Sunday, February 7, 2016

Sunday Book Roundup

The Law and Politics Book Review has put online a July book review of Finding Justice: A History of Women Lawyers in Maryland Since 1642 edited by Lynne A. Battaglia (Thompson Publishing).
"This engaging volume was produced as part of the Finding Justice Project, a collaborative effort among a small group of judges, lawyers, and legal academics to recover and illuminate neglected histories of women in law in Maryland. Sponsored by the Maryland Women’s Bar Association Foundation, the project sought to identify and learn about the work and lives of as many women lawyers as possible practicing in Maryland since 1642."
Stuart Banner reviews R.H. Hemlholz's Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press) for the Journal of Legal Education.

Concurring Opinions notes a review from the Journal of Legal Education: Duncan Farthing-Nichol reviews Justin O'Brien's The Triumph, Tragedy, and Lost Legacy of James M. Landis: A Life on Fire (Hart Publishing).

New Books adds an interview with Marc Simon Rodriguez, who discusses his new book, Rethinking the Chicano Movement (Routledge).

H-Net has a review of Tameka B. Hobbs's Democracy Abroad, Lynching at Home: Racial Violence in Florida (University Press of Florida).

The Washington Independent Review of Books offers a review of Baz Dreisinger's Incarceration Nations: A Journey to Justice in Prisons around the World (Other Press).

Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsberg Went to the Supreme Court and Changed the World by Linda Hirshman (Harper) is reviewed in the Los Angeles Review of Books.

The Atlantic has a review of Daniel K. Williams's Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade (Oxford University Press). 
"In a new book, Defenders of the Unborn, the historian Daniel K. Williams looks at the first years of the self-described pro-life movement in the United States, focusing on the long-overlooked era before Roe. It’s somewhat surprising that the academy hasn’t produced such a history before now, although Williams says that’s partially because certain archives have only recently opened." 
The Federal Lawyer has a new issue posted, with a review of Untrodden Ground: How Presidents Interpret the Constitution by Harold H. Bruff (University of Chicago Press), alongside many others--all available here.

Saturday, February 6, 2016

Weekend Roundup

  • The Call for Proposals for the annual meeting of the American Historical Association is available here. The theme is ""Historical Scale: Linking Levels of Experience."
  • On Friday, February 19, from 6:30 - 8:30 pm, the Arizona State University’s Center for Political Thought and Leadership will host the discussion New Challenges to Constitutional Law.  The Center explains: “The courts have become a battleground for presidential and regulatory overreach in issues ranging from Obamacare and immigration to foreign policy. At issue is the meaning of the U.S. Constitution. “ The “five distinguished legal scholars” who will address the topic are Clint Bolick, Supreme Court of Arizona, Eric Claeys, George Mason Law; Philip Hamburger, Columbia Law; Jonathan H. Adler, Case Western Reserve University Law; and Chris DeRose, Special Assistant Attorney General in Arizona.  John Lopez, Solicitor General in Arizona, will moderate.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, February 5, 2016

A New Journal on Roman Law and the Roman Law Tradition

[We have the following announcement.]

Interpretatio Prudentium - Roman Law and Roman Law Tradition in Review is a scientific Journal on Roman Law and Roman Law Tradition, edited by the Legal Theory and History – Research Center of the University of Lisbon (THD-ULisboa) in the course of the activities undertaken by the line of research "Roman Law Tradition in Action: the Lusophone experiences".

Interpretatio Prudentium has the purpose of disclosing results of scientific research that may contribute to a more accurate knowledge of the roman juridical experience but also of the different paths undertaken by the Roman Law Tradition, in particular of the roman roots of the different juridical cultures of Portuguese language. Simultaneously, the Journal intends to identify fractures and continuities within the Roman-Pandectist law tradition while promoting a critical vision of contemporary experiences.

In compliance with the utmost demanding criteria of scientific production and dissemination of results, Interpretatio Prudentium adopts the process of double-blind peer review and will be both published in paper and digital format, made freely available on its website. The Journal is also intended to be indexed within the leading science databases.

Interpretatio Prudentium
's Editing Committee invites the academic community to submit unpublished papers (monographs or reviews of recent publications) to be included in its first issue, to be released in Spring of 2016.  The Journal publishes in any Roman or Germanic language. The monographs, with a maximum of 50.000 characters (spaces not included), should be submitted to publication along with a summary and keywords, written in the original language of the article and in an adittional language. Reviews should be up to 10.000 characters.

We take this opportunity to suggest the following themes for the articles and reviews: the importance of the Roman Law and of the Roman Law Tradition to the contemporary Law; methodological issues in the study of the Roman juridical experience and Roman Law Tradition; the reception of the Pandectistic in Portugal and Brazil; the concept of interpretatio prudentium.

The submitted articles are reviewed by members of the Scientific Committee of the Journal involved in the process of double-blind peer review ensuring that both the reviewer and author identities are concealed throughout the review process.

The submitted articles should be sent in Word format to the Journal's e-mail address ( with a copy to the editorial secretary (

The deadline for the submission of papers is February 15, 2016.

Besides the sections of articles and reviews, Interpretatio Prudentium includes a section devoted to critical reviews of books and Roman Law news. The Authors and Editors of works related to the Roman juridical experience and Roman Tradition who may be interested in publicizing these works are invited to send a copy to the Draft Committee accompanied by a summary of approximately 250 words. The titles sent in duplicate will be subjected to a critical review to be published on the next issue of the Journal. The received works will be deposited in the Library of the University of Lisbon School of Law. The release of these published works will also be publicized at the Interpretatio Prudentium's website, with a book cover image and a reference to its title, summary, publishing house and ISBN.

Editorial Board
António Barbas Homem | Professor of History of Law at the University of Lisbon School of Law
António Menezes Cordeiro | Professor of Civil Law at the University of Lisbon School of Law
António Santos Justo | Emeritus Professor of Roman Law at the Faculty of Law of the University of Coimbra
Christian Baldus | Professor of Roman Law at the Faculty of Law of the University of Heidelberg
Eduardo Vera-Cruz Pinto | Professor of Roman Law at the University of Lisbon School of Law
José Artur Duarte Nogueira | Professor of History of Law at the University of Lisbon School of Law

Editing Committee
Christian Baldus | Professor of Roman Law at the Faculty of Law of the University of Heidelberg
Eduardo Vera-Cruz Pinto | Professor of Roman Law at the University of Lisbon School of Law
Filipe de Arede Nunes | University of Lisbon School of Law – THD-ULisboa
Francisco Rodrigues Rocha | University of Lisbon School of Law – THD-ULisboa
Jorge Silva Santos | University of Lisbon School of Law – THD-ULisboa
Margarida Seixas | Professor at the University of Lisbon School of Law

Editorial Secretary
Cláudia Elias Duarte | THD-ULisboa

Legal Theory and History, Research Center of the ULisboa
Alameda da Universidade, Cidade Universitária
1649-014 Lisboa
Telephone: (+351) 21 7984 600 (ext.: 10302)
E-mail addresses:
Rafael Longhi | Faculty of Law of the University of Heidelberg – THD-ULisboa

Baslar on 50 Years of Turkey's Constitutional Court

Kemal Baslar, Ataturk University, has posted 50 Years of the Constitutional Court of Turkey, which appeared in the Justice and Law Review 3 (2012):
The Constitutional Court of Turkey is the fifth constitutional court adopting the European (Austrian) model of constitutional review. The Constitutional Court commemorated the 50th anniversary of its establishment on 25 April 2012. Its history is fraught with political and legal debates concerning the composition, competence, organisation and jurisprudence of the Court. This article is devoted to accounting for the these developments save its case-law. To be precise, the case law of the Court will not be assessed here; rather, a bird’s-eye-view-account of the past of the Court will be under scrutiny.

This article addresses foreign readers who would like to learn how the Turkish Constitutional Court evolved over the last five decades. To do this, the author has divided the history of the Court under three headings. The first period covers the years between 1962-1982; the second period falls between 1983-2010. The third period commenced after the approval of the 2010 constitutional amendments and ends with the developments until the end of May 2012. It is hoped that a cursory look at the past will provide the non-Turkish speaking reader a better understanding as to how constitutional justice has developed in Turkey.

Hickford on New Zealand's Political Constitutionalism

Mark Hickford, Pro Vice-Chancellor and Dean of Law at Victoria University of Wellington, has posted The Historical, Political Constitution -- Some Reflections on Political Constitutionalism in New Zealand's History and its Possible Normative Value, which appeared in the New Zealand Law Review 2013: 585-623:
This article contends that the concept of political constitutionalism in New Zealand is not merely of explanatory value. Rather if it is approached with a historically nuanced sense, then its normative value becomes clearer, with “normative” here meaning a focus on expanding and diversifying areas of contestability and dissent in and through politics as opposed to relying on case-by-case legalism. With reference to the complex histories of Crown-indigenous relations and the development of colonial New Zealand’s constitutional setting in 1852, this article argues that the real, historicised “lives” of the constitution yield normative understandings of our own political constitution in contemporary times. The risk is that, barring a sensitively historical approach, the particular values of political constitutionalism will lie neglected and forgotten. It is analytically inadequate to simply dub these aspects of constitutionalism as “pragmatic” given richer veins of intellectual and political thought were tapped into, deployed, and contested. And these supply a more granular, nuanced picture of historical, political constitutionalism in and as a process.

Hoofnagle on the Federal Trade Commission and the Development of Privacy Law

Just out from Cambridge University Press: Federal Trade Commission Privacy Law and Policy, by Christopher Jay Hoofnagle (University of California, Berkeley). A description from the Press:
The Federal Trade Commission, a US agency created in 1914 to police the problem of 'bigness', has evolved into the most important regulator of information privacy - and thus innovation policy - in the world. Its policies profoundly affect business practices and serve to regulate most of the consumer economy. In short, it now regulates our technological future. Despite its stature, however, the agency is often poorly understood by observers and even those who practice before it. This volume by Chris Jay Hoofnagle - an internationally recognized scholar with more than fifteen years of experience interacting with the FTC - is designed to redress this confusion by explaining how the FTC arrived at its current position of power. It will be essential reading for lawyers, legal academics, political scientists, historians and anyone else interested in understanding the FTC's privacy activities and how they fit in the context of the agency's broader consumer protection mission.
A few blurbs:
"Chris Hoofnagle has written the definitive book about the FTC's involvement in privacy and security. This is a deep, thorough, erudite, clear, and insightful work - one of the very best books on privacy and security." -- Daniel J. Solove

"A timely and insightful analysis of the FTC as a key actor in protecting information privacy. The historical context provides a solid basis for Hoofnagle's well-supported policy recommendations."  -- Priscilla M. Regan
More information is available here.

Update: The introduction appears here as an SSRN post.

Thursday, February 4, 2016

Christophers, "Capitalism and Competition in the Court of Law"

New from Harvard University Press: The Great Levelers: Capitalism and Competition in the Court of Law, by Brett Christophers (Uppsala University). A description from the Press:
For all the turmoil that roiled financial markets during the Great Recession and its aftermath, Wall Street forecasts once again turned bullish and corporate profitability soared to unprecedented heights. How does capitalism consistently generate profits despite its vulnerability to destabilizing events that can plunge the global economy into chaos? The Great Leveler elucidates the crucial but underappreciated role of the law in regulating capitalism’s rhythms of accumulation and growth.
Brett Christophers argues that capitalism requires a delicate balance between competition and monopoly. When monopolistic forces become dominant, antitrust law steps in to discourage the growth of giant corporations and restore competitiveness. When competitive forces become dominant, intellectual property law steps in to protect corporate assets and encourage investment. These two sets of laws—antitrust and intellectual property—have a pincer effect on corporate profitability, ensuring that markets become neither monopolistic, which would lead to rent-seeking and stagnation, nor overly competitive, which would drive down profits.
Christophers pursues these ideas through a close study of the historical development of American and British capitalist economies from the late nineteenth century to the present, tracing the relationship between monopoly and competition in each country and the evolution of legal mechanisms for keeping these forces in check. More than an illuminating study of the economic role of law, The Great Leveler is a bold and fresh dissection of the anatomy of modern capitalism.
A few blurbs:
The Great Leveler is a brilliant rethinking of a century and a half of U.S. and English economic history. It is a must read for all scholars of political economy. Focusing on the dialectic between monopoly and competition, Christophers uncovers four alternating periods that are characterized either by too much or too little competition. He sees the period from 1975 to the present as one of runaway monopolization, and questions whether national legal systems still have the power and authority to play a critical balancing role.—Fred Block
The book does a masterful job of weaving a rich skein of a complex whole (capitalism and its movement through time and space) into an accessible and convincing narrative.—Susan K. Sell
More information is available here.

Free Tom Mooney! A Yale Law Exhibit

[Via H-Law, we have word of a new exhibit at the Yale Law Library, Free Tom Mooney!]

Credit: Yale Law Library Blog
A hundred years ago, a bomb explosion was the pretext that San Francisco authorities needed to prosecute the militant left-wing labor organizer Tom Mooney on trumped-up murder charges. Mooney’s false conviction set off a 22-year campaign for his exoneration. The Yale Law Library, with a collection of over 150 items on the Mooney case, has mounted an exhibition marking the centennial of Mooney’s arrest.

“Free Tom Mooney! The Yale Law Library’s Tom Mooney Collection” is on display through May 27. The exhibition was curated by Lorne Bair and Hélène Golay of Lorne Bair Rare Books, and Mike Widener, Rare Book Librarian at the Yale Law Library.

The campaign to free Tom Mooney created an enormous number of print and visual materials, including legal briefs, books, pamphlets, movies, flyers, stamps, poetry, and music. It enlisted the support of such figures as James Cagney, Theodore Dreiser, Upton Sinclair, and George Bernard Shaw. It made Mooney, for a brief time, one of the world’s most famous Americans. The Law Library’s collection is a rich resource for studying the Mooney case, the American Left in the interwar years, and the emergence of modern media campaigns.

The exhibition is on display February 1 - May 27, 2016, in the Rare Book Exhibition Gallery, located on Level L2 of the Lillian Goldman Law Library, Yale Law School (127 Wall Street, New Haven, CT). Images of many of the exhibit items can be viewed in the Law Library’s Flickr site.

In Search of California’s Legal History: A Bibliography of Sources

Via Selma Moidel Smith, editor of Calfornia Legal History (the annual journal of the California Supreme Court Historical Society), we've received word of a tremendous research resource: "In Search of California’s Legal History: A Bibliography of Sources." The author of the bibliography is Scott Hamilton Dewey (Legal, Historical, and General Research Specialist, UCLA Law Library). Here's an excerpt from the Introduction.
In the summer of 1988, Christian G. Fritz and Gordon M. Bakken published an article, entitled, “California Legal History: A Bibliographic Essay” (hereinafter referred to as “Fritz & Bakken”).[1] This article discussed various key topics in the legal history of the State of California and pointed readers toward some of the essential resources then available regarding those topics. Fritz & Bakken’s article also marked an early recognition of California legal history as a rich research area worthy of further exploration.
Fritz & Bakken’s original essay was just over nineteen pages long. As Professor Fritz has observed recently, it was intended only as a brief introduction to its topic, and as an encouragement to additional research and researchers, at a time when American legal history generally remained relatively new as a field of study, and California legal history even newer.[2]
Like many other fields of history in the post-1970 era, California legal history has expanded hugely, even explosively, over its still-fledgling state as of 1988. The field of legal history also has tended at times to merge with other fields of history, such that now, in addition to more traditional, “pure” legal history of matters such as courts, cases, judges, lawyers, and legal doctrine, one also routinely finds “hybrid” studies, combining legal history with, for example, social history, gender history, demographic history, labor history, agricultural history, economic history, or environmental history — among many other possibilities. Thus California legal history has grown progressively richer and more complex over the past quarter century, in ways that might have been difficult even to dream of when Fritz & Bakken offered their original introduction.
This project updates and expands on the Fritz & Bakken essay, with the goal of "creat[ing] a resource that would encourage scholars to pursue new research and also enable teachers to prepare course curricula in the field."
The full bibliography is available here.

Wednesday, February 3, 2016

Morley on "Reverse Nullification"

Michael T. Morley, Barry University School of Law, has posted Reverse Nullification and Executive Discretion, which appears in the University of Pennsylvania Journal of Constitutional Law 17 (2015): 1283-34
The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is inconsistent with the text and original understanding of the Supremacy Clause and unnecessarily aggrandizes the practical extent of executive authority. The Supremacy Clause prohibits states from attempting to nullify or ignore federal laws that they believe are unconstitutional or unwise. It should not bar states from engaging in “reverse nullification” by enacting statutes that mirror federal law to ameliorate the effects of executive under- or non-enforcement. Far from undermining the “law of the land,” reverse nullification reinforces it by ensuring that the President cannot effectively amend or nullify federal law by declining to enforce it. The Court should craft an exception to its obstacle and field preemption doctrines to accommodate reverse nullification, and Congress should generally include an exception permitting reverse nullification in statutes’ express preemption provisions.

Bone on Judicial Education and Adjudication in the Sixties

Robert G. Bone, University of Texas School of Law, has posted Judging as Judgment: Tying Judicial Education to Adjudication Theory:    
This Article, written for a symposium on judicial education, explores the relationship between judicial education and theories of civil adjudication. Its thesis, simply stated, is that judicial education makes sense only against the backdrop of ideas and beliefs about adjudication. I explore this broad thesis from both a historical and a normative perspective. The historical discussion recounts the rapid rise of formal judicial education programs in the 1960s, and argues that judicial education caught fire when it did in large part because of prevailing ideas about law, courts, and adjudication, ideas that were shaped by the influential process school of jurisprudence and the new field of management science. These ideas and beliefs together pushed judicial administration to the forefront of the court reform agenda and focused attention on education as the way to mobilize broad-based support for reform. The Article then turns to the normative dimension and critically examines current judicial education programs. It argues that these programs largely overlook one of the most important functions that judicial education can perform today — facilitating critical reflection on the principles that underlie civil adjudication with the aim of working toward a shared normative view. In particular, in-person, face-to-face instruction is a good format for engaging judges in constructive discussion and debate about the best normative account that fits and justifies core features of American litigation practice and procedure. In the 1960s, jurists thought they understood how to make courts better and saw judicial education as a means to implement their shared views. Today, by contrast, jurists disagree about many of the most fundamental aspects of civil adjudication. Yet judicial education still has an important role to play, not as a means to implement a shared understanding, but rather as a means to facilitate such an understanding through critical reflection, discussion, and debate.

Desan on the Constitutional Approach to Money

Christine A. Desan, Harvard Law School, has posted The Constitutional Approach to Money: Monetary Design and the Production of the Modern World, which will appear in Money Talks, ed. Nina Bandelj, Frederick F. Wherry, and Viviana Zelizer:
In the modern lexicon, money is pure instrumentality, a colorless medium that transparently expresses real value. Contrary to that trope, however, we can get “inside” money: we can reconnoiter it as a structure entailing value that is engineered by certain societies. Taking a “constitutional approach” to money reveals its internal design, the architecture that creates a commensurable unit of value, enables it to travel, and enforces it as the preeminent way to pay. Seeing money’s internal design opens up new worlds. We can compare the medieval and early American methods of making money and consider how those methods shaped their markets. More remarkable still, we can locate the radical change in money’s design that institutionalized capitalism. That phenomenon arrived when the English government installed the self-interest of commercial actors as the pump at the heart of money creation. The revolutionary redesign produced unprecedented liquidity - the powerful markets and troubling pathologies of modern finance. It also produced an odd and self-protective artifact - the trope that money itself was empty, devoid of design and unworthy of our eye.

AJLH: Editors' Choice and TOC Alerts

[We have the following from Oxford University Press Journals.]

In March 2016, the American Journal of Legal History will publish its inaugural issue with Oxford University Press. As the publication of Volume 56 Issue 1 gets closer, the Editors, Stefan Vogenauer and Al Brophy, have pulled together this free access collection of classic papers from the AJLH archive, which is now available online.

Simply click on the article title to read. If you would like to receive automatic table of contents alerts from the AJLH, including our forthcoming March issue, please click here to sign up.

Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History, 17 AJLH (1973)

Michael Hoeflich, Law & Geometry: Legal Science from Leibniz to Langdell, 30 AM. J.L. HIST. 95 (1986)

Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AJLH 355-407 (2006)

Morton J. Horwitz, The Rise of Legal Formalism, 19 AJLH 251-264 (1975)

John H. Langbein, The Origins of Public Prosecution at Common Law, 17 AJLH 313-335 (1973)

Karen Newman Gross,  Marie Stefanin, Denise Campbell, Ladies in Red: Learning from America's First Female Bankrupts, 40 AJLH 1-40 (1996)

Michael Hoeflich, John Austin and Joseph Story: Two Nineteenth Century Perspectives on the Utility of the Civil Law for the Common Lawyer, 29 AM. J. LEGAL HIST. 36 (1985)

James W. Ely, Jr., That Due Satisfaction May Be Made: The Fifth Amendment and the Origins of the Compensation Principle, 36 AJLH 1-18 (1992)

Adriaan Lanni, Precedent and Legal Reasoning in Classical Athenian Courts: A Noble Lie?, 43 AM. J.L. HIST. 27 (1999)

James W. Fox, Jr., The Law of Many Faces: Antebellum Contract Law Background of Reconstruction-Era Freedom of Contract, 49 AM. J.L. HIST. 61 (2006)

Paul Kens, The Source of a Myth: Powers of the States and Laissez Faire Constitutionalism, 1900-1937, 35 AJLH 70-98 (1995)

Jayanth K. Krishnan, Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, 46 Am. J. Legal Hist. 447 (2004)

Tuesday, February 2, 2016

Max Planck Institute Seeks Applications for Postdoctoral and Research Scholarships

Postdoctoral and Research Scholarships 2017 
The Max Planck Institute for European Legal History (MPIeR) will be awarding several scholarships for a research stay at the institute in 2017.

Postdoc Scholarships enable highly qualified researchers from abroad who already obtained a PhD to either develop a new research topic in a thematically relevant context or to pursue an already existing project. Established researchers from abroad who have received their PhD more than 10 years ago can apply for a Research Scholarship, which enables them to come to the institute as a guest in order to pursue their own research project at the MPIeR.

For 2017 the research subjects are:

Department I – Professor Stefan Vogenauer

Legal transfer in common law world
History of European Union Law
Fundamental issues concerning legal reception

Department II – Professor Thomas Duve

Legal history of Latin America in early modern and modern periods
Methods of legal history in a global perspective
Law and Diversity: legal historical perspectives 
For more information, including how to apply follow the link.  Applications must be submitted by March 31st 2016.

Chopas to Speak on the Selective Internment of Italians in WW2

Mary Beth Basile Chopas, Adjunct Professor, UNC Law School, will present in Boston College’s Legal History Roundtable on February 25, 2016.  She will speak on her current project, “the first legal analysis of the selective internment process during World War II using Italian civilian internees as the case study.  It explores how the U.S. executive branch and administrative agencies responded to perceived threats during war, how ‘justice’ works during times of crisis, and how the federal government defined race and immigrant status and its impact on eligibility for citizenship during wartime.”

Borgwardt to Speak on "The Nuremberg Idea"

On Monday, February 8, 2016, from 4:00pm - 5:30pm, Elizabeth Borgwardt, Washington University in St Louis, will speak on The Nuremberg Idea: Crimes against Humanity in History, Law & Politics, in the 6th Floor Boardroom of the Woodrow Wilson International Center for Scholars in Washington, DC:
“The Nuremberg Idea” offers a historically-informed answer to one of the key social theory questions of our time: How did “human rights” become a concept that even the most heinous regimes feel they need to buy into? In tackling this question through the vector of the term “crimes against humanity,” this history offers a new transdisciplinary analysis of how human rights norms are formed, transmitted, and sustained, both domestically and at the supra-national level. Nuremberg-infused ideas about accountability and sovereignty have unfolded throughout the postwar era, culminating in the United Nations’ official adoption of the doctrine of “the Responsibility to Protect” in 2005.

Mayeux on "What Gideon Did"

Sara Mayeux, Sharswood Fellow, University of Pennsylvania Law School, has posted What Gideon Did, which is to appear in the Columbia Law Review 116 (2016):
Clarence Earl Gideon (DOJ)
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do — its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did — the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contextualizing that example with national comparisons.

The broad outlines of these post-Gideon changes are familiar to legal scholars. But situating these changes in a longer historical context and tracing them in detail from the perspective of lawyers on the ground in the 1960s yields two insights that help to explain the seemingly permanent post-Gideon crisis in indigent defense. First, the post-Gideon transformation was indeed limited in its practical effects, but its limits derived not only from politics but also from history — and from the legal profession itself. Lawyers themselves, long before Gideon, framed indigent defense as low-status, low-pay, less-than-fully-professional legal work. That framing survived even as private charities became post-Gideon public defenders. Second, the post-Gideon transformation was also limited — or, perhaps, destined to be perceived as limited — by tensions inherent in the attempt to provide large-scale legal assistance through government bureaucracies. Characteristics now identified as symptoms of crisis — such as politically determined funding, ever-expanding caseloads, and triage advocacy — first appeared as innovations that lawyers perceived Gideon to require. As public defenders proliferated, so too did complaints that they were underfunded and overworked, and that they encouraged guilty pleas over trials.

The origins of the indigent defense crisis lie not only in Gideon’s neglect but also, paradoxically, in Gideon’s transformative influence. This history lends some support to recent scholarly expressions of skepticism about Gideon, but it also provides some reasons for optimism: If the indigent defense crisis derives not only from intransigent political indifference but also from contingent choices made by lawyers, then lawyers may retain more power than they realize to mitigate the crisis.

Tait on Obergefell and the Return of Coverture

In commentary posted on the First Impressions blog of the Michigan Law Review and as an SSRN paper, Allison Anna Tait, University of Richmond School of Law, argues that Justice Kennedy’s opinion in Obergefell v. Hodges signals The Return of CovertureObergefell signals a new life for coverture values,” she writes. “As the French might say, coverture is dead; long live coverture.”

Colman on Samuel Warren's Gay Brother and the Right to Privacy

Charles E. Colman, an acting assistant professor at NYU Law who will be joining the University of Hawaiʻi’s  law faculty this summer, has posted About Ned, which is to appear in the Harvard Law Review 129 (2016): 128-52:
In this essay, I explore the possibility that the storied article "The Right to Privacy," 4 Harv. L. Rev. 193 (1890), might have come into existence in part because of lead author Sam Warren's powerful drive to protect his younger siblings -- and, in particular, his gay brother Ned. For reasons both obvious and less intuitive, Sam might have viewed the article as a promising vehicle for shielding Ned and the rest of the Warren family from potentially devastating journalistic and public scrutiny of Ned's sexuality.

Viewed in this light, the article acquires a special resonance in this, its one hundred twenty-fifth anniversary. Rhetoric central to the piece can be traced, link by link, case by case, to Supreme Court decisions that collectively established a multifaceted constitutional right to personal autonomy. The article can arguably be understood as a catalyst for the series of events culminating in the Supreme Court's 2015 recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage.

If "The Right to Privacy" is indeed about Ned, even in part, then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a fundamental right for gay people throughout the nation.

Monday, February 1, 2016

Perl-Rosenthal and Erman on Cruz as a "Natural Born Citizen”

As the first votes in the primary season are recorded tonight in Iowa (or, as I think of it, “back home in Iowa”), Nathan Perl-Rosenthal and Sam Erman, University of Southern California, weigh in on HNN on Ted Cruz: Is He or Isn’t He Eligible to be President?

Thank You, Anne Kornhauser!

We’re grateful to Anne Kornhauser for her series of thoughtful and thought-provoking posts, including those prompted by her book.  If you’d like to review them, they were:

Casting a Wide Net: The Varieties of Statist Liberalism

Law Talk: Finding the Rule of Law Among German Émigré Intellectuals in Wartime

Bringing Intellectual History Back In

"Militant Democracy" and the Crisis Politics of the State--Then and Now

John Rawls, German Émigrés, and the Administrative State: Finding the Connections

The Promises and Perils of Disciplinary Border Crossing

Signing Off


Blumenthal's "Law and the Modern Mind"

Just out from Harvard University Press is Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture, by Susanna L. Blumenthal, Professor of Law and Associate Professor of History at the University of Minnesota:
In postrevolutionary America, the autonomous individual was both the linchpin of a young nation and a threat to the founders’ vision of ordered liberty. Conceiving of self-government as a psychological as well as a political project, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry. Susanna Blumenthal probes the assumptions and consequences of this undertaking, revealing how ideas about consciousness, agency, and accountability have shaped American jurisprudence.

Focusing on everyday adjudication, Blumenthal shows that mental soundness was routinely disputed in civil as well as criminal cases. Litigants presented conflicting religious, philosophical, and medical understandings of the self, intensifying fears of a populace maddened by too much liberty. Judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Determining the threshold of competence was especially vexing in litigation among family members that raised profound questions about the interconnections between love and consent. This body of law coalesced into a jurisprudence of insanity, which also illuminates the position of those to whom the insane were compared, particularly children, married women, and slaves. Over time, the liberties of the eccentric expanded as jurists came to recognize the diversity of beliefs held by otherwise reasonable persons.

In calling attention to the problematic relationship between consciousness and liability, Law and the Modern Mind casts new light on the meanings of freedom in the formative era of American law.
Here are some endorsements:

    “This book is an unrivaled synthesis of the legal history of moral responsibility and mental capacity. No one has managed to connect so effectively the particulars of legal judgment of mental capacity—rendered by Blumenthal in a subtle and nuanced manner—with broader religious and cultural changes. She writes beautifully, and even more impressively, she discusses complex and sometimes abstruse doctrines with clarity and precision.”—Morton J. Horwitz, Harvard Law School

    “Susanna Blumenthal’s Law and the Modern Mind is an extensive and exquisitely detailed journey through a long overlooked corner of nineteenth-century jurisprudence in America. It is based on years of reading across an impressive array of ornate and largely arcane texts. The author’s capacity to render it into coherent analysis is even more impressive.”—Sarah Barringer Gordon, University of Pennsylvania Law School

    “Susanna Blumenthal is distinctive among legal historians of her generation. She brings to her work wide and thoughtful reading in various technical fields—the history of philosophy, the history of psychology, and American and English legal history—and has an immense gift for synthesis and summation. The book is an extraordinary achievement that helps to define the meaning of private law in the nineteenth-century judicial imagination.”—Hendrik Hartog, Princeton University

Signing Off

[By Anne Kornhauser]
I write this time  to say what I hope is a temporary "good-bye" as a blogger for the LHB and to thank once again Karen Tani and Dan Ernst for their generosity and patience as I test-piloted the blogging genre. I found it both fascinating and challenging to combine the short form and frequent deadlines of my erstwhile career as a journalist with the presentation of complex and nuanced ideas demanded by my current role as an academic. I also wrestled with tonal issues: how to match the more informal tenor of the blog post with the seriousness of the points I wished to make. I appreciate the indulgence of readers as I explored this new territory. 

The academic blog, I am convinced, is a great way for cloistered scholars to engage with the world, even if that world is still largely the one they already inhabit. Sheer numbers make it increasingly difficult to know of, let alone converse with, those in one's own field, never mind reaching across the disciplinary aisle. (My father once told me that in his day, in the 1950s, graduates students were expected to read everything in their field!) The internet facilitates all this and more by removing intellectual roadblocks and eroding hierarchies of status and significance. There are also dangers for intellectual life lurking in our digital age--of downplaying rigor, both substantive and formal, and of saying what need not be said, unburdened as bloggers are by limitations of space and the review process. But these issues are for another time.

For now, I wish to express my gratitude to those who created and those who have sustained this blog, to readers and tweeters and passers-by for allowing me to engage in a kind of reflexivity I would have never thought possible when I entered graduate school. I will end with a few questions about this evolving form of intellectual life. Do readers of this blog have any thoughts about why academic blogs appear to elicit fewer comments than many other kinds of blogs? Do we have more outlets for expressing our views? Should academic bloggers be more provocative? Are there certain types of posts that elicit more discussion than others? After all, the academic blog, at least those not written by an individual, has already developed some conventions of its own. One is that bloggers not wander too far outside their area of expertise, another is to be reasonable, and a third is that participants secure some sort of invitation or right of the blogger, as it were. I see advantages in all. But, I wonder, where did they come from? How did the academic blog evolve into its current form?

Call for Applications: AHA Littleton-Griswold Grant

The deadline is fast approaching to apply for a research grant from the American Historical Association. Of special interest to legal historians is the Littleton-Griswold Grant, offering "grants of up to $1,000 for research in US legal history and in the general field of law and society, broadly defined."

Note that only AHA members are eligible to apply and that "you must be logged in to view the specific grant pages."

Applications are due February 15, 2016.

Center for the Study of Law and Society Speaker Series: Spring 2016

The Center for the Study of Law and Society at the University of California, Berkeley has announced the lineup for its Spring 2016 speaker series. Presentations that may be of interest to our readership include:
Monday, February 1
Jed Shugerman, Associate Professor of Law, Fordham University School of Law
“The Rise of Prosecutor-Politicians: Earl Warren, the Japanese Internment, and the 1942 Governor’s Race”

Monday, February 29
Susan Schweik, Professor of English, U.C. Berkeley
How a Ward of Women in a ‘Feeble-minded Home’ Taught Us to Teach to the Test, and Why We Don’t Know It”

Monday, March 7 
Dylan Penningroth, Professor of Law and History, U.C. Berkeley School of Law
“The Negro’s Lawyer: A History”

Monday, April 11
Scott Cummings, Robert Heningson Professor of Legal Ethics, Professor of Law, U.C.L.A. School of Law
“Movements in Progressive Legal Thought”

Sunday, January 31, 2016

Sunday Book Roundup

Here's this weekend's book review line-up:

Harold H. Bruff's Untrodden Ground: How Presidents Interpret the Constitution (University of Chicago Press) is reviewed by The New Rambler.
"Untrodden Ground boldly treads where few have ventured before. With lively prose and a touch of humor, Harold Bruff’s superb book furnishes the reader a tour of 44 Presidents and their constitutional claims. Think of the hefty, 557-page tome as something of a “Top 40” for presidential power geeks, with Bruff playing the role of Casey Kasem. Rather than ballads and jams, we are treated to discussions of the Spot Resolutions, the Cuban Missile Crisis, and the Tenure of Office Act."
New Books adds interviews with Patrick Hagopian--who discusses his book, American Immunity: War Crime and the Limits of International Law (University of Massachusetts Press), and with Lisong Liu--who discusses his book, Chinese Student Migration and Selective Citizenship: Mobility, Community, and Identity Between China and the United States (Routledge).

H-Net has a review of Yuma Totani's Justice in Asia and the Pacific Region, 1945-1952: Allied War Crimes Prosecution (Cambridge University Press).

The Los Angeles Review of Books has a review of Lisa McGirr's The War on Alcohol: Prohibition and the Rise of the American State (Norton).
"Lisa McGirr’s The War on Alcohol: Prohibition and the Rise of the American State is dry and tendentious, like certain counties in Tennessee. But anyone with a serious interest in drug policy should read her book to understand how we arrived at our present tragedy.
Like our current war on drugs, Prohibition thrived on prejudice. McGirr, a Harvard historian, sees Prohibition as the beginning of centralized police power — “the rise of the American State” — and argues that this power was mainly directed against minorities. It became a war on the poor and in particular against poor urban minorities."
And finally, in a review titled, "A Valentine for a Justice," the LA Review of Books examines Notorious RBG: The Life & Times of Ruth Bader Ginsburg by Irin Carmon and Shana Knizhnik (Dey Street Books). 
"Notorious RBG: The Life and Times of Ruth Bader Ginsburg is a loving, slightly ironic biographical gift-book that is a spin-off from a Tumblr fan site that launched Justice Ginsburg into the pop culture stratosphere. The book was written by the Tumblr creator, recent NYU Law grad Shana Knizhnik, and TV reporter Irin Carmon, who interviewed the Justice for MSNBC."

Saturday, January 30, 2016

Weekend Roundup

  • Ronald Collins interviews David O. Stewart, who clerked for Justice Lewis F. Powell, Jr., in OT 1979, about the writing of Justice Powell's opinion in the commercial speech landmark Central Hudson.
  • Idaho's attorney general is in search of missing volumes of his predecessors' reports. 
  • Mississippi State University to receive rare book collection: “The donations were assembled from the private library of John Robinson Block, publisher of the Pittsburgh Post-Gazette and Toledo Blade.... [It] spans books printed from 1801 to 1898 and includes the scarce first publication of the laws of the Mississippi Territory from 1801, session laws from the territory, the first digest of laws in the territory, Civil War-era imprints along with reconstruction and post reconstruction laws through 1898.  [H/t: Starkville Daily News]
  • As part of a report for the National Cooperative Highway Research Program on the legal issues associated with driverless vehicles, Santa Clara Law’s Dorothy Glancy. Robert Peterson, and Kyle Graham include an interesting section “on early legal response to technologies such as steamboats, railroads, telegraphy, automobiles, airplanes, and computers, with an emphasis on how the law has been invoked to address the perceived risks associated with these devices and systems.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, January 29, 2016

Bradley and Siegel on the "Historical Gloss" on Judicial Separation of Powers

Curtis A. Bradley and  Neil Siegel, Duke University School of Law, have posted Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers:
Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”— a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support what Commonwealth theorists have termed “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to non-legal but obligatory constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.
H/t: Legal Theory Blog

Bernstein on Abortion at Common Law

Anita Bernstein, Brooklyn Law School, has posted Common Law Fundamentals of the Right to Abortion, which appeared in the Buffalo Law Review 63 (2015): 1141-120:
In an article relied on by Justice Blackmun in Roe v. Wade, a lawyer named Cyril Means, Jr., asserted that abortion had been “a common law liberty” back in the fourteenth century. Responding in part to criticisms of this thesis, this Article extends what Means contended. The prerogative to terminate one’s own pregnancy really is a common law liberty: what the common law provides to pregnant persons is in some respects broader than the privacy-related right sited in the Fourteenth Amendment. As expressed consistently for centuries through its doctrines of criminal law, torts, property, contract, and unjust enrichment, the common law takes a position on abortion that comports with the modern coinage “pro-choice.”

Kinports on Blackmun and the Criminal Rights Counterrevolution

Kit Kinports, Penn State Law (and a law clerk to Justice Blackmun during OT 1981) has posted Justice Blackmun's Mark on Criminal Law and Procedure, which appeared in the Hastings Constitutional Law Quarterly 26 (1999): 219-70:
Justice Harry A. Blackmun (LC)
When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, was strong on law and order, and weal on civil liberties."

During the Justice's twenty-four years on the Supreme Court, his colleagues - under the leadership of Chief Justices Burger and Rehnquist - narrowly interpreted and even overruled outright a number of the Warren Court's pro-defendant rulings. Despite initial predictions about Justice Blackmun's views on criminal issues and the general tendency of Supreme Court Justices to remain loyal to the policies of the President who nominated them, the Justice would eventually be called a "swing Justice" and "a voice of reason" in criminal cases. The Justice himself, on the other hand, is fond of saying that his views never shifted, but that it was the Court that changed around him. In attempting to evaluate these various characterizations and to describe the Justice's judicial personality, as reflected in his criminal law opinions, and then turn to the role he played in the Burger and Rehnquist Courts' efforts to restrict the rights afforded criminal defendants.

The Promises and Perils of Disciplinary Border Crossing

[By Anne Kornhauser]

For the past month I have been touting the advantages of a multidisciplinary approach to certain kinds of historical understanding. Legal history is by nature multidisciplinary, but in my work I have chosen to situate legal history within a larger field of operation. I do not want to end this blogging stint, however, without mentioning a few of the drawbacks to the disciplinary eclecticism I have embraced, most of which are practical.

The first is that academics, like many people, like to put everyone in boxes. This means that scholars need to be able to identify their discipline and one or more subfields to constitute our expertise, to be recognizable within our profession. This form of identification makes sense to me; as a scholar, one needs to be able to speak with authority about a subject and to train authors in an area of specialization. If one claims too many forms of expertise, or none at all, one runs the danger of being accused of dilettantism, ignorance, or insouciance, and the accusers might just be right.

Yet expertise in the humanities and the social sciences is a tricky business. If it is difficult to parse, say, chemistry into its component parts, it is next-to-impossible to parse human behavior. As I have mentioned in previous posts, historians make do with different emphases, or perspectives, looking through some lenses but not others, isolating actors, institutions, and objects to make a case from a certain angle of vision about the significance of the human motivations, actions, or institutions we study. In some cases, we try to generalize or attribute causality to larger structural forces from our chosen vantage point and methodological assumptions. Whether looking for meaning or cause, the best we can do is to try to persuade through interpretation and evidence. One means of doing so is to assign greater importance to one aspect of the human condition over others.

Historians--still--almost always start with place. The discipline of history remains tied to the nation-state, though transnational, global, and "big" history have begun to disrupt this historiographical habit. There is something worth preserving here too: whether one starts with a nation-state, a geographical region, or a local community, there are many reasons to study a particular space and many obstacles to writing and teaching truly global histories. Since we must draw some lines, one thing that makes global history salutary is that it forces us to better justify some of those lines. History departments, academic publishing catalogues, history books, are organized foremost by time and place. But time and place only go so far in the business of identification within the historical discipline. It is what we study within the field of history that truly brands us: ideas, politics, culture, law, etc.

Here again, the reasons are mostly practical. As the field has grown, the ineluctable logic of classification proceeds apace. Academic publishers have developed series and specialized editors, job descriptions ask for greater and greater degrees of specificity in what we study and teach, and academic societies have sprung up to bolster thematic specialization. Finally, methodological or ideological infighting over a field or subfield can be another source of ever-multiplying subdivisions.

As good guild members, we like to protect our little fiefdoms in academia, policing the borders and admitting only those with proper identification. The historian who transcends prescribed categories may not quite fit into any scholarly community. More important, there is a risk that in covering so much ground, disciplinary or otherwise, one will be accused of meddling or superficiality. I, for one, will take that risk in exchange for what I believe can be gained from drawing on multiple disciplines both methodologically, in terms of the tools we use to study the past, and interpretively, in terms of how we define our objects of historical study. Invoking multiple disciplines allows for a wider array of possibilities for how we might read our sources; a deeper historical understanding, in particular the ability to recognize broad patterns of conceptualization, practice, and behavior that might otherwise be invisible to us; new ways to think about inherited disciplinary and epistemological categories, not to mention a more diverse community of interlocutors with whom to share ideas.

For these reasons, among others, I was attracted to legal history to complement the intellectual history I had already gravitated toward. Throughout my academic training, border-crossing was de rigueur. I intend to keep it up, unless the border patrols crack down. For I admit, I want to be accepted by the guild as much as anyone. And I do not just mean getting tenure, which I have. I mean being a valued, and valid, professional.

Maxeiner on a Transtlantic German Legal Scholar

James R. Maxeiner, University of Baltimore School of Law, has posted
two articles on J.L. Tellkampf, a legal scholar who already in 1841 in an important series of articles in the America Jurist pointed the way to a modern American legal system as one where codifying and systematizing would lead common law.

Supported by Justice Joseph Story, poet Henry Wadsworth Longfellow and famous naturalist Alexander von Humboldt, he was a professor at Columbia College and at Union College. His research into prison discipline paralleled that of Alexis de Tocqueville. He was a founder of what is now the Correctional Association of New York. Francis Lieber found him a rival. In New York Tellkampf worked with “Young Americans” such as the codifiers of the New York Revised Statutes and David Dudley Field. He knew the poet Poe and other lead Young Americans. He supported reform and criticized past practice.

Before coming to the U.S. in 1838, Tellkampf was a young supporter of modern constitutionalism in Germany and a colleague of the Brothers Grimm at the University of Göttingen. Upon his return to Germany he was a member of the Frankfurt Parliament of 1848 and of its all important constitutional committee and an advocate of American practices.

The article J.L. Tellkampf: German Legal Scientist in the U.S. 1838-1847 in an Age of Reform [forthcoming in volume 50 of the Yearbook of the Society of German American Legal Studies (2016)] is about Tellkampf’s life in the United States and the mixed reception he received here in his pursuit of legal scholarship. The article The First Humboldtian Research Trip into the Polis: J.L. Tellkampf in the United States 1838-1847 is about his research into legal methods, codification, currency backing and prison discipline.

Thursday, January 28, 2016

Northwestern Seeks Legal Studies Instructor

We have the following job posting:
Northwestern Legal Studies
Instructor Position (1 course, spring 2016)

The Center for Legal Studies at Northwestern University seeks an instructor for an undergraduate course entitled “The American Revolution” in Spring Quarter 2015 (March 29-May 31 plus finals). The course is organized around the question of “liberty for whom?” and examines the lives of the diverse people who experienced the American Revolution. A core syllabus has already been designed, but the instructor will have freedom to change some aspects of the course. Two prominent scholars – Elizabeth Fenn and Kathleen DuVal – are scheduled to visit the course.  The course is scheduled to meet Tu/Th from 12:30-1:50 pm.  

Advanced graduate students and recent graduates are encouraged to apply. Please send a cover letter, CV, and summary of teaching evaluations (if any) to the Legal Studies Program Assistant, Annie Kelchner at by February 20, 2016.  Salary will be commensurate with experience.  

Northwestern University does not discriminate or permit discrimination by any member of its community against any individual on the basis of race, color, religion, national origin, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, or any other classification protected by law in matters of employment.

Su on Catholic Constitutionalism

Anna Su, University of Toronto Faculty of Law, has posted Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae, which is forthcoming in the Notre Dame Law Review:    
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century when Catholicism became a potent social force in the United States. This history offers an opportunity to reflect on what the new global geography of Catholicism portends in the future as well as the importance of law in shaping religious change.

Global Perspectives on Legal History 4

[We have the following announcement.]

With Legislar en la América hispánica en la temprana edad moderna. Procesos y caraterísticas de la producción de los Decretos del Tercer Concilio Provincial Mexicano (1585), the Max Planck Institute for European Legal History presents the fourth publication in its book series Global Perspectives on Legal History.

The decrees of the Third Mexican Provincial Council, celebrated in 1585, had an important impact on the organization of the colonial Church and Spanish-American society, from the time they were published in 1622 until the nineteenth century.  This research focuses on how the decrees were drafted, taking into consideration the working materials used in the conciliar meeting room by the bishops and their assistants, and thus highlighting the intentions of the conciliar fathers in their new and original elaboration of both Canon Law and Derecho Indiano.
Global Perspectives on Legal History is a book series edited and published by the Max Planck Institute for European Legal History, Frankfurt am Main, Germany.  As its title suggests, the series is designed to advance the scholarly research of legal historians worldwide who seek to transcend the established boundaries of national legal scholarship that typically sets the focus on a single, dominant modus of normativity and law. The series aims to privilege studies dedicated to reconstructing the historical evolution of normativity from a global perspective.  It includes monographs, editions of sources, and collaborative works. All titles in the series are available both as premium print-on-demand and in the open-access format.  More information on the series and forthcoming volumes [is here.]

Osvaldo Rodolfo Moutin, Legislar en la América hispánica en la temprana edad moderna.
Procesos y caraterísticas de la producción de los Decretos del Tercer Concilio Provincial Mexicano (1585). 
Global Perspectives on Legal History 4.  Frankfurt am Main: Max Planck Institute for European Legal History 2016. 216 p., € 11,64 D.  ISBN: 978-3-944773-03-2.  Open Access Online EditionPrint-on-demand.

CFP: Graduate Student Workshop on the History and Politics of Public Finance

We have the following call for applications:
8th Annual Graduate Student Workshop 
The last decade has witnessed a revival of multidisciplinary research on the social, political, and historical sources and consequences of public finance. We invite interested graduate students from history, law, public policy, and the social sciences to participate in a one-day workshop on this “new fiscal sociology.” In addition to brief lectures introducing students to the comparative history of taxation and public finance, the workshop will consist of discussion of classic and contemporary texts.
The graduate student workshop will be held on Wednesday, November 16th, 2016, in Chicago, Illinois in conjunction with the annual meeting of the Social Science History Association (SSHA). Participants may also have the opportunity to present their own work on Thursday, November 17th, as part of the Public Finance network at the SSHA conference.
Space is limited. Some funds for reimbursement of housing and travel expenses will be available for a limited number of participants.
Applicants should submit a CV and a paragraph explaining their interest in this workshop, and (if applicable) a draft of a research paper that they would like to present at the SSHA. Preference will be given to students who also submit conference papers, but we encourage applications from all students interested in the workshop, including those at early stages of their graduate careers.
Submit materials via e-mail no later than February 20, 2016 to:
  • Isaac Martin, Department of Sociology, University of California – San Diego (
  • Lucy Barnes, Department of Political Science, University College London  (
  • Molly Michelmore, Department of History, Washington and Lee University  (

LHR 34:1

Law and History Review 34:1 (February 2016) is available online:

“The Greatest Thrill I Get is When I Hear a Criminal Say, ‘Yes, I Did it’”: Race and the Third Degree in New Orleans, 1920–1945
Jeffrey S. Adler

The Investigation into the Traffic in Women by the League of Nations: Sociological Jurisprudence as an International Social Project
Paul Knepper

Law, Sovereignty, and the War on Smuggling in Coastal China, 1928–1937
Philip Thai

Multiple Voices and the Force of Custom on Punishment: Trial of ‘Family Honor Killings’ in Mandate Palestine
Badi Hasisi, Deborah Bernstein

Trial by Jury as “Mockery of Justice”: Party Contention, Courtroom Corruption, and the Ironic Judicial Legacy of Antimasonry
Elizabeth Bussiere

No Greater Provocation? Adultery and the Mitigation of Murder in English Law
K.J. Kesselring


John Hudson, The Oxford History of the Laws of England, Volume II: 871–1216, Oxford: Oxford University Press, 2012. Pp. xxiii + 958. $300.00 cloth (ISBN 978-0-19-826030-1).
Thomas J. McSweeney

Matthew Dyson and David Ibbetson, eds., Law and Legal Process: Substantive Law and Procedure in English Legal History, Cambridge: Cambridge University Press, 2013. Pp. xiii + 358. $99.00 cloth (ISBN 978-1-107-04058-8).
Jonathan A. Bush

Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law, Cambridge: Cambridge University Press, 2015. Pp. xiii + 414. $115.00 cloth (ISBN 978-1-107-08099-7).
Rudolph Peters

Elke Stockreiter, Islamic Law, Gender, and Social Change in Post-Abolition Zanzibar, New York: Cambridge University Press, 2015. Pp. 295. $99.99 cloth (ISBN 9781107048416).
Fahad Ahmad Bishara

Deborah A. Rosen, Border Law: The First Seminole War and American Nationhood, Cambridge, MA: Harvard University Press, 2015. Pp. 316. $45.00 cloth (ISBN 978-0-674-96761-8).
Laurel Clark Shire

Michael A. Ross, The Great New Orleans Kidnapping Case: Race, Law, and Justice in the Reconstruction Era, Oxford: Oxford University Press, 2015. Pp. 309. $27.95 cloth (ISBN 978-0-19-977880-5).
Mia Brett

Allyson Hobbs, A Chosen Exile: A History of Racial Passing in American Life, Cambridge, MA: Harvard University Press, 2014. Pp. 400. $29.95 cloth (ISBN 978-0-674-36810-1).
Jane Dailey

Kara W. Swanson, Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America, Cambridge, MA: Harvard University Press, 2014. Pp. 333. $35.00 cloth (ISBN 9780674281431).
Michael Willrich

Anne M. Kornhauser, Debating the American State: Liberal Anxieties and the New Leviathan, 1930–1970, Philadelphia: University of Pennsylvania Press, 2015. Pp. 323. $59.95 cloth (ISBN 978-0812246872).
David Brown

Book Review of Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right – CORRIGENDUM
D. Dinner

In This Issue
Elizabeth Dale

Wednesday, January 27, 2016

Freidland on the Appointments Clause

Steven Friedland, Elon University School of Law, has posted “Advice and Consent” in the Appointments Clause: From Another Historical Perspective, which appeared in the Duke Law Journal Online 64 (May 2015).  To quote from its lengthy abstract:
A central premise of this paper is that the brilliance of the Appointments Clause has become obscured by dysfunction past and present. The Senate’s deference to the President’s nominees in the past was just as damaging to effective government as some of the political polarization and obstruction of the current day. In other words, the appointments process has changed over time, but not necessarily for the worse. Historical rubber-stamping of nominees by the Senate, with lightning-fast approval, is not preferable to careful and reflective consideration and the opportunity for collaborative competency between two branches of government. Yet, today’s new appointments process is fraught with peril, from wholesale refusal to act in a timely manner to staged public hearings designed to reveal nothing. Some of these new tactics are inconsistent with the process values of the clause and have a far-reaching impact. . . .

This Essay first explores the Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate in responding to presidential nominations.