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