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.

Park on Self-Deportation in the United States

My Georgetown Law colleague K-Sue Park has posted Self-Deportation Nation, which appeared in the Harvard Law Review (132 (2019): 1878-1941:

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their settlements. The new nation then adopted this approach to Indian removal and debated using self-deportation to remove freed slaves; later, states and municipalities embraced self-deportation to keep blacks out of their jurisdictions and drive out the Chinese. After the creation of the individual deportation system, the logic of self-deportation began to work through the threat of direct deportation. This threat burgeoned with Congress’s expansion of the grounds of deportability during the twentieth century and affects the lives of an estimated 22 million unauthorized persons in the United States today.

This Article examines the mechanics of self-deportation and tracks the policy’s development through its application to groups unwanted as members of the American polity. The approach works through a delegation of power to public and private entities who create subordinating conditions for a targeted group. Governments have long used preemption as a tool to limit the power they cede to these entities. In the United States, this pattern of preemption establishes federal supremacy in the arena of removal: Cyclically, courts have struck down state and municipal attempts to adopt independent self-deportation regimes, and each time, the executive and legislative branches have responded by building up the direct deportation system. The history of self-deportation shows that the specific property interests driving this approach to removal shifted after abolition, from taking control of lands to controlling labor by placing conditions upon presence.

This Article identifies subordination as a primary mode of regulating migration in America, which direct deportations both supplement and fuel. It highlights the role that this approach to removal has played in producing the landscape of uneven racial distributions of power and property that is the present context in which it works. It shows that recognizing self-deportation and its relationship to the direct deportation system is critical for understanding the dynamics of immigration law and policy as a whole.

--Dan Ernst

Vats, "The Color of Creatorship"

Stanford University Press has released The Color of Creatorship: Intellectual Property, Race, and the Making of Americans, by Anjali Vats (Boston College). A description from the Press:

The Color of Creatorship examines how copyright, trademark, and patent discourses work together to form American ideals around race, citizenship, and property.

Working through key moments in intellectual property history since 1790, Anjali Vats reveals that even as they have seemingly evolved, American understandings of who is a creator and who is an infringer have remained remarkably racially conservative and consistent over time. Vats examines archival, legal, political, and popular culture texts to demonstrate how intellectual properties developed alongside definitions of the "good citizen," "bad citizen," and intellectual labor in racialized ways. Offering readers a theory of critical race intellectual property, Vats historicizes the figure of the citizen-creator, the white male maker who was incorporated into the national ideology as a key contributor to the nation's moral and economic development. She also traces the emergence of racial panics around infringement, arguing that the post-racial creator exists in opposition to the figure of the hyper-racial infringer, a national enemy who is the opposite of the hardworking, innovative American creator.

The Color of Creatorship contributes to a rapidly-developing conversation in critical race intellectual property. Vats argues that once anti-racist activists grapple with the underlying racial structures of intellectual property law, they can better advocate for strategies that resist the underlying drivers of racially disparate copyright, patent, and trademark policy.

Advance praise:

"Building on the work of racial justice and intellectual property pioneers, Anjali Vats elevates the conversation to important new registers, including concerns of equitable distribution and post-racial identity claims. Vats shows how IP and contested citizenship have evolved to embed centuries of systemic racial injustices, reaching into the past to imagine a new and exciting future for creatorship." —Jessica Silbey, Northeastern University

"American law defined black human beings as chattel, deprived Asian Americans the right to own property, and justified the appropriation of Native lands. Anjali Vats's riveting book reveals how intellectual property is rife with racial bias and actively creates racialized notions of citizenship and humanity. From the Marvin Gaye plagiarism suit to Prince's radical protest against copyright as modern slavery, Vats explores the racial biases that underlie rhetoric around ingenuity, citizenship, property, and the public domain. A tour de force." —Madhavi Sunder

More information is available here.

H/t: New Books Network, where you can find an interview with the author. 

-- Karen Tani

Weekend Roundup

• Rowan Williams on “Saving our Order: Thomas Becket, Henry II and the Law of Church and State,” 10 December 2020, 17:30 - 19:00.  H/t: LPK
  

• 
  The Smithsonian’s Lemelson Center for the Study of Invention and Innovation announces the webinar series, Black Inventors and Innovators: New Perspectives.  It is free and open to the public and will convene daily November 16–20, 2020 from 1:00-2:30pm ET. “This week-long program will draw renewed attention to historic and contemporary inventors of color and Black technology consumers, while discussing strategies for building a more equitable innovation ecosystem. Through presentations by an interdisciplinary group of thought leaders and engaged discussions with our online audience, this 'state of the field' workshop will identify critical questions, seek out new case studies, and articulate theories, concepts and themes to inform the next generation of research, archival collecting, museum exhibitions, and invention education initiatives.”  Kara W. Swanson, Northeastern University, is on Thursday’s panel. 
  

• Lawbook Exchange has released its catalogue on Law and Literature.
  

• Ronald K. L. Collins reviews Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical by Drexel University law professor Lisa A. Tucker (WaPo).

• Over at the Legal History Miscellany: Krista Kesselring on the hardships of 18th-century English law on wives

• And at Nursing Clio: Melissa E. Blair and Christopher Ferguson ask why so many scholarly fellowship programs are still residential.

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

Paschal's "Jim Crow in North Carolina"

 Richard A. Paschal, an attorney in private practice in Raleigh, has published Jim Crow in North Carolina: The Legislative Program from 1865 to 1920 (Carolina Academic Press, 2020):

This book is a comprehensive study of the Jim Crow laws in North Carolina from 1865 to 1920. While it catalogs all of the laws enacted by the North Carolina legislature during those years, the laws and statutes do not fully explain the true extent of racial discrimination created through the implementation of those laws. The author demonstrates how de jure discrimination in North Carolina was not simply a result of the Jim Crow statutes but was imposed through the operation of law and, in turn, how the operation of law was itself affected by societal attitudes.

Paschal argues that the application and implementation of North Carolina’s laws were more important in terms of the actual discrimination experienced by African Americans than the statutory texts. He contends that the racial contagion which swept the state during the elections of 1898 and 1900—the White Supremacy Campaigns—dramatically changed white attitudes and, consequently, the operation of the law. This book provides an in-depth history of the shadow that Jim Crow casts over North Carolina and the nation.

Mr. Paschal tells us that his research was funded by a generous financial grant from the North Caroliniana Society.

–Dan Ernst

Tolson on Voting Rights in BC Legal History Roundtable

The Legal History Roundtable at the Boston College Law School announces its next session, In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era, a webinar with Franita Tolson, on Friday, November 13, 2020, 12:00PM-12:55PM:

Registration is required. Zoom link will be sent before the day of the event.  Please join Professor Mary Bilder and Professor Dan Farbman as they welcome Franita Tolson, Vice Dean for Faculty and Academic Affairs and Professor of Law at USC Gould School of Law, to discuss her forthcoming book and the election.  Following the discussion will be a Q&A session.  Free and open to the public.

--Dan Ernst

SAPD 34:2

Studies in American Political Development 34:2 (October 2020) is open access through the end of the month:

Racism Is Not Enough: Minority Coalition Building in San Francisco, Seattle, and Vancouver
Jae Yeon Kim

The Political Effects of Policy Drift: Policy Stalemate and American Political Development
Daniel J. Galvin, Jacob S. Hacker

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace
 Sarah Staszak

Democratic Representation of all “the People”: Antislavery Petitions in the U.S. Senate
John D. Griffin, Grace Sager 

--Dan Ernst