Martin's "Cherokee Supreme Court"

 J. Matthew Martin, an Administrative Law Judge with the Social Security Administration who for over a decade served as Associate Judge of the Cherokee Court, the Tribal Court for the Eastern Band of Cherokee Indians, has published The Cherokee Supreme Court with Carolina Academic Press.

The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change.

Extensive case studies document the Cherokee Nation's exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now.

–Dan Ernst

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Legal Histories and Historians in Socialist East Central Europe

Socialism and Legal History: The Histories and Historians of Law in Socialist East Central Europe, edited by Ville Erkkilä and Hans-Peter Haferkamp has been published in the series Routledge Research in Legal History:

This book focuses on the way in which legal historians and legal scientists used the past to legitimize, challenge, explain and familiarize the socialist legal orders, which were backed by dictatorial governments.  The volume studies legal historians and legal histories written in Eastern European countries during the socialist era after the Second World War. The book investigates whether there was a unified form of socialist legal historiography, and if so, what can be said of its common features. The individual chapters of this volume concentrate on the regimes that situate between the Russian, and later Soviet, legal culture and the area covered by the German Civil Code. Hence, the geographical focus of the book is on East Germany, Russia, the Baltic states, Poland and Hungary. The approach is transnational, focusing on the interaction and intertwinement of the then hegemonic communist ideology and the ideas of law and justice, as they appeared in the writings of legal historians of the socialist legal orders. Such an angle enables concentration on the dynamics between politics and law as well as identities and legal history.

Studying the socialist interpretations of legal history reveals the ways in which the 20th century legal scholars, situated between legal renewal and political guidance gave legitimacy to, struggled to come to terms with, and sketched the future of the socialist legal orders. The book will be a valuable resource for academics and researchers working in the areas of Legal History, Jurisprudence and Philosophy of Law and European Studies.

About the editors: Ville Erkkilä is a Postdoctoral Researcher at the Center for European Studies, University of Helsinki, Finland. Hans-Peter Haferkamp is Full Professor of Private Law and History of German Law. He is the Director of the Institute of Modern History of Private Law, German and Rhenish Legal History, University of Cologne.

TOC after the jump.

--Dan Ernst

 Introduction: Socialist interpretations of legal history
Ville Erkkilä

PART I Framing the socialist legal historiography

1 The transformations of some classical principles in socialist Hungarian civil law: The metamorphosis of ‘bona fides’ and ‘boni mores’ in the Hungarian Civil Code of 1959
András Földi

2 We few, we happy few? Legal history in the GDR
Martin Otto

3 Roman law studies in the USSR: An abiding debate on slaves, economy and the process of history
Anton Rudokvas and Ville Erkkilä

4 Strategies of covert resistance: Teaching and studying legal history at the University of Tartu in the Soviet era
Marju Luts-Sootak

5 The Western legal tradition and Soviet Russia: The genesis of H. J. Berman’s Law and Revolution
Adolfo Giuliani

PART II Legal historians of socialist regimes

6 Juliusz Bardach and the agenda of socialist history of law in Poland
Marta Bucholc

7 Valdemars Kalninš (1907–1981): The founder of Soviet legal history in Latvia
Sanita Osipova

8 Getaway into the Middle Ages?: On topics, methods and results of ‘socialist’ legal historiography at the University of Jena
Adrian Schmidt-Recla and Zara Luisa Gries

9 Roman law and socialism: Life and work of a Hungarian scholar, Elemér Pólay
Éva Jakab

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Lian's "Stereoscopic Law"

Alexander Lian has just published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press):

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

Some endorsements:

The Path of the Law has attracted and puzzled scholars for a very long time. Just what is it about?  Alexander Lian has an answer: It is about legal education broadly understood. He demonstrates this proposition by carefully situating the piece in Holmes' many publications and in the thought of others of his time and acquaintance. The result is always interesting, somehow both analytically precise and neither hurried nor dense. Read the book slowly and enjoy it. Whether in the end one agrees with Lian's conclusion, one cannot fail to come away with a better understanding of Holmes, his times and the problems of becoming educated in law. 

John Henry Schlegel, Floyd H. and Hilda L. Hurst Faculty Scholar, University at Buffalo School of Law

In this carefully researched, engagingly written, and highly original book, Alexander Lian draws on the voluminous scholarship on Holmes and the experience of a practicing attorney, who is trained in American intellectual history, to formulate a compelling theoretical foundation for legal education and legal practice rooted in Holmes's writings. 

Bruce Kimball, co-author of The Intellectual Sword: Harvard Law School, the Second Century

Alexander Lian brings a key insight to our understanding of Holmes's famed Path of the Law article: Holmes presented it as a guide to law students in their study of law rather than as a commentary on the practice of law. Building on this insight, Lian offers an original, enlightening, and comprehensive reinterpretation of Holmes. Most important, we must not forget that Holmes approached his audience as a lawyer and judge, not as a legal academic. As such, Holmes presented the law in three dimensions, not as a flat or two-dimensional series of rules, but as a deeply historical enterprise. 

Stephen M. Feldman, Jerry H. Housel/Carl F. Arnold Distinguished Professor of Law, University of Wyoming

 Alexander Lian's new book about Oliver Wendell Holmes is a magnificent achievement. A major contribution to the Holmes literature, Stereoscopic Law looks at its subject in an original, revealing way: both with a wide angle and a zoom lens. With Holmes's famous lecture "The Path of the Law" as a springboard, Lian explores and probes Holmes's thinking as a matter of legal philosophy as well as Holmes's biographical and intellectual development. Stereoscopic Law, written accessibly and provocatively, is sure to push Holmes studies in a new, fruitful direction. It should be read and pondered by anyone interested in the history of ideas and the life of the mind. 

Daniel J. Kornstein, lawyer and author of The Second Greatest American

--Dan Ernst

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Rogers's "Workers against the City"

Donald W. Rogers, a lecturer in the Department of History at Central Connecticut State University, has published Workers against the City: The Fight for Free Speech in Hague v. CIO (University of Illinois Press, 2020):

The 1939 U.S. Supreme Court decision Hague v. CIO constitutionalized the fundamental right of Americans, including labor organizers, to assemble and speak in public places. Donald W. Rogers eschews the prevailing view of the case as simply a morality play pitting Jersey City, New Jersey, political boss Frank Hague against the Committee for Industrial Organization (CIO) and allied civil libertarians. Instead, he utilizes untapped archives and evidence to review Hague's story from street and media battles to district court and Supreme Court deliberations, illuminating trial proceedings from both worker and city perspectives for the first time. His analysis reveals how transformative New Deal-era developments in municipal governance, union organizing, labor politics and constitutional law dominated the conflict, and how assembly and speech rights changed according to judges' reaction to this historical situation.

Clear-eyed and comprehensive, Workers against the City revises the view of a milestone case that continues to affect Americans' constitutional rights today.

Here is an endorsement:

"Skillfully blending the histories of American civil liberties, organized labor, and urban politics, Rogers shows us how a complex set of forces has shaped and limited the rights of modern Americans to assemble and speak their minds in public."--James J. Connolly, author of An Elusive Unity: Urban Democracy and Machine Politics in Industrializing America

–Dan Ernst

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Duggan's Essays on Medieval Canon Law

We’ve recently learned of the publication of A. J. Duggan, Popes, Bishops, and the Progress of Canon Law, c.1120–1234, ed. T.R. Baker (Brepols, 2020).   Anne J. Duggan is Emeritus Professor of Medieval History and Fellow of King’s College London; Travis R. Baker (D.Phil, Oxford, 2017) is a private scholar living in the Diocese of Orange:

This book considers the role of popes and bishops in the development of the law of the Church between 1120 and 1234. Although historians have traditionally seen the popes as the driving force behind the legal transformation of the Church in the twelfth and thirteenth centuries, the primary argument of this book is that the functioning of the process of consultation and appeal reveals a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia.

Bishops have always played a central role in the making and enforcement of the law of the Church, and none more so than the bishop of Rome. From convening and presiding over church councils to applying canon law in church courts, popes and bishops have exercised a decisive influence on the history of that law.

This book, a selection of Anne J. Duggan’s most significant studies on the history of canon law, highlights the interactive role of popes and bishops, and other prelates, in the development of ecclesiastical law and practice between 1120 and 1234. This emphasis directly challenges the pervasive influence of the concept of ‘papal monarchy’, in which popes, and not diocesan bishops and their legal advisers, have been seen as the driving force behind the legal transformation of the Latin Church in the twelfth and early thirteenth centuries. Contrary to the argument that the emergence of the papacy as the primary judicial and legislative authority in the Latin Church was the result of a deliberate programme of papal aggrandizement, the principal argument of this book is that the processes of consultation and appeal reveal a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia, in which the ‘papal machine’ evolved to meet the demand.

–Dan Ernst.  TOC after the jump.
Chapter 1: Jura sua unicuique tribuat: Innocent II and the advance of the learned laws
Chapter 2: ‘Justinian’s Laws, not the Lord’s’: Eugenius III and the learned laws
Chapter 3: Servus servorum Dei: Adrian IV’s contribution to canon law (1154-9)
Chapter 4: Alexander ille meus: The Papacy of Alexander III
Chapter 5: The Effect of Alexander III’s ‘Rules on the Formation of Marriage’ in Angevin England
Chapter 6: The Nature of Alexander III’s Contribution to Marriage Law, with special reference to Licet preter solitum
Chapter 7: Master of the Decretals: A Reassessment of Alexander III’s Contribution to Canon Law
Chapter 8: Making Law or Not? The Function of Papal Decretals in the Twelfth Century
Chapter 9: ‘Our Letters have not usually made law (legem facere) on such matters’ (Alexander III, 1169): a new look at the formation of the canon law of marriage in the twelfth century
Chapter 10: Manu Sollicitudinis: Celestine III and Canon Law
Chapter 11: De Consultationibus: the role of episcopal consultation in the shaping of canon law in the twelfth century
Chapter 12: The English Exile of Archbishop Øystein of Nidaros (1180-83)

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Laske's "Law, Language and Change"

Caroline Laske, a research fellow at the Ghent Legal History Institute (Belgium) and the holder of a Heinz Heinen fellowship at the Bonn Centre for Dependency and Slavery Studies (Germany), has published Law, Language and Change: A Diachronic Semantic Analysis of Consideration in the Common Law (Brill, 2020):

In this monograph, Caroline Laske traces the advent of consideration in English contract law, by analysing the doctrinal development, in parallel with the corresponding terminological evolution and semantic shifts between the fourteenth and nineteenth centuries. It is an innovative, interdisciplinary study, showcasing the value of taking a diachronic corpus linguistics-based approach to the study of legal change and legal development, and the semantic shifts in the corresponding terminology. The seminal application in the legal field of these analytical methodologies borrowed from pragmatic linguistics goes beyond the content approach that legal research usually practices and it has allowed for claims of semantic change to be objectified. This ground-breaking work is pitched at scholars of legal history, law & language, and linguistics; and is of importance to scholars of private law working on promises and contract.

–Dan Ernst

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Thomas's "Question of Freedom"

William G. Thomas III, the John and Catherine Angle Chair in the Humanities and Professor of History at the University of Nebraska, has published A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War (Yale University Press):

For over seventy years and five generations, the enslaved families of Prince George’s County, Maryland, filed hundreds of suits for their freedom against a powerful circle of slaveholders, taking their cause all the way to the Supreme Court. Between 1787 and 1861, these lawsuits challenged the legitimacy of slavery in American law and put slavery on trial in the nation’s capital.  
 
Piecing together evidence once dismissed in court and buried in the archives, William Thomas tells an intricate and intensely human story of the enslaved families (the Butlers, Queens, Mahoneys, and others), their lawyers (among them a young Francis Scott Key), and the slaveholders who fought to defend slavery, beginning with the Jesuit priests who held some of the largest plantations in the nation and founded a college at Georgetown. A Question of Freedom asks us to reckon with the moral problem of slavery and its legacies in the present day.

The New York Times review, which hails the book as "a rich, roiling history that Thomas recounts with eloquence and skill," is here.

--Dan Ernst

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Witt Reviews Holdren's "Injury Impoverished"

John Fabian Witt, Yale Law School, has posted Radical Histories/Liberal Histories in Work Injury Law, a review forthcoming in the American Journal of Legal History of Nate Holdren’s Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era:

Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.

--Dan Ernst

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Hopkins's "Ruling the Savage Periphery" at WHS

The next meeting of the Washington History Seminar, on Monday, November 23 at 4:00 pm ET, will be devoted to Ruling the Savage Periphery: Frontier Governance and the Making of the Modern State (Harvard University Press, 2020), by Benjamin Hopkins, George Washington University.  Elisabeth Leake, University of Leeds, Geraldine Davies Lenoble, Torcuato Di Tella University, and Benjamin Johnson, Loyola University, will comment.  Click here to register for the webinar or watch on the National History Center’s Facebook Page or the Wilson Center website.

[Professor Hopkins]  makes a bold claim about the modern global order and the central role "frontier" spaces have made in its construction. Arguing that the "frontier" is a practice rather than a place, Hopkins theorizes that the particular way states govern such spaces – he terms it "frontier governmentality" – presents a unique constellation of power defining states and their limits. Ranging from the Afghanistan-Pakistan borderlands to the Arizona desert to the Argentine pampas, Hopkins presents an ambitious and provocative global history with continuing purchase today.

 

 --Dan Ernst

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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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Helmholz's "Natural Law in Court" at NBN

Over at New Books Network, Jeffrey Bristol talks to R. H. Helmholz, University of Chicago Law School, about Natural Law in Court: A History of Legal Theory in Practice:

R. H. Helmholz's book Natural Law in Court (Harvard UP, 2015) serves as a guide to the uses of natural law in the past. It shows how lawyers, judges and jurists used natural law to reason and argue about all areas of the law, be they procedural or substantive. Far from being a polemic, this book delves into the legal record of multiple countries to compare, contrast and shed light on the role natural law played in actual legal disputes. Due to the renewed interest in natural law today, this book serves as an important counter-point to legal thinkers who too often rely on purely philosophical or theoretical notions of natural law in their arguments to show how natural law was (and potential can be) deployed to make effective legal arguments in actual legal proceedings.

--Dan Ernst

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Boris's "Making the Woman Worker" at WHS

The next meeting of the Washington History Seminar, on Monday, November 16 at 4:00 pm ET, will be devoted to Making the Woman Worker: Precarious Labor and the Fight for Global Standards, 1919-2019, by Eileen Boris, University of California, Santa Barbara.  Sonya Michel, University of Maryland, will comment.  Click here to register for the webinar or watch on the National History Center’s Facebook Page or the Wilson Center website.

Amid the unraveling of standard employment at century’s end, previously excluded home-based and domestic workers have pressed the International Labour Organization (ILO) for rights and recognition. By tracing the construction of the woman worker through ILO labor standards, leading feminist historian Eileen Boris probes paths to equality between those classified as men or women and between women globally, complicating the debate over protective labor legislation and questioning whether the new carework economy is just another name for the old dichotomy between “working women” and “mothers in the home.”

 --Dan Ernst

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Gerstle & Isaac, eds., "States of Exception in American History"

New from the University of Chicago Press: States of Exception in American History, edited by Gary Gerstle (University of Cambridge) and Joel Isaac (University of Chicago). A description from the Press:

States of Exception in American History brings to light the remarkable number of instances since the Founding in which the protections of the Constitution have been overridden, held in abeyance, or deliberately weakened for certain members of the polity. In the United States, derogations from the rule of law seem to have been a feature of—not a bug in—the constitutional system.

The first comprehensive account of the politics of exceptions and emergencies in the history of the United States, this book weaves together historical studies of moments and spaces of exception with conceptual analyses of emergency, the state of exception, sovereignty, and dictatorship. The Civil War, the Great Depression, and the Cold War figure prominently in the essays; so do Francis Lieber, Frederick Douglass, John Dewey, Clinton Rossiter, and others who explored whether it was possible for the United States to survive states of emergency without losing its democratic way. States of Exception combines political theory and the history of political thought with histories of race and political institutions. It is both inspired by and illuminating of the American experience with constitutional rule in the age of terror and Trump.

Some chapters that are especially likely to interest our readership:

2 Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited

Ewa Atanassow and Ira Katznelson

4 The American Law of Overruling Necessity: The Exceptional Origins of State Police Power

William J. Novak

5 To Save the Country: Reason and Necessity in Constitutional Emergencies

John Fabian Witt

6 Powers of War in Times of Peace: Emergency Powers in the United States after the End of the Civil War

Gregory P. Downs

9 Constitutional Dictatorship in Twentieth-Century American Political Thought

Joel Isaac

10 Frederick Douglass and Constitutional Emergency: An Homage to the Political Creativity of Abolitionist Activism

Mariah Zeisberg

 

More information is available here.

 

-- Karen Tani

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A Symposium on Sullivan's "Church State Corporation"

The symposium Secularism, religion, and the public sphere has recently concluded over at The Immanent Frame, the blog of the Social Science Research Council.  It is devoted to Church State Corporation: Construing Religion in US Law (University of Chicago Press, 2020), by Winnifred Fallers Sullivan, Indian University-Bloomington.

First, here is the publisher’s copy and TOC for Professor Sullivan’s book:

Church and state: a simple phrase that reflects one of the most famous and fraught relationships in the history of the United States. But what exactly is “the church,” and how is it understood in US law today? In Church State Corporation, religion and law scholar Winnifred Fallers Sullivan uncovers the deeply ambiguous and often unacknowledged ways in which Christian theology remains alive and at work in the American legal imagination.

Through readings of the opinions of the US Supreme Court and other legal texts, Sullivan shows how “the church” as a religious collective is granted special privilege in US law. In-depth analyses of Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby reveal that the law tends to honor the religious rights of the group—whether in the form of a church, as in Hosanna-Tabor, or in corporate form, as in Hobby Lobby—over the rights of the individual, offering corporate religious entities an autonomy denied to their respective members. In discussing the various communities that construct the “church-shaped space” in American law, Sullivan also delves into disputes over church property, the legal exploitation of the black church in the criminal justice system, and the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Brimming with insight, Church State Corporation provocatively challenges our most basic beliefs about the ties between religion and law in ostensibly secular democracies.

Here’s the TOC:

Introduction. The Definite Article
Chapter 1. The Church Makes an Appearance: Hosanna-Tabor v. EEOC
Chapter 2. “The Mother of Religion”: The Church Property Cases
Chapter 3. Hobby Lobby: The Church, the State, and the Corporation
Chapter 4. The Body of Christ in Blackface
Conclusion. The Church-in-law Otherwise
 
And here is the SSRC symposium:

Introduction:  Mona Oraby (Amherst)
Leora Batnitzky (Princeton):  An American Political Theology?
Samuel Moyn (Yale): Jurisdictions of the Church
Nandini Chatterjee (Univ. of Exeter):  Imagining Community
Linda Greenhouse (Yale and the New York Times):  Why Not Just Abolish the Religion Clauses?
Julian Rivers (Univ. of Bristol Law): "... by law established": A transatlantic dialogue

--Dan Ernst.  H/t: FK

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Zelden on Talking Legal History

 New on “Talking Legal History” with Siobhan M. M. Barco is her interview of Charles L. Zelden

"about the new expanded edition of his book, Bush v. Gore: Exposing the Growing Crisis in American Democracy (University Press of Kansas, 2020). Zelden is a professor in the Department of History and Political Science at Nova Southeastern University’s Halmos College of Arts and Sciences, where he teaches courses in history, government and legal studies.

"In this third expanded edition Zelden offers a powerful history of voting rights and elections in America since 2000. Bush v. Gore exposes the growing crisis by detailing the numerous ways in which the unlearned and wrongly learned “lessons of 2000” have impacted American election law through the growth of voter suppression via legislation and administrative rulings, and, provides a clear warning of how unchecked partisanship arising out of Bush v. Gore threatens to undermine American democracy in general and the 2020 election in particular."

–Dan Ernst

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Losano on War Prohibitions in Postwar Constitutions of Japan, Italy and Germany

The Max Planck Institute for European Legal History announces a new publication, Three constitutions against war: Japan, Italy, Germany, by Mario G. Losano.  It is Volume 14 of the Open Access series Global Perspectives on Legal History:

The three defeated powers from the Second World War incorporated provisions prohibiting wars of aggression into their post-war constitutions, which are still in force. The first part of the book covers the difficult years for Japan, Italy and Germany between the end of the war and the start of peace (with the Nuremberg and Tokyo Trials, denazification, reparations and the renewal of the school system), analysing the birth of the three constitutions between 1947-49.

The consequences of defeat were different in each of the three countries, and hence each followed its own path in formulating the prohibition on war. However, the division of the world into two hostile blocs required the three countries to rearm, thus launching a process that resulted in the watering down of the original prohibition on war. In fact, the three countries’ involvement in international bodies requires each of them to participate in new wars, which are now branded as “peacekeeping” missions. There have thus been increasingly frequent calls to modify or even revoke these pacifist articles, above all in Japan (due to its geopolitical position).

The second part looks at three extensive annexes of documents that detail a specific aspect of each of the three states’ constitutional pathways. Japanese pacifism is examined with reference to the Allied documents that laid the groundwork for the post-war constitution. This leads to a consideration of current political debates concerning the amendment of the pacifist article, under pressure from Russian and Chinese interests coupled with the threat of North Korean aggression. With regard to Italy, its interest in Japan through the figure of the soldier-poet Gabriele D’Annunzio and his “samurai brother” is considered, alongside the now-forgotten “Partisans for Peace” movement, drawing on two unpublished documents. Germany, on the other hand, was divided into two countries after the World War II, with West Germany adopting a “Basic Law”, which has now been extended to the reunified Germany. The book considers excerpts from the reports of the constituent assembly concerning the adoption of the pacifist article. The equivalent East German legislation is documented in more summary terms, as that legal system is now little more than a historical footnote.

This threefold historical-constitutional inquiry provides an account of the birth and development of the pacifist article imposed by the victorious Allies, thus allowing for a better understanding of current debates concerning its impending modification.

--Dan Ernst

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Owensby and Ross Interviewed on "Justice in a New World"

Every month or so the Toynbee Prize Foundation posts interviews with the authors of books on comparative and global history.  Just up is its interview of Brian Owensby and Richard Ross about their edited volume, Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America (2018).  Writes the moderator, Nicholas Sy, University of the Philippines Diliman:

How intelligible were colonial legal norms to indigenous Americans and how intelligible were indigenous legal norms to settlers? Responding to a historiography that describes either a dynamic of gradual understanding or a dynamic of continuing incomprehension, legal historians Professors Brian Owensby and Richard Ross have crafted the prodigious edited volume Justice in a New World. Resting on nuanced comparison, the volume argues for a less homogenizing view, and highlights instead the degree to which various indigenous communities were integrated into different early modern empires.

In our conversation, we discuss the genesis of their work and its key concepts. We also explore the different comparative axes along which we may examine both indigenous and settler notions of intelligibility.

--Dan Ernst

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Comparative Constitutiional History: Collected Essays

Published this summer by Brill: Comparative Constitutional History: Volume One: Principles, Developments, Challenges, edited by Francesco Biagi, Justin O. Frosini, and Jason Mazzone:

While comparative constitutional law is a well-established field, less attention has been paid so far to the comparative dimension of constitutional history. The present volume, edited by Francesco Biagi, Justin O. Frosini and Jason Mazzone, aims to address this shortcoming by bringing focus to comparative constitutional history, which holds considerable promise for engaging and innovative work along several key avenues of inquiry. The essays contained in this volume focus on the origins and design of constitutional governments and the sources that have impacted the ways in which constitutional systems began and developed, the evolution of the principle of separation of powers among branches of government, as well as the origins, role and function of constitutional and supreme courts.

TOC after the jump

--Dan Ernst

Constitutional Origins

George Bancroft in Göttingen: an American Reception of German Legal Thought
Mark Somos

Uniformity and Diversity: a Confrontation between French and Dutch Thought on Citizenship
Gohar Karapetian

The Historical and Legal Significance of Constitutional Preambles: a Case Study on the Ukrainian Constitution of 1996
Justin O. Frosini and Viktoriia Lapa

Why the Court of Final Appeal of Hong Kong Should Re-Assert Its Power to Review Acts of the Standing Committee
Miguel Manero de Lemos

Challenges of Executive and Legislative Power

The Separation of Powers and Forms of Government in the MENA Region Following the ‘Arab Spring’: a Break with the Past?
Francesco Biagi

‘The Constitution Will Be Our Last Hope in the Momentary Storm.’ Institutions of Constitutional Protection and Oversight in Mexico and Their Contribution to Atlantic Constitutional Thought (1821–1841)
Catherine Andrews

Judicial Authority and Its Limits

Judicial Review of Legislation in Portugal: Genealogy and Critique
Gonçalo de Almeida Ribeiro

Defending the Judiciary? Judicial Review of Constitutional Amendments on the Judiciary in Colombia
Mario Alberto Cajas-Sarria

Direct Individual Access to Constitutional Justice in South Korea and Taiwan
Fabian Duessel

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