans in the Connecticut River Valley, 1765–1865.” 
  

• At 6 p.m. on Wednesday, April 14, the Delaware County Historical Society  will host a free dialogue on “Women’s Journey for Equal Rights.” Registration is necessary here.  “The program will highlight the contributions of Alice Paul, a county resident who attended Swarthmore College and transformed constitutional history.  (Daily Times.)
  

• The members of the Presidential Commission on the Supreme Court of the United States are listed here.
  

• The Missouri Supreme Court has launched a website celebrating the bicentennial of the state’s judiciary (Courier Tribune).
  

• Angela Fernandez on Christopher L. Tomlins’s In the Matter of Nat Turner on Jotwell.
  

• The Policy History Conference scheduled for this June has been canceled.  One will be held on June 1-4, 2022 in Tempe, Arizona.  A new call for papers, with the following submission guidelines, will go out in the coming weeks. 
  

• Universities Studying Slavery will hold a virtual conference on April 15-16, 2021 at Georgetown University.  It is a consortium of 80 colleges and universities that meets twice yearly “to explore best practices and guiding principles about truth-telling projects addressing enslavement and racism in institutional histories.”  Register here.  Panels will be recorded and available through Georgetown’s Slavery, Memory, and Reconciliation website for viewing at a later date.
  

• 
  The “Centro de Investigação de Direito Privado (University of Lisbon - Faculty of Law), will hold an international conference/webinar on Indeterminate Concepts - 14, 15 and 16 of April /2021 (2:30 pm until 19:30 pm, BST). ... Presentations (in Portuguese) will be delivered by Portuguese and Brazilian professors.  Each session will have one hour of open debate and discussion.  The conference is free. Prior registration is required.  
  

• Sarah B. Dine reviews John Fabian Witt’s American Contagions in Health Affairs.
  

• ICYMI: A report of Martha Minow’s Grob Lecture on American Jewish Life at UVA (Cavalier Today).  Genna Rae McNeil–the first "Black tenure-track faculty member in UNC's history department–will retire this semester after working at UNC for 36 years” (Daily Tar Heel).  A crowd research project on racially restrictive covenants in Chicagoland (WBEZ).  Julie Suk on the ERA (Ms.)
  

  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Guggenheim Fellowships to Kessler, Perry, Premo, Rudolph & more

The John Simon Guggenheim Memorial Foundation has announced its 2021 fellows. We were excited to see multiple scholars whose work engages law and history:

• Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and Professor (by courtesy) of History, Stanford University 
  

• Imani Perry, Hughes Rogers Professor of African American Studies, Princeton University
  

• Bianca Premo, Professor of History, Florida International University
  

• Julia Rudolph, Professor of History, North Carolina State University
  

Congratulations to all!

-- Karen Tani

Houser's "Bureaucrats of Liberation"

Myra Ann Houser, Associate Professor of History, Ouachita Baptist University, has published Bureaucrats of Liberation: Southern African and American Lawyers During the Apartheid Era (Leiden University Press, distributed by the University of Chicago Press, 2021):

Bureaucrats of Liberation narrates the history of the Southern Africa Project of the Lawyers’ Committee for Civil Right under law, a civil rights organization founded in 1963 at the request of President John F. Kennedy. Between 1963 and 1994, the Southern Africa Project connected lawyers from Namibia, South Africa, and the United States. Within the Project’s network, activist lawyers exchanged funding resources, provided logistical support for political trials, and mediated new voting and governmental systems.

The Project’s history provides a lens into twentieth century geopolitics tied to anti-apartheid, decolonization, Cold War, and movements agitating against white supremacy. In doing so, it pays careful attention to the Project’s different eras, beginning with US Executive Branch officials helming the effort and evolving into a space where more activist-oriented attorneys on both sides of the Atlantic drove its mission and politics.

--Dan Ernst

Weidemaier on Lawyers, Self-Government and the London Stock Exchange

W. Mark C. Weidemaier, University of North Carolina at Chapel Hill, has published Law, Lawyers, and Self-Governance During the Heyday of the London Stock Exchange in Law and Contemporary Problems 82 (2019): 195-223.  From the article:

This Article draws on original archival research, including the minutes of [London Stock Exchange (LSE)] committee meetings and correspondence with solicitors, to examine how the LSE managed its relationship with English courts and common law in the late nineteenth and early twentieth centuries. By studying that problem—rather than the problem of enforcing bargains—we can see the artificiality of any neat dichotomy between private and public legal systems. To keep English courts from disrupting its affairs, the LSE used both extralegal tools—for example, expelling members who filed prohibited lawsuits—and legal tools—such as monitoring judicial developments and funding litigation. Regardless of the nature of the tool, lawyers often shaped its response, and their advice was guided by explicitly legal concerns.

–Dan Ernst

Lustig on international law and the private corporation

Doreen Lustig (Tel Aviv University) published Veiled Power, International Law and
the Private Corporation, 1886-1981 with Oxford University Press in 2020. From the publisher: 

Veiled Power conducts a thorough historical study of the relationship between international law and business corporations. It chronicles the emergence of the contemporary legal architecture for corporations in international law between 1886 and 1981. Doreen Lustig traces the relationship between two legal 'veils': the sovereign veil of the state and the corporate veil of the company. The interplay between these two veils constitutes the conceptual framework this book offers for the legal analysis of corporations in international law. 

By weaving together five in-depth case studies - Firestone in Liberia, the Industrialist Trials at Nuremberg, the Anglo-Iranian Oil Company, Barcelona Traction and the emergence of the international investment law regime - a variety of contexts are covered, including international criminal law, human rights, natural resources, and the multinational corporation as a subject of regulatory concern. Together, these case studies offer a multifaceted account of the history of corporations in international law over time. 

The book seeks to demonstrate the facilitative role of international law in shaping and limiting the scope of responsibility of the private business corporation from the late-nineteenth century and throughout the twentieth century. Ultimately, Lustig suggests that, contrary to the prevailing belief that international law failed to adequately regulate private corporations, there is a history of close engagement between the two that allowed corporations to exert influence under a variety of legal regimes while obscuring their agency.

 Praise for the book:

"... Lustig has produced a compelling and well-documented narrative. Scholars of international law as well as legal historians and legal theorists will find much to their interest in this monograph, which deserves to be read widely." - Filip Batselé

"Lustig's work is an excellent piece of scholarship providing much information regarding the direct paradigms that shape multinational corporations in international law and is a useful reference tool for those who are working on the history of international economic law." - P. Sean Morris

Further information is available here.

--Mitra Sharafi

Luban on Two Third Reich Lawyers

David Luban, Georgetown University Law Center, has posted Complicity and Lesser Evils: A Tale of Two Lawyers, which is to appear in the Georgetown Journal of Legal Ethics with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince:

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.

 --Dan Ernst

Chin and Chin on the War against Asian Sailors and Fishers

Gabriel Jackson Chin, University of California, Davis School of Law, and Sam Chew Chin, CUNY Graduate Center, have posted The War Against Asian Sailors and Fishers, which is forthcoming in the UCLA Law Review:

Beginning in the 1880s, maritime unions sought federal legislation to prevent Chinese, Japanese, Filipino, and Asian Indian sailors from serving as crew on U.S.-Flag vessels. This campaign succeeded in mandating citizenship requirements for crews which remain in the U.S. Code today. Similarly, federal and state laws limited the ability of Asians to fish, own fishing boats, or to serve on crews of fishing vessels. Few of these laws targeted Asians by name, but legislative history and contemporary media accounts make clear that racial exclusion motivated many facially neutral requirements such as literacy tests and restriction of jobs to citizens or those who had declared their intention to become citizens. As U.S. law restricted naturalization by race from 1790 to 1952, requiring citizenship had direct racial effects—white immigrants could be fishers or sailors, but not Asian immigrants. The expansiveness of exclusionary laws across time, geography, and level of government, its use of proxy categories to achieve racial discrimination, and yet its obscurity today, suggest the comprehensive nature of racial discrimination in the pre-Civil Rights era.

--Dan Ernst

CFP Workshop on the UN War Crimes Commission

[We have the following announcement.  DRE]

The United Nations War Crimes Commission (UNWCC), which operated from 1943-48, was a UN agency that supported localised prosecutions of international crimes committed during the Second World War. The Commission was composed of representatives from 16 Allied States and through its work war crimes and crimes against humanity were prosecuted in tribunals located in Europe and the Far East. Over the course of its lifetime, more than 2000 trials took place. The work of the UNWCC gives an insight into substantive and procedural international criminal law in the post war period.

Dr. Amina Adanan of Maynooth University Law Department is organising two online events this year, as part of her project on the UNWCC funded by the Royal Irish Academy. The aim of the project is to bring together UNWCC scholars from all over the world in an international collaborative network.

The first of these virtual events is a workshop, which will take place on 28 May 2021. The online workshop is an opportunity for UNWCC scholars to present on any aspect of their UNWCC research and receive feedback on their work from the other experts and attendees in a constructive environment. Presentations will be 10-15 mins and the event will include keynote lectures by leading scholars on the UNWCC.

Submissions for active participation in the workshop are sought by scholars working in the field. The closing date for submissions is 20 April 2021. For more information please click here.

Documents from Nigeria: A Photograph of Sir Egbert Udo Udoma

In this series, Samuel Fury Childs Daly looks at four legal documents (broadly construed) from Nigeria during its long period of military rule. This is the first of four. 

In the photograph I have of him, Sir Egbert Udo Udoma is seated in his chambers at the High Court in Kampala, Uganda, looking grumpily into the camera in full ceremonial dress. He autographed it grandly, and dated it May 1965, two years into his tenure as Uganda’s Chief Justice. Unlike the other sources I’ll write about this month, this one is not held by an archive or library. Rather, it comes from a less rarefied place: Ebay, where I bought it from someone who was presumably cleaning out his attic. 

Udoma was Nigerian judge who served as the first African Chief Justice of Uganda. He was one of a small, elite group of West African judges who traveled the length and width of the continent after independence, filling high-level positions in the judiciaries of eastern and southern Africa which had been vacated by Europeans and South Asians. Even though he is not well known today, Udoma had a fascinating career. Through his rulings, he exerted a subtle but important influence on African politics. Most importantly, he decided the case that paved the way for executive authoritarianism in his adopted country, Uganda v. Commissioner of Prisons, Ex Parte Matovu. He later returned to Nigeria, where he served on the Supreme Court. Intra-African judicial appointments like the one that brought Udoma to Uganda are less common today than in the past, but there is still a circuit that brings judges from West Africa to other places in the Commonwealth. Nigerian, Ghanaian, and Gambian judges serve across the small nations of the South Pacific, and in several jurisdictions in the Caribbean and central America. 

What kind of a judge has autographed headshots? The answer is one like Udoma – ambitious, upwardly mobile, and acutely aware of his image. His portrait is a reminder that celebrity is important in certain legal cultures. It’s clear why lawyers might want to cultivate fame – repute brings in business – but celebrity judges are less common. Why would a judge want to be famous, and how does celebrity shape the professional culture of the judiciary? My colleague Elizabeth Jacqueline Marcus (Newcastle University) and I are currently writing a paper on this topic, and Udoma figures in it. 

Udoma’s photograph is also interesting for how he is dressed. Like all Nigerian judges, Udoma wore the same outfit as his colonial predecessors, including robes and an elaborate white horsehair wig. Many African judiciaries have since done away with the wig, but Nigeria retains it to this day. Many outsiders to the legal profession see the wig as comic or pathetic, and non-lawyers mock it. To critics, it is a reminder that Nigeria’s legal system is of foreign origin – tangible proof that it was made by and for white men several centuries ago. Nonetheless, judges are attached to their wigs. To many of them, the wig stands for continuity, not colonial backwardness. It is an indispensable part of law’s pageantry, and judges and lawyers cherish it as a marker of their membership in a professional guild. Radical ideas can come from judges who wear wigs, and I’ve learned not to confuse the trappings of law with its substance. 

-- Samuel Fury Childs Daly 

[email protected] 

@sfcdaly

Bassok on Constitutional Thought and the Havard Law Review Forewords

Or Bassok, University of Nottingham Faculty of Law and Social Sciences, has posted Beyond the Horizons of the Harvard Forewords, which is forthcoming in volume 70 of the Cleveland State Law Review (2021):

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support to function properly, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords.

That “tribal campfire” metaphor is pretty terrific, especially when you remember that someone was always getting roasted.  

–Dan Ernst

Schmidt to Discuss "Civil Rights in America"

Christopher W. Schmidt discusses his book Civil Rights in America: A History today at 4 PM CT in an event sponsored by the American Bar Foundation, where he is a Research Professor.  Register here.

--Dan Ernst

Global Forensic Histories Workshop

A group of historians of law, medicine, and science came together for a virtual workshop in March 2021. The Global Forensic Histories Workshop was co-organized by Binyamin Blum (UC Hastings Law) and our blogger Mitra Sharafi (University of Wisconsin Law School). It was co-sponsored by UC Hastings Law, UW Law School, and the American Society for Legal History. 

Here is the line-up of papers:

Day 1 (Chair: Binyamin Blum)

• Khaled Fahmy (University of Cambridge), “Forensic Medicine in nineteenth- century Egypt”

• Mina Khalili (New York University), “Redefining Criminal Evidence”

• Susanna Blumenthal (University of Minnesota), “Toward a Genealogy of the Pathological Liar”

• Mitra Sharafi (University of Wisconsin–Madison), “Planted Poison and Wrongful Convictions”

• Ian Burney (Manchester University), “A History of Innocence: Erle Stanley Gardner, the Court of Last Resort, and the Pursuit of Wrongful Conviction in Post-war America”

Day 2 (Chair: Mitra Sharafi)

• Projit Mukharji (University of Pennsylvania), “Psychic Detectives: Occult technologies and braided forensics in the British Raj”

• Keren Weitzberg (University College London), “White Backlash”

• Claire Cage (University of South Alabama), “Reproductive Bodies and Forensic Medicine in Modern France”

• Catherine Evans (University of Toronto), “Burning Bodies and Medico- Legal Expertise in Nineteenth-Century Britain”

• Binyamin Blum (University of California, Hastings), “Forensic Culture in the Age of Empire: How Colonialism Shaped the Forensic Sciences”

• Chris Hamlin (University of Notre Dame), “The severing of forensic medicine from public health”

The group shared meals at the end of each day using Uber Eats and SpatialChat.

--Mitra Sharafi