ASLH 2024

Starting today, your Legal History Bloggers will be in San Francisco at the annual meeting of the American Society for Legal History, for which Karen served as co-chair of the Program Committee.  This year, we appear on the same panel, Foundations of the Modern Administrative State, at 3:00 tomorrow.  Karen will chair, and I will comment.  The papers and their authors are:

A Presidency of Statutes: Gilded Age Reform and the Roots of the Modern Executive (1868-1921)
Andrea Scoceria Katz, Washington University in St. Louis School of Law

The Progressive Origins of Centralized Administrative Review
Edgar Melgar, Yale Law School

The Lost English Roots of Notice-and-Comment Rulemaking
Rephael Stern, Harvard University/Harvard Law School

The Origins of the Major Questions Doctrine
Rachel Rothschild, University of Michigan Law

As in the past, we welcome otherwise unsolicited reports of sessions at the meeting, and we expect to post on the prizes announced there after the meeting concludes.

--Dan Ernst

Spring Break

 Posts may be less frequent this week.  If so, look for them to resume at their usual rate starting March 20.

--Dan Ernst

Welcome: Michael Ariens!

Our Guest Blogger this month is Michael Ariens, Aloysius A. Leopold Professor of Law, St. Mary’s University School of Law, on his recently published book, The Lawyer's Conscience: A History of American Lawyer Ethics (University Press of Kansas):

In 1776, Thomas Paine declared the end of royal rule in the United States. Instead, “law is king,” for the people rule themselves. Paine’s declaration is the dominant American understanding of how political power is exercised. In making law king, American lawyers became integral to the exercise of political power, so integral to law that legal ethics philosopher David Luban concluded, “lawyers are the law.”

American lawyers have defended the exercise of this power from the Revolution to the present by arguing their work is channeled by the profession’s standards of ethical behavior. Those standards demand that lawyers serve the public interest and the interests of their paying clients before themselves. The duties owed both to the public and to clients meant lawyers were in the marketplace selling their services, but not of the marketplace.

This is the story of power and the limits of ethical constraints to ensure such power is properly wielded. The Lawyer’s Conscience is the first book examining the history of American lawyer ethics, ranging from the mid-eighteenth century to the “professionalism” crisis facing lawyers today.

Here is an endorsement:

“Michael Ariens has written an exceptionally well-researched and thought-out book on the history of US legal ethics. The Lawyer’s Conscience is a brilliant exposition of the events and concerns that produced the ethical rules by which American lawyers live today. In its depth of research and in its critical judgment, it is unparalleled in the literature about legal ethics. Every lawyer should buy a copy and study it with great care.”—M. H. Hoeflich, John H. & John M. Kane Distinguished Professor of Law, University of Kansas School of Law

--Dan Ernst.  TOC after the jump.

Thank You, Kristin Olbertson!

We are very pleased to have had Kristin A. Olbertson, Alma College, as our guest blogger this month.  Here are her posts, collected for your convenience:

Barbarians in the Dock: How Vulgar Speech Become a Crime in 18th-Century Massachusetts
Speech, Law, & Power in the American Revolution
The Work-Life Balance & Other Myths
A Historian Watches Netflix's “History of Swear Words”
Reading Poetry, Writing Legal History
On Sources, Silences, & Research Spaces

Thanks, Professor Olbertson!

–Dan Ernst

Welcome, Kristin Olbertson!

We're very pleased to have Kristin A. Olbertson with us as a guest blogger in the month of July.  Professor Olbertson is an Associate Professor at Alma College, the holder of a J.D. and a Ph.D from the University of Michigan, a historian of colonial America and of US constitutional and legal history, and the author of The Dreadful Word: Criminal Speech and Polite Gentlemen in Massachusetts, 1690-1776, published earlier this year by Cambridge University Press in Studies in Legal History, the books series of the American Society for Legal History.  "The first comprehensive study of criminal speech in eighteenth-century New England," The Dreadful Word "traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness."  Based on her reading of statutes and hundreds criminal prosecutions, Professor Olbertson argues that "colonists transformed their understanding of speech offenses from fundamentally ungodly to primarily impolite."  In the process, "a distinct cadre of politely pious men " came to define themselves "largely in contrast to the vulgar, the impious, and the unmanly."

Some endorsements:

“Olbertson reveals how, prior to the Revolution, prosecution of speech misbehavior increasingly marked the boundaries between the refined and the vulgar. Convictions (and acquittals) for threats, contempt, defamation, and false reports distinguished the 'lower sort' from their 'betters'. Slowly but surely, Massachusetts judges and juries gave greater weight to sensibility, civility, and credibility as markers of distinction, while moving away from prosecuting sinful speech and toward defining genteel masculinity. A tour de force.”

Sally E. Hadden, Western Michigan University

“Olbertson builds on two generations of scholarship that have taught us to understand New England's legal culture as enmeshed with English notions of hierarchy. She transforms our understanding by her relentless and pointed focus on the ways speech offences were, for a time at least, integral to governance. A witty and beautifully researched study of how, in a time and place that prized sincerity and restraint and deference, noise and irreverence were everywhere.”

Hendrik Hartog, author of The Trouble with Minna: A Case of Slavery and Emancipation in the Antebellum North

 “Kristin Olbertson has given us a wide-ranging, wonderfully textured, and deeply insightful exploration of how generations of elites in early Massachusetts reinforced their identity and patrolled the boundaries of the status they claimed by criminalizing the speech of people they deemed their inferiors or who might challenge their authority. The Dreadful Word is a masterly accomplishment that teaches us not simply to see the past with new understanding, but to hear it, as well.”

Bruce H. Mann, Harvard Law School

Welcome, Kristin!

--Dan Ernst

A New Blog: Legal History Insights

We’ve received word of a new blog, Legal History Insights, launched by the Historical Regimes of Normativity (Historische Normativitätsregime) Department of the Max Planck Institute for Legal History and Legal Theory (formerly the Max Planck Institute for European Legal History):

The Department Historical Regimes of Normativity has launched [Legal History Insights], a blog about legal history created by the researchers, guests and affiliated researchers of the Department. The blog is not primarily about the results of our research. Rather, it is meant to provide a window into work-in-progress, our activities, and the personal research experiences of the people working in and with our Department – to offer a behind-the-scenes look into who we are and what we do. Legal History Insights was also established to enable us to share our thoughts in a way that is open and relatable. We believe that the communication of scientific research to a wide range of audiences is an extremely important endeavour. Furthermore, by providing insights from our work in an accessible way, we hope to foster discussions that bring diverse voices to the table.

--Dan Ernst

LHB Switches Subscription Services

“If you’re an internet user of a certain age,” writes Frederic Lardinois of TechCrunch, making us feel very old indeed, “chances are you used Google’s FeedBurner” to manage the feeds from your blogs.  Something like 700 of you still receive emails of Legal History Blog posts this way.  Because Google will end Feedburner’s subscription service next month, we have deleted our Feedburner feed and started one on follow.it.  Active Feedburner subscribers should already be receiving emails via follow.it and need do nothing more.  But if you are an active Feedburner subscriber and have not received a follow.it email, or if you would like to subscribe to LHB for the first time, please do so using the gadget at the top right of the LHB landing page.

–Dan Ernst

Thank You, Tom McSweeney!

We want to thank Thomas McSweeney of William & Mary Law for his series of posts prompted by his recently published book Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals:

The Overly Familiar Treatise
Putting the People into Legal History
Who are the "We"?
Legal Genres
Were Justices Lawyers?

Thanks, Tom!

Welcome, Tom McSweeney!

We are delighted to announce a new guest blogger for the month of March.  Thomas J. McSweeney is Professor of Law at the Marshall-Wythe School of Law at William & Mary, where he has taught since 2013.  His courses include histories of the early Common Law, the relationship between Common Law and Civil Law, and the legal profession, as well as Property and Trusts and Estates.  He holds a J.D. and Ph.D. from Cornell University, where he studied with the medievalist Paul Hyams.  He has been a fellow in the ASLH's Hurst Summer Institute in Legal History.  Last semester he was a Visiting Fellow at Clare Hall at the University of Cambridge.

In 2015, in the company of other stalwart medievalists, he strove valiantly to prevent the 800th anniversary of Magna Carta from descending into ahistorical folderol. He has also published many articles and book chapters on other topics in medieval legal history.  Just out from Oxford University Press is Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals:

Priests of the Law tells the story of the first people in the history of the common law to think of themselves as legal professionals: the group of justices who wrote the celebrated treatise known as Bracton. It offers a new interpretation of Bracton and its authors. Bracton was not so much an attempt to explain or reform the early common law as it was an attempt to establish the status and authority of the king’s justices. The justices who wrote it were some of the first people to work full-time in England’s royal courts, at a time when they had no obvious model for the legal professional. They found one in an unexpected place: the Roman-law tradition that was sweeping across Europe in the thirteenth century. They modeled themselves on the jurists of Roman law who were teaching in Italy and France. In Bracton and other texts they produced, the justices of the royal courts worked hard to establish that the nascent common-law tradition was just one constituent part of the Roman-law tradition. Through their writing, this small group of people, working in the courts of an island realm, imagined themselves to be part of a broader European legal culture. They made the case that they were not merely servants of the king. They were priests of the law.

Welcome, Tom McSweeney!

-- Dan Ernst

Weekend Roundup

• Our friends over at the Federal Judicial Center have alerted us to their  very useful new webpage, Selected Developments in the History of Supreme Court Jurisdiction. 

• Lucy Salyer, University of New Hampshire, has published the essay The Irish-American Social Club Whose Exploits in Their Homeland Sparked a New Understanding of Citizenship in Zócalo Public Square, as part of the Smithsonian-sponsored series, “What It Means to Be American.”

• Welcome to the blogosphere, History and the Law, moderated by Catherine Evans, Franziska Exeler, Kalyani Ramnath, and Surabhi Ranganathan!  The blog is part of the Exchanges of Economic, Legal and Political Ideas Programme, which is supported at the University of Cambridge by the Andrew W. Mellon Foundation.

• Over at New Books Network there’s a podcast with Andrew Fede on his latest book, Homicide Justified: The Legality of Killing Slaves in the United States and Atlantic World.  Mary Block reviewed the book here, and Jeannine DeLombard reviewed it here.

• As part of its 150-year celebrations, the University of Wisconsin Law School hosted a retrospective event recently on the work and legacies of J. Willard Hurst and Frank Remington. "Law in Actions Innovations in Wisconsin Law School Courses, 1950-1970" featured Dirk Hartog and Malcolm Feeley, plus Wisconsin faculty Bill Clune, Bill Whitford, Cecelia Klingele, and our blogger Mitra Sharafi.

• Advance alert: Testimonial Exclusions and Religious Freedom in Early America, by Jud Campbell, University of Richmond School of Law, is now available from Law and History Review.

• Update: Laura Kalman, "Distinguished Professor of History from University of California, Santa Barbara, Will Present Annual Robert T. Miller Lecture" at Baylor University on March 25.

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Thank you, Joanna Grisinger!

It has been such a pleasure to have Professor Joanna Grisinger on board this past month as a guest blogger. Here's a compilation of her posts on teaching legal history:

• On developing an undergraduate legal history survey course

• On teaching legal history in semesters versus quarters

• On assembling her own legal history materials

• On preparing for class

• On classroom discussions

• On designing assignments for legal history courses

• And in the spirit of continuing this fantastic discussion -- a call for pedagogical panels at #ASLH2019

Oh, and if you're on the hunt for a post-doc, don't forget about this terrific opportunity -- to hold a post-doctoral fellowship in Professor Grisinger's department at Northwestern University (deadline: Feb. 15).

Please join us in thanking Joanna Grisinger -- and get ready for a terrific line-up of guest bloggers in 2019!

Brophy on a 1903 Call to Repeal the 15th Amendment

Alfred L. Brophy, University of Alabama School of Law, has posted The Case for the Repeal of the Fifteenth Amendment in the Yale Law Journal:

In June 1903, in the depths of the Jim Crow system, the Yale Law Journal published an article by famed New York corporate lawyer John R. Dos Passos (whose son, with the same name, later became a famous modernist novelist and socialist). The article, entitled “The Negro Question,” argued that many African American citizens in southern state were not yet ready for voting rights. The article defended the restriction of rights in southern states since the end of Reconstruction among African-Americans. Dos Passos’ article has received virtually no attention in recent years. It is important evidence of the intellectual credibility of ideas of segregation and second-class citizenship at the turn of the twentieth century. It reveals the breadth of the entrenched opposition to the ideas of racial equality. And it invites further examination of how law reviews in the early twentieth century supported Jim Crow segregation.

Welcome, Christopher Schmidt!

Christopher W. Schmidt

This month our guest blogger will be Christopher W. Schmidt, Professor of Law, Associate Dean for Faculty Development, and the Norman and Edna Freehling Scholar at the Chicago-Kent College of Law.  He has taught at Chicago-Kent since 2008, where he has taught constitutional law, legal history, comparative constitutional law, and sports law.  Professor Schmidt is also a Faculty Fellow at the American Bar Foundation and Editor of the ABF journal, Law & Social Inquiry. 

He has published many articles on a variety of topic on American constitutional law and history as well as the rise of free agency in Major League Baseball.  Earlier this year, he published The Sit-Ins: Protest and Legal Change in the Civil Rights Era, with the University of Chicago Press.  His current project is Civil Rights: An American History.  Welcome, Chris!

Weekend Roundup

• DC Public Libraries are digitizing and publishing online, “on an ongoing basis,” the photo archive of the Washington Star.  The first batch are images of “the 1968 uprisings” after the assassination of Dr. Martin Luther King.

• We were looking for something else when we found this recording of The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court, the 2017 Maurice and Muriel Fulton Lectureship in Legal History, delivered by Laura Kalman, UC Santa Barbara, from April 20, 2017.

• "On April 26, 2018, ConSource and The Harlan Institute will host the championship round of the sixth annual National Virtual Supreme Court Competition for high school students" at Georgetown Law.
  

• CFPs from All Over: The Faculty Lounge has the call for papers for the symposium The Vitality of Cooper v. Aaron after 60 Years, organized by the University of Arkansas at Little Rock Law Review.  And, via H-Law, we have a CFP for Criminalising Violent Pasts: Multiple Roots and Forgotten Pathways 1950s-2010s, at London South Bank University.

• In Our Review Copy Mailbag: Two from Oxford University Press: Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship, in OUP's Inalienable Rights Series, edited by Geoffrey R. Stone, and C. Donald Johnson, The Wealth of a Nation: A History of Trade Politics in America.  Strossen is the former president of the ACLU; Johnson has had a long career in elective office and as a trade negotiator.

• ICYMI: Vanessa Burrows, an FDA Historian, on why we need regulation, over at HNN.  Also via HNN: highlights of the recent annual meeting of the OAH. Garrett Epps, in The Atlantic, on The Travel Ban's Ignominious Precedents.

• And thanks for all the well wishes on my installation as Carmack Waterhouse Professor of Legal History at Georgetown Law last Tuesday.  DRE.

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Sharafi Receives Honors

The University of Wisconsin Law School is justly proud over the support LHB Blogger Mitra Sharafi has won for "her latest book project, 'Fear of the False: Forensic Science in Colonial India,' a cross-disciplinary examination of Indian law and forensics under British rule."  Read all about it here.

Welcome, Kimberly Welch!

We're delighted to welcome a new guest blogger for the month of April: Kimberly Welch. She is an Assistant Professor of History at Vanderbilt University, where she teaches courses on U.S. Slavery, Southern History, Women and Gender, Law and Society, and Early American History. This academic year, she is also a Mellon Faculty Fellow in the Digital Humanities.

Credit

Professor Welch received her Ph.D. from the University of Maryland, under the direction of Ira Berlin. Prior to joining the faculty at Vanderbilt, she taught at West Virginia University and held residential fellowships at the Newberry Library and the American Bar Foundation.

Her research focuses on slavery, race, and the law in the American South. Cribbing from her faculty bio, she "is particularly interested in the world of free and enslaved African Americans, how they understood their place in southern society, and how they advanced it. Understanding how those confined to positions of subordination enlarged their rights has led her to the southern courthouse. There, to a surprising degree, they staked their claim and more often than not found it confirmed."

She explores these themes in depth in her new book, Black Litigants in the Antebellum American South (University of North Carolina Press), as well as in two new projects, "a digital history project tracing kidnapping rings in the late 18th and early 19th centuries and a second book project on free black creditors."

Professor Welch is also the principal investigator for the National Science Foundation, Law and Social Sciences Research Grant, “Variation in Use of Courts by Legal Status and Jurisdiction."

For more on all of these projects, check out her website (which is definitely one of the best personal academic websites we've ever seen!).

Welcome, Kimberly Welch!

Welcome Anne Fleming!

I'm delighted to welcome as a Guest Blogger my Georgetown Law colleague Anne Fleming, who will be posting (in the first half of the month--another Guest Blogger follows) on her recently published book, City of Debtors: A Century of Fringe Finance (Harvard University Press).  From our earlier post:

City of Debtors shows how each generation of Americans has tackled the problem of fringe finance, using law to redefine the meaning of justice within capitalism for those on the economic margins. Anne Fleming tells the story of the small-sum lending industry’s growth and regulation from the ground up, following the people who navigated the market for small loans and those who shaped its development at the state and local level. Fleming’s focus on the city and state of New York, which served as incubators for numerous lending reforms that later spread throughout the nation, differentiates her approach from work that has centered on federal regulation. It also reveals the overlooked challenges of governing a modern financial industry within a federalist framework.

Professor Fleming received her Ph.D. in history from the University of Pennsylvania and, to quote Georgetown's website,

her J.D., magna cum laude, from Harvard Law School, where she served as a board member of the Legal Aid Bureau.After law school, she served as a law clerk to the Honorable Miriam Goldman Cedarbaum of the U.S. District Court for the Southern District of New York and the Honorable Marjorie O. Rendell of the U.S. Court of Appeals for the Third Circuit.  She also practiced as a staff attorney for South Brooklyn Legal Services, representing low-income homeowners facing foreclosure. Before joining the Georgetown faculty, Fleming taught at Harvard Law School as a Climenko Fellow and Lecturer on Law. 

 Welcome Professor Fleming!

Thank you and hello

First, I want to thank Karen, Dan, and Mitra for inviting me to guest blog this month. I have been an avid reader of LHB for years, but this month will be my first foray into blogging.  I’m looking forward to the conversations it will (hopefully) generate!

My plan is to write a series of posts about the (long) process of writing my first book, In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (UGA Press, 2017).  I have chosen to loosely organize these posts around the theme of “balance” while including a mix of discussions of my personal experience (and hopefully a few lessons learned) and some of the content of my work.  With a new year upon us, I am constantly reminded of how often I struggle with achieving any sort of balance in my work or my personal life.  I write these posts about balance, not because I am any sort of expert on getting things right; in fact, I’d say the opposite is usually true.  But I often think about, read about, and fumble along to achieve a rough kind of balance in the various areas of life (historian, teacher, mom of two).  It is my hope that these posts will provide fodder for conversation about other strategies, advice, or challenges LHB readers have faced along the way to publication, full-time teaching, and tenure and promotion.

Today, though, I will simply introduce my book.  It looks at the legal battles between enslaved people and their enslavers, using these court cases as a jumping off point for discussing local legal culture in the antebellum era.  The structure follows the basic stages of a suit for freedom, beginning with the statutes that allowed for this type of legal case, and concluding with a chapter on the broader political context of freedom suits, most notably the role of Dred Scott in regional and national politics in the decade prior to the American Civil War. 

The book has much to say to historians who are not specialists in legal history.  In it, I explain how these suits actually worked and how various actors interacted with the law.  But it is my hope that the book will also speak to legal scholars by investigating some of the nitty-gritty issues confronted by antebellum litigants.  It features discussions of the attorneys and judges involved in freedom suits, the arguments used for suing (and defending suits) for freedom, as well as the legal consciousness of the enslaved plaintiffs who brought almost 300 freedom suits in the St. Louis Circuit Court from 1814-1860. 

I conclude that enslaved persons in this urban environment had multiple avenues for learning about law and connecting with the arguments and the legal actors necessary to win freedom in court.  But bringing suit was not without its risks; many of the plaintiffs faced the grim reality of physical punishment, sale away from the court’s jurisdiction, or countless other horrors as a result of their legal action. 

The book includes some comparative context about freedom suits in other states, too.  Although some of the discussions of comparative case law ended up on the cutting room floor, I read nearly 1,000 state supreme court opinions to provide context for the St. Louis story.  One area where I do include broader data is in the appendix, which has a series of charts that indicate the arguments presented and rates of success for the St. Louis cases.  

In my next post, I will explain more about how I came to this topic by balancing a number of interests of mine and incorporating the wise counsel of legal historians and archivists. 

Slow Posting Ahead

Your humble LHB bloggers will be traveling through the start of the New Year.  We've banked some posts, but we might not respond as timely as we'd like to emails, comments, SSRN postings, and world events.  Do bear with us.  We'll be back.

National History Center Panels at AHA (and a Landmark LHB Post)

The National History Center yesterday sent out a list of its panels at the Annual Meeting of the American Historical Association next month in Washington, DC.  Links to the sessions are here.

Thursday, January 4
Understanding the Past to Plan the Future: Historical Inquiry and Philanthropic Grant-Making
History and Public Policy Centers: A Roundtable Discussion

Friday, January 5
The End of the Palestine Mandate
What Does Brexit Mean for British History?
Documenting the History of the First Federal Congress
Remembering Marilyn Young, Activist Historian: A Memorial Panel

Saturday, January 6
Federal Government Historians and the Public
The Possibilities and Pitfalls of Big History (AKA Big History Meets the History of Science)
Executive Orders and Presidential Power since FDR

(credit)

NHC Reception

Sunday, January 7
Nationalism: Notions and Practices

[Cue the confetti: This is the 10,000 post on Legal History Blog!]