Monday, March 19, 2018

VOA, the Supreme Court, and the Resistance?

I don’t know that the Voice of America intended to signal the rest of the world that the rule of law yet prevails in the United States when it commenced a series on the Supreme Court this weekend, but right now I’m for anything that might bolster popular support for an independent judiciary, at home as well as abroad.  VOA urges us to watch, in the coming months “for text, audio, and video that explain what the Supreme Court is, why it is important (and disputed) in American culture, and how the justices ruled on some of the most important cases in modern U.S. history.”  The first post is The Rise of the Supreme Court.

Ruskola on Corporation Law in Late Imperial China

Teemu Ruskola, Emory Law, has posted Corporation Law in Late Imperial China, which is forthcoming in Research Handbook on the History of Corporate and Company Law, edited by Harwell Wells (Edward Elgar Press 2018):
According to received wisdom, there is no such thing as a Chinese tradition of corporation law. In Max Weber’s pithy conclusion, “The legal forms and societal foundations for capitalist ‘enterprise’ were absent in traditional China.” Although this claim is intuitively appealing, it is incorrect, or at least wildly exaggerated. Drawing on earlier work, I argue in this chapter that in late imperial China there existed a tradition of “corporation law,” to use a term that admittedly sounds anachronistic. Conventional wisdom to the contrary notwithstanding, and despite Confucian hostility to commerce, even before the introduction of European law at the turn of the century, the Chinese operated “clan corporations,” or relatively large commercial enterprises organized whose existence was justified by the legal fiction of kinship. Because of this fiction, these enterprises were governed by the norms of family law which in turn performed many of the key functions of corporation law.

Walker's "Burning House"

Anders Walker, Saint Louis University School of Law, has published The Burning House: Jim Crow and the Making of Modern America (Yale University Press):
In this dramatic reexamination of the Jim Crow South, Anders Walker demonstrates that racial segregation fostered not simply terror and violence, but also diversity, one of our most celebrated ideals. He investigates how prominent intellectuals like Robert Penn Warren, James Baldwin, Eudora Welty, Ralph Ellison, Flannery O’Connor, and Zora Neale Hurston found pluralism in Jim Crow, a legal system that created two worlds, each with its own institutions, traditions, even cultures. The intellectuals discussed in this book all agreed that black culture was resilient, creative, and profound, brutally honest in its assessment of American history. By contrast, James Baldwin likened white culture to a “burning house,” a frightening place that endorsed racism and violence to maintain dominance. Why should black Americans exchange their experience for that? Southern whites, meanwhile, saw themselves preserving a rich cultural landscape against the onslaught of mass culture and federal power, a project carried to the highest levels of American law by Supreme Court justice and Virginia native Lewis F. Powell, Jr.
Anders Walker shows how a generation of scholars and judges has misinterpreted Powell’s definition of diversity in the landmark case Regents v. Bakke, forgetting its Southern origins and weakening it in the process. By resituating the decision in the context of Southern intellectual history, Walker places diversity on a new footing, independent of affirmative action but also free from the constraints currently placed on it by the Supreme Court. With great clarity and insight, he offers a new lens through which to understand the history of civil rights in the United States.

Chopas's "Searching for Subversives"

Mary Elizabeth Basile Chopas has published Searching for Subversives: The Story of Italian Internment in Wartime America (University of North Carolina Press):
When the United States entered World War II, Italian nationals living in this country were declared enemy aliens and faced with legal restrictions. Several thousand aliens and a few U.S. citizens were arrested and underwent flawed hearings, and hundreds were interned. Shedding new light on an injustice often overshadowed by the mass confinement of Japanese Americans, Mary Elizabeth Basile Chopas traces how government and military leaders constructed wartime policies affecting Italian residents. Based on new archival research into the alien enemy hearings, this in-depth legal analysis illuminates a process not widely understood. From presumptive guilt in the arrest and internment based on membership in social and political organizations, to hurdles in attaining American citizenship, Chopas uncovers many layers of repression not heretofore revealed in scholarship about the World War II home front.

In telling the stories of former internees and persons excluded from military zones as they attempted to resume their lives after the war, Chopas demonstrates the lasting social and cultural effects of government policies on the Italian American community, and addresses the modern problem of identifying threats in a largely loyal and peaceful population.
Among the many interesting features of the book is Chopas’s discovery in the papers of Erwin Griswold files relating to that future Harvard law dean’s service on Boston’s alien enemy hearing board.  TOC after the jump.

Sunday, March 18, 2018

Sunday Book Review Roundup

In The New York Review of Books is an essay by Adam Hochschild featuring reviews of Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry by Patrick J. Charles, Loaded: A Disarming History of the Second Amendment by Roxanne Dunbar-Ortiz, and Chosen Country: A Rebellion in the West by James Pogue.

Image result for WAGES FOR HOUSEWORK: THE NEW YORK COMMITTEE 1972–1977Sylvia Federici and Arlen Austin's Wages for Housework The New York Committee 1972–1977: History, Theory, Documents is reviewed in The Nation.  The text, says the review,"is one of those rare books that takes the reader inside the theory and practice of a radical movement."

In The Times Literary Supplement, Amy Murrell Taylor's reviews of Eugene Genovese's posthumous The Sweetness of Life: Southern Planters at HomeWhile emphasizing the many "troubling" aspects of Genovese's posthumous work, Murrell Taylor concludes her review by evoking  the questions that animated Genovese's earlier work and suggests that it "is as necessary as ever" for scholars to center the interiorities of enslaved persons and "ask about their point of view."

In the Los Angeles Review of Books is a review of Nino and Me: My Unusual Friendship with Justice Antonin Scalia by Bryan Garner.

At H-Net is a review of Law and Order in Anglo-Saxon England by Tom Lambert.

Theodore Vial's Modern Religion, Modern Race is reviewed at Marginalia.
Image result for behemoth joshua freeman

Joshua B. Freeman's Behemoth: A History of the Factory and the Making of the Modern World is reviewed in the New York Times.  Freeman's work, the review argues, offers a timely demystification of the nostalgia surrounding manufacturing and serves to poignantly remind readers "how truly disruptive the manufacturing age was."

Also in the Times is a review of Victorians Undone: Tales of the Flesh in the Age of Decorum by Kathryn Hughes.

At the New Books Network Daniel Livesay speaks about his Children of Uncertain Fortune: Mixed-Race Jamaicans in Britain and the Atlantic Family, 1733-1833.  Kali Nicole Gross discusses her Hannah Mary Tabbs and the Disembodied Torso: A Tale of Race, Sex, and Violence in America.  Matthew Clavin introduces his Aiming for Pensacola Fugitive Slaves on the Atlantic and Southern Frontiers. Finally, Yair Mintzker is interviewed about his The Many Deaths of Jew Süss: The Notorious Trial and Execution of an Eighteenth-Century Court Jew.

Saturday, March 17, 2018

Weekend Roundup

  • As best we can make out from this story in the Providence Journal, Frederick Schroeder Jr., of Providence, who, according to his attorney, “buys boxes of documents at estate sales,” was auctioning off on eBay a docket book from Inferior Court of the Common Pleas in Providence County for the years 1746 to 1749, when “a legal history researcher at the University of Pennsylvania” alerted Rhode Island state archivist, Ashley Selima.  Bidding opened at $9.99 and had reached $960 when the state obtained an injunction halting the sale. 
  • H. T. Smith, FIU Law, recently spoke to the Dade County Bar Association on the “history of the challenges Black lawyers have faced over the years in Miami-Dade County.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 16, 2018

O'Melinn on the Common-Law Origins of Copyright

Liam O'Melinn, Ohio Northern University, has posted The Ghost of Millar v. Taylor: The Mythical Common Law Origins of Copyright and the Copyright Servitude:
The Ghost of Common Law Copyright walks abroad once more, relishing the prospect of “the next great copyright act” and tempting us to inquire anew whether the origins of copyright are to be found in the common law. Despite being answered time and again in the negative, this question preys upon modern sensibilities predisposed to the view that artists who painted on the walls of ancient caves had a primordial right to prevent “pirates” from copying their works. The belief that the common law has always provided creators with a right against unauthorized reproduction is quietly but increasingly influential, and it has helped to propel copyright law toward limitless expansion. According to the common-law view, most famously expressed in Millar v. Taylor in England in 1769, this right antedates any positive enactments made on its behalf, and the earliest copyright statutes simply secured or augmented rights already in existence. Millar was overruled in Donaldson v. Becket in 1774, but its spirit has lingered on, haunting the legal landscape of copyright. This theory has served as the basis of an increasing tendency toward the retrospective creation of property in nearly any “subject matter” -- as this copyright theory describes cultural exchange -- that is perceived to be of potential value. The common law view has made its influence felt in a distension of culture, a distortion of the law, and a tendency to create a boundless form of property. This property without bounds, in turn, is justified by the recursive insertion of an author or creator whose original right provides the ostensible basis of current title.

In American law this approach has rested on three propositions: That authors in England always had a right to prevent unauthorized publication of their writings, that Americans carried this right with them from England to their new colonies in the seventeenth and eighteenth centuries, and that as between the two landmark decisions in English copyright law, Millar v. Taylor and Donaldson v. Beckett, Americans chose the view taken in Millar that copyright was a perpetual right originating in the common law. This final claim is ostensibly bolstered by the belief that Americans knew the result in Millar but not in Donaldson, and that when they began to pass their own copyright statutes they were passing the familiar common law result into law. This article focuses on these claims, arguing that there was no common law copyright before the passage of the Statute of Anne, and no norm prohibiting unauthorized publication. It would be closer to the mark to say that unauthorized publication was the norm, and that our timeless right of first publication is actually a much more modern and statutory creature than we have imagined. Americans had no common law inheritance to carry with them to the colonies, and they actually did know the result in Donaldson shortly after it was decided, leaving no reason to believe that American copyright law followed the Millar decision.

The article concludes with a consideration of the modern implications of the success of the myth of common law copyright. These include a distortion of culture to make it fit the contours of copyright law, the increased dedication of the law to the protection of a species of property that knows no bounds, and the imposition what I term the “copyright servitude,” which protects the interests of copyright holders by limiting the uses that can be made even of lawfully-purchased products, and by impeding the development of alternative means of transmission of information.

Chaplains: A "Single, Obvious Example"?

Thank you to Karen and the Legal History Blog team for giving me an opportunity to blog this month. I’ve learned a lot from reading the LHB, especially from posts about the path to first books, so I’m excited to share a bit about my book experience.

I wrote Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard, 2017) over the course of two postdocs. These positions provided a lot of protected research and writing time, which in turn enabled me to publish a book relatively quickly. But publishing as a postdoc is not without its difficulties. As a result, I’ll devote some of my posts to the benefits and challenges of writing a book as a postdoc—if you have any particular questions about navigating postdoc publishing, please ask in the comments!

Before I address these structural conditions of writing, let me offer a brief introduction to the book and to the chaplaincy. In his dissent in Abington v. Schempp, Justice Potter Stewart noted that the military chaplaincy represented a “single, obvious example” of religion-state interaction. It is a rich and varied example that offers a lot of material to think with and through. However, as I learned while working on this project, it might not be as "obvious" as Stewart assumed. When I talked about my research, for both the dissertation and the book, a fairly common reaction was “huh, the military chaplaincy. I’ve never really thought about that.” Making the chaplaincy approachable to those unfamiliar with it (or whose reference point might be only Chaplain Mulcahy in M*A*S*H) became one of my tasks. Chaplains are clergy in uniform: recruited, commissioned, employed, and overseen by the federal government to provide religious support and facilitate religious life in the armed forces.

Enlisting Faith tells the history of the twentieth-century military chaplaincy and, through it, a history of religion and the state in modern America. It is therefore both an institutional history and a history of a deep (and deeply significant) relationship between the federal government and religion. Moving from World War I to the 1990s, it traces the uneven processes through which the military struggled with, encouraged, and regulated religious pluralism over the twentieth century.

Military chaplains have served since the American Revolution, but the persistence of an arrangement in which the state organized religious activity is unusual. Despite assumed secularism, the military built a massive infrastructure to instill religion in its personnel. Enlisting Faith documents episodes of negotiation and cooperation, encounter and engagement, pragmatism and innovation. Friction was inevitable, but the military generally managed it away from the public eye and outside courtrooms. On the rare occasions when federal judges considered the constitutionality of the chaplaincy, they generally accepted it as a necessary engine of free exercise of religion in the military.

Yet avoiding establishment while enabling free exercise was challenging. The decision to mobilize religion to support martial endeavors had consequences: for the military and the state, for soldiers and religious groups, and for American politics and society writ large. Enlisting Faith narrates a series of interconnected stories about religious encounter, state regulation, and trials of faith to demonstrate how religion and the state shaped one another. It unmasks how religious groups vied for attention, accommodations, and power. And it reveals how the state has seen and categorized, hindered and promoted, challenged and supported religion.

There are a lot of moving pieces in this narrative, so in my next post, I’ll talk about structure and organization.

Pearson on Forensic Medicine in Siam

Quentin (Trais) Pearson, Boston College has published "Morbid Subjects: Forensic Medicine and Sovereignty in Siam" in Modern Asian Studies (10 Nov. 2017), 1-27. Here's the abstract:
This article examines the question of Siamese sovereignty in the era of high imperialism through the lens of medical jurisprudence. Although Siam (Thailand) was never formally colonized, it was subject to unequal trade treaties that established extraterritorial legal rights for foreign residents. In cases where a foreign resident was suspected of having harmed a Siamese subject, the Siamese state had to appeal to foreign consular officials to file charges against the suspect. Standards of forensic evidence were crucial in such cases. While medical jurisprudence helped to bolster racial privilege in other colonial legal jurisdictions, this article argues that these disputes rendered the dead and injured bodies of Siamese subjects into potentially powerful pieces of leverage against foreign residents and their political representatives. The dead bodies of Siamese subjects became grounds for challenging foreign courts and asserting Siamese sovereignty.

Further information is available here.

Thursday, March 15, 2018

Stahl on "How the Military Chaplaincy Shaped Religion and State in Modern America"

After introducing our newest guest blogger, Ronit Stahl (University of Pennsylvania), I realized we failed to announce the publication of her book last fall. It is titled Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard University Press, 2017). Here's a description from the Press:
A century ago, as the United States prepared to enter World War I, the military chaplaincy included only mainline Protestants and Catholics. Today it counts Jews, Mormons, Muslims, Christian Scientists, Buddhists, Seventh-day Adventists, Hindus, and evangelicals among its ranks. Enlisting Faith traces the uneven processes through which the military struggled with, encouraged, and regulated religious pluralism over the twentieth century. 
Moving from the battlefields of Europe to the jungles of Vietnam and between the forests of Civilian Conservation Corps camps and meetings in government offices, Ronit Y. Stahl reveals how the military borrowed from and battled religion. Just as the state relied on religion to sanction war and sanctify death, so too did religious groups seek recognition as American faiths. At times the state used religion to advance imperial goals. But religious citizens pushed back, challenging the state to uphold constitutional promises and moral standards. 
Despite the constitutional separation of church and state, the federal government authorized and managed religion in the military. The chaplaincy demonstrates how state leaders scrambled to handle the nation’s deep religious, racial, and political complexities. While officials debated which clergy could serve, what insignia they would wear, and what religions appeared on dog tags, chaplains led worship for a range of faiths, navigated questions of conscience, struggled with discrimination, and confronted untimely death. Enlisting Faith is a vivid portrayal of religious encounters, state regulation, and the trials of faith—in God and country—experienced by the millions of Americans who fought in and with the armed forces.
And a few (of the many) blurbs:
“Cutting across a century of perpetual war, shifting its analytic gaze from bureaucratic functions of the state to the people of faith who served, from mainline denominations to religious movements on the rise, Ronit Stahl’s study of the military chaplaincy brilliantly recasts our understanding of church–state relations in the modern era. Stahl vividly shows how the military chaplaincy has offered the means for Washington to encourage proper religious expression in a pluralist society, and for faith communities to earn political legitimacy in the eyes of their peers. An essential book for students of American religion, politics, and history.”—Darren Dochuk 
“Enlisting Faith tells a compelling story, showing how the military chaplaincy has entailed deep mutual engagement between government and the great diversity of American religious life. Stahl’s excellent work is a must-read for anyone interested in religious freedom, separation (or not) of church and state, war, politics, and the many challenges of pluralism.”—Sarah Barringer Gordon
More information is available here.

Welcome, Ronit Stahl!

It is our pleasure to welcome this month's second guest blogger, Ronit Stahl. Stahl received her Ph.D. in History from the University of Michigan. She also holds a Masters degree in Social Sciences in Education from Stanford University. She is currently a Fellow in Advanced Biomedical Ethics at the University of Pennsylvania. Prior to her move to Penn, she held a post-doctoral fellowship at the John C. Danforth Center on Religion and Politics at Washington University in St. Louis.

As this unique series of fellowships suggests, Stahl's work brings together research areas that are not often combined: religion, health policy, and the regulatory state. All are incorporated into her new book Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard University Press, 2017). She is also the author (with Ezekiel J. Emanuel) of "Physicians, Not Conscripts - Conscientious Objection in Health Care," which appeared in the New England Journal of Medicine in April 2017.

Welcome, Ronit Stahl!

Strang on Originalism, "Religion" in the 1st Amendment and Corpus Linguistics

Lee J. Strang, University of Toledo College of Law, has posted The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics, which appears in the Brigham Young University Law Review 2017: 101-168:
Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy.

This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This affords a first-cut illustration of the extent to which corpus linguistics can make originalism’s methodology more rigorous. Second, this Essay utilizes the tools of corpus linguistics to provide additional evidence of the original meaning of “religion” in the First Amendment. Third, based on this experience, it describes some of the challenges originalist scholars will likely face employing corpus linguistics.

Policy-Relevant History

As mentioned in my last post on presentism, in researching City of Debtors, I tried to follow where my sources led me.

This approach led me to some unexpected finds that I would likely have ignored if I had approached the materials with an argument already in hand. For example, I did not expect to discover small-dollar lenders passionately arguing about the proper method for disclosing their charges to borrowers in the 1930s and 40s. The so-called “Rate Restatement Debate” pitted one faction of licensed lenders against another as the industry debated how to compete with banks and other financial institutions in the small-dollar loan market. I argue that the debate revealed fissures within the business community and waning support for regulations that had governed the industry for decades. Now that the business had attained some degree of legitimacy and the broader ideas about state oversight of the marketplace were shifting, many lenders no longer saw the need for strict disclosure requirements and other legal controls. (For those seeking more details, I describe the Restatement debate in Chapter Three of the book and in an article just published in the April 2018 issue of the Journal of Policy History on the long history of “truth in lending.")

Such historical conclusions can inform policymaking. For example, drawing on the above insights, we now know some conditions that are likely to promote industry support for regulation and also some conditions that may cause business to chaff against legal restraints. Based on this research, policymakers who seek industry support for regulation might consider if those conditions are present today and, if not, whether they can take steps to create a climate that is more hospitable to industry support for their proposals.

Likewise, City of Debtors identifies a few recurring stumbling blocks that past lending reform campaigns have encountered over the course of the twentieth century. First, it describes the difficulty of regulating these loans and lenders at the state level in a world where capital and lenders moved easily across borders and the federal government exercised minimal oversight. Second, it identifies a further obstacle to effective regulation: the inability of policymakers to decide whether small loans should be regulated in the same way as other forms of consumer credit, or instead merit special treatment. Finally, my research shows how the problem of small-sum loans has been inextricably linked with the problems of poverty and poor relief, which has compounded the complexity of the puzzle. States had a particularly strong interest in protecting small-sum borrowers, since a bad bargain could turn a poor debtor into a “pauper,” reliant on the government for financial support. On the other hand, states did not want to do away with small-sum credit entirely because these loans could act as a private safety net, allowing workers to manage financial shortfalls and make big-ticket purchases without the aid of state support, employer aid, or private charity.

Drawing on the above insights, policymakers might consider whether some or all of these stumbling blocks are impending their own efforts at reform. If so, they might then better target their energies at surmounting these challenges or lowering the barriers they present. As I have written elsewhere, this history can also serve to reframe the debate over the Consumer Financial Protection Bureau’s recent efforts to regulate payday lending and similar forms of consumer credit. In light of the long struggle among the states to regulate small-dollar loans, the CFPB’s rule looks more like a solution to an ongoing problem of state-level governance rather than a dramatic overreach by federal lawmakers and usurpation of states’ rights.

As I hope these examples show, historical research can play a role in policymaking and historians can speak to the present without engaging in presentism. The historian’s role is to help tease out what lessons for the present we can draw from our study of the past, while taking care to avoid drawing false equivalencies between then and now.

Wednesday, March 14, 2018

Donald J. Trump, Harry S. Truman and the Dismissal of Cabinet Officers

John Q. Barrett tells the story of the dismissal of Attorney General Francis Biddle, over at the Jackson List.

Manko on Polish Private Law since 1989

Rafal Manko, University of Amsterdam Centre for the Study of European Contract Law, has posted Towards a Typology of Dimensions of the Continuity and Discontinuity of Law: The Perspective of Polish Private Law after the 1989 Transformation, which appears in the Wroclaw Review of Law, Administration and Economics 6.1 (2018): 108-120:
Discussions concerning the continuity or discontinuity of the legal culture require the elaboration of a rigorous framework, allowing the comparison of hypotheses and findings concerning different periods, legal systems and branches of law. The present paper aims at identifying four fundamental aspects of the possible continuity or discontinuity of law in the positivist sense, therefore only a part of legal culture. The paper proposes four such dimensions: structure, conceptual framework, fundamental principles, institutions and rules. The propositions put forward in the paper are grounded in, and tentatively applied to, Polish private law after the 1989 transformation from state socialism to capitalism.

Seidman on the Progressiveness of Free Speech

My colleague Louis Michael Seidman, Georgetown University Law Center, has posted Can Free Speech Be Progressive?  It is forthcoming in the Columbia Law Review:
Free speech cannot be progressive. At least it can't be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even protect progressives against the possibility of catastrophic outcomes. But the notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. The American free speech tradition is too deeply rooted in ideas about fixed property rights and with an equation of freedom with government inaction to be progressive. Instead of wasting energy on futile efforts to upend our first amendment traditions, progressives should work to achieve their goals directly.

Oliver's "Prohibition Era and Policing"

Wesley M. Oliver, Professor of Law at Duquesne University, has published The Prohibition Era and Policing: A Legacy of Misregulation with Vanderbilt University Press.
Legal precedents created during Prohibition have lingered, leaving search-and-seizure law much better defined than limits on police use of force, interrogation practices, or eyewitness identification protocols. An unlawful trunk search is thus guarded against more thoroughly than an unnecessary shooting or a wrongful conviction.

Intrusive searches for alcohol during Prohibition destroyed middle-class Americans’ faith in police and ushered in a new basis for controlling police conduct. State courts in the 1920s began to exclude perfectly reliable evidence obtained in an illegal search. Then, as Prohibition drew to a close, a presidential commission awakened the public to torture in interrogation rooms, prompting courts to exclude coerced confessions irrespective of whether the technique had produced a reliable statement.

Prohibition’s scheme lingered long past the Roaring ‘20s. Racial tensions and police brutality were bigger concerns in the 1960s than illegal searches, yet when the Supreme Court imposed limits on officers’ conduct in 1961, searches alone were regulated. Interrogation law during the 1960s, fundamentally reshaped by the Miranda ruling, ensured that suspects who invoked their rights would not be subject to coercive tactics, but did nothing to ensure reliable confessions by those who were questioned. Explicitly recognizing that its decisions excluding evidence had not been well-received, the Court in the 1970s refused to exclude identifications merely because they were made in suggestive lineups. Perhaps a larger project awaits—refocusing our rules of criminal procedure on those concerns from which Prohibition distracted us: conviction accuracy and the use of force by police.
Here are two endorsements that matter:

“Wesley Oliver’s The Prohibition Era and Policing places him firmly within the wonderful new body of historical work that shows us how Prohibition continues to shape American law, governance, and society. Oliver does what historians do best—demonstrate how our present circumstances are profoundly shaped by our past, and how we might imagine a better future. Oliver believes that Americans deserve a more effective and more accountable criminal justice system, and uses history to help us see our present system as both contingent and changeable.”
    —Kenneth W. Mack, Lawrence D. Biele Professor of Law and Affiliate Professor of History, Harvard Law School

“Wes Oliver tells a fascinating story of criminal procedure in the early twentieth century, and he makes a novel, compelling argument for the centrality of the Prohibition Era in understanding the way the United States currently regulates the police. This is an important and provocative book.”
    —David Alan Sklansky, Stanley Morrison Professor of Law, Stanford University

Tuesday, March 13, 2018

Tushnet on CLS and the Rule of Law

Mark Tushnet, Harvard Law School, has posted Critical Legal Studies and the Rule of Law, which is forthcoming in the Cambridge Companion to the Rule of Law, edited by Marti Loughlin and Jens Meierhenrich:
This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

Stockmeyer on Some Chestnuts of Contract Law

Norman Otto Stockmeyer, Western Michigan University Cooley Law School, has posted The Law of Confusion: An Examination of Misunderstanding, Mistake, and Ignorance in Contract Law:
Courts have distinguished between several forms of confusion on the part of parties to a contract. This paper examines the leading cases defining these related states of mind and their differing legal effects. It offers a fresh look at old chestnuts familiar to generations of law students: cases involving two sailing ships, a pregnant cow, and an uncut diamond. And it shares revealing back-stories rarely mentioned in law school (with slides).

Munshi on the Denaturalization Trial of an Indian Immigrant

My colleague Sherally Munshi, Georgetown University Law Center, has posted “You Will See My Family Became so American”: Race, Citizenship, and the Visual Archive, which is forthcoming in Law and the Visual: Representations, Technologies, and Critique, edited by Desmond Manderson (2018):
In 1932, the United States government sought to cancel the citizenship of Dinshah Ghadiali, an immigrant from India, alleging that Ghadiali “by reason of his not being a free white person or a person of African nativity or descent is, and was, ineligible racially for naturalization.” Ghadiali was one of dozens of Indian immigrants targeted for denaturalization in the wake of United States v. Thind (1923), in which the Supreme Court declared that “Hindus,” though capable of cultural assimilation, would remain visually unassimilable. At his denaturalization trial, Ghadiali submitted into evidence a series of photographs, assuring the judge, “You will see my family became so American.” How do these photographs purport to show that Ghadiali and his family had become “so American”? In this essay, through a through a close reading of Ghadiali’s photography, I explore a tension between the visualization of race—a practice at once institutionalized by law and inextricably bound with the medium of photography—and the performance of national belonging.

Douglas on a Nazi War Crimes Trial

Lawrence Douglas, Amherst College, published The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial with Princeton University Press in 2016. From the press:
In 2009, Harper's Magazine sent war-crimes expert Lawrence Douglas to Munich to cover the last chapter of the lengthiest case ever to arise from the Holocaust: the trial of eighty-nine-year-old John Demjanjuk. Demjanjuk’s legal odyssey began in 1975, when American investigators received evidence alleging that the Cleveland autoworker and naturalized US citizen had collaborated in Nazi genocide. In the years that followed, Demjanjuk was stripped of his American citizenship and sentenced to death by a Jerusalem court as "Ivan the Terrible" of Treblinka—only to be cleared in one of the most notorious cases of mistaken identity in legal history. Finally, in 2011, after eighteen months of trial, a court in Munich convicted the native Ukrainian of assisting Hitler’s SS in the murder of 28,060 Jews at Sobibor, a death camp in eastern Poland. 
An award-winning novelist as well as legal scholar, Douglas offers a compulsively readable history of Demjanjuk’s bizarre case. The Right Wrong Man is both a gripping eyewitness account of the last major Holocaust trial to galvanize world attention and a vital meditation on the law’s effort to bring legal closure to the most horrific chapter in modern history.
Praise for the book:

"Douglas relates with authority and clarity the story of these complex legal processes. . . . [He] does justice to both the story's factual complexities and its moral and political conundrums. . . . The Right Wrong Man, from its summary title to its thoughtful postscript, is an impressive work, as well as a timely one in its demonstration of the power of legal systems to learn from past missteps." -Anthony Julius

"The Right Wrong Man is powerful, richly observed, and darkly entertaining. Anyone interested in postwar history will want to read it." -Elizabeth Kolbert

"Lawrence Douglas has once again provided us with a history-laden and provocative analysis of Holocaust trials. His riveting study of the Demjanjuk saga is of importance, not just to historians and jurists, but to all those who wonder how can justice ever prevail when the crime being adjudicated is genocide." -Deborah E. Lipstadt
Further information is available here.

The Meanings of Presentism

In my second post, I briefly described one of the central arguments in my book, which concerns why governing small-sum lending has proved to be especially tricky over the course of the past century. I mentioned that this argument is directed especially to policymakers and others concerned about present-day regulatory questions. In this post, I grapple with the problem of “presentism” in legal history.

Even before I attended my first graduate school class, I confronted the problem of presentism. After I described my proposed project to one member of the faculty, who I shall call Professor X, the professor replied that it sounded awfully “presentist.” I did not fully understand the import of this label, having spent the previous seven years studying and working outside a History Department. But Professor X’s tone indicated that it was meant as a criticism – or at least as a provocation to defend my project.

After this charge was leveled against me, I did some research and quickly discovered that presentism, like so many –isms, is ambiguous. It can describe a multitude of practices, only some of which are widely scorned. For example, presentism can mean judging the past according to present-day moral standards or otherwise adopting “attitudes of temporal superiority,” in the words of historian Lynn Hunt. Most historians, myself included, agree that these judgments should be avoided. But, in labeling an entire project as presentist, Professor X could not have intended this meaning. Rather, I suspect that the professor was using presentist to mean “motivated primarily by present-day concerns” and “seeking to be relevant in our present moment.”

To this charge, I must plead guilty – with one caveat. History that is motivated by present-day concerns is not all “law office history” or “history lite,” which are both perjorative terms for when lawyers assemble cherry-picked historical evidence to support their legal claims. Law office history starts with a conclusion about the past (usually one that serves the author’s legal position) and then seeks evidence that will support the conclusion. Professor X likely feared that I would write law office history because I was coming to graduate school directly from practice. In response, I took this concern seriously and I consciously tried to avoid engaging in law office history.

My interest in the present has surely guided my choice of topics. (Would I have embarked on a project about the history of consumer credit regulation if I had not worked as a legal services lawyer defending low-income homeowners in danger of foreclosure during the subprime mortgage crisis?) But I strive to prevent my own values and views on present-day policy from driving my historical conclusions. Instead, over the course of researching City of Debtors, I tried to follow where my sources led me and hoped that they would yield conclusions about the past that would be of some value in policymaking. I’ll present a few examples in my next post.

Monday, March 12, 2018

Donald on Dealers and Securities through the Ages

This one may interest me more than the rest of you, because I’ve just finished John C. Loeser’s Over-the-Counter Securities Market: What It Is and How it Operates ((1940).  But here goes anyway: David C. Donald, Chinese University of Hong Kong Faculty of Law, has posted From Block Lords to Blockchain: How Securities Dealers Make Markets:
Technology is currently bringing a decisive wave of innovation and disruption to the financial industry. There are many promises and predictions of where this will go, but the best source of information for projecting the future’s trajectory is history. History shows us that markets began decentralized, centralized from the 18th century around trading venues, and then gravitated again toward decentralization thanks to data transmission. The “gravity” that has shaped this process is broker-dealer choice. The medium in which the process has occurred is technology. Law has occasionally – but not always – played an important role.

Merchant firms of varying size and specialization have traded securities largely through private networks at least from 1200, and then since about 1800 in clubs and quasi-public organizations called “exchanges”. Around 2000, major broker-dealers began to re-internalize trading into proprietary matching platforms, a return to private networks. The move to decentralization accelerated around 2015 with an intense interest in blockchain or other forms of distributed ledger technology.

Securities trading has thus migrated from private networks to public forums and appears to be returning to private networks again. This evolution has been shaped by law and technology, but is driven by the interests of the broker-dealers that both design and operate the markets. As trading concentrated in exchange venues slips into history, it is important to understand what is happening. The dis-integration of securities trading, commonly understood as stimulating innovation and lowering trading costs through competition among matching platforms, is arguably reducing market quality for all other constituents, such as issuers, investors, regulators and the taxpayers who support them, while increasing control of the largest institutions over access to the market.

Collings on the Supreme Court and the Memory of Evil

Justin Collings, Brigham Young University - J. Reuben Clark Law School, has posted The Supreme Court and the Memory of Evil, which is forthcoming in the Stanford Law Review:
This Article commemorates the Sesquicentennial of the Fourteenth Amendment by exploring the Supreme Court’s engagement with the memory of slavery and segregation. It examines major decisions, not merely as jurisprudential landmarks, but as monuments of collective memory. The Article suggests that the Court has invoked the memory of slavery and segregation in two primary ways—through two distinct “modes” of memory. The first of these, which I call the parenthetical mode, responds to the evil past by stressing continuities with an older, nobler tradition. It presents the evil era as exceptional and aberrational, and it depicts the constitutional response to the evil era as a terminal close parenthesis. The second framework, which I call the redemptive mode, highlights caesura, rather than continuity, and underwrites aggressive judicial action to eradicate any lingering vestiges of past evils. The Article contends that, in every period of the Court’s history—including the present—the parenthetical mode has predominated over the redemptive. The immediate effect, at times, has been pernicious. The cumulative effect has hindered the Court and the country from coming to terms with the evils of our past.

Kang on Holmes and Maniliness

Forgive me--or, better yet, inform us all with a comment--if I’ve missed some of the literature, but I’ve been wondering when someone would return to the history of masculinity and the history of the legal profession since Michael Grossberg’s landmark essay, which I relied on so heavily in a chapter in Lawyers against Labor on an anti-labor lawyer ten years Holmes’s junior.  Now comes Oliver Wendell Holmes and Fixations of Manliness (Routlege), by John M. Kang, St. Thomas University School of Law:
Major Oliver Wendell Holmes, Jr. (LC)
Oliver Wendell Holmes, Jr. has been, and continues to be, praised as America’s greatest judge and he is widely considered to have done more than anyone else to breathe life into the Constitution’s right of free speech, probably the most crucial right for democracy. One indeed finds among professors of constitutional law and federal judges the widespread belief that the scope of the First Amendment owes much of its incredible expansion over the last sixty years to Holmes’s judicial dissents in Abrams and Gitlow.

John M. Kang offers the novel thesis that Holmes’s dissenting opinions in Abrams and Gitlow drew in part from a normative worldview structured by an idiosyncratic manliness, a manliness which was itself rooted in physical courage. In making this argument, Kang seeks to show how Holmes’s justification for the right of speech was a bid to proffer a philosophical commentary about the demands of democracy.
TOC after the jump.