Court History Research Articles

Challenges in reintroducing fair market value to US public water/wastewater systems

ABSTRACT This paper analyses the debates around the shift in public water/wastewater systems valuation from a book value-based system towards a market-driven exchange approach, ‘fair market value’ (FMV). FMV legislation has been introduced in the past decade in 12 additional states. What is driving this shift in state policy and what does it mean for our understanding of value? Based on a review of the FMV acquisition process we explore the debates around this shift in water/wastewater system valuation drawing on historical court cases, two recent acquisitions and a review of public utility commission documents, legislative transcripts, court cases and statutes.

A Global Social History of Princes, Courts and Elites

AbstractRoyals abound in global history. Kings were served at court by domestic, administrative, and military elites who connected the centre to the provinces. Contemporary observers as well as modern historians have often stressed the contrast between oriental despots and limited monarchs in the West, downplaying structural resemblances. This article moves beyond clichés commonly ascribed to East and West, and asks to what extent social practices of court life were shared across early modern Eurasia. Then it reviews the profound changes in European court life during the long eighteenth century. Can parallel reform movements be found in other parts of Eurasia? Finally, it moves from comparisons to connections, by tracing fundamental shifts in the relationships between European royals and royals across the globe from the sixteenth century to the nineteenth. This longue durée examination questions common views about European exceptionalism and corrects persistent clichés about rising middle classes and declining nobilities.

The complexity of religious land use: Mosques, titling and informality in China (1949–2023)

In considering complex human-land systems, the land use and planning for places of worship is perhaps not an issue that may first come to mind. Simultaneously, however, it has become an increasingly critical and researched topic due to rising ethnic and cultural tensions in the West. Contrarily, the topic is virtually terra incognita for the Chinese context. This article aims to make up for that shortfall, and examines the way how the space for religious sites in China is acquired, planned and governed. It focuses on one of the more prominent places of worships often contested in the West: the mosque, and particularly those belonging to the Hui minority. The study relies on surveys, in-depth interviews, participant observation and rare documents hitherto unavailable in English, such as (informal) contracts, ownership titles, and historical court rulings. A dual finding is reported: 1) over time, the Chinese state’s envisioned ownership for religious property in general, and Islamic property in particular, has evolved into common property slightly comparable to condominium; 2) despite stated intentions to formalize religious planning, mosques’ land use has remained largely informal. Markedly, local planning authorities continue upholding a grey zone in which Hui Muslim sites of worship are tacitly condoned. Although there are caveats, this “tolerance of informality” offers leeway for religious praxis while providing space to a revolutionary past of complex, contested and convoluted property rights.

The Impact of School Desegregation on White Individuals’ Racial Attitudes and Politics in Adulthood

Abstract In this paper I study how school desegregation by race following Brown v. Board of Education affected White individuals’ racial attitudes and politics in adulthood. I use geocoded nationwide data from the General Social Survey and difference-in-differences to identify causal impacts. Integration significantly reduced White individuals’ political conservatism as adults in the U.S. South but not elsewhere. I observe similar effect heterogeneity for attitudes towards Black individuals and policies promoting racial equity, but (positive) impacts and geographic variation are smaller in magnitude relative to those observed for conservatism. Investigations into mechanisms suggest that this heterogeneity may depend on the effectiveness of integration policies. In the south, White–Black exposure was greater following desegregation, and White disenrollment was lower. Finally, I demonstrate that results are robust to concerns of bias resulting from potential non-random in- and out-mobility of individuals into integrating contexts. My study provides the first causal evidence on how theories concerning intergroup contact and racial attitudes (i.e., the contact hypothesis) may have applied to school contexts following historical court mandates to desegregate.

Bruen as Heller: Text, History, and Tradition in the Lower Courts

Bruen as Heller: Text, History, and Tradition in the Lower Courts

"'Gems for Royal Pofit': Prefaces and The Practice of Eighteenth-Century Ottoman Court History

"'Gems for Royal Pofit': Prefaces and The Practice of Eighteenth-Century Ottoman Court History

Perceptions on disabilities and illnesses in late Joseon Korea

This paper seeks to delineate and explain changing public perceptions towards those who suffered from deafness, blindness, or intellectual disability in Joseon Korea. In the fifteenth century, the Great Code of State Administration (경국대전, 經國大典 Gyeongguk Daejeon) prohibited discrimination against the disabled. The deaf and blind in particular even enjoyed favorable attention. The state provided such economic benefits as exemption from taxes as a way to compensate them for their impaired abilities, thereby fostering a rather favorable social climate towards persons with disabilities. Some blind persons were even believed to have such special talent as fortune telling. In the eighteenth century, however, negative perceptions towards the disabled began to gain strength. Increasing frequency of documented references to disability as an object of mockery suggests that the state and the society alike viewed the disabled as ‘useless people’ (폐인). Mainly utilizing court histories, literary anthologies, army rosters (군적), and military division (군영) records, this paper argues that overall change in the Joseon economy fueled discrimination against the disabled. In particular, changes in the military defense system and its associated military tax (군포) significantly contributed to the negative portrayal, as the new practice tended to divide the population into households collectively responsible for tax levies. By the nineteenth century, the state’s harsher treatment of the disabled set the stage for outright discrimination against disabled in modern Korea, exacerbated by the introduction of the Western notion of eugenics.

I Can’t See You; Can You Hear Me? Gender Norms and Context During In-Person and Teleconference U.S. Supreme Court Oral Arguments

AbstractFemale attorneys at the U.S. Supreme Court are less successful than male attorneys under some conditions because of gender norms, implicit expectations about how men and women should act. While previous work has found that women are more successful when they use more emotional language at oral arguments, gender norms are context sensitive. The COVID-19 pandemic prompted perhaps the most radical contextual shift in Supreme Court history: freewheeling in-person arguments were replaced with turn-based teleconference arguments. This change altered judicial decision-making and, I argue, justices’ assessments of attorneys’ gender performance. Using quantitative textual analysis of oral arguments, I demonstrate that justices implicitly evaluate gender performance with different metrics in each modality. Gender-normative levels of emotional language predict success in both formats. Function words, however, only predict success in teleconference arguments. Given gender’s salience at the Supreme Court and in broader society, my findings prompt questions about the extent to which women can substantively impact case law.

Breathing Life into the Constitution: the Transformative Role of Courts to Give a Unique Identity to a Constitution

This paper reflects on the transformative role of courts to direct and change the pathway of the countries in which they serve. The paper commences with a brief discussion of what is meant by transformative constitutionalism. It takes issue with the proposition that newly created courts under post 1990-constitutions are more prone to constitutional transformation than courts under older constitutions. It shows how there have been examples where courts have transformed their societies throughout the history of courts. It also points out that courts must, regardless of their transformative role, demonstrate respect for the separation of powers since all organs of government must work together to effectively transform society. The paper then focuses on 4 case studies where courts have radically transformed their society, namely Germany through the use of Bundestreue to give content to the federal system; India where Directive Principles of state policy are used to give content to human rights; Australia where the Aboriginal native title had been recognised after 200 years of denial; and South Africa where Ubuntu is used as a life-giving word to effect social justice. The proposition put is that the transformative ability of a constitution and the judiciary serving under that constitution is not determined by the age of the constitution, but by the ability of its justices to determine disputes on the facts, in accordance with the law, and in reflection of the realities of the society in which they reside. The fault lines of society often rapture in litigation, and that is when and where judges may direct a nation into a new direction.

Case C-156/21, Hung. v. Eur. Parl. & Council and Case C-157/21, Pol. v. Eur. Parl. & Council (C.J.E.U.)

The European Union's (EU) attempts to deal with the ongoing rule of law crisis in numerous member states resulted in the adoption of the so-called “rule of law conditionality” mechanism. Judicial challenges to the new tool before the Court of Justice resulted in two rulings issued in February 2022 by the full court and livestreamed for the first time in the Court's history. The judgements might be considered the most important “rule of law rulings” in the Court's case-law, since they put the rule of law at the forefront of the European Union's identity.

The Arghūn State in Qandahar and the New World Economy, 1479–1522

Abstract Traffic on overland routes connecting the Indian subcontinent to the Iranian Plateau and Central Asia increased from the fifteenth to the sixteenth centuries. This led to the formation of strong states in the Kabul-to-Delhi region—namely, the state ruled by the later Lodīs in north India, the embryonic Mughal state in Kabul, and the Arghūn state in Qandahar (1479–1522). This article will especially investigate the latter. Since there is no mercantile archive for this period, I will make use of narrative sources, especially the little-used “court history” of the Arghūns, the Nuṣratnāmā-i Tarkhān (completed circa 1565) in search of political and economic information.

The French Medieval Courts in the Latest Historiography of France, Belgium, the Netherlands and Switzerland

The article examines the most recent scholarly work on the history of French medieval courts. Not so long ago, scholars stated that this field was on the deep periphery of current research. The last two decades in French and French-language historiography, however, have been marked by an active increase in interest in the history of the courts, court life and aristocracy of the Middle Ages. The study of recent French-language historiography gives one a sense of catching up with lost time. Being out of the interests of advanced scientific trends for a long time, the court and the aristocracy are now being explored from all possible angles. The paper analyzes the main topics and problems of interest to researchers today: biographies of kings and nobles, ruling practices, gender studies, traditional “études bourguignonnes” and others; notes work on electronic projects and databases on court studies; outlines prospects for further research.

From Constitutional Protections to Medical Ethics: The Future of Pregnant Patients' Medical Self-Determination Rights After Dobbs.

This article argues that the Supreme Court's decision in Dobbs is likely to impact medical decision-making by pregnant patients in a variety of contexts. Of particular concern are situations where a patient declines treatment recommended for its potential benefit to the fetus and situations where treatment is withheld due to potential risk to the fetus. The Court's elevation of fetal interests, combined with a history of courts using abortion jurisprudence to guide their reasoning in compelled treatment cases, means that Dobbs has the potential to limit patient autonomy in a wide array of clinical settings. The article calls on professional medical associations to issue ethical guidance affirming the duty to respect the medical self-determination of pregnant patients.

The Judicial Bookshelf

The Judicial Bookshelf Donald Grier Stephenson Jr. (bio) Introduction: Supreme Court History as a Parade of Themes Of the hundreds of books about the Supreme Court published in the twentieth century, surely few have been more widely read and referenced than The American Supreme Court by Robert G. McCloskey, professor of government at Harvard University from 1946 until his death in 1969. First published in 1960 by the University of Chicago Press, this compact and elegantly written one-volume interpretive history of the Court has been updated now through six editions by McCloskey's student, Sanford Levinson of the University of Texas.1 The paragraph that concluded the Epilogue in the initial edition combined a historical overview with what appeared to be an admonition for the Warren Court, ironically just as it was on the eve of an even more activist phase. From 1789 to the Civil War, the Court labored to establish a reasoned argument for the cause of union. From the war to 1937 it performed a similar function on behalf of laissez faire. Toward the end of each of those periods, the judges overstepped the practical boundaries of judicial power and endangered the place they had earned in the American governmental system. Since 1937, the Court has striven to evolve a civil rights doctrine that will realize the promise of the American libertarian tradition, yet accord with the imperatives of political reality. Even when criticisms are duly acknowledged, the fact remains that the Court has contributed more to an understanding of this issue than any other agency in American life. It would be a pity if the judges, having done so much, should now once again forget the limits that their own history so compellingly prescribes.2 McCloskey's paragraph illustrates a common goal of many who write about the Court: Highlighting one or more themes that capture the essence of a period of judicial history. [End Page 113] Indeed, in fewer than 150 words, McCloskey pointed to at least four such themes, the last of which was hardly a surprise. As William Lasser observed some three decades later in the context of warnings against an overreach of judicial power, the theme of "weakness and vulnerability pervades the literature on the Supreme Court."3 This theme perhaps echoed the same "forbearance in the use of power" to which Paul Freund referred as he eulogized Justice Felix Frankfurter in 1965.4 The word forbearance itself is a reminder that the Court's work of deciding cases occurs in at least three dimensions as it may choose to allow, to direct, as well as to forbid. Yet in the context of deciding cases contemporary observers as well as someone decades hence might well choose to associate the words political or partisan as both a related and even an identifying theme for the Court of this part of the twenty-first century. That characterization, however, is hardly novel or even distinctive in that the label could also easily be applied to much of the Court's history. Indeed, scholars have long regarded the Court as political in numerous ways. Perhaps most obviously, the Court is political because its decisions shape public policy by deciding what government—national, state, or local—may or may not do. At least since the 1960s, for example, the Court has overseen operation of the criminal justice system to a degree never before experienced, from police-citizen encounters through punishment. Second, decisions clarify the boundaries of political authority, focusing less on what may be done than on who may do it or how it may be done. The Steel Seizure Case5 turned not on whether government could cope with labor disruptions but on whether President Truman in the executive order had exceeded his authority and intruded into Congress's law-making domain. The Legislative Veto case6 did not question government's authority to deport a particular individual but instead challenged the device by which Congress had mandated deportation. Third, the Court itself may become an issue in presidential elections, as has happened at least a dozen times since 1800 because of unpopular decisions. Quadrennial campaigns in the past four decades, for example, would have...

Introduction

Introduction Timothy S. Huebner The mission of the Supreme Court Historical Society is to collect, preserve, and promote the history of the Supreme Court of the United States. The Society carries out its mission not only by conducting educational programs for students and teachers, but also by presenting public programs and lectures, producing documentaries and books, and acquiring artifacts and documents of historical significance in cooperation with the Curator of the Supreme Court. The Journal, of course, plays an essential role in carrying out the mission of the Society, as it serves as the only publication devoted exclusively to publishing the latest historical scholarship on the Court. It is a mission that our editorial board, Director of Publications Clare Cushman, and I take very seriously. Part of the Journal's longstanding purpose, moreover, has been to promote and publish the work of young scholars—the next generation of constitutional and Supreme Court historians. To that end, since 1995 the Society has bestowed the Hughes-Gossett Student Award upon an outstanding student paper submitted to the Journal. In addition to this award, I am proud to announce that our editorial board has decided to offer a research grant for early career scholars researching and writing about the history of the Court. Awarded on a competitive basis in June of each year, the $1,000 grant, named in memory of the distinguished scholar Henry J. Abraham, supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D. The award will be given on the basis of the applicant's potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal. Our board is very excited about this ongoing commitment to young scholars. If you know of someone who qualifies, please make that person aware of this opportunity! More information is available on the Society's website. This issue of the Journal highlights the work of young scholars. In case you haven't noticed, Prof. Brad Snyder's seminar on the Warren Court, which he has offered over the past few years at Georgetown University Law Center, has been the source of several papers of late, including last year's winner of the Hughes-Gossett Student Award. Under Brad's mentorship, these students have [End Page 5] produced outstanding essays based on an impressive array of primary sources. Three essays in this issue come straight from Brad's seminar. The first of these essays, by Theodore Salem-Mackall, explores Justice Hugo Black's opinions in cases involving mandatory arbitration. Although best known for his opinions in civil rights and civil liberties cases, Black dissented in a string of Warren-era mandatory arbitration cases, out of a general wariness of corporate power and a deep belief in each person's right to a fair "day in court." Salem-Mackall, who originally wrote the paper while a law student, is currently a Law Clerk at Cleary Gottlieb Steen & Hamilton LLP. The second essay, by Gabriel Valle, tells the largely unexplored story of Gus Garcia and Hernandez v. Texas (1954), which involved the rights of Mexican-Americans to serve on juries. Although overshadowed by a contemporary case, Brown v. Board, and its emphasis on the struggle of Black Americans to desegregate schools, Valle shows the importance not only of Garcia's advocacy but also the Hernandez decision. Valle is a J.D. candidate at Georgetown. Third and finally, Jordan L. Lampo's essay chronicles the internal deliberations in Shapiro v. Thompson (1969), in which the Court invalidated state durational residency requirements to receive public assistance, thereby contributing to the establishment of a constitutional right to travel. The unusual lineup in the case—with Justice William Brennan and outgoing Chief Justice Earl Warren on opposites sides—makes for a fascinating story. Lampo is also a J.D. candidate at Georgetown. In addition to these student essays, Helen Knowles, Associate Professor of Political Science, State University of New York at Oswego and a member of...

The Political Economy of the Frankfurt School

The paper presents the findings of two recent books on the financial history of the Frankfurt School: Jeanette Erazo-Heufelder, Der argentinische Krösus: Kleine Wirtschaftsgeschichte der Frankfurter Schule, 2017, and Bertus Mulder, Sophie Louisa Kwaak und das Kapital der Unternehmerfamilie Weil. Ein Beitrag zur Wirtschaftsgeschichte der Frankfurter Schule, 2021 (Dutch original 2015). In contrast to the “court histories” of the school, the two authors tell the story of the money that brought the school to life and secured its existence throughout a turbulent period of history. At the center of the books are individuals who have been sidelined until now or even completely ignored by the literature on the Frankfurt School: on the one hand, Felix Weil, who founded and financed the Institute of Social Research and, on the other hand, Erich A. Nadel and Sophie L. Kwaak, two employees of the holding company who managed the accounts of the Weil family and the Institute’s foundations and were responsible for protecting the assets from being seized by Nazis. The books’ thick descriptions induced the author of the present paper to consider an alternative perspective on the Frankfurt School by contemplating Max Horkheimer and Friedrich Pollock as playing confidential games with Weil and others.

Postcolonial churn and the impact of the criminal justice system on Aboriginal people in Western Australia, 1829–2020

This article analyses how the criminalisation and imprisonment of Aboriginal people operated as tools of colonisation in Western Australia (WA) in the nineteenth century, and how this shaped the postcolonial criminal justice system. The racialised double standard embedded in the colonial foundations of state institutions, including the criminal justice system, rippled across generations of Aboriginal people: a reiterative and disruptive process that we dub the ‘postcolonial churn’. This term, adapted from the ‘carceral churn’, describes the destabilising mobilisations embedded in carceral and settler-colonial logics over the long term. It uses data from archival prison registers (Rottnest Island 1838–1931 and Roebourne Prison 1908–1961), as well as historic court, police and newspaper data to map the use of the criminal code in protecting and expanding colonial property rights in the original waves of settler-colonisation. WA is an outlier among the Australian colonies: it was the largest in terms of size (2,642,753 km2), the last colony to receive European convicts (1850–1868), and the last to be awarded self-government (1890). This created a situation where the British government dictated policy for legal forms of subjugation of Aboriginal people at the frontier (first for resisting pastoral industry, later as workers in it) which butted up against localised extra-legal violence by police and settlers. We can trace this dichotomy between policy and practice in the development of surveillance and policing of Aboriginal populations across time and settler-colonial space due to the protracted pace of frontier ‘development’. Revealing the mediated historical aspects of structural racism is crucial to analysing the persistence of racialised policing in postcolonial settings and understanding why, despite repeated inquiries into mistreatment of Aboriginal people, institutional inertia remains.

Workers before the Court: Conflicts and Labor Justice in the Context of the 1964 Coup d'Etat in Brazil

Workers before the Court: Conflicts and Labor Justice in the Context of the 1964 Coup d'Etat in Brazil

Detecting Racial Bias in Jury Selection

To support the 2019 U.S. Supreme Court case “Flowers v. Mississippi”, APM Reports collated historical court records to assess whether the State exhibited a racial bias in striking potential jurors. This analysis used backward stepwise logistic regression to conclude that race was a significant factor, however this method for selecting relevant features is only a heuristic, and additionally cannot consider interactions between features. We apply Optimal Feature Selection to identify the globally optimal subset of features and affirm that there is significant evidence of racial bias in the strike decisions. We also use Optimal Classification Trees to segment the juror population subgroups with similar characteristics and probability of being struck, and find that three of these subgroups exhibit significant racial disparity in strike rate, pinpointing specific areas of bias in the dataset.

History in Court: Punishment of Asia Minor Catastrophe

History in Court: Punishment of Asia Minor Catastrophe