White on the "Strangely Insignificant Role" of the Supreme Court in the Civil War

At least since the publication of Peter Irons’s The New Deal Lawyers (1982), constitutional historians of the twentieth-century United States have understood the role Franklin D. Roosevelt’s lawyers played in shaping the legislation and litigation that produced the constitutional landmarks of the 1930s.  Now, in a (gated) article in the Journal of the Civil War Era 3 (June 2013): 211-38, Jonathan W. White, an Assistant Professor of American Studies at Christopher Newport University, has investigated the role legal strategy played in producing “The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War.”  Professor White identifies three main factors:

Roger B. Taney (credit)

"First, the Lincoln administration worked strategically to reduce the amount of litigation involving federal war measures. For example, the Union military often released or moved political prisoners before they could petition for writs of habeas corpus. Similarly, Lincoln carefully crafted the Emancipation Proclamation to make it difficult for slave owners to sue in the federal courts. Second, the Lincoln administration ignored lower court decisions that struck down federal war measures rather than appeal them to the U.S. Supreme Court. Third, and most importantly, the Judiciary Act of 1789–the law that first created and organized the federal judicial system–gave the government a distinct advantage in litigation involving controversial war measures because it limited the route of appeal to the nation’s highest tribunal."

Bessie Margolin (1909-1996)

[My exam in American Legal History usually includes a biographical essay.  The 2012 exam, for example, had one on Marion Harron; the 2011 exam had one on Bernice Lotwin Bernstein, and the 2010 exam profiled Ida Klaus.  For this year's question, I drew heavily upon Marlene Trestman, “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin (1909-1996)," Journal of Supreme Court History 37 (2012): 42–74, as well as my own research.  See also Karen's essay, Portia's Deal and post on the Frankfurter quote below.]

Bessie Margolin (credit)

Bessie Margolin (1909-1996) was born in Brooklyn to Russian Jewish immigrants.  When she was two, the family moved to Memphis, where, when Bessie was four, her mother died in childbirth.  Her father felt incapable of carrying for his children, so Bessie and a brother were sent to live at the Jewish Children’s Home in New Orleans.  There she received an excellent education and was deemed “a very splendid girl, far above average in every way.”  At sixteen she left the Home and enrolled in a women’s affiliate of Tulane University.  After two years she enrolled in Tulane itself to complete her bachelor’s degree and a law degree.  She was the only woman in the Tulane Law School when she started.  She became Civil Law Editor of the Tulane Law Review.  In 1930, at the age of twenty one, she graduated second in her law school class of twenty three, “a fraction” behind the top student.

Margolin impressed Tulane’s dean with her “unusual professional ability,” her “unusually charming personality,” and her “unusually broad, balanced, and progressive social outlook.”  She also impressed the Yale law professor Ernest Lorenzen, who published an article in her volume of the law review and hired her as his research assistant.  She would spend the next three years in New Haven, the last on a prestigious fellowship as a doctoral candidate in law.  Her thesis, directed by William O. Douglas, was on the French law of corporate reorganizations.  Douglas called it meticulous and “of the highest caliber,” with “an air of realism about it.”

While at Yale, Margolin also wrote a comment on pending legislation on corporate reorganizations.  After the Yale Law Journal, edited that year by Abe Fortas, published it over her initials, partners of eminent law firms inquired after its author.  Their interest in a potential hire vanished when they learned that “B.M.” was a woman.  After receiving her legal doctorate in 1933, she took a temporary job at the Inter-American Commission of Women in Washington, where she researched the legal status of women in Latin America.  Then the creation of the Tennessee Valley Authority (TVA) presented her with a better alternative.  Lorenzen assured TVA’s personnel director that Margolin “is intent upon a legal career or professional career as a primary objective from which she will not be deflected by marriage.”

In the late summer of 1933, Margolin started as a research attorney in TVA’s Knoxville office at a salary of only $2,000.  About that time, a TVA lawyer described her telegraphically: “Tulane, Yale, TVA.  One of the Washington ‘prima donnas.’  Excellent on research.  A good kid.  Sadly underpaid and a bit sore on things.”  He predicted that she “will be all right” under the newly appointed general counsel James Lawrence Fly, and in fact Fly promoted her to Associate Attorney and raised her salary to $3,600.

The TVA’s legal division, one of Margolin’s coworkers recalled, was “an extraordinary able, brilliant group of relatively young lawyers, who had outstanding academic records and law school achievements.”  Fly considered his legal division TVA’s central policymaker.  He let it be known, a lawyer recalled, that “the legal division was going to be the key to the works.”

Fly set Margolin to work organizing evidence, researching legal issues, and writing substantial portions of the briefs in two challenges to TVA that went to the U.S. Supreme Court.  Although she can be seen sitting, hatless, behind TVA’s lead counsel John Lord O’Brian, in a photograph of one trial, she never argued in any branch of the cases.  Although Fly promoted her to Senior Attorney and raised her salary to $4600, she only tried a few condemnation cases “of lesser importance.”

In 1939 Margolin moved to the legal staff of the recently created Wage and Hour Division of the Labor Department, charged with implementing the Fair Labor Standards Act (FLSA).  She asked for $5600, even though she knew that the general counsel might “think this an awful lot ‘for a girl’”; she was pleased when she received $5000.  Save for six months in 1946, when she was in Germany helping organize trials of Nazis, she remained at Wage & Hour until retiring in 1972.   From the start, she appeared in court.  Her argument of motions in federal district court in New Orleans was extensively covered by the local press.  Margolin is “a brunette, with flashing black eyes and a stunning figure,” a newspaperman reported.  “When you see a face like Miss Margolin’s you almost immediately wonder what that ‘Miss’ is tacked on before for.”  At first, she declined to discuss her marital status.  “I’m interested in labor and I’m a New Dealer,” she said.  “Incidentally, I’m not a radical.”  When pressed, she finally responded that she “hadn’t had time for love.”
   
A few months with time cards and payroll records in damp New England warehouses convinced Margolin that trial work was a “deadly bore,” so she transferred to Wage & Hour’s appellate division.  She would ultimately argue 150 cases before the U.S. Circuit Courts (winning 114) and 28 before the U.S. Supreme Court (winning 23).  Frankfurter, who sparred with her in oral argument, described her as “a very good girl & a good advocate but not a lawyer of unsettling brilliance apart from the deft use of her feminine charms.”  She was promoted to Assistant Solicitor of the Department of Labor, but she never became Solicitor or a federal judge, a post she coveted.  Instead, she remained an imposing presence in the Department of Labor.  One Solicitor described his selection process as having three stages: “I had to be nominated by the President, confirmed by the Senate, and interviewed by Bessie.”

Regular visits to the Elizabeth Arden Salon, during which she sometimes edited briefs, kept her impeccably coiffed.  When she entered a courthouse, “she walked with absolute assurance that a door would be opened before she got to it.”  After the Equal Pay Amendment to the FLSA was passed in 1963, she became its greatest defender within the Department of Labor.

[As you can see, the essay does not mention Margolin's affair with Fly, a married father of two, which commenced at TVA and continued after he became chairman of the Federal Communications Commission in September 1939.  Because I had not discussed sexuality and the legal profession in class, I thought the issue too challenging for students to tackle for the first time in the exam room.  FCC Commissioner Clifford Durr described the affair as "one of these things that was known but wasn’t known."  The chairman of an ad hoc investigation of the FCC threatened to make it public until House Speaker Sam Rayburn (like Fly, a Texan) instructed him not to.]

New Release: Murkens, "From Empire to Union: Conceptions of German Constitutional Law since 1871"

Oxford University Press has released From Empire to Union: Conceptions of German Constitutional Law since 1871, by Jo Eric Khushal Murkens (London School of Economics and Political Science). Here's a description from the Press:

Germany has long been at the centre of European debates surrounding the modern role of national constitutional law and its relationship with EU law. In 2009 the German constitutional court voted to uphold the constitutionality of the Lisbon Treaty, but its critical, restrictive decision sent shockwaves through the European legal community who saw potential threats to further European integration.

What explains Germany's uneasy relationship with the project of European legal integration? How have the concepts of sovereignty, state, people, and democracy come to dominate the Constitutional Court's thinking, despite not being defined in the Constitution itself? Despite its importance to the whole enterprise of the European Union, German constitutional thought has been poorly understood in the wider European literature. This book presents a historical account of German conceptions of constitutional law, providing the understanding necessary to see what is at stake in contemporary debates surrounding the constitution and the European Union.

Examining the modern development of German constitutional thought, this volume traces the key public law concepts of state, constitution, sovereignty, and democracy from their modern emergence in the 19th century through to the present day. It analyses the constitutional relationship between Germany and the EU from a sociological and historical perspective, looking at how German constitutional law has conflicted and compromised with EU law, and the difficulties this has raised.

Filling a significant gap in comparative constitutional law literature, this book provides an account of the major schools of German constitutional thought and their development. Against this backdrop it offers a fascinating insight into Germany's relationship with the European Union.

The Table of Contents:

Introduction
Part I: Constitutional Law as a Discipline
1. The Emergence of Constitutional Law as a Positive Discipline
2. The Rejection of Constitutional Law as a Positive Discipline
Part II: Constitutional Law as a Method
3. Staatsrecht and Verfassungsrecht
4. External Application to the European Union
Part III: Constitutional Law as Political Jurisprudence
5. Sovereignty and Continuity
6. The Interpretation of the Basic Law by the Federal Constitutional Court
7. The Structure of the Federal Constitutional Court's Decisions in Maastricht and Lisbon
Conclusion
Appendix: Excerpts from the Basic Law for the Federal Republic of Germany

More information is available here.

CFP: NYU/Tamiment Cold War History Seminar

 [We have, via H-Law, the following call for papers.]

New York University’s Center for the United States and the Cold War invites New York metropolitan area based scholars to submit proposals to present at the Center’s seminar series. The Cold War seminar is a venue for work in progress. The seminar is interdisciplinary and international in scope. All papers are pre-circulated.

We are interested in projects that explore the ways in which the ideological and geopolitical conflict between the Soviet Union and the United States affected politics, culture, and society throughout the world.  Proposals that focus on the impact of the Cold War on political economy, the national security state, civil rights, civil liberties, labor relations, and gender relations are welcomed, as are projects that that see the central issue as U.S., Soviet, and European response to revolutionary nationalism and decolonization.

The Center is a joint project of Faculty of Arts and Science and the Tamiment Library, a special collection at NYU documenting the history of Labor and the Left.

The Center will reimburse presenters’ travel expenses. However, due to budget cutbacks we cannot offer hotel accommodations. We can offer a modest honorarium.

Please submit a one-page abstract and current CV by June 15th to Zuzanna Kobrzynski at zk3@nyu.edu

CFP: “Revisiting Charles Beard's An Economic Interpretation of the Constitution: An Interdisciplinary Symposium”

From the University of Virginia, we have the following Call for Papers:

“Revisiting Charles Beard's An Economic Interpretation of the Constitution: An Interdisciplinary Symposium”

University of Virginia

October 24, 2013

The University of Virginia School of Law, in conjunction with the Miller Center, invites proposals for a day-long symposium to honor the one hundredth anniversary of the publication of Charles Beard’s An Economic Interpretation of the Constitution of the United States. In 1913, Charles Beard famously upended traditional scholarship on the Constitution when he proposed that this founding document should be understood not as a sacred text or one expounding upon important principles, but rather as the product of the economic interests of the men who framed it. In the decades that followed, even as scholars disputed its tenents, Beard’s work remained foundational – even a necessary prerequisite – to modern histories of the Constitution, and, more broadly, to discussions of political and legal behavior.

On October 24, 2013, the University of Virginia School of Law, in cooperation with the Miller Center, will host a day-long symposium celebrating the anniversary of Beard’s seminal work, and reflecting on its relevance and legacy one hundred years after its publication. Papers might address An Economic Interpretation as a historical work, its significance for modern studies of the Constitution and American politics, or the general idea of constitutional veneration. Comparative projects are welcome. Our goal is a vigorous, provocative, and interdisciplinary discussion, in a roundtable atmosphere. In this spirit we encourage submission of papers that are speculative or in an early stage of development, and from various areas of study, including history, law, and political science.

One-page proposals and a short CV should be submitted to Jessica Lowe (jessicaklowe@virginia.edu) and Mark Graber (MGraber@law.umaryland.edu) by July 10, 2013.   

The U.S. Legal History Survey Revisited: III -- Methods of Evaluation

This is another installment of my series of posts on teaching the U.S. Legal History survey. (Earlier posts are here and here.) Having just finished grading, the question of how to evaluate student learning is on my mind. I decided to give my students a choice: they could either complete a ten-hour, essay-style take-home exam or they could write a 20-25 page historiographical essay on a professor-approved topic of their choice.

For the exam: I gave the students three essay questions and asked them to choose two. I placed a 5000-word limit on their answers. I encouraged the students to engage with material from across the semester and to include examples from at least three distinct historical periods.

Here is one of the essay questions I used:

A prominent U.S. historian recently made the following observation: “The language of the Declaration of Independence and the preamble to the U.S. Constitution expressed a powerful vision of the fundamental right to freedom, liberty, and equality.” One way to understand U.S. legal and constitutional history is in terms of that vision’s “incremental[] transform[ation],” over the span of many decades, “into a lived reality for a broader and broader number of Americans.” Do you find this interpretation persuasive? Why or why not?   

[The quotes are pulled from Barbara Welke's Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge University Press, 2010), although, for the record, these snippets do not represent the argument of her book.] This particular question gave the students lots of interpretive space, lent itself to clear thesis statements, and produced a range of answers, some quite sophisticated. From a grading perspective, the question resulted in a nice curve. I'm also pretty sure that for students, it was not overly intimidating.

Here's a question that gave the students a harder time:

Notions of the boundaries of government authority over individuals and groups have been central to all of U.S. history. Explore the ways in which these boundaries have shifted or been re-imagined and suggest an explanation for this change over time.  

In retrospect, I still think it was a fair question, but it produced some weak answers -- perhaps because I did not build into this prompt an interpretation for the students to argue for or against.
Answering the question required original thought. Curiously, some students also assumed that the word "government" meant "federal government" and wrote answers that were essentially about federalism.

For those of you who use essay questions to evaluate your students: What do you think about when you are designing your questions? What types of prompts tend to work well for you? Which are less successful? Do you try to make your questions straightforward, like my first example, or do you try to make your students think harder about what the question is after?

Next up: thoughts on the historiographical essay assignment.

Kornhauser, "The Consistency of Conservative Tax Policy"

Marjorie E. Kornhauser (Tulane University School of Law) has posted "The Consistency of Conservative Tax Policy." It is forthcoming in the Northwestern University Law Review. Here's the abstract:

Modern American tax policy is in a state of disarray. Although conservatives are not solely to blame, their anti-tax campaigns bear a heavy responsibility for this situation. It is not that they fail to discuss issues; to the contrary they, raise important questions, such as the proper distribution of tax burdens, the relationship of taxation to economic growth, and especially the connection between taxing and spending — an issue that liberals often ignore. Rather, the problem is they consistently wrap their arguments in the American flag. Americans are especially susceptible to this technique given the country’s long history of anti-tax sentiment that dates back to the founding of the nation. Consequently, conservatives’ century-long campaign linking seemingly objective economic arguments for low (or no) taxation to American democracy have forced tax debates into a highly emotional, patriotic framework that impedes coherent debate and limits the range of politically feasible options.

My paper illustrates the consistency of conservative tax arguments — substance, style, and method — by examining conservative campaigns between 1924 and 1936 that linked opposition to a soldiers’ bonus to a reduction in taxes. These campaigns are especially interesting to examine because the time period in which they occurred bears several important similarities to present times. The economic conditions during the Depression present obvious similarities to current times, but other important similarities make this a useful period of comparison. Like today, the growth of government, especially at the federal level, during this period strengthened conservative fears of unconstitutional expansion of the central government and the consequent weakening of American democracy and the sapping of American character. Like today, conservatives saw taxation as a key factor in this crisis. Since taxes funded expanded government functions, cutting taxes would help shrink government.

Finally, although lobbying is co-existent with government, modern, media-driven sell-the-candidate (or policy) campaigns first matured in this era. In both eras the development of new mass media invigorated the marketplace of ideas even as the increased knowledge about human behavior enhanced opportunities to manipulate public opinion. This is especially true for grassroots organizations that frequently present themselves to the public as broadly-supported civic groups providing neutral educational information whereas, in fact, it is a small (often wealthy) number of individuals and/or companies trying to influence the public to adopt their self-interested viewpoint.

The full article is available here, at SSRN.

New Release: Beever, "Forgotten Justice"

New from Oxford University Press: Allan Beever, Forgotten Justice: Forms of Justice in the History of Legal and Political Theory (2013). Here's a description from the Press:

Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.

In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.

A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.

The Table of Contents:

Introduction
1. The Modern Conception of Political Philosophy and Law
Part I: Discovery
2. Plato: A Beginning
3. Plato: A New Beginning
4. Aristotle
5. Cicero
Part II: Establishment
6. Aquinas
7. Pufendorf
8. Kant
Part III: Forgetting
9. Hobbes
10. Locke
11. The Utilitarians
Part IV: Implications
12. Legal Analysis
13. Political Philosophy
14. Conclusion

For more information, follow the link.

The Roberts Court, Reinventing Government, and More: This Week in the Book Pages

In the Washington Post Jeffrey Rosen reviews The Roberts Court: The Struggle for the Constitution (Simon and Schuster).  According to Rosen:

The great strength of Coyle’s book is the depth and balance of her reporting. She interviewed several justices on background and one, Antonin Scalia, on the record. She also interviewed the lawyers and litigants on both sides of the four highest-profile cases of the Roberts era — involving affirmative action in public schools, gun rights, campaign finance and health care. By allowing all the participants to speak in their own voices, she gives us a nuanced sense of how conservative and libertarian lawyers strategically litigated these cases and transformed the law.

The Washington Post also has a review of Simpler: The Future of Government (Simon and Schuster) by Cass Sunstein and Citizenville: How to Take the Town Square Digital and Reinvent Government (Penguin) by Gavin Newsom.  Of the two books, Carlos Lozada writes that they "perfectly capture the twin cultural and social-science obsessions of the early 21st century: the networking power of social media and the explanatory power of behavioral economics."

In the New York Times, you'll find a review of John Taliaferro's All the Great Prizes: The Life of John Hay, from Lincoln to Roosevelt (Simon and Schuster), and a review by Scott Turow of Thomas Dyja's The Third Coast: When Chicago Built the American Dream (Penguin), "a wide-angled cultural history of Chicago in the middle of the 20th century."

The Wall Street journal has reviews of two biographies of WWII figures.  Carl Rollyson reviews Ray Monk's Robert Oppenheimer: His Life and Mind (Doubleday).  "[T]he author's approach," he writes "demonstrates why previous biographers," namely Kai Bird and Martin Sherwin whose American Prometheus contained a "staggering amount of research," did not "both with detailed descriptions of Oppenheimer's scientific papers."  And Caroline Moorehead reviews Olivia Manning: A Woman at War (Oxford) by Deirdre David.

Weekend Roundup

• On June 27, 2013, Morehead State University will host a Federalism Symposium featuring "academic presentations of research from scholars across the nation with expertise on federalism and intergovernmental relations." For information on how to submit a proposal, follow the link. (Hat tip: H-Law)

• The latest issue of the Journal of Legal Education contains several reviews of interest: Laurie L. Levenson (Loyola Law School, Los Angeles) reviews The People's Courts: Pursuing Judicial Independence in America, by Jed Handelsman Shugerman; Mónica Pinto (University of Buenos Aires Law School) reviews The Human Rights Culture: A Study in History and Context, by Lawrence M. Friedman; and Thomas E. Baker (Florida International University College of Law) reviews Five Chiefs: A Supreme Court Memoir, by John Paul Stevens.

• Via the Historical Society: "The New York City Municipal Archives has put on-line more than 800,000 images." Check them out here.

• All you doctoral students working on immigration law and related topics: "The Immigration and Ethnic History Society announces its first annual award for an outstanding dissertation in the field of immigration and ethnic history." Follow the link for more. (Hat tip: H-Law)

• Marc Lender discusses his book on Gitlow v. New York in Kansas's Landmark Law and American Society series here.

•  From the new Environment, Law and History blog: a post on environmental history and capitalism in the Supreme Court's recent patent decision (Monsanto v. Bowman).

• "In a meadow on the banks of the Thames a King and his barons made peace on June 15th, 1215 through a great charter or "Magna Carta."  Little did they know that they were laying the foundation for future democracies through a simple but unbreakable idea that would endure for centuries: that no one, not even a King, is above the law of the land." Want more of the same?  Go to London this summer on Pepperdine Law's week-long study abroad program, English Legal History in the 800th Anniversary of the Magna Carta"

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

New Release: Zackin, "Looking for Rights in All the Wrong Places"

New from Princeton University Press: Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013), by Emily Zackin (Department of Political Science, Hunter College, City University of New York). Here's a description from the Press:

Unlike many national constitutions, which contain explicit positive rights to such things as education, a living wage, and a healthful environment, the U.S. Bill of Rights appears to contain only a long list of prohibitions on government. American constitutional rights, we are often told, protect people only from an overbearing government, but give no explicit guarantees of governmental help. Looking for Rights in All the Wrong Places argues that we have fundamentally misunderstood the American rights tradition. The United States actually has a long history of enshrining positive rights in its constitutional law, but these rights have been overlooked simply because they are not in the federal Constitution.

Emily Zackin shows how they instead have been included in America's state constitutions, in large part because state governments, not the federal government, have long been primarily responsible for crafting American social policy. Although state constitutions, seemingly mired in trivial detail, can look like pale imitations of their federal counterpart, they have been sites of serious debate, reflect national concerns, and enshrine choices about fundamental values. Zackin looks in depth at the history of education, labor, and environmental reform, explaining why America's activists targeted state constitutions in their struggles for government protection from the hazards of life under capitalism.

Shedding much-needed light on the variety of reasons that activists pursued the creation of new state-level rights, Looking for Rights in All the Wrong Places challenges us to rethink our most basic assumptions about the American constitutional tradition.

Emily Zackin (credit)

The blurbs are impressive. Here are a few:

"Emily Zackin argues that the United States has a long history of positive rights protection, created and fostered by political outsiders who wanted to change society and disrupt the status quo. We will find this tradition not in the federal constitution, but in our country's many state constitutions. This is a crucially important book revealing an unjustly neglected feature of America's constitutional traditions."--Jack M. Balkin, Yale Law School

"This is an extremely important book that will be widely discussed. One of the pathologies of the standard approach to American constitutionalism is its exclusive focus on the U.S. Constitution and the concomitant ignorance of the rich materials to be found in the literally dozens of American state constitutions. This book will be an extremely important wake-up call for most readers."--Sanford Levinson, author of Constitutional Faith

The TOC:

Chapter 1: Looking for Rights in All the Wrong Places 1
Chapter 2: Of Ski Trails and State Constitutions: Silly Details or Serious Principles? 18
Chapter 3: Defining Positive Rights 36
Chapter 4: Why Write New Rights?: Understanding Constitutional Development Apart From Entrenchment 48
Chapter 5: Education: A Long Tradition of Positive Rights in America 67
Chapter 6: Workers' Rights: Constitutional Protections Where (and When) We Would Least Expect Them 106
Chapter 7: Environmental Protection: Positive Constitutional Rights in the Late Twentieth Century 146
Chapter 8: Conclusion 197

The first chapter is available here.

New Journal: Comparative Legal History

The journal Comparative Legal History has officially launched. Here's the announcement:

Comparative Legal History: An international and comparative review of law and history

EDITOR
Seán Patrick Donlan, University of Limerick
Email: sean.donlan@ul.ie

ARTICLES EDITOR
Heikki Pihlajamäki, Helsinki University
Email: Heikki.pihlajamaki@helsinki.fi

REVIEWS EDITOR
Agustín Parise, Maastricht University
Email: agustin.parise@maastrichtuniversity.nl

EDITORIAL STAFF
Wim Decock, Max Planck Institute for European Legal History (LOEWE Research Focus Judicial and Extrajudicial Conflict Resolution)
Dolores Freda, University of Napoli – Federico II
Nir Kedar, Bar-Ilan University
Richard McMahon, University of Liverpool
Zülâl Muslu, University of Paris X-Nanterre and Max Planck Institute
for European Legal History
Allison Tirres, DePaul University
Adelyn Wilson, University of Aberdeen

Please click here to see the International Editorial Board

In this new peer-reviewed journal articles will explore both 'internal' legal history (doctrinal and disciplinary developments in the law) and 'external' legal history (legal ideas and institutions in wider contexts). Rooted in the complexity of the various Western legal traditions worldwide, the journal will also investigate other laws and customs from around the globe. Comparisons may be either temporal or geographical and both legal and other law-like normative traditions will be considered. Scholarship on comparative and trans-national historiography, including trans-disciplinary approaches, is particularly welcome.

The Editors welcome scholarly submissions in the English language. The optimal length for articles is between 7500 to 15000 words, including footnotes. Shorter submissions will be considered for our 'Short Articles' section. All articles are submitted to double blind peer review. Book reviews will generally range from 1500 to 2500 words. Review articles will also be considered. The journal is published, both online and in print, twice a year, appearing in the spring and the autumn.

Comparative Legal History is the official journal of the European Society for Comparative Legal History.

Click here to read the contents of Volume 1. Issue 1 and for details on how to subscribe.

For all enquiries please contact the publisher: Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK
Telephone Number: 01865 517530; Fax Number: 01865 510710; Website: www.hartpub.co.uk; Email: jo@hartpub.co.uk

YJL&H 24:2 (2012)

We just realized that the latest issue of the Yale Journal of Law and the Humanities has two works of legal history, The first is Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion, by Hunter Smith:

Around the turn of the last century, many American lawyers wanted to ban dissenting opinions in all courts of last resort. They derided dissenting opinions as a pernicious waste of time, one that caused uncertainty in the law, shook the public's faith in the courts and was fundamentally inconsistent with the nature of judicial authority. A dissenting opinion, they claimed, was no more than a statement by a judge as individual, but such statements should not be published in law reports. Though the idea never got very far - only one state prohibited the publication of dissenting opinions in official reports - the debate over whether to publish dissent engaged the energies of leading legal periodicals, bar associations, judges and lawyers for a considerable span of years.

The turn-of-the-century controversy over the publication of dissenting opinions has escaped contemporary academic attention. To the extent that the criticism of dissenting opinions has appeared in scholarship at all, it has been understood as an example of "classical legal thought." As one account puts it, because classical legal thought strove to portray "law [as] neutral, objective and prepolitical," it was embarrassed by and adamantly opposed to the public expression of judicial disagreement. In an article on the opinion-writing practices of the Taft Supreme Court, Robert Post quotes some of the lawyers from this earlier era who inveighed against the publication of dissent. He too uses turn-of-the-century articles opposed to the publication of judicial dissent as examples of "a jurisprudential understanding of the nature of law [as] a grid of fixed and certain principles designed for the settlement of disputes," an understanding which he argues the members of the Taft Court gradually abandoned.

Around the turn of the last century, many American lawyers wanted to ban dissenting opinions in all courts of last resort. They derided dissenting opinions as a pernicious waste of time, one that caused uncertainty in the law, shook the public's faith in the courts and was fundamentally inconsistent with the nature of judicial authority. A dissenting opinion, they claimed, was no more than a statement by a judge as individual, but such statements should not be published in law reports. Though the idea never got very far - only one state prohibited the publication of dissenting opinions in official reports - the debate over whether to publish dissent engaged the energies of leading legal periodicals, bar associations, judges and lawyers for a considerable span of years.

The turn-of-the-century controversy over the publication of dissenting opinions has escaped contemporary academic attention. To the extent that the criticism of dissenting opinions has appeared in scholarship at all, it has been understood as an example of "classical legal thought." As one account puts it, because classical legal thought strove to portray "law [as] neutral, objective and prepolitical," it was embarrassed by and adamantly opposed to the public expression of judicial disagreement. In an article on the opinion-writing practices of the Taft Supreme Court, Robert Post quotes some of the lawyers from this earlier era who inveighed against the publication of dissent. He too uses turn-of-the-century articles opposed to the publication of judicial dissent as examples of "a jurisprudential understanding of the nature of law [as] a grid of fixed and certain principles designed for the settlement of disputes," an understanding which he argues the members of the Taft Court gradually abandoned.

The second is After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801 by Jed Glickstein, which we noted as an SSRN paper:

Most law students encounter the midnight judges, if at all, in a footnote to "perhaps the most famous case in American history." In the words of the judges' foremost historiographer, "the appointment of the 'midnight judges' has lingered because it affords the appropriate essential for a springboard introduction to an analysis of John Marshall's decision in Marbury v. Madison." To summarize: Thomas Jefferson and the Democratic-Republicans defeated the reigning Federalist Party, led by President John Adams, in the election of 1800. In response, the lame-duck Federalists tried to shore up their position in the short time before Adams left office. Just a few weeks before Jefferson's inauguration, the outgoing Federalist Congress passed the Judiciary Act of 1801, creating sixteen new federal circuit judgeships. In a separate act, Congress created three additional circuit judgeships and over forty justices of the peace for the District of Columbia. Adams hastily filled as many of these positions as he could with his supporters. As a Federalist senator famously observed to a friend, his party was "about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship thro the storm?"

In short order, however, President Jefferson and the Republicans regained the initiative. Shrugging off the Federalists' protests, the new Congress repealed the Judiciary Act, abolished the new courts, and put the so-called "midnight judges" out of their jobs. Jefferson also ordered his Secretary of State to ignore some signed commissions that the Adams administration had forgotten to deliver to justices of the peace during the chaotic changeover, leading William Marbury and several other would-be JPs to sue to get hold of their commissions. Marbury lost, but in deciding his case Chief Justice John Marshall promulgated what has become the classic statement of judicial review, the proposition

2013 Hurst Fellows

Congratulations to the 2013 Hurst Fellows! As announced by the University of Wisconsin Institute for Legal Studies, they are:

Gregory Ablavsky, J.D. is a doctoral candidate and Sharswood Fellow in Law & History at the University of Pennsylvania Law School. Matthew A. Axtell, J.D. is a doctoral candidate in Princeton’s history department. Lily Chang, Ph.D. is the Henry Lumley Research Fellow and a Research Associate with the Centre for History and Economics at Magdalene College, Cambridge, UK. Lisa Eberle is a doctoral candidate in the Group for Ancient History and Mediterranean Archaeology (AHMA) at University of California, Berkeley. Anne Fleming, J.D. is a doctoral candidate in history at the University of Pennsylvania and a Climenko Fellow and Lecturer on Law at Harvard Law School.  Taja-Nia Henderson, J.D., Ph.D. is an Assistant Professor at Rutgers-Newark School of Law. Suzanne Kahn is a doctoral candidate in Columbia University’s American History program. Jessica Lowe, J.D. is a doctoral candidate at Princeton University and an Associate Professor of Law, University of Virginia Law School. Jesse Nasta is a doctoral candidate at Northwestern University, where he is a Graduate Fellow in Legal Studies. Michael Schoeppner, Ph.D. completed his dissertation in American History at the University of Florida in December, 2010, and currently is an ACLS New Faculty Fellow at the California Institute of Technology. Laurie M. Wood, Ph.D. completed her doctoral degree in History at the University of Texas at Austin in 2013 and will be the 2013-14 Law and Society Postdoctoral Fellow at the University of Wisconsin. Nurfadzilah Yahaya, Ph.D. is the Mark Steinberg Weil Early Career Fellow at Washington University in St. Louis.

About the Hurst Summer Institute in Legal History:

The Hurst Summer Institute is a biennial event sponsored by the Institute for Legal Studies in conjunction with the American Society for Legal History (ASLH). Each Hurst Institute is organized and chaired by a well-known legal historian and includes visiting senior scholars who lead specialized sessions.  For each Summer Institute, a committee appointed by the ASLH reviews applications from beginning faculty members, doctoral students with completed or almost completed dissertations, and recent J.D. graduates, and selects junior scholars from around the world as Institute Fellows. The Fellows come to Madison for two weeks to participate in seminars, meet other legal historians, and discuss their own work. The two-week program is structured but informal, and features discussions of core readings in legal history and analysis of the work of the participants in the Institute. 

This year's Institute will be chaired by Hendrik Hartog (Princeton University).

More detailed biographies of the Fellows are after the jump.

UW Law & Society Post-Doc to Wood

Via the University of Wisconsin Law School website, we have news that Laurie Wood has been named the 2013-14 Law and Society Postdoctoral Fellow. Here's the rest of the announcement:

Dr. Wood completed her Ph.D. in History at the University of Texas at Austin in the spring of 2013. She is a historian of the early modern world and her research focuses on law and Francophone history in comparative and global perspectives.

Dr. Wood's dissertation, "Îles de France: Law and Empire in the French Atlantic and Indian Oceans, 1680-1780," examines courts, known as conseils supérieurs, as anchors that connected the far-flung reaches of France's early modern empire in a common legal culture, from Versailles in France to Martinique and Mauritius in the Atlantic and Indian Oceans. More broadly, her research interests focus on the question of how humans define themselves at the crossroads of global and local categories and how they act on these understandings of location and context. Her work reframes colonial and metropolitan French histories as a shared past and engages transnational work on legal regimes and comparative imperialism.

Dr. Wood's research has been supported by the Huntington Library in San Marino, the John Carter Brown Library in Providence, the Newberry Library in Chicago, the UCLA William Andrews Clark Memorial Library in Los Angeles, and the University of Texas at Austin.  

Congratulations to Laurie Wood!

Lyall's "Irish House of Lords"

Andrew Lyall, who taught land law and legal anthropology in the Faculty of Law at University College Dublin from 1980 until his retirement in 2007, has just published with Clarus Press, The Irish House of Lords: A Court Of Law In The Eighteenth Century.  The press reports:

The Irish House of Lords: A Court Of Law In The Eighteenth Century is a unique work which examines the role of this final court of appeal between the years 1783 ‘til the Act of Union in 1800 placing the Court in the context of the political and constitutional history of the time. Utilising a broad range of sources, including recent and relevant academic studies as well as rare law reports and archives this book traces, in great detail, the importance of particular decisions of the Irish lords and what they tell us about penal laws and other phenomena of Irish life at that time.

This comparative analysis of decisions of the Irish and British lords, in the context of disagreements and disputes about jurisdiction between the islands of Ireland and Great Britain, builds on our current understanding of the issues involved and brings to it the fresh perspective of a scholar who understands the subtleties of particular legal decisions as well as their broader political reception. The author also examines the judges of the court, their individual contributions and judicial attitudes. This insight to the personalities and lives of some of the leading judges and others who were involved in key decisions in the eighteenth century brings an added dimension that many readers will find attractive and that supplements our existing knowledge of those individuals.

Some of the material discussed is relevant to a wider constitutional debate, one that stretches across the Atlantic Ocean to encompass the American colonies and that deals with the ostensible supremacy of the English King or parliament in the eighteenth century. The ownership of land, the interests of Irish families and the exploration of substantive legal issues in respect to ‘leases for lives renewable forever’ raises issues that might otherwise be overlooked by historians, not least in respect to leases for lives and the Penal laws. The book concludes with a chapter dedicated to the criminal jurisdiction of the Irish House of Lords dealing as it does with trials such as that of Lord Barry of Santry, as well as that of the Earl of Kingston.

Just before the Union with Great Britain in 1801 when the Irish parliament ceased to exist, the jurisdiction of the Irish court of Exchequer Chamber was expanded, which presaged a similar development in England in 1830 which does not seem to have been noted elsewhere. The book therefore helps to put the British legal system in a wider context and to point out the Irish influences upon it which have tended to be ignored in the past.

This book is more than a scholarly examination of points of law. It is a nuanced and intriguing insight into some of the people who contributed centrally to the development of that  distinctive Irish institution and an exploration of the impact of some of its key judgments on the ways in which everyday life might be organised in Ireland.

Dr. Lyall explains that the book “should be of some interest in the USA since the movement for greater independence, both legislative and judicial had parallels in North America which were realised at the time and discussed in the 20th century” in the following works: Charles McIlwain, The American Revolution: A Constitutional Interpretation (1923); R. Schuyler, Parliament and the British Empire (New York, 1929); Barbara A. Black, `The Constitution of Empire: The Case for the Colonists' (1976) 124 U. Pa. L. Rev. 1157; T. C. Grey, `Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought' (1978) 30 Stan. L. Rev. 843; J. P. Reid, `In Legitimate Stirps: The Concept of ``Arbitrary,'' the Supremacy of Parliament, and the Coming of the American Revolution' (1977) 5 Hofstra L. Rev. 459; and Greene, `From the Perspective of Law: Context and Legitimacy in the Origins of the American Revolution' (1986) 85 S. Atl. Q. 56.

Book Prizes in American Legal History

[While we're posting announcements for all the other Cromwell Prize subcommittees, we might as well move up this announcement for the Cromwell and Reid book prizes.]

Here is a joint announcement of the Cromwell Book Prize of the William Nelson Cromwell Foundation and the John Phillip Reid Book Award of the American Society for Legal History.

The Reid Award and the Cromwell Book Prize are mutually exclusive.  The Cromwell Book Prize is awarded for first books, wholly or primarily written while the author was untenured.  The Reid Award is for a first or subsequent book written by a mid-career or senior scholar.  For advice in doubtful cases, please consult Daniel Ernst, Chair of the Cromwell Book Prize Advisory Subcommittee, and Sophia Lee, chair of the ASLH Committee on the John Phillip Reid Book Award.

Cromwell Book Prize

The William Nelson Cromwell Foundation awards annually a $5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar.  The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured.  The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference.  The prize is limited to a first book, wholly or primarily written while the author was untenured.  The William Nelson Cromwell Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Committee will consider books bearing a copyright date of 2012.

To nominate a book, please send copies of it and the curriculum vitae of its author to John D, Gordan, III, Chair of the Cromwell Prize Advisory Committee, and to each member of the Cromwell Book Prize Advisory Committee with a postmark no later than May 31, 2013.
   
John D. Gordan, III
1133 Park Avenue
New York, NY 10128

Professor Daniel R. Ernst
Chair, Cromwell Book Prize Advisory Subcommittee
Georgetown Law Center
600 New Jersey Avenue N.W.
Washington, D.C.  20001
ernst@law.georgetown.edu

Professor Jane Dailey
600 N. Fairbanks Ct., #3702
Chicago, IL  60611

Professor Laura Edwards
History Department
Box 90719
Duke University
Durham, NC  27708

Professor Laura Kalman
Department of History
University of California, Santa Barbara
Santa Barbara, CA  93106-9410

John Phillip Reid Book Award

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The award is given on the recommendation of the Society’s Committee on the John Phillip Reid Book Award.

For the 2013 prize, the Reid Award Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2012. Nominations for the Reid Award should be submitted by May 31, 2013, by sending a curriculum vitae of the author and one copy of the book to each member of the committee:

Professor Sophia Lee
Chair, Committee on the John Phillip Reid Book Award
University of Pennsylvania Law School
3501 Sansom St.
Philadelphia, PA  19104
slee@law.upenn.edu

Catharine C. MacMillan
Department of Law
Queen Mary, University of London
Mile End Road
London E1 4NS
United Kingdom

Richard J. Ross
University of Illinois College of Law
504 E. Pennsylvania Avenue
Champaign, IL 61820

Laura Weinrib
University of Chicago Law School
1111 E. 60th St., Room 410
Chicago, IL 60637

Steven Wilf
Law School
University of Connecticut
65 Elizabeth Street
Hartford, Connecticut  06105

Zelden's "Thurgood Marshall"

Just out in Routledge’s Historical Americans series is Thurgood Marshall: Race, Rights, and the Struggle for a More Perfect Union, by Charles L. Zelden, Nova Southeastern University:

Thurgood Marshall was an Associate Justice of the US Supreme Court from 1967 to 1991. He was the first African American to hold that position, and was one of the most influential legal actors of his time. Before being appointed to the Supreme Court by President Lyndon Johnson, Marshall was a lawyer for the National Association for the Advancement of Colored People (NAACP), Federal Judge (1961-1965), and Solicitor General of the United States (1965-1966). Marshall won twenty-nine of thirty-two cases before the Supreme Court - most notably the landmark case of Brown v. Board of Education, which held segregated public schools unconstitutional. Marshall spent his career fighting racial segregation and legal inequality, and his time on the court establishing a record for supporting the "voiceless American." He left a legacy of change that still affects American society today.

Through this concise biography, accompanied by primary sources that present Marshall in his own words, students will learn what Marshall did (and did not do) during his life, why those actions were important, and what effects his efforts had on the larger course of American history.

Table of contents here.

Rose on the Law of Maintenance and Sir John Fastolf

Jonathan Rose, Arizona State University College of Law, has posted The Law of Maintenance and the Obligations Of Lordship: A Case Study.  Here is the abstract:    

As part of continuing work on the law of maintenance, in The Law of Maintenance and the Obligations of Lordship: A Case Study, this paper focuses on two important legal and social norms in medieval disputing. Maintenance was a legal concept describing conduct that involved assisting or supporting the litigation of another person. Statutes prohibiting maintenance were an important weapon directed at misuse of the legal system, especially by powerful individuals and officials. Lordship was an important medieval social and political institution. ‘Good lordship’ meant that lords were supposed to protect and support their tenants, household members, and retainers in their litigation and other disputes. An interesting issue raised by the prohibitions on maintenance is their relationship to the obligations of lordship. To study the relation between lordship and maintenance, he focuses on the mid-15th century litigation involving the servants of Sir John Fastolf, a wealthy and well known 15th century knight. Despite what may appear to be a conflict between the prohibitions on maintenance and obligations of lordship, he concludes that it is doubtful whether the exercise of 'good lordship' was usually illegal maintenance.

Cromwell Prize for Articles Published in 2012

The William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2012.  Articles published in 2012 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed.  Please send a brief letter of nomination, no longer than a page, along with an electronic or hard copy of the article, by May 31, 2013, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC  27599-3380 or via email, abrophy@email.unc.edu. Other members of the articles subcommittee of the Cromwell Prizes Advisory Committee are are Mary Sarah Bilder of Boston College, Daniel W. Hamilton of the University of Illinois, and Kristin A. Olbertson of Alma College.
Hat tip: H-Law

Lind's "Lincoln's Suspension of Habeas Corpus"

Douglas Lind, the Law Library Director and Professor of Law at the SIU School of Law,has published Lincoln's Suspension of Habeas Corpus: The Pamphlet Literature and Congressional Debate. 

The public debate held via pamphlet literature as a result of Lincoln’s suspension of habeas corpus and the subsequent Merryman case is often cited in analysis of the modern balance of executive powers in wartime as pertaining to civil rights. The congressional debate produced several failed attempts to authorize a continued wartime suspension of the writ and indemnify the President. This sourcebook contains the text of most of the pamphlets and other fugitive items, arranged chronologically and with an introduction discussing the author’s main points. The work also includes an annotated chronology of all procedural measures associated with the various pieces of legislation from the 37th Congress, with the complete texts of speeches and debates to allow researchers to analyze the competing arguments.

The work was recently awarded the Joseph L. Andrews Bibliographic Award by the American Association of Law Libraries.  The table of contents is here.

AHA Prizes: Deadline Approaching

May 15 is the deadline for many of the prizes awarded by the American Historical Association.

Of particular interest to our readers: the Littleton-Griswold prize, "offered annually for the best book in any subject on the history of American law and society." (Pictured at right: Last year's winner: Serena Mayeri's Reasoning from Race.)

Don't forget to apply!

Chief Justice Roberts to Lecture at the Jackson Center

[The Jackson biographer John Q. Barrett, St. John’s Law, has sent out the following announcement over the Jackson List.]

On this Friday, May 17, 2013, the Chief Justice of the United States, John G. Roberts, Jr., will speak at the Robert H. Jackson Center in Jamestown, New York.

The Jackson Center of course honors and teaches the life and legacies of Justice Robert H. Jackson, a 20th century giant whose imprint on this century is significant and continues to grow. Among many accomplishments, Justice Jackson served on the Supreme Court of the United States for thirteen years. Following World War II, he was, at Nuremberg, the U.S. chief prosecutor of the principal Nazi war criminals.

Robert H. Jackson’s adult hometown was Jamestown, New York. In late 2000, visionary, generous Jamestown leaders committed themselves to founding the Robert H. Jackson Center. They acquired a building (which needed substantial work) and the Jackson Center began to host events (and to be renovated) in 2001.

In May 2003, Chief Justice William H. Rehnquist formally dedicated the Robert H. Jackson Center. Fifty years earlier, William Rehnquist worked for Justice Jackson at the Supreme Court as one of his law clerks.

About twenty years before Chief Justice Rehnquist dedicated the Jackson Center, he employed John Roberts—a western New York State native—as one of his Supreme Court law clerks.  When the Jackson Center welcomes Chief Justice Roberts this Friday, it thus will host not only the leader of the high Court on which Justice Jackson served with great, enduring distinction, but also a person whose path and experiences connect to Jackson himself. (Chief Justice Roberts has long been a Jackson student and admirer.  You will find [here] a July 2005 post, “John Roberts and Justice Jackson.)

Chief Justice Roberts’s speech, to be delivered on May 17th at 10:00 a.m. from the Jackson Center’s front porch, will be attended by many, including students from area—Jacksonland—schools.

L&HR 31:2 (May 2013)

Law and History Review’s 31:2 issue (May 2013) is up on the Cambridge Journals website.  Here are the articles

Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era, by Claudio J. Katz

Constitutional Principle, Partisan Calculation, and the Beveridge Child Labor Bill, by Logan Everett Sawyer

“Equals of the White Man”: Prosecution of Settlers for Violence Against Aboriginal Subjects of the Crown, Colonial Western Australia, by Amanda Nettelbeck

Jews or Germans? Nationality Legislation and the Restoration of Liberal Democracy in Western Europe after the Holocaust, by David Fraser and Frank Caestecker

“Our Militancy is in Our Openness”: Gay Employment Rights Activism in California and the Question of Sexual Orientation in Sex Equality Law, by Katherine Turk

Book reviews after the jump.

Visiting Position in U.S. History at Brown

[We have the following announcement.  We understand that American Legal History is among those “courses with broad appeal” that the announcement envisions.]

UNITED STATES HISTORY.  The History Department at Brown University invites applications for a one-year, full-time visiting appointment in U.S. history for the 2013-14 academic year.  Ph.D. or equivalent is required by time of appointment.  Regional, thematic, and chronological specializations are open, but there is a preference for candidates who can teach courses in 19th-century U.S. history, especially courses with broad appeal, such as The American Civil War. Teaching duties will include one lecture course and one seminar per semester, as well as advising of senior honors theses.  Interested candidates should submit a letter of application, a curriculum vitae, at least two syllabi of courses already taught or proposed to teach, and the names and email addresses of three referees.  All materials should be assembled into one .PDF document and emailed as an attachment to Tracy_Steffes@Brown.edu.  Consideration of applications will begin May 20, 2013 and continue until the position is filled.  Brown University is an EEO/AA employer.  Women and minorities are encouraged to apply.

Cromwell Prize for Dissertations Completed in 2012

The William Nelson Cromwell Foundation has generously funded a dissertation prize of $2,500 for the year 2013. The winning dissertation may focus on any area of American legal history, including constitutional and comparative studies, but topics dealing with the colonial and early national periods will receive some preference. Anyone who received a Ph.D. in 2012 will be eligible for this year's prize. The Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History.

To be considered for this year's prize, please send one hard-copy to John D. Gordan, III, Chair, Cromwell Prize Advisory Committee, 1133 Park Avenue, New York, NY, 10128, and to each of the following members of the subcommittee for the dissertation prize with a postmark no later than May 31, 2013:

Christian G. Fritz, Chair, Cromwell Dissertation Prize Advisory Subcommittee
Professor of Law
University of New Mexico
School of Law
1117 Stanford NE
MSC 11 6070
Albuquerque, NM 87131-0001

Joanna L. Grisinger, Senior Lecturer, Legal Studies Program,
Center for Legal Studies
1-111 Crowe Hall
Northwestern University
Evanston, IL 60208

Dr. Maeva Marcus, Director
Institute for Constitutional History
The New York Historical Society and
The George Washington University Law School
2000 H Street NW
Washington DC 20052

Michael Ross, Associate Professor
Department of History
University of Maryland
2115 Francis Scott Key
College Park, MD 20742

Environment, Law and History

A hearty welcome to the blogosphere to Environment, Law, and History, run by Sarah Milov and David Schorr.  They explain:

The connections between the environment, law, and history are deep and pervasive. Many of us, from many disciplines – law, history, geography, and environmental studies to name a few – have been working at the intersections of these fields for some time, but have had no common forum for exchanging views and information. This blog aims to enable such exchanges, allowing us to share ideas and learn about scholarship, conferences, and opportunities for collaboration with colleagues around the world.

Just up is a post on law-related papers at the recently concluded annual meeting of the American Society for Environmental History.

Women in the Life and Law of the D.C. Circuit Courts

[Here is a more complete announcement for an event we've previously noted.]

The Historical Society of the District of Columbia Circuit presents Women in the Life and Law of the D.C. Circuit Courts, a symposium to be held on Tuesday, June 18, 2013, from 4:30 – 6:00 p.m. in the Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.

Women in the Life and Law of the D.C. Circuit Courts will bring together participants in the life of the D.C. Circuit – judges, administrators, law clerks and practicing attorneys – to speak from their experience about the past, present and future of women in the Courts of the Circuit. The program will open with stage-setting remarks by Emerita Professor Barbara Babcock of Stanford Law School who clerked for Circuit Judge Henry Edgerton and writes and teaches about women’s issues. This will be followed by a panel discussion moderated by Professor Babcock.

Participants in the panel will be Justice Ruth Bader Ginsburg (D.C. Circuit Judge 1980-93); Senior Judge Gladys Kessler   (Member of the District Court since 1994); Chief Judge Royce C. Lamberth (Member of the U.S. District Court since 1987); Nancy Mayer-Whittington (Clerk of the District Court 1991-2009); Michele A. Roberts (Partner, Skadden, Arps, Slate, Meagher & Flom and advocate before the District Court); Hon. Patricia M. Wald (D.C. Circuit Judge 1979-99, Chief Judge 1986-91); and Helgi C. Walker (Partner, Wiley Rein and advocate before the Court of Appeals for the D.C. Circuit).

New Release: Griffin, "Long Wars and the Constitution"

As a result of my earlier post on teaching "Law and the 'War on Terror,'" I learned about Long Wars and the Constitution (Harvard University Press), a new book by Stephen M. Griffin (Tulane Law School). Here's a description from the Press:

In a wide-ranging constitutional history of presidential war decisions from 1945 to the present, Stephen M. Griffin rethinks the long-running debate over the “imperial presidency” and concludes that the eighteenth-century Constitution is inadequate to the challenges of a post-9/11 world.

The Constitution requires the consent of Congress before the United States can go to war. Truman’s decision to fight in Korea without gaining that consent was unconstitutional, says Griffin, but the acquiescence of Congress and the American people created a precedent for presidents to claim autonomy in this arena ever since. The unthinking extension of presidential leadership in foreign affairs to a point where presidents unilaterally decide when to go to war, Griffin argues, has destabilized our constitutional order and deranged our foreign policy. Long Wars and the Constitution demonstrates the unexpected connections between presidential war power and the constitutional crises that have plagued American politics.

Contemporary presidents are caught in a dilemma. On the one hand are the responsibilities handed over to them by a dangerous world, and on the other is an incapacity for sound decisionmaking in the absence of interbranch deliberation. President Obama’s continuation of many Bush administration policies in the long war against terrorism is only the latest in a chain of difficulties resulting from the imbalances introduced by the post-1945 constitutional order. Griffin argues for beginning a cycle of accountability in which Congress would play a meaningful role in decisions for war, while recognizing the realities of twenty-first century diplomacy.

The TOC:

Introduction
1. War Powers and Constitutional Change
2. Truman and the Post-1945 Constitutional Order
3. War and the National Security State
4. Vietnam and Watergate: The Post-1945 Constitutional Order in Crisis
5. The Constitutional Order in the Post-Vietnam Era
6. The 9/11 Wars and the Presidency
7. A New Constitutional Order?
Appendix: Executive Branch War Powers Opinions since 1950

And one of several impressive blurbs:

“Stephen Griffin weaves legal, historical, and political analysis together to cast the constitutional order from 1945 to the present in a new and deeply informative light. His discussion of why Presidents have come to dominate war-making, and how that produces recurrent constitutional crises, is a major contribution to understanding how the Constitution works today.”—Mark Tushnet, author of Why the Constitution Matters

 For a fuller description of the book, in Griffin's own words, check out this recent Balkinization post.

Conservatives and the Law, When Congress Works, and More on "The Way of the Knife": This Week in the Book Pages

This week in the New York Times, Jeffrey Rosen reviews The Federalist Society: How Conservatives took the Law Back from Liberals (Vanderbilt) by Michael Avery and Daniel McLaughlin.  Rosen writes that "the Federalist Society model has been so successful that other organizations have adopted it — societies named after Benjamin Rush, Alexander Hamilton and Adam Smith have been started to promote conservative and free market ideas in medical education, foreign policy and business school."  The Federalist Society explains how it achieved that feat by "persuading the competing factions of the modern conservative movement to set aside their ideological differences"  and "converge around...'originalism'" 

The Washington Post (here) and the Wall Street Journal (here) have reviews of Robert G. Kaiser's Act of Congress: How America's Essential Institution Works, and How it Doesn't (Knopf).  According to Jesse Eisinger in the Washington Post, Kaiser's account of the passage of the Dodd-Frank financial reform law "reminds you of those fairy tales that end with the wedding and don’t follow up to see how the prince and princess’s married life turns out."

In the LA Times (here) and in the New York Times (here) you'll find reviews of Mark Mazzetti's The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth (Penguin).  Here's the intro to Fred Kaplan's review in the NY Times:

It’s hard to remember, but for the last quarter of the 20th century, the C.I.A. took no part in assassinating bad guys. How the agency transformed itself into “a killing machine, an organization consumed with manhunting,” is the subject of Mark Mazzetti’s fascinating, trenchant, sometimes tragicomic account, “The Way of the Knife.”

The New York Times also has a review of two books on World War I: Christopher Clark's Sleepwalkers: How Europe Went to War in 1914 (Harper) and Sean McMeekin's July 1914: Countdown to War (Basic). 

And the Wall Street Journal has a review on two books about Henry Ford: Richard Snow's I Invented the Modern Age: The Rise of Henry Ford (Scribner), and Vincent Curcio's Henry Ford (Oxford).

From Maine to Maitland via America

[Here’s the latest post from David Rabban on Law’s History.]

In my last post about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I discussed the importance of Henry Adams as the first major professional legal historian in the United States.  Underlining the "transatlantic" theme of my book, this post emphasizes that Adams, followed by a small group of other American legal scholars who wrote about the history of English law during the last three decades of the nineteenth century, constituted a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland.

During his short career teaching history at Harvard from 1870 to 1877, Adams relied on German scholarship on the history of early Germanic law and on primary sources of Anglo-Saxon law to assert the Germanic origins of the English common law.  He drew on his findings to challenge many of the generalizations about stages of legal evolution that Maine derived from the history of Roman law in his hugely influential book, Ancient Law, published in 1861.  Maine claimed that the primitive family was patriarchal and probably preceded the state.  He concluded that the transformation from primitive to progressive societies has uniformly "been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place.  The Individual is steadily substituted for the Family, as the unit of which civil laws take account."  In his most famous expression of this transformation, Maine wrote that "the movement of the progressive societies has hitherto been a movement from Status to Contract."

Adams and his students rejected these claims.  They emphasized the individualism of early Germanic societies, including Anglo-Saxon England.  They asserted that in these societies the state was already supreme over the family and consisted of individuals democratically associated as equals.  Unlike the patriarchal Roman family, they added, in the Germanic family the wife and children had rights against the father, and property was held by individuals rather than by the family as an entity.  More dramatically, Adams maintained that Germanic law not only differed fundamentally from Roman law, but preceded it.  Whereas Maine generalized from Roman law to all "progressive" legal systems, Adams called Roman law a "perversion" of earlier Indo-European law.

For a variety of reasons, neither Adams nor his students pursued careers in legal history after the publication of their Essays in Anglo-Saxon Law in 1876.   But other Americans did, most prominently Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer, who all lived in the Boston area and knew each other well.  In publications from the 1870s through the end of the nineteenth century, these four scholars often portrayed themselves as extending the original research Adams and his students had begun on the history of English law.  They agreed with Adams and his students that the English common law derived mainly from Germanic sources, but they viewed those sources as primarily Norman rather than Anglo-Saxon.  They, therefore, directed their research into the history of English law after the Norman Conquest, debating among themselves and with leading German scholars, particularly Heinrich Brunner, about the extent to which Norman antecedents, especially of the modern jury, developed independently in England.

Bigelow and Thayer focused on the history of particular subjects, procedure for Bigelow and evidence for Thayer, whereas Holmes and Ames wrote about numerous issues in the history of the common law.  They shared the view, elaborated most explicitly in an article by Thayer entitled "The Teaching of English Law at Universities," that historical research into the entire development of current law is a prerequisite to understanding and, ultimately, to restating it.  They referred to Maine less frequently than had Adams and his students, but they often recognized his influence in turning their attention to the historical study of law.  English legal scholars, in turn, widely noticed and praised the work of these Americans, often observing that they had surpassed the English themselves in the study of English legal history, "however mortifying to our national vanity," as an English reviewer commented while praising Bigelow's major book, History of Procedure in England from the Norman Conquest, 1066-1204 (1880).

Maitland agreed with the English praise for the American scholars of English legal history.  S.F.C. Milsom, a respectful late twentieth-century critic of Maitland, has asserted that Maitland essentially created the field of legal history.  According to Milsom, Maitland "had nothing to stand on.  There was no legal history worthy of the name."  More recently, J.H. Baker reiterated that Maitland "inaugurated the scholarly study of English legal history."  Maitland himself had a different view.  In the preface to his great book, The History of English Law Before the Time of Edward I, published in 1895, Maitland listed Bigelow, Holmes, Ames, and Thayer among the eight scholars whose previous work he most admired and did not intend to duplicate by what he called "vain repetition."  The frequent citation of these Americans throughout the book's two volumes made clear that this prefatory praise was substantive and not merely polite.  Maitland corresponded extensively with Ames, Thayer, and especially Bigelow, who visited Maitland several times in England and became an extremely close personal friend.  By contrast, Maitland frequently criticized Maine, often in terms that echoed Adams and his students.  In addition to relying on the previous work of the Americans he cited, Maitland shared many of their historiographical views.  Because so many subsequent scholars have viewed Maitland as distinctively interested in legal history as a window into social and economic history, it is particularly striking that he himself, like the American scholars who preceded him, emphasized his primary focus on the internal evolution of legal doctrine, precisely the attribute his successors condemned in others.