Dubber on Legal History as Legal Scholarship @MarkusDubber

Markus D. Dubber, University of Toronto Faculty of Law, University of Toronto Centre for Ethics, has published Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law in the Oxford Handbook of Historical Legal Scholarship (2016). Here is the abstract.

Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of “interdisciplinary” analysis (economical, philosophical, sociological, literary, etc.) and “doctrinal” analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between “modern” and “traditional” legal scholarship, and that between “common law” and “civil law” scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

Download the essay from SSRN at the link. 

The Supreme Court's Civil Rights Jurisprudence and Competing Narratives

Peggy Cooper Davis, New York University Law School, Aderson Bellegarde Francois, Howard University School of Law, and Colin P. Starger, University of Baltimore School of Law, have published Beyond the Confederate Narrative. Here is the abstract.

A Confederate narrative haunts Supreme Court doctrine and unnecessarily weakens the Court’s civil rights jurisprudence. This narrative has several sources, but it is most significantly the creature of an embarrassed wish to preserve the right to engage in human chattel slavery. The Confederate narrative protected slave power, survived Reconstruction, and then protected Jim Crow and other forms of human subordination. Although its influence waned during the civil rights movements of the last century, the Confederate narrative survived in doctrine and has reemerged to help defeat claims that certain fundamental human rights are federally guaranteed and federally enforceable. According to what we term the People’s narrative, Reconstruction and the ratification of the 13th, 14th, and 15th amendments changed the constitutional balance of Federal, State, and People power, such that basic civil rights became the People’s privileges and the United States government became the ultimate protector of those rights. We attribute the Court’s failure to recognize important human rights to a failure to take appropriate account of the People’s narrative. This Article identifies and analyzes the dialectic between the Confederate and People’s narratives that has shaped the Supreme Court’s federalism and civil rights doctrine. Through careful exegesis of critical lines of Court opinions – attending especially to overlooked dissents and concurrences embracing the People’s narrative – we demonstrate how the Confederate narrative has subverted post-bellum ideals of human dignity and equal respect for all people. This demonstration is visually represented in an innovative, online series of doctrinal “maps” with links to significant judicial opinions.

Download the article from SSRN at the link.

Mining the Trial Reports of the Connecticut Colony

Jon C. Blue, a New Haven District Superior Court Judge, has published The Case of the Piglet's Paternity: Trials from the New Haven Colony, 1639-1663 (Wesleyan University Press) (Driftless Connecticut Series & Garnet Books). Here is a description of the contents from the publisher's website.

In the middle of the seventeenth century, judges in the short-lived New Haven Colony presided over a remarkable series of trials ranging from murder and bestiality, to drunken sailors, frisky couples, faulty shoes, and shipwrecks. The cases were reported in an unusually vivid manner, allowing readers to witness the twists and turns of fortune as the participants battled with life and liberty at stake. When the records were eventually published in the 1850s, they were both difficult to read and heavily edited to delete sexual matters. Rendered here in modernized English and with insightful commentary by eminent Judge Jon C. Blue, the New Haven trials allow readers to immerse themselves in the exciting legal battles of America’s earliest days. The Case of the Piglet’s Paternity assembles thirty-three of the most significant and intriguing trials of the period. As a book that examines a distinctive judicial system from a modern legal perspective, it is sure to be of interest to readers in law and legal history. For less litigious readers, Blue offers a worm’s eye view of the full spectrum of early colonial society—political leaders and religious dissidents, farmhands and apprentices, women and children.

The Supreme Court and the Extraterrorial Application of State Law, 1850-1940

Clyde S. Spillenger, University of California, Los Angeles, School of Law, has published Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850-1940 in volume 62 of the UCLA Law Review. Here is the abstract.

This Article examines the developments leading to the U.S. Supreme Court’s decisions in the 1930s that legitimated the extraterritorial application of state law in civil litigation. Today, these decisions are thought of as having established the basic constitutional limitations on choice-of-law rulings by state courts. But they are better understood as the culmination of an historical process in which the Court first proscribed the extraterritorial application of statutory rules of decision, and then, as the economic relevance of state boundaries receded and the regulatory function of state-created rules of decision increased in importance, emphatically retreated from that position. The 1930s decisions led to a new conception of choice of law in which a party’s domicile — in particular, the state’s power to apply its rules of decision to protect or regulate its own — came to play as important a role as the territorial locus of particular events in resolving conflicts of laws. This conception, which remains central to much of modern conflicts law, contrasts sharply with the Court’s unwillingness (reinforced by recent decisions) to take domiciliary interests into account when determining the constitutional limitations on personal jurisdiction. Before the Civil War, the jurisprudence of conflict of laws did not, by and large, credit the possibility that the Constitution limited a court’s power to apply forum law to a dispute. Since the rules of decision applicable in antebellum private-law litigation were largely based on common law and other nonmunicipal sources of law, there was little occasion for invoking the Full Faith and Credit Clause as a limitation on state courts’ application of lex loci principles. The key development in altering this conception was the enactment, beginning in the 1850s, of state statutes altering or creating rules of decision for certain kinds of civil litigation. These statutes — in particular, the wrongful death statutes and the later employers’ liability acts — were largely directed to the increasing risk of catastrophic injury and loss in an industrializing society. State courts confronting the multijurisdictional problems raised by these statutes concluded that they could not be applied extraterritorially — that is, to injuries incurred outside the state where they had been enacted. The Supreme Court showed little interest in the issue of extraterritoriality until some states began to enact regulations protecting local policyholders from forfeiture provisions in the life insurance policies issued by the major insurers in the Northeast. The Court in 1914 and 1918 struck down as unconstitutional the application by Missouri courts of the state’s protective statutes to insurance agreements deemed to have been made outside of Missouri. Thus a proscription of extraterritoriality, married to the then-prevailing doctrine of liberty of contract, briefly entered the law of the Constitution. These principles concerning extraterritoriality, based as they were on the formalist notion that only one state has regulatory authority over a given event or transaction, were undermined by the widespread enactment of workers’ compensation laws. In the three 1930s cases considering the legitimate scope of such compensation statutes, Justice Stone (building on earlier opinions authored by Justice Brandeis) decisively affirmed the authority of a state to apply its workers’ compensation statute to injuries suffered outside the state. At a stroke, these decisions interred the idea that only one state has regulatory authority over a given event or transaction; eliminated the relevance of extraterritoriality as a touchstone for constitutional analysis of state courts’ authority to apply forum law in civil lawsuits; and provided crucial support for an emerging model of conflict of laws in which state interests — most notably, a concern for state domiciliaries — supplanted territoriality per se as the principal consideration.

Download the article from SSRN at the link.

Legal History As Historical Jurisprudence

Markus D. Dubber, University of Toronto Faculty of Law, has published New Historical Jurisprudence: Legal History as Critical Analysis of Law at 2 Critical Analysis of Law 1 (2015). Here is the abstract.

This modest manifesto — or minifesto — portrays legal history as a mode of critical analysis of law, using the historical analysis of American penality as an illustration and the full-fledged manifestos by Piketty and Guldi & Armitage as points of reference. Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic, philosophical, sociological, or ethical analysis of law, and so on. Historical analysis of law, in other words, is itself a mode of legal scholarship, not a subspecies of law or history. It is a comprehensive view of law from a particular critical vantage point: a way of doing law, rather than of doing things with law. Historical analysis of law in this sense is less “law and history” than “law as history,” less legal history than historical jurisprudence.

 Download the article from SSRN at the link.