OAH Merle Curti Award, Ellis W. Hawley Prize to Penningroth for "Before the Movement"

At the annual meeting of the Organization of American Historians, Dylan Penningroth (UC Berkeley) came away with two big book awards: the Merle Curti Social History Award ("recognizing the best book in American social history") and the Ellis W. Hawley Prize ("recognizing the best book-length historical study of the political economy, politics, or institutions of the United States, in its domestic or international affairs, from the Civil War to the present"). 

His prize-winning book is Before the Movement: The Hidden History of Black Civil Rights (Liveright).

From the Merle Curti Award Committee: 

Beautifully written, deeply researched, and brilliantly argued, Before the Movement shows how Black people used the law in everyday ways that shaped how they lived as people. Through painstaking research in county legal records, Dylan Penningroth, University of California,  Berkeley, shows how Black litigants invoked the right to property and the right to contract to secure civil rights—a process that historians have overlooked because of modern conceptions of civil rights as distinct from private law. But not only did Black people engage with the law as an act of resistance against white supremacy but they also used the law, sometimes against one another, to secure everyday gains. Penningroth urges us to see Black history as more than a story of resistance. This is an agenda-setting book that both transforms how we think and teach about slavery, segregation, and civil rights, and also provides a model for how to use legal sources in social history.

From the Ellis W. Hawley Prize Committee:

In this beautifully written book, Dylan C. Penningroth shows how ordinary African Americans used the law in their everyday lives from the last decades of slavery to the 1970s. Even during the height of Jim Crow, indeed, even during slavery, Black people exercised a wide range of civil rights—what Penningroth calls “the rights of everyday use,” embedded in contract, property, marriage, and inheritance law. Through extensive archival research, conducted in courthouse basements, Penningroth unearths this neglected history of the movement. The book centers the story of Black people who knew, understood, and used the law generations before the mass marches of the 1950s and 1960s. Penningroth also engages readers by weaving in the narrative of his own family. This extraordinary book shifts our focus from federal courts to county courts, and from iconic leaders to ordinary people. Its excavation of the long history of Black legal life will broaden and transform our understanding of African Americans’ fight for justice.

Congratulations to Dylan Penningroth!

-- Karen Tani

Dissertation Prize: European Legal History in Global Perspective

[We have the following announcement.  DRE]

Max Planck–ASLH Dissertation Prize for European Legal History in Global Perspective

Announcement and Deadline for Submissions:  June 1, 2024
 
The American Society for Legal History (ASLH) is delighted to announce a new dissertation prize: the Max Planck–ASLH Dissertation Prize for European Legal History in Global Perspective.
 
The prize will honor exceptional dissertations on topics in European legal history in global perspective and presented for PhD or JSD degrees awarded in the previous calendar year. Topics may include European legal interactions with people or places outside Europe, legal processes spanning Europe and other world regions, and developments in legal theory closely related to imperial, transnational, or trans-regional trends.
 
The prize this year is for dissertations submitted for degrees awarded in 2023. Dissertations must be written in English. The prize recipient will receive a three-month residential fellowship at the Max Planck Institute for Legal History and Legal Theory in Frankfurt. The fellowship includes a monthly stipend, in accordance with the regulations of the Institute’s visitor program, round-trip airfare to Frankfurt (up to €1,500), and accommodation in an institute apartment (valued at €700 per month). Currently, the monthly stipend is €2,500 for scholars with a PhD or JSD, and an additional €100 allowance for mandatory health insurance. The stipend will be offset against other sources of income. The timing of the period in residence at the Max Planck Institute is flexible and will be arranged in consultation with the Institute directors. Typically, the three-month period will take place in the fall or spring within a year or two of the date of the award.
 
Elements of Submission
(1) Curriculum Vitae (including date of degree);
(2) Plan for Use of Fellowship Time at the Max Planck Institute (up to 500 words);
(3) Dissertation (including abstract); and
(4) Letter from Dissertation Advisor
 
Please submit items 1-3 in a single pdf. The Dissertation Advisor should submit the letter of recommendation directly.
 
All application materials should be sent to mpdissertation@aslh.net
 
The deadline for submissions is June 1, 2024. Only complete submissions will be considered.
 
Questions? Write to Barbara Welke (welke004@umn.edu)

Doing History After Dobbs

A forum, Doing History After Dobbs: Applications, Implications, and Critiques of Dobbs's Historical Methodology, which originated in a panel at the annual meeting of the American Society for Legal History last fall, is now out in the Yale Law Journal.  The contributions are:

Making History
Melissa Murray

Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Aaron Tang

The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
Reva B. Siegel

The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
Mary Ziegler

History and Tradition’s Equality Problem
Cary Franklin

--Dan Ernst

Weekend Roundup

• Via Time: Serena Mayeri (Penn Carey Law) on Trump's misleading refusal to endorse a nationwide abortion ban; Kevin Kenny (New York University) on Texas's effort to "upend who controls U.S. immigration policy."

• Also from Kevin Kenny -- in Muster (from the Journal of the Civil War Era) -- "How the Federal Government Came to Control Immigration Policy and Why It Matters."
  

• A report on the chair lecture of Harvard Law School professor Elizabeth P. Kamali, "on the development of 13th century English felony law through the lens of historical artifacts" (Harvard Crimson).
  

• The latest podcast in the series of Historical Society of the New York Courts on articles published in Judicial Notice is with John Q. Barrett and Henry “Hank” M. Greenberg on Benjamin N. Cardozo.  “Together, they explore lesser-known stories of Cardozo’s life, emphasizing his sense of humor and his writing style.” 
  

• Gunpowder, treason and plot: the 1,000-year history of traitors and faithfuls, a notice The Rise and Fall of Treason in English History by Allen Boyer and Mark Nicholls (St John’s College, University of Cambridge).
  

• An interview with Annette Gordon-Reed on on Book Banning, Originalism, and "Hamilton" (FM).
  

• The ABA Commission on Women has conferred its Margaret Brent Prize on Dolores Atencio, visiting scholar at the University of Denver Latinx Center in the Sturm College of Law, who “created the national legal history project Luminarias de la Ley/Luminaries of the Law™ to identify and chronicle the accomplishments of Latina lawyers.”
  

• The New York State Library in Albany will host a webinar, on The Sewing Girl's Tale: A Story of Crime and Consequences in Revolutionary America (Holt, 2022), with the author John Wood Sweet, on Wednesday, April 24, 2024 from noon until 1 pm (New York Almanack).
  

• We did not realize that the Journal of American History has a podcast.  The latest episode is an interview of Yevan Terrien on Enslavement, Freedom, and Belonging in Early New Orleans.
  

• We were interested to learn recently of the archives of the Feminist Legal Theory Project at Emory University.  A presentation by visiting scholar Samuel S. Burry, on the value of the archive for his research is here.
  

• We were impressed by a thread illustrating how GPT-4 could be used to modernize a page of an Admiralty Court deposition from 1635 @Marinelives.org
  

• On Thursday, May 16, 2024, from 4:30 - 6:30pm, Philip Stern, Duke University, will deliver a British History Lecture, Empire, Incorporated: The Corporations that Built British Colonialism, in the Lane History Corner, Room 307, Stanford University.  Register to attend via Zoom here.

• In May 2025, the McNeil Center for Early American Studies at the University of Pennsylvania will convene a conference on the theme Where is Early America? The call for papers is available here. 
  

• Another "Save the Date": Legal Histories of Empire 2025, July 10-12, 2025, at the University of Toronto.  The CFP is forthcoming.
  

• ICYMI: Andrew Silow-Carroll on how a 100-year-old law changed American immigration policy to this day (JTA).  Joan Biskupic went into Justice O’Connor's papers and came out with some documents on the writing of Chevron (CNN).  The truth about the Comstock Act (American Prospect).  That 1864 Arizona abortion law, via the AZ Mirror, NPR, WaPo, and the NYT.  A student on that digital habeas corpus project at the University of Nebraska.  An appreciation of Kellis E. Parker, the first Black professor at Columbia Law School (CLS).
  

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

Book Launch: Arbitration and Mediation in 19th-Century England

We have word of a book launch for Arbitration and Mediation in Nineteenth-Century England by Francis Calvert Boorman and Rhiannon Markless:

Arbitration and Mediation In Nineteenth-Century England rounds off Derek Roebuck’s series on the history of English arbitration, and is written by his collaborators on the previous volume, English Arbitration and Mediation in the Long Eighteenth Century, Francis Calvert Boorman and Rhiannon Markless. Arbitration remained a vital institution in nineteenth-century England and we investigate how the settlement of disputes changed from the end of the Napoleonic Wars to the Arbitration Act 1889. This was a period of upheaval in the demographics, society and economy of England. The booming population, coupled with urbanisation and the spread of factory production, created newly enriched industrialists, a burgeoning working class and squalid urban conditions. The spread of new technologies such as the railways increased mobility and brought new business organisations and opportunities. England’s production and international trade flourished, along with its imperial ambitions. All of these changes led to new forms of dispute to go with the age-old differences over land and debts, and within families. We explain how arbitration continued to be used and was adapted to suit novel and diverse challenges, including an overloaded legal system, the rise of anonymous credit transactions and an increasingly organised labour movement. We chart the relationship of arbitration to the legal profession and the commercial community, with their differing visions of how arbitration should be structured and regulated. We also describe the expanding use of arbitration as a tool of governance, increasingly included in statutes with both a local and national focus. Finally, we take an international perspective, considering how arbitration was touted as a method to bring peace between nations, but was also deployed in various aspects of the slave trade. Most importantly, we seek to elucidate the varied experiences of both parties, from aristocratic mine-owners to widowed businesswomen, and arbitrators. We show how these arbitrations differed by region and were affected by the gender and class of participants.

The book launch will take place at the Institute of Advanced Legal Studies, School of Advanced Study, University of London at Charles Clore House, 17 Russell Square, London, WC1B 5DR, on Thursday, 9 May 2024, from 6pm.  The authors will introduce and discuss the book in a session chaired by Karyl Nairn KC and including time for questions from the audience.  “A drinks reception will follow.”  Direct questions to development@london.ac.uk.  Reserve your place here.

--Dan Ernst

Podcast: Goluboff Interviews Nicoletti and Milligan

The University of Virginia School of Law has just posted a new episode in its “Common Law” podcast, a series in which Dean Risa Goluboff discusses recent scholarship with its authors on the UVA faculty.  It is entitled Digging into Our Forgotten Legal History.

In the season’s fifth episode, released Tuesday, Professors Cynthia Nicoletti and Joy Milligan talk with host Dean Risa Goluboff, who is also a legal historian, about two of their articles that share something in common: both show instances of people and institutions using the law to preserve the status quo against movements that were trying to improve conditions for Black Americans.

Yet the professors took distinctly different paths during the process of researching and writing about legal history. The trio discuss their decisions to focus on institutions versus people, “historical forgetting,” how the present affects our ideas of the past and the pitfalls of bringing historical work to bear on today’s concerns.

Nicoletti, the Paul G. Mahoney Research Professor of Law and a professor of history at UVA, discusses her paper “William Henry Trescot: Pardon Broker,” which was published in The Journal of the Civil War Era. The paper won the 2021 George and Ann Richards Prize for the best article published in the journal that year. Trescot, a lawyer and lobbyist for the South Carolina Lowcountry elite whites, helped his clients obtain pardons after the Civil War to avoid having their land redistributed to formerly enslaved people.

Milligan, the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, discusses her paper “Subsidizing Segregation,” published in the Virginia Law Review. The article exposes how the federal government played a role in extending racial segregation and discrimination by funding segregated schools up to 10 years after the Brown v. Board of Education decision outlawed “separate but equal” education.

--Dan Ernst

Fadel on Classical Muslim International Law

Mohammad Fadel, University of Toronto Faculty of Law, has published, open access, Sovereignty, Territoriality, and Private International Law in Classical Muslim International Law in the American Journal of Comparative Law:

Scholars in recent years have shown interest in challenging the historical origins of international law and its normative claims to universality. This Article challenges the prevailing conceptions of Islamic international law (al-siyar), first set out in English-language scholarship by Majid Khadduri, as primarily an ad-hoc response to the failed aspiration of a universal Muslim commonwealth. It shows that Islamic international law, in its classical phase (eighth–thirteenth centuries), as first formulated by Iraqi, and later, Central Asian, scholars (who together later came to be known as Hanafis), understood all legal order as being rooted in sovereignty and territoriality, with shared religion a secondary concern. This theory of legal order arose out of an understanding of political order as emerging from a natural and universal condition of war that is incidental to the individual’s natural sovereignty. I trace the genealogy of this conception to the founding moment of the Muslim commonwealth and describe its manifestation in classical Hanafi solutions to a series of cases in “private international law.”

--Dan Ernst

Tully, "The Unenumerated Power"

Caitlin B. Tully (Golieb Fellow, New York University Law) has posted "The Unenumerated Power." The article is forthcoming in Volume 111 of the Virginia Law Review (2025). The abstract:

Scholars and courts have long viewed unenumerated powers and rights as constitutionally dubious. This skepticism has produced far-ranging effects: most recently, it has undergirded the Court’s invalidation of privacy rights. Many others have contested the presumption against unenumerated law, including a recent wave of scholarship which criticizes “enumerationism.” These efforts have been hampered, however, by the fact that they are unable to point to a concrete example of a tacit power or right that is entirely independent from an enumerated power or right.

This Article demonstrates – for the first time – that at least one such power exists: the power to charter corporations. Trillions of dollars circulate through the federal corporate form. Yet scholars often assume that the Constitution has nothing to say about corporations. The doctrine of federal incorporation, meanwhile, is confused: courts analogize federal corporations to state corporations or federal agencies, despite obvious inconsistencies, or avoid them altogether. As this Article demonstrates, however, the Framers understood the power to charter as an independent power with its own prerogatives and limits, and there was little doubt about the power’s constitutionality following ratification. In fact, as this Article shows, the Marshall Court constructed doctrine defining this pre-existing power across three cases: Dartmouth College v. Woodward, McCulloch v. Maryland, and Osborn v. Bank of the United States, establishing an independent threshold for the creation of federal corporations: “constitutional” purpose. Congress has effectively relied on this tacit, but independent, legal power for over two centuries.

This Article provides the first comprehensive account of the doctrine of federal incorporation and its current use, as well as an index of all federal corporations from the Founding to the present. In addition, this Article makes two important interventions. First, by clarifying the legal basis of federal incorporation, the existence of the charter power may offer alternative rationales for the constitutionality of federal legislation; alternatives to existing constructions of administrative law; and a coherent way to analyze large transactions which currently defy categorization. Second, as the current Court considers whether to invalidate existing jurisprudence which endorses “implied” rights, the existence of the charter power cuts against the theoretical case for doing so. Challenging the presumption against the legitimacy of unenumerated powers and rights, the charter power demonstrates that, in at least one case, a “silent” power was concrete, constrained, and original. 

The full article is available here.

-- Karen Tani

Ohanian on the Cardozo-[Cuthbert] Pound Correspondence

Edward J. Ohanian, Assistant Deputy Clerk at the New York State Court of Appeals, has posted Letters from Cardozo to Pound, in the Albany Law Review.  From the introduction:

Benjamin N. Cardozo (NYPL)

Judges Benjamin N. Cardozo and Cuthbert W. Pound are towering figures in the landscape of New York jurisprudence. A descendent of Pound donated to the New York State Court of Appeals (the Court) correspondence from Cardozo to Pound spanning the period from 1932-1934 when Cardozo sat on the United States Supreme Court (the Supreme Court), and Pound served as Chief Judge of the Court—having been appointed by Governor Franklin D. Roosevelt to succeed Cardozo in that role upon Cardozo's appointment to the nation's high court. These missives, penned in an endearing and witty style characteristic of Cardozo's private correspondence, shed light on both Cardozo's sentiments upon leaving the Court to assume his new role in Washington—along with his well-documented preference for Eagle Street—and the enduring friendship and mutual admiration between Cardozo and Pound.

--Dan Ernst.  M/t: JQB

Historians' Brief in Trump v. United States

Brief of Amici Curiae Scholars of the Founding Era in Support of Respondent”is out in Trump v. United States (U.S. No. 23-939).  Part 1 argues that “Petitioner’s Immunity Claim Contravenes Overwhelming Historical Evidence of a Founding Generation Concerned with Abuse of Executive Power.”  The signatories are Holly Brewer, Rosemarie Zagarri, Jack N. Rakove, Jonathan Gienapp, Jane Manners, Gautham Rao, Saul Cornell, Alexander Keyssar, Jane E. Calvert, Joanne Freeman, David Konig, Jill Lepore, Peter S. Onuf, Michael A. Ross, and Alan Taylor.

--Dan Ernst

Knowles-Gardner on NAACP v. Alabama ex rel. Patterson

Helen J. Knowles-Gardner, Institute for Free Speech, has posted The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP:

Harry Kalven (wiki)

Sixty years ago, on Wednesday April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized NAACP v. Alabama ex rel. Patterson (1958) as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, this article argues that Kalven’s categorization of Patterson (and the three other U.S. Supreme Court rulings it ultimately took to ensure Alabama’s compliance with the 1958 decision) was mistaken. Instead, the litigation was designed and intended to put the NAACP out of business (which, in Alabama, it did for eight years).

Part of an extensive research project focused on the history of this protracted litigation, this article is narrowly focused on the two years leading up to, and the first few months following, the June 1, 1956, injunction preventing the NAACP from doing business in the state that Alabama’s Attorney General John Patterson secured from Montgomery County Circuit Court Judge Walter B. Jones. Ultimately, that injunction led to an effort to compel the NAACP to turn over its Alabama membership lists to the Attorney General. To borrow and only slightly change Jason Robards’s famous line in All The President’s Men, nothing was riding on this litigation except the First Amendment, which guarantees the right to peaceably assemble, and the future of the country.

--Dan Ernst

Weekend Roundup

• Penn Law Dean Sophia Lee discusses "her work as a legal scholar and historian of administrative law" (Regulatory Review).  And outgoing UVA Law Dean Risa Goluboff reflects on her tenure (UVA Today).
  

• Congratulations to Bethany Berger upon her receipt of the Perry Zirkel ’76 Distinguished Teaching Award at UConn Law (UConn Today).
  

• Christine Lamberson, Director, Federal Judicial History Office, has a post on Chy Lung v. Freeman: Anti-Chinese Sentiment and the Supremacy of Federal Immigration Law on the FJC website.
  

• Jacob Coffelt  University of Padova, on Codifying IHL before Lieber and Dunant: the 1820 treaty for the regularization of war (Humanitarian Law & Policy).
  

• Joy Milligan and Bertrall Ross, UVA Law, “discuss how we should interpret a Constitution that was not written for or drafted by ‘We the People,” on the Sidebar podcast.

• Prairie View A&M history professor Ronald Goodwin discussed the early Republic and how Americans tried to define equality and interpret the Constitution in the first decades of the United States. (C-SPAN)
  

• Jedidiah Kroncke reviews Aziz Rana's The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (Jotwell).
  

• We recently discovered The Aotearoa History Show, a podcast of Radio New Zealand devoted to "the story of New Zealand and its people from its geological origins to modern day."  Episode 2:6 is on the Native Land Court.  Episode 2:12 is on Woman Suffrage. 
  

• George Fisher, Stanford Law School , discusses his latest book, Beware Euphoria: The Moral Roots and Racial Myths of Today’s War on Drugs, a history of criminal law and criminal institutions, including the regulation of alcohol and drugs (Legal Aggregate).
  

• The April 2024 issue of the Newsletter of the Historical Society of the DC Circuit is now available. 
  

• ICYMI:  Judge John Bush of the US Court of Appeals for the Sixth Circuit said the originalist approach to interpreting text “is consistent with, and indeed will thrive” with advancements in AI (Bloomberg).  Mississippi’s Jim Crow Laws Still Haunt Black Voters Today  (Marshall Project). Sponsors of removed historical marker dedicated to Elizabeth Gurley Flynn ask judge to reconsider (Concord Monitor).
  

• ICYMI, April Fools Edition: Dueling, the Second Amendment, and the Fifth Circuit (Dorf on Law). 
  

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

Springer on Contracts and Homophile Legal Strategy

Jackson Springer, a 3L at Columbia Law School, has published his note, Contracts and Homophile Legal Strategy, in the Columbia Law Review.

One Magazine (USC)

Law was central to the homophile movement, the main movement for queer rights between World War II and Stonewall. But examinations of this movement’s engagement with law have exclusively focused on public law. Private law has received virtually no attention. This Note corrects that oversight. It unearths instances in which groups advocating for queer rights invoked contract law during the 1950s and 1960s. These moments reveal contract law’s important—and previously overlooked—role in homophile legal strategy.

Homophile groups’ use of contract law changed over the two decades of the movement. During the 1950s, those in the homophile movement used contract law to avoid legal disputes—a sort of “preventative law” that shielded queer people from the outside world’s scrutiny. But after the movement’s militarization in the early 1960s, queer organizations began making affirmative claims based in contract law. These claims served two purposes. On one hand, they were a tool queer people used to protect their public law rights when those rights were under attack. But organizations also saw the assertion of contract law rights as a goal itself—a key part of queer people’s growing rights consciousness.

This Note thus gives contract law its rightful due in the history of homophile legal strategy. Its findings demonstrate that private law should play a larger role in both our study of social movements’ legal strategy and our vision of a future in which marginalized groups have full equality under the law.

The Note draws upon the archives of ONE Magazine, “the United States’ first widely distributed queer publication.”

--Dan Ernst

ICS Seminar: Legal History of the Warren Court

Earl Warren (Bancroft)

 [We have the following announcement.  DRE]

The Institute for Constitutional Studies is pleased to announce another seminar for advanced graduate students and junior faculty, Legal History of the Warren Court.  

Instructor.  Brad Snyder is a Professor of Law at Georgetown University Law Center. He teaches Constitutional Law I & II, Constitutional History, Civil Procedure, Sports Law, Legal Justice, and a seminar on the Warren Court. He is the author of Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, The House of Truth: A Washington Political Salon and the Foundations of American Liberalism, A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports, Beyond the Shadow of the Senators: The Untold Story of the Homestead Grays and the Integration of Baseball, and The Bondage of Irrational Fears: Angelo Herndon’s Fight for Freedom (forthcoming January 2025).

Program Content.  This seven-session seminar looks at the Warren Court from a historical perspective. Guided by articles by legal historians, we will explore the Court’s major cases and issues in their historical and political context: school desegregation, the Little Rock school crisis, denaturalization, access to justice, prayer in schools, redistricting, civil rights sit-ins/freedom of the press, right to privacy/access to contraception, criminal justice, and interracial marriage. We will also discuss the strong personalities and jurisprudential philosophies of the Justices and how alliances, conflicts, and new Justices affected the Court’s decisionmaking.

Logistics.  Meeting Time: Monday evenings, 6-8 pm.  Dates: August 26; September 9, 16, 23, and 30; October 7, and 21, 2024.  Location: The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until June 30, 2024. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Balkin's Parable of Constitutional Fidelity

Jack M. Balkin, Yale Law School, has posted Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity in Boston University Law Review:

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

--Dan Ernst

JAH 110:4

[Journal of American History 110:4 (March 2024) is of unusual interest for legal historians.  (I expect to assign the first article when I teach Johnson v. McIntosh in my first-year Property course next spring.)  Below I reproduce summaries of the principal articles from an email to subscribers from the JAH's publisher, the Organization of American Historians.  DRE.]

Managing Settlers, Managing Neighbors: Renarrating Johnson v. McIntosh through the History of Piankashaw Community Building

The 1823 Supreme Court case Johnson v. McIntosh drew from a 1775 negotiation between land speculators and Peeyankihšiaki (Piankashaw people) to subjugate Indigenous sovereignty to the powers of Congress. This negotiation is usually framed as a “purchase,” but Joshua A. McGonagle Althoff makes clear that Peeyankihšia people intended to negotiate the right to live within, rather than own, their homelands. Moving away from the idea of a “purchase” reveals how Peeyankihšiaki were preparing for prosperity, not declension.

The “Profane Margins” of the State: Florida Sheriff Walter R. Clark and the Local History of Crime, Policing, and Incarceration

Sheriff Walter R. Clark of Broward County, Florida, used his office to enforce white supremacy, procure labor for local businesses, bolster the illegal gambling industry, and line his own pockets for nearly two decades in the twentieth century. Like other sheriffs, he was also central to the local workings of the state: policing the county, administering the courthouse, and more. Considering Clark in a long historical context from the Jacksonian Era to the present, Cindy Hahamovitch makes the case for the importance of sheriffs and local government in American life.

The Origins of the Student Loan Industry in the United States: Richard Cornuelle, United Student Aid Funds, and the Creation of the Guaranteed Student Loan Program

Britain Hopkins contributes to understandings of the origins of the student loan industry and student loan indebtedness in the United States. The article highlights how private organizations and actors worked with the Johnson and Nixon administrations to establish student loans as a primary means of funding higher education. These private-federal partnerships increasingly sought to commodify student loans on financial markets, thereby tethering access to higher education to previously excluded groups to market incorporation.

Exposing the Masculinist Narrative in Federal Antislavery Law: A History of U.S. v. Tony Booker (1980)

American antislavery law long denied the problem of sexual assault in slavery. Karin Zipf extends the historiography of American slavery in an analysis of late twentieth-century farm worker slavery cases. Zipf examines the testimonies of male and female farm workers to expose the masculinist narrative in federal antislavery law. Zipf demonstrates the law’s gendered limitations in its masculinist meanings of migrant slavery violence, insensitivity to women’s fieldwork experiences, and subliminal endorsement of racist stereotypes of Black women.

Webb on the Lost History of Judicial Restraint

Derek Webb,  Senior Research Scholar at the Yale Law School, has posted The Lost History of Judicial Restraint, which is forthcoming in the Notre Dame Law Review:

James Bradley Thayer (wiki)

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases.

It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies.

My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country.

This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

--Dan Ernst

Mikhail on Holmes, Legal Realism and Experimental Jurisprudence

My Georgetown Law colleague John Mikhail has posted Holmes, Legal Realism, and Experimental Jurisprudence, which is forthcoming in The Cambridge Handbook of Experimental Jurisprudence:

Oliver Wendell Holmes, Jr. (NYPL)

In his very first published essay in The American Law Review, "Codes, and the Arrangement of the Law" (1870), O.W. Holmes made a series of penetrating observations about the common law that can still be profitably used by researchers in experimental jurisprudence today. First, Holmes observed that common law reasoning is a process in which judges decide the case before determining the principle on which that decision rests. Second, he noted that this decision is typically easy, fast, and intuitive, while finding its rationale is often difficult, slow, and deliberate. Third, Holmes suggested that this behavioral pattern applies not only to judges and lawyers, but to “other men,” that is, to human beings generally. Fourth, he observed that legal intuitions are often correct, whereas the reasons first offered to explain and justify them are often mistaken. Fifth, he suggested that common law reasoning can be modeled as a practical syllogism, in which the relevant legal rule is the major premise, the facts of the case constitute the minor premise, and the intuitive judgment is the conclusion. Finally, Holmes implied that the common law is not “a brooding omnipresence in the sky” or a body of rules existing “outside the head” of those who discern and apply them, but a rule-governed mental capacity of some sort. Each of these points anticipated key insights associated with strands of Legal Realism, and each offers valuable lessons for experimental jurisprudence. This forthcoming chapter in The Cambridge Handbook of Jurisprudence elaborates upon these interrelated themes and draw out some of their implications.

--Dan Ernst

Weekend Roundup

• Kellen Funk, Columbia Law School, presents in the the Berkeley Legal History Workshop on Tuesday, April 9, 2024, from 3:35 pm - 5:25 pm, on "Bail at the Founding."  His abstract and a Zoom link for those wishing to attend virtually are here.
  

• In conversation with Martha Minow, Randall Kennedy recently discussed his book, Say It Loud!: On Race, Law, History, & Culture.  Among other things, the book provides “a fresh perspective on historical topics such as the Nat Turner slave rebellion and the enforcement of the Fugitive Slave Act of 1854" (Harvard Law Today).
  

• The Supreme Court Historical Society is hosting two upcoming events.  The second, at Noon EST on April 4, is The Legal Career of Future Justice Ruth Bader Ginsburg in the 1970s.  The participants are the plaintiff and her lawyer in Frontiero v. Richardson (1973), as well as Philippa Strum, Amanda Tyler, and the plaintiff in Weinberger v. Wiesenfeld (1975), who was represented by Ruth Bader Ginsburg.
  

• 
  The second, a virtual lecture and conversation with Alison LaCroix, University of Chicago Law School, draws upon her forthcoming book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms and will take place at Noon (EST) on May 29.

• Columbia University's "Incite" project reimagines oral hist with its Oral History of the Obama Presidency, undertaken in partnership with the Obama Foundation.  "The result of this collaboration is a comprehensive, enduring record of the decisions, actions and impacts of this historic presidency."
  

• Thank you, Kurt X. Metzmeier, University of Louisville Louis D. Brandeis School of Law, for making the "case for the historical importance of early state administrative codes and urg[ing] that law libraries preserve them for future researchers of state administrative law and policy." 
  

• Kevin Frazier, St. Thomas University Benjamin L. Crump College of Law, “Rediscovering and Realizing the Anti-Power-Concentrating Principle” (Notice & Comment).
  

• ICYMI: Justice Sotomayer is "annoyed" by the role of history in the Supreme Court's constitutional decisions (Law 360).  Simon Lazarus on liberal originalism (New Republic). The Endgame in the Battle Over Abortion by Mary Ziegler (Politico).

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

Memon on Caste in British International Legal Thought

Ahmed Memon, Cardiff School of Law and Politics, Cardiff University, has published, open access, “English in taste, Indian in blood”: caste hegemony in the making of British international legal thought, in the London Review of International Law:

In this article, I argue that caste was a central factor in the development of British international legal thought in the subcontinent. Specifically, I contend that British international legal thought entrenched caste hegemony into the broader racial civilisation hierarchy of international law in the nineteenth century.

Dan Ernst

Labor's Roundtable on the Immigration Act of 1924

LABOR: Studies in Working-Class History 20:4 (December 2023) includes a roundtable on the 100th anniversary of the 1924 Immigration Act.

Introduction
Eric Arnesen

“The Architecture of Immigration Restriction, 1924”
Mai Ngai

“Nativism and the Bottom Line: Contemporary Legacies of the Immigration Act of 1924”
Daniel Tichenor

“The Immigration Act of 1924 and Farm Labor”
John Weber

“Labor's Long Road to Immigrant Inclusion”
Ruth Milkman

“The Other Side of Immigration: The Post-1965 Transformation of American Society”
Nancy Foner

--Dan Ernst

Schwartz on Neo-Garrisonianism, Essententialism and the Constitution of 1787

David S. Schwartz, University of Wisconsin Law School, has posted Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation, which is forthcoming in the William & Mary Bill of Rights Journal:

William Lloyd Garrison (wiki)

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, "neo-Garrisonian" scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their "essentialism" in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments. This essay argues that essentialism is a mistaken approach to constitutional interpretation. Contrasting Chief Justice Roger Taney's lead opinion in Dred Scott, holding that Black people William Lloyd Garrison (wii)cannot be "citizens" of the United States, with Frederick Douglass's Glasgow Speech, arguing that the Constitution is not a pro-slavery document, this essay argues that these two texts embody not simply a clash of conclusions, but also a clash of approaches to understanding what the Constitution is. Taney's opinion is archetypally originalist and essentialist; Douglass's speech, widely misunderstood as an essentialist, textualist argument, is in fact a powerful anti-essentialist argument that the Constitution of 1787 was an invitation to struggle over the questions of slavery and white supremacy. The essay further disputes the widely accepted neo-Garrisonian claim that originalism and living constitutionalism both fail the Dred Scott "test." While living constitutionalism, with its embrace of evolving moral values, would today reject Dred Scott, Taney's originalist opinion adheres to the tenets of the intentionalist and public meaning strands of originalism and meets present-day professional standards of originalist scholarship. Thus, while living constitutionalism can, originalism cannot disown Dred Scott.

--Dan Ernst

Deadline extended (Mar. 31) for Law & Social Inquiry Graduate Student Paper Competition

The journal of Law & Social Inquiry seeks submission for the Graduate Student Paper Competition:

The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of law and social science written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted from January 1, 2024 until March 31, 2024.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper and contact details for the student. Submissions will be evaluated by our editors.  The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. All submissions (direct and faculty nominated) are weighted equally in the competition. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US).

Please send your article as a Microsoft Word document to lsi-abf@abfn.org. Please indicate that (1) you intend to be considered in the competition, (2) you are currently a graduate student, and (3) you have not submitted your article to LSI or any other journals for publication. Submissions are limited to one paper per student.

Submissions must include a title page with a mailing address, email address, and phone number, and an abstract of no more than 200 words. The total length of submissions, including references and footnotes, must not exceed 15,000 words.

Questions regarding the competition can be directed to Mari Knudson: mknudson@abfn.org

-- Karen Tani

The Centenary of the Irish Free State Constitution

Palgrave Macmillan has published the essay collection, The Centenary of the Irish Free State Constitution: Constituting a Polity?  Its editors are Laura Cahillane, Senior Lecturer in the School of Law at the University of Limerick, and Donal K. Coffey, Assistant Professor in the School of Law and Criminology at the National University of Ireland, Maynooth.  It appears in the series Palgrave Modern Legal History.

This book deals with the role, development, and legacy of the first Constitution of independent Ireland within the wider context of the establishment of the State. After decades of relative neglect, the 1920s have been receiving increased attention from historians recently thanks to the centenary of the State’s foundation. This book continues this trend of re-examination of this period and looks at key themes, such as the establishment of institutions under the Irish Free State Constitution and the focus on the ideals of popular sovereignty and democracy. It does so from novel and cross-disciplinary perspectives, and it also looks at areas which have received little to no previous attention; from individual aspects like property rights, the Irish language and environmental rights to aspects such as opposition and partition.

 The TOC is here.

–Dan Ernst

Weekend Roundup

• From Process, the blog of the Organization of American Historians: "The American Public’s Role in Financial Regulation," by Christopher Shaw.

• Via Nursing Clio: An interview with Jesse Olszynko-Gryn, author of A Woman’s Right to Know: Pregnancy Testing in Twentieth-Century Britain.
  

• 
  Paula J. Giddings will discuss “The Prescient Life of Ida B. Wells,” “a crusading journalist and pioneer in the fights for women’s suffrage and against segregation and lynchings” in conversation with FDR Library Director William Harris, in the Library’s Henry A. Wallace Center at 6:00 p.m. ET on Tuesday, March 26, 2024, and streaming on YouTube and Facebook.  Register here.
  

• Congratulations to John Cairns, University of Edinburgh, upon the announcement that he is to receive an honorary doctorate from the University of Glasgow.
  

• Heikki Pihlajamäki, Professor of Comparative Legal History at the University of Helsinki, has “won the Gad Rausing Prize for Outstanding Humanities Research. Pihlajamäki was awarded the prize, worth 1.5 million Swedish krona.”  More.
  

• Frances M. Clarke, University of Sydney, is the first Australian to win the Gilder Lehrman Lincoln Prize, which “rewards the finest scholarly work published in the prior year in English on Abraham Lincoln, the American Civil War soldier, or the American Civil War era.” She and her coauthor, Rebecca Jo Plant, University of California, San Diego, won the prize for Of Age: Boy Soldiers and Military Power in the Civil War Era (Oxford University Press).
  

• Reshaping American Life: Today’s Supreme Court in Historical Context, and its Potential Impact on our Future, a discussion/debate between Berkeley Law School Dean Erwin Chemerinsky and Case Western Reserve Law Professor Jonathan Adler, moderated by California Supreme Court Justice Carol Corrigan, will take place on Tuesday, April 23, 2024, 12:15 p.m. (PT) / 3:15 p.m. (ET).  It is to last 75 minutes and will take place in-person and virtually.  Register here.
  

• The University of Edinburgh Press seeks proposals for its new book series, New Approaches to Ancient Greek Institutional History.  The series editors are Mirko Canevaro, Edward Harris, and  David Lewis.
  

• ICYMI: "Maricopa County Honors Public Defenders and Landmark Legal Victories [such as Gideon v. Wainwright] During 'Public Defense Recognition Week'” (Hoodline).  "How Virginia Used Segregation Law to Erase Native Americans" (Time--the new home of Made by History).
  

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

The Long 1920s: A Book Conference on Post's "Taft Court"

[We have the following announcement.  DRE.]

The NYU School of Law and Yale Law School are delighted to invite you to a book conference in honor of the publication of Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court, The Taft Court: Making Law for a Divided Nation, 1921-1930, by Robert C. Post, Sterling Professor of Law, Yale Law School, to be held on Saturday, April 20, from 1:30-6:00 PM, with reception to follow, at NYU Law, D’Agostino Hall, 108 West 3rd St, New York, NY.  RSVP here.

[Beverly Gage, Mark Tushnet, Dan Ernst, Rick Hills, Sophia Lee, Lisa McGirr, Laura Kalman and Noah Rosenblum, followed by a keynote conversation between Robert Post and John Fabian Witt.]

Tsai, "Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All"

W.W. Norton has published Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All (2024), by Robert L. Tsai (Boston University). A description from the Press:

Stephen Bright emerged on the scene as a cause lawyer in the early decades of mass incarceration, when inflammatory politics and harsh changes to criminal justice policy were crashing down on the most vulnerable members of society. He dedicated his career to unleashing social change by representing clients that society had long ago discarded, and advocated for all to receive a fair trial.

In Demand the Impossible, Robert L. Tsai traces Bright’s remarkable career to explore the legal ideas that were central to his relentless pursuit of equal justice. For nearly forty years, Bright led the Southern Center for Human Rights, a nonprofit that provided legal aid to incarcerated people and worked to improve conditions within the justice system. He argued four capital cases before the US Supreme Court—and won each one, despite facing an increasingly hostile bench. With each victory, he brought to light how the law itself had become corrupted by the country’s thirst for severe punishment, exposing prosecutorial misconduct, continuing racial inequality, inadequate safeguards for people with intellectual disabilities, and the shameful quality of legal representation for the poor.

Organized around these four major Supreme Court cases, each narrated in vivid and dramatic detail, Tsai’s essential account explores the racism built into the criminal justice system and the incredible advancements one lawyer and his committed allies made for equal rights. An electrifying work of legal history, Demand the Impossible reveals how change can be won in even the most challenging times and how seemingly small victories can go on to have outsized effects.

A sample of praise from reviewers:

As Tsai’s latest deeply moving and sobering book makes so clear, this nation’s moral arc can indeed bend toward justice, but only when we are unfailing in our conviction that it can, and are unflinching in our insistence that it does. -- Heather Ann Thompson

An inspiring account of one of our nation’s greatest lawyers, an advocate who has prioritized the poor, the vulnerable, and the condemned over money, fame, and the privileged. Stephen Bright is a rare legal champion for justice. This book reveals much about this extraordinary man and the critically important human rights he has passionately defended. -- Bryan Stevenson

More information is available here.

-- Karen Tani

BHC Prizes to Con Díaz and Canaday

Several prizes of interest to legal historians were awarded at the just-concluded Business History Conference.  One was the Anne Fleming Article Prize, awarded jointly ever other year jointly with the American Society for Legal History “to the author or authors of the best article published in the previous two years in either Law and History Review or Enterprise and Society on the relation of law and business/economy in any region or historical period.”  This year’s recipient is Gerardo Con Díaz, Yale University, for Patent Law and the Materiality of Inventions in the California Oil Industry: The Story of Halliburton v. Walker, 1935–1946, published in Enterprise and Society:

This article examines a patenting conflict between the Halliburton Oil Well and Cementing Company and an independent inventor named Cranford Walker. It argues that Halliburton’s effort to lower the barriers to entry into the oil well depth measurement industry facilitated the re-emergence of materiality as a pre-condition for the patent eligibility of inventive processes. In 1941, Walker sued Halliburton for infringement of three of his patents, and Halliburton responded with an aggressive defense aimed at invalidating them. Over the next five years, the courts handling this conflict adopted very narrow legal theories developed during the Second Industrial Revolution to assess the patent eligibility of inventions that involved mental steps—processes such as mathematical computations, which people can perform in their minds. The resulting legal precedent cleared the path for Halliburton’s short-term industrial goals and continued to shape patent law for the rest of the century.

The BHC’s Hagley Prize in Business History, "for the best book in business history, broadly defined," went to Margot Canaday, Princeton University, for Queer Career: Sexuality and Work in Modern America:

Workplaces have traditionally been viewed as “straight spaces” in which queer people passed. As a result, historians have directed limited attention to the experiences of queer people on the job. Queer Career rectifies this, offering an expansive historical look at sexual minorities in the modern American workforce. Arguing that queer workers were more visible than hidden and, against the backdrop of state aggression, vulnerable to employer exploitation, Margot Canaday positions employment and fear of job loss as central to gay life in postwar America.

Rather than finding that many midcentury employers tried to root out gay employees, Canaday sees an early version of “don’t ask / don’t tell”: in all kinds of work, as long as queer workers were discreet, they were valued for the lower wages they could be paid, their contingency, their perceived lack of familial ties, and the ease with which they could be pulled in and pushed out of the labor market. Across the socioeconomic spectrum, they were harbingers of post-Fordist employment regimes we now associate with precarity. While progress was not linear, by century’s end some gay workers rejected their former discretion, and some employers eventually offered them protection unattained through law. Pushed by activists at the corporate grass roots, business emerged at the forefront of employment rights for sexual minorities. It did so, at least in part, in response to the way that queer workers aligned with, and even prefigured, the labor system of late capitalism.

Queer Career shows how LGBT history helps us understand the recent history of capitalism and labor and rewrites our understanding of the queer past.

Other prize winners and honorable mentions, many for scholarship of interest to legal historians, are here.

--Dan Ernst.  H/t: SB

Balkin, "Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity"

Jack Balkin (Yale Law School) has posted "Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity." The abstract:

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today. 

The full article is available here, at SSRN. 

-- Karen Tani

Tani on the History of the Tort of "Wrongful LIfe"

Last year, I had the privilege of participating in the Clifford Symposium at DePaul College of Law -- an annual convening of torts scholars. The symposium theme in 2023 was "new torts." The published versions of the symposium papers are now available. My contribution is titled "When a Wrong Creates a Life: Tort Responses to Children Born From Institutional Sexual Violence." Much of the article draws on history, so I'm noting it here. Here's the abstract:

Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a guardian, the resulting child sought monetary compensation from the state for the disadvantages that flowed from these circumstances. Importantly, the lower court that initially considered this claim found it within the bounds of what tort law could and should provide. But a different interpretation prevailed at the appellate level, and, for historically contingent reasons, Williams v. State largely disappeared from view. Instead, cases from the medical negligence context came to dominate judicial discussions—and rejections—of the seemingly “new tort” of “wrongful life.” This Article urges a reconsideration of Williams v. State and the sub-set of “wrongful life” cases that it represents—namely, cases involving (1) nonconsensual intercourse and impregnation in an institutional setting, resulting in a child, and (2) an institutional defendant that arguably violated a duty of care by allowing this sequence of events to occur. Such reconsideration is warranted for several reasons, including evidence that such incidents continue to occur in institutional settings (nursing homes, residential treatment facilities, prisons, etc.); post-Dobbs changes to state-level abortion laws, which will increase the number of pregnancies that lead to live births; and theoretical and doctrinal developments within tort law itself. 

The full article is available here. Other legal-historical contributions to this symposium include Molly Brady on "cottages as public nuisances" (previously noted here) and Kenneth S. Abraham & G. Edward White on "How an Old Tort Became New: The Case of Offensive Battery."

-- Karen Tani

Kroncke on the Lost Era of US-China Constitutional Engagement

On March 29, 2024, from 12:20 pm - 1:20 pm, Jedidiah Kroncke, Associate Professor of Law, University of Hong Kong, will present the paper Thomas Jefferson, Carsun Chang and A Lost Era of U.S.-China Constitutional Engagement in 308 Morgan Meeting Room of Austin Hall, at the Harvard Law School.

Professor Kroncke’s study recovers a lost era of Sino-American constitutional imagination surrounding the drafting of the 1946 Republic of China Constitution. It examines the transnational dynamics that led the Constitution’s initial drafter, Carsun Chang, to travel to the U.S. in 1945 to ostensibly study the ideas of Thomas Jefferson then ascendant in New Deal constitutional rhetoric.

This study recontextualizes Chang’s life as one of China’s new generation of cosmopolitan intellectuals moving between its contentious post-dynastic politics and the institutions of the post-World War II international legal order. Chang’s invitation by the Roosevelt Administration involved many little known but determinative turns, including the role of a subset of Truman Administration officials actively enamored with Jefferson’s own study of Confucianism.

Transnationalizing our understanding of the 1946 Constitution helps reveal how the geopolitics of the Chinese Civil War intersected with the presumed projection of American constitutional values increasingly embedded in American internationalism. The fallout from the drafting process also illuminates the transition of America from a global symbol of constitutional revolution to a symbol of global racial empire. Recapturing this era has implications for originalist-styled constitutional arguments made in contemporary Taiwan, as well as evaluating the international dimensions of Jefferson’s deeply problematic domestic legacy.

A boxed lunch will be provided.  East Asian Legal Studies is sponsoring the event.

--Dan Ernst