Weekend Roundup

• Martha S. Jones published an op-ed in WaPo and was prominently quoted in an NYT story this week about the discovery that Johns Hopkins owned enslaved persons. They are the fruit of the project she directs, Hard Histories at Hopkins.
  

• The African American History Collection of the William L. Clements Library at the University of Michigan relating to slavery, abolition movements, and various aspects of African American life, largely dating between 1781 and 1865, is now online. 
  

• 

  William O. Douglas (LC)
  

  We are grateful to John Q. Barrett for bringing to our attention this quite arresting interview of William O. Douglas from 1966, which we understand he found here.
  

• The Evolution of Judicial Retirement, by Jake Kobrick, another in a series of posts by the Federal Judicial Center, went up this week.
  

• The Harvard Law School Library’s Nuremberg Trials Project supplies documents for “The World’s Biggest Murder Trial: Nuremberg" (Harvard Law Today).

• LHB October guest blogger Stefan B. Kirmse will have a virtual book event on The Lawful Empire: Legal Change and Cultural Diversity in Late Tsarist Russia on Monday, Dec.15 at 6-7.30pm Central European Standard Time. You can register here. 

• The latest from Lawbook Exchange: Scholarly Law and Legal History.
  

• LHB congratulates Risa Goluboff on her reappointment as dean of UVA Law.
  

• Local Legal History from Washington County, PA and Madison County, TX.
  

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

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Park on Self-Deportation in the United States

My Georgetown Law colleague K-Sue Park has posted Self-Deportation Nation, which appeared in the Harvard Law Review (132 (2019): 1878-1941:

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their settlements. The new nation then adopted this approach to Indian removal and debated using self-deportation to remove freed slaves; later, states and municipalities embraced self-deportation to keep blacks out of their jurisdictions and drive out the Chinese. After the creation of the individual deportation system, the logic of self-deportation began to work through the threat of direct deportation. This threat burgeoned with Congress’s expansion of the grounds of deportability during the twentieth century and affects the lives of an estimated 22 million unauthorized persons in the United States today.

This Article examines the mechanics of self-deportation and tracks the policy’s development through its application to groups unwanted as members of the American polity. The approach works through a delegation of power to public and private entities who create subordinating conditions for a targeted group. Governments have long used preemption as a tool to limit the power they cede to these entities. In the United States, this pattern of preemption establishes federal supremacy in the arena of removal: Cyclically, courts have struck down state and municipal attempts to adopt independent self-deportation regimes, and each time, the executive and legislative branches have responded by building up the direct deportation system. The history of self-deportation shows that the specific property interests driving this approach to removal shifted after abolition, from taking control of lands to controlling labor by placing conditions upon presence.

This Article identifies subordination as a primary mode of regulating migration in America, which direct deportations both supplement and fuel. It highlights the role that this approach to removal has played in producing the landscape of uneven racial distributions of power and property that is the present context in which it works. It shows that recognizing self-deportation and its relationship to the direct deportation system is critical for understanding the dynamics of immigration law and policy as a whole.

--Dan Ernst

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Vats, "The Color of Creatorship"

Stanford University Press has released The Color of Creatorship: Intellectual Property, Race, and the Making of Americans, by Anjali Vats (Boston College). A description from the Press:

The Color of Creatorship examines how copyright, trademark, and patent discourses work together to form American ideals around race, citizenship, and property.

Working through key moments in intellectual property history since 1790, Anjali Vats reveals that even as they have seemingly evolved, American understandings of who is a creator and who is an infringer have remained remarkably racially conservative and consistent over time. Vats examines archival, legal, political, and popular culture texts to demonstrate how intellectual properties developed alongside definitions of the "good citizen," "bad citizen," and intellectual labor in racialized ways. Offering readers a theory of critical race intellectual property, Vats historicizes the figure of the citizen-creator, the white male maker who was incorporated into the national ideology as a key contributor to the nation's moral and economic development. She also traces the emergence of racial panics around infringement, arguing that the post-racial creator exists in opposition to the figure of the hyper-racial infringer, a national enemy who is the opposite of the hardworking, innovative American creator.

The Color of Creatorship contributes to a rapidly-developing conversation in critical race intellectual property. Vats argues that once anti-racist activists grapple with the underlying racial structures of intellectual property law, they can better advocate for strategies that resist the underlying drivers of racially disparate copyright, patent, and trademark policy.

Advance praise:

"Building on the work of racial justice and intellectual property pioneers, Anjali Vats elevates the conversation to important new registers, including concerns of equitable distribution and post-racial identity claims. Vats shows how IP and contested citizenship have evolved to embed centuries of systemic racial injustices, reaching into the past to imagine a new and exciting future for creatorship." —Jessica Silbey, Northeastern University

"American law defined black human beings as chattel, deprived Asian Americans the right to own property, and justified the appropriation of Native lands. Anjali Vats's riveting book reveals how intellectual property is rife with racial bias and actively creates racialized notions of citizenship and humanity. From the Marvin Gaye plagiarism suit to Prince's radical protest against copyright as modern slavery, Vats explores the racial biases that underlie rhetoric around ingenuity, citizenship, property, and the public domain. A tour de force." —Madhavi Sunder

More information is available here.

H/t: New Books Network, where you can find an interview with the author. 

-- Karen Tani

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Weekend Roundup

• Rowan Williams on “Saving our Order: Thomas Becket, Henry II and the Law of Church and State,” 10 December 2020, 17:30 - 19:00.  H/t: LPK
  

• 
  The Smithsonian’s Lemelson Center for the Study of Invention and Innovation announces the webinar series, Black Inventors and Innovators: New Perspectives.  It is free and open to the public and will convene daily November 16–20, 2020 from 1:00-2:30pm ET. “This week-long program will draw renewed attention to historic and contemporary inventors of color and Black technology consumers, while discussing strategies for building a more equitable innovation ecosystem. Through presentations by an interdisciplinary group of thought leaders and engaged discussions with our online audience, this 'state of the field' workshop will identify critical questions, seek out new case studies, and articulate theories, concepts and themes to inform the next generation of research, archival collecting, museum exhibitions, and invention education initiatives.”  Kara W. Swanson, Northeastern University, is on Thursday’s panel. 
  

• Lawbook Exchange has released its catalogue on Law and Literature.
  

• Ronald K. L. Collins reviews Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical by Drexel University law professor Lisa A. Tucker (WaPo).

• Over at the Legal History Miscellany: Krista Kesselring on the hardships of 18th-century English law on wives

• And at Nursing Clio: Melissa E. Blair and Christopher Ferguson ask why so many scholarly fellowship programs are still residential.

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

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Paschal's "Jim Crow in North Carolina"

 Richard A. Paschal, an attorney in private practice in Raleigh, has published Jim Crow in North Carolina: The Legislative Program from 1865 to 1920 (Carolina Academic Press, 2020):

This book is a comprehensive study of the Jim Crow laws in North Carolina from 1865 to 1920. While it catalogs all of the laws enacted by the North Carolina legislature during those years, the laws and statutes do not fully explain the true extent of racial discrimination created through the implementation of those laws. The author demonstrates how de jure discrimination in North Carolina was not simply a result of the Jim Crow statutes but was imposed through the operation of law and, in turn, how the operation of law was itself affected by societal attitudes.

Paschal argues that the application and implementation of North Carolina’s laws were more important in terms of the actual discrimination experienced by African Americans than the statutory texts. He contends that the racial contagion which swept the state during the elections of 1898 and 1900—the White Supremacy Campaigns—dramatically changed white attitudes and, consequently, the operation of the law. This book provides an in-depth history of the shadow that Jim Crow casts over North Carolina and the nation.

Mr. Paschal tells us that his research was funded by a generous financial grant from the North Caroliniana Society.

–Dan Ernst

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Tolson on Voting Rights in BC Legal History Roundtable

The Legal History Roundtable at the Boston College Law School announces its next session, In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era, a webinar with Franita Tolson, on Friday, November 13, 2020, 12:00PM-12:55PM:

Registration is required. Zoom link will be sent before the day of the event.  Please join Professor Mary Bilder and Professor Dan Farbman as they welcome Franita Tolson, Vice Dean for Faculty and Academic Affairs and Professor of Law at USC Gould School of Law, to discuss her forthcoming book and the election.  Following the discussion will be a Q&A session.  Free and open to the public.

--Dan Ernst

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SAPD 34:2

Studies in American Political Development 34:2 (October 2020) is open access through the end of the month:

Racism Is Not Enough: Minority Coalition Building in San Francisco, Seattle, and Vancouver
Jae Yeon Kim

The Political Effects of Policy Drift: Policy Stalemate and American Political Development
Daniel J. Galvin, Jacob S. Hacker

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace
 Sarah Staszak

Democratic Representation of all “the People”: Antislavery Petitions in the U.S. Senate
John D. Griffin, Grace Sager 

--Dan Ernst

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Weekend Roundup

• The Wall Street Journal interviewed Laura Phillips Sawyer (University of Georgia School of Law) for this piece on the Justice Department's pursuit of Google over its allegedly anti-competitive conduct. 

• Anders Walker reviews Walter Johnson’s The Broken Heart of America: St. Louis and the Violent History of the United States (2020) on Jotwell. 
  

• Ellen DuBois speaks on her book on Suffrage: Women's Long Battle for the Vote in the Washington History Seminar on Monday, October 26 at 4:00 pm ET.  Register for the webinar here or watch on live our Facebook Page.
  

• Ronit Stahl, Berkeley, delivers Lessons from RBG: Jews & Religious Freedom in the United States (The Paul & Dorothy Grob Memorial Lecture at the University of Virginia) on Thursday, October 29, from 7-8PM EST. 

• Nurfadzilah Yahaya, National University of Singapore, did online events recently at NUS, the University of Hong Kong, and elsewhere on her book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia. Here's a recorded one hosted by the HLS Program in Islamic Law last month.
  

• Just published: Holmes Reads Holmes: Reflections on the Real-Life Links Between the Jurist and the Detective, ed. Ross E. Davies and M. H. Hoeflich (Lawbook Exchange, 2020).
  

• ICYMI: Alexander Zhang, a J.D./Ph.D. student in law and history at Yale, on "The Forgotten Third Amendment [that] Could Give Pandemic-Struck America a Way Forward" (The Atlantic).  50 historic moments in the U.S. Supreme Court (Stacker via the Buffalo News).  Jerold Auerbach recalls--not happily--his Development of Legal Institutions class at Columbia Law School.  For more on Julius Goebel, this.
  

• Update: ConSource digital library to the Quill Project in Oxford (Real Clear Education).
  

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

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New Digital Exhibits at U Minn Law Library

 [We have the following announcement.  DRE]

The University of Minnesota Law Library has released three new digital exhibits. "Law and Struggle for Racial Justice: Selected Material from the Riesenfeld Rare Books Center," continues a series of initiatives and conversations at the Law School centered around racial justice. "Noted and Notable: Treasures of the Riesenfeld Rare Books Research Center," and "Böcker Har Sina Öden' (Books Have Their Destinies): Treasures of the Swedish Law Collection," based on 2020 spring exhibits, highlight special collections treasures chosen in particular for their value as historical artifacts.

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Aziz on Race and Middle Eastern Americans

Sahar F. Aziz, Rutgers Law School, has posted Legally White, Socially Brown: Racialization of Middle Eastern Americans, which is forthcoming in the Routledge Handbook on Islam and Race, ed. Zain Abdullah:

What are you – Black, White, Mexican? This is a frequent question posed to people of Middle Eastern and North African ancestry. For new immigrants, the question is confounding because these categories are not in their lexicon on identity. Instead, a person’s family name, tribe, neighborhood in a city, village, or clan situate them in their home country’s social hierarchies.

In America, however, they soon discover that race is the master category for identity formation. It does not take long for new immigrants from the Middle East and North Africa to learn that being White presents privilege, opportunity, and dignity, whereas being Black leads to a litany of subjugation, indignities, and inequities in the United States. Whatever confusion they may have about how to respond to the race question, their first application for work or school dictates the answer: “White” includes persons having origins in Europe, the Middle East, or North Africa. But their legal race does not always mirror their social, lived race.

--Dan Ernst

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Jarwala on Racially Restrictice Covenants and the Changed Conditions Doctrine

Alisha Jarwala, a 2020 graduate of the Harvard Law School, has posted The More Things Change: Hundley v. Gorewitz and 'Change of Neighborhood' in the NAACP’s Restrictive Covenant Cases, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review 55 (2020):

Racially restrictive covenants flourished throughout the United States in the early twentieth century. These private agreements prohibited the sale or rental of specific parcels of land to non-white individuals, with the goal of maintaining residential segregation. Today, the primary case associated with restrictive covenants is Shelley v. Kraemer, in which the Supreme Court used the state action doctrine to strike down restrictive covenants in 1948.

However, there was a road not taken. The NAACP challenged hundreds of restrictive covenants and lost the majority of these cases, with a notable exception in 1941: Hundley v. Gorewitz. In Hundley, a federal court struck down a racially restrictive covenant in Washington, D.C., under a different theory: the “change of neighborhood” doctrine. This doctrine allows a court in equity to declare a restrictive covenant unenforceable if there has been such a radical change in the neighborhood that the covenant’s original purpose has been defeated. NAACP lawyer Charles Hamilton Houston was able to persuade the D.C. Circuit that a racially restrictive covenant was unenforceable if a neighborhood was already becoming predominantly Black, and the Hundleys kept their home.

This Note seeks to provide a legal historical account of Hundley v. Gorewitz and the change of neighborhood doctrine in the fight against restrictive covenants. A close examination of this case and doctrine provides insights into the NAACP’s civil rights litigation strategy. First, Hundley demonstrates the NAACP’s desire to use litigation as a tool to educate the courts and the public about the social and economic impacts of restrictive covenants. In addition, the use of this doctrine highlights Houston’s legal pragmatism: Ideologically, the change of neighborhood doctrine was a compromise because it accepted the premise of segregated neighborhoods. In making this argument, Houston utilized the converging interests of white homeowners, who wanted to be able to sell their properties to Black buyers. Ultimately, Hundley and the change of neighborhood doctrine showcase Houston’s ingenuity, pragmatism, and forward thinking at a time when the NAACP faced long odds in the fight against housing segregation.

--Dan Ernst

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Smith v. Allwright at University of Kentucky

Lonnie Smith Votes in 1944 Primary

 [We have the following announcement.  DRE.]

The University of Kentucky Special Collections Research Center (SCRC) pleased to announce a new exhibit titled “Black Voters, White Primaries." Using case files from the papers of Supreme Court Justice Stanley Forman Reed, as well as other archival materials from the collections, the exhibit explores how Smith v. Allwright (1944) helped end the “white primary," a voter suppression tool that served as the first line of attack—and often the only one needed—to prevent Black Americans from voting in the Jim Crow South. BONUS: UK Rosenberg College of Law Professor Josh Douglas weighs in on voter suppression this election season.

The exhibit was created as part of UK’s John G. Heyburn II Initiative for Excellence in the Federal Judiciary, a non-partisan endeavor devoted to the preservation and study of federal judicial history, with a particular focus on Kentuckians in the federal courts. 

Credit for image:  “Courtesy University of Kentucky Special Collections Research Center”

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Weekend Roundup

• 
  Julia Rose Kraut, the Judith S. Kaye Fellow for the Historical Society of the New York Courts, will speak on her book Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States in the Washington History Seminar of the National History Center of the American Historical Association on October 14 at 4:00 ET.  From the announcement: "Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King."  Register here.
  

• The US Customs and Border Patrol has asked the National Archives to "designate as temporary all records regarding CBP’s dealings with DHS’s Office for Civil Rights and Civil Liberties: a recipient of complaints of civil rights abuses from across the department."  More. 
  

• The Docket 3:3 is now online.
  

• The Federal Judicial Center has announced "Spotlight on Judicial History," a series of “brief essays, posted periodically, on a wide variety of interesting topics related to federal court history.  The first, by Jake Kobrick, is A Brief History of Circuit Riding.

• Lorianne Updike Toler, Information Society Project, Yale Law School, has posted The Publication of Constitutional Convention Records, a “ short history of the print and digital publication of all records of the Constitutional Convention, from 1787-2020.”
  

• The recording of the National History Center's congressional briefing, "Financial Responses to Economic Crisis," is here. 
  

• You had us at "Hughes": Avoiding Post-Election Chaos: Wilson vs. Hughes, 1916 by Matthew Waxman (Lawfare).  Also: a video on the history of housing discrimination in Arlington, VA.

• Update: Rutgers British Studies Center is hosting Empires of Law in Colonial South Asia this Monday at 12pm-1ET for a Q&A session (register here) with Tanya Agathocleous and our blogger Mitra Sharafi. The video talks are posted here.

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

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Weekend Roundup

•  The 2021 annual meeting of the Organization of American Historians will be virtual.
  

• Via the New York Times: "Pandemic Imperils Promotions for Women in Academia." The article quotes Northwestern's Susan Pearson, among others. 
  

• A number of history departments appear to be pausing graduate admissions, as they navigate COVID-related budgetary constraints and seek to support current students. The University of Pennsylvania recently announced such a pause -- but then clarified that it does not apply to applicants for the J.D./Ph.D. program in American Legal History. [KMT] 
  

• Paradoxes of Universalism, a hybrid but mostly Zoom con-
  
  ference on the fate of "European conceptions of universalism epitomized by the Enlightenment’s faith in the progress of reason," at the University of Helsinki, November 4–6, 2020.  Abstracts here.

•  More on the history of race, legislation, and ICU-bed shortages: recent interview with George Aumoithe (Stony Brook University) on Amanpour and Co. on his recent WaPo Made by History piece. You can watch the video here.

• The Historical Society of the U.S. District Court for the Southern District of Indiana is hosting Reflections on the Struggle for Woman Suffrage,”  the second of a three sessions in the 13th annual Court History and Continuing Legal Education Symposium, which will take place virtually at 3 p.m. on Oct. 9, with Anita Morgan, senior lecturer in history at IUPUI.  More. 
  

• The Securities and Exchange Commission Historical Society has announced the opening of “its newest gallery, The Enforcement Division: A History. This gallery tells the story of the Enforcement Division since its founding in 1972, as its attorneys were confronted again and again not only with the fraudsters who seem constantly to plague the securities markets, but with new schemes and stratagems made possible by political, economic, and technological change.”
  

• Legal historian Adnan Zulfiqar (Rutgers Law School) is guest blogging over at the Islamic Law Blog this month. 
  

• A biographical sketch of the nineteenth-century lawyer Edwin Willits in the Monroe (Michigan) News.
  

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

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A Symposium on Race, Citizenship and Women's Right to Vote

 [We have the following announcement.  DRE]

The symposium Citizenship and Suffrage: Race, Citizenship, and Women’s Right to Vote on the Nineteenth Amendment’s Centennial, sponsored by the Washington College of Law, American University, will take place online via Zoom on Tuesday, October 6, from 05:00PM - 06:30PM.

The event will describe how citizenship acquisition and citizenship-stripping laws barred women who married noncitizens, as well as women of color generally, from exercising their right to vote even after the 19th Amendment was ratified. Speakers will discuss the history of these laws and then connect these historical events to the challenges to accessing the ballot today.

Panelists include Professor Rose Cuison-Villazor (Rutgers Law School and WCL alum); Professor Kunal Parker (Miami Law School); Celina Stewart (League of Women Voters); Professor Leti Volpp (Berkeley Law School). Professor Amanda Frost (WCL) will moderate.

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VanderVelde and Chin on the Reconstruction Congress and the "Chinese Question"

Lea S. VanderVelde, University of Iowa College of Law, and Gabriel Jackson Chin, University of California, Davis School of Law, have posted Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion, from Tsinghua China Law Review 12 (2020):185-233:

Frank Leslie's Weekly (1872)(LC)

 During Reconstruction, Congress amended the Constitution to fundamentally reorder the legal and social status of African Americans. Congress faced the challenge of determining how Chinese people would fit in to the emerging constitutional structure. This article draws on a method of digitizing the Congressional Globe to more broadly explore the arguments about Chinese rights and privileges during Reconstruction. Unlike African-Americans, Chinese were part of an international system of trade and diplomacy; treatment of other people of color was understood as a purely domestic question. In addition, while a core feature of Reconstruction was ending the enslavement of African-Americans and overruling Dred Scott by making Africans Americans born in the U.S. citizens and granting them eligibility for naturalization, for Chinese, Congress chose to leave in place racial restrictions on naturalization, which had existed since 1790. This rendered them perpetual foreigners in America. With regard to labor rights, by abolishing slavery, Congress intended to raise up the freedmen, giving African Americans a chance to work on equal terms with other citizens. In the main, Congress continued to treat the Chinese people as constitutive of the so-called “Chinese question,” a nominalization that ascribed to them features of caste, from which there was little possibility of upward mobility. Congress recognized that some Chinese workers in the U.S. who were building railroads or working in mines might be subject to labor exploitation from bosses and from jobbers, sometimes white and sometimes Chinese. However, rather than intervene to liberate Chinese laborers through laws that would free them from involuntary servitude, and give them fair terms on which to compete, Congress eventually moved in another direction: excluding the Chinese altogether in 1882.

--Dan Ernst

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