Sunday, October 4, 2015

Sunday Book Roundup

From The Dallas Morning News, there's a review of Will Haywood's Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America (Knopf).

The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain by Ilya Simin (University of Chicago Press) is reviewed in The New Rambler.
"As a committed libertarian and an up-and-coming scholar of property and constitutional law, Somin was ideally situated to serve both as the leading conservative academic commentator on the case and as a participant in the emerging backlash. Somin’s work on eminent domain has consistently straddled these two worlds of scholarship and property rights advocacy. He has written scores of blog posts on the issue. He has testified before the Senate Judiciary Committee, where he criticized then-Supreme Court nominee Sonia Sotomayor for her vote in a post-Kelo eminent domain case while she was a judge on the Second Circuit. But he has also written several well regarded law review articles on Kelo. And now, in his new book, The Grasping Hand: Kelo v. New London & the Limits of Eminent Domain, Somin offers the most comprehensive review to date both of the case itself and of the various legal reforms the backlash against it has sparked. The book is something of a ten-year retrospective of Somin’s own intellectual engagement with the issue of eminent domain."
Robert L. Benson's posthumous Law, Rulership, and Rhetoric: Selected Essays of Robert L. Benson (University of Notre Dame Press) is reviewed on H-Net.

Thomas Borstelmann's 1970s: A New Global History from Civil Rights to Economic Inequality (Princeton University Press) is also reviewed on H-Net.

From The New York Times, a review of The Gay Revolution: The Story of the Struggle by Lillian Faderman (Simon & Schuster).
"Yet Faderman’s book populates even the familiar corners of gay history with new and vivid life. Perhaps the most obvious contribution is the equal attention it gives to women. Faderman is often called a “lesbian historian,” based on her distinguished work in the field, notably “Surpassing the Love of Men” (1981) and “Odd Girls and Twilight Lovers” (1991). She brings the heft of a career to bear here — of the more than 150 interviews she draws on for this new book, some date back decades, like her 1987 interview with the lesbian pioneers Del Martin and Phyllis Lyon. An expert in lesbian history certainly has an advantage in writing a truly balanced account of the movement as a whole, given that such accounts have often heavily favored men."
And, from The Federal Lawyer, there is a review of Michael Bryon's Submission and Subjection in Leviathan: Good Subjects in the Hobbesian Commonwealth (Palsgrave Macmillan).

Saturday, October 3, 2015

Weekend Roundup

  • Adam Goodman (University of Southern California) has compiled a list of all the events marking the 50th anniversary of the signing of the 1965 Immigration Act
  • Recent guest blogger Mitra Sharafi (University of Wisconsin) recently spoke to the BBC News about Parsi matrimonial courts.  
  • Via the Faculty Lounge, we hear that "C-SPAN begins a twelve-part television series on landmark Supreme Court decisions next week, kicking off with Marbury v. Madison."  Also: Dred Scott, Slaughterhouse, Lochner, Youngstown, Baker v. Carr and so on.  More.
  • As we said, it’s hard to keep up with all those Constitution Day talks. The Image of Liberty was Steven Douglas Smith’s at the University of San Diego School of Law.  It “compares the state of constitutional governance today to that of the Roman Empire, as famously discussed by the historian Edward Gibbon, and discusses alternative strategies that might be contemplated by those who believe that current American governance does not conform to the requirements of the historical Constitution.”
  • The National Archives in conjunction with Consource continues its conversation with US Supreme Court justices, moderated by Akhil Reed Amar, Yale Law School, with Justice Samuel Alito, at 7PM on Thursday, October 29, in the William G. McGowan Theater in the Archives 1 Building. More.
    Sean Wilentz responds to his critics
  • ICYMI: On September 29, Sara Mayeux, the Sharswood Fellow at the University of Pennsylvania Law School, presented in the University of Michigan’s Legal History Workshop on “The ‘Progressive’ Public Defender (and Its Alternatives) in Los Angeles, 1914-1949.”  H/t: Legal Scholarship Blog
  • This past week at The Junto: a roundtable on narrative in historiography.
  • Update: Here, via H-Law, is an interesting ISO for “a third presenter and a commentator to round out our panel proposal for next year’s Conference on Policy History. The panel will focus on various aspects of regulatory diffusion across political borders." More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Norma Basch: An Appreciation by Sarah Barringer Gordon

[We are postponing the Weekend Roundup until later today for this appreciation of Norma Basch, Professor Emerita Rutgers University-Newark, by Sarah Barringer Gordon, Arlin M. Adams Professor of Law and Professor of History, University of Pennsylvania. We're grateful to Professor Gordon for this very thoughtful post and for word of a memorial service for Professor Basch, which will be held at 2 p.m., Sunday, October 25, at the Village Temple, 33 E 12th St, New York.  There will also be a book at the Studies in Legal History book table at the ASLH meeting, where those who wish to can include their remembrances of Norma and condolences for her family.]

Norma Basch, a founder of the modern field of legal history and professor of history at Rutgers University-Newark for 25 years, from 1979 to 2004, and a regular at the NYU Legal History Colloquium for the past decade, died on September 29 at the age of 81.  She was the author of field-defining work in legal history, including In the Eyes of the Law:  Women, Marriage, and Property in Nineteenth Century New York (Ithaca: Cornell University Press, 1982) and Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999). She was also a fine essayist and reviewer, serving for many years on the Journal of American History editorial board, and contributing frequently to Reviews in American History, as well as publishing more than thirty articles, comments, and book reviews in leading peer-reviewed journals.  Last but not least, Norma was a friend and mentor to many of us in the field of legal history.  She was generous with her time, and had a wry wit that delighted her friends and interlocutors.

Basch began her academic career in 1979, with an article in Feminist Studies titled “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America.” The law of marriage became her central focus, and in this first article she debuted the sharp and articulate style of writing that became her hallmark: “If the legal oneness of the husband and wife was a common law axiom, the legal invisibility of the wife was its corollary.” (p. 347).  When In the Eyes of the Law was published three years later to great acclaim, it became clear that Basch understood how the common law rule of marital unity could survive the passage of New York’s 1848 Married Women’s Property Act.  The essential conservatism of the law (and those who administered it) was to blame, as the law did not address directly core doctrines of the common law of coverture, and courts held those doctrines survived the legislation.  Thus Basch successfully challenged Mary Beard’s 1946 classic Woman as a Force in History, showing that Beard’s emphasis on equity law as a refuge for married women elided the all important survival of marital unity, which sharply limited the scope and sweep of equity jurisprudence.  And yet, as Basch shows, a shift did occur, even though the revolution was stopped at the courthouse door.  In political culture, subtle changes shifted the conversation toward concepts of equality as a way of thinking about women and the state – the early woman’s rights movement, for example, marked the passage of the property act as a significant advance.

Basch’s second book, Framing American Divorce, was a pathbreaking vision of how to do legal history.  In three separate sections (titled rules, mediations, and representations), Basch first explored the complex and fascinating ways that divorce in the first century of American national history was intimately linked to the Declaration of Independence, which "at once explained, decreed, and sanctified a divorce from the bonds of empire; and from the bonds of empire to the bonds of matrimony, it was but a short conceptual step." (p. 25)  In careful case studies of the very different legal regimes in New York and Indiana, moreover, Basch showed how deeply divorce was tied to assertions of state power over marriage, in addition to the expression of traditional male as well as nascent female authority within marriage.   The deep political and legal debates over divorce, in other words, did not fit neatly into a feminist or patriarchal mold.  All too frequently, a wife initiated divorce proceedings not to protect themselves from their husbands, but to formalize her husband’s informal desertion of her.  And finally, she explores popular culture, including trial pamphlets and fiction that pulled in different directions, respectively increasing the visibility and desirability of liberal divorce and raising the tone of shame and defeat associated with it.  This creative and sophisticated exploration of divorce in multiple settings across time integrated in fresh and lasting ways the study of divorce as both a cultural and social matter, as well as a legal process.

One particularly notable outgrowth of this second project is a 1993 article in the Journal of American History on the complex divorce of President Andrew Jackson’s wife Rachel from her first husband, and the role that the story of the bungled divorce played in the bitter partisan politics of the 1828 presidential election.  Desertion, seduction, and adultery, Basch showed, played well in an atmosphere of increased voter participation and the growth of party organizations, especially given the proliferation of newspapers.  As Basch elegantly described the mix, the 1828 election was a “journalistic and political watershed,” combined with an early and powerful example of “organized manipulation of a sexual scandal.” (p. 892) As supporters of the two candidates fought over whether Rachel and Andrew Jackson were licentious and unprincipled (and thus Jackson was unfit for public office, per the Adamsites), or the “domestic peace” and privacy of the generous and genuine Old Hickory had been unduly invaded and his wife driven to an early grave (per the Jacksonites).  The success of the hero of New Orleans, Basch cautions, should not be interpreted simply, but rather as a tale of the gradual erosion of the metaphorical association between household and polity, to note just one of several important insights Basch draws from the story.

Thus Basch leaves a powerful legacy of sharp prose, careful research, and keen analysis of women’s lives and legal experience in the nineteenth century.  She will be greatly missed.

Friday, October 2, 2015

Norma Basch (1934-2015)

[Over at H-Law, R. B. Bernstein has reported the sad news of Norma Basch’s death.  The New York Times obituary is here.  We will be posting an appreciation as early as first thing tomorrow, but in the interim here is an announcement from Jan Ellen Lewis, Dean of Faculty and Professor of History, at Rutgers-Newark College of Arts and Sciences, where she was Professor Basch’s colleague.]

It is with deep sadness that we report the death yesterday afternoon of Professor Emerita of History Norma Basch, who taught at Rutgers University-Newark from 1979 until her retirement in 2004.  The publication of her landmark book In The Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York, vaunted her to the forefront of the emerging field of women's legal history, a position she continued to occupy throughout her career.  Several months before her passing, she signed onto the amicus brief filed by Historians of Marriage and the Family and the American Historical Association and cited in the majority opinion in Obergefell v. Hodges, the Supreme Court case that validated marriage equality.  Her major works, both her first book and her second, Framing American Divorce: From the Revolutionary Generation to the Victorians, are listed in the bibliography to the amicus brief and cited in its first footnote, a testament to the abiding impact of her work.

A native of Worcester, MA, Professor Basch moved to New York to attend Barnard College, from which she received her B.A. in 1956, and where she met her husband Sheldon, then a student at Columbia.  Discouraged as a woman from pursuing graduate studies at that point, she instead devoted herself to her children, Rachel and Fred, not entering graduate school until they were in school, by which time the feminist movement had made advanced studies for women less anomalous.  She received her Ph.D. from New York University in 1979, with her dissertation winning the university's Bayrd Still Prize for the best dissertation in history that year.

Basch remained a feminist, both personally and professionally, throughout her life, inspiring students, colleagues, and other scholars with the acuity of her insights and analysis and the passion of her commitment.  She wrote with unusual clarity and panache, illuminating complex issues in the history of the law with compelling stories of women and men who shaped legal practices and pushed at the law's constraints to accommodate their needs and interests and the intricacies of their remarkable lives.  Widely recognized as a leader in her field, Basch held a number of leadership positions in the American Society for Legal History; she served as well on the editorial boards of the Journal of American History and the Journal of the Early Republic. Her work was supported by fellowships from the Woodrow Wilson Foundation, the National Endowment for the Humanities, the American Council of Learned Societies, and the American Antiquarian Society. Three of her articles were awarded prizes, one each from the Organization of American Historians, the Berkshire Conference of Women's Historians, and the Society for Historians of the Early American Republic.  Framing American Divorce won the Scribes Book Award, given out annually by the American Society of Writers on Legal Subjects.  Basch also served a term as Chair of the Department of History at Rutgers University-Newark, providing outstanding leadership during a period of growth.

Norma Basch is survived by her husband Sheldon; her daughter Rachel, a novelist; her son Fred, an architect, and his wife Sue; and three grandchildren, all of whom made her enormously proud. 

Update:  A memorial service will be held at 2 p.m., Sunday, October 25, at the Village Temple, 33 E 12th St, New York.  There will also be a book at the Studies in Legal History book table at the ASLH meeting, where those who wish to can include their remembrances of Norma and condolences for her family.

Ted Kennedy Oral History Project Released

Sen. Edward M. Kennedy (1990)
On Wednesday, the Miller Center for Public Affairs at the University of Virginia and the Edward M. Kennedy Institute announced the release Ted Kennedy Oral History Project.  A complete list of interviewees is here.  Of special interest to legal historians, because of their insight into Senator Kennedy and deregulation, are interviews by Justice Stephen Breyer (here and here) and by David Boise.

Call for Submissions: Journal of Constitutional Studies

Via H-Law, we have the following call for submissions:
Constitutional Studies invites submissions. The journal seeks work of the highest quality that expands our understanding of constitutional democratic institutions and the bases for their legitimacy, practices of constitutional self-government, formal and informal constitutional systems, approaches to constitutional jurisprudence, and related subjects. We welcome submissions from a comparative, empirical, historical, normative, or analytic perspective from scholars across the range of the social sciences and humanities.
Interested authors should visit our website at <> for instructions on formatting and submission. Potential articles should be no more than 10,000 words.  All submissions will be subjected to double-blind peer review.  Questions about the journal or submissions can be sent to <>.
The journal is supported by generous funding from the Bradley Foundation and the Center for the Study of Liberal Democracy and published by the University of Wisconsin Press.

Howard Schweber, Editor
Jennifer Brookhart, Managing Editor

Magna Carta: The View from Hong Kong

[We have the following announcement.]

The three Hong Kong law schools will be organising a joint conference on Saturday, 31 October 2015 to commemorate the 800th anniversary of Magna Carta. The conference entitled “Magna Carta and the Rule of Law in Hong Kong” will be held at the Graduate Law Centre of the Chinese University of Hong Kong.

Speakers from all over the common law world will be presenting on the historical importance of Magna Carta and its importance in Hong Kong today. Speakers include Justice Bokhary, Professor Christopher F. Forsyth (University of Cambridge), Professor David Seipp (Boston University), Professor Catharine MacMillan (University of Reading), and Mr. Philip Dykes (Senior Counsel). Noted academics from all three law schools will also present papers at the conference.

Please contact Noel Chan ( of Chinese University of Hong Kong if you would like more information or would like to register for this event.

Manion and Careceral Culture and Working Women in Early America

We’ve seen an announcement of Capitalism, Carceral Culture, and the Domestication of Working Women in the Early American City, by Jen Manion, Connecticut College.  This is a meeting of Boston Seminar on the History of Women and Gender and will convene on Thursday, Oct 8, 2015, at 5:30 pm, in the Arthur and Elizabeth Schlesinger Library on the History of Women in America.  Cornelia Dayton, University of Connecticut, will comment.

The announcement explains:
Ideas about race, gender, and sexuality were driving forces in the transformation of both manufacturing and punishment in the nascent years of industrial capitalism. Arrest and imprisonment was an occupational hazard for hucksters, sex workers, and tippling house operators, while the penitentiary imposed ideals of femininity defined by whiteness, domesticity, and submission on the poor working women behind its walls.

The Boston Seminar Series on the History of Women and Gender—cosponsored by the Massachusetts Historical Society and the Schlesinger Library at the Radcliffe Institute for Advanced Study—offers scholars and students an opportunity to discuss new research on any aspect of the history of women and gender in the United States, without chronological limitation.

The seminar series includes four meetings that will take place during the 2015–2016 academic year, each revolving around the discussion of a precirculated paper. Sessions open with remarks from the essayist and an assigned commentator, after which the discussion is opened to the floor.

Registration for the series is required. Registered participants may access the papers online at the Massachusetts Historical Society website.  For more information, please call 617-495-8647 or email

Laws of Image

I'm very happy to have the opportunity to share my work on the Legal History Blog this month. I was invited to blog because of the recent publication of my book, Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). The book offers a cultural and legal history of privacy and libel law in the U.S. from the late 19th century to the present, and it reframes those areas of law by linking them to what I describe as Americans' image consciousness: our concern with our looks, public personas, and the impressions that we make. In the book, I describe libel and privacy law as "laws of public image": laws that protect our ability to control and defend our public images, and to feel good about our images and public presentation of self. In my posts this month, I'll share some highlights from the book.

The book starts with these anecdotes:

In 2013, a woman found that her daughter's picture had been used in an ad for a local ice cream store, without the daughter's or the mother's consent. Her daughter had simply "liked" the ice cream store on Facebook. The woman was outraged and embarrassed.

In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C. that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article's author on the street. The caption didn't name her, and the article didn't refer to her. Although the woman had consented to be photographed, she didn't know that the picture would be used in an article on cheating cabbies.

Angry and humiliated, these people could have done any number of things. One thing they did was to initiate lawsuits.

In the past hundred years, Americans have turned increasingly to the law to help them defend and control their public images. The twentieth century saw the creation of a "law of public image," and the phenomenon of "personal image litigation."

Under these laws of image, you can sue if you've been depicted in an embarrassing manner, even if no one thinks less of you for it. If a newspaper or website publishes your picture in a way you find offensive, you can, under circumstances, receive damages for your sense of affront -- for the outrage that someone has taken liberties with your image and interfered with the way you want to be known to the world.

Why does the law in the United States acknowledge rights to one's image? As I'll explain in forthcoming posts, the development of image law is part of a broader story of how Americans became fascinated, even obsessed with manipulating, perfecting, and reflecting on their own personal images.

Thursday, October 1, 2015

CFP: Italian Society for Law and Economics

[We have the following announcement.]

The Italian Society of Law and Economics (ISLE - SIDE) welcomes submissions of papers on any topic regarding the Economic Analysis of Law for its 11th annual conference to be held in Napoli (Italy) on December 18-19, 2015, at the Department of Economic Science of the University of Naples - Federico II.

ISLE invites contributions in all aspects related to Law and Economics, such as Bankruptcy, Behavioural Law and Economics, Competition Policy and Antitrust Law and Economics, Corporate Governance and Corporate Law, Criminal Law, Environmental Law and Economics, Constitutional Law and Economics, Family Law and Economics, History of Law and Economics Thought, Institutional and New-Institutional Economics, Intellectual Property, Judicial Decision-Making, Law & Social Norms, Law and Finance, Regulation, Securities Law, and Taxation.

Submissions must be original and not published elsewhere. People from the Local Organizing Committee and the Advisory Board will select the papers to be presented at the Conference. Priority will be given to completed papers. Please note that, as in previous years, both Italian and English submissions are welcome. The program will guarantee at least one English session for each time slot. A draft or completed paper shall be submitted online through our website.

Paper submission deadline: October 2, 2015
Communication of acceptance: October 16, 2015
Final papers due by: November 27, 2015
Registration before: December 4, 2015
Conference: December 18-19, 2015

Start here to submit a paper to this conference.

Magna Carta: The Octocentennial that Keeps on Giving

[We have the following announcement of an event to take place later today.]

Donald T. Critchlow, the Director of Arizona State University's Center for Political Thought and Leadership, announces] a symposium celebrating the Magna Carta and Its American Legacy on the ASU Tempe campus in the Memorial Union Pima Room (lower level) from 6:30 - 8:30 pm.

This two-hour symposium will analyze the relevance of the Magna Carta both as a historical document and as a catalyst in the development of modern-day American legal thought. The Magna Carta's economic, political, and legal aspects will be debated and illustrated by outstanding writers and scholars from diverse fields. Please join us for this historic anniversary of one of the most important documents in human history.

Free and open to the public.  Refreshments will be served.

6:00-6:30pm:  Light refreshments served
6:30-6:45pm:  Welcome and Introduction
6:45-7:15pm:  "The Importance of Magna Carta For Today" presented by Henry Clark, Visiting Professor, Political Economy Project, Dartmouth College
7:15-7:30pm:  "The Magna Carta: A Tax Professor's Perspective" presented by Adam Chodorow, Willard H. Pedrick Distinguished Research Scholar, Sandra Day O'Connor College of Law, ASU
7:30-7:45:  "Restraints on Executive Authority: Magna Carta and the U.S. Constitution" presented by Myles Lynk, Peter Kiewit Foundation Professor of Law and the Legal Profession, Sandra Day O'Conner College of Law, ASU
7:45-8:30:  Questions and Discussion

Gudridge on Holmes and Moore v. Dempsey

Patrick Gudridge, University of Miami School of Law, has posted Past Present, an essay on Justice Oliver Wendell Holmes and Moore v. Dempsey:
This paper has turned out (I have come to realize) to be the beginnings of a much more ambitious exploration of the Holmes opinion in Moore v. Dempsey and the question of what we might make of it. Moore, I want to argue, is an under-appreciated gateway, points to a notably profound and sober passage back and forth across a longer, accumulating run of pronouncements and possibilities within American constitutional law “writ large” (borrowing Larry Tribe’s apt phrase).

Moore addressed events in Phillips County, Arkansas, beginning in 1919 -- the “Elaine Massacre,” white killings of African American tenant farmers and their families consequent to a union organizing effort, deaths (we now estimate) of maybe 243 African Americans and one to five white participants: perhaps the single bloodiest incident in “the war of race” that raged throughout the period after Reconstruction running well into the twentieth century. The Supreme Court’s ruling, as Holmes constructed it in his majority opinion in Moore, was in the end a plainly aggressive intervention in the Phillips County outrage, demanding federal district court full review of local murder prosecutions of African Americans, but as written it looks to be near to microscopically terse. Holmes of course is an uncertain, controversial, and difficult writer for us now. But the opinion taken as it is, I think, quite surprisingly opens up, travels back and forth across a wide “past” (further and wider than this draft shows), and an emphatic approach to constitutional law still available for use in what we think of as “present” (in more ways than this draft suggests).

Note: Except for some introductory comments, this essay was put together initially for purposes of participating in Michael Froomkin’s JOTWELL conference last fall. JOTWELL is a remarkable invention, well worth a visit to its overarching website.

When Omission Matters: Diverse Perspectives on the Legal History of the Administrative State

Last week we noted Mike Konczal's recent essay, "Hail to the Pencil Pusher," which appeared in the Boston Review. Konczal, a fellow at the Roosevelt Institute, admirably synthesizes academic work by Bill Novak, Jerry Mashaw, Dan Ernst, Anuj Desai, Jeremy Kessler, William Eskridge, Jr., John Ferejohn, and Sophia Lee to demonstrate "American bureaucracy's long and useful history." Konczal also explains clearly and concisely why this research ought to matter to the general public. Most notably, in his view, it challenges an alternative history, popular among some contemporary conservatives, in which American bureaucracy is a recent and generally harmful invention.

I was delighted to see someone outside of academia place a spotlight on some of our field's most exciting work. I could say many more good things, both about the essay and the research that informed it. (Read it! All of it!) Instead -- and without appearing ungrateful, I hope -- I am going to use Konczal’s essay to provoke some conversations that I think legal historians should be having. Specifically, I want to talk about omission and gender. Of the authors discussed, only one (Lee) is a woman. Does that matter? If so, why? Review essays needn't be comprehensive, of course, especially in this type of venue, but as I explain after the jump, I think we would do well to at least reflect on gender disparities when we spot them.

Welcome, Samantha Barbas!

Samantha Barbas (credit)
We are delighted to have with us as a guest blogger this month Samantha Barbas, Associate Professor of Law at SUNY Buffalo Law School. Professor Barbas holds a Ph.D. in American history from the University of California, Berkeley, and a J.D. from Stanford Law School. She was previously an assistant professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University. She clerked for Judge Richard Clifton on the Ninth Circuit Court of Appeals in Honolulu, Hawaii.  She is the author of two previous books: Movie Crazy: Fans, Stars, and the Cult of Celebrity (2001) and The First Lady of Hollywood: A Biography of Louella Parsons (2005).

She is also the author of Laws of Image: Privacy and Publicity in America, which is just out from the Stanford University Press.
Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights.

Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.
Endorsements from Lawrence Lessig, Hendrik Hartog, and Stuart Banner appear after the jump.  Welcome, Samantha!

Wednesday, September 30, 2015

Jewish Legal Theorists in the 19th and 20th Centuries

[Via H-Law we have the following announcement.]
The Simon Dubnow Institute for Jewish History and Culture at Leipzig University is planning a new research group centered on the biographies and life work of nineteenth and twentieth century Jewish legal theorists. Within the research group's framework, the Institute will sponsor three closely aligned, interdisciplinary studies of individual jurists. We welcome project proposals from interested scholars.
The biographies are meant to address problems of cultural and legal history and be oriented towards the chronology of each jurist's œuvre. The projects should place special emphasis on the interaction between law and experience, with both dimensions explored through a juxtaposition of the biographies and work of – prominent and still hardly known – legal theorists. Of special interest here are the influences of political and historical constellations, social and life experiences, and religious background on a jurist's particular legal understanding. Importantly, we discourage approaches meant to demonstrate simple causalities between work and events; rather, we invite approaches grounded in both a careful distinction and simultaneous connection between origins, biography, and conceptual development.
We encourage inquiries oriented toward a complex of shared biographical, professional, and theoretical features: Were there, for example, legal areas for which the Jewish jurists felt special affinity? Can we identify legal tendencies of a theoretical-philosophical nature that were perceived as particularly compelling? In what ways did the Jewish legal theorists stamp the development of relevant schools and juridical realms? Did specifically Jewish experiences contribute to the formation of particular legal concepts? And crucially, to what extent did legal concepts and styles change with transformations in the historical, political, social, and cultural environment?
Our research group wishes to explore such questions against the backdrop of various breaks that were decisive for nineteenth and twentieth century general history and Jewish history in particular. These include the emergence of ethnically homogenizing nation states from the bankrupt old empires after World War I, the transfer of power to Hitler, the beginning of the postwar period, and the movements of migration and flight catalyzed by these developments.
In the framework of a project workshop, there will be a possibility of presenting selected project outlines in the first quarter of 2016.
We invite interested scholars to submit supporting documents, including a vita and a three-page project outline, to:
Simon Dubnow Institute for Jewish History and Culture
at Leipzig University
Professor Dr. Raphael Gross
Goldschmidtstraße 28
04103 Leipzig
or per email to Dr. Jan Gerber (
Application deadline: 1 November 2015
The Simon Dubnow Institute places special emphasis on equal opportunity in hiring and research support; applications from qualified women are thus particularly welcome.
Contact Info: 
Simon Dubnow Institute for Jewish History and Culture
at Leipzig University
Professor Dr. Raphael Gross/Dr. Jan Gerber
Goldschmidtstraße 28
04103 Leipzig
Contact Email:

Stephens on Maori Constitutionalism

Māmari Stephens, Victoria University of Wellington, has posted “To Work Out Their Own Salvation”: Māori Constitutionalism and the Quest for Welfare, which appeared in the Victoria University Wellington Law Review 46 (2015):1-30:
New Zealand recently celebrated 75 years of the implementation of the welfare state in 1938. While debate continues about the nature and effectiveness of state welfare provision, welfare is arguably a matter of constitutional concern in New Zealand. Further examination of New Zealand legal history also shows that the welfare of Māori is indeed a matter of deep constitutional concern to Māori, who have consistently sought legislative and extra-legislative ways to have public power used for broad Māori welfare concerns. It is possible to identify a kind of Māori welfare constitutionalism at work, that is arguably in tension with the thinking and practice that produced the welfare state.

Ms. Peppercorn Considers: Various Issues for the First Time Presenter

October is nearly upon us and we are all gearing up for ASLH! One of the best things about this meeting, and about the Society more generally, is it's openness to graduate students and junior scholars. In this installment of our occasional advice column, "Ms. Peppercorn Considers," our wise colleague takes up various issues for the first time presenter. 
Dear Ms. Peppercorn:

I am a first time presenter at the 2015 ASLH annual meeting, and I have a few questions about how to prepare.  After all, we’re just weeks away from the big day!  In my one previous presentation at an in-house graduate conference at my university, I started with a little introduction of myself and my topic.  Is that too frivolous for ASLH?  Furthermore, how long should I plan to speak? Should I make a powerpoint?  And most important, what should I wear?


New Kid on the Block

Ms. Peppercorn's reply:
Dear NKotB:

Ms Peppercorn loves to SEE new scholars in the field making a presentation at ASLH.  It is a substantive and productive conference, and comments and questions deliver sharp-eyed critiques without the shellacking that Ms P has been distressed to see in some venues.

That said, frivolity is frowned upon, not just by your dedicated advice columnist, but by ASLH conference goers generally.  Thus Ms P recommends only the very shortest of introductions, perhaps to say that the paper you are presenting is part of your larger dissertation project.  But do NOT delay in getting to substance.  The selection process for papers and panels is competitive (unlike some other conferences which shall remain nameless) and the people who come to your panel want to here your argument and the evidence that supports it.   No dilly dallying!

One simply cannot compete with David Rabban.

In terms of a powerpoint, note that the Society has already answered this question for you: AV equipment will not be available at the 2015 conference.

Powerpoint slides, we want to add, are all too often just text that you will be saying anyway, which makes the presenter look like a business school or poli sci denizen.  Ms P counsels in the strongest terms against presentations of that ilk, even if they were allowed.

Finally, the matter of dress is one that legal historians generally do not spend much time on.  We tend to the more practical and less ostentatious side of things.  Jane Dailey and David Rabban set a high standard, to be sure, but the rest of us muddle along.  Ripped jeans might raise some eyebrows, as would shorts.  Bling of all kinds, too.

Ms P wishes NKotB the very best for this inaugural presentation among the good legal historians.  She also invites others in the field to add their mite to the discussion.
If would like to add your own words of wisdom, please do so in the comments. For other sage advice related to this topic, see Ms. Peppercorn's previous column on "How To Survive the Conference."

Call for Applications: ABF Doctoral/Post-Doctoral Fellowships

The American Bar Foundation has issued the following call for applications:
ABF Doctoral/Post-Doctoral Fellowship Program in Law and Social Science

The American Bar Foundation is committed to developing the next generation of scholars in the field of law and social science.  The purpose of the fellowships is to encourage original and significant research on law, the legal profession, and legal institutions.

For the Doctoral/Post-Doctoral Fellowships, applications are invited from outstanding students who are candidates for Ph.D. degrees in the social sciences.  Applicants must have completed all doctoral requirements except the dissertation by September 1, 2016.  Applicants who will have completed the dissertation prior to September 1, 2016 are also welcome to apply.  Doctoral and proposed research must be in the general area of sociolegal studies or in social scientific approaches to law, the legal profession, or legal institutions. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and legal process.  Applicants do not need to be U.S. citizens in order to apply. Minority students are especially encouraged to apply. Applicants are also eligible to apply for the American Bar Foundation and Law and Society Association’s Law and Social Science Dissertation Fellowship & Mentoring Program.

Fellows receive a stipend of $30,000 for 12 months.  Fellows also may request up to $1,500 to reimburse expenses associated with research, travel to meet with advisors, or travel to conferences at which papers are presented.  Relocation expenses up to $2,500 may be reimbursed on application.

Fellowships are awarded for 12 months, beginning, September 1, 2016.

Fellowships are held in residence at the American Bar Foundation.  Appointments to fellowships are full time.  Fellows are expected to participate fully in the academic life of the ABF so that they may develop close collegial ties with other scholars in residence.

Application Process
Applications must include:  (1) a dissertation abstract or proposal with an outline of the substance and methods of the research; (2) two letters of reference, one of which must be from a supervisor of the dissertation; and (3) a curriculum vitae.  In addition, at the applicant’s option, a short sample of written work may be submitted.

Applications for this fellowship must be received no later than December 15, 2015.

Please apply online. Direct all application questions or concerns to Amanda Ehrhardt, Administrative Associate for Academic Affairs and Research Administration, American Bar Foundation, , (312) 988-6517,

Tuesday, September 29, 2015

New Exhibits of Georgetown Law Library Rare Books

[Via H-Law we have the following announcement.]
Georgetown Law Library Special Collections is pleased to announce two new exhibits featuring rare books from our collections. The first is our own exhibit, Magna Carta, Sir Edward Coke, and the Rule of Law at the Dawn of American Settlement. This exhibit is located in the Special Collections exhibit case outside Room 210 in the Williams Law Library. The exhibit features 5 imprints of Magna Carta cum Statutis tum antiquis tum recentibus, the leading compilation of English statutes from the reigns of Elizabeth I and James VI & I, that were annotated in law French by their owners. It also includes images from Sir Edward Coke’s personal annotated copy of Bracton, the landmark treatise of English law written shortly after the authoritative 1225 version of Magna Carta was issued by Henry III. Full text images of all of the featured books are available through DigitalGeorgetown.
The second exhibit is Age of Lawyers: The Roots of American Law in Shakespeare’s Britain at the Folger Shakespeare Library. This exhibit features our copy of Coke’s Bracton and our set of 17th century imprints of Parts 1 through 12 of Coke’s case reports, which were so highly esteemed that they quickly became known simply as The Reports; as well as many other rare books and manuscripts from the Folger’s collections. Georgetown Law Library's Curator of Legal History Collections served as the Academic Advisor for the Folger exhibit.
For further information about these two exhibits, please contact us at

Magna Carta at Carolina Law

Judging from this post on the Faculty Lounge, Al Brophy and the folks at Carolina Law have assembled a first-rate symposium, Celebrating 800 Years of Magna Carta.

Thursday Dinner Speakers
Representative Paul Stam
Professor A.E. Dick Howard, UVA Law

Friday Panels

The Historical Magna Carta
Paul Babie, University of Adelaide
R.H. Helmholtz, University of Chicago Law School
Wilfrid Prest, University of Adelaide
Charles Donahue, Jr., Harvard Law
Suzanna Sherry, Vanderbilt Law (moderator)

The Mythic Magna Carta 
Mary Bilder, Boston College Law School
Daniel Hulseboch, NYU Law
John Orth, Carolina Law
Sally Hadden, Western Michigan University

Keynote Address: Judge Jed Rakoff, SDNY
Introduction by Judge James Wynn, U.S. Court of Appeals (Fourth Circuit)

Unfinished Business of Magna Carta 
Richard Myers, Carolina Law
Mary Ziegler, FSU
Ted Wells, Paul Weiss
Ted Shaw, Carolina Law (moderator)

Abstracts of their articles are here. The symposium will be webcasted live. More information on the symposium is available at the North Carolina Law Review's website.

Gupta-Kagan on a Landmark Family Law Case

Josh Gupta-Kagan, University of South Carolina School of Law, has posted Stanley v. Illinois' Untold Story, William & Mary Bill of Rights Journal 24 (2016):
Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause prohibits the state from removing children from unwed fathers simply because they are not married and requires the state to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt, and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision.

This Article tells Stanley’s untold story for the first time, using original research of state court and Supreme Court records. Those records show that the state was concerned about Stanley’s parental fitness, and did not remove his children simply because he was unmarried, as is frequently assumed. But the state refused to prove Stanley unfit and relied instead on his marital status to justify depriving him of custody. That choice, and Stanley’s avoidance of a due process argument, created a complicated Supreme Court decision-making environment.

This Article explores the Supreme Court’s decision-making in Stanley, and reveals new insights both about Stanley and the Court more broadly. Four justices changed their votes from conference to the final decision – an extreme amount of voting fluidity that shifted the case outcome. The justices’ varying and evolving views eventually led them to a strong due process holding, even though Stanley did not ask for one. This issue fluidity – when the Court issues a ruling based on arguments not raised by the parties – reflects a complex interaction between justices’ efforts to form a majority coalition and lawyers’ litigation choices. Finally, the justices’ papers reveal how Justice Harry Blackmun’s shift to the liberal wing of the Court – and to a staunch parents’ rights vote – began with his angst over Stanley, despite his vote for the state.
H/t: Legal Theory Blog

Cushman on the Docket Books of the Late Hughes Court

We’ve previously noted the analysis by Barry Cushman, Notre Dame Law School, of the docket books of the US Supreme Court during the early terms of Chief Justice Charles Evans Hughes.  Professor Cushman has posted another installment: The Hughes Court Docket Books: The Late Terms, 1937-1940,” which is forthcoming in the American Journal of Legal History 55 (December 2015):
For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 through the 1940 Terms.

The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds new light on decisions such as Erie Railroad v. Tompkins, South Carolina State Highway Department v. Barnwell Bros., Inc., Lane v. Wilson, Railroad Commission of Texas v. Pullman, and United States v. Darby Lumber Co., and helps to explain how a nine-justice Court divided evenly on one of the issues in Coleman v. Miller. The docket books often reveal the justices’ remarks at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ positions between the conference votes and their final votes on the merits.

Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect” that some scholars have found exhibited by the Court’s newest members. In particular, the analysis documents the prominent contribution that new justices, who disdained the Court’s longstanding norm of acquiescence in the judgments of conference majorities, made to the substantial increase in the percentage of its cases that the Court decided by a divided vote. The analysis further reveals the significant part played by the last remnants of the Old Court in retarding what would become a precipitous decline in unanimity rates under Chief Justice Harlan Fiske Stone.

Monday, September 28, 2015

Bilder on Madison on the Three-Fifths Clause

We've previously noted the publication of Madison's Hand by Mary Bilder, Boston College Law School.  Now Professor Bilder has kicked off what will apparently be a series of posts by different authors on the blog We're History prompted by Professor Sean Wilentz's recent op-ed on slavery and the US Constitution.

SHFG to Host Roundtable on 1965 Immigration Act

[Via H-Law, we have the following announcement.]

The Society for History in the Federal Government announces the Annual Richard G. Hewlett Lecture and Reception: “Legacies of the Immigration and Naturalization Act of 1965”

The Society’s annual Richard G. Hewlett Lecture will be held at the Woodrow Wilson Center, Washington, DC, on Thursday, October 22. A meet and greet reception will begin at 6 p.m., followed by a roundtable discussion on the Immigration Act of 1965 at 7 p.m.

Signed into law by President Lyndon B. Johnson on October 3, 1965, this act significantly reformed the United States' immigration procedures by eliminating national origins quotas as defined by the Immigration Act of 1924 and replacing the quotas with overall hemispheric caps on visas issued to applicants. Fifty years after the Immigration Act's implementation, the Hewlett Lecture panelists will briefly discuss the legacies of the Immigration Act, then will engage the audience in a question-and-answer session.

The roundtable will feature Tom Gjelten, Correspondent for Religion and Belief on the National Desk at NPR; Marian L. Smith, former Chief Historian for the U.S. Citizenship and Immigration Services; Ruth Wasem, currently a Kluge Fellow at the Library of Congress; Phil Wolgin, Center for American Progress, For more information and registration, [here.]

Mendenhall on Holmes, Emerson and Pragmatism

Allen Mendenhall, Auburn University, has posted Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey, which will appear in the South Carolina Review 48 (2015): 93-109:
Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey.
H/t: Legal Theory Blog

Sunday, September 27, 2015

Sunday Book Roundup

This week, H-Net posted a review of Chanelle N. Rose's The Struggle for Black Freedom in Miami: Civil Rights and America's Tourist Paradise, 1896-1968 (Louisiana State University Press).
"Rose has complicated the clichéd racial binary of activists in Miami’s long civil rights movement during the same period, 1896 to 1968. The Struggle for Black Freedom in Miami is an exceptional history in at least two respects: for bestowing on black activists the full range of political tactics, and for using Miami as a case study to demonstrate how race relations have been both supported and undermined by a tri-ethnic border city dependent upon a tourist economy. On this note, Rose’s chapters on the intersections between the black liberation struggle and the postwar Latinization of Miami will make valuable reading for any graduate seminar."
Also on the subject of civil rights is an H-Net review of Aram Goudsouzian's Down to the Crossroads: Civil Rights, Black Power, and the Meredith March against Fear (Farrar, Straus, & Giroux).

And even more civil rights history is on HNN, with a review of Kristen Green's Something Must Be Done About Prince Edward County: A Family, a Virginia Town, a Civil Rights Battle (Harper).

Another review of Will Haygood's Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America (Knopf) is publish in the Los Angeles Times.
"Haygood wisely avoids getting mired in legal jargon in a richly textured account that brings to life the political and cultural stakes involved in this confirmation fight. He does so by juxtaposing the drama of the Senate hearings with Marshall's travails as the NAACP's chief counselor. Stories of wrongly accused African Americans whom Marshall freed and civil rights workers whose killers he was unable to bring to justice reveal the elation and despair Marshall endured in serving as his people's go-to lawyer."
New Books in History talks with David Sehat about The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon and Schuster).

They also interview Gregory E. O'Malley about Final Passages: The Intercolonial Slave Trade of British America, 1619-1807 (UNC Press).

Saturday, September 26, 2015

A Museum of "the Weapon of the Weak"

The American Museum of Tort Law opens tomorrow in Winstead, CT, Ralph Nader's home town, the New York Times reports.  A ceremony to dedicate the museum takes place today.  Speakers include Ramsey Clark, Eric Foner (who coined the phrase in our title), and Patty Smith, whose "father, a factory worker, had worshiped Mr. Nader."

Weekend Roundup

  • Speaking of Constitution Day lectures, the uproar over Sean Wilentz's op-ed in the New York Times on slavery and the Constitution, which appeared on the day of his Constitution Day lecture at Princeton, continues.
  • Saul Cornell, Fordham University, will speak on "The Founding Fathers and the Origins of Gun Control: The Forgotten History," at 7 p.m. on Wednesday, September 30, in the Sandra and Alan Gerry Forum, Room 010 in the Rowley Center for Science and Engineering, SUNY Orange, Middletown.  
  • University of Chicago law alumni in Washington, DC, with a spare $25 lying around can hear Laura Weinrib on Labor, Lochner and the First Amendment on Wednesday, September 30, at noon at the Willard Hotel.  Geoffrey R. Stone, Chicago's interim dean, presides.
  • Earlier this year we noted a Call for Papers on "Law Collecting and Law Collectors" from the Scottish Council of Law Reporting with the University of Edinburgh. The organizers have extended the deadline to October 31.  
  • We've heard (from a web posting to which we can no longer link) that faculty members at Brown University are organizing a legal history workshop.
  • I thought some more about my reference to the "timeliness" of Michael Widener in that post on the YLS exhibit on the Pope as judge and lawgiver and realized that my word choice might imply that it was a rush job thrown together to capitalize on the papal visit.  Of course, it was not.  Widener and Anders Winroth had thought of it before the visit was announced.  Not "timeliness," then, but good instincts and really good luck.  DRE.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, September 25, 2015

Green on Clarity and Reasonable Doubt in Judicial Review in the Early Republc

Christopher R. Green, University of Mississippi School of Law and, this year, a fellow in the James Madison Program at Princeton University, has posted Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review:
Courts exercising judicial review in every state require the conflict between a statute and the state constitution to be “clear,” rather than simply shown by the preponderance of the evidence. In almost every state, however, courts also require proof of unconstitutionality beyond reasonable doubt. A state-by-state canvass shows that in the great majority of states, a clarity requirement appeared first, sometimes long before a no-reasonable-doubt rule. To the extent they conflict, clarity has a better pedigree, but there are compelling reasons to take early reasonable-doubt formulations as elaborations of a clarity rule, rather than a consciously higher standard.

The judicial obligation to exercise judicial review only when a constitutional conflict is clear is coupled with an obligation to render constitutional requirements as clear as possible. This obligation means, at a minimum, responding to all contrary considerations with an adequate reasoned explanation, as in contemporary administrative law. Because clarity is contingent on the amount of analysis that courts have given a constitutional issue in response to litigation, it can change over time.

Are historic rationales for a clarity requirement obsolete? One basic sort of rationale — the gravity of judicial review because of its resistance to correction — is not. Another sort of rationale, however — deference to the constitutional views of elected branches — is undermined if and when legislators fail to conduct constitutional analysis or executive officers fail to justify statutes adequately in litigation. Judicial consideration of such failures, however, need not eliminate a clarity requirement, which is a burden of persuasion, not production. Failures of legislative or executive justification can satisfy a clarity requirement or presumption of constitutionality rather than eliminating them.

Prakash to Deliver Murphy Lecture at Princeton

Saikrishna Bangalore Prakash, University of Virginia School of Law, delivers the Walter F. Murphy Lecture in American Constitutionalism, entitled "The Living Presidency’s Imperial Beginnings," on Monday, September 28, 2015, at 4:30 p.m. in Dodds Auditorium, Robertson Hall, Princeton University.  This public event is cosponsored by Princeton’s James Madison Program in American Ideals and Institutions, and the Program in Law and Public Affairs.

We've previously noticed the publication of Professor Prakash's new book, Imperial from the Beginning: The Constitution of the Original Executive.

Thursday, September 24, 2015

Legal Life Writing: Workshop and Book Launch

[We have the following announcement.]

The Legal Biography Project at the LSE
Legal Life Writing: Marginalised Subjects and Sources -
A Workshop and Book Launch

Tuesday 20 October 201
5 | 4-6pm Moot Court Room, 7th Floor, New Academic Building, London School of Economics (LSE), 54 Lincoln's Inn Fields, London WC2A 3LJ. Followed by Drinks Reception: 6-7pm.

‘Life writing' is an increasingly popular field of scholarship but much work to date has focused on charting the lives of the elite; most often white male judges and lawyers. Scholarship in this field has also been limited in its inter-disciplinary scope. This workshop will discuss a new book, Legal Life Writing: Marginalised Subjects and Sources (Wiley, 2015), edited by Linda Mulcahy (LSE) and David Sugarman (Lancaster) that explores the gaps in existing literature by focussing on the lives of those usually marginalised or treated as outsiders. It also endeavours to expand the range of sources it is considered legitimate to use when researching legal lives. The collection aims to ignite debate about the nature of the relationship between socio-legal studies and legal history; explore how gaps in the existing literature can be filled when sources about the marginalised are often scant; and challenge the methodologies employed in conventional accounts of legal lives.

David Sugarman
's scene-setting essay analyses ways in which legal life writing has been enlarged to embrace a wide range of subjects, sources and methods. This chapter, and the collection as a whole, advances a broader, more pluralistic, democratic conception of legal life writing that encourages inter-disciplinary dialogue, helping legal historians, historians and socio-legal scholars to develop new skills and embrace a wider range of participants and audiences, thereby enhancing their ability to engage with public issues in public history. Specific articles in the collection complement these general discussions by providing detailed accounts of particular actors whose stories have remained largely untold. Fiona Cownie discusses Clare Palley, the first woman professor of law at a United Kingdom University, and, playing with the notion of outsider-insider, Catharine MacMillan examines the life of the outwardly successful Jewish-born lawyer, Judah Benjamin. Several essays explore the alternative sources that can be turned to in order to fill gaps in existing knowledge. Rosemary Auchmuty focuses on the sources one might use to explore the lives of women in law. 

Other essays address the use of visual sources. Leslie Moran examines the use of images of judges, and their capacity to illustrate how authority is performed. Linda Mulcahy's study of the trial spectator utilises images of trials in popular journals and fine art which indicate how women participated in the public sphere of the courts.  The focus on gaps in the existing literature has also been extended in this book to cover other academics who have been much written about from a particular's perspective in ways which have obscured their broader contribution to law and the public sphere. Thus, Mara Malagodi considers the life of Ivor Jennings, one of Britain's most prominent constitutional law scholars of the twentieth-century. Malagodi contends that his oft-neglected work in South Asia during the early years of the Cold War allows us to see the man and his work through a very different lens.

Presentations about the book will be led by Professor Nicola Lacey (LSE) and Professor Michael Lobban (LSE) and chaired by Professor Phil Thomas (Journal of Law and Society).

For further details of the LSE Legal Biography Project see [here]

Wednesday, September 23, 2015

Lieblich on "Internal Jus Ad Bellum"

Eliav Lieblich, Radzyner School of Law, Interdisciplinary Center, has posted Internal Jus Ad Bellum, which is forthcoming in the Hastings Law Journal 67 (2016).
In 1945, the U.N. Charter famously set out “to save succeeding generations from the scourge of war.” Having in mind traditional interstate wars, the Charter’s Article 2(4) outlawed, for the first time, interstate uses of force. However, nowadays, international wars are relatively rare, while civil wars are both more numerous and increasingly destructive. Still, international law has yet to develop a regime regulating the resort to war (jus ad bellum) within a state, either by governments or opposition groups. Contemporary jus ad bellum, thus, fails to address one of the most atrocious forms of war in the modern international system.

This Article puts forward a novel theory of internal jus ad bellum, equally applicable to governments as well as opposition groups. It demonstrates that the current blind-spot in international law concerning this issue is incoherent and unwarranted. By applying the revisionist approach to just war theory, this Article argues that internal resort to armed force can only be morally acceptable if undertaken in self (or other) defense against grave threats.

Applying this notion to the international-legal sphere, this Article claims that collectivist doctrines such self-determination, sovereignty or democratic entitlement are not appropriate venues for an acceptable standard of internal jus ad bellum. It proceeds to locate such a possible standard in international human rights law (IHRL), which enshrines everyone’s right to life. However, as the Article demonstrates, IHRL, as currently understood, fails to serve as an effective framework for internal jus ad bellum, since it collapses, during armed conflict, into international humanitarian law (IHL). The Article concludes by suggesting an understanding of IHRL that can overcome these limitations and thus serve as a working doctrine of internal jus ad bellum.

Funk Reviews Compton's "Evangelical Origins of the Living Constitution"

Kellen R. Funk, a Yale JD and a doctoral candidate in history at Princeton University, has posted Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform, which is forthcoming in Law and Social Inquiry.  It is a review essay based on John W. Compton’s The Evangelical Origins of the Living Constitution (2014).
The Supreme Court of the New Deal era transformed the American Constitution, making the Constitution’s original protection of property rights give way to democratically popular regulations. In The Evangelical Origins of the Living Constitution (2014), John W. Compton argues that twentieth-century progressives turned the Court towards a “living” interpretation of the Constitution by relying on legislative methods and judicial precedents created by nineteenth-century evangelicals. Evangelical reformers accomplished national prohibition of liquor and lotteries, but their regulations destroyed property rights that were legally valid and socially acceptable at the inauguration of the Constitution. Courts ultimately acquiesced in novel economic proscriptions because of overwhelming majoritarian sentiment driven by evangelical populism. Relying on a recent literature of law and religion, Compton challenges conventional accounts of America’s constitutional tradition of protecting property. This essay reverses the path of analysis and argues that evangelical concerns about the Constitution’s property clauses can alter standard accounts of law and religion in American history. Rather than a simplistic imposition of moralism, evangelical reform — like that of contemporaneous progressives and their descendants — sought to protect liberalism with regulations rooted in antislavery thought.

Smith, "Sir Edward Coke and the Reformation of the Laws"

Via David Schorr's recent call for more legal historical work on swamp drainage (he makes the case!), we realized that we never profiled this book, released in November 2014: Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge University Press), by David Chan Smith (Wilfrid Laurier University). A description from the Press:

Throughout his early career, Sir Edward Coke joined many of his contemporaries in his concern about the uncertainty of the common law. Coke attributed this uncertainty to the ignorance and entrepreneurship of practitioners, litigants, and other users of legal power whose actions eroded confidence in the law. Working to limit their behaviours, Coke also simultaneously sought to strengthen royal authority and the Reformation settlement. Yet the tensions in his thought led him into conflict with James I, who had accepted many of the criticisms of the common law. Sir Edward Coke and the Reformation of the Laws reframes the origins of Coke's legal thought within the context of law reform and provides a new interpretation of his early career, the development of his legal thought, and the path from royalism to opposition in the turbulent decades leading up to the English civil wars.
More information is available here. Schorr notes that the book was recently reviewed here.

Tuesday, September 22, 2015

The Relaunching of the AJLH

The American Journal of Legal History opened a new chapter of its long history with the announcement yesterday that, after decades of support from the Temple University Beasley School of Law, it will now be published by the Oxford University Press, with  Alfred Brophy of the University of North Carolina School of Law and Stefan Vogenauer of the Max Planck Institute as co-editors and Roman Hoyos of Southwestern Law as book review editor. Al Brophy’s post on the announcement on the Faculty Lounge is here. Oxford's announcement is here. The new AJLH website is here.

My understanding of the history of the AJLH is based on oral traditions, certainly incomplete, and possibly misleading in its simplicity. (American legal historians have yet to produce a historiographer willing to tackle the institutional history of the field.)  But here goes anyway.

Like its parent the American Society for Legal History, the AJLH saw the light of day as the project of members of the Philadelphia bar whose notion of the legal past tended to the antiquarian. When professionally trained historians entered the field in the 1950s and early 1960s, they colonized the ASLH, converting it from a genteel learned society to the organizational presence of a historical subdiscipline. If you can imagine a time when legal historians could not dream of winning Bancroft Prizes and when Law and History Review did not follow closely upon the heels of the American Historical Review and the Journal of American History in national rankings, you can begin to understand the debt every self-identifying legal historian today owes to the scholars who devoted so much of their time to editing and reviewing manuscripts for Studies in Legal History and the AJLH back in the day. Al Brophy fondly remembers publishing one of his first article in the AJLH. I remember my excitement in publishing my first article there, too.

The reasons that led the ASLH to start LHR and the history of the AJLH after the ASLH ended its support are topics for a careful study, not a shoot-from-the-hip blog post. That said, I have to agree with Al that Oxford’s willingness to join Cambridge in publishing a legal history journal is a promising sign of the continued vitality of the field. Realizing that promise is not just the job of the AJLH’s editors but of all legal historians, who will have to make the time, despite the many demands upon it, for peer review.  And that's true not simply for the new AJLH, but for all the vehicles through which we make our work known.