Tag Archives: legal history

Oct. 24 4-6pm @yorku Prof. Bettina Bradbury: “Twists, turning points and tall shoulders: studying Canada and feminist histories”

Twists, turning points and tall shoulders: studying Canada and feminist histories: Bettina Bradbury

The Robarts Centre for Canadian Studies: Robarts Lecture and Publication Launch Wednesday October 24 4 – 6 pm; Senate Chambers, 9th floor N Ross Building

A light reception will follow the lecture. RSVP by Wednesday October 17 to Laura Taman (llt@yorku.ca).

The Robarts Centre is very pleased to invite you to the ‘new series’ of Annual Robarts Lectures featuring our distinguished colleague Prof. Bettina Bradbury (Women’s Studies and History) speaking on “Twists, turning points and tall shoulders: studying Canada and feminist histories.” In this ‘intellectual biography,’ Prof. Bradbury will reflect on her career in and contributions to the study of Canada.

photo of Prof. Bradbury receiving FGS award.

An award-winning historian of Québec and family history, Prof. Bradbury has served the university in various roles, among others, as chair of Women’s Studies and as director ofthe graduate programme in History. She recently received the Faculty of Graduate Studies Teaching Award (see photo).

Here are some of Prof Bradbury’s publications (i selected some of those most clearly relevant to legal scholars)

“Colonial Comparisons: Rethinking Marriage, Civilization and Nation in 19th century White- Settler Societies,” in Phillip Buckner and G. Frances eds., Rediscovering the British World, (Calgary: University of Calgary Press, November, 2005), 135-58.

“Widows Negotiate the Law: The First Year of Widowhood in Early 19th Century Montreal,” in Tamara Myers and Bettina Bradbury, eds., Negotiating Identity in 19th and 20th Century Montreal (Vancouver: UBC Press, 2005), 120-48.

“Debating Dower: Patriarchy, Capitalism and Widows’ Rights in Lower Canada, ” in Tamara Myers, Kate Boyer, et. al. eds., Power, Place and Identity: Historical Studies of Social and Legal Regulation in Quebec (Montreal, Montreal History Group, 1998), 55-78.

“Creating a More Inclusive History – An overview of the challenges and solutions faced in integrating class, race and gender into survey courses, ” in Bettina Bradbury, Franca Iacovetta, Joan Sangster et. al. Teaching Women’s History (Athabaska, 1995), 37-48.

Alongside this public lecture, the Robarts Centre is also hosting its first collective book launch for Canadian-themed publications produced by members of the York University community. This is an occasion to celebrate the breadth of Canadianist research at York.

 

 

'Omak’s Minimum Pay Law Joan D’Arc': Telling the Local Story of West Coast Hotel v. Parrish (1937) by Helen Knowles

‘Omak’s Minimum Pay Law Joan D’Arc’: Telling the Local Story of West Coast Hotel v. Parrish (1937)

by Helen Knowles (Whitman)

New at SSRN.

Abstract:
Scholars agree about the socio-political significance of West Coast Hotel v. Parrish (1937), in which the U.S. Supreme Court upheld the Washington State minimum wage law for women. However, they tend to focus on the decision’s relationship to FDR’s Court-packing plan. Little attention has been paid to the stories of the parties; beyond identifying her as the famous-for-five-minutes “Wenatchee chambermaid,” scholars have provided us with minimal information about the plaintiff Elsie Parrish, and even less is known about the lawyers and lower court judges who participated in this landmark case.

Using analysis of local newspaper coverage, the original court documents, and drawing upon information provided by descendants of Elsie Parrish, her lawyer C.B. Conner, and Fred Crollard, the attorney for the West Coast Hotel Company, in this article I bring to light many previously untold details of the local story of Parrish. This material highlights the importance of telling the stories of Supreme Court cases, because it demonstrates that for the residents of Washington State it was the local story, rather than the national narrative, of Parrish that captured their attention.

Two New on SSRN: Marriage, Equality & History (Franke and Murray)

Two pieces on marriage, both with a historical bent, both available on SSRN.  In the first, Columbia’s Katherine Franke asks why marriage has received so much attention in the struggle of same sex/LGBTTQ rights, and attempts to sketch an answer by looking to the period immediately after the Civil War when African Americans received the right to marry.  Analogy and equality, some of my favourite things! 

The Murray article points out that until relatively recently, marriage was sometimes part of the punishment for the “crime” of seduction.  This leads author Melissa Murray (UCLA – Berkeley)  to argue that those involved in the struggle for marriage equality have not paid enough attention to the role of marriage as a punishment, or technique of state discipline.  Murray’s article is award winning.  Cannot wait to get to these. Today? Tomorrow?  Very soon.  They are on my ipad, waiting for me. 

 

See! I have restrained myself from making a snarky comment about weddings being a form of punishment.

Oh…shoot.

 

 

KATHERINE M. FRANKE, Columbia Law School  “The Curious Relationship of Marriage and Freedom”  

MARRIAGE AT  A CROSSROADS, E. Scott and M. Garrison, eds., 2012  Columbia Public Law Research Paper

 

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth? 

In important ways, what we are witnessing today with same-sex couples echoes the experience of another group of new rights-holders almost 150 years ago. To better understand how the gay rights movement today has collapsed into a marriage rights movement, and what the costs of such a strategy might be, the essay looks backward in history to another time when marriage rights intersected with the rights of freedom, equality and dignity of a marginalized population: newly emancipated Black people in the mid-nineteenth century.

MELISSA E. MURRAY, University of California, Berkeley – School of Law  “Marriage as Punishment” 

Columbia Law Review, Vol. 100, No. 2, 2012   UC Berkeley Public Law Research Paper No. 1952311

 

Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used – and importantly, continues to be used – as state-imposed sexual discipline.

Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who ‘seduced and had sexual intercourse with an unmarried female of previously chaste character’ under a ‘promise of marriage.’ Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.

The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.

With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.

Now Posted on SSRN: A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye

looks interesting

Swan, Sarah Lynnda, A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye (August 29, 2011). Harvard Journal of Law and Gender, Vol. 35, 2012.

The tort of interference with contractual relations has many puzzling features that conflict with fundamental principles of contract and tort law. This Article considers how gender influenced the structure of the tort and gave rise to many of these anomalies. Lumley v. Gye, the English case that first established interference with contractual relations, arose from a specifically gendered dispute: two men fighting over a woman. This type of male—male—female configuration creates an erotic triangle, a common archetype in Western culture. The causes of action that served as the legal precedents for interference with contractual relations – enticement, seduction, and criminal conversation – are previous instances where the law regulated gendered triangular conflicts. Enticement prohibited a rival male from taking another man’s servant, seduction prohibited a rival male from taking another man’s daughter, and criminal conversation prohibited a rival male from taking another man’s wife.

via A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye by Sarah Swan :: SSRN.

 

IFLS Book Club [5] Kim Brooks (Dalhousie) on Mrs. Dred Scott

Find all the other IFLS book club commentary on Mrs. Dred Scott here.

 

Find the next book club book here.

Kim Brooks is, I think, getting the last word on this book – unless some of you out there have something to add (I would love to hear from you if you have a moment – or just put your thoughts in the comments here).  I’ll try to do a wrap up next week and then we’re on to the next book!

 

Kim Brooks probably needs little introduction on this blog.  Suffice it to say that given her energy level, it might not be a surprise that she had to go outside legal/academia to find inspiration.  Seriously, you can read about it here (“I have a soft spot for Bruce Springsteen. When I was a little kid, my father would play “Hungry Heart” on high volume on our stereo, and we would jump around on our living room couches screaming the lyrics. It meant little that neither of us could carry a tune.”) and here (where she “…likens learning tax law to seeing Bruce Springsteen in concert – and to drive the analogy home, she even uses his music and lyrics in her classes: “When you see him in concert, there’s no fancy stuff, no glitz, no magic light and balloon show. But he just goes so hard, and that is a really fabulous thing to see. So I use him as an example to show what it is to be truly engaged in something.”).

I should probably just start calling her the Boss – why not?  Anyway, enjoy her thoughts on the book below and on other subjects by looking at her papers on SSRN  here.

Entitled to Justice and Holding Fast to the Possibility:  Mrs. Dred Scott

One of my favourite movies is Léa Pool’s Emporte-moi. The film is a poignant coming of age story.  Scratch that.  Coming of age is appropriate, but it understates the richness of the film and its narrative, which uncovers what it is to be 13 in 1963 in Quebec.

Despite the film’s strengths, here’s what floored me most about it. Pascale Bussières. Bussières plays the protagonist’s mother, the “mère de Hanna”.  She is in myriad scenes through the movie.  But her role is to be absent.  She is the most absent presence I have witnessed on a big screen.

Enter Harriet Robinson Scott.   Harriet.  A procedural paragraph (as described in the introduction to Mrs. Dred Scott:  A Life on Slavery’s Frontier).  A woman who allegedly motivated a case that stood for the idea that black people were not legal citizens and that changed the shape of American constitutional history.

What Lea VanderVelde does in this book is what Bussières does with mère de Hanna.  She puts on to our radar a figure about whom we can feel only ambivalent.  A figure forced into our consciousness by the title of the book, by our understanding that this is a book “about Harriet”, by our hope that it might be possible to shine light on “[t]he lives of subordinate people [who] are consistently erased by time and memory” (at 2).  And yet, of course, when the whole modality of the character, set in racism and colonialism, requires her to be silent, absent, unseen, illiterate…we are forced to be satisfied, as in Léa Pool’s film, to read a character without a centre.

Frustrated, gripped, and moved.  My response to Harriet (and to mère de Hanna).  In each case, the creator of the work creates a space for an impossible figure.  And in each case I wanted more.  Mrs. Dred Scott tracks Harriet’s life.  Follows her path, relates with significant detail the moments that surrounded and must have shaped her life.  We learn in the first half of the book about the period between 1835 and 1840 when Harriet lived on the Wisconsin/Minnesota frontier.  In the second part of the book, we learn about Harriet’s life in Saint Louis and the course of her legal path for freedom.  But there is none of the lint of Harriet’s life.  There is none of the detail that would render her real.  We don’t know when she smiled or whether she liked carrots.  We aren’t sure if she wept at goodbyes or split infinitives.

And yet, despite this limit, Mrs. Dred Scott is a brilliant contribution.  Perhaps the most profound contribution, and this may seem odd, is that it organizes history around the life of Harriet.  Set aside the thornier debates around whether biography can be history: I think it can.  Perhaps the most significant contribution of the book is not that we know more about Harriet, but that Harriet becomes fundamentally centred.  She becomes the anchor for the period of history around which VanderVelde weaves her story.  VanderVelde does not get to discuss 1877, for Harriet dies in 1876.  To allow a woman to shape the period of history that gets told, to mould its geography, seems a profoundly centring act.  Harriet literally shapes history.  We learn, in a sense, a telling of the history as it unfolded in the world occupied by Harriet.

Let me remark in a disorganized way on a few additional characteristics of the book.  First, I was struck throughout at the work it must have taken to write the book.  Mrs. Dred Scott is extraordinary scholarship.  While framed around one life, the life of Harriet, the book is like a good stage play.  The curtain rises, and we catch a framed glance at life on the frontier and in St. Louis.  Writing the book required thirty-three research assistants (see acknowledgements) and 113 pages of very small font endnotes.  It was carefully researched and it changes the way we see a time and place.

Second, for the most part, I found reading the book, work.  It’s not a book that delights the imagination.   In contrast, it demands much.  There is no easy way to create a sense of what Harriet’s life must have felt like.  The reading fell between pleasure and reading I would do as part of my own scholarly pursuits.  It could not be skimmed.  The print is small.  And yet, there are moments where the writing struck me as markedly elegant:

Hers was a life that could be equalled by few that century.  She had lived for several years surrounded by Sioux and Objiwa people who spoke languages at first unknown to her.  She endured brutally cold Minnesota winters.  She traveled the extent of the nation on the steamboat, the most advanced means of travel of the time.  She had served some of the century’s most important, best-educated, engaging, and ambitious men at her master’s table.  She returned as a free black person to live in a slave state that increasingly turned to law to circumscribe her personal liberties.  She nursed her aging husband and kept her family intact through fires, floods, and epidemics.  She sat silently beside her husband in the courtroom and hid her children for their safety, while holding out for her family’s freedom in a hostile environment for more than a decade, a legal battle that extended to the highest court of the land.  (10-11)

Second, the book enables consideration of the relationship between the biographer and her material.  Where should VanderVelde show up in the work?  We no longer pretend, at least for the most part, that there can be an objective review of the evidence.  The degree to which the biographer makes herself known in a text is worth some attention.  In this case, for the most part, it is hard to sense VanderVelde.  And yet there are moments where I acutely felt her presence.  While most of the book is characterized by a careful, detailed accounting of the evidence, VanderVelde does sporadically pause in places where she must have felt curious:

In bidding farewell, the several chiefs left 22 peace pipes as tokens of respect.  The agent was expected to reciprocate.  Taliaferro gave Chief Wah-na-tah his umbrella at the chief’s request.  The Chief of the Yanktons left with the master’s umbrella tucked under the blanket of his horse.  What could a Yankton chief do with this symbol of civilization?   Did he use it to keep the rain off, to provide sunshade on the plains, as a rode, a staff, a symbol of authority, or did he keep the umbrella in the same way that Dr. Jarvis collected Indian goods, as a curious contraption of another culture? (82-83)

Similarly, we occasionally get a feel for the analytical queries of the biographer.  She asks, “[w]hat determines whether a person is free or enslaved in a wilderness area where purportedly no law keeps slavery in place and what law there is forbids slavery, but with weak legal enforcement?” (117). Or later, she questions, “[w]ho was the real enslaver in a system so pervasive and so seamless?” (234).

Third, the gendered nature of life in the world around Harriet is brought into relief by VanderVelde’s work.  This book is a piece of a larger project to document the roughly 250 freedom suits of St. Louis.  That larger project has enabled VanderVelde to offer broader context on the freedom litigants, and to shed light on Harriet’s place in that part of the social history of the time.  For example, VanderVelde notes and explains why most freedom suits were commenced by women:

Harriet fit the profile of freedom litigants better than did Dred, since most freedom suits filed in the St. Louis courts were initiated by women.  Men could run.  They could take the risk of depending on their own wits, physical stamina, and speed.  Men’s chances of successfully escaping were better, particularly if they travelled alone.  Running with children was doomed to fail.  Moreover, most of the women, like Harriet, were mothers with children.  Women frequently invoked as their reason for suit that a sale threatened to separate them from their children. (231)

VanderVelde’s obvious knowledge of the freedom suits provides the second part of Mrs. Dred Scott with particularly fascinating detail.  She is able to link the Scott’s case with related cases in the same era, speculating on the implications of those cases both for the outcome in the Scott case and for how Harriet and Dred must have felt about their chances.

Fourth, the book goes some way to providing the reader with a glimpse into the cruelty of the slave trade, to the impossible conditions of the frontier, and to the racism that underlined seemingly every moment of existence.  There are moments where VanderVelde’s understated writing style achieves this end almost without being remarkable: “For white folks, New Year’s was a day of visiting; for black folks, New Year’s brought the annual spectacle of the slave leasing auction on the courthouse steps” (247).  (The semi colon in this sentence, linking and yet keeping visibly distinct the different realities seems particularly apt.)  I longed, sometimes for greater connection to the critical race literature and yet was heartened at least to notice that VanderVelde finds some inspiration in the work of subaltern scholars, for example, Gayatri Spivak (see note 9, Introduction).

Ultimately, Mrs. Dred Scott remains an account of Harriet that never becomes a story.  But it is an account that shapes the tale of a period of history in ways that will change the way we think about it.