FDR and the Supreme Court

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FDR, March 9, 1937 (LC)

The Franklin D. Roosevelt Library's Constitution Day event is FDR and the Supreme Court, a live conversation, on YouTube Premier and Facebook Live, with Library Director Paul Sparrow, Ralph Blumenthal, Baruch College, and John Q. Barrett, St. John's University School of Law. Q&A in the comments to follow the discussion. Constitution Day, Friday, September 17, 2021, 6pm ET.

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--Dan Ernst

Hoffer's "Daniel Webster and the Unfinished Constitution"

Peter Charles Hoffer, University of Georgia, has published Daniel Webster and the Unfinished Constitution (University Press of Kansas):

Daniel Webster and the Unfinished Constitution reveals Webster as the foremost constitutional lawyer of his day. Peter Charles Hoffer builds a persuasive case that Webster was more than a skilled practitioner who rose rapidly from his hardscrabble New Hampshire origins. Hoffer thoroughly documents the ways in which Webster was an innovative jurist. While Chief Justice John Marshall gets credit for much of our early constitutional jurisprudence, in fact in a series of key cases Marshall simply borrowed Webster’s oral and written arguments.

For Webster, Marshall, and many lawyers and jurists of their day, professions of adherence to the Constitution were universal. Yet they knew that the Constitution could not be fixed in time; its text needed to be read in light of the rapidly transforming early republic and antebellum eras or it would become irrelevant. As Chief Justice Marshall explained in Bank of the United States v. Deveaux (1809): “A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles.” But were these “broad and general principles” themselves fixed? For Webster there were landmarks: the Contract Clause and the Commerce Clause. While others were exploring and surveying the Northwest Territory and the Louisiana Purchase, Webster set out to map the spaces in the constitutional and legal landscape that were unmarked.

Some encomia after the jump.

–Dan Ernst

Reynolds's "Instruments of Peacemaking"

Michael Reynolds, Visiting Senior Research Fellow, Department of International History, London School of Economics and Political Science, has published Instruments of Peacemaking 1870-1914 (Bloomsbury):

This book focuses on Anglo-American disputes arising out of the civil war in the United States and British interests in the American continent: the Geneva Arbitration, the Venezuela-Guiana Arbitration and the Bhering Sea Arbitration. It draws on those cases as model proceedings which laid the foundations and inspiration for a promotion of international law through the Hague Conferences and by the work of English and American jurists. It considers the encouragement these cases gave to the promotion of public international law and how that contributed to the resolution of inter-state disputes.

Table of Contents after the jump

–Dan Ernst

Akande to Osgoode Hall

Rabiat Akande has joined Osgoode Hall Law School at York University in Toronto as an Assistant Professor. Prof. Akande's research examines West African legal history, among other topics. 

From her faculty profile: 

Professor Rabiat Akande works in the fields of legal history, law and religion, constitutional and comparative constitutional law, Islamic law, International law, and (post)colonial African law and society. Her current research explores struggles over religion-state relations in comparative contexts and illuminates law’s centrality to one of modernity’s most contested issues–the relationship between religion, and the state, and society–while also interrogating law’s complex relationship with power, political theology, identity, and socio-political change. These issues are at the forefront of her book project, "Constitutional Entanglements: Empire, Law and Religion in Colonial Northern Nigeria" (under contract with Cambridge University Press), which traces the emergence of “secularism” as a constitutional idea of ordering religion-state relations in early to mid-twentieth century British Colonial Northern Nigeria, and grapples with the postcolonial legacy of that inheritance.

Dr. Akande is a lifelong Academy Scholar at Harvard University Academy for International and Area Studies where she was in residence from 2019 to 2021. She graduated from Harvard Law School in 2019 with her dissertation, “Navigating Entanglements: Contestations over Religion-State Relations in British Northern Nigeria, c. 1890-1978” receiving the Law and Society in the Muslim World Prize. At Harvard University, Dr. Akande held the Clark Byse fellowship at the Law School, and was a Dissertation Fellow and Graduate Student Associate at the Weatherhead Center for International Affairs. She also served as an editor of the Harvard International Law Journal. Dr Akande taught several courses at Harvard, both at the Law School, and the Department for African and African American Studies. She also served as adjunct faculty at Northeastern University School of Law. Prior to her graduate work, Dr. Akande was an associate at G. Elias Solicitors and Advocates, Lagos. She obtained her Bachelor of Laws from the University of Ibadan, graduating with a First Class Honors and at the top of her class and later studied at the Nigerian Law School from which she also graduated with a First Class Honors.

Dr. Akande’s work has been supported by fellowships and grants including the Cravath International research fellowships, the Weatherhead Center for International Affairs fellowship, Harvard Academy grants, the Program on Law and Society in the Muslim World research grant, as part of a Law and Society Association International Research Collaborative, among others.

Congratulations to Prof. Akande and to Osgoode Hall!

Further information is available here.

--Mitra Sharafi 

Legal History Chair at Tilburg Law

 [We noticed this listing a Chair in Legal History at Tilburg Law.  DRE.]

The field of legal history is currently represented at Tilburg Law School within the Department of Global Law and Governance by a team of 5 tenured/tenure track faculty (1 part-time professor, 1 associate professor, 3 assistant professors), plus a varying number of junior lecturers and PhD fellows. (See [here]). The group provides several mandatory courses at the bachelor level in the LLB Dutch Law (Europese Rechtsgeschiedenis, The World’s Legal Systems) and the LLB Global Law (History of International Law; Global Legal History). It also offers legal history courses in at the master level and general history courses in the University’s bachelor in Liberal Arts and Sciences. It presently has two main research focuses: history of international law and, more recently, history of economic law. Both are included in the department’s research program Global Law and Governance.

The new chair in legal history is expected to develop an own research line and provide intellectual inspiration and leadership to the legal historians at Tilburg. The acquisition of external research funding is part of the portfolio of tasks. She/he will take a prominent and visible role in teaching, both in the mandatory courses at the bachelor level and in optional courses at the master level. Teaching may both be in English as in Dutch. She/he will also be available for managerial tasks within the department and the law school.

A Transnational Legal History Workshop

 [We have the following announcement.  DRE]

The current pandemic has encouraged many to experiment with new formats for research and teaching. In our own contribution to the trend, the Max Planck Institute for Legal History and Legal Theory and the Faculty of Law at Tel Aviv University, in cooperation with the Faculty of Law at Goethe-Universität Frankfurt, will be hosting an online Transnational Legal History Workshop this coming semester.

Participants will discuss pre-circulated legal history papers that go beyond national framings, with authors hailing from institutions around the world. A sample of authors and topics:

• James Whitman, "From Masters of Slaves to Lords of Lands: Imagining Ownership in the Western World"
  

• Doreen Lustig, "Towards a Grassroots History of International Law"
  

• Tamara Morsel-Eisenberg, "Rabbinic Responsa and Legal Communication"
  

• Paul du Plessis, "The Limits of Legal History"
  

• Elisabetta Fiocchi, "Transnational Entanglements in Land Law and Land Registration in the 19th Century"
  

• Heikki Pihlajamäki, "Transnational Elements in Colonial Laws: Spain, Portugal and the Netherlands"
  

The workshop will meet online Tuesdays at 7 pm Frankfurt time from mid-October to mid-January (with a break for Christmas/New Years).

Participation in the workshop is open to all interested scholars, junior and senior alike. Students may be able to receive academic credit through Tel Aviv University.

For more information and to register participation, please contact [email protected].

Thomas Duve (MPI & Goethe)
David Schorr (TAU)
Stefan Vogenauer (MPI & Goethe)

Colley on warfare and constitutions

 Linda Colley (Princeton University) has published The Gun, the Ship, and the Pen:
Warfare, Constitutions, and the Making of the Modern World with Norton. From the press:

A work of extraordinary range and striking originality, The Gun, the Ship, and the Pen traces the global history of written constitutions from the 1750s to the twentieth century, modifying accepted narratives and uncovering the close connections between the making of constitutions and the making of war. In the process, Linda Colley both reappraises famous constitutions and recovers those that have been marginalized but were central to the rise of a modern world.

She brings to the fore neglected sites, such as Corsica, with its pioneering constitution of 1755, and tiny Pitcairn Island in the Pacific, the first place on the globe permanently to enfranchise women. She highlights the role of unexpected players, such as Catherine the Great of Russia, who was experimenting with constitutional techniques with her enlightened Nakaz decades before the Founding Fathers framed the American constitution. Written constitutions are usually examined in relation to individual states, but Colley focuses on how they crossed boundaries, spreading into six continents by 1918 and aiding the rise of empires as well as nations. She also illumines their place not simply in law and politics but also in wider cultural histories, and their intimate connections with print, literary creativity, and the rise of the novel.

Colley shows how—while advancing epic revolutions and enfranchising white males—constitutions frequently served over the long nineteenth century to marginalize indigenous people, exclude women and people of color, and expropriate land. Simultaneously, though, she investigates how these devices were adapted by peoples and activists outside the West seeking to resist European and American power. She describes how Tunisia generated the first modern Islamic constitution in 1861, quickly suppressed, but an influence still on the Arab Spring; how Africanus Horton of Sierra Leone—inspired by the American Civil War—devised plans for self-governing nations in West Africa; and how Japan’s Meiji constitution of 1889 came to compete with Western constitutionalism as a model for Indian, Chinese, and Ottoman nationalists and reformers.

Vividly written and handsomely illustrated, The Gun, the Ship, and the Pen is an absorbing work that—with its pageant of formative wars, powerful leaders, visionary lawmakers and committed rebels—retells the story of constitutional government and the evolution of ideas of what it means to be modern.

Praise for the book:

 "As a piece of historical thinking, argument and writing, it is magisterial by every criterion, the most impressive outcome, thus far, of what has already been a career of great creativity. It is a measure, equally, of how the discipline of history has changed over the past twenty years." - Richard Drayton

"[A] terrific new global history of constitutions.... [of] many captivating stories.... Colley has produced a brilliant world history. The Gun, the Ship and the Pen is a compelling and stylish corrective to any notion that constitutions are a somnolent backwater devoid of drama and historical significance." - H. Kumarasingham

"A wide-ranging, beautifully written global history... Colley’s narrative is rich, and she emphasizes the colorful characters who have contributed to constitution-making projects around the world." - Tom Ginsburg

"If there were a Nobel Prize in History, Colley would be my nominee… An incandescent, paradigm-shifting new book." - Jill Lepore

More information is available here.

--Mitra Sharafi

Weekend Roundup

• The Federal Judicial Center has posted another entry in its "Spotlight on Judicial History" series: The 1957 Employers' Liability Cases.
  

• Via Legally Queer on Instagram: Justice Thurgood Marshall's LGBTQ Legacy.
  

• Orville Vernon Burton and Armand Derfner discuss their book Justice Deferred: Race and the Supreme Court on Illinois Public Radio.
  

• Twitter--or at least our portion of it--is abuzz with news of a website at Rutgers University that is chock full of documents on state constitutions, which we gather is the work of G. Alan Tarr.  H/t: Julian Davis Mortenson and Rachel Sheldon.  It contains "scanned constitutions, convention records, and legislative materials for the historical constitutions of all 50 states." 
  

• Congratulations to John R. Wunder on his receipt of the 2021 Sower Award in the Humanities from Humanities Nebraska.  And congratulations to Molly Brady, who writes, among other things, on the history of property law, on her tenuring!
  

• Over at Minnesota Law's Riesenfeld Rare Books Blog: Ryan Greenwood on early American classics. 

• 
  Quite a line-up for the Legacies of the Constitution at Iona College on September 16.

• New online from Law and History Review and Cambridge Core: A “Practically American” Canadian Woman Confronts a United States Citizen-Only Hiring Law: Katharine Short and the California Alien Teachers Controversy of 1915, by Brendan A. Shanahan.

• The NEH summer institute, "Law and Culture in Medieval England" was hosted virtually by Western Michigan University over the summer. You can check out the schedule and readings listed here.
  

• Nicholas Bagley and Gary Lawson debate administrative law before the Notre Dame Student Chapter of the Federalist Society. (You might want to skip the first 9 minutes to avoid the tiresome pugilist metaphors.)
  

• From the Washington Post's "Made by History" section: Lina-Maria Murillo (University of Iowa), "Before Roe v. Wade, U.S. residents sought safer abortions in Mexico"; Emily DiVito and Suzanne Kahn (both of the Roosevelt Institute), "The filibuster has long hurt American workers too"; Susan Nagel (independent), "A conflict among the Founders is still shaping infrastructure debates in 2021"; and more.

•  In the Atlantic, Mary Ziegler (Florida State University), "The Justices Are Telling Us What They Think About Roe v. Wade." Ziegler published related pieces on SCOTUSblog ("Supreme indifference: What the Texas case signals about the court’s treatment of abortion") and in the Boston Globe ("What happens next in Texas?") (with Rebecca Rebouché (Temple Law School)), and she was quoted elsewhere (e.g., in this Washington Post piece).
  

• In PennToday: an interview with Serena Mayeri (Penn Law) on the Texas abortion ban: "what the law means and what’s next for Texas and the nation." 
  

• Update: Akron Law celebrates its centennial (Akron Legal News)
  

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

Kornbluh and Tani on Polier, Wickenden and Reich's Poverty Law

Felicia Kornbluh, University of Vermont, and Karen Tani, University of Pennsylvania, have posted The Poverty Law Education of Charles Reich, which appeared in the Touro Law Review 36 (2020): 807-821:

This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about the facts on the ground, including potential constitutional violations, and encouraged him to write about these issues. Subsequently, they used their powerful networks to circulate Reich’s writings and amplify his arguments. This history showcases Reich’s deep connections to left-liberal reformers who came of age during the New Deal: although he famously critiqued some of their handiwork, he relied heavily on their ideas, expertise, and good will.

--Dan Ernst

Schmitt on Slavery and Congress's Enumerated Powers

Jeffrey M. Schmitt, University of Dayton School of Law, has posted Slavery and the History of Congress's Enumerated Powers, which is forthcoming in the Arkansas Law Review:

Legal scholarship often ignores or minimizes slavery’s profound influence on the history of federal powers. In fact, a number of influential scholars contend that constitutional history supports an understanding of Congress’s enumerated powers that would leave no subject reserved to the states. This scholarship, however, is inconsistent with the history of the Founding, early Congress, and Marshall and Taney Courts. Before the Civil War, virtually all American elites agreed that Congress had no power to interfere with slavery in the states. Because slavery was fundamental to the national economy, this meant that the federal government had no power to regulate social or economic activity within the states, regardless of its connection to interstate commerce. The modern regulatory state is thus incompatible with how federal powers were understood before the Civil War, and legal scholars should stop pretending otherwise. Especially at this time of racial reckoning, legal scholarship should acknowledge slavery’s pervasive influence on constitutional history. Doing so will both undermine the moral legitimacy of originalism and emphasize the need for a living Constitution.

–Dan Ernst

Priel on Judges' Breakfasts

Dan Priel, Osgoode Hall Law School, York University, has published Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea, in the Buffalo Law Review 68 (May 2020): 899-930:

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea.  In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references to it, in legal and non-legal sources, from long before the advent of legal realism. This suggests that the phrase has long reflected something of a received wisdom about adjudication. Tracing the question of the significance of digestion to one's health, I argue that what we today take to be a humorous claim, may have been a much more serious one. For much of the nineteenth century it was widely believed that one's health depended on one's digestive health. Interestingly, this view is now once again taken seriously by scientists, which suggests that rather than scorn, the realists deserve credit for suggesting that the question be studied seriously.

--Dan Ernst

Legal Biographies: An Online Workshop

 [We have the following announcement. DRE]

The Legal History Section of the Society of Legal Scholars and LSE’s Legal Biography Project are holding a joint online workshop on Legal Biographies on the afternoons of 9 and 10 September 2021.  You can register for this event via Eventbrite [here]. The programme is as follows:

9th September 15.00-18.00 BST: Lives in Context

15.05-15.55 BST: Morad El Kadmiri (UCL Faculty of Laws)

Wigmore and the Land of the Rising Sun: Revisiting Orientalism Through the Experience of a Late 19th Century Legal Westerniser

16.00-16.50 BST: Neil Harrison (Northumbria University)

Sir Joseph Cowen as Commissioner and Chairman of the Tyne Improvement Commission from 1850 to 1873: the Influence of his Networks on his Interpretation of the Law and his Actions

17.00-17.50 BST: Helen Rutherford (Northumbria University)

The People’s Judge: Examining the Life and Work of the Coroner for Newcastle upon Tyne 1857-1885

10th September 15.00-18.00 BST: Uses, Abuses and Methods in Legal Biographical Writing

15.05-15.55 BST: Sean Morris (University of Helsinki)

Walter George Frank Phillimore (1845 – 1929): The Early Years and Devotion to Church-Law Relations

16.00-16.50 BST: Charlotte Smith (University of Reading)

Legal Biography and Religion: Some Reflections

17.00-17.50 BST: John Tribe (University of Liverpool)

Pride & Posterity: A Reappraisal of the Earl of Birkenhead’s role in the passage of the Law of Property Act 1925

British Legal History Conference: Deadline Extended

[We are moving this post up, as we have just learned that the deadline for submissions has been extended to September 27, 2021.  DRE]

Law and Constitutional Change: The 25th British Legal History Conference 2022, in association with the Irish Legal History Society.  Queen's University, Belfast.  6-9 July 2022

Abstracts are invited for the 25th British Legal History Conference which is being run jointly with the Irish Legal History Society and hosted by Queen's University Belfast, on Wednesday 6 July - Saturday 9 July 2022.  

The conference was originally scheduled for 2021. Queen's, Belfast, was given the honour of hosting the BLHC in 2021, because it is a significant year in the "Decade of Centenaries"  in Ireland, north and south, marking both the centenary of the opening in June 1921 of the Parliament of Northern Ireland, established under the Government of Ireland Act 1920, and the centenary of the signing of articles of agreement for the Anglo-Irish Treaty in December 1921, leading to the establishment of the Irish Free State.   The conference theme, "Law and Constitutional Change", was chosen against this background.  The Covid-19 pandemic intervened, making postponement unavoidable.  

Organising the conference in 2022 will, however, allow us to celebrate the half-centenary of the British Legal History Conference, first held in Aberystwyth in 1972.  Our hope is that attendance at the conference can be in person, but this will be kept under review and, if necessary, the option of online attendance/participation will be considered.

Conference papers can examine from any historical perspective the relationship between law and constitutional change. The difficulty of defining constitutional change was noted by the Select Committee on the Constitution in their report, The Process of Constitutional Change (HL Paper 177, 2011, para. 10), but they identified several examples, without being exhaustive: parliamentary sovereignty; the rule of law and the rights and liberties of the individual; the union state; representative government; and state membership of international organisations, such as (then) the EU and the Commonwealth.  These are, of course, only examples and the conference theme will be interpreted in all its breadth.

In the context of present-day analysis of the political and constitutional upheavals in British-Irish relations in the early 1920s, the President of Ireland, Michael D. Higgins, has adopted the Irish word, Machnamh, meaning reflection, contemplation, meditation and thought, for a series of online reflections.  In the spirit of Machnamh, we invite you to join the conversation on law and constitutional change in Queen's, Belfast, in July 2022.

Please note the following rules:

• If you submitted an abstract in 2020, you must make a fresh submission.
• Abstracts must be for individual papers only, not for panels. Co-authored papers are acceptable.
• Only one abstract should be submitted per person.
• Abstracts must be submitted as Microsoft Word documents using the online portal on the Call for Papers page of the conference website.  Please do not submit by email.
• Abstracts must not exceed 500 words.
  

Please indicate if your proposal is contingent on the availability of an option of online participation.  The deadline for submission of abstracts is [September 27, 2021].  Queries can be emailed to [email protected]  At the conference, individual oral presentations will last 15-20 minutes.

We hope to publish the programme on the conference website in October 2021.  Details of plenary speakers will also appear there in due course. Proposals from postgraduate and early career researchers are welcome. Further information about travel to Belfast, accommodation, and so on, will be added to the conference website during 2021-2022.

Poster competition. This, the second joint BLHC - ILHS conference, was proposed by Sir Anthony Hart, retired High Court judge, former president of ILHS and enthusiastic supporter of BLHCs, who died suddenly in July 2019.  A poster competition is planned during the 2022 conference as a tribute to Tony.  There will be two prizes, including one for the PGR/early career category. The prizes are generously funded by the Journal of Legal History and by the Irish Legal History Society.  Details of the competition will be posted on the conference website.

Ledolter and VanderVelde's "Analyzing Textual Information"

Johannes Ledolter and Lea S. VanderVelde, both of the University of Iowa, have published  Analyzing Textual Information: From Words to Meanings through Numbers (Sage):

Researchers in the social sciences and beyond are dealing more and more with massive quantities of text data requiring analysis, from historical letters to the constant stream of content in social media. Traditional texts on statistical analysis have focused on numbers, but this book will provide a practical introduction to the quantitative analysis of textual data. Using up-to-date R methods, this book will take readers through the text analysis process, from text mining and pre-processing the text to final analysis. It includes two major case studies using historical and more contemporary text data to demonstrate the practical applications of these methods. Currently, there is no introductory how-to book on textual data analysis with R that is up-to-date and applicable across the social sciences. Code and a variety of additional resources are available on an accompanying website for the book [here].

Professor VanderVelde tells us that she and Professor Ledolter wrote the book as “an introduction to the tools of text analysis, using ... two historical databases that I’ve been creating for some time now:  the Territorial Papers of the United States, and the Congressional Globe of the 39th Congress.  These databases differ in the challenges that they present for text analysis.  The Territorial Papers are letters originally hand written, full of misspellings, but published in the 20th century.  The Congressional Globe consists of the back and forth of oral statements taken down by trained stenographers, but set in narrow columns of hand-carved, hand-set type.  The book takes the reader step by step through the process of cleaning the texts, coding metadata, and using increasingly sophisticated methods of analysis: visualization, sentiment analysis, and topic modelling."

--Dan Ernst

Seeley, "Race, Removal, and the Right to Remain: Migration and the Making of the United States"

The Omohundro Institute of Early American History and Culture and the University of North Carolina Press have published Race, Removal, and the Right to Remain: Migration and the Making of the United States, by Samantha Seeley (University of Richmond). A description from the Press:

Who had the right to live within the newly united states of America?

In the country’s founding decades, federal and state politicians debated which categories of people could remain and which should be subject to removal. The result was a white Republic, purposefully constructed through contentious legal, political, and diplomatic negotiation. But, as Samantha Seeley demonstrates, removal, like the right to remain, was a battle fought on multiple fronts. It encompassed tribal leaders’ fierce determination to expel white settlers from Native lands and free African Americans’ legal maneuvers both to remain within the states that sought to drive them out and to carve out new lives in the West. Never losing sight of the national implications of regional conflicts, Seeley brings us directly to the battlefield, to middle states poised between the edges of slavery and freedom where removal was both warmly embraced and hotly contested.

Reorienting the history of U.S. expansion around Native American and African American histories, Seeley provides a much-needed reconsideration of early nation building.

Advance praise:

“Since the founding of the United States, lawmakers have funneled enormous energy into policing and confining the mobility of Native and Black people while casting free movement as white privilege. Against these fantasies, Indigenous people crafted powerful arguments to claim sovereignty and territory, while African Americans mobilized to remain in communities they called home. Seeley brings a much-needed perspective to these interconnected histories of race, rights, and migration.”—Honor Sachs

“Positing removal as a foundational concept in American life, Seeley radically expands its meaning and traces its impact beyond the discrete moment of the Trail of Tears and the Indian Removal Act. This is pathbreaking work, a significant intervention in early American historiography.”—Michael Witgen

More information is available here.

-- Karen Tani

Weekend Roundup

• Ancestry has opened its collection of Freedmen's Bureau records to the public.   
  

• 
  Over at Völkerrechtsblog (“an academic blog on all matters of international public law and international legal thought”): Legal Imagination as Bricolage, a review symposium on Martti Koskenniemi’s To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870.
  

• Above the Law's Kathryn Rubino interviews Patricia Cain about Paving the Way: The First American Women Law Professors and her career.
  

• Congratulations to Ajay Mehrotra, American Bar Foundation and Northwestern Law, upon his election to the American Law Institute! 
  

• The University of Arkansas School of Law Alumni Society Board of Directors has awarded its 2021 Commitment to Justice award to the federal judge (and legal historian) Morris Arnold. (More.)
  

• On September 16th from 3-4 p.m. EDT, the Library of Congress will present (via webinar) its annual Constitution Day Lecture. Kurt Lash (University of Richmond) will present “The Transformation of the Bill of Rights: Incorporation Doctrine and the Fourteenth Amendment.” More information here. 
  

• From the Washington Post's "Made by History" section: Aimee Loiselle (Central Connecticut State University) on 2021’s ‘Stillwater,’ 1979’s ‘Norma Rae,' and the protagonists' fight against Hollywood to to tell their stories; E. Kyle Romero (Loyola University in Maryland), "Nativism in U.S. politics has thwarted refugee resettlement before."
  

• From In Custodia Legis, more posts inspired by the "Herencia" collection: "Criminals and Coins: Understanding 17th Century Spanish Economy through Counterfeit Currency"; "Who’s to Blame for Lost Silver and Gold? Laments of Financial Troubles in Spain 1588."
  

• The Balkinization symposium on James Pfander's Cases Without Controversies comes to a close, with several author responses (here's the first).
  

• "Roosevelt Institute Morgenthau Scholar Dr. Abby Gondek talks to FDR Library Supervisory Archivist Kirsten Carter about how data visualizations from 3,000 letters from the public about the Emergency Refugee Center in Oswego, NY, reveal the US government’s response through the War Refugee Board to rescue refugees during the Holocaust."  (FDRLibrary YouTube)
  

• ICYMI:  Lawrence B. Glickman on "Business as Usual: The Long History of Corporate Personhood" (Boston Review).  Melvin I. Urofsky reviews Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, by Erwin Chemerinsky (NYT).  Mary Ziegler on the Texas, the Supreme Court and Roe v. Wade (NYT).
  

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

Campbell on Neutrality in 1st Amendment Jurisprudence

Jud Campbell, University of Richmond School of Law, has posted The Emergence of Neutrality, which is forthcoming in the Yale Law Journal:

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, protecting speech within socially defined boundaries. And the modern embrace of content and viewpoint neutrality, it turns out, occurred only in the 1960s as the Supreme Court merged earlier strands of rights jurisprudence in novel ways. The emergence of neutrality, this Article shows, was more gradual, more contested, and more contingent than we now assume. Recovering this history exposes the novelty of the modern neutrality paradigm, and it casts new light on the history of other First Amendment concepts, like prior restraints, low-value speech, and overbreadth.

To understand these developments, it is necessary to trace a second doctrinal genealogy focusing on the very idea of fundamental rights. Older views of expressive freedom, this Article reveals, were embedded in a different conceptual framework for thinking about rights. And once again, the role of neutrality was radically different. Today, neutrality is ubiquitous in rights discourse, reflecting the prevailing view that rights are domains in which people can make their own moral choices. Thus defined, rights need not be absolute, but they at least demand governmental neutrality with respect to values—a view that is reinforced by the undesirable alternative of judges defining non-neutral boundaries. Yet this neutrality-based view of rights also emerged well into the twentieth century, reflecting a transmogrified synthesis of earlier ideas.

Recovering these older paradigms powerfully illustrates how deeply our own perspective shapes the way that we view the Constitution. Things that appear natural when reading the First Amendment, it turns out, are refracted through a distinctively modern lens. Integrating history into modern rights jurisprudence thus poses a substantial and unresolved challenge, warranting further engagement by scholars and judges.

--Dan Ernst

Pollman, "Corporate Personhood and Limited Sovereignty"

Elizabeth Pollman (University of Pennsylvania Carey Law School) has posted "Corporate Personhood and Limited Sovereignty," which is forthcoming in the Vanderbilt Law Review. Here's the abstract:

This Essay, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as right-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their constitutional treatment, the Court’s nineteenth-century rulings bolstered key features created by corporate law and simultaneously situated the corporation as subordinate to the state in a system of federalism. And, finally, the Essay suggests that the balance of power struck in the first century of Supreme Court jurisprudence on corporate rights has been eroded in the modern era. The Supreme Court’s failure to develop a consistent approach to corporate rights questions and its tendency to reason based on views of corporations as associations of persons have exposed a significant flaw in the Court’s evolving corporate personhood jurisprudence: it lacks a limiting principle. 

The full essay is available here.

-- Karen Tani

Carter on the Second Founding and the First Amendment

William M. Carter, Jr.,University of Pittsburgh School of Law, has published The Second Founding and the First Amendment in the Texas Law Review.  Form the introduction:

The nation's founding compromise with slavery resulted in a Constitution that proclaimed universal liberty in theory while protecting human enslavement in practice.  After centuries of struggle and a cataclysmic Civil War, a new constitutional order emerged: A Second Founding of the nation that sought to dismantle the legacies of slavery and turn American law away from nearly two hundred fifty years of race-based enslavement and discrimination. In order to remedy the First Founding's defects, the Second Founding amended the Constitution to prohibit slavery and empower Congress to remediate slavery's lingering effects; to recognize Black citizenship and protect rights to due process and equal protection for all; and to enfranchise African-Americans on a national basis.

These specific constitutional changes, while monumental, do not fully capture the scope of the Second Founding's constitutional moment as envisioned by its Framers. The post-Civil War Constitution also addressed the systemic legacy of the system of enslavement upon our constitutional order. No more would the Constitution, in the words of Senator Charles Sumner, be interpreted as it had been previously: that is, "in every clause and line and word, [in favor of] Human Slavery." Rather, there would be a new mandate to constitutional interpretation, whereby the Constitution would be "interpreted uniformly and thoroughly for human rights.”

Notwithstanding the clear break from the prior constitutional order that the Civil War Era represented, the Supreme Court's cases interpreting pre-Civil War constitutional provisions generally treat the Second Founding as merely a continuation of the First Founding. Nowhere is that truer than in the Court's cases interpreting the First Amendment's guarantee of freedom of speech. This Article takes the Second Founding seriously by examining the many denials of free speech inflicted upon enslaved persons and their allies during the pre-Civil War Era; the expressed views of the post-Civil War Framers regarding freedom of speech and the promise of full and equal protection of Black and antiracist speech henceforth; and, most importantly, the views of enslaved persons regarding freedom of speech.

–Dan Ernst

François on "Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence"

My Georgetown Law colleague Aderson Bellegarde François’s article, A Lost World: Sallie Robinson, the Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence, has been published in the Georgetown Law Journal:

“It is the sound of vanishing—the music as it plays itself to silence, the train as it travels away, a voice left on magnetic tape.”

The Supreme Court tells stories about who and what we are—the sort of “knowledge about [the] past that is shared, mutually acknowledged and reinforced by a collectivity.” The Court is uniquely suited for this role: not just because of the moral authority it brings to the task of adjudication, and not just because of the rituals it uses for its decisionmaking, but also because the very act of telling and retelling in issuing decisions results in layers of these stories being deposited on and shaping constitutional doctrine. In time, and with each iteration—like sandy water flowing over sedimentary rock—these stories settle, gather together, harden, and become part of constitutional topography—sheer repetition makes them reified. These stories, a mix of fact and aspiration, a mingling of doctrine and metaphors, rubbed smooth of contradictions, translated for public consumption, even when hotly contested in the caverns of academia, keep us bound to a “conscious community of memory,”—a pact about the larger lessons to be derived from our past. There is a federalism story about how the Founders’ experience with a distant, indifferent king led them to set up a government with defined limited federal power; a free-speech story about how our collective ability to think and speak freely contributes to an open marketplace of ideas; and a right-to-bear-arms story about how the Second Amendment serves as a bulwark against government tyranny. There is no equivalent story—at least none that the Court itself has had a role in telling—about how slavery and white supremacy shaped the American identity.

To the contrary, the singular effect—if not purpose—of the Supreme Court’s jurisprudence on the experience, status, and place of Black people in America has been to erase slavery from the constitutional stories the Court tells about American democracy. The Court has managed this feat so successfully that the main role slavery plays in the collective constitutional imagination today is as remembrance of how its abolition affirmed the genius of the Framers’ vision and redeemed the righteous-ness of the country’s Founding. This act of willful forgetting began in earnest during Reconstruction, when, even as Black people roamed the countryside and searched newspaper ads for mothers, fathers, sons, and daughters sold away to distant plantations before the war, the Court explained that the Thirteenth Amendment abolished nothing more than involuntary servitude, that neither the Thirteenth nor the Fourteenth Amendment imposed an obligation upon the federal government to protect Black people from white violence, and that Black people’s invocation of the Fourteenth Amendment’s equality principle was akin to their wanting to become a special favorite of the law.

This Article is an attempt at digging up one story of slavery and trying to input it into the collective constitutional imagination. The Article uses one decision to tell the story—the Civil Rights Cases. It also uses one person—a woman named Sallie Robinson. Apart from those she loved and who loved her in return, Sallie lived out her days in relative obscurity, but that life—at least the pieces and fragments of it we can gather— is as legitimate a part of our constitutional myth making as the lives of the men on the Court whose writings hardly ever acknowledged that people like Sallie existed and mattered.

–Dan Ernst

Anderson, "The Second: Race and Guns in a Fatally Unequal America"

New from Bloomsbury Publishing: Carol Anderson (Emory University), The Second: Race and Guns in a Fatally Unequal America (2021). A description from the Press:

In The Second, historian and award-winning, bestselling author of White Rage Carol Anderson powerfully illuminates the history and impact of the Second Amendment, how it was designed, and how it has consistently been constructed to keep African Americans powerless and vulnerable. The Second is neither a “pro-gun” nor an “anti-gun” book; the lens is the citizenship rights and human rights of African Americans.

From the seventeenth century, when it was encoded into law that the enslaved could not own, carry, or use a firearm whatsoever, until today, with measures to expand and curtail gun ownership aimed disproportionately at the African American population, the right to bear arms has been consistently used as a weapon to keep African Americans powerless--revealing that armed or unarmed, Blackness, it would seem, is the threat that must be neutralized and punished.

Throughout American history to the twenty-first century, regardless of the laws, court decisions, and changing political environment, the Second has consistently meant this: That the second a Black person exercises this right, the second they pick up a gun to protect themselves (or the second that they don't), their life--as surely as Philando Castile's, Tamir Rice's, Alton Sterling's--may be snatched away in that single, fatal second. Through compelling historical narrative merging into the unfolding events of today, Anderson's penetrating investigation shows that the Second Amendment is not about guns but about anti-Blackness, shedding shocking new light on another dimension of racism in America.

Advance praise:

“In this extraordinarily important book, Dr. Anderson shows that the Second Amendment was designed, and has always been implemented, to enable white Americans to dominate their Black neighbors. In her trademark engaging and unflinching prose, Dr. Anderson traces America’s racist history of gun laws from the 1639 Virginia colony’s prohibition on Africans carrying guns to the recent police murders of Breonna Taylor and Emantic Bradford, Jr., showing how calls for ‘law and order’ have concentrated guns in the hands of white people while defining Black gun ownership as a threat to society. Anderson’s deft scholarship convincingly places the right to use force at the center of American citizenship, and warns that the Second Amendment, as it is currently exercised, guarantees that Black Americans will never be equal.” -- Heather Cox Richardson

“Carol Anderson brings her storied sense of the intertwining of past and present, her keen insights into the wiles of racism, and her passionate prose to this extraordinary take on the meaning of the Second Amendment. This is a necessary history of the roots of gun obsession in slavery, racial assumptions, legal and political fictions that may have put America on a ‘fatal’ spiral we can only hope to prevent. Let's dream that this book echoes across the partisan canyon.” -- David W. Blight

More information is available here. History News Network recently published an interview with Anderson about the book, here. Another interview, conducted by New Books Network, is available here.

-- Karen Tani

Pollman, "The History and Revival of the Corporate Purpose Clause"

Elizabeth Pollman (University of Pennsylvania Carey Law School) has posted, "The History and Revival of the Corporate Purpose Clause," which appears in Volume 99 of the Texas Law Review (2021). Here's the abstract:

The corporate purpose debate is experiencing a renaissance. The contours of the modern debate are relatively well developed and typically focus on whether corporations should pursue shareholder value maximization or broader social aims. A related subject that has received much less scholarly attention, however, is the formal legal mechanism by which a corporation expresses its purpose—the purpose clause of the corporate charter. This Article examines corporate purpose through the evolution of corporate charters. Starting with historic examples ranging from the Dutch East India Company to early American corporations and their modern 21st century parallels, the discussion illuminates how corporate purpose has been expressed within the charter in a changing series of practices.

Examining this evolution reveals that throughout history, the sovereign state has firmly held the reins on the legal statement of corporate purpose by determining it as a matter of special grant or by requiring its articulation in the constitutional document establishing the corporation. Early corporate charters included provisions for self-governance and purpose that served as a coordinating mechanism for long-term ventures and associations, often serving public and private interests. Over the nineteenth century, as state legislatures looked to solve their corruption problem and powerful business players pressed for greater operational freedom, the purpose clause of the corporate charter lost its specificity, and awareness of its public-tinged character diminished. Corporations increasingly relied on private documents and intangible, branded personas to create corporate identity, capture philosophies of corporate mission, and express social-minded aims. Throughout this long history, however, and despite waning attention paid to corporate purpose clauses at times, they have remained an important reflection of the public-private collaboration at the heart of the corporate enterprise. Further, the longstanding requirement of stating a purpose in the corporate charter has laid the groundwork for a contemporary revival in understanding its relevance to the corporate law doctrine of good faith, and its utility as a mechanism for creating and coordinating commitments for the benefit corporation. The purpose clause has enduring relevance even as new practices and understandings of corporate purpose have emerged in business and law.

The full article is available here.

-- Karen Tani

Weekend Roundup

• Via the New Books Network, an interview with Samantha Barbas (University at Buffalo School of Law) about The Rise and Fall of Morris Ernst, Free Speech Renegade (University of Chicago Press, 2021).
  

• Over at the Law and Political Economy blog, you'll find a symposium on Destin Jenkins's Bonds of Inequality: Debt and the Making of the American City (University of Chicago Press, 2021)
  

• Balkinization has convened an online symposium on James E. Pfander's Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021). Here's a post by Amanda Tyler (UC Berkeley). Other contributors include Tara Grove (Alabama), Robert Pushaw (Pepperdine), Fred Smith (Emory), Kevin Walsh (Richmond), and Diego Zambrano (Stanford).

• From the Washington Post's "Made by History" section: Joana Galarza Johnson (La Sierra University), "Texas’s restrictive new abortion law eerily echoes the witch hunts of centuries ago."

• 
  Kyle Volk, University of Montana, discusses prohibition in the 1850s on the podcast, Unsung History, hosted by Kelly Therese Pollock. 

• ICYMI: The medievalist Susan Reynolds has died (The Guardian).  Akhil Reed Amar’s The Words That Made Us: America’s Constitutional Conversation, 1760-1840, is reviewed in the Roanoke Times.

• The fall 2021 line-up in the Washington History Seminar is out.  Presenters include: Mia Bay, Traveling Black: A Story of Race and Resistance; Elizabeth Shermer, Indentured Students: How Government-Guaranteed Loans Left Generations Drowning in College Debt; Mark Bradley and [LHB Founder] Mary Dudziak, Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism; Thomas Guglielmo, Divisions: A New History of Racism and Resistance in America’s World War II Military; Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World; Kate Larson, Walk with Me: A Biography of Fannie Lou Hamer; and Caley Horan, Insurance Era: Risk, Governance, and the Privatization of Security in Postwar America.
  

• And, in Second Amendment news, according to Judge Richard Gardiner of the Fairfax County [Virginia] Circuit Court, “going armed” in the 1328 English Statute of Northampton did not mean "packing heat."  It meant "wearing armor."  More.
  

• Robert A. James, Pillsbury Winthrop Shaw Pittman LLP, has posted Holmes In Nature and Across Time, a review of The Black Book of Justice Holmes (2021), edited by Michael F. Hoeflich and Ross E. Davies.
  

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

Waldman on Moderating LGBTQ+ Content, Then and Now

Ari Ezra Waldman, Northeastern University School of Law, has posted Disorderly Content:

 Content moderation plays an increasingly important role in the creation and dissemination of expression, thought, and knowledge. And yet, throughout the social media ecosystem, nonnormative and LGBTQ+ sexual expression is disproportionately taken down, restricted, and banned. The current sociolegal literature, which focuses on content moderation as a whole and traces the evolution of its values and mechanics, insufficiently captures the ways in which those principles and practices are not only discriminatory, but also resemble structures of power that have long been used to police queer sexual behavior in public spaces.

This Article contributes to the sociolegal literature by approaching content moderation from an explicitly queer perspective, bridging siloed scholarship on law, technology, and LGBTQ history. It argues that content moderation for “sexual activity” is an assemblage of social forces that resembles oppressive anti-vice campaigns from the middle of the last century in which “disorderly conduct”, “vagrancy”, “lewdness”, and other vague morality statutes were disproportionately enforced against queer behavior in public. This analogy highlights underappreciated pieces of the content moderation puzzle. Compared to anti-vice campaigns, content moderation emerged from similar sociolegal contexts, relies on similar justificatory discourses, leverages similarly vague rules, similarly operates mostly without expertise in sexual content, also disproportionately silences queer content, and similarly does so without due process. Ultimately, I argue that like anti-vice enforcement, the consequence of sexual content moderation is the maintenance and reification of social media as straight spaces that are hostile to queer, nonnormative expression.

This Article provides a full, critical account of sexual content moderation and its effects on queer expression. It details and challenges the current content moderation literature and explores potential new directions for scholarship, moderation, and law. The similarities and differences between anti-vice enforcement and sexual content moderation also suggests a way forward, offering a queer, social justice justification for modest legal reform, social activism, and platform responsibility.

--Dan Ernst

Vogenauer to Present on Law in Colonial Guyana

[We have the following announcement. DRE]  

The first EuroStorie research seminar of the autumn 2021 semester, [will take place] on Friday, September 3rd at 1:00pm–2:00pm (EEST) via Zoom live stream. Professor Stefan Vogenauer,  Director at the Max Planck Institute for Legal History and Legal Theory in Frankfurt, will present his talk "Creating a Legal Order in a Colonial Setting: the Dutch Colonies in Guyana."  Please join us live via Zoom-stream [here.]  Meeting ID: 698 5345 9330.  Event webpage

In 1814, the Netherlands ceded three colonies on the northern coast of South America to the United Kingdom: Berbice, Demerara and Essequibo. Later, the three territories were united and called ‘British Guiana’, and since gaining independence in 1966 they have been known as ‘Guyana’. In the Articles of Capitulation the British and the Dutch agreed that ‘the laws and usages of the colony shall remain in force and be respected’. It is therefore generally assumed that British Guiana was, like South Africa and Ceylon, a mixed legal system where ‘Roman-Dutch law’ applied to the extent that it was not supplemented or superseded by English law. However, the reality on the ground was more complex because the ‘laws and usages’ in force under Dutch rule were much more varied. Roman-Dutch law was but one of the relevant normative regimes. It is the purpose of this paper to show the multitude and richness of other legal sources that applied in these territories before the transfer to the British occurred. It is argued that, despite the difficulties of organising small communities of settlers in a hostile environment more than 4,000 nautical miles from the metropole, the framework of rules and regulations put into place by the Dutch amounted to a comprehensive overseas ‘legal order’ that cannot be captured by mere reference to Roman-Dutch law.

Fish on the Undesirable Aliens Act of 1929

Eric S. Fish, University of California, Davis School of Law, has posted Race, History, and Immigration Crimes, which is forthcoming in the Iowa Law Review:

The two most frequently charged federal crimes are immigration crimes: the misdemeanor of entering the United States without inspection, and the felony of reentering the United States after deportation. Federal prosecutors charge tens of thousands of people with these two crimes each year. In 2019, these two crimes comprised a majority of all federal criminal cases. About 99% of the defendants in these cases are nationals of Mexico or other Latin American countries.

These two crimes were enacted into law through the Undesirable Aliens Act of 1929. The legislative history of that Act reveals that its authors were motivated by pseudoscientific racism. They sought to preserve the purity of the white race by preventing Latin American immigrants from settling permanently in the United States. And they spoke forthrightly about this motive. They described Latin American immigrants as “mongrelized,” “peons,” “degraded,” and “mixed blood.” They held hearings where experts in eugenics testified about Latin Americans’ undesirable racial characteristics. They gave speeches about the need to protect American blood from contamination. They described Latin American immigration as a “great race question” concerning invasion by “people essentially different from us in character, in social position, and otherwise.”

This Article thoroughly documents the legislative history of the Undesirable Aliens Act of 1929. It relies on primary sources—speeches, legislative reports, testimony, statements in the congressional record, private correspondences, eugenicist scholarship, and other writings by the men who conceived and enacted the law. The Article shows that this history brings the law into conflict with the Constitution’s Equal Protection Clause. While the crimes of unlawful entry and reentry are racially neutral on their faces, the story of their enactment reveals explicit racial animus against Latin American immigrants. Consequently, they are unconstitutional under the framework established by the Supreme Court in Arlington Heights v. Metropolitan Housing Development Corp. The Article also considers whether these crimes can be defended under Congress’s broad power to enact immigration laws, and whether their pro forma 1952 reenactment purged them of racial animus.

--Dan Ernst

Emerson on the "Politics of Care"

Blake Emerson, UCLA School of Law, has posted Public Care in Public Law: Structure, Procedure, and Purpose, which is forthcoming in the Harvard Law & Policy Review:

This Article responds to recent mobilization around the “politics of care” by articulating a legal principle of public care within U.S. constitutional, statutory, and administrative law. Public care requires executive officials to attend to and advance the needs and values of those the law binds and benefits. This principle has three components. The regulatory purpose of public care, which is recognized in various statutory authorities of the welfare state, re-quires government to provide those goods and services that are necessary for people to exercise moral and political agency. The administrative procedure of public care, which is recognized by the Administrative Procedure Act of 1946, requires that federal agencies act with due regard for the interests and input of affected parties. The constitutional structure of public care, recognized by the Take Care Clause, requires that the President listen to subordinate officials who have specific legal, professional, and expert authority. These three dimensions together offer an attractive picture of what the administrative state ought to do and how it ought to do it. Public care offers an approach to administrative regulation that differs from other now dominant approaches, such as presidential administration and economic cost-benefit analysis. The practice of public care, which is informed by Progressive political thought and feminist social theory, emphasizes social solidarity, deliberative policymaking, and official collaboration, rather than executive unilateralism, instrumental reasoning, and isolated individualism.

--Dan Ernst

CFP: Perspectives on Political Violence

[We have the following CFP.  DRE]

Historical, Philosophical and Theological Perspectives on Political Violence
March 31-April 2, 2022
The Centre of Excellence in Law, Identity and the European Narratives (EuroStorie)
Faculty of Social Sciences
University of Helsinki

The conference provides a multidisciplinary venue for critical appraisal of the central questions concerning political violence and aggression. The conference’s aim is to scrutinize and delineate the current discussion (academic and non-academic) on political violence by discussing its contemporary forms, character and modes justification, especially within context of development of the idea of Europe and modern European identity. What is meant by political violence and aggression? When and under which conditions is it justified? Who has the right to exercise it and against whom?

The keynote address will be given by professor Samuel Moyn (Yale University). Professor Moyn is a leading scholar of the intellectual history of human rights and European intellectual history.

The EuroStorie Centre of Excellence (University of Helsinki) is inviting abstracts for the conference. Please see the full call for papers on the conference website.

The deadline for the abstracts is October 31, 2021. Abstracts should be sent to [email protected].  For general enquiries, please contact Panu-Matti Pöykkö ([email protected])

Weisbrod on Eliot, Thayer, Gray and HLS

Carol Weisbrod, Professor Emerita, University of Connecticut School of Law, has published Brahmin Connections: A Note on the Vocation of the Law Professor in the Connecticut Law Review as part of a symposium issue in honor of her colleague Richard Kay:

John Chipman Gray (wiki)

The early modern Harvard Law School is known for its significance as a model for legal education in the United States. This model is understood to include the case method and a very narrow curriculum, focused on pure law. It is often noted that important figures on the law school faculty were part of the Brahmin Culture of Boston. They were members of a caste which valued a broad and serious engagement with intellectual life. This Article focuses on several individuals Charles Eliot, James Bradley Thayer, and John Chipman Gray to illustrate that engagement and suggests that it provided a frame which tempered a narrow law school curriculum.

–Dan Ernst

Duxbury's "Dicta and Dissent"

Neil Duxbury, London School of Economics and Political Science, has published The Intricacies of Dicta and Dissent (Cambridge University Press):

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on – and will prompt lawyers to pose fresh questions about – the common law tradition and the nature of judicial decision-making.

Professor Duxbury is the author of, among other things, the indispensable Patterns of American Jurisprudence (1995).

--Dan Ernst

Hendley on Whether Lawyers Have Mattered in Russia

Kathryn Hendley, the Roman Z. Livshits and William Voss-Bascom Professor of Law and Political Science at the University of Wisconsin-Madison, has published Do Lawyers Matter in Russia? in the Wisconsin Law Review 2021: 301-35:

As the transmission belt between citizens and their government, lawyers are a critical component of civil society. Yet their relevance depends on society's willingness to call upon them and on the state's openness to being challenged. In the U.S., we take the political importance of lawyers for granted. Elsewhere, especially in authoritarian countries, lawyers play a more peripheral role.  This Essay focuses on Russian lawyers. Although there is a large literature on various types of Russian lawyers, their status in society has not been much explored. The Essay tracks the evolution in societal attitudes towards lawyers in Russia, beginning with the Soviet period (1917-1991) and continuing through the post-Soviet period (1992-present). Drawing on memoirs, public opinion polling, and surveys, the Essay documents lawyers' low status in the Soviet Union. The introduction of market institutions in post-Soviet Russia opened the door to new types of lawyering, many of which are highly remunerated. The effect has been to increase the attractiveness of the profession to Russian youth and their parents and increase its esteem more generally.

--Dan Ernst

Teixeira, "The Legal History of the European Banking Union"

We missed this December 2020 release from Hart Publishing, but thanks to New Books Network, received word of it recently: The Legal History of the European Banking Union: How European Law Led to the Supranational Integration of the Single Financial Market, by Pedro Gustavo Teixeira (European Central Bank / Institute for Law and Finance of the Goethe University, Frankfurt am Main). A description from the Press:

How was the Banking Union, the most advanced legal and institutional integration in the single market, created? How does European law impact European integration?

To answer these questions, this book provides a sweeping account of the evolution of European law. It identifies five integration periods of the single financial market, intertwined with the development of global finance, from its origins, through its expansion and crisis, to the Banking Union. Each period is defined by innovations to deepen integration, such as the single passport for financial services, soft governance and comitology, agencies, or a single rulebook.

Providing a far-reaching explanation of the legal and institutional rationality of the European Banking Union, this book demonstrates that the Banking Union is not an accident of history or simply the product of the existential crisis of the Monetary Union. It has deep roots in the evolutionary process of European law and its drive towards supranational integration.

More information is available here.

-- Karen Tani

ASLH Conference Update

For those who are considering attending this year's meeting of the American Society for Legal History but are not ASLH members, you may have missed the recent update from ASLH President Lauren Benton. We excerpt it here:

We continue to plan to hold our in-person annual meeting in New Orleans on November 4-6, 2021, and I am writing to tell you about the Society’s efforts to mitigate risks of attending the conference during the pandemic.
 
I first want to note that our talented program committee has developed a terrific program. Please take a moment to look through the program draft. I know you will be as excited as I am about the prospect of learning about this new research, attending the plenary lecture, and having the opportunity to catch up with legal history colleagues.
 
The fast-changing conditions of the COVID-19 pandemic, particularly with the delta variant on a rampage, present unusual challenges. The Society places the highest priority on maximizing the safety of conference attendees. With that goal in mind, the ASLH Board has approved several important policies for the meeting, the most important of which is that attendees at pre-conference or conference events will be required to provide proof of vaccination. In addition, the Society pledges to follow CDC guidelines on social distancing and masking at the conference.
 
I ask that you read the information and FAQs below carefully. We are still some months away from the meeting, and conditions can change quickly. I will work with the other ASLH officers and our ad hoc committee to seek to monitor the situation, to pass along changes in mitigation measures, and to update you about the evolving nature of risks that will remain despite our best mitigation efforts. It remains possible, of course, that we will have to cancel this year’s meeting. I very much hope that doesn’t happen.
 
I invite you to email me directly if you have specific questions that aren’t answered below or wish to pass along any suggestions.
 
Thank you for your understanding and for your support of the ASLH.
 
Best regards,
Lauren Benton
ASLH President, 2020-2021

Further information:

Proof of vaccination

• Registrants will be asked to provide proof of vaccination when they pick up their badges and other registration materials. Because many colleges and universities are allowing exemptions for medical or religious reasons, the Society will allow attendees who do not show proof of vaccination status to present proof of a negative COVID-19 test taken no more than three days before their arrival at the conference. Any participant with such a test but without proof of vaccination will need to wear a mask at all times.

Masking

• The policy for wearing masks will conform to CDC guidelines in place at the time of the conference. It is possible, and even likely, that we will be requiring all attendees to wear masks at all events. Current CDC guidance is for masks to be worn by everyone attending indoor events in areas of high transmission. At present, Orleans Parish is rated by the CDC as an area of high transmission. We will continue to monitor CDC data for New Orleans Parish and keep members informed (through messages like this one and posts on our website) with regular updates about the masking policy.

Hotel and university vaccination and masking policies

• The hotel (InterContinental New Orleans) is currently reporting that 70% of its staff have been vaccinated. We have requested that only vaccinated staff interact with our conference attendees, and the hotel has indicated that it will seek to comply with our request. Hotel management also informs us that all hotel staff will be required to wear masks. Tulane University (where the plenary lecture will be held) currently has a masking requirement in place for all events on campus. Tulane also requires vaccinations for faculty and staff.

Frequently Asked Questions:

Will I be able to cancel conference and travel reservations and receive refunds? 

• The latest date by which ASLH meeting registrations may be canceled with full refunds issued is October 14, 2021.  Rooms at the InterContinental New Orleans can be booked at the conference rate until Thursday, October 12, 2021, and reservations may be cancelled without charge up to 72 hours prior to date of arrival (see important details about timing on the hotel website). Please check with your air carrier about their cancellation and change policies. Most airlines have adopted flexible change policies during the pandemic. The ASLH does not endorse any travel insurance policies but you may want to consider purchasing travel insurance that covers COVID-related issues.

Why doesn’t the ASLH just hold another online conference?

• If the ASLH were to cancel its in-person conference right now, we would be required to pay very significant penalties to the hotel under our contract. The Society is able to invoke the force majeure clause of our contract to avoid this penalty only under specific conditions. Paying penalties for canceling without force majeure would shift resources away from some of the Society’s valuable programs, publications, fellowships, and professional development opportunities.

Why can’t I just present remotely?

• While this might seem easy in theory, the technological logistics of pulling this off are complex and costly. Rooms would have to be equipped with screens, complex a/v packages, and hard-wired internet, all of which would add very significant costs. In addition, offering a remote option might encourage a majority of members to stay home, and the Society also faces penalties if we fail to meet contractual room and food and beverage minimums at the hotel. Finally, many of our members, particularly early career scholars, count on the opportunities for networking uniquely available at in-person meetings.

Will any of the content from the meeting be available online?

• We cannot provide live streaming of any events (see the reasons above). We will post and circulate information about prizes and awards soon after the conference. We are exploring the possibility of making some limited content (perhaps one or two exemplary panels) available in audio form. Additional information will be posted as it becomes available.

How will the experience of attending the meeting differ this year?

• We are doing all we can to make this meeting the same valuable venue for exchanging research and ideas to which we’ve all become accustomed. We do not expect masking and social distancing, if required, to interfere with panels and lectures. If masking requirements make it impossible to serve meals, we will hold the awards ceremony without food. Your registration includes the cost of the annual luncheon, so we would work with the hotel to provide attendees with box lunches if we cannot serve food.

-- Karen Tani