Sunday, October 23, 2016

Sunday Book Review Roundup

Many of the books reviewed this week are more on the -ish side of legal history-ish (along with a lot of biography).  Together, however, they offer interesting reading.

In this week's New York Times, Edward Baptist reviews Beth Macy's Truevine: Two Brothers, a Kidnapping, and a Mother's Quest: A True Story of the Jim Crow South  (Beth Macy is also interviewed on NPR here and here).  Also in the NYT is a review of Gareth Stedman Jones' biography of Marx, Karl Marx: Greatness and Illusion.  Finally this week's NYT carries a review of Ron Robin's The Cold World They Made: The Strategic Legacy of Roberta and Albert Wohlstetter.

Beth Macy's Truevine has also inspired a review essay in the New Republic.

In The Washington Post is a review of Sebastian Mallaby's autobiography of Allan Greenspan, The Man Who Knew: The Life and Times of Alan Greenspan.  Also in The Washington Post is a review of Russell Riley's Inside the Clinton White House: An Oral History

In the New York Review of Books is a review essay on voting rights that draws on Ari Berman's Give Us the Ballot: The Modern Struggle for Voting Rights in America and Zachary Roth's The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy.

In the Los Angeles Review of Books is a review of Richard Kluger's Indelible Ink: The Trials of John Peter Zenger and the Birth of America's Free Press.

In the London Review of Books Susan Pedersen reviews Robert Vitalis' White World Order, Black Power Politics: The Birth of American International Relations.

There has been a spate of presidential biographies reviewed this week. H.W. Brands' The General vs. the President: MacArthur and Truman at the Brink of Nuclear War is reviewed in the Los Angeles Times.  American Ulysses: A Life of Ulysses S. Grant by Ronald C. White is reviewed in the NYT and the Chicago Tribune.  Finally, Robert Strauss is interviewed on NPR about his Worst. President. Ever.: James Buchanan, the POTUS Rating Game, and the Legacy of the Least of the Lesser Presidents.

Elizabeth Hinton's From the War on Poverty to the War on Crime is reviewed at HNN. Also reviewed at HNN is Roxanne Dunbar Ortiz and Dina Gilio Whitaker's "All the Real Indians Died Off": And 20 Other Myths About Native Americans
James Kloppenberg is interviewed at the New Books Network about his Toward Democracy: The Struggle for Self-Rule in European and American Thought.  Caroline Winterer is also interviewed there about her American Enlightenments: Pursuing Happiness in the Age of Reason. Finally, there is an interview with Natalie Byfield on her Savage Portrayals: Race, Media and the Central Park Jogger Story.

In The New Rambler Review is a review of Richard Tuck's The Sleeping Sovereign: The Invention of Modern Democracy.

In The Wall Street Journal John Fabian Witt reviews Philanthropy in Democratic Societies: History, Institutions, Values, edited by Rob Reich, Chiara Cordelli, and Lucy Bernholz.

Saturday, October 22, 2016

Weekend Roundup

  • Mark A. Graber, the Jacob A France Professor of Constitutionalism at the University of Maryland Francis King Carey School of Law, has been named a University System of Maryland Regents Professor. “Graber is one of just seven Regents Professors in the history of the University System of Maryland.”  More. 
Walter Speck and His Mural (credit)
  • "Wayne State's Walter P. Reuther Library of Labor and Urban Affairs will be the permanent home of Detroit-artist Walter Speck’s historic New-Deal era UAW mural. The mural depicts significant events in the UAW’s history, and for more than 75 years it was displayed at the Local 174’s union halls.”  It was unveiled yesterday during a ceremony during the 38th Annual North American Labor History Conference, which continues today at Wayne State.  More.
  • ICYMI: Canadian legal history sessions at the ASLH meeting in Toronto, via Canadian Legal History BlogLaura Edwards’s appointment as the 2016-17 William H. Neukom Fellows Research Chair in Diversity and Law makes it to Bloomberg LawSeth Barrett Tillman on The Journals Clause.  "We're far removed from the Federalist Papers," laments Roger Pilon, after the third presidential debate.  We say: Sad!
  • Do say hello to your LHB Bloggers if you see us at #ASLH2016.  We're always happy to hear from you!

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

Friday, October 21, 2016

Resnik on "Intellectual Heritages" in Federal Courts Jurisprudence

Judith Resnik, Yale Law School, has posted Revising Our "Common Intellectual Heritage": Federal and State Courts in Our Federal System, which is forthcoming in volume 91 of the Notre Dame Law Review:    
This Essay pays tribute to Daniel Meltzer’s insight that, to the extent “lawyers have a common intellectual heritage, the federal courts are its primary source.” I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation.

Legal History at Queen Mary of London

Our friends at Queen Mary University of London announce the following history-related events sponsored by that university’s Centre for Law and Society in a Global Context (CLSGC).

10 November 2016
A new book symposium organized by the CLSGC for Peter Cane's book Controlling Administrative Power: A Comparative History (CUP). 4:00 - 7:00pm.  Room 313, School of Law, Queen Mary University of London, Mile End Road, London.  Chair: Professor Sionaidh Douglas-Scott (Queen Mary).  Speakers: Professor Peter Cane (ANU), Professor Peter Lindseth (UConn), Professor Alison Young (Oxford), Professor Liz Fisher (Oxford). Professor Paul Craig (Oxford).

21 November 2016
A special seminar with Professor Robert W. Gordon discussing "The Return of the Corporate Lawyer-Statesman?"  Co-hosted by CLSGC, the London School of Economics, and the Institute of Advanced Legal Studies.  3:30 - 5:30pm.  Institute of Advanced Legal Studies, Charles Clore House, 17 Russell Square, London.

6 December 2016
A new book symposium on the Oxford Handbook of Roman Law and Society, organized by CLSGC and chaired by Dr Maks Del Mar (Queen Mary).  4:00 - 7:00pm.  Room 313, Third Floor, Law Building, Queen Mary University of London, Mile End Road.

Panel I: Editors’ Vision, 4-5pm
Professor Clifford Ando (Chicago)
Dr Paul du Plessis (Edinburgh)
Professor Kaius Tuori (Helsinki)

Panel II: Commentary, 5-6pm
Professor Adriaan Lanni (Harvard)
Professor Catherine Steel (Glasgow)
Professor Ulrike Babusiaux (Zurich)

7 December 2016
A CLSGC workshop on the Comparative History of Legal Reasoning.  Chair: Dr Maks Del Mar.

Panel I: 2-3.45pm
Professor Adriaan Lanni (Harvard)
Professor Clifford Ando (Chicago).

Panel II: 4.00-5.30pm
Dr Lena Salaymeh (Tel Aviv)
Professor Alain Pottage (LSE).

Panel III: 5.45-7.15pm
Professor Jaakko Husa (Lapland)
Professor Catherine Valcke (Toronto)

14 December 2016
Global Jurists Seminar Two: Global Jurists in History.  Part of the seminar series on Global Jurists: Past, Present and Future, organized by the Centre for European and International Legal Affairs and CLSGC and chaired by Professor Georgios Varouxakis (QMUL).  4:15 - 7:00pm.  Venue TBC, Queen Mary University of London, Mile End Road, London.  Speakers: Arnulf Becker Lorca (US), Dr Shruti Kapila (UK), Rohit De (US), Dr Katharina Rietzler (UK), Mira Siegelberg (QMUL), Dr Natasha Wheatley (AUS).

A Symposium on Pue's "Lawyers' Empire"

We've previously noted the publication of W. Wesley Pue's Lawyers’ Empire: Legal Professions and Cultural Authority, 1780-1950 (UBC Press, 2016).  The book is now the subject of a special issue of the International Journal of the Legal Profession, edited by David Sugarman and Avrom Sherr.  It will be published in March 2017 as IJLP 24:1, but individual contributions are available now on the journal’s website.  (A recording of Professor Sugarman's comments on Professor Pue and his book is available here.)  Here are the symposium's contents:

David Sugarman

Avrom Sherr

The commonwealth of lawyers?
Harry Arthurs

Contesting the legal culture of professionalism
Constance Backhouse

S.G.W. Archibald and liberal constitutionalism in Nova Scotia, 1820–1840
Lyndsay M. Campbell

Listening to "long-dead lawyers"
Eve Darian-Smith

Lawyers’ Empire in the (African) colonial margins
Sara Dezalay

Cultural politics and liberal legal education in the British Midlands and the Canadian West
Daniel R. Ernst

Lawyers’ Empire: Legal Professions and Cultural Authority, 1780–1950: a review
Philip Girard

Lawyers’ Empire and The Great Transformation
Douglas C. Harris

Wes Pue’s lawyers
Wilfrid Prest

Lawyers, legal education and nation building: lessons from Lawyers’ Empire
Hilary Sommerlad

Thursday, October 20, 2016

Lederman on Military Trials of Civilians during the Civil War and Its Aftermath

"The Arrival at the Scaffold" (LC)
Martin Lederman, Georgetown University Law Center, has posted The Law (?) of the Lincoln Assassination.
Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal?

McKinley's "Fractional Freedoms"

Michelle McKinley, University of Oregon School of Law, has published Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700, in the Studies in Legal History series at Cambridge University Press:
Fractional Freedoms explores how thousands of slaves in colonial Peru were able to secure their freedom, keep their families intact, negotiate lower self-purchase prices, and arrange transfers of ownership by filing legal claims. Through extensive archival research, Michelle McKinley excavates the experiences of enslaved women whose historical footprint is barely visible in the official record. She complicates the way we think about life under slavery and demonstrates the degree to which slaves were able to exercise their own agency, despite being caught up in the Atlantic slave trade. Enslaved women are situated as legal actors who had overlapping identities as wives, mothers, mistresses, wet-nurses and day-wage domestics, and these experiences within the urban working environment are shown to condition their identities as slaves. Although the outcomes of their lawsuits varied, Fractional Freedoms demonstrates how enslaved women used channels of affection and intimacy to press for liberty and prevent the generational transmission of enslavement to their children.
Professor McKinley discusses her book in a video on the Studies in Legal History's website.

Some endorsements:

“This is, without a doubt, one of the richest, most complex and well-researched studies of urban slavery in colonial Latin America. McKinley brings acute legal knowledge, both of the content of law and of its performative practice, to a study of enslaved men and women. The archival wealth here, plus the author’s ability to tell a compelling yarn, produce an engaging and scholarly tome.”
— Karen B. Graubart, University of Notre Dame

“Michelle McKinley has written a book that embodies the richness of recent Latin American legal history and also transcends that literature. Fractional Freedoms is rooted in heroic work in recondite and intractable archives in Europe and in the Americas. It is shaped by an incredibly sophisticated historical imagination, and is also filled with really interesting and well told stories about the negotiations and the local lives of enslaved Africans in early modern Lima.  There are surprises on every page.  For anyone interested in the global history of slavery, which by rights should be every serious student of history, this is the state of the art.”
—Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Princeton University

“This is a first-rate piece of original, archive-based scholarship. It is a meticulous and extremely thoughtful examination of women’s lives under slavery in and around Lima, Peru, a part of the Americas few connect with this institution. What really sets this book manuscript apart is the author’s razor-sharp understanding and clear explanation of the colonial legal system. This book is a fully accessible social history that … contributes substantially to the growing history of the African diaspora.”
—Kris Lane, Scholes Professor, Tulane University

Hobson on Fletcher v. Peck

New from the University Press of Kansas: The Great Yazoo Lands Sale: The Case of Fletcher v. Peck (October 2016), by Charles F. Hobson (independent scholar). A description from the Press:
In 1795, the Georgia legislature sold the state’s western lands (present-day Alabama and Mississippi) to four private land companies. A year later, amid revelations of bribery, a newly elected legislature revoked the sale. This book tells the story of how the great Yazoo lands sale gave rise to the 1810 case in which the Supreme Court, under Chief Justice John Marshall, for the first time ruled the action of a state to be in violation of the Constitution, specifically the contract clause.
Truly a landmark case, Fletcher v. Peck established judicial review of state legislative proceedings, provided a gloss on the contract clause, and established the preeminent role of the Supreme Court in private law matters. Beneath the case’s dry legal proceedings lay a tangle of speculating mania, corruption, and political rivalry, which Charles Hobson unravels with narrative aplomb. As the scene shifts from the frontier to the courtroom, and from Georgia to New England, the cast of characters includes sharp dealers like Robert Morris, hot-headed politicians like James Jackson, and able counsel like John Quincy Adams, along with, of course, John Marshall himself. The improbably dramatic tale opens a window on land transactions, Indian relations, and the politics of the early nation, thereby revealing how the controversy over the Yazoo lands sale reflected a deeper crisis over the meaning of republicanism. Hobson, a leading scholar of the Marshall Court, lays out the details of the litigation with great clarity even as he presents a longer view of the implications and consequences of Fletcher v. Peck.
More information is available here.

Wednesday, October 19, 2016

Call for #ASLH2016 guest posts and twitter updates

If you are attending the American Society for Legal History meeting next week in Toronto, the Legal History Blog welcomes your guest post about any panels you attend. (Examples of the type of coverage we're looking for are here, here, here and here.) We like to do this for the benefit of those who cannot attend, as well as for those who find themselves torn between competing panels. As always, the program looks very strong.

To sign up for guest post(s), please email us. No technical expertise is required -- we take care of that for you.

Twitter updates would also be great. Following last year's success with #ASLH2015, we suggest the hashtag #ASLH2016

Looking forward to seeing many of you in Toronto! Travel safe.

Max Planck Summer Academy for Legal History

5719[We have the following announcement.]

Max Planck Summer Academy for Legal History 2017

Special Theme: Conflict Regulation
Date: 25 July - 04 August 2017
Deadline: Applications are to be sent by 31 March 2017.

The course 
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:

Max Planck Institute for European Legal History
Dr. Stefanie Rüther

Craig Replies to Hamburger's Reply

We’ve previously noted the posting on SSRN of the Columbia Law’s Philip Hamburger’s reply to a critical review by Paul P. Craig, University of Oxford, Faculty of Law of Professor Hamburger’s book, Is Administrative Law Unlawful?  Now comes Professor Craig’s rejoinder to Professor Hamburger’s reply.  It is entitled English Foundations of US Administrative Law: Four Central Errors:
Philip Hamburger posed a provocative challenge to administrative law in the USA, as attested to by the title to the book, which asked whether administrative law was unlawful. His thesis was grounded in English administrative law, as it developed in the seventeenth century and eighteenth centuries, when lawyers in the American colonies would have been familiar with it. It is central to Hamburger’s argument that much of administrative law concerning both rulemaking and adjudication was “extralegal” and was thus regarded by English law during this period. In an earlier article I argued that this thesis was wrong as adjudged by positivist and non-positivist sources alike.

Hamburger responded to my article, and took issue with the argument made therein. This article is a response to Hamburger’s latest offering. The flaws in Hamburger’s argument are even clearer now than hitherto, and there are numerous such mistakes. This article will, however, concentrate on four errors that are central to his thesis.

Tuesday, October 18, 2016

Sloss on the Death of Treaty Supremacy

New from Oxford University Press: The Death of Treaty Supremacy: An Invisible Constitutional Change (Oct. 2016), by David L. Sloss (Santa Clara University - School of Law). A description from the Press:
This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President. In 1945, the U.S. ratified the UN Charter, which obligates nations to promote human rights "for all without distinction as to race." In 1950, a California court applied the Charter's human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The exception permits state governments to violate NSE treaties without authorization from the federal political branches. The death of treaty supremacy has significant implications for U.S. foreign policy and for U.S. compliance with its treaty obligations.
A few blurbs of note:
"The Death of Treaty Supremacy makes a major contribution to our understanding of American constitutionalism. It demonstrates the evolutionary nature of constitutional law, identifies the complex practical forces that drive its evolution, and highlights yet another flaw in constitutional 'originalism.' It shows that historical changes have transformed the Constitution's meaning even on an issue where the 'original' meaning was actually clear and specific--that properly ratified treaties are 'supreme' over state law." -Edward A. Purcell Jr.

"David Sloss has written a fascinating case study on a central constitutional queýstion - how does the interpretation of the constitution change? Moreover, Sloss has taken as his example a pressing issue of contemporary constitutional debate- the role of treaties as domestic law in state and federal courts. His fine-grained and wide-reaching research and his thoughtful analysis benefits us all." -Judith Resnik
The introduction is available here, on SSRN.

The BHC Doctoral Colloquium in Business History

[We have the following announcement.]

The BHC Doctoral Colloquium in Business History will be held once again in conjunction with the 2017 BHC annual meeting. This prestigious workshop, funded by Cambridge University Press, will take place in Denver Wednesday March 29 and Thursday March 30. Typically limited to ten students, the colloquium is open to early stage doctoral candidates pursuing dissertation research within the broad field of business history, from any relevant discipline. Topics (see link for past examples) may range from the early modern era to the present, and explore societies across the globe.  Participants work intensively with a distinguished group of BHC-affiliated scholars (including at least two BHC officers), discussing dissertation proposals, relevant literatures and research strategies, and career trajectories.  Applications are due by 15 November 2016 via email to should include: a statement of interest; CV; preliminary or final dissertation prospectus (10-15 pages); and a letter of support from your dissertation supervisor (or prospective supervisor). Questions about the colloquium should be sent to its director, Edward Balleisen, All participants receive a stipend that partially defrays travel costs to the annual meeting.  Applicants will receive notification of the selection committee’s decisions by 20 December 2016.

Gonzalez Le Saux on the Chilean Legal Aid Service

Marianne Gonzalez Le Saux, a doctoral candidate in Columbia University’s Department of History, has posted Mediated Justice: Lawyers and Social Workers in the Chilean Legal Aid Service, 1932-1960s, which is forthcoming in volume 42 of Law and Social Inquiry:
This article deals with the history of the Chilean Legal Aid Service from its creation in 1932 until the 1960s, the institution that served as the main legal intermediary between the lower classes and the justice system. By focusing on how the Legal Aid Service’s professional staff — lawyers and social workers — used this institution to define their professional identity, and on how they conceived of their role as mediators, I argue that this institution promoted a system of legal intermediation that privileged conciliation over contentious litigation, and that it worked as a multiple-layered screen between popular demands and the justice system. This reveals why, in comparison to the progressive inclusion of the poor in new welfare state agencies in mid-twentieth century Chile, the judicial system appeared as a conservative and exclusionary force: legal aid had precisely for purpose that the most radical demands could not reach the courts.

Monday, October 17, 2016

Chandrachud on the Bombay High Court

Last year, Abhinav Chandrachud (Advocate, Bombay High Court) published An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862-1947 (Oxford University Press). From the publisher:
Cover for 

An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862-1947

In 2012, the Bombay High Court celebrated the 150th year of its existence. It functioned as a court of original and appellate jurisdiction during the British Raj for over 80 years, occupying the topmost rung of the judicial hierarchy in the all-important Bombay Presidency. Yet, remarkably little is known of how the court functioned during the colonial era. 
By examining the lives of the 83 judges--Britons and Indians--who served on the Bombay High Court during the colonial era, and by exploring the court's colonial past, this book attempts to understand why British colonial institutions like the Bombay High Court flourished even after India became independent. In the process, this book unravels the complex changes that took place in Indian society, the legal profession, the law, and legal culture during the colonial era.
Table of Contents after the jump.

Save the Date: "Legal History and Empires" in Barbados

[We have the following announcement.]

Following on (finally!) from the Legal Histories of the British Empire conference in Singapore  in 2012, we are pleased to announce "Legal History and Empires: Perspectives from the Colonized," jointly sponsored by  the Faculty of Law and Faculty of Humanities and Education, University of the West Indies, Cave Hill Campus, Barbados, 11-13 July 2018. A website and CFP will be announced in the new year.  It’s a way off, but as we know July is always busy, so here is a heads up! Save the Date!

For preliminary inquires please contact Shaunnagh Dorsett ( or Asya Ostroukh (

Sunday, October 16, 2016

Sunday Book Review Roundup

Here's a roundup of some legal history related book reviews published this week.  Those of you whose Sunday morning begins with a visit to the Legal History Blog may have noticed that it is tardy.  My apologies!

Reviewers and publishers are thinking about voting rights these days (I can’t imagine why…). In the NYRB, David Cole’s How Voting Rights Are Being Rigged covers Give Us the Ballot: The Modern Struggle for Voting Rights in America by Ari Berman and The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy by Zachary Roth. In The New Republic, Alan Wolfe takes on Roth’s book as well as Jason Brennan’s Against Democracy, which “argues for the establishment of an epistocracy, or rule by the wise.” (IQ tests at the voting booth? How could that possibly go wrong...?).

Also in the NYRBGerard Russell reviews three books on the recent political movements in the Middle East by Jean-Pierre Filiu,Thanassis Cambanis and Robert F. Worth. In the same issue, James McPherson reviews a new history of abolitionby Manisha Sinha and Ian Johnson reviews four books on the Cultural Revolution-- Guobin Yang’s The Red Guard Generation and Political Activism in China, Frank Dikötter’s The Cultural Revolution: A People’s History, 1962–1976, Yang Kuisong’s “Bianyuanren” Jishi [A Record of “Marginal People”]; an edited volume entitled Maoism at the Grassroots: Everyday Life in China’s Era of High Socialism, and The Secret Archives of the Cultural Revolution in Guangxi, an eighteen-part report on the Cultural Revolution made from 1986 to 1988 under the instructions of reformist Party leader Hu Yaobang.

In the NY Times, Adam Kirsch reviews Hitler: Ascent 1889-1939 by Volker Ulrich, who “sees his subject as a consummate political tactician, and still more important, as a gifted actor.”

In the Washington Post, Mary Louise Kelly, NPR’s National Security correspondent, reviews Rogue Heroes, Ben Macintyre’s “riveting new history” of Britain’s Special Air Service—or SAS. Macintyre’s book is also reviewed in The Guardian. Also in The Guardian, Colin Kidd summarizes Ron Chernow’s biography of Alexander Hamilton, which is being published for the first time in the UK as a “taster” for the musical’s opening in London in 2017.

In the Times Literary Supplement, Stephen Lovell reviews The Romanovs by Simon Sebag Montefiore, which has a “gossipy charm that readers will recognize from his earlier work” and as it looks into the “inner chambers” of the Russian dynasty.

In The Nation, Jedediah Purdy reviews John Judis’s The Populist Explosion: How the Great Recession Transformed American and European Politics and What Is Populism? Jan-Werner Müller’s take on populism in Western Europe.

In the LA Review of Books, Amy Brady reviews Richard Kluger’s, Indelible Ink: The Trials of John Peter Zenger and the Birth of America’s Free Press, which “tells the complex and thoroughly engaging history leading up to and including the moment of Zenger’s trial for seditious libel of a government figure,” and Stephen Rhode reviews two new books on the death penalty, Courting Death: The Supreme Court and Capital Punishment (which provides “a clear and comprehensive look at the 40-year modern history of capital punishment in the United States since its reinstatement in 1976”) and Against the Death Penalty (which provides an introduction to Justice Breyer’s dissenting opinion on the death penalty in Glossip v. Gross (2015) and “could chart the legal roadmap to ending this irreversible form of criminal punishment.”).

The LA Times features a review of The General vs. the President: MacArthur and Truman at the Brink of Nuclear War, H.W. Brands’ “highly readable take on the clash of two titanic figures in a period of hair-trigger nuclear tensions.”

This month’s issue of The Federal Lawyer features reviews of Mervyn King’s The End of Alchemy: Money, Banking, and the Future of the Global Economy (review by Christopher C. Faille), Melvin I. Urofsky’s Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (review by John C. Holmes), Nick Bunker’s An Empire on the Edge: How Britain Came to Fight America (review by proud Rhode Islander Neysa M. Slater-Chandler) and Shoba Sivaprasad Wadhia’s Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (review by R. Mark Frey). 

And in the New Rambler, Peter Conti Brown’s The Federal Reserve’s Big Bang and the Challenge of Institutional History covers America’s Bank: The Epic Struggle to Create the Federal Reserve by Roger Lowenstein. “By lacing his historical narrative with constant references to the recent financial crisis,” Conti-Brown says, “Lowenstein’s is a presentist history, visiting the past not as a foreign country but as the direct antecedent and guide to what we experience in the present.”

Saturday, October 15, 2016

Weekend Roundup

  • "The Heyburn Initiative for Excellence in the Federal Judiciary, in partnership with the University of Kentucky College of Law and UK Libraries, will establish an archives and oral history program for Kentucky’s federal judges and a national lecture series on relevant judicial topics.”  More
  • The John Marshall Law School announces that Professor Samuel Olken has been named the Edward T. and Noble W. Lee Chair in Constitutional Law for the 2016-2017 academic year.  In that capacity he will “research, write and speak on constitutional law,” with a special focus on “Chief Justice John Marshall's use of the preamble to interpret the interstices of the Constitution.”  More.
  • CFP: The Newberry Center for Renaissance Studies has a Call out for its 2017 Multidisciplinary Graduate Student Conference, which will showcase work on medieval, Renaissance, and early modern studies of Europe, the Americas, and the Mediterranean world. The deadline is very very soon: Oct.16!  Details here.

Update: John Fabian Witt, Yale Law School, will deliver the Hands Lecture, Adjudication in the Age of Disagreement, during a special session of the US Court of Appeals for the Second Circuit commemorating the 125th anniversary of the court at 4:00 p.m. on October 26 in the Thurgood Marshall Courthouse, 40 Foley Square, Room 1703, New York City.  H/t: SBG.

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

Friday, October 14, 2016

Giuliani on Comparative Legal History and the Antiformalist Turn (in Europe)

Adolfo Giuliani, University of Perugia, Facoltà di Giurisprudenza, has posted What is Comparative Legal History? Legal Historiography and the Revolt Against Formalism, 1930-60, which is forthcoming in Comparative Legal History: A Research Handbook in Comparative Law, ed. Aniceto Masferrer, Kjell Å Modéer, and Olivier Moréteau (Elgar 2016):
What is comparative legal history? This essay aims to show that to understand the rise of this field of inquiry we need first to clarify how historiography changes in time. To this purpose, this essay begins from two main ideas.

First, the writing of legal history is deeply intertwined with an image of law which tells us what is law, how it is created and by whom. This is in fact the premise for doing legal history, as it determines the object of investigation.

Second, the decades 1930-60 saw a profound turn in European legal science. Some legal scholars challenged the legacy received from the 19th century and launched an attack on the ‘formalism’ at the heart of its intellectual framework.

Those path-breaking insights gave life to a wave of works self-styled as comparative legal history published in the period 1930-60. At their heart were some of the innovative ideas that have fueled original legal-historical research in the last decades, and which today are shared as an obvious truth (e.g. to place law in context, to think outside the doctrinal box, the dislike of abstract theorising). They are the fruit of the antiformalist turn of the 1930-60.

Brenner and Knake on Shortlisted Women for the US Supreme Court

Hannah Brenner, California Western School of Law, and Renee Newman Knake, University of Houston Law Center, have posted Shortlisted, which is forthcoming in the UCLA Women's Law Journal:
Mildred Lillie fortunately had no children, as the New York Times noted in 1971, and even in her fifties, maintained “a bathing beauty figure.” Lillie was not, however, a swimsuit model. She was one of President Nixon’s possible nominees to the United States Supreme Court. “Shortlisted” tells the stories of nearly a dozen extraordinary women considered for the Court, but ultimately not nominated, before Justice Sandra Day O’Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly not selected, elected, or appointed to political office, corporate governance, the judiciary, law firm partnership, and other positions of power. We find that the stories of those women who did not attain these various power roles are as compelling as those who did. Our work builds upon and transcends previous scholarly work on the theory of the “leaking pipeline” — i.e. that women enter the profession in numbers equal to men but do not advance — and dispels the persistent myth that there is a dearth of sufficiently qualified women. The framework for this project, exploring decades of women shortlisted to the Court pre-O’Connor from Presidents Roosevelt to Reagan, allows gender bias to be viewed in a vibrant historical context and illuminates ideas for future advancement of women in law and beyond. "Shortlisted" explores the gendered experiences of this elite group of women — both professional and personal — and situates their stories within the context of gender, judging, and the legal profession. This project is one of first impression. We are the first scholars to identify and assess these women together in light of their shared experience of being shortlisted. Their individual and collective stories have largely gone untold. Until now.

Thank you, Gautham Rao!

A big thanks to Professor Gautham Rao for joining us as a guest blogger this past month. Links to his posts are below:
  • On the long, slow road toward publishing National Duties (University of Chicago Press, 2016): "Sigh, Argh, Whoa" (including getting the question “are you sure you want to do history?”)

Thursday, October 13, 2016

Waxman on Hughes and the Power to Wage War Successfully

Matthew C. Waxman, Columbia Law School, has posted The Power to Wage War Successfully, which is forthcoming in the Columbia Law Review:
Hughes, 1916 (LC)
A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. It was in that address that he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day — namely a national draft and intrusive federal economic regulation. It also shows, however, how he struggled unsuccessfully to define when war powers should turn off, or revert to peacetime powers. The story of Hughes’s defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of wars against transnational terrorist groups.
H/t: Legal Theory Blog

Desan's "Making Money" Reviewed

In case you missed them, a number of reviews of Christine Desan’s Making Money appeared recently.  Andrew Edwards, a Princeton graduate student, applied the book’s argument to the American revolutionary experience in Law and Social Inquiry.  Other reviews include Simon Middleton, University of Sheffield, in the Medieval Review, William Roberds, Federal Reserve Bank of Atlanta, in the Journal of Economic Literature, and Bruce Carruthers, Northwestern University, in the American Historical Review.

Lanni on Why Study Athenian Law?

Adriaan Lanni (HLS)
The Harvard Law School has posted a video of the lecture Why Study Athenian Law? Adventures in Institutional Design, which Adriaan Lanni delivered on the occasion of her appointment as the Touoff-Glueck Professor of Law.  The HLS website reports that Professor Lanni’s "teaching and scholarship combine her expertise in both criminal law and ancient legal history. At Harvard Law School, she teaches Criminal Law, Criminal Adjudication, and the Criminal Justice Workshop, as well as a variety of legal history courses on ancient Greek and Roman law."

Wednesday, October 12, 2016

Kuskowski to Penn History

We've just learned that the medieval legal historian Ada Maria Kuskowski has moved from Southern Methodist University to the University of Pennsylvania.  Professor Kuskowski’s webpage in Penn’s History Department is here.

Chicago Law and the "Tradition of Restraint"

Here’s a brief note that draws upon a few fugitive hours I spent recently in the Laird Bell papers at the University of Chicago, mostly for those who, like me, are Chicago law alumni. It is an exchange, as 1940 turned into 1941, between Laird Bell, a masterful lawyer and graduate of the University of Chicago Law School, and its then-dean Wilbur Katz  “I was admitted with some other lawyers into the presence of the Assistant Attorney General [Thurman] Arnold the other day in Washington,” Bell reported to Katz, “in a room suggestive of Mussolini’s famous office.  Arnold led off by saying that we had a great law school, that the boys were much more alert in their questioning than the students at Yale or Harvard, and that he was delighted with the atmosphere of the institution.”  In acknowledging Bell’s note, Katz asked whether Arnold had also said, as he had on other occasions, that the Chicago boys were “not as personable” as Yale or Harvard graduates.  “Less polished,” Bell answered, were the words Arnold used.  “He apparently felt that there was a tradition of restraint in the eastern institutions not so prevalent on the Midway.”

Tuesday, October 11, 2016

Tyler on the Habeas Corpus Act of 1679

Amanda L. Tyler, University of California, Berkeley School of Law, has posted A “Second Magna Carta”: The English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege, which appears in the Notre Dame Law Review 91 (2016):1949-1996, and is dedicated to her federal courts teacher, the late Daniel Meltzer. 
This Article tells the story of the English Habeas Corpus Act of 1679, which came in direct response to perceived failings by the royal courts and the common law writ to do enough to check executive excess at the expense of individual rights. Unearthing the story of the backdrop against which the Act was passed and tracing its role in English law going forward reveals that the Act was enormously significant in the development of English law’s habeas jurisprudence — far more so than most jurists and scholars recognize today. Further, extensive evidence of the Act’s influence across the Atlantic dating from well before, during, and after the Revolutionary War demonstrates that much of early American habeas law was premised upon efforts to incorporate the Act’s key protections rather than developed through judicial innovation. Further, there is every reason to believe that the Act, along with its suspension by Parliament on several occasions in the late seventeenth and eighteenth centuries, established the suspension model that the Founding generation imported into the United States Constitution’s Suspension Clause. Accordingly, in tracing the Anglo-American development of habeas corpus jurisprudence, it is important to account for the statutory roots of the habeas privilege, particularly because statutory developments were designed in important respects to alter and constrain the common law courts’ approach to habeas corpus and harness the common law writ toward specific ends.

Monday, October 10, 2016

Hamburger Replies to Craig's Critique of "Is Administrative Law Unlawful?"

Philip Hamburger, Columbia University Law School, has posted English Experience and American Administrative Power, which is forthcoming in the Missouri Law Review:    
What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the pond. His two main arguments concern the English history of prerogative and administrative power – though in addition he makes a conceptual point about the distinction between legislative and judicial power. It will be seen that Craig’s account repeatedly misunderstands the history and even the conceptual framework.

Nonetheless, his article usefully draws attention to some important issues. This therefore is a good occasion not simply to respond, but more broadly to explore the constitutional significance of English prerogative and administrative power.

This Article is organized around the issues raised by Craig. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative – in other words, that both sorts of power have bound subjects through extralegal edicts – and this extralegal power remains a problem regardless of statutory authorization and limits.

(II) Against my thesis that the English constitution developed in response to extralegal power, Craig points to the existence of seventeenth- and eighteenth-century English “administrative” power. My book also points to this administrative power. Craig, however, relies on its mere existence to suggest that the English constitution did not repudiate extralegal power. This is utterly mistaken. The English constitution clearly included ideals against extralegal power, even though (as my book observes) the English did not apply them systematically – especially not to localized administrative power. The existence of mostly localized administrative power therefore does not undermine my conclusion about the English constitutional rejection of extralegal power.

(III) Against my argument about extralegal power, Craig notes that the distinction between legislative and judicial power can break down at the edges. His observation is not unreasonable. But it is irrelevant, as my argument about extralegal power does not depend on this distinction.

Along the way, this Article also addresses three related but more broadly framed questions. First, how can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Second, how did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? Third, how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles?

In sum, Craig’s conclusions about English prerogative and administrative power are simply mistaken. In both England and America, constitutional principles developed in response to the danger of extralegal power, as exemplified by the absolute prerogative. Although the English did not directly apply these principles their inherited and mostly localized administrative power, Americans in the U.S. Constitution pursued their constitutional principles more systematically.

The State the Slaveholders Made

My first book is out.  It finally exists.  I have to remind myself every morning that I cannot keep working on it.  It is time to move on.  So what’s next?

My next book is tentatively entitled Slavery’s Leviathan: Runaways, Fugitives, and the Slaveholders’ State, 1650-1865.  As the title might suggest, it is chiefly about the creation and practices of laws aimed at recovering runaway and fugitive slaves in the American south from the colonial era through the Civil War.  The project hinges on the basic fact that from the mid-seventeenth-century through the American Civil War, the labor and vigilance of elite slaveholders alone was far from sufficient to police and keep intact the coercive foundations of the master-slave relationship.  Rather, as enslaved persons asserted their humanity in the acts of running away, achieving fugitive status, and demanding freedom, slaveholders and their political allies understood that they required the assistance of the white population in their communities—and in far-flung communities—to preserve the legal status of slaves.  Put another way, to secure a political economy built upon the extraction of African-American labor power, slaveholders would need to extract the labor power of able-bodied free white men to prevent and police runaways and fugitives.  Slaves’ pursuit of humanity and freedom thus made slaveholders constitute and dependent upon public power, and necessitated the construction of a state capable of demanding and securing the labor power of white men.

So a baseline assumption for me is that the construction of this state was necessary because of the actions of the enslaved.  As they contested the terms of their enslavement through any number of actions but especially through taking flight, and as they crossed jurisdictional borders, they triggered a series of crises.  At the simplest level they threatened to disrupt some part of the labor process and its organization.  By taking flight, they also posed a living challenge to the very legal conditions of their enslavement.  For planters and their allies, the runaway slave also invoked the specter of an armed insurrection—a specter that burned ever brighter after the events, real and imagined, of the Haitian Revolution, as several scholars have established (most recently by Alec Dun in his outstanding Dangerous Neighbors: Makingthe Haitian Revolution in Early America).  None of this is my discovery, of course.  Most all of these dimensions of the material, historical, and moral problem of the runaway slave have been discussed masterfully by legions of scholars, especially John Hope Franklin and Loren Schweninger in Runaway Slaves: Rebels on the Plantation, and Rebecca Scott and Jean Hebrard in FreedomPapers: An Atlantic Odyssey in the Age of Emancipation.

Because of the enormity and strength of the literature on the enslaved and their journeys through space and time, my book will be less about the enslaved and more about the enslavers.  We’ve come a long way from the times when slaveowners were understood to be inherently opposed to the use of state power simply because they opposed the federal government’s regulatory power.  I read Walter Johnson’s monumental River of DarkDreams: Slavery and Empire in the Cotton Kingdom, for instance, to be about how plantation owners in the Mississippi Valley forged a public power that was suitable to the scope of their enterprises.  Put another way, it required an enormous release of capital and energy to spatially remake an entire region into a “carceral landscape.”  Likewise, Sally Hadden’s excellent book Slave Patrols: Law and Violence in Virginia and the Carolinas illustrates the limits and possibilities of slaveowners’ public powers in deploying groups of white men for the specific legal purpose of apprehending runaway and fugitive slaves.  Jordan Grant, an American University doctoral student in history, is now hard at work on a remarkable dissertation that explains the emergence of the “slave catcher” in nineteenth-century America.

All of the layers of governance of that became required the assistance of the white populations that lived adjacent to or nearby plantations or urban areas with large slave populations.  Going back to the seventeenth century, statutes aiming to curb runaway slaves tried to provide incentives for white residents of slave societies to assist in preventing, apprehending, and renditioning runaway slaves.   Consider for instance how Maryland’s 1676 “Act Relateing [sic] to Servants and Slaves” aiming to police “Serants Runawayes” offered tobacco to locals and those in other colonies to “take upp such servants or Runnawayes.”  Consider, too, the Fugitive Slave Clause of the United States Constitution: “If any Person bound to service or labor in any of the United States shall escape into another State, He or She shall not be discharged from such service or labor but shall be delivered up to the person justly claiming their service or labor.”  In no less than the Constitution, then, the phrase “shall be delivered up to the person justly claiming their service or labor” suggests the intervention of people other than the solicitous slaveowner.  In the early republic, southern states would enact numerous laws and that continued to grant awards of cash or commodities to whites that assisted in giving life to anti-runaway legislation while also criminalizing the acts of aiding or abetting runaways.

I believe that the legal institution at the heart of this project is known as the posse comitatus, or the “power of the county,” which dated back to early modern English common law, and which referred to the uncompensated, obligatory requirement that able-bodied males serve as deputies to constables or other officers when called upon to serve.  As I have argued in an early exploration of this project some years ago, the posse comitatus migrated to North America in the seventeenth-century and became an important part of the framework of law enforcement in the American colonies and states through legislation that sought to prevent riots.   But a key aspect of the posse comitatus was that it was compulsory.  At least as a legal concept, a white, able-bodied male could not say no to the demands of the law.  This was why it proved so important as a foundation for the legal regime that slaveholders built to police runaways: it was always there and required obedience at all times.  Indeed, the Fugitive Slave Law of 1850 invoked the specific language of the posse comitatus as the south pushed this vision of citizenship upon the nation. 

Since I recently completed National Duties, I am only just beginning to dive in to the research and writing of this book.  Right now I envision that it will span the eighteenth century through the Civil War.  I am planning chapters that deal with the posse comitatus in the law of slavery, the forging of moral obedience as a key aspect of white southern citizenship, and studies of the posse in practice: in the Kentucky-Ohio borderlands, in ports active in the slave trade, in northern states and abroad, and during the Civil War.  I am extremely fortunate that legal historians and others have written so much outstanding scholarship on topics that touch on the issues that constitute the spine of this project.  Indeed the field has changed so drastically since I began thinking about these issues in graduate school that I am still trying to cobble together a working bibliography that does justice to these growing historiographies.  As I continue to work on the project, I hope to check back in with you through the LHB and other venues to let you know where my ideas and research have gone.

In the meantime, I want to give a heartfelt thanks to the editors of the LHB—Dan Ernst, Mitra Sharafi, and Karen Tani—for inviting me to share my work with you.  I also want to thank the incredible readers of the blog who have been so generous with their time in reading and responding to my posts.  I’ve learned so much and continue to be amazed at the amazing community of collegial and driven scholars that surround the blog.  So thanks again, everyone!