ASLH alert: conference hotel full -- back-up available

For the upcoming American Society for Legal History Conference in Tempe, Arizona, the conference hotel is full. The ASLH has made back-up arrangements for those still in need of hotel rooms. The details are here. It will be homecoming weekend at Arizona State, so if you are planning to attend and don't have a hotel, it's important to act now. The ASLH website has more information.

Sharra reviews Englund, Prisoners of Freedom: Human Rights and the African Poor

Harri Englund, Prisoners of Freedom: Human Rights and the African Poor (University of California Press, 2006) is reviewed for H-SAfrica by Steve Sharra, Michigan State University. Hat tip. Sharra writes, in part:

Despite the presence of a number of studies that examine the impact of NGOs since the 1994 advent of multiparty democracy in Malawi, few, if any, of them do what Harri Englund does in this book. Malawi's 1994 transition from the thirty-year one-party dictatorship, under Dr. Hastings Kamuzu Banda, to multiparty democracy has been the subject of numerous studies both inside Malawi and outside. Change in Malawi was long coming, taking the form of movements and political parties largely outside Malawi. But it was 1992 that saw the first real bold move to criticize openly the government, through a lentern pastoral letter written by the country's seven Catholic bishops. The several studies that have examined the transition period and the democratic process since then have been in fields such as theology, cultural and literary studies, politics, and education. There have also been studies on the issue of language and how the insistence on English as the official language of government, politics, business, and education keeps the majority of Malawians, who do not use English in their day-to-day lives, out of the democratic process.

Englund's study is based on an engagement with Malawi that starts in 1999, and becomes concentrated between 2001 and 2003, when he does an ethnographic study that focuses on three particular aspects that capture the discourse on democracy, human rights, and freedom: the translation work on key documents in the political transition; a civic education NGO; and a legal aid NGO. Englund arrives at the conclusion that the human rights discourse on freedom and democracy, rather than empowering the ordinary Malawians that it takes as its main preoccupation, actually disempowers the very people it seeks to empower. It is a powerful and persuasive argument made painstakingly and eloquently throughout the study, relying on both fieldwork and critical analyzing. Englund uses what he terms "ethnographic witnessing" to expose how the disempowerment is operationalized in the way terms such as freedom and human rights have been translated into the national language, Chichewa. He further shows how the disempowerment operates in the way civic education and legal aid are actually carried out among the NGOs and human rights activists studied.

Continue reading this detailed review here.

Miller on the legal history of a streetcorner in Meinhard v. Salmon

Tally's Corner comes to Law and Economics. I love the opening line of Geoffrey P. Miller's (NYU) abstract for his new SSRN paper, Meinhard v. Salmon: "This article offers a legal history of the northwest corner of 42nd Street and Fifth Avenue, the plot of land that, among other things, was the source of dispute in Meinhard v. Salmon, one of the leading business law cases in American history." Using a streetcorner as a research site was, of course, the methodology of Elliot Leibow's classic Tally's Corner: A Study of Negro Streetcorner Men (1967). Leibow sought to understand the poor by studying a community on a small scale in Washington, D.C.

Miller's focus is very different, but the resonance with Leibow reminds us of the creative promise of micro-studies. Miller's streetcorner is the northwest corner of 42nd Street and Fifth Avenue. Here's the rest of the short abstract:

Using the Meinhard case as a lens, the paper explores New York's changing ethnic, social, and economic environment - the rise and fall of industries, the booms and busts of business conditions, the dispersal and commercialization of landed estates, the influence of immigrants, the role of yachting, horse racing, art collecting and charitable work in establishing social standing, and the importance of family and heritage in the development of New York City during the late Nineteenth and early Twentieth Centuries.

Myanmar/Burma history links

World History Blog has links to Myanmar/Burma history sites. Links to academic commentary about the current crisis are here.

Messer reviews Griffin, American Leviathan: Empire, Nation, and Revolutionary Frontier

Patrick Griffin, American Leviathan: Empire, Nation, and Revolutionary Frontier (Hill and Wang, 2007) is reviewed for H-Law by Peter Messer, Department of History, Mississippi State University. Messer writes:

Patrick Griffin's American Leviathan offers an important contribution to our understanding of the nation and the empire created by the American Revolution. Griffin argues that Americans developed a distinctly Hobbesian view of the state as a result of the turbulent process of westward expansion between the end of the French and Indian War (1763) and the Treaty of Greenville (1795). In between those years, various idealistic schemes to establish an orderly empire, create republican communities, secure an unlimited market in land, and establish economic independence all collapsed, to be replaced by a pragmatic vision of a nation founded on the state imposing order on a chaotic world. This process began in the 1760s when British imperial policy, seeking to isolate the trans-Appalachian West from the settled eastern colonies, clashed with the interests of elite land speculators and landless colonists hoping to exploit the territories acquired after the French and Indian War. These clashing views produced the Proclamation Line of1763, as the imperial government sought to restrain the colonists,and then Lord Dunmore's War in 1775 as colonial governments and settlers vied with each other for control of western lands. The result of this chaos was the collapse of order on the frontier as the British government's efforts to restrain settlement proved fruitless and cost it legitimacy in the eyes of the settlers and the rivalries among colonial governments prevented them from establishing orderly communities. The Revolution compounded the confusion as the government of the United States showed no interest in fighting a war on the frontier, while the British government encouraged attacks by its Indian allies on the frontier communities. In the years following independence continuing disputes among states, federal ineptitude and taxation, and the long-standing hostilities between frontier settlers and their Indian neighbors perpetuated the chaos of the Revolution. Peace, or order, was restored when the settlers and the federal government entered into a Hobbesian compact following Anthony Wayne's defeat of a confederation of Ohio Valley Indians in1794; the United States would provide the security and stability the settlers needed to survive and prosper, and the settlers would unite with each other and support the authority of the state. The result was a nation and empire founded on the principle of white settlers expanding to the west, with their physical and economic security guaranteed by the federal government, all at the expense of native peoples.

Griffin's book speaks to several historiographies: the role of "the people" in the American Revolution, the racialized foundations of national identity, the role of the frontier in American history, and the transatlantic dimensions of the Revolution. The recent publication of Gary Nash's The Unknown Revolution (2005) makes Griffin's contribution to the first of these discussions particularly timely. Griffin wants to complicate what he sees as an overly simplistic view of the role of the people in the Revolution that tends to either subsume them within an elite-driven ideological consensus, or celebrate them as forgotten founders betrayed by conspiratorial elites. Griffin acknowledges that elites and non-elites on the frontier came to share important assumptions about politics and government as a result of the Revolution, but rejects the standard ideological emphasis on the role of republican or liberal theorists in this process. Instead, he argues that the consensus that emerged on the frontier rested on shared interests in physical safety, economic opportunity, and racial solidarity. The resulting state more closely resembled Hobbes's pragmatic concerns with order and security, than either the Commonwealth men's idealist republic or John Locke's optimistic liberalism.

Griffin's interpretation of the creation of this consensus shares with Nash the argument that the attitudes and needs of the common people were the driving forces in the Revolution and the political settlement it produced. Griffin stresses that the struggle to achieve physical and economic security on the frontier politicized common settlers and gave them an acute sense of their interests in relation to both the contending governments and local elites. He departs from what he sees as the standard narrative of a people's revolution, however, when discussing the reestablishment of elite rule in the West in the 1790s. Griffin contends that this development reflected the knowing compromises entered into by the common settlers with the elite in which the former willingly sacrificed some of their interests in order to achieve physical and economic security. Non-elite settlers, for example, agreed that land in the West would be surveyed and sold at auction, effectively denying the right of squatters to claim land they had occupied and improved. This decision, Griffin suggests, was the price that the settlers willingly paid in order to receive the protection and economic opportunity provided by the state and the presence of the elites. Thus, the relatively conservative tone of Revolutionary settlement in the American West reflected the desires of politically and economically savvy settlers, and not the machinations of a conspiratorial elite.

One element of the compromise among the classes represents Griffin's contribution to another important historiographic conversation, that concerning the racialization of national identity. He argues that one shortcoming of the interpretation of the Revolution as a people's revolution is the degree to which modern historians have either rationalized or ignored the unsavory actions of the people, in this case, their undeniably racist views of Indians. Griffin's view of the Revolution in the West, however, places these views and the actions they produced at the center of the Revolution and its consequences. He builds on works, such as Gregory Knouff's A Soldier's Revolution (2004), by arguing that Indian-hating became the foundation of a racialized national identity that offered membership in the community to all men who had white skin. Common people and elites united around the idea of their shared whiteness and the commitment of the government to promote the interests of whites at the expense of native peoples. For Griffin, in other words, the politicization of the people during the Revolution was accompanied by the spread and acceptance of a racialized national identity that overcame and muted class differences.

Griffin's work also speaks to the long-standing debate about the significance of the frontier in American history, turning Frederick Jackson Turner's frontier thesis on its head. Like Turner, Griffin sees the West as the place where we can best see and understand the development of the qualities and traits that defined the development of the United States as a culture and an empire. Unlike Turner, he sees the West illustrating a darker side of American identity and philosophies of empire. If the process of settling the West democratized politics, encouraged individual freedom, and promoted the market economy it did so hand in hand with the spread of racism and the violent displacement of native peoples. The national myth that comes out of Griffin's study of the West is, as he suggests,more complicated and troubling than Turner's or even Nash's, but is,consequently, more useful to students of American history at all levels of expertise.

Finally, Griffin reminds readers of the possibilities and limits of a transatlantic view of the American Revolution.

Read the rest here.

Ontiveros on Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs

Maria Linda Ontiveros, University of San Francisco, has posted a new essay, Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs. It appeared in the University of Toledo Law Review. Here's the abstract:

This article offers a Thirteenth Amendment analysis of “guest worker programs.” In these visa programs, non-United States citizens may come to work in the United States for a limited period of time. Under most of these programs, the worker must leave if they get fired or quit. The article offers a historical perspective of agricultural guest worker programs from1770 through today and concludes that poorly crafted guest worker programs may violate the Thirteenth Amendment.

Historians Weigh in on "The War"

History News Network asked historians for their views on Ken Burns' new documentary The War, and they are responding. Stanley N. Katz finds it "a feel-good, filiopietistic account that manages to avoid all of the hard issues, either historical or aesthetic. This is just poor documentary film making, with a voice-over that is shamelessly soft-headed. Burns has not developed a single new documentary technique in more than a decade. A big, but predictable disappointment." William B. Rogers defends Burns, noting that the scope of World War II makes a documentary about it especially difficult to produce. Robert Lee Gaston thinks PBS "missed a great opportunity because WWII brings up some questions still needing serious historical analysis. Not the least among these is what was it about twentieth century European culture that produced the monsters that governed Germany, the Soviet Union and Italy."

Most comments are critical, leading Raymond Frey to complain, "I can't believe this. Ken Burns brings the war alive for a generation of Americans who badly need to know what happened back then, and all the commenters can do is moan, nitpick, and criticize. No good deed goes unpunished in the history community." Tom Clark is a critic, but says "hope springs eternal, so I'll watch the rest nonetheless."

I will have to opine later -- my copy is waiting patiently on Tivo.

Tsuk Mitchell, From Pluralism to Individualism: Berle and Means and 20th-Century American Legal Thought

Dalia Tsuk Mitchell, George Washington University Law School, has posted an article, From Pluralism to Individualism: Berle and Means and 20th-Century American Legal Thought. It appeared in Law & Social Inquiry. Here's the abstract:

This article is an intellectual history of Adolf A. Berle, Jr. and Gardiner C. Means, The Modern Corporation and Private Property (1932). I argue that Berle and Means's concern was not the separation of ownership from control in large pubic corporations, as many scholars have suggested, but rather the allocation of power between the state and a wide range of institutions. As I demonstrate, Berle and Means shared a legal pluralist vision of the modern state. Legal pluralism treated organizations as centers of power that had to be accommodated within the political and legal structure. Berle and Means viewed collective entities such as corporations as the foundation of the modern state, at the same time that their concern about the power that these entities could exercise led them to proclaim that corporate power (like sovereign power) should be exercised to benefit the community at large.

The article further explores how Berle and Means's legal pluralist vision was eclipsed in the second half of the twentieth century as the attention of lawyers, legal scholars, and government officials shifted from collective entities to the individual as the basis for legal and political analysis (postwar interest group pluralism reflected this shift). The article then shows how this transformation helped legitimate the view that corporate entities were nexuses of private, contractual relationships. Informed by neoclassical economics, advocates of this new vision of the firm emphasized the role of economic markets in regulating corporate power. With deregulation and free markets in mind, neoclassicists came to treat The Modern Corporation and Private Property as a book about the limited question of the effects of the separation of ownership from control on efficiency and profit maximization, not as a book about corporate power as Berle and Means had intended.

D.C. Area Legal History Roundtable: Judges and Judging

The Catholic University of America
Columbus School of Law

Fall 2007 D.C. Area Legal History Roundtable:

Judges and Judging
Friday, November 2, 2007
Noon – 4:00pm

The D.C. Area Legal History Roundtable is an informal gathering of Washington, D.C. law professionals and historians. Following a several-year hiatus the George Washington University Law School organized and hosted a session on the History of the Legal Profession in the fall of 2006, and in the spring of 2007 American University’s Washington College of Law hosted a session on Slavery. This Fall’s program is the third in the current roundtable series.

The Schedule is as follows:

11:45am – 1:30pm Buffet Lunch available

12:10 – 1:20pm
The Last Word: Late-Breaking Opinions & Second Thoughts on the Supreme Court
(part of a larger work on self-regulation by the Court)

Presenter: Ross Davies, George Mason University School of Law
Commentators:
Stephen Wermiel, American University, Washington College of Law
Elizabeth Engdahl, Legal Times
Moderator: Stephen Goldman, The Catholic University of America, Columbus School of Law

1:20 – 1:30pm Break

1:30 – 2:40pm
Judicial Compensation: Contemporary and Historical Perspectives

Presenter: Susanna Fischer, The Catholic University of America, Columbus School of Law
Commentators:
Renee Lerner Lettow, George Washington University
Mary Lee Clark, American University, Washington College of Law
Moderator: James Oldham, Georgetown University Law Center

2:40 - 2:50 Break (Light refreshments available)

2:40 – 3:40 p.m.
Judges and Notaries
(chapter from a forthcoming book by James A. Brundage.)
Commentators:
Kenneth Pennington, The Catholic University of America, Columbus School of Law
Daniel Ernst, Georgetown University Law School
Moderator: Caroline Sherman, The Catholic University of America, College of Arts and Sciences

3:40 – 4:00pm Wrap Up
Planning Meeting for the next D.C. Area Legal History Roundtable session

R.s.v.p. RobbK@law.edu or (202)319-6126
For more information please contact Professor Sarah Duggin, duggin@law.edu, 202-319-6073.

VanderVelde on The Thirteenth Amendment of Our Aspirations

Lea S. VanderVelde, University of Iowa, has posted a new article, The Thirteenth Amendment of Our Aspirations. It is forthcoming in the University of Toledo Law Review. Here's the abstract:

In 1824, when two preachers from Southern Illinois squared off against each other to run for a Senate seat, both agreed that some forms of slavery were bad. The debaters agreed that “unmerited, involuntary, perpetual, absolute, hereditary slavery [was] contrary to, and a violation of the principles of nature, reason, justice, policy, and scripture.” Such a thoroughgoing condemnation of slavery leaves one wondering whether they believed ordinary slavery was acceptable.

Was it only when slavery was simultaneously “unmerited, involuntary, perpetual, absolute, and hereditary” that it violated the many dimensions of goodness? If, for example, some circumstance of enslavement entailed only some of those attributes, was it then acceptable? Would slavery be acceptable if it was simply not perpetual, or simply not hereditary? The point is a simple one: when one condemns slavery by such an accumulation of negative attributes, it opens the possibility that society may tolerate slavery if it lacks simply one of these deplorable attributes. Thus, the preachers diluted their condemnation by modifying the subject with five different objectionable attributes.

Thirty years after the preachers debated the nature of slavery's ills, the Thirteenth Amendment banned slavery, period. (It also banned involuntary servitude, except as punishment for crime.) However, over the 150 years since the Amendment's enactment, the conventional interpretation of the blanket prohibition of slavery under the Thirteenth Amendment seems to have devolved into the totality of the worst conditions of slavery extant in antebellum America.

My goal in this article is to sketch a much broader interpretation of the Thirteenth Amendment, an interpretation of our aspirations of freedom in a carefully delimited, but expansive, rather than a restrictive, fashion. This is more than simply a rhetorical or grammatical exercise; it is fundamentally conceptual.

Prempeh on The Puzzling Persistence of Imperial Presidency in Post-Authoritarian Africa

H. Kwasi Prempeh, Seton Hall Law School, again makes the case that comparative constitutional scholars have much to learn from the history of Africa outside of South Africa. Since abuse of executive power has been a particular post-independence problem, his new paper is especially welcome: Presidential Power in Comparative Perspective: The Puzzling Persistence of Imperial Presidency in Post-Authoritarian Africa. Here's the abstract:

One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime - the imperial presidency - has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world's newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, since 1990, a dramatic transition to democratic rule that has resulted in the toppling of many of the region's long-reining autocrats and the installation of new counter-authoritarian constitutions. However, following the global trend, Africa's longstanding tradition of imperial presidency has survived these recent constitutional changes.

Refuting “cultural” explanations rooted in notions of African exceptionalism, the Article traces the rise of imperial presidency in Africa to authoritarian conceptions and policies of “national integration” and “development” embraced by Africa's postcolonial leadership in the founding moments of the 1960s and identifies ways in which the structure of colonial rule and certain influential models of presidential power may have influenced agency in the direction of authoritarianism. Examining why the phenomenon of imperial presidency has survived recent constitutional reforms, the Article uncovers omissions and shortcomings in Africa's contemporary constitutional design and democratic project that have enabled the force of path dependency to undermine prospects for constitutionalism. The Article offers some tentative constitutional reform proposals to tame presidential supremacy in Africa and thereby enhance constitutionalism in Africa's emerging democracies.

Commentary on Myanmar

Yes, I know, this is a history blog, but tomorrow's history is being made today in Myanmar. Perhaps, like me, you're looking for something beyond the news headlines. Commentary by leading academic experts on the region is being collected at New Mandala, a blog on Southeast Asia. Check the main page as well for updates. Hat tip.

And from a reader, there is information at The Buddhist Peace Fellowship. Click on action alerts.

Update: Ralph Luker has a roundup of sources, including a link to TimesOnLine's links to Burmese bloggers.

[Technical note: The TimesOnLine link is not working for me right now. Could be my connection, so I am providing anyway. I will not be able to update/correct for some time. Sorry for the inconvenience. If you find a better link, and can paste it into a comment, other readers will appreciate that.]

Woodrow Wilson Dissertation Fellowships

Two excellent fellowship opportunities for legal history graduate students are available from the Woodrow Wilson Fellowship Foundation. The first is a modest amount for research expenses. The second is designed to fund a year for dissertation writing.

The Woodrow Wilson Dissertation Fellowship in Women’s Studies encourages original and significant research about women that crosses disciplinary, regional, or cultural boundaries. Previous Fellows have explored such topics as transnational religious education for Muslim women, the complex gender dynamics of voluntary marriage migration, women’s role in African-American adult literacy, women’s sports, militarism and the education of American women, and the relationship between family commitments and women’s work mobility.

Deadline: October 9, 2007. Fellows receive $3,000 to be used for expenses connected with the dissertation. More information and application instructions are here.

The Charlotte W. Newcombe Doctoral Dissertation Fellowships are designed to encourage significant study of ethical or religious values in all fields of the humanities and social sciences, and particularly to help Ph.D. candidates in these fields complete their dissertation work in a timely manner. In addition to topics in religious studies or in ethics (philosophical or religious), dissertations appropriate to the Newcombe Fellowship competition might explore the ethical implications of foreign policy, the values influencing political decisions, the moral codes of other cultures, and religious or ethical issues reflected in history or literature.

Deadline: November 5, 2007. 28 Fellows will receive $23,000 for 12 months of full-time dissertation writing; in addition, their graduate schools will be asked to waive tuition and/or remit some portion of their fees. More information and application instructions are here.

A number of legal historians have written their dissertations with the assistance of a Newcombe (including me -- before my work took a more serious Cold War turn, and I was exploring the way Topeka, Kansas came to terms with its role in Brown v. Bd of Ed). This is a great source for legal history work that engages ethics, values and religion. Be sure to address the way your dissertation addresses these issues in your application.

Fletcher, On Black Freedmen and Indian Children

Matthew L.M. Fletcher, Michigan State University College of Law, compares the history of African Americans and American Indians, and examines intersections and implications, in a new paper, On Black Freedmen and Indian Children. Here's the abstract:

In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap - and conflict - with those of African Americans. Two ongoing debates shed light on this question. First, the Cherokee Nation of Oklahoma's vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments. Second, Randall Kennedy's allegation that the Indian Child Welfare Act is a racist and counterproductive exercise in social engineering feeds judicial and political resistance to the Act. These controversies highlight a serious problem in Indian-Black political and social relationships - the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The federal law established as a reaction to Black-White racism - the Reconstruction Amendments, federal civil rights statutes, and federal case law - expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law - tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture

Stinneford on The Original Meaning of "Unusual": The 8th Amendment as a Bar to Cruel Innovation

John F.G. Stinneford, Florida Coastal School of Law, has posted a new article, The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation. It is forthcoming in the Northwestern University Law Review. Here's the abstract:

Very briefly, my argument is that the word “unusual” was a term of art that referred to government practices that deviate from “long usage.” Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed “long usage” - that is, whether is was continuously employed throughout the jurisdiction for a very long time. The opposite of a practice that enjoys “long usage” is an “unusual” practice, or an innovation. The word “unusual” is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty.

The implications of recognizing the original meaning of “unusual” are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes. Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration - a punishment practice that fell out of usage in England in the 13th century. Such new punishments are often highly popular, and by that measure they comport with current “standards of decency,” which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment. Without a renewed recognition of the significance of the word “unusual,” courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion.

Taking Legal History Courses Won't Impair Bar Exam Results

This seems an implication of a new study, finding no connection between curricular choice and bar results, discussed here, here and here.

From Freakonomics:

Douglas Rush, a former lawyer and assistant dean at the St. Louis University Law School (he’s currently working toward a Ph.D. in higher education), has been gathering research on this question. He and his co-author, St. Louis Univ. research methodology associate professor Hisako Matsuo, have written the paper “Does Law
School Curriculum Affect Bar Examination Passage?” scheduled for publication in the upcoming Journal of Legal Education. In it, Rush writes:

The “conventional wisdom” among law school faculties and deans is that law students, especially law students who academically rank low in their class, should take as many of the courses whose subject matter is tested on state bar exams (i.e. contracts, torts, property, etc.) as possible in order to improve their chance of passing state bar exams…. Many law schools mandate that low-ranked law students take these courses in their second and third years of law school in the belief that doing so increases the ability of those students to pass state bar examinations.

To test this theory, Rush and Matsuo documented every student’s courseload for five different graduating classes at the St. Louis Law School, analyzing the number of bar topic courses taken against bar passage rates the first time the students sat for the exam. Their results were unequivocal: no relationship existed between law school courseloads and the passage rate of students ranked in the first, second or fourth quarters of their law school class, while only a weak relationship existed for students who ranked in the third quarter. Overall, Rush writes, “students in the upper two quartiles passed the exam at an extremely high rate and those in the fourth quartile failed at a high rate, regardless of which classes they took in law school.” The researchers repeated the test in 2007 using data from the Hofstra University School of Law, with identical results (which do not appear in the study).

I have often heard struggling students, steered into bar courses, complain that they are blocked from taking the courses that drew them to law school in the first place. Perhaps law schools need to tailor their academic advising for at-risk students. Immigration law, poverty law or civil rights law may not be on the bar, but they may engage more intensely a student who wants to enter the legal profession to work in those areas. What about so-called "enrichment" courses like legal history? Especially if a student takes seminars where they are more likely to engage in class discussion, or takes courses with faculty-supervised writing requirements, these courses have something to offer our at-risk students.

Law schools should do what they can to improve bar results. If the focus is on skills (including critical thinking and writing), rather than bar subjects, many law schools should welcome at-risk students back into the law & humanities curriculum.

One historian, no legal scholars, among this year's MacArthur Awards

Jay Rubenstein, Associate Professor, Department of History, University of Tennessee, author of Guibert of Nogent, Portrait of a Medieval Mind (2002), is the only historian to be awarded a MacArthur "genius" award this year. No legal scholars are on the list, announced today. Hat tip.

Bradley on The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization

Curtis A. Bradley, Duke, has posted a new essay, The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization. It is forthcoming PRESIDENTIAL POWER STORIES (Christopher H. Schroeder & Curtis A. Bradley eds.,). Here's the abstract:

In Ex parte Milligan, decided a year after the end of the Civil War, the Supreme Court held that the U.S. military had lacked the constitutional authority during the war to try U.S. citizens living in Indiana before a military commission. Milligan is often cited as a rare and admirable instance in which the Supreme Court invalidated Executive action during wartime in order to protect civil liberties, and it is frequently invoked in challenges to government action in the current war on terrorism. The precedential effect of Milligan, however, is far from clear. Part of the uncertainty stems from the decision's apparent inconsistency with widespread practices during and immediately after the Civil War, including most notably the use of military commissions to try thousands of individuals not formally associated with the Confederate army. Probably because of the particular way in which the government argued the Milligan case - focusing on the bounds of martial law rather than on military jurisdiction over violations of the laws of war - the Court in Milligan did not discuss this widespread military commission practice, and it is unclear to what extent the Court meant to repudiate it. The Supreme Court's subsequent treatments of Milligan only add to the uncertainty about its scope. The Court has construed Milligan as applying only to the military detention and trial of “non-belligerents,” but neither Milligan nor the subsequent decisions provide a clear line for distinguishing between belligerents and non-belligerents. One possible approach would be to limit military jurisdiction to individuals covered by the international laws of war, but one problem with this approach is that the petitioners in Milligan were in fact charged with and convicted of violating the laws of war. The difficult issues of military jurisdiction that were present during the Civil War turn out to be with us still today.

Bales on Explaining the Spread of At-Will Employment

Richard A. Bales, Northern Kentucky University, has posted a new article, Explaining the Spread of At-Will Employment as an Inter-Jurisdictional Race-to-the-Bottom of Employment Standards. It is forthcoming in the Tennessee Law Review. Here's the abstract:

The at-will employment rule is often attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain economically competitive with the early-adopters, and industrialized states would have been compelled to adopt the rule to maintain their competitive advantage in the labor market. The adoption of the at-will rule by a handful of underindustrialized states, therefore, precipitated an inter-jurisdictional race-to-the-bottom in employment standards, culminating in the universal adoption of the at-will rule.

Though the focus of this essay is on labor market conditions that existed as the United States was transitioning from a local to a national economy, the implications resonate today as the United States transitions from a national to an international economy, and attempts to avoid a competitive “race to the bottom” with developing countries that are using low wages and un- or under-regulated working conditions to gain an advantage in the global labor market.

Stout on Why We Should Stop Teaching Dodge v. Ford (1919)

Lynn A. Stout, UCLA, has posted a new paper, Why We Should Stop Teaching Dodge v. Ford. Here's the abstract:

What is the purpose of a corporation? To many people the answer to this question seems obvious: corporations exist to make money for their shareholders. Maximizing shareholder wealth is the corporation's only true concern, its raison d'etre. Devoted corporate officers and directors should direct all their efforts toward this goal.

Some find this picture of the corporation as an engine for increasing shareholder wealth to be quite attractive. Nobel Prize-winning economist Milton Friedman famously praised this view of corporate purpose in his 1970 essay in the New York Times, The Social Responsibility of Business Is to Increase Its Profits (Friedman 1970). To others, the idea of the corporation as a relentless profit-seeking machine seems less appealing. In 2004, Joel Bakan published The Corporation: The Pathological Pursuit of Profit and Power, a book accompanied by an award-winning film documentary of the same name. (Bakan 2004). Bakan's thesis is that corporations are indeed dedicated to maximizing shareholder wealth, without regard to law, ethics, or the interests of society. This means, Bakan argues, corporations are dangerously psychopathic entities.

Whether viewed as cause for celebration or for concern, the idea that corporations exist only to make money for shareholders is rarely subject to challenge. (Although there is a tradition of scholarly debate on this point among legal academics, it has attracted little attention outside the pages of specialized journals.) (Stout at 1189-90 (2002).) Much of the credit - or perhaps more accurately, the blame - for this state of affairs can be laid at the door of a single judicial opinion. That opinion is the 1919 Michigan Supreme Court decision in the case of Dodge v. Ford Motor Co.

Reviewed: Collin, The Time of the Rebels (on the Serbian youth uprising since 1998)

The Time of the Rebels by Matthew Collin (Serpent's Tail) is reviewed for The Guardian by John Savage. This book about a youth revolution is not about the 1960s, but about the past decade. Savage writes:

At dawn on October 5 2000, thousands of young Serbs descended on Belgrade, the capital of Slobodan Milosevic's regime. Some had armed themselves with petrol bombs and clubs, others were intent on less violent forms of protest: when one group met a roadblock on the edge of the city, they simply lifted the policemen - who had disobeyed their orders to fire on the protesters - and dumped them by the side of the road.

The protesters were determined on one thing: the president must go. Despite the fact that the democratic candidate, Vojislav Kostunica, had attained a majority in the presidential election, Milosevic refused to step down. Once in Belgrade, these young activists - marshalled by "urgent electronic beats" - made for the Serbian parliament. Bursting through police lines, they set the building ablaze. On the next day, Milosevic admitted defeat.

The vanguard in this extraordinary display of people power - as thousands upon thousands of Serbs took to the streets of Belgrade - were members of a youth movement called Otpor ("resistance"). Originating in 1998 - the year that Milosevic had tightened the regime's control over the universities - this loose, shadowy group had avoided conventional politics in favour of snappy sloganeering, absurdist gestures (derived from Monty Python) and outright mockery.

Inspired by western youth culture and revolutionary theorists such as Gene Sharp - whose book From Dictatorship To Democracy lists 198 peaceful ways to resist and undermine dictatorships - Otpor aimed at nothing less than "a revolution in the mind". The sense of possibility that they sought to awaken both harked back to 1968 - "the year of the barricades" in Paris, Warsaw, Prague and Belgrade - and projected forward into the 21st century.

The Time of the Rebels traces Otpor's influence on the peaceful revolutions that swept through the former Soviet Union in the first few years of the current decade. In each case, the agenda was the same: fury at institutionalised corruption and repression, and a deep longing for democracy. For those involved it was a heady time, as they stepped over the line between acquiescence and resistance. "All my previous life," one young female activist remembered, "was now going away, like the sand through my fingers."...

Savage concludes:

Despite its bare bones production - no map, no index, no photos - The Time of the Rebels is a serious work that is an important addition to youth literature....It also suggests a whole new field for youth historians - there is still no survey in English of post-revolutionary Soviet youth movements and culture.

The full reveiw is here.

Reviewed: Ulrich, Well-Behaved Women Seldom Make History

Well-Behaved Women Seldom Make History, by Laurel Thatcher Ulrich (Knopf), is reviewed in today's Boston Globe by Sharon Ullman. She writes:

When Laurel Thatcher Ulrich published "A Midwife's Tale" in 1991, the quiet revolution taking place in the academy went fully public. Discovering the history of women and entering it into the stories we tell ourselves about the past had been the focus of intense agitation by feminist activists since the late 1960s. By the mid-1970s, a rising number of women were entering history PhD programs for the first time in a generation. Many began to research, write, and almost literally force open the historical doors.

Ulrich was one of those pioneers. Many more followed in their wake. History departments changed, course curricula expanded, and the study of history itself altered forever. Yet, based on the bestseller lists, one might think history was simply a series of battles and be unaware that something else was afoot in universities across the country. Then came "A Midwife's Tale." With this beautifully written excavation of a decidedly average woman's daily life in Colonial America, Ulrich produced not only a Pulitzer and Bancroft Prize-winning volume, but also a bestseller that enchanted a popular audience thrilled to read about women's lives in the distant American past.

Her new book, "Well-Behaved Women Seldom Make History," carries a familiar title. You've probably seen it on T-shirts, bumper stickers, and coffee mugs. In the 1990s, it became a feminist slogan, used to exhort women to be . . . well, less polite. But it was Ulrich who actually wrote that phrase in a 1976 essay, and her meaning was somewhat different. She wasn't urging women to take to the streets; instead she was calling on herself - and other historians - to look more closely at those women who did not. Yet the phrase took on a life of its own, one Ulrich bemusedly documents in the opening chapter of this engaging exploration into the implications of her now-famous remark.

Continue reading here.

Reviewed: Ken Burns' "The War"

"World War II didn’t happen just to us," writes Alessandra Stanley in the New York Times, in a review of the new Ken Burns documentary, The War, which will be shown beginning Sunday night on most PBS stations.

But it would be hard to glean that from Ken Burns’s 7-night, 15-hour tribute to the greatest generation that ever bought war bonds, joined the Marines or tightened rivets on a B-17 Flying Fortress.

The London blitz, Stalingrad, Bergen-Belsen and the Warsaw uprising are parentheses in this respectful, moving and meticulously illustrated anthology of small-town lives turned upside down by what one elderly veteran calls “a necessary war.”

The war was necessary, but is this approach?

The tone and look of Mr. Burns’s series, which begins Sunday on PBS, is as elegiac and compelling as any of his previous works, but particularly now, as the conflict in Iraq unravels, this degree of insularity — at such length and detail — is disconcerting. Many a “Frontline” documentary has made a convincing case that the Bush administration’s mistakes were compounded by the blinkered thinking of leaders who rushed to war without sufficient support around the world or understanding of the religious and sectarian strains on the ground. Examining a global war from the perspective of only one belligerent is rarely a good idea.

The rest is here. The PBS website for The War is here. Find out when the series will be shown in your area here.

Update: Ralph Luker collects more reviews at Cliopatria. The accompanying book, The War: An Intimate History, 1941-1945, by Geoffrey C. Ward and Ken Burns (Knopf), is reviewed in the Philadelphia Inquirer.

Corbacho on Prenegotiation and Mediation: The Ango-Argentine Diplomacy After the Falklands/Malvinas War

Alejandro Corbacho, Universidad del CEMA, Argentina, has posted a new paper, Prenegotiation and Mediation: The Anglo-Argentine Diplomacy After the Falklands/Malvinas War (1983-1989). Here's the abstract:

This paper studies the process of prenegotiation and the role of mediators during the negotiations between the Argentine and British governments about the dispute over the sovereignty of the Falkland/Malvinas Islands from immediately after the war of 1982 to 1990. In this period, the relationship between both governments evolved from rupture and no-relations to the agreement on the conditions to negotiate the renewal of full diplomatic relations concluded in early 1990. In a preliminary process of prenegotiation, the governments of Switzerland, initially, and the United States played a role in helping to reach an agreement.

The former failed when the talks ended abruptly in July 1984. The latter succeeded in getting both parties to the table and keeping them there, thus avoiding a potential rupture until the two parties reached an agreement in principle.

During the prenegotiation stage, the principal parties were able to reduce the risks of escalation; they defined and narrowed the boundaries of the dispute, clearly identified the trade-offs, and structured the agenda of formal negotiations. Consequently, the likelihood of successful negotiation improved significantly when the parties reach an agreement during prenegotiation on what will be discussed later.

This case also illustrate that sometimes, when negotiations reach a point of stalemate, a mediator can help to find a “zone of agreement.” When this situation occurs, the degree of involvement and the resources of the mediator are particularly important. Finally, this case confirms the assertions that effective mediation is more a matter of leverage and influence than a matter of impartiality.

More fall books: NY Sun & Chicago Trib

Fall book previews from the New York Sun and Chicago Tribune (scroll to pp. 6-7).

Noted previously: recommendations from the Boston Globe, Washington Post and the San Francisco Chronicle.

Princeton Library Research Grants

Each year, the Friends of the Princeton University Library offer short-term Library Research Grants to promote scholarly use of the research collections. The Program in Hellenic Studies also supports a limited numberof Library Research Grants in Hellenic studies, and the Cotsen Children's Library supports research in its collection on aspects of children's books. The Maxwell Fund supports research on materials dealing with Portuguese-speaking cultures.

These Library Research Grants, which have a value of up to $2,500 each, are meant to help defray expenses incurred in traveling to and residing in Princeton during the tenure of the grant. The length of the grant will depend on the applicant?s research proposal, but is ordinarily one month. Library Research Grants awarded in this academic year are tenable from May 2008 to April 2009, and the deadline for applications is 15 January 2008.

Details are here.

Reid on the Rights of Children in Medieval Canon Law

Charles J. Reid, Jr., Univ. of St. Thomas School of Law, has posted a new paper, The Rights of Children in Medieval Canon Law. Here's the abstract:

This article considers the medieval uses of the language of rights to describe the legal status of children. It begins with the late antique Christian campaign against the ubiquitous pagan population-control measure of infant exposure. Christian jurists and emperors outlawed the ancient Roman “right of life and death” that the Roman patriarchal father exercised over his offspring. The article considers measures the Church sought to put in place to see to the needs of abandoned children in the early middle ages. It also considers the development in the high middle ages of canonistic devices to enforce the right of children born out of wedlock to obtain support from their fathers. The article also considers two basic freedoms adolescent children and young adults possessed, vis a vis their parents. Children had the right to seek their own marriage partner, free from outside coercion, including especially parental coercion. They also had the right to seek a vocation within the Church (although no one has a right to ordination or to monastic profession, individuals at least have the right to be free from parents preventing such a choice from being made). The article uses as a case study the struggle Thomas Aquinas was forced to fight with his family, who did not wish him to pursue a vocation with the Dominican Order.

Steinberg on The Uses and Misuses of Fourth Amendment History

David E. Steinberg, Thomas Jefferson School of Law, has posted a new paper, The Uses and Misuses of Fourth Amendment History. Here's the abstract:

Modern Fourth Amendment decisions have resulted in a doctrine that often seems arbitrary and incoherent. Given the unsatisfactory quality of Fourth Amendment doctrine, attorneys and scholars have demonstrated a renewed interest in the original understanding and historical origins of the Fourth Amendment. This article describes common misconceptions about Fourth Amendment history, and concludes that the framers enacted the Fourth Amendment solely to regulate house searches.

Mainstream analysis asserts that the framers of the Fourth Amendment intended to impose both a warrant preference rule, and a general reasonableness requirement on all searches and seizures. However, state and federal law in early America authorized warrantless searches in the vast majority of situations. Further, historical evidence strongly suggests that the Fourth Amendment did not intend to adopt any general reasonableness requirement. For example, in early ship seizure cases that came both the United States Supreme Court, neither the attorneys nor the Justices even mentioned the Fourth Amendment.

Professor Akhil Amar has developed one of the primary alternative readings of Fourth Amendment history. According to Professor Amar, the framers of the Fourth Amendment viewed warrants as dangerous, and enacted the Fourth Amendment to limit the use of warrants.

Contrary to Professor Amar's interpretation, historical evidence indicates that the framers only sought to prohibit general warrants – warrants issued with little evidentiary support, which did not restrict the places that law enforcement officers could search. The historical record does not suggest that the framers sought to impose similar limits on specific warrants. In fact, several early federal and state statutes actually required specific warrants. These statutes contradict Professor Amar's claim that the framers sought to limit the use of all warrants -- both general warrants and specific warrants.

Other scholars argue that courts should not consider Fourth Amendment history, either because the original understanding of the amendment is impossible to determine, or because changed circumstances make this history of little relevance to current controversies. However, scholars have not demonstrated that the original understanding of the Fourth Amendment is shrouded in uncertainty. In addition, scholars have offered few coherent analytical alternatives that could replace historical analysis.

Actually, an objective review of historical sources yields an original understanding of the Fourth Amendment that is both surprisingly clear, and surprisingly different from most contemporary readings. Historical sources demonstrate that the framers were focused on a single, narrow problem -- physical trespasses into houses by government agents. In his influential argument in Paxton's case, attorney James Otis complained in 1761 that British custom officials armed with a general warrant “may enter our houses when they please -- may break locks, bars and every thing in their way -- and whether they break through malice or revenge, no man, no court, can inquire . . . .” Otis's clients were merchants who owned ships, warehouses, and shops. But Otis did not challenge searches of ships or commercial premises – only searches of houses. Similarly, in a 1774 address to the American people, the Continental Congress protested against the power of British customs officers “to break open and enter houses without the authority of any civil magistrate founded on legal information.”

The Fourth Amendment was enacted to regulate house searches through a precise, bright-line rule. Before entering a house, law enforcement officers typically would need to obtain a specific warrant. But what about searches or seizures that did not involve a physical trespass into a house? Outside of house searches, the Fourth Amendment was simply inapplicable.

Lacey, From Moll Flanders to Tess of the D'Urberviles: Women, Automony and Criminal Responsibility in Eighteenth and Nineteenth Century England

Nicola Lacey, London School of Economics, has posted a new paper, From Moll Flanders to Tess of the D'Urbervilles: Women, Autonomy and Criminal Responsibility in Eighteenth and Nineteenth Century England. Here's the abstract:

In the early 18th Century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. In this paper, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century England. Drawing on law, literature, philosophy and social history, I argue that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women. I focus in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about gender, social order and individual agency.

Douglas on Justice Kriewaldt, Aboriginal Identity and the Criminal Law (in Austrialia)

Heather Douglas, University of Queensland, has posted a new essay, Justice Kriewaldt, Aboriginal Identity and the Criminal Law. It appeared in the Criminal Law Journal. Here's the abstract:

The criminal justice system continues to encounter dilemmas about how it can appropriately accommodate Aboriginal Australians. Justice Martin Kriewaldt was a judge of the Northern Territory Supreme Court from 1951 – 1960. Little has been written about his legacy however his influence is important and his views continue to inform current debates in criminal justice. During his period on the bench Kriewaldt J frequently struggled with the question of how to understand and distinguish Aboriginal people in relation to the criminal law. This article examines some of the reported and unreported judgements of Kriewaldt J and focuses attention on Kriewaldt J's attempts to identify Aboriginal people in relation to the criminal law.

Radan on The Legacy of the Scopes Trial

Peter Radan, Macquarie University, has posted a new paper, From Dayton to Dover: The Legacy of the Scopes Trial. Using Scopes as an example, the essay takes up the issue of the courts vs. the legislature in American "culture wars." Here's the abstract:

Since the Scopes Trial in 1926 the teaching of evolution in American public schools has been at the forefront of America's culture wars which have largely been fought in the context of the American Constitution's guarantee of separation of church and state. Attempts to ban evolution, although initially upheld, were struck down in the 1960s. Subsequent attempts to mandate the teaching of alternative points of view, most recently the theory of intelligent design, have been rejected as unconstitutional by the American courts. This issue has also fostered debate on the broader issue of whether culture war issues should be resolved by the courts through the process of judicial review or whether legislatures should have the final say in conformity with principles of democratic majoritarianism. The latter approach would require a significant change in the current interpretation of the First Amendment religion clauses.

Amalia Kessler, Stanford, with a Ryskamp, is only law prof awarded an ACLS this year

Amalia D. Kessler, Stanford Law School, with a Ryskamp Fellowship from the American Council of Learned Societies, is the only law professor to be awarded an ACLS Fellowship for 2007. There were no "regular" ACLS fellowships to law faculty (last year there was one). Giddeon Yaffe, whose principal appointment is in the USC Dept. of Philosophy and has a secondary appointment at USC Law School, was also awarded a Ryskamp. Ryskamp Fellowships go to advanced assistant professors and untenured associate professors in the humanities and related social sciences. All ACLS awards are fiercely competitive.

This news is not new. The awardees were notified last spring. But this information has only just recently been released via the ACLS website.

The deadline for next year's fellowships is October 3. Fellowship programs are described on the ACLS webpage.

I'm listing the legal history-related ACLS Fellowships, Ryskamps and Burkhardt's below. Although the news was not so good for law faculty applicants, the results are promising in another respect. Look at how much law is being done in other parts of the academy. Interest in legal history may well be spread across departments on your campus.

ACLS Fellowships

Benadusi, Giovanna, Associate Professor, European History, University of South Florida
Visions of the Social Order: Women's Last Wills, Notaries, and the State in Baroque Tuscany

Ely, Melvin Patrick, Professor, History and Black Studies, College of William and Mary
A Horrible Intimacy: Whites and Enslaved Blacks in Old Virginia

Ergene, Bogac, Associate Professor, History, University of Vermont Professor Ergene has been designated an ACLS/SSRC/NEH International and Area Studies Fellow. Class, Court, and Justice in the Ottoman Empire, 1685-1794

Freeman, Joanne B., Professor, History, Yale University
Professor Freeman has been awarded a joint ACLS/New York Public Library Fellowship.
"The Field of Blood": The Culture of Congress in Antebellum America

Guang, Lei, Associate Professor, Political Science, San Diego State University Justice at the Margin: Aggrieved Citizens, Nervous Officials, and the Making of Petitions as a Political Institution in China

Kelleher, Marie A., Assistant Professor, History, California State University, Long Beach The Measure of Woman: Law and Female Identity in Medieval Spain

Kramer, Paul A., Associate Professor, History, University of Iowa (Dr. Kramer was Associate Professor, History, University of Michigan, Ann Arbor at the time of the award.) Migration, Citizenship, and Empire in the Interwar Pacific

Parthasarathy, Shobita, Assistant Professor, Science and Technology Studies, University of Michigan, Ann Arbor Crisis at the Patent Office: Rethinking Governance of Biotechnology in the United States, Europe, and on the Global Stage

Ryskamp Fellowships (for advanced assistant professors and untenured associate professors in the humanities and related social sciences)

Hoffman, Katherine E., Assistant Professor, Anthropology, Northwestern University
Mirror of the Soul: Language, Islam, and Law in French Native Policy of Morocco (1912-1956)

Jiang, Yonglin, Assistant Professor, History, Oklahoma State University
Negotiating Justice: Local Adjudication and Social Change in Late Imperial China

Kessler, Amalia Deborah, Associate Professor, Law and History, Stanford University American Exceptionalism and the Forgotten Tradition of Equity, 1814-1912

von Dassow, Eva M., Assistant Professor, Ancient Near Eastern History, University of Minnesota, Twin Cities Freedom and Rights in the Ancient Near East

Yaffe, Gideon D., Associate Professor, Philosophy and Law, University of Southern California Trying and Attempted Crimes

The Frederick Burkhardt Residential Fellowships for Recently Tenured Scholars

Self, Robert O., Associate Professor, History, Brown University
The Politics of Gender and Sexuality in the United States from Watts to Reagan

Harvard Law School Legal History Colloquium, Fall Schedule

The Harvard Law School Legal History Colloquium is pleased to announce its Fall 2007 schedule.

All meetings are Thursdays, 5-6:30, in Hauser 101, Harvard Law School

Thursday, September 20

Paul Halliday and G. Edward White, University of Virginia
"The Suspension Clause: English Text, Imperial Contexts, and American Implications."

Thursday, October 18

Tomiko Brown-Nagin, University of Virginia
“Seeking Redress in the Streets: The Student Movement’s Challenge to Pragmatism and Legal Liberalism, 1960-61.”

Thursday, November 29

Dylan Penningroth, Northwestern University
“African American Divorce in Virginia and Washington, DC, 1865-1930.”

For additional information, please contact the chair of the colloquium, Jed Shugerman at jshugerman@law.harvard.edu), or the two Raoul Berger/Mark DeWolfe Howe Legal History Fellows, Cynthia Nicoletti (Harvard Law JD, History PhD candidate at Virginia) at cnicolet@law.harvard.edu, and Owen Williams (Yale Law MSL, History PhD candidate at Yale) at r.owen.williams@yale.edu.

Note: you should contact them before attending. That's the way to get a copy of the paper, which should be read in advance.

Harvard Law School is at 1563 Massachusetts Avenue, Cambridge, MA. Directions are here.

Witte on The Protestant Foundation of Rights and Revolution

John Witte, Jr., Emory, has posted a new article, Rights, Resistance, and Revolution: The Protestant Foundations of Rights and Revolution. It is forthcoming in the Law and History Review. Here's the abstract:

This article discusses the development of rights talk in the pre-Enlightenment Protestant tradition, especially as formulated by the sixteenth-century Calvinist theologian and jurist, Theodore Beza. Responding to the horrific persecution born of the St. Bartholomew's Day Massacre of 1572, Beza mobilized classical, Catholic, and Protestant sources alike to develop a coherent Calvinist theory of rights, resistance, and revolution against tyrants. This article details Beza's arguments, places his work in its historical and intellectual context, and highlights the innovations Beza contributed to the intersection of legal, political, and theological teachings. It concludes by showing how Beza's theory of subjective rights and resistance to tyranny helped to plot the course of modern democratic and constitutional theory.

Delahunty and Yoo on Making War

Robert J. Delahunty, University of St. Thomas, and John C. Yoo, U.C. Berkeley, have posted a new essay, Making War. It is a comment on Saikrishna Prakash, "Unleashing the Dogs of War: What the Constitution Means by 'Declare War.'" Both pieces are forthcoming in the Cornell Law Review.

As an aside: An interesting feature of the essay is that it draws upon "small wars" in early U.S. history in support of an argument that the power to declare war has not been solely lodged in Congress since the founding. Attention to "small wars" can also serve a different purpose. It helps us to see that the lines between "wartime" and "peacetime" are blurry, making an assumption that wartime is an exceptional time, and war powers necessarily temporary, problematic. If war, and war powers, are more ubiquitous than we might have thought, perhaps that cuts in favor of more vigilant attention to the way wars and war powers can undercut democratic government.

Here's the Delahunty and Yoo abstract:

Presidents have long initiated military conflict without specific congressional authorization. For large wars, this practice extends at least as far as the Korean War, if not further, and for smaller conflicts, the practice can be traced to the very first administrations. During the Vietnam War, academic critics turned to the original intent of the Constitution's Framers to argue that this form of war-making was illegal. This view became the governing consensus through the 1970s and 1980s, and reached its culmination in books by John Hart Ely, Louis Fisher, Michael Glennon, and Harold Koh, among others. Simply put, they conclude that Congress's power to “declare war” gives it the full and plenary authority to decide whether to initiate military hostilities abroad, except in cases of self-defense.

Originalists have quarreled about war powers ever since. We have argued that the original understanding does not prove that modern practice is illegal. If anything, the best reading of the text finds significant support for presidential initiative in war. Unleashing the Dogs of War represents the latest step in the originalist discourse. Professor Prakash maintains that we can infer the Constitution's allocation of war powers through a broad survey of the eighteenth-century use of the phrase “declare war.” This approach, he claims, yields more support for the conventional wisdom than originalists have commonly thought. Prakash has made an important contribution by bringing more historical sources to bear on the question of the original understanding of war powers.

In this Comment, we carry the dialogue further. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure already gives Congress more than enough constitutional authority through the creation and funding of the military, a power that was all the greater in the eighteenth century when the United States had no standing army or navy. Second, we address Prakash's use of the historical sources and argue, in short, that he has thrown his net too wide. Accumulating statements where some diplomats and government officials used the phrase “declare war” in a broad sense ignores the use of the phrase in a constitutional setting. Examination of the important antecedents to the Constitution, developments in eighteenth-century American constitutional thought, and the broader intellectual understanding of war and international law during the ratification period shows that “declare war” does not bear the meaning that Prakash claims. We close with a more complex account of early war-making under the Washington and Jefferson administrations, an account that yields different lessons from those that Prakash has elicited. We think that, when analysis is applied to evidence, the historical data weigh against the modern approach to war powers.

How to Get a Fellowship

Since it is fellowship season, I thought I would post links to earlier posts you may have missed:

How to Get a Fellowship: Tips for Law Faculty

And more advice here.

One thing to think about: I have heard from many of you. You are all applying for the same thing. The best way to ensure success is to apply for something that everyone else is not applying for.

Many deadlines are yet to come, but some will be very soon. Get help from a grants officer on campus. Join the American Historical Association to gain access to their searchable database. Keep an eye out for announcements on this blog and others. And with the high-profile national fellowships, don't be discouraged if you aren't successful the first time around. One Guggenheim fellow for 2007-08, a poet, applied every year for 20 years (not recommended!) before hitting the jackpot.

Best of luck!

Blogline of the week

The Blogline of the Week Award, if there is such a thing, goes to Anil Kalhan at Dorf on Law for BREAKING NEWS: Chemerinsky to Serve As PM in Power-Sharing Accord With Musharraf.

The post, however, is not a humorous take on the successful resolution of the U.C. Irvine Law School controversy, but immediately turns to important, and of course sober, events in Pakistan (in which Erwin Chemerinsky is not involved.)

Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court

Political Scientists Chris W. Bonneau,University of Pittsburgh, Thomas H. Hammond, Michigan State University, Forrest Maltzman, George Washington University, and Paul J. Wahlbeck, George Washington University, have posted a new article, Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court. It is forthcoming in the American Journal of Political Science. Here's the abstract:

Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process, and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision-making during the Burger Court (1969-1986). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo.

Barrett on A Theory of Procedural Common Law

Amy Coney Barrett, Notre Dame, has posted a new article, A Theory of Procedural Common Law. It is forthcoming in the Virginia Law Review. Here's the abstract:

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called “procedural common law” - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.

This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the “enclave” theory advanced in the context of substantive common law: the constitutional structure preempts the state's ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III's grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.

Garrow on Toobin, The Nine

David Garrow, Cambridge University, has a sharp review of Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court in today's Los Angeles Times, taking him to task for relying heavily on anonymous sources and, Garrow says, ignoring contrary archival evidence and on-the-record sources, resulting in a book that "showcases debatable opinions rather than thorough research or original reporting." Ouch! Here's a sample:

In recent years, any high court ruling citing legal developments elsewhere in the world has drawn angry condemnation from Justice Antonin Scalia and a host of conservative politicians and commentators. Toobin asserts that foreign contacts have had "a profound impact on the Court," pushing it "and especially Kennedy -- to the left." But he fails to square this claim with Kennedy's decisive votes during the most recent term, which undeniably turned the court into what even he calls "a dramatically more conservative institution." Such an exaggerated characterization of Kennedy suggests a calculated desire to invite controversy....

In his epilogue, Toobin disputes Roberts' avowal that judges "are like umpires" and "are not politicians." In fact, Toobin declares, "it is ideology, not craft or skill, that controls the outcome of cases," and "what matters is not the quality of the arguments but the identity of the justices." And since ideology "means everything on the Supreme Court," one factor alone will determine the court's future: "the outcomes of presidential elections." Who will name the successors for the justices most likely to retire next -- Justices John Paul Stevens, Souter and Ginsburg -- is indeed important, but Toobin's insistent reductionism of justices' decision-making to the sole dimension of left-right ideology is far too shallow. Legal scholars such as Harvard's Frederick Schauer warn about pundits' "tendency to exaggerate the Court's importance" and oversimplify its decisions. That admonition is essential when confronted with so purposely provocative a book as "The Nine."

More takes on Toobin are here.

Call for Papers: Law & Humanities Junior Scholar Workshop

For junior law & humanities scholars: This conference is a great way to get serious input on your work-in-progress, and to get to know other interesting people in the field. Highly recommended!

UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the sixth meeting of the Law & Humanities Junior Scholar Workshop to be held at UCLA Law School in Los Angeles, CA on June 8 & 9, 2008.

PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship,as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.

Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 8, 2008, and should be sent by e-mail to:
Center for the Study of Law and Culture
culture@law.columbia.edu
Columbia Law School
435 W. 116th Street
New York, N.Y. 10027
Please be sure to include your contact information.

For more information: Manissa Maharawal, 212.854.2511 or culture@law.columbia.edu. The full text of the Call for Papers is available here.

Tips from the LHB: The blind-review process is rigorous. Be sure your paper is in just the right shape before submitting (e.g. pay attention to the comment about dissertation chapters), and if possible have someone else look at it for you before you submit. Historians: don't forget about the theory/argument. Don't assume the reader will understand the importance of what you've uncovered -- explain why it matters. And show off your research in the notes. Send in your best work.

Porat on From Interest-Based Balancing to Rights-Based Balancing in the Early Days of American Constituitonal Balancing

Iddo Porat, Academic College of Law, Israel, has posted a new paper, From Interest-Based Balancing to Rights-Based Balancing: Two Models of Balancing in the Early Days of American Constitutional Balancing. Here's the abstract:

Balancing tests are ubiquitous in current constitutional law. This Article reviews the development of constitutional balancing over the first five decades of the 20th century and identifies the formation of two types of balancing during these years: interests-based and rights-based balancing. Since these two types of balancing are still present within current constitutional law, this review may also help in better understanding balancing today.

The Article attempts to show how the early development of balancing in the early 20th century by legal Progressives such as Holmes, Pound and Cardozo, was related to their criticism on the jurisprudence of rights, and their emphasis on a jurisprudence of interests. Balancing meant for the Progressives that rights were lowered to the status of interests, and that the Court had to balance them with other interests, rather than use them as trumps against public policy considerations. Later, however, balancing was used hand in hand with a heightened rhetoric of rights. The Article attempts to place the change from interests-based to rights-based balancing in historical context (in the change from the Lochner era to the post Lochner era) and explain its meaning—mainly its correlation with judicial activism (rights-based) and judicial deference (interests-based) and its interrelation with the ideas of judicial formalism and anti-formalism. Finally the Article suggests that the original interests-based model may have been more adapt to the anti-formalist movement from which it sprang, and to the metaphor of balancing itself, than the later rights-based model.