Robert C. Berring has called West Publishing Company’s American Digest System “the key aspect of the new form of legal literature” that West and other publishers developed in the last quarter of the nineteenth century. Berring argued that West’s digests provided practicing lawyers not only the means for locating precedential cases, but a “paradigm for thinking about the law itself” that influenced American lawyers until the development of online legal research systems in the 1970s. This article discusses questions raised by Berring’s scholarship, and examines the late nineteenth and early twentieth century legal environment in which the West digests were created and became essential research tools for American lawyers.
From acclaimed historian Lawrence Goldstone comes a thrilling narrative of courage, determination, and competition: the story of the intense rivalry that fueled the rise of American aviation.
The feud between this nation’s great air pioneers, the Wright brothers and Glenn Curtiss, was a collision of unyielding and profoundly American personalities. On one side, a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other, an audacious motorcycle racer whose innovative aircraft became synonymous in the public mind with death-defying stunts. For more than a decade, they battled each other in court, at air shows, and in the newspapers. The outcome of this contest of wills would shape the course of aviation history—and take a fearsome toll on the men involved.Do you think they'll let me play "Cap't Tom" in the movie?
Birdmen sets the engrossing story of the Wrights’ war with Curtiss against the thrilling backdrop of the early years of manned flight, and is rich with period detail and larger-than-life personalities: Thomas Scott Baldwin, or “Cap’t Tom” as he styled himself, who invented the parachute and almost convinced the world that balloons were the future of aviation; John Moisant, the dapper daredevil who took to the skies after three failed attempts to overthrow the government of El Salvador, then quickly emerged as a celebrity flyer; and Harriet Quimby, the statuesque silent-film beauty who became the first woman to fly across the English Channel. And then there is Lincoln Beachey, perhaps the greatest aviator who ever lived, who dazzled crowds with an array of trademark twists and dives—and best embodied the romance with death that fueled so many of aviation’s earliest heroes.
A dramatic story of unimaginable bravery in the air and brutal competition on the ground, Birdmen is at once a thrill ride through flight’s wild early years and a surprising look at the personal clash that fueled America’s race to the skies.
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| John E. Ecklund |
In the preface, Ecklund explains:The Origins of Western Law from Athens to the Code Napoleon charts the horizon of Western legal origins. Eternal Platonic truths versus the Sophists of individual preferences, medieval Realists against Nominalists, natural lawyers of the 17th and later centuries, Montesquieu and other Enlightenment thinkers fighting through principles and personhood-these and many more figures and ideas come alive in this comprehensive survey of the antecedents of our modern legal system.
This book can be described as non-technical history of legal science. It centers on the recounting of a major and venerable debate--one which grew from the complex intricacies of social participation and philosophical argument in ancient Athens, became the stuff of legend in an elegant French code, and will continue beyond today into laws which must begin to reach into worlds still unknown to us. This theme is the great conflict between people who see law as tending to come from abstract principles that are necessarily right and people who see it as tending to come merely from the changing preferences of those in position to impose their will--preferences that are only preferences in a world in which nothing is necessarily right.From this excerpt (and Laura Kalman's Legal Realism at Yale and Robert Gordon's chapter in History of Yale Law School), I imagine that the volumes represent Ecklund's lifelong dialogue with his law professors, as well as a lifetime's accumulation of learning about the law.
A few blurbs of note:As the arbiter of the Constitution, it is presumed that the US Supreme Court decrees "the law of the land" in a fair-minded and even-handed manner. Key decisions in the Court's history have challenged these assumptions, giving way to a greater discussion about how judges are chosen, and the ideological roots from which they rule. This book explores more than two centuries of Supreme Court justice selections, tracking the Court's change from a time when consensus choices were relatively evenly divided between political leaders from "the arena," and judges from "the monastery," to a recent era fraught with controversial presidential appointees to federal positions that have yielded ideologically-influenced administrations of law.
"This fascinating, methodologically-inventive book advances our understanding of key issues in American politics. By systematically probing how Supreme Court Justices are selected, by helping understand the types of Justices, and by tracking ideology and voting patterns, Pathways to the Supreme Court offers important insights both into the Court's actions and standing." --Ira KatznelsonMore information is available here.
There are four routes to the Supreme Court-collateral, diagonal, vertical, and external. That is Garrison Nelson's analytic framework in this work stretching across two centuries of Court history. The book is loaded with fascinating information about where the justices have come from, why, and so what. As always, Nelson is sure-footed and meticulous." --David Mayhew
The Osgoode Society for Canadian Legal History invites nominations for the Peter Oliver Prize in Canadian Legal History. The prize, named for Professor Peter Oliver, the Society's founding editor-in-chief, is awarded annually for published work (journal article, book chapter, book) in Canadian legal history written by a student. Students in any discipline at any stage of their careers are eligible. The Society takes a broad view of legal history, one that includes work in socio-legal history, legal culture, etc., as well as work on the history of legal institutions, legal personnel, and substantive law.
Faculty members are encouraged to nominate student work of which they are aware, and the Society will also be pleased to accept self-nominations. Those nominating their own work should send a copy of it to the Society. The deadline for nominations for the 2014 Prize, to be awarded for work published in 2013, is April 30, 2014.
Please send nominations to Professor Jim Phillips, Editor-in-Chief, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto ON M5H 2N6, or by email to j.phillips@utoronto.ca
The R. Roy McMurtry Fellowship in Canadian Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established by Chief Justice McMurtry's friends and colleagues, and endowed by private donations and the Law Foundation of Ontario.
The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University. The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history. The selection committee may take financial need into consideration.
The fellowship will be awarded in June 2014, and will have a value of $16,000. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History and consisting of Society Directors and academics. Those interested should apply by sending:A full curriculum vitaePlease send applications to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6, or by email to mmacfarl@lsuc.on.ca . The deadline for applications is May 15, 2014.
A statement of the research, not exceeding 1,000 words, that they would conduct as a McMurtry fellow. The statement should clearly convey the nature of the project, the research to be carried out, and the relationship, if any, between the project and previous work done by the applicant.
The names and addresses (including email addresses) of two academic referees. Please do not ask your referees to write; the Society will contact them if necessary.
For persons not currently connected with an Ontario University, an indication of how and when they intend to obtain such a connection.
And more, from reviewer Scott K. Taylor ():In The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598, Michael Crawford investigates conflicts about and resistance to the status of hidalgo, conventionally understood as the lowest, most heavily populated rank in the Castilian nobility. It is generally accepted that legal privileges were based on status and class in this premodern society. Crawford presents and explains the contentious realities and limitations of such legal privileges, particularly the conventional claim of hidalgo exemption from taxation. He focuses on efforts to claim these privileges as well as opposing efforts to limit and manage them. Although historians of Spain acknowledge such conflicts, especially lawsuits associated with this status, none have focused a study on this extraordinarily widespread phenomenon. This book analyzes the inevitable contradictions inherent in negotiation for and the implementation of privilege, scrutinizing the many jurisdictions that intervened in these struggles and debates, including the crown, judiciary, city council, and financial authorities. Ultimately, this analysis imparts important insights about the nature of sixteenth-century Castilian society with wide-ranging implications about the relationship between social status and legal privileges in the early modern period as a whole.
What did it mean to be an hidalgo? This was a important status in late medieval and early modern Spain, one that all historians know was crucial—but none have really known much about it until now. Michael Crawford argues that hidalguÃa had little to do with the two main justifications that contemporary Spaniards gave for the privilege: that it either derived from a racial understanding of inherited nobility or was a reward for service to the king. Instead, noble status was fluid, contingent on circumstance, political networking, and the ability to carry out lengthy lawsuits successfully. Using hitherto unexploited sources, Crawford’s subtle analysis displays the rich complexity of local government in early modern Spain, pulling attention away from the so-called absolutism of the central government and showing how much more important the officials, regulations, and courts of local municipalities were in the real lives of Spaniards.Additional information is available here.
The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system.
In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments.
Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.
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| Jury Box, Metzenbaum Courthouse, Cleveland (Highsmith/LC) |
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently—as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government—to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.
Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.The full article is available here.
This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.
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| "The New Man on the Job" (LC) |
After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification.
(Credit: Library of Congress)
Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where Peirce addressed the improper use of the syllogism with respect to "occasions," as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched in the common law.
American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which is part of a larger project on tribes, sovereignty, and race, will discuss the history of Florida’s tribes, their road from pre-contact independent peoples to federally recognized tribes, and their contemporary membership criteria in order to shed light on the inextricably political nature of race, membership and sovereignty in the American Indian context.The full article is available here.
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| Courtesy: Office of the Curator, US Supreme Court |
The Office of the Curator at the Supreme Court of the United States maintains a collection of nearly 120 historic docket books used by former Justices. Due to the sensitive and fragile nature of these books, access is restricted. The Court will make these books available to researchers under the following procedures but reserves the right to decline access.
(1) Access to docket books is available to post-graduate scholars, professors, and historians as approved on a case-by-case basis.
(2) Researchers must submit a written request to the Office of the Curator providing:
a. Name.
b. Affiliated Institution.
c. Contact information, including phone number, email, and mailing address.
d. A short description of the project with timeframe.
e. A justification for why access to the docket books is required.
f. A limit of up to 20 specific case citations per request.
Please note: Requests to review an entire docket book will be denied unless there is a compelling reason that necessitates such access. In such a case, the Office of the Curator will offer a reasonable opportunity to view the book in person.
(3) Upon receipt of the above, requests will be reviewed by the Curator’s staff and submitted for approval.
(4) Upon approval, printed copies of the requested entries will provided at no cost. These copies are for research purposes only and may not be reproduced for publication.
(5) Requests will be handled in the order they are received and may take up to 6-8 weeks to review and process.
(6) Additional requests may be submitted, but each request will be handled as a new one and processed in the order it was received.
(7) The preferred citation for the docket books is: Case Name, Docket Book of Justice [name], [Term and Year], Office of the Curator, Supreme Court of the United States.
Please submit requests online here or send request to:
Office of the Curator
Attn: Docket Book Requests
Supreme Court of the United States
Washington, DC 20543
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| Brandeis's Docket Book, 1935 Term |
[We have the following press release from the Organization of American Historians about former LHB Guest Blogger Susan Carle!] 
In Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press), Carle has written a paradigm-shifting study of the struggle for civil rights in the United States by moving the lens to focus on organizations that flourished during the period 1880-1915, before the heyday of the NAACP and the National Urban League. This deeply-researched book recovers the history of lesser-known, forerunner organizations that, she persuasively argues, laid the intellectual and organizational groundwork for these better-known organizational giants of the civil rights movement. The forerunner organizations introduced in Carle's account include the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement. These groups engaged in myriad struggles to improve the quality of life for black Americans long before the formation of the NAACP and the Urban League. Many of the early efforts focused on the economic needs of population-a variety of activism that later organizations often have been accused of overlooking. These early organizations also engaged in legal reform efforts-activities lost to historical memory after the NAACP won its famous battle to dismantle Jim Crow. By recounting the range of activities that these forerunner organizations undertook, Carle shows that lesser-known organizations provided a foundation that directly informed which battles later civil rights leaders would take on and which arguments and legal tactics they would draw upon to win them. If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.
Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided by focusing on a single member of the Washington Supreme Court, Stephen J. Chadwick, who sat on that court between 1908 through 1919. Chadwick was in many respects typical of his Washington Supreme Court colleagues: educated, publicly-involved and politically ambitious. But Chadwick played the leading role in conceptualizing and communicating the Washington Supreme Court’s new approach to progressive legislation. Chadwick’s legal opinions are striking for their cogent reasoning and clarity. They are also striking for their honesty about the forces that were causing him, as a judge, to look at things in a fresh way. There were three key reasons for the turnaround in his court’s philosophy: First, the judges were sophisticated, pragmatic and politically-experienced leaders whose feet were “on the ground” in their communities. Second, as educated and economically comfortable elites, their personal views changed along with those of other middle class Washingtonians — i.e., those who formed the backbone of the progressive movement. Finally, the altered philosophy about the role of the courts, i.e., the shift from the practice of ruling many regulatory and worker protection statutes unconstitutional to a more hands-off deferential approach to policy decisions by elected lawmakers, was directly influenced by Oliver Wendell Holmes, Jr. Justice Chadwick was clearly influenced by Holmes, and on the Washington court he anticipated the “legal realist” approach to legal theory and judicial decision-making that gained dominance nationally in the following decades.When the comparison is the U.S. Supreme Court, Professor Spitzer is surely right that “[r]elatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century.” But see Carol L. Chomsky, “Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880-1925,” Law and History Review 11 (1993): 383-440.
Here's the TOC:This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States," from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
"There has been a great deal of commentary on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, but that meaning has remained uncertain and contested. Kurt Lash's approach to the question has been to do something not previously attempted by historians or legal scholars: read all the available literature by antebellum and Reconstruction-era contemporaries on the subject. As a result he has gone far toward producing a definitive account of the Clause's history, and shown how contemporaries understood the "rights" contained in that Clause as sharply distinct from those contained in the Privileges and Immunities Clause of Article IV of the Constitution. Building on that distinction, Lash has fashioned a compelling argument as to how the original meaning of the Privileges or Immunities Clause should be understood."
G. Edward White, David and Mary Harrison Distinguished Professor and University Professor, University of Virginia School of Law
"In 1950 the CIA created the Congress for Cultural Freedom, whose mission was to use the arts to "nudge the intelligentsia of Western Europe away from its lingering fascination with Marxism and Communism towards a view more accommodating of 'the American way.' " ...
The Congress for Cultural Freedom also used various foundations to act as fronts in funding exhibitions, international conferences, public performances and grants for artists. The roll call of beneficiaries — unwitting, to various degrees — included Mary McCarthy, Leonard Bernstein and Arthur Schlesinger. Over the years, Saunders writes, this surreptitious support system pervaded the production of a good deal of high culture, so that "[w]hether they liked it or not, whether they knew it or not, scores of Western intellectuals were now roped to the CIA by an 'umbilical cord of gold.' "
Make sure to take a look at several reviews on H-Net. The collected volume Beyond the Border: Tensions across the Forty-Ninth Parallel in the Great Plains and Prairies (McGill-Queen's University Press) edited by Kyle Conway and Timothy Pasch is reviewed, as is Edward Garvey Miller's Misalliance: Ngo Dinh Diem, the United States, and the Fate of South Vietnam (Harvard University Press) here. H-Net also adds a review of Dave St. Aubyn Gosse's Abolition and Plantation Management in Jamaica: 1807-1838 (University of West Indies Press).
The Washington Post reviews Matt Taibbi's The Divide: American Injustice in the Age of the Wealth Gap (Random House). Other perspectives on the book can be found here in The New York Times, here in an interview with the author on NPR, and here in the Los Angeles Times.
Lastly, The Nation has a review of What Soliders Do: Sex and the American GI in World War II France by Mary Louise Roberts (University of Chicago Press)."Roberts draws upon extensive sources, including diaries, police reports and court-martial transcripts, to examine the presence of American forces in France from 1944 to 1946. She contends that the sexual conduct of US servicemen in war should be moved from a historical footnote to “the center of the story.” Loaded with symbolism, sexual behavior in this context plays an important role in shaping the political and diplomatic negotiations of power between countries."
This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.
Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.
Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century women’s rights legislation.
Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.
Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the “law merchant”).
Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.
One of Life of the Law’s new advisors, Ajay Mehrotra, is tax historian and associate dean at the University of Indiana’s Maurer School of Law. Professor Mehrotra invited some of his fellow scholars to talk about taxation and citizenship. You’ll hear him speaking with Duke University law professor Lawrence Zelenak; Molly Michelmore, an associate professor of history at Washington and Lee University; and Beth Pearson, a PhD candidate at the University of California Berkeley who’s studying the evolution of state tax laws.[Update: Even if you aren't particularly interested in taxation and its history, this is worth a listen to see how well a bunch of academics can create a public-radio-style discussion of a topic. If Ajay Mehrotra ever decides to give up his day job, Robert Siegel had better watch out. DRE.]
In the mid-1990s, residents of Anniston, Alabama, began a legal fight against the agrochemical company Monsanto over the dumping of PCBs in the city's historically African American and white working-class west side. Simultaneously, Anniston environmentalists sought to safely eliminate chemical weaponry that had been secretly stockpiled near the city during the Cold War. In this probing work, Ellen Griffith Spears offers a compelling narrative of Anniston's battles for environmental justice, exposing how systemic racial and class inequalities reinforced during the Jim Crow era played out in these intense contemporary social movements.
Spears focuses attention on key figures who shaped Anniston--from Monsanto's founders, to white and African American activists, to the ordinary Anniston residents whose lives and health were deeply affected by the town's military-industrial history and the legacy of racism. Situating the personal struggles and triumphs of Anniston residents within a larger national story of regulatory regimes and legal strategies that have affected toxic towns across America, Spears unflinchingly explores the causes and implications of environmental inequalities, showing how civil rights movement activism undergirded Anniston's campaigns for redemption and justice.A blurb:
"This is an excellent book--well written, exhaustively researched, original, and brilliantly conceived. Anyone interested in the history of the South, business history, civil rights, and environmental justice will find this essential reading. But more than that, this is a great story--at turns inspiring, maddening, depressing, and instructive. Everyone knows about Love Canal, Times Beach, Missouri, and Three Mile Island. Hopefully, after this book is published, everyone will know about Anniston as well!"More information is available here.
--Gerald Markowitz
Mary L. Clark, Professor and Associate Dean for Academic Affairs, at the American University Washington College of Law, has sent us an announcement of the symposium, Finding the Founders: Ellen Spencer Mussey and Emma Gillett and Other Early Women Legal Pioneers," to be held Monday, April 14, 2-5 pm at the law school, 4801 Massachusetts Avenue, NW, Washington, DC. It will examine “the roles and impacts of WCL's very own Ellen Spencer Mussey and Emma Gillett and other early women legal pioneers on legal education and the legal profession.” Panelists include Barbara Babcock of Stanford Law School, Jill Norgren of the City University of New York; Wendy Williams of the Georgetown University Law Center, with remarks by Mary Jane Mossman of the Osgoode Hall Law School. The symposium coincides with what Professor Clark calls an “amazing new archival exhibition” on WCL’s founders.
According to today's New York Times, among this year's recipients of John Simon Guggenheim Memorial Foundation Fellowships is Holly Brewer, Burke Chair of American History and Associate Professor at the University of Maryland, who received hers in the field of Constitutional Studies. Among other things, Professor Brewer is co-editor of the American Society for Legal History's book series and serves on the ASLH's Board of Directors.
Herschel Nachlis (Department of Politics, Princeton University) reviews David Vogel, THE POLITICS OF PRECAUTION: REGULATING HEALTH, SAFETY, AND ENVIRONMENTAL RISKS IN EUROPE AND THE UNITED STATES (Princeton University Press, 2012). Health Rights Are Civil Rights tells the story of the important place of health in struggles for social change in Los Angeles in the 1960s and 1970s. Jenna M. Loyd describes how Black freedom, antiwar, welfare rights, and women’s movement activists formed alliances to battle oppressive health systems and structural violence, working to establish the principle that health is a right. For a time—with President Nixon, big business, and organized labor in agreement on national health insurance—even universal health care seemed a real possibility.
Laura Pulido says:Health Rights Are Civil Rights documents what many Los Angeles activists recognized: that militarization was in part responsible for the inequalities in American cities. This challenging new reading of suburban white flight explores how racial conflicts transpired across a Southland landscape shaped by defense spending. While the war in Vietnam constrained social spending, the New Right gained strength by seizing on the racialized and gendered politics of urban crisis to resist urban reinvestment and social programs.
Recapturing a little-known current of the era’s activism, Loyd uses an intersectional approach to show why this diverse group of activists believed that democratic health care and ending war were essential to create cities of freedom, peace, and social justice—a vision that goes unanswered still today.
Health Rights are Civil Rights suggests an entirely new geography of Los Angeles based on both activism and geopolitics. Jenna M. Loyd makes pathbreaking connections between health, war-making, race, and the environment that offer us a new way of viewing midcentury Los Angeles. An essential text for all scholars of Los Angeles, health, race, and activism.More information is available here.
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| Samuel Nelson (LC) |
In November 1872, Justice Samuel Nelson retired from the U.S. Supreme Court. The formal farewells were of the good-spirited kind that prominent public figures have almost always received: heavy on recitations of his virtues, light on mentions of flaws that were really, of course, merely misunderstood manifestations of his greatness. There were, however, two unusual features of the Nelson celebrations. This article sketches those oddities and makes a couple of suggestions about their significance then and now.
Professor Bomhoff writes to us:The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.
Of most interest for legal historians (I hope) are the book's two central chapters which discuss the simultaneous advent of a discourse of 'balancing' rights, values and interest in US Supreme Court and German Constitutional Court jurisprudence in the late 1950s and early 1960s. While this early case law provoked well-known - infamous - debates on both sides of the Atlantic, these clashes had not yet been the subject of any extended comparison. From this comparative perspective, and in part because of their almost cliche status, they provide a perhaps surprisingly useful lens for looking at the character of US and Western European legalism and constitutionalism more generally.
The book also looks at the broader legal-intellectual context of the time, notably comparing efforts to develop 'new' standards for adequate judicial reasoning (the neutral principles and process jurisprudence currents in the US, and the 'topical jurisprudence' and dialectical reasoning movements in Germany). In this way, the book aims to uncover thicker, contextualized, understandings of key jurisprudential concepts such as objectivity, neutrality, and most importantly: legal formality and its opposites.
