Weekend Roundup

• In the New Republic: Gabriel Rosenberg and Jan Dutkiewicz on the place where the meat industry meets anti-bestiality laws, past and present.

• Catch this virtual event with Ashley Rubin on her forthcoming book, The Deviant Prison: Philadelphia's Eastern State Penitentiary and the Origins of America's Modern Penal System, 1829-1913: Jan.5 at 6-7pm EST. 

• The Wiener Library for the Study of the Nazi Era and the Holocaust, at the Sourasky Central Library, Tel Aviv University, has put some of its collections online, including prosecutions for distributing the Protocols of the Elders of Zion and the Nazi Justice Collection, which "contains information on the judiciary in Nazi Germany and hundreds of trial transcripts."  N/t: JQB
  

• “The new feature documentary, My Native Air: Charles Evans Hughes and the Adirondacks, co-produced by MDT Publishing and Snarky Aardvark Films, is premiering on-demand in a limited run from January 15th to February 15th, 2021.”  H/t: JQB
  

• Brittany Nichole Adams, Special Collections, Digitization, and Archival Services Librarian, Northwestern University is profiled in the Bright Young Librarians series at FineBooks and Collections.
  

• From the Washington Post's "Made by History" section: Anya Jabour (University of Montana) on why "Referring to female PhDs as ‘Dr.’ promotes equal treatment and values women’s work," including a discussion of trailblazing law reformers (and PhD holders) Sophonisba Breckenridge and Edith Abbott.

• ICYMI:  University of Mississippi fires Garrett Felber, a tenure-track assistant professor in the Arch Dalrymple III Department of History, who has studied the American carceral state. (Mississippi Free Press).  Greg Melleuish on Constitutional History in Australia (Telos Press Podcast).

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

Pfander on Common Law Qualified Immunity

James E. Pfander, Northwestern University School of Law, has posted Zones of Discretion at Common Law:

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed. 

--Dan Ernst

The Life & Legacy of John Jay

[We have the following announcement.  DRE]

John Jay (NYPL)

The John Jay Papers Project, Columbia University Libraries, and Columbia University's Office of the Provost are proud to present In Service to the New Nation: The Life & Legacy of John Jay, a  two-day virtual conference (January 22-23, 2021) celebrating the near completion of the Project's seven-volume series The Selected Papers of John Jay.

The conference events are free and open to the public. To attend the events, attendees will need to register beforehand.  For registration information and the full conference program visit In Service to the New Nation: The Life & Legacy of John Jay

Joanne Freeman, Class of 1954 Professor of American History and American Studies at Yale University, will deliver the keynote address "Life in an Age of Conflicts and Extremes." The keynote address will be held via Zoom Webinar on Friday, January 22, 6:00-7:30 PM EST.

There will then be four panel sessions to be held via Zoom Webinar on Saturday, January 23, 10:30 am-5:30 PM EST.

Panel 1: Diplomacy and Politics (10:40 am – 12:00 pm)
Chair, Mary A. Y. Gallagher (John Jay Papers)

Kings College and the Foundations of John Jay’s Diplomacy
Benjamin C. Lyons (Columbia University)

John Jay’s 1788 “Address to the People of the State of New York” and the Dynamics of the Ratification Debate: A New Look
Todd Estes (Oakland University)

Two Treaties, Two Diplomats, and Two Scholarly Editions: John Jay, Thomas Pinckney, and the Art and Practice of Scholarly Editorial Collaboration
Constance B. Schulz (Pinckney Papers, University of South Carolina)

Panel 2: Family, Slavery, and Abolition (1:00 – 2:20 pm)
Chair, Elizabeth M. Nuxoll, (John Jay Papers)

Mastering Paradox: John Jay, Slavery, and Nation Building
David N. Gellman (DePauw University)

John Jay and the Intimate Politics of Slavery and Antislavery
Sarah Gronningsater (University of Pennsylvania)

“One of them married Colonel Stuyvesandt, another of them married my grandfather”: John Jay, Genealogy, and the Shape of a New Nation
Karin Wulf (Omohundro Institute of Early American History and Culture, College of William & Mary)

Panel 3: Navigating Networks and Publics (2:30 – 4:05 pm)
Chair, Herbert Sloan (Barnard College)

John Jay and the Press
Sara Georgini (Adams Papers, Massachusetts Historical Society)

Investing in Social Networking in Sarah Livingston Jay’s New York
Alisa Wade (California State University, Chico)

John Jay in Voluntary America
Jonathan Den Hartog (Samford University)

Did the Man Make the Robe? John Jay Dressed for the Court
Claire Jerry (Smithsonian National Museum of American History)
Bethanee Bemis (Smithsonian National Museum of American History)

Panel 4: Roundtable on The Future of Documentary Editing & the Founding Era (4:15 – 5:20 pm)
Chair, R. Darrell Meadows (National Historical Publications and Records Commission)

Sara Martin (Adams Papers, Massachusetts Historical Society)

Holly C. Shulman (Dolley Madison Digital Edition)

Jennifer E. Steenshorne (John Jay Papers)

Jennifer Stertzer (Washington Papers, Center for Digital Editing)

Weekend Roundup

• Martha S. Jones published an op-ed in WaPo and was prominently quoted in an NYT story this week about the discovery that Johns Hopkins owned enslaved persons. They are the fruit of the project she directs, Hard Histories at Hopkins.
  

• The African American History Collection of the William L. Clements Library at the University of Michigan relating to slavery, abolition movements, and various aspects of African American life, largely dating between 1781 and 1865, is now online. 
  

• 

  William O. Douglas (LC)
  

  We are grateful to John Q. Barrett for bringing to our attention this quite arresting interview of William O. Douglas from 1966, which we understand he found here.
  

• The Evolution of Judicial Retirement, by Jake Kobrick, another in a series of posts by the Federal Judicial Center, went up this week.
  

• The Harvard Law School Library’s Nuremberg Trials Project supplies documents for “The World’s Biggest Murder Trial: Nuremberg" (Harvard Law Today).

• LHB October guest blogger Stefan B. Kirmse will have a virtual book event on The Lawful Empire: Legal Change and Cultural Diversity in Late Tsarist Russia on Monday, Dec.15 at 6-7.30pm Central European Standard Time. You can register here. 

• The latest from Lawbook Exchange: Scholarly Law and Legal History.
  

• LHB congratulates Risa Goluboff on her reappointment as dean of UVA Law.
  

• Local Legal History from Washington County, PA and Madison County, TX.
  

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

Martin's "Cherokee Supreme Court"

 J. Matthew Martin, an Administrative Law Judge with the Social Security Administration who for over a decade served as Associate Judge of the Cherokee Court, the Tribal Court for the Eastern Band of Cherokee Indians, has published The Cherokee Supreme Court with Carolina Academic Press.

The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change.

Extensive case studies document the Cherokee Nation's exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now.

–Dan Ernst

Assistant to the Executive Director at NJCHS

[We have the following job announcement.  DRE]

Assistant to the Executive Director for the Ninth Judicial Circuit Historical Society

The Ninth Judicial Circuit Historical Society (NJCHS) is seeking an Assistant to work in close partnership with the Executive Director promoting awareness of the important role that the judicial system plays in our society. The successful candidate will bring their creativity, attention to detail, and passion to the work of the Society by designing outreach and other materials, helping build and support events, supporting educational and member outreach, and performing administrative tasks and other projects as needed. 

What is the NJCHS?  The NJCHS is a 501(c)(3) whose mission is to preserve and promote the vibrant history of the law in the Ninth Circuit, and to raise awareness of the important role that the judicial system plays in our society. We accomplish our mission through an ambitious schedule of programming, exhibits, oral histories, and publication of our journal, Western Legal History. More information about the Society is available on our website.

Responsibilities include (but are not limited to):

Communications Support

• Design newsletters to send to members
• Maintain WordPress website including creating and supporting webpages for key events, programs, and fundraising initiatives
• Design, create and/or update PowerPoint presentations for Board Meetings and/or events
• Assist in designing print and digital media such as flyers, T-shirts, posters, and announcement materials
• Maintain membership database (Little Green Light) updating and tracking memberships and sending monthly renewal letters

Administrative Support

• Help coordinate tracking and reporting of payments, sponsorships, and membership dues
• Maintain accounts payable/receivable along with depositing and tracking checks
• Supervise all bank accounts including credit card account and responsible for reviewing and compiling monthly bank statements
• Maintain Stripe account and coordinate integration throughout all platforms
• Track project budgets for special events such as our Annual Gala
• Manage incoming and outgoing mail

Special Events

•  Support registration and logistical support related to special events
• Run Zoom webinars for virtual events including practice sessions
• Liaison with other organizations and teams to coordinate co-sponsored events
  

Qualifications

• You have 1-2 years of experience in an administrative and/or project coordination role
• Strong written and verbal communication skill
• Experience with a variety of technology systems, and ability to troubleshoot and research solutions when needed
• Experience working in Google Suite, Zoom, Excel, WordPress and Mailchimp
• Familiarity with basic graphic design
• Working with nonprofits, foundations, and/or government agencies is a plus
• Experience working with a CRM system (Salesforce, LGL etc.) is a plus 

Personal Qualities

• The NJCHS has a very small staff, so you are highly organized, a team player, flexible, and thrive in a fast-paced work environment where you have real responsibility in a supportive environment
• You are an effective communicator and a proactive problem solver  
• Familiarity with the role of the judiciary a plus
  

Position Details

• Start date: January 2021
• This can be either a full-time position or part time position. While we are currently working remotely, successful candidates are expected to be available for in-person work in the San Francisco Bay Area post-Covid.
• Salary commensurate with experience 

To Apply

If this sounds like a perfect fit for your expertise and interest, please email executivedirector@njchs.org and include a personalized cover letter and your resume. Please include Assistant to the Director in the subject line of the email.

Weekend Roundup

• From the Washington Post's "Made by History" section: Julio Capó Jr. (Florida International University) and Melba Pearson (Florida International University’s Center for the Administration of Justice ) on Florida voter suppression as "Jim Crow Esq."; Ashley Farmer (University of Texas, Austin) on Black women running for Congress;
  

• The Supreme Court Historical Society has just launched The Supreme Court & the Presidential Election of 1876, "a documentary on the 15-member Electoral Commission (including 5 Supreme Court Justices) appointed to resolve the disputed election."
  

• New online from Law and History Review and Cambridge Core: Counterterrorism in American Civil Courts: The Role of Letelier v. Republic of Chile, by Alan McPherson.
  

• "Supreme Court Justice Louis D. Brandeis and Social Justice," a discussion featuring Georgetown Law’s Brad Snyder, who is the author of House of Truth, and Jennifer Lowe, the Director of Programs and Strategic Planning of the Supreme Court Historical Society, will be conducted online on November 18, 2020 at 3 pm.  It is sponsored by the National Archives, the Supreme Court Historical Society, and the Capital Jewish Museum.  Register here.
  

• Street Law, with the help of the Supreme Court Historical Society, has revamped its site, Landmark Cases of the US Supreme Court. 

• A Call for an upcoming event at the Université de Neuchâtel on historical sources of Swiss law here (9-10 Sept. 2021).

• Update: a profile of Buffalo Law's Michael Boucai and his article "Before Loving" (UB Now).
  

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

Concepcion on Waite and Blatchford

Cattleya M. Concepcion, Head of Reference, Georgetown Law Library, has posted Happy Birthday, My Dear Chief Justice: Three Letters from Samuel Blatchford to Morrison R. Waite, which appears in the Green Bag Almanac & Reader:

CJ Morrison R. Waite (LC)

Much has been written on the legacy of Morrison R. Waite, the seventh Chief Justice of the United States, including his ability to preside over the Associate Justices who served during his tenure. With a bench full of forceful characters like Samuel F. Miller, Stephen J. Field, Joseph P. Bradley, and John Marshall Harlan, Waite’s relationships with the other Justices who served beside him have received less attention. One of his more obscure relationships was with Samuel Blatchford, a wealthy New Yorker who possessed “grace and courtesy and strict[ly] observ[ed] the first principles of amenity.” It is perhaps due to these characteristics that a small peek into their relationship exists today. Found among Waite’s personal papers were three letters that Blatchford sent to him while they served together on the Supreme Court from 1882 to 1888. Addressed to “My dear Chief Justice” on the occasion of Waite’s birthday, the letters reveal a warm and collegial friendship during the final years of Waite’s life.

-Dan Ernst

Weekend Roundup

• In the op-ed pages of the New York Times: John Fabian Witt (Yale Law School) writes about how courts have historically responded to challenges to public health laws -- and how they are doing so today ("Republican Judges Are Quietly Upending Public Health Laws").

• In the Washington Post's "Made by History" section: Bruce J. Shulman (Boston University) on how "Court-packing — and other radical constitutional reforms — might save America"; Daniel S. Luck on how "Originalism threatens to turn the clock back on race"; and more.
  

• Via Religion & Politics: Ronit Y. Stahl (University of California, Berkeley) on "The Book of Ruth: Justice Ginsburg on Religious Freedom."
  

• The David Berg Foundation Institute for Law and History at Tel Aviv University has recently updated its bibliography of the history of Israeli law to expand its coverage down to 1977.  The compilers write that they have consulted Palestinian and Arabic-language sources and would be very happy to receive further references.
  

• We’ve previously noted that Linda Kerber will deliver the 2020 Charles Homer Haskins Prize Lecture from the College and Law at the University of Iowa at 3:00 PM Eastern Time on Wednesday, October 28 and our now please to pass along word that Constance Backhouse, ASLH delegate to the American Council of Learned Societies and a former ASLH president, and former ASLH Treasurer, Craig Klafter, nominated Professor Kerber was nominated for this prize.
  

• A recording of the 2020 Roger Trask Lecture of the Society for History in the Federal Government, delivered by Bill Williams, formerly Chief of the Center for Cryptologic History at the National Security Agency, is here.

• We just wanted to make sure you all knew about Aaron Sorkin’s The Trial of Chicago 7.  We still recall our viewing of the documentary William Kunstler: Disturbing the Universe, by the famous radical lawyer’s daughters.  

• The 14th Annual South Asia Legal Studies Workshop happened online this week, hosted by the University of Wisconsin Law School. It included a good crop of legal history papers (program here).

• "100 Years After the 19th Amendment: Their Legacy, and Our Future,” a traveling exhibit of the American Bar Association, opens at the University of Kentucky J. David Rosenberg College of Law on October 18.  Several events are planned, and the UK Law Library has created an accompanying website.  More.
  

• ICYMI: Jack Rakove on originalism and Judge Barrett (WaPo).  Sara Georgini, series editor for The Papers of John Adams, On the Peaceful Transfer of Power: Lessons from 1800 (AHA Perspectives).  Michael Koncewicz, Tamiment Library & Robert F. Wagner Labor Archives, on Loyalty and Duty in the Federal Bureaucracy, From Nixon to Trump (HNN).
  

• Update: Over at IEHS Online, the website of the Immigration and Ethnic History Society, Jane Hong interviews Lucy Salyer about Under the Starry Sky. (Also: it does have legs: I discussed Laws Harsh as Tigers in class this semester, too!  DRE.)
  

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

Gerangelos on Dixon, J., and Australian Nationhood

Peter Gerangelos, University of Sydney Law School, has posted Sir Owen Dixon and the Concept of 'Nationhood' as a Source of Commonwealth Power, which appears in Sir Owen Dixon's Legacy (Federation Press, 2019): 56-79:

Owen Dixon (wiki)

The principal focus of this chapter is to trace from the reasoning of Dixon J, and those whom he influenced, the High Court’s evolving jurisprudence with respect to the concept of “nationhood” as a source of power. A central thesis of this chapter is that it is questionable whether the reasoning of Dixon J in the Cold War Era cases (Sharkey, Burns v Ransley, Communisty Party Case, and the Pharmaceutical Benefits Case) as well as the reasoning in subsequent pivotal executive power cases in the High Court such as AAP and Davis, support the development of an inherent executive “nationhood” power in s 61 of the Constitution. The chapter examines the extent to which the influence of Dixon J, together with the nature of the very issues considered in these cases, come together to influence the outcome of what is often regarded as the most seminal case on executive power in recent years: Pape v Commissioner of Taxation. 

--Dan Ernst

Weekend Roundup

• 
  Julia Rose Kraut, the Judith S. Kaye Fellow for the Historical Society of the New York Courts, will speak on her book Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States in the Washington History Seminar of the National History Center of the American Historical Association on October 14 at 4:00 ET.  From the announcement: "Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King."  Register here.
  

• The US Customs and Border Patrol has asked the National Archives to "designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department."  More. 
  

• The Docket 3:3 is now online.
  

• The Federal Judicial Center has announced "Spotlight on Judicial History," a series of “brief essays, posted periodically, on a wide variety of interesting topics related to federal court history.  The first, by Jake Kobrick, is A Brief History of Circuit Riding.

• Lorianne Updike Toler, Information Society Project, Yale Law School, has posted The Publication of Constitutional Convention Records, a “ short history of the print and digital publication of all records of the Constitutional Convention, from 1787-2020.”
  

• The recording of the National History Center's congressional briefing, "Financial Responses to Economic Crisis," is here. 
  

• You had us at "Hughes": Avoiding Post-Election Chaos: Wilson vs. Hughes, 1916 by Matthew Waxman (Lawfare).  Also: a video on the history of housing discrimination in Arlington, VA.

• Update: Rutgers British Studies Center is hosting Empires of Law in Colonial South Asia this Monday at 12pm-1ET for a Q&A session (register here) with Tanya Agathocleous and our blogger Mitra Sharafi. The video talks are posted here.

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

Marble Palace Day

Credit: LC

We don't usually have "on this date" posts, but, with a hat tip to the Supreme Court Historical Society, here's a pointer to Christopher Schmidt's post the first session of the US Supreme Court in its present home on October 7, 1935.  

Fwiw, we'd have to agree with Cardozo.

--Dan Ernst

Sackar on Lord Devlin

Out this month by Justice John Sackar (Supreme Court of New South Wales) is Lord Devlin with Hart Publishing. From the press:

Lord Devlin was a leading lawyer of his generation. Moreover, he was one of the most recognised figures in the judiciary, thanks to his role in the John Bodkin Adams trial and the Nyasaland Commission of Inquiry. It is hard then to believe that he retired as a Law Lord at a mere 58 years of age. This important book looks at the life, influences and impact of this most important judicial figure. Starting with his earliest days as a school boy before moving on to his later years, the author draws a compelling picture of a complex, brilliant man who would shape not just the law but society more generally in post-war Britain.

Further information is available here.

--Mitra Sharafi

Moore on Anti-Federalists and Implementing Article III

Tyler Moore, a 2011 graduate of the Georgetown University Law Center and a Ph.D. Candidate at the University of Notre Dame, has posted Trimming the Least Dangerous Branch: the Anti-Federalists and the Implementation of Article III, which is forthcoming in the Tulsa Law Review:

The traditional narrative of events following the ratification debates has connected the Bill of Rights with the Anti-Federalists and the Judiciary and Process Acts of 1789 with the Federalists. Although the scholarly consensus has turned against the Bill of Rights part of this story, most scholars continue to portray the first Congress’s implementation of Article III as a victory for the Federalists. In this article, I trace the development of the Anti-Federalists’ theory of federal/state power and its application to the judiciary in an effort to show why the second part of the above narrative also has it wrong.

Here is the short version. Having adopted the same conception of federalism as an underappreciated faction of delegates at the Constitutional Convention, Anti-Federalist writers like “Brutus” argued that some mechanism was needed to prevent the states from being swallowed up by federal judicial overreach. Despite Alexander Hamilton’s attempts in Federalist Nos. 78-83 to downplay this danger and emphasize the necessity of a robust system of federal inferior courts with general “arising under” jurisdiction, it was the Anti-Federalists’ arguments that continued to resonate in the state ratifying conventions and beyond. Oliver Ellsworth, the Connecticut Federalist who was the primary draftsman of the Judiciary and Process Acts, had shown his sympathy with Brutus all along. And the bare bones, state-dependent inferior court structure he helped create is testimony to this sympathy. Like the Bill of Rights, then, the Anti-Federalists’ influence on the original federal judiciary was a vicarious one. But unlike the Bill of Rights, this victory tracked their theory of federalism and gave them a meaningful structural change that could protect the states against a national consolidation. 

--Dan Ernst

Behrens on the Absent Justice Matthews

Jennifer L. Behrens, J. Michael Goodson Law Library, Duke Law, has posted The Empty Chair: Reflections on an Absent Justice, which has been published as Green Bag Almanac & Reader 131-142 (2020):

Stanley Matthews (LC)

This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations. 

 --Dan Ernst

Abrams on the Mail Fraud Statutes

Norman Abrams, UCLA Law School, has posted Uncovered: The Legislative Histories of the Early Mail Fraud Statutes:

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime—that is, not made a crime because it serves to protect direct federal interests against harm, but rather as an auxiliary to state crime enforcement. Mail fraud is also a crime that scholars, judges and lawyers have viewed as not having any significant legislative history linked to its original enactment in 1872, nor to its two early revisions in 1889 and 1909.

This paper uncovers and elaborates on legislative history details related to each of those three legislative enactments and, along the way, presents a more nuanced view of the status of mail fraud as the original federal auxiliary jurisdiction crime.

 --Dan Ernst

Tidmark to Lecture on the London Fire Courts

 [We have the following announcement.  DRE]

The Selden Society with the Four Inns of Court presents The Fire Courts: Successfully Delivering Justice in a Time of Plague and Fire, by Jay Tidmarsh, Notre Dame Law School, 21 October 2020, 5.30pm.  Click Here to Book.

1665 had been a devastating Plague Year. 1666 was going that way and then the Great Fire destroyed seven eighths of London. The international scene was bleak. Samuel Pepys despaired of London ever being rebuilt.

And yet, within ten years modern London had risen from the ashes, and with London’s resurgence the foundation for continued rise of the British Empire had been laid. Professor Jay Tidmarsh of Notre Dame Law School will explore the social and economic impact of the Great Fire and explain how a six-section Act of Parliament, which erected a novel Fire Court to cut a path through the tsunami of legal disputes that threatened the timely rebuilding of London, played a central role in the City’s redevelopment. Drawing on research into the London Fire Court as well the Southwark Fire Court established after the Great Southwark Fire of 1676, the lecture will also explore lessons for modern times: the circumstances under which government intervention can foster resilience and the ways in which the judiciary can be a key partner in recovery from disaster.

The Selden Society and the Inns of Court have joined forces to establish a new series of annual lectures open to scholars, students and the general public to show the relevance of a wider understanding of Legal History. This first talk on the genesis and impact of the Fire of London Disputes Act 1666 and how Fire Courts helped the City of London and other communities recover in a surprisingly short time is designed to have particular salience in our present uncertain times.

Davies on 1916 and the Supreme Court

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted A Changed Court, 2020 Green Bag Almanac 193:

On June 10, 1916, U.S. Supreme Court Justice Charles Evans Hughes resigned from the Court so that he could campaign full-time for the Presidency of the United States on the Republican ticket. The move turned out, eventually, to be a double blessing for sitting President Woodrow Wilson of the Democratic Party. First, in the summer, Wilson nominated John H. Clarke — like Wilson, a Democrat and a Progressive — to replace Hughes at the Court. Clarke was promptly confirmed and commissioned, and he took office on July 24. Second, in the autumn, Wilson ran for reelection and defeated Hughes on November 7. And it was, in addition, a busy year for speculation, staff changes, and sentimental expressions at the Court.

--Dan Ernst

JSCH 45:2

Journal of Supreme Court History 45:2 (2020) has been published.  Here’s the TOC:

Introduction
Melvin I. Urofsky

Fletcher, Whitney, and the Art of Disagreement
Mark R. Killenbeck

Chief Justice Melville Weston Fuller and the Great Mustache Debate of 2444
Todd Peppers

The Politics of Disabled Supreme Court Justices
Judge Glock

Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States
Robert Post

Kumezo Kawato and “Justice Court”
Charles J. Sheehan

--Dan Ernst

Blackman on Presidential Subpeonas during the Burr Trial

Josh Blackman, South Texas College of Law Houston, has posted Presidential Subpoenas during the Burr Trials:

Aaron Burr (LC)

Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.

As the deliberations proceeded, Hay would frequently write to the President, who traveled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redaction. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.

Because of the lengthy nature of the proceedings — in which Marshall and Jefferson took different positions at different junctures — it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.

--Dan Ernst