Friday, August 22, 2014

Tillman on Originalism and the Disqualification Clause

Seth Barrett Tillman, National University of Ireland, Maynooth Faculty of Law, has posted Originalism and the Scope of the Constitution's Disqualification Clause, which is forthcoming in the Quinnipiac Law Review 33 (2014).  Here is the abstract:    
This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office . . . under the United States” language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear.

I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office . . . under the United States” language, i.e., the operative language in the Disqualification Clause.

Waugh on Australia's Chinese Exclusion Case

John Waugh, Melbourne Law School, has posted an article from his backlist, Chung Teong Toy v Musgrove and the Commonwealth Executive.  It first appeared in Public Law Review 2 (1991): 160–178.  Here is the abstract:    
Alfred Deakin (credit)
This article looks at perhaps the best-known Australian constitutional case of the nineteenth Chung Teong Toy v Musgrove (1888), in which a challenge to the power of the colony of Victoria to exclude Chinese immigrants led the Supreme Court to undertake a fundamental examination of the status and powers of the Executive under the colony's constitution. At the 1891 Australian federal convention, Alfred Deakin said that the case would demand "the most careful consideration" when the federal constitution was being framed. Its history, and its context in colonial constitutional law, throw light on parts of Chapter II of the Australian Constitution, in particular s 64.

Tomlins on Historicism and Materiality in Legal Theory

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted Historicism and Materiality in Legal Theory, which is forthcoming in Law, Theory and History: New Essays on a Neglected Dialogue, ed. Maksimilian Del Mar and Michael Lobban (Hart Publishing).  Here is the abstract:
Current interest in a rapprochement between legal theory and legal history rests on a transformation of legal theory into a species of historicism, a mode of inquiry that emphasizes the tempero-spatial locatedness of its objects of attention, and examines the multiplicity of relations existing between object and context. Contemporary paradigms in historicism further contend that whatever the context in relationship to which the object of inquiry is situated, the outcome is indeterminacy – the irreducible contingency of alternative possibilities, paths taken and not taken. Given the stranglehold that historicism has achieved in legal history, it is not surprising that its core contentions should be the drivers of revisionism in legal theory. However, alternatives should be considered. This paper undertakes a critique of historicism, and examines a rival philosophy of history that I will call “materiality.” A less developed, more eclectic, standpoint, materiality stresses the impact upon the formation of law of technologies, artifacts, and material practices. Rather than collapse law into its context, it seeks to examine the fabrication of law’s differentiation. Its potential is exemplified in work as varied as Cornelia Vismann’s Files: Law and Media Technology (2000; trans. 2008) and Bruno Latour’s The Making of Law (2002; trans. 2010). My main emphasis, however, will be on the species of historical materialism developed in the work of Walter Benjamin (1892-1940), where one finds both an intense stress on the materiality of an object of attention, and an understanding of historical perspective to entail much more than the derivation of the object’s meaning from the circumstances in which it is located. If history promises to enliven our understanding of an object, we must recognize the object is not enlivened by the relationalities of its time, within which it allegedly belongs, but by the fold of time that creates it in constellation with the present, the moment of its recognition.

Thursday, August 21, 2014

Kisilowski on Lawyers, the Rule of Law, and "Socialist Legality"

Although the article, appearing in the Fall 2014 issue of Law & Social Inquiry, is gated, I want to note the publication online of The Middlemen: The Legal Profession, the Rule of Law, and Authoritarian Regimes, by Maciej Kisilowski, Central European University.  Here is the abstract:
Scholars are increasingly interested in exploring ways to strengthen the rule of law in authoritarian states—especially when deeper political reforms are not attainable. The article contributes to this discussion by revisiting the story of the emergence of the so-called socialist legality in the communist states of Eastern Europe. Using the historical record from Poland, the author demonstrates a previously unnoticed, yet pivotal, role of legal professionals in facilitating socialist legality's rise to prominence. Using the lenses of Pierre Bourdieu's theory of fields, the article chronicles the evolving dynamic between the legal profession, the authoritarian regime, and society. These observations challenge conventional explanations of the emergence of the rule of law in nondemocratic conditions.

A MOOC on the Legacy of the Paris Peace Conference

Sarah Bannerman, a researcher at the Law School of the University of Glasgow, writes to draw our attention to a forthcoming MOOC on which she and Professor Christian Tams, also of Glasgow Law, have been working, in collaboration with the BBC.  A link to the MOOC, including a trailer, is here. According to Ms. Bannerman, the course will cover
The Big Four (credit)
the legacy of the Paris Peace Conference of 1919 and its pursuit to create a new world order through the creation of the League of Nations. This is a free course that is open to anyone interested in learning more about how today’s world was fashioned from the outcomes of World War One. The course will go live on the 13th October and will last for three weeks, requiring around five hours of work per week. Participants will be able to [debate] the main issues online with other students.

Dudziak on the Future as a Concept in National Security Law

LHB Founder Mary L. Dudziak, Emory University School of Law, has posted The Future as a Concept in National Security Law, which is forthcoming in the Pepperdine Law Review.  Here is the abstract:    
With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what concesption of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a "next attack," and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

Rana on Colonialism and Constitutional Memory

Aziz Rana, Cornell Law School, has posted Colonialism and Constitutional Memory, which is forthcoming in the UC Irvine Law Review.  Here is the abstract:
The United States shares a number of basic historical traits with various British settler societies in the non-white world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences?

This essay, prepared for the Third "Law As..." Symposium, offers an initial response, arguing that a significant reason is the symbolic power of the American Federal Constitution in sustaining a particular narrative of the country as free and equal from the founding. Although this creedal narrative has played a powerful and productive role in creating a more inclusive national community, it has also, paradoxically, made it more difficult for Americans to appreciate the country’s colonial underpinnings and thus to address specific structural grievances. In developing these claims, the essay first explores how universalistic accounts of national identity and constitutional meaning began to take political hold with the country’s emergence onto the global stage following the Spanish-American War. It then analyzes the unacknowledged contemporary costs of creedal narratives by recovering a tradition of radical black critique, which viewed the dominant national identity as truncating dilemmas of race in part by deemphasizing the need for material restitution and symbolic rupture.
Hat tip: Legal Theory Blog

Wednesday, August 20, 2014

That DC Area Legal History Roundtable

I've previously announced the next meeting of the DC Area Legal History roundtable, to be held on September 12.  A website for the roundtable is now online.

Lieblich and Shachar on Lauterpacht on Israel's Declaration of Independence

Eliav Lieblich and Yoram Shachar, Radzyner School of Law, have posted Cosmopolitanism at a Crossroads: Hersch Lauterpacht and the Israeli Declaration of Independence, which is forthcoming in the British Yearbook of International Law. Here is the abstract:
Hersch Lauterpacht is widely celebrated as a pioneering figure in the cosmopolitan revival of international law during the mid-20th century. This article is a first in-depth analysis of an overlooked episode in his life’s work: his secret involvement in drafting Israel’s Declaration of Independence. The article analyzes Lauterpacht’s draft of this declaration, from its original manuscript form, in light of its historic circumstances and his general jurisprudence.

This article contributes to international legal theory by analyzing unexplored tensions in Lauterpacht’s work – tensions that have reached their boiling point in his draft declaration. Their incidence, and his attempts to resolve them, are telling not only regarding Lauterpacht’s jurisprudence, but also revealing of the nature (and limitations) of international legal argument at large. Namely, they reflect the inherent tension in international legal discourse between cosmopolitanism and sovereignty, universalism and particularism.

We argue that by participating in a national project, Lauterpacht’s cosmopolitanism was compromised. His attempt to reconcile, in the Draft, between cosmopolitanism and national sovereignty – an attempt so common in the argumentation of international lawyers – ultimately led not only to the Draft’s rejection by the nascent Israeli establishment, but also, perhaps, to its downplaying by those that have reconstructed Lauterpacht’s cosmopolitan legacy.
Hat tip: Legal Theory Blog

Professor Mirow and the Argentine Institute of Legal History

Congratulations to Matthew Mirow, Florida International University College of Law, on being elected a Corresponding Member (for the United States) of the Argentine Institute of Legal History.  Professor Mirow notes that the most recent issue of the Institute’s journal, Revista de Historia del Derecho (Jan.-June 2014), is available here.

Tomlins's Paratextual Analysis of The Confessions of Nat Turner

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted The Confessions of Nat Turner: A Paratextual Analysis, which is forthcoming in Law&History.  Here is the abstract:    
This essay uses techniques advanced by the structuralist literary theorist Gérard Genette to examine the 1831 pamphlet The Confessions of Nat Turner. Like all documents generated in the course of master-class investigations of slave revolts, alleged or actual, The Confessions of Nat Turner raises obvious evidentiary quandaries: credibility, reliability, authenticity. Precisely what kind of historical source is this document. How should it be interrogated? What can it tell us? These questions become particularly important in light of controversies over the use of sources by historians of the Denmark Vesey conspiracy (Charleston 1822). Structuralist analysis suggests that The Confessions is a document containing at least two and likely three distinct texts, and that it is carefully composed to contain Nat Turner’s confession within a secure frame interpretive frame intended to guide the confession’s reception and to anticipate and deflect subversive readings of the Turner Rebellion.

More on the McCurdy Legal History Fellowship

The University of Virginia's press release on the Charles W. McCurdy Legal History Fellowship is here.  To quote from it:
G. Edward White senior legal history scholar at the Law School who worked with Goluboff to help secure the fellowship through the Miller Center, said the residential opportunity strengthens bonds with the center and is an important addition to existing programmatic offerings.

"The fellowship simultaneously honors Chuck McCurdy, formalizes a connection between the Law School and the Miller Center in strengthening Virginia's commitment to legal and constitutional history in the future, and provides a mechanism whereby talented junior scholars can join the resident community of students and faculty interested in pursuing scholarship in the fields," White said.
The Miller Center's press release on the McCurdy Fellowship is here.

Tuesday, August 19, 2014

APS's Franklin Research Grants

We have the following announcement of the Franklin Research Grants of the American Philosophical Society.]

Since 1933, the American Philosophical Society has awarded small grants to scholars in order to support the cost of research leading to publication in all areas of knowledge. In 2013–2014 the Franklin Research Grants program awarded $463,000 to 85 scholars, and the Society expects to make a similar number of awards in this year’s competition. The Franklin program is particularly designed to help meet the costs of travel to libraries and archives for research purposes; the purchase of microfilm, photocopies, or equivalent research materials; the costs associated with fieldwork; or laboratory research expenses.

Franklin grants are made for noncommercial research. They are not intended to meet the expenses of attending conferences or the costs of publication. The Society does not pay overhead or indirect costs to any institution. Grants will not be made to replace salary during a leave of absence or earnings from summer teaching; pay living expenses while working at home; cover the costs of consultants or research assistants; or purchase permanent equipment such as computers, cameras, tape recorders, or laboratory apparatus.

Special Programs Within the Franklin Research Grants

APS/British Academy Fellowship for Research in London.  In collaboration with the British Academy, the APS offers an exchange postdoctoral fellowship for a minimum of one and a maximum of two months’ research in the archives and libraries of London during 2015. This award includes travel expenses between the United States and the United Kingdom and a monthly subsistence paid by the APS. Candidates should specify that they are asking for the British Academy Fellowship and apply by October 1; applicants not selected for the British Academy Fellowship will be considered for a Franklin Research Grant.

APS/Institute for Advanced Studies in the Humanities Fellowship for Research in Edinburgh. In collaboration with the Institute for Advanced Studies in the Humanities (IASH) at the University of Edinburgh, the APS offers a visiting fellowship of between two and four months for research in Edinburgh in the calendar year 2015 in any aspect of the humanities and social sciences. To maximize the benefits of the fellowship, applicants are strongly encouraged to schedule their visit to overlap with one of the two main teaching semesters (January–March and September–December). This award includes travel expenses between the United States and the United Kingdom, a private office, library and research facilities at the IASH, and a monthly subsistence paid by the APS. Travel expenses and the monthly subsistence amount will not exceed a maximum of $6,000. Candidates should specify that they are asking for the IASH Fellowship and apply by October 1; applicants not selected for the IASH Fellowship will be considered for a Franklin Research Grant. Further information about the IASH, including current research themes, is available [here].

Thompson on NC Quakers and Manumission

Jessica Lee Thompson, a recent graduate of UNC Chapel Hill School of Law, has posted “Toward Freedom for All”: North Carolina Quaker Legal Theory on the Trust for Manumissions.  Here is the abstract:
The Perquimans event was the spark to one of the greatest legal debates in North Carolina’s history as Quakers directly challenged the state supported institution of slavery and conceptions of property through the use of trusts as a technology of law in conjunction with the exercise of their religious liberty. That is, they used the trust as a way for members of the local Meeting to hold slaves for the "benefit" of the Meeting and thus comply with the requirements of the North Carolina law that slaves have owners. Yet, the trustees, apparently following the wishes of the Meeting, allowed the slaves they "owned" substantial freedom, which in essence circumvented the North Carolina statute’s requirement that the slaves have owners. The Quakers’ challenges to the institution of slavery went beyond their defiance of acts passed by the General Assembly, which specifically contemplated the "Quaker issue." The debate over Quaker slaves held in trusts would largely unfold in the North Carolina courts. The legal theories the Quakers advanced challenged the common law and divided members of the State’s highest court on questions of morality. The Quakers use of trusts and natural law principles to accomplish a moral objective run’s counter to Morton Horwitz’s instrumental conception of law, and proposes an alternative theory, namely that those in power were more motivated by their fears or concern for security and stability.

This paper traces the debate over the legality of Quaker manumission efforts in North Carolina through an examination of three major cases presented before the North Carolina Supreme Court between 1827 and 1851. It combines research in the Quaker archives with an examination of the trial records and the record in the Supreme Court, as well as the published opinions. Thus, this paper moves beyond the previous work that has either looked only at the Quaker records and not the legal records or the North Carolina Supreme Court’s published opinions without telling the full story of the record below. A central question for this paper is how dissenters turned to the neutral technology of law to achieve a result that was at least partially at odds with the established policy of the state? That raises subsidiary questions about the ways that one renowned North Carolina lawyer, William Gaston, sought to defend his use of the innovative strategy and how North Carolina jurists responded to this challenge to state policy. This paper, thus, lies at the intersection of a series of questions about religious freedom, legal innovation, policy, and stare decisis.

New Release: Vol. 6 of the Major Political and Legal Papers of Josiah Quincy Junior

New from the University of Virginia Press (distributed for the Colonial Society of Massachusetts): Portrait of a Patriot, Volume 6: The Major Political and Legal Papers of Josiah Quincy Junior, edited by Daniel R. Coquillette (Boston College) and Neil Longley York (Brigham Young University). The Press explains:
Successful Boston lawyer, active member of the Sons of Liberty, and noted political essayist, Josiah Quincy Junior (1744–1775) left a lasting impression on those he met--for his passion in the courtroom as well as his orations in the Old South Meeting House, and for his determination to live fully, despite being afflicted with a disease that would cut his life short. Gathered in this, the sixth and final volume of the Quincy Papers, are Quincy’s surviving correspondence, his essays for the Boston press written between 1767 and 1774, and his 1774 pamphlet Observations, which was the culmination of his thinking and writing about the problem of balancing imperial authority and colonial liberty. He represented, as well as any of his longer-lived contemporaries, the difficulty of protesting British policy without turning on Britain itself, the uneasy blending of reasoned political discourse with a desire to denounce perceived injustice, and the quest to find a peaceful solution and yet reserve the right to use force if all else failed. In his attempt to define and defend American rights, he borrowed as readily from classical sources as modern, drawing on a rich philosophical and legal tradition that served him well throughout his public life. He well understood the power of the ideas that he mustered for political debate. That understanding also shows through in Quincy’s other writings, from his law commonplace book and Latin legal maxims (in volume 2) to the journal of his 1773 southern journey (in volume 3) to his still-cited reports for cases argued in the Massachusetts Superior Court from 1761 to 1772 (in volumes 4 and 5).
This last volume stands as a companion piece to the first. There, Quincy’s political ideas are discussed and traced, in part through Quincy’s political commonplace book, compiled between 1770 and 1774. Here, readers can follow how Quincy expressed those ideas in the newspaper pieces and pamphlet that became an essential part of the debate over rights in the empire. Here too can be found his deep concern, expressed in letters from London to his beloved wife, Abigail, that he serve Massachusetts--"my country," as he called it--well, that he give his last full measure of devotion, if necessary, to the patriot cause.
More information is available here.

Monday, August 18, 2014

Legal Externships, Circa 1940

Although I knew that my legal alma mater, the University of Chicago, was once a New Deal law school, Iwas surprised to learn today, from a document in the House Un-American Committee’s files on the National Lawyers Guild, that it pioneered legal externships in government.  The March 14, 1940, issue of the newsletter of the Guild's DC Chapter noted that its student affiliate would soon report
on law student internships in government service.  Two students from the University of Chicago Law School are fulfilling their current quarter of law school work by serving as interns: one in the Chicago office of the Wages and Hours Administration and the other in the Bituminous Coal Division, Washington, D.C.  The grant by a law school of scholastic credit for such practical work is an innovation on accepted methods of legal education.  As such it is expected to arouse a lively discussion in student groups.
The attractions of an internship at the Bituminous Coal Division were considerable, although perhaps they are not immediately apparent today.  The BCD’s general counsel was Abe Fortas; other formidable lawyers there included David Kreeger and Harold Leventhal.

Updates: Apparently, the idea didn't take.The relevant page of the newsletter appears above.  It is from box 638 of the HUAC Papers (RG 233) in the National Archives.

Belt on Disabled Veterans and the Right to Vote

Rabia Belt, a Michigan alumna and Ph.D. candidate, and a recent Law Research Fellow at Georgetown Law, has posted Ballots for Bullets? Disabled Veterans and the Right to Vote.  Here is the abstract:
Over 100,000 veterans lived in a government-funded home after the Civil War. Despite sacrificing their bodies for the preservation of the nation, these veterans lost the right to vote. This disfranchisement challenges the conventional wisdom that disabled veterans occupied a privileged position in society, politics, and law. Instead, their disability status trumped their military history, and they became part of a set of dependent, disabled people rendered placeless and vote-less by state law.

D.C. Area Legal History Roundtable

[Here is an announcement for the D.C. Area Legal History Roundtable, which will meet on Friday, September 12, 2014, from 12:00 noon - 4:00 Room 220, McDonough Hall, Georgetown University Law Center, 600 New Jersey Ave., NW, Washington, DC 20001-2075.]

The D.C. Area Legal History Roundtable is an informal gathering of scholars who live or work in and around Washington, D.C. It first met in 2006 at George Washington University Law School and later at the law schools of American University, the Catholic University of America, George Mason University and Georgetown University and at the Federal Judicial Center.  It will reconvene on Friday, September 12, at the Georgetown University Law Center.

The two-panel program appears below, along with other details.  Commentators are TBA.  Abstracts [for the papers after the jump.]

Please RSVP to by Friday, September 5, to provide an accurate count for lunch. 
12:00-1:00     Buffet Lunch

1:00-2:20     Original Intent and Original Meaning
Does the Magna Carta Embody a Proportionality Principle?
Craig S. Lerner, Associate Dean for Academic Affairs and Professor of Law, George Mason University Law School

Gouverneur Morris's Constitution
William Michael Treanor, Dean and Professor of Law, Georgetown University Law Center

2:20-1:35     Break

1:35-3:55     Judicial Dissenters and Consumer Activists

Dissent and the Constitutional Dialogue (Knopf/Atheneum, 2015).
        Chapter 1 + “Hugo L. Black in Betts v. Brady (1942)”
Melvyn Urofsky, Professor Emeritus of History, Virginia Commonwealth University

The Consumer’s Counsel, a chapter from “City of Debtors: Law, Loan Sharks, and the Shadow Economy of Urban Poverty, 1900-1970”  (Ph.D. thesis)
Anne Fleming, Associate Professor of Law, Georgetown University Law Center

Access: Construction blocks vehicular traffic north on Second Street, NW, between E Street and the Law Center.  The primary entrance to McDonough Hall is now from New Jersey Avenue, NW, up the stairs from street-level to the second floor.  Room 220 is at the end of the hallway just beyond and to the left of the guard’s desk.  Handicapped access to McDonough is best via the F Street door, on the Tower Green side of McDonough, where equipment provides direct contact with campus police.

Parking and Metro: Unfortunately, no on-site parking is available.  On-street parking is metered and limited.  By Metro, use either Union Station or Judiciary Square, as they are equidistant from the Law Center.

Further Information and Mailing List: For further information or to join our mailing list, please send your name and institutional affiliation (if any) to

Sunday, August 17, 2014

Sunday Book Roundup

The Law and Politics Book Review has released its latest issue online. Richard Cosgrove reviews Lawyers, the Law and History: Irish Legal History Society Discourses and Other Papers, 2005-2011 edited by Felix M. Larkin and N.M. Dawson (Four Courts Press). And, G. Alan Tarr reviews Melissa Schwartzberg's Counting the Many: The Origins and Limits of Supermajority Rule (Cambridge University Press).

Salon has an excerpt from Moral Minorities and the Making of American Democracy by Kyle G. Volk (Oxford University Press), titled "Desegregating New York City: The amazing pre-Civil War history of public transit integration in the North."

Mark Boulton's Failing Our Veterans: The GI Bill and the Vietnam Generations (NYU Press) is reviewed on HNN.
"Mark Boulton’s book “Failing Our Veterans” is a comprehensive and compelling legislative history which skillfully details how ideology, economic and personal and political biases have shaped the way vets have been dealt with from the Revolutionary era to Vietnam."
H-Net has a review of Ava Chamberlain's Notorious Elizabeth Tuttle: Marriage, Murder, and Madness in the Family of Jonathan Edwards (NYU Press).
"The Notorious Elizabeth Tuttle: Marriage, Murder, and Madness in the Family of Jonathan Edwards is a book that embodies many characterizations. It is a biography of the “crazy” grandmother of the influential theologian Jonathan Edwards (1703-58); a fascinating story of marriage, divorce, and their legal complexities in the colonial United States; a stark reminder that family life “back in the day” (as my students insist on saying) was not all roses and happiness; an argument that gender deviance powerfully affected both men and women in colonial America; a smart and beautifully analyzed insistence that historiography is neither boring nor irrelevant; and, most interesting to me, an example of how historically changing conceptions of madness—as a perhaps sad but routine aspect of human diversity, as deadly but individual deviance, as biological pollution that haunts families across generations—shaped the family stories, the historiography, and the theological interpretations of both Elizabeth Tuttle Edwards and her famed grandson Jonathan Edwards."
Also on H-Net is a review of Hal Brands's What Good is Grand Strategy? Power and Purpose in American Statecraft from Harry S. Truman to George W. Bush (Cornell University Press).

Saturday, August 16, 2014

Weekend Roundup

  • Tweeting Magna Carta: "Bringing you all the latest news about #MagnaCarta's 800th anniversary in 2015."
  • Although Beyond the Indian Commerce Clause, by Gregory Ablavsky, the Sharswood Fellow in Law and History at the University of Pennsylvania Law School, is not available for download, the abstract is, on SSRN.  It will appear in the Yale Law Journal
  • From the Canadian Legal History Blog: a tentative fall schedule for the Osgoode Society Legal History Group and information about what to do if you'd like to be considered for one of the remaining workshop slots.
  • For your end-of-summer reading pleasure: Books& has compiled a selection of essays "in which contemporary historians tell us about the future of history as a discipline, about how they research and write history, and the way history affects their bodies and minds." 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 15, 2014

Burbank and Farhang on Federal Court Rulemaking and Reform

Stephen B. Burbank, University of Pennsylvania Law School, and Sean Farhang, University of California, Berkeley, have posted Federal Court Rulemaking and Litigation Reform: An Institutional Approach, which is forthcoming in the Nevada Law Journal 15 (2014).  Here is the abstract:
The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, the committee shifted toward being dominated by federal judges, that those appointments shifted in favor of judges appointed by Republican Presidents, that practitioner appointments shifted toward corporate and defense practitioners, and that the committee’s proposals became increasingly anti-plaintiff (and hence anti-private enforcement).

Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts – in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.
Hat tip: Legal Theory Blog

LHR 32:3

Here, via @LHR_editor are the contents for Law and History Review 32:3.  The issue is now available via Cambridge Journals Online.

In This Issue
Elizabeth Dale

The Somerset Effect: Parsing Lord Mansfield's Words on Slavery in Nineteenth Century America
Derek A. Webb

The Transformation of Adultery in France at the End of the Middle Ages
Sara McDougall

Publishing Robinson's Reports Of Cases Argued And Determined In The High Court Of Admiralty
John D. Gordan

Public Opinion and the French Capital Punishment Debate of 1908
James M. Donovan

Rethinking People v. Croswell: Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic
Kate Elizabeth Brown

Disciplining the Market: Debt Imprisonment, Public Credit, and the Construction of Commercial Personhood in Revolutionary France
Erika Vause

Access to Justice: Legal Aid to the Poor at Civil Law Courts in the Eighteenth-Century Low Countries
Griet Vermeesch

Book Reviews

Amnon Altman, Tracing the Earliest Recorded Concepts of International Law: The Ancient Near East (2500–330 BC), Leiden: Martinus Nijhoff Publishers, 2012.
Seth Richardson

John Noël Dillon, The Justice of Constantine: Law, Communication, and Control, Ann Arbor: University of Michigan Press, 2012.
Ari Z. Bryen

Sara McDougall, Bigamy and Christian Identity in Late Medieval Champagne, Philadelphia: University of Pennsylvania Press, 2012. Pp. 216. \$55.00
Claude Gauvard

David Waldstreicher, Slavery's Constitution: From Revolution to Ratification, New York: Hill and Wang, 2009.
James J. Gigantino

Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic, Philadelphia: University of Pennsylvania Press, 2013.
Lucy E. Salyer

Victoria Saker Woeste, Henry Ford's War on Jews and the Legal Battle Against Hate Speech, Stanford: Stanford University Press, 2012.
William E. Forbath

Leigh Ann Wheeler, How Sex Became A Civil Liberty, Oxford: Oxford University Press, 2013.
Laura Weinrib

Fernanda Pirie, The Anthropology of Law, Oxford: Oxford University Press, 2013.
Eve Darian-Smith

Thursday, August 14, 2014

Call for Legal History Workshops/Symposia

We here at Legal History Blog are eager to post the schedules of any legal history workshops or symposia to be held in the upcoming academic year.  If you send us one, please indicate whether attendance is by the permission of the organizers and, if so, how it might be obtained.

Gordon on the First Justice Marshall and the Chinese Cases

James Wice Gordon, Western New England University School of Law, has posted Was the First Justice Harlan Anti-Chinese? which appears in the Western New England Law Review 36 (2014): 287-370.  Here is the abstract:
John Marshall Harlan (LC)
The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one Harlan’s critics create. The Author also argues that Harlan’s critics give insufficient weight to the fact that, sitting as a judge, Harlan was often constrained in his decision-making by stare decisis and his conception of the judicial role. The issues presented by the Chinese cases should be viewed in the context of their time and understood not as abstract statements of the Justices’ personal beliefs but as a series of discrete judicial problems presented to the Court for decision. When one examines both the context and the details of the cases, the picture of Harlan that emerges is more nuanced than his critics have suggested.

Ross and Stern on Notions of Legal Pluralism in Early Modern Europe

Richard J. Ross, University of Illinois College of Law and Department of History, and Philip J. Stern, Duke University History Department, have posted Reconstructing Early Modern Notions of Legal Pluralism, which appeared in Legal Pluralism and Empires, 1500-1850, ed. Lauren Benton and Richard J. Ross (New York: New York University Press, 2013), 109-41.  Here is the abstract:
Legal pluralism occurs when two or more legal orders exert control within a given territory or over a particular social group and yet are not part of a single hierarchical “system” under a coordinating authority. Most historical scholarship on legal pluralism concentrates on its shifting structures in local contexts and on its political and economic implications. By contrast, our essay probes historical actors’ uses of political and religious thought to justify or undermine plural legal regimes in the late sixteenth through early eighteenth centuries. Historians of early modern political thought preoccupied with the rise of the modern state have lavished attention on ‘centralizing’ discourses, particularly theorists such as Bodin, Hobbes, and Pufendorf represented as champions of sovereignty. Against this tendency, we emphasize how ideological support for plural legal orders could be found in a wide range of intellectual projects. These ranged from debates over the right of resistance and the divine right of rulers, through historical work on the ancient Jewish commonwealth and theological disputes over which precepts “bound conscience,” and finally to writings on political economy and the place of family.

Social scientific and jurisprudential work on legal pluralism has focused a set of canonical problems. Should we focus on jurisdictional or normative accounts of pluralism? How can we distinguish the “legal” from the “non-legal,” a dispute that centers on whether to include in pluralist models the norms of families and civil society organizations? How can we model the complex dialectic relation of state and nonstate systems of order? To the extent that this work relies on a historical account spanning the sixteenth through eighteenth centuries, it assumes that a once rich medieval legal pluralism withered as European statebuilding consolidated crown control of law with the ideological support of theories of sovereignty. The intellectual foundation for — if not the practice of — legal centralism arose in this period. The frequent invocation of Bodin, Suarez, Grotius, Hobbes, and Pufendorf as the founding theorists of sovereignty and legal centralism creates the impression that pluralistic thinking was impoverished or on the wane. The central ambition of our article is to provide an alternative historical genealogy for legal scholars of pluralism. Workaday legal pluralism did not struggle against a predominantly hostile intellectual climate. Many discourses supported pluralism. And the most emphatic theorists of a powerful singular sovereign were often responding to intellectual projects that valorized pluralism.

Wednesday, August 13, 2014

Call for Submissions: The Socio-Legal Review

The Socio-Legal Review welcomes contributions for its eleventh volume to be released in 2015.

The Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary journal published by the Law and Society Committee of the National Law School of India University, Bangalore. SLR aims to be a forum that involves, promotes and engages students and scholars to express and share their ideas and opinions on themes and methodologies relating to the interface of law and society. The Journal thus features guest articles by eminent scholars as well as student essays, providing an interface for the two communities to interact. From 2012, SLR has become a biannual publication from an annual publication.

The Journal subscribes to an expansive view on the interpretation of "law and society" thereby keeping its criteria for contributions simply that of high academic merit, as long as there is a perceivable link. This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/institutions of governance/administration, power structures in social commentary, and so on. Through this effort, the Journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.

SLR has been listed in the Directory of Open Access Journals and has been uploaded on Westlaw and HeinOnline. It was supported by the Modern Law Review for three years since its inception.

[Submission guidelines after the jump.]

Call for Applications: UC Irvine Seeks To Hire Assistant Prof. in 20th-C. U.S. History

Via H-Law, we have the following job posting:
The History Department at the University of California, Irvine, seeks to hire a tenure-track assistant professor in 20th-century United States history whose research focuses on political economy, intellectual history, and/or legal history. We are especially interested in applicants who complement our departmental strengths in gender, transnational, race/ethnicity, and world history. We will give priority to applicants who can contribute both to our graduate program and to all levels of our undergraduate curriculum.

Candidates should submit a letter of application that describes research and teaching interests; a statement addressing how past and/or potential contributions to diversity, equity and inclusion will advance UC Irvine's commitment to inclusive excellence; a current CV; a writing sample not to exceed 50 pages; and 3 letters of recommendation. Applications should be submitted electronically at:
To ensure full consideration, applications need to be submitted by October 1, 2014.

Direct questions about the electronic submission procedure to Marcus Kanda ( and any other questions about the search to Search Committee chair, David Igler (

The University of California, Irvine is an Equal Opportunity/Affirmative Action Employer advancing inclusive excellence. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, age, protected veteran status, or other protected categories covered by the UC nondiscrimination policy.

To learn more about the Department, visit our website at

New Release: Friedman, "Citizenship in Cold War America"

New from the University of Massachusetts Press: Citizenship in Cold War America: The National Security State and the Possibilities of Dissent, by Andrea Friedman (Washington University, St. Louis). The Press explains:
In the wake of 9/11, many Americans have deplored the dangers to liberty posed by a growing surveillance state. In this book, Andrea Friedman moves beyond the standard security/liberty dichotomy, weaving together often forgotten episodes of early Cold War history to reveal how the obsession with national security enabled dissent and fostered new imaginings of democracy.

The stories told here capture a wide-ranging debate about the workings of the national security state and the meaning of American citizenship. Some of the participants in this debate—women like war bride Ellen Knauff and Pentagon employee Annie Lee Moss—were able to make their own experiences compelling examples of the threats posed by the national security regime. Others, such as Ruth Reynolds and Lolita Lebrón, who advocated an end to American empire in Puerto Rico, or the psychiatrist Fredric Wertham, who sought to change the very definition of national security, were less successful. Together, however, they exposed the gap between democratic ideals and government policies.

Friedman traverses immigration law and loyalty boards, popular culture and theoretical treatises, U.S. court-rooms and Puerto Rican jails, to demonstrate how Cold War repression made visible in new ways the unevenness and limitations of American citizenship. Highlighting the ways that race and gender shaped critiques and defenses of the national security regime, she offers new insight into the contradictions of Cold War political culture.
Reviewer Laura McEnaney writes:
"This is a very polished, well-argued book that draws on a deep reservoir of archival materials. . . . The marvelous diversity of the case studies reinforces the main theme, which is that the Cold War consensus was not as solid as we have thought—or have been led to believe by previous scholarship. . . . Friedman’s manuscript is a rumination on cold war citizenship, but it leads us to reconsider all moments in American history—well beyond her chronology here—in which citizenship was contested (and when wasn’t it, frankly?). The episodes Friedman uncovers are absolutely crucial civics lessons that should enter the mainstream of our teaching on the postwar/cold war years."
More information, including the TOC, is available here.

Tuesday, August 12, 2014

Desai, "What a History of Tax Withholding Tells Us About the Relationship between Statutes and Constitutional Law"

Anuj C. Desai (University of Wisconsin Law School) has posted "What a History of Tax Withholding Tells Us About the Relationship between Statutes and Constitutional Law," Northwestern University Law Review, Vol. 108, No. 3 (2014). Here's the abstract:
In this Article, I explain what a seemingly obscure statute, the Current Tax Payment Act of 1943, can tell us about the relationship between statutes and constitutional law. I use William Eskridge and John Ferejohn’s notion of a “superstatute” as a lens through which to view this relationship. A “superstatute,” in Eskridge and Ferejohn’s conception, is a statute that has small “c” constitutional emanations, emanations that both affect interpretations of the large “C” Constitution and are entrenched against subsequent legislative change. To better understand the precise contours of the notion of a superstatute, I look at the Current Tax Payment Act of 1943, which instituted the system of federal tax withholding for wage income. I describe the history of federal income tax withholding leading up to the passage of that Act, explaining in turn how that history sheds light on the underlying notion of a superstatute.
Full text is available here.

Kawaguchi's Readings on Dodge v. Ford Motor Company

Credit: LC
Linda Kawaguchi, Chapman University Fowler School of Law, has posted the introduction to a collection of readings on Dodge v. Ford Motor Company that appear in the Chapman Law Review 17 (2014).  Her introduction commences:
Original documents in historic cases provide a uniquely valuable perspective on the cases themselves and the surrounding circumstances and history that contribute to the development of legal principles. Understanding that access to historical materials can be difficult, the Chapman Law Review has endeavored to collect source documents regarding the case of Dodge v. Ford Motor Co. After a short introduction to this compilation, including a discussion of research methodologies, several key historical documents are reproduced . . . .

Monday, August 11, 2014

Duve on German Legal History

Thomas Duve, Max Planck Institute for European Legal History, has posted German Legal History: National Traditions and Transnational Perspectives, which is to appear in Rechtsgeschichte–Legal History 22 (2014).  Here is the abstract:   
In this article, I review select institutional and analytical traditions of Legal History in 20th century Germany, in order to put forth some recommendations for the future development of our discipline. A careful examination of the evolution of Legal History in Germany in the last twenty-five years, in particular, reveals radical transformations in the research framework: within the study of law, there has been a shift in the internal reference points for Legal History. While the discipline is opening up to new understandings of law and to its neighboring disciplines, its institutional position at the law departments has become precarious. Research funding is being allocated in new ways and the German academic system is witnessing ever more internal differentiation. Internationally, German contributions and analytic traditions are receiving less attention and are being marginalized as new regions enter into a global dialogue on law and its history. The German tradition of research in Legal History had for long been setting benchmarks internationally; now it has to reflect upon and react to new global knowledge systems that have emerged in light of the digital revolution and the transnationalization of legal and academic systems. If legal historians in Germany accept the challenge these changing conditions pose, thrilling new intellectual and also institutional opportunities emerge. Especially the transnationalization of law and the need for a transnational legal scholarship offers fascinating perspectives for Legal History
Hat tip: Juris Diversitas

New Release: Shulman, "The Constitutional Parent"

New from Yale University Press: The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child (2014), by Jeffrey Shulman (Georgetown University Law Center). Here's a description from the Press:
In this bold and timely work, law professor Jeffrey Shulman argues that the United States Constitution does not protect a fundamental right to parent. Based on a rigorous reconsideration of the historical record, Shulman challenges the notion, held by academics and the general public alike, that parental rights have a long-standing legal pedigree. What is deeply rooted in our legal tradition and social conscience, Shulman demonstrates, is the idea that the state entrusts parents with custody of the child, and it does so only as long as parents meet their fiduciary duty to serve the developmental needs of the child.

Shulman’s illuminating account of American legal history is of more than academic interest.  If once again we treat parenting as a delegated responsibility—as a sacred trust, not a sacred right—we will not all reach the same legal prescriptions, but we might be more willing to consider how time-honored principles of family law can effectively accommodate the evolving interests of parent, child, and state. 
A few blurbs:
"This book is a watershed moment in the trajectory of scholarship on parents’ rights, and the state’s obligations, over and toward the education and well-being of children.  It is a brilliant book in several respects: it is at once rigorous and intellectual, but also passionate, intense, and central to the well-being of our polity."—Robin West

"The Constitutional Parent combines rich historical and normative analysis in novel ways to mount a compelling critique of prevailing assumptions about parental entitlement to control children's lives. It is a fascinating read."—James Dwyer
Excerpts of the book, along with the TOC, are available here.

Sunday, August 10, 2014

Sunday Book Roundup

To follow up on last week's post, here's a few more posts on the Nixon tapes, all at The Daily Beast. There's an interview with Ken Hughes, author of Chasing Shadows: The Nixon Tapes, the Chennault Affair, and the Origins of Watergate (University of Virginia Press). White House counsel and author of The Nixon Defense (Viking Adult), John Dean is interviewed, as well. And, Douglas Brinkley talks to The Daily Beast  about The Nixon Tapes: 1971-1972 (Houghton Mifflin Harcourt), which he co-edited with Luke Nichter. 

The New York Times follows up on the debates inspired by Rick Perlstein's The Invisible Bridge (Simon & Schuster), which was also heavily covered in the reviews last week.

Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It (Counterpoint) by Lisa Bloom is reviewed in the Los Angeles Review of Books.
"In Suspicion Nation, best-selling author Lisa Bloom has written two books and put them under one cover. The first book is a dissection of the Trayvon Martin case with a highly critical analysis of the prosecution’s presentation in People v. George Zimmerman. The second book is Bloom’s thoughts on hot-button issues, from gun control to the role of race in our criminal justice system. While Bloom may have intended for her examination of the Zimmerman prosecution to be the primary focus of her book, she really just uses it as a vehicle to share her opinions on a wider range of issues confronting the legal system today."

 Up on H-Net is a review of Robert B. Rakove's Kennedy, Johnson, and the Nonaligned World (Cambridge University Press).
"The central historical problem that Robert B. Rakove sets out to solve in Kennedy, Johnson, and the Nonaligned World is how to explain the remarkable transformation in the relationship between the United States and much of the postcolonial world over the course of the 1960s."
Also on H-Net is a review of The State Trial of Doctor Henry Sacheverell (Wiley-Blackwell) by Brian Cowan, and a review of Noriko Aso's Public Properties: Museums in Imperial Japan (Duke University Press).

Gavin Wright's Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (Belknap Press) is reviewed on HNN.
"Granting that the movement was “a moral and legal revolution,” (2) Wright asks the provocative and important question whether it can be declared an economic one as well. Now that enough time has passed to allow for both sufficient historical distance and the accumulation of enough relevant data, he is able to argue convincingly that the “record shows strong gains…for African Americans in the South—relative to earlier levels, relative to southern whites, and relative to national standards.” (26) To those who do not specialize in economic analysis or the history of the Civil Rights Movement, this point might seem fairly obvious: It would seem difficult to argue that blacks’ economic situation has not improved since the days of Jim Crow. But to emphasize that point is to commit the fallacy–so often warned against by economists–of confusing correlation with causation. The fact that African Americans have enjoyed economic improvement since segregation does not necessarily mean that they have done so because ofthe Civil Rights Movement.
But Wright believes that the movement was the primary catalyst for these changes, and one of the major purposes of his book is to contest two alternative explanations for this improvement."
The Federal Lawyer has a couple of reviews to note as well. Nicholas R. Parrillo's Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (Yale University Press) is reviewed online, here. There's more of the publication's reviews available here, including The Forgotten Presidents: Their Untold Constitutional Legacy by Michael J. Gerhardt (Oxford University Press).

Saturday, August 9, 2014

Tomlins on the Law of Slavery in Virginia, 1829-1832

Christopher Lawrence Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted Revulsions of Capital: The Political Law of Slavery in the Epoch of the Turner Rebellion, Virginia 1829-1832.  Here is the abstract:
This paper continues the pattern of work I have been pursuing on the Turner Rebellion, a slave rebellion that took place in Virginia in August 1831. During the past two years I have been engaged in preliminary explorations of different aspects of the rebellion that have resulted in a series of working papers, written to teach myself what I don’t know, and what I should. This paper was written for the same purpose; it differs from prior papers in stepping back from the rebellion itself in order to situate it in Virginia’s constitutional history, and in regard to the debate over gradual emancipation that broke out in its aftermath. Essentially, Virginia in the epoch of the Turner Rebellion is a state divided largely on east-west lines. Slavery dominates east of the Blue Ridge in the long-settled Tidewater and Piedmont; the west (particularly the Trans-Allegheny region that would eventually become the state of West Virginia) is much more recently settled and largely slave-free. This division, together with less marked local slaveholder/non-slaveholder and freeholder/non-freeholder distinctions in the east of the state, largely determines the substance and structure of Virginia’s politics. I consider two “phases” of Virginia’s politics: (1) the Constitutional Convention of 1829-1830, in which Eastern and Western delegates fought over the replacement of county-based apportionment and suffrage that privileged freehold in land by white basis apportionment and white manhood suffrage, and (2) the emancipation debate that took place in 1831-32 during the first session of the state legislature to meet following the Turner Rebellion. I also consider the analysis of the emancipation debate written in 1832 by the William & Mary professor of “political law” Thomas Roderick Dew, Review of the Debate in the Virginia Legislature of 1831 and 1832. I argue that out of the deep divisions exposed by the constitutional and legislative debates there emerged a new political and economic equilibrium, confirmed in Dew’s analysis, and centered not, as before, upon propertied hierarchy but upon property’s commodification, notably commodified labor. In the case of self-possessed white labor, commodification meant increased circulation. The same was true of enslaved labor, with the important qualification that slaves had no control over how far they were circulated. Slavery became transactional – the price of subsistence. Their commodification meant slaves were no longer harnessed to custom (in the shape of common law property claims), or to positive municipal law, or to paternal stewardship, but instead represented a capital investment on which the master-creditor might realize returns either through work, or, just as rationally, sale into the interstate slave trade. The paper concludes with a short analysis of Virginia’s contribution to that trade before and after the Turner Rebellion.

Weekend Roundup

    • Via The Junto: Advice on running social media feeds for historical organizations and history departments. (Takeaway: your department should really be tweeting about your accomplishments!)
    • Have you registered for ASLH 2014 in Denver yet?  (Hotel information will be sent to registrants automatically upon completing the registration process.  If  the hotel's website claims it is fully booked, try calling.)  The opening reception is in the Colorado Supreme Court from 4-6pm on Thursday, November 6.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, August 8, 2014

    Salmon P. Chase and the Republican Constitution

    Salmon P. Chase (LC)
    On December 5-6, 2014, the Center for the Constitution at the Georgetown University Law Center will host a lecture and symposium to commemorate the 150th anniversary of Salmon P. Chase’s appointment as Chief Justice of the United States.  The Center’s inaugural Distinguished Lecture, “Freedom National, Slavery Local: The Antislavery Constitutionalism of Salmon P. Chase,” will be delivered on December 5 by James Oakes, Distinguished Professor of History at the Graduate Center of the City University of New York.  The lecture is co-sponsored of the Supreme Court Historical Society and is open to its members and the general public.  (Details to follow, here and, next month, on the SCHS's website.)  The colloquium, “Salmon P. Chase and the Republican Constitution,” is by invitation only and will be held on December 6.  Its four sessions will address the following topics:
    1. Chase, The Antislavery Lawyer, covering his constitutional challenges to the  Fugitive Slave Act in the In re Matilda and Jones v. Van Zandt cases;
    2. Chase, The Antislavery Political Organizer, covering his role in founding and developing the constitutional platforms of the Free soil, Liberty and Republican parties;
    3. Chase, The Antislavery Public Official, discussing his contributions as a U.S. Senator from Ohio, Governor of Ohio, and Treasury Secretary in Lincoln’s cabinet;
    4. Chase, The Reconstruction Chief Justice, discussing some of his decisions, such as Texas v. White and the Legal Tender Cases, as well as his dissenting vote in Bradwell v. Illinois and his role in presiding over the impeachment trial of President Andrew Johnson.

    Vandevelde's History of Thomas Jefferson School of Law

    As the writer of about two thirds of a history of the Georgetown University Law Center, I’m always
    Mirror, Mirror, off the Wall?
    interested when other scholars take on the history of their own institutions.  Now comes Kenneth J. Vandevelde, who has posted Chapter 2 of his History of the Thomas Jefferson School of Law (California Press, 2013).  Here is the abstract:
    A History of the Thomas Jefferson School of Law is the story of the radical transformation of a San Diego law school during the final decades of the twentieth century, a story that is told in the context of larger changes occurring in American legal education in those years. The author served as dean of the law school from 1994 to 2005.

    The Thomas Jefferson School of Law was founded in 1969 as the San Diego branch campus of Western State University College of Law (WSU), a for-profit, non-ABA-accredited Orange County law school that primarily served part-time evening students. The law school was proud of educating working adults and produced some outstanding alumni, but its attrition rates ranged between 50 and 75 percent and its pass rate on the California bar exam sometimes fell below 25 percent.

    In a half dozen years during the 1990s, the law school experienced a rebirth. It separated from WSU, adopted a new name, became the first for-profit law school to gain ABA accreditation, and became the first and only ABA-approved law school to convert from a for-profit to a nonprofit institution. Admissions applications soared more than ten-fold, resulting in a nationally based student body second in California only to Stanford’s for its geographic diversity. The law school’s academic dismissal rate dropped to around 5 percent and its California bar pass rate climbed above 75 percent. The law school was ranked 5th in the nation for the quality of academic life and 55th among law schools worldwide for the number of its faculty publications downloaded from SSRN. Its legal writing program was ranked in the top 20 nationally.

    Chapter Two of the book, posted here for free download on SSRN, offers a very candid portrayal of the law school in its early history, capturing the culture of a new state-accredited, part-time law school in Southern California in the early 1970s struggling to bolster its academic program, its reputation, and its revenue. Later chapters describe the impact of rapidly declining applications for admission to law schools nationally during the 1980s, the historic challenges to the ABA’s accreditation standards, WSU’s disastrous application for ABA approval in the late 1980s, and the renaissance on the San Diego campus that began in the early 1990s, culminating in a complete transformation of the institution in less than a decade.

    The published version of the book contains approximately 80 photographs depicting key individuals, places and events in the history of the law school.

    Thursday, August 7, 2014

    Lawson Reviews Hamburger; Roberts Reviews Ernst

    Gary Lawson, Boston University School of Law, has posted a review of Philip Hamburger’s Is Administrative Law Unlawful?, The Return of the King: The Unsavory Origins of Administrative Law, which is forthcoming in the Texas Law Review.  Here is the abstract:
    Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the forms of governmental action that constitutionalism – both in general and as specifically manifested in the United States Constitution – was designed to prevent. Accordingly, virtually every aspect of modern administrative law directly challenges the Constitution.

    This extraordinary book will be immensely valuable to anyone interested in public law. My comments here concern two relatively minor points that call for more clarification. First, Professor Hamburger does not clearly identify what it means for administrative law to be “unlawful.” Does that mean “in violation of the written Constitution”? “In violation of unwritten constitutional norms?” In violation of natural law”? There is evidence that Professor Hamburger means something more than the former, but it is not clear what more is intended. In order to gauge the real status of administrative law, we must have a more direct conception of law than Professor Hamburger provides.

    Second, much of Professor Hamburger’s historical and constitutional analysis focuses on the subdelegation of legislative authority. While his discussion contains numerous profound insights, including some that require correction in my own prior scholarship on the subject, it does not discuss how to distinguish interpretation by judicial and executive actors from lawmaking by those actors. Presumably, the prohibition on subdelegation of legislative authority prohibits only the latter. Figuring out where interpretation ends and lawmaking begins is one of the most difficult questions in all of jurisprudence, and I am not convinced that Professor Hamburger can successfully perform an end-run around it.

    But these are modest nitpicks about a path-breaking work that should keep people of all different persuasions engaged and occupied for quite some time.
    And Alasdair S. Roberts, Suffolk University Law School, has posted his review, forthcoming in Public Administration Review, of my Tocqueville's Nightmare:
    Modern introductions to administrative law can be dry and technical, because they must account for decades of modern statute and case law. By contrast, Tocqueville's Nightmare illustrates why it all matters. It shows vividly what was perceived to be at stake as the United States entered the age of regulation, and describes the fundamental ways in which law was adjusted to meet the new realities of government.

    Foreign Relations History Online

    Years in the making, the website of the Society for Historians of American Foreign Relations (SHAFR) is now on line, with many resources of interest to legal historians.  For example, its news feed recently included the post was Human Rights Activism and the End of the Cold War: A Transnational History of the Helsinki Network.

    OAH Awards and Prizes: Oct. 1 Deadline

    Have you recently completed a dissertation or published a book? Consider applying for one of the Organization of American Historians' many awards. Here are the ones with the nearest deadline (October 1, 2014):
    A full list of OAH awards and prizes is available here.

    Wednesday, August 6, 2014

    The Charles W. McCurdy Legal History Fellowship

    Charles W. McCurdy
    [As a long-time admirer of Professor McCurdy, I’m very pleased to have received the following email from University of Virginia’s Risa Goluboff and Brian Balogh announcing the Charles W. McCurdy Legal History Fellowship.]

    Beginning in the 2015-2016 academic year, the Miller Center at the University of Virginia will join with the University of Virginia Law School to create the Charles W. McCurdy Legal History Fellowship. The fellowship supports completion of exceptional dissertations in legal and constitutional history and that connect with the Miller Center's mission. The application deadline for the fellowship will be February 2nd, 2015. . . .

    [S]ince 2000, the Miller Center fellowship program has helped launch the careers of more than 134 scholars whose dissertations employ history to shed light on American politics, public policy, foreign relations, science and technology policy, the impact of global affairs on the United States, and media and politics.  In addition to funding these scholars, the Miller Center provides training to allow them to market their scholarship for broader audiences, and pairs them with a “dream mentor”—a senior scholar in the fellow’s field who provides critical guidance during their fellowship year.

    Eighty former fellows now teach at major universities, with seventy of them holding tenure or tenure-track positions. Fellows have published 50 books with major presses, and they regularly place op-eds related to their research in the New York Times, Wall Street Journal, Washington Post, and other media. You can read more about the fellowship program and the achievements of its alumni on our website.

    For many years, the University of Virginia has maintained a nationally renowned Legal History Program. With numerous eminent faculty in the Law School, the Miller Center, and the Corcoran Department of History, legal history scholarship at the University is both deep and wide. In addition to numerous scholars of the legal history of the United States, faculty are also expert in the legal histories of Britain, China, Mexico, the Ottoman Empire, and ancient Rome and Greece. This vibrant community of scholars supports a Legal History Workshop in which prominent legal historians from other institutions present their work, a legal history writing group in which faculty and students support each other’s writing, and a joint JD/MA in history program. More information on legal history at the University of Virginia is available [here].

    The McCurdy Legal History Fellow will receive a $32,000 stipend during the fellowship year.  The Legal History Fellow will be in residence at the Law School, where he or she will spend the majority of her/his time on dissertation research. The Fellow will also help coordinate the Legal History Workshop and have the opportunity to present her or his own work there. Each legal history fellow will be paired with a “dream mentor” and will attend the annual spring fellowship conference at the Miller Center.  They will also be trained in bringing their scholarship to bear on public debates and formally present their scholarly work.

    The McCurdy Fellow will benefit from the unique opportunity created by the synergies between the Law School and the Miller Center at the University of Virginia.