JOURNAL: Law and History Review - Volume 39, Issue 3 - August 2021

(Source: CUP)

Original Article

 

The Enigma of a Taiping Fugitive: The Illusion of Justice and the “Political Offence Exception” in Extradition from Hong Kong

Jenny Huangfu Day, pp. 415-450

Abstract: In 1865, the British Colony of Hong Kong extradited a Chinese shop-owner on a charge of piracy and incited a barrage of criticism when the offender was punished by the infamous “death by a thousand cuts” in Canton upon his rendition. Rumors surfaced identifying him as a rebel chief in the Taiping Rebellion (1850–1864). By excavating court records, diplomatic exchanges, and legal discourses surrounding this case, the article engages in a critical examination of extradition law and implementation in mid-19th century between Hong Kong and China. It examines how the case played into the politics of four administrative localities - Hong Kong, Canton, Beijing, and London - and uncovers the networks of agencies at play. It contributes to the history of extradition by contextualizing the “political offence exception” in international law and explains how this exception, ill-defined and vaguely conceived as it was, found its way into the implementation of Article 21 of the Treaty of Tianjin on the rendition of fugitives from Hong Kong to China, with a significant impact on the Qing's governance and jurisdiction of cross-border fugitives.

 

Uncertain Comparisons: Zionist and Israeli Links to India and Pakistan in the Age of Partition and Decolonization

Rephael G. Stern, pp. 451-478

Abstract: This article examines Zionist/Israeli comparisons and connections to India and Pakistan between 1945 and 1955. While Zionists found striking similarities between the unfolding realities in Palestine/Israel and South Asia, the exact nature of the comparison was quite equivocal. On the diplomatic axis, Israelis sought to establish full diplomatic relations with India by underscoring the similarity of their two nations. Here, comparisons were a way of positioning Israel as an analogue of India. On the technocratic axis, Israelis looked to Pakistan as a model for constructing legal institutions to expropriate Palestinian property. The appeal of Pakistan as a model was due to a perceived glaring difference: Pakistan was a Muslim state, Israel the Jewish State. Meanwhile, as Zionists/Israelis looked to India and Pakistan, Indians returned the gaze. Indian technocrats found the methods Israel used to resettle Jewish refugees and immigrants worthy of emulation. When they came to Israel to study these resettlement efforts, they were-unknowingly-often looking at projects that had been built upon former Palestinian land which the Israeli government had seized using the transplanted Pakistani law-the very same laws that had dispossessed India's new citizens, whom the technocrats were seeking to resettle. This article ultimately uncovers a broader post-imperial technocratic sphere in which nascent states continued to transplant legal institutions developed in other parts of the former colonial world to construct their own.

From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations

Alyssa Penick, pp. 479-512

Abstract: This article clarifies the precise connection between two early national Supreme Court decisions, the little-known Terrett v. Taylor (1815) and the landmark Dartmouth College v. Woodward (1819). The missing link between these cases is incorporation. Both disputes arose in the turmoil of post-Revolutionary disestablishment as state legislatures directly challenged the rights of colonial corporations. While Dartmouth College had been incorporated by a royal charter in colonial New Hampshire, the litigant in Terrett, a parish vestry, had been incorporated under common law in colonial Virginia. After the Revolution, Virginia's legislature disestablished the Anglican Church, disregarded its customary incorporation, revoked its post-revolutionary act of incorporation, and seized parish property. These radical policies set Virginia apart from other states and made these disputes a critical litmus test for the rights of all corporations. John Marshall opposed these policies while serving as a delegate in Virginia's legislature, and his views on these issues prefigured his opinion in Dartmouth College. Virginia's highest court upheld these policies as lawful, but the US Supreme Court's rejected them as unconstitutional in Terret. The Court's ruling in Terrett set a significant precedent for the standing of all private corporations vis-a-vis state legislatures and laid the groundwork for the Court's decision in Dartmouth College.

“A New Ethnology”: The Legal Expansion of Whiteness under Early Jim Crow

Benjamin H. Pollak, pp. 513-538

Abstract: The segregation laws known as “Jim Crow” are often understood as legislative efforts to promote White supremacy by shielding White southerners from contact with other races. This was not the case, however. By analyzing early railway segregation laws–in particular, the 1890 Louisiana law that was challenged in Plessy v. Ferguson–this article shows that the first post-Reconstruction segregations laws used an expansive definition of the “white race” as everyone who was not Black. In short, White purity and separation were the pretext, not the purpose, of early Jim Crow laws. Instead, the structure of legal segregation was initially determined by White, Democratic legislators' efforts to isolate and subjugate Black Americans by reinstating the racial logic of slavery, which had divided the world into Black people and everyone else. To achieve this end, White supremacist lawmakers framed laws that strategically integrated “white” train cars, all the while claiming the laws did the opposite.

The Conservative Press and the Interwar Origins of First Amendment Lochnerism

Sam Lebovic, pp. 539-567

Abstract: In the 1930s and 1940s, the conservative newspaper industry argued that the First Amendment should shield them from New Deal economic regulations. This article uses these forgotten clashes about freedom of the press to provide a new history of the origins and trajectory of the anti-regulatory First Amendment. It shows that conservative newspaper attorneys were at the forefront of efforts to use civil liberties to protect their economic interests in the New Deal. But it argues that these efforts were only partially successful. The courts rejected these maximalist First Amendment claims, distinguishing between economic liberties and civil liberties. But maximalist claims were more successful in the political culture, where conservative newspapers helped legitimize a belief that a laissez-faire “marketplace of ideas“ was a liberal principle with deep roots in the past. The origins of First Amendment Lochnerism thus lie not in judicial precedent, but in contestation in the political culture. A clearer understanding of the dynamics of this long-running effort to deploy civil liberties claims for conservative purposes, the article concludes, will help us better navigate the contemporary crises of the First Amendment.

Voting Trusts and Antitrust: Rethinking the Role of Shareholder Litigation in Public Regulation, from the 1880s to the 1930s

Naomi R. Lamoreaux, Laura Phillips Sawyer, pp. 569-600

Abstract: Scholars have long recognized that the states’ authority to charter corporations bolstered their antitrust powers in ways that were not available to the federal government. Our paper contributes to this literature by focusing attention on the relevance for competition policy of lawsuits brought by minority shareholders against their own companies, especially lawsuits challenging voting trusts. Historically judges had been reluctant to intervene in corporations’ internal affairs and had been wary of the potential for opportunism in shareholders’ derivative suits. By the end of the nineteenth century, however, they had begun to revise their views and see shareholders as useful allies in the struggle against monopoly. Although the balance between judges’ suspicion of and support for shareholders’ activism shifted back and forth over time, in the end the lawsuits provoked state legislatures to strengthen antitrust policy by making devices like voting trusts unsuitable for purposes of economic concentration.

Book Review

 

Bronach C. Kane, Popular Memory and Gender in Medieval England: Men, Women, and Testimony in the Church Courts, c.1200–1500. Woodbridge, UK: The Boydell Press, 2019. Pp. vii, 301. $99.00 hardcover (ISBN 9781783273522).

Emily J. Hutchison, pp. 601-603

Thomas J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law's First Professionals. Oxford: Oxford University Press, 2019. Pp. xvi, 287. $90.00 hardcover (ISBN 9780198845454).

Tom Johnson, pp. 603-604

Nurfadzilah Yahaya, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia. Ithaca, NY: Cornell University Press, 2020. Pp. xi, 241. $49.95 hardcover (ISBN 9781501750878).

Fahad Ahmad Bishara, pp. 605-607

Christopher Tomlins, In the Matter of Nat Turner: A Speculative History. Princeton: Princeton University Press, 2020. Pp. 352. $29.95 hardcover (ISBN 9780691198668).

Honor Sachs, pp. 607-609

 

Doreen Lustig, Veiled Power: International Law and the Private Corporation, 1886–1981. Oxford: Oxford University Press, 2020. Pp. 256. £80.00 hardcover (ISBN 9780198822097).

Peter Muchlinski, pp. 610-612

Edward A. Purcell, Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon. New York: Oxford University Press, 2020. Pp. 310. $34.95 hardcover (ISBN 9780197508763).

Matthew Steilen, pp. 612-615

Susan Bartie, Free Hands and Minds: Pioneering Australian Legal Scholars. Oxford: Hart, 2019. Pp. 323. $94.00 hardcover (ISBN 8791509922611).

John Henry Schlegel, pp. 615-617

Alison C. Carey, Pamela Block, and Richard K. Scotch, Allies and Obstacles: Disability Activism and Parents of Children with Disabilities. Philadelphia: Temple University Press, 2020. Pp. 334. $109.50 hardcover (ISBN 9781439916322); $34.95 paperback (ISBN 9781439916339); $34.95 ebook (ISBN 9781439916346).

Elinoam Abramov, Michael Ashley Stein, pp. 617-619

More information with the publisher.