Mar 31, 2011 Angela Fernandez
This terrific book, coloured hot pink, has a black-and-white photograph of the Toronto Women’s Court on its cover. The photograph is filled with a lot of men, at least a dozen, all wearing suits, and only two women. Where were the women lawyers, women judges, women clerks and bailiffs, not to mention the female defendants who occasioned the gathering of all this officialdom? The court had a male judge for its first eight years. The small number of women in the photograph and the initial lack of a female judge points to the same kind of contradiction Amanda Glasbeek’s book is most concerned to highlight, namely, the way that this movement to create a female-friendly space for the “right” kind of woman (young ones who had temporarily lost their moral compass and needed to be protected) ended up mostly coercing, disciplining, and punishing a very different kind of woman (e.g. older veterans with persistent drinking problems who were deemed effectively non-reformable).
The maternal feminists who brought the court into existence and eventually got their female magistrate, Margaret Patterson, to preside over it, are subjected to the kind of discussion that leaves no doubt in one’s mind about the kind of reform they intended and achieved, not one with a paradoxical or unintended outcome for some women but one, Glasbeek argues, that did precisely what was intended, namely, “to separate the erring from the hardened, the daughters from the daughters of the night, and the women in need of protection from the women from whom the city needed protecting” (p.176). It was “an ideal reflection of the politics of the middle-class, white feminists of the TLCW [the Toronto Local Council of Women]” (p. 13). These women were moralistic, usually racist, and used the law to further a state-sponsored evangelical mission. Patterson herself, a physician by training, had been a missionary in colonial India who worked with the Indian army on venereal disease (p. 38). This pretty much says it all: “sexually active women [were] a moral and physical danger” (p. 155).
Glasbeek shows that while the court might have brought a gentle “maternal” touch to the treatment of some young women, if they had the right kind of family background and could show the requisite contrition in something like a first-time shoplifting offence or a border-line vagrancy charge (e.g. being out late at night in the company of men), it slammed women defendants who challenged its authority (see Chapter 6 for dramatic examples of this) and brought down straight-forward coercive power on repeat offenders who were among the poorest and most marginalized (see Chapter 3). Most women charged with drunkenness, for instance, were over the age of thirty-five, overwhelmingly Roman Catholic, and worked as prostitutes from time to time (p. 120). It probably treated them more harshly than the regular system would have (see pp. 43-44, 150). The special “maternal” treatment women were supposed to receive did not work on the recidivists and indeed the coercion of “bad” women in the women’s court, those who did not comply or act appropriately deferential, “raised the possibility that feminized justice was unjust” (p. 170).
Patterson and the TLCW (was this acronym supposed to connote “tender, loving, care”?) argued that a separate court for women was needed in order to protect women from the prying eyes of men in the ordinary police courts, noisy, smelly places where women (at least the right kind of woman) would feel uncomfortable. Unsavoury men, they claimed, would attend and take down the names of women who appeared, marking down their length of sentence, meeting them when they came out of jail, and taking them down a road of immorality and vice (p. 2). The need to protect women from predatory men was also invoked in similar projects elsewhere, e.g. the establishment of a Women’s Court in Los Angeles (p. 33) and separate night courts for women in New York City (p. 34). This concern sounds a lot like a boogeyman from stock-in-trade white slavery arguments. Surely, institutionally and administratively, more minor measures than the establishment of a separate court for women could have been used to deal with this problem. And, indeed, it is probably telling that the standing committee of the TLCW most involved with the Women’s Court, the “Equal Moral Standard” committee had been called the “Equal Moral Standard and Prevention of Traffic in Women” committee in 1914 (p. 57).
Glasbeek has produced an extremely interesting and thought-provoking study for anyone interested in issues related to women-in-the-law, especially those related to women judges and whether they make a difference, the history of female crime and criminology, and generally good law-and-society legal history. My sense is that there was a period of time when feminist or feminist-friendly academics felt it was some kind of betrayal of path-breaking feminists to point out just how outrageous some of these early initiatives were. See, for example, Glasbeek’s discussion of what counted in this court’s estimation as “occasional prostitution” (see p. 97-98) or what could happen to you if you were arrested for petting in the park on a date (see p. 101). However, outrageous is not a characterization Glasbeek would use, as she is always very careful in the book to outline the logic of maternal feminist ideology without dismissing it outright. I take it that the choice in the title reflects Glasbeek’s judgment at the end of the day, feminized justice not feminist justice. This is far from anyone’s ideal feminist justice even if it was the (deeply flawed) product of the feminists of its day.
Feb 28, 2011 Allison Brownell Tirres
Modern immigration law is built upon a specific historical foundation: the efforts of lawmakers to exclude Chinese immigrants from the country in the late nineteenth century. Remarkably, all of the early cases affirming the constitutionality of Chinese Exclusion are still good law. Based on this jurisprudence, Congress has “plenary power,” free of judicial oversight, over the substance of laws seeking either to exclude migrants or to deport them. Hypothetically speaking, if Congress were today to pass a law declaring that people of Middle Eastern heritage would not be admitted into the country, it would not face constitutional scrutiny (unless, of course, the Court decided to overturn the Chinese Exclusion Case). Plenary power has served to insulate immigration law not only from equal protection norms, as the above example demonstrates, but also from other constitutional challenges, including those to retroactive lawmaking. To provide just one example, a legal permanent resident today can be detained and deported for a misdemeanor crime committed decades ago that was not a deportable crime at the time she committed it.
Scholars have critiqued the disconnect between immigration regulation and constitutional norms using a variety of methodologies. Rarely, however, has legal history been among them. The reasons for this are varied, but one of the primary ones is the relative silence of the Constitution on matters of immigration. The Constitution does not explicitly refer to immigration at all, and the Framers did not expressly discuss immigration policy. This has led to a widely-held assumption that there is not much to learn from the Founding Era to guide Congress and the courts in decisions about modern immigration regulation. In their article, Reclaiming the Immigration Constitution, James Pfander and Theresa Wardon effectively challenge this assumption. They do so using the most persuasive tools of legal history: in-depth, nuanced research into a rich and little-discussed trove of primary source material.
The basic argument of the article is clear: to understand what lawmakers in the founding era thought about immigration regulation, we must look to naturalization law. The authors demonstrate that matters of immigration and naturalization were “virtually synonymous” in this period. They point to two main reasons for this link: the difficulties of travel to the fledgling country and the extant laws barring aliens from owning property. When migrants made the long, difficult journey to the eastern seaboard, they did so with an expectation of staying (precluding the modern phenomenon of return migration) and of becoming naturalized citizens (which was the only way that they could own property and therefore make a life the newly adopted homeland). The authors argue that when the Framers drafted the naturalization clause of the Constitution, giving to Congress the power “to establish a uniform rule of Naturalization,” they were fully aware that the content of such a law would guide immigration policy, since migrants relied on naturalization rules to decide whether to migrate in the first place. An attention to the reliance interest of would-be migrants and current legal permanent residents underlay the Framers’ concern for creating a “uniform” and “established” federal rule, one that would prevent the states from drafting conflicting and shifting naturalization laws.
This concern for what the authors aptly call the norms of “prospectivity, uniformity, and transparency” in naturalization law did not end with the framing of the Constitution but continued to guide naturalization law in the early Republic. Pfander and Wardon draw on drafts of the 1790, 1795, and 1798 naturalization laws and the congressional debates surrounding them to make their point. Lawmakers were clearly concerned with protecting those who entered under prior state regimes, before the passage of federal law, from adverse consequences. In debating later changes to naturalization laws, they carefully avoided making amendments that would function retrospectively to disadvantage those who migrated in reliance on an earlier framework. The guiding impulse behind early naturalization law – which was inextricably linked to immigration regulation – was a respect for widely-agreed upon procedural norms.
With these findings, the authors are able to do something that many works of legal history (often by design) do not: play out the direct ramifications of their historical findings for contemporary immigration law. Locating immigration constitutionalism in early naturalization law challenges three specific elements of the modern framework: retrospective laws, private naturalization bills, and the public rights doctrine. As a whole, this theory of immigration constitutionalism casts doubt, in a novel way, on the notion of Congress’s unfettered plenary power over immigration matters. The authors do not dispute that Congress has wide latitude when it comes to the substance of immigration regulation, but they argue that its procedures must be guided by the founding norms of prospectivity, uniformity and transparency. These three together would lead to much more robust protection of the rights of immigrants, particularly those who have established roots in this country. There is some indication in recent case law that judges are already enforcing these procedural norms, albeit inconsistently. This article gives them even greater reason to do so, grounded in solid historical interpretation of the Founding Era and the early Republic.
Jan 31, 2011 Richard J. Ross
Lauren Benton is well-known as one of the leading scholars exploring the relationship between law and colonialism in a world history perspective. Her prize-winning 2002 monograph, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900, rested on the considered belief that early modern and modern empires were everywhere marked by significant legal pluralism. Yet legal pluralism took different forms. Early European settlements in the Americas, Africa and Asia began with a “multicentric legal order;” a robust pluralism characterized by multiple systems of law and tensions among semi-autonomous European and indigenous jurisdictions, associations, and corporations exercising their own prerogatives. “Legal jockeying” among settlers and between Europeans and indigenous leaders invited the colonial state to assume a superintending role over competing private and quasi-governmental jurisdictions. A “state centered legal pluralism” thus emerged in many areas of the world.
The purpose of the book was not to better illuminate the history of a particular country or region. The book was problem-driven: at the center was the transition from multicentric to state-centered legal pluralism. Her expert deployment of case studies from four continents raised the stakes, suggesting the importance of a phenomenon that recurred in empires throughout the world. Her global perspective also allowed her to identify the causes of the transition, an endeavor harder to do and perhaps less convincing when confined to one country or empire.
Benton’s methodological commitments, along with her customary imagination and erudition, are on display in her new monograph, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900. She rethinks the relationship between law, geography, and jurisdictional politics in European overseas empires using a wide range of case studies drawn from the French, Portuguese and especially the Spanish and British empires between the fifteenth and nineteenth centuries. Her global approach allows her to contest two well-established narratives in imperial and legal history. To begin with, historians commonly assume that European empires wished to assert control over distinct territories defined by maps. Imperial administrators gradually, with fits and starts, enhanced the ground-level effectiveness and geographical reach of their rule. But Benton’s close look at geography and jurisdictional politics calls into question this familiar story about the “rationalization of space” (p. xii). Though empires claimed territory defined by charters and treaties, they typically controlled “narrow bands, or corridors, and . . . enclaves and irregular zones around them.”(p. 2) These “lumpy” empires were made up of nodes and pathways—sea lanes, trading posts, missions, towns, and garrisons—each maintaining uncertain and changing legal relations to the metropole. Imperial authority was patchy: strongest in corridors and enclaves and weaker elsewhere.
Law traveled abroad with the imperial administrators, settlers, merchants, and warriors who used it to claim power and resources and justify their actions. The specific features of water and land that they encountered shaped the continuous disputes about the nature and limits of delegated authority and of the rights of European subjects living overseas. Benton considers rivers, oceans, islands, and mountains. Expeditions up rivers bred strikingly frequent charges of treason amid temptations to throw off kingly authority and plunder resources. Treason trials could be used to define the spatial boundaries of empire and the terms of delegated authority. Oceans could not be owned. Yet European states assumed that they could assert jurisdictional primacy not only over friendly ports, but over sea lanes through the water. As a result, merchants and even pirates engaged in “legal posturing.” They self-servingly described actions in ways that maximized advantage in a maritime world of tangled jurisdictional claims by rival powers. Islands used for military garrisons, raiding stations, and convict transportation suffered from unfree labor and harsh discipline. Fearing insurrection on their isolated outposts, commanders frequently exercised a cruel authority. How could the brutal mores of these “anomalous legal zones” be confined to prevent infection of the metropolis and the rest of its empire (p.165)? Mountainous regions had long struck Europeans as “primitive” zones where “backwards” people lived by archaic law. Imperial officials were all too ready to see colonial mountainous areas as insular, quick to violence, and resistant to European law; these places fell under only a constrained metropolitan quasi-sovereignty. Along with islands, rivers, and oceans, mountains brought to the foreground legal challenges and jurisdictional conflicts that complicated the rule of lumpy empires. Benton shows that geographical features posed a challenge to all empires, who responded in similar ways. Her focus is more on variation within empires than between empires.
Benton also challenges a second familiar story, the one about sovereignty understood as control over territory and borders. Historians typically assume that between the sixteenth and eighteenth centuries European states haltingly consolidated sovereignty. In this picture, empires marked by composite rule and semi-autonomous jurisdictions lagged behind metropoles but likewise moved towards fuller territorial control. Benton questions this trajectory. Empires often emphasized symbolic display and management of trade over control of borders. They experimented with plural legal systems and complicated schemes of partial sovereignty. And they experienced the continual emergence of “legal and geographic variations,” including new island work camps and penal colonies, trading enclaves, and loosely aligned jurisdictions (p. 282). Benton proposes a “more open-ended narrative about the persistence of empires and states composed of varied and sometimes-overlapping fields of partial sovereignty” (p.291) On this view, divided sovereignty was not a necessary evil of young colonies later overcome; and colonies did not routinely become better incorporated into sovereign states.
Benton uses, as a foil, accounts of imperial history that distinguish between a European zone of law and extra-European regions of lawlessness or “exception” (to use Carl Schmitt’s terminology). Where these scholars see the suspension of law, Benton labors to find “patterned variations of legal ordering” (p.287). Though often brutal, her explorers, pirates, settlers, and commanders creatively cited legal concepts to support economic and political claims, interact with indigenous people, and define their position in turbulent overseas lands. Out of this effervescence of claim-making and “legal posturing” arose principles governing land dispossession, prize law, slavery, labor discipline, and police regulations that would enjoy a long, dark future in overseas colonies. But those who would look for legal invention in places of exception will eventually encounter a familiar problem in legal philosophy and “rule of law” theory: Can every contention by pirates, captains, and wielders of the lash be styled a “legal” claim? Is there a point where, finally, will and rationalization become too brazen to be dignified as a variant understanding of law? To extend Benton’s perspective further than she does in her sober monograph would heighten the force of these perennial questions. One may accept the challenge of these questions and yet preserve Benton’s account by reading it with an ironist’s spirit: legal regimes emerged out of self-interested legal posturing repeated often enough to turn cynicism into custom.
Jan 30, 2011 Michael Froomkin
Legal History Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Kunal Parker
University of Miami School of Law
Professor Christopher Schmidt
Chicago Kent College of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Felice Batlan
Co-Director, Institute for Law & the Humanities
Chicago Kent College of Law
Professor Christina Duffy Burnett
Columbia Law School
Professor Mary Dudziak
Judge Edward J. & Ruey L. Guirado Professor of Law, History & Political Science
University of Southern California Law
Professor Laura F. Edwards
Professor of History
Duke University
Professor Angela Fernandez
University of Toronto, Faculty of Law
Professor Ariela Gross
John B. & Alice R. Sharp Professor of Law & History
University of Southern California Law
Professor Daniel Hamilton
University of Illinois College of Law
Professor Hendrik Hartog
Professor of History
Princeton University
Professor Sophia Z. Lee
University of Pennsylvania Law School
Professor Serena Mayeri
Assistant Professor of Law & History
University of Pennsylvania Law School
Professor Richard J. Ross
Thomas M. Mengler Faculty Scholar
Co-Director, Program in Legal History
University of Illinois College of Law
Professor Allison Brownwell Tirres
DePaul University College of Law
Professor Christopher Tomlins
University of California, Irvine School of Law
Jan 30, 2011 Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
Although gentle critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details.
Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.
Ordinarily, a Jotwell contribution will
- be between 500-1000 words;
- focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
- begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.
Initially, Jotwell particularly seeks contributions relating to:
We also have a Classics section limited to reviews of works more than 50 years old. We intend to add more sections in the coming months.
References
Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.
- Please keep citations to a minimum.
- Please include a hyperlink, if possible, to any works referenced.
- Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
- Authors are welcome to follow The Bluebook: A Uniform System of Citation (19th ed. 2010), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.
Technical
Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.
Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.
Jan 30, 2011 Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
Jotwell fills that gap. We are not be afraid to be laudatory, nor do we give points for scoring them. Rather, we challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We aim to be positive without apology.
Tell us what we ought to read!
How It Works
Jotwell is organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, is managed by a pair of Section Editors who have independent editorial control over that section. The Section Editors are also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors commits to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication.
For the legal omnivore, the ‘front page’ at Jotwell.com contains the first part of every essay appearing elsewhere on the site. Links take you to the full version in the individual sections. There, articles are open to comments from readers.
The Details
Learn more about Jotwell:
