Saturday, April 19, 2014

Weekend Roundup

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

Friday, April 18, 2014

Berring on West's Digests and Legal Thought

Richard A. Danner, Duke University School of Law, has posted Influences of the Digest Classification System: What Can We Know?, which also appears in Legal Reference Services Quarterly 33 (2014).  Here is the abstract:    
Robert C. Berring has called West Publishing Company’s American Digest System “the key aspect of the new form of legal literature” that West and other publishers developed in the last quarter of the nineteenth century. Berring argued that West’s digests provided practicing lawyers not only the means for locating precedential cases, but a “paradigm for thinking about the law itself” that influenced American lawyers until the development of online legal research systems in the 1970s. This article discusses questions raised by Berring’s scholarship, and examines the late nineteenth and early twentieth century legal environment in which the West digests were created and became essential research tools for American lawyers.

The Romance of Flight and Patent Litigation

We don’t review books here at Legal History Blog, but we also don’t complain when publishers send us review copies.  This week we received Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies, by Lawrence Goldstone, an epic account of patent litigation enlivened by the romance of invention and flight, published by a subsidiary of Random House.  Although I only dipped into it before passing it along to our patent maven here at Georgetown Law, I’m happy to reproduce the press’s somewhat breathless copy, in case anyone out there wants to punch up their summary the next time they confront an author’s questionnaire.  Surely, there’s a happy medium between this and the usual fare for a scholarly book?  Maybe something with about a third the adjectives.
From acclaimed historian Lawrence Goldstone comes a thrilling narrative of courage, determination, and competition: the story of the intense rivalry that fueled the rise of American aviation.
The feud between this nation’s great air pioneers, the Wright brothers and Glenn Curtiss, was a collision of unyielding and profoundly American personalities. On one side, a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other, an audacious motorcycle racer whose innovative aircraft became synonymous in the public mind with death-defying stunts. For more than a decade, they battled each other in court, at air shows, and in the newspapers. The outcome of this contest of wills would shape the course of aviation history—and take a fearsome toll on the men involved.

Birdmen sets the engrossing story of the Wrights’ war with Curtiss against the thrilling backdrop of the early years of manned flight, and is rich with period detail and larger-than-life personalities: Thomas Scott Baldwin, or “Cap’t Tom” as he styled himself, who invented the parachute and almost convinced the world that balloons were the future of aviation; John Moisant, the dapper daredevil who took to the skies after three failed attempts to overthrow the government of El Salvador, then quickly emerged as a celebrity flyer; and Harriet Quimby, the statuesque silent-film beauty who became the first woman to fly across the English Channel. And then there is Lincoln Beachey, perhaps the greatest aviator who ever lived, who dazzled crowds with an array of trademark twists and dives—and best embodied the romance with death that fueled so many of aviation’s earliest heroes.

A dramatic story of unimaginable bravery in the air and brutal competition on the ground, Birdmen is at once a thrill ride through flight’s wild early years and a surprising look at the personal clash that fueled America’s race to the skies.
Do you think they'll let me play "Cap't Tom" in the movie?

Ecklund's "Origins of Western Law from Athens to the Code Napoleon"

Talbot Publishing has announced the publication of The Origins of Western Law from Athens to the Code Napoleon by John E. Ecklund (1916-2000).  It was edited by his wife, Constance Cryer Ecklund.

John E. Ecklund
The press describes Ecklund as "a lifelong student of legal history.”  He graduated from Yale Law School in 1941, after serving as case editor of the Yale Law Journal and graduating cum laude.  He joined the legal division of the Board of Economic Warfare, where Willard Hurst wrote minimum labor standards into procurement contracts for overseas materiel at the start of World War II.  He later served in a law firm and as general counsel and treasurer of Yale University.

According to the press,
The Origins of Western Law from Athens to the Code Napoleon charts the horizon of Western legal origins. Eternal Platonic truths versus the Sophists of individual preferences, medieval Realists against Nominalists, natural lawyers of the 17th and later centuries, Montesquieu and other Enlightenment thinkers fighting through principles and personhood-these and many more figures and ideas come alive in this comprehensive survey of the antecedents of our modern legal system.
In the preface, Ecklund explains:
This book can be described as non-technical history of legal science.  It centers on the recounting of a major and venerable debate--one which grew from the complex intricacies of social participation and philosophical argument in ancient Athens, became the stuff of legend in an elegant French code, and will continue beyond today into laws which must begin to reach into worlds still unknown to us. This theme is the great conflict between people who see law as tending to come from abstract principles that are necessarily right and people who see it as tending to come merely from the changing preferences of those in position to impose their will--preferences that are only preferences in a world in which nothing is necessarily right.
From this excerpt (and Laura Kalman's Legal Realism at Yale and Robert Gordon's chapter in History of Yale Law School), I imagine that the volumes represent Ecklund's lifelong dialogue with his law professors, as well as a lifetime's accumulation of learning about the law.

The TOC appears after the jump.

New Release: Nelson, "Pathways to the Supreme Court: From the Arena to the Monastery"

New from Palgrave Macmillan: Pathways to the Supreme Court: From the Arena to the Monastery (Dec. 2013), by Garrison Nelson (University of Vermont). From the Press:
As the arbiter of the Constitution, it is presumed that the US Supreme Court decrees "the law of the land" in a fair-minded and even-handed manner. Key decisions in the Court's history have challenged these assumptions, giving way to a greater discussion about how judges are chosen, and the ideological roots from which they rule. This book explores more than two centuries of Supreme Court justice selections, tracking the Court's change from a time when consensus choices were relatively evenly divided between political leaders from "the arena," and judges from "the monastery," to a recent era fraught with controversial presidential appointees to federal positions that have yielded ideologically-influenced administrations of law.
A few blurbs of note:
"This fascinating, methodologically-inventive book advances our understanding of key issues in American politics. By systematically probing how Supreme Court Justices are selected, by helping understand the types of Justices, and by tracking ideology and voting patterns, Pathways to the Supreme Court offers important insights both into the Court's actions and standing." --Ira Katznelson

There are four routes to the Supreme Court-collateral, diagonal, vertical, and external. That is Garrison Nelson's analytic framework in this work stretching across two centuries of Court history. The book is loaded with fascinating information about where the justices have come from, why, and so what. As always, Nelson is sure-footed and meticulous." --David Mayhew
More information is available here.

Thursday, April 17, 2014

Call for Nominations: Peter Oliver Prize in Canadian Legal History

Another announcement from our friends at the Canadian Legal History Blog:
The Osgoode Society for Canadian Legal History invites nominations for the Peter Oliver Prize in Canadian Legal History. The prize, named for Professor Peter Oliver, the Society's founding editor-in-chief, is awarded annually for published work (journal article, book chapter, book) in Canadian legal history written by a student. Students in any discipline at any stage of their careers are eligible. The Society takes a broad view of legal history, one that includes work in socio-legal history, legal culture, etc., as well as work on the history of legal institutions, legal personnel, and substantive law.

Faculty members are encouraged to nominate student work of which they are aware, and the Society will also be pleased to accept self-nominations. Those nominating their own work should send a copy of it to the Society. The deadline for nominations for the 2014 Prize, to be awarded for work published in 2013, is April 30, 2014.

Please send nominations to Professor Jim Phillips, Editor-in-Chief, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto ON M5H 2N6, or by email to j.phillips@utoronto.ca

Call for Applications: R. Roy McMurtry Fellowship in Canadian Legal History

Via the Canadian Legal History Blog, we have the following fellowship announcement:
The R. Roy McMurtry Fellowship in Canadian Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established by Chief Justice McMurtry's friends and colleagues, and endowed by private donations and the Law Foundation of Ontario.

The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University. The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history. The selection committee may take financial need into consideration.

The fellowship will be awarded in June 2014, and will have a value of $16,000. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History and consisting of Society Directors and academics. Those interested should apply by sending:
A full curriculum vitae
A statement of the research, not exceeding 1,000 words, that they would conduct as a McMurtry fellow. The statement should clearly convey the nature of the project, the research to be carried out, and the relationship, if any, between the project and previous work done by the applicant.
The names and addresses (including email addresses) of two academic referees. Please do not ask your referees to write; the Society will contact them if necessary.
For persons not currently connected with an Ontario University, an indication of how and when they intend to obtain such a connection.
Please send applications to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6, or by email to mmacfarl@lsuc.on.ca . The deadline for applications is May 15, 2014.

New Release: Crawford, "The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598"

New from Penn State University Press: The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598, by Michael J. Crawford (McNeese State University). A description from the Press:
In The Fight for Status and Privilege in Late Medieval and Early Modern Castile, 1465–1598, Michael Crawford investigates conflicts about and resistance to the status of hidalgo, conventionally understood as the lowest, most heavily populated rank in the Castilian nobility. It is generally accepted that legal privileges were based on status and class in this premodern society. Crawford presents and explains the contentious realities and limitations of such legal privileges, particularly the conventional claim of hidalgo exemption from taxation. He focuses on efforts to claim these privileges as well as opposing efforts to limit and manage them. Although historians of Spain acknowledge such conflicts, especially lawsuits associated with this status, none have focused a study on this extraordinarily widespread phenomenon. This book analyzes the inevitable contradictions inherent in negotiation for and the implementation of privilege, scrutinizing the many jurisdictions that intervened in these struggles and debates, including the crown, judiciary, city council, and financial authorities. Ultimately, this analysis imparts important insights about the nature of sixteenth-century Castilian society with wide-ranging implications about the relationship between social status and legal privileges in the early modern period as a whole.
And more, from reviewer Scott K. Taylor ():
What did it mean to be an hidalgo? This was a important status in late medieval and early modern Spain, one that all historians know was crucial—but none have really known much about it until now. Michael Crawford argues that hidalguĂ­a had little to do with the two main justifications that contemporary Spaniards gave for the privilege: that it either derived from a racial understanding of inherited nobility or was a reward for service to the king. Instead, noble status was fluid, contingent on circumstance, political networking, and the ability to carry out lengthy lawsuits successfully. Using hitherto unexploited sources, Crawford’s subtle analysis displays the rich complexity of local government in early modern Spain, pulling attention away from the so-called absolutism of the central government and showing how much more important the officials, regulations, and courts of local municipalities were in the real lives of Spaniards.
Additional information is available here.

Wednesday, April 16, 2014

Pfander and Birk on the Adverse Party Requirement

James E. Pfander and Daniel D. Birk, Northwestern University School of Law, have posted Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, which is forthcoming in the Yale Law Journal.  Here is the abstract:    
The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system.

In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments.

Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.

Thomas on the Fall of the Jury

Suja A. Thomas, University of Illinois College of Law, has posted Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States, which also appears in the William & Mary Law Review 55 (2014).  Here is the abstract:    

Jury Box, Metzenbaum Courthouse, Cleveland (Highsmith/LC)
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently—as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government—to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.

Colgan, "Reviving the Excessive Fines Clause"

Beth A. Colgan (Stanford Law School) has posted "Reviving the Excessive Fines Clause," which appears in Volume 102, no. 2 of the California Law Review (2014). Here's the abstract:
Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.
The full article is available here.

Hat tip: Legal Theory Blog

Tuesday, April 15, 2014

A Final Post on Tax Day

"The New Man on the Job" (LC)
Former Guest Blogger Ajay Mehrotra's op-ed: The Lost Promise of Progressive Taxes.

Kellogg on Holmes on the Syllogism

This one looks fascinating, especially for fans of The Metaphysical ClubFrederic R. Kellogg, George Washington University, has posted The Social Dimension of Legal Induction: The Problem of Legal Similarity and the Process of Entrenchment.  Here is the abstract:   
(Credit: Library of Congress)
After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification.

Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where Peirce addressed the improper use of the syllogism with respect to "occasions," as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched in the common law.

Krakoff, "Constitutional Concern, Membership, and Race"

Sarah Krakoff (University of Colorado Law School) has posted "Constitutional Concern, Membership, and Race," which is forthcoming in the Florida International Law Review (2014). Here's the abstract:
American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which is part of a larger project on tribes, sovereignty, and race, will discuss the history of Florida’s tribes, their road from pre-contact independent peoples to federally recognized tribes, and their contemporary membership criteria in order to shed light on the inextricably political nature of race, membership and sovereignty in the American Indian context.
The full article is available here.

Hat tip: Turtle Talk

Docket Books at the Supreme Court: A Definitive List and Access Rules

Courtesy: Office of the Curator, US Supreme Court
When U.S. Supreme Justice James McReynolds pushed his docket book across his desk to John Knox, the legal secretary felt “almost as if Moses had unexpectedly handed me the Ten Commandments.”  Knox’s awe was understandable: the book was a large, red volume, locked with a clasp, in which McReynolds, like his brethren, recorded votes, and sometimes more, during the conferences in which they considered the week's cases.  Knox recalled McReynolds saying rather sharply, ‘That book will not be preserved after this term of the Court!  Next June I shall take it downstairs myself and stand before the big furnace in this building and watch it burn up.  A book like this must be destroyed at the end of each term!”

McReynolds may well have destroyed his docket book for the 1936 Term, but, thanks to a list released yesterday by the Office of the Curator of the Supreme Court of the United States (right; click to enlarge), we now know that his docket book for 1934 survives, as do those of many other justices.

As I said in an earlier post, the existence of the docket books is hardly a secret.  Dean Robert C. Post used Pierce Butler’s, Owen Roberts’s, and Harlan Fiske Stone’s in The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, Minnesota Law Review 85 (2001): 1267-1390.  I mentioned my use of Butler’s and Roberts’s docket books in a post on Crowell v. Benson (1932).  Recently, Edward A. Purcell, Jr., drew upon Louis Brandeis’s and others’ in Understanding Curtiss-Wright, Law and History Review 31 (2013); 699 n. 99.  But until yesterday, I believe, no one outside the Curator’s office has had a complete list of the surviving docket books.

I consider myself only an accidental constitutional historian.  In Tocqueville’s Nightmare (publication date: May 21), I needed some informant to explain how American judges reconciled the administrative state and the rule of law.  No one served my purpose better than did Charles Evans Hughes.  Once I chose Hughes, a sally into "1937 and all that" was inevitable. 

Butler's docket books helped me not only with Crowell but also with Morgan v. United States (1938).  In an entry for the latter decision, Butler records Hughes's remark that although what constitutes a "full hearing" in an administrative procedure was "relative," the hearing in that case was inadequate.  Hearsay though it is, Butler's report is invaluable, because Hughes destroyed his own docket books, and the chief justice's court papers are quite thin.

Not until after my second visit to the Curator's Office to work with the Butler and Roberts docket books did I realize that others existed that might help with the Supreme Court's 1935 Term, during which Brandeis reported that Hughes was "deeply unhappy" and had lost "control over the court."  Charles E. Wyzanski, Jr., in a letter to his mother dated October 18, 1936, surviving in box 22 of his papers at the Massachusetts Historical Society, passed along gossip from Stone's clerk, Thomas Harris, that in conference Hughes had voted with Brandeis, Cardozo and Stone in Jones v. SEC, 298 U.S. 1 (1936), Great Northern Ry. Co. v. Weeks, 297 U.S. 135 (1936), and Elgin, Joliet R. v. U.S, 298 U.S. 492 (1936), but that he had changed his vote when he found he was in the minority, lest a series of 5-4 decisions undermine the Court's authority. I had a request pending with the Curator's Office to verify Harris's report in one of the surviving docket books for the term, but it was not granted before Tocqueville's Nightmare went to press.

In addition to the list of docket books, the Office of the Curator also released the following "Instructions to Researchers: Access to the Docket Book Collection":
The Office of the Curator at the Supreme Court of the United States maintains a collection of nearly 120 historic docket books used by former Justices. Due to the sensitive and fragile nature of these books, access is restricted. The Court will make these books available to researchers under the following procedures but reserves the right to decline access.

(1) Access to docket books is available to post-graduate scholars, professors, and historians as approved on a case-by-case basis.

(2) Researchers must submit a written request to the Office of the Curator providing:
a. Name.
b. Affiliated Institution.
c. Contact information, including phone number, email, and mailing address.
d. A short description of the project with timeframe.
e. A justification for why access to the docket books is required.
f. A limit of up to 20 specific case citations per request.

Please note: Requests to review an entire docket book will be denied unless there is a compelling reason that necessitates such access. In such a case, the Office of the Curator will offer a reasonable opportunity to view the book in person.

(3) Upon receipt of the above, requests will be reviewed by the Curator’s staff and submitted for approval.

(4) Upon approval, printed copies of the requested entries will provided at no cost. These copies are for research purposes only and may not be reproduced for publication.

(5) Requests will be handled in the order they are received and may take up to 6-8 weeks to review and process.

(6) Additional requests may be submitted, but each request will be handled as a new one and processed in the order it was received.

(7) The preferred citation for the docket books is: Case Name, Docket Book of Justice [name], [Term and Year], Office of the Curator, Supreme Court of the United States.

Please submit requests online here or send request to:
Office of the Curator
Attn: Docket Book Requests
Supreme Court of the United States
Washington, DC 20543
Brandeis's Docket Book, 1935 Term
The new policy is an improvement on prior practice, and I know that the staff of the Office of the Curator has worked hard to clarify and standardize what has been an opaque and ad hoc process.  Still, few scholars and teachers will be satisfied with this access, especially because we and our students have grown accustomed to using equally sensitive and fragile documents at the Library of Congress and other repositories.  For example, after my second visit to work with the Butler and Roberts docket books, I walked a block south to the Madison Building of the Library of Congress and, without any prior notice or approval, examined William O. Douglas's docket book for the 1938 Term, deposited there with the rest of his papers.  Rather than being limited to twenty entries at a time, I could turn the pages of the book at will.  This semester one of my students consulted another of Douglas's docket books for her seminar paper. Even if, under the access rules of the Curator's Office, she qualified as "a postgraduate scholar," I doubt she could have formulated a request, received clearance, and been scheduled for a visit before her paper was due.

The limits on access seem all the more incongruous when one realizes that scholars working on later periods can more easily view the Court’s deliberations, thanks to the court papers of justices deposited at the Library of Congress and other repositories.  See, for example, my former Georgetown colleague Richard Lazarus’s National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, Georgetown Law Journal 100 (2012): 1507-86.

I hope the new rules governing access to the docket books will not be the last word on the subject.  I know nothing about how they were formulated, but I imagine they could be greatly improved by a referral to a committee of interested parties, including representatives of the Curator's Office and of the Supreme Court, archivists, historians, legal scholars, political scientists, and journalists.

Update:  Jan Palmer and Saul Brenner, “Working with Supreme Court Docket Books,” Law Library Journal 81 (1989): 41-46, a thoughtful essay on the scholarly value of docket books, does not mention any of those now identified by the Curator’s Office.  The authors may have obliqued referred to them when they described the ones they discussed as the only “presently available” docket books, “as far as we know.”  And see the SSRN paper by Paul Axel-Lute, Justice Bradley's Docket Books and Law Books at Rutgers-Newark.

Monday, April 14, 2014

Carle Receives Liberty Legacy Foundation Award for "Defining the Struggle"

[We have the following press release from the Organization of American Historians about former LHB Guest Blogger Susan Carle!]

Atlanta, GA-April 12, 2014. At the 2014 OAH Annual Meeting, OAH President Alan M. Kraut and OAH President-Elect Patricia Limerick presented Susan D. Carle, American University, with the 2014 Liberty Legacy Foundation Award for the best book by a historian on the civil rights struggle from the beginnings of the nation to the present. 

In Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press), Carle has written a paradigm-shifting study of the struggle for civil rights in the United States by moving the lens to focus on organizations that flourished during the period 1880-1915, before the heyday of the NAACP and the National Urban League. This deeply-researched book recovers the history of lesser-known, forerunner organizations that, she persuasively argues, laid the intellectual and organizational groundwork for these better-known organizational giants of the civil rights movement. The forerunner organizations introduced in Carle's account include the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement. These groups engaged in myriad struggles to improve the quality of life for black Americans long before the formation of the NAACP and the Urban League. Many of the early efforts focused on the economic needs of population-a variety of activism that later organizations often have been accused of overlooking. These early organizations also engaged in legal reform efforts-activities lost to historical memory after the NAACP won its famous battle to dismantle Jim Crow. By recounting the range of activities that these forerunner organizations undertook, Carle shows that lesser-known organizations provided a foundation that directly informed which battles later civil rights leaders would take on and which arguments and legal tactics they would draw upon to win them.

Through a deft, accessibly-written reconceptualization of the organizational foundations of the civil rights movement, Susan Carle makes an invaluable contribution to the historiography of the long civil rights movement in Defining the Struggle. Carle beautifully recovers the history of the nineteenth-century visionaries who powerfully shaped struggles for racial reform decades later. Thanks to Professor Carle, we now know that leaders of the Second Reconstruction owe these visionaries a great intellectual debt.

Lain on Reconstructing Engler

Corinna Lain, University of Richmond School of Law, has posted God, Civic Virtue, and the American Way: Reconstructing Engel, which is forthcoming in the Stanford Law Review 67 (2015).  Here is the abstract:    
If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.

Spitzer on the Washington State Supreme Court in the Progressive Era

Hugh D. Spitzer, University of Washington School of Law, has posted Pivoting to Progressivism: Justice Stephen J. Chadwick, the Washington Supreme Court, and Change in Early 20th-Century Judicial Reasoning and Rhetoric, Pacific Northwest Quarterly, Vol. 104 (Summer 2013):107-21 (published in 2014).   Here is the abstract:    
Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided by focusing on a single member of the Washington Supreme Court, Stephen J. Chadwick, who sat on that court between 1908 through 1919. Chadwick was in many respects typical of his Washington Supreme Court colleagues: educated, publicly-involved and politically ambitious. But Chadwick played the leading role in conceptualizing and communicating the Washington Supreme Court’s new approach to progressive legislation. Chadwick’s legal opinions are striking for their cogent reasoning and clarity. They are also striking for their honesty about the forces that were causing him, as a judge, to look at things in a fresh way. There were three key reasons for the turnaround in his court’s philosophy: First, the judges were sophisticated, pragmatic and politically-experienced leaders whose feet were “on the ground” in their communities. Second, as educated and economically comfortable elites, their personal views changed along with those of other middle class Washingtonians — i.e., those who formed the backbone of the progressive movement. Finally, the altered philosophy about the role of the courts, i.e., the shift from the practice of ruling many regulatory and worker protection statutes unconstitutional to a more hands-off deferential approach to policy decisions by elected lawmakers, was directly influenced by Oliver Wendell Holmes, Jr. Justice Chadwick was clearly influenced by Holmes, and on the Washington court he anticipated the “legal realist” approach to legal theory and judicial decision-making that gained dominance nationally in the following decades.
When the comparison is the U.S. Supreme Court, Professor Spitzer is surely right that “[r]elatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century.”  But see Carol L. Chomsky, “Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880-1925,” Law and History Review 11 (1993): 383-440.

Lash's "Fourteenth Amendment and the Privileges and Immunities of American Citizenship"

Just out from the Cambridge University Press is The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Kurt T. Lash, University of Illinois College of Law:
This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of "the privileges and immunities of citizens of the United States," from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
Here's the TOC:

1. The Fourteenth Amendment: an introduction
2. On antebellum privileges and immunities
3. Framing the Privileges or Immunities Clause
4. The public debate
5. Post-adoption commentary on the Privileges or Immunities Clause
6. Text and theory

Here are some blurbs:
"There has been a great deal of commentary on the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, but that meaning has remained uncertain and contested. Kurt Lash's approach to the question has been to do something not previously attempted by historians or legal scholars: read all the available literature by antebellum and Reconstruction-era contemporaries on the subject. As a result he has gone far toward producing a definitive account of the Clause's history, and shown how contemporaries understood the "rights" contained in that Clause as sharply distinct from those contained in the Privileges and Immunities Clause of Article IV of the Constitution. Building on that distinction, Lash has fashioned a compelling argument as to how the original meaning of the Privileges or Immunities Clause should be understood."
G. Edward White, David and Mary Harrison Distinguished Professor and University Professor, University of Virginia School of Law

Sunday, April 13, 2014

Sunday Book Roundup

Chris Bryant's Parliament: the Biography, Vol. 1 (Doublday) is reviewed in the New Statesman. "Bryant’s volume runs from this period to the establishment of the Imperial Parliament following the union between Great Britain and Ireland in 1801. It is admirably comprehensive (the author wisely resisted the temptation to add to the glut of “short guides”) and written in the kind of lucid, elegant prose now rarely associated with our elected representatives." 

Dissent Magazine has a review of Thomas Piketty's Capital in the Twenty-First Century translated by Arthur Goldhammer (Belknap Press).

The Federal Lawyer has published its April book reviews. One can find a review of Richard Striner's Lincoln and Race (Southern Illinois University Press) and Brian  R. Dirck's Abraham Lincoln and White America (University Press of Kansas), as well as reviews for Fraternity by Diane Brady (Spiegel & Grau), Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty by John Barry (Viking), and Lobbyists at Work by Beth Leech (Apress). All reviews can be found here.

NPR has a story on All Things Considered covering a couple of books relevant to the upcoming Civil Rights Act anniversary: Seth Cagin and Phillip Dray's We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney, and the Civil Rights Campaign for Mississippi (Nation) and Frances Stonor Saunders's The Cultural Cold War: The CIA and the World of Arts and Letters (New Press).
"In 1950 the CIA created the Congress for Cultural Freedom, whose mission was to use the arts to "nudge the intelligentsia of Western Europe away from its lingering fascination with Marxism and Communism towards a view more accommodating of 'the American way.' " ... 
The Congress for Cultural Freedom also used various foundations to act as fronts in funding exhibitions, international conferences, public performances and grants for artists. The roll call of beneficiaries — unwitting, to various degrees — included Mary McCarthy, Leonard Bernstein and Arthur Schlesinger. Over the years, Saunders writes, this surreptitious support system pervaded the production of a good deal of high culture, so that "[w]hether they liked it or not, whether they knew it or not, scores of Western intellectuals were now roped to the CIA by an 'umbilical cord of gold.' "
Make sure to take a look at several reviews on H-Net. The collected volume Beyond the Border: Tensions across the Forty-Ninth Parallel in the Great Plains and Prairies (McGill-Queen's University Press) edited by Kyle Conway and Timothy Pasch is reviewed, as is Edward Garvey Miller's Misalliance: Ngo Dinh Diem, the United States, and the Fate of South Vietnam (Harvard University Press) here. H-Net also adds a review of Dave St. Aubyn Gosse's Abolition and Plantation Management in Jamaica: 1807-1838 (University of West Indies Press).

In The Wall Street Journal Bill White's America's Fiscal Constitution: Its Triumph and Collapse is reviewed.

The Washington Post reviews Matt Taibbi's The Divide: American Injustice in the Age of the Wealth Gap (Random House). Other perspectives on the book can be found here in The New York Times, here in an interview with the author on NPR, and here in the Los Angeles Times.

Lastly, The Nation has a review of What Soliders Do: Sex and the American GI in World War II France by Mary Louise Roberts (University of Chicago Press).
"Roberts draws upon extensive sources, including diaries, police reports and court-martial transcripts, to examine the presence of American forces in France from 1944 to 1946. She contends that the sexual conduct of US servicemen in war should be moved from a historical footnote to “the center of the story.” Loaded with symbolism, sexual behavior in this context plays an important role in shaping the political and diplomatic negotiations of power between countries."

Saturday, April 12, 2014

Weekend Roundup

  • The University of Pennsylvania has announced that legal historian Wendell E. Pritchett (currently the Chancellor of Rutgers University-Camden) will serve as interim dean of the Law School for academic year 2014-15. 
  • From the Canadian Legal History Blog: a reminder of all the legal history offerings included in the Berkshire Conference on Women's History, scheduled to take place this year in Toronto.
  • Something new under the sun, at least until it melts: "Tucked into a back corner of Victoria School of the Arts, a group of Grade 11 students are busy solidifying, in wax, the Court of Appeal of Alberta’s major legal decisions and history."  More
  • Among the recipients of this year’s ACLS Fellowships is Brenna W. Greer, Assistant Professor of History, Wellesley College, for "Image Rights: Black Representation Politics and Civil Rights Work in the Postwar United States."  Hat tip: AHA Today.
  • Over at Balkinization, Georgetown Law's John Mikhail launches a series of posts on the origins of the necessary and proper clause, drawing upon work for his new articleIn this post, Mikhail uses a 2010 article by Geoffrey Miller as a point of departure for a summary of research showing "that [James] Wilson and his circle of bankers, merchants, and corporate lawyers—Robert Morris, Thomas Willing, Thomas Fitzsimmons, Alexander Hamilton, and others—frequently used the phrase ‘necessary and proper’ or similar language in their articles of association and business correspondence.’”
  • And over at Library of Congress Blog, Wendi A. Maloney, a writer-editor in the United States Copyright Office, has a post on using a copyright records to correct a misattribution of a noted 20th-century song.
  • Complicit, a “docu-drama” focusing "on the story of the SS. St. Louis refugee ship, while exploring the impact of the WWII Jewish refugee crisis on the Roosevelt legacy through a mythical courtroom drama,” has its Washington premiere at the Georgetown University Law Center on Thursday, April 17th, 2014: 5:30 p.m.  The creator is Robert Krakow, a GULC alumnus.  After the screening, he and Andrew Schoenholtz, the director of Georgetown’s Human Rights Institute, will discuss the film and “the development of international refugee policy since the 1930s.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 11, 2014

The Civil War and the Supreme Court

I want to highlight two upcoming events in the 2014 Leon Silverman Lecture Series of the Supreme Court Historical Society.  First, on May 1, Lea VanderVelde, Iowa Law, will speak on “Dred Scott and the Origins of the Civil War.”  On May 8, James McPherson and G. Edward White address the topic “Justice Oliver Wendell Holmes and the Civil War: How it Shaped Him.”  Brad Snyder, Wisconsin Law, will moderate on May 8.

Klerman on the Economic Analysis of Legal History

Daniel M. Klerman, University of Southern California Law School, has posted Economic Analysis of Legal History, which is forthcoming in Methodologies of Law & Economics, ed. Tom Ulen.  Here is the abstract:    
This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century women’s rights legislation.

Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.

Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the “law merchant”).

Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.

Mehrotra et al. on LOTL on Citizenship and Taxation

Tax Day looms up again, and with it renewed interest in the history of taxation.  Just up on The Life of the Law is a podcast that includes a discussion of Notions of Citizenship and Taxation organized by LHB's recent guest blogger, Ajay Mehrotra.
One of Life of the Law’s new advisors, Ajay Mehrotra, is tax historian and associate dean at the University of Indiana’s Maurer School of Law. Professor Mehrotra invited some of his fellow scholars to talk about taxation and citizenship. You’ll hear him speaking with Duke University law professor Lawrence Zelenak; Molly Michelmore, an associate professor of history at Washington and Lee University; and Beth Pearson, a PhD candidate at the University of California Berkeley who’s studying the evolution of state tax laws.
[Update:  Even if you aren't particularly interested in taxation and its history, this is worth a listen to see how well a bunch of academics can create a public-radio-style discussion of a topic.  If Ajay Mehrotra ever decides to give up his day job, Robert Siegel had better watch out.  DRE.]

New Release: Spears, "Baptized in PCBs: Race, Pollution, and Justice in an All-American Town"

New from the University of North Carolina Press: Baptized in PCBs: Race, Pollution, and Justice in an All-American Town, by Ellen Griffith Spears (University of Alabama). The Press explains:
In the mid-1990s, residents of Anniston, Alabama, began a legal fight against the agrochemical company Monsanto over the dumping of PCBs in the city's historically African American and white working-class west side. Simultaneously, Anniston environmentalists sought to safely eliminate chemical weaponry that had been secretly stockpiled near the city during the Cold War. In this probing work, Ellen Griffith Spears offers a compelling narrative of Anniston's battles for environmental justice, exposing how systemic racial and class inequalities reinforced during the Jim Crow era played out in these intense contemporary social movements.
Spears focuses attention on key figures who shaped Anniston--from Monsanto's founders, to white and African American activists, to the ordinary Anniston residents whose lives and health were deeply affected by the town's military-industrial history and the legacy of racism. Situating the personal struggles and triumphs of Anniston residents within a larger national story of regulatory regimes and legal strategies that have affected toxic towns across America, Spears unflinchingly explores the causes and implications of environmental inequalities, showing how civil rights movement activism undergirded Anniston's campaigns for redemption and justice.
A blurb:
"This is an excellent book--well written, exhaustively researched, original, and brilliantly conceived. Anyone interested in the history of the South, business history, civil rights, and environmental justice will find this essential reading. But more than that, this is a great story--at turns inspiring, maddening, depressing, and instructive. Everyone knows about Love Canal, Times Beach, Missouri, and Three Mile Island. Hopefully, after this book is published, everyone will know about Anniston as well!"
--Gerald Markowitz
More information is available here.

Thursday, April 10, 2014

Finding the Founders: A Symposium on Women Legal Pioneers

Mary L. Clark, Professor and Associate Dean for Academic Affairs, at the American University Washington College of Law, has sent us an announcement of the symposium, Finding the Founders:  Ellen Spencer Mussey and Emma Gillett and Other Early Women Legal Pioneers," to be held Monday, April 14, 2-5 pm at the law school, 4801 Massachusetts Avenue, NW, Washington, DC.   It will examine “the roles and impacts of WCL's very own Ellen Spencer Mussey and Emma Gillett and other early women legal pioneers on legal education and the legal profession.”  Panelists include Barbara Babcock of Stanford Law School, Jill Norgren of the City University of New York; Wendy Williams of the Georgetown University Law Center, with remarks by Mary Jane Mossman of the Osgoode Hall Law School.  The symposium coincides with what Professor Clark calls an “amazing new archival exhibition” on WCL’s founders.

Brewer Gets a Guggenheim!

According to today's New York Times, among this year's recipients of John Simon Guggenheim Memorial Foundation Fellowships is Holly Brewer, Burke Chair of American History and Associate Professor at the University of Maryland, who received hers in the field of Constitutional Studies.  Among other things, Professor Brewer is co-editor of the American Society for Legal History's book series and serves on the ASLH's Board of Directors.

Recipients in United States History were David Engerman, Karl Jacoby, Robin Kelley, and Jill Lepore; in European and Latin American History, Lillian Guerra, Eric Jennings, Steven Pincus, and Helmut Smith; in Medieval and Renaissance History, Marina Rustow; and in Law, Anver Emon.

Perry, Vogel, Barnes, and More Reviewed in the Law & Politics Book Review

The Law & Politics Book Review is out with a new batch of reviews. Items of interest include:

  • Mark Rush (Washington and Lee University) reviews Michael J. Perry, HUMAN RIGHTS IN THE CONSTITUTIONAL LAW OF THE UNITED STATES (Cambridge University Press, 2013).
  • Herschel Nachlis (Department of Politics, Princeton University) reviews David Vogel, THE POLITICS OF PRECAUTION: REGULATING HEALTH, SAFETY, AND ENVIRONMENTAL RISKS IN EUROPE AND THE UNITED STATES (Princeton University Press, 2012).
  • Jeb Barnes (Department of Political Science, University of Southern California) reviews Andrea Boggio, COMPENSATING ASBESTOS VICTIMS: LAW AND THE DARK SIDE OF INDUSTRIALIZATION (Ashgate, 2013).
  • Samuel B. Hoff (Department of History, Political Science, and Philosophy, Delaware State University) reviews Douglas S. Massey, et al., CLIMBING MOUNT LAUREL: THE STRUGGLE FOR AFFORDABLE HOUSING AND SOCIAL MOBILITY IN AN AMERICAN SUBURB (Princeton University Press, 2013).
  • Mariah Zeisberg (University of Michigan) reviews Graham Dodds, TAKE UP YOUR PEN: UNILATERAL PRESIDENTIAL DIRECTIVES IN AMERICAN POLITICS (University of Pennsylvania Press, 2013).

New Release: Loyd, "Health Rights Are Civil Rights"

New from the University of Minnesota Press: Health Rights Are Civil Rights: Peace and Justice Activism in Los Angeles, 1963–1978, by Jena Loyd (University of Wisconsin-Milwaukee). The Press explains:
Health Rights Are Civil Rights tells the story of the important place of health in struggles for social change in Los Angeles in the 1960s and 1970s. Jenna M. Loyd describes how Black freedom, antiwar, welfare rights, and women’s movement activists formed alliances to battle oppressive health systems and structural violence, working to establish the principle that health is a right. For a time—with President Nixon, big business, and organized labor in agreement on national health insurance—even universal health care seemed a real possibility.
Health Rights Are Civil Rights documents what many Los Angeles activists recognized: that militarization was in part responsible for the inequalities in American cities. This challenging new reading of suburban white flight explores how racial conflicts transpired across a Southland landscape shaped by defense spending. While the war in Vietnam constrained social spending, the New Right gained strength by seizing on the racialized and gendered politics of urban crisis to resist urban reinvestment and social programs.

Recapturing a little-known current of the era’s activism, Loyd uses an intersectional approach to show why this diverse group of activists believed that democratic health care and ending war were essential to create cities of freedom, peace, and social justice—a vision that goes unanswered still today.
Laura Pulido says:
Health Rights are Civil Rights suggests an entirely new geography of Los Angeles based on both activism and geopolitics. Jenna M. Loyd makes pathbreaking connections between health, war-making, race, and the environment that offer us a new way of viewing midcentury Los Angeles. An essential text for all scholars of Los Angeles, health, race, and activism. 
More information is available here.

Wednesday, April 9, 2014

Davies on the Retiring Justice Nelson

Samuel Nelson (LC)
Ross E. Davies, George Mason University School of Law, has posted Pioneer of Retirement: Justice Samuel Nelson, which also appears in 17 Green Bag 2d 209-233.  Here is the abstract:
In November 1872, Justice Samuel Nelson retired from the U.S. Supreme Court. The formal farewells were of the good-spirited kind that prominent public figures have almost always received: heavy on recitations of his virtues, light on mentions of flaws that were really, of course, merely misunderstood manifestations of his greatness. There were, however, two unusual features of the Nelson celebrations. This article sketches those oddities and makes a couple of suggestions about their significance then and now.

Legal History at OAH 2014

[Many thanks to Lael Weinberger, University of Chicago, for culling the following legal history sessions from the program of this week’s annual meeting of the Organization of American Historians.]

Crossing Professional Borders in America, 1890-2000

Friday, April 11, 2014
9:00am - 10:30am

After immigrants to America cross the physical border, they encounter a series of other borders that need to be crossed as they make their way in U.S. society. There are borders in jobs, in education, and in other aspects of American life. Those who make it into the professions will have normally made a big jump into the middle class, but even in the professions, there are borders that need to be understood, sometimes crossed, sometimes defended or attacked. The papers in this session all deal with professional borders: Susan Carle looks at the border between law/non-law from the perspective of gender and race in turn-of-the-century United States. Her lens is provided by women active in reform efforts. Christy Chapin looks at a later period in American history and studies organized physicians during the post-World War II years when borders were changing as individual practice gave way increasingly to practice within relatively large organizations. In many cases, professional boundaries were eroded; in other cases, the physicians themselves sought to experiment with new types of practices and new professional borders. Finally, Jeffrey Sturchio and Louis Galambos sweep over the twentieth century and explore the tensions that existed between businesses and the professions as they defined and re-defined their respective borders. Businesses needed professional expertise, but they initially often found it difficult to recruit and keep the professionals they needed. When corporations began to promote women and minorities to executive positions, professional standing became an important stepping stone for advancement.

Chair: Louis Galambos, Johns Hopkins University
Commentators: Christopher Tomlins, University of California- Irvine, and Melissa Fisher, New York University

"Doctors Without Borders: American Medical Practice in Diverse Organization Settings"
By: Christy Chapin, University of Maryland, Baltimore County

"Looking at the Law/Non-Law Divide Through The Lenses of Gender and Race in Turn-Of-The-Twentieth-Century American Women's Reform Activism"
By: Susan D. Carle of American University

American Business and the Challenge of Professionalism"
By: Jeffrey Sturchio, Rabin Martin

The Scope and Stakes of Reproductive Politics: Contesting Sexual Freedom, Abortion and Unwed Parenthood Since 1965
Friday, April 11, 2014
9:00am - 10:30am
Endorsed by: OAH Committee on the Status of Women in the Historical Profession

Since 1965, social movements have contested the meaning of legitimate sexual and reproductive decision-making. The history of these debates reveals a surprising and complex story about attitudes toward sex, choice, and licit reproduction the aftermath of the sexual revolution. This panel recovers this lost history by examining three settings in which activists, lawmakers, and judges have struggled to define the scope and stakes of reproductive and sexual freedom. Mary Ziegler’s paper uncovers a rich and unexpected dialogue about unwed motherhood among anti-abortion activists in the 1960s and 1970s. Serena Mayeri’s paper uses contemporaneous constitutional challenges to illegitimacy penalties to explore attitudes toward extramarital sexuality among various historical actors, including feminists, unmarried parents, and judges. Sara Dubow canvasses a long sweep of recent American history to trace the evolution of debates over conscience clauses that enabled individual physicians and hospitals with moral and religious objections to refuse to provide abortions and sterilizations.

Apart from their similar subject matter, several themes unite the three papers. The ideological diversity of activism on both sides of debates over reproductive and sexual freedom complicates narratives of longstanding polarization. To the extent that social movements reached internal consensus and defined themselves in contraposition to their adversaries, the process was often partial, messy, and gradual, rather than instantaneous and inevitable. Nor did economic and cultural ideologies automatically align in the ways that are familiar to twenty-first century political observers. For some activists, robust visions of gender and economic equality coexisted with profound misgivings about abortion. Others believed strongly in access to reproductive health services but also accepted arguments for conscience-based exemptions. Still others idealized marriage but opposed efforts to penalize unwed parenthood.

Each of these debates also illuminates the material stakes of “culture war” conflict, and the political costs and benefits of exposing the price of ideals such as liberty and equality. Disagreements among anti-abortion activists over the proper approach to unwed motherhood foregrounded the social and economic conditions that made reproductive “choice” a misnomer for poor unmarried women. Spotlighting discrimination against unmarried mothers in employment and elsewhere exposed the contingency of links between non-marriage and poverty, as well as the racial subtext of campaigns against “illegitimacy.” Anti-abortion lawmakers depicted conscience clauses as integral to religious liberty while masking their devastating impact on women’s access to abortion. The panel exposes the contradictory and ideologically charged history of the values, interests, and strategies that continue to shape debates about sexuality and reproduction.

Chair: Linda Gordon, New York University
Commentator: Regina G. Kunzel, Princeton University

"“A Constitutional right rendered utterly meaningless”: Federal Conscience Clause Laws and the Politics of Abortion, 1973-2013"By: Sara Dubow of Williams College

"Reproducing Inequality: Legal Challenges to Illegitimacy Penalties, 1968-1979"
By: Serena Mayeri of the University of Pennsylvania Law School

"Negotiating the Double Standard: Sex in the Abortion Debate, 1965 - 1980"
By: Mary Ziegler, Saint Louis University School of Law

Boundless War: The Legal, Military, and Psychological Effects of the Vietnam War across Time and Space
Endorsed by: SHAFR
Friday, April 11, 2014
1:50pm - 3:20pm

War is often seen as a bounded institution—fought by a specified class of people in a particular place over a defined period of time. But as the historian Mary Dudziak has recently shown in her discussion of the temporal boundaries of armed conflict, War•Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012), this notion of war as bounded is increasingly difficult to sustain. Not only is the distinction between wartime and peacetime less clear than the American public often imagines but war also has consequences for politics, economics, and individual lives well beyond the battlefield. Our panel seeks to build on this insight by exploring some of the broader effects of the Vietnam War across time and space.

At the heart of this panel is one particular conflict—the Vietnam War—but in keeping with the panel’s theme, we seek to show a continuum of conflict in the post-1945 era and to place the Vietnam War in a broader spatial framework. The panel begins with an examination of how U.S. government lawyers developed ideas about the legality of certain types of conflict in Latin America in the 1960s which were then transferred to the Vietnam theater and beyond. This paper details how the efforts of American lawyers to reconsider the status of borders and the commitment not to violate them in international law contributed to the development of a mode of warfare less constrained by geographical boundaries. The panel continues with a discussion of how publicity surrounding war crimes committed by U.S. servicemen in Vietnam, particularly the My Lai Massacre, had a significant subsequent impact on both military policy with regard to war crimes and the American people’s views on the conduct of war. It suggests that the nature of fighting in Vietnam was influenced by a transnational context in which ideas of war circulated between the front line in Vietnam and the home front in the United States. The panel ends with a consideration of how return trips after the war by U.S. veterans to Vietnam for the purposes of promoting healing among civilians have played into similar efforts by veterans of America’s most recent wars. This paper illuminates the influence of war on veterans themselves even after they have left the war zone and the importance of crossing borders to the healing process in the lives of both Vietnam and Iraq veterans. Each of these papers demonstrates how individuals and institutions continued to respond to the war legally, in policy, and personally in new geographic spaces well beyond the height of hostilities.
Together, these papers show the unbounded nature of war. They demonstrate the sprawling effects and influences of the Vietnam War both temporally and geographically. Finally, this scholarship speaks to the early and potential effects of more recent undeclared wars in Iraq and Afghanistan.

Chair and Commentator: Edwin Martini, Western Michigan University

“American War Crimes: The My Lai Massacre in U.S. Military Policy”
by: Christine Lamberson, Angelo State University

“'More and More Americans are Taking Responsibility for What Was Done in Our Name': Vietnam’s Legacy and Transnational Healing After the Iraq War"
By: David Kieran of The George Washington University

"Wars without Borders: The American Challenge to International Law, 1961 - 1965"
by: Brian Cuddy, Cornell University

Legal Histories of Human Rights 
Saturday, April 12, 2014
10:50am - 12:20pm
Endorsed by: SHAFR
Lawyers and political scientists had been working on the subject of “human rights” before professional historians came on the scene. But about 15 years ago, historians discovered human rights. Since then, the historiography of human rights has exploded. With the growth of human rights studies from within the disciplinary field of history, most of the work has moved away from looking at the narrow issues of treaties and tribunals that lawyers and political scientists focused on.

Yet this move away from law has left major issues unexplained. Most fundamentally, we still need an explanation for how and why the field of human rights came to be suffused with law and legality. Historians are now only beginning to look at the legal history of human rights and it promises to be an exciting field.

The papers presented on this panel will explore legal histories of modern human rights across a wide chronological span and from a variety of angles. How did human rights make their way into international law? Why have activists and national actors alike looked to international human rights law to advance their agendas? What role has the legal profession played in shaping the discourse of human rights? How have attorneys reacted to international human rights treaties, statements, and declarations?

By asking—and proposing answers to—these questions, this panel will be joining the ongoing historical discussion of how modern human rights discourse has developed. It will historicize the issue of how the field of human rights has become so widely infused with law and legality. And it will explore the diverse and complex relationships that can exist between national laws and international legal norms.

Chair: Heide Fehrenbach, Northern Illinois University
Commentator: Mark Bradley, University of Chicago
"Manley Hudson and the Quest for International Order: From Peace through Law to Human Rights"
by: Lael Weinberger, University of Chicago

"'Whittling Away' at Domestic Jurisdiction: The NAACP and the Afro-Asian Bloc’s Anti-Colonial Strategy in the United Nations"
By: Carol Anderson of Emory University

"America, the Exceptional: Morris Abram, Cold War Liberalism, and the Politics of Drafting the U.N. Race Convention"
By: H. Timothy Lovelace of Indiana University Mauer School of Law

"To Champion the Cause Through Law: Transnational Legal Efforts in the Fight Against the Apartheid"
by: Robert Smith, University of Wisconsin-Milwaukee, Milwaukee

               

Bomhoff on Balancing Constitutional Rights in Postwar US and Germany

Published recently in Cambridge Studies in Constitutional Law is Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse, by Jacco Bomhoff, Associate Professor of Law at the London School of Economics and Political Science.  Saith CUP:
The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.
Professor Bomhoff writes to us:
Of most interest for legal historians (I hope) are the book's two central chapters which discuss the simultaneous advent of a discourse of 'balancing' rights, values and interest in US Supreme Court and German Constitutional Court jurisprudence in the late 1950s and early 1960s. While this early case law provoked well-known - infamous - debates on both sides of the Atlantic, these clashes had not yet been the subject of any extended comparison. From this comparative perspective, and in part because of their almost cliche status, they provide a perhaps surprisingly useful lens for looking at the character of US and Western European legalism and constitutionalism more generally.
The book also looks at the broader legal-intellectual context of the time, notably comparing efforts to develop 'new' standards for adequate judicial reasoning (the neutral principles and process jurisprudence currents in the US, and the 'topical jurisprudence' and dialectical reasoning movements in Germany). In this way, the book aims to uncover thicker, contextualized, understandings of key jurisprudential concepts such as objectivity, neutrality, and most importantly: legal formality and its opposites.