Awards for 2009

New for 2009: The Society announces the first competition for the Cromwell Article Prize. See below for details.

Surrency Prize

The Surrency Prize, named in honor of Erwin C. Surrency, a founding member and first president of the Society and for many years the editor of its former publication, the American Journal of Legal History, is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year.

This 2009 Surrency Prize was awarded to Gautham Rao for his article “The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America,” which appeared in the Law and History Review 26:1. The citation read:

“Historians have long acknowledged slavery’s pivotal role in shaping the contours of early American society. Recent scholarship, however, is just beginning to reveal the true depth and breadth of that influence, detailing very specifically the myriad ways in which the institution influenced conceptions of republicanism, democracy, citizenship, race and union. Now comes Gautham Rao’s “The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America” to add another dimension to the story. Gautham’s article stood out to committee members for the breadth of its research, the creativity of its argument, and the fluidity of its presentation. Rao explores the ways in which federal coercion under the posse comitatus doctrine in the 18th and 19th centuries continually forced white Americans to ponder the relationship between citizens and their government in a new nation still testing the boundaries between federal and state power. Very critically, this exploration took place in a world marked by chattel slavery. The institution gave white citizens a handy point of reference to help define what it meant to be free and what it meant to be enslaved. This was no mere abstraction. The history of the “posse comitatus doctrine”, Rao argues, “suggests a foundational relationship between slavery and the federal government’s techniques of coercing free individuals.” Rao deftly recounts the ways in which white southerners used the doctrine to protect their property interest in human beings, using the deputizing power of the Fugitive Slave Act to force often unwilling northerners to return people who had escaped from slavery. They then fought effectively against its application when the tables turned and the victorious north sought to use federal power to establish equality under the law for the freed men and women of the south. Rao’s piece provides fertile grounds for discussion of its argument, but also suggests further avenues of inquiry about the ways in which the historical uses of the posse comitatus doctrine still influence us today.”

The selection of the winner of the Surrency Prize for 2010 is under the charge of the Society’s Committee on the Surrency Prize. The chair of the committee is Annette Gordon-Reed of the New York Law School <email>, with members: Lewis Grossman of American University <email>, Edward A. Purcell, Jr. of the New York Law School <email>, Jed Shugerman of Harvard University <email>, and Stephen Siegel of DePaul University <email>.

Sutherland Prize

The Sutherland Prize, named in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually, on the recommendation of the Sutherland Prize Committee, to the person or persons who wrote the best article on English legal history published in the previous year.

The Sutherland Prize for 2009 was awarded to Paul D. Halliday and G. Edward White for their joint article, “The Suspension Clause: English Text, Imperial Contexts, and American Implications,” which appeared in the Virginia Law Review 94:3. The citation read:

“The Suspension Clause article persuasively lays out and documents the ‘franchise’ argument – that the Great Writ (as habeas corpus has often been called) must be understood historically as having been a feature of the royal prerogative, allowing the king, or the king’s courts, to demand an explanation for the detention or imprisonment of the king’s subjects throughout the king’s dominions. The article makes it clear that ‘subjecthood’ encompassed all those who could lay claim to the king’s protection, whether alien or citizen. Professors Halliday and White emphasize the important fact that the famous habeas corpus statute of 1679’was never understood, in the period before the American framing, as superseding the common law habeas jurisprudence’. The seminal writing of Matthew Hale then supplies the foundation for the explanation by Professors Halliday and White of the far-reaching geographical scope of the writ. The format for the explanation is to ‘take a tour across the king’s dominions, beginning within the English realm then traveling well beyond it, with Hale as our guide’. This is followed by the revealing and important description of habeas corpus in colonial India. After circling the globe, Professors Halliday and White turn to the Suspension Clause, having provided clear perspective on how the British Americans would have understood habeas corpus, and how it ‘had been reframed’ so that it ‘was no longer associated with the prerogative’ but instead was ‘thought of as a power exercised by individual judges as well as courts’. The article is based upon exhaustive documentary research and is a splendid example of the enhanced historical understanding that can be gained through the patient archival work of the legal historian.”

The committee also specially commended John Witte, Jr., for his article “Prophets, Priests, and Kings: John Milton and the Reformation of Rights and Liberties in England” that appeared in volume 57 of the Emory Law Journal, and Michael Ashley Stein for his article “Victorian Tort Liability for Workplace Injuries” that appeared in the 2008 volume of the University of Illinois Law Review.

The selection of the winner of the Sutherland Prize for 2010 is under the charge of the Society’s Committee on the Sutherland Prize. The chair of the committee is James C. Oldham of Georgetown University <email>, with members: John Beattie of the University of Toronto <email> and Jonathan Rose of Arizona State University <email>.

J. Willard Hurst Summer Institute in Legal History

The Society’s J. Willard Hurst Memorial Committee is charged with task of appropriately remembering the late J. Willard Hurst, who was for many years the dean of historians of American law. On the Committee’s recommendation, the Society, in conjunction with the Institute for Legal Studies at the University of Wisconsin Law School has sponsored five biennial J. Willard Hurst Summer Institutes in Legal History. The purpose of the Hurst Summer Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The “Hurstian perspective” emphasizes the importance of understanding law in context; it is less concerned with the characteristics of law as developed by formal legal institutions than with the way in which positive law manifests itself as the “law in action.” The Hurst Summer Institute assists young scholars from law, history, and other disciplines in pursuing research in legal history.

The fifth biennial Hurst Institute took place at the University of Wisconsin Law School on June 15 – June 27, 2009.

ASLH Committee choose the Hurst Institute Fellows and faculty. This year the selection committee for the Fellows included Karl Shoemaker (chair), Jonathan Lurie, Beth Hillman, Andrew Cohen, and Mitra Sharafi. We received 58 applications and selected 12 fellows and 2 alternates from a highly-qualified group. (One selection committee member noted that we could have staffed multiple sessions with this group of applicants). All 12 accepted and attended the Institute. The Institute lasted two weeks and consisted of both reading/discussion sessions and resentations by the Fellows of their own work (usually dissertations). The 2009 program was chaired by Barbara Welke, Associate Professor of History and Professor of Law, University of Minnesota. Guest scholars included Risa Goluboff, Professor of Law and History, Cadell& Chapman Research Professor, University of Virginia School of Law; Christine Desan, Professor of Law, Harvard Law School; Matthew Sommer, Associate Professor of Chinese History, Stanford University; Lawrence M. Friedman, Marion Rice Kirkwood Professor of Law at Stanford Law School; and Robert W. Gordon, Chancellor Kent Professor of Law and Legal History at Yale Law School and Visiting Professor, Stanford University.

All reports are that this was an extraordinary two weeks. The Fellows’ evaluations revealed that Barbara again did a brilliant job in leading the discussions, exploring the readings, and providing constructive criticism to the Fellows on their own projects. Faculty reported that the Fellows were individually and collectively engaged and engaging. The Fellows’ evaluations were that the program was important to their intellectual development and their understanding of the field.

The next conference is scheduled for the Summer 2011. Information concerning applications will be available on this page in due course. The Society has recently concluded an agreement with the Wisconsin Law School that should ensure that there will be several more such conferences after the one in 2011.

Research Awards and Fellowships: Cromwell Fellowships

In 2010, the William Nelson Cromwell Foundation will make available of a number of fellowship awards intended to support research and writing in American legal history. The number of awards to be made, and their amounts, is at the discretion of the Foundation. In the past four years, the trustees of the Foundation have made three to five awards, in amounts up to $5,000. Preference is given to scholars at the early stages of their careers. The Society’s Committee for Research Fellowships and Awards reviews the applications and makes recommendations to the Foundation.

In 2009, Cromwell fellowships were awarded to:

Kevin Arlyck, who holds a law degree from New York University and is a Ph.D. candidate there as well, is completing a dissertation on the role of lawyers and federal courts in American foreign policy during the first decades after independence.

Mark Hanna who holds a Ph.D. from Harvard University and is an assistant professor at The College of William & Mary, is working on the law of piracy in colonial America.

Kelly Kennington who holds a Ph.D. from Duke University and is a post-doctoral fellow at the University of Wisconsin Law School, is working on a study of slavery and freedom in antebellum America by examining lawsuits for freedom filed in the border city of St. Louis, the site of the Dred Scott case.

Felicity Turner, who is a Ph.D. candidate at Duke University, is in the midst of a dissertation on infanticide in the nineteenth century United States as a way to probe the changing legal status of women and their relationship to the state.

Kyle Volk, who holds a Ph.D. from the University of Chicago and is an assistant professor at the University of Montana (Missoula), is working on majority rule and minority rights in the decades before the American Civil War.

The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs.

Application Process for 2010

Michael Grossberg of Indiana University <email> is the chair of the Society’s Committee for Research Fellowships and Awards, with members: Constance Backhouse of the University of Ottawa <email>, Robert W. Gordon of Yale University <email>, Linda Kerber of the University of Iowa <email>, Amy Dru Stanley of the University of Chicago <email>, and Christopher L. Tomlins of the American Bar Foundation <email>. There is no application form. Applicants should submit a three to five page description of a proposed project, a budget, a timeline, and two letters of recommendation from academic referees.

Applications must be received no later than July 15, 2010. Successful applicants will be notified after the annual meeting of the Foundation, which normally takes place in the second week of November. An announcement of the awards will also be made at the annual meeting of the American Society of Legal History in Philadelphia, PA, November 18-21, 2010.

To apply please send all materials to:

Professor Michael Grossberg <email>
History Department
Indiana University
Bloomington, IN 47405-7103


Cromwell Prizes

Cromwell Book Prize

The William Nelson Cromwell Foundation awards annually a $5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar. The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference. The prize has been awarded in the past to “first books.” This year it is limited to such books. Books that are not first books are eligible for the Reid Prize described below. Doctoral dissertations and articles have their own separate competition.

The Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Committee will consider books published in the previous calendar year. The Society will announce the award after the annual meeting of the Cromwell Foundation, which normally takes place early in November.

In 2009 the Cromwell Book Prize was awarded to Rebecca M. McLennan, for The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941, published by the Cambridge University Press in 2008. Professor McLenann’s book also won the Reid Prize. The committee’s citation read as follows:

“McLennan sheds new light on the history of prisons and punishments from the early republic through the Progressive era by focusing on convict labor. She brings into sharp focus the complex and changing relationship between punishment, work, politics, and economics. The tensions between the conflicting goals of discipline, penitence, and profit provoked clashes between prison administrators, penal reformers, and inmates. McLennan successfully strikes a balance many historians seek but few achieve between granting agency to those who lack access to conventional forms of power and identifying the very real limits of that agency. Even after Progressive era reforms abolished prisoners’ involuntary servitude and replaced it with an incentivized system of behavioral rewards and punishments, the penal system still sought to profit from the unfree while preparing them for freedom. McLennan’s ‘crisis of imprisonment’ persists.”

For a brief description of the Foundation, see above Cromwell Fellowships.

Cromwell Dissertation/Article Prize

The William Nelson Cromwell Foundation has generously funded a prize of $2500 for dissertations accepted in the previous calendar year or for articles of comparable aspiration published in the previous calendar year in the general field of American legal history (broadly conceived), with some preference for those in the area of early America or the colonial period. The Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Society announces the award after the annual meeting of the Cromwell Foundation, which normally takes place early in November.

The Cromwell Dissertation Prize for 2009 was awarded to Jed Shugerman for his dissertation “The People’s Courts: The Rise of Judicial Elections and Judicial Power in America”—a dissertation submitted for a Ph.D. at Yale University in 2008. The Committee’s citation read as follows:

“Shugerman’s dissertation breathes new life into a neglected topic: judicial elections. Extraordinarily well researched, the dissertation explores why this uniquely American institution both shaped and reflected myriad changes in 19th century political, economic, and legal life. Shugerman’s historical periodization supports the new and persuasive claim that electing state judges emerged as a check on executives and legislatures abusing discretion, especially during the era of Jacksonian Democracy. Judicial elections thus strengthened judicial review and engendered a sharp increase in the number of statutes invalidated on constitutional grounds. Shugerman ascribes the dynamics of change more to pro- and antislavery politics and contests over strict liability than to the self-centered role of elite lawyers. Ultimately, his impressive work invites new research on the relationship among modes of judicial selection, constitutional checks and balances, and substantive legal rules.”

For a brief description of the Foundation, see above Cromwell Fellowships

Cromwell Article Prize for 2010

For the last three years the Cromwell Dissertation prize has also been open to articles of “comparable scope” as a dissertation. With the decline, however, of the “monster” article that used to grace the pages of law reviews, there are relatively few articles that meet that criterion. The Cromwell Advisory Committee has read a number of articles that have been submitted for the Dissertation/Article prize, some of very high quality indeed, but they did not stand much of a chance of winning when compared to the doctoral dissertations that were also submitted. The Committee brought this to the attention of the Cromwell Foundation, and the Foundation generously agreed to fund a separate prize of $2,500 for articles in the year 2010. The article should have been published in the year 2009, once more in the general field of American legal history (broadly conceived), with some preferance for those in the area of early America or the colonial period. A substantial preference will be given to first articles, written by scholars who are not yet tenured. An Article published in the Law and History Review is eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

Cromwell Dissertation Prize for 2010

As in the past the William Nelson Cromwell Foundation will award a prize of $2500 for dissertations accepted in the previous calendar year in the general field of American legal history (broadly conceived), with some preference for those in the area of early America or the colonial period. This year’s prize is limited to dissertations. There is a separate prize for articles described above.

Nomination Process for 2010

The chair of this year’s Cromwell Prize Advisory Committee is Gerard N. Magliocca of Indiana University School of Law– Indianapolis <email>.

Three prizes will be awarded – one for a book, one for an article, and one for a dissertation. The Committee will accept nominations from authors, dissertation advisors, publishers, or anyone else. Nominations for this year’s prizes should include a resume of the author and be accompanied by a hard copy version of the work (no electronic submissions, please) sent to each member of the relevant subcommittee and postmarked no later than May 31, 2010:

Professor Gerard N. Magliocca (Book Subcommittee)
Indiana University School of Law – Indianapolis
530 W. New York St.
Indianapolis, IN 46202

Professor Christian McMillen (Book Subcommittee)
Department of History
Randall Hall
PO Box 400180
University of Virginia
Charlottesville, VA 22904

Victoria Saker Woeste (Book Subcommittee)
American Bar Foundation
750 North Lake Shore Dr.
Chicago, IL 60611

Professor Tony Freyer (Article Subcommittee)
University of Alabama School of Law
101 Paul Bryant Drive, East
Box 870382
Tuscaloosa, AL 35487-0382

Professor Carlton Larson (Article Subcommittee)
UC Davis Law School
400 Mrak Hall Drive
Davis, CA 95616

Professor Renee Lettow Lerner (Article Subcommittee)
George Washington University Law School
2000 H. St. N.W.
Washington, DC 20052

Professor Risa Goluboff (Dissertation Subcommittee)
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903

Professor Robert W. Gordon (Dissertation Subcommittee)
Yale Law School
127 Wall St.
New Haven, CT 06520>

Professor Claire Priest (Dissertation Subcommittee)
Yale Law School
127 Wall St.
New Haven, CT 06520

Kathryn T. Preyer Scholars

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. (Whether there is a Kathryn T. Preyer Memorial Panel at the meeting, as there was this year, or whether the Preyer Scholars present their papers as part of other panel depends on the subject-matter of the winning papers and on what is on the rest of the program.) The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.

In 2009, the Preyer Memorial Committee chose two Preyer Scholars:

Cary Franklin (J.D. Yale University; now Irving S. Ribicoff Scholar at Yale Law School) for her paper “Sex Roles and the Foundations of Constitutional Sex Discrimination Law” and

Elizabeth Katz (J.D., University of Virginia; now clerk, United States District Court, District of Maryland) for her paper “’Wife Beating’ and ‘Uninvited Kisses’ in the Supreme Court and Society in the Early Twentieth Century.”
The Preyer Scholars presented their papers at a special panel, chaired by David Konig with Susan Appleton, (Washington University) and Sandra VanBurkleo (Wayne State University) serving as commentators.

Application Process for 2010

Aviam Soifer of the University of Hawaii <email> chairs the Preyer Committee for 2010, with members: Lyndsay Campbell of the University of Calgary <email>, Christine Desan of Harvard University <email>, Laura Kalman of the University of California, Santa Barbara <email>, and Gautham Rao of Rutgers University (Newark) and the New Jersey Institute of Technology <email>.

Submissions are welcome on any legal, institutional and/or constitutional aspect of American history and the history of the Atlantic World. Graduate students, law students, and other early-career scholars who have presented no more than two papers at a national conference are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible.

Submissions should include a curriculum vitae of the author, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation, but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2010. The Preyer Scholars will be named by August 1.

Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Philadelphia on November 18-21, 2010.

Please send electronic submissions to the chair of the Preyer Committee, Aviam Soifer <email>. He will forward them to the other committee members.

John Phillip Reid Book Award

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph that is not the author’s first book, published in English in any of the fields defined broadly as Anglo-American legal history. The award is given on the recommendation of the Society’s John Philip Reid Prize Committee.

In 2009 the Reid Prize was awarded to Rebecca M. McLennan, for The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941, published by the Cambridge University Press in 2008. As noted above, this book also won the Cromwell Book Prize. The committee’s citation read:

“Rebecca McLennan’s revelatory first book, The Crisis of Imprisonment, refocuses the history of American penal theory and practice as a history of penal labor—America’s other mode of involuntary servitude. Drawing on a broad range of sources, Professor McLennan describes the emergence of productive labor as the centerpiece of penal theory and practice in the American 19th-century. Prison labor would both rehabilitate convicts and defray costs. McLennan explains that almost all states came to operate their prisons for the benefit of capitalists in search of a cheap, stable labor force–even to the point of employing systematic torture to discipline the imprisoned workers. While resisting facile comparisons with chattel slavery, McLennan brings her readers inside a world nearly as disturbing, revealing the horrifying practices sometimes generated by ostensibly innocuous ideologies of punishment and labor. But brutal coercion of labor in the name of profit never went without resistance from prisoners on the inside and organized labor on the outside. Businesses that lacked access to prison labor soon joined the opposition, and states began to divorce their prisons from private capitalists at the close of the 19th century. A new, Progressive approach to penology then brought genuine improvements in the lot of the American prisoner, while preserving—at least in theory—the centrality of prisoner labor. But frequent turns of the political wheel undermined any consistent penology, and the states failed to generate enough demand to maintain full prison employment. The Progressive dream of genuinely productive labor, prisoner democracy, and rehabilitation degenerated into a penology of mere ‘sublimation and incentive’—sublimation of prisoner energies in entertainment and exercise, combined with offers of shortened sentences in return for obedience. This ‘managerial penology’, the residue of Progressive reforms, leaves us, in McLennan’s compelling account, in a permanent ‘crisis of imprisonment’. ”

Nomination Process for 2010

In 2010, the Reid Prize and the Cromwell Book Prize will be mutually exclusive. The Reid Prize is for books that are not the author’s “first book,” and the Cromwell Book Prize is for books that are. For the 2010 prize, the Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2009. Nominations for the prize should include a curriculum vitae of the author and should be submitted by May 28, 2010 to:

Professor Gerald Leonard
Chair, ASLH Committee on the John Phillip Reid Book Award
Boston University School of Law
765 Commonwealth Ave.
Boston, MA 02215

Copies of each nominated book should be mailed to the chair (above) and to each member of the committee:

Professor Michael Les Benedict
Ohio State University
106 Dulles
230 West 17th Avenue
Columbus, OH 43210

Professor Susanna Blumenthal
University of Minnesota Law School
229 19th Ave. S.
Minneapolis, MN 55455

Professor Philip Girard
Schulich School of Law
Dalhousie University
Halifax, Nova Scotia

Professor Reva Siegel
Yale Law School
P.O. Box 208215
New Haven, CT 06520