Wednesday, February 22, 2017

Call for Editor, Law and History Review

After over five years of exceptional service, Elizabeth Dale is stepping down as editor of the Law & History Review, which is sponsored by the American Society for Legal History and published by the Cambridge University Press. The ASLH Publications Committee invites applications for the position. Applicants should be members of the Society who are accomplished legal historians, have the intellectual range to work with manuscripts from different periods and regions in legal history, and are conversant with both law and history.  Applicants should be prepared to request release time and other departmental or institutional support.

The editor's responsibilities include soliciting manuscripts in all fields of legal history, shepherding submitted manuscripts through the peer review and editorial processes, working with the journal's print and electronic publisher Cambridge University Press, and maintaining collaborative relationships with the journal's Book Review Editors, Editorial Board and the ASLH Board of Directors. Production management is the responsibility of the Cambridge University Press. Appointment is for an initial five-year term.

Interested scholars should send an electronic version of their current c.v. and a statement of what they would like to accomplish as editor of the journal by April 15, 2017, to the Chair of the Publications Committee: Daniel Ernst, Inquiries about the position should be directed to the Chair at the same email address or by phone at 202-662-9475.

Tuesday, February 21, 2017

Lentin's "Mr. Justice McArdie"

Antony Lentin, Barrister-at-law and Senior Member, Wolfson College, Cambridge, has published Mr Justice McCardie (1869-1933)  Rebel, Reformer, and Rogue, with Cambridge Scholars Publishing:
According to the Law Journal in 1932, ‘No present-day figure on the Bench is of greater interest than Mr Justice McCardie’. A High Court Judge from 1916 to 1933, no twentieth-century judge was more conspicuous or controversial. To his critics, he was a ‘rogue judge’ whose headline-hitting pronouncements often angered his fellow judges, called down the ire of the Churches, provoked calls in Parliament for his removal and earned a public rebuke from the Prime Minister. To his admirers, he was ‘a Crusader on the Bench’, a pioneer who denounced outdated laws, strove to make the law meet the needs of modern society and boldly championed women’s causes, birth control and abortion. The Law Quarterly Review described him as ‘one of the most interesting men in the history of the English Bench.’

Metzmeier on Law Reporters in Nineteenth-Century Kentucky

New from the University Press of Kentucky: Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky, by Kurt X. Metzmeier (University of Louisville). A description from the Press:
Any student of American history knows of Washington, Jefferson, and the other statesmen who penned the documents that form the legal foundations of our nation, but many other great minds contributed to the development of the young republic’s judicial system—figures such as William Littell, Ben Monroe, and John J. Marshall. These men, some of Kentucky’s earliest law reporters, are the forgotten trailblazers who helped establish the foundation of the state’s court system.

In Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky, Kurt X. Metzmeier provides portraits of the men whose important yet understudied contributions helped create a new common law inspired by English legal traditions but fully grounded in the decisions of American judges. He profiles individuals such as James Hughes, a Revolutionary War veteran who worked as a legislator to reform confusing property laws inherited from Virginia. Also featured is George M. Bibb, a prominent U.S. senator and the secretary of the treasury under President John Tyler.

To shed light on the pioneering individuals responsible for collecting and publishing the early opinions of Kentucky’s highest court, Metzmeier reviews nearly a century of debate over politics, institutional change, human rights, and war. Embodied in the stories of these early reporters are the rich history of the Commonwealth, the essence of its legal system, and the origins of a legal print culture in America.
More information is available here.

Billings & Tarter, eds., “Esteemed Bookes of Lawe”

Just out from the University of Virginia Press is “Esteemed Bookes of Lawe” and the Legal Culture of Early Virginia, ed. Warren M. Billings and Brent Tarter:
Virginia men of law constituted one of the first learned professions in colonial America, and Virginia legal culture had an important and lasting impact on American political institutions and jurisprudence. Exploring the book collections of these Virginians therefore offers insight into the history of the book and the intellectual history of early America. It also addresses essential questions of how English culture migrated to the American colonies and was transformed into a distinctive American culture.

Focusing on the law books that colonial Virginians acquired, how they used them, and how they eventually produced a native-grown legal literature, this collection explores the law and intellectual culture of the Commonwealth and reveals the origins of a distinctively Virginian legal literature. The contributors argue that understanding the development of early Virginia legal history—as shown through these book collections—not only illuminates important aspects of Virginia’s history and culture; it also underlies a thorough understanding of colonial and revolutionary American history and culture.
Here are two endorsements:
This splendid essay collection brings to life the richness of Virginia's colonial legal culture—a necessary book for anyone interested in colonial Virginia lawyers.
Mary Sarah Bilder, Boston College Law School, author of Madison's Hand: Revising the Constitutional Convention

This is much more than a book about books. It takes the reader into the world of lawyers and statesmen in the formative years of American law. We sit by the side of George Wythe, Patrick Henry, St. George Tucker, and other eminent figures as they draw upon English law to give a distinctive shape to life and law in colonial and early republican Virginia. The respected contributors to this collection have themselves produced an ‘esteemed booke’—and, in doing so, they have enlarged our understanding of how law lies at the very base of American government and society.
A. E. Dick Howard, University of Virginia, author of The Road from Runnymede: Magna Carta and Constitutionalism in America
Update: And don’t miss the book launch:  Wednesday, March 29, 2017 from 4:00 PM to 6:00 PM (EDT), in Law Library, Room L30, University of Richmond School of Law.  RSVP.

Monday, February 20, 2017

After Runnymede: Magna Carta in the Middle Ages

Just out online in 25:2 of the William & Mary Bill of Rights Journal is the symposium After Runnymede: Revising, Reissuing, and Reinterpreting Magna Carta in the Middle Ages:

Interpretation and Re-Interpretation of a Clause: Magna Carta and the Widow’s Quarantine
Janet Loengard

The Church and Magna Carta
R. H. Helmholz

The First Century of Magna Carta: The Diffusion of Texts and Knowledge of the Charter
Paul Brand

Salvation by Statute: Magna Carta, Legislation, and the King’s Soul
Thomas J. McSweeney

The Great Charter Turned 800: Remembering Its 700th Birthday
Karl Shoemaker

Forest Eyre Justices in the Reign of Henry III (1216–1272)
Ryan Rowberry

Forest Law Through the Looking Glass: Distortions of the Forest Charter in the Outlaw Fiction of Late Medieval England
Sarah Harlan-Haughey

Magna Carta in the Fourteenth Century: From Law to Symbol?: Reflections on the “Six Statutes”
Charles Donahue Jr.

The Legacy of Magna Carta: Law and Justice in the Fourteenth Century
Anthony Musson

Magna Carta in the Late Middle Ages: Over-Mighty Subjects, Under-Mighty Kings, and a Turn Away from Trial by Jury
David J. Seipp

Max Planck Summer Academy for Legal History, 2017

[We have the following announcement.]

Max Planck Summer Academy for Legal History 2017,  25 July - 04 August 2017.  Deadline: 31 March 2017

The Max-Planck Summer Academy for Legal History provides a selected group of highly motivated early-stage graduates, usually PhD candidates, an in-depth introduction to methods and principles of research in legal history.  The academy consists of two parts. The first part provides an introduction to the study of sources, methodological principles, as well as theoretical models and controversial research debates on basic research fields of legal history.  In the second part the participants discuss the special research theme and develop their own approach to the theme.  The course will take place at the Max Planck Institute for European Legal History in Frankfurt am Main, Germany.

Special Theme 2017: Conflict Regulation

Conflict is not just a constant challenge for the law, but also a key means of access to its history. Each society develops its own set of means of conflict regulation. The diversity ranges from different forms of dispute resolution and mediation to traditional juridical procedures at local and global level. The way conflicts are regulated reveals the normative options chosen by the parties involved in the conflict. Thus, conflicts and their regulation can provide an insight into local contingencies, traditions, as well as the pragmatic contexts and leading authorities of the law, the living law. Research projects to be presented at the Summer Academy should concentrate on historical mechanisms of conflict regulation and offer a critical reflection about the methods used for analyzing the conflicts and the way they are dealt with.

Eligibility Requirements
  • Early-stage graduates, usually PhD candidates
  • Working knowledge of English is required, German is not a prerequisite
Required documents for the application are a CV, a project summary (approx. 10 pages) and a letter of motivation.   There is no participation fee.  Accommodation will be provided by the organizers. Participants, however, will be responsible for covering their travel expenses. There will be a limited number of scholarships available.

For further information, please visit the Max Planck Summer Academy's website.  Contact: Dr. Stefanie Rüther, Max Planck Institute for European Legal History;

Lawrance and Stevens, eds., "Citizenship in Question: Evidentiary Birthright and Statelessness"

New from Duke University Press: Citizenship in Question: Evidentiary Birthright and Statelessness (2017), edited by Benjamin  N. Lawrance (Rochester Institute of Technology) and Jacqueline Stevens (Northwestern University). A description from the Press:
Citizenship is often assumed to be a clear-cut issue—either one has it or one does not. However, as the contributors to Citizenship in Question demonstrate, citizenship is not self-evident; it emerges from often obscure written records and is interpreted through ambiguous and dynamic laws. In case studies that analyze the legal barriers to citizenship rights in over twenty countries, the contributors explore how states use evidentiary requirements to create and police citizenship, often based on fictions of racial, ethnic, class, and religious differences. Whether examining the United States’ deportation of its own citizens, the selective use of DNA tests and secret results in Thailand, or laws that have stripped entire populations of citizenship, the contributors emphasize the political, psychological, and personal impact of citizenship policies. Citizenship in Question incites scholars to revisit long-standing political theories and debates about nationality, free movement, and immigration premised on the assumption of clear demarcations between citizens and noncitizens.
Historical chapters include "Jus Soli and Statelessness: A Comparative Perspective from the Americas," by Polly J. Price, and "To Know a Citizen: Birthright Citizenship Documents Regimes in U.S. History," by Beatrice McKenzie.

More information is available here.

Saturday, February 18, 2017

Weekend Roundup

  • M. C. Mirow, Florida International University College of Law, has posted The History of the Florida Supreme Court, Volume 0, which appears in 2017 Florida Supreme Court Historical Society Review 12.  The “article describes the challenges to writing the history of Florida's colonial courts in the Spanish and British periods from 1513 to 1821. These courts are an important yet understudied aspect of Florida legal history.” 
  • The finalists for the $50,000 George Washington Prize, sponsored by the Gilder Lehrman Institute of American History, George Washington’s Mount Vernon, and Washington College, have been announced.  They include Annette Gordon-Reed and Peter S. Onuf, “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of the Imagination (Liveright Publishing); and Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford University Press).
  •  Our colleague Wallace Mlyniec recently drew our attention to the death last weekend of Clinton Bamberger, who “represented John Brady in the Maryland Court of Appeals and the U.S. Supreme Court in Brady v. Maryland,” “worked tirelessly in the U.S. and South Africa to make legal services accessible to individuals and families in crisis, and was the director of the Office of Economic Opportunity’s legal services program before the creation of the Legal Services Corporation.  He also was a pioneering clinical legal educator.”  The Baltimore Sun’s obituary is here; the New York Times's is here.  An oral history interview is here.  And his papers (including those related to Brady) are in the National Equal Justice Library at the Georgetown University Law Center.
  •  From the website of the DC Circuit Historical Society: "Hogan Lovells is hosting a celebration of [the life and work of  E. Barrett Prettyman, Jr.] on February 23rd at 555 13th Street, NW, Washington, DC from 4:00 - 6:00 pm. . . .  RSVP to Angela Carter at 202-637-6926."
  • The History and Public Policy Program of the Woodrow Wilson Center: announces Sources and Methods, "a new platform that showcases fresh archival evidence and presents new insights into contemporary international history."
  • ICYMI: "11 Top Constitutional Law Experts React to White House Stephen Miller’s Rejection of 'Judicial Supremacy'” on Just Security; the University of Michigan Law School’s Civil Rights Litigation Clearinghouse has released all available documents in United States v. Fred C. Trump, Donald Trump, and Trump Management, Inc. (73-1529;  E.D.N.Y. ).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 17, 2017

Vlahoplus on Natural Born Derivative Citizenship

John Vlahoplus, an independent scholar, has posted Toward Natural Born Derivative Citizenship, which is forthcoming in volume 7 of the British Journal of American Legal Studies:
Senator Ted Cruz's campaign for the Republican presidential nomination again raised the question whether persons who receive derivative citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders and the First Congress to show that they are not natural born under the doctrinal and historical meaning of the term.

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land.

The article examines the meaning of the term "natural born" in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable theory of natural born derivative citizenship.

Official Leaks, the Reporter's Privilege, and the Law

We were quite fortunate Tuesday to attend "In re Judith Miller: National Security Privilege," an extremely timely and important reargument and panel discussion, sponsored by the Historical Society of the DC Circuit, in which the historical nature of the topic permitted judges, lawyers (including former DOJ officials), and a law professor (Columbia Law's David Pozen) to address the difficult issues raised by leaking by public officials.  A brief report of the proceedings is on the Society’s website.  A recording will soon be streaming there and on the website of the Federal Judicial Center.

Update: Could reporters be hunted down if Trump goes after leakers?

Report: Balleisen's "Fraud" in the Washington History Seminar

The History and Public Policy Program at the Woodrow Wilson Center has posted a summary of a recent meeting of the Washington History Seminar on Edward J. Balleisen’s Fraud: An American History from Barnum to Madoff (2017):
“Fraud is endemic to modern capitalism,” says Edward J. Balleisen, Vice Provost for Interdisciplinary Studies at Duke University and author of the new book Fraud: An American History from Barnum to Madoff (2017). In his talk at the Wilson Center, Professor Balleisen explored the history of American fraud, taking a broader historical perspective that is sometimes absent from other investigations. By doing so he provides a new understanding not only of how we have engaged with fraud in the past, but how we might better contain it in the future.


Kyer on Streetcar Law

More of our Commonwealth round-up from 2015, when Irwin Law published A Thirty Years' War: The Failed Public/Private Partnership that Spurred the Creation of the Toronto Transit Commission, 1891-1921 by C. Ian Kyer, RPM Technologies. From the press:
A Thirty Years’ War coverBetween 1891 and 1921, the Toronto Railway Company operated Toronto’s streetcars under a franchise granted by the City. The arrangement brought the City a modern electric streetcar system, but the relationship between the two entities was a tempestuous one, marked and marred by almost constant conflict and confrontation. Remarkably, the many court battles that resulted went to the Judicial Committee of the Privy Council on fourteen separate occasions. This book details these legal disputes, and along the way, links them to the city’s expansion and development, its municipal politics, the provincial debates over public ownership of many kinds of utilities, and the legal culture of the day, which reveals a remarkable faith in the courts. This is a fascinating historical story set in its own time and milieu, but which also has considerable contemporary relevance as Toronto — and Canada’s other major urban centres — wrestle with their modern transportation problems. It will be of interest not only to legal historians, but also to those interested in transit and municipal history, and in the correct balance between public and private ownership.
Praise for the book:

“[A] thoughtful and very timely book. . . . A Thirty Years’ War describes, in great detail, a dynamic and a political dialogue that is still so relevant today. . . . [The book] provides invaluable guidance on how to avoid pitfalls from the past. . . . [I]t flags lessons learned, as, once again, injection of private cash is being mooted as an option to renew and expand our transit system.” -Andy Byford

“To understand the evolution of cities at the end of the nineteenth century and the first two decades of the twentieth, Ian Kyer’s study of the relationship between Toronto’s councils and the City’s privately owned transportation system is essential reading. Kyer writes with authority, but with no hint of stodginess. I do not hesitate to recommend A Thirty Years’ War, not only to today’s Torontonians, but to readers across the country.” -R.B. Fleming

"Civil litigators, municipal law specialists, transportation law counsel and members of the solicitors' bar interested in the psychology of negotiating contracts to the point of brinksmanship (not to mention those, like me, interested in legal history) are invited to read this 254 page gem [ . . .] The study of an historical legal subject, when ably undertaken as in this case, serves contemporary needs and draws much needed light on present-day controversies. A Thirty Year's War may be enjoyed on many levels, but will prove valuable for advocates and for those who wish to avoid litigation." - Gilles Renaud

Further information is available here.

Tuori's "Emperor of Law"

Kaius Tuori, University of Helsinki, has published The Emperor of Law: The Emergence of Roman Imperial Adjudication, in the Oxford Studies in Roman Society & Law:
In the days of the Roman Empire, the emperor was considered not only the ruler of the state, but also its supreme legal authority, fulfilling the multiple roles of supreme court, legislator, and administrator. The Emperor of Law explores how the emperor came to assume the mantle of a judge, beginning with Augustus, the first emperor, and spanning the years leading up to Caracalla and the Severan dynasty.
While earlier studies have attempted to explain this change either through legislation or behavior, this volume undertakes a novel analysis of the gradual expansion and elaboration of the emperor's adjudication and jurisdiction: by analyzing the process through historical narratives, it argues that the emergence of imperial adjudication was a discourse that involved not only the emperors, but also petitioners who sought their rulings, lawyers who aided them, the senatorial elite, and the Roman historians and commentators who described it. Stories of emperors settling lawsuits and demonstrating their power through law, including those depicting "mad" emperors engaging in violent repressions, played an important part in creating a shared conviction that the emperor was indeed the supreme judge alongside the empirical shift in the legal and political dynamic. Imperial adjudication reflected equally the growth of imperial power during the Principate and the centrality of the emperor in public life, and constitutional legitimation was thus created through the examples of previous actions--examples that historical authors did much to shape. Aimed at readers of classics, Roman law, and ancient history, The Emperor of Law offers a fundamental reinterpretation of the much debated problem of the advent of imperial supremacy in law that illuminates the importance of narrative studies to the field of legal history.
His post, The curious tale of Roman emperors as judges, is up on OUPblog

Thursday, February 16, 2017

Red River Court Records

Readers interested in indigeneity, the North American west, and Canadian legal history will find rich primary-source material in a volume published by McGill-Queen’s University Press in 2015. The publisher calls Law, Life and Government at Red River, Volume 2, edited by the University of Manitoba’s Dale Gibson, “a new view of frontier justice in western Canada’s first major settlement through the eyes of its courts and witnesses.” 

Here’s more:  
Law, Life, and Government at Red River, Volume 2Inhabited by a diverse population of First Nations peoples, Métis, Scots, Upper and Lower Canadians, and Americans, and dominated by the commercial and governmental activities of the Hudson’s Bay Company, Red River - now Winnipeg - was a challenging settlement to oversee. This illuminating account presents the story of the unique legal and governmental system that attempted to do so and the mixed success it encountered, culminating in the 1869-70 Red River Rebellion and confederation with Canada in 1870. 
In Law, Life, and Government at Red River, Dale Gibson provides rich, revealing glimpses into the community, and its complex relations with the Hudson’s Bay: the colony’s owner, and primary employer. Volume 2 provides a complete annotated, and never-before-published transcription of testimony from Red River’s courts, presenting hundreds of vignettes of frontier life, the cases that were brought before the courts, and the ways in which the courts resolved conflicts. 
A vivid look into early settler life, Law, Life, and Government at Red River offers insights into the political, commercial, and legal circumstances that unfolded during western expansion.
Praise for the book:

“The comprehensiveness of Law, Life, and Government at Red River provides an excellent, all-in-one, legally focused discussion for researchers in the fields of legal history, Canadian history, colonial histories of the British Empire, and aboriginal law.” -Janna Promislow

"The legal perspective offers a fresh approach to a subject that historians have covered extensively. Recommended." -Choice

"In [Gibson’s work] there appear to be no prejudices or presumptions, the absence of which is a sign of both scholarship and academic discipline. Gibson's lengthy tome is sound social observance. The first volume is a retelling of Red River's history especially as it relates to law and government, including key cases. The second volume is something that has never been done: the publication of the complete official court records of the General Quarterly Court of Assiniboia from 1844 to 1872, with commentary. This volume is a catalogue of human experiences in frontier life, from the tragic to the comical." -Winnipeg Free Press

Further information is available here.

Law, Letters & Society at the University of Chicago

[We have the following announcement.]

The College at The University of Chicago invites applications for the Senior Lecturer in and Associate Director of Law, Letters, and Society. This is full-time Senior Lecturer position beginning in the autumn quarter of 2017.  This Senior Lectureship comes with a 3-year appointment.

The program in Law, Letters, and Society (LLSO) at The University of Chicago is concerned with law and legal systems, both historically and contemporaneously. The program is designed to develop the student's analytical skills to enable informed and critical examination of law broadly construed. The organizing premise of the program is that law is a tool of social organization and control, not simply an expression of will or aspiration, and that it is best understood by careful study of both rhetoric and empirical consequences of its application.

The Senior Lecturer will teach an annual four-course load in addition to administratively managing the LLSO program, advising students on BA papers and supervising honors theses in the LLSO major. Duties will include designing and teaching the courses and maintaining office hours to advise students in the major. All administrative management of the program (Student tracking, grade submission, budgeting, programmatic reporting, etc.) will fall under the purview of the Senior Lecturer and Associate Director of the LLSO.

This position requires a background in legal history.  A JD is required, PhD preferred.  Applicants with PhD in legal history need not have JD. Teaching experience at a university level is essential.

To apply for this position go to the University of Chicago Academic Careers website.  Select requisition #03241 and upload a curriculum vitae, cover letter discussing your interest and qualifications for the position, contact information for three references, and a syllabus that includes assignments, readings, and a detailed description of past taught courses.

Application deadline is April 10, 2017. Only complete applications will be considered.  

The University of Chicago is an Affirmative Action/Equal Opportunity/Disabled/Veterans Employer and does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, status as an individual with a disability, protected veteran status, genetic information, or other protected classes under the law. For additional information please see the University's Notice of Nondiscrimination. Job seekers in need of a reasonable accommodation to complete the application process should call 773-702-0287 or email with their request.  

Required Applicant Documents: Cover Letter, Curriculum Vitae, Reference Contact Info, Syllabi 

Wednesday, February 15, 2017

Legal History Miscellany

A much-belated welcome to the blogosphere to Legal History Miscellany, the joint blog of Sara M. Butler, the King George III Professor in British History at The Ohio State University; Krista Kesselring, a professor of British History at Dalhousie University; and Katherine D. (Cassie) Watson, Senior Lecturer at Oxford Brookes University.   From the blog:
The three of us work on various facets of the histories of law, crime, and justice, primarily in a British context. We might consider ourselves first and foremost social historians, historians of women and gender, or historians of medicine, but typically return time and again to using sources produced by legal processes or to the history of people’s interactions with those legal processes.  In addition to fancying an excuse to work together, we wanted a place to put interesting tales from the archives that never quite made it into regular publications, summaries of publications that do appear, reports on research in progress, and the occasional random musing that might be of interest to an audience beyond academia.

Wright, Tucker, and Binnie on War and Peace in Canada

Continuing with our Commonwealth catch-up: the University of Toronto Press published Canadian State Trials, Vol.IV in 2015. Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939 is edited by Barry Wright, Carleton University; Eric Tucker, Osgoode Hall Law School, York University; and Susan Binnie, former legal historian at the Law Society of Upper Canada.

From the press:
Canadian State Trials, Volume IVThe fourth volume in the Canadian State Trials series examines the legal issues surrounding perceived security threats and the repression of dissent from the outset of World War One through the Great Depression. War prompted the development of new government powers and raised questions about citizenship and Canadian identity, while the ensuing interwar years brought serious economic challenges and unprecedented tensions between labour and capital. 
The chapters in this edited collection, written by leading scholars in numerous fields, examine the treatment of enemy aliens, conscription and courts martial, sedition prosecutions during the war and after the Winnipeg General Strike, and the application of Criminal Code and Immigration Act laws to Communist Party leaders, On to Ottawa Trekkers, and minority groups. These historical events shed light on contemporary dilemmas: What are the limits of dissent in war, emergencies, and economic crisis? What limits should be placed on government responses to real and perceived challenges to its authority?
Praise for the book:

“An excellent continuation of the Canadian State Trials series, this volume adds considerably to our understanding of the history of state repression, class and labour relations, and the administration of justice.” -R. Blake Brown

“This volume is a superb structural analysis of how Canada’s courts were, and can be, used as state instruments of tyranny. It represents a number of fascinating and valuable questions.” -Scott Eaton

Table of Contents after the jump.

Tuesday, February 14, 2017

Frisson in the Archives (or, Opening Pandora's Box)

I’ve taken a break from blogging, but this long break illustrates a point that many first time monograph writers may not know. There is a very long break between the time that you submit everything to the press (which includes your [updated] prospectus, cv, cover letter to the editor, and the finished manuscript). If your book is part of a series, your series editor will submit a cover letter on your behalf explaining how your book enhances the scholarly conversation that the series intends to stimulate. So in short—submission is a bit more complex than hitting Send. But even when you do all that, you should brace yourself for a long period of silence. Readers of past posts will remember that I finished the chapter from hell as my sabbatical drew to a close. My series editor told me that the early summer was the optimal time to get reviewers to commit because they still had illusions about getting their own work done in the summer and reviewing manuscripts. There was some logic to this rhythm. I have only reviewed manuscripts in the fall (presumably after writers had the summer to work on them) but I was considerably more bogged down with the work of the academic semester and would have been less cranky in the summer.

But I do not want to close out my stint as a guest blogger without discussing archival frisson. Many of us hope to find untapped sources. But then if we find them, we (I at least) worry about the responsibility for interpreting that kind of evidence. Those who work on slavery in the British Atlantic are doing remarkable work in the new histories of gender, slavery and the archive that reconstruct the lives of enslaved subjects from a very thin record. Their struggle lies in interpreting the fragments and weaving together the fleeting images of enslaved women that appear in the official record.

Slavery scholars of the early modern Iberian Atlantic are blessed with an overabundance of legal records. We do not have private journals, epistolary records, newspapers or other print culture. Rather we have voluminous lawsuits, meticulously recorded inquisitorial proceedings, and carefully kept parish books. Each parochial entry gives us a brief social history of the individual and their social worlds. I painstakingly sifted through this archive for a decade—discovering nothing “new” so to speak but using these sources to craft a scholarly contribution.

Padilla libros, Editores y Libreros, Sevilla

Halfway through my sabbatical, I became aware of an uncatalogued “box.” As I understood it—these uncatalogued boxes exist-- but in well-used, combed over national archives, we do not expect to see them. It’s like “discovering” something in the National Archive at Kew or the Library of Congress. You might “discover” a box in a remote fifteenth century castle/monastery-turned-municipal archive and hope that it is something paradigm shifting. Your expectations about discovery going into that monastic space will be somewhat different than the ten-week stint at the British Library. So this is a roundabout way of saying that I did not expect to be presented with this box. When I became aware of it, I asked a trusted friend and respected Peruvian historian for advice. He whistled, expressing both sympathy and pragmatism. He recommended a very long footnote. As he pointed out, legal scholars are fond of the ridiculous and infamously long footnote (in which all scholarly diatribes and grudges are embedded) of a lengthy law review article.

Ghachem at BC on Jesuits and the Souls of Slaves in 18th-Century Haiti

[And that’s not all from our friends at Boston College!]

We invite you to join us on Thursday, Feb. 16 at 4:30, in the Rare Book Room of the Boston College Law School Library for our fourth and final event of the Legal History Roundtable 2016-2017. We are delighted to welcome Malick Ghachem, Professor of History at MIT. . . .

Professor Ghachem will be presenting a paper, “The Jesuits, the Souls of Slaves, and the Battle for Haiti, 1720-1730.” The paper is available on the website.

Refreshments are available beginning at 4:15 pm. outside the Library Conference Room. The discussion will begin at 4:30. The Clough lecture with Dr. Peer Zumbansen will not start until 5:30 so those who plan to attend both events should be able to.
The story of the Society of Jesus in Saint-Domingue (Haiti) begins in the early years of the eighteenth century, when the French monarchy expelled the resident Capuchin friars and invited the Jesuit order to take their place.  The remarkable priests who served during these years laid the foundations of the Catholic Church in Haiti, attending to the spiritual needs of a nascent French planter community while also organizing parishes and building the main cathedral in Cap Français.   The work of carving out an Ignatian space in this emerging crucible of eighteenth-century Atlantic capitalism unfolded against the backdrop of a near-total breakdown of political order in the colony during the early 1720s.  As local creoles mounted a dramatic rebellion against the slave trading monopoly of the French Indies Company in Saint-Domingue, the Jesuits found themselves drawn into some unexpected realms of secular and spiritual effort alike: the writing of Haiti’s first histories and the proselytization of its rapidly expanding and already resistant community of slaves.  How the Ignatians carried out these two missions tells us much about both the Jesuit order itself and the circumstances of Haiti’s sudden rise as the most profitable plantation colony in the world by the third decade of the eighteenth century.
Malick W. Ghachem is a historian and lawyer.  His primary areas of concentration are slavery and abolition, criminal law, and constitutional history.  He is the author of The Old Regime and the Haitian Revolution (Cambridge University Press, 2012), a history of the law of slavery in Saint-Domingue (Haiti) between 1685 and 1804.  The book received the American Historical Association’s J. Russell Major Prize for the best work in English on French history and was co-winner of the Caribbean Studies Association’s Gordon K. and Sybil Lewis Prize for the best book published in the field of Caribbean studies over the past three years.  He teaches courses on the Age of Revolution, Slavery and Abolition, American criminal justice, and other topics.

Professor Ghachem earned his undergraduate and law degrees from Harvard University and his doctorate in history from Stanford.  He clerked for the Honorable Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit in Miami, FL in 2004.  A member of the Massachusetts bar, Professor Ghachem practiced law in Boston from 2005 to 2010 for two law firms: Zalkind, Rodriguez, Lunt & Duncan LLP and Weil, Gotshal & Manges LLP.  For part of that period (2006-2007) he served as a lecturer in MIT’s Political Science Department.  Between 2010 and 2013, he taught at the University of Maine School of Law in Portland, ME, where he is now a Senior Scholar.

Robert Morris: Lawyer & Activist: An Exhibit at BC

[Our friends at Boston College sent us the following announcement.]

We are pleased to announce the opening of the spring exhibit in the Daniel R. Coquillette Rare Book Room at the Boston College Law School]. Curated by Laurel Davis and Mary Bilder, the exhibit is entitled Robert Morris: Lawyer & Activist. Morris (1823-1882), long known as one of the first African-American lawyers in the country, was a mover and shaker in Boston anti-slavery circles but also a full-throated civil rights activist in many other areas. He also had a fascinating relationship with Boston's Irish community and a very young Boston College.

We were thrilled to discover that the Burns Library on main campus has his personal library in its collection; the staff at the Burns generously loaned us all of the books in our exhibit. Additionally, the Boston Athenaeum kindly loaned multiple items from their Robert Morris papers. Through his books and papers, we were able to explore Morris's many dimensions. We invite you to come view the exhibit--it was a fun and rewarding collaboration, and we are excited to share it with everyone.

For a sneak peek, please visit the exhibit webpage. Many thanks to Lily Olson, Access Services Librarian, for her indispensable help on the webpage and the bookmark.

Legal History Turns from Schultz and friends

Here is another Commonwealth title we missed from The Federation Press in 2015: a volume edited by Griffith University'Karen Schultz, Legal History Turns. From the publisher:
Legal History TurnsThis volume concerns legal history turns – that is, new directions or volte-faces  in legal history and its interdisciplinarity. Legal history turns include deviations from historically-situated interpretations and practices in law and legal scholarship. The papers in this volume grew from the Griffith Law School’s Legal History Seminar Series, a public lecture initiative intended to contribute to the interest in legal history of the profession, judiciary, academe, and the public. Written by a cast that includes authors with internationally-impressive legal history credentials, this collection illustrates legal history turns’ dynamism and diversity, and is introduced with a foreword by The Honourable Justice Susan Kiefel AC.
Table of Contents after the jump.

CFP: ASLH 2017

[We have the following CFP for ASLH 2017.  Please note that the deadline for submissions is March 15, 2017.  More information on the meeting is on the ASLH's website.]

The 2017 Annual Meeting of the American Society for Legal History will take place in Las Vegas, Nevada, from October 26 – October 29, 2017. The Program Committee invites proposals on any facet or period of legal history, anywhere in the world. We also strongly encourage thematic proposals that traverse traditional chronological or geographical fields.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows, and scholars from abroad.

The Program Committee welcomes proposals for full sessions and individual papers. Given the number and high quality of submissions, however, individual papers are much less likely than full sessions to be accepted. Individual paper submitters are encouraged to connect with other scholars (through H-Law, etc.) to coordinate the submission of complete session proposals.

The Committee encourages the submission of a variety of different types of program proposals, including:
  • Traditional paper panels (3-4 papers, with a separate chair-commentator);
  • Incomplete panels lacking either one paper or a chair-commentator (whether 2-paper panels with a chair-commentator, or 3-paper panels without a chair-commentator), which the Program Committee will try to complete;
  • Skills/Pedagogical workshops (chair, 3-4 presenters);
  • Author-meets-reader panels (up to two (2) book authors, with 2-3 commentators);
  • Roundtable discussions (1-2 chairs, with 3-4 commentators);
  • “Lightning Round” sessions (1-2 chairs, with 8-12 presenters, speaking for three-minutes each, on projects at any stage of development, in a related geographical/temporal/thematic/methodological field);
  • Pre-conference symposium programs (more information below).
Proposals for paper/book panels, workshops, roundtable discussions, and “lightning round” sessions should include the following:
  • Session title
  • Submitter’s name and contact information
  • Titles of each proposed paper / presentation
  • A 300-word description of the proposed session
  • A c.v. for each presenter / chair / commentator (including complete contact information)
  • Any special scheduling requests (note that we may not be able to accommodate all scheduling requests.)
  • For paper-based panels only: a 300-word abstract of each paper
Individual paper submissions should include the following:
  • A 300-word abstract of the paper
  • A c.v. for each presenter (including complete contact information)
ASLH is also soliciting proposals for innovative full-day or half-day pre-conference symposia crafted around related themes, and designed to augment (not duplicate) traditional ASLH conference offerings. The Program Committee is available to consult with organizers of such symposia, both as they draft their proposals and as they finalize their accepted programs. Pre-conference symposium proposals must include:
  • Program title (and whether half-day or full-day)
  • Presenter bios and contact information
  • Program description (including summary, format, learning objectives, planned sessions, and how stated learning objectives will be met)
  • Equipment/technology needs
Please note that:

All program presenters must be current members of the Society by the date of the Annual Meeting.

Prospective participants may submit proposals for multiple sessions, with the understanding that, absent exceptional circumstances, no individual may appear more than once on the final program in any capacity. The Program Committee strives to include as many participants as possible in the Annual Meeting, and will work with session organizers to identify suitable replacements for any sessions from which a participant has had to withdraw.

All proposals must be submitted via our online system.  Please visit [here] for updates and additional information. The deadline for all proposals is March 15, 2017.

Monday, February 13, 2017

Gold on "The Jacksonian Conservatism of Rufus P. Ranney"

New from Ohio University Press: The Jacksonian Conservatism of Rufus P. Ranney: The Politics and Jurisprudence of a Northern Democrat from the Age of Jackson to the Gilded Age (2017), by David M. Gold (independent scholar). A description from the Press:
Ohio’s Rufus P. Ranney embodied many of the most intriguing social and political tensions of his time. He was an anticorporate campaigner who became John D. Rockefeller’s favorite lawyer. A student and law partner of abolitionist Benjamin F. Wade, Ranney acquired an antislavery reputation and recruited troops for the Union army; but as a Democratic candidate for governor he denied the power of Congress to restrict slavery in the territories, and during the Civil War and Reconstruction he condemned Republican policies.

Ranney was a key delegate at Ohio’s second constitutional convention and a two-time justice of the Ohio Supreme Court. He advocated equality and limited government as understood by radical Jacksonian Democrats. Scholarly discussions of Jacksonian jurisprudence have primarily focused on a handful of United States Supreme Court cases, but Ranney’s opinions, taken as a whole, outline a broader approach to judicial decision making.

A founder of the Ohio State Bar Association, Ranney was immensely influential but has been understudied until now. He left no private papers, even destroying his own correspondence. In The Jacksonian Conservatism of Rufus P. Ranney, David M. Gold works with the public record to reveal the contours of Ranney’s life and work. The result is a new look at how Jacksonian principles crossed the divide of the Civil War and became part of the fabric of American law and at how radical antebellum Democrats transformed themselves into Gilded Age conservatives.
More information is available here.

Yang on China's Illiberal Regulatory State

Dali L. Yang, University of Chicago, has posted China’s Illiberal Regulatory State in Comparative Perspective, which is forthcoming in the Chinese Political Science Review.
Abstract In the spirit of Philippe Schmitter, this study reviews the development of Chinese regulation against the history of the development of the regulatory state in the West. Section One discusses the rise of the regulatory state in western democracies in an age of concern about state expansion. It notes that, generally speaking, the regulatory state in a liberal democratic setting has become accepted as enabling liberal democracies to combine democratic legitimacy with the independence and professionalism of unelected regulatory bodies. Section Two offers a quick overview of the establishment and proliferation of regulatory institutions in China in the context of continued single-Party rule and strong state dominance. Section Three delineates the politics of changes to the regulatory regime from the perspective of political risk and points to dynamics that are animating regulatory state building with Chinese characteristics. Section Four concludes.

Sunday, February 12, 2017

Sunday Book Review Roundup

Good morning, legal historians.  Enjoy these book reviews.

The New York Times reviews Joshua Kurlantzick’s A Great Place to Have a War: America in Laos and the Birth of a Military CIA, which is also on NPR and the Council on Foreign Relations’s Blog. Also in the Times, Alice Kessler Harris reviews Six Encounters with Lincoln: A President Confronts Democracy and Its Demons, Elizabeth Brown Pryor’s “portrait of a president whose failures to act often undermine the democratic ideals and the moral values to which he claims commitment.” Lincoln seems to be on everyone’s mind--perhaps in celebration of his upcoming birthday (one could hope for no better gift than a portrait of their failures to act!). Robert Merry reviews “Fit for the Presidency?” by Seymour Morris Jr. in the Wall St. Journal, and Colson Whitehead reviews a novel about the President. The Times also covers Erica Armstrong Dunbar’s Never Caught: The Washingtons’ Relentless Pursuit of Their Runaway Slave, Ona Judge, in a feature about the book and its author (no reference, surprisingly, to this more whimsical retelling of Judge’s story).

The WSJ also has a review of Tony Smith’s Why Wilson Matters (a “painstaking, take-no-prisoners attack on those who believe that America’s historical experience can be duplicated everywhere”) and Giles Milton’s “Churchill’s Ministry of Ungentlemanly Warfare: The Mavericks Who Plotted Hitler’s Defeat” (a “rousing account of World War II’s most insidious and devious heroes”).

In the Chicago Tribune, Wendi C. Thomas reviews Elizabeth Dowling Taylor’s The Original Black Elite: Daniel Murray and the Story of a Forgotten Era, which “chronicles the colored aristocracy's brief taste of nearly equal citizenship in the nation's capital in the late 1880s.”

The Guardian features an article about American writers and fascism. In the NYRB, Gary Wills reviews ~7 histories of Jesuits and global politics.

The Nation features reviews of Wesley Lowery’s “They Can’t Kill Us All”: Ferguson, Baltimore, and a New Era in America’s Racial Justice Movement (link here), which “sets out not only to track the latest developments in Black Lives Matter, but also to search for the movement’s deeper roots,” and Gareth Stedman Jones’ Karl Marx: Greatness and Illusion, which “portrays a Marx who, as a creature of the public controversies and sectarian intrigues of his time, belongs to the past rather than the future, his thought a historical curiosity with little enduring explanatory power.” As we mentioned in the Weekend Roundup, The Nation also published this analysis of modern immigration policy and resistance to the fugitive slave act by Eric Foner.

Finally, the New Books Network has posted reviews of The Watchman in Pieces: Surveillance, Literature, and Liberal Personhood a “wide ranging, deeply researched, and compellingly argued” theory of surveillance that claims that “the ultimate target of all surveillance activity” is “the individual self”; Eve Rosenhaft and Robbie Aitken’s Black Germany: The Making and Unmaking of a Disapora Community, 1884-1960 ; and Michael Roth’s Convict Cowboys: The Untold History of the Texas Prison Rodeo.

Saturday, February 11, 2017

A Book Talk on Castañeda Anastacio's "Foundations of the Modern Philippine State"

On Tuesday, February 14, between noon and 1:30pm, with lunch provided, the Harvard Law School Library staff and the Harvard Law School East Asian Legal Studies Program will host a a book talk and discussion on The Foundations of the Modern Philippine State: Imperial Rule and the American Constitutional Tradition in the Philippine Islands (Cambridge University Press, 2016), by Leia Castañeda Anastacio, a research fellow in the HLS East Asia Legal Studies Program. The event will take place in Harvard Law School Room Lewis 214A , Massachusetts Ave., Cambridge.  The commentators will be Professor Gerald Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, and the Co-Director of the Human Rights Program, Harvard Law School, and Professor Chris Capozzola, Associate Professor of History at MIT.

About the book (from CUP’s website):
The US occupation of the Philippine Islands in 1898 began a foundational period of the modern Philippine state. With the adoption of the 1935 Philippine Constitution, the legal conventions for ultimate independence were in place. In this time, American officials and their Filipino elite collaborators established a representative, progressive, yet limited colonial government that would modernize the Philippine Islands through colonial democracy and developmental capitalism. Examining constitutional discourse in American and Philippine government records, academic literature, newspaper and personal accounts, The Foundations of the Modern Philippine State concludes that the promise of America’s liberal empire was negated by the imperative of insulating American authority from Filipino political demands. Premised on Filipino incapacity, the colonial constitution weakened the safeguards that shielded liberty from power and unleashed liberalism’s latent tyrannical potential in the name of civilization. This forged a constitutional despotism that haunts the Islands to this day.
About the author:
Leia Castañeda Anastacio is an independent scholar affiliate of Harvard Law School’s East Asian Legal Studies program. Placing first in the 1993 Philippine Bar Examinations, she was awarded Harvard Law School’s Yong Kim ’95 Memorial Prize in 2008 and the American Society of Legal History’s William Nelson Cromwell Foundation Dissertation Prize in 2010.

Weekend Roundup

  • From the Washington Post: "America got a civics lesson Tuesday night when Senate Republicans used an obscure rule to shut down a speech by Sen. Elizabeth Warren (D-Mass.) that criticized Sen. Jeff Sessions (R-Ala.), the nominee for attorney general." They got a legal history lesson, too -- on the origins of Rule 19. More on the same topic in the New York Times op-ed section, via contributors James Grimmelmann (Cornell Tech) and Jan Ellen Lewis (Rutgers-Newark).
  • Have we mentioned that legal historian Jed Shugerman (Fordham) now has a blog? The latest installment dusts off the old English writ of quo warranto and asks how state attorneys general might use quo warranto proceedings today to enforce the Emoluments Clause.
  • Ana Delić, Tilburg University, posted a report on the conference  International Law and the Long Nineteenth Century (University of Leuven, November 24-25, 2016), on the blog of the  European Society for Comparative Legal History.
  • Which reminds us: On Valentine's Day at 4:30 in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse in Washington, DC: "National Security and Reporter's Privilege," a reenactment of the oral argument in In re Judith Miller, sponsored by the Historical Society of the DC Circuit.
  • Also on Valentine's Day, "Denison University’s Department of History welcomes historian and legal scholar Barbara Young Welke presenting 'Law and the Borders of Belonging' at 4:30 p.m. on Feb. 14, in the lecture hall at Burton D. Morgan Center."  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 10, 2017

Research Grants at the State Historical Society of Iowa

The State Historical Society of Iowa (SHSI) announces a grant program for the 2017/2018 academic year. SHSI will award up to ten stipends of $1,000 each to support original research and interpretive writing related to the history of Iowa or Iowa and the Midwest. Preference will be given to applicants proposing to pursue previously neglected topics or new approaches to or interpretations of previously treated topics. SHSI invites applicants from a variety of backgrounds, including academic and public historians, graduate students, and independent re-searchers and writers.  Applications will be judged on the basis of their potential for producing work appropriate for publication in The Annals of Iowa. Grant recipients will be expected to produce an annotated manuscript targeted for The Annals of Iowa, SHSI’s scholarly journal.

Applications for the 2017/2018 awards must be postmarked by April 15, 2017. Download application guidelines from our web site or request guidelines or further information from:

Research Grants
State Historical Society of Iowa
402 Iowa Avenue
Iowa City  IA  52240-1806

Chetail on Sovereignty and Migration from Vitoria to Vattel

Vincent Chetail, Graduate Institute of International and Development Studies, has posted Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel, which appears in the European Journal of International Law 27 (2016): 901–922:
This intellectual history of hospitality from Vitoria to Vattel provides an alternative story to the prevailing narrative of migration control. Although migration control is frequently heralded as falling within the domestic jurisdiction of states, the movement of persons across borders is a permanent feature of history that has been framed by international law for ages. The early doctrine of the law of nations reminds us that migration was at the heart of the first reflections about international law through the enduring dialectic between sovereignty and hospitality. This long-standing debate was framed by early scholars following three main trends, which constitute the focus of this article. The free movement of persons was first acknowledged by Vitoria and Grotius as a rule of international law through the right of communication between peoples. By contrast, Pufendorf and Wolff insisted on the state’s discretion to refuse admission of aliens as a consequence of its territorial sovereignty. Yet, in-between these two different poles – sovereignty versus hospitality – Vattel counterbalanced the sovereign power of the state by a right of entry based on necessity. As exemplified by the founding fathers of international law, the dialectic between sovereignty and hospitality offers innovative ways for rethinking migration.

Bessler's "Death Penalty as Torture"

John D. Bessler, University of Baltimore School of Law, has published The Death Penalty as Torture: From the Dark Ages to Abolition, with the Carolina Academic Press:
During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture—from the thumbscrew and the rack to the Inquisition’s tools of torment—was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.

In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria—the father of the world’s anti–death penalty movement—condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.

In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.

Schillings, "Enemies of All Humankind"

New from Dartmouth College Press: Enemies of All Humankind: Fictions of Legitimate Violence (2017), by Sonja Schillings (Justus Liebig University, Giessen, Germany). A description from the Press:
Sonja Schillings argues that the legal fiction designating certain persons or classes of persons as enemies of all humankind does more than characterize them as inherently hostile: it supplies a narrative basis for legitimating violence in the name of the state. The book draws attention to a century-old narrative pattern that not only underlies the legal category of enemies of the people, but more generally informs interpretations of imperial expansion, protest against structural oppression, and the transformation of institutions as “legitimate” interventions on behalf of civilized society. Schillings traces the Anglo-American interpretive history of the concept, which she sees as crucial to understanding US history, in particular with regard to the frontier, race relations, and the war on terror.
A few blurbs:
“Schillings expands the discussion of legal and philosophical concepts in the current context of the 'war on terror' with greater historical depth than is usually found in such conversations, and she also makes a highly welcome contribution to the study of narrative fiction in such contexts.” —Ingo Berensmeyer

“This is he best kind of legal-historical scholarship. . . . Schillings illuminates central concepts, such as that of legal fictions, and explains their usefulness in situations that are from a legal perspective inchoate." —Greta Olson
More information is available here.

Thursday, February 9, 2017

Skeel on Equality of Creditors in Bankruptcy

David A. Skeel, Jr., University of Pennsylvania Law School, has posted The Empty Idea of "Equality of Creditors”:
For two hundred years, the equality of creditors norm — the idea that similarly situated creditors should be treated similarly — has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of Article traces the historical emergence and evolution of the equality norm, first in the federal bankruptcy laws that applied to individuals and small businesses, and then as it diffused (much later) into large scale corporate reorganization practice. Part II describes how easy it has become to circumvent the norm, focusing on five strategies for giving a favored group of creditors a higher payout than other unsecured creditors. Although these evasions could and in some cases should be halted (as shown in Part III), it turns out that equality of creditors is a distraction (Part IV). It contributes nothing to an assessment of the relevant doctrines, and in several contexts seems to have had a pernicious effect. Elsewhere in the law, equality language can provide valuable benefits, such as “telling us that different treatment of people does matter.” Because none of these benefits is present in bankruptcy (Part V), the equality principle should be discarded.

Rahman Reviews Gerstle, "Liberty and Coercion"

Writing for JOTWELL's Legal History Section, K. Sabeel Rahman (Brooklyn Law School) has posted a review of Liberty and Coercion: The Paradox of American Government from the Founding to the Present (2015), by Gary Gerstle (Cambridge University). Here's the first paragraph:
As a field, legal history has long been centrally concerned with the patterns and trajectories of American political development and state formation. In his recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), Gary Gerstle offers a compact and highly readable synthesis of the long arc of the battles over the idea of a strong and central American state, from the constitutional founding through recent clashes between the Obama administration and the Tea Party. Gerstle and his work are of course well-known in the field. In this new book, he offers a cautionary narrative about this long process of state formation, and how it has set in place pathologies that fuel recurring crises of governance and legitimacy.
Read on here.

Wednesday, February 8, 2017

Preston on Australian military law

We're catching up on a few titles published in Commonwealth countries back in 2015. Here's the first—from Federation Press, Military Law in Colonial Australia by Neil Preston, OAM. From the publisher:
Product Details

This book breaks new ground in reviewing the naval and military law of the Australian colonies before their federation in 1901. Its particular focus is on the disciplinary codes contained in Acts of Parliament and subordinate legislation. A disciplinary code takes a certain form having regard to the nature of the force to which it is to apply, which in turn depends on the circumstances in which the force is raised and its proposed role.
Matters dealt with include:
  • an examination of the colonies’ many disciplinary codes and a discussion of their adequacy.
  • the political development of the colonies to the stage where they were prepared to raise local forces.
  • the development of the British part-time forces and the British naval and military disciplinary codes, because the colonies looked to Britain for precedents for the kinds of forces they might raise and the disciplinary codes they might provide.
  • the various kinds of naval and military forces that the colonies experimented with.
  • the colonies’ responses to the withdrawal of British regular army troops in the period 1860-70.
  • the colonies’ responses to the reports of senior British officers sent to the colonies to advise on defence matters, including the colonial forces.
  • the naval and military law applying to colonial forces serving in the Sudan, the Boer War and the Boxer rebellion in China.

Table of Contents after the jump.