Thursday, September 21, 2017

Lund on Medieval Year Books

We missed this one in 2015, when Thomas Lund (University of Utah) published The Creation of the Common Law: The Medieval Year Books Deciphered with the Lawbook Exchange. From the press:
Product DetailsIn this modern compilation and commentary, the most important medieval cases are paraphrased and analyzed, making this interesting and entertaining litigation accessible to everyone. Although Maitland's classic History of English Law ends at Henry III's death, until now no one has explained in clear modern language the transformative events that followed. After Edward I became king, Chief Justice Bereford took charge of the legal system, and created law in accord with his own sense of justice. The book puts his innovations into the context of contemporary American and English law.
Praise for the book:
"It is a staple of popular fiction - The Da Vinci Code is a prominent recent example - for a scholar, after inspired and painstaking work, to reveal hidden mysteries encoded in ancient manuscripts that alter our understanding of ourselves and our civilization. Remarkably, the legal scholar Thomas Lund, has, in real life, done just that. Here, after hundreds of years, is a readable, brilliant, and deep study of the sources of the basic principles of the Anglo-American Legal System still in use today - the medieval Year Books - until now utterly inaccessible except to a few specialists in the most arcane legal history. This amazing and delightful book will be of profound interest to anyone who has ever believed that the rule of law is about more than the arbitrary machinations of politicians. Simply stated, Thomas Lund has given us one of the most important works on law in this generation." -Stephen B. Presser
Further information is available here

Johnson on US Civil Rights Leaders and UN Human Rights

“How U.S. Civil Rights Leaders' Human Rights Agenda Shaped the United Nations,” Howard Human and Civil Rights Law Review 1 (2016-2017): 33-44, by Darin E.W. Johnson, Howard Law School, appears as part of the downloadable pdf of the entire issue.  Borrowing from its introduction:
This essay comprises remarks that I delivered as part of the Howard University School of Law C. Clyde Ferguson Lecture on March 31, 2016. The C. Clyde Ferguson lecture honors C. Clyde Ferguson, former Dean of Howard Law School, U.S. Ambassador to Uganda, U.S. Ambassador-at-Large and Coordinator for civilian relief in the Nigerian civil war, and U.S. Representative to the United Nations Economic and Social Council. Given C. Clyde Ferguson’s distinguished history as both a U.S. civil rights lawyer and a human rights advocate within the United Nations, the lecture was a fitting forum to speak about the foundational role that U.S. civil rights leaders played in shaping the United Nations human rights system.
The issue commences with a very substantial foreword by Judge Gabrielle Kirk McDonald on three civil rights lawyers who taught at the Howard Law School: Charles Hamilton Houston, C. Clyde Ferguson, and Goler Teal Butcher.

Wednesday, September 20, 2017

Phillips and White on a Corpus Linguistic Analysis of the Emoulments Clauses

James Cleith Phillips, a PhD candidate at University of California, Berkeley, School of Law, and Sara White, the inaugural Corpus Linguistic Research Fellow at the Brigham Young University J. Reuben Clark Law School, have posted The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799:
The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question.

This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning. 

Cushman on the "Constitutional Revolution" of 1937

Barry Cushman, Notre Dame Law School, has posted Inside the "Constitutional Revolution" of 1937, which appeared in the Supreme Court Review 2016 (2107): 367-409:
The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term.

This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

LHR 35:3

Volume 35, No. 3 of the Law and History Review is now in print: 
Natural Rights Dissected and Rejected: John Lind's Counter to the Declaration of Independence
Neil L. York 
“The Law of the New Hebrides is the Protector of their Lawlessness”: Justice, Race and Colonial Rivalry in the Early Anglo-French Condominium
Kate Stevens 
The Hounds of Empire: Forensic Dog Tracking in Britain and its Colonies, 1888–1953
Binyamin Blum 
Enemy Women and the Laws of War in the American Civil War
Stephanie McCurry 
‘My land is worth a million dollars’: How Japanese Canadians contested their dispossession in the 1940s
Jordan Stanger-Ross, Nicholas Blomley, The Landscapes of Injustice Research Collective 
Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State
Natasha Wheatley 
Culture and the Courts in France: the Plaidoirie Sentimentale in the Nineteenth and EarlyTwentieth Centuries
James M. Donovan 
Book Reviews 
Jedidiah Joseph Kroncke , The Futility of Law and Development: China and the Dangers of Exporting American Law. New York: Oxford University Press, 2016. Pp 376. $74.00 cloth (ISBN: 9780190233525)
Rande Kostal 
Andrew Porwancher , John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law. Columbia, MO: University of Missouri Press, 2016. Pp. 233. $40.00 cloth (ISBN 9780826220868).
Michael Ariens 
Jeffrey Rosen , Louis D. Brandeis: American Prophet. New Haven: Yale University Press, 2016. Pp. 256. $25.00 hardcover (ISBN 9780300158670).
Joel K. Goldstein 
Brett Christophers , The Great Leveler: Capitalism and Competition in the Court of Law, Cambridge, Massachusetts: Harvard University Press, 2016. Pp. 348. $45.00 (ISBN 978-0-674-50491-2).
Judge Glock 
Katherine Turk , Equality on Trial: Gender and Rights in the Modern American Workplace. Philadelphia: University of Pennsylvania Press, 2016. Pp. 284. $45.00 cloth (ISBN 978-0-8122-4820-3).
Catherine L. Fisk

Tuesday, September 19, 2017

CFP: Law and Society Association meeting

Toronto (credit)
The Law and Society Association's Call for Papers (and panel proposals) is now out. The upcoming LSA will be in Toronto,  Canada, June 7-10, 2018. The deadline for submissions is Oct.18, 2017

Here is the write-up on the conference theme of "Law at the Crossroads: Le Droit de la Croisée des Chemins."  

Don't forget to contact the relevant Collaborative Research Network organizers if you'd like your panel to be sponsored by a CRN. CRN sponsorship helps people interested in the same themes or regions find each other at the LSA. Among others, there are CRNs for Law and History, South Asia, East Asian Law and Society, British Colonial Legalities, and Law and Colonialism.

Full information on the submission process is available here.

Gerber on Law and Catholicism in Colonial Maryland

Scott D. Gerber, Ohio Northern University-Pettit College of Law, has posted Law and Catholicism in Colonial Maryland, which appears in the Catholic Historical Review 103 (2017): 465-90:
George Calvert (Wiki)
Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. Maryland is a compelling case study of Montesquieu’s theory: founded in 1632 by Lord Baltimore as a haven for Catholics, a mere two decades later that animating principle was dead. This article explores why. More specifically, the article examines the birth, death, and resurrection of Maryland’s animating principle by identifying with as much precision as possible the impact of the law itself on regime change in colonial Maryland.

Monday, September 18, 2017

Mikhail on "Foreign Born Framers"

[ICYMI: Here's a pointer to my Georgetown Law colleague John Mikhail's recent post on Balkinization, “Foreign-Born Framers.”]

On this Constitution Day, it is worth recalling that seven of the thirty-nine delegates to the Philadelphia convention whose names are affixed to the Constitution were foreign-born, i.e., born outside of the territories that became the United States.  These original dreamers who “got the job done” were:

Alexander Hamilton (NY) – born in the West Indies
Thomas Fitzsimmons (PA) – born in Ireland
Robert Morris (PA) – born in England
James Wilson (PA) – born in Scotland
William Paterson (NJ) – born in Ireland
James McHenry (MD) – born in Ireland
Pierce Butler (SC) – born in Ireland


BHC Doctoral Colloquium in Business History

[We have the following announcement.] The BHC Doctoral Colloquium in Business History willbe held once again in conjunction with the 2018 BHC annual meeting. This prestigious workshop, funded by Cambridge University Press, will take place in Baltimore on Wednesday April 4th and Thursday April 5th. Typically limited to ten students, the colloquium is open to doctoral candidates who are pursuing dissertation research within the broad field of business history, from any relevant discipline (e.g., from economic sociology, political science, cultural anthropology, or management, as well as history). Most participants are in year 3 or 4 or their degree program, though in some instances applicants at a later stage make a compelling case that their thesis research has evolved in ways that suggest the value of an intensive engagement with business history.

Topics (see link for past examples) may range from the early modern era to the present, and explore societies across the globe. Participants work intensively with a distinguished group of BHC-affiliated scholars (including the incoming BHC president), discussing dissertation proposals, relevant literatures and research strategies, and career trajectories.

Applications are due by 15 November 2017 via email to and should include: a statement of interest; CV; preliminary or final dissertation prospectus (10-15 pages); and a letter of support from your dissertation supervisor (or prospective supervisor). All participants receive a stipend that partially defrays travel costs to the annual meeting. Applicants will receive notification of the selection committee’s decisions by 20 December 2017.

Questions about the colloquium should be sent to its director, Duke Professor of History Edward Balleisen,, and/or this year’s graduate student liaison, Alexi Garrett, (who participated last year).

Eliason on the Blues Contracts of Trumpet Records

Antonia Eliason, University of Mississippi School of Law, has posted Lillian McMurry and the Blues Contracts of Trumpet Records, which is forthcoming in the Mississippi Law Journal:
Trumpet Records was a Jackson, Mississippi-based record label established and run by Lillian McMurry from 1950 until it folded in 1955. This article draws on archival material to evaluate the progression of the contracts entered into by Trumpet Records with its blues artists, arguing that this demonstrates the evolving contractual understanding of a young record label, showing increasing sophistication and an awareness of some of the potential pitfalls of signing artists. The contracts of Trumpet Records, when taken together with the correspondence of the label’s head with her artists, also show a commitment to fairness and a level of scrupulousness and honesty not often seen in the industry. The article also examines the legal dispute between Sherman Johnson and Trumpet Records, which reached the Mississippi Supreme Court. The article further turns to the subsequent copyright infringement of a number of Trumpet Record recordings by European record labels in the 1970s, which sheds light on the widespread practice of piracy prevalent in relation to older blues recordings.

Landmark Cases in Intellectual Property Law

New from Hart Publishing: Landmark Cases in Intellectual Property Law, edited by Jose Bellido, Senior Lecturer in Law at Kent Law School, University of Kent.:
This volume explores the nature of intellectual property law by looking at particular disputes. All the cases gathered here aim to show the versatile and unstable character of a discipline still searching for landmarks. Each contribution offers an opportunity to raise questions about the narratives that have shaped the discipline throughout its short but profound history. The volume begins by revisiting patent litigation to consider the impact of the Statute of Monopolies (1624). It continues looking at different controversies to describe how the existence of an author's right in literary property was a plausible basis for legal argument, even though no statute expressly mentioned authors' rights before the Statute of Anne (1710). The collection also explores different moments of historical significance for intellectual property law: the first trade mark injunctions; the difficulties the law faced when protecting maps; and the origins of originality in copyright law. Similarly, it considers the different ways of interpreting patent claims in the late nineteenth and twentieth century; the impact of seminal cases on passing off and the law of confidentiality; and more generally, the construction of intellectual property law and its branches in their interaction with new technologies and marketing developments. It is essential reading for anyone interested in the development of intellectual property law.
Mention you saw it on Legal History Blog for a 20 percent discount!  Table of Contents after the jump.

Sunday, September 17, 2017

Sunday Book Review Roundup

In The Atlantic is a review of James Delbourgo's Collecting the World: Hans Sloane and the Origins of the British Museum.

The Guardian has a review of Chris Renwick's Bread for All: The Origins of the Welfare State.

There are several interviews of interest up at the New Books Network.  Sarah Haley speaks about her No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity.  Aled Davies describes his The City of London and Social Democracy: The Political Economy of Finance in Post-war Britain.  Finally, Keri Leigh Merritt is interviewed about her Masterless Men: Poor Whites and Slavery in the Antebellum South.

Reviewed in both The Guardian and The Economist is David Kynaston's Till Time's Last Sand: A History of the Bank of England 1694-2013.

The Vietnam War: An Intimate History by Geoffrey C. Ward is reviewed in both The Washington Post and The New York Times.

Also in The New York Times is a review essay based on historian Rita Chin's The Crisis of Multiculturalism in Europe: A History and Douglas Murray's The Strange Death of Europe: Immigration, Identity, Islam

At H-Net is a review of Douglas Baynton's Defectives in the Land: Disability and Immigration in the Age of Eugenics.  Also reviewed at H-Net is Jefferson Decker's The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government.

Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America is reviewed in the New Republic.

At History News Network is a review of Noam Maggor's Brahmin Capitalism: Frontiers of Wealth and Populism in America’s First Gilded Age.

In The Baffler Kimberlé Williams Krenshaw has written a brief essay in response to Mark Lilla's The Once and Future Liberal.

At In These Times, historian Mark Bray speaks about his Antifa: The Anti-Fascist Handbook.

Finally in The New Inquiry is a review of Kelly Lytle Hernández's City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771–1965.

Saturday, September 16, 2017

Weekend Roundup

  • James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law, Yale University. presents The Two Primitive Modes of Imagining Property: Owning Land, Owning Human Beings at the Barat House, Boston College Law School, on Monday, September 18, 2017, at 5:00 p.m.  The event is sponsored by BC’s Legal History Roundtable and Clough Center for the Study of Constitutional Democracy.  
  • We were pleased to note, in a back issue of the Minnesota Law Library's publication The Colophon, that among the student notebooks dating from 1948-1952 it had acquired was one for Stefan Riesenfeld's course, Modern Social Legislation.
  •  We’ve previously noted the publication of the second volume of The Causes of War, by Alexander Gillespie, Pro Vice-Chancellor for Research and Professor of Law at the University of Waikato, New Zealand with Hart Publishing.  Hart has just announced the publication of the third volume, covering the years 1400 CE to 1650 CE.  Mention Legal History Blog for a 20 percent discount!
  • We have an announcement, in Portuguese, of a Postgraduate Specialization in Ethics, Law and Political Thought - a collaboration between the Faculty of Arts, Philosophy Center (CIFUL) and Theory and History of Law, Research Center of the University of Lisbon (THD-ULisboa). 
  • Via the Faculty Lounge, we have word that Peking University School of Transnational Law is inviting applications for entry-level and lateral tenure track scholars of severl fields, including all areas of China Law and Legal History.  Inquiries should be addressed to Professor Mark Feldman, Chair, Faculty Appointments Committee, at or
  • Sam Erman, Associate Professor of Law, University of Southern California Gould School of Law, presented "The Constitution and the New U.S. Expansion: Debating the Status of the Islands" at the University of Wisconsin Law School on September 13, 2017.  H/t: Legal Scholarship Blog.
  • "This fall, NYU Law students and Steinhardt education doctoral students are partnering with public school teachers on a new more in depth Constitutional history curriculum that invites New York City high schoolers to 'think as lawyers,' exploring how different Supreme Court cases have shaped have shaped the way the nation's founding document has been interpreted over time."  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, September 15, 2017

Blogger's Query: Acquiring Federal Judges' Papers

My extracurricular activities include advising the Historical Society of the District of Columbia Circuit.  For that work, I would be grateful to learn from any archivist or special collections librarian what factors might incline him or her to acquire the papers of a federal trial or appellate judge.  In addition, I’d be grateful to learn of any publications heralding the acquisition of such papers, such as Katherine Hedin, “The University of Minnesota Law Library Named Recipient of the Papers of Judge James M. Rosenbaum,” The Colophon (Spring 2011): 3-5.  Please reply to

ASLH Seeks Nominations of Honorary Fellows

[We have the following announcement.] The Committee on Honors of the American Society for Legal History solicits nominations of senior scholars for possible election as Honorary Fellows of the Society.  Election as an Honorary Fellow is the highest honor the Society can confer.  It
recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others.  Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.  Nominees may work in any field and any country.

Please submit nominations by email to the chair of the committee, Bruce H. Mann, at by Friday, October 27.  Nominations should include a brief statement describing how nominees and their scholarship have helped define their fields and influenced other scholars—in short, why they should be honored as leading citizens of the community of scholars.  Formal dossiers or c.v’s are not required at this stage.

Law's Picture Books: The Yale Law Library Collection

[We have the following announcement from  Teresa Miguel-Stearns, Law Librarian and Professor of Law, Lillian Goldman Law Library, Yale Law School.]

It is with great pride that I announce today’s opening of a landmark exhibit at the famed Grolier Club in New York City, entitled "Law's Picture Books: The Yale Law Library Collection." This exhibit is co-curated by Michael Widener, our Rare Book Librarian, and Mark S. Weiner ’00 (Professor of Law, Rutgers Law School). It has already received coverage in the New Yorker, and additional major publicity is expected. See below for further description. I visited the exhibit yesterday and it is spectacular and quite extensive. Mike and Mark have done a tremendous job showcasing 140 of the many treasures in our collection.

"Law's Picture Books: The Yale Law Library Collection" is on display September 13 - November 18, 2017, in the Grolier Club's main gallery at 47 East 60th Street in New York City. The gallery is open 10:00am – 5:00pm Monday - Saturday except holidays, and admission is free. Mike Widener and Mark Weiner will be conducting exhibition tours on September 21, October 5, and November 2, 1:00 – 2:00pm

On the evening of October 5, there will be a mini-symposium from 6:00 – 8:00pm at the Grolier Club, which will feature presentations by Mike Widener and Mark Weiner, followed by a panel discussion moderated by John Brigham (U. of Massachusetts-Amherst. Political scientist, a cultural studies of law scholar who has published on law as mapping) and featuring John Gordan III (lawyer, legal historian, book collector, Grolier Club member), Eric Hilgendorf (Professor of criminal law at the University of Würzburg, Germany, and author of one of the illustrated law books in the exhibit, Dtv-Atlas Recht (2 vols.; 2003-2008)), and Kathryn James (Curator of Early Modern Collections, Beinecke Rare Book & Manuscript Library, Yale University; Grolier Club member). There will be a reception at 8:00pm following the panel. This event is open to the public but reservations are requested.

On November 8, the Law Library will host a talk in the Yale Law School that will include presentations by Mike Widener and Mark Weiner, with commentary by Judith Resnik.  A complementary exhibit, "Around the World with Law's Picture Books," is on view through December 15 in the Lillian Goldman Law Library, Yale Law School (Library Level 2, Sterling Law Building, 127 Wall Street, New Haven CT). It is open to the public 10:00 – 6:00pm daily except holidays.

[Mike Widener's post on the exhibit on the blog of the Goldman Law Library is here.]

Barzun on Justice Souter's Common Law

Charles L. Barzun, University of Virginia School of Law, has posted Justice Souter's Common Law, which is forthcoming in the Virginia Law Review in 2018:
David Souter, at his confirmation hearing (LC)
The first-year law-school curriculum aims to teach students the “common-law method.”  But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common-law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common-law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common-law judge is hardly novel; it is the conventional wisdom about him. But in my view Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments – and, for that reason, carries with it more radical implications – than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals – Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning.

The upshot of the comparative analysis is a clearer view of a model of common-law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common-law reasoning than do either Posner or Dworkin. The result is an understanding of common-law adjudication that is at once more traditional and more radical than either of its more famous rivals. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Burke on "Black Lawyers in South Carolina, 1868–1968"

New from the University of Georgia Press: All for Civil Rights: Black Lawyers in South Carolina, 1868–1968 (July 2017), by W. Lewis Burke (University of South Carolina School of Law). A description from the Press:
“The history of the black lawyer in South Carolina,” writes W. Lewis Burke, “is one of the most significant untold stories of the long and troubled struggle for equal rights in the state.” Beginning in Reconstruction and continuing to the modern civil rights era, at least 168 black lawyers were admitted to the South Carolina bar. All for Civil Rights is the first book-length study devoted to those lawyers’ struggles and achievements in the state that had the largest black population in the country, by percentage, until 1930—and that was a majority black state through 1920.

Examining court processes, trials, and life stories of the lawyers, Burke offers a comprehensive analysis of black lawyers’ engagement with the legal system. Some of that study is set in the courts and legislative halls, for the South Carolina bar once had the highest percentage of black lawyers of any southern state, and South Carolina was one of only two states to ever have a black majority legislature. However, Burke also tells who these lawyers were (some were former slaves, while others had backgrounds in the church, the military, or journalism); where they came from (nonnatives came from as close as Georgia and as far away as Barbados); and how they were educated, largely through apprenticeship.

Burke argues forcefully that from the earliest days after the Civil War to the heyday of the modern civil rights movement, the story of the black lawyer in South Carolina is the story of the civil rights lawyer in the Deep South. Although All for Civil Rights focuses specifically on South Carolinians, its argument about the legal shift in black personhood from the slave era to the 1960s resonates throughout the South.
More information is available here.

Thursday, September 14, 2017

Lawson and Seidman on "Understanding the Fiduciary Constitution"

Recently released by the University Press of Kansas: "A Great Power of Attorney": Understanding the Fiduciary Constitution (May 2017), by Gary Lawson (Boston University School of Law) and Guy Seidman (Radzyner School of Law, The Interdisciplinary Center). A description from the Press:
What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.

In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitutions beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.
More information is available here.

Munshi on Comparative Law and Decolonizing Critique

My Georgetown Law colleague Sherally K. Munshi has posted Comparative Law and Decolonizing Critique, which appeared in the American Journal of Comparative Law 65 (July 2017)"
Cecil Rhodes Memorial (LC)
This essay seeks to reanimate comparative legal scholarship by reorienting it towards decolonizing critique. In his critical assessment of the state of the field, Pierre Legrand suggests that comparative law has become mired in a solipsistic and outmoded style of positivism. Drawing upon theoretical insights from critical theory, Legrand argues that comparative law might render itself more generative and more relevant by engaging in a more contextualized analysis of law and encouraging active interpretation beyond descriptive reporting. In this essay, I extend Legrand’s arguments to suggest that an emancipated, incorporative, and interdisciplinary comparative law might play an important role in decolonizing legal scholarship more broadly. Founded in a commitment to constrain an ethnocentric impulse in legal discourse, comparative law might be expanded to challenge the varieties of Eurocentrism that continue to define legal scholarship and study, while providing hospitable ground for critical and interdisciplinary projects aimed at exploring the colonial roots of both the contemporary nation-state system and globalized racial formations.

Schmitt on Congress's Power to Dispose of Public Lands

Jeffrey M. Schmitt, University of Dayton School of Law, has posted A Historical Reassessment of Congress's "Power to Dispose of" the Public Lands, which is forthcoming in the Harvard Environmental Law Review:
The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal landownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated purpose. This scholarly debate has become increasingly important in recent years, as a popular movement for state ownership of federal land has reemerged in the West.
Storm Clouds, Sweetwater County, Wyoming (Carol Highsmith)

This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original public meaning of the text, intent of the framers, and precedent of the early Supreme Court simply do not resolve the issue of whether Congress’s Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress’s Power to Dispose has been understood since the Founding. It concludes that, although western extremists have repeatedly challenged Congress’s power when federal land policy has restricted western development, dominant opinion has always supported a broad construction of Congress’s power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress’s Power to Dispose, it therefore strongly supports federal land ownership.

Wednesday, September 13, 2017

Bratton on the Separation of Corporate Law and Social Welfare Since 1980

William W. Bratton, Penn Law, has published The Separation of Corporate Law and Social Welfare in the Washington & Lee Law Review:
A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers.  By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social welfare. The distance between the welfarist enterprise of a half century ago and the concerns that motivate today’s corporate legal theory has been widening ever since. This Essay examines the widening gulf. It compares the vision of the corporation and of the role it plays in society that prevailed during the immediate post-war era, before the fulcrum years of the 1980s, with the very different vision we have today, and traces the path we took from there to here. It will close with a brief prediction regarding corporate law’s future.

EU Law Stories

Just out from Cambridge is EU Law Stories: Contextual and Critical Histories of European Jurisprudence, edited by Fernanda Nicola and Bill Davies, both of American University, Washington DC:
Through an interdisciplinary analysis of the rulings of the Court of Justice of the European Union, this book offers 'thick' descriptions, contextual histories and critical narratives engaging with leading or minor personalities involved behind the scenes of each case. The contributions depart from the notion that EU law and its history should be narrated in a linear and incremental way to show instead that law evolves in a contingent and not determinate manner. The book shows that the effects of judge-made law remain relatively indeterminate and each case can be retold through different contextual narratives, and shows the commitment of the European legal elites to the experience of legal reasoning. The idea to cluster the stories around prominent cases is not to be fully comprehensive, but to re-focus the scholarship and teaching of EU law by moving beyond the black letter and unravel the lawyering techniques to achieve policy results.
TOC after the jump.

Tuesday, September 12, 2017

CFP: PHC 2018

[We have the following call for papers.]

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

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

Plenary Sessions will include:
"American Political Tradition Revisited"
Daniel Howe (Oxford), Robin Einhorn (UC-Berkeley), Richard Bensel (Cornell), Paula Baker (Ohio State); Chair William Rorabaugh (U. of Washington)

"Policy History at 30 years"
Stephen Skowronek (Yale); Byron Shafer (Wisconsin), Eileen Boris (UC Santa Barbara); Chair, Edward Berkowitz (George Washington).

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 8, 2017.  Proposals for panels and papers must be submitted online at the links  below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es).
5. Mailing Address(es).
6. Panel and paper title(s).
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. 75 word description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here.  Submit panel proposals here.

Rosenberg and Stucki on the Food Movement and Agrarian Protest

Nathan A. Rosenberg, University of Arkansas School of Law, and Bryce Wilson Stucki, U.S. Census Bureau, have posted The Butz Stops Here: Why the Food Movement Needs to Rethink Agricultural History, which appears in the Journal of Food Law and Policy 12 (2017): 12-25:
Farmers' Protest, 1977 (LC)
From the 1890s to the 1930s, rural Americans played a vital role in radical leftist politics. Over the decades, some of those people chose to leave, but more of them were driven out due to policy — agricultural policy, in particular. Republicans and Democrats, alike, have supported laws that favor corporate agriculture, which continue to drive small farmers out of business and depopulate the countryside. While specialists know this history well, the public tends to know a folk history, written by figures associated with contemporary food movements.

This folk history rests on several key myths, which cover different periods of modern history from the New Deal to the present. We challenge these myths, not to attack particular authors or engage in pedantry, but to reveal the causes and extent of the suffering endured by rural families in the 20th century, which in turn, decimated the populist left. A reconsideration of the history of agricultural policy will help food-system reformers develop a more radical — and more effective — vision for rural America.

Monday, September 11, 2017

Greabe on President Trump as Holmes's "Bad Man of the Law"

John Greabe, University of New Hampshire School of Law, on Holmes’s “Bad Man of the Law” and President Donald J. Trump, in the Concord Monitor.

Davies on Curtis Wilbur, Judicial Parabolist

Ross E. Davies, George Mason University,  Antonin Scalia Law School, has posted A Generous Judicial Parabolist: Curtis D. Wilbur, which appears in the Green Bag 2d 20 (2017): 381-407:
Curtis Wilbur (LC)
We – we lawyers, at least – should know Curtis Dwight Wilbur (1867-1954) better than many of us do. He was an able, upstanding, and innovative lawyer and public servant. (He was also an imperfect human being in an imperfect world, and so he had warts. For now, though, we’re going to accentuate the positive.) He enjoyed an enviable legal career that included long service as a practitioner, a prosecutor, a state-court judge, a federal-court judge, a Cabinet secretary, and a storytelling philanthropist. This little essay touches on all of those pursuits, but it focuses on the last.

Fontana on the Lost History of Federal Decentralization

David Fontana, George Washington University Law School, has posted Federal Decentralization, which is forthcoming in the Virginia Law Review:
Constitutional law relies on the diffusion of powers among different institutions to ensure that no one person or faction controls power. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected to consider another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in those in a single place. Federal decentralization ensures that federal officials in Washington and in places distant and therefore different from Washington compete with and constrain one another. This Article identifies and evaluates federal decentralization as a dimension of constitutional law.

This Article first uncovers the long but lost history of federal decentralization, and places it at the core of our constitutional experience from the Founding to its current moment on constitutional center stage. The First Congress located important federal officials in a different metropolitan area than the President and Congress, and arranged for the Congress and the White House to operate in different buildings in different neighborhoods. The current Congress is considering legislation proposed by both parties that would increase federal decentralization.

This Article then argues that federal decentralization makes visible the diffusions of power that federalism and separation of powers cannot provide, and executed properly attempts to provide them. It gives federalism the voice it needs, and separation of powers the exit it lacks. Federalism aspires to empower local majorities, and federal decentralization enhances the voice of local majorities by making them empowered neighbors rather than unfamiliar strangers to federal officials—or even permits local majorities to act as federal officials themselves. The separation of powers aspires to generate rivalrous branches, but rival interests can only be generated by ensuring that sometimes federal officials exit Washington rather than operate in it. Federal decentralization, though, risks injecting excessive diffusion into the American system. It therefore requires its own vocabulary to recognize and resolve the persistent set of institutional design challenges that it raises.

AJLH 57:3

The American Journal of Legal History 57: 3 (September 2017) is now available in its entirety.


From Petitions for Gratuities to Claims for Damages: Personal Injuries and Railroads During the Industrialization of the United States, by Robert J. Kaczorowski

Acts of the “Most Sanguinary Rage”: Spousal Murder in Montreal, 1825-1850, by Ian C. Pilarczyk

‘His Barbarous Usages’, Her ‘Evil Tongue’: Character and Class in Trials for Spouse Murder at the Old Bailey, 1674-1790, by Andrea McKenzie

Book Reviews
Richard Alan Ryerson, John Adams' Republic: The One, the Few, and the Many
Luke Mayville, John Adams and the Fear of American Oligarchy   
Tom Cutterham

Dale Gibson, Law, Life and Government at Red River, Volume 1, Settlement and Governance, 1812-1872   
Russell C. Smandych

Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise   
Anders Walker

Peter Wallenstein, Race, Sex, and the Freedom to Marry: Loving v. Virginia   
Alison Lefkovitz

Sunday, September 10, 2017

Sunday Book Review Roundup

In the New York Times, Thomas Sugrue reviews Black Detroit: A People’s History of Self-Determination by Herb Boyd. In the tradition of the griot,” Sugrue writes, “Boyd has written a song of praise to what he calls ‘the city’s glorious history’ and offers an unusual retelling of Detroit’s past, with black voices on nearly every page.”

The book was also reviewed in the Washington Post a few weeks ago. In the LA Review of Books, Scott Kurashige is also interested in Detroit. Check out his article in that publication: The Fifty-Year Rebellion: How the U.S. Political Crisis Began in Detroit.

Also in the Times, Michelle Goldberg reviews Blurred Lines: Rethinking Sex, Power and Consent on Campus, which reflects Vanessa Grigoriadis’s reporting on sexual assault in American campuses during the Obama years--“the murky campus rape phenomenon”--but is “too sloppy with the facts to succeed.”

Also in both publications: reviews of William Taubman’s new biography of Mikhail Gorbachev, which is “superb” according to David E. Hoffman, former Moscow bureau chief for The Washington Post, and “masterly” for Peter Baker at the New York Times.

In the Post, Sam Quinones describes The Hamlet Fire: A Story of Cheap Food, Cheap Government, and Cheap Lives, Bryant Simon’s new book on a 1991 fire at the Imperial Food chicken processing plant in North Carolina.
“Simon’s list of the ways Roe practiced unfair competition by flouting safety regulations is long and graphic,” and at each moment, “Roe was met by a government rendered flaccid by its new role as protector not of working people or of the middle class, but of capital.” Quinones credits Simon for drawing this “sprawling, occasionally nauseating story in the detritus of that now-forgotten fire,” and calls the story “captivating and brilliantly conceived,” ready to “provide readers with insights into our current national politics.” Simon’s book is reviewed in the Minnesota Star Tribune and Smithsonian Magazine.

In the LA Review of Books, Stephen Rhode reviews Hitler’s American Model: The United States and the Making of Nazi Race Law, James Q. Whitman’s “disturbing and alarming new book based on detailed and scrupulous scholarship,” which concludes--in Whitman’s words--that “the Nazis took a sustained, significant, and sometimes even eager interest in the American example in race law.” The same publication contains a review of Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, in which “historian Nancy MacLean establishes that the Republican Party of today has been entirely transformed,” to “a party of extreme libertarians whose goal is not to conserve what we have, but to destroy democracy” and advance “the corporate takeover of public resources.”

In an article in the London Review of Books (entitled “Umbrageousness”), Ferdinand Mount review Inglorious Empire: What the British Did to India by Shashi Tharoor, The Making of India: The Untold Story of British Enterprise by Kartar Lalvani, and India Conquered: Britain’s Raj and the Chaos of Empire by Jon Wilson. Malcolm Gaskill also covers Accidents and Violent Death in Early Modern London, 1650-1750 by Craig Spence, and Peter Green reviews Athens Burning: The Persian Invasion of Greece and the Evacuation of Attica by Robert Garland. These reviews are behind a paywall.

In the New Books Network, Siobahn Barco speaks to Tracy A. Thomas about her book Elizabeth Cady Stanton and the Feminist Foundations of Family Law. Professor Thomas is the John F. Seiberling Chair of Constitutional Law and Director of the Constitutional Law Center at the University of Akron School of Law. She is also editor of the Gender and the Law Prof Blog.  Also in the NBN, Jason Schulman talks to Carwyn Jones about her New Treaty, New Tradition: Reconciling New Zealand and Maori Law, which explores Māori law and legal traditions with an eye on how they ebb and flow with changing social, environmental, and political circumstances in New Zealand.

Saturday, September 9, 2017

Weekend Roundup

  • Recently posted in the Washington Post’s “Made By History” series is Victoria Saker Woeste’s The anti-Semitic origins of the war on "fake news."  It recounts “How Henry Ford tried to discredit the media in order to spread anti-Jewish propaganda.”  
  • A scholars' brief on "the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States" is now up on SSRN.
  • Of possible interest to legal historians of Asia: two back-to-back conferences on comparative law in Asia at the National University of Singapore, Sept.27-28, 2018. The deadline for registration is Sept.12. Details here.
  • A follow-up to our recent post on teaching non-US and global legal history through filmBram Fischer (2017) is about lawyers and the anti-apartheid struggle in South Africa. Trailer here (H/t: Rohit De). 
  • The Constitutional Sources Project (ConSource) is co-hosting an art exhibit on the Bill of Rights at Cooper Union in New York City during Constitution Week (September 18-23). The exhibit is free and open to the public.
  • Congratulations to Steven Brown, Auburn University, for wining the Hughes-Gossett Senior Prize for the best article in the Journal of Supreme Court HistoryMore
  • Jeremi Suri, the Mack Brown Distinguished Chair for Leadership in Global Affairs at the University of Texas at Austin, delivers The Impossible Presidency: The Rise and Fall of America’s Highest Office, the 2017 William Roger Louis lecture, before the National History Center and the Woodrow Wilson Center’s History and Public Policy Program on Monday, September 11, 2017, 4:00pm-5:30pm, in the Wilson Center’s 6th Floor Moynihan Boardroom.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, September 8, 2017

HLS's Memorial to the Royall Family's Slaves

The Harvard Law School has unveiled a memorial to the enslaved people of Isaac Royall, the early HLS benefactor whose family crest was the model for the school's shield, until it was abandoned last year.  Harvard Law News has the memorial's inscription, composed by Annette-Gordon Reed: “In honor of the enslaved whose labor created wealth that made possible the founding of Harvard Law School.  May we pursue the highest ideals of law and justice in their memory.”  Harvard Magazine has a fuller account of the proceedings, which included a lecture by Daniel Coquillette, a panel discussion by Janet Halley, Annette Gordon-Reed, Randall Kennedy, and Bruce Mann, and remarks by Harvard President Drew Faust.  Professor Gordon-Reed explained that inscription was intended to bring the Royall family slaves “into our minds and our memories with the hope that it will spur us to try to bring to the world what was not given to them: the law’s protection and regard and justice.”

Hirota to Speak on "Expelling the Poor"

On Thursday, September 14, 2017, the Massachusetts Historical Society is hosting a talk by Hidetaka Hirota, City College of New York, on his book Expelling the Poor: Atlantic Seaboard States & the Nineteenth-Century Origins of American Immigration Policy.  A pre-talk reception starts at 5:30; the talk itself is from 6 to 7.  Registration is required, but the event is free.
This groundbreaking work reinterprets the origins of immigration restriction in the U.S. Faced with the influx of Irish immigrants over the first half of the 19th century, nativists in Massachusetts and New York developed policies for prohibiting the landing of destitute foreigners and deporting those already resident. These state-level policies laid the foundations for federal immigration law. Expelling the Poor fundamentally revises the history of American immigration policy by locating the roots of immigration control in cultural and economic nativism against the Irish on the 19th-century Atlantic seaboard.

University of Michigan Legal History Workshop: Fall 2017 Lineup

The University of Michigan Legal History Workshop is up and running this semester. This year's workshop is co-led by Kate Andrias and William Novak. Here's the schedule:
Rabia Belt, Assistant Professor of Law, Stanford University
“Race, Disability, and the Vote”

Nelson Lichtenstein, Distinguished Professor of History, University of California-Santa Barbara
“A Fabulous Failure: Clinton’s 1990s and the Origins of Our Times”

Laura Weinrib, Professor of Law, University of Chicago
“The Myth of the Modern 1st Amendment”

Samuel Moyn, Professor of Law and History, Yale University
“Not Enough: Human Rights in an Unequal World”

OCTOBER 17. Meeting on Tuesday
Mehrsa Baradaran, J. Alton Hosch Associate Professor of Law, University of Georgia
“Black Capitalism and the Racial Wealth Gap”

Sarah Igo, Associate Professor of History and Law, Vanderbilt University
“Privacy Interruptus: Putting Griswold in its Proper Place”

Cary Franklin, Professor of Law, University of Texas
“Class-Blind Constitutionalism and the Protection of Fundamental Rights”

Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, NYU
“Demagogue-cracy: The License and Ethical Limits of the Politician's Speech”

Reuel Schiller, Professor of Law and Associate Dean, UC-Hastings College of Law
“Regulation and the Collapse of the New Deal Order or How I Learned to Stop Worrying and Love the Market”

Jeremy Kessler, Associate Professor of Law, Columbia University
“The Legal Foundations of Draft Abolition”

Thursday, September 7, 2017

CFP: Legal History and Empires conference

[We have the following Call for Papers. The deadline is Jan.15, 2018.]

The conference ‘Legal History and Empires: Perspectives from the Colonised’ will be held at
The University of the West Indies, Cave Hill Campus, in Barbados from July 11 to 13, 2018.
The conference is jointly sponsored by the Faculty of Law and Faculty of Humanities and
Education of The University of the West Indies, Cave Hill Campus, and an international group of legal historians and historians of the law.

This conference follows the successful conference on the Legal Histories of the British Empire
held at the National University of Singapore in 2012, and is similarly designed to bring together
senior and emerging scholars working in the fields of imperial and colonial legal history.

We invite paper or panel proposals addressing legal histories of empires broadly, and
encourage participants to think in particular how their research connects with the theme of the
conference: perspectives from the colonized. Without in any way limiting the range of
proposals topics and themes might include:
• relations between Empires;
• histories from the peripheries of empire;
• mobilities, networks and transplants;
• law and gender;
• Indigenous histories and the law;
• slavery and indentured labour;
• regulation of labour;
• histories of immigration law;
• administration of justice and rule of law;
• histories of public or private law;
• colonial law and local circumstances;
• settler colonialism;
• crime;
• the professions.

Individual paper proposals should be maximum 300 words (and include a bio of no more than
100 words); panel proposals should consist of an overall panel theme (300 words), the titles of
individual papers and short bios (no more than 100 words) of each presenter. Panels may
include commentators.

Proposals should be sent to Prof Shaunnagh Dorsett, University of Technology Sydney
( by 15 JANUARY 2017.

General inquiries about the Conference should be addressed to Dr. Asya Ostroukh, UWI, Cave
Hill (

A website will be available with all information, including accommodation options and
additional optional activities on the 10th and 14th July.