“Development’s Barren Scepter: Rewriting the Legal History of a ‘Failed’ Public Works Project”
To what extent is the ability to think up and complete a grand public works development project a unique triumph of American democracy, or a subversion of some of its processes? This paper asks this question while reviewing the archives of a state-backed Virginia canal company that found it difficult to leverage the state’s power of eminent domain in Old Dominion courts when faced by folk opposition to the project on many fronts during the 1800s.
“Representing the Other Race: Rebellious Indian Lawyers in Africa”
The paper will focus on a particular moment in the 1940s and 1950s, when the Indian bar in Kenya and Tanzania broke with previous ethnic politics and closely aligned themselves with African nationalists. Much of this alliance was forged in the course of defence during political trials (where most of the European bar boycotted or refused defence briefs). I am trying to make an argument about ethnic identity and political lawyering, during a period when the Indian diaspora moves from being imperial subjects to a national minority.
“The Rise of ‘Main Street’ Stockholder Litigation and the Origins of the Plaintiff’s Bar in Business Law, 1930-1950”
This paper examines the origins of retail shareholder litigation and the careers of the practitioners who forged a specialty in “Main Street” stockholder suits in New York City in the 1930s and 40s. These early stockholders’ lawyers were often condemned as “pariahs,” “scavengers” and unethical “extortionists” by the established corporate bar of their day. But a closer look reveals that the leaders of the plaintiff’s bar attained a professional status that was considerably more distinguished and influential than the conventional narrative conveys. In contrast to the dominant, pejorative view of stockholders’ attorneys—a perspective that persists to this day—this paper argues that the pioneers of the field (a tight network whose leaders included David Podell and Abraham Pomerantz) were innovative, conscientious lawyers, who combined formidable trial skills with sophistication in corporate finance, accounting, and governance. The leading practitioners in the field also demonstrated strong commitments to government and community service and participated in a variety of progressive causes that advocated the interconnected rights of workers, consumers, and ordinary investors.
“Pigs and Imperialism: Micro-Histories of Law in the British World”
In 1985, Dirk Hartog asked legal historians to consider the pig. His study of the long-overlooked pigs of early-nineteenth-century New York, and the ruder, rawer, smellier city that they and their keepers inhabited, challenged scholars to broaden their understanding of what law was and how we can come to know it. Over the past thirty years, historians of the United States have written pigs into their histories of law, infusing accounts of doctrine and procedure with the earthy details of everyday life. Outside the United States, however, legal historians have been less eager to embrace the pig and to see its analytic potential. This paper considers how Hartog’s signature approach, the legal micro-history, offers insights into the workings of law far beyond New York City, into the outer reaches of the British empire. Historians of British imperial law struggle, unavoidably, with scale. The vastness of the empire makes it difficult to say anything big without losing sight of everything small. The diversity of the empire’s peoples and the intricacy of their legal orders also complicate matters. However, scholars are beginning to explore how detailed, narrative histories of individual cases, histories that marry gritty materiality and jurisprudential abstraction, can help us to think about imperial law without ignoring the lived experience of empire.
“Reimagining Time and Space in American Constitutional History”
In Man and Wife in America: A History, Dirk Hartog invited readers to reimagine the units of time and space that have governed the writing of American legal history. Venturing beyond the field’s formal division into linear chronological periods and geographic binaries of nation versus states, Hartog sketched out the contours of a legal landscape defined instead by individuals in motion, each carrying with them old habits and customs across a complex ecology of multiple jurisdictions and communities. Despite the enormous implications of this proposed shift in vantage point, scholars of America’s Constitution have yet to take up the invitation in any systematic way. What would it look like to write a history of America’s Constitution built not on the inherited categories of political science, but instead, on the intricate legal terrain that Hartog identified? This paper offers a preliminary set of answers to this question, by exploring how Hartog’s particular conception of time and space provides the beginnings for a much fuller view of the origins and early life of the American Constitution.
“From the Margins to the Center”
Risa L. Goluboff
The paper will discuss avenues for bringing together top-down and bottom-up legal history. In particular, it will reflect on writing legal history by beginning not with large-scale events or historiographical debates, but rather everyday people—often those considered historically “marginal”—and bringing them into conversation with those “central” themes and events.
“Constant Craving: Hartogian Socio-Legal History on Gender, Law, and Welfare”
Kornbluh will reflect upon the ways in which the kind of legal history she learned from Dirk Hartog enriched her understanding of gender and welfare, and the ways in which his work enriched the fields of gender and social welfare history more generally. Kornbluh will also explore the ways in which Hartog’s scholarship catalogues the “constant craving” of nonelite legal actors for justice, including for economic justice.
“Private Organizations for the Public Good: A History of Nonprofits in the Black Freedom Struggle”
In Public Property and Private Power (1983), Hendrik Hartog details how U.S. lawyers and policymakers in the late eighteenth and early nineteenth centuries shifted their perception of the corporation of the city of New York, seeing it first as a private corporation and then a public actor with state authority. Following the legal evolution of private corporations through to the rest of the nineteenth century, fellow historian Jonathan Levy more recently has shown in “Altruism and the Origins of Nonprofit Philanthropy” (2016) that it was not only cities that split doctrinally with this private corporate structure. Rather, as late-nineteenth-century Americans increasingly came to associate private corporations with the pursuit of profit, public policymakers embraced a new corporate identity to embody private corporations’ former intentions to serve the public good: the nonprofit organization.
In conversation with Hartog’s and Levy’s complementary histories on the devolving public purposes of private corporations, this paper provides an overview of the public role played by nonprofit organizations as a distinct corporate form existing between the private and public spheres since the late nineteenth century. Focusing specifically on the relationship between nonprofit organizations in the United States and one of the country’s most fraught public dialogues, this paper will detail a history of nonprofit organizations in the long black freedom struggle. The paper’s dual aim is to synthesize the scholarship of nonprofit and civil rights scholars into a common narrative on black, white, and biracial nonprofits, and to offer an analytical argument for the varying ways that these private organizations engaged with one of the most pressing and lasting public conflicts in the United States.
“The Turn to Process: American Legal Thought in the Mid-Twentieth Century”
This paper seeks to situate the mid-twentieth century legal emphasis on process, procedure, and protocol within a series of larger developments within modernist thinking. In different registers and in different ways, the modernist attack on philosophical foundations led to a shift in focus away from substance and towards procedure. What is interesting about mid-twentieth century legal thought, however, is the extent to which common law sensibilities–themselves a focus of the modernist attack–infused the new “proceduralist” thinking.
“Putting on the Mantle of Natural Law: Indian Costume and Debtor Constitutionalism, 1775 to 1841”
E.P. Thompson described “counter-theatre” as one consistent element of English crowd actions of the late eighteenth century. American mobs engaged in their own form of theater, which included white men dressing as native Americans. The symbol of the white man in native dress took on powerful symbolic meaning during the Revolution, and persisted as a trope of popular protest long into the nineteenth century. This paper examines this symbol’s various meanings and asks why the eighteenth-century styled mob protest lasted so long into the “modern” world of written constitutions and republican institutions.
“Roosters and Resistance”
Christina D. Ponsa-Kraus
This paper contains some early reflections on what a legal history of cockfighting in Puerto Rico might look like, and on why Ponsa-Kraus might not want it to look that way. The idea for this paper occurred after Ponsa-Kraus went looking for the sound of roosters while visiting Puerto Rico.
“South Asians and Africans at the Inns of Court: Empire and Disbarment circa 1900”
The paper explores the disbarment of South Asian and West African members of the Honourable Society of the Inner Temple, one of the four Inns of Court for barristers in London, circa 1900. Law students from across the British Empire attended the Inns by the late nineteenth century, and three disciplinary cases (of West African Rotimi Alade and Indian members S. Krishnavarma and A. K. Ghose) shed light on the imperial legal profession’s views of racial and cultural difference; deception and corruption; and loyalty to British rule.
“The Constitution of Compromise and the Rights that Belong to Some”
The interwar period witnessed the emergence in America of a constitutional and court-centered concept of civil liberties. The dominance of that concept owed significantly to the efforts of the ACLU, which began as a radical organization frankly committed to the demise of capitalism but became, by the late New Deal, an outspoken proponent of political liberalism and judicially enforceable individual rights. During the same period, nearly all of the ACLU’s lawyers—who increasingly defined the organization’s agenda and steered its activity from direct action to litigation—were Jewish. To many of them, the best bulwark against totalitarianism in America was to prohibit state-sanctioned orthodoxy, whether religious or ideological, even if the target of state suppression was hateful or dangerous speech. That principle, however, manifested in vastly different visions of how civil liberties should be understood and implemented. This essay considers the influence of ACLU lawyers’ religious identity and corresponding concerns about antisemitism on the organization’s strategies and goals. It evaluates the ways in which their experiences as Jews affected their views on such issues as academic freedom, sex education, artistic expression, and labor rights, as well as broader debates on political pluralism, majoritarian democracy, and the appropriate scope of judicial review.