CONFERENCE PROGRAM: Annual Meeting of the American Society for Legal History (Banff, 12-14 NOV 2026)

The draft program for the American Society for Legal History’s annual meeting (cf call earlier on this blog) is available here.

CALL FOR ABSTRACTS: Annual Meeting of the American Society for Legal History (Banff, 12-14 NOV 2026); DEADLINE 24 MAR 2026

(image source: lawandhistoryreview)

 

The Program Committee of the American Society for Legal History invites proposals for the 2026 meeting to be held November 12-14 in Banff, Canada. Panels on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The online portal will open in early January 2026. The deadline for Pre-Conference Symposia proposals is Friday, February 27, 2026. The deadline for all other submissions is Tuesday, March 24, 2026.

Panel proposals should include the following: a CV with complete contact information for each person on the panel, including chairs and commentators; 300-word (maximum) abstracts of individual papers; and a 300-word (maximum) description of the panel. Only complete panel proposals will be considered. All conference panel slots will be 90 minutes long.

Scholars looking to build a panel may post their potential paper topics here. We encourage individuals to peruse this spreadsheet to identify other scholars with common interests, beyond their familiar networks. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All program participants must be current members of the Society by the date of the Annual Meeting. Information on how to build a successful panel can be found here. The Program Committee especially encourages panels that include participants from groups historically underrepresented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

Besides traditional panels featuring presentations of work in progress, the Program Committee welcomes other forms of structured presentation, such as a skills/pedagogical workshop (chair, 3-4 presenters) or a roundtable format (chair, 3-5 presenters).

In addition to the above formats, the Program Committee accepts proposals for the following three types of panels:

New Directions: The purpose of these panels will be to identify cutting-edge methodological and topical directions in legal history, to define new subfields, and/or generate dialogue among scholars whose recent books (published since 2023 or forthcoming) have tackled common historiographic questions. These panels may feature three to five authors of new books organized by theme, chronology, or methodology and may also include scholars writing review essays of a field, or others similarly positioned. For a panel featuring new books, the session abstract should include the author, title, publisher, and publication date for each proposed book. Please note that the Program Committee will devote only a very small number of sessions to this type of panel (likely 2-3) that are able to clearly develop broad analytical themes among the included monographs and that illuminate shifts in the “state of field” in a particular area rather than descriptions of the books themselves. The Program Committee will not accept proposals for “Author-Meets-Readers” panels for the 2026 meeting. Book authors are encouraged to apply for:  “Making Connections: New Works in Legal History.”

Poster Presentations: This year’s Annual Meeting will dedicate space during the conference for poster presentations on any aspect of legal history in the main conference common area. Participants in the poster presentations will also join in a “lightning round” panel session to introduce their projects. Individuals interested in participating in this session should submit a short description of their project (up to 300 words) as well as a CV. Accepted participants will be asked to submit a poster design to the organizers by early October. Posters will be printed onsite.

Graduate Lightning Round: In this session, 8-10 graduate students briefly introduce their projects and receive feedback and questions from the audience. Interested graduate students should submit their CV and an abstract of their paper. Note that given the large size of the panel, an individual presenter in this session has much less time to present their work than in a traditional panel with 3-4 presenters.

Read more here.

PRIZE: American Society for Legal History Dissertation Prize Winners 2024

 
(image source: ASLH)

 The American Society for Legal History announced its 2024 prize winners:

• Min Tae Cha, “Constitutional Religion: Presbyterians between the British and American Empires,” (Princeton University, 2023) [William Nelson Cromwell Dissertation Prize]
• Aden Knaap, “Judging the World: International Courts and the Origins of Global Governance, 1899–1971” (Harvard University, 2023) [ASLH Max Planck Dissertation Prize for European Legal History in a Global Perspective]

Read more here.

CALL FOR APPLICATIONS: American Society for Legal History Virtual Book Club (DEADLINE: July 1, 2023)

(Image source: American Society for Legal History)

The American Society for Legal History Book Club is a monthly event series that will bring together ASLH members to engage virtually with authors about their recently published books.

The Book Club will provide ASLH members the opportunity to gather on a regular basis throughout the year and discuss recently published work.  In doing so, our hope is to sustain and enrich the existing legal history community as well as welcome new people, some of whom may be new to thinking of themselves as doing legal history.

Each Book Club will feature a conversation between an author and an interlocutor of their choosing, followed by Q&A. Book Club events will be 1 hour, on Zoom, hosted by the ASLH Digital Initiatives Working Group.  Events will be held monthly, typically on Wednesdays, 6-7 pm (central).

There is no expectation that audience members will have read the book; discussion will be structured accordingly.

• Eligibility:  Books published since January 2021 (major articles will also be considered). Scholars at all career stages working in all geographic and chronological fields of legal history (or work expected to be of interest to legal historians) can apply. ASLH membership is not required to present at the Book Club. This call is for Book Club events from Sept. 2023-March 2024.  (There will be a second call for Book Club Events from April – Aug. 2024.)
• Applications: max. 1 page with: Book Author, Title, Publisher and Publication date; Book Abstract (1 paragraph); Author Bio (1 paragraph); Interlocutor Bio (1 paragraph)
• Deadline:  July 1, 2023

Please direct Questions & Submissions to Barbara Welke (welke004@umn.edu)

More information can be found here.

CALL FOR PAPERS: American Society for Legal History Student Colloquium (25-26 OCT 2023; DEADLINE 1 JUN 2023)

(Image source: Wikimedia Commons)

The American Society for Legal History will host its tenth annual Student Research Colloquium (SRC) on Wednesday, October 25, and Thursday, October 26, 2023, in Philadelphia, Pennsylvania, USA.  Each year, the SRC brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress research projects with each other and with ASLH-affiliated scholars.

Target applicants include early-post-coursework Ph.D. students and historically minded law students.  All students whose research touches on legal-historical themes are encouraged to apply, whatever the chronological or geographical focus.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history.  A student may present a paper at the annual meeting and participate in the SRC in the same year.

The ASLH will at least partially and, in many cases, fully reimburse students’ travel, hotel, and conference-registration costs.  

To apply, please submit the following three items to John Wertheimer at:  srcproposals@aslh.net:

• a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
• an up-to-date CV; and
• a two-page, single-spaced research statement that contains a working title and describes the in-progress research project that you would like to present at the colloquium.

 

Application deadline: June 1, 2023

(Source: H-Law)

JOURNAL: Law and History Review (Volume 40 - Issue 3 - August 2022)

(Image source: CambridgeCore)

ARTICLES

The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis (Noga Morag-Levine) / OPEN ACCESS

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

The Reconstruction of Federalism: Foreign Submarine Telegraph Cables and American Law, 1868–78 (Brooks Tucker Swett) / OPEN ACCESS

In the wake of the Civil War, Americans contested the relationship between the federal government and states. Conflict over federal authority played out in concrete and surprising terms in a controversy that erupted in 1868 surrounding regulation of international telegraphy. The debate, which has remained largely unexamined, centered on whether a state could authorize a foreign company to land a submarine telegraph cable on American shores without Congress’s permission. Scholars have scrutinized consequences of the revision of federalism for individuals’ rights but have devoted less attention to implications for the nation’s international relations and commerce. The regulation of foreign cables, however, proved a key testing ground for the federal government’s efforts to assert sovereignty before both state authorities and other nations during Reconstruction. The episode revealed varied alliances and sources of opposition that emerged amid attempts to project federal power. It also reflected many Americans’ growing expectations of an expanded role for the national government in commerce and the international sphere—a position the federal government realized only haltingly. Intractable problems of federalism contributed to congressional inaction. While undertaking the formidable work of reconstructing the Union, the United States government struggled to delineate the physical boundaries of its authority.

From Reciprocity to Territoriality: Extradition, the Opium War, and the Idea of British Sovereignty in Hong Kong, 1842–44 (Ivan Lee) 

This article examines a key ambiguity in the Opium War treaties of 1842-1843, which concerned the legal status of Hong Kong’s native Chinese population. Overlooked in existing studies, the question was whether the cession of Hong Kong entailed British jurisdiction over crimes involving Chinese people inter se. To British minds, the idea of territorial sovereignty pulled against the reciprocal premise of the treaties, by which China and Britain enjoyed an absolute right to discipline their own offenders. To square the circle, British officials mooted various compromises steeped in extant ideas of sovereignty and subjecthood. Subsequently, all efforts at a principled policy were abandoned following a pivotal murder in eastern Hong Kong. Seven Chinese suspects were examined at the colonial magistracy for possible surrender to China, but the hearing was construed after the fact as a full trial and acquittal, which anchored exclusive British jurisdiction on the island. Thus, Hong Kong lay at the intellectual centre of Britain’s incipient Chinese Empire. The meaning of the Opium War treaties was shaped through iterative domestic discourse, in which the ideas of territorial sovereignty, extradition, and extraterritoriality were mutually constitutive, and law-making involved the retrospective rationalization of equivocal events and decisions on the ground.

Reforming Women, Protecting Men: The Prosecution of Infanticide in Venezuela's Early Republic, 1820–60 (Reuben Zahler)

Court records for infanticide present several mysteries. In three centuries of colonial rule, Venezuela’s Mérida province had just one court case for infanticide. During the first three decades of Venezuela’s independence, the province had over thirty cases, while the country’s other provinces had none. The defendants in these cases were all poor, illiterate, single women. Curiously, court officials endeavored to acquit even in the face of incriminating evidence, such that the courts convicted only those mothers that confessed. This article explores how these women explained to officials why they killed and/or hid the body, and why the judicial system prosecuted these cases, given that the colonial system did not and officials were inclined to acquit. The investigation finds that the mothers explained their actions as principally due to economic and emotional desperation, including fear of punishment from their parents, rather than an intent to preserve their feminine honor. Further, the provincial judicial system began to prosecute this crime as part of a larger project to build a liberal, patriarchal republic. The prosecutions facilitated civilian-state relations, legitimized nascent institutions, sought to protect the mothers and “reform” their morals, and shielded fathers from responsibility for illicit sex.

FORUM: THE EVERYDAY MATERIALS OF COLONIAL LEGAL SPACES

The Stuff of Legal History (Fahad Ahmad Bishara)

This concluding reflection on the forum, “The Everyday Materials of Colonial Legal History,” seeks to emphasize the contributing essays engagement with historical methodologies that take seriously objects, signs, and the theatrical.

Half Real: Presence and Absence in Mexico's Juzgado General de Naturales (Bianca Premo)

This article centers on the materiality of Indigenous legal interactions with the viceroy in the special colonial court, the Juzgado General de Naturales, which was located, at least ostensibly, inside the viceregal palace in Mexico City. The partial destruction of the palace during a riot in 1692—a year that roughly bisected Spanish colonial rule in Mexico— serves as a focal point for exploring the dynamic history of personal encounters and physical space in the viceregal jurisdiction from the court's founding in the late sixteenth century through the eighteenth century. It surveys the architectural features of the palace, traces the viceroys’ disappearance from audiences with Indigenous subjects at the beginning of the seventeenth century, and charts native petitioners’ own growing reliance on proxies and papers rather than appearances in the court. By focusing on physical presence within the Juzgado’s operation, the court reveals itself as a space of absence and abstraction as much as pomp and procedure.

Taking the Courts to the Fields: Law, Violence, and Agrarian Custom in Colonial Oaxaca, Mexico (Yanna Yannakakis) / OPEN ACCESS

This article, part of the forum “The Everyday Materials of Colonial Legal Spaces,” analyzes how Spanish law intersected with longue-durée Indigenous histories to pattern performative judicial violence in disputes over boundary lands separating Indigenous communities. During the late seventeenth and eighteenth centuries when population growth and expansion and commercialization of the livestock industry put pressure on Indigenous lands, Native judicial officers used their coercive power and symbols of judicial authority to physically enter boundary lands and shape the course of legal disputes. By combining legal and extralegal procedures, Native officials developed customary patterns of judicial practice and performance proper to their own jurisdiction in which objects invested with political, sacred, and quotidian meaning figured centrally. Staffs of office and whips wielded by Native authorities as emblems of Indian administrative and legal jurisdiction represented one category of the everyday materials of law. Clothing, farming implements, and livestock afforded other tools with which Indigenous farmers and authorities made legal claims. When reading land disputes alongside criminal cases of land invasions across Oaxaca’s judicial archives, it becomes clear that Native officials and farmers used these objects to struggle over territory and authority in cycles of litigation, land titling or contracts of joint-possession, and violence that often endured for decades or centuries, forming an enduring facet of agrarian custom in the region.

“Do Not Harm the Decorum”: Mixed Courts and Cloth in Colonial Indonesia (Sanne Ravensbergen) / OPEN ACCESS

In this article four photographs of mixed law courts (landraad) in nineteenth-century colonial Indonesia are approached as a window to study the materiality and meaning of cloth in courtrooms. The photos grant access to a careful colonial curation as well as complex Javanese hierarchies that were translated onto and through cloth, and its colors and patterns. Batik sarongs, tablecloths, head scarves, robes and gowns, coats and turbans reveal a courtroom of semiotic richness and plurality where different actors were signaling different messages to multiple audiences. This emphasis on cloth contributes to an emergent and rich discussion on the importance of objects in the study of law and empire, that has primarily focused on the materiality of paper and other objects of lawmaking. In the mixed court of the landraad, it was cloth that spoke louder than words and paper. This article emphasizes that in a mixed court the display of a plural world and jurisdictional layering, complicating the binary between direct and indirect colonial rule, was more important than a monolithic reflection of state law. Cloth was crucial to the display of this plural world and used as a way to impose, maintain, alter, insert oneself in or resist colonial rule.

Prisons of Rubble and Paper in Colonial Saint-Domingue and Beyond (Laurie Wood)

Ample scholarship from Foucault onward has probed the origins of prisons as a key technology for modern state control, but overemphasizes the revolutionary era as a moment of invention. The prison existed much earlier and, as this research demonstrates, gradually became a favored tool among many widely-utilized alternatives. Other historians have explored early modern strategies such as exile, used most often to punish recalcitrant subjects when other strategies did not work. This evidence points to a general pattern whereby these forms of control coexisted and even overlapped in an array of punitive options. I theorize coercive strategies as existing together within a “punitive matrix,” in which imprisonment operated as one among many methods of state control, alongside others such as galley labor, banishment, and corporal punishment. Beginning with evidence from Saint-Domingue in the first half of the eighteenth century about prisons, building out from Jean Clavier’s Léogane in the 1740s. It then turns to the archival sources themselves to understand how colonial administrators described prisons. Read together, this evidence highlights the limited power of prisons, and imprisonment, to control imperial subjects, while elucidating some of the pathways chosen by those subjects.

Making Maritime Boundaries in the Bay of Bengal (Kalyani Ramnath)

This essay explores the making of maritime boundaries in the Bay of Bengal in the northern Indian Ocean, emphasizing the role of visualizations in establishing states' jurisdictional claims to unstable coasts and ephemeral islands. These include colonial-era revenue surveys of the Sunderbans, sketches of land formation in the Godavari delta appended to case papers in litigations, nautical charts and inspection reports of the seabed in the Gulf of Mannar, maps drawn at the time of partitioning the subcontinent in South Asia and satellite imagery of the Bay's littoral. These visualizations are the everyday materials that delineate sea space in law, as judges, lawyers and states navigate fluidity and fixity, accuracy and equity in international law.

FORUM: HOLLY BREWER'S "CREATING A COMMON LAW OF SLAVERY FOR ENGLAND AND ITS EMPIRE"

Forum: Holly Brewer's “Creating a Common Law of Slavery for England and its New World Empire”—Introduction (Gautham Rao)

Historians have long since agreed that slavery was central to the social, economic, and political life of the English-speaking North American colonies, and then early United States. Yet the origins of North American slavery have remained far less clear. Holly Brewer's article, “Creating a Common Law of Slavery for England and its New World Empire,” which appeared in a recent issue of Law and History Review, attempted to clarify one key question within this puzzle. Did judges and legislatures in the colonies create their own institution of slavery? Or did they borrow from English precedent? For Brewer, the answer is clear: seventeenth and eighteenth century English judges, merchants, and others, in tandem with “crown policy,” built the institution of slavery that would be “a foundation for a common law of slavery in all English colonies and for the slave trade.” Slavery, in other words, was legal in England before the Somerset decision. It would thus be legal in the British Empire.

Slavery, Law, and Race in England and its New World Empire (Dana Y. Rabin) / OPEN ACCESS

This paper responds to Holly Brewer's article “Creating a Common Law of Slavery for England and its New World Empire.” Brewer traces a process begun by Charles I, in collaboration with his appointed judges, to legalize the buying and selling of people in England and its Empire. Brewer's work is a much-needed reconstruction of the legal precedents that transformed people into chattel, enabling the business of slavery in the seventeenth and eighteenth centuries. Yet race does not receive any engagement as a category of analysis. Missing is an account of the historical processes whereby laws about slavery contributed to racial formation. Although the global expansion of the British Empire coincided with a new emphasis on rule of law and equality before the law, bound labor and persistent questions of race, gender, status, age, nation, and boundary called attention to the contradictions embodied in Enlightenment thought and its proclaimed universal values.

Beyond Somerset?: Slavery and the Temporality of Law (Asheesh Kapur Siddique) / OPEN ACCESS

This is an invited comment on Holly Brewer's LHR article, “Creating a Common Law of Slavery for England and its New World Empire.”

More information can be found here.

JOURNAL: Law and History Review (Volume 40 - Issue 1 - February 2022)

(Image source: CambridgeCore)

ARTICLES

Bengal Regulation 10 of 1804 and Martial Law in British Colonial India (Troy Downs)

This article examines the East India Company's Bengal Regulation 10 of 1804, a legal statute that enabled martial law to be enforced by the in British colonial India. The use made of this little studied yet significant emergency regulation, its perceived legal deficiencies, and in particular, the discord that arose between the military and civil authorities over how and who should be administer it will be discussed with reference to the promulgation of martial law by the British during the Cuttack Uprising of 1857, the Indian “Mutiny” or Revolt of 1857, and in response to the civil unrest in the Punjab during 1919. While martial law was itself ring fenced by legislation that determined the legal grounds for its inauguration and for its cessation, the implementation of martial law by the British military forces in India was marked by the absence of law.

The Requerimiento in the Old World: Making Demands and Keeping Records in the Legal Culture of Late Medieval Castile (Yanay Israeli) / OPEN ACCESS

This article analyses the place of the legal procedure known as requerimiento (requirement) in the social life of late medieval Castile. Drawing on archival sources from the fourteenth and fifteenth centuries, it examines how Castilians deployed the requerimiento and what meanings and functions this procedure assumed, particularly in processes of conflict-management. While much has been written about the requerimiento as a ritual of conquest in Spanish America, the place of this procedure in the legal culture of late medieval Castile has received little scholarly attention. By examining how the requerimiento operated within the world of civic disputes in Castilian villages and towns, this study brings to light a rather unknown background for the more familiar requerimiento, the colonial ritual of the sixteenth century.

A New Foundation for Freedom of Movement in an Age of Sovereign Control: The Liberal Jurisprudence of August Wilhelm Heffter (Christopher Szabla)

This article addresses how a once influential but now obscure jurist addressed a potential paradox in liberal thought—between democratic control over borders and transnational rights—as it arose in the mid-nineteenth-century, amid advocacy against authoritarianism and for free trade and movement, on the one hand, and the increasing calling into question of natural law theories that may have best facilitated free movement, on the other. While scholarship has increasingly shown how the boundaries between periods of natural law and positivist hegemony are difficult to distinguish, specific tensions in the mid-nineteenth-century called for an approach that preserved free movement in light of the growing appeal of empiricism and state sovereignty. In this context, August Wilhelm Heffter proposed that states were bound by higher law as a consequence of their free decision to enter international communities: these communities’ purpose, he wrote, bred customary laws facilitating interstate interaction. Heffter’s approximation of “natural” law in a more positivist context and his use of the period’s “customary” logic helps account for his influence not only in periods of free trade and movement’s ascendancy but also the survival of forms of his thought into periods of sovereigntist reaction against them. It therefore holds potential to address what scholarship has termed today’s “liberal paradox” between democracy and migration better than approaches that emphasize a more complete return to natural law.

Policing Jim Crow America: Enforcers’ Agency and Structural Transformations (Anthony Gregory)

This is a critical historiographical essay animated by the research question of how the decisions of police and sheriffs illuminated and drove the transformation of white supremacy through different forms from emancipation to the end of Jim Crow segregation. It situates this focus amidst current methodological trends that stress structural oppression and argues that law-enforcers’ agency could illuminate discussions among historians and other scholars about the relationship between formal and informal law alongside the rise of the modern criminological state. The historical importance of enforcers is accentuated in the story told in each section—the shifting demographics of enforcement during Reconstruction; the inequalities of policing alongside lynching in the last decades of the nineteenth century; the complex interplay between policing and segregation statutes, colorblind criminal law, and mob violence in the Jim Crow South; the concurrent modernization of racialized policing nationwide; and the displacement of informal mob law and formal racial caste by a national regime of extralegal police violence, unequal patterns of incarceration and execution, and federal protections of civil liberties and civil rights.

Garland's Million; or, the Tragedy and Triumph of Legal History: American Society for Legal History Plenary Lecture, New Orleans, 2021 (John Fabian Witt) / OPEN ACCESS

This article reprises the Plenary Lecture from the American Society for Legal History Annual Meeting in New Orleans, Louisiana, in November, 2021. Witt presents the story of cases that are quintessential examples of the kind of broken success that law makes available and that legal history helps us see. In other words, these cases make visible that the at-best-tragic realization of ideals is built into the mechanisms of the law.

Hanging Matters: Petty Theft, Sentence of Death, and a Lost Statute of Edward I (Henry Summerson)

This article discusses an important aspect of the law relating to theft in thirteenth-century England, and one of the ways in which that law developed. Central to it is the argument that the treatise The Mirror of Justices and references in court records and reports show that a short statute enacted early in the reign of Edward I, probably in 1278, categorically defined 12d. as the amount, whether in goods or money, at which larceny became a capital felony, incurring judgment of death. As well as setting out the evidence for this hitherto overlooked ordinance, the article also argues that the statute can be associated with some significant developments in the way petty theft was treated subsequently. In particular it had the effect of promoting the development of penal imprisonment, while since the task of valuation was given to trial juries, it further enhanced the leading role of the latter in determining the fates of the men and women whose lives depended on their verdicts.

BOOK REVIEWS

• Lisa Ford, The King's Peace: Law and Order in the British Empire. Cambridge, MA: Harvard University Press, 2021. Pp. 336. $35.00 hardcover (ISBN 9780674249073) (Christian R. Burset);
• Aaron Griffith, God's Law and Order: The Politics of Punishment in Evangelical America. Cambridge, MA: Harvard University Press, 2020. Pp.335.00. $35 hardcover (ISBN 9780674238787) (Justin Marceau); 
• Courtney E. Thompson, An Organ of Murder: Crime, Violence, and Phrenology in Nineteenth-Century America. New Brunswick, NJ: Rutgers University Press, 2021. Pp.259. $120.00 hardcover (ISBN 9781978813076); $28.95 paperback (ISBN 9781978813069) (Brandon T. Jett);
• Paul Sabin, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. New York: W.W. Norton & Company, 2021. Pp. 272. $26.95 hardcover (ISBN 978-0-393-63404-4) (Joanna Grisinger); 
• Macabe Keliher, The Board of Rites and the Making of Qing China. Oakland: University of California Press, 2019. Pp. 288. $80.00 hardcover (ISBN 9780520300293) (Thomas Buoye); 
• Stefan Kirmse, The Lawful Empire: Legal Change and Cultural Diversity in late Tsarist Russia. Cambridge: Cambridge University Press, 2019. Pp. 310. $99.99 hardcover (ISBN 9781108499439) (Sergei Antonov); 
• Emily Whewell, Law Across Imperial Borders: British Consuls and Colonial Connections on China's Western Frontiers. Manchester: Manchester University Press, 2019. Pp. 214. £80.00 hardcover (ISBN 9781526140029) (Pär Cassel); 
• Diana S. Kim, Empires of Vice: The Rise of Opium Prohibition across Southeast Asia. Princeton: Princeton University Press, 2020. Pp. 336. $35.00 hardcover (ISBN 9780691172408) (Carl A. Trocki)

More information can be found here.

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.

JOURNAL: Law and History Review - Volume 39, Issue 2 - May 2021

(Source: CUP)

Forum: Rethinking the Criminalization of Childbirth: Infanticide in Premodern Europe and the Modern Americas

Introduction: Rethinking the Criminalization of Childbirth: Infanticide in Premodern Europe and the Modern Americas

Sara McDougall, Felicity Turner, pp. 225-228

Pardoning Infanticide in Late Medieval France 

Sara McDougall, pp. 229-253

Abstract: The handling of infanticide in late medieval France offers modern audiences an underappreciated paradox: on the one hand infant murder was deplored as grave sin and crime, on the other hand, it was a pardonable offence, even the infanticidal singlemother who had killed to conceal her sin could obtain royal grace. This is far more than the usual story of law differing from practice. Christian ideology of mercy and forgiveness for sin played a central role in shaping the regulation of illegitimate births as well as abortions, stillbirths, and infanticide. Church and secular authorities alike sought to prevent as well as punish the death of infants, but they also created and implemented systems of justice with the explicit purpose of providing mercy to the repentant murderer, even an infanticide. 

 

Turning a Blind Eye: Infanticide and Missing Babies in Seventeenth-Century Geneva

Sara Beam, pp. 255-276

Abstract: In August 1677, the Genevan consistory, a church court preoccupied with regulating sexual sin, summoned Louise Bouffa. Louise was a single woman recently hired by the wealthy Sarasin family as a wet nurse, an occupation that signaled to the consistory that she had recently given birth. The pastors and elders wanted to know who the father was and where the child was now. Louise was at first evasive. She claimed not to know the name of the father, although she did admit that the man with whom she had had sex was “very well dressed.” She said that she had given birth not far from Geneva, in the village of Gy, where the baby had been baptized and then had died. These claims turned out to be false. The Genevan consistory contacted the pastor in Gy who denied that her child had been baptized there. Summoned to tell the truth, Louise admitted that she had given the baby away to a man named Bertet to present as his own child for baptism, although she added that she was aware he had not done so. She also revealed that the father of the infant was a well-respected Genevan citizen and lawyer, Léonard Revillod, in whose household she had been working when she became pregnant. The consistory admonished Louise for lying about the baptism and sent her and her master to the criminal court to be prosecuted. This court, an elected body called the Small Council, duly fined Léonard for having had sex with his servant and for having “obliged her to give the baby to a stranger.” As for Louise, she was merely sent back to the consistory, which excluded her from participating in communion. No further investigation of the fate of the infant ensued. 

 

The Contradictions of Reform: Prosecuting Infant Murder in the Nineteenth-Century United States

Felicity Turner, pp. 277-297

Abstract: “The Contradictions of Reform” analyses the complications of reform of legislation regulating punishment for women convicted of infanticide in Connecticut between 1790 and 1860, within the context of broader social, cultural, and legal understandings of the crime within the US. These changes are investigated through a close reading of petitions for clemency to Connecticut's General Assembly in which women convicted of the crime petitioned the state legislature seeking reduced sentences. The article argues that although the nineteenth century opened with legislation that promised death to all women convicted of infanticide, in practice courts and juries never imposed the penalty. Instead, juries proved reluctant to convict and/or death sentences were not imposed, even if juries found women guilty. In the early decades of the nineteenth century, the Connecticut Assembly reformed existing infanticide law in response to a number of social debates about the merits of the death penalty, particularly for women. The article argues, however, that these reforms counter-intuitively resulted in less favorable outcomes for those convicted of the crime, as they found themselves facing lengthy prison sentences. Such an outcome was unlikely in the early decades of the nineteenth century. The article, therefore, demonstrates, the “contradictions of reform.”

Maternity and Morality in Puebla's Nineteenth-Century Infanticide Trials 

Nora E. Jaffary, pp. 299-319

Abstract: The criminal trials of twenty-seven women processed for the crimes of abortion and infanticide in the state of Puebla, Mexico during the nineteenth century reveal both community and state perspectives about contemporary notions of gender, motherhood, and honor. This paper argues that while there was an increase in both denunciations and convictions for these crimes in the nineteenth century, women's peers acted as reluctant participants in their incrimination. Both local and higher court justices convicted women more frequently for abortion and infanticide than they had done in the colonial era, but nonetheless sentenced them with considerable leniency. Some of the explanation for their leniency lay in court officials' view that indigenous women, who constituted a considerable percentage of the defendants, were too “rustic” or “ignorant” to be held responsible for their actions. The cases also reveal, however, that courts and communities shared the view that any means–including committing violent crimes or hiding pregnancies–justified the ends of protecting plebeian women's reputation of sexual honor.

Forum: Originalism and Legal History: Rethinking the Special Relationship

 

Written Constitutionalism, Past and Present

Jonathan Gienapp, pp. 321-360

Abstract: Debates over constitutional originalism almost always center on meaning. Questions are typically focused, concentrated on the meaning of particular constitutional clauses at the moment of their inception: the Commerce Clause in 1787, the Second Amendment in 1791, or the Fourteenth Amendment in 1868. Given the prevalence of these investigations, theoretical and methodological debates over how to recover original constitutional meaning are concentrated on either the kind of meaning that should be targeted—original public meaning, original intended meaning, or original legal meaning—or how that meaning can be recovered—through conventional legal reasoning, corpus linguistics, or thick reconstruction of historical context. Regardless, virtually all originalist theories of meaning uncritically presuppose the nature of the object possessing that meaning: they take as given what the Constitution itself is and, by implication, what it has always been. Although it might not be clear what the Constitution originally meant, it is straightforward what the original Constitution originally was. It just is the Constitution.

 

Does Originalism Have a Natural Law Problem?

John Mikhail, pp. 361-367

Abstract: Gienapp's critical move is to shift our attention from semantics to ontology. What is the Constitution? How was it conceived to exist in 1787, and how has that conception changed over time? These questions must be squarely addressed, he insists, before asking what the Constitution means. Does this whole text-focused enterprise rest on a mistake? Drawing on a wealth of primary sources and modern scholarship, Gienapp makes a strong and interesting case that it does. Boiled down, his main argument is that the founders were predominantly natural lawyers, and thus conceived of law quite differently than most originalists typically do.

Review Essay

Taking the Discipline of Law Seriously: Twining, Arthurs, and Histories of Academic Lawyers

Susan Bartie, pp. 369-381

Abstract: In 2019, William Twining and Harry Arthurs, academic lawyers whose careers peaked during the second half of the twentieth century, published memoirs revealing the central motivations and forces underlying their intellectual endeavor. Their books are a source of great nourishment, provoking readers to think deeply about the central challenges of the discipline of law and what might be done to bring it closer to realizing its full potential. They also reveal what it was like to be a leading academic who pushed disciplinary boundaries, challenging central disciplinary norms repeatedly, over many decades, while the universities and societies surrounding them grew in size and enjoyed increased prosperity and while academics—legal and otherwise—were cast in changing lights. During this time, writing and teaching about the nature and purposes of law moved from the desks of a few well-known figures into the hands of an increasingly diverse mass. This review considers and compares the contributions of these memoirs to the history of legal scholars. It also examines the relevance of each book to their primary readership: twenty-first century academic lawyers.

Government, Money, and the Law

Nick Mayhew, pp. 383-396

Abstract: Christine Desan's Making Money: Coin, Currency, and the Coming of Capitalism provides an authoritative answer to a fundamental question about medieval English money that has puzzled a few scholars, but that has been largely ignored by most: were medieval payments normally weighed or counted? The same question can be expressed differently as: were payments made by weight or by tale at face value; or again, was the value of money determined by its intrinsic content or by royal decree? But why might this curious distinction between counting payments and weighing them matter?

 Book Review

Stephanie Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature, Oxford: Oxford University Press, 2020. Pp. x, 224. $70.00 hardcover (ISBN 9780198861430).

Lorna Hutson, pp. 397-398

 

Kathryn D. Temple, Loving Justice: Legal Emotions in Blackstone's England, New York: New York University Press, 2019. Pp. viii, 265. $45.00 hardcover (ISBN 9781479895274).

Emily Ireland, pp. 399-400

Christopher Casey, Nationals Abroad: Globalization, Individual Rights, and the Making of Modern International Law, Cambridge: Cambridge University Press, 2020. Pp. 316. $39.99 cloth (ISBN 9781108784047). - Nimisha Barton, Reproductive Citizens: Gender, Immigration, and the State in Modern France, 1880–1945, Ithaca: Cornell University Press, 2020. Pp. 306. $54.95 cloth (ISBN 9781501749681).

Dina Gusejnova, pp. 401-405

R. W. Kostal, Laying Down the Law: The American Legal Revolutions in Occupied Germany and Japan, Cambridge, MA: Harvard University Press, 2019. Pp 472. $55.00 cloth (ISBN 9780674052413).

Eric M. Adams, pp. 405-410

Eric H. Reiter, Wounded Feelings: Litigating Emotions in Quebec, 1870-1950, Toronto: University of Toronto Press, 2020. Pp. 504. $33.71 paperback (ISBN 9781487526986).

Tina Piper, pp. 410-412

Francis Lieber and G. Norman Lieber, To Save the Country: A Lost Treatise on Martial Law, edited with an introduction by Will Smiley and John Fabian Witt, New Haven and London: Yale University Press, 2019. Pp. 352. $55.00 hardcover (ISBN 9780300222548).

John M. Collins, pp. 412-414

More information on the issue is available with the publisher.

PODCAST: Talking Legal History (Hosted by Ms. Siobhan M. M. Barco, ASLH)

(Source: ASLH)

Since one year, the American Society for Legal History has been making a legal history podcast on new books in legal history.

Talking Legal History is a podcast hosted by Siobhan M. M. Barco, a former litigator and current doctoral student in history at Duke University, whose work focuses on the space where law, gender, and print culture intersect.

The latest episode:

In this episode, Siobhan talks with Robert Chase about his book, We Are Not Slaves: State Violence, Coerced Labor, and Prisoners’ Rights in Postwar America (University of North Carolina Press, 2020). Chase is Associate Professor of History at Stony Brook University.

In We Are Not Slaves Chase draws from three decades of legal documents compiled by prisoners to narrate the struggle to change prison from within. Told from the vantage point of the prisoners themselves, this book weaves together untold but devastatingly important truths from the histories of labor, civil rights, and politics in the United States as it narrates the transition from prison plantations of the past to the mass incarceration of today.

This episode is part of a series featuring legal history works from UNC Press. Support for the production of this series was provided by the Versatile Humanists at Duke program.

All info about the podcast can be found here

ANNOUNCEMENT: American Society for Legal History’s Student Research Colloquium (DEADLINE: 15 June 2020) + Graduate Student Survey

(Source: ASLH)

We received the following announcements from the American Society for Legal History:

1. *Student Research Colloquium*:  The ASLH invites graduate student to apply to the Student Research Colloquium (SRC), currently  scheduled (fingers crossed) for Nov. 11-12,**in Chicago, Illinois, immediately prior to the ASLH annual meeting there.  At this  pre-conference, funded workshop, eight graduate students will discuss their in-progress research projects with each other and with distinguished legal historians.  Target applicants include early-post-coursework Ph.D. students and historically minded law students.  To apply, electronically submit the following four items  to John Wertheimer at: *srcproposals@aslh.net* <mailto:srcproposals@aslh.net>: a CV; a cover letter describing, among other things, how many years remain in your course of graduate study; a two-page, single-spaced Research Statement that begins with a title and describes the in-progress project that you propose to present to the colloquium; and a letter of recommendation from a faculty member, sent separately from the other materials.  The application deadline is *June 15, 2020*.  For more information, click this link <https://aslh.net/early-career-scholars/student-research-colloquium/>.

 2. *Graduate Student Survey*:  The ASLH regards graduate students as an important part of our legal history community.  We are proud of our efforts to date to make the ASLH a hospitable home for early-stage scholars.  But we want to do better.  Among other things, we want to enhance the presence of international graduate students in the organization.  Accordingly, we are gathering information that will help us to make the society an even more inclusive place for early-stage legal historians.  If you are a graduate student or a historically minded law student, please click this link <https://unlv.co1.qualtrics.com/jfe/form/SV_2brvgMJRyua2A29> to take a short survey in English, Spanish, or Portuguese, as you choose. We appreciate your time and hope to see you at the annual meeting in Chicago!