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. 

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.

McClure on whipping in colonial India

 Alastair McClure (University of Hong Kong) has published "Archaic Sovereignty and Colonial Law: The reintroduction of corporal punishment in colonial India, 1864-1909," Modern Asian Studies 54:4 (2020), 1712-47. Here's the abstract: 

The judicial and summary punishment of whipping—absent from the Indian Penal Code (IPC) of 1860—was passed into law through Act No. VI of 1864. This legislation, tacked on as an appendage to the IPC, invested the judge with wider discretionary powers to administer violence across Indian society. In this case what emerged was an evolving attempt to enlarge the colonial state’s capacity for quotidian violence, targeting certain bodies to reaffirm, manage, and police the social hierarchies upon which colonial sovereignty depended. In the context of a slow imperial movement away from the cast-iron distinctions that had been made between groups in the early nineteenth century—distinctions that had, among other things, supported a legally enforced system of slavery—new methods to mark the value of different bodies were created. The events of the 1850s, in particular the rebellion of 1857-1858, saw the re-emergence of the colonial idea that certain bodies could withstand violence, and that violence itself could be used to create economically productive colonial societies, in debates around penal law and punishment. This article will trace this history through formal legal restrictions and informal legal cultural practices in relation to corporal punishment in colonial India. Over the course of the period under study, this legislation introduced into law what one official termed ‘the category of the “whippable”’. Charting the changing shape of this legal category along lines of race, gender, caste, class, and age, the article will argue that a logic of exceptionality, channelled here through the application of judicial violence, attempted to structure and manage Indian society in complicated ways.

Further information is available here. 

--Mitra Sharafi

Burset on advisory opinions

 Christian Burset (Notre Dame Law School) has an article coming out in vol. 74 of the Vanderbilt Law Review, forthcoming in 2021. Here's the abstract posted on SSRN for "Advisory Opinions and the Founders' Crisis of Legal Authority" (Notre Dame Legal Studies Paper No.200826):

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States, but also in England and British India—became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a crisis of common-law authority.

Early modern English judges had routinely advised the Crown. This advisory role was politically fraught but doctrinally unproblematic thanks to a jurisprudential orthodoxy that treated judges’ opinions as evidence of a preexisting common law. Although this declaratory theory survived into the nineteenth century (and beyond), it began to fragment after 1750, as lawyers began to disagree about the nature of precedent. Those disagreements generated new pressure to clarify the weight of different kinds of legal authority. Most lawyers intuited that advisory opinions were less authoritative than decisions arising from litigation. But because bench and bar lacked a common theory of legal authority, they were unable to articulate a shared understanding of what respect was due to judges’ extrajudicial pronouncements. As a result, advisory opinions became dangerous, because the judges who issued them could not control how future readers might treat them. In response, judges sought to limit their advisory activity—first in England, then in British-controlled Bengal, and finally in the United States, whose judges inherited Britain’s contested and dynamic understanding of judicial power.

Further information is available here.

--Mitra Sharafi 

Weekend Roundup

• Anne C. Fleming is remembered, especially by other former Climenko Fellows, in Harvard Law Today. 

• The Alan Watson Seminar in Legal History, to be held virtually on December 5, 2020 has been announced.  Fergus Smith will present Civil Litigants in Nineteenth-Century Sheriff Courts.

•  New online from Law and History Review and Cambridge Core: Turning a Blind Eye: Infanticide and Missing Babies in Seventeenth-Century Geneva, by Sara Beam

• Race and Relevance: Arthur Garfield Hays and the Integration of the American Bar Association, 1938-1943, by Richard F. Hamm, University of Albany at SUNY, has been published online in the American Journal of Legal History and Oxford Academic.

• Over at Notches: Ishita Pande, Queen's University, on her new book, Sex, Law and the Politics of Age: Child Marriage in India, 1891-1937.

• Over at Legal History Miscellany:  Sara M. Butler on Law Enforcement Officials and the Limits of Violence in Medieval England.

• Ryan Greenwood at the Riesenfeld Rare Books Blog: the University of Minnesota Law Library has an upcoming exhibit on the 1935 Commission on the Harlem Riot, Law and the Struggle for Racial Justice.

• “The Bangor Historical Society is presenting a virtual exhibit that will focus on the connection between fashion and women’s freedoms. ‘Interwoven: Women’s Fashion and Empowerment’ focuses on the history of women’s rights, including social, economic, legal and voting, while relating milestones and benchmarks with fashion trends by decade" (Bangor Daily News).  And the National Constitution Center also has a new exhibit on the 19th Amendment (Philly Voice).

• Lawbook Exchange has issued a catalogue of forty-one noteworthy titles on The Laws of War and Peace.

•  ICYMI: A review of Matthew Van Meter’s Deep Delta Justice (WaPo).  Mary Ziegler on What's Next for Abortion Law? (Boston Review).  UVA Law's first female students.

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

Special issue: Constitutional Legacies of Empire

 The Northern Ireland Legal Quarterly has a special issue out on "The Constitutional Legacies of Empire," edited by Paul F. Scott (University of Glasgow). Here is the Table of Contents for vol.71, no.2 (summer 2020):

• Paul F. Scott, "Introduction: 'The Constitutional Legacies of Empire'"
• Jane Rooney, "Crown act of state and detention in Afghanistan"
• Courtney Grafton, "Foreign act of state and empire"
• Martin Clark, "'Something like the principles of British liberalism': Ivor Jennings and the international and domestic, 1920-1960"
• Devyani Prabhat, "Unequal citizenship and subjecthood: a rose by any other name...?"
• Donal K. Coffey, "Constitutional law and empire in interwar Britain: universities, liberty, nationality and parliamentary supremacy"
• T. T. Arvind and Daithí Mac Síthigh,"Constitutionalism in the periphery: revisiting the roots of self-rule movements in Ireland and India"
• Lindsay Stirton and Martin Lodge, "Constitutional legacies of empire in politics and administration: Jamaica's incomplete settlement"
• Paul F. Scott, "The Privy Council and the constitutional legacies of empire"
• Roger Masterman, "The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?"

The articles by Donal Coffey and Martin Clark are available for download on an open-access basis.

Further information is available here.

--Mitra Sharafi

Pande on child marriage in colonial India

         Ishita Pande (Queen's University, Ontario) has published Sex, Law, and the Politics of Age: Child Marriage in India, 1891-1937 with Cambridge University Press. From the publisher: 

     Ishita Pande's innovative study provides a dual biography of India's path-breaking Child Marriage Restraint Act (1929) and of 'age' itself as a key category of identity for upholding the rule of law, and for governing intimate life in late colonial India. Through a reading of legislative assembly debates, legal cases, government reports, propaganda literature, Hindi novels and sexological tracts, Pande tells a wide-ranging story about the importance of debates over child protection to India's coming of age. By tracing the history of age in colonial India she illuminates the role of law in sculpting modern subjects, demonstrating how seemingly natural age-based exclusions and understandings of legal minority became the alibi for other political exclusions and the minoritization of entire communities in colonial India. In doing so, Pande highlights how childhood as a political category was fundamental not just to ideas of sexual norms and domestic life, but also to the conceptualisation of citizenship and India as a nation in this formative period. 

Praise for the book:  

"In this theoretically rigorous feminist history, Ishita Pande shows us how and why imperial 'age of consent' controversies should more aptly be read as regimes of reproductive temporality that shape minority and majority political claims in South Asian modernity in all its worldly ambition. Sex, Law and the Politics of Age opens up the terrain of 'juridical childhood' to a whole new set of questions and methods, rethinking girlhood as a prism of colonial and postcolonial ambition and a secularizing epistemic lever in the process." -Antoinette Burton

"A fascinating read, this book adeptly and sensitively renders the child as a moral-political category, and a socio-cultural construct, of modernity in colonial India. Through a close reading of the Child Marriage Restraint Act of 1929, Pande brilliantly intertwines debates on sexuality, childhood and age with the carving of a Hindu reformist nation." -Charu Gupta

"Here, finally, is a superbly researched and expansive South Asian/Indian history of the categories of age and consent, and their translations and tribulations within legal and social structures of surveillance and control. An indispensable book for scholars of law, gender and sexuality." -Anjali Arondekar

"Pande brilliantly deploys the generative power of gender analysis and queer theory to reinterpret one of the most widely-debated topics in colonial South Asian historiography: the question of ‘child marriage’. This rigorous and beautifully written book will be required reading for all historians and scholars of gender and sexuality in the twentieth century." -Todd Shepard 

You can join the author for an online book event, "Sex, Law, and the Politics of Age with Ishita Pande" on Monday, August 24, 2020 at 12.30-1.30pm CDT. Register here.

Further information about the book is available here.  

--Mitra Sharafi