Monday, January 16, 2017

Kim on Small Debt Litigation in Colonial New York

 “In a Summary Way, with Expedition and at a Small Expence”: Justices of the Peace and Small Debt Litigation in Late Colonial New York, by Sung Yup Kim a visiting assistant professor of history at Pacific Lutheran University,is  available on-line now and in print late in the American Journal of Legal History (2017):
This essay examines the role of justices of the peace in upholding local credit networks among small farmers, tenants, artisans, and small traders in late colonial New York. Bolstered by a colonial statute enlarging their jurisdiction, New York’s justices handled a heavy volume of small debt cases, predominantly based on book debts or informal promissory notes. These were typically debt obligations arising from ongoing personal exchanges, in which the exchange of goods and services was the main objective, not the extension of credit itself. Partly in accordance with the traditionally acknowledged summary adjudication of individual justices and partly to adapt to the informal nature of debt cases that were brought to them, New York’s justices handled these cases in a distinctively informal but effective manner. Fully acknowledging and even taking advantage of the personal bases of such debt, justices’ courts offered a low cost, speedy alternative to higher courts such as inferior courts of common pleas. These findings suggest that well into the eve of the American Revolution, New York’s middling and lower sorts maintained vibrant local credit networks undergirded by the single justice’s court. At least for the case of New York, then, recent scholarship on early American law emphasizing the increased use of written credit instruments and the concomitant formalization of legal procedure, which, understandably, paid scant attention to the single justices’ courts, may have categorically discounted the lasting viability of localized legal and economic practices in early America.

Sunday, January 15, 2017

Sunday Book Review Roundup

Happy New Year, all.  In the NYRB, Annette Gordon-Reed reviews Robert Parkinson’s The Common Cause: Creating Race and Nation in the American Revolution, which “offers a provocative alternative to the conventional views that blacks’ perpetual alien status in the United States is simply a natural outgrowth of having been enslaved.” Instead, Gordon-Reed says, “Americans were deciding who was “in” and who was “out” as soon as they began to fight Great Britain.”

The Nation features a review of Steven Hahn’s A Nation Without Borders: The United States and Its World in an Age of Civil Wars, 1830-1910. This praiseful review tracks Hahn’s argument (“The nation-state has never been a stable political form that is distinct from empires. It has always emerged out of and then sustained itself on the imperial conquest of new territories”) and ends in a call for new political forms in a global era.  There’s also an essay on Harvey Cox, a Baptist minister, Harvard divinity professor, and “Christian left-wing intellectual to the core” that may be of interest to legal historians.

In the Wall St. Journal, legal historians can read Alex Beam’s review of A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870, by Laurel Thatcher Ulrich, Willard Spiegelman’s review of Berlin for Jews by Leonard Barkan, and Adrian Goldsworthy’s review of The Triumph of Empire by Michael Kulikowski, a history of the Roman Empire (“Ancient Rome continues to fascinate us, with each new generation seeing echoes of its own hopes and fears in the rise and fall of an empire that seems simultaneously modern and alien”).

 The LA Times reviews David Silverman’s Thundersticks: Firearms and the Violent Transformation of Native America, which “uses military history and political economy to chip away at Jared Diamond’s “Guns, Germs, and Steel” narrative.” Instead, he argues that American Indians “cornered the market” on firearms in Early America, so much that the U.S. army resorted to “scorched earth techniques” in armed encounters (this phrase is used literally, at least to describe wars with the Seminoles, which involved “burning Seminole villages to the ground” and destroying cattle herds).

There are a few reviews of biographies and autobiographies that may be of interest. In the Guardian, William Davies reviews David Cannadine’s new book on Margaret Thatcher; Patricia Williams reviews Coretta Scott King’s autobiography in the Times and LA Times reviews Xu Hongci’s No Wall Too High, “one of the most compelling and moving memoirs to emerge from Communist China, which is now appearing in English for the first time.”

I couldn't find a legal history review in The Economist or on its website. I did, however, find this piece on the “The far right’s new fascination with the Middle Ages,” which has prompted many Medievalists to defend their period (with broadswords, and bludgeons, one imagines) to ensure that it is not "weaponised against people of colour and marginalised communities in our own contemporary world."

Saturday, January 14, 2017

Weekend Roundup

  • Via H-Law: The University of Glasgow School of Law invites applications from PhD students in Roman law/legal history for the post of Alan Rodger Postgraduate Visiting Researcher, to be held during the 2017/18 academic year. The selected candidate will spend a term in Glasgow and receive a £2,000 award for support. The deadline for applications is 10 February 2017. Full details are available here
  • Also via H-Law: a call for papers “that engage the relationship of Jewish law and social justice, broadly construed,” from the Jewish Law Association for a conference on Social Justice & Jewish Law at Yeshiva University, New York, NY, on March 27, 2017.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 13, 2017

Fraser on religion & education in Canadian legal history

Back in 2015, we missed the publication of Honorary Protestants: The Jewish School Question in Montreal, 1867-1997 by David Fraser, University of Nottingham. From the University of Toronto Press:
Honorary Protestants: The Jewish School Question in Montreal, 1867-1997When the Constitution Act of 1867 was enacted, section 93 guaranteed certain educational rights to Catholics and Protestants in Quebec, but not to any others. Over the course of the next century, the Jewish community in Montreal carved out an often tenuous arrangement for public schooling as “honorary Protestants,” based on complex negotiations with the Protestant and Catholic school boards, the provincial government, and individual municipalities. In the face of the constitution’s exclusionary language, all parties gave their compromise a legal form which was frankly unconstitutional, but unavoidable if Jewish children were to have access to public schools. Bargaining in the shadow of the law, they made their own constitution long before the formal constitutional amendment of 1997 finally put an end to the issue. 
In Honorary Protestants, David Fraser presents the first legal history of the Jewish school question in Montreal. Based on extensive archival research, it highlights the complex evolution of concepts of rights, citizenship, and identity, negotiated outside the strict legal boundaries of the constitution.
Praise for the book:

“The story of the ‘Jewish School Question’ has never before been told in such compelling detail, nor within the context of a learned discussion of ‘rights,’ ‘citizenship,’ and ‘identity.’ ‘Honorary Protestants’ constitutes an exceedingly important contribution to the history of Canadian education, the social politics of the Montreal Jewish community, and the relationships between the Jewish, Protestant, and Roman Catholic constituencies in the province of Quebec.” -Gerald Tulchinsky

‘Honorary Protestants’ presents an important corrective to the twentieth-century focus of much of the history of civil liberties in Quebec and Canada. As David Fraser demonstrates, fundamental rights and liberties were being debated already in the nineteenth century, long before conscription crises, the Red Scares, and Duplessis’s guerre sans merci of the 1930s and 1940s.” -Eric H. Reiter

You can read more about the book here.

In re Judith Miller: The Oral Argument Reenacted

[We have the following announcement of In re Judith Miller: National Security and the Reporter’s Privilege, sponsored by the D.C. Circuit Historical Society to be held Tuesday, February 14, 2017, 4:30 p.m.–6:00 p.m., in the Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.  Admission is free.  Reservations are not required.  A reception with light refreshments will follow the program.]

In 2003, following articles in the press identifying Valerie Plame as a CIA agent, the Department of Justice undertook an investigation into whether government employees had violated federal law by unauthorized disclosure of her identity.  A special counsel was named and a grand jury convened.  The Government issued a subpoena to New York Times reporter Judith Miller seeking documents and testimony related to conversations she had had with a government official concerning Valerie Plame. Ms. Miller refused to comply with the subpoena and was held in civil contempt. She appealed, arguing both that the First Amendment affords journalists a constitutional right to conceal their sources and that reporters enjoy an evidentiary privilege under the common law to conceal confidential sources. The Court of Appeals (with separate concurring opinions by Judges Sentelle, Henderson, and Tatel) rejected both arguments and affirmed the District Court’s orders compelling Ms. Miller’s testimony. Our program will include a reenactment of arguments presented to the Court of Appeals, focusing on the existence of a reporter’s privilege founded on federal common law. Professor David Pozen will set the stage. Laura Handman will argue for Ms. Miller, Amy Jeffress for the United States, and Judges Tatel and Sentelle will preside.

Following the reenactment, Stuart Taylor will moderate a discussion exploring the appropriate balance between free speech and common law protections of reporters’ sources, on the one hand, and the government’s need to know in aid of its law enforcement and national security responsibilities, on the other.  Panelists will include Professor Pozen, the advocates Ms. Handman and Ms. Jeffress, as well as James Cole, who, as Deputy Attorney General, was a key person in the 2014 revision of the Department of Justice’s news media policies.

Setting the Stage
David Pozen, Professor of Law, Columbia University

For appellant Judith Miller, Laura R. Handman, Davis Wright Tremain LLP
For appellee United States, Amy Jeffress, Arnold & Porter LLP
Sitting as judges: David S. Tatel, Judge, U.S. Court of Appeals for the D.C. Circuit; David B. Sentelle, Senior Judge, U.S. Court of Appeals for the D.C. Circuit

Panel Discussion
Moderator: Stuart S. Taylor, Jr., author, journalist, and lawyer
Panelists: James M. Cole, Sidney LLP; Laura R. Handman, Amy Jeffress, David Pozen

Thursday, January 12, 2017

Judging a Book By Its Cover

You’ve spent so much time writing your book, why wouldn’t you spend time on the cover design? Like the introduction, the cover design goes a long way in enticing readers to pick your book up in a bricks-and-mortar bookstore, or on a display shelf at the conference exhibit booth. Most importantly, it should be an image or a composite that conveys the themes of your book. For those who work with a piece of art, it should represent an artist or an emblematic theme that visually communicates what the book is about. (Like titles—subject of a later post).

Since the theme of my book is domestic slavery, I thought I would use a famous painting by a Peruvian artist (Francisco Laso) that depicts the “downstairs” conviviality of servant life in colonial Lima. Initially I chose this image because I loved it, and because it was one of the few paintings that did not incorporate domestic slaves as status symbols displaying the wealth of Spaniards. Neither did it use people of color as an exotic prop to highlight the normative ideals of European beauty. As critics of the painting have noted, the criollo boy plays a deferential role vis-a-vis the intense vitality of the two girls. The painting inverted—or at least complicated--a world in which Africans were slaves, Indians were servants, and Spaniards were owners.

Las tres razas, ca. 1859. MALI -- Francisco Laso de los Ríos

But years after I had secured the rights to use this image from the Museum of Art in Lima, I changed my mind. I ultimately ended up using another Laso painting. Ultimately, I chose this image because my book is about domestic slavery and servitude. The main characters are enslaved women and their owners. Because I deal principally with relationships that were not based on sexuality, I thought the image problematized our received wisdom of the power dynamics of these relationships.

Negrita Con Su Dueña, 1845. MALI -- Francisco Laso de los Ríos

For many scholars of domestic slavery and servitude, the mammy figure has been contested and at times vilified. She is ubiquitous in all slaveholding societies, yet she is surprisingly under-theorized--limited to a sexual object or located as the site of black maternalism within a hierarchical household structure. I maintain throughout Fractional Freedoms that these are theoretically insufficient frames to  think through what I call "thick" relationships of care-work. This image steers the onlooker into an intimate site of contested struggle and emotion--this was the work that I intended the image to perform.

Above all, a cover image should leave a lasting impression on the reader. Readers of this blog will remember the photo of the patriarch holding out his gleaming pocket-watch, taunting his greedy heirs on the cover of Dirk Hartog's Someday this will all be yours. And Harry Bridges with his laughing bride in the marriage clerk's office in Peggy Pascoe's What Comes Naturally. The cover is a great piece of real estate--don't squander the opportunity to build on it. Plus as previous blogger Karen Tani points out, it's a lot of fun!

The ABA, the Court-Packing Plan, and the Anti-Parliamentarian Tradition

In revising the materials for my legal history course, I reminded myself of an interesting example of what might be called the tactical comparative constitutionalism of the organized bar.  It was March 5, 1937, exactly one month after President Franklin D. Roosevelt announced his plan to “pack” the U.S. Supreme Court.  The chieftains of the American Bar Association, in a process studied by Stephen Botein, Rayman Solomon, and others, had already begun organizing the opposition.  To give a lofty tone to his appeal to the public to rally to the Court, President Frederick Stinchfield liked to invoke an eminent foreign observer of the American scene.  “‘To the people we come sooner or later,’ says James Bryce in The American Commonwealth," Stinchfield editorialized in the ABA Journal:   ‘It is upon their wisdom and self restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.’”

Stinchfield’s predecessor, William L. Ransom, evidently had less faith in the "broad good sense and attachment to the great principles of the Constitution" of the American people than Bryce did.  After FDR’s legislative triumphs in 1935, he certainly doubted Congress’s will to resist the president.  The ABA should “stop quoting from James Bryce or any other Englishman, in favor of the American tradition of the powers and functions of the Courts,” he counseled Stinchfield in a letter surviving in Newton Baker's papers at the Library of Congress.  “This counsel is not due to prejudice against things British, but to a realization that the President’s fight is veering toward an advocacy of the parliamentary system (executive and legislative powers merged and made supreme, with no judicial curb), and that the President will claim that liberty and individualism have not been destroyed in England.” 

The Court-packing plan died that summer, but the denunciation of “parliamentarism” survived, especially among senators of the president’s party seeking to justify their opposition to FDR's agenda.  For example, the majority report on a proposal to reform agencies' procedures explained, “The basic purpose of this administrative law bill is to stem and, if possible, to reverse the drift into parliamentarism which, if it should succeed in any substantial degree in this country, could but result in totalitarianism with complete destruction of the division of governmental power between the Federal and the State Governments and with the entire subordination of both the legislative and judicial branches of the Federal Government to the executive branch wherein are included the administrative agencies and tribunals of that Government.”

Although Congressional Republicans are big believers in American exceptionalism, I don’t expect them to invoke the anti-parliamentarian tradition until a constitutional crisis forces them to do so.  When the time comes, I hope it works.

California Supreme Court Historical Society Seeks Submissions

Over at the Faculty Lounge, Al Brophy reports that Molly Selvin, the editor of the California Supreme Court Historical Society Newsletter, seeks contributions for that semi-annual publication, which treats all of California’s legal history and not just the history of the California Supreme Court.  The most recent newsletter is here.

Center for the Study of Law & Society: Spring 2017 Speaker Series

The Center for the Study of Law and Society at the University of California, Berkeley has posted the lineup for its Spring 2017 Speaker Series. Some items of interest for our readers [UPDATED as of 1.13.17 to reflect revised dates]:
February 6: TOM LAQUEUR (UC Berkeley), "The Law of Dead Bodies and the Making of a Liberal Civil Order"
February 13: CATHERINE FISK (UC Irvine), "Writing for Hire: Unions, Hollywood, and Madison Avenue" (Harvard University Press, Oct. 2016)

April 3: ELIZABETH HINTON (Harvard University), “The Making of Mass Incarceration”
More information about the speaker series is available here

Wednesday, January 11, 2017

Shaw on refugees, religion, & empire

Oxford University Press has published Britannia’s Embrace: Modern Humanitarianism and the Imperial Origins of Refugee Relief by Caroline Shaw, Bates College. From the publisher:

Cover for 

Britannias Embrace

On the eve of the American Revolution, the refugee was, according to British tradition, a Protestant who sought shelter from continental persecution. By the turn of the twentieth century, however, British refuge would be celebrated internationally as being open to all persecuted foreigners. Britain had become a haven for fugitives as diverse as Karl Marx and Louis Napoleon, Simon Bolivar and Frederick Douglass. How and why did the refugee category expand? How, in a period when no law forbade foreigners entry to Britain, did the refugee emerge as a category for humanitarian and political action? Why did the plight of these particular foreigners become such a characteristically British concern? 
Current understandings about the origins of refuge have focused on the period after 1914. Britannia's Embrace offers the first historical analysis of the origins of this modern humanitarian norm in the long nineteenth century. At a time when Britons were reshaping their own political culture, this charitable endeavor became constitutive of what it meant to be liberal on the global stage. Like British anti-slavery, its sister movement, campaigning on behalf of foreign refugees seemed to give purpose to the growing empire and the resources of empire gave it greater strength. By the dawn of the twentieth century, British efforts on behalf of persecuted foreigners declined precipitously, but its legacies in law and in modern humanitarian politics would be long-lasting. 
In telling this story, Britannia's Embrace puts refugee relief front and center in histories of human rights and international law and of studies of Britain in the world. In so doing, it describes the dynamic relationship between law, resources, and moral storytelling that remains critical to humanitarianism today.
You can read the author’s thought-provoking piece on the OUPblog. "The fate of foreign refugees, past and present" considers today's global refugee crisis in light of themes explored in Britannia's Embrace.

More information about the book is available here.

Milsom Studentship in English Legal History 2017

[We have the following announcement.]

The Selden Society, founded in 1887 by F.W. Maitland and others to encourage the study and advance the knowledge of the history of English law, offers a Milsom Studentship (named in honour of the late Professor S.F.C. Milsom, sometime Literary Director and President of the Society) for a person commencing research in English legal history leading to the degree of PhD (or equivalent) at a university in the United Kingdom in September/October 2017.

The studentship will be tenable for a maximum of three years, subject to an annual review of progress. The annual value of the studentship will be a sum equivalent to the current total of the home/EU fees and recommended minimum maintenance allowance at the university at which the student is registered for the PhD degree, to a total maximum of £21,500 (account will be taken of funding available from other sources).

Application forms may be obtained from the Secretary of the Society, School of Law, Queen Mary University of London, Mile End Road, London, E1 4NS,

The deadline for receipt of applications and references is 1 March 2017.

Tuesday, January 10, 2017

Antony on crime in late imperial South China

Robert J. Antony, Canton Thirteen Hongs Research Center at Guangzhou University has published Unruly People: Crime, Community,and State in Late Imperial South China with Hong Kong University Press. From the publisher:

Unruly PeopleUnruly People shows that in mid-Qing Guangdong banditry occurred mainly in the densely populated core Canton delta where state power was strongest, challenging the conventional wisdom that banditry was most prevalent in peripheral areas. Through extensive archival research, Antony reveals that this is because the local working poor had no other options to ensure their livelihood. 
In 1780 the Qing government enacted the first of a series of special laws to deal specifically with Guangdong bandits who plundered on land and water. The new law was prompted by what officials described as a spiraling "bandit miasma" in the province that had been simmering for decades. To understand the need for the special laws, Unruly People takes a closer look at the complex relationships and interconnections between bandits, sworn brotherhoods, local communities, and the Qing state in Guangdong from 1760 to 1845. 
Antony treats collective crime as a symptom of the dysfunction in local society and breakdown of the imperial legal system. He analyzes over 2,300 criminal cases found in palace and routine memorials in the Qing archives, as well as extant Chinese literary and foreign sources and fieldwork in rural Guangdong, to recreate vivid details of late imperial China's underworld of crime and violence.

Praise for the book:

“In this excellent and deeply researched study, Robert Antony portrays the economy and ecology of violence in mid-Qing Guangdong. Banditry and sworn brotherhoods had long existed in a tenuous equilibrium with agrarian society and the state, he finds, but as chronic underemployment rose in the decades after 1760, the incidence of organized crime grew to new and unmanageable levels.” -William T. Rowe
“A rich account of the day-to-day struggle to maintain law and order in mid-Qing Guangdong, Unruly People shows us the petty outlaws and sworn brotherhoods that were endemic to local society, and challenges basic notions about the nature of crime, banditry, and violence in China.” -Thomas David DuBois

More information is available here.

Kessler's "Origins of American Adversarial Legal Culture"

Amalia D. Kessler, Stanford Law School, has published Inventing American ExceptionalismThe Origins of American Adversarial Legal Culture, 1800-1877, with the Yale University Press:
When Americans imagine their legal system, it is the adversarial trial—dominated by dueling larger-than-life lawyers undertaking grand public performances—that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources—and by recovering neglected influences (including from Europe)—the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity.
Some endorsements:
"Adversarial procedure’s presence is old. But America’s conscious idea (or ideal or ideology) of adversarialism as the exclusionary motif of civil procedure is young. This adversarialism has an origin, a history, and, most importantly, a set of social effects separate from those of mere adversarial procedure. Amalia Kessler draws this original distinction and develops all its consequences. Every proceduralist will have to read her book."—Kevin M. Clermont, Cornell Law School

"Learned and thoughtful, crisply articulated and brilliantly conceived, Inventing American Exceptionalism offers a powerful reinterpretation of our legal past.  More than that, it holds trenchant prescriptions for our badly broken system of justice today."—John Witt, Yale University

"During the 19th century, Amalia Kessler shows us, various modes of judge-dominated, non-adversarial adjudication arose as alternatives to American 'adversarial legalism.' Inventing American Exceptionalism provides a fascinating, lucid, and politically illuminating account of how  those alternative systems were transformed or defeated and of the enduring consequences of these developments."—Robert A. Kagan, author of Adversarial Legalism: The American Way of Law

Monday, January 9, 2017

Bowman on the Court of Claims

Recently published in the Federal Lawyer is A Brief History of the Court of Claims, by Winston Bowman, an associate historian in the Federal Judicial History Office at the Federal Judicial Center.  It commences:
President Abraham Lincoln was a busy man in 1861. He was also not renowned for his advocacy of federal judicial power, having attacked the very notion of judicial review in his First Inaugural Address. Even so, in his First Annual Message that December, Lincoln pressed Congress to enhance the power and independence of the Court of Claims as a matter of national urgency. Though forgotten by many contemporary lawyers and absorbed into modern tribunals in 1982, the Court of Claims was created in 1855 to adjudicate monetary claims against the United States and was the first national trial court and first federal court of special jurisdiction. Adjudicating claims on the national purse may sound like the stuff of painstaking detail rather than earthshaking principle, but Lincoln and his compatriots understood that, as the primary vehicle for the government “to render prompt justice against itself,” the Court of Claims could bolster confidence in the federal government’s fairness in times of crisis.

McDougall's "Royal Bastards"

Sara McDougall, John Jay College of Criminal Justice of the City University of New York, has published Royal Bastards: The Birth of Illegitimacy, 800-1230, in the Oxford University Press's series, Studies in Medieval European History:
The stigmatization as ‘bastards’ of children born outside of wedlock is commonly thought to have emerged early in Medieval European history. Christian ideas about legitimate marriage, it is assumed, set the standard for legitimate birth. Children born to anything other than marriage had fewer rights or opportunities. They certainly could not become king or queen. As this volume demonstrates, however, well into the late twelfth century, ideas of what made a child a legitimate heir had little to do with the validity of his or her parents’ union according to the dictates of Christian marriage law. Instead a child’s prospects depended upon the social status, and above all the lineage, of both parents. To inherit a royal or noble title, being born to the right father mattered immensely, but also being born to the right kind of mother. Such parents could provide the most promising futures for their children, even if doubt was cast on the validity of the parents’ marriage. Only in the late twelfth century did children born to illegal marriages begin to suffer the same disadvantages as the children born to parents of mixed social status. Even once this change took place we cannot point to ‘the Church’ as instigator. Instead, exclusion of illegitimate children from inheritance and succession was the work of individual litigants who made strategic use of Christian marriage law. This new history of illegitimacy rethinks many long-held notions of medieval social, political, and legal history.
TOC after the jump

Sunday, January 8, 2017

The Constitution and the Administrative State at the NCC

On Tuesday, January 10, 2017, from 9 - 11:45 A.M, the National Constitution Center, in conjunction with the Federal Judicial center hosts the symposium, The Constitution and the Administrative State:
Federal judges and scholars explore important historical and constitutional issues related to the administrative state, including the Founders’ vision for the federal government, the legacy of the New Deal, the development of the administrative state, and current debates over its significance and constitutionality.
The Founders and Ideas about the Role of Government in Society
Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown Law
Elizabeth Wydra, President, Constitutional Accountability Center
Moderated by Jeffrey Rosen, President and CEO, National Constitution Center

The Development of the Administrative State
Ilya Somin, Professor of Law, George Mason University
Michele Landis Dauber, Frederick I. Richman Professor of Law, Stanford Law School
Moderated by Judge Jeremy Fogel, Director, Federal Judicial Center

The Significance of the History of the Administrative State for the Federal Judiciary

William A. Fletcher, Circuit Judge, Ninth Circuit Court of Appeals
Kent A. Jordan, Circuit Judge, Third Circuit Court of Appeals
Moderated by Judge Jeremy Fogel, Director, Federal Judicial Center
H/t: Joanna Grisinger

Saturday, January 7, 2017

The very beginning

As the novitiate Maria wisely counseled the von Trapp children, the beginning is a very good place to start. So let me start with writing the introduction.
Unlike many monograph writers, I did not have a dissertation to “turn into a book.” (I do remember a conversation with Barbara Welke who fumed at the seamlessness that this phrase implied…)  As a pre-tenure professor, I dutifully attended many faculty development workshops devoted to this process of dissertation into book. Not once did anyone offer a workshop on the inverse: how to turn articles and a decade of archival hoarding into a book.
En route to nirvana (i.e. sabbatical), a close friend and mentor told me that if I intended to finish a book in a year, I needed to write 600 words a day. I’m not sure how she arrived at that particular calculus, but I trusted her and told my son (who trudged out to Princeton with me) that I needed to write 600 words per day. And he swore that he would keep me to it.
I went to my sabbatical office, opened up a new computer and proceeded to write 600 words a day. If I did not make my quota, my son sent me back to the office after dinner. Conversations unfolded in this way: “Mom, did you write 600 words today?”
                   “No.” (I would answer sheepishly).
                  “Well go do it, because we’re not staying.”
(Did I mention how miserable my poor child was in Princeton? Later post on parenting, academia, and sabbatical).
Early on, I had decided to do a couple things with my introduction. First, I wanted to ensure that if readers did nothing more than give the introduction a hard skim, they would understand—and maybe even appreciate what I intended to do in the book. I avidly read introductions of books that I admired from my field and from others, and I also picked random books from my shelf. From that unscientific survey method (since these were all my books), it seemed that introductions fell into two categories. The first category was a stately “walk-the-reader-through-the-chapters” with bits of historiographical breadcrumbs sprinkled in to keep the reader on the path. The second was the kind that took issue with the big historiographical claims head-on and showed how the book would dispute those claims. Not surprisingly, the former seemed to correspond with the deferential tone of the “dissertation into book” and the latter with the magisterial reflections of senior scholars. 
So, what path does one take? My book engaged with so many historiographical conversations—gender, slavery, emotions, Atlantic World, diaspora, the cultural turn, the biographical turn, Iberoamerican religiosity, early modern governance, sociolegal studies of legal consciousness, colonial Latin American history, prosopography—that I decided to plunge deeply into writing a synthetic historiographical essay that wove everything together. In other words, I didn’t do a conventional “lit review,” rather I tried to map out how all these debates contributed to my understanding of the field of slavery studies and shaped what I wanted to do with the book. It took me exactly one month at 600 words per day to write it. Since like Marvell, at my back I always heard/time’s wingéd chariot hurrying near—I did not indulge in historiographical flirtation.  I had no particular attachment to any set of arguments.
In a way, this self-imposed time crunch was cathartic. I helped me make sense of literatures and by September 30, I knew I had to move onto Chapter one the next day. And I only had one extra day in October!!
So, on October 1, I moved on. I deposited the Introduction into the Dropbox savings account where it accrued hard drive interest. After a fatigue-ridden day of writing, I would re-read it and tweak it in light of what I was writing in Chapter one, but I couldn’t touch it or go back to it with the characteristic obsession of the wordsmith.

Weekend Roundup

  • The latest issue of the American Journal of Legal History features a forum on the interpretation of the Second Amendment. You can access the three papers here for a limited time.
  • We missed this one last month. "Oceans of Law II: Islamic Legal Crossings in the Indian Ocean World" took place at Leiden University on Dec.12-14, 2016. Here is the program.
  • ICYMI: A New York court archives move made the front page (screen) of the NYT this week!  (The AP story, courtesy of Eric Freedman, is here.)
  • Quick reminder of a deadline just 10 days away: here's our earlier post on the Baldy Fellowships in Interdisciplinary Legal Studies at SUNY Buffalo Law School. Applications for post-doctoral, mid-career and senior fellowships are due Jan.17.
  • On Inauguration Day, the Princeton University professors Jeremy Adelman, Melissa Lane, Dan Rodgers, and Kim Lane Scheppele will participate in a roundtable on  Global Liberalism in Crisis?” 
  • Congratulations to the U.S. District Court for the Southern District of Indiana for receiving a $25,000 grant for a documentary film called Federal Justice in IndianaEx parte Milligan will figure prominently in it.
  • Anuj Bhuwania's new book, Courting the People: Public Interest Litigation in Post-Emergency India has been excerpted and featured in This part makes interesting connections between PIL and the legal aid movement.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, January 6, 2017

    Writing "Fractional Freedoms"

    Thank you to Dan, Karen and the LHB team for this kind invitation. I am a late adopter of social media (just went on FB in November!) but I have reliably checked LHB since I began thinking of myself as a legal historian. I have greatly enjoyed reading about the processes of writing monographs that bloggers described with such aplomb. I still remember Sophia Lee’s post about the ground-staking chapters of her book, Karen Tani’s description of working on her cover design, Ajay Mehotra’s meditations on intellectual history and the fiscal state, Mitra Sharafi’s delightful entries on undiscovered archives, among other memorable posts over the years. And of course I have pondered the sage advice dispensed by Mrs. Peppercorn to the clueless Peregrina. At the last ASLH meeting in Toronto, Reuel Schiller counseled me to blog about things that I may have wished I did in the book, or plan to explore in book two. Are you kidding? (I asked)…. This book took me a decade to write.

    But I have put quite a bit of thought into what I wanted to talk about that would benefit LHB readers and those in the finishing stages of writing their books. I will blog about--in no particular order—the process of writing a sprawling introduction, choosing a cover, the tense arabesque of working with a copyeditor, waiting till the reviews come back to write a conclusion, what to do with unexpected and late potentially argument-changing archival evidence, and how to make best use of a year away-sabbatical to write.

    Looking forward!

    Hirota, "Expelling the Poor"

    New from Oxford University Press--and a book that this blogger has been eagerly anticipating: Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy (January 2017), by Hidetaka Hirota (City College of New York). A description from the Press:
    Historians have long assumed that immigration to the United States was free from regulation until anti-Asian racism on the West Coast triggered the introduction of federal laws to restrict Chinese immigration in the 1880s. Studies of European immigration and government control on the East Coast have, meanwhile, focused on Ellis Island, which opened in 1892.

    In this groundbreaking work, Hidetaka Hirota reinterprets the origins of immigration restriction in the United States, especially deportation policy, offering the first sustained study of immigration control conducted by states prior to the introduction of federal immigration law. Faced with the influx of impoverished Irish immigrants over the first half of the nineteenth century, nativists in New York and Massachusetts built upon colonial poor laws to develop policies for prohibiting the landing of destitute foreigners and deporting those already resident to Europe, Canada, or other American states. These policies laid the foundations for federal immigration law. By investigating state officials' practices of illegal removal, including the overseas deportation of citizens, this book reveals how the state-level treatment of destitute immigrants set precedents for the use of unrestricted power against undesirable aliens. It also traces the transnational lives of the migrants from their initial departure from Ireland and passage to North America through their expulsion from the United States and postdeportation lives in Europe, showing how American deportation policy operated as part of the broader exclusion of nonproducing members from societies in the Atlantic world.

    By locating the roots of American immigration control in cultural prejudice against the Irish and, more essentially, economic concerns about their poverty in nineteenth-century New York and Massachusetts, Expelling the Poor fundamentally revises the history of American immigration policy.
    A few blurbs:
    "Expelling the Poor is the first book-length treatment of how antebellum immigration restriction emerged from centuries-old restrictions on the residence and mobility of the poor. In showing how indigent Irish migrants in the nineteenth century were shunted between the United States, Great Britain, and Ireland, Hirota contributes towards rethinking the historiography of immigration restriction in the United States, which has conventionally dated the beginnings of immigration restriction to the Chinese Exclusion laws of the 1880s. This is a major accomplishment." --Kunal Parker
    "An essential contribution to the history of immigration law in the United States, Hirota's meticulously researched volume traces the evolution of municipal and state immigration policies and practices designed to exclude undesirable trans-Atlantic migrants, especially Irish Catholic paupers, from New York and Massachusetts, before and during the Civil War. Tackling a long understudied chapter in America's peopling, Hirota adeptly demonstrates how state restrictions designed to exclude those deemed potential public charges and culturally too alien for assimilation eventually became the foundation of the federal government's plenary power over immigration and later patterns of exclusion and deportation." --Alan M. Kraut
    More information is available here.

    Thursday, January 5, 2017

    Antonov on Debt in Imperial Russia

    Sergei Antonov, Queens College CUNY/Columbia has published Bankrupts and Usurers in Imperial Russia:Debt, Property, and the Law in the Age of Dostoevsky and Tolstoy with Harvard University Press. From the publisher:
    As readers of classic Russian literature know, the nineteenth century was a time of pervasive financial anxiety. With incomes erratic and banks inadequate, Russians of all social castes were deeply enmeshed in networks of credit and debt. The necessity of borrowing and lending shaped perceptions of material and moral worth, as well as notions of social respectability and personal responsibility. Credit and debt were defining features of imperial Russia’s culture of property ownership. Sergei Antonov recreates this vanished world of borrowers, bankrupts, lenders, and loan sharks in imperial Russia from the reign of Nicholas I to the period of great social and political reforms of the 1860s. 
    Poring over a trove of previously unexamined records, Antonov gleans insights into the experiences of ordinary Russians, rich and poor, and shows how Russia’s informal but sprawling credit system helped cement connections among property owners across socioeconomic lines. Individuals of varying rank and wealth commonly borrowed from one another. Without a firm legal basis for formalizing debt relationships, obtaining a loan often hinged on subjective perceptions of trustworthiness and reputation. Even after joint-stock banks appeared in Russia in the 1860s, credit continued to operate through vast networks linked by word of mouth, as well as ties of kinship and community. Disputes over debt were common, and Bankrupts and Usurers of Imperial Russia offers close readings of legal cases to argue that Russian courts—usually thought to be underdeveloped in this era—provided an effective forum for defining and protecting private property interests.
    Praise for the book:

    “Sergei Antonov introduces us to an imperial Russia in which aristocratic sons borrowed from usurers for their military uniforms and gambling debts and landowners borrowed money from serfs they owned and had mortgaged as collateral for other loans. With imagination and rich detail, he shows how informal personal credit pervaded every aspect of culture, society, and government, undergirding the social order and an entire regime of private property ownership. Bankrupts and Usurers of Imperial Russia is a masterly addition to the new cultural and social history of debt.” -Bruce H. Mann

    “Antonov is a pioneer in the use of sources about private moneylending as a lens onto the tsarist social order. He is a keen analyst of large-scale processes, but the book is also highly readable and brings everyday imperial Russia to life. Bankrupts and Usurers of Imperial Russia is an important scholarly intervention, one built on archival sleuthing, expertise in social and legal history, a skillful integration of Russian developments into a global context, and a solid familiarity with the Western, imperial Russian, Soviet, and post-Soviet Russian literature.” -Alexander M. Marti

    “From humble peasants to wealthy aristocrats, Russian pre-revolutionary society was permeated by the bonds of debt. Antonov’s meticulously researched and beautifully written book uncovers the circuits of unofficial credit relations that existed outside of the state banking system. It tells the stories of tragic bankruptcies and prodigious fortunes, family strife, legal battles, and reconciliations between debtors and usurers. This is an important study that fundamentally recasts our understanding of the legal regimes, economy, and sociability of credit in imperial Russia.”-Ekaterina Pravilova

    More information is available here.

    Irvin-Erickson on Raphaël Lemkin and the Concept of Genocide

    New from the University of Pennsylvania Press: Raphaël Lemkin and the Concept of Genocide (2016), by Douglas Irvin-Erickson (George Mason University). A description from the Press:
    Raphaël Lemkin (1900-1959) coined the word "genocide" in the winter of 1942 and led a movement in the United Nations to outlaw the crime, setting his sights on reimagining human rights institutions and humanitarian law after World War II. After the UN adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, Lemkin slipped into obscurity, and within a few short years many of the same governments that had agreed to outlaw genocide and draft a Universal Declaration of Human Rights tried to undermine these principles.
    This intellectual biography of one of the twentieth century's most influential theorists and human rights figures sheds new light on the origins of the concept and word "genocide," contextualizing Lemkin's intellectual development in interwar Poland and exploring the evolving connection between his philosophical writings, juridical works, and politics over the following decades. The book presents Lemkin's childhood experience of anti-Jewish violence in imperial Russia; his youthful arguments to expand the laws of war to protect people from their own governments; his early scholarship on Soviet criminal law and nationalities violence; his work in the 1930s to advance a rights-based approach to international law; his efforts in the 1940s to outlaw genocide; and his forays in the 1950s into a social-scientific and historical study of genocide, which he left unfinished.
    Revealing what the word "genocide" meant to people in the wake of World War II—as the USSR and Western powers sought to undermine the Genocide Convention at the UN, while delegations from small states and former colonies became the strongest supporters of Lemkin's law—Raphaël Lemkin and the Concept of Genocide examines how the meaning of genocide changed over the decades and highlights the relevance of Lemkin's thought to our own time.
    A few blurbs:
    "An excellent intellectual biography that advances the young burgeoning field of Lemkin (and genocide) studies in significant ways."—Dirk Moses

    "Intriguing and innovative, Raphaël Lemkin and the Concept of Genocide is a brilliant marriage of international law and philosophy. It will make a significant contribution to the still modest field of Lemkin studies."—David Crowe
    More information is available here.

    Wednesday, January 4, 2017

    Marglin on Jews and Muslims in Morocco

    Out now with Yale University Press is Across Legal Lines: Jews and Muslims in Modern Morocco by Jessica M. Marglin, University of Southern California. From the publisher:
    A previously untold story of Jewish-Muslim relations in modern Morocco, showing 
    how law facilitated Jews’ integration into the broader Moroccan society in which they lived. 
    Morocco went through immense upheaval in the nineteenth and early twentieth centuries. Through the experiences of a single Jewish family, Jessica Marglin charts how the law helped Jews to integrate into Muslim society—until colonial reforms abruptly curtailed their legal mobility. Drawing on a broad range of archival documents, Marglin expands our understanding of contemporary relations between Jews and Muslims and changes the way we think about Jewish history, the Middle East, and the nature of legal pluralism.
    Praise for the book:

    “Jessica Marglin has achieved nothing less than a complete revision of the way that we view the Moroccan legal system in the late nineteenth century from the viewpoint of its Muslim and Jewish clients.” -Susan Gilson Miller

    “This is an important book that deserves a wide readership. Through a vivid portrait of a Jewish family’s entanglement with the law in pre-colonial Morocco, it puts to rest die-hard tales about colonial modernization and the perennial animosity between Muslims and Jews.” -Francesca Trivellato

    “With great erudition, insight, and empathy, Marglin dexterously charts a cultural world of precolonial North Africa in which individuals navigate a complex legal landscape. This is an essential book for scholars of North African and Middle Eastern Jewries, Morocco, the cultural history of law, and the legal history of culture.” -Sarah Abrevaya Stein

    "Jessica Marglin's pathbreaking book sheds dramatic new light on the social, economic, and legal history of nineteenth century Morocco. Marglin deftly reconstructs the everyday ties by which Muslim and Jewish law and litigants accommodated each other in an unequal but integrated society." -James McDougall

    More information is available here.