Kessler on the Origins of the Rule of Law

Jeremy Kessler, Columbia Law School, has posted The Origins of “The Rule of Law” which is forthcoming in Law and Contemporary Problems:

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on.

When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to

Albert Venn Dicey (wiki)

be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists.

In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610?

This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

--Dan Ernst

Gienapp on History, Law and Constitutional Rupture

Jonathan Gienapp, Stanford University, has posted History, Law, and Constitutional Rupture:

The principal problem of U.S. constitutional interpretation centers on the passage of time. As time passes, things change. That is especially true of constitutionalism and law, where older forms must be applied to novel and often unforeseen circumstances, something the American example amply demonstrates. The U.S. Constitution was made a long time ago and must govern a world markedly different from the one for which it was made. What we should do with older constitutional forms (in the case of the U.S., quite old) in a much-changed world poses a challenge that any theory of constitutional interpretation must address. Call this the problem of social drift. The problem of constitutional time runs deeper than just this, however. A more fundamental, and often less perceptible, form of change can sever constitutional present from past. In the first instance, a gap widens between constitutional form and the social world that constitution is meant to regulate and channel; in the second instance, the change takes place within the domain of constitutionalism itself. As time passes, how people think about constitutionalism and its attendant subjects—law, government, power, liberty, rights—can also transform. While many recognize how the interpretation of a constitution might change as society itself changes, it is harder to see how the very idea of a constitution itself can also imperceptibly take on new shape and meaning through the changed habits, assumptions, and legal consciousness of those interpreting it. This less recognized form of change, wrought by the passage of time, defines U.S. constitutionalism every bit as much as the first.

Despite its central importance, the challenge that historical rupture poses for modern constitutional interpretation is still far too neglected. After all these years of arguing over the appropriate use of history in constitutional interpretation, the most important problem raised by the endeavor continues to be downplayed and ignored. That neglect has become especially glaring of late, as the current Supreme Court has placed greater legal weight on our constitutional past than arguably ever before. It is high time to confront the problem of historical rupture in U.S. constitutional interpretation. Anyone who appeals to history in U.S. constitutional argument—most especially originalists, but not just them—must acknowledge and explain what is to be done about the gulf separating us from earlier forms of constitutional thinking. If we are to obey the past, then we need to surmount the chasm separating us from it. We need to recognize that our fundamental law was created by people equipped with a different legal consciousness. We need to do the work of historicizing earlier forms of constitutional thinking that do not map neatly onto our own. Modern originalists can neither ignore nor bracket this fact by insisting, as they often do, that they are engaged in an interpretive activity called “law” that is distinct from “history,” which supposedly frees them from the need to take past differences seriously. In one way or another, the problem of historical rupture touches everyone who wields the constitutional past in our contested present. 

--Dan Ernst

Weekend Roundup

• 
  Balkinization has been hosting a symposium on Kunal Parker's The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).  So far, Aziz Rana, Ajay K. Mehrotra, Paul Gowder, Amalia D. Kessler, and John Fabian Witt have contributed.
  

• The Institute for Advanced Legal Studies at the University of London has announced the establishment of the Law and the Humanities Hub (LHub), led by Anat Rosenberg.  It “aims to foster academic expertise, creativity, and intellectual leadership in law and the humanities.”  Here are its 2024/25 Visitors.
  

• The Illinois Supreme Court Historic Preservation Commission has digitized approximately 3,700 case files from 1819 to 1865.  Its "freely accessible and user-friendly website . . . will be publicly available within the next few months."  More.
  

• The University of Chicago Law School will host a book launch for Curtis Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, with comments by Will Baude and David Strauss, on Wednesday, December 3, 12:15pm to 1:10pm, at the Law School.  The event is open to the public.
  

• A notice of the 44th German Legal History Conference (Goethe Universität).

• A notice of a conference at Kings College London in support of the Cambridge History of International Law volume on the Pacific from circa 1500 until 1920 (KCL).
  

• The National Constitution Center will hold a symposium on The Life and Constitutional Legacy of Gouverneur Morris at Noon ET on Thursday, December 12 with Dennis Rasmussen, Melanie Randolph Miller, and William Treanor.  Jeffrey Rosen will moderate.
  

• The next session in the American Society for Legal History series, Making Connections: New Works in Legal History, will occur on Wednesday, December 11, 6-7pm Central Time. Chlöe Kennedy will discuss her Inducing Intimacy: Deception, Consent and the Law (2024) with interlocutor Catherine Evans.  ASLH President Barbara Welke will moderate.  Register here.
  

• On Lawfare's "Chatter" podcast, Rachel Shelden, Penn State University, discusses how widespread violence and another civil war were avoided as the nation resolved the disputed presidential election of 1876.
  

• Thomas McSweeney's Jot on Ada Maria Kuskowski's, "The Time of Custom and the Medieval Myth of Ancient Customary Law," 99 Speculum 143 (2024).
  

• ICYMI: Sandra Day O'Connor was no conservative (HNN).  The price America paid for the Chinese Exclusion Act (NPR).  Open access (for a few more days): The Case of the Slave Ship Zong (History Today).
  

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

Klass on the History of the Interpretation-Construction Distinction

My Georgetown Law colleague Gregory Klass has posted A Short History of the Interpretation-Construction Distinction:

Francis Lieber (NYPL)

This document collects for ease of access and citation three of my posts on the New Private Law Blog, which chart the conceptual history of the interpretation-construction distinction. The posts begin with Francis Lieber’s 1939 introduction of the concepts, then describes Samual Williston’s 1920 account of the distinction in the first edition of Williston on Contracts, and concludes with Arthur Linton Corbin’s 1951 reconceptualization in the first edition of Corbin on Contracts. The posts identify two different conceptions of the distinction. Under the first (Lieber and Williston), construction supplements interpretation. Under the second (Corbin), the two activities complement one another. The complementary conception is the better one.

--Dan Ernst

Kessler on Law and Historical Materialism

Jeremy Kessler, Columbia University Law School, has posted Law and Historical Materialism, which is forthcoming in the Duke Law Journal

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From “law and political economy” to critical race theory to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share, however, is a point of intellectual origin in the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extra-legal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. But others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was (and remains) disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.

--Dan Ernst

Hylton on Originalism

Keith N. Hylton, Boston University School of Law, has posted Originalism, Official History, and Perspectives versus Methodologies:

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodology. 

--Dan Ernst

Rohde and Parra-Herraea on Contingency and Autonomy in 20th-Century Legal Historiography

Dan Rohde and Nicolas Parra-Herrera, SJD candidates at the Harvard Law School, have posted Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography, which is to appear in the Journal of Law and Political Economy:

This article addresses the power of law to make historical change. We begin by charting a rich debate on law’s autonomy held over the course of the twentieth century, overviewing contributions by Classical Legal Thought, Law and Society, Marxism, the New Left, Critical Legal History, and what we term the “Millennial Consensus.” We then sketch an alternative view that we feel is implicit in much legal history, where the law is seen as an “architecture”—a set of tools with which we build our society. On this view, law’s autonomy lies in the way that it facilitates specific forms of societal ordering at the expense of others. We emphasize that it also has an existential dimension in that we can never foresee all the future uses particular legal institutions may be put to. 

--Dan Ernst

Legal History in the "The Oxford Handbook of Feminism and Law in the United States"

Oxford University Press has published The Oxford Handbook of Feminism and Law in the United States, edited by Deborah Brake (University of Pittsburgh School of Law), Martha Chamallas (Moritz College of Law - the Ohio State University), and Verna Williams (University of Cincinnati College of Law). A number of the chapters may interest readers of the blog. Here's an overview from the Press:

Combining analyses of feminist legal theory, legal doctrine, and feminist social movements, The Oxford Handbook of Feminism and Law in the United States offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. Its chapters connect legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinize criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent brands of feminist legal theory shows the links and divergences among feminist scholars, highlighting the continued relevance of established theories (liberal, dominance, and relational feminism) and the increased importance of new intersectional, sex-positive, and postmodern approaches. Unique in its triple focus on theory, doctrine, and social movements, the Handbook recounts the history of activist struggles to pass the Equal Right Amendment, the Anti-Rape and Battered Movements of the 1970s, the contemporary movements for reproductive justice and against campus sexual assault, as well as the #MeToo movement. The emphasis on theory and feminist practice animates discussions of feminist legal pedagogy and feminist influences on judges and judicial decision making. Chapters on emerging areas of law ripe for feminist analysis explore foundational subjects such as contracts, tax, and tort law, and imagine feminist and social justice approaches to digital privacy and intellectual property law, environmental law, and immigration law. The Handbook provides a broad picture of the intellectual landscape and allows both new and established scholars to gain an in-depth understanding of the full range of feminist influence on U.S. law.

A selection of chapters of possible interest:

Tracy A Thomas, "The Long History of Feminist Legal Theory"

Julie Suk, "The Equal Rights Amendment, Then and Now" 

Leigh Goodmark, "The Anti-Rape and Battered Women’s Movements of the 1970s and 1980s"

Mary Ziegler, "From Reproductive Rights to Reproductive Justice: Abortion in Constitutional Law and Politics" 

Deborah Widiss, "Pregnancy and Work: 50 Years of Legal Theory, Litigation, and Legislation"

Melissa Murray and Hilarie Meyers, "Constitutionalizing Reproductive Rights (and Justice)" 

h/t Legal Theory Blog

-- Karen Tani

Hutchinson's "Hart, Fuller, and Everything After"

Allan C Hutchinson, Osgoode Hall Law School, has published Hart, Fuller, and Everything After: The Politics of Legal Theory (Bloomsbury):

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely.

Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.

--Dan Ernst

Weekend Roundup

• Earlier this week, the White House announced appointments to Permanent Committee for the Oliver Wendell Holmes Devise.  The Committee is composed of the Librarian of Congress and four additional members appointed by the President.  The new appointees are Risa Lauren Goluboff, Martha S. Jones, and Trevor Morrison.  UVA's notice on Dean Goluboff's appointment is here; NYU's on Dean Emeritus Morrison's is here.  
  

• Ryan Reft, Library of Congress, has posted Gideon v. Wainwright at 60: Anthony Lewis, Clarence Gideon, and America’s Public Defenders on the blog, Unfolding History: Manuscripts at the Library of Congress.
  

• On March 23, Kevin Butterfield, director of the John W. Kluge Center at the Library of Congress, will discuss his book, The Making of Tocqueville’s America: Law and Association the Early United States, in support of the ongoing exhibit at the Library of Congress, Join In: Voluntary Associations in America.
  

• Nicole Carlson Maffei has posted Lucile Lomen (1920-1996), an essay on the first woman to serve as a clerk to a justice of the U.S. Supreme Court, on the Supreme Court Historical Society website.
• “An archive belonging to attorney Linda Coffee, who filed the initial lawsuit in Rowe v. Wade, will go up for auction" (Dallas Morning News).

• "Stanford University Historian Gregory Ablavsky will lecture on 'The Past, Present, and Future of Native Sovereignty in Federal Law' at 5 p.m. March 15 Shideler Hall room 152," University of Miami (Ohio).
  

• Queen Mary, University of London, announces its new LLM in Common Law Theory and Practice. “Unique in the landscape of legal postgraduate education, this programme combines theoretical and applied study of the common law. Whether you are you are unfamiliar with the common law or have studied in a common law jurisdiction and wish to deepen your knowledge, this programme offers a contextual and critical insight into the common law and its workings.” 
  

• ICYMI: From the Poor Laws to the Social Security Act (History Channel). A library exhibit on the buildings that housed the University of Arkansas School for Law.  A notice of Norman Silber’s oral history of Judge Guido Calabresi. (Law.com).  Diane Minear, an attorney in the Spencer Fane Overland Park, Kansas, on Myra Bradwell.
  

• Updates: A notice of  Laura M. Weinrib’s lecture,“Money, Politics, and the Constitution in the ‘Golden Age’ of Capitalism,” at an event honoring her 2021 appointment as the Fred N. Fishman Professor of Constitutional Law at the Harvard Law School (Harvard Crimson).  Also, we noted with interest that the William Nelson Cromwell Foundation supported this digitization project (NYT).
  

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

"Scholars of Contract Law"

New from Hart Publishing/Bloomsbury: Scholars of Contract Law, edited by James Goudkamp and Donal Nolan:

This book provides a counter-balance to the traditional focus on judicial decisions by exploring the contribution of legal scholars to the development of private law.

In the book the work of a selection of leading scholars of contract law from across the common law world, ranging from Sir Jeffrey Gilbert (1674–1726) to Professor Brian Coote (1929–2019), is addressed by legal historians and current scholars in the field. The focus is on the nature of the work produced by the scholars in question, important influences on their work, and the impact which that work in turn had on thinking about contract law. The book also includes an introductory chapter and an afterword by Professor William Twining that explore connections between the scholars and recurrent themes.

The process of subjecting contract law scholarship to sustained analysis provides new insights into the intellectual development of contract law and reveals the central role played by scholars in that process. And by focusing attention on the work of influential contract scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.

TOC after the jump. I can recommend my colleague Greg Klass's illuminating chapter on Arthur Corbin.

--Dan Ernst

CFP: Social and Historical Perspectives on Calculation in Law

 [We have the following Call for Papers.  DRE]

Just Computation? Social and Historical Perspectives on Calculation in Law, Harvard University
September 8-9, 2023

Datasets, algorithms, and statistical models are increasingly dominating legal spaces as instruments for rendering “just” decisions. Academic and popular critiques have shown that the application of such tools to delicate social problems exacerbates the very inequities they were meant to curb, whether in allocating welfare, evaluating credit, hiring, policing, and so on. Missing from this ongoing discussion, however, is a broader perspective on how computation has shaped—and been shaped by—law and governance across time and place. How have different legal orders made sense of numbers and new methods of calculation? How does the law shape the conditions under which numerical evidence is deemed legitimate? Why have political communities come to accept that fraught matters of justice might be resolved through recondite numbers, and how has that commitment evolved? At a time when the authority of quantitative tools is on the rise, what can courtroom contests tell us about the making of facts and their history?

This conference provides an opportunity to grapple with these and other pressing questions by inquiring deeper into the history and politics of numbers as evidence, legal proof, policy instruments, and even tools for representing and contesting injustice. We will bring together scholars from a host of disciplines including the humanities and social sciences, data science and legal studies interested in how the quantification of social life and decision-making raises fundamental concerns about justice and fairness across different time periods and geographies. We believe that approaching these questions from a critical perspective can help invigorate and inform the vital discussions that have formed around “AI ethics” and “Fairness, Accountability, and Transparency” in computing systems. By convening a rich, interdisciplinary conversation on the relationship between law and computation, broadly construed, we hope to attract a range of scholars interested in honing their work for a special issue on these complicated and urgent issues.

Contributors.  We seek papers from scholars from across the humanities and social sciences, as well as those coming from schools of information, policy, and law. Early career scholars in particular are encouraged to apply. While the workshop is oriented toward contemporary issues, it seeks to re-frame them by bringing different time periods and geographies to the table, so we are interested in submissions that consider these questions beyond the contemporary Global North. We will also accept co-authored papers.

Publication.  This conference will be a platform for authors to workshop papers intended for a special issue of the interdisciplinary legal studies journal such as Law & Social Inquiry, whose editors have expressed interest. Though we intend to submit abstracts as a proposal for this journal, we remain open to alternatives and will discuss options over the course of the workshop. Accepted participants will be asked to submit a draft paper (max. 8000 words) and give a short presentation on their material for feedback from the group. Further deadlines and requirements will be specified depending on the format of the journal and the intended publication schedule. Please submit your abstracts to the conference only if you are willing to eventually submit your paper for a special issue. We will aim for final papers to be submitted by the end of the year 2023.

Timeline

March 24: Deadline to submit abstracts
Mid-April: Decisions sent out for accepted abstracts
End July: Deadline to submit final papers for internal circulations
Sept 8-9: In-person workshop in Cambridge, MA
End of 2023: Submit final papers

Funding.  For presenters traveling from outside of the Boston area, we will guarantee travel stipends of $400, with the possibility of more funding and housing assistance as we secure more partnerships.

Organizers.  Michael F. McGovern (mmcgovern@princeton.edu), Program in the History of Science,  Princeton University; Pariroo Rattan (pariroorattan@g.harvard.edu), Program in Public Policy, Harvard Kennedy School, Harvard University; William Deringer (deringer@mit.edu),
Program in Science, Technology, and Society, Massachusetts Institute of Technology

Please submit your 400-word abstract (not including references) and a short bio of no more than 250 words by March 24th via this submission form. Authors whose papers are accepted will be expected to provide full paper drafts two weeks prior to the conference, which will be circulated to all conference participants. Please send your questions to justcomputation2023@gmail.com. We look forward to reading your submissions!

Duve on Normativity as a Framework for Legal History

Thomas Duve, Max Planck Institute for Legal History and Legal Theory, has two papers on normativity as a framework for legal history.  The first is Legal History as an Observation of Historical Regimes of Normativity:

In the last few years, the research at the Department “Historical Regimes of Normativity” at the Max Planck Institute for Legal History and Legal Theory has increasingly been guided by two conceptual ideas: the analysis of “legal history as a history of the translation of knowledge of normativity” and the integration of these findings into an analytical framework called “Historical Regimes of Normativity”. The understanding of “legal history as a history of the translation of knowledge of normativity” is explained in a separate working paper (mpilhlt research paper series N°. 2022-16). It is recommended to read the paper on "translation of knowledge of normativity" first. The present paper introduces the concept of “Historical Regimes of Normativity”.It consists of five parts. In a first part, I sketch out in a very general way our understanding of “Historical Regimes of Normativity” (I.). In the second part, I give an example (II.). In the third part, I add some comments on the different uses of the term “regime” (III.). In the fourth section, I briefly point out some intellectual opportunities this concept offers (IV.). I close with a brief remark on the relation between this approach and other theories (V.).

The second is Legal History as a History of the Translation of Knowledge of Normativity:

In the last few years, the research at the Department “Historical Regimes of Normativity” at the Max Planck Institute for Legal History and Legal Theory has increasingly been guided by two conceptual ideas: the analysis of “legal history as a history of the translation of knowledge of normativity” and the integration of these findings into an analytical framework called “Historical Regimes of Normativity”. The understanding of “legal history as an observation of Historical Regimes of Normativity” is explained in a separate working paper (mpilhlt research paper series N°. 2022-17). This paper consists of five parts. In a first part, I sketch out in a very general way our understanding of legal history as a history of the translation of knowledge of normativity (I.). I then introduce the legal-theoretical foundations of this perspective (II.) and explain some advantages of speaking of “knowledge” and “normativity” and not of “law” and “legal knowledge” (III.). In the fourth part, I summarize some intellectual opportunities of using the concept of (cultural) translation (IV.). In the epilogue, I connect this paper with the paper on "Historical Regimes of Normativity" (V.).

--Dan Ernst

Daston to Lecture on Rules and Exceptions

 [We have the following announcement.  DRE]

The 2021-22 Cotterrell Lecture in Sociological Jurisprudence, "Rules and Exceptions: Casuistry,
Equity, and Prerogative," will be delivered by Professor Lorraine Daston on Monday, March 14, 2022, 4:00 PM - 5:30 PM.  Register here.  

The 2021-22 Cotterrell Lecture in Sociological Jurisprudence will be delivered by Professor Lorraine Daston. Professor Daston is Director Emerita of Max Planck Institute for the History of Science, and Professor at the Committee on Social Thought at the University of Chicago. The event is chaired by Professor Maksymilian Del Mar.

No rule evades its exceptions, and institutions have evolved over time in order to bend the rule as necessary without breaking it. In early modern Europe, three such institutions came under increasingly critical scrutiny: casuistry in moral theology, equity in law, and royal prerogative in politics. Exceptions by no means disappeared, but they became morally, philosophically, and even theologically disreputable. A new ideal of the rule emerged, one that prized uniformity and predictability in the generality of cases over fairness and justice in the individual case – a tension still very much with us.

About the Speaker.  Lorraine Daston has published on a wide range of topics in the history of science, including the history of probability and statistics, wonders in early modern science, the emergence of the scientific fact, scientific models, objects of scientific inquiry, the moral authority of nature, and the history of scientific objectivity. Recent books include Gegen die Natur (2018; English edition Against Nature, 2019) as well as Science in the Archives (2017) and (with Paul Erikson et al.) How Reason Almost Lost Its Mind: The Strange Career of Cold War Rationality (2014), the latter two both products of MPIWG Working Groups.

Her current projects include a history of rules, the meaning of modernity in the history of science, international governance in science since the late nineteenth century, and the relationship between moral and natural orders.  She is the recipient of the Pfizer Prize and Sarton Medal of the History of Science Society, the Schelling Prize of the Bavarian Academy of Sciences, the Lichtenberg Medal of the Göttingen Academy of Sciences, the Luhmann Prize of the University of Bielefeld, and honorary doctorates from Princeton University and the Hebrew University. In 2018 she was awarded the Dan David Prize in the History of Science. In addition to directing Department II of the MPIWG, she is a regular Visiting Professor in the Committee on Social Thought at the University of Chicago and Permanent Fellow of the Wissenschaftskolleg zu Berlin.

Emerson on the Administrative State in Constitutional Theory

Blake Emerson, UCLA School of Law, has posted Executive (Administrative State), a contribution to the Cambridge Handbook of Constitutional Theory:

This chapter examines the relationship between the administrative state and constitutional values and structures with reference to German and American legal and political theory. It recovers from these intertwined traditions three analytical approaches to the administrative state, inspired by scholarship in public administration, political science and comparative law. The first analytical approach understands the administrative state to implement the constitution. The second understands the administrative state to generate new constitutional structures and values. The third understands the administrative state to displace the constitution with patterns and practices of rule that lie outside of the existing governance framework. These frameworks foreground normative analysis of how the administrative state ought to relate to general democratic principles and the specific constitutional rules that institutionalize them. Here I contribute to a robust and growing literature on democracy and the administrative state, which treats welfare and regulatory agencies as potentially advancing rather than merely threatening popular self-government I argue for a differentiated and developmental understanding of the relationship between democracy, constitution, and administration. The concrete administration of democratic values should allow constitutional rules to shift in light of social and historical context. The administrative state should not be strictly limited by, but rather should facilitate critical interrogation of, the constitution’s current instantiation of democratic values.

--Dan Ernst

Trubek et al. on the Yale Program in Law and Modernization

David M. Trubek, University of Wisconsin Law School; Richard L. Abel, UCLA School of Law; Bryant Garth, University of California, Irvine School of Law; Afroditi Giovanopoulou, Columbia University; Duncan Kennedy, Harvard Law School; and Boaventura de Sousa Santos, University of Wisconsin Law School have posted The Short Happy Life of the Yale Program in Law and Modernization: From the Cold War to Comparative Legal Sociology and Critical Legal Studies, which appears in Revista Estudos Institucionais 7 (maio/ago. 2021):

In 1969, the Yale Law School received a $1,000,000 grant from the United States Agency for International Development for a Program in Law and Modernization. Yale promised to study legal impediments to modernization, assess legal needs of modernization projects, train lawyers for research and development work, and disseminate knowledge. The Program was conceived by David Trubek and William Felstiner, former USAID lawyer-administrators, who, along with Richard Abel, ran it.

Launched in the shadow of the Cold War, it started with the implicit promise of diffusing US liberal ideas about law and transplanting US legal institutions and culture, and was seemingly aligned with US foreign policy. Flush with USAID resources, the Program mounted innovative courses, brought Visiting Professors and Fellows with Third World expertise to Yale, supported scholars from the Third World and elsewhere seeking advanced degrees, funded research by Yale faculty, students, and Fellows, held workshops and conferences, and published Working Papers and articles.

Linked with the nascent Law and Society Association, it sought to create a Comparative Sociology of Law. There were vigorous debates ranging from the nature of law and social science to the role of the US in the Third World, all on a campus roiled by student protests over the War in Vietnam and racism in the US. Gradually, the Program became a locus for critique of liberal ideas about law and social science, a source of doubts about US foreign policy, and an incubator for critical studies in law and legal sociology. By 1976, the founding directors were gone and the Program was soon closed. In 1997, nine law professors convened the first Critical Legal Studies conference: six had been involved with the Program while at Yale and the others had interacted with it.

--Dan Ernst

Yale Journal of Law & the Humanities 31:2 -- on "History, Ideology, and the Crisis of Legal Critique"

The latest issue of the Yale Journal of Law & the Humanities looks to be of particular interest to LHB readers. Here's the Table of Contents:

Introduction: History, Ideology, and the Crisis of Legal Critique
Justin Desautels-Stein and Samuel Moyn

If the Music Hadn’t Stopped, or Reflections on the Great Kerfuffle: Historicism’s Continuing Grasp for Truth
John Henry Schlegel

Quentin Skinner v. Charles Taylor: Explanation and Practical Reasoning in History, Philosophy, and Law
Charles Barzun

Law in Time: Legal Theory and Legal History
Paulo Barrozo

The Architecture of Critique
Elizabeth S. Anker

Critical Legal Studies and Marx’s Critique: A Reappraisal
Rob Hunter

The Specter of Eurocentrism in International Legal History
Ntina Tzouvala

Deep Cuts: Four Critiques of Legal Ideology
Justin Desautels-Stein and Akbar Rasulov

Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board
Megan Ming Francis and John Fabian Witt

-- Karen Tani

Green on Erie's Fall and Rise

Craig Green, Temple Law, has posted Erie and Constitutional Structure: An Intellectual History, which appeared in the Akron Law Review 52 (2019):

This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers.

The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.

--Dan Ernst

Tomlins on In the Matter of Nat Turner

Over at  writenowcoach.com, Christopher L. Tomlins, University of California, Berkeley, is interviewed about his recent book In the Matter of Nat Turner.  Perhaps because the site appears to have a readership more of nonfiction writers than scholars, the interview is quite lively, touching upon not just the theoretical underpinnings of the book but what Tomlins is reading now and life while sheltering in place.  We'd rather attend a book talk irl, but in these times we'll take what we can get.

--Dan Ernst

Wolitz on Bickel

David Wolitz, University of Tennessee College of Law, has posted Alexander Bickel and the Demise of Legal Process Jurisprudence, which is forthcoming in the Cornell Journal of Law and Public Policy:

This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law.

The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient considerations while granting the political branches the space and time they need to work out pragmatic compromises.

But once Bickel starkly drew out the tension between principled decisionmaking and pragmatic governance, the Legal Process consensus began to fracture. Why allow for unprincipled judicial decisionmaking with respect to certain justiciability and abstention questions, but not in other areas of doctrine? As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time.” Bickel’s passive virtues solution found no favor among his Legal Process peers and drew even greater criticism from Warren Court-defending legal liberals. Bickel’s penetrating insights into the tensions between principled decisionmaking and pragmatic governance had exposed an always latent divide in Legal Process thought, one Bickel himself could not successfully reconcile. After Bickel, normative jurisprudence has become ever more polarized between consequentialist-pragmatic approaches on the one hand and principled-rationalist approaches on the other.

--Dan Ernst