ABF Legal History Workshop

[We have the following announcement from our friends at the American Bar Foundation.  For further information, please contact Sophie Kofman at skofman [at] abfn.org.  DRE]

The ABF Chicago-area Legal History Workshop will be held periodically on Wednesday evenings (see dates below) at 4:00 pm (except where otherwise noted) at the 4th Floor Woods Conference Room of the ABF Offices (420 E. Superior St.).

Wed. Sept. 4 (4:00pm start) – Joanna Grisinger (Northwestern University)

 “Challenging the Establishment at half fare”: The Civil Aeronautics Board and Youth Air Travel

Joanna Grisinger is an Associate Professor of Instruction at the Center for Legal Studies at Northwestern University. Her current research explores public interest participation in administrative decision making. Grisinger’s book manuscript examines airline regulation as a site for mobilization around issues of race and apartheid, disability, consumer rights, and the environment. 

Wed. Sept. 25 (4:00 pm start) – Anders Walker (St. Louis University)

Wed. Oct. 9 (4:30pm start) – Amy Stanley (University of Chicago)

Wed. Nov. 13 (4 pm start) – Brett Gadsden (Northwestern University)

Gronningsater, "The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom"

New from the University of Pennsylvania Press: The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom, by Sarah L. H. Gronningsater (University of Pennsylvania). A description from the Press:

The Rising Generation chronicles the long history of emancipation in the United States through the cradle-to-grave experiences of a generation of black New Yorkers. Born into precarious freedom after the American Revolution and reaching adulthood in the lead-up to the Civil War, this remarkable generation ultimately played an outsized role in political and legal conflicts over slavery’s future, influencing both the nation’s path to the Civil War and changes to the US Constitution.

Through exhaustive research in archives across New York State, where the largest enslaved population in the North resided at the time of the American Revolution, Sarah L. H. Gronningsater begins by exploring how English colonial laws shaped late eighteenth-century gradual abolition acts that freed children born to enslaved mothers. The boys and girls affected by these laws were born into a quasi-free legal status. They were technically not enslaved but were nonetheless required to labor as servants until they reached adulthood. Parents, teachers, and mentors of these “children of gradual abolition” found multiple ways to protect and nurture the boys and girls in their midst. They supported and founded schools, formed ties with white lawyers and abolitionists, petitioned local and state officials for better laws, guarded against kidnapping and cruelty, and shaped New York’s evolving identity as a free state. Black fathers used their votes during annual state elections in the early 1800s to influence legislative antislavery efforts. After many but not all black men in the state were disfranchised by a race-based property requirement in 1822, black citizens across New York organized to regain equal suffrage and to expand and protect other crucial, non-gendered features of state citizenship. Women and children were critical participants in these efforts.

Gronningsater shows how, as the children of gradual abolition reached adulthood, they took the lessons of their youth into midcentury campaigns for legal equality, political inclusion, equitable common school education, and the expansion of freedom across the nation.

A selection of advance praise:

"This book is an extraordinary accomplishment of research and writing. Sarah L. H. Gronningsater has immersed herself in countless local archives to give us an entirely new picture of northern black politics in its many forms. With clarity and empathy, The Rising Generation shows how black children, women, and men developed organizing savvy and legal acumen, supported fugitive slaves, demanded access to schools and the courts, and made their voices heard in national politics."—Kate Masur

"The Rising Generation is a book about hope. Meticulously researched and beautifully crafted, it recasts the history of emancipation by foregrounding the activism of ordinary people, particularly black Americans. That past has profound resonance now. By revealing what civic engagement accomplished in the past, this remarkable book also opens up new possibilities today."—Laura F. Edwards

More information is available here.

-- Karen Tani

Spitzer on Weapon Restrictions for Minors

Bruen as the Legal Historians' Full Employment Act.  Robert J. Spitzer, SUNY Cortland, has posted  Historical Weapons Restrictions on Minors, which is forthcoming in the Rutgers Law Review:

Since the Supreme Court’s ruling in 2022 that recast the basis for judging the constitutionality of contemporary gun laws according to the existence of historical analogs, all manner of laws have been subject to court challenge, including those that restrict gun access to those under the age of twenty-one. To date, federal courts have split on this question. Given this new, history-based standard for judging the constitutionality of current weapons laws, this article examines the historical record pertaining to how the age of majority was defined in our past and how that pertains to the history of laws that restricted minors’ access to firearms and other weapons. This article offers the most extensive assessment of state laws and local ordinances from the eighteenth and nineteenth centuries to be found to date. In addition, it includes a new and extensive excavation of a wide range of college and university codes in the eighteenth and nineteenth centuries that limited or barred students from having weapons from that time period, the nature and extent to which has not been identified or reported before. All of this information supports the conclusion that the broadly accepted age of majority during this time period was twenty-one.

--Dan Ernst

Weekend Roundup

• From Process, the blog of the Organization of American Historians: "The American Public’s Role in Financial Regulation," by Christopher Shaw.

• Via Nursing Clio: An interview with Jesse Olszynko-Gryn, author of A Woman’s Right to Know: Pregnancy Testing in Twentieth-Century Britain.
  

• 
  Paula J. Giddings will discuss “The Prescient Life of Ida B. Wells,” “a crusading journalist and pioneer in the fights for women’s suffrage and against segregation and lynchings” in conversation with FDR Library Director William Harris, in the Library’s Henry A. Wallace Center at 6:00 p.m. ET on Tuesday, March 26, 2024, and streaming on YouTube and Facebook.  Register here.
  

• Congratulations to John Cairns, University of Edinburgh, upon the announcement that he is to receive an honorary doctorate from the University of Glasgow.
  

• Heikki Pihlajamäki, Professor of Comparative Legal History at the University of Helsinki, has “won the Gad Rausing Prize for Outstanding Humanities Research. Pihlajamäki was awarded the prize, worth 1.5 million Swedish krona.”  More.
  

• Frances M. Clarke, University of Sydney, is the first Australian to win the Gilder Lehrman Lincoln Prize, which “rewards the finest scholarly work published in the prior year in English on Abraham Lincoln, the American Civil War soldier, or the American Civil War era.” She and her coauthor, Rebecca Jo Plant, University of California, San Diego, won the prize for Of Age: Boy Soldiers and Military Power in the Civil War Era (Oxford University Press).
  

• Reshaping American Life: Today’s Supreme Court in Historical Context, and its Potential Impact on our Future, a discussion/debate between Berkeley Law School Dean Erwin Chemerinsky and Case Western Reserve Law Professor Jonathan Adler, moderated by California Supreme Court Justice Carol Corrigan, will take place on Tuesday, April 23, 2024, 12:15 p.m. (PT) / 3:15 p.m. (ET).  It is to last 75 minutes and will take place in-person and virtually.  Register here.
  

• The University of Edinburgh Press seeks proposals for its new book series, New Approaches to Ancient Greek Institutional History.  The series editors are Mirko Canevaro, Edward Harris, and  David Lewis.
  

• ICYMI: "Maricopa County Honors Public Defenders and Landmark Legal Victories [such as Gideon v. Wainwright] During 'Public Defense Recognition Week'” (Hoodline).  "How Virginia Used Segregation Law to Erase Native Americans" (Time--the new home of Made by History).
  

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

"100 Years of the Infanticide Act"

100 Years of the Infanticide Act: Legacy, Impact and Future Directions, edited by Karen Brennan and Emma Milne, has been published by Hart/Bloomsbury:

This book provides the first comprehensive and detailed analysis of the Infanticide Act and its impact in England and Wales and around the world.

It is 100 years since an Infanticide Act was first passed in England and Wales. The statute, re-enacted in 1938, allows for leniency to be given to women who kill their infants within the first year of life. This legislation is unique and controversial: it creates a specific offence and defence that is available only to women who kill their biological infants. Men and other carers are not able to avail of the special mitigation provided by the Act, nor are women who kill older children.

The collection brings together leading experts in the field to offer important insights into the history of the law, how it works today, the impact and legacy of the statute and potential futures of infanticide laws around the world.

Contributors consider the Act in practice in England and Wales, the ways it has been portrayed in the British media and justifications for and criticisms of the provision of special treatment for women who kill their infants within a year of birth.

It also looks at the criminal justice responses to infanticide in other jurisdictions, such as Australia, Ireland, Sweden and the United States of America.

--Dan Ernst.  TOC after the jump.

AJLH: 63:1

The American Journal for Legal History 63:1 (March 2023) is now fully published on line:

The best answer? Justice Nelson’s concurrence in Dred Scott v. Sandford
William B Meyer

‘I Laid Earl and Clementine on a Chair and Whipped Them’: Child Murder and Criminal Justice in the Jim Crow South
Jeffrey S Adler

Limping Marriages: Race, Class, and the Rise of Domicile-Based Divorce Jurisdiction in the British Empire
Priyasha Saksena

Book Reviews

Tamika Y.  Nunley.  The Demands of Justice: Enslaved Women, Capital Crime, and Clemency in Early Virginia (Chapel Hill: University of North Carolina Press, 2023), pp  243, $27.95 (paperback). ISBN 978-1-4696-7312-7

Terri L Snyder

Russell Sandberg, A Historical Introduction to English Law: Genesis of the Common Law
( Cambridge:  Cambridge University Press,  2023), pp.  xiii +280. £90 (hardcover). ISBN 9781107090583

William Eves

 --Dan Ernst

Katz on Religion and Family Policing

Elizabeth D. Katz, University of Florida Levin College of Law, has posted Fostering Faith: Religion in the History of Family Policing, which is forthcoming in the Fordham Law Review:

Each year in the United States, approximately 700,000 children live in foster care. Many of these children are placed in religiously oriented homes recruited and overseen by faith-based agencies (FBAs). This arrangement—as well as the scope and operation of child welfare services more broadly—is at a crucial moment of reckoning. Scholars and advocates focused on children’s rights and family integrity maintain that the child welfare system, increasingly termed the “family policing system,” harms children, families, and communities through unnecessary and racist child removal that is partly motivated by perverse financial incentives. Some call for abolition. Meanwhile, in a largely separate conversation, discussants focused on clashes between religious liberty rights and antidiscrimination laws spar over the legality and appropriateness of FBA involvement in fostering children because FBAs may exclude or provide ill-fitting services to LGBTQ individuals and religious minorities.

This Article excavates the persistent involvement of religious organizations in child placements in United States history to provide crucial missing context and valuable lessons for ongoing reform efforts. People and groups motivated by religion have participated in housing poor, orphaned, and otherwise dependent children since the colonial period, gradually securing laws to ensure public funding for their private organizations and to safeguard control over coreligionist youth. Though these services have benefitted many children in the absence of satisfactory public alternatives, they have also inflamed interfaith controversies and left children from minority religious and racial groups with unequal and inadequate care. Criminal law innovations, including the enactment of child abuse laws and the creation of juvenile courts, reinforced religious organizations’ involvement. As the preferred methods for child placement evolved, faith-based providers campaigned in legislatures and the press to preserve their power and control, slowing reforms. This Article’s account supports calls for change by emphasizing how the modern system developed through ad hoc and contingent changes that routinely prioritized cost concerns, crime reduction, and religious groups’ interests over children’s wellbeing. 

--Dan Ernst

Children and the Law: A Conference in Honor of Michael Grossberg

We have the following announcement, regarding a November 10, 2022, pre-conference convening at this year's meeting of the American Society for Legal History:

Children and the Law: A Conference in Honor of Michael Grossberg

Mini-Conference Schedule

9:30am “Saving Our Kids”

Opening Remarks by Laura Edwards (Princeton University) & Dirk Hartog (Princeton University)

10-11:30am “Who Gets the Child?”

Comment by Steven Mintz (University of Texas, Austin)

Chelsea Chamberlain (University of Pennsylvania), "Perpetual Children": Mental Disability, Institutional Commitment, and the Intimate State

Naama Maor (Tel Aviv University), “We Cannot be Hoodwinked into Making Paroles”: Delinquent Children, State Institutions, and the Boundaries of Juvenile Justice

Kristen McCabe Lashua (Vanguard University of Southern California), “If the boy’s word is to be taken”: Child Testimonies in Early Modern England

Nathan Stenberg (University of Minnesota), “A Peculiar Case”: Disability, Performance, and the Legal (De)Construction of Institutionalized Children's Personhood at the Pennhurst State School & Hospital

11:45-12:30 Lunch

12:45-2:15pm “A Protected Childhood”

Comment by Barbara Welke (University of Minnesota)

Wangui Muigai (Brandeis University), The Tenth Crusade: Baby-Saving, Racial Violence, and the NAACP

Yukako Otori (Tokyo University of Foreign Studies), Esther Kaplan's Saga: From an Undesirable Immigrant to an Undeportable "Child"

Ivón Padilla-Rodríguez (University of Illinois Chicago), The Double Removal of Migrant Youth: Late-Twentieth Century Data Collection and Education Law as U.S. Immigration Deterrence

Shani Roper (University of the West Indies), Sitting at Intersections: Institutionalized Children and the Law in Colonial Jamaica 1904 to 1950

Doris Morgan Rueda (University of Nevada, Las Vegas), “The Boy is Large for His Age”: Making Age in Arizona’s Early Juvenile Court, 1907-1920

2:30-4pm “Legal Rights for Children?”

Comment by David Tanenhaus (University of Nevada, Las Vegas)

Tera Agyepong (DePaul University & American Bar Foundation), Constructing Race and Gendered Delinquency in the Juvenile Justice System

Juandrea Bates (Winona State University), Bringing Child Protection Home: Juveniles as Initiators of Child Protection Suits in Buenos Aires 1890-1930

Emily Prifogle (University of Michigan), Rural Students and a “Right” to Local Schools

Kathryn Schumaker (University of Oklahoma), Desegregating Discipline: Corporal Punishment and Children's Rights in the Classroom in the 1970s

4:15pm Afterward

Introduction of Michael Grossberg by Ajay Mehrotra (American Bar Foundation and Northwestern University) & Bengt Sandin (Linköping University in Sweden)

Closing Remarks by Michael Grossberg

5pm Cocktail Reception

 

-- Karen Tani

Ford and Hinchy in Legal Histories of Empire Symposium

[We have the following announcement.  DRE}

Legal Histories of Empire: Second Symposium

Join us for the second of several symposia planned for 2020 and 2021 for Legal Histories of Empire.

Our speakers:

Lisa Ford: 'The King's Colonial Peace: Variable subjecthood and the transformation of empire'

This paper is drawn from my forthcoming book, The King's Peace: Empire and Order in the British Empire. The book uses colonial peacekeeping as a lens through which to examine the shifting parameters of crown prerogative in Empire in the Age of Revolutions. This paper will argue that the legal vulnerability of (and often threats to order posed by) a diverse array of subjects - formerly French Catholics in Quebec, Caribbean slaves and NSW convicts - both prompted and justified the unravelling of the very idea of the freeborn Englishman that had been mobilised by protestant Britons in pre-revolutionary America.

Lisa Ford is Professor of History at the University of New South Wales, Australia. Her major publications include Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (2010) which won the Littleton-Griswold Prize (American Historical Association); the Thomas J. Wilson Prize (Harvard University Press); and the Premiers History Award (NSW). She is also co-author of Rage for Order: The British Empire and the Origins of International Law, 1800-1850 (co-authored with Lauren Benton, 2016) and author of The King’s Peace, which will be published by Harvard later this year. Ford is currently leading a collaborative project funded by the Australian Research Council exploring the role of commissions of inquiry sent throughout the British Empire in the 1820s on which subject she hopes to lead author a book manuscript this year. She also holds a four-year ARC Future Fellowship, during which she will explore the changing use of martial law in the British Empire from the late eighteenth century until 1865.

Jessica Hinchy: 'Child Removal and the Colonial Governance of the Family: Hijra and "Criminal Tribe" Households in North India, c. 1865-1900'

Historians have primarily examined colonial child removal projects in settler colonial contexts. Yet from 1865, the colonial government in north India forcibly removed children from criminalised communities. Child separation began in the households of gender non-conforming people labelled ‘eunuchs,’ particularly Hijras, and eventually extended to socially marginalised people designated as ‘criminal tribes,’ especially Sansiyas. First, what does a comparison of these child removal schemes tell us about the colonial governance of the family? Patrilineal, conjugal and reproductive household models marginalised Hijras and Sansiyas in differing ways, while the category of ‘child’ was contingently defined. Child separation was attempted to varying ends, including both elimination and assimilation. Yet often, the colonial state could not sustain such intensified forms of intimate governance in the face of resistance from households. Nor could officials simply determine removed children’s futures. Second, what does child removal suggest about the making of colonial law? When children were initially removed from Hijra and Sansiya households, officials admitted that ‘the law may have been somewhat strained,’ since existing laws did not provide police or magistrates with legal powers to separate these children. The Sansiya child removal project, for instance, prompted debates about colonial legal exceptions and the ‘legality’ of the colonial state’s practices among colonial officials and Indian and European non-officials.

Jessica Hinchy is an Assistant Professor of History at Nanyang Technological University in Singapore. She researches the history of gender, sexuality, households and family in colonial north India. In 2019, Cambridge University Press published her first monograph, Governing Gender and Sexuality in Colonial India: The Hijra, c. 1850-1900. Her research has also appeared in Modern Asian Studies, Gender & History and Asian Studies Review, among other journals.

The event will take place by zoom on Friday 5 March (or Thursday 4 March, depending on your timezone - see below). Please register here (via Eventbrite) to attend.

Timezones:
Sydney @ 12.30 pm on 5 March
Singapore @ 9.30 am on 5 March
Auckland @ 2.30 pm on 5 March
New Delhi @ 7.00 am on 5 March
London/Dublin @ 1.30 am on 5 March
Nairobi @ 4.30 am on 5 March
Vancouver @ 5.30 pm on 4 March
New Haven/Toronto @ 8.30 pm on 4 March

Tulsa Law Review's Annual Book Review Issue

Tulsa Law Review 55:2 (2020), a book review issue, includes essays of interest to legal historians:

Reassessing the Historical Foundations of Originalism, by Lee Borocz-Johnson

The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp

Forging the American Nation, 1787-1791: James Madison and the Federalist Revolution, by Shlomo Slonim

Triangulating Law and Political-Economic Development, by Jonathan Chausovsky

The Contract Clause: A Constitutional History, by James Ely Jr.

Child Labor in America: The Epic Struggle to Protect Children, by John A. Fliter

Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic, by Eric Lomazoff

Popular Legitimacy: A Tenuous Proposition, by Emily Pears

Building a Revolutionary State: The Legal Transformation of New York, 1776-1783, by Howard Pashman

We Have Not a Government: The Articles of Confederation and the Road to the Constitution, by George Van Cleve

The Many Faces of American Captivity and Its Legal Matrix: A Review Essay, by Christian Pinnen

University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of the Civil War, by Alfred L. Brophy

Supreme Injustice: Slavery in the Nation's Highest Court, by Paul Finkelman

Borderlands of Slavery: The Struggle over Captivity and Peonage in the American Southwest, by William Kiser

Free Speech Idealism, by Timothy Zick

The Taming of Free Speech: America's Civil Liberties Compromise, by Laura Weinrib

Speak Freely: Why Universities Must Defend Free Speech, by Keith E. Whittington
 
Who Is Responsible for Presidential Supremacy? by Kathleen Tipler

Supreme Court Expansion of Presidential Power: Unconstitutional Leanings, by Louis Fisher

President Obama: Constitutional Aspirations and Executive Actions, by Louis Fisher

Reclaiming Accountability: Transparence, Executive Power, and the U.S. Constitution, by Heidi Kitrosser

--Dan Ernst

Suddler, "Presumed Criminal"

We missed this one when New York University Press released it last July: Presumed Criminal
Black Youth and the Justice System in Postwar New York, by Carl Suddler (Emory University). A description from the Press:

A stark disparity exists between black and white youth experiences in the justice system today. Black youths are perceived to be older and less innocent than their white peers. When it comes to incarceration, race trumps class, and even as black youths articulate their own experiences with carceral authorities, many Americans remain surprised by the inequalities they continue to endure. In this revealing book, Carl Suddler brings to light a much longer history of the policies and strategies that tethered the lives of black youths to the justice system indefinitely.

The criminalization of black youth is inseparable from its racialized origins. In the mid-twentieth century, the United States justice system began to focus on punishment, rather than rehabilitation. By the time the federal government began to address the issue of juvenile delinquency, the juvenile justice system shifted its priorities from saving delinquent youth to purely controlling crime, and black teens bore the brunt of the transition.

In New York City, increased state surveillance of predominantly black communities compounded arrest rates during the post–World War II period, providing justification for tough-on-crime policies. Questionable police practices, like stop-and-frisk, combined with media sensationalism, cemented the belief that black youth were the primary cause for concern. Even before the War on Crime, the stakes were clear: race would continue to be the crucial determinant in American notions of crime and delinquency, and black youths condemned with a stigma of criminality would continue to confront the overwhelming power of the state.

A few blurbs:

"A timely and critically important origins story of how black youth became over-policed and under-protected in one of the most liberal cities in America. They were victims of institutional racism and an increasingly hostile police force that refused to protect their right to protest and organize for racial justice. Young people’s bitter awakening to racial consciousness at the end of a police baton is, as Carl Suddler skillfully shows, the starting point for understanding why stop-and-frisk first made its debut in New York City over a half-century ago." ~ Khalil Gibran Muhammad

"In this powerful, timely, and deeply unsettling recovery of America’s criminal justice past, Suddler shines vital new light on the present. By brilliantly revealing the nation’s postwar effort to deal with troubled young people more humanely, this book forces us to face the extent to which the presumption of black criminality utterly undermined that effort and thereafter ensured that black boys and girls would forever be ensnared in a fundamentally unjust juvenile justice system." ~ Heather Ann Thompson

More information is available here.

-- Karen Tani

Schrag's "Baby Jails"

My Georgetown Law colleague Philip G. Schrag, has just published Baby Jails The Fight to End the Incarceration of Refugee Children in America (University of California Press) a history of the Flores decision:

For decades, advocates for refugee children and families have fought to end the U.S. government’s practice of jailing children and families for months, or even years, until overburdened immigration courts could rule on their claims for asylum. Baby Jails is the history of that legal and political struggle. Philip G. Schrag, the director of Georgetown University’s asylum law clinic, takes readers through thirty years of conflict over which refugee advocates resisted the detention of migrant children. The saga began during the Reagan administration when 15-year-old Jenny Lisette Flores languished in a Los Angeles motel that the government had turned into a makeshift jail by draining the swimming pool, barring the windows, and surrounding the building with barbed wire. What became known as the Flores Settlement Agreement was still at issue years later, when the Trump administration resorted to the forced separation of families after the courts would not allow long-term jailing of the children. Schrag provides recommendations for the reform of a system that has brought anguish and trauma to thousands of parents and children. Provocative and timely, Baby Jails exposes the ongoing struggle between the U.S. government and immigrant advocates over the duration and conditions of confinement of children who seek safety in America.

--Dan Ernst

Katz on child support

Elizabeth D. Katz (Washington University in St. Louis) has published the following article: "Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws," University of Chicago Law Review 86:5 (June 2019), 1241-1309. Here's the abstract:

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil. 

On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and widespread assumption that family law is a civil field. Recent scholarship has challenged that understanding by examining how criminal law and family law work in tandem to police certain conduct. This Article goes further by demonstrating that modern support duties and the family courts that enforce them evolved from criminal laws and courts.

Relying on extensive historical research, this Article argues that child support enforcement is criminal law in a civil guise. Family nonsupport was criminalized around the turn of the twentieth century to permit extradition of offenders. Criminal court judges then tasked newly minted probation officers with reconciling, investigating, and monitoring families—novel state interventions in domestic life. Probation officers, in turn, staffed and promoted specialized criminal nonsupport courts (initially called “domestic relations courts” and later “family courts”) that some cities opened to handle these prosecutions in the 1910s. Beginning in the 1930s, costs and stigma associated with criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal context. Observers found the ongoing use of criminal-derived oversight methods unobjectionable; the decades in which support law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil “child support” suits surpassed nonsupport prosecutions (which all states retained) and probation officers disappeared from family litigation, the criminal heritage and continued criminal-law reinforcement of family courts and support laws were obscured.

The calculated and incomplete conversion of family support enforcement from criminal to civil undercuts the supposedly distinct purposes, procedures, and penalties associated with the civil and criminal categories. Building on scholarship that critiques the Supreme Court’s treatment of statutory schemes that blur the civil-criminal divide, the Article draws from child support history to condemn the Court’s strong deference to legislative labels and to propose greater consideration of enforcement methods. If the Court were persuaded to recognize child support incarceration as a criminal sanction, then states would face a difficult choice. They could either allocate the resources needed for constitutionally mandated criminal procedure protections or decriminalize the enforcement machinery—ideally through elimination of most child support incarceration.

Further information is available here.

--Mitra Sharafi

Agyepong, "The Criminalization of Black Children"

New from the University of North Carolina Press: The Criminalization of Black Children: Race, Gender, and Delinquency in Chicago’s Juvenile Justice System, 1899–1945 (2018), by Tera Eva Agyepong (DePaul University). The book is part of the Justice, Power, and Politics series.  A description from the Press:

In the late nineteenth century, progressive reformers recoiled at the prospect of the justice system punishing children as adults. Advocating that children’s inherent innocence warranted fundamentally different treatment, reformers founded the nation’s first juvenile court in Chicago in 1899. Yet amid an influx of new African American arrivals to the city during the Great Migration, notions of inherent childhood innocence and juvenile justice were circumscribed by race. In documenting how blackness became a marker of criminality that overrode the potential protections the status of “child” could have bestowed, Tera Eva Agyepong shows the entanglements between race and the state’s transition to a more punitive form of juvenile justice.

In this important study, Agyepong expands the narrative of racialized criminalization in America, revealing that these patterns became embedded in a justice system originally intended to protect children. In doing so, she also complicates our understanding of the nature of migration and what it meant to be black and living in Chicago in the early twentieth century.

A few blurbs:

“Agyepong’s innovative take on the role of black children in shaping juvenile justice procedures is critically important for so many fields of history, including African American history, incarceration studies, and the history of gender and sexuality.”--Marcia Chatelain 

“Agyepong makes a compelling case for the centrality of black youth to understandings of delinquency, dependency, and, by extension, criminality at the foundations of the juvenile justice system.”--Davarian L. Baldwin

More information is available here.

Bush & Tanenhaus, eds., "Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice"

New from New York University Press: Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice, edited by William S. Bush (Texas A&M University, San Antonio) and David S. Tanenhaus (William S. Boyd School of Law). A description from the Press:

Ages of Anxiety presents six case studies of juvenile justice policy in the twentieth century from around the world, adding context to the urgent and international conversation about youth, crime, and justice. By focusing on magistrates, social workers, probation and police officers, and youth themselves, editors William S. Bush and David S. Tanenhaus highlight the role of ordinary people as meaningful and consequential historical actors.

After providing an international perspective on the social history of ideas about how children are different from adults, the contributors explain why those differences should matter for the administration of justice. They examine how reformers used the idea of modernization to build and legitimize juvenile justice systems in Europe and Mexico, and present histories of policing and punishing youth crime.

Ages of Anxiety introduces a new theoretical model for interpreting historical research to demonstrate the usefulness of social histories of children and youth for policy analysis and decision-making in the twenty-first century. Shedding new light on the substantive aims of the juvenile court, the book is a historically informed perspective on the critical topic of youth, crime, and justice.

The table of contents is available here; the introduction, here.

Carr on Animal Welfare Law in 19th-Century Scotland

Daniel James Carr, University of Edinburgh Law School, has posted The Historical Development of Animal Welfare Law in Nineteenth Century Scotland:

This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.

Abrams and Barber on Gender Equality, Emerging Adulthood and Domicile

Kerry Abrams, University of Virginia School of Law, and Kathryn Barber,  a 2015 graduate of UVA Law, have posted Domicile Dismantled, which appears in the Indiana Law Journal 92 (2017): 387-433:

Domicile is more durable than residence: it is defined as a person’s “true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” This Article argues that, in the last fifty years, the legal fiction of domicile has become increasingly unmoored from the reality of people’s lives. This shift resulted from two historical changes. The first is the rise of gender equality. As women entered the workforce in increasing numbers and gained access to higher education, their mobility and autonomy increased. Simultaneously, they began to delay marriage, or to forego marriage altogether, and those who were married were less likely to reflexively adopt their husband’s domicile and were more inclined to make domiciliary choices for themselves and their families. The second is the increasingly long time it takes young adults to become financially and emotionally self-sufficient and independent from their parents. This so-called phenomenon of “emerging adulthood,” identified by psychologists as a new phase of life that sometimes lasts into a person’s thirties, has made it more difficult for young adults to establish a new domicile. Courts have thus increasingly relied upon a person’s domicile of origin in making these determinations, even where there is little chance that the party will ever return there. This Article uses the landmark 1971 case of Mas v. Perry to illustrate the dismantling of domicile. It traces the history of changing gender roles and adult development since Mas and argues that because of these two trends, the concept of domicile is no longer capable of doing the legal work it is supposed to do. Residence, rather than domicile, is a more sensible and accurate way to handle jurisdictional questions.

Chambers on Adoption in Ontario

Out this month with the University of Toronto Press is A Legal History of Adoption in Ontario, 1921-2015 by Lori Chambers (Lakehead University). From the publisher:

Lori Chambers’ fascinating study explores the legal history of adoption in Ontario since the passage of the first statute in 1921. This volume explores a wide range of themes and issues in the history of adoption including: the reasons for the creation of statutory adoption, the increasing voice of unmarried fathers in newborn adoption, the reasons for movement away from secrecy in adoption, the evolution of step-parent adoption, the adoption of Indigenous children, and the growth of international adoption. 

Unlike other works on adoption, Chambers focuses explicitly on statutes, statutory debates and the interpretation of statues in court. In doing so, she concludes that adoption is an inadequate response to child welfare and on its own cannot solve problems regarding child neglect and abuse. Rather, Chambers argues that in order to reform the area of adoption we must first acknowledge that it is built upon social inequalities within and between nations.  

Praise for the book:

"With her usual scholarly rigour, Lori Chambers untangles the interwoven relations of the law, society and the state concerning adoption in Ontario. She brings clarity to a subject not infrequently paradoxical, even as a social construct: adoption, she demonstrates, was not always "in the best interests" of the children at its centre despite the laws developed exactly to that end." -Cynthia Comacchio 

"With her customary subtlety, alertness to multiple perspectives, and critical scrutiny of received wisdom, Lori Chambers tackles the complexities of an institution that has aided many families while intensifying hierarchies of gender, race, and class." -Robert Leckey 

"Lori Chambers’s excellent study of adoption law situates key Canadian legal cases in their social and political context, illuminating with immense clarity and insight the changing assumptions shaping the experiences of adoptive and adopting parents, children, and families over the twentieth century. Her acute analysis of adoption law exposes the conflicts, contradictions, pain, and well-meaning intentions that shaped the experience of adoption, with particular attention to the inequalities and power imbalances created by gender, race, class, and colonialism. Chambers’s study will remain the definitive look at adoption law for years to come." -Joan I. Sangster

More information is available here.

Sunday Book Roundup

Here's another roundup gathered while on the archive trail, this time from sunny St. Paul and the Minnesota History Center.

From The New York Times is a review of Konrad H. Jarausch's Out of Ashes: A New History Europe in the Twentieth Century (Princeton University Press).

We Believe The Children: A Moral Panic in the 1980s (PublicAffairs) by Richard Beck is reviewed in The Washington Post.

"Beck makes the case that the sexual abuse trials of the 1980s yoked numerous undercurrents in American society: fear of crime; the decline of respect for traditional authority; homophobia (being gay helped send some day-care workers to prison); the conservative backlash against feminism, which had encouraged women to work outside the home (with its resultant need for day care); and the reality that the patriarchal nuclear family had not just changed, it had become “incoherent.”"

Over at New Books, Mia Bay, who co-edited Toward an Intellectual History of Black Women along with Farah Griffin, Martha Jones and Barbara Savage (UNC Press), is interviewed.

David George Surdham also discusses his book, The Big Leagues Go to Washington: Congress and Sports Antitrust, 1951-1989 (University of Illinois Press).

"Just back from the Major League Baseball All-Star break, Surdham has written a book for sports lovers. Why do major league sports receive such preferential treatment from Congress? And what does this have to do with labor and economic development policy? Surdham examines Congressional hearings held over decades to figure out how Washington's role in professional sports has changed over since the 1950s."

In the third interview from New Books, William Leogrande and Peter Kornbluh discuss their new book, Back Channel to Cuba: The Hidden History of Negotiations Between Washington and Havana (UNC Press).

Lastly, after you've read Karen Tani's review of Laura Edwards's A Legal History of the Civil War and Reconstruction: A Nation of Rights you can listen to Edwards discuss the book. The abstract says it covers the following topics:

"–The way, in the lead up to the Civil War, all arguments came back to the Constitution.
–How wartime policies in both the Confederacy and the states that remained in the Union fundamentally remade the –legal authority of the nation.
–Why the Confederacy's legal order was at odds with its stated governing principles.
–Popular conceptions of Reconstruction-era legal change."

Terry Alford's Fortune's Fool: The Life of John Wilkes Booth (Oxford University Press) is reviewed by the Los Angeles Review of Books. 

"It is in this section of the book that Alford’s subject nearly attains the dimensions of the great tragic figure he perceived himself to be. Then, in the closing passages, the author maps his swift and pitiful decline. As the hobbled, desperate Booth flees his pursuers through rural Virginia after the assassination, he reads newspaper dispatches from the capital and is stunned to discover that his crime has been met with heartbreak and contempt, and that even supporters of the Confederacy had described him as a dastardly coward. “Our country owed all of her troubles to him,” he writes in his journal, “and God simply made me the instrument of his punishment. I can never regret it.”"

H-Net adds a review of Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era (UNC Press).

"Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era returns readers to the "fundamentally agrarian" character of antebellum and wartime Republican political ideology. Building on the work of historians like Foner, William Gienapp, and Mark Lause, Dean analyzes the rhetoric of key Republican figures in order to reconstruct the system of "beliefs, fears, values, and commitments" that comprised the party's predominant ideology, and that subsequently "spurred action" (p. 4)."

 The New Rambler takes a look at Jon Elster's Securities Against Misrule: Juries, Assemblies, Elections (Cambridge University Press).

Sunday Book Roundup

The Wall Street Journal has a review by John Fabian Witt of Richard Reeve's Infamy: The Shocking Story of the Japanese-American Internment in World War II (Henry Holt & Co.).

In the Texas Law Review, Aziz Rana reviews Robert L. Tsai's America's Forgotten Constitutions (Harvard University Press).

H-Net has a review of Banning the Bang or the Bomb?: Negotiating the Nuclear Test Ban Regime edited by William Hartman, Mordechai Melamud, and Paul Meerts (Cambridge University Press).

Barry Eichengeren's Hall of Mirrors: The Great Depression, The Great Recession, and the Uses--and Misuses--of History (Oxford University Press) is reviewed in the Los Angeles Review of Books.

"But a closer look paints a much more complex story. Along with similarities and parallels, there are also important differences between the two crises. In addition, the Great Depression offered many more vital lessons than the ones that were “learned” — and selective and self-serving attentiveness to those lessons has contributed mightily to our current troubles. Clearly, more than hand-waving invocation of the Great Depression analogy is necessary, and Hall of Mirrors rises to that challenge."

Salon has an excerpt from 13 Ways of Looking at the Death Penalty by Mario Marazziti (Seven Stories Press).


The Washington Independent Review of Books has a review of King John and the Road to Magna Carta by Stephen Church (Basic Books).


The Federal Lawyer has a new set of reviews out for May. Online, there is a review of Tomaz Jardim's The Mauthausen Trial: American Military Justice in Germany (Harvard University Press).

HNN has a review of The History Manifesto by Jo Guldi and David Armitage (Cambridge University Press).

New Books has several interviews this week. Andrew Needham is interviewed by New Books about his new book, Power Lines: Phoenix and the Making of the Modern Southwest (Princeton University Press).

The authors of American Conspiracies Theories (Oxford University Press), Joseph E. Uscinski and Joseph M. Parent, are interviewed on New Books.

Thomas Kemple is also interviewed by New Books about Intellectual Work and the Spirit of Capitalism: Weber's Calling (Palsgrave MacMillan).

Also interviewed by New Books is Ellen Boucher, who discusses her new book, Empire's Children: Child Emigration, Welfare, and the Decline of the British World: 1869-1967 (Cambridge University Press).

In The New York Review of Books Elizabeth Drew reviews two works, Democracy and Justice: Collected Writings edited by Desiree Ramos Reiner, Jim Lyons, Erik Opal, Mikayla Terrell, and Lena Glaser (Brennan Center) and The Voting Wars: From Florida 2000 to the Next Election Meltdown by Richard L. Hasen (Yale University Press).

The Washington Post has a review of The Train to Crystal City: FDR's Secret Prisoner Exchange Program and America's Only Family Internment by Jan Jarboe Russell (Scribner).

Also in The Washington Post is a review of Kevin Kruse's One Nation Under God: How Corporate America Invented Christian America (Basic).

For The New York Times Emily Bazelon reviews Jon Krakauer's Missoula: Rape and the Justice System in a College Town (Doubleday).

"Krakauer set out to educate himself about rape, especially when it is committed by someone the victim knows, looking for survivors who would tell him their stories. He focused on why many don’t go to the police as he tried “to comprehend the repercussions of sexual assault from the perspective of those who have been victimized.” The result is “Missoula: Rape and the Justice System in a College Town,” which has more in common with “Under the Banner of Heaven,” Krakauer’s depiction of the evils of Mormon fundamentalism, than with his morally complex tales of misadventure, “Into the Wild” and “Into Thin Air.”"