Tuesday, April 21, 2015

Spitzer on Dillon's Rule and Home Rule in Washington State

Hugh D. Spitzer, University of Washington School of Law, has posted 'Home Rule' vs. 'Dillon's Rule' for Washington Cities, which is forthcoming in the Seattle University Law Review 38 (2015): 809-60:    
This Article focuses on the tension between the late-nineteenth-century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” doctrine that local governments have only those powers clearly granted to them by the legislature, to the “home rule” view that charter and optional code cities have broad unspecified powers. Despite actions by lawmakers to expand city home rule powers, recent court decisions have puzzled practitioners by alternately voicing these two approaches in a seemingly random fashion.

This Article describes the origin of Dillon’s Rule, places it in a national context, and explains its longevity in Washington despite the legislature’s clear intent to eliminate the rule’s application to most cities. The Article suggests that the zombie-like reappearance of Dillon’s Rule is explained by (1) the vitality of the rule as a doctrine applicable to special purpose districts; (2) appellate judges’ insistence on picking and choosing from doctrines (including ostensibly dead doctrines) to support a case’s outcome; and (3) a combination of doctrinal forgetfulness and carelessness. The Article repeats a recommendation made five decades ago by former University of Washington law professor Philip Trautman that the Supreme Court of Washington should adopt a more consistent approach, one that follows the legislature’s clear intent to make Dillon’s Rule inapplicable to most cities.

Monday, April 20, 2015

Lempert and Stern on Juries

As it happens, two interesting papers on the jury went up on SSRN about the same time.  The first is by Richard Lempert, University of Michigan Law School, The American Jury System: A Synthetic Overview.  It is forthcoming in the Chicago-Kent Law Review
This essay, originally written for a Swiss volume, and revised with added material for publication in the Chicago Kent Law Review, is intended to provide in brief compass a review of much that is known about the American jury system, including the jury's historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel's seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury's status as a one shot decision maker largely independent of trial court bureaucracies than in its ability to nullify the law. Despite flaws in the jury process and room for improvement, the message that emerges from the literature is that juries take their job seriously and for the most part perform well. There is little reason to believe that replacing jury trials with bench trials or mixed tribunals would improve the quality of American justice, and some reason to think it might harm it.
The second SSRN paper is Simon Stern, University of Toronto Faculty of Law, has posted Forensic Oratory and the Jury Trial in Nineteenth-Century America:
The institution of the jury underwent radical change in the United States during the nineteenth century. At the beginning of the century, the jury trial was a form of popular amusement, rivaling the theater and often likened to it.The jury’s ability to find law, as well as facts, was widely if inconsistently defended. The trial’s role as a source of entertainment, and the jury’s ability to nullify, were consistent with a view of forensic oratory that emphasized histrionics, declamation, and emotionally charged rhetoric as means of legal persuasion. By the end of the century, judges had gained more control of the law-finding power, and various questions of fact had been transformed into questions of law. Many of the details that would have aided the lawyers’ dramatic efforts were screened out by a host of new exclusionary rules. The overall effect was to afford less scope for lawyers' emotional excesses — and to make those performances seem disreputable and outmoded. As an institution, the trial continued to figure significantly in American culture through the first three decades of the twentieth century. Numerous factors conspired to weaken the trial’s prominence after that time. Although these changes in forensic style have not usually been considered as a part of that narrative, they may have helped to facilitate the decline of the trial, by reorienting its function away from a broadly representative one, and towards one that emphasized dispassionate analysis in the service of objectivity and technical exactitude, appealing to a rather different community, made up of professional lawyers and those laypersons who could appreciate their values.
Fwiw, in congressional testimony in 1938, Roscoe Pound attributed the "scintilla of evidence" standard to frontier Americans' lack of good alternatives to jury trials in the way of entertainment.  Thank God for Reality TV!  As for "histrionics, declamation, and emotionally charged rhetoric," here is David Gilmour Blythe's Trial Scene, which I believe dates from the 1860s, from the Memorial Art Gallery of the University of Rochester.

Davies on Sherlock Holmes Meets the Mail Classification of 1879

Ross E. Davies, George Mason University School of Law, on The Regulatory Adventure of the Two Norwood Builders: Sherlock Holmes Crosses Paths with Congress, the President, the Courts, and the Administrative State, in the Press, in 2015 Green Bag Almanac & Reader 567:
It was almost certainly some combination of law on the books and law in the works that inspired the New York World to publish its 1911 version of the Sherlock Holmes story, “The Adventure of the Norwood Builder,” in not one, but two, formats. (In its Sunday editions from April 9 to July 2, 1911, the World republished the thirteen stories from The Return of Sherlock Holmes in their original sequence, with “Norwood Builder” appearing on April 16.) The law on the books was a series of interpretations of the Mail Classification Act of 1879 by the U.S. Post Office Department (in 1901) and the U.S. Supreme Court (in 1904). The law in the works was the ongoing congressional and presidential interest in tinkering with postal service in general and second-class mail rates in particular — an interest that manifested itself in 1911 in the form of hearings conducted in New York City by a special federal Postal Commission headed by Justice Charles Evans Hughes. The results were: (a) a colorful, relatively small, booklet version of “Norwood Builder” (and similar booklets of the other stories in the series) for in-town readers of the World, and (b) black-and-white, relatively large, tabloid versions of the same stories for out-of-town subscribers to the newspaper. Unfortunately, decisions by several of America’s great libraries to discard their hard copies of the World have left us (at least for now) with the rather plain tabloid version of “Norwood Builder,” but not the colorful booklet version, to share with readers of the Green Bag Almanac & Reader.

New Release: Childs, "Slaves of the State"

New from the University of Minnesota Press: Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary, by Dennis Childs (University of California, San Diego). A description from the Press:
The Thirteenth Amendment to the United States Constitution, passed in 1865, has long been viewed as a definitive break with the nation’s past by abolishing slavery and ushering in an inexorable march toward black freedom. Slaves of the State presents a stunning counterhistory to this linear narrative of racial, social, and legal progress in America.
Dennis Childs argues that the incarceration of black people and other historically repressed groups in chain gangs, peon camps, prison plantations, and penitentiaries represents a ghostly perpetuation of chattel slavery. He exposes how the Thirteenth Amendment’s exception clause—allowing for enslavement as “punishment for a crime”—has inaugurated forms of racial capitalist misogynist incarceration that serve as haunting returns of conditions Africans endured in the barracoons and slave ship holds of the Middle Passage, on plantations, and in chattel slavery.
Childs seeks out the historically muted voices of those entombed within terrorizing spaces such as the chain gang rolling cage and the modern solitary confinement cell, engaging the writings of Toni Morrison and Chester Himes as well as a broad range of archival materials, including landmark court cases, prison songs, and testimonies, reaching back to the birth of modern slave plantations such as Louisiana’s “Angola” penitentiary.
More information is available here.

Sunday, April 19, 2015

Sunday Book Roundup

In The Nation, two books--The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor by William Easterly (Basic) and Thinking Small: The United States and the Lure of Community Development by Daniel Immerwahr (Harvard University Press)--are reviewed in "Development and Humanitarian Politics."

n+1 has a review by Daniel Immerwahr, "What Did You Do in the War, Doctor?" that examines Michal Shapira's The War Inside: Psychoanalysis, Total War, and the Making of the Democratic Self in Postwar Britain (Cambridge) and Peter Mandler's Return from the Natives: How Margaret Mean Won the Second World War and Lost the Cold War (Yale University Press).

The New Books series has a few interesting interviews this week.


On H-Net there is a review of Contemporary Challenges to the Laws of War: Essays in Honor of Professor Peter Rowe edited by Caroline Harvey, James Summers, and Nigel D. White (Cambridge University Press).
"Contemporary Challenges to the Laws of War addresses the challenges modern warfare poses to the existing laws that govern the actions of nation-states and nonstate actors in armed conflict. This book is a compilation of essays that are united by an inquisitive theme—“whether the existing laws of war are fit for the purpose” (pp. xix-xxx). The introduction of the book discusses the purpose in historical terms relating to Hague Law and Geneva Law. From this perspective, the purpose of the laws of war is to regulate hostilities. Specifically, the law pursues this purpose by providing protections for certain individuals on the battlefield (Geneva Law) and limiting the means and methods of warfare (Hague Law)."
Also up on H-Net is a review of William C. Van Norman's Shade-Grown Slavery: The Lives of Slaves on Coffee Plantations in Cuba (Vanderbilt University Press); a review of William A. Link's Atlanta, Cradle of the New South: Race and Remembering the Civil War's Aftermath (UNC Press); and a review of Alan L. Olmsted and Paul W. Rhodes's Arresting Contagion: Science, Policy, and Conflicts over Animal Disease Control (Harvard University Press).

There is a new extra issue of Common-Place online now, with two reviews of interest to legal historians. The first is a review of Jessica M. Lepler's The Many Panics of 1837: People, Politics, and the Creation of a Transatlantic Financial Crisis (Cambridge University Press). The second is a review of Caleb Smith's The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War (Harvard University Press).
"Though situated as an examination of that seemingly most reasonable of realms, "the law's public sphere," this book tells a complex transatlantic story of the monumental difficulty, and perhaps the ultimate undesirability, of putting any particular analytical stock in arriving at a final distinction between reason and rationalization, argument and harangue (40). Viewed most broadly, this is a study of the intersecting stories of the early national and antebellum secularization of the law and the period's complementary desecularization of protest."
There is also a new issue of The Federal Lawyer. The online review examines The Mauthausen Trial: American Military Justice in Germany by Tomaz Jardim (Harvard University Press). Other reviews from the May issue can be found here.

The Guardian reviews Steven Bates's The Poisoner: The Life and Crimes of Victorian England's Most Notorious Doctor (Duckworth).

And, if you're feeling a little tired of being a professor, perhaps you'll be inspired by, "My own personal Fight Club: How an English professor became a cage fighter," an excerpt from Professor Jonathan Gottschall's The Professor in the Cage: Why Men Fight and Why We Love to Watch (Penguin) available on Salon.

Saturday, April 18, 2015

Weekend Roundup

  • “[T]he concept of a legal ‘right to work,' harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws,” writes former LHB Guest Blogger Sophia Lee in a post on ACSblog that draws upon her book Workplace Constitution"[H]ow have right-to-work proponents managed to rally successfully behind such an anachronistic term?” 
  • Here's Penn's press release on LHB Guest Blogger Sarah Barringer Gordon's Guggenheim.
  • Ronald Collins has alerted us to some forthcoming Posneria, a biograpy of Judge Richard Posner from Oxford University Press and a new book by the judge, Divergent Paths: The Academy and the Judiciary (Harvard University Press).
  • Jo Guldi, Brown University, and Richard Armitage, Harvard University, on The History Manifesto, to the Washington History Seminar at the Woodrow Wilson Center, 5th Floor Conference Room, Monday, April 20, 2015, 4:00pm - 5:30pm.  Eric Arnesen, J.R. McNeill, and Rosemarie Zagarri will comment.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 17, 2015

"Scale": Institute for Advanced Study Fellowships at Durham University

[We have the following announcement.]

The Institute of Advanced Study is Durham University’s major interdisciplinary research institute, providing a central forum for debate and collaboration across the entire disciplinary spectrum. The Institute seeks to catalyse new thinking on major annual themes by bringing together leading international academics as well as writers, artists and practitioners.

The theme for 2016/17 is ‘Scale’, interpreted in its broadest sense – scientifically, symbolically, legally, philosophically, literarily, politically, economically, and sociologically. Applications for the 2016/17 Fellowship will open on 22 April 2015. Up to 20, three-month fellowships (October-December 2016 and January-March 2017), linked to the annual theme. Applicants may be from any academic discipline or professional background involving research, and they may come from anywhere in the world. IAS Fellowships include honorarium, travel, accommodation, subsistence and costs associated with replacement teaching or loss of salary (where appropriate).

Kousser on Voting Rights Disputes, 1957-2013

J. Morgan Kousser, California Institute of Technology, has posted Do the Facts of Voting Rights Support Chief Justice Roberts's Opinion in Shelby County? which is forthcoming in Transatlantica 1 (2015):
In June, 2013, a 5-4 majority of the U.S. Supreme Court brought to an abrupt and likely permanent end the most important provision of the most successful civil rights law in U.S. history. Initially passed in 1965, Section 5 of the Voting Rights Act required “covered jurisdictions,” at first in the Deep South and later extended to Texas, Arizona, Alaska, and certain counties and townships in other states, to “pre-clear” any changes in their election laws with the Justice Department or the District Court of the District of Columbia before putting them into effect. Laws that changed the political structure – for instance, redistricting laws, annexations, and shifts from district to “at-large” elections for local governments – were restricted, as well as provisions and practices that directly affected individuals’ rights to vote. While acknowledging the success of the law in greatly increasing the number of African-American and Latino elected officials, Chief Justice John Roberts contended in his majority opinion in Shelby County v. Holder that the problems of 2013 were much less grave than the “pervasive...flagrant...widespread...rampant” voting discrimination of 1965 and that the coverage formula was outmoded because “today’s statistics tell an entirely different story.”

Neither the Chief Justice nor any scholars or civil rights proponents or opponents have systematically examined the evidence on the entire pattern of proven voting rights violations over time and space. Was the Chief Justice correct in asserting that such violations no longer tracked the coverage scheme in Section 4 of the Act – that, as he put it, the relationship of the formula to problems of vote dilution was purely “fortuitous”? Had the number of violations diminished so much in the years leading up to the 2006 renewal of Section 5 that Congress should have ended preclearance altogether because discrimination had basically disappeared? If the number of voting rights lawsuits has diminished, why is that so?

Based on the largest database of voting rights “events” – successful lawsuits, Section 5 Justice Department objections and “more information requests,” and consent decrees or settlements out of court that led to pro-minority changes – ever compiled, this paper provides a unique overview of the history of U.S. voting rights from 1957, when the first U.S. civil rights law in 82 years passed, through 2013. It shows that the Chief Justice’s factual assertions were incorrect, that the coverage formula was still congruent with proven violations, and that to the extent that recorded violations had decreased, that was not because problems had ended, but because the Supreme Court had made it more difficult to win lawsuits.

Thursday, April 16, 2015

The English Legal Imaginary at Princeton

We have more news on The English Legal Imaginary, Part 1 (Princeton University) , Friday-Saturday, April 17-18, 2015:

Friday, April 17th

Opening remarks
Bradin Cormack and Lorna Hutson

Panel 1: Text, Learning, Interpretation
Chair: Lorna Hutson
Kathy Eden (English and Classics, Columbia): "Forensic Rhetoric and Humanist Education"
Margaret McGlynn (History, Western): "Readers, Readings, and Common Books in the Early Tudor Inns."
Barbara Shapiro (Rhetoric, Berkeley): "Law and the Evidentiary Environment"

Panel 2: Contracting Identities
Chair:  Bradin Cormack
Tim Stretton (History, St. Mary's): "Contract and Conjugality"
Luke Wilson (English, OSU): "Contracts, Promises, Obligations"

Panel 3: At Law's Margin
Chair:  Sarah Rivett
Alastair Bellany (History, Rutgers), "The Torture of John Felton, 1628"
Mary Nyquist (English, Toronto): "Slaveries and Liberties"

Panel 4: Law and Genre
Peter Goodrich (Cardozo Law): "Lucifugous Law: The Emblem Book and the Depiction of Jurisdiction"
Bradin Cormack (English, Princeton): "Case Thinking"
Sandra Macpherson (English, OSU): "Georgic and the Liability for Things"

Saturday, April 18th

Panel 5: Process and Exception
Chair: Kim Lane Scheppele
Paul Halliday (History, Virginia): "Birthrights and the Due Course of Law."
Bernadette Meyler (Law, Stanford): "Sovereignty, Pardoning, and Early Modern Drama"
Nigel Smith (English, Princeton): "Legal Agency as Literature in the English Revolution: The Canon Inverted"

Panel 6: Extended Sovereignties
Chair: Eleanor Hubbard
Henry Turner (English, Rutgers): "Corporations: Between Law and Literature"
Chris Warren (English, CMU): "The Wars of the British: Gentili, Henry V, and the History of International Law"

Panel 7: Jurisdiction: Temporal and Spiritual
Chair: Nigel Smith
Ethan Shagan (History, Berkeley): "Ecclesiastical Law and Ecclesiastical Polity"
Joshua Phillips (English, Memphis): "Immunities and Monasticism: From Bale to Shakespeare"
Jason Rosenblatt (English, Georgetown): "John Selden on Excommunication: Making Law and Recording it."

Panel 8: Jurisdiction: Constitutional Others
Chair:  Linda Colley
Lorna Hutson (English, St. Andrews): "'Impounded as a Stray': The English Legal Imaginary of Scotland in Henry V"
Daniel Hulsebosch (Law, NYU): "Floors, Mirrors, and Ceilings in the Legal Architecture of Empire"


Concluding Remarks
Moderators: Bradin Cormack and Lorna Hutson

H/t: Michelle McKinley

Friedman on "The Big Trial"

New from the University Press of Kansas is The Big Trial: Law as Public Spectacle, by Lawrence M. Friedman, the Marion Rice Kirkwood Professor at Stanford Law School:
The trial of O. J. Simpson was a sensation, avidly followed by millions of people, but it was also, in a sense, nothing new. One hundred years earlier the Lizzie Borden trial had held the nation in thrall. The names (and the crimes) may change, but the appeal is enduring—and why this is, how it works, and what it means are what Lawrence Friedman investigates in The Big Trial.

What is it about these cases that captures the public imagination? Are the headline trials of our period different from those of a century or two ago? And what do we learn from them, about the nature of our society, past and present? To get a clearer picture, Friedman first identifies what certain headline trials have in common, then considers particular cases within each grouping. The political trial, for instance, embraces treason and spying, dissenters and radicals, and, to varying degrees, corruption and fraud. Celebrity trials involve the famous—whether victims, as in the case of Charles Manson, or defendants as disparate as Fatty Arbuckle and William Kennedy Smith—but certain high-profile cases, such as those Friedman categorizes as tabloid trials, can also create celebrities. The fascination of whodunit trials can be found in the mystery surrounding the case: Are we sure about O. J. Simpson? What about Claus von Bulow—tried, in another sensational case, for sending his wife into a coma.? An especially interesting type of case Friedman groups under the rubric worm in the bud. These are cases, such as that of Lizzie Borden, that seem to put society itself on trial; they raise fundamental social questions and often suggest hidden and secret pathologies. And finally, a small but important group of cases proceed from moral panic, the Salem witchcraft trials being the classic instance, though Friedman also considers recent examples.

Though they might differ in significant ways, these types of trials also have important similarities. Most notably, they invariably raise questions about identity (Who is this defendant? A villain? An innocent unfairly accused?). And in this respect, The Big Trial shows us, the headline trial reflects a critical aspect of modern society. Reaching across the nineteenth and twentieth centuries to the latest outrage, from congressional hearings to lynching and vigilante justice to public punishment, from Dr. Sam Sheppard (the fugitive) to Jeffrey Dahmer (the cannibal), The Rosenbergs to Timothy McVeigh, the book presents a complex picture of headline trials as displays of power—moments of didactic theater" that demonstrate in one way or another whether a society is fair, whom it protects, and whose interest it serves.

Wednesday, April 15, 2015

Pallitto's "In the Shadow of the Great Charter"

Robert M. Pallitto, Seton Hall University, has published In the Shadow of the Great Charter: Common Law Constitutionalism and the Magna Carta (University Press of Kansas).
In the Supreme Court's 2008 ruling on whether Guantanamo detainees could be barred from U.S. courts, Justice Anthony Kennedy cited the U.S. Constitution, of course. But he also linked the decision to the Magna Carta. Why would a twenty-first century judge,even under the extraordinary circumstances of the "war on terror," invoke a document signed by an English king in the thirteenth century? To address this question, as Robert Pallitto does in this clarifying book, is to probe the history of modern civil liberties, and to explore the process by which judges decide individual rights cases. Pallitto's work, with its insight into competing ideas about interpreting the Constitution—"originalism" versus "constitutional common law"—is of critical importance to our understanding of the nation's founding document.

Of far more than symbolic significance, the Magna Carta exerts immediate practical influence on legal outcomes, as Justice Kennedy's opinion demonstrates. To explain this, Pallitto first goes into the Charter's origins, history, and nature, especially its explicit use of "the law of the land" to protect subjects' rights and liberty. The Magna Carta's legacy in the United States reaches back to the nation's founding, with even the colonial charters reflecting its influence. But it is in the Supreme Court's reference to the Charter, spanning the institution's full two-hundred years, that Pallitto finds the greatest impact—most frequently inthe principles of due process (in criminal proceedings) and habeas corpus, but in many other provisions as well. And the weight of this impact registers most deeply and clearly in the development of the constitutional common law—the theory that courts should and do interpret and expand on constitutional texts by reference to tradition and precedent rather than to the drafter's original intent.

Charting the Magna Carta's influence on the contemporary jurisprudence of individual rights—from the legal thought of the American colonies through exemplary cases over the history of the Supreme Court—this book offers resounding evidence of the evolution and value of abiding principles through which American liberty endures.

The Constitution and the Administrative State: Past, Present, and Future

I’m very pleased to be a participant later this week in The Constitution and the Administrative State: Past, Present, and Future, a conference, open to the public, sponsored by the Stanford Constitutional Law Center, on April 17-18.

Panels include "Gridlock, Partisanship, and the Administrative State"; "Executive, Congressional, and Judicial Oversight"; "Constitutional History and the Administrative State"; "Nondelegation, Complexity, and the Administrative State"; and "Waivers, Licenses, and Other Case-by-Case Decisions: Where Is the Rule of Law?"  Christopher DeMuth, Hudson Institute, will deliver a keynote.  As you might have guessed, I’m on the history panel, with Aditya Bamzai, Michele Dauber, and Peter Strauss.  Robert W. Gordon will moderate.

Tuesday, April 14, 2015

HLS's Digitized Manor Rolls, Writs and Statutes

[Via HLS's Karen Beck and H-Law, we have the following Announcement of Digitized English Manor Rolls, Writs, Statutes.

The Harvard Law School Library’s Historical & Special Collections is pleased to announce the release of several early manuscript digital collections of likely interest to students and scholars of late medieval and early modern Anglo-American law and history.

English Manor Rolls.  We recently began a multi-year project to conserve and digitize our collection of English manor rolls. The collection consists of 170 court rolls, account rolls, and other documents from various manors, ranging in date from 1282 to 1770. For a complete description of the collection, see the finding aid, which will change and grow as digital images of the rolls become available. Links to the images, along with improved descriptions of the rolls, will be added as the project progresses. We welcome your suggestions for improved descriptions; email specialc@law.harvard.edu with your feedback.  [More information.]

Registers of Writs
.  With funding from the Ames Foundation and the Harvard Law School Library, we have digitized our entire manuscript collection of 19 registers of English legal writs, dating from about 1275 to 1476. A link to the online collection is available here. Cataloging information for each writ may be found by searching Harvard’s library catalog, HOLLIS, and browsing by “other call number”: HLS MS XXX.

Magna Carta and English Statutory Compilations.  To celebrate Magna Carta’s 800th birthday, the Ames Foundation and the Harvard Law School Library have digitized our entire manuscript collection of English statutory compilations, dating from about 1300 to 1500. A link to the collection is available here. Search HOLLIS as described above for cataloging information.

Enhancing the Online Descriptions.  The Ames Foundation has begun a project to fully describe the contents of these registers and statutes. Visit [here] to read more about the project, to see an example of a fully-described manuscript (HLS MS 184), and to find out how you can help.

Dubber on "The Schizophrenic Jury and other Palladia of Liberty"

Markus D. Dubber, University of Toronto Faculty of Law, has posted The Schizophrenic Jury and Other Palladia of Liberty: A Critical Historical Analysis.  As it happens, a student just discussed with me the inappropriateness of such uses of "schizophrenia."  I suspect the metaphor is inapt in this case, even though I'm sure it is a terrific paper.
The jury’s history is interestingly schizophrenic, even paradoxical. On one side is the history of the jury as palladium of liberty, often along with other such palladia, notably habeas corpus. On the other is the history of the jury as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this paradox, regarding it as neither sui generis nor in need of resolution. Instead, it critically analyzes the jury’s schizophrenic history from the perspective of New Historical Jurisprudence, as an illustration of the fundamental tension between two modes of governance, law and police, which ultimately are rooted in the distinction between autonomy and heteronomy that has shaped the conception and practice of government since classical Athens.

Whittington on State Constitutional Law, 1925-1945

Keith E. Whittington, Politics, Princeton University, has posted State Constitutional Law in the New Deal Period, which is forthcoming in the Rutgers Law Journal:
The 1930s is generally understood to be a period of constitutional revolution in the United States, with a restrictive conservative U.S. Supreme Court giving way to a latitudinarian liberal Court. The politics of judicial review and the substance of constitutional law in the states has rarely been considered. This article begins to integrate the states into the broader story of American constitutional development in these pivotal years. Focusing on a sample of four state courts between 1925 and 1945, this article argues that the U.S. Supreme Court and the struggle over federal constitutional law may have been more idiosyncratic and exceptional than typical of the constitutional politics of the period. Judicial review in the state courts and the elaboration of state-level constitutional law are characterized by continuity rather than transformation during this period. State courts were able to routinely use the power of judicial review to invalidate legislation across this time period, but they rarely found themselves obstructing the core policies being advanced by the other parts of the state governments.

Team Production and the History of the Corporation

There’s much legal history in the latest symposium of the Adolf A. Berle Center on Corporations, Law and Society, published in the Seattle University Law Review, which is devoted to the “team production” model of the corporation, propounded by Margaret M. Blair and Lynn Stout.

Choosing the Partnership: English Business Organization Law During the Industrial Revolution by Ryan Bubb

The Team Production Model as a Paradigm by Brian R. Cheffins

The Long Road to Reformulating the Understanding of Directors' Duties: Legalizing Team Production Theory? by Thomas Clarke

The History of Team Production Theory by Ron Harris

New Release: An Anthology on the Economics of Legal History

Just out from Edward Elgar Publishing is Economics of Legal History, an anthology of twenty-one articles first published between 1967 and 2012.  The editor is Daniel Klerman, the Charles L. and Ramona I. Hilliard Professor of Law and History, University of Southern California:
Generations of law and economics scholars have been fascinated by history, seeing in its institutions and laws a vast database for illustrating their theories. Equally, historians have seen economic analysis as a helpful tool with which to analyze legal institutions. As a result a vibrant field has emerged in which people trained in law, economics, history and political science have all made significant contributions. This volume brings together the most important works examining legal history from an economic perspective. An original introduction by the editor provides a useful roadmap to the field.
TOC after the jump.

Monday, April 13, 2015

Unexpected Sources of Law at Tel Aviv University

We have word of Unexpected Sources of Law, a two-panel meeting sponsored by the David Berg Institute for Law and History and the Buchmann Faculty of Law, Tel Aviv University, from 17:00 to 19:30 on Monday, April 20, 2015.  Roy Kreitner will chair the panels. For further details, email berg@post.tau.ac.il

Colonial Legacies: Law and Religion in India and Burma
Geetanjali Srikantan, Between Norms and Facts: Locating the History of Religion in the Ayodhya Dispute
Levi Cooper, Forum Conveniens: Legal Questions in the Burmese Jewish Community
Suzanne Last Stone (Respondent)

Rethinking Religion and Family Law
Ayelet Libson, Beyond the Fault Line: Revisiting Rabbinic Divorce Law
Lena Salaymeh, Temporalities of Marriage
Daphna Hacker (Respondent)

Blackstone's Commentaries: A Work of Art?

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

"Blackstone's Commentaries: A Work of Art?"  An exhibition talk by Cristina S. Martinez, PhD, University of Ottawa.  Friday, April 17, 2015, 11:00am-12:00pm, Room 122, Yale Law School, 127 Wall Street, New Haven, CT.

A legal treatise as a work of art? Very few people would confuse the two, yet William Blackstone wrote about architecture before turning to law, and may have brought his orderly artist's eye to bear in organizing the law in his landmark Commentaries on the Laws of England, an 18th-century bestseller and the most influential book in the history of Anglo-American law.

The Yale Law Library will host a talk by Dr. Cristina S. Martinez entitled "Blackstone's Commentaries: A Work of Art?" in conjunction with the exhibition, "250 Years of Blackstone's Commentaries." Her talk will be accompanied by Mark Weiner's video, "Blackstone Goes Hollywood," which includes interviews with Mike Widener and Wilfrid Prest, co-curators of the exhibition.

The talk will take place Friday, April 17, in Room 122 of Yale Law School, 127 Wall Street, at 11am. It is free and open to the public.

Martinez received a PhD in Art History and Law from Birkbeck College, University of London. She is an Adjunct Professor at the Department of Visual Arts at the University of Ottawa and a Faculty Member of the International Summer Institute for the Cultural Study of Law at the University of Osnabrück in Germany. She is the author of the forthcoming book Art, Law, and Order: The Legal Life of Artists in Eighteenth-century Britain (Manchester University Press) and contributed "Blackstone as Draughtsman: Picturing the Law" to the collection edited by Wilfrid Prest, Re-Interpreting Blackstone's Commentaries (2014).

The exhibit "250 Years of Blackstone's Commentaries" is on display through June 2, 2015, in the Rare Book Exhibition Gallery, located on Level L2 of the Lillian Goldman Law Library, Yale Law School. The exhibition will then travel to London, where it will be on view September through November 2015 at the library of the Honourable Society of the Middle Temple, and then on to Sir John Salmond Law Library, University of Adelaide, December 2015 to February.

The exhibit can also be viewed in the Rare Book Collection's Flickr site.  For more information, contact Mike Widener, Rare Book Librarian, at (203) 432-4494.

Call for Submissions: Kathryn T. Preyer Scholars

Kathryn T. Preyer
[We have the following call for submissions for the Kathryn T. Preyer Scholars award of the American Society for Legal History.  Over the years, the award has been one of several ways American legal historians have recognized promising new entrants to the field.]

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.
Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.
Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2015.
Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Washington, D.C. in November 2015.  The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.
Please send submissions as Microsoft Word attachments by June 15, 2015, to the chair of the Preyer Committee, Serena Mayeri, University of Pennsylvania <email>. She will forward them to the other committee members.
The 2015 Preyer Memorial Committee
Serena Mayeri, (2013) Chair, University of Pennsylvania <email>
Sam Erman (2013), University of Southern California <email>
Melissa Hayes (2014), Independent Scholar <email>
Michael Hoeflich (2014), University of Kansas <email>
H. Timothy Lovelace (2014), Indiana University <email>
 

More information, including a list of past Preyer Scholars, can be found here.

Stone to Lecture on “Sexing the Constitution: Getting to Gay Marriage?”

Geoffrey R. Stone will deliver the University of Chicago’s 2015 Nora and Edward Ryerson Lecturer on Sexing the Constitution: Getting to Gay Marriage?  on April 22.  The UC press release reports that “Stone will explore historical attitudes to homosexuality and how laws discriminating against homosexuals first came to be seen as raising possible constitutional questions. Furthermore, he will explain how the nation’s high court, building on a long line of earlier decisions involving such issues as sterilization, contraception, miscegenation, abortion and discrimination against women, has now come to the threshold of recognizing a constitutional right of same-sex couples to marry—a position that would have been unimaginable in the first 200-plus years of American constitutional history.”

Lebovitz Named Berger-Howe Fellow

[We have the following announcement.]

Adam Lebovitz has been named the Raoul Berger-Mark DeWolfe Howe Legal History Fellow for 2015-2016 at the Harvard Law School.  He is a graduate of the University of Chicago and Harvard Law School and is currently a Golieb Fellow in Legal History at NYU.  He will use his fellowship year to complete his dissertation on “French and American Constitutional Thought, 1774-1800,” which he is writing for his Ph.D. in Political Theory in the Department of Government at Harvard.

Sunday, April 12, 2015

Sunday Book Roundup

H-Net has a review of Brendan C. Lindsay's Murder State: California's Native American Genocide 1846-1873 (University of Nebraska Press).

Salon has an excerpt from Dream Chasers: Immigration and the American Backlash by John Tirman (MIT Press).

New Books has an interview with the editors of Democratizing Inequalities: Dilemma of the New Public Participation (NYU Press)--Caroline Lee, Michael McQuarrie, and Edward Walker.

Kevin Kruse has an excerpt of his new book, One Nation Under God: How Corporate America Invented Christian America (Basic), published in Salon.

In The Washington Post, Frank Bruni's Where You Go is Not Who You'll Be: An Antidote to the College Admissions Mania (Grand Central) is reviewed.

Steven Brill's America's Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System (Random House), is reviewed in The New York Review of Books.

On Slate Gregory P. Downs's After Appomattox: Military Occupation and the Ends of War (Harvard University Press) is reviewed.

Also from New Books is an interview of Leigh Ann Wheeler, discussing her book, How Sex Became a Civil Liberty (Oxford University).

Saturday, April 11, 2015

Ablavsky and Belt to Stanford Law School

This fall Stanford Law School will increase its already impressive roster of legal historians by two: we have word that former guest blogger Gregory Ablavsky (Sharswood Fellow and Ph.D. Candidate, University of Pennsylvania) and Rabia Belt (Researcher, Georgetown University Law Center / Ph.D. Candidate, University of Michigan) have both accepted offers to join the faculty as assistant professors.

Ablavsky and Belt shared an LHB headline earlier this academic year when both were named winners of the ASLH's Kathryn T. Preyer award.

Ablavksy is currently working on a dissertation titled "Federal Ground: Sovereignty, Property, and the Law in the U.S. Territories, 1783-1803" (Michael Zuckerman, Chair). Belt's dissertation-in-progress is titled "Disabling Democracy in America: Disability, Citizenship, Suffrage, and the Law, 1830-1920" (Phil Deloria, chair). Their published and forthcoming work is available here and here, respectively.

Congratulations to Greg Ablavsky and Rabia Belt!

Do you have hiring news to share? Feel free to email us. We're always happy to spread good news. 

Weekend Roundup

  • Paul Brand, Professor of English Legal History at the University of Oxford and, this year, the Miegunyah Distinguished Visiting Fellow at the University of Melbourne, will deliver the 2015 Miegunyah public lecture on The First Century of Magna Carta and the Law at the Melbourne Law School on Wednesday, 15 April from 6.30pm. 
  • Picturing the DC Circuit: A new on-line exhibit of the Historical Society for the DC Circuit posts "the official photographs of all the Courts of Appeals of the D.C. Circuit from 1905 until 1977, the final year of the Bazelon Courts. Now, for the first time, readers of the many famous opinions that have been handed down in the Circuit can easily find the faces of the men and women who wrote them."
  • Kimberly Phillips-Fein, on Invisible Hands: The Businessmen’s Crusade Against the New Deal (W. W. Norton, 2010) on New Books in History.
  • Mark Stoler, professor emeritus of history at the University of Vermont, will speak in the Miller center for Public Affairs Historical Presidency Series on Commander in Chief: FDR and Leadership in World War II, on April 21, 3:30-5:00 p.m.  The recording will be posted or you may listen live.
  • The American Archive of Public Broadcasting has launched a new website making available "American public radio and television content dating back to the 1950s.”
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 10, 2015

Wurman on the Fallacies of Legal Historians

Ilan Wurman, Winston & Strawn LLP, has posted Law Historians' Fallacies, which is forthcoming in the North Dakota Law Review:    
A common line of attack against originalists is that lawyers just aren’t good at doing history. But in his famous book Historians’ Fallacies, David Hackett Fischer noted that many historians aren’t good at doing history either: They often fall into one or more of numerous fallacies that he catalogued in his celebrated and often devastating three-hundred page book. This Article points out the many ways in which originalists and other legal historians fall into, but also how they may avoid, some of the same fallacies committed by the historians whose works made their way into Fischer’s book. It will then point to corresponding lessons that lawyers-turned-historians ought to employ to write better history. The belief is that lawyers, judges, and legal academics can become good — or at least better — historians.

Part I confronts two general attacks on the use of history, both of which challenge the possibility of obtaining relevant and objective historical knowledge. Part II establishes the importance of investigative questions and describes fallacies of question-framing that lead originalists astray. Part III explores fallacies of factual verification that stem from reliance on flawed types of evidence. Part IV addresses one fallacy of factual significance — which we shall call the originalist’s fallacy — that leads some originalists to misunderstand the significance of certain evidence. Part V illustrates fallacies of narration, including fallacies of anachronism and presentism, that too often create fruitless investigations and provide ahistorical answers. Part VI, although recognizing the importance of generalization, demonstrates how originalists (and other legal historians) often generalize improperly.

Jus Soli Citizenship before the DC Circuit

Sam Erman and Nathan Perl-Rosenthal, University of Southern California Law and History (more or less respectively), have published an op-ed on Tuaua v. United States, a pending case before the D.C. Circuit raising the question whether American Samoans should be U.S. citizens under the Fourteenth Amendment.  The pair filed an amicus brief (“Brief of Citizen Scholars”) accessibly through this link to filings in the case.  Both address “the history of jus soli citizenship in U.S. constitutional law.”

New Release: Rosen's "Border Law"

New from Harvard University Press is Border Law: The First Seminole War and American Nationhood, by Deborah A. Rosen, Lafayette College:
The First Seminole War of 1816-1818 played a critical role in shaping how the United States demarcated its spatial and legal boundaries during the early years of the republic. Rooted in notions of American exceptionalism, manifest destiny, and racism, the legal framework that emerged from the war laid the groundwork for the Monroe Doctrine, the Dred Scott decision, and U.S. westward expansion over the course of the nineteenth century, as Deborah Rosen explains in Border Law.

When General Andrew Jackson's troops invaded Spanish-ruled Florida in the late 1810s, they seized forts, destroyed towns, and captured or killed Spaniards, Britons, Creeks, Seminoles, and African-descended people. As Rosen shows, Americans vigorously debated these aggressive actions and raised pressing questions about the rights of wartime prisoners, the use of military tribunals, the nature of sovereignty, the rules for operating across territorial borders, the validity of preemptive strikes, and the role of race in determining legal rights. Proponents of Jackson's Florida campaigns claimed a place for the United States as a member of the European diplomatic community while at the same time asserting a regional sphere of influence and new rules regarding the application of international law.

American justifications for the incursions, which allocated rights along racial lines and allowed broad leeway for extraterritorial action, forged a more unified national identity and set a precedent for an assertive foreign policy.
Endorsements by Eliga Gould and Daniel Hulsebosch after the jump.

Leiter, Priel and Barzun on American Legal Realism

Legal Realism is the subject of two recent papers posted on SSRN.  Brian Leiter, University of Chicago Law School, has posted Legal Realism and Legal Doctrine, which is forthcoming in the University of Pennsylvania Law Review (2015):
In this contribution to the symposium on "The New Doctrinalism," I argue that American Legal Realists did not reject doctrine, because the Realists did not reject the idea that judges decide cases in accordance with normative standards of some kind: "doctrine" after all is just a normative standard about what should be done, but one formulated and made explicit by a statute or a court or a treatise. A judge who decides cases based on the norm "this breach of contract is efficient" still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.
Dan Priel, Osgoode Hall Law School, and Charles L. Barzun, University of Virginia School of Law, have posted Legal Realism and Natural Law, forthcoming in Law, Theory and History: New Essays on a Neglected Topic, ed. Maksymilian Del Mar & Michael Lobban (2015):
The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on the jurisprudential scene, legal realism was savagely attacked by proponents of natural law theory. To this day legal realism is depicted as a modernist, critical, at times almost nihilist approach to law, the polar opposite of the ancient natural law theory that traces its roots to Greek and Roman philosophy, and insists on unchanging objective values. And yet, two of the most famous legal realists, Karl Llewellyn and Jerome Frank, expressed in some of their writings more than a passing endorsement of natural law theory. The purpose of this essay is to try and explain this seemingly odd aspect of their work and in this way help in reassessing their work. We do so by explaining how they understood natural law and how they incorporated it in their work. Though they did not understand the term in precisely the same way, for both of them natural law was connected to the values of the community, which both of them thought were central to understanding law, for explaining how it could remain relatively certain, and ultimately, how it derived its authority.

Studying Slavery through Court, Notarial, and Lawyers' Records

[The Allure of the Judicial Archives Workshop sends this announcement of a session to be held today in 1014 Tisch Hall, Department of History, University of Michigan.]

Studying Slavery through Case Files, Dockets, Lawyers' Papers, Notarial Registers, and Silences: A Discussion of Pre-Circulated Papers

Session 1: 10 to 11:00: Chez le notaire: Jean Hébrard and Rebecca Scott

Session 2: 11:15-12:15: Scraps of paper and puzzling legacies: Ada Ferrer and Sueann Caulfield.

Session 3: 1:45 to 3:15: What kinds of things might constitute a "judicial archive"?: Martha Jones, Ariela Gross, Hendrik Hartog.

Concluding Session: 3:30 to 4:30: Comments: Natalie Zemon Davis, Keila Grinberg, audience.

For access to the CTools website with the papers, please contact Terre Fisher (telf@umich.edu). For additional information about the event, please contact Rebecca Scott (rjscott@umich.edu)

This workshop is sponsored by: The University of Michigan Institute for the Humanities; The University of Michigan Law in Slavery and Freedom Project; The Program in Race, Law & History of the University of Michigan Law School; The Eisenberg Institute for Historical Studies.

That Symposium on Lee's "Workplace Constitution"

Early last week I noted that a symposium on Sophia Lee’s Workplace Constitution was forthcoming on Penn Law’s RegBlog.  It has transpired:

Appreciating The Workplace Constitution, by Deborah C. Malamud, NYU Law
A Contribution to Both Legal History and Constitutional Theory, by Mark Tushnet, Harvard Law
Administrative Constitutionalism and Administrative Power, by Nicholas R. Parrillo, Yale Law
A Window into America’s Administrative State, by Gillian E. Metzger, Columbia Law
Administering the Workplace Constitution, by Sophia Lee, Penn Law   

Thursday, April 9, 2015

ACLS, Guggenheim, LAPA and Law & Society Fellowships Announced

Congratulations to Sarah Barringer Gordon, Mark Fathi Massoud, and Michael Willrich for winning Guggenheims (that is, they’ve been named as John Simon Guggenheim Memorial Fellows).  Professor Gordon's Guggenheim is supported by the Dorothy Tapper Goldman Foundation.  Professor Willrich was also named an American Council of Learned Societies Fellow for "The Anarchist’s Advocate: War, Terror, and the Origins of America’s Surveillance State."  H. Timothy Lovelace, Jr., and I will be Law and Public Affairs Fellows at the Woodrow Wilson Center at Princeton University next year, where we’ll be joined by (among others) Professor Massoud and Sherally Munshi, who is currently a Law Research Fellow at the Georgetown University Law Center.

Congratulations as well to Amanda Hughett, a doctoral candidate in History at Duke University, for receiving a Dissertation and Mentoring Fellowship from the Law and Society Association.

(Apologies to anyone I missed.  Please let me know and I'll update.)

Update: And congratulations to Linda Przybyszewski, Notre Dame, for winning a major grant from the Spencer Foundation in support of her book-in-progress on the “Cincinnati Bible War.”

Tax Reform in Historical Perspective: A Congressional Briefing

[We have the following announcement from the National History Center.]

The National History Center of the American Historical Association is pleased to announce our upcoming Congressional briefing, co-sponsored with the Joint Committee on Taxation, on “American Families, Global Competition, and Comprehensive Tax Reform in Historical Perspective.” Ajay Mehrotra of Indiana Law School [and an LHB Guest Blogger]; Bruce Bartlett, former deputy assistant secretary of the Treasury; and Joe Thorndike of Tax Analysts will discuss the history of tax reform in the United States.  Professor Dane Kennedy, Director of the National History Center, will moderate the discussion.

The briefing will be held on Friday, May 8, at 10 a.m. in Rayburn House Office Building, Room 2103.  RSVPs are requested.  To RSVP or for further information, please contact the Center’s assistant director, Dr. Amanda Moniz, at amoniz@historians.org or 202-450-3209.

Kochin on the Framers and National Security

Michael S. Kochin Tel Aviv University and Claremont McKenna College, has posted The Constitution Viewed from Without:
The drive for constitutional reform in the 1780’s was largely motivated by the perception that until the Federal government was strengthened the United States would not be able to meet its foreign and security policy challenges. Once I put the foreign and security policy difficulties of the 1780’s on the table, I will address two questions: First, why does The Federalist argue for the foreign and security policy need for the Union when nobody who opposes the 1787 Constitution argues against the “perpetual Union” created by the Articles? Second, what is the pressing “crisis” in foreign and security matters that, in Publius’s view, should persuade the remaining states to ratify the constitution hastily?

Seo is Inaugural McCurdy Fellow at UVA

[From a press release of the University of Virginia School of Law.]

As the inaugural Charles W. McCurdy Legal History Fellow, Sarah Seo is exploring police searches of automobiles and the implications for individual freedom. Starting this summer, the legal historian will hone her dissertation on the subject while participating in a yearlong residency at the University of Virginia School of Law.

Seo's appointment, which is sponsored by the Law School, the UVA History Department and the Miller Center, comes with a $32,000 stipend, and is the latest addition to the Miller Center National Fellowship Program, which will announce its complete roster of new history fellows this month.

[More.]

Wednesday, April 8, 2015

Stanley I. Kutler (1934-2015)

Stanley I. Kutler was many things, some of which I got to observe first hand during my two-year fellowship at the University of Wisconsin-Madison in the mid-1980s.  I suspect most people know him from his work on Watergate: the litigation that preserved and opened the Nixon tapes to the public, his Wars of Watergate (to which I contributed a summer’s research assistance), his play “I, Nixon,” and many of his columns for the Christian Science Monitor and other news outlets.  Reviews in American History, which he and Stanley N. Katz created and edited, was essential reading for my generation of history graduate students.  “Reviews 10"–an issue devoted to a series of field surveys including Daniel T. Rodgers’s “In Search of Progressivism”–was something of a bible.  As an ABD trying to find a dissertation somewhere within the legal history of labor law, I relied heavily on his dissertation-based articles on the labor cases of the Taft Court to get my bearings.  I saw at once and still believe that his Privilege and Creative Destruction is the best book every written on a single case in American constitutional history.  Only a little later in my career, after I realized that Kutler’s generation of legal historians had turned to political history to professionalize the field of American legal history, did I recognize his Judicial Power and Reconstruction Politics for the landmark it was. 

It would be scarcely metaphorical to characterize Kutler’s interactions with me as avuncular, so close was his relationship to my dissertation adviser Stanley N. Katz.  To this day, I find myself repeating his advice.  One counsel, which my seminar students will be hearing shortly, came after he had struggled through a dissertation chapter of mine that pitched readers into a blizzard of names, dates, and events.  To cushion the blow that it needed much compression and omission, he observed, “The hardest thing for a historian to do is to let go of a hard-won fact.”  Another piece of advice, shared when I went on the job market for the first time, was “Go where you can do the best work.”  The independent variables in that equation, he made clear, ought not to be limited to narrowly professional factors, like teaching load and research leave.  They also included the happiness of a spouse, of children, and of anyone else whose state of mind was inextricably joined to one’s own. 

American legal and constitutional history has lost one of its great practitioners.

The Milwaukee Journal Sentinel's obituary is here; the Washington Post's is here.  I'll update as more come to my attention.

Update: The UW press release; an appreciation in The Nation; R. B. Bernstein's thorough and thoughtful obituary for H-Law (with a slight correction); another obituary on Madison.com; a remembrance by Ruth Conniff, editor of The Progressive; Bernard Weisberger and Michael Ebner (the latter of whom focuses on Reviews in American History) on HNN; "One who wasn't at all the president's man," in the Sydney Morning Herald; "Usa: addio a Stanley Kutler, storico del Watergate," in L'Unione Sarda; Watergate historian Kutler who fought for release of Nixon’s tapes dies, in The Hindu; the New York Times obituary.

Around the State Historical Journals

Much legal history is out in recent issues of the journals of state historical societies.  Perhaps the most notable is the March 2015 issue of the Indiana Magazine of History, guest edited by former Indiana Supreme Court Chief Justice Randall Shepard:
Peter S. Onuf, Thomas Jefferson Foundation Professor Emeritus at the University of Virginia, examines how Indiana’s statehood and its 1816 constitution functioned as part of the new American republic’s westward expansion of empire. Thomas D. Hamm, Professor of History and archivist at Earlham College, considers how courts in Indiana adjudicated the issue of church and state from 1816 until the second Indiana constitution of 1851. Paul Finkelman, Senior Fellow at the Penn Program for Democracy, Citizenship, and Constitutionalism at the University of Pennsylvania, studies how the 1816 constitution and its ban on slavery and indentured servitude was interpreted in important early state court cases. Finally, George T. Patton Jr., partner at Bose McKinney & Evans LLP, and Julianne Sicklesteel, a law student at the Maurer School of Law at Indiana University Bloomington, look at the 1851 constitution and how the modern Indiana State Supreme Court has interpreted that document.
Race and civil rights figure in Lou Falkner Williams, "Federal Enforcement of African American Voting Rights in the Post-Redemption South: Louisiana and the Election of 1878," Louisiana History 55 (2014), 313-43; Beth Kressel Itkin, "Creating `What Might Have Been a Fuss': The Many Faces of Equal Public Rights in Reconstruction-era Louisiana," Louisiana History 56 (2015), 42-74; and Noel K. Wolfe, "Shaping a Civil Rights Vanguard: The Earliest Influences on Constance Baker Motley," Afro-Americans in New York Life and History 38 (Aug. 2014), 37-82.  Property gets its due in Stephanie M. Lang, "`Titles Must be Perfect': The Broad Form Deed, Politics, and Landownership in Eastern Kentucky at the Turn of the Twentieth Century," Register of the Kentucky Historical Society 113 (2015), 27-57.

Gerber on Law and Religion in Colonial Connecticut

Scott D. Gerber, Ohio Northern University Pettit College of Law has posted Law and Religion in Colonial Connecticut, which is forthcoming in the American Journal of Legal History 55 (April 21015); 205:
Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. For the colony of Connecticut the animating principle was Puritan Congregationalism.

Part I of my paper chronicles how central Puritan Congregationalism was in the organic law, statutory law, and common law of the so-called River Colony at which Connecticut was originally planted. Part II explores the law of the New Haven Colony, a separate community settled in 1638 that joined with the River Colony in 1665 to create a unified Connecticut Colony. Part III examines the law of the Connecticut Colony and endeavors to discern when Connecticut’s laws began to deviate from Puritan Congregationalism. Part IV concludes the paper by assessing the events that led to the official demise in the Connecticut Constitution of 1818 of Puritan Congregationalism as the animating principle of Connecticut.

Theorizing Contemporary Legal Thought

Just out in Law and Contemporary Problems is the symposium Theorizing Contemporary Legal Thought, which is guest edited by Justin Desautels-Stein, University of Colorado Law School, and Duncan Kennedy, Harvard Law School.  It includes much of interest to legal historians.

Foreword
Justin Desautels-Stein & Duncan Kennedy   

The Presence and Absence of Legal Mind: A Comment on Duncan Kennedy’s Three Globalizations
Christopher Tomlins

Three Globalizations: An Essay in Inquiry
John Henry Schlegel

Structuralist Legal Histories
Justin Desautels-Stein

The Organizational Premises of Administrative Law
William H. Simon

The Law and Political Economy of Contemporary Food: Some Reflections on the Local and the Small
Amy J. Cohen

From Comparison to Collaboration: Experiments with a New Scholarly and Political Form
Annelise Riles

How To Do Things With Hohfeld
Pierre Schlag

The Great Alliance: History, Reason, and Will in Modern Law
Paulo Barrozo

Tuesday, April 7, 2015

Munshi on Naturalization and Racial Difference in the Early Twentieth Century

Sherally K Munshi, who this year has been a Law Research Fellow at the Georgetown University Law Center and next year will be a Law and Public Affairs Fellow at Princeton University, has posted 'You Will See My Family Became so American': Towards a Minor Comparativism, which is forthcoming in the American Journal of Comparative Law (2015):
How does the appearance of racial difference impede recognition of citizenship and national belonging? This Article seeks to answer that question by introducing to comparative legal scholarship a method of analysis — which I call “minor comparativism” — to challenge the nation’s self-image by engaging the perspectives and reflections of its minorities. This Article examines the role that laws regulating citizenship, immigration, and naturalization in the United States have played in constructing the appearance of racial difference, in turn, naturalizing whiteness as the embodiment of citizenship. I focus, in particular on the experience of Indian immigrants to the United States in the early twentieth century — a history which has received little attention within existing legal scholarship. In United States v. Bhagat Singh Thind (1923), the Supreme Court held that immigrants from India were racially ineligible for citizenship because they were visually inassimilable. The Court recognized that while many Indian immigrants had proven themselves capable of cultural assimilation, unlike their European counterparts, Indian immigrants could not be naturalized because they “indefinitely retain clear evidence of their physical group characteristics.”

This Article proceeds from an analysis of Thind to a close reading of the denaturalization trial of Dinshah P. Ghadiali, one of several dozen citizens of Indian origin that the United States sought to denaturalize in the wake of Thind. Since the Court had announced that visual assimilability was the relevant test for naturalization, Ghadiali strained to demonstrate that he and his family looked American. At his denaturalization trial, Ghadiali presented to the court several photographs of himself, his family, and his properties, promising the Judge, “you will see my family became so American.” By focusing on these photographs, I explore the demands of visual conformity that the law imposes on racialized minorities. As such, this Article recommends that we should regard the visual archive not as a supplement to more authoritative legal representations of the nation, but as a critical register through which we might collaborate in reconstructing forgotten histories, projecting alternative futures, and reenvision the meaning of citizenship and national identity.

Katz on Judicial Patriarchy, Domestic Violence, and the Family Privacy Narrative

Elizabeth Katz, a doctoral candidate in History at Harvard University, with an JD and MA in history from the University of Virginia, has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, which is forthcoming in the William and Mary Journal of Women and the Law 21 (Winter 2015): 379-471.  Ms. Katz received the Kathryn T. Preyer Award of the American Society for Legal History for an earlier version of this article.
According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

Whitman on the Presumption of Innocence in the Us and Europe

James Q. Whitman, Yale Law School, has posted Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice, which is forthcoming in the Texas Law Review:    
American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.

Jones on the Lynch Nomination on HuffPo

Martha S. Jones, University of Michigan History and Afroamerican and African Studies, over at Huffington Post on the Loretta Lynch nomination and the political power of African-American women.

Barbas on Time, Inc. v. Hlll

Samantha Barbas, State University of New York Buffalo Law School, has posted When Privacy Almost Won: Time, Inc. v. Hill (1967), which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:
Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against the press for the publication of nondefamatory private facts.

The Hill case represented the culmination of a longstanding tension in American law. Since the early 20th century, states had recognized a “right to privacy” that permitted the victims of unwanted, embarrassing media publicity to recover damages for emotional distress. The privacy tort was praised for offering protection against an exploitative press, and at the same time decried by the publishing industry as an infringement on its freedoms. In the 1950s and 60s, with the growth of the media, an increase in privacy actions, and large judgments against the press, the privacy-free press conflict raised contentious debate.

Privacy and free speech were charged issues in American culture more generally. In an era that saw the introduction of computers, large-scale data collection, and increasing government surveillance, “privacy” emerged as a major national focus. Free expression rights also assumed new meaning and urgency in the turbulent social climate of the postwar era. These concerns were reflected in the Supreme Court’s decisions from this time. New York Times v. Sullivan (1964) held that the press had an expansive right to report on the public conduct of public officials, including a right to publish falsehoods, unless they were made with reckless disregard of the truth. One year later, Griswold v. Connecticut declared a constitutional right to privacy, protected by “penumbras” and “emanations” of guarantees in the Bill of Rights.

Time, Inc. v. Hill
cast these freedoms in opposition. The case called upon the Warren Court, the Sullivan Court and the Griswold Court, to reconcile the two constitutional rights it had championed and created. A majority led by Justices Warren and Fortas initially voted to uphold the Hills’ claim. But after a bitter fight, votes switched, and a narrow majority voted for Time, Inc. The opinion by Justice Brennan rejected the notion of a constitutional right against unwanted publicity and declared an expansive view of the First Amendment as protection for all “newsworthy” material. The right of the press to publish on “matters of public interest,” from political reporting to articles about Broadway plays to movies and comic books, outweighed the privacy interests of unwilling subjects of media publicity.

This article explains how privacy almost won--how the Supreme Court almost recognized a constitutional right to privacy against the press--and why it didn’t. Time, Inc. v. Hill marked a crossroads, a moment when the law could have gone in one of two directions: towards privacy and a measure of press restraint, or towards a freer--if not at times unruly and uncivil-- marketplace of ideas. The Court chose the latter, and we have lived with the consequences since.