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

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

Lian's "Stereoscopic Law"

Alexander Lian has just published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press):

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

Some endorsements:

The Path of the Law has attracted and puzzled scholars for a very long time. Just what is it about?  Alexander Lian has an answer: It is about legal education broadly understood. He demonstrates this proposition by carefully situating the piece in Holmes' many publications and in the thought of others of his time and acquaintance. The result is always interesting, somehow both analytically precise and neither hurried nor dense. Read the book slowly and enjoy it. Whether in the end one agrees with Lian's conclusion, one cannot fail to come away with a better understanding of Holmes, his times and the problems of becoming educated in law. 

John Henry Schlegel, Floyd H. and Hilda L. Hurst Faculty Scholar, University at Buffalo School of Law

In this carefully researched, engagingly written, and highly original book, Alexander Lian draws on the voluminous scholarship on Holmes and the experience of a practicing attorney, who is trained in American intellectual history, to formulate a compelling theoretical foundation for legal education and legal practice rooted in Holmes's writings. 

Bruce Kimball, co-author of The Intellectual Sword: Harvard Law School, the Second Century

Alexander Lian brings a key insight to our understanding of Holmes's famed Path of the Law article: Holmes presented it as a guide to law students in their study of law rather than as a commentary on the practice of law. Building on this insight, Lian offers an original, enlightening, and comprehensive reinterpretation of Holmes. Most important, we must not forget that Holmes approached his audience as a lawyer and judge, not as a legal academic. As such, Holmes presented the law in three dimensions, not as a flat or two-dimensional series of rules, but as a deeply historical enterprise. 

Stephen M. Feldman, Jerry H. Housel/Carl F. Arnold Distinguished Professor of Law, University of Wyoming

 Alexander Lian's new book about Oliver Wendell Holmes is a magnificent achievement. A major contribution to the Holmes literature, Stereoscopic Law looks at its subject in an original, revealing way: both with a wide angle and a zoom lens. With Holmes's famous lecture "The Path of the Law" as a springboard, Lian explores and probes Holmes's thinking as a matter of legal philosophy as well as Holmes's biographical and intellectual development. Stereoscopic Law, written accessibly and provocatively, is sure to push Holmes studies in a new, fruitful direction. It should be read and pondered by anyone interested in the history of ideas and the life of the mind. 

Daniel J. Kornstein, lawyer and author of The Second Greatest American

--Dan Ernst

Rogers's "Workers against the City"

Donald W. Rogers, a lecturer in the Department of History at Central Connecticut State University, has published Workers against the City: The Fight for Free Speech in Hague v. CIO (University of Illinois Press, 2020):

The 1939 U.S. Supreme Court decision Hague v. CIO constitutionalized the fundamental right of Americans, including labor organizers, to assemble and speak in public places. Donald W. Rogers eschews the prevailing view of the case as simply a morality play pitting Jersey City, New Jersey, political boss Frank Hague against the Committee for Industrial Organization (CIO) and allied civil libertarians. Instead, he utilizes untapped archives and evidence to review Hague's story from street and media battles to district court and Supreme Court deliberations, illuminating trial proceedings from both worker and city perspectives for the first time. His analysis reveals how transformative New Deal-era developments in municipal governance, union organizing, labor politics and constitutional law dominated the conflict, and how assembly and speech rights changed according to judges' reaction to this historical situation.

Clear-eyed and comprehensive, Workers against the City revises the view of a milestone case that continues to affect Americans' constitutional rights today.

Here is an endorsement:

"Skillfully blending the histories of American civil liberties, organized labor, and urban politics, Rogers shows us how a complex set of forces has shaped and limited the rights of modern Americans to assemble and speak their minds in public."--James J. Connolly, author of An Elusive Unity: Urban Democracy and Machine Politics in Industrializing America

–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)

Laske's "Law, Language and Change"

Caroline Laske, a research fellow at the Ghent Legal History Institute (Belgium) and the holder of a Heinz Heinen fellowship at the Bonn Centre for Dependency and Slavery Studies (Germany), has published Law, Language and Change: A Diachronic Semantic Analysis of Consideration in the Common Law (Brill, 2020):

In this monograph, Caroline Laske traces the advent of consideration in English contract law, by analysing the doctrinal development, in parallel with the corresponding terminological evolution and semantic shifts between the fourteenth and nineteenth centuries. It is an innovative, interdisciplinary study, showcasing the value of taking a diachronic corpus linguistics-based approach to the study of legal change and legal development, and the semantic shifts in the corresponding terminology. The seminal application in the legal field of these analytical methodologies borrowed from pragmatic linguistics goes beyond the content approach that legal research usually practices and it has allowed for claims of semantic change to be objectified. This ground-breaking work is pitched at scholars of legal history, law & language, and linguistics; and is of importance to scholars of private law working on promises and contract.

–Dan Ernst

Thomas's "Question of Freedom"

William G. Thomas III, the John and Catherine Angle Chair in the Humanities and Professor of History at the University of Nebraska, has published A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War (Yale University Press):

For over seventy years and five generations, the enslaved families of Prince George’s County, Maryland, filed hundreds of suits for their freedom against a powerful circle of slaveholders, taking their cause all the way to the Supreme Court. Between 1787 and 1861, these lawsuits challenged the legitimacy of slavery in American law and put slavery on trial in the nation’s capital.  
 
Piecing together evidence once dismissed in court and buried in the archives, William Thomas tells an intricate and intensely human story of the enslaved families (the Butlers, Queens, Mahoneys, and others), their lawyers (among them a young Francis Scott Key), and the slaveholders who fought to defend slavery, beginning with the Jesuit priests who held some of the largest plantations in the nation and founded a college at Georgetown. A Question of Freedom asks us to reckon with the moral problem of slavery and its legacies in the present day.

The New York Times review, which hails the book as "a rich, roiling history that Thomas recounts with eloquence and skill," is here.

--Dan Ernst