Fishman on Trollope's Lawyers

James Fishman, Pace University School of Law, has posted A Random Stroll Amongst Anthony Trollope’s Lawyers:

Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society.

Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized.

This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides.

Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth.

As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change.

Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.

--Dan Ernst

Quiroga-Villamarín on the Material Turn in the History of International Law

Gated, but very interesting: Beyond Texts? Towards a Material Turn in the Theory and History of International Law, by Daniel Ricardo Quiroga-Villamarín, in the Journal of the History of International Law, from a master’s thesis on Shipping Containers, Materiality, and Legal History:

While the history of international law has been mainly dominated by intellectual history, the neighboring humanities and social sciences have witnessed a ‘material turn.’ Influenced by the new materialisms, historians, sociologists, and anthropologists have highlighted the role of objects and nonhuman infrastructures in the making of the social. Law, however, has been conspicuously absent from these discussions. Only until recently, things began to be studied as instruments of – global – regulation. In this article, I trace an intellectual history of the intellectual history of international law, contextualizing it since its inception in the so-called ‘Cambridge School’ to its spread into the legal field via the Critical Legal Studies movement and its final import into international law in the last two decades. I conclude arguing that international legal historians can depart from the ‘well-worn paths’ of intellectual and conceptual history to engage with the materiality (past, present, and future) of global governance.

–Dan Ernst

Happold on the Magna Carta Myth

Matthew Happold, Université du Luxembourg, has posted Magna Carta Past and Present: A Speech given to the Oxford University Society of Luxembourg, 10 September 2015:

LC

A speech given to the Oxford University Society of Luxembourg to celebrate the 800th anniversary of Magna Carta.  Looking at Magna Carta - how it came about, what it was, what it achieved, and what it came to represent - it argues that the myth of Magna Carta has been much more powerful than the reality. It concludes that invocations of Magna Carta can be double-edged. One the one hand, they extol the rule of law, but on the other they eulogize English exceptionalism. So it is no surprise that the British Government has seen no contradiction in celebrating 800 years of Magna Carta whilst exploring the possibility of denouncing the European Convention on Human Rights in favour of a British Bill of rights and responsibilities.

--Dan Ernst

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

Legal Histories and Historians in Socialist East Central Europe

Socialism and Legal History: The Histories and Historians of Law in Socialist East Central Europe, edited by Ville Erkkilä and Hans-Peter Haferkamp has been published in the series Routledge Research in Legal History:

This book focuses on the way in which legal historians and legal scientists used the past to legitimize, challenge, explain and familiarize the socialist legal orders, which were backed by dictatorial governments.  The volume studies legal historians and legal histories written in Eastern European countries during the socialist era after the Second World War. The book investigates whether there was a unified form of socialist legal historiography, and if so, what can be said of its common features. The individual chapters of this volume concentrate on the regimes that situate between the Russian, and later Soviet, legal culture and the area covered by the German Civil Code. Hence, the geographical focus of the book is on East Germany, Russia, the Baltic states, Poland and Hungary. The approach is transnational, focusing on the interaction and intertwinement of the then hegemonic communist ideology and the ideas of law and justice, as they appeared in the writings of legal historians of the socialist legal orders. Such an angle enables concentration on the dynamics between politics and law as well as identities and legal history.

Studying the socialist interpretations of legal history reveals the ways in which the 20th century legal scholars, situated between legal renewal and political guidance gave legitimacy to, struggled to come to terms with, and sketched the future of the socialist legal orders. The book will be a valuable resource for academics and researchers working in the areas of Legal History, Jurisprudence and Philosophy of Law and European Studies.

About the editors: Ville Erkkilä is a Postdoctoral Researcher at the Center for European Studies, University of Helsinki, Finland. Hans-Peter Haferkamp is Full Professor of Private Law and History of German Law. He is the Director of the Institute of Modern History of Private Law, German and Rhenish Legal History, University of Cologne.

TOC after the jump.

--Dan Ernst

 Introduction: Socialist interpretations of legal history
Ville Erkkilä

PART I Framing the socialist legal historiography

1 The transformations of some classical principles in socialist Hungarian civil law: The metamorphosis of ‘bona fides’ and ‘boni mores’ in the Hungarian Civil Code of 1959
András Földi

2 We few, we happy few? Legal history in the GDR
Martin Otto

3 Roman law studies in the USSR: An abiding debate on slaves, economy and the process of history
Anton Rudokvas and Ville Erkkilä

4 Strategies of covert resistance: Teaching and studying legal history at the University of Tartu in the Soviet era
Marju Luts-Sootak

5 The Western legal tradition and Soviet Russia: The genesis of H. J. Berman’s Law and Revolution
Adolfo Giuliani

PART II Legal historians of socialist regimes

6 Juliusz Bardach and the agenda of socialist history of law in Poland
Marta Bucholc

7 Valdemars Kalninš (1907–1981): The founder of Soviet legal history in Latvia
Sanita Osipova

8 Getaway into the Middle Ages?: On topics, methods and results of ‘socialist’ legal historiography at the University of Jena
Adrian Schmidt-Recla and Zara Luisa Gries

9 Roman law and socialism: Life and work of a Hungarian scholar, Elemér Pólay
Éva Jakab

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

Clio@Themis: The Relaunch

We are grateful to David Sugarman for word that Clio @ Themis, the on-line review of legal history, has a new website, which makes current and previously published articles more accessible. From the website:

Founded in 2009 at the initiative of several researchers from the Centre national de la recherche scientifique, joined by a number of University lecturers, Clio@Themis contributes to the development of debates and scientific exchanges with regard to the history of law. Its creation in France is based on enlargement and enrichment of the traditional perspectives of the legal history. Indeed, the history of law, through more and more varied types of research, concerns now all periods, from Antiquity to the beginning of the 21th century. This broadening of perspectives is not only in a chronological context, but also a geographical one: today, the subject of the history of law is necessarily European, comparative, and reacts to the phenomena of legal globalisation.

As a consequence, far from keeping legal history locked in a complacent study of the past, this journal aims to be an instrument for the critical understanding of the present. It does not intend to separate legal phenomena from social phenomena. In addition to questions about socio-economic factors in the production and reception of the law, it is increasingly important to consider reflections on judicial culture, the formation and circulation of ideas and judicial concepts, practices and representation.

History, Law, Society: these three ideas express, without any doctrinal constraint, our usage of historical method, our focus on legal subjects and our embrace of social science in the broadest sense.

–Dan Ernst

Giovanopoulou on Pragmatic Liberalism and US Foreign Policy

Afroditi Giovanopoulou, a doctoral candidate, Columbia University, has posted Pragmatic Legalism: Revisiting America's Order after World War II, which is forthcoming in the Harvard International Law Journal 62 (2021):

How should we think about the role of law in the making of American foreign policy? Scholarly accounts typically emphasize that the United States led the way for the establishment of a legalized international order at the end of World War II, centered around the norms of international human rights and those of the law of war. More recently, historians have argued that, in fact, a much more skeptical attitude towards international law prevailed in the postwar period. This was in large part due to the reigning influence of international relations realism in the postwar foreign policy establishment. This article argues that postwar foreign policy was defined neither by an unyielding fidelity to a norms-based international order nor enduring realist dismissal of this project. Rather, what defined the postwar period was an eclectic, variegated and situational approach to law and regulation: a mode of “pragmatic” legalism. Pragmatic legalism consciously developed as a reaction to the legal sensibilities of prewar foreign policy makers, who promoted the codification of international norms and the judicial resolution of international disputes. It also developed as a result of larger transformations in American legal thought, notably the rise of sociological jurisprudence and legal realism. Uncovering the history of pragmatic legalism produces significant consequences for how we understand the past and present of American foreign policy. It suggests that there was not a singular law-centric mode that prevailed among American foreign policy makers over the course of the twentieth century, as has been frequently assumed. The vocabulary of pragmatic legalism also shows the breadth of alternative possibilities for lawyers anxious for ways forward today. Today, a legal approach reminiscent of the tradition of international relations realism is vying to displace the previously moralizing language of American foreign policy. Neither of these two competing modes- moralizing internationalism or skeptical disengagement- is the inevitable future of American foreign policy, or American legal internationalism more broadly.

--Dan Ernst

Duggan's Essays on Medieval Canon Law

We’ve recently learned of the publication of A. J. Duggan, Popes, Bishops, and the Progress of Canon Law, c.1120–1234, ed. T.R. Baker (Brepols, 2020).   Anne J. Duggan is Emeritus Professor of Medieval History and Fellow of King’s College London; Travis R. Baker (D.Phil, Oxford, 2017) is a private scholar living in the Diocese of Orange:

This book considers the role of popes and bishops in the development of the law of the Church between 1120 and 1234. Although historians have traditionally seen the popes as the driving force behind the legal transformation of the Church in the twelfth and thirteenth centuries, the primary argument of this book is that the functioning of the process of consultation and appeal reveals a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia.

Bishops have always played a central role in the making and enforcement of the law of the Church, and none more so than the bishop of Rome. From convening and presiding over church councils to applying canon law in church courts, popes and bishops have exercised a decisive influence on the history of that law.

This book, a selection of Anne J. Duggan’s most significant studies on the history of canon law, highlights the interactive role of popes and bishops, and other prelates, in the development of ecclesiastical law and practice between 1120 and 1234. This emphasis directly challenges the pervasive influence of the concept of ‘papal monarchy’, in which popes, and not diocesan bishops and their legal advisers, have been seen as the driving force behind the legal transformation of the Latin Church in the twelfth and early thirteenth centuries. Contrary to the argument that the emergence of the papacy as the primary judicial and legislative authority in the Latin Church was the result of a deliberate programme of papal aggrandizement, the principal argument of this book is that the processes of consultation and appeal reveal a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia, in which the ‘papal machine’ evolved to meet the demand.

–Dan Ernst.  TOC after the jump.
Chapter 1: Jura sua unicuique tribuat: Innocent II and the advance of the learned laws
Chapter 2: ‘Justinian’s Laws, not the Lord’s’: Eugenius III and the learned laws
Chapter 3: Servus servorum Dei: Adrian IV’s contribution to canon law (1154-9)
Chapter 4: Alexander ille meus: The Papacy of Alexander III
Chapter 5: The Effect of Alexander III’s ‘Rules on the Formation of Marriage’ in Angevin England
Chapter 6: The Nature of Alexander III’s Contribution to Marriage Law, with special reference to Licet preter solitum
Chapter 7: Master of the Decretals: A Reassessment of Alexander III’s Contribution to Canon Law
Chapter 8: Making Law or Not? The Function of Papal Decretals in the Twelfth Century
Chapter 9: ‘Our Letters have not usually made law (legem facere) on such matters’ (Alexander III, 1169): a new look at the formation of the canon law of marriage in the twelfth century
Chapter 10: Manu Sollicitudinis: Celestine III and Canon Law
Chapter 11: De Consultationibus: the role of episcopal consultation in the shaping of canon law in the twelfth century
Chapter 12: The English Exile of Archbishop Øystein of Nidaros (1180-83)

Leeming on Lawyers' History and Entick v Carrington

Mark Leeming, Justice of the Court of Appeal of the Supreme Court of New South Wales and Challis Lecturer in Equity at the University of Sydney Law School, has posted Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police, published as (2020) 49 Australian Bar Review 199:

John Entick (wiki)

Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.

--Dan Ernst

Campbell on Constitutional Rights Before Realism

Jud Campbell, University of Richmond School of Law, has posted Constitutional Rights Before Realism, which appears in the University of Illinois Law Review 2020: 1433-1454:

Stephen J. Field (LC)

This Essay excavates a forgotten way of thinking about the relationship between state and federal constitutional rights that was prevalent from the Founding through the early twentieth century. Prior to the ascendancy of legal realism, American jurists understood most fundamental rights as a species of general law that applied across jurisdictional lines, regardless of whether these rights were constitutionally enumerated. And like other forms of general law, state and federal courts shared responsibility for interpreting and enforcing these rights. Nor did the Fourteenth Amendment initially disrupt this paradigm in ways that we might expect. Rather than viewing rights secured by the Fourteenth Amendment as distinctively “national,” most early interpreters thought that these rights remained a species of general law. For several decades, debates instead focused on the extent to which these rights were enforceable in federal court, akin to the way that federal courts could hear general-law claims in diversity-jurisdiction cases. It was only with the rise of legal realism that American jurists began to conceptualize fundamental rights distinctively in terms of state (constitutional) law and federal (constitutional) law and to divide interpretive authority into state and federal spheres.

–Dan Ernst

Richman and Seo on Federalism and the FBI

Daniel C. Richman and Sarah Seo, Columbia Law School, have posted How Federalism Built the FBI, Sustained Local Police, and Left Out the States, which is forthcoming in the Stanford Journal of Civil Rights and Civil Liberties 17 (2021):

Diplomacy Ceremony, National Police Academy (LC)

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial for understanding why the police have gone for so long without meaningful state or federal oversight, with consequences still confronting the country today. This history highlights how structural impediments to institutional accountability have been set over time and also identifies a path not taken, but one that can still be pursued, to expand the states’ supervisory role over local police.

--Dan Ernst

Likhovski on Constitutional Duties in Israel

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted The Rise and Demise of Constitutional Duties in Israel, which is forthcoming in the American Journal of Legal History:

In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case-study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of duties discourse in Israel pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli law and society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society.

–Dan Ernst.  H/t: Legal Theory Blog

Open Access to Legal History in Cambridge Journals

Until the end of the year, Cambridge University Press is making available for free many legal history articles published in Legal History Review and other journals.  Check it out here.  Cambridge is also offering its 30-percent conference discount on selected book titles, here. 

--Dan Ernst

Grisinger Reviews Works on Vertical Files and Paper Shredders

You have to be a certain kind of legal historian to have your imagination fired by tabbed file folders, but, hell, I’m one too.  Over at Jotwell, Joanna Grisinger, Northwestern University, writes on two articles, Craig Robertson, Granular Certainty, The Vertical Filing Cabinet, and the Transformation of Files, 4 Administory 76 (2019); and Marianne Constable, The Paper Shredder: Trails of Law, 23 Law Text Culture 276 (2019).  Professor Grisinger writes:

"The Last of the NRA" (1938)(LC)

Anyone who has done archival research has grappled with someone else’s file organization—are the papers you seek filed chronologically? By correspondent? By topic? By some other method inscrutable to the outsider? Does the filing system reflect the thinking of your research subject, of a secretary or clerk, or of a later archivist seeking to impose order on chaos? Finally, will the files actually contain the documents you’re hoping to find? Two recent articles take seriously the prosaic technologies of file storage, on the one hand, and file destruction, on the other, explicating the history of the tabbed file folder, the filing cabinet, and the paper shredder. These technologies are crucial to the contemporaneous operation of the bureaucratic process, and, of course, silently shape how we write history from those files. [More. ]

–Dan Ernst

Eves on Mort D’Ancestor and Collusive Conveyances

Collusive Litigation in the Early Years of the English Common Law: The Use of Mort D’Ancestor for Conveyancing Purposes c. 1198–1230 by William Eves, University of St. Andrews, currently is open access in the Journal of Legal History:

The extent to which real actions such as mort d’ancestor were used collusively for conveyancing purposes in the early years of the English common law is subject to debate. This article first discusses why parties to a transfer of land might engage in collusive litigation, before surveying the existing literature on the question of how collusive suits can be identified, and the suggestions which have been made as to the prevalence of collusive litigation in the late-twelfth and early-thirteenth centuries. It then discusses a method which may be used to provide a more precise answer to this question, and employs this method to uncover the extent to which mort d’ancestor could have been used collusively in the period c.1198–1230. It concludes with a suggestion that this method could be used in relation to other early common law actions to further our understanding of litigation and conveyancing in the period.

--Dan Ernst