Lee on The Judicial Power-Admiralty Clause @FordhamLawNYC

Thomas H. Lee, Fordham University School of Law, is publishing The Judicial Power-Admiralty Clause in The Heritage Guide to the Constitution (3d edition) (forthcoming). Here is the abstract.

This Essay explains the text and original meaning of “all Cases of admiralty and maritime jurisdiction” in Article III of the U.S. Constitution, its background history, its implementation by the First Congress, key judicial precedents interpreting it, and the open question of what Erie doctrine means for the centuries-old historical practice of federal courts applying the maritime law of nations in “all Cases of admiralty and maritime jurisdiction.” Article III does not define what constitute “all Cases of admiralty and maritime jurisdiction.” Understanding this Article III judicial power as a matter of text and original meaning thus requires examination of relevant English, colonial, and Articles of Confederation history; the Constitutional Convention and state ratification conventions; and subsequent judicial precedents. A backwater today, the admiralty and maritime jurisdiction was among the most vital of the nine categories of Article III judicial power in the early United States because of: (1) the need for uniform rules and adjudication of maritime cases for a new coastal nation dependent on maritime trade among themselves and with Europe and its colonies; (2) the negative experience of divergent state admiralty courts during the War of Independence, which created friction among the states and with foreign states and led to the establishment of the first national court of appeals; and (3) the criticality of port customs duties for early federal government revenues.

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.

Yo, Ho, Ho: Sailors and Rum @GB2d

Ross E. Davies, George Mason Univesrity Law School; The Green Bag, is publishing Sailors and Rum, at Sea and Ashore in Deadly Harpoon: A Facsimile of the Original Manuscript of “The Adventure of Black Peter” by Arthur Conan Doyle with Annotations and Commentary (Glen Miranker, ed., BSI Press 2018)). Here is the abstract.

An examination of the regulation and culture of grog in Victorian maritime life, using a scenario drawn from a Sherlock Holmes story -- “The Adventure of Black Peter.”

Download the essay from SSRN at the link.

Mawani on Law, Settler Colonialism, and the "Forgotten Space" of Maritime Worlds

Renisa Mawani, University of British Columbia, has published Law, Settler Colonialism, and 'The Forgotten Space' of Maritime Worlds at 12 Annual Review of Law and Social Science 107 (2016). Here is the abstract.

Law and settler colonialism is not a self-evident, contained, or straightforward field of inquiry. Rather, it uneasily straddles two overlapping bodies of scholarship: legal histories of colonialism and settler colonial studies. In part one, I place these literatures into conversation to trace their contributions, overlaps, and incommensurabilities. In part two, I turn to maritime worlds as a method of speaking across their analytic divides. Here, I consider the Torrens as a system of land registry inaugurated in the colony of South Australia (1858) and as the last clipper ship to be built in Britain (1875). In its recurring and double life, the Torrens offers an illuminating nineteenth-century example of the interconnection and interdependence of land and sea that serves as a useful lesson today. The global exigencies that arise from the past, organize the present, and impinge on the future demand a shift from terrestrial thinking toward the aqueous and amphibian legalities of settler colonial power.

The full text is not available from SSRN.

The Revolutionary War Prize Cases and the Development of Diversity Jurisdiction in U.S. Law

Deirdre Mask, London School of Economics & Political Science, and Paul MacMahon, London School of Economics, Law Department, are publishing The Revolutionary War Prize Cases and the Origins of Diversity Jurisdiction in volume 633 of the Buffalo Law Review (2015). Here is the abstract.

Why did the Framers give the federal courts diversity jurisdiction? This Article brings to light a crucial but forgotten source of inspiration for diversity jurisdiction, showing that previous explanations ignore the Framers’ experience judging prize case appeals during the Revolutionary War. Scholars have largely rejected the view that the Framers anticipated state bias in diversity litigation, arguing, for example, that diversity jurisdiction was designed to provide a high-quality venue for commercial disputes. Yet placing the Framers’ decision in the context of their lived experience as judges in contentious "Prize Cases" during the Revolutionary War rehabilitates the geographic bias theory. During the War, the Continental Congress relied heavily on privateers — private citizens, who, with the financial support of individual states or Congress, were authorized to capture British ships. At George Washington’s urging, the Continental Congress set up an adjudicatory committee within Congress itself, the Committee on Appeals, to resolve appeals from prize cases in the state courts. The Framers’ taste of judicial work exposed them to contentious interstate disputes — a preview of what diversity litigation would look like in the new country. We argue that this experience, almost entirely ignored by contemporary scholars, directly inspired the otherwise perplexing decision to include diversity jurisdiction in Article III.

Download the article from SSRN at the link.