Weekend Roundup

• Around the web, friends and admirers continue to pay tribute to Pauline Maier (1938-2013). MIT's obituary is here; the New York Times write-up is here; the Washington Post's, here. Chris Beneke penned a nice note here, at the Historical Society. (A taste: "Maier treated her fellow historians with the same honest consideration that she tendered her historical subjects, remaining ever open to the possibility that the lowly might possess more insight than their better appointed counterparts (as well as the possibility that they might be out of their senses).").

• I love the opening to this op-ed, by Catherine O'Donnell (Arizona State University): "I am an historian with a secret. I don’t think studying the past tells us what to do in the present. I should qualify that: If you are considering whether to invade Russia in winter, history provides the answer." The rest is good, too. (Hat tip- History News Network) (KMT)

• From In Custodia Legis: a compilation of unusual (from today's perspective) and now defunct laws from the United Kingdom, including "the common law offense of being a 'common scold'" and the statutory offense of gambling in a library. 

• The Summer 2013 issue of Common-place is out. Readers may be interested in Edward M. Griffin's contribution, "A Loyalist Guarded, Re-guarded, and Disregarded: The Two Trials of Mather Byles the Elder."

• From the Atlantic: "Civil Rights, Cambodia, and Cuba: Memos That Made History. A newly released collection of legal documents reveals what high officials thought about the major events of their times."

• The Spring 2013 issue of Canadian Issues includes a few articles of interest, one on federalism and one on human rights law. (Hat tip: Canadian Legal History Blog)

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Historians Weigh in on the Marriage Equality Decisions

George Chauncey has an op-ed in the New York Times (hat tip: H-Law)

Mary Dudziak comments at Balkinization.

Readers may also be interested in these articles from the History News Network:

• "Committee on LGBT History: We Are Proud Historians Helped Make DOMA/Prop. 8 Decisions Possible"

• "Historians Played Important Role in DOMA Decision."

Pfander and Nazemi Revise Frankfurter on the Anti-Injuncton Act of 1789

We have previously noted the posting by James E. Pfander and Nassim Nazemi, Northwestern University School of Law, of Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793.  They now return with The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap, which is forthcoming in the Texas Law Review.  Here is the abstract:

Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account.

In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification.

We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.

Weekend Roundup

• On June 27, 2013, Morehead State University will host a Federalism Symposium featuring "academic presentations of research from scholars across the nation with expertise on federalism and intergovernmental relations." For information on how to submit a proposal, follow the link. (Hat tip: H-Law)

• The latest issue of the Journal of Legal Education contains several reviews of interest: Laurie L. Levenson (Loyola Law School, Los Angeles) reviews The People's Courts: Pursuing Judicial Independence in America, by Jed Handelsman Shugerman; Mónica Pinto (University of Buenos Aires Law School) reviews The Human Rights Culture: A Study in History and Context, by Lawrence M. Friedman; and Thomas E. Baker (Florida International University College of Law) reviews Five Chiefs: A Supreme Court Memoir, by John Paul Stevens.

• Via the Historical Society: "The New York City Municipal Archives has put on-line more than 800,000 images." Check them out here.

• All you doctoral students working on immigration law and related topics: "The Immigration and Ethnic History Society announces its first annual award for an outstanding dissertation in the field of immigration and ethnic history." Follow the link for more. (Hat tip: H-Law)

• Marc Lender discusses his book on Gitlow v. New York in Kansas's Landmark Law and American Society series here.

•  From the new Environment, Law and History blog: a post on environmental history and capitalism in the Supreme Court's recent patent decision (Monsanto v. Bowman).

• "In a meadow on the banks of the Thames a King and his barons made peace on June 15th, 1215 through a great charter or "Magna Carta."  Little did they know that they were laying the foundation for future democracies through a simple but unbreakable idea that would endure for centuries: that no one, not even a King, is above the law of the land." Want more of the same?  Go to London this summer on Pepperdine Law's week-long study abroad program, English Legal History in the 800th Anniversary of the Magna Carta"

The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Pfander and Nazemi on the Anti-Injunction Act of 1793

James E. Pfander and Nassim Nazemi, Northwestern University School of Law, have posted Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793, which is forthcoming in the Northwestern University Law Review.  Here is the abstract:    

Adopted in 1793, the Anti-Injunction Act (AIA) has come to symbolize the early republic’s concern with protecting state court autonomy from an overbearing federal judiciary. Most modern observers encounter the AIA and its seemingly absolute prohibition of “writs of injunction” to stay state court proceedings as an absolute barrier to federal interposition. Whatever their view of the rise of judge-made exceptions to the AIA, all agree that the origins of the Act were, as the Supreme Court itself observed, “shrouded in obscurity.”

In an effort to peel back the obscuring shroud, we return to an eighteenth century world in which separate courts of law and equity exercised concurrent jurisdiction over the same dispute and courts of equity secured their role through the almost-routine issuance of injunctions to stay proceedings at law. An excellent example of such stay litigation, and the likely trigger of the AIA’s adoption, unfolded in the North Carolina state and federal courts, as the Pennsylvania-based financier and founder Robert Morris attempted to stay the enforcement of an adverse state court judgment.

Far from obscure, we find that the language of the AIA was likely drafted to address the specific problem of federal-state concurrency laid bare in Morris’s case, Morris v. Allen. By limiting its restriction to “writs of injunction,” the AIA barred original federal interposition but left the federal courts free to issue ancillary stays to protect federal jurisdiction and federal decrees. Reclaiming this lost distinction between original and ancillary injunctive relief calls for a fundamental reconsideration of the place of the 1793 Act in the legislative output of the early republic. Far from the absolute bar that it later became in the hands of twentieth century jurists such as Felix Frankfurter, the 1793 Act was drafted to provide a nuanced solution to a very real problem of federal-state judicial relations that the merger of law and equity has since obscured from view.