Chetail on the American Reception of Vattel

Credit: Wikipedia

Vincent Chetail, Graduate Institute of International and Development Studies (Geneva), has Vattel and the American Dream: An Inquiry into the Reception of the Law of Nations in the United States, which appears in The Roots of International Law: Liber Amicorum Peter Haggenmacher, ed. V. Chetail and P.-M. Dupuy (Martinus Nijhoff, 2013), 251-300. Here is the abstract:    
posted

No other book on international law has been more widely read and cited than The Law of Nations by Vattel. The present article identifies and analyses the various reasons that explain Vattel’s authority in the United States. It first retraces his influence on the Founding Fathers, on the subsequent diplomatic and judicial practice, and on the legal doctrine in the United States. The article then examines his conception of national sovereignty as the most decisive reason explaining Vattel’s influence in the United States and the overall impact of his work.

Wang and Mizner, "The Rise of the Security State"

Yuhua Wang (University of Pennsylvania) and Carl F. Minzner (Fordham University - School of Law) have posted "The Rise of the Security State." Here's the abstract:

Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that the origin of these changes lies in a policy response to the developments of 1989-1991, namely the Tiananmen democracy movement and the collapse of Communist political systems in Eastern Europe. Over the past twenty years, these practices have flowered into an extensive stability maintenance apparatus, where local governance is increasingly oriented around the need to respond to social protest, whether through concession or repression. Chinese authorities now appear to be rethinking these developments, but the direction of reform remains unclear.

The full paper is available here, at SSRN.

Hat tip: Legal Theory Blog

Legal History Scholarship at the Association for the Study of African American Life and History Annual Meeting

Among the most interesting experiences I had in working on Defining the Struggle were invitations to attend meetings of the Association for the Study of African American Life and History (ASALH), an important forum for exchange of ideas about African American history, civil rights history, and the history of race and the law. ASALH held its 98th annual convention in October of this year in Jacksonville, Florida. I am always honored to be invited, as I was this year to present from my book. Also on my panel was Pippa Holloway, presenting from her newly released book from Oxford University Press on the history of felon disfranchisement. R. Volney Riser’s paper on a failed attempt at test case collaboration between W.E.B. Du Bois and Booker T. Washington’s lawyer, Wilford Smith, was ably read by graduate student Joshua Crutchfield. Dr. Gregory Mixon, a scholar of progressive era African American history, gave insightful commentary.

Another terrific panel I attended featured law professors Steven Hobbs, Wendy Greene, and Deleso Alford. At another fascinating panel, Bob Cottrol, author of The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere (2013) (recently highlighted at the ASLH conference) chaired, while Stephen Middleton presented a revisionist history of the one-drop rule, arguing that the law defining racial classifications was more entrenched at the trial court level, at a much earlier date, that scholars focused on appellate case law have previously supposed. Erica Cooper presented a paper rich in primary sources entitled “Defining Whiteness: The Rhetoric of Race in the Twentieth Century.” All of these papers seemed important for legal historians to note. Another important session undertook a retrospective of August Meier’s work, as I will discuss further tomorrow . . .

Responses to Twitter Q&A with Nick Parrillo

We recently invited readers to participate in a Twitter interview with Yale Law School's Nicholas Parrillo (his recent LHB posts are available here). Twitter aficionado and former LHB guest blogger Joshua Stein (@LawHistory) collected the questions last week. Today he posted Professor Parrillo's tweet-length responses. As promised, here's the full interview:

PREFATORY THANK-YOU (in 1 tweet):

before giving my responses, a big thanks to @lawhistory for doing the interview and everyone for such interesting (& succinct!) questions

QUESTION 1

from @kylefgraham

to what extent did the designers of for-profit systems account for distortions that the profit motive might create?

ANSWER 1 (in 2 tweets):

@kylefgraham designing incentives rationally was major challenge, esp. for legislatures that oft lacked info to do it well, but...1/2

@kylefgraham...some attempts were sophisticated e.g. if navy too focused on taking merchantmen, offer competing bounty to sink warships 2/2

Kellogg on Legal Uncertainty in Pragmatism's Formative Years

Frederic R. Kellogg, George Washington University, has posted The Social Dimensions of Legal Uncertainty: Reconciling Law and Science in the Formative Years of Pragmatism, which is forthcoming in the European Journal of Pragmatism and American Philosophy.  Here is the abstract:

Nineteenth-century references to the syllogism by J.S. Mill and Oliver Wendell Holmes Jr. reveal a distinct approach to the logic of inference in the formative years of pragmatism. In the latter may be found an element of the emergence of generals from particulars. Fallibilism in law and science reflects their social dimension as part of the communal ordering of experience. This implies a distinct approach to uncertainty, as experience yet to be integrated within a developing system of classification.

The paper’s epigraph is a quotation from J. S. Mill’s System of Logic that, Mill to the contrary notwithstanding, was news to me:

Almost everyone knows Lord Mansfield’s advice to a man of practical good sense, who, being appointed governor of a colony, has to preside in its courts of justice, without previous judicial practice or legal education. The advice was to give his decision boldly, for it would probably be right, but never to venture on assigning reasons, for they would almost infallibly be wrong.

Two Articles from the Garrow Backlist

David J. Garrow, Research Professor of History and Law at the University of Pittsburgh, has posted two articles from his backlist on SSRN. 

Bad Behavior Makes Big Law: Southern Malfeasance and the Expansion of Federal Judicial Power, 1954-1968,  St. John's Law Review 82 (2008):

The story of the Warren Court’s impact on the U.S. South is of course far larger and more wide-ranging than just the direct legacy of Brown v. Board of Education. Indeed, this is a question of not just “Beyond Brown,” or, better yet, “Beyond Brown and Baker,” but of appreciating how the obstructive behavior of the South, in the face of Warren Court rulings, affected the wider judicial decision-making of the Court just as much as the Court’s holdings altered so many aspects of southern life, both public and private.

Brown is a major part of that story, as is Baker and its decisive, Deep South progeny, Reynolds v. Sims. Yet there are at least four other important and often-overlooked chapters in this story as well: first, the Court’s own frightful and halting behavior in other, little-known and sometimes tragic race cases in the immediate wake of Brown; second, the ways in which the Court’s belief in racial equality significantly spurred its efforts to reform criminal justice procedures nationwide; third, the tremendously under-appreciated manner in which the activism of the southern Black freedom struggle stimulated the Court to vastly expand federal judicial jurisdiction in ways that helped protect the constitutional rights of any citizen prosecuted in a southern state court; and fourth, the degrees to which even ostensibly unrelated areas of substantive federal law, ranging from First Amendment rights of association, to the law of libel, to the procedural protections afforded public aid recipients, all were likewise transformed on account of the collision between the Warren Court and white public authorities in the South. All told, that larger story is one whose scope far exceeds the standard narrative about Brown and race, or even the more expansive one about Brown and Baker’s explicitly shared grounding in the fundamental guarantees of the Equal Protection Clause.

Foreshadowing the Future: 1957 and the United States Black Freedom Struggle, Arkansas Law Review 62 (2009):

On January 1, 1957, Martin Luther King, Jr. addressed a 7000-person NAACP Emancipation Day benefit rally at Atlanta’s Big Bethel AME Church. Titling his remarks “Facing the Challenge of a New Age,” King declared that he and his listeners were living in “an age in which a new world order is being born . . . The old order of colonialism is passing away, and the new order of freedom and equality is coming into being . . . ” A new world was dawning in the United States as well, King said, thanks to the Supreme Court’s 1954 ruling in Brown v. Board of Education. “[A]s a result of this decision,” King stated, we can “gradually see the old order of segregation and discrimination passing away and the new order of justice and freedom coming into being.”

The events of 1957 across the South, and in Washington, foreshadowed a future in which two successive Presidents overcame the racial ambivalence that had constrained Dwight D. Eisenhower’s Oval Office behavior. Once the determined southern black activism symbolized by King finally won the committed support of first John Kennedy, and then far more so Lyndon Johnson, the transformative promise so richly visible throughout 1957 burst forth in full flower in 1964 and 1965.

King had been right on that New Year’s Day to call that forthcoming transformation inevitable, even if he could not then fully foresee how long it would take, the price to be paid, or the ineluctable limits — as Bayard Rustin was beginning to teach him — of a social metamorphosis that would come to be defined wholly in racial rather than economic terms. That future may have been inexorably constrained in ways that King could only dimly discern, but the events of 1957 foreshadowed that future more than any previous year in American history.

A Centennial View of Robert H. Jackson's Admission to the Bar

Robert H. Jackson, 1937 (LC)

John Q. Barrett, St. John’s Law, has sent word to The Jackson List, that documents relating to Robert H. are now accessible on the website of the Robert H. Jackson Center in Jamestown, NY, “in this centennial anniversary of Jackson’s admission to law practice.”  The documents were recently released by New York’s Appellate Division, Fourth Department.  Barrett identifies the documents as:
Jackson’s admission to the bar,

• the New York State Board of Law Examiners’ certification that Jackson had passed its bar examination (Oct. 15, 1913);

• Jackson’s character statement (Nov. 13, 1913);

• Ben Dean’s affidavit regarding Jackson’s character and fitness to practice (Nov. 13, 1913);

• Frank Mott’s affidavit regarding Jackson’s character and fitness to practice (Nov. 14, 1913);

• the Appellate Division’s order admitting Jackson to practice (Nov. 24, 1913); and

• Jackson’s signature on the Court’s Roll of Attorneys (Nov. 24, 1913).

Barrett adds, "I encourage you to click into the documents and explore them—they are interesting as historical records, and of course as Jackson artifacts."

Pilarczyk on the Judicial Response to Child Abuse in 19th-Century Montreal

Ian C. Pilarczyk, Boston University School of Law, has posted "To Shudder at the Bare Recital of Those Acts": Child Abuse, Family, and Montreal Courts in the Early Nineteenth Century, which appears in Essays in the History of Canadian Law, vol. XI: Quebec and the Canadas, ed. G. Blaine Baker and Donald Fyson (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2013), 370-426.  Here is the abstract:

This paper uses archival and other primary sources to reanimate the judicial response to child abuse by family members in Montreal for the period 1825-1850. In a period before the operation of child protection agencies, the records reveal a tentative but growing engagement with issues related to child abuse and a limited judicial response to impose limitations on parental authority. Parents and guardians were prosecuted and imprisoned for a range of offences, including assault, aggravated assault, ill-usage, and attempted murder. While incest was not a cognizable offence during this period, the judicial archives also reveal some evidence of the existence of incest as a social phenomenon, as well as some prosecutions (generally brought under the charge of ravishment or, more unusually, abduction). This paper contributes to our understanding of Quebec socio-legal history for an understudied time period, and adds dimension to our understanding of the manner in which the legal system grappled with compelling social phenomena before widespread legislative or public action on these issues.

Books that Shaped Work in America

As part of its centennial, the US Department of Labor, in partnership with the Center for the Book in the Library of Congress, has launched Books that Shaped Work in America.

The web-based project . . .  launched today as part of the department's ongoing

commemoration of its 100th anniversary, aims to engage the public about the Labor Department's mission and America's history as a nation of workers as portrayed through published works.

"The Books that Shaped Work in America initiative explores the dignity of work and our progress in expanding America's fundamental promise of opportunity for all through the lens of literature," said U.S. Secretary of Labor Thomas E. Perez. "Think of this effort as an online book club where people from all walks of life can share books that informed them about occupations and careers, molded their views about work and helped elevate the discourse about work, workers and workplaces. At the same time, the site provides a unique way for people to learn about the mission and resources of the U.S. Department of Labor."

Work, like our nation, is constantly evolving, and so Books that Shaped Work in America is no different. To get it started, 24 individuals, including Perez, eight former secretaries of labor from both Democratic and Republican administrations, department staff (including an intern), civil rights leaders, critics, authors, media personalities and staff from the Library of Congress submitted suggestions. Among the contributors: former Secretaries of Labor George P. Shultz and Robert Reich, authors Daniel H. Pink and Joan Acocella, Solicitor of Labor M. Patricia Smith, Liz Claman of Fox Business News, President of the National Urban League Marc Morial and Scott McGee of Turner Classic Movies. Their recommendations are included on the initiative's website, along with brief summaries of each book and links to related U.S. Department of Labor resources.

Now the public is invited to expand the list. A simple, online form, which can be found [here] makes it easy for anyone to suggest a book.

Not many of the initial 100 titles touch on legal history, even generously defined, but see The Federalist, William Serrin's Homestead, the Webbs’ Industrial Democracy, George Martin's Madam Secretary (although not Frances Perkins's own The Roosevelt I Knew), Ben Hamper's Rivethead, Peggy Noonan’s When Character Was King, and Justice Sotomayer’s My Beloved World.  (I know: I rolled my eyes at some of these, too.)  Feel free to make your own suggestions, especially as I did not recognize any professional historians among the contributors.  (Apologies to anyone I overlooked.)  I believe I’ll nominate Frankfurter and Greene’s Labor Injunction and, to keep things "fair and balanced," Sylvester Petro’s Kohler Strike.

New Release: "Winning While Losing: Civil Rights, the Conservative Movement, and the Presidency from Nixon to Obama"

The University Press of Florida has announced the release of Winning While Losing: Civil Rights, the Conservative Movement, and the Presidency from Nixon to Obama, a collection of essays edited by Kenneth Osgood and Derrick E. White. The Press describes the collection as follows:

During the four decades separating the death of Martin Luther King and the election of Barack Obama, the meaning of civil rights became increasingly complex. Civil rights leaders made great strides in breaking down once-impermeable racial barriers, but they also suffered many political setbacks in their attempts to remedy centuries of discrimination. Complicating matters, the conservative turn in American political life transformed the national conversation about race and civil rights in surprising ways.

This pioneering collection of essays explores the paradoxical nature of civil rights politics in the years following the 1960s civil rights movement by chronicling the ways in which presidential politics both advanced and constrained the quest for racial equality in the United States.

A few blurbs:

"Eschewing easy absolutes, Winning While Losing presents a carefully nuanced interpretation of the subtle gains and losses experienced by liberals and conservatives, by Democrats and Republicans, and by proponents of racial justice and their opponents."--Harvard Sitkoff

"A comprehensive account of the links between racism, conservatism, and presidential politics in the post-civil rights era."--Greta de Jong

LHB readers may be particularly interested in the contributions by Mary Frances Berry (University of Pennsylvania) ("Ronald Reagan and the Leadership Conference on Civil Rights: Battles Won and Wars Lost") and Charles Zelden (Nova Southeastern) ("Old Vinegar in a New Bottle: Vote Denial in the 2000 Presidental Election and Beyond"). 

Le Bris on Law and Finance Theory in Old Regime France

David Le Bris, BEM Bordeaux Management School, has posted Customary versus Civil Law within Old Regime France.  Here is the abstract:

Law and finance theory emphasizes the negative consequences of civil law on financial and, subsequently, economic development. Before the Revolution, French territory was strictly divided according to the legal regime. Since the Middle-Ages, the southern part of France was under Justinian civil law and the north was under customary laws which, as with common law, gave more flexibility to judges and less right to the state. This dichotomy offers the unique opportunity to test the law and finance theory free from cross-country bias. Using fiscal revenues across 79 Departments from 1817-1821, we test if Departments under civil law, over the centuries and up to 15 years ago, exhibit lower financial and economic outcomes. We find that civil law Departments do exhibit lower economic performances but this difference is not robust when controlled for fundamental factors. The civil law appears even to have a positive effect in many specifications. Old Regime France does not confirm the law and finance theory.

West, "Toward a Jurisprudence of the Civil Rights Acts"

Robin L. West (Georgetown University Law Center ) has posted "Toward a Jurisprudence of the Civil Rights Acts." Here's the abstract:

What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding -– basically, that “civil rights” are “antidiscrimination rights” -– is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself.

Banzhaf on the History of the "Value of Statistical Life"

As a torts professor and an historian of regulation, I was intrigued by this paper, but I imagine it may also interest those who study late-twentieth-century legal thought, historical approaches to risk, and the relationship between warfare and welfare: H. Spencer Banzhaf (Georgia State University) has posted "The Cold-War Origins of the Value of Statistical Life (VSL)." Here's the abstract:

This paper traces the history of the "Value of Statistical Life" (VSL), which today is used routinely in benefit-cost analysis of life-saving investments. Schelling (1968) made the crucial move of thinking in terms of risk rather than individual lives, with the hope to dodge the moral thicket of valuing "life." But as recent policy debates have illustrated, his move only thickened it. Tellingly, interest in the subject can be traced back another twenty years before Schelling's essay, to a controversy at the RAND Corporation following its earliest application of operation research to defense planning. RAND wanted to avoid valuing pilot's lives, but the Air Force insisted they confront the issue. Thus, the VSL is not only well acquainted with political controversy; it was born from it.

The full paper is available here.

If you're not acquainted with the VSL and its current role in U.S. law and policy, here's some basic information, from Syracuse University's "Value of Statistical Life" research project:

In economic terms the Value of a Statistical Life (VSL) is the amount of money a person (or society) is willing to spend to save a life. Since there is no formal market for lives, the only way to measure the VSL is through indirect methods (e.g., surveys or observed human behavior in risky environments). . . .  Understanding the value of life is important for government policies where citizens' lives are at risk or where the goal is to save lives. . . . In fact, the U.S. Environmental Protect Agency and the U.S. Office of Management  & Budget have specific guidelines for the VSL.

Constituting Federalism: An ICH Seminar

[We're moving this up, as the deadline of December 15 is approaching.]

Our friends at the Institute for Constitutional History have sent us news of another Robert H. Smith seminar for advanced graduate students and junior faculty, "Constituting Federalism":

The ideas denoted by the term "federalism" have been central to the American constitutional order, and federalism as a political form plays an increasingly important role around the world. This seminar will focus on the United States constitutional experiences with federalism, a term not mentioned in the U.S. Constitution, but one that has, since the second half of the twentieth-century, become frequently invoked in constitutional discourse. Federalism is proffered as an explanation when justices approach questions of whether to override congressional judgments about the deployment of national powers or to preclude states from regulating particular arenas. Beneath the mix of interpretations of the Constitution and the sometimes dry discussions of jurisdictional rules and doctrines of comity lie conflicts about equality, immigration, criminal procedure, regulation of the economy, protections to be accorded workers and consumers, and the authority of states, Indian tribes, and localities. These will be the subjects of discussion at the seminar.

The instructors can’t be beat.  Judith Resnik, the Arthur Liman Professor of Law at Yale Law School, will chair the sessions, She will be joined, at different sessions, by Michael Graetz, the Wilbur H. Friedman Professor of Tax Law at Columbia Law School; Linda Greenhouse, the Joseph Goldstein Lecturer in Law at Yale Law School (and emerita at the New York Times); Vicki C. Jackson, the Thurgood Marshall Professor of Law at Harvard Law School; and Charles W. McCurdy, Professor of History and Professor of Law at the University of Virginia.

The seminar will meet Friday afternoons, 2:00-5:00 p.m., February 7, 14, and 21, and 28 at the New-York Historical Society, 170 Central Park West, N

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at MMarcus@nyhistory.org until December 15, 2013.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own. Modest assistance with travel expenses from outside the New York metropolitan area will be available.

Brady on Community Knowledge and Land Use in Early New Haven

Maureen E. Brady, a Ph.D. in Law candidate at Yale, has posted Community Knowledge and Its Collapse: History of an Early American Property Regime.  Here is the abstract:

During the seventeenth and eighteenth centuries, American colonists often planned new towns and cities without the use of formal institutions or comprehensive plans. The plans produced by these methods sprouted up in town after town: oddly-shaped farm lots and irregular street grids dominated the landscapes of early cities like Boston, New York, and Hartford. Although scholars and theorists have roundly criticized the informality of these early property systems, no one has explored their inner workings – or when and how these regimes changed to resemble the formal and comprehensive property systems we use today. This paper tells the story of the property regime of one early American city – New Haven, Connecticut – that was built without the benefit of formal legal institutions. It examines the critical role of the close-knit community in land distribution, street planning, land transactions, and property litigation in early New England, and it explores how New Haven moved toward a more formal regime as its increasing population put significant strain on the old ways. Though informal property regimes may not be normatively desirable in the long term, original research in this study suggests that these systems undeniably worked for the small colonial populations they served and that they were able to adapt under the pressure of a growing populace.

New Release: Chambers-Letson, "A Race So Different"

New from New York University Press: A Race So Different: Performance and Law in Asian America (2013), by Joshua Takano Chambers-Letson (Northwestern University). The Press describes the book as follows:

Taking a performance studies approach to understanding Asian American racial subjectivity, Joshua Takano Chambers-Letson argues that the law influences racial formation by compelling Asian Americans to embody and perform recognizable identities in both popular aesthetic forms (such as theater, opera, or rock music) and in the rituals of everyday life. Tracing the production of Asian American selfhood from the era of Asian Exclusion through the Global War on Terror, A Race So Different explores the legal paradox whereby U.S. law apprehends the Asian American body as simultaneously excluded from and included within the national body politic.

Bringing together broadly defined forms of performance, from artistic works such as Madame Butterfly to the Supreme Court’s oral arguments in the Cambodian American deportation cases of the twenty-first century, this book invites conversation about how Asian American performance uses the stage to document, interrogate, and complicate the processes of racialization in U.S. law. Through his impressive use of a rich legal and cultural archive, Chambers-Letson articulates a robust understanding of the construction of social and racial realities in the contemporary United States.

More information, including the introduction and TOC, is available here.
Hat tip: Hidetaka Hirota, via Twitter.

New Paths in Civil Rights Historiography: The Goluboff/Mack Exchange

In a Legal History Blog post last summer, Tomiko Brown-Nagin noted the interesting exchange between Risa Goluboff’s "Lawyers, Law and the New Civil Rights History" in Harvard Law Review 126:2312 (June 2013) (reviewing Ken Mack’s Representing the Race: The Creation of the Civil Rights Lawyer), and Ken Mack’s reply, titled "Civil Rights History Old and New." Dan Ernst wrote to “second Tomiko on the importance of this exchange,” designating it “the likely point of departure for the legal historiography of the civil rights movement for the foreseeable future.” I agree. Here is my take on the significance of this exchange, excerpted from my forthcoming essay, “Conceptions of Agency in Social Movements Scholarship,” in Law & Social Inquiry 39:2.

“In her review of Mack’s new book, Goluboff lays out with great synthetic skill several main traditions of civil rights history scholarship in relation to which Mack’s book must be located. The first is what she calls the ‘old’ tradition, which has two strands: one a heavily court- and case-centered approach, exemplified by work such as Michael Klarman’s, and the other the perspective of social historians, which tends to give little attention to law and instead ‘focuses on the civil rights movement on the ground in particular communities.’ Goluboff then describes a third tradition, which she dubs the ‘new civil rights history.’ This approach, she explains, ‘has deliberately and self-consciously challenged the first literature by drawing on the second.’ It is, in other words, a synthesis of the two ‘old’ approaches, using ‘the sources and analytics of both legal and social history.’ Goluboff proceeds to analyze the characteristics of this new civil rights history in a summary that will surely be on the assigned reading list of many legal history seminars. At the end of her analysis, she suggests that Mack’s work fits into this ‘new’ civil rights history genre, but with some differences, such as that Mack places his lawyers mostly ‘in conversation with other lawyers and judges.’

In his response to Goluboff, Mack agrees with her contrast between the two ‘old’ schools rights historians, but argues that what Goluboff calls the ‘new’ school is today no longer so new. Instead, he argues, that approach involves criticisms that ‘most historians internalized’ long ago and have now ‘moved beyond.’ Mack sees himself as one such historian who is working in a genre that springs from newer theoretical work from the 1990s, which, he explains, expands civil rights history beyond boundaries of race, nation, and sexualities, and critiques ‘older law and society frameworks.’ Thus his work seeks to draw from ‘more recent intellectual currents’ and to respond to questions produced by ‘a globalizing world of shifting racial identities, contested sexualities, and new immigrant groups.’ Mack defines these new questions central to his book as ‘how law (in this case the legal profession) and identity (in this case, the identity of a black lawyer) help construct one another.’”

In my essay, I return to the classic identity theorists of the 1990s, such as Judith Butler, for insight into the theoretical underpinnings of Mack’s work. I argue that post-modernist identity theory does define new paths for legal civil rights historiography, and that Mack’s work is leading the way in taking these new directions. I am wondering what others think?

New Robert F Kennedy Papers Open

The Robert F. Kennedy Papers are now more fully open to the public, the Boston Globe confirmed in an editorial published this morning.  Ethel Kennedy, the Senator's widow, and other members of the Kennedy family, had long sought to limit access to the papers by designating items "personal."  See "Kennedys Keep Vise-Grip on RFK Papers," Boston Globe, Aug. 5, 2012. However, after negotiations between the National Archives and the Kennedy family, an independent archivist reviewed the relevant papers and determined that only four of the sixty-two boxes of disputed materials should be deemed "personal" and closed to researchers on that basis. The newly accessible materials pertain to Robert Kennedy's service as Attorney General of the United States; documents in the collection concern military matters, intelligence issues, the aftermath of the assassination of President John F. Kennedy, and much more.  The papers are available for viewing at the John F. Kennedy Presidential Library and Museum in Boston. Additional coverage of the papers and of their release is available here.

Sunday Book Roundup

Patrick Weil's The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press) is reviewed in Law and Politics Book Review.

"French social scientist Patrick Weil has written a book that focuses on a seemingly minor aspect of U.S. immigration law: denaturalization policy, or the process by which one loses one’s American citizenship. Weil uses denaturalization policy as a vehicle to comment on other aspects of the American politics, most immediately the arbitrariness and politically contingent nature of one’s United States citizenship status, not just of immigrants, but also of native-born citizens. Weil notes that “Present–day Americans feel secure in their citizenship” (p.1). One comes away from the book having new appreciation for the precariousness of one’s U.S. citizenship and the ease at points in U.S. history when the government can arbitrarily revoke one’s citizenship, thereby possibly rendering even a native-born citizen effectively stateless."

This week H-Net has added several new reviews, including a review of Michael David Cohen's Reconstructing the Campus: Higher Education and the American Civil War (University of Virginia Press), a review of David Chalmers's And the Crooked Places Made Straight: The Struggle for Social Change in the 1960s (Second Edition, Johns Hopkins University Press), a review of Christopher Heath Wellman and Phillip Cole's Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford University Press), and a review of Nick Vaughan-Williams's Border Politics: The Limits of Sovereign Power (Edinburgh University Press).


Brian Z. Tamanaha's Failing Law Schools (University of Chicago Press), has also been reviewed. Reviewer Steve Sheppard writes,

"U.S. law schools are under pressure. A drumbeat of criticism against the national enterprise of legal education labels it a “scam”; a confidence game; and, for a few schools, actionable fraud.[1] That criticism may have struck a chord among potential students: as of 2013, applications to law schools in the United States had fallen by 32 percent from 2010, leading some critics to rejoice.[2] Failing Law Schools is a centerpiece of this movement, hailed for its “disturbing, scandalous truth” about legal education (back cover).[3] In it, Brian Z. Tamanaha, a law professor at Washington University at St. Louis, offers criticism and calls for change, based on observations intermixed with claims from economics and the history of legal education."

Yet another H-Net review is that of Nancy Beck Young's Why We Fight: Congress and the Politics of World War II (University Press of Kansas). The book "closely examines the key legislative issues of the mid-twentieth century, and the means by which a very different congressional structure succeeded and failed in attempts to address them." And, it "is thoroughly researched and well footnoted. It is not an especially easy read, as it assumes a fair knowledge of the personalities and issues that it addresses. In that regard, however, it is entirely appropriate for a graduate reading course in political science, and is highly recommended for anyone with a special interest in the subject."

Often in the Book Roundup we post interviews from NewBooksinHistory.com. Don't miss this week's interview with our guestblogger, Susan Carle, about her new book Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford). And, don't forget that they're looking for a new interviewer for New Books in Law.

Roundtable on Legacy of Pauline Maier

The bloggers over at The Junto have put together a terrific roundtable on the legacy of Pauline Maier. Here are links to the contributions:

Introduction (Michael D. Hattem)

The New Old Revolutionaries (Sara Georgini)

Cold Water and Living Documents (Roy Rogers)

Pauline Maier and the Republican Revolution (Michael Bleakman)

Rough and Ready and Real (Ken Owen)

Big thanks to The Junto for putting this together!

Weekend Roundup

• Earlier this week we noted the passing of beloved historian Michael G. Kammen. Over at the Historical Society, Randall Stephens has posted a 2010 essay that Kammen wrote for a Historically Speaking roundtable on teaching the art of writing.

• Via ConSource: a glimpse of the Constitution-related programming at the upcoming Meeting of the American Historical Association. 

• From the blog of the European Society for Comparative Legal History we have word that the Sarton Committee at Ghent University awarded this year's Sarton Medal for Legal History to Professor Heiner Lück (Halle-Wittenberg).

• According to the Chronicle of Higher Education, "Most History Ph.D.'s Have Jobs, in Academe and Other Solid Occupations" (or, phrased differently, via History News Network, "Slim Majority of History PhDs Hold Tenure-Track Jobs").
  
  lim Majority of History PhDs Hold Tenure-Track
  Slim Majority of History PhDs Hold Tenure-Track Jobs - See more at: http://hnn.us/article/154100#sthash.1DxrYohJ.dpuf

•  The National Archives has announced that the last 26 boxes from Robert F. Kennedy's time as Attorney General are now open to researchers.

•  If you missed it on H-Law,  Steve Sheppard’s review of Brian Z. Tamanaha's Failing Law Schools, is here.  Professor Sheppard draws upon his research into the history of legal education.

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

Garner to Speak on His Book Collection at YLS

 [Via H-Law we have news of an event at the Yale Law School relating to rare books in the law.]

Bryan A. Garner, the world's leading legal lexicographer, will give a talk on Monday, December 9, about the exhibit of association copies from his private book collection, which is currently on display in the Lillian Goldman Law Library, Yale Law School.

Garner, Editor in Chief of Black's Law Dictionary, has amassed a private collection of 36,000 books. He is particularly drawn to "association copies," books once owned or inscribed by their authors or other significant individuals. The inscriptions, says Garner, are an "ineffable connection" with those who once signed or owned the book.

Garner's talk is scheduled for 1pm on December 9 in Room 128 of the Yale Law School, 127 Wall Street in New Haven. A limited number of exhibit catalogues will be available for those who attend the talk.

The exhibit, Built by Association: Books Once Owned by Notable Judges and Lawyers, includes books inscribed by John Jay, the first chief justice of the U.S. Supreme Court, and Clarence Darrow, the most famous trial lawyer in American history. Other notable figures include Supreme Court Justices Oliver Wendell Holmes, Jr. and Benjamin Cardozo, and Lindley Murray, a lawyer best known as "the father of English grammar." Three of the authors taught at Yale Law School: Supreme Court Justice William O. Douglas, Judge Jerome Frank, and the iconoclastic Professor Fred Rodell.

Garner curated the exhibit, with assistance from Mike Widener, Rare Book Librarian in the Lillian Goldman Law Library.

The exhibit is open to the public, 9am-10pm daily, through December 18 on Level L2 of the Lillian Goldman Law Library, Yale Law School.

Finance in Religious Law: A Conference at HLS

We have word of “Finance in Religious Law: A Comparative Conference: Judaism, Christianity, Islam,” to be held in the Wasserstein Hall, Caspersen Student Center and Clinical Wing (WCC Building), Milstein West, Room 2019, Harvard Law School, on December 10-11:

The legal systems of Judaism, Islam, and Catholic Christianity each regulate financial transactions in the light of a divine ethical imperative to avoid lending at interest. Yet each has also developed practical, legal means to facilitate a wide range of investment opportunities. The convergence of common ethical aspirations and practical concerns, and the divergence in historical experiences, together present a nearly unique opportunity for comparative study. The papers prepared for this comparative conference will consider both the history and the contemporary practice of religious-legal engagement with finance. Special attention will be paid to the different institutional mechanisms for dealing with questions of law, ethics, and practical necessity. The relationship between revealed religion, legal reasoning, and ethical-moral considerations will also constitute a major theme. A further essential theme will be the question of contemporary observance of the dictates of traditional religion and the efforts of religious institutions to engage contemporary realities.

Schedule after the jump.

The New England Quarterly Seeks an Editor

The New England Quarterly Inc., the administrative governing board of The New England Quarterly, invites inquiries from individuals interested in editing and colleges, universities, or cultural organizations interested in hosting the journal as of 1 July 2015, when the current editor steps down. The directors of NEQ Inc. will consider any viable arrangement (multiple editors, a partnership among multiple institutions, the participation of independent scholars, etc.) that advances the mission of the journal to publish the best that is being written about New England literature, history, and culture and their relation to the United States and the world. Our search is nationwide.

A storied journal with nearly a century of uninterrupted publication, The New England Quarterly was founded at Harvard University in 1928 as a multidisciplinary contribution to the emerging American studies movement. It resided at Bowdoin College from 1945 until 1981, when it moved to Northeastern University. As its subtitle announces, NEQ is A Historical Review of New England Life and Letters. Although it publishes most widely in the fields of American history (political, social, intellectual, religious, economic) and literature, NEQ also includes art and architectural history. Embracing and eclectic in its approach to the study of New England, the journal is not restricted to any particular time period. Recent issues have featured essays rooted in African American and Native American studies; women’s, gender, and sexuality studies; disability studies; environmental studies; book history and print culture; politics; law; and religion.

“Each new generation must rewrite history from its own point of view,” the journal’s founding editors wrote in the NEQ’s first issue. After its long-lived and successful runs at Bowdoin and Northeastern, the NEQ is well poised to accept the stamp of a new generation and to broadcast new points of view. NEQ has a loyal subscriber base and readership, and its electronic usage statistics are robust. With a stable corporate structure and a healthy stream of revenues and donations, the NEQ is financially secure; the next editor will have a generous and creative partner in NEQ Inc.

Individuals interested in serving as editor or coeditor of NEQ should address their preliminary inquiries to the NEQ Transition Team, c/o Sarah Hudson, The New England Quarterly, 249 Meserve Hall, Northeastern University, Boston, MA 02115, or at neq@neu.edu, no later than 1 February. A comprehensive packet of information is available for those seriously considering this exceptional opportunity. The deadline for receipt of final proposals (one electronic file and two hardcopies, addressed as above), including an institution’s initial, nonbinding offer of support, is 15 March 2014. The transition team will vet applications and send the most promising to NEQ Inc.’s Directors, who will negotiate final terms.

For more information, visit NEQ’s website at http://www.northeastern.edu/neq/ and our current content hosted by our publisher, MIT Press Journals, at http://www.mitpressjournals.org/loi/tneq. NEQ is also available via JSTOR.

Parrillo on the "De-Privatization of American Warfare"

Nicholas R. Parrillo, Yale Law School, has posted The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century, which first appeared in the Yale Journal of Law and the Humanities 19 (2007).  Here is the abstract:    

The American Privateer "General Armstrong" (LC)

The U.S. government has recently moved toward privatizing military services, most noticeably in Iraq, where profit-seeking contractors frequently engage in combat against insurgents. Many observers are shocked and disturbed by these developments, since they violate the governmental monopoly on military combat, which is probably the most accepted and intuitive aspect of the public-private distinction in America today. In fact, however, exclusive governmental control of combat is not an inherent nor even a particularly old part of the American experience. For much of U.S. history, one of the most important options in the nation's military repertoire was the use of privateers, that is, privately owned and operated ships, licensed to forcibly capture enemy merchant vessels and pocket the proceeds. Privateering constituted the principal U.S. offensive strategy in the maritime theater of the War of 1812 and was a major part of U.S. contingency planning through the Civil War. But sometime thereafter, the U.S. government ceased to consider the option. Thus far, no scholar has seriously investigated how and why the United States abandoned privateering. This Article fills the gap. It recreates the choice that the government faced, delineating how privateers differed from a public navy in terms of strategic capabilities, financing, technology, and the incentives and rules that operated on the persons who did the fighting, plus the institutions that enforced those rules. The Article concludes that privateering survived for so long -- in spite of persistent humanitarian objections that accountability structures were not sturdy enough to control the violence that privateers inflicted -- because the American people wished to avoid a large permanent military establishment, fearing that such an institution would be a menace to democracy. It was only in the 1890s, when the nation gave up its anti-militarist tradition and embarked on a program of imperial expansion overseas, that privateering proved functionally inadequate to the nation's new ambitions and therefore vanished from the realm of possibility.

Seeking Host for Podcast Series on New Books in Law/Legal History

Historian Marshall Poe, author of several highly respected books on Russian history, is also the creator of experiments in the use of new media to propagate intellectual discourse.  Among these is his exciting online series, the New Books Network, which consists of hour-long podcasts of authors discussing their new books.  Poe recently interviewed me about Defining the Struggle, and it was a terrific experience.  He mentioned that he is looking for a new interviewer for the series “New Books in Law,” and would also be open to a series entitled “New Books in Legal History.”  This would be a terrific opportunity for someone interested in discussing new work with leading authors; the commitment is to approximately one to two interviews per month, conducted on the phone and audio recorded via Skype.  Poe handles all the technical aspects of producing the podcasts for online presentation.  Interested persons should contact Poe at marshallpoe@gmail.com.

CFP: Inequality-themed meeting of the Social Science History Association

The Social Science History Association has issued a Call for Papers for its 39th Annual Meeting, to be held November 6-9, 2014, in Toronto, Ontario, CA.

Submission Deadline: February, 14 2014

Here's the call:

“Inequalities: Politics, Policy, and the Past”

Few problems have been more central to the work of social science historians than inequalities—whether our concern has been the social, political, and economic inequalities that divide people in the same country or the vast disparities of wealth, power, and military might that distinguish different countries and even regions of the world. In recognition of these long-standing interests, we seek panel proposals that consider the myriad ways that history, politics, and policy intersect to shape these inequalities as well as the equally numerous ways that these inequalities intersect to shape the development of history, politics, and policy. This is a topic that we construe broadly. We are interested not only in work that sets out to identify the causes and consequences of various inequalities but also work that is appropriately mindful of the nuance, complexity and ambiguity that inevitably attends the study of inequalities, such as the tensions that can arise between ambitions of equality and structures of inequality or the ways that clear political intentions can nevertheless lead to unintended policy consequences. We are interested in work that addresses the political construction of inequality and political challenges to it, exploring not only the role of formal politics, law-making, and policy implementation but also the role of informal politics and social movements. We are interested in work that explores the politics of inequalities over space and time and at different scales; that interrogates the relationship between the global, the national, and the local; and that examines the processes by which inequalities become embedded in place. We are interested in work on inequality that is sensitive to the ways in which state-building and policy-making are linked to the everyday rhythms of work and family life, the lived experience of class, gender, and race and ethnicity, the currents of popular culture, and the underlying trends and forces of demography. We are interested in work that comprehends the significance of politics and policy to the past as a process that is simultaneously top down and bottom up. 

Although the interest of social science historians in inequalities is not limited to a particular time or period, we also recognize that the year 2014 marks important anniversaries of a number of political moments that altered the politics of inequality worldwide, including the conclusion of the Haitian Revolution in 1804, the Peruvian war of independence in 1824, the Taiping Rebellion in 1864, the outbreak of World War I in 1914, and the U.S. government’s enactment of the GI Bill of 1944 and the Civil Rights Act of 1964. We are hence interested in paper panels that explore these or other comparable moments in time, which have not only functioned as hinges of history, altering its ongoing trajectory, but have also reflected and reinforced existing power relations and demographic dynamics. As these examples suggest, many state-building processes occurring in the wake of these moments have sought to broaden definitions of citizenship and economic security, but have instead often reinforced demographic and geographic inequalities. 

The 2014 Program Committee seeks panel proposals that speak to the theme of “Inequalities,” but we also welcome, as always, individual papers and panels on all aspects of social science history. (See the list of network organizers for the range of topics regularly engaged by conference panels.)

More information is available here.

Twitter Q&A with Nicholas Parrillo

If you enjoyed Nicholas Parrillo's recent posts and are interesting in being part of a more informal exchange about his work, head over to Twitter. Former LHB guest blogger Joshua Stein (@LawHistory) is collecting questions; Professor Parrillo will respond via Twitter next week. We'll post the entire exchange here.

You may ask your question via Twitter by responding to the call from @LawHistory. If you're not on Twitter, you may email Josh Stein directly. Just be sure to keep your question to 140 characters or less (so that it can be reproduced in a single tweet). He'll take questions through next Wednesday.

For more information about Professor Parrillo's new book, Against the Profit Motive, follow the link.

CFP: A Graduate Conference on Legal History

[We have the following CFP for a graduate student conference.]

The Law in Action: Re-Thinking the Boundaries of Law and Society,  April 18, 2014

Call for Papers: application deadline January 6, 2014

The law is everywhere. Few historians would deny law’s importance, whether interpreted as a safeguard of equality or an instrument of oppression. Yet, too often, legal history is considered the sole domain of scholars steeped in law’s inner workings.

By re-considering law’s role in society, this conference seeks to spark intellectual exchange across historical sub-fields and time periods. The conference will consider the law in its broadest sense, discussing civil law, ecclesiastical law, and written or unwritten notions of justice in diverse cultural contexts. This collective consideration of law’s role in society has the potential to transcend the divide between law and norms conventionally considered extra-legal, between legal history and other historical sub-fields, and between the study of law as text and law as cultural practice.

Keynote speaker Rebecca Scott (University of Michigan), guest commentator Mitra Sharafi (University of Wisconsin-Madison), and other faculty commentators will join graduate student presenters for dynamic cross-disciplinary conversation.

All with an interest in law, broadly defined, are encouraged to apply. Submissions might address, but are not limited to, some or all of the following questions:

• How does law help structure race, gender, sexuality, and other aspects of identity, including those often considered beyond law’s reach?

• When does law figure in historical processes, practices, and events conventionally considered extra-legal?

• How does the law contribute to equality or inequality?

• How might a broader consideration of law help to recast debates over historical causality and change?

If interested, please send a short (400 word maximum) paper abstract and CV to CCHS Graduate Fellow, Jesse Nasta (JesseNasta2013@u.northwestern.edu) by Monday, January 6, 2014. Please contact Jesse Nasta with any questions.

A committee of history faculty members will then select conference panelists. Selected participants will need to submit their final papers by or before Monday, March 31.

McLeod on the Origins of Consorting Laws

Andrew McLeod, Lady Margaret Hall, University of Oxford and University of Sydney Faculty of Law, has posted On the Origins of Consorting Laws, which appears in the Melbourne University Law Review 37 (2013).  Here is the abstract:    

Consorting laws have piqued the attention of Australian legislatures. In the last year alone, two states have re-enacted these offenses, which criminalize repeated association with criminals. Such measures, though, have a pedigree stretching over seven centuries. This article offers an historical analysis of consorting offenses, placing them in the context of a long line of statutes that criminalized the act of associating with undesirable classes of people. It traces their emergence from the beginnings of English vagrancy legislation in the late-medieval period, to early attempts in the Australasian colonies to suppress inchoate criminality, and then to 20th century efforts to tackle organized criminal activities. What emerges is that consorting offenses are neither a modern phenomenon nor one restricted to the antipodes.

Now on SSRN: Parrillo on the Rise of Legislative History

Although we posted a pointer to Nicholas Parrillo’s new article, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, as part of a farewell message, now that he’s posted it on SSRN, we are reposting the abstract.  It is in volume 123 of the Yale Law Journal.

A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents — a debate that has dominated statutory interpretation for a generation — cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable?

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user — a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Important On-Line Collections from the FDR Library

As a guy who spends a lot of time thinking about the New Deal, I was excited to learn that the Franklin D. Roosevelt Library’s collection of digitized material, FRANKLIN, has just gone online.  The following collections have been digitized:

    FDR’s Map Room Papers
    FDR’s President’s Secretary’s File (PSF)
    Executive Orders and Presidential Proclamations
    Presidential Press Conferences
    Eleanor Roosevelt Selected Correspondence: 1933-45
    Eleanor Roosevelt Selected Correspondence: 1945-47
    Selected Documents on the Holocaust and Refugees
    The FDR Library Significant Documents Collection
    The Grace Tully Collection

As it happens, just last month I was in Hyde Park in part to work with the PSF file for the New Deal lawyer Thomas G. Corcoran, so I was very familiar with its contents.  They are all online.  Also, I hadn’t thought to check the Grace Tully collection while in Hyde Park, but I can now see that it contains a very poignant letter from Corcoran on the occasion of his daughter Margaret’s debutante party.  And if you want to see Rexford Tugwell's telegram protesting the firing of Jerome Frank from the Agricultural Adjustment Administration in 1935, it is in this PSF folder.  The first of three PSF files on the Supreme Court is here.  The first of several PSF files for Felix Frankfurter is here.

The FDR Library explains:

Digital copies of significant documents and photographs from the archives of the Franklin D. Roosevelt Presidential Library & Museum. FRANKLIN launched with 350,000 pages of archival documents and 2,000 historical photographs, along with many detailed descriptions of archival collections not yet digitized. Users can search the digital collections by keyword or directly browse the full lists of digitized archival folders in a virtual research room environment. Documents include Franklin and Eleanor Roosevelt's New Deal and wartime correspondence with world leaders, government administrators, and regular Americans. Photographs include public domain images of the Roosevelts throughout their respective lifetimes, as well as subject areas like the Great Depression, New Deal, and World War II.

Burbank and Farhang, An Institutional Approach to Litigation Reform

Stephen B. Burbank (University of Pennsylvania Law School) and Sean Farhang (University of California, Berkeley) have posted "Litigation Reform: An Institutional Approach," which is forthcoming in Volume 162 of the University of Pennsylvania Law Review (2014). Here's the abstract:

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench private enforcement, particularly in the last decade. The Federal Rules of Civil Procedure became for a brief time the lawmaking territory in which a newly assertive institutional judiciary sought to forge instruments of retrenchment, but the ensuing controversies quickly animated interest groups and members of Congress who were protective of the procedural status quo to press successfully for changes in the Enabling Act process that limited rulemakers’ capacity to change the Federal Rules. Rulemaking is not, however, the only way that the judiciary can influence private enforcement. Federal Rules afford ample room for interpretation, and they can be effectively amended by the Supreme Court outside the Enabling Act process. Empirical analysis of the Court’s Federal Rules decisions confirms that, in this domain as well, the campaign to retrench private enforcement has had its greatest success in the courts. Indeed, it may be that the success experienced in the Supreme Court affected both the content and the zeal of the legislative campaign for civil litigation reform. Thus, although the issue of litigation reform in general, and procedure as a tool of litigation reform in particular, has been declining in Congress since the mid-1990s, it is at its highest level ever on the Court.

The full article is available here, at SSRN.

Hat tip: Legal Theory Blog

CFP: ASLH 2014

[We have the following call from the Chairs of the ASLH Program Committee.]

The 2014 meeting of the American Society for Legal History (ASLH) will take place in Denver, Colorado, November 6-8, 2014. The ASLH invites proposals on any facet or period of legal history, anywhere in the world. We also encourage thematic proposals that range across traditional chronological or geographical fields. In selecting presenters, the Program Committee will give preference to those who did not present at last year's meeting.

Travel grants will be available for presenters in need. These resources will nevertheless be limited, and special priority will be given to presenters traveling from abroad, graduate students, post-docs, and independent scholars.

The Program Committee welcomes proposals for both full panels and individual papers, though please note that individual papers are less likely to be accepted. The Program Committee encourages the submission of a variety of different types of panel proposals, including: traditional 3-paper panels (with a separate chair-commentator); incomplete panels lacking either one paper or a chair-commentator (whether 2-paper panels with a chair-commentator, or 3-paper panels without a chair-commentator), which the Committee will try to complete; author-meets-reader panels; and roundtable discussions.

All panel proposals should include the following:

• A single page listing the panel title, the titles of each paper, complete contact information for each presenter (including chair-commentator), and any special scheduling requests. (Note that we may not be able to accommodate all scheduling requests.) 
• a 300-word description of the panel
• a c.v. for each presenter
• for paper-based panels only: a 300-word abstract of each paper

 Individual paper proposals should include:

• "    a c.v. for each presenter (including complete contact information)
• a 300-word abstract of the paper

Please note that AV equipment/Powerpoint capabilities will be unavailable at the Denver 2014 conference.

The deadline for submitting proposals is March 1, 2014. Proposals should be sent as email attachments to proposals@aslh.net.  Substantive questions should be directed to Joanna Grisinger (joanna.grisinger@northwestern.edu) or Mitra Sharafi (sharafi@wisc.edu).  Those unable to send proposals as email attachments may mail hard copies to:

2014 ASLH Program Committee
c/o Mitra Sharafi
UW Law School
975 Bascom Mall
Madison, WI, 53706-1399, USA

Student Research Colloquium (to be held Nov. 5-6)

In 2014, the ASLH will host its inaugural Student Research Colloquium (SRC) in conjunction with its annual meeting.  The SRC will offer a small group of graduate and law students an opportunity to work intensively on their in-progress dissertations and law review articles with distinguished ASLH-affiliated scholars.  The Colloquium will take place at the ASLH conference site in Denver on Wednesday, November 5, and Thursday, November 6.  In keeping with the goals of the SRC, the Colloquium is limited to eight students.  The target audience for the SRC includes early post-coursework graduate students and law students interested in legal history.  Each participating student will pre-circulate a paper of no more than fifteen pages, double-spaced, to the entire group.  These papers will provide the foundation for discussion at the colloquium.  Participants will receive stipends that will partially defray the travel, hotel, and registration costs of attending the annual meeting.  A student can be on the annual program and participate in the SRC in the same year.  Students working in all chronological/geographical fields of history are encouraged to apply.

To apply to the ASLH's Student Research Colloquium, please submit:

• a cover letter;
• a CV;
• a letter of recommendation from a faculty mentor/advisor; and 
• a two-page, single-spaced "research statement" describing an in-progress research project (e.g., a dissertation or a substantial law review article)

The application deadline is July 1, 2014.  Organizers will notify all applicants of their decisions by August 15, 2014.  Please direct questions and applications to John Wertheimer (jowertheimer@davidson.edu).
   
Workshop on Underrepresented Fields in ASLH (to be held Thursday, Nov. 6)

The second annual workshop on fields of legal history traditionally underrepresented at ASLH will be held on Thursday, November 6th, before the start of the annual meeting. Information about the topic and the application process will be circulated in January.  For more information, please contact Lena Salaymeh (lenas@law.berkeley.edu).

Tomlins on Legal History at La Trobe in the Age of CLS

Christopher L. Tomlins, University of California, Irvine School of Law, has posted Law ‘And’, Law ‘In’, Law ‘As’: The Definition, Rejection and Recuperation of the Socio-Legal Enterprise, which appears in Law In Context 29 (2013): 137-163.  Here is the abstract:

The critical moment in socio-legal studies that flowered in the United States and elsewhere between the mid-1970s and the early 1990s coincided with the maturation of the Legal Studies Department at Melbourne’s La Trobe University. During its two-decade span (1972-1994) La Trobe Legal Studies developed multidisciplinary critical and theoretical perspectives on law – as substance, as professional practice, as field of academic inquiry – to an extent and depth unrivalled in Australia or, with just a few exceptions, internationally. This essay charts the particular trajectory followed by one of those perspectives, legal history, both at La Trobe and in the wider world. Simultaneously, it offers a short history of the Department itself: of its growth during the 1970s and 1980s; of its transformation into a law school during the 1990s; and of the struggles to maintain a place for the social in the legal that occurred during that transformation.

Ginsburg, Foti, and Rockmore on "The Global Origins of Constitutional Preambles"

Tom Ginsburg (University of Chicago Law School), Nick Foti (University of Washington - Department of Statistics), and Daniel Rockmore (Dartmouth College - Departments of Mathematics and Computer Science) have posted "'We the Peoples': The Global Origins of Constitutional Preambles." It is forthcoming in the George Washington International Law Review. Here's the abstract:

We like to think that constitutions are expressions of distinctly national values, speaking for “We the People.” This is especially true of constitutional preambles, which often recount distinct events from national history and speak to national values. This article challenges this popular view by demonstrating the global influences on constitutional preambles. It does so using a new set of tools in linguistic and textual analysis, applied to a database of most constitutional preambles written since 1789. Arguing that legal language can be analogized to memes or genetic material, we analyze “horizontal” transfer of language across countries and “vertical” transfers within a single country over time. We also examine the circumstances in which countries introduce new terms into preambles, showing that countries innovate when neighbors innovate, and that innovations come in global waves. We show that innovation in language is something like punctuated equilibrium within an ecosystem. For long periods of stasis, countries borrow from one another and restrict their language to a set of common terms and phrases. Then, at particular junctures (likely associated with global conflicts), the equilibrium becomes disrupted and a period of innovation ensues. This eventually generates the “new normal” in terms of the set of language that constitutional drafters use. The article provides an example of how text analysis can help us understand the ways in which legal texts are interrelated across space and time.

You may download the full article here, at SSRN.

(Hat tip: Legal Theory Blog)

Jill Lepore on the Difficulty of Writing about Subordinated Subjects

In a recent interview about her new book on Benjamin Franklin’s sister, Harvard history professor and New Yorker staff writer Jill Lepore talked about the difficulty of writing appealing narrative about historical figures whose life stories contain many negative markers such as personal tragedy, defeat, oppression, exclusion and/or discrimination and, concomitantly, a drastic failure to achieve to potential.  In fact, Lepore talks about putting her project on Jane Franklin aside for years because of this problem, until she finally figured out a brilliant way to avoid turning off her readers by starting her story centuries before and ending it centuries after Jane Franklin’s life.  After struggling with writing Defining the Struggle, a narrative about late nineteenth and early twentieth century racial justice advocates and the many defeats and often related personal tragedies they faced, I very much identified with Lepore’s problem and was thrilled to find her interview (pointed out to me by my colleague Robert Tsai).  Unlike Lepore, however, I never found a brilliant solution.  Here are two examples I really struggled with:  T. Thomas Fortune -- a law-trained journalist who founded the National Afro American League -- envisioned the founding platform the early NAACP would take up decades later; I like to describe him as the most important early civil rights leader no one in legal academia has heard of.  But the story of Fortune’s life trajectory is not a narratively appealing one.  Fortune started his adult life full of vision and positive energy, but in mid-life he fell under Booker T. Washington’s influence, in part because he was in desperate financial straits.  Washington stole Fortune’s newspaper from him and booted him out onto the street; Fortune had a nervous breakdown and became an irascible, erratic contributor of occasional articles, finishing the last half his life with a greatly diminished stature as compared to his younger self.  It occurs to me that part of why he is not well remembered today is that his life story does not form an attractive, coherent narrative arc.  It is hard to lionize someone whose life became such a mess after a relatively short period of early accomplishment.  My second example is even more tragic.  It involves the Niagara Movement’s only test case plaintiff, Barbara E. Pope.  Pope was a talented literary writer and left wonderful historical evidence of her views in gems such as a short story in which an African American woman and her husband, a lawyer, argue about whether she should fulfill her strong ambition to become a lawyer.  Her husband wins the argument.  Given my interest in women’s quasi-legal reform activism, I even thought about starting my book with Pope.  But featuring Pope became very problematic once I discovered that she had committed suicide several years after a jury returned an insulting verdict in her test case, awarding her only one cent in damages for the dignitary rights violation of being thrown off a Jim Crow train and forcibly arrested.  I did put all this information into the book, of course, but could not start with it; who wants to read a book that starts with such a sad tale.   A host of other important figures had similarly tragic stories; racial justice activism in the nadir period was a hugely draining, personally taxing endeavor that quite literally destroyed people’s lives.  I am wondering if others have faced similar problems and what solutions, if any, they found to them.

Special Issue of the Journal of the Civil War Era on the Emancipation Proclamation at 150

The latest issue of the Journal of the Civil War Era commemorates the 150th anniversary of the Emancipation Proclamation. Here's the Table of Contents:

credit

Martha S. Jones, Guest Editor

History and Commemoration: The Emancipation Proclamation at 150

James Oakes

Reluctant to Emancipate? Another Look at the First Confiscation Act

Stephen Sawyer & William J. Novak

Emancipation and the Creation of Modern Liberal States in America and France

Thavolia Glymph

 Rose’s War and the Gendered Politics of a Slave Insurgency in the Civil War

Martha S. Jones

Emancipation’s Encounters: The Meaning of Freedom from the Pages of Civil War Sketchbooks

Michael Vorenberg

Spielberg’s Lincoln: The Great Emancipator Returns

The issue follows directly from the October 2012 "Proclaiming Emancipation" exhibit and conference at the University of Michigan Law School. The exhibit was a joint effort by the Program in Race, Law & History, the William L. Clements Library, and The University of Michigan Library. Read on here.