LEGAL HISTORY eJOURNAL

"Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Peter Jo Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 27-1" Free Download

SETH BARRETT TILLMAN, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
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The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.? Plaintiffs contend that “the phrase ‘Person holding any Office of Profit or Trust,’ as used in the [Foreign Emoluments] Clause, includes the President.? Plaintiffs’ argument certainly has an intuitive appeal: How could the presidency not qualify as an Office of Profit or Trust under the United States for purposes of this important anti-corruption provision? But an intuition is not an argument, and it is not evidence. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar phrase “Office . . . under the United States? in other constitutional provisions, applies to the President. Rather, the text and history of the Constitution, and post-ratification practice during the Early Republic, strongly support the counter-intuitive view: the President does not hold an “Office . . . under the United States.?

[The Complaint: 2017 WL 2559732, filed June 12, 2017]

"Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage" Free Download
The Contested Place of Religion in Family Life (Cambridge University Press 2018) (Robin Fretwell Wilson, ed.), Forthcoming

ROBIN BRADLEY KAR, University of Illinois College of Law
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Recent developments toward the legalization of same-sex marriage in the West are often viewed as a triumph for secularism in a religious-secular culture war. That assumption foments ongoing division and hostility between some committed religious observers and some LGBT persons and their supporters.

The assumption is also wrong. The recent legalization of same-sex marriage in the West has underappreciated religious and spiritual causes and potential. It is the partial result of the historical emergence of a love-based social institution of marriage in the West. These developments, which began in the 17th to 18th centuries, further allowed for the emergence of what this article calls "transformational marriage". Given the development of transformational marriage, there are now weighty reasons - both religious and secular - to support these marriages among anyone who chooses to enter into them. Debates over same-sex marriage should be removed from the contemporary religious-secular culture wars.

To show this, this chapter offers a blend of religious, scriptural, moral, secular and psychological arguments, which provide a basis for previously opposing camps to reach an "overlapping consensus" on the value of transformative marriage for all people. An overlapping consensus is the polar opposite of a religious-secular culture war: it is a consensus that can be affirmed, for different reasons, by the opposing religious, philosophical and moral doctrines likely to thrive over generations in a more or less just constitutional democracy. Hence, there are good reasons for people of good faith on all sides of this conflict to support the development of this overlapping consensus and remove the issue of same-sex marriage from the culture wars.

"Promoting Dialogue between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History" Free Download
Journal of Law & Society, Special Issue: Main Currents in Contemporary Sociology of Law, Volume 44, Issue 5, ISSN: 0263-323X, pp. 37- 60, October 2017

DAVID SUGARMAN, Lancaster University - Law School
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This paper argues that the work of socio-legal scholars and historians would benefit from greater dialogue, and from taking the social history of law itself more seriously. It points up the benefits and the difficulties that might arise from greater cross-fertilization. By way of a case study, it focuses on the ‘legal turn’ in recent history writing on early modern England, particularly, Christopher W. Brooks’s ground-breaking analysis of the nature and extent of legal consciousness throughout society, and the central role of law and legal institutions in the constitution of society. The paper critically reviews Brooks’s principal ideas and findings, the contexts within which they arose, their theoretical underpinnings, and their larger significance. It highlights Brooks’s engagement with diverse scholars, including John Baker, Marc Galanter, Jürgen Habermas, Robert W. Gordon, J.G.A. Pocock and E.P. Thompson. It is proposed that Brooks investigated both elite and popular legal consciousness on an almost unparalleled scale, adopting top-down and bottom-up approaches that revealed the trickle-up, as well as trickle-down, diffusion of legal ideas, transcending the boundaries of social, political, and legal history. More generally, the paper seeks to demonstrate that the turn to law in early modern English history has enlarged the field in terms of subject-matter, methodologies and the range of sources utilised, deepening understanding of the workings of law and its wider importance. Indicative subject areas and topics enhanced by the legal turn are outlined including: law, gender, agency and social hierarchy; legal consciousness; trust, contractual thinking, and capitalism; governance and the growth of state power; and the decline in the participation of ordinary people in the legal system, and the so-called ’vanishing trial’. The paper concludes that a convergence between history, legal history and socio-legal studies has been underway in recent decades, that it provides opportunities for greater cross-fertilization, and that this would enhance our understanding of the role of law in society, and of society. For that greater dialogue to happen there would need to be better institutional support, changes in the cultures and mind-sets of history, socio-legal studies and legal history, and greater self-reflexivity. It would also generate difficult questions and controversy as to what sort of rapport might be appropriate, when, how and to what effect

"A Triple Heritage of Sexuality? Regulation of Sexual Orientation in Africa in Historical Perspective" Free Download
Sylvie Namwase & Adrian Jjuuko, Protecting the human rights of sexual minorities in contemporary Africa, Pretoria University Law Press, 2017

JOHN OSOGO AMBANI, Strathmore University
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The history of sexual orientation in Africa is one of escalating marginalisation. Although traditional African societies exhibited preference for fecund heterosexual relations leading to marriage and children, they permitted homosexual conduct in certain instances such as during rituals meant to generate wealth, or to maintain magical or political power. Available literature does not point to incidences of violence or penal condemnation of practitioners of homosexuality in traditional African societies. To the contrary, same-sex relations have existed in a variety of African societies including the Azande, Baganda, Basotho, El Garah, Kwayama, Langi, Lovendi, Meru, Nuer, Pangwe, Phalaborwa, Siwah, Teso, and Venda. In line with the triple heritage theory, matters changed fundamentally with the coming of visitors and imperialists. Informed by their Judaeo-Christian morality, the imperialists introduced new laws, which had the effect of altering the social, cultural and political systems in a manner never before imagined. With respect specifically to sexual orientation, criminal sanctions were introduced to discourage the practice. On attaining independence, most jurisdictions retained the colonial criminal codes and their provisions on sexual orientation. Recently, efforts have been made to fortify these regimes of law and it is Nigeria and Uganda that have triggered what I call 'the second wave of criminalisation'.

"The Idea of 'The Criminal Justice System'" Free Download
American Journal of Criminal Law, Forthcoming

SARA MAYEUX, Vanderbilt University - Law School
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The phrase “the criminal justice system? is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,? dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system? within the rise of systems theories more generally within intellectual history and the history of science. The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.? Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system? and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system? thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system? with crime rates.

"CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity" Free Download

PAUL SPRUHAN, Independent
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This essay discusses the "CDIB" or Certificate of Indian or Alaska Native Blood, a document that proves an individual's quantum of Native American blood. The CDIB is a federal document issued by the Bureau of Indian Affairs or by tribal nations through a "638" self-determination contract, but without published regulations or even clear written guidelines. The essay discusses its mysterious origins, its primary purpose, and its role in defining Native American legal identity. It also suggests some provisions to be included in final regulations, should the Bureau of Indian Affairs revive its attempt to publish CDIB regulations.

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About this eJournal

This eJournal distributes working and accepted paper abstracts on the history of law and legal institutions, as well as other historical inquiries that relate to current legal issues.

Editor: Reva B. Siegel, Yale University

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Legal History eJournal

KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Carter Professor of General Jurisprudence Emeritus, Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago (Deceased) , University of Chicago - Department of Political Science