All posts by Kelsey Salvesen

Secession on Trial: The Treason Prosecution of Jefferson Davis

Cynthia Nicoletti. Forthcoming from Cambridge University Press in August 2017. Pre-order now from Cambridge University Press or Amazon.

This book focuses on the post-Civil War treason prosecution of Confederate President Jefferson Davis, which was seen as a test case on the major question that animated the Civil War: the constitutionality of secession. The case never went to trial because it threatened to undercut the meaning and significance of Union victory. Cynthia Nicoletti describes the interactions of the lawyers who worked on both sides of the Davis case – who saw its potential to disrupt the verdict of the battlefield against secession. In the aftermath of the Civil War, Americans engaged in a wide-ranging debate over the legitimacy and effectiveness of war as a method of legal adjudication. Instead of risking the ‘wrong’ outcome in the highly volatile Davis case, the Supreme Court took the opportunity to pronounce secession unconstitutional in Texas v. White (1869).
Endorsements:

 

Advance praise: ‘The genius of Nicoletti’s work is that the Davis case provides a window into the persistent belief in American minds (even in the North) that secession was possible. That belief made the trial and execution of Davis that much more problematic than scholars have seen. Nicoletti backs up these claims with unsurpassed knowledge of legal proceedings and impressive research.’ William Blair, Director of Richard Civil War Era Center and Walter L. and Helen P. Ferree Professor, Penn State University, and author of With Malice Toward Some: Treason and Loyalty in the Civil War Era

Advance praise: ‘Cynthia Nicoletti tackles a hugely important topic: the post-Civil War resolution of the legal status of the Confederacy. The prosecution of Jefferson Davis squarely posed the question whether the Confederacy had become a separate country by seceding. If it had, southerners insisted there could be no treason. If it had not, many of the war powers asserted by the North would be called into question. Nicoletti brilliantly tracks the efforts of jurists and politicians to work through momentous questions about the American constitutional order.’ John Fabian Witt, Yale Law School, Connecticut, and author of Lincoln’s Code: The Laws of War in American History

Advance praise: ‘Nicoletti’s beautifully written book studies a crucially important trial that never happened. She situates Davis’s treason case in the wider context of public discussions about how to treat officials of the former Confederacy and what to do about secession. Law, as Nicoletti argues, was not separate from other aspects of life in this period; it was deeply implicated within them and, thus, inseparable from them.’ Laura Edwards, Peabody Family Professor of History, Duke University, North Carolina and author of A Legal History of the Civil War and Reconstruction: A Nation of Rights

Tax Law and Social Norms in Mandatory Palestine and Israel

Assaf Likhovski. Forthcoming from Cambridge University Press in summer 2017.

This book describes how a social-norms model of taxation rose and fell in British-ruled Palestine and the State of Israel in the mid-twentieth century. Such a model, in which non-legal means were used to foster compliance, appeared in the tax system created by the Jewish community in 1940s Palestine and was later adopted by the new Israeli state in the 1950s. It gradually disappeared in subsequent decades as law and its agents, lawyers and accountants, came to play a larger role in the process of taxation. By describing the historical interplay between formal and informal tools for creating compliance, Tax Law and Social Norms in Mandatory Palestine and Israel sheds new light on our understanding of the relationship between law and other methods of social control, and reveals the complex links between taxation and citizenship.
 Endorsements:

“Likhovski has written a fascinating account of the development of taxation in a region that has long struggled with shifting rulers and divided populations. This book is more than just the definitive history of taxation in Israel. It is a case study on the cultural and sociological underpinnings of tax law itself.”–Steve Bank, University of California, Los Angeles

 “This brilliant book tells the story of how tax law in Mandatory Palestine was transformed from an intimate institution relying on the voluntary cooperation of taxpayers to a formal system enforced by lawyers. It is a must-read for anyone interested in the nature of law and in how to make a legal system that necessarily depends on voluntary cooperation achieve its goals.”

— Reuven Avi-Yonah, Irwin I. Cohn Professor of Law, University of Michigan

“Once more, Assaf Likhovski has demonstrated his keen understanding of law and its social function in Ottoman and mandatory Palestine as well as the state of Israel. This volume solidifies Assaf Likhovski’s position as one of the most formidable and important scholars of the legal history of Israel.”

— Michael Stanislawski, Columbia University, New York

“Assaf Likhovksi has written an absolutely fascinating book. His exploration of the rise and fall of what he aptly calls the ‘intimate fiscal state’ uses taxation to provide a prism on the history of late Ottoman and British-ruled Palestine, as well Israel. Everyone interested in the relationship between law and society, the history of taxation, the subject of tax avoidance, and the history of Israel will want to read this brilliant work.”

–Laura Kalman, University of California, Santa Barbara

Sovereignty, International Law, and the French Revolution

Edward James Kolla. Forthcoming from Cambridge University Press in August 2017.

The advent of the principle of popular sovereignty during the French Revolution inspired an unintended but momentous change in international law. Edward James Kolla explains that between 1789 and 1799, the idea that peoples ought to determine their fates in international affairs, just as they were taking power domestically in France, inspired a series of new and interconnected claims to territory. Drawing on case studies from Avignon, Belgium, the Rhineland, the Netherlands, Switzerland, and Italy, Kolla traces how French revolutionary diplomats and leaders gradually applied principles derived from new domestic political philosophy and law to the international stage. Instead of obtaining land via dynastic inheritance or conquest in war, the will of the people would now determine the title and status of territory. However, the principle of popular sovereignty also opened up new justifications for aggressive conquest, and this history foreshadowed some of the most controversial questions in international relations today.

Taming the Past: Essays on Law in History and History in Law

Robert W. Gordon (Cambridge University Press, June 2017). Available to order now via Cambridge University Press or Amazon. Listen here as Professor Gordon discusses his book.

Lawyers and judges often make arguments based on history – on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces – such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.

Endorsements:

“Robert W. Gordon has been one of the preeminent commentators on the rapid rise of American Legal History as a discipline. Each of these essays, written over the past forty years, constitutes an important example of his unequalled influence over the dramatic development of the field.”

–Morton Horwitz, Charles Warren Professor of American Legal History, Emeritus

“The sparkling essays of one of the preeminent legal historians of our era are now collected in one place, where they can talk with each other. Here we see the vintage apercus that make us laugh aloud at Gordon’s wit and nod our head at his wisdom. So, for example, we see Gordon discussing ‘Willard Hurst’s benign, if also rather insistent, influence;’ talking about how ‘dead paradigms … never really get killed off [in law], but hang around and Dracula-like, rise from their coffins to stalk the earth;’ observing that E. P. Thompson ‘almost never (save when exposing an opponent as an ignorant twit) showed off how hard he had been working;’ and pointing out that ‘history does not make a good domestic pet.’ This book is a real treat!”

–Laura Kalman

“Once an arcane backwater, mostly located in the backrooms of law schools, disconnected from the main themes of academic legal study, legal history has become a site of core controversies, ones that everyone involved with the study of law had to engage with. Legal history is where scholars from emerging fields of ‘non-legal’ history – including historical studies of gender, of race, and of market capitalism – found the scholarly perspectives that made possible exciting new work about law. The writings of Robert W. Gordon helped guide how it all happened. American scholarship owes him a debt of gratitude. And it is good that a new generation will be introduced to his analytic clarity, to his wisdom, and to his attractive voice, through this accessible edition.”

–Hendrik Hartog, Princeton University

“For four decades, Robert W. Gordon has provoked, inspired, and nourished the writing of critical legal histories. I can still recall the exhilaration of reading him as a student. This indispensable volume collects classics and little-known essays that will engage first-time and returning readers with unsettling questions about the ways we understand law’s history and authority.”

–Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

McKinley Honored with Judy Ewell Award

It is with great pleasure that we announce that Professor Michelle McKinley has been awarded the 2017 Judy Ewell Award for the Best Publication in Women’s History, presented by the Rocky Mountain Council for Latin American Studies (RMCLAS). She received this honor for her recent publication with the Studies in Legal History series, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016). The award will be presented at the RMCLAS banquet in Salt Lake City, Utah, in April. In the meantime, we congratulate Professor McKinley for the well-deserved recognition for Fractional Freedoms. Listen to Professor McKinley discuss her work in this recent interview or read more about Fractional Freedoms here.

Criminal Law in Liberal and Fascist Italy

Paul Garfinkel

December 2016. Cambridge University Press. Available to purchase via Cambridge University Press and Amazon.

By extending the chronological parameters of existing scholarship, and by focusing on legal experts’ overriding and enduring concern with ‘“-dangerous-”’ forms of common crime, this book offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–1943). Paul Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom’s penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal research that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.

Endorsements:

Professor Garfinkel’s book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries.

-Anthony Cardoza, Loyola University Chicago

Paul Garfinkel’s vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography.

–Maura Hametz, Old Dominion University

Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel’s ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini’s fascist regime.

-Dr. Jonathan Dunnage, Swansea University

This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy’s 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider de- bates on the relationship between liberalism and fascism, Paul Garfinkel’s conclusions will attract the attention of scholars in many different fields.

-John Davis, University of Connecticut

SLH Welcomes Reuel Schiller to the Editorial Team

Studies in Legal History Editors Holly Brewer, Michael Lobban, and Sarah Barringer Gordon welcome Reuel Schiller to the ALH editorial team.

“I am deeply honored to become a co-editor of the Society’s Studies in Legal History series,” Schiller said. “The series’ list is a tremendous one, and its role in nurturing young legal historians is exceptionally important. Our field is growing, both in numbers and in the range of legal subjects that scholars are viewing through a historical prism. I appreciate the opportunity to advance the work of the series in this exciting time for our discipline.”

Reuel Schiller is The Honorable Roger J. Traynor Chair and Professor of Law at the University of California, Hastings College of the Law, where he teaches American legal history, administrative law, and labor and employment law. He is the recent recipient of the 2016 John Phillip Reid Book Award from the American Society for Legal History and has written extensively about the legal history of the American administrative state, and the historical development of labor law and employment discrimination law. He is the author of Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (Cambridge University Press, 2015), as well as numerous articles on the history of American labor law and administrative law in the twentieth century. In 2008, he was awarded the American Bar Association, Section on Administrative Law and Regulatory Practice Award for Scholarship in Administrative Law. Forging Rivals was awarded the 2016 John Phillip Reid Book Award from the American Society for Legal History  and received an honorable mention for the 2016 J. Willard Hurst Prize from the Law and Society Association.  His current research focuses on the development of administrative law and the regulatory state after the collapse of the New Deal order.

Reuel is particularly (though not exclusively) interested in working with authors writing about subjects in nineteenth and twentieth-century American legal history related to state-building, the employment relationship, constitutional law, public law, and the interaction of race and class in the legal system. Though his own work sits at the juncture of legal, political, and intellectual history, he is delighted to work with authors across a wide range of methodologies and subjects.

Michelle McKinley On Fractional Freedoms

Professor Michelle McKinley, the Bernard B. Kliks Associate Professor of Law at the University of Oregon School of Law, discusses her forthcoming book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, September 2016). The book explores slavery and what Professor McKinley terms “fractional freedoms” in the context of colonial Peru.

Read more

Robert W. Gordon on Taming the Past

Professor Robert W. Gordon of Stanford Law School discusses his forthcoming book: a collection of essays entitled Law in History, History in Law: Taming the Past. The essays examine the ways in which lawyers make use of history and attempt to “tame” it to their own purposes. In the video clips below, Professor Gordon discusses Taming the Past and his inspiration for writing it.

Professor Gordon on his forthcoming book and why he titled it Taming the Past:

This book is a collection of essays and lectures that I’ve written over a period of about forty years; the first essay in the collection was written in 1975, and the last one was written last year, in 2015. And they’re all around the same theme and variations on the theme, which is how lawyers use history. And lawyers use history in a variety of ways. The most common use, obviously, is as authority. When we cite precedent, we’re saying that because we did something one way in the past, we should continue to do it today. Sometimes they use historical periods as a source of inspiration, like our founding, the golden age of American politics. And sometimes history is used as a series of examples of what we should be moving away from. At the founding of the Republic, these were autocratic monarchy, ecclesiastical tyranny, and feudalism. In our day these are things like slavery, the remnants of Jim Crow, and past invidious discrimination and so forth.

So history, as used by lawyers, has a lot of different modes. Lawyers are, among other things, historians; they write stories about the past. And this book is partly a kind of analysis of the way lawyers use history and the past and it’s also partly a history of the histories that lawyers write about the past. And my focus is basically on lawyers’ uses of history from the seventeenth century onward. And then it’s a critical analysis of the various uses that lawyers make of history. Lawyers obviously are using history for present purposes; it’s very motivated history, which generally means that it’s rather distorted and one-sided history. It’s history put together by advocates for a particular legal position. So one of the things that I’m trying to get at in this book is the various ways in which lawyers obscure or soften or modify aspects of the past that they think are dangerous to present projects. The title of this book is Law in History, History in Law: Taming the Past. And the “taming” part of the title refers to the ways in which lawyers try to make the past manageable–try to obscure, or soften, or modify the frightening, unruly, disruptive, subversive aspects of the past.

Professor Gordon on what inspired him to write Taming the Past:

We’re living in a period in which lawyers are very intensively once again resorting to history. And a lot of the ways that history is used nowadays is by relatively conservative lawyers who are trying to use the past to reproach the present. That is, to say that there was an earlier, freer, happier, more communitarian, more solidary, more religious time before our present disorders. And they date the disorders to the New Deal and the welfare state and the sexual revolution—all of the sort of discomforting aspects of modernity. So there’s a strong urge in conservative legal history to return to what they think is a sturdier and sweeter and more golden period. So I think we’re living at a kind of high point of sort of nostalgic history. Liberals, on the other hand, are much more inclined to represent the past as full of things that we should be moving away from—things that we should be leaving behind with the march of progress. And the book that I’m writing really is trying to see the best in both of these approaches. Both to understand the past as full of episodes and tendencies and views and conditions that we would not want to return to, but also as a source of inspiration for the present.

Sophia Lee and Michelle McKinley on Archival Finds

What makes an archival visit go from good to great? Professors Michelle McKinley of Oregon University School of Law and Sophia Lee of the University of Pennsylvania Law School discuss “happenstance discoveries” made in the archives and the significance of these finds to their own projects. Read more about the works shaped by this archival labor in Professor Lee’s recent book, The Workplace Constitution from the New Deal to the New Right (2014) and Professor McKinley’s forthcoming Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (2016).

Edited transcripts of the videos follow:

Professor Sophia Lee on her experiences in the archives:

So I’ve worked in a range of different archives, I work all over the country, but some of the best stuff I’ve found was really happenstance. There were a few happenstance discoveries that I made in the archives that I feel like I really couldn’t have written the book without and they were flukes that I found them, to some extent. One of them came from being at the National Archives and just asking for more, and more, and more records and all of them had to be cleared by somebody in the back. This guy wasn’t even really an archivist but eventually he came out and he said,

“okay, you seem to be really interested in all these things. We don’t really have any of these things, but I do have this random, single microfilm roll from some moment when JFK said all agencies should microfilm all their records for some kind of record preservation. And it was kind of a partial undertaking—some agencies did it, some didn’t, none did it completely, but the Department of Justice has this one microfilm reel—and you’re welcome to look at it.”

And I found things in there that were kind of the lynchpin of the book, and I never would have been able to write it otherwise. I think you really have to, when you’re going out to the archives, befriend archivists, talk to people, and chat them up about your project. And be persistent, because sometimes the things you are going to most value are not going to be things you’re ever going to see listed in a finding aid.

I am already working on my next project and it doesn’t necessarily tie directly in, but in many ways the second book is inspired by something I found in the archives when I was working on the first book that just rung a little bell for me and set off a series of questions that have kind of tickled at my brain ever since. And so I just sort of set it aside; oh maybe that will be…at first I thought maybe just an article or something that would follow on and once I started digging deeper it has grown in to what I think will be a whole book project. So the intellectual roots [of the second book project] are certainly in the first one even if the subject matter is not entirely the same.

Professor Michelle McKinley on her experiences in the archives:

Right at the time that I’m finishing writing—I’m on sabbatical, and I’m finishing my book, I have all my evidence gathered from the past ten years and I’m sitting down to write—the archivist says to me “you know, there’s a box. And we’ve never catalogued it; we’ve just never have had the time. Maybe it’s of interest to you?” So, I said (I’m always interested), so I’m like, “sure, I’ll look at it!” And then they bring me this box and it’s literally, you know, I want to say, sheaves of paper that are tied up with string. So what happens is that when you open the string…so, imagine opening a Christmas present that is sort of just, you know, not in a box the way that we have them now, but you open it and you just see hundreds of pieces of loose paper. And I look at it and I’m looking and it’s handwritten and it is…they’re called censuras.

It’s a huge find for me, and it comes at exactly the wrong time. Because I am finishing my book, and here I have this find that nobody has ever looked at. And it’s not that people are negligent in the archive, they just have so much material. And I have a feeling that this was a box that was just sitting there, waiting, because it was going to be so tedious to go through each piece of paper, figure out how to catalogue it, and where it went to. So here I am and I’m looking at…so, censuras are what I call spiritual subpoenas in which a litigant gets the priest at high mass to urge people to come forward with any information that he or she might have about a proceeding. And it can only take place, it can only be issued by the priest.

Then I started to get really really interested in it and so I go back and I look at all of these ecclesiastical manuals, and it tells the priest that they’re to cover the Bible in black cloth and have a candle burning and this is the prayer: it says “if you don’t come forth, you will be condemned to Hell, your wives will be widows, your children will be orphans, they’ll go begging from door to door and nobody will receive them. Sodom and Gomorrah, the fate of Sodom and Gomorrah, and everything will happen to you.” So it’s actually pretty scary. It’s this way that they’re using the pulpit and the power of God to say “you need to come forth with any information that you have.” It turned out to be a very effective way of getting people to talk about what they knew or what they might have witnessed. So what I ended up doing, because I can’t dig into the whole box (there’s like 9,000 pieces of paper), what I ended up doing was looking at—because I was writing a chapter on baptism—children whose mothers, or children who then grew up later, using this process to get people who knew that they were freed as children to come into the court. So I focused on that and you know I really want to go back and just spend more time with it.