Inniss on Slavery at Princeton @AuntieFeminist @SMULawSchool

Lolita Buckness Inniss, Southern Methodist University School of Law, has published ‘A Southern College Slipped from Its Geographical Moorings’: Slavery at Princeton at 39 Slavery & Abolition 236 (2018). Here is the abstract.

While slave-owning students at Princeton rarely constituted a majority of students, they were often a large plurality of the students in the antebellum period. Because of Princeton's historic role in educating southerners, it has sometimes been referred to as the most southern of the Ivy League schools. So many students from the United States South enrolled at Princeton during the first several decades of the college that one observer wrote that one might take Princeton for a ‘Southern college slipped from its geographical moorings.’ This article explores the extent to which and whether Princeton behaved like a southern institution in its speech and actions concerning slavery and emancipation.

The full text is not available for download from SSRN.

New From Cambridge University Press: Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England @LizPappKamali @cambUP_History

Now available: Elizabeth Papp Kamali, Harvard Law School, is publishing Felony and the Guilty Mind in Medieval England (Cambridge University Press) in September 2019). Here from the publisher's website is a description of the book's contents.

This book explores the role of mens rea, broadly defined as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century - the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word 'felony' itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, was willed in a way not constrained by necessity, and was evil or wicked in its essence.

Newly published: Frank O. Bowman, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge, 2019)

Newly published: Frank O. Bowman, III, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press, 2019). Here from the publisher's website is a description of the book's contents.

For the third time in forty-five years, America is talking about impeaching a president, but the impeachment provisions of the American constitution are widely misunderstood. In High Crimes and Misdemeanors, constitutional scholar Frank O. Bowman, III offers unprecedented clarity to the question of impeachment, tracing its roots to medieval England through its adoption in the Constitution and 250 years of American experience. By examining the human and political history of those who have faced impeachment, Bowman demonstrates that the Framers intended impeachment to be a flexible tool, adaptable to the needs of any age. Written in a lively, engaging style, the book combines a deep historical and constitutional analysis of the impeachment clauses, a coherent theory of when impeachment should be used to protect constitutional order against presidential misconduct, and a comprehensive presentation of the case for and against impeachment of President Trump. It is an indispensable work for the present moment.

 

Simard on Slavery's Legalism: Lawyers and the Commercial Routine of Slavery @WillametteLaw

Justin Simard, Willamette University College of Law; Northwestern University; American Bar Foundation; has published Slavery's Legalism: Lawyers and the Commercial Routine of Slavery at 37 Law and History Review 571 (2019). Here is the abstract.

Elite southern lawyers professed and demonstrated commitment to a vision of legal practice and decisionmaking that they shared with their northern colleagues, even as legal arguments over slavery and secession played out contentiously in politics and the courts. This vision was rooted, not in commitments to slavery, free labor, or economic development but rather in legalism, characterized by commitment to legal rules and reasoning, and legal practice, distinguished by dedication to routine commercial work. Insulated from many of the political and economic conflicts of the antebellum era, a national legal culture allowed southern lawyers to serve as economic intermediaries between North and South. This article examines this culture through a study of the career of the Georgia lawyer E.A. Nisbet. During his legal education, time on the Georgia Supreme Court, and work as a private lawyer Nisbet demonstrated a consistent commitment to a technical American legal culture that allowed elite southern lawyers like him to support slavery in subtle but important ways.

The full text is not available for download.

Cavanagh on Metaphorical Assessments of Royal Power in Transitional Periods of Monarchy @edward_cavanagh

Edward Cavanagh, University of Cambridge, has published Flowers of the Crown in English Legal Thought: Metaphorical Assessments of Royal Power in Transitional Periods of Monarchy at 6 Royal Studies Journal 38 (2019). Here is the abstract.

This article connects legal history with cultural and intellectual approaches to the history of late medieval England by focusing on the expression, ‘flowers of the crown.’ Believed to have originated in the early Stuart period, this article locates its origins much earlier. After the Angevin kings showed a liking for floriated crowns, a number of poets, clerics, and common lawyers worked flowers into their appraisals of monarchy throughout the fifteenth century. Up to the Stuarts, this metaphor was sometimes helpful for reminding grantees that prerogative donations and delegations, like flowers, cannot be guaranteed to last forever, and indeed eventually die once plucked from their source. This is a finding that prompts consideration of the circumstances that have compelled jurists and politicians to invoke metaphors in their assessments of royal power more generally. In turn, new insights are generated about the crown in modern English thought.

The full text is not available for download from SSRN.

VanderVelde on Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately After Its Enactment

Lea S. VanderVelde, University of Iowa College of Law, is publishing Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after its Enactment in volume 27 of the William & Mary Bill of Rights Journal. Here is the abstract.

In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined. Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.

Download the article from SSRN at the link.

Newly Published: A Cultural History of Law, edited by Gary Watt (Bloomsbury Publishing) @BloomsburyPub @warwickuni

Newly published: A Cultural History of Law (Gary Watt, ed., Bloomsbury Publishing, 2019) (The Cultural Histories Series). Six volumes.

How have legal ideas and institutions affected Western culture? And how has the law itself been shaped by its cultural context? In a work spanning 4,500 years, these questions are addressed by 57 experts, each contributing an authoritative study of a theme applied to a period in history. Supported by detailed case material and over 230 illustrations, the volumes examine trends and nuances of the culture of law in Western societies from antiquity to the present. Individual volume editors ensure the cohesion of the whole, and to make it as easy as possible to use, chapter titles are identical across each of the volumes. This gives the choice of reading about a specific period in one of the volumes, or following a theme across history by reading the relevant chapter in each of the six. The six volumes cover: 1 - Antiquity (2500 BCE-500 CE); 2 - Middle Ages (500-1500); 3 - Early Modern Age (1500-1680); 4 - Age of Enlightenment (1680-1820); 5 - Age of Reform (1820-1920); 6 - Modern Age (1920-present). Themes (and chapter titles) are: Justice; Constitution; Codes; Agreements; Arguments; Property and Possession; Wrongs; and the Legal Profession. The total page extent for the pack is approximately 1200 pages. Each volume opens with a Series Preface, an Introduction and Notes on Contributors and concludes with Notes, Bibliography and an Index.

Includes Volume 1, A Cultural History of Law in Antiquity (Julien Etxabe, ed.), Volume 2, A Cultural History of Law in the Middle Ages (Emanuele Conte, ed.), Volume 3, A Cultural History of Law in the Early Modern Age (Peter Goodrich, ed.), Volume 4, A Cultural History of Law in the Age of Enlightenment (Rebecca Probert, ed.), Volume 5, A Cultural History of Law in the Age of Reform (Ian Ward, ed.), and Volume 6, A Cultural History of Law in the Modern Age (Richard K. Sherwin and Danielle Celemajer, eds.).

Arlyck on The Founders' Forfeiture

Kevin Arlyck, Georgetown University Law Center, is publishing The Founders' Forfeiture in the Columbia Law Review (2019). Here is the abstract.

Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears. As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows — for the first time — that forfeiture in the Founding era was significantly constrained. But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent — which they did, remitting forfeitures in over 90% of cases presented to them. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law. Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits. The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today. This is also an opportune moment to reexamine forfeiture’s historical bona fides. In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

Download the article from SSRN at the link.

Zietlow on Slavery, Liberty, and the Right to Contract @ProfessorRZ

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Slavery, Liberty and the Right to Contract in volume 19 of the Nevada Law Journal (2019). Here is the abstract.

This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract. Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract.

Download the article from SSRN at the link.

Craig on English Adrministrative Law History

Paul P. Craig, University of Oxford Faculty of Law, is publishing English Administrative Law History: Perception and Reality in Judicial Review in the Common Law World: Origins and Adaptations (S. Jhaveri and M. Ramsden, eds., forthcoming). Here is the abstract.

The history of English administrative law remains to be written. It is a task of considerable magnitude, given that it requires understanding of case law, regulatory legislation, government and politics spanning a period of circa 450 years. The task is more especially daunting given the range of different areas that were subject to governmental regulation broadly construed. It is, therefore, unsurprising that the intellectual task has not been fulfilled. This has not, however, translated into a dearth of opinion as to English administrative law history. To the contrary, as will be seen below, there are views in this regard, and some are strongly held. There is, as in any intellectual endeavour, the danger of an inverse relationship between the strength of a person’s conviction and the depth of their knowledge. This chapter is not a history of English administrative law, since that would, as noted, require a book in itself. It does, however, offer a lens through which to view two different conceptions of that history, which are termed perception and reality. These terms are admittedly tendentious, in the sense that they convey, by their very semantic meaning, my view as to the more accurate picture of administrative law as it developed over time. There is, however, nothing special in the use of language in this regard, since those who adhere to the opposite position deploy language that is equally tendentious. The discussion in this chapter is part of the larger study concerning the export and reception of administrative law in other common law jurisdictions. The effect of the disjunction between perception and reality on such export is interesting. The causation is contestable, and does not necessarily always pull in the same direction. Thus, perception of administrative law as being relatively modern may have hampered its development elsewhere, and at the same time encouraged other jurisdictions to feel freer in adapting its precepts to local circumstance. The essence of the argument presented over the following pages is as follows. The commonly held view about English administrative law is that it is of recent origin, some dating it from the mid-twentieth century, some venturing back to the late nineteenth century. This view, when unpacked, is premised on assumptions concerning doctrinal case law and regulation. There is an empirical and a normative foundation underlying both assumptions. This ‘intellectual package’ constitutes the commonly accepted picture of administrative law as it unfolded in England. This, then, is the perception, grounded in four central constructs concerning case law and regulation, viewed from an empirical and normative perspective. It is set out in the first part of the chapter. The discussion thereafter is concerned with what I term the reality. It mirrors the discourse concerning perception, insofar as it considers case law and regulation from both an empirical and normative perspective. It will be argued that the commonly held view does not cohere empirically with reality concerning case law or regulation, and that the normative assumptions underlying the perceived view do not square with the general approach of the legislature or the courts during the foundational period of administrative law, which runs from the mid-sixteenth century onwards, with earlier origins. This disjunction between perception and reality could have had an impact on the ultimate exportability of English administrative law. The chapter concludes with a sketch of the implications for comparative study of other jurisdictions. These implications are the subject of discussion in the remaining chapters of the volume.

Download the essay from SSRN at the link.

Waters and Nelson on Reconsidering the Legal History of Blockade and Submarines in WWI @DeanCWaters @WindsorLaw

Christoper Waters, University of Windsor Faculty of Law, and Robert Nelson, University of Windsor, are publishing Slow or Spectacular Death: Reconsidering the Legal History of Blockade and Submarines in WWI in the University of Toronto Law Journal. Here is the abstract.

In popular culture and imagination, World War I was a bloody, muddy, senseless, almost accidental conflict. International law seems far removed from the causes of the war or the way hostilities were conducted. This seeming irrelevance of international law in popular imagination is rejected in intellectual, literary, and scholarly accounts. However, during the centenary of the war, it is time to rethink the role law played in this first large-scale conflict of the twentieth century. Drawing on recent legal historiography as well as original research, this article will argue, through a look at the conduct of naval warfare, that law was central to how Allied, Central, and neutral states navigated the conflict. Specifically, we examine the role law played in the practices of the warring parties in navigating the interdiction of – and attacks on – the civilian shipping of belligerents and neutrals.

Download the article from SSRN at the link.

Recent Publications in Law and Literature @routledgebooks

ICYMI: Recently published books in the area of law and literature, from Routledge: Chloe A. Gill-Khan, The Politics of Integration: Law, Race, and Literature in Post-War Britain and Frace (Routledge, 2019) (Studies in Migration and Diaspora).

After almost seven decades, Britain and France, nations with divergent political cultures and heirs to contrasting philosophies of 'integration', have proclaimed the failure to integrate their post-war ethnic minorities: at this present time, the ‘Muslim’. The ‘argument’ of this book, therefore, is a question: despite the legal, political and social commitments that emerged from the events of the Holocaust, why do both nations continue to govern minorities on the sites of the law and race? Through comparative readings of British Asian and Franco-Maghrebian literatures, the author examines the contours and patterns of British and French post-war governance and racism over four decades. Departing from prevailing theories in postcolonial studies that situate post-war racism within the narrative of colonialism or the politics of the nation-state, The Politics of Integration shows how we must re-appraise the inter-war histories of minorities if we are to ask more meaningful questions about the present. We are invited to take stock of how well theorization of post-war ethnic populations and their politics have served us in terms of asking: what does history tell us, and how and where do we - Europe and its minorities - go from here? As such, the book will appeal to scholars in multiple disciplines in the humanities and social sciences such as history, philosophy, literature, cultural and postcolonial studies.

 

Baber Johansen, The Islamic Law on Land Tax and Rent: The Peasants' Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (Routledge, 2018) (Routledge Library Editions: Islam, State, Society)

This book, first published in 1988, argues that a close inspection of the development of Hanafite law in the Mamluk and Ottoman periods reveals changes in legal doctrine which were not restricted to civil transactions but also concerned the public law. It focuses in particular on the interrelated areas of property, rent and taxation of arable lands, arguing that changes in the relationship between tax and rent led to a redefinition of the concept of landed property, a concept at the very heart of the Islamic legal system. This title will be of particular interest to students of Islamic history.

 

Livkhovski on The Eagle and the Dove: Jewish Law Scholars and Roman Law During the Interwar Period

Assaf Likhovski, Tel Aviv University, Buchmann Faculty of Law, has published The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie (Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone eds., Torino: G. Giappichelli, 2019). Here is the abstract.

In the early decades of the twentieth century, a group of Jewish legal scholars working in Eastern Europe, and later in Mandatory Palestine, sought to « revive » (i.e., modernize) Jewish law and turn it into the legal system of the Jewish community in Palestine — and later the legal system of the State of Israel. Inspired by the nationalist legal ideas of the German historical school, as well as the successful revival of the Hebrew language, the Jewish legal revival project created a body of scholarship on Jewish law, established the first Jewish law school in Mandatory Palestine, and even influenced the work of a unique communal court system that functioned in the Jewish community in Palestine until the end of British rule in that territory. The Jewish legal revival project had an ambivalent attitude to Roman law (both ancient and modern). Modern scholarship on Roman law, especially nineteenth-century German legal scholarship, was seen as a model to be emulated by the Jewish legal revivers. Indeed, the Jewish legal revival project was often simply understood as a process of reorganization of the materials of Jewish law based on legal categories, models, and methodologies taken from modern Roman law scholarship. On the other hand, the legal revivers saw Roman law as the « other » of Jewish law, often arguing that the principles underlying the latter were utterly different from those of the former. Roman law was thus imagined and used by the early-twentieth-century Jewish law scholars discussed in this article in contradictory ways: sometimes as a legal system that should be emulated, and sometimes as a legal system whose norms and institutions should be shunned. Thus, as this article shows, Roman law, as it was described in the legal thought of the group of legal scholars I study, was used as a foil against which modern Jewish legal identity could be created.

Download the essay from SSRN at the link.

Newly Published: Kathryn D. Temple, Loving Justice: Legal Emotions in William Blackstone's England (NYU Press) @NYUpress

Newly published: Kathryn D. Temple, Loving Justice: Legal Emotions in William Blackstone's England (NYU Press, 2019). Here from the publisher's website is a description of the book's contents.

William Blackstone’s masterpiece, Commentaries on the Laws of England (1765–1769), famously took the “ungodly jumble” of English law and transformed it into an elegant and easily transportable four-volume summary. Soon after publication, the work became an international monument not only to English law, but to universal English concepts of justice and what Blackstone called “the immutable laws of good and evil.” Most legal historians regard the Commentaries as a brilliant application of Enlightenment reasoning to English legal history. Loving Justice contends that Blackstone’s work extends beyond making sense of English law to invoke emotions such as desire, disgust, sadness, embarrassment, terror, tenderness, and happiness. By enlisting an affective aesthetics to represent English law as just, Blackstone created an evocative poetics of justice whose influence persists across the Western world. In doing so, he encouraged readers to feel as much as reason their way to justice. Ultimately, Temple argues that the Commentaries offers a complex map of our affective relationship to juridical culture, one that illuminates both individual and communal understandings of our search for justice, and is crucial for understanding both justice and injustice today.

 

Ortman on When Plea Bargaining Became Normal @WillSOrtman

William Ortman, Wayne State University School of Law, is publishing When Plea Bargaining Became Normal in the Boston University Law Review (Volume 100, 2020). Here is the abstract.

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way? Existing scholarship tells only part of the story. It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement. But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it. That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive. By the 1960s, only four decades later, the legal profession had learned to love it. This article investigates the process that made plea bargaining the normal way of doing American criminal justice. The story unfolds in three parts — plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s. The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure. This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty. By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

Download the article from SSRN at the link.

AALS Section on Legal History Posts Call for Papers For Section Program, 2020 AALS Annual Meeting

The AALS Section on Legal History is pleased to announce a call for papers for its section program, which will be held during the 2020 AALS Annual Meeting in Washington, DC. The program is entitled “A Century of Women’s Suffrage.”

2020 marks one hundred years since the 19th Amendment was ratified, ushering in the last century of women’s suffrage in the United States. This program will bring together scholars writing on the history of women’s suffrage, broadly construed. Submissions should relate to any aspect of women’s suffrage, including exploring the suffrage movement that culminated in the 19th Amendment, addressing how the 19th Amendment affected political parties or politics in the subsequent century, and comparing the women’s suffrage movement to analogous social movements.

Eligibility and Submission Requirements: This Call for Papers is open to all faculty members from AALS member schools. Submissions should not exceed 30,000 words, including footnotes. You may submit a CV as well, but are not required to do so.

Submission Process: To be considered for participation as a panelist, please email a copy of your submission to Evan Zoldan at evan.zoldan@utoledo.edu by July 31, 2019. Participants selected by the Legal History section executive committee will be notified by September 1, 2019.

Questions: If you have any questions about the panel, please contact Evan Zoldan at evan.zoldan@utoledo.edu.  A link to the CFP can be found on the AALS website, here: https://am.aals.org/proposals/section-calls-for-papers/

Bhagwat on Judge Johnson and the Kaleidoscopic First Amendment @AlaLawReview

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing Judge Johnson and the Kaleidoscopic First Amendment in the Alabama Law Review. Here is the abstract.

Judge Frank M. Johnson, Jr.’s decision in Williams v. Wallace, in which Judge Johnson issued an opinion which permitted the Selma March to proceed despite unremitting opposition from local and state authorities, is now a settled part of American history. Furthermore, today few question the underlying correctness of the decision. But in fact, seen in the wider context of modern First Amendment jurisprudence, Judge Johnson’s decision was remarkable. Just how remarkable it was becomes apparent when it is contrasted with a decision of the United States Supreme Court just a year later, Adderly v. Florida, in which the Court upheld the trespass convictions of participants in a civil rights protest on the grounds of a county jail. Adderly, authored by that most vociferous defender of civil rights and liberties Justice Hugo Black, demonstrates that the modern First Amendment has rarely been interpreted to require access by protestors to public property when that access might interfere with its regular uses. Yet in Williams Judge Johnson authorized a 54 mile long march by 25,000 protestors along a public highway! Why did Judge Johnson rule as he did, in the face of precedent and judicial norms? Part of the answer has to lie in the unique back-history of the March, which included stunning acts of violence and brutality on the part of officials and the KKK. But there was a constitutional insight driving Judge Johnson’s decision as well, one that Justice Black missed. The opinion in Williams v. Wallace demonstrates an understanding of two fundamental points about the First Amendment that the modern Supreme Court (beginning, in a very meaningful way, in Adderly itself) has forgotten. The first is that the First Amendment protects multiple political rights, not just free speech. The second is that these rights, though related, are distinct and cumulative. More specifically, Judge Johnson recognized that what was at issue in the Selma March was not just free speech, but also association, assembly and petition, and that these rights fortify one another. In other words, Judge Johnson recognized the kaleidoscopic nature of the First Amendment in its relationship to citizenship and democracy. That is an insight that should not have been lost, and which we would do well to recover today.

Download the article from SSRN at the link.

Ingram on George Washington's Attorneys

Scott Ingram, High Point University, is publishing George Washington's Attorneys: The Political Selection of United States Attorneys at the Founding in volume 39 of Pace Law Review (2018). Here is the abstract.

Current political and prosecutorial norms reflect the belief that the administration of justice must be insulated from partisan politics. Each day, federal prosecutors make decisions regarding people’s lives and liberty. The federal prosecutors decide whom to charge, for what and when. They can charge anyone so long as they have probable cause to believe the person committed a federal crime. Probable cause is not a high standard. Consequently, a federal prosecutor with political ambitions is able use prosecutorial power to advance partisan political purposes. Similarly, ambitious Justice Department lawyers can use their policy-making authority to target political opponents or politically-unpopular organizations. To make this less likely, norms developed to insulate federal prosecutors from political forces. The norms have insulate specific cases and some believe they should also include policy decisions. This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 Judiciary Act and state experience. Part III examines how Washington’s selections and selection process included three of the four politicization categories. The concluding Section briefly explores the ramifications of politicization and its potential benefits in today’s prosecutorial environment.

Download the article from SSRN at the link.

Dudziak on Hitler's American Model and Transnational Legal History @marydudziak

Mary L. Dudziak, Emory University School of Law, has published The Outcome of Influence: Hitler’s American Model and Transnational Legal History at 117 Michigan Law Review 1179 (2019). Here is the abstract.

James Q. Whitman’s powerful book, Hitler’s American Model: The United States and the Making of Race Law, offers a chilling example of the way the United States can negatively influence the world. This review essay sets the book within the context of foreign relations history and transnational legal history. I first trace Whitman’s careful examination of Nazi uses of American law. His evidence of direct and substantial Nazi discussion of U.S. law when writing the Nuremburg Laws makes his core claim indisputable that American law was a model for the Nazis. Whitman shows that Nazi law sometimes did not go as far as American law due to foreign relations concerns. I argue that attention to Nazi foreign policy history would deepen this history, helping to explain how and when foreign criticism led Germany to modify its approach to race law. Hitler’s ultimate goal was the expansion of German power, not the maintenance of a positive German image, so any moderation in the Nuremberg Laws due to foreign criticism was likely tied to specific goals, like the importance of particular trade relations to Hitler’s goal to expand Germany. Finally, the essay sets Hitler’s American Model within the broader history of the international impact of domestic law. The foreign relations impact of U.S. race discrimination provides an illuminating comparison because foreign criticism played a different role than the German experience. Negative international reaction to American racism during the early Cold War years led American leaders to believe that civil rights reform was essential to protecting the U.S. global image, which mattered to maintaining American Cold War leadership. In comparison, Nazi concerns may have been tied to efforts to build up their arms industry as a means of enabling German power. Comparing the two examples can illuminate the varied relationships between domestic law and international affairs. The international role of domestic law is not limited to the borrowing of legal texts, and the transnational promotion of legal norms. Domestic law can also be an aspect of a nation’s diplomacy. The essay suggests questions for future scholars to pursue, and includes in the footnotes concrete ideas and resources for researching the transnational history of domestic law.

Download the article from SSRN at the link.

Rosenblatt on the British Patent Controversy and the Sherlockian Canon

Elizabeth Rosenblatt, University of California Davis, is publishing 'What One Man Can Invent Another Can Discover:' The British Patent Controversy and the Sherlock Holmes Canon in Canon Law: Lawyers, Law and the Sherlockian Canon (William A. Walsh and Donny Zaldin, eds., 2018). Here is the abstract.

Over the course of the 19th Century in Great Britain, patent law and policy developed quickly in an atmosphere of heated debate. In the first half of the century, some advocated for a patent system that provided greater ownership to inventors, while others advocated for abolition of patents altogether. The one thing people could agree on, it seemed, was that the then-existing system was flawed. In the latter half of the 19th Century and beginning of the 20th, Parliament overhauled the patent system, including unifying the patent systems of England, Ireland, and Scotland, establishing the Patent Office, and passing the Patents Designs and Trademarks Act. In the midst of this atmosphere of debate and change, Sir Arthur Conan Doyle wrote 54 stories and 4 novels about the detective Sherlock Holmes, some of which address inventions. This chapter considers the treatment of patents and patent law in the Sherlock Holmes novels and stories to illuminate popular Victorian and Edwardian understandings of, and ambivalence about, the patent law of the time.

Download the essay from SSRN at the link.