Friday, September 30, 2016

Chambers on Adoption in Ontario

Out this month with the University of Toronto Press is A Legal History of Adoption in Ontario, 1921-2015 by Lori Chambers (Lakehead University). From the publisher:
A Legal History of Adoption in Ontario. 1921-2015Lori Chambers’ fascinating study explores the legal history of adoption in Ontario since the passage of the first statute in 1921. This volume explores a wide range of themes and issues in the history of adoption including: the reasons for the creation of statutory adoption, the increasing voice of unmarried fathers in newborn adoption, the reasons for movement away from secrecy in adoption, the evolution of step-parent adoption, the adoption of Indigenous children, and the growth of international adoption. 
Unlike other works on adoption, Chambers focuses explicitly on statutes, statutory debates and the interpretation of statues in court. In doing so, she concludes that adoption is an inadequate response to child welfare and on its own cannot solve problems regarding child neglect and abuse. Rather, Chambers argues that in order to reform the area of adoption we must first acknowledge that it is built upon social inequalities within and between nations.  
Praise for the book:

"With her usual scholarly rigour, Lori Chambers untangles the interwoven relations of the law, society and the state concerning adoption in Ontario. She brings clarity to a subject not infrequently paradoxical, even as a social construct: adoption, she demonstrates, was not always "in the best interests" of the children at its centre despite the laws developed exactly to that end." -Cynthia Comacchio 

"With her customary subtlety, alertness to multiple perspectives, and critical scrutiny of received wisdom, Lori Chambers tackles the complexities of an institution that has aided many families while intensifying hierarchies of gender, race, and class." -Robert Leckey 

"Lori Chambers’s excellent study of adoption law situates key Canadian legal cases in their social and political context, illuminating with immense clarity and insight the changing assumptions shaping the experiences of adoptive and adopting parents, children, and families over the twentieth century. Her acute analysis of adoption law exposes the conflicts, contradictions, pain, and well-meaning intentions that shaped the experience of adoption, with particular attention to the inequalities and power imbalances created by gender, race, class, and colonialism. Chambers’s study will remain the definitive look at adoption law for years to come." -Joan I. Sangster

More information is available here.

Thursday, September 29, 2016

Tamanaha on How History Bears on Jursiprudence

Brian Z. Tamanaha, Washington University in Saint Louis School of Law, has posted How History Bears on Jurisprudence, which is forthcoming in Law in Theory and Jurisprudence, ed. Maks Del Mar and Michael Lobban (Oxford: Hart Publishing, 2016):    
The relevance of history to jurisprudence is a burning topic of late, the focus of a forthcoming book, Law in Theory and Jurisprudence, as well as of a recent symposium issue in the Virginia Law Review, “Jurisprudence and (Its) History,” both with contributions from eminent historians and theorists. That jurisprudence neglects history to its impoverishment is the thrust of these collections. The editors for the Virginia symposium write, “there may be reason to think that turning to history could broaden the boundaries, and raise the ambitions, of a [jurisprudential] field that many lawyers, judges, and even legal scholars have written off as esoteric and dominated by concerns remote from their own.” This essay, the Afterword to the former volume, examines how history bears on jurisprudence. The presentation is organized around the following themes that emerge from the collection: Law is historical or temporal; Law and jurisprudence interact over time; Jurisprudence is influenced by social-historical circumstances; Historical jurisprudence; Must legal philosophy be historical? (No); Should legal philosophy be historical? (Yes).

Wednesday, September 28, 2016

Dorsett, McLaren and friends on the British Empire

We missed this important collection when it came out with Routledge in 2014: Legal Histories of the British Empire: Laws,engagements and legacies, edited by Shaunnagh Dorsett (University of Technology, Sydney) and John McLaren (University of Victoria, British Columbia). From the press:
This book is a major contribution to our understanding of the role played by law(s) in the British Empire. Using a variety of interdisciplinary approaches, the authors provide in-depth analyses which shine new light on the role of law in creating the people and places of the British Empire. Ranging from the United States, through Calcutta, across Australasia to the Gold Coast, these essays seek to investigate law’s central place in the British Empire, and the role of its agents in embedding British rule and culture in colonial territories. 
One of the first collections to provide a sustained engagement with the legal histories of the British Empire, in particular beyond the settler colonies, this work aims to encourage further scholarship and new approaches to the writing of the histories of that Empire. Legal Histories of the British EmpireLaws, Engagements and Legacies will be of value not only to legal scholars and graduate students, but of interest to all of those who want to know more about the laws in and of the British Empire.
TOC after the jump.

UVA Legal History Workshop

Our friends at the University of Virginia Law School have sent us the schedule for 2016-17 for UVA’s legal history workshop:

Fall 2016

October 24     Tim Lovelace, Indiana University

November 14  Daniel Hulsebosch, New York University

November 28  Martha Jones, University of Michigan

Spring 2017

March 27         Ron Harris, Tel Aviv University

April 10           Jack Schlegel, University of Buffalo

TBA                 Annette Gordon-Reed, Harvard Law School

ABF Names Edwards Neukom Fellows Research Chair

[From the American Bar Foundation's press release.]
Laura Edwards (credit)

The American Bar Foundation has appointed Laura F. Edwards, the Peabody Family Professor of History at Duke University, as the 2016-17 William H. Neukom Fellows Research Chair in Diversity and Law. An award-winning historian, Edwards is an expert on race, gender, and the law. Her research focuses on how disadvantaged and dependent groups such as slaves, women, and children used the law in the nineteenth-century U.S. South to maintain peace and empower themselves with rights.

The Neukom Fellows Research Chair was established in 2014 to lead the ABF’s empirical research on law and legal processes, relating to issues of diversity and inequality that woman, people of color, people with disabilities, and persons from the LGBTQ community face in the justice system. It was created to build upon the work of the ABF’s Research Group on Legal Diversity, a network of scholars who conduct empirical research on diversity in the legal profession and institutions of justice, as well as the impact of diversity on legal processes and institutions.

During her year as the Neukom Fellows Research Chair, Edwards will work on a research project entitled “Only the Clothes on Her Back: Women, Textiles, and State Formation in the Nineteenth-Century United States.” The project explores the relationship between U.S. textile trade in the nineteenth century and institutions of law and governance. It will reveal the ways in which subordinated groups engaged in trade, used the legal system, and ultimately shaped the nation’s governing institutions. The research will provide a new framework for understanding the development of inequality in the United States, demonstrating that problems of inequality today are more entrenched and therefore, more difficult to resolve.

[More.]

Tuesday, September 27, 2016

Gordon-Reed to Deliver Jefferson Memorial Lecture

The University of California, Berkeley welcomes Annette Gordon-Reed (Harvard University) to campus tomorrow to deliver the Jefferson Memorial Lecture. Her lecture is titled "Thomas Jefferson and the Empire of the Imagination." The lecture "will focus on Thomas Jefferson’s vision for the United States of America, and how race and slavery complicated his views of what kind of society was possible on the American continent."
Credit

More information, for those in the Bay Area:

Date: Wednesday, September 28

Time: 4:10 PM

Location: Chevron Auditorium, International House — 2299 Piedmont Avenue

Klarman's "Framer's Coup"

Michael J. Klarman, Harvard Law School, will publish next month The Framers' Coup:The Making of the United States Constitution (Oxford University Press):
Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests. Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself.

The Philadelphia convention could easily have been a failure, and the risk of collapse was always present. Had the convention dissolved, any number of adverse outcomes could have resulted, including civil war or a reversion to monarchy. Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories: the rebellion of debtor farmers in Massachusetts; George Washington's uncertainty about whether to attend; Gunning Bedford's threat to turn to a European prince if the small states were denied equal representation in the Senate; slave staters' threats to take their marbles and go home if denied representation for their slaves; Hamilton's quasi-monarchist speech to the convention; and Patrick Henry's herculean efforts to defeat the Constitution in Virginia through demagoguery and conspiracy theories.

The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests.

Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since.
Some quite extraordinary endorcements after the jump.

Tani reviews Jagodinsky, "Legal Codes and Talking Trees"

JOTWELL recently posted my admiring review of Katrina Jagodinsky's Legal Codes and Talking Trees: Indigenous Women's Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946. Here's the first paragraph of the review:
In 2016, legal history is a capacious field – one with a catholic view of what counts aslaw and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.
Read on here.

Monday, September 26, 2016

CFP: The Constitution of Canada

[Via Faculty Lounge, we have the following call for papers.]

The Constitution of Canada: History, Evolution, Influence and Reform

Symposium on The Constitution of Canada: History, Evolution, Influence and Reform on the Occasion of the 150th Anniversary of Confederation in memory of Alessandro Pizzorusso Scuola Sant’Anna.  24 May 2017 Pisa, Italy.  Convened by Giuseppe Martinico,  Richard Albert, Antonia Baraggia and Cristina Fasone.

This Symposium will convene a group of scholars to reflect on the history and evolution of the Constitution of Canada, on its written and unwritten dimensions, on its influence abroad, and on prospects for its reform.  Submissions are invited from scholars of all levels—from senior scholars to doctoral students—on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

1. The History and Evolution of the Constitution of Canada
2. The Influence Abroad of the Constitution of Canada
3. Canada’s “Invisible” Constitution
4. Reforming Canada’s Constitution: Perspectives from Abroad

The Symposium will be highlighted by a keynote address by Susanna Mancini, Full Professor of Comparative Public Law at the University of Bologna, and will feature Paolo Carrozza (Scuola Sant’Anna, Pisa), Giacomo Delledonne (Université Saint-Louis, Bruxelles), Anna Gamper (University of Innsbruck), and Patricia Popelier (University of Antwerp).

Penn Law & History Workshop

Stephanie McCurry (Columbia U)
[From Associate Blogger Smita Ghosh:]

The University of Pennsylvania's Legal History Consortium proudly presents the Law &History Workshop, the venue for six exciting presentations this academic year.  First up is Stephanie McCurry.  Mark your calendars!

September 29: Stephanie McCurry, Columbia University

November 10: Rabia Belt, Stanford University

January 26: David Rabban, University of Texas /LAPA fellow, Princeton

February 9: Binyamin Blum, Hebrew University of Jerusalem

March 15: Ariela Gross and Alejandro de la Fuente, University of Southern California

April 13: Barbara Welke, University of Minnesota

Weinrib's "Taming of Free Speech"

Laura Weinrib, University of Chicago Law School, has published The Taming of Free Speech: America’s Civil Liberties Compromise (Harvard University Press).

In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy.

The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence—often understood as a triumph for the Left—was in fact a calculated bargain.

America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.
Samuel Moyn's review in the Wall Street Journal is here.  And here are two endorsements:

“This is a big, bold project, a painting on a large canvas, depicting many different scenes in the manner of a Brueghel painting or WPA mural. It is a major work of history which will, I am quite sure, remain for many years the authoritative account of the ACLU’s pivotal role in producing our modern law of free expression.”—Robert W. Gordon, Stanford Law School

“Weinrib’s important reconstruction of the history of our notions of free expression shows how an idea first offered on behalf of labor radicals became transformed into a general account of why all dissent from the conventional should be protected. The Taming of Free Speech is a major contribution to the history of civil liberties.”—Mark Tushnet, Harvard Law School

Sunday, September 25, 2016

Sunday Review Roundup

Fan of Marx? Hitler? Just need more information?  Check out these book reviews.

In The Guardian, Richard Norton-Taylor reviews Susan Williams’s Spies in the Congo, which describes American activities in the Shinkolobwe uranium mine in then Belgian Congo during the Cold War. Using newly opened archives and personal interviews, she describes how the OSS “recruited a motley band to ensure the uranium reached the US and did not fall into the hands of Nazi Germany.”

In the Times Literary Supplement, one can read about Greatness and Illusion, Gareth Stedman Jones’ “fine new biography” of Karl Marx. Jones sets out to resurrect Marx’s intellectual and personal world without drawing on the “all the posthumous elaboration of his character and achievements.” Indeed, he “calls his subject ‘Karl,’ not to suggest a fake intimacy but to remind us that we are dealing not with an already marmoreal icon but with a human being thinking his way through a recalcitrant world.”   Michael Kazin explores the same work a New Republic piece cleverly titled “Prophet or Loss.”  According to Kazin, Jones tries to disabuse readers of “the notion that, in Capital, Marx explained anything significant about the workings of capitalism—either then or now. … Where Marx did excel, according to Jones, was in his vivid and lavishly detailed descriptions of the miserable lives of ordinary English workers, which he had spent years researching in the British Museum.”

In the Wall Street Journal, Neil Gregor reviews Volker Ullrich’s Hitler: Ascent, 1889-1939, the first part of a two-volume biography of Hitler originally published in German. Ullrich, who is a journalist by training (and thus avoids the “often deadening prose of his German academic colleagues”), uses “a wonderful array of well-chosen anecdotes” to emphasize Hitler’s personal role in “driving the war” and orchestrating the Holocaust.

In the LA Review of Books, filmmaker Priyanka Kumar reviews Elizabeth Hinton’s From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (it is “rich with details and synthesis that give the reader fresh insights into how the well-meaning policies of the Kennedy and Johnson eras went awry”) and Stephen Hansen takes on Aviezer Tucker’s The Legacies of Totalitarianism: A Theoretical Framework (it rejects the revisionism of many contemporary accounts of Russian history to make a “forceful defense of the central arguments of the totalitarian school about the nature of Leninist rule”).

In the History News Network, John L. Godwin reviews Kenneth Robert Janken’s The Wilmington Ten: Violence, Injustice, and the Rise of Black Politics in the 1970s. According to Godwin, you should pick up Janken’s book after you finish reading Gareth Stedman Jones: “For believers in the Russian Revolution, those who still reverence Mao and anticipate the return of Radical Reconstruction—this book will seem to capture a fleeting sense of that revolutionary moment waiting to happen. But for those who are interested in facts and want to know what really happened on the streets of Wilmington on the weekend of February 5-6, 1971, and the subsequent trial, The Wilmington Ten will surely raise new questions.”

The New Books Network features interviews with Katherine Turk, whose Equality on Trial: Gender and Rights in the Modern American Workplace explores the EEOC’s treatment of gender
discrimination cases in the 1970s. The backlog of claims, she argues, “pressed the EEOC to narrow the definition of sex equality and turned to statistics in developing cases to be tested in the courts.” One can also hear Marisa J. Fuentes on her new book Dispossessed Lives: Enslaved Women, Violence and the Archive, which “challenges historians to think more carefully about the methods and categories with which they have described and analyzed slavery,” taking up larger questions about “agency, violence, the production of knowledge, and gender,” and Megan Tompkins-Stange on the role of foundations in education reform (the subject of her new book: Policy Patrons: Philanthropy, Education Reform, and the Politics of Influence). Finally, the Network published an interview about America Abroad: The United States’ Global Role in the 21st Century, which takes stock of debates about globalization and serves as a “powerful reminder that a robust American presence is crucial for maintaining world order” a powerful defense of American globalism.” How’s that for “agency”?

The Literary Review (It's "for people who devour books”...) features reviews of several books of interest to legal historians, especially those with an interest in English law. David Edgerton reviews Benjamin Grob-Fitzgibbon’s Continental Drift: Britain and Europe from the End of Empire to the Rise of Euroscepticism and Brendan Simms’s Britain's Europe: A Thousand Years of Conflict and Cooperation. Richard Overy reviews The Vanquished: Why the First World War Failed to End, 1917–1923 , by Robert Gerwarth. You can also check out Adam Zaymorski on Richard Evans’s The Pursuit of Power: Europe 1815–1914 and Jeremy Lewis on Giles MIlton’s The Ministry of Ungentlemanly Warfare: Churchill’s Mavericks – Plotting Hitler’s Defeat.

 And finally, when I say “Thug Nation,” you think “Great Britain,” right? In a playfully titled review, Ted Vallance discusses A Fiery & Furious People: A History of Violence in England. The book, by James Sharpe, is also reviewed this week in The Guardian.

Saturday, September 24, 2016

Weekend Roundup

  • Last Thursday, the Icesi Law School in Cali, Colombia, held a conference to commemorate twenty-five years of the Constitution of Colombia (right).
  • The Franklin D. Roosevelt Presidential Library and Museum will present Listening to the Roosevelts: Franklin D. Roosevelt–The War Years at 7:00 p.m. on Wednesday, September 28, 2016, in the Henry A. Wallace Center at the FDR Presidential Library and Home.  Mary E. Stuckey, professor of communication at Georgia State University, presents, with selected audio recordings of FDR during World War II. 
  • On Talk Radio Europe: an interview with Ian Burney (University of Manchester) on his new book (with Neil Pemberton), Murder and the Making of English CSI, which we announced here
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 23, 2016

Decker's "Other Rights Revolution"

I'm very pleased to announce that Jefferson Decker, an Assistant Professor of American Studies and Political Science at Rutgers University, has published The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (Oxford University Press).
In 1973, a group of California lawyers formed a non-profit, public-interest legal foundation dedicated to defending conservative principles in court. Calling themselves the Pacific Legal Foundation, they declared war on the U.S. regulatory state--the sets of rules, legal precedents, and bureaucratic processes that govern the way Americans do business. Believing that the growing size and complexity of government regulations threatened U.S. economy and infringed on property rights, Pacific Legal Foundation began to file a series of lawsuits challenging the government's power to plan the use of private land or protect environmental qualities. By the end of the decade, they had been joined in this effort by spin-off legal foundations across the country.

The Other Rights Revolution explains how a little-known collection of lawyers and politicians--with some help from angry property owners and bulldozer-driving Sagebrush Rebels--tried to bring liberal government to heel in the final decades of the twentieth century. Decker demonstrates how legal and constitutional battles over property rights, preservation, and the environment helped to shape the political ideas and policy agendas of modern conservatism. By uncovering the history--including the regionally distinctive experiences of the American West--behind the conservative mobilization in the courts, Decker offers a new interpretation of the Reagan-era right.
TOC after the jump. 

Thursday, September 22, 2016

Call for Applications: Yale University Chauncey Postdoc

Via H-Law, we are passing along the following job announcement from Yale University:
The Chauncey Postdoctoral Fellowships are up to three positions funded by the Brady-Johnson Program in Grand Strategy for one year renewable for one additional year. We seek to attract outstanding junior scholars from around the globe whose work addresses questions of statecraft and grand strategy and demonstrates excellence in one of a range of academic disciplines and methodologies.
Postdoctoral fellows must have completed their PhD degree to begin the fellowship. They are expected to use their time at Yale to conduct original research and prepare manuscripts for publication. Working with an active academic community of postdoctoral and predoctoral fellows, as well as Yale faculty in history, political science, and other disciplines, postdoctoral fellows may examine a variety of areas of statecraft and grand strategy, including issues of security, economic development, environmental sustainability, global health, and human dignity.
A member of the Yale faculty will serve as a mentor during the fellowship and will meet on a regular basis with the fellow. Postdoctoral fellows may teach small seminars if desired. They participate regularly in research colloquia on campus and are granted opportunities to present their work. Postdoctoral fellows are expected to remain in residence through the duration of their fellowship and contribute to the intellectual life of the Grand Strategy Program and International Security Studies by participating in its activities and development.
Fellows will be expected to conduct their own research and to teach at least one course on a subject relevant to grand strategy during each year in which they hold the fellowship. The stipend will be at least $50,000.
The announcement lists Law and Legal History as one of the search's "primary categories."

Legal History By Another Name? Legal History in History Departments

(Before you start reading this post in earnest, please know that it is not as long as it seems.  Thank you.)

There are some really wonderful legal historians that teach in history departments.  So many, in fact, that I hope I am excused for naming a few with full knowledge that I am overlooking a great many more:
Linda Kerber (Iowa), Rebecca Scott (Michigan), Laura Kalman (UCSB), Laura Edwards (Duke), Peter Hoffer (Georgia), Sally Hadden (Western Michigan), Margot Canady (Princeton), Cornelia Dayton (Connecticut), David Tannenhaus (UNLV), Hendrik Hartog (Princeton), Elizabeth Dale (Florida), Barbara Welke (Minnesota), Kelly Kennington (Auburn), David Konig (Washington U.), Michael Les Benedict (Ohio State), David Armitage (Harvard), Katherine Turk (UNC), Holly Brewer (Maryland), Jane Dailey (Chicago), Sara MacDougall (John Jay), Kyle Volk (Montana), Rebecca Mclennan (Berkeley), Maribel Morey (Clemson), Malick Ghachem (MIT), Yvonne Pitts (Purdue), Linda Przybyszewski, Michael Willrich (Brandeis), Honor Sachs (Western Carolina), Will Hanley (Florida State), Katrina Jagodinsky (Nebraska), Andrew Wender Cohen (Syracuse), Kimberly Welch (Vanderbilt), Philip Thai (Northeastern), Amy Dru Stanley (Chicago), Ken Ledford (Case Western), Elizabeth Kai Hinton (Harvard), Anne Kornhauser (City College), Ted Steinberg (Case Western), Rohit De (Yale), Alison Lefkovitz (Rutgers/NJIT), David Bodenhamer (Indiana-Purdue), Thomas Mackey (Louisville), Andrew Sandoval-Strausz (New Mexico), Mike Grossberg (Indiana), Robert Palmer (Houston), Saundra Schwartz (Hawai’i-Manoa), Richard Hamm (SUNY-Albany), Sara Butler (Ohio State), Deborah Rosen (Lafayette), Charles Zelden (NOVA-Southeastern), Elisa Minoff (South Florida), Debjani Battacharyya (Drexel), Tim Garrison (Portland State), Chris Capozzola (MIT), Matthew Sommer (Stanford), Julia Randolph (North Carolina State), Matthew Crow (Hobart and William Smith), Melanie Newport (Connecticut-Hartford), James Schmidt (Northern Illinois), Lou Williams (Kansas State), Patricia Minter (Western Kentucky), Lucy Salyer (New Hampshire), Katherine Unterman (Texas A&M), Sarah Levine-Gronningsater (Cal Tech), Jen Manion (UMass-Amherst), Abby Chandler (UMass-Lowell), Kimberly Reilly (Wisconsin-Green Bay), Adam Malka (SUNY-Buffalo), Devin Pendas (Boston College), Alan Rogers (Boston College), Mark Carroll (Missouri), Michael Pfeifer (CUNY), Michael Meranze (UCLA), Richard Ross (Maryland), Shane Landrum (Florida International), Jennifer Mittelstadt (Rutgers), H. Robert Baker (Georgia State), Lou Williams (Kansas State), Kate Masur (Northwestern), Joanna Grisinger (Northwestern), Melissa Macauley (Northwestern), Kathleen Brosnan (Oklahoma), Rena Lauer (Oregon State), Kathlene Baldanza (Penn State), Craig Hammond (Penn State), Emily Blanck (Rowan), Rebecca Rix (Princeton), Jack Rakove (Stanford), Susan Hinely (Stony Brook), James Gigantino (Arkansas), Peter Larson (Central Florida), Victor Bailey (Kansas), Abigail Firey (Kentucky), Daniel Gargola (Kentucky), Jennifer Nye (UMass-Amherst), Kate Ramsey (Miami), Anne S. Twitty (Mississippi), Guy Chet (North Texas), Kevin Butterfield (Oklahoma), Andrew Porwancher (Oklahoma), Kathryn Schumaker (Oklahoma), Randall McGowen (Oregon), Peter Karsten (Pittsburgh), Christopher Curtis (Armstrong State), Sam Lebovic (George Mason), Charlotte Walker-Said (John Jay), Timothy Huebner (Rhodes College), Sarah Milov (Virginia), Kate Brown (Huntington), Erika Vause (Florida Southern), Alejandro de la Fuente (Harvard), John Wertheimer (Davidson), Michael Schoeppner (Maine-Farmington), Nate Holdren (Drake), Anne O'Donnell (Harvard), Kirt von Daacke (Virginia), Nancy Woloch (Barnard), Katherine Hermes (Central Connecticut), Cedric de Leon (Providence College), Lee B. Wilson (Clemson), Carole Emberton (SUNY-Buffalo), Jonathan Gienapp (Stanford).

Again, I know my non-scientific methodology (conference programs, google searches, names in my inbox) has left out lots of people who should be on this list.  I’ve probably mangled a few affiliations, too.  I hope commentators and tweeters use their megaphones to set me straight.  I apologize in advance!

The point of the preceding list was not to be comprehensive, though.  Rather it was in part to give Legal History Blog readers—a great many of whom reside on law faculties—a sense of the remarkable depth of legal history in history departments.  Yet another reason for going down this road is to pick up on a thread from my previous post.  There I had postulated that legal history did not always fit comfortably within the confines of history departments.  In a book driven field, I personally felt pressure to push my project about very legal topics—statutes and administration, for instance—toward topics that had a broader audience within history departments.  But today I’ll try and mute my narcissism for a moment and think more generally about the seeming paradox: the breadth of legal history scholarship in history departments and the persisting uncomfortable fit of legal history within history departments.

First, is there a problem here at all?  For one thing, history departments only rarely search for legal historians.  This year the American Historical Association Careers site finds only one available position for legal historians—the Siegenthaler Chair in American History at Vanderbilt University.  A decade or so worth of search ads on the H-Net Job Guide finds thirteen positions within the United States.  This discussion is not at all intended to mimick the incorrect recent argument of Frederick Lovegall and Kenneth Osgoodthat a paucity of searches in political history reflected that field’s long goodbye.  In fact the opposite is true of both political history and legal history.  As the list above suggests, legal history is booming within history departments.  If someone were to build a similar list of political historians they would surely come to the same conclusion about that field.  But the lack of searches for tenure-line legal historians suggests a structural deficit of interest in hiring faculty who chiefly identify as legal historians.

The sleight of hand at play in my list is that almost everyone on it was not hired as a legal historian but rather as a promising historian of an important historical theme or an epochal, chronological division.  There are, of course, exceptions to this hypothesis, especially in hires for faculty to serve as pre-law advisors or to run pre-law programs.  But by and large legal historians in history departments wear at least two hats as historians of, say, the early American republic and as historians of law.  It is undeniable that historians on law faculties perform similar labors as they juggle black letter teaching and historical research (when the two do not converge).  But a quick glance at the leading legal history journals and legal history conference programs—the Law& History Review, the AmericanJournal of Legal History, Law &Social Inquiry, the American Society for Legal History—suggests that despite the fact that legal historians on history and law faculties do double-duty, fewer of those in history departments choose legal history venues to present their work.  Here then is a second reason there may be a problem for it is not just university administrators overlooking legal history for other fields.  In fact, legal historians within history departments are steering themselves elsewhere.

Those seeking jobs within history departments—who have it tough enough as it is—have long adjusted to the nominal demand problem in their field by teaching well beyond legal history.  Many simply call themselves something else.  Depending on what job I was applying for, I was a historian of early America (not so much), the early republic (yes), the American revolution (sure), the long nineteenth-century (ok), America in the world (hmmm), and big data (eeek).  Joking aside, legal historians on the history job market learn how to be flexible and how to make their legal history research speak to more widely advertised fields in the market, such as it is and has been. 

Some have also found that their work speaks to contemporary concerns.  Carceral state scholars are a case in point.  Jen Manion, whose Liberty’s Prisoners: Carceral Culture in Early America is one of my favorite recent books, taught at Connecticut College and now is in the history department at Amherst College.  Melanie Newport, who is working on a book about the jail crisis in twentieth-century Cook County, Illinois, now teaches at the University of Connecticut-Hartford.  Katherine Unterman, author of the outstanding Uncle Sam’s Policemen: The Pursuit of Fugitives Across Borders(2015), teaches in the history department at Texas A&M.  Elizabeth Kai Hinton teaches at Harvard University and has written the recently published but already well-received From the War on Poverty to the War on Crime(2016).  Julilly Kohler-Hausmann’s Getting Tough: Welfare and Imprisonment in 1970s America is much anticipated (slated for 2017).  She teaches at Cornell.  And as if to underscore my point about this type of scholarship making waves outside of traditional legal history venues, essays by Kohler-Hausmann and Hinton on the carceral state were paired in an issue of the Journal of Urban History(vol. 41, no. 5, 2015).

There are a great many more scholars within history departments who would not identify as legal historians but whose work has a great deal to say about law, governance, and the state.  That same issue of the Journal of Urban History features work by my good friend, Timothy Stewart-Winter of Rutgers-Newark.  From the title alone, Stewart-Winter’s outstanding essay, “The Law and Order Origins of Urban Gay Politics” is of clear interest to legal historians.  But since Stewart-Winter’s faculty profile lists his interests as “sexuality and gender, political, social, urban, African American,” some may not guess that his recent book, Queer Clout: Chicago and the Riseof Gay Politics, would also be of interest to legal historians.  It most certainly is.  A second example is to be found on the other side of the NY metropolitan region in the work of Stony Brook’s Kathleen Wilson.  In my opinion, Wilson’s 2011 essay in the American Historical Review, “Re-thinking the Colonial State: Gender and Governmentality in theEighteenth-Century British Empire” is a pathbreaking model for new approaches to the boundaries of state power in the age of revolution.  Yet Wilson’s stated interests on her faculty page are “modern British cultural and political history.”  Of course neither Stewart-Winter nor Wilson need identify themselves as legal historians.  But legal historians would be wise to explore their work.

But how should legal historians not-in-the-know find the work of scholars like Stewart-Winter or Wilson who may describe themselves as something else?  Herein lies the challenge and the potential danger of history departments with limited lines for ‘legal historians.’ It is admittedly very difficult for already overworked scholars to read even more journals and keep abreast of multiple historiographies.  

Yet I am bullish nonetheless.  Social media, much-maligned for elevating cat GIFs to an art form, has also succeeded in becoming a wonderful platform for historians to learn of works in fields that they may not consider their own.  Twitter, where I do spend a great deal of time kvetching about my sports teams, was also where I learned about that above referenced issue of the Journal of Urban History, as well as works by Debjani Battacharyya and Emily Blanck, among many others.  Blanck’s work was also serialized in Slate wherein it was shared several hundred times on Facebook.  The Atlantic Monthly, perhaps due to the guidance of social and cultural historian Yoni Applebaum, has also become a premier venue for legal historians to present their work to new audiences.  A second source of optimism lies in the incredible strength of legal history within law faculties.  Because it is almost impossible to be a legal historian in a law school without a doctorate in history, law school legal historians—especially graduates within the past decade plus—quite rightly see their work in dialogue with their history department counterparts.  Here’s one example: our own Karen Tani’s States of Dependency: Welfare, Rights, andAmerican Governance, 1935-1972 (2016), who LHB readers will know teaches in a law school and has a Ph.D. from the University of Pennsylvania, clearly curries a scholarly conversation with University of Vermont historian Felicia Kornbluh’s great book, The Battle for Welfare Rights: Politics and Poverty in Modern America (2007).  Likewise, University of New Hampshire historian Eliga Gould’s Among the Powersof the Earth: the American Revolution and the Making of a New World Empire interlocutes with the work of NYU Law School legal historian Daniel Hulsebosch as well as Hulsebosch’s more recent collaboration with his colleague DanielGolove. 


In short, the conversation is already happening.  I believe it will only continue to grow.  So much for the present, then.  And since my first two posts dredged up the past, I’ll devote my next and final post to talking a little about the future and my next project.  As always I look forward to your feedback.

Wednesday, September 21, 2016

Benton and Ford on International Law

Just out with Harvard University Press is Rage for Order: The British Empire and the Origins of International Law, 1800-1850, by Lauren Benton (Vanderbilt) and Lisa Ford (University of New South Wales). From the press:
International law burst on the scene as a new field in the late nineteenth century. Where did it come from? Rage for Order finds the origins of international law in empires—especially in the British Empire’s sprawling efforts to refashion the imperial constitution and use it to order the world in the early part of that century.

Lauren Benton and Lisa Ford uncover the lost history of Britain’s global empire of law in colonial conflicts and bureaucratic dispatches rather than legal treatises and case law. Tracing constitutional politics around the world, Rage for Order shows that attempts to refashion the British imperial constitution touched on all the controversial issues of the day, from slavery to revolution. Scandals in turbulent colonies targeted petty despots and augmented the power of the Crown to intervene in the administration of justice. Campaigns to police piracy and slave trading linked British interests to the stability of politically fragmented regions. Dull bureaucrats dominated legal reform, but they did not act in isolation. Indigenous peoples, slaves, convicts, merchants, and sailors all scrambled to play a part in reordering the empire and the world beyond it. Yet, through it all, legal reform focused on promoting order, not advancing human rights or charting liberalism.  
Rage for Order maps a formative phase in world history when imperial, not international, law anchored visions of global order. This sweeping story changes the way we think about the legacy of the British Empire and the meaning of international law today.
A few blurbs (after the jump):

Lindseth on the EU as "Administrative" or "Constitutional"

Peter L. Lindseth, University of Connecticut School of Law, has posted What's in a Label? The EU as “Administrative” and “Constitutional,” which is forthcoming in Susan Rose-Ackerman, Peter Lindseth, and Blake Emerson, eds., Comparative Administrative Law, 2d ed. (Elgar):
How shall we “come to terms” with the complex reality of governance in the European Union? If we regard this challenge in strictly legal terms and, more importantly, give the pronouncements of the European Court of Justice (ECJ) and sympathetic legal commentators the dispositive role in our determination, then the response is clear: The EU is a “constitutional” level of governance in its own right, with the EU treaties serving as a “constitutional charter of a Community based on the rule of law”. There is another sense of “coming to terms”, however, that is less ECJ-centric. It looks beyond the nominal and legal and moves into the sociological and historical domains. It recognizes that “coming to terms” must focus on the core disconnect at the heart of European integration, in which regulatory power has undoubtedly shifted to the supranational level but the EU lacks autonomous democratic and constitutional legitimacy to support the exercise of that power in its own right. The EU legal order clearly enjoys a legal, technocratic and functional legitimacy sufficient to support autonomous regulatory power of a uniquely powerful supranational type. The problem with the nominal constitutionalism of the ECJ and legal commentators, however, is that it proceeds “as if” the EU possesses robust democratic and constitution legitimacy in its own right, in defiance of the EU’s actual socio-historical character. Two features of EU public law — nationally grounded resource mobilization and nationally mediated legitimacy — point strongly to the EU’s character as ultimately derivative, delegated, and “administrative”, operating as a regulatory “agent” of democratic and constitutional “principals” who remain largely national. These features of EU governance focus our attention on what we can call “the power-legitimacy nexus”; that is, the linkage between the nature of the legitimacy enjoyed by a legal or political order (legal, technocratic, functional, or robustly democratic and constitutional) and the scope of power that the legal order can then successfully exercise. Using a comparative administrative law perspective, this chapter argues that several judicial doctrines of the ECJ — relating to “legal basis”, “subsidiarity” and “supremacy”, among others — should be reformed to bring them more fully into line with the EU’s actual socio-historical character as an instance of supranational administrative governance. Rather than indulging in an “as if” constitutionalism as the ECJ has done, the public law of European integration should confront the EU as it actually is. In “coming to terms” with this reality, we must do more than simply label it; rather, we must also understand how European law, both national and supranational, should evolve to accommodate its underlying socio-historical disconnect and the contradictions it raises.

New Perspectives on European Women’s Legal History,

Just published is New Perspectives on European Women’s Legal History, ed. Sara L. Kimble and Marion Rowekamp (Routledge):
This book integrates women’s history and legal studies within the broader context of modern European history in the late nineteenth and twentieth centuries. Sixteen contributions from fourteen countries explore the ways in which the law contributes to the social construction of gender. They analyze questions of family law and international law and highlight the politics of gender in the legal professions in a variety of historical, social and national settings, including Eastern, Southern, Western, Northern and Central Europe. Focusing on different legal cultures, they show us the similarities and differences in the ways the law has shaped the contours of women and men’s lives in powerful ways. They also show how women have used legal knowledge to struggle for their equal rights on the national and transnational level. The chapters address the interconnectedness of the history of feminism, legislative reforms, and women’s citizenship, and build a foundation for a comparative vision of women’s legal history in modern Europe.
TOC here.

Tuesday, September 20, 2016

12th Annual Israeli History and Law Association

[We have the following announcement.]

The Twelfth Annual Conference of the Israeli History and Law Association will be held on Monday, October 10, 2016, at  Yad Izhak Ben-Zvi, Ibn Gvirol 14, Jerusalem.  Enquiries can be directed to berg@post.tau.ac.il.

Complete schedule after the jump.

Smail on Households and Debt Collection in Late Medieval Europe

New from Harvard University Press: Legal Plunder: Households and Debt Collection in Late Medieval Europe (2016), by Daniel Lord Smail (Harvard University). A description from the Press:
As Europe began to grow rich during the Middle Ages, its wealth materialized in the
well-made clothes, linens, and wares of ordinary households. Such items were indicators of one’s station in life in a society accustomed to reading visible signs of rank. In a world without banking, household goods became valuable commodities that often substituted for hard currency. Pawnbrokers and resellers sprang up, helping to push these goods into circulation. Simultaneously, a harshly coercive legal system developed to ensure that debtors paid their due.
Focusing on the Mediterranean cities of Marseille and Lucca, Legal Plunder explores how the newfound wealth embodied in household goods shaped the beginnings of a modern consumer economy in late medieval Europe. The vigorous trade in goods that grew up in the fourteenth and fifteenth centuries entangled households in complex relationships of credit and debt, and one of the most common activities of law courts during the period was debt recovery. Sergeants of the law were empowered to march into debtors’ homes and seize belongings equal in value to the debt owed. These officials were agents of a predatory economy, cogs in a political machinery of state-sponsored plunder.
As Daniel Smail shows, the records of medieval European law courts offer some of the most vivid descriptions of material culture in this period, providing insights into the lives of men and women on the cusp of modern capitalism. Then as now, money and value were implicated in questions of power and patterns of violence.
A few blurbs:
Full of unexpected insights, this exciting and innovative social history brings the late Middle Ages to life through everyday objects that served as the basis of an emotional package of vanity, optimism, humiliation, and violence surrounding debt seizures.—Paul Freedman, Yale University
A terrific book, rich with well-told anecdotes as well as smart analytical interventions. Smail makes ordinary people more than mere onlookers or victims of the long so-called commercial revolution of Europe.—Martha Howell
More information is available here.

Monday, September 19, 2016

Lederman on History's Lessons for Wartime Military Tribunals

Martin Lederman, Georgetown University Law Center, has posted If George Washington Did it, Does that Make it Constitutional? History's Lessons for Wartime Military Tribunals, which is forthcoming in the Georgetown Law Journal:    
Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a
Joshua Hett Smith House, Treason Hill (wiki)
1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.