The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825

Kevin Arlyck, Cambridge University Press (August 2025)

The Nation at Sea tells a new story about the federal judiciary, and about the early United States itself. Most accounts of the nation’s transformation from infant republic to world power ignore the courts. Their importance, if any, was limited to domestic politics. But the truth is that, in the critical decades following the Constitution’s ratification, federal judges decided thousands of maritime cases that profoundly shaped the United States’ relations with foreign nations. Judges ruled on the legality of naval captures made by European powers, regulated the conduct of American merchants, and tried pirates and slave traders who sought profit amid the turmoil of transatlantic war. Kevin Arlyck’s vivid reconstruction of this forgotten history reveals how, over time, the federal courts helped realize an increasingly bold conception of American sovereignty, one that vindicated the Declaration of Independence’s claim to the United States’ place “among the powers of the earth.” (Click to Purchase)

Court, Credit, and Capital: Amsterdam’s Insolvency Legislation in the Dutch Golden Age

Maurits den Hollander, Cambridge University Press (August 2025)

Seventeenth-century Amsterdam was a city of innovations. Explosive economic growth, the expansion of overseas trade, and a high level of religious tolerance sparked great institutional, socioeconomic and legal changes, a period generally known as ‘the Dutch Golden Age.’ In this book, Maurits den Hollander discusses how insolvency legislation contributed to the rise of a modern commercial order in seventeenth-century Amsterdam. He analyzes the procedure and principles behind Amsterdam’s specialized insolvency court (the Desolate Boedelskamer, 1643) from a theoretical perspective as well as through the eyes of citizens whose businesses failed. The Amsterdam authorities created a regulatory environment which solved insolvency more leniently, and thus economically more efficiently, than in previous times or places. Moving beyond the traditional view of insolvency as a moral failure and the debtor as a criminal, the Amsterdam court recognized that business failure was often beyond the insolvent’s personal control, and helped restore trust and credit among creditors and debtors. (Click to Purchase)

The God and the Bureaucrat: Roman Law, Imperial Sovereignty, and Other Stories

Zachary Herz (Cambridge University Press, July 2025)

Why is Roman law so boring? In this book, Zachary Herz argues that the bureaucratic, positivistic world of Roman law is not a distraction from the violent autocracy of the Roman empire, but an imagined escape. Lawyers, bureaucrats, and even emperors used legal writing to think about worlds that were safer or fairer than the one in which they lived. This archive of political imagination slowly became a law-code, and now guides readers through a legal system about which its authors could only dream. From Augustus to Justinian, this book shows how law symbolized order in chaotic times, and how that symbol eventually took on a life of its own. From the enlightened judgements of Hadrian to the great jurists and child rulers of Severan Rome, Herz reveals what Romans were really talking about when they talked about law. (Click to purchase)

From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World

James Q. Whitman, Cambridge University Press (November 2024-online, print forthcoming)

Today we think of land as the paradigmatic example of property, while in the past, the paradigmatic example was often a slave. In this seminal work, James Q. Whitman asserts that there is no natural form of ownership. Whitman dives deep into the long Western history of this transformation in the legal imagination – the transformation from the ownership of humans and other living creatures to the ownership of land. This change extended over many centuries, coming to fruition only on the threshold of the modern era. It brought with it profound changes, not only in the way we understand ownership but also in the way we understand the state. Its most dramatic consequence arrived in the nineteenth century, with the final disappearance of the lawful private ownership of humans, which had been taken for granted for thousands of years. (Click to Purchase)

Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922

Alastair McClure, Cambridge University Press (November 2024)

Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics. (Click to Purchase)

Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition

Marie-Amelie George, Cambridge University Press (May 2024)

In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change. (Click to Purchase)

Execution, State and Society in England, 1660–1900

Simon Devereaux, Cambridge University Press (October 2023)

This book provides the first comprehensive account of execution practices in England and their extraordinary transformation from 1660 to 1900. Agonizing execution rituals were once common. Male traitors were hanged, disembowelled while still alive, then decapitated and quartered. Female traitors were burned alive. And common criminals slowly choked to death beneath wooden crossbeams erected at the margins of towns. Some of their bodies were either left to rot on roadside gibbets or dissected by anatomy instructors. Two centuries later, only murderers and traitors were executed – both by hanging – and they died alone, usually quickly, and behind prison walls. In this major contribution to the history of crime and punishment in England, Simon Devereaux reveals how urban growth, and the unique public culture it produced, challenged and largely displaced those traditional elites who valued the old ‘Bloody Code’ as an instrument of their rule. (Click to Purchase)

Nothing More than Freedom: The Failure of Abolition in American Law

Giuliana Perrone, Cambridge University Press (May 2023)

Monitoring American Federalism: The History of State Legislative Resistance

Christian G. Fritz, Cambridge University Press (January 2023)

Monitoring American Federalism examines some of the nation’s most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution’s ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy. (Click to purchase)

The Science of Proof: Forensic Medicine in Modern France

E. Claire Cage, Cambridge University Press (August 2022)

The Science of Proof traces the rise of forensic medicine in late eighteenth- and nineteenth-century France and examines its implications for our understanding of expert authority. Tying real life cases to broader debates, the book analyzes how new forms of medical and scientific knowledge, many of which were pioneered in France, were contested, but ultimately accepted, and applied to legal problems and the administration of justice. The growing authority of medical experts in the French legal arena was nonetheless subject to sharp criticism and scepticism. The professional development of medicolegal expertise and its influence in criminal courts sparked debates about the extent to which it could reveal truth, furnish legal proof, and serve justice. Drawing on a wide base of archival and printed sources, Claire Cage reveals tensions between uncertainty about the reliability of forensic evidence and a new confidence in the power of scientific inquiry to establish guilt, innocence, and legal responsibility. (Click to Purchase)

Martha S. Jones on the Hard Histories at Hopkins Project

Professor Martha S. Jones, author of Birthright Citizens: A History of Race and Rights in Antebellum America, recently published a fascinating opinion piece in the Washington Post reflecting on her work researching the history of Johns Hopkins University and its ties to slavery. You can find the op-ed here and visit the Hard Histories at Hopkins website for more details on Professor Jones’s research and findings.

Devastation without Representation in Puerto Rico

In an opinion piece for the LA Times, published on the one year anniversary of Hurricane Maria, Professor Sam Erman writes of devastation without representation in Puerto Rico. You can read the piece here. Learn more about Erman’s work by viewing his video interviews and reading about his forthcoming book with the series, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press, October 2018).

Erman Discusses Puerto Rico on the Podcast BackStory

Sam Erman, Associate Professor of Law at the University of Southern California, appeared in a recent episode of the podcast BackStory, titled “After Hurricane Maria: The History of Puerto Rico and the United States.” The episode, which aired September 7, 2018, examines the relationship between the United States and Puerto Rico across history and includes Erman’s discussion of Puerto Rico’s constitutional status. You can read more about Erman’s book, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press, October 2018), on the SLH website.

Martha S. Jones Discusses Her Book in the Johns Hopkins Hub

Professor Martha S. Jones sat down recently with the Johns Hopkins Hub to discuss her book, Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, June 2018). Check out the interview here.

Jones on Protesting NFL Players

Martha S. Jones, professor of history at Johns Hopkins University and SLH author, recently penned an op-ed in the Washington Post titled “Trump said protesting NFL players ‘shouldn’t be in this country.’ We should take him seriously.” In the piece, Professor Jones responds to President Trump’s remarks regarding protesting NFL players and considers the  historical context for his actions.  Jones is the author of Birthright Citizens: A History of Race and Rights in Antebellum America (forthcoming from Cambridge University Press, Summer 2018). You can read the full op-ed here, on the Washington Post website.

Call for Applications: Johnson Program for First Book Authors

The American Society for Legal History (ASLH) announces a new program designed to provide advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants will develop and revise book proposals and sample chapters, and they will meet with guest editors to learn about approaching and working with publishers.

Applications for Johnson Fellows are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs and are working on first books in legal history. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are students who may not (yet) identify as legal historians.

The Johnson Program will begin in November, 2018 at the ASLH Annual Meeting in Houston and will include two in-person workshops and one remote consultation on work-in-progress:

• November 8, 2018: One-day workshop at the ASLH Annual Meeting (Houston, TX), introduction to book publishing and prospectus writing;
• Spring 2019 (date TBD): Remote meeting, peer and senior scholar feedback on draft prospectus; and
• Summer 2019 (July 26-27): Two-day workshop on draft chapters, University of Pennsylvania Law School.

The 2018-19 Johnson Program will be led by Professor Reuel Schiller, with the participation of other senior legal historians. Participants must commit to participation in all three meetings. The program will include up to 5 Fellows and will provide substantial funding for travel and accommodation.

Application Guidelines:

The application deadline is June 30, 2018. Applicants should submit (as a single document, Times New Roman, 12 point font):

• cover letter (single spaced, not exceeding two pages) describing the applicant’s professional trajectory to date and reasons for interest in the Johnson Program;
• curriculum vitae (including contact information);
• project abstract (single spaced; up to 100 words)
• project description (single spaced; not exceeding 750 words) organized with the following sections and headings: Introduction, Significance, Design and Methodology, Chapter Outline, Plans for Revision, and Progress to Date.
• two letters of recommendation from faculty members, at least one of whom should have been a major advisor of the project (sent separately from the other materials).

All materials should be submitted to Barbara Welke (welke004@umn.edu), Chair, University of Minnesota by June 30, 2018.

The 2018 Johnson Program for First Book Authors Committee:

Barbara Young Welke, Chair, University of Minnesota, welke004@umn.edu
Lauren Benton, Vanderbilt University, lauren.benton@vanderbilt.edu
Sam Erman, USC Gould School of Law, serman@law.usc.edu
Kurt Graham, NARA, kurt.graham@nara.gov

Reuel Schiller, UC Hastings College of Law, schiller@uchastings.edu
Rayman Solomon, University of Rutgers-Camden School of Law, raysol@camlaw.rutgers.edu
Matthew Sommer, Stanford University, msommer@stanford.edu

Notification:

Applicants will be notified by July 30, 2018. Please direct any questions to Barbara Welke.

Martha Jones on Birthright Citizens

In this video, Professor Martha Jones of the University of Michigan discusses her book Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, Summer 2018). The video, courtesy of Michigan Law, provides an overview of the forthcoming book and its implications for thinking about citizenship in America. An edited transcription follows.

I’m finishing a book called Birthright Citizens, which is a look at race and citizenship in a somewhat unexplored period. That is, the period before the U.S. Civil War; the period before the amendment of the Constitution, with the 14th Amendment providing birthright citizenship for the first time in the United States. My case study is three African Americans, former slaves, and their descendants. All with a mind toward understanding how, as a nation, we grapple with people who occupy this in-between status–neither slaves, nor fully free citizens. How, in law, do we regard those people? Most often that story is told through a somewhat notorious US Supreme Court case called Dread Scott vs. Sandford, in which the court, through Roger Taney, declaims that no black person can be a citizen of the United States. It turns out that, while Taney was quite sure about his ideas, he really was just one volley in what was an extended debate about race and citizenship before the Civil War.

So, for me, the story begins in the eighteen-twenties with three African American activists themselves, who–through local courthouses, high court arguments, legislatures, and political conventions–again and again make the argument that they are citizens of the United States. Again and again, they make the argument that by virtue of birthright, military service, and their contributions to the economic prosperity of the nation, they should be citizens.

It’s an important chapter in part because it tells a new version of the Fourteenth Amendment, which was not merely a creature of the U.S. Senate, but actually came out of the activism of free African Americans themselves. 

Binyamin Blum Reviews Likhovski for Jotwell

In January 2018, Binyamin Blum reviewed Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017) for Jotwell. The review can be found on the Jotwell website and is also reproduced below. You can learn more about the book by watching the series of short clips Professor Likhovski recorded for SLH concerning his project. 

On Fiscal History: A Cultural History of Tax Law
Binyamin Blum

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.”During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,¹ which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.

1. Or what Lawrence Zelenak has termed “fiscal citizenship.” See Lawrence Zelenak, Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (2013). [↩]

Binyamin Blum, On Fiscal Citizenship: A Cultural History of Tax Law, JOTWELL (January 11, 2018) (reviewing Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel (2017)), https://legalhist.jotwell.com/fiscal-citizenship-cultural-history-tax-law/.

Nicoletti on the Treason Prosecution of Jefferson Davis

Cynthia Nicoletti, Professor of Law and History at the University of Virginia, recently sat down to discuss her latest book, Secession on Trial: The Treason Prosecution of Jefferson Davis (Cambridge University Press, 2017). In the clip below, she describes the fraught decision whether or not to prosecute Davis for treason, and the broader constitutional implications of the eventual decision. A lightly edited transcript follows.

I am Cynthia Nicoletti. I am a Professor of Law and a Professor of History at the University of Virginia. My new book is Secession on Trial: the Treason Prosecution of Jefferson Davis. One of the things that I argue in this book is that Davis’ treason trial is going to implicate the biggest constitutional question of the Civil War, which is the constitutionality of secession. One of the reasons that he’s not tried—the primary reason that he is not tried—is that the government is quite worried about the prospect of Davis’ acquittal (or, at least, their failure to convict him). They’re worried that Davis’ acquittal might provide a backdoor vindication of the right of secession, which is precisely what they are not hoping for.

There are two things that everybody knows about the legal history of the Civil War: everybody knows that the Civil War settled the question of secession’s constitutionality in favor of the permanency of the union. And everybody knows that the Civil War ended slavery. So, what the book really does, is it argues against– or complicates–one of the basic things that we know about the legal history of the Civil War. What I’m trying to show in the book is how fraught this question of the war settling the constitutionality of secession in the Union’s favor really was.

It was very important to me in writing this book that I treated this question as an open question, basically because I think that there wasn’t a clear answer as to whether or not the Constitution allowed secession. I want to bring the reader back into this time period where there hadn’t been 150 years where everybody clearly understood that secession was unconstitutional. What I’ve heard in general is that if only we had prosecuted Robert E. Lee and other Confederates for treason in the aftermath of the war, we wouldn’t be dealing with the specter of confederate statues and celebratory commemoration of Confederates. One thing that I hope that this book does, is that it might push against the easiness of such a narrative, because one of the things that the book talks about is how difficult it was to get treason convictions against Confederates.

Note: this video comes courtesy of UVA Law Communications. Any media relations inquiries can be sent to comm@law.virginia.edu.

Karen Tani Honored With the Cromwell Book Prize

Studies in Legal History congratulates Professor Karen Tani on receiving the Cromwell Book Prize for her work, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016). The prize, awarded at the annual meeting of the American Society for Legal History, recognizes excellence in scholarship in the field of American Legal History by a junior scholar.

Reviews Roll In For McKinley’s Fractional Freedoms

Professor Michelle McKinley’s recent publication with Studies in Legal History, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016) continues to garner favorable reviews:

You can read Susan Hogue Negrete’s October 2017 review of Fractional Freedoms in H-LatAm here.

Lea VanderVelde’s November 2017 review of Fractional Freedoms in Law and History Review Volume 35, Issue 4 is available here.

H-Law published Lyman Johnson’s review of Fractional Freedoms in December 2017. You can read that review here.

Paul Garfinkel Honored with the Helen and Howard R. Marraro Prize

Series author Paul Garfinkel has been honored by the American Historical Association’s Helen and Howard R. Marraro Prize for 2017 for his Criminal Law in Liberal and Fascist Italy (Cambridge University Press, 2016). The award recognizes outstanding work in Italian history or Italian-American relations. Garfinkel’s book is the first comprehensive history of the development of penal policy between the period of Italian unification and the rise of fascism, offering an important revisionist account of the respective roles of liberal and Lombrosian ‘positivist’ jurists in the development of the new criminal codes.

The American Society of Legal History Annual Meeting 2017

The American Society of Legal History will hold its annual meeting in Las Vegas on October 26th, 27th, and 28th. SLH is particularly excited about the Friday afternoon “author meets reader” session on Michelle McKinley’s book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700. Fractional Freedoms, which was 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), explores how thousands of slaves in colonial Peru were able to secure their freedom and keep their families intact through the use of legal mechanisms. Through extensive archival research, Professor McKinley excavated the experiences of enslaved women whose historical footprint is barely visible in the official record. In doing so she complicates the way we think about life under slavery and demonstrates the degree to which slaves were able to exercise their own agency, despite being ensnared by the Atlantic slave trade.

Commenting on Professor McKinley’s book is a panel of experts on slavery, race, and Latin American Law: Victor Uribe of Florida International University, Kelly Kennington of Auburn University, and Carolina Gonzalez of the University of Chile. The session will take place Friday afternoon at 2:15 in Room 102 of UNLV’s Boyd School of Law.

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

Studies in Legal History (SLH) is pleased to share with our readers an exchange between Robert W. Gordon and William Nelson on critical legal studies. This exchange, of interest to legal historians, was not included in SLH’s publication of Gordon’s collected essays because of its nature as a dialogue between the two scholars, rather than a free-standing work by Gordon. However, we recognized the import of this interchange as it intersects with Gordon’s work and issues of great moment to the field, so we are making it available here (click the link below to read the exchange as a PDF). You can also read more about Gordon’s recent publication with the series, Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017) here.

Gordon-Nelson Exchange-1

Impeachment: The Constitutional Problems: Who Said That a 44 Year-Old Monograph Can’t Be Relevant?

R. B. Bernstein, City College of New York

In today’s atmosphere of constitutional sturm und drang, many are revisiting the 1972-1974 Watergate crisis, which forced President Richard M. Nixon to resign. The Studies in Legal History series played a supporting role in that crisis by publishing Raoul Berger’s Impeachment: The Constitutional Problems (1973). Impeachment made Berger a major figure in the impeachment debates. His stature as a leading constitutional scholar and a progenitor of originalist jurisprudence was evident then, and only grew over time.

Born in 1901 in the Ukraine, Berger came to the United States with his family in 1904. After a career as a violinist, he graduated from the University of Cincinnati and the Northwestern University School of Law, earning his LL.M. from the Harvard Law School. Following a legal career in government service and private practice, he taught at the University of California, Berkeley, Law School and became Harvard’s Charles Warren Senior Fellow in Legal History.

In the 1960s, Berger launched a second career as a constitutional historian. In his first book, Congress vs. the Supreme Court: An Exercise in Dialectic (1969), he analyzed the nature of congressional power over the Court’s jurisdiction. In his next book, Berger worked to develop law-review articles on impeachment that he had published in the 1960s into a book. Working closely with Stanley N. Katz, the first editor of Studies in Legal History, Berger crafted a formidable study focusing on impeachment in early modern England, which he identified as the key influence on the Constitution’s framers. The 1968-1970 controversies over Republican efforts (secretly backed by President Nixon) to impeach Justices William O. Douglas and Abe Fortas drove Berger’s interest. So, too, did the James Madison biographer Irving Brant, who responded to the Douglas and Fortas controversies by publishing Impeachment: Trials and Errors (1972).

Berger’s book dwarfed Brant’s in its scholarship, but they also differed on three substantive points. First, Berger maintained that impeachable offenses were not limited to indictable felonies but also included violations of the constitutional system’s central principles. Second, Berger claimed, an impeachment proceeding could be subject to judicial review. Third, he insisted, those concerned with judicial misconduct, incompetence, or corruption could forgo the unwieldy mechanism of impeachment and use instead the common-law writ of scire facias to remove federal judges – a remedy more legitimate than manipulation of courts’ dockets to keep cases away from judges deemed incompetent or unfit.

Berger’s argument for a broader understanding of impeachable offenses shaped the core of the controversy over impeaching Nixon. Rep. Peter J. Rodino (D-NJ), who chaired the House Judiciary Committee, reportedly was so fearful of fanning speculation about impeachment that he removed the jacket of Berger’s book while reading it, so that others would not see what he was reading.

Berger’s scholarship fueled the impeachment inquiry against Nixon in other ways. The House Judiciary Committee published an anthology, Impeachment: Selected Materials (1973), featuring Berger’s law-review article on impeachable offenses, the most influential argument of his Studies in Legal History volume. Also, Bantam issued mass-market paperback editions of Congress vs. the Supreme Court, Impeachment: The Constitutional Problems; and Executive Privilege: A Constitutional Myth (1974), a trilogy that Garry Wills praised as “one of the scholarly landmarks of our time.”

Berger’s subsequent work defined a new direction for constitutional scholarship. In a series of combative monographs, beginning with Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), and including studies of federalism and the death penalty, Berger used originalist methodology to challenge much of modern constitutional jurisprudence’s orthodoxy. Many former admirers challenged him on methodological and substantive issues; Berger fired back in what seemed to his critics to be endless law-review articles. He died in 2000.

Impeachment: The Constitutional Problems has lasted the longest of his books – but it has not gone unchallenged. In Impeachment in America, 1635-1805 (1984), historians Peter Charles Hoffer and N.E.H. Hull paralleled Berger’s conclusions about the meaning of impeachable offenses but disputed Berger’s emphasis on English sources; insisting that historians seeking to understand the development of impeachment in America had to consider American colonial, revolutionary, and early national sources.

Still, as it did during the 1998-1999 controversy over impeaching President Bill Clinton, Raoul Berger’s landmark study is again finding readers, as the nation considers whether the words and deeds of another president merit impeachment. Not bad for a 44-year-old monograph in a scholarly book series devoted to legal history.

Picture of Raoul Berger sourced from Liberty Fund (http://oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment).