Tamanaha on The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field

Brian Z. Tamanaha, St. John's University School of Law, has posted a new essay, The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field. It was the 2007 Baker & Hostetler Lecture at Cleveland-Marshall College of Law, and is forthcoming in the Cleveland State Law Review. Here's the abstract:

Political scientists and law professors have produced a steady flow of social scientific studies of judicial decision making in the past decade, building upon an already sizable body of research on judging compiled since the 1960s. Virtually all of the studies have the same thrust: to demonstrate that politics infuses judicial decision making. Judges are “politicians in black robes,” political scientists believe, and they are determined to expose the person beneath the robe. Law professors, who joined this enterprise about ten years ago, tend to take the position that law matters more in judicial decision making than political scientists suggest, but many also see politics as playing a large role. Most judges, while acknowledging that their personal views come into play in certain limited contexts, insist that law determines the overwhelming bulk of their legal decisions.

This article will attempt to shake up the established terms of the debate by dispelling a belief that infects it: the belief that judges are deluded or disingenuous about the nature of judicial decision making. As one political scientist put it, “Judges usually speak and write with audiences in mind, and they ordinarily present themselves in a way that they think will be received favorably. Further, they do not always understand their goals fully, and they may mislead themselves as well as their audiences” Even scholars who generously credit judges with honesty about judging nonetheless assert that “judicial self-reporting . . . is unreliable.” This belief is reinforced by implausible statements like Justice Roberts' assertion that judging is like calling balls and strikes.

To counter this common belief, this article will demonstrate that judges have openly and frequently expressed consummately realistic views about law and judging from the late nineteenth century up through the 1960s (and the present). Judges have acknowledged that there are gaps and uncertainties in the law, that they must make choices, and that in certain (limited) contexts their personal views may influence their judicial decisions.

The persistent belief that judges are deluded or duplicitous about judging, I will argue, is tied to a myth that political scientists and law professors have long bought into: the notion that turn of the century judges believed in or espoused “mechanical jurisprudence.” The article will reveal the origins of this myth and show how it warped the orientation of political science studies of judging from the very outset. The article will also challenge a number of other common misperceptions among political scientists and law professors - arguing that Holmes and Cardozo were not pioneers or mavericks among judges in expressing realistic views of the law and judging, and arguing that the legal realists did not view judging as inevitably political.

When this complex combination of misperceptions is unraveled, studies of judging will appear in a different light, almost the opposite of how the findings are viewed by practitioners today. Rather than take each new study as an expose on how politics infuses judging, I will argue that perhaps the proper interpretation of these studies is that they are merely confirming what judges have been saying for many decades.

Frank's Halloween

Frank is home this Halloween taking care of a sick friend (and happy to have an excuse to avoid holiday apparel this time).

Halloween roundup

A few items for your holiday:

From the Trial Advocacy Blog a selected Halloween-related bibliography:

1. The Devil's Disciples: Makers of the Salem Witchcraft Trials / Peter Charles Hoffer. 1996.
2. In the Devil's Snare: The Salem Witchcraft Crisis of 1692 / Mary Beth Norton. 2002.
3. Salem Story: Reading the Witch Trials of 1692 / Bernard Rosenthal. 1993
4.The Story of the Salem Witch Trials: .... / Bryan F. Le Beau. 1998
5. The Salem Witch Trials : a Legal History / Peter Charles Hoffer. 1997
6. Witch-Children : From Salem Witch-Hunts to Modern Courtrooms / Hans Sebald. 1995

The Cleveland Marshall Law Library is having a Halloween research contest. Their questions include:

In Ohio, what is the maximum fine and prison sentence for the offense of abuse of a corpse? If you need a hint, look at Criminal Sentences in Ohio by the Cleveland Law Library.

"Words and Phrases" lists two bankruptcy cases defining "ghost-writing". What are the citations for these cases? (You can also find the answer on Westlaw by using the words-phrases field, but you will get three cases.)

The Wall Street Journal Law Blog has a post on the legal implications of trick-or-treating.

IntLawGrrls notes origins and traditions.

There was that well-timed review of Frankenstein: A Cultural History by Susan Tyler Hitchcock in last Sunday's Washington Post Book World.

Some outstanding Halloween dog costumes.

My personal favorite: Extreme Pumpkins from Feminist Law Professors.

And Halloween thoughts from Al Brophy, including a note on professors in costume.

This year I'm going as a legal historian with an impending final book deadline. Horrifying!

Update: Something truly terrifying: Halloween and taxes.

photo credits: pumpkin, dog.

Arnold on Working out an Environmental Ethic: Anniversary Lessons from Mono Lake

Craig Anthony Arnold, University of Louisville Brandeis School of Law, has posted an article, Working Out an Environmental Ethic: Anniversary Lessons from Mono Lake. It appeared in the Wyoming Law Review. Here's the abstract:

Can environmental law actually achieve environmental conservation or implement an environmental ethic in practice? The environmental movement has been captured by a legal centralist perspective, which asserts that legal institutions and processes are integral to achieving environmental conservation and environmentally ethical behavior.

This article uses a case study of the Mono Lake Committee to explore the role of law in the Committee's success in substantially reducing Los Angeles' water appropriations from Mono Lake's feeder streams and the subsequent restoration of the Lake's unique and valuable environment. The Mono Lake effort is an ideal case study because it involved the landmark case National Audubon Society v. Superior Court, in which the California Supreme Court adopted an innovative legal theory that water rights are subject to the public trust in the environmental conditions of navigable waters. National Audubon has been ranked by legal scholars and environmentalists as among the most important environmental law cases of the twentieth century.

This case study demonstrates that legal institutions and environmental law, while important, are insufficient to achieve actual conservation outcomes, even when environmentalists win major litigation victories. Sustained, effective conservation outcomes depend on: 1) the ecology and psychology of place; 2) public participation, education, and engagement; 3) politics; and 4) creative, collaborative problem-solving. The most significant role of law is to upset settled expectations and entitlements that inhibit innovation and negotiated problem-solving.

This article makes a case for the inter-relationship of multiple forces and factors in achieving environmental conservation and in developing society's environmental ethics. It also makes a case for further multi-disciplinary study using insights from many different disciplines to map the complex interaction of multiple legal, political, social, cultural, psychological, economic, ecological, educational, policy and planning, and ethical forces in environmental conservation.

Photo credit: Mono lake.

Tsesis on The Thirteenth Amendment's Revolutionary Aims

Alexander Tsesis, Loyola University of Chicago, has posted a new essay, The Thirteenth Amendment's Revolutionary Aims. It is forthcoming in his edited collection, PROMISES OF LIBERTY, Alexander Tsesis, ed. (Columbia University Press, Forthcoming). Here's the abstract:

The origins of the Thirteenth Amendment are found as much in the period of American reconstruction, when states ratified it into the Constitution, as they are in the American Revolution. During both eras Americans emphasized the human value of liberty. This chapter explores the notions of liberty that informed congressional debates on the proposed Amendment. It first reflects on revolutionary notions of liberty and then demonstrates how abolitionists relied on them. The chapter next turns to how abolitionist principles animated House and Senate debates about the proposed Thirteenth Amendment. It concludes with an explanation of why the Amendment proved to be inadequate to achieve radical Reconstruction.

ASLH Preyer Scholars

Kathryn T. Preyer Scholars

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 American Society for Legal History, two younger legal historians designated Kathryn T. Preyer Scholars 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 2007 Preyer Scholars are Gautham Rao, a PhD student at the University of Chicago, for "The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth Century America" (forthcoming, Law and History Review) and

Laura Weinrib, a PhD student at Princeton and Harvard Law School graduate for "The Sex Side of Civil Liberties, United States v. Dennett and the Changing Face of Free Speech."

The two 2006 Preyer Scholars were Sophia Lee for "Hotspots in a Cold War: The NAACP's Postwar Labor Constitutionalism, 1948-1964" and

Karen Tani for "Fleming v. Nestor: Anticommunism, The Welfare State and the Making of `New Property."' Both 2006 papers are being published together in a Law and History Review Forum.

Engle on the History of Human Rights, the Transformation of the International Legal System, and more

Eric Allen Engle has recently posted a number papers on SSRN. He lists no affiliation, but can be reached through his SSRN author page. Among his papers are:

Universal Human Rights: A Generational History, appeared in the Annual Survey of International & Comparative Law. Here's the abstract:

Outlines history of human rights as passing through three historical phases with critical commentary as to the limits of that typology.

The Transformation of the International Legal System: The Post-Westphalian Legal Order appeared in the Quinnipiac Law Review. Here's the abstract:

Outlines transformation of the state through localisation of some functions and globalization of others. Concludes the Westphalian state system ended by 1989 at latest.


I Am My Own Worst Enemy: Problems and Possibilities of European Foreign Policy Vis-a-Vis the United States appeared in the St. Thomas Law Review. Here's the abstract:

The European Union (EU) implements a Common Foreign and Security Policy. This paper argues EU Foreign policy is incohesive, but growing more cohesive. The EU poses no threat to U.S. interests; however, poses only limited opportunities for U.S. foreign policy because the U.S. has relentlessly pursued a short-sighted and self-destructive foreign policy since 2002. The paper elaborates this thesis by considering institutional actors and historical experiences. Thus, it provides an overview of the institutional structure of the EU Common Foreign and Security Policy, as well as an overview of historic experiences of EC foreign policy.


Knight's Gambit to Fool's Mate: Beyond Legal Realism, appeared in the Valparaiso University Law Review. Here's the abstract:

Hume has been misinterpreted and never said ought cannot be derived from is. Outlines legal realism. Points out errors of realism.

Arianza on Morse v. Frederick: History, Policy and Temptation

William D. Araiza, Loyola Law School Los Angeles, has posted a new essay, Morse v. Frederick: History, Policy and Temptation. Here's the abstract:

This short Essay, written for a First Amendment Center online symposium on the First Amendment jurisprudence of Clarence Thomas, examines Justice Thomas's concurring opinion in Morse v. Frederick, the 2007 "Bong Hits 4 Jesus" case. In that opinion he called for removing First Amendment protection for student speech and thus for overruling Tinker v. Des Moines School District, on the ground that, as originally understood, "freedom of speech" did not extend to student speech. The Essay raises preliminary questions about Justice Thomas's historical analysis, in particular his reading of nineteenth and early twentieth century cases that he views as demonstrating the lack of protection those courts had accorded student speech. It also examines whether Justice Thomas's originalism leads him more generally to eschew balancing tests in First Amendment cases, in favor of either near-absolute protection or complete lack of protection for speech. The Essay then considers how Justice Thomas's "absolutist originalism" dovetails with his views about the proper role of courts, at least when deciding constitutional cases. It concludes with some cautionary words about finding black-and-white distinctions in the common-law cases Justice Thomas uses as his primary evidence for the original understanding of the First Amendment's application to student speech.

Call for Papers: 2008 ASLH meeting in Ottawa

The 2008 American Society for Legal History meeting will be in Ottawa, Ontario, November 13-16, 2008. According the the ASLH announcement: The society looks forward to a bracing stay at the historic Fairmont Chateau Laurier in the heart of Canada's legal and governmental capital.

The 2009 meeting will be in Dallas, Texas, November 12-14, 2009. Hosted by a partnership of SMU and the local bar, the ASLH anticipates a Texas-sized welcome at the Fairmont Dallas, located in the Arts District, near first-rate performing venues and the lively restaurants and nightlife of the West End Historical District.

CALL FOR PAPERS --

Program Committee Co-Chairs for 2008 are Laura Edwards, Duke University, and David Seipp, Boston University.

The Program Committee of the ASLH invites proposals for complete panels and individual papers for the 2008 meeting, to be held November 13-16 in Ottawa, Ontario. Panels and papers on any facet or period of legal history are welcome. We particularly welcome topics and participants representing the full range of the Society's diversity.

Panel proposals should include the following: a c.v. for every person on the panel, including complete contact information, 300-word abstracts of individual papers; complete or partial drafts of papers,where possible; and a short description of the panel. Individual papers submissions should consist of an abstract, a draft paper (where possible), and a c.v.

Those who presented at the 2007 conference are welcome to submit papers and/or proposals for the 2008 conference. Although the committee will strive to include papers from those who have not presented recently, there will be no rule against presenting in consecutive years.

The deadline for submissions will be February 1, 2008. Electronic submissions (in Word or Word Perfect) are strongly encouraged and should be sent to:

Laura Edwards via ledwards@duke.edu

Hard copies, if necessary, should be mailed to:

2008 ASLH Program Committee

c/o Professor David J. Seipp

Boston University School of Law

765 Commonwealth Avenue

Boston, MA 02215

Marcus then Backhouse to lead ASLH; 2 bloggers elected to board

At the American Society for Legal History meeting in Tempe last weekend, President Charles Donahue handed his gavel to incoming President Maeva Marcus, who will serve a two-year term. President Donahue announced that Professor Constance Backhouse had been elected President-elect. A biographies of President Marcus and President-elect Backhouse are below.

Also elected were new members of the ASLH Board of Directors and Nominating Committee. Biographies are here. In what may be a first, two history bloggers (Al Brophy and me) were elected to the board. I have served before, but in my pre-blogger days.

Board of Directors

Alfred L. Brophy, Professor of Law, University of Alabama School of Law, Tuscaloosa.

Mary L. Dudziak, Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California.

Annette Gordon-Reed, Professor of Law at New York Law School and Professor of History at Rutgers University (Newark).

Adam Kosto, Associate Professor of History and Department Chair, Columbia University, New York.

Karen Tani, doctoral candidate, University of Pennsylvania and law clerk to the Honorable Guido Calabresi, Second Circuit Court of Appeals.

Nominating Committee

Amalia D. Kessler, Associate Professor of Law and (by courtesy) History, Stanford University.

Barbara Y. Welke, Associate Professor of History and Professor of Law, University of Minnesota.

Maeve Marcus, President (short bio from GWU website)

Maeva Marcus is a leading scholar in the field of constitutional studies. She received a Ph.D. in history with distinction from Columbia University. Her dissertation, Truman and the Steel Seizure Case, was published by Columbia University Press (1977) and remains in print from Duke University Press. As editor of The Documentary History of the Supreme Court of the United States, 1789-1800, Dr. Marcus published eight volumes along with many related articles on legal history. She is a research professor of law at The George Washington University Law School and director of the Institute for Constitutional Studies. From 1983 to 1987, she was a visiting professor of law at Georgetown University Law Center.

Constance Backhouse, President-elect

Prof. Constance Backhouse is Distinguished University Professor and University Research Chair at the University of Ottawa. Professor Backhouse teaches in the University of Ottawa's Faculty of Law in the areas of criminal law, human rights, legal history, and women and the law. During her academic career to date Professor Backhouse has taught at four Canadian universities and colleges, and served as director of the University of Ottawa's Human Rights Centre form 2001 to 2003. She is a graduate of the University of Manitoba, Osgoode Hall Law School, and Harvard University.

During a long and energetic career, Professor Backhouse has been the recipient of many awards and honors: an honorary doctorate (2002) and law society medal (1998) from the Law Society of Upper Canada, the Bora Laskin Human Rights Fellowship (1999), the Joseph Brant Award for multicultural history (2002), the Jules and Gabrielle Leger Fellowship(2006), the Trudeau Fellowship (2006), and the Ramon Hnatyshyn Award of the Canadian Bar Association for outstanding contributions to legal scholarship in Canada (2006). Early in her career she was awarded the Augusta Stowe-Gullen Affirmative Action Medal by the Southwestern Ontario Association for the Advancement of Learning Opportunities for Women (1981). In 2004, Professor Backhouse became a Fellow of the Royal Society of Canada. Professor Backhouse has also received teaching awards from the University of Ottawa in 2001-02 and 2002-03,and in 2006 she was selected by the University of Ottawa for its"Award for Excellence in Research."

Professor Backhouse is known internationally for her feminist research and publications on sex discrimination and the legal history of gender and race in Canada. Her work documents violations of human rights,and, in particular, past neglect of gender equality in the Canadianlegal system.

A legal scholar who uses a narrative style of writing, her most recent books and articles have concentrated on the ways in which women and racialized communities have struggled for justice within the legal system. Professor Backhouse's most recent book, coauthored with her sister, the Hon. Justice Nancy L. Backhouse, is The Heiress versus the Establishment: Mrs. Campbell's Campaign for Legal Justice (Vancouver: UBC Press, 2004). Her other books include Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press, 1999), winner of the 2002 Joseph Brant Award of the Ontario Historical Society ("best book in multicultural history published within the past three years"), and Petticoats and Prejudice: Women and the Law in Nineteenth-Century Canada (Toronto:Women's Press, 1991), winner of the 1992 Willard Hurst Prize in American Legal History of the Law and Society Association. In 1993,another of her books, Challenging Times: The Women's Movement in Canada and the United States (Montreal and Kingston: McGill Queen's U.Press), co-edited with David H. Flaherty, was named "Outstanding Book on the Subject of Human Rights in the United States" by the Gustavus Myers Center for the Study of Human Rights in the U.S. She is, additionally, the co-author with Leah Cohen of two books on sexual harassment: Sexual Harassment on the Job (Englewood Cliffs, NJ:Prentice-Hall, 1981) and The Secret Oppression: Sexual Harassment of Working Women (Toronto: Macmillan, 1979). The latter was the first book published in Canada on the topic, and the second in North America.

All told, Professor Backhouse has over 50 publications to her credit.Her work has been supported by the Law Foundation of Ontario, the Osgoode Society, the Department of Justice, and the Social Sciences and Humanities Research Council of Canada, most recently (2005-07) for her current project on the history of sexual assault law in Canada, 1900-1975.

In addition to her academic and scholarly activities, Professor Backhouse has served for many years as a mediator and adjudicator of human rights complaints. In that capacity she served as an adjudicator for the compensation claims arising from the physical, sexual and psychological abuse of the former inmates of the Grandview Training School for Girls (1995-98), and continues to adjudicate compensation claims for the former students of Aboriginal residential schools across Canada. She has served as an expert witness and consultant on various aspects of sexual abuse and violence against women and children. She is a member of the board of directors for the Claire L'Heureux-Dube Fund for Social Justice and the Women's Education and Research Foundation of Ontario, Inc.

Guide to Hundreds of On-line Archives and Collections

At the Online Education Database, are links to hundreds of archives and on-line research resources. Hat tip.

Hundreds of libraries and archives exist online, from university-supported sites to individual efforts. Each one has something to offer to researchers, students, and teachers. This list contains over 250 libraries and archives that focus mainly on localized, regional, and U.S. history, but it also includes larger collections, eText and eBook repositories, and a short list of directories to help you continue your research efforts.

The site includes state-by-state links to on-line archives and digital resources, such as:

Alaska's Digital Archives: If you're interested in Alaska history and culture, this site now includes over 10,000 items including images and text gathered from Alaska state museums, the Sitka Tribe Historical Society, the University of Alaska and more.

USC Digital Archive: University of Southern California Libraries select, collect, reserve and make accessible high quality digital images of unique materials with metadata to support research, and provide a "gateway" to resources on Los Angeles and Southern California.

University of Hawai'i Digital Library: These digital collections at Manoa Library include historical and cultural material in digital form. Materials include scanned material from Archives and Manuscript collections, the Asia Collection, art works from the Jean Charlot Collection, resources related to Hawai'i and Pacific culture and history and material from the Rare collection.

Archives of Maryland Online: This site currently provides access to over 471,000 historical documents that form the constitutional, legal, legislative, judicial, and administrative basis of Maryland's government.

USMA Digital Collections: At the United States Military Academy Library's Digital Collections you can gain access to Alexander Hamilton's papers, to Civil War maps, to class yearbooks, and more from this West Point academy.

The Library of Virginia Digital Library: This library is slowing expanding its digital collections, and their land records and WPA artifacts represent superb resources for historians and genealogists. Don't miss the exhibitions, which include topics about the coal mine, women in Virginia, and maps, images, and textual materials.

Cromwell dissertation prize to Christopher Beauchamp, Cambridge University

The Cromwell Dissertation Prize was awarded to Christopher Beauchamp, Cambridge University, at the American Society for Legal History meeting last weekend. According to the Prize Committee:

The Cromwell Dissertation Prize Committee...considered dissertations of remarkable quality on a wide range of topics and periods and adopting a variety of different methodological perspectives. Amid these dissertations, the one that stood out was Christopher Beauchamp's "The Telephone Patents: Intellectual Property, Business and the Law in the United States and Britain, 1876-1900"--a dissertation submitted for a Ph.D. at Cambridge University in 2006.

The dissertation uses complex corporate and legal records to examine the role of patents and patent litigation in the early struggles for control over the telephone businesses on both sides of the Atlantic, and it thereby explores the role of law in modern industrial development. Written with both an expansive understanding of the inquiry and a keen eye for detail, the dissertation opens up important questions in law, economics, and the relation between them. It will be an important book, admirable for its breadth of vision and its rich use evidence, and the Committee is pleased that the first dissertation [recommended] to be awarded the Cromwell Prize is of such remarkable quality.

Update:
A link to a recent paper by Beauchamp is here.

ASLH Article Prizes to Butler, Morantz and Wertheimer

More news from the American Society for Legal History meeting: Article Prizes.

Sutherland Prize

The Sutherland Prize, named in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually, on the recommendation of the Sutherland Prize Committee, to the person or persons who wrote the best article on English legal history published in the previous year.

The 2007 Committee consisted of Professor David Lemmings from the University of Adelaide (chair), Professor Joseph Biancalana from the University of Cincinnati, and Professor David Sugarman from the University of Lancaster.

The ASLH Donald Sutherland article prize for 2007 went to Professor Sara M. Butler of Loyola University, New Orleans for her article`Degrees of Culpability: Suicide Verdicts, Mercy, and the Jury in Medieval England', published in the Journal of Medieval and Early Modern Studies, 36:2, Spring 2006. Butler's article is an exhaustive and imaginative study of the verdicts passed by coroners' inquests in cases of suicide recorded by the courts of late medieval England. It is remarkable for several outstanding features. First, the research is wide-ranging and precise: she has studied every coroner's roll that has survived from the period up to 1500 and also all the eyre and assize rolls from this period for the counties of Essex and York. Together they yield a database of over 700 cases in all where the jurors pronounced a verdict of felonia de se. Second, it is empirical history at its best because the author has reflected carefully but creatively upon the few words that describe the circumstances of each case and is thereby able to elucidate the complex attitudes of medieval people towards common experiences of everyday life such as child-rearing, insanity, the death of loved ones and old age. Indeed Butler's analysis delights the reader with her ability to explain the apparently paradoxical: for example, why did the apparently accidental death of a baby boy by stabbing himself with a pair of shears generate a verdict of suicide in a fourteenth-century coroner's court, given the severe consequences for his parents of a shameful burial in unconsecrated ground and failure to set his soul to rest? Answer: because the jurors wanted to send a public message to the community that parental negligence was unacceptable.

It is this imaginative ability that generates the article's significant and sometimes revisionist conclusions, which are its third outstanding feature. Butler argues that medieval jurors could be compassionate in exceptional circumstances, but insists they were more concerned about mortal sin; she suggests in general that they exhibited complex attitudes towards life-events which were very different from those a modern reader would expect; and most importantly, she demonstrates that the decisions of late medieval law courts represented the values of local communities, as much as the doctrines of the law.


Surrency Prize

Every year the Surrency Prize goes to the best article published in the ASLH journal, Law and History Review. Alison Morantz, Stanford Law School, and John Wertheimer, Davidson College, share the Surrency Prize this year.

In "There's No Place Like Home: Homestead Exemption and Judicial Constructions of Family in Nineteenth-Century America" (Vol. 24, No.2, 2006), Alison Morantz uses a careful and original analysis of homestead exemptions in state law to weave a new national story about the, relationship between land ownership and family. The article argues persuasively that seemingly straightforward homestead statutes,originally designed to protect the family home, raised questions about the mechanisms for state intervention and opened a process that helped to redefine the family. Exposing the links between the contours of private law and modern state structures, Morantz's story suggests that the nexus of gendered legal norms and state regulation - often associated by historians with the emergence of the welfare state in the twentieth century - arose earlier and in overlooked legal arenas.Her piece forces a reconsideration of some of the most fundamental assumptions about the intersections of private and public in nineteenth-century law.

John Wertheimer's "Gloria's Story: Adulterous Concubinage and the Law in Twentieth Century Guatemala" (Vol. 24, No. 2, 2006) is a captivating account of the legal construction of property and family in Central America. The article masterfully juxtaposes the story of two people's social and legal relations over several decades and an analysis of broad trends in Guatemalan law that influenced and constrained these subjects' choices. The approach reveals the emergence of unintended consequences from the combination of haphazardly composed individual legal strategies and well-intentioned shifts in legal policy. Wertheimer argues that progressive reforms in family and property law can inadvertently facilitate retrogressive social arrangements - in this case, adulterous concubinage. In blending micro-history with a careful attention to wide political and social contexts, Wertheimer provides a methodological map for exploring the workings and construction of everyday legal consciousness.

Cromwell Book Prize to Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine

At the American Society for Legal History meeting, the Cromwell Book Prize for 2007 was awarded to Professor Roy Kreitner of Tel Aviv University, for Calculating Promises: The Emergence of Modern American Contract Doctrine (Stanford University Press, 2006). The Cromwell Book Prize is for a book in American legal history by a not-yet-tenured scholar. According to the prize committee:

Kreitner incisively analyzes the theories of leading contract scholars--J. B. Ames, W.R. Anson, J. H. Beale, A. L. Corbin, O. W.Holmes, C. C. Langdell, J. F. Pollock, and S. Williston--to argue for revising prevailing views that contract doctrines have evolved incrementally over centuries. During the closing decades of the nineteenth century, courts came under considerable pressure to fashion doctrines limiting the long-established system granting juries wide discretion. Kreitner finds that the eight scholars revolutionized theories about the rules governing contract agreement and enforcement within a wider cultural transformation in which individuals confronted the risks and opportunities of a new American industrial society. These scholars fashioned theories that within a century would be identified with the law and economics movement. Chapters "revisiting" gifts and promises,perceptions about insurance contracts and gambling conceived of as"speculations of contract," and the varied texts of "incomplete contract" reveal, in Kreitner's probing narrative, how established contract "metaphysics" gave way to the assumption that contracting parties were rational calculating persons. Thus, by the end of the century, "The assumption of calculation is encapsulated in the theory of consideration, which at once strips the past of meaning (past consideration is no consideration) and at the same time assumes equivalence while denying the law's capacity for examining consideration's adequacy (233)." Even so, Kreitner's book asks legal academics, practicing lawyers, and judges to deeply rethink their assumptions about the origins of American contract theory.

Reid Prize to Wiecek, The Birth of the Modern Constitution

News from the American Society for Legal History meeting:

The John Phillip Reid Prize for the best book in legal history published during the calendar year 2006 was awarded to William M.Wiecek for The Birth of the Modern Constitution: The United States Supreme Court, 1941-1953, which is volume 12 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States.

The Committee said of Wiecek's book:

The Birth of the Modern Constitution is characterized by the comprehensiveness, attention to sources, and concern for detail that we have come to associate with the Holmes Devise series. In addition, it reflects a wide and deep reading of the huge volume of scholarly literature that has been written about the Court during the fourteen years it studies and offers judicious judgments on the issues raised by that scholarship. Above all, Wiecek's volume is highly readable, displays a singular ability to distill and explain complex legal issues in an easily understood fashion, and has a clear interpretative focus. Wiecek makes a clear and convincing argument that the Court was in a period of profound transition between 1941 and 1953, and his volume provides one of the best contexts for understanding the jurisprudential challenges and shifts the Court encountered between the late-nineteenth and mid-twentieth century. Future teachers of constitutional law will be much in William Wiecek's debt.

Reviewed: Hitchcock, Frankenstein: A Cultural History

"I saw -- with shut eyes, but acute mental vision, -- I saw the pale student of unhallowed arts kneeling beside the thing he had put together. I saw the hideous phantasm of a man stretched out, and then, on the working of some powerful engine, show signs of life, and stir with an uneasy, half vital motion," wrote Mary Godwin, quoted in Louis Bayard's review of FRANKENSTEIN: A Cultural History by Susan Tyler Hitchcock (Norton) in today's Washington Post Book World. Bayard continues:

A monster wasn't the only thing stirring in the dreams of teenaged Mary Godwin. A vocation was awakening, too. The lover of poet Percy Shelley and daughter of ur-feminist Mary Wollstonecraft, young Mary knew enough of literature and commerce to realize she was on to something. "What terrified me will terrify others," she reasoned, and she was not even half wrong. As Susan Tyler Hitchcock's delightful cultural history reminds us, the monster that Mary fashioned from her slumbers is still alive and kicking: "in our bookstores, on our film and television screens, from morning cartoons to wee-hours rerun movies. He plays roles in advertising and political debate, he appears at public library story hours and on graduate-level reading lists. He is both a joke and a profound ethical dilemma."

But in the beginning, he was the product of a dare, thrown down by Lord Byron in that rainy Geneva summer of 1816: "We will each write a ghost story." Byron and Shelley bowed out, but Mary Godwin found a voice. Drawing on a private brew of philosophy, literature and myth, she discovered probably her most proximate inspiration in the writings of Luigi Galvani, who had used electrical currents to trigger movements in disembodied frog legs. Readers looking for more science than that will have to look elsewhere, and anyone coming to the original story from the Hollywood back lot will be startled to find that Victor Frankenstein's monster, after a brief setback, learns both to speak and read. Goethe, Plutarch and, fittingly enough, Paradise Lost are among the texts he marshals against his creator, who dies unmolested on an Arctic voyage, mourned by the creation he has once again abandoned....

"This is our monster," writes Susan Tyler Hitchcock. "To know him is to know ourselves."

Continue reading here.

More "Famous Trials" from Linder

Douglas Linder, University of Missouri, Kansas City, School of Law, has topped off his recent posts of essays connected with his Famous Trials website, with more. The website is a valuable resource for legal history teachers. Linder has uploaded many interesting primary sources related to the trials. New essays just posted are:

The Trials of Oscar Wilde: An Account

Old Bailey, the main courthouse in London, had never presented a show quite like the three trials that captivated England and much of the literary world in the spring of 1895. Celebrity, sex, witty dialogue, political intrigue, surprising twists, and important issues of art and morality--is it any surprise that the trials of Oscar Wilde continue to fascinate one hundred years after the death of one of the world's greatest authors and playwrights.

The Trial of William 'Big Bill' Haywood

The struggle between the Western Federation of Miners and the Western Mine Owners' Association at the turn of the twentieth century might well be called a war. When the state of Idaho prosecuted William Big Bill Haywood in 1907 for ordering the assassination of former governor Frank Steunenberg, fifteen years of union bombings and murders, fifteen years of mine owner intimidation and greed, and fifteen years of government abuse of process and denials of liberties spilled into the national headlines. Featuring James McParland, America's most famous detective; Harry Orchard, America's most notorious mass murderer turned state's witness; Big Bill Haywood, America's most radical labor leader; and Clarence Darrow, America's most famous defense attorney, the Haywood trial ranks as one of the most fascinating criminal trials in history.

The Trial of Sheriff Joseph Shipp Et Al.: An Account

Only once in its history has the United States Supreme Court conducted a criminal trial. The trial, taking place in both Tennessee and the District of Columbia in 1907 and 1908, resulted in the conviction of a sheriff, a deputy sheriff, and four members of a Chattanooga lynch mob. Outraged justices ordered the trial on criminal contempt charges after an almost certainly innocent black man, having been convicted of raping a white woman, was lynched less than a day after word reached Chattanooga that his scheduled execution had been stayed by the U. S. Supreme Court. The trial of Joseph F. Shipp et al. is a story of tragedy and heroism that had been all but forgotten until Mark Curriden, a Dallas reporter, and Leroy Phillips, Jr., a Chattanooga attorney, published their 1999 book, Contempt of Court: The Turn-of-the-Century Lynching that Launched a Hundred Years of Federalism. Now, with the success of Contempt of Court--and a movie based on the book--, it appears that the Shipp trial may assume its rightful place as one of the famous trials in American history.

The Trial of Louis Riel

By modern standards, the North-West Rebellion seems no big deal. Canadian forces easily quelled the uprising of a couple of hundred Metis settlers along the South Saskatchewan River. A majority of Metis in the region sat out the fighting, and only about one hundred persons died in the conflict. (Although that figure of one hundred deaths was significant in this sparsely populated region.) The importance of the North-West Rebellion, apart from establishing the ability of Canadian government to successfully carry out a military action far from its center of power, is symbolic. As has been often noted by historians, the debate over the North-West Rebellion and the subsequent trial of Louis Riel reveals the tensions that continue to distinguish Canada: east versus west, native versus non-native, French-speaking versus English-speaking, American versus Canadian. Over time, Louis Riel has been seen as a demagogic madman, as an innocent victim of Prime Minister John Macdonald's fanaticism, or as a martyred national-liberation leader. None of these characterizations is entirely accurate; each contains some measure of truth. The North-West Rebellion and the trial of Louis Riel is best understood as the product of a particular place and time: the Canadian frontier, in a time when civilization and its institutions confronted the traditions of a more primitive people.

The Trial of Lizzie Borden

“Lizzie Borden took an axe, and gave her mother forty whacks. When she saw what she had done, she gave her father forty-one.” Actually the Bordens received only 29 whacks, not the 81 suggested by the famous ditty, but the popularityof the poem is a testament to the public's fascination with the 1893 murder trial of Lizzie Borden. The source of that fascination might lie in the almost unimaginably brutal nature of the crime – given the sex, background, and age of the defendant – or in the jury's acquittal of Lizzie in the face of prosecution evidence that most historians today find compelling.

The Trial of Charles Guiteau: An Account

A sense of having been wronged, together with a warped idea of political duty, brought Charles Julius Guiteau to the Baltimore and Potomac Station in Washington on July 2, 1881. On that same Saturday morning, President James Abram Garfield strode into the station to catch the 9:30 A.M. limited express, which was to take him to the commencement ceremonies of his alma mater, Williams College - and from there, Garfield planned to head off on a much-awaited vacation. He never made the 9:30. Within seconds of entering the station, Garfield was felled by two of Guiteau's bullets, the opening act in what be a drama that included rising and then falling hopes for the President's recovery, the most celebrated insanity trial of the century, and finally civil service reform that backers hoped might discourage future disappointed patronage seekers from taking revengeful actions.

The Mountain Meadows Massacre of 1857 and the Trials of John D. Lee: An Account

Called the darkest deed of the nineteenth century, the brutal 1857 murder of 120 men, women, and children at a place in southern Utah called Mountain Meadows remains one of the most controversial events in the history of the American West. Although only one man, John D. Lee, ever faced prosecution (for what probably stands as one of the four largest mass killings of civilians in United States history), many other Mormons ordered, planned, or participated in the massacre of wagon loads of Arkansas emigrants as they headed through southwestern Utah on their way to California. Special controversy surrounds the role in the 1857 events of one man, Brigham Young, the fiery prophet of the Church of Latter-day Saints who led his embattled people to the promised land in the valley of the Great Salt Lake. What exactly Brigham Young knew, and when he knew it, are questions that historians still debate.

The Earp-Holliday Trial: An Account

The Old West's most famous gunbattle lasted all of about thirty seconds, but it left three men dead, three other men shot, and enough questions to occupy historians for more than a century. The gunfight also led to criminal charges being filed against the three Earp brothers (Wyatt, Virgil, and Morgan) and Doc Holliday who, near the O. K. Corral on October 26, 1881, decided to enforce the law against four notorious cowboys. The hearing that followed the shoot-out considered the question of whether the Earps and Hollidays killed out of a justifiable fear for their own lives or simply to rid themselves of troublemakers and personal enemies. After listening to weeks of testimony, Judge Spicer gave his answer - but whether his answer was the right one remained a subject of considerable debate long after the silver mines that gave birth to Tombstone, Arizona had vanished.

The Story of the Court-Martial of the Bounty Mutineers

The true story of the 1789 mutiny on the Bounty is far more complicated than suggested by film versions of the event, which have emphasized the gratuitous cruelty of the ship's captain, William Bligh. The psychological drama that played out in the South Seas starring Bligh, the efficient disciplinarian, and his mate, the sensitive and proud Fletcher Christian, led to, among other things: one of the most amazing navigational feats in maritime history, the founding of a British settlement that continues to exist today, and a court-martial in England that answered the question of which of ten captured mutineers should live - and which should die - for their actions.

The Trial of John Brown: A Commentary

The arrest, trial, and execution of John Brown in the fall of 1859 came at a critical moment in United State history. According to historian David S. Reynolds in his biography, “John Brown, Abolitionist: The Man Who Killed Slavery, Sparked the Civil War, and Seeded Civil Rights” (2005), Brown's actions and statements following his failed attempt to begin a slave insurrection near Harper's Ferry, Virginia so polarized northern and southern opinion on the slavery issue as to ensure Abraham Lincoln's election and cause the Civil War to occur perhaps two decades earlier than it might have otherwise. Reynolds is quick to point out that not only was Brown right on slavery and other racial issues of his day, but that his conduct - in causing the Civil War to begin in 1861 rather than, say, 1881 - potentially saved hundreds of thousands of lives that could have been lost in a war fought in a time of much greater population and more deadly weaponry and, at the same time, might well have spared an entire generation of African-Americans the humiliating experience of human bondage.

The Dakota Conflict Trials

The causes of the Dakota Conflict are many and complex. The treaties of 1851 and 1858 contributed to tensions by undermining the Dakota culture and the power of chieftains, concentrating malcontents, and leading to a corrupt system of Indian agents and traders. Annuity payments reduced the once proud Dakota to the status of dependents. Annuity payments for the Dakota were late in the summer of 1862. On Sunday, August 17, four Dakota from a breakaway band of young malcontents were on a hunting trip when they came across some eggs in a hen's nest along the fence line of a settler's homestead. When one of the four took the eggs, another of the group warned him that the eggs belonged to a white man. The first young man became angry, dashed the eggs to the ground, and accused the other of being afraid of white men, even though half-starved. Apparently to disprove the accusation of cowardice, the other Dakota said that to show he was not afraid of white men he would go the house and shoot the owner. He challenged the others to join him. Minutes later three white men, a white woman, and a fifteen-year old white girl lay dead. Events moved quickly. Forty-four Americans were killed and another ten captured in the first full day of fighting in and around the Lower Agency at Redwood. Nearly two hundred additional whites died over the next few days as Dakota massacred farm families and attacked Fort Ridgely and the town of New Ulm.

By mid-September, the initiative had shifted to the American forces. Penned in to the north and south, facing severe food shortages and declining morale, many Dakota warriors chose to surrender. Together with those taken captive, the ranks of Dakota prisoners soon swelled to 1,250. A decision had to be made soon what to do with them.

The trials were quick affairs, getting quicker as they progressed. The commission heard nearly forty cases on November 3, the last day it met. The commission believed that mere participation in a battle justified a death sentence, so in the many cases, perhaps two-thirds of the total, where the prisoner admitted firing shots it proceeded to a guilty verdict in a matter of a few minutes. The final decision on whether to go ahead with the planned mass execution of the 303 Dakota and mixed-bloods rested with President Lincoln. Lincoln asked his clerks to search the records and identify those convicted of participating in the massacres of settlers. The clerks came up with the thirty-nine names included in Lincoln's handwritten order of execution written on December 6, 1862.

Images: Oscar Wilde, Louis Riel addresses his jury, Lizzie Bordon, Tombstone, AZ c. 1880s, Little Crow.

Over 1000 posts, but still in balance

The Legal History Blog has passed the 1000 post mark. It seemed a good time to take stock of things. According to highly reliable studies, this blogger is only 60% addicted to blogging, but 90% addicted to coffee. I still have my priorities straight. Peet's preferred.

And...only 35% geek, which just goes to show you that non-geeks can blog. ("Is that all?" asked the boyfriend. Ouch!)

Two from Mack on Civil Rights History

Kenneth W. Mack, Harvard Law School, has posted two civil rights history articles. The first is Rethinking Civil Rights Lawyering and Politics in the Era Before Brown. It appeared in the Yale Law Journal. Here's the abstract:

This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education. That traditional narrative has relied on a legal liberal view of civil rights politics—a view that focuses on court-based and rights-centered public law litigation. That narrative has, in turn, generated a revisionist literature that has critiqued legal liberal politics. This Article contends that both the traditional and revisionist work have focused on strains of civil rights politics that appear to anticipate Brown, and thus have suppressed alternative visions of that politics. This Article attempts to recover these alternatives by analyzing the history of civil rights lawyering between the first and second world wars. It recovers debates concerning intraracial African-American identity and anti-segregation work, lawyers' work and social change, rights-based advocacy and legal realism, and the legal construction of racial and economic inequality that have been elided in the existing literature. It thus contends that the scholarly inquiries that have been generated in both the traditional and the revisionist work should be reframed.

The second article is Law, Society, Identity and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875-1905. It appeared in Law and Social Inquiry. Here's the abstract:

This article reexamines the well-known debate over the origins and timing of the advent of de jure segregation in the American South that began in 1955 with the publication of C. Vann Woodward's The Strange Career of Jim Crow. Arguing that the terms of the debate over Woodward's thesis implicate familiar but outmoded ways of looking at sociolegal change and Southern society, the article proposes a reorientation of this debate using theoretical perspectives taken from recent work by legal historians, critical race theorists, and historians of race, class and gender. This article examines the advent of railroad segregation in Tennnessee (the state that enacted America's first railroad segregation statute) in order to sketch out these themes, arguing that de jure segregation was brought about by a dialectic between legal, social and identity-based phenomena. This dialectic did not die out the the coming of de jure segregation, but rather continued into the modern era.

Banner reviews MacMillan, Sovereignty and Possession in the English New World

Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (Cambridge University Press, 2006) is reviewed in the Law and History Review by Stuart Banner, UCLA. Banner writes:

A lot has been written lately on the intellectual roots of the European colonization of the Americas, much at a high level of generality. In this short and engaging book Ken MacMillan takes a close-up view of a thin slice of the subject. He limits his attention to England; we hear of other parts of Europe only as competitors for control of the New World. He ends his story in 1640, when the English colonial enterprise was only just getting started and before many of the frequently cited works on the topic were written. He discusses only English claims vis-à-vis other European countries. As he makes clear at the outset, the book does not encompass English claims to sovereignty or property as against American Indians. And he concentrates throughout on distinctly legal modes of argument, rather than political or philosophical argument more broadly. The result is a tightly focused and clearly argued exploration of the early English legal justifications for why England, rather than Spain, France, or anyone else, had the right to claim the parts of North America that would become English colonies.

MacMillan emphasizes the importance of Roman law and its derivatives in constructing the legal basis of colonization. England was still legally pluralistic, he reminds us in the first chapter, and Roman or Roman-flavored law still played an important role. This was particularly true with respect to overseas territories, which, he argues (taking sides in a very old debate), were understood to be outside the ordinary domestic legal system and thus not subject to the common law. By relying on concepts of Roman law, England was, in effect, joining the continental European colonizers in collectively creating a supranational body of law governing the allocation of territory in the New World.

In the second chapter, MacMillan credits the sixteenth-century intellectual John Dee with being the leading early English legal theorist of colonization. (MacMillan has previously edited a scholarly edition of The Limits of the British Empire, which he calls "Dee's imperial tour de force." [51]). Well-versed in civil law, Dee relied on Roman law for the proposition that discovery and actual possession were prerequisites for the exercise of sovereignty, a principle that quickly became the foundation of English claims to North America. The remaining four chapters show how this principle was implemented in practice, in the wording of colonial charters (chapter 3), in the fortifications the English built in North America (chapter 4), in the maps the government published (chapter 5), and in the arguments used by English officials while negotiating against their Spanish and French counterparts (chapter 6).

The book's narrow time frame and subject matter allow MacMillan to dig deeply into manuscript sources, most of which are from the British Library and the UK National Archives (the former Public Record Office). He has found some fascinating stuff. He is able to show, for example, that the maps the English government allowed to be published differed in important respects from the unpublished maps the government kept for its own use. He argues, persuasively I think, that the government faced conflicting incentives. On one hand, secrecy was crucial, because the government was afraid to reveal too much information about North America to its Spanish and French rivals. On the other hand, publicity was crucial too, because maps were devices for demonstrating that claims to sovereignty were backed up by exploration of the claimed areas. The solution was deliberately to publish incorrect maps.

Any book that concentrates on a small picture will leave readers wondering about matters lying just outside the frame. To what extent did English colonial theorists distinguish between sovereignty (the right to govern) and possession (the ownership of property) in North America? MacMillan always treats them together, but were they always treated together at the time? To what extent were the arguments for English rights as against France and Spain also used to justify English rights as against Indian tribes? How much English theorizing about colonization was successfully transplanted to North America, and how much had to be modified in response to conditions on the ground? To raise questions like these is not to criticize MacMillan but to praise him, for writing a book that will surely prompt others to pick up where he has left off.

Tsuk Mitchell on Shareholders as Proxies: The Contours of Shareholder Democracy

Dalia Tsuk Mitchell, George Washington University Law School, has posted an article, Shareholders as Proxies: The Contours of Shareholder Democracy. It appeared in the Washington and Lee Law Review. Here's the abstract:

This article explores the long-standing suspicion of the individual shareholder and the corresponding ambivalence about shareholder democracy as it is seen in conversations about the shareholder's role in the modern public corporation throughout the twentieth century.

The article examines two competing conceptions of the shareholder's role in the corporation: one focuses on the role of shareholders as investors, the other emphasizes the role of shareholders as potential participants in corporate management. I argue that scholars and reformers who have conceived of shareholders as investors limited the locus of shareholder democracy to the market. The writings of Louis Brandeis, Henry Manne, and Chancellor Allen offer examples of this vision. At the same time, scholars and reformers who argued that shareholders should have a more active role in corporate management (including William Ripley, Adolf Berle, William Douglas, and the early New Dealers) were reluctant to give shareholders meaningful access to the corporate decision-making processes. They feared not only that shareholders were too passive to participate in corporate management, but also that they could not be trusted to make the correct decisions. For the most part, these scholars ended up using the rhetoric of shareholder democracy (and the shareholders) as a proxy to achieving other goals. In the course of the twentieth century, these scholars' goals shifted from taming the power of the control group to constraining management to legitimating managerial power. More important, because they refused truly to empower shareholders, these scholars' attempts presumably to promote shareholder democracy ultimately emptied the idea of shareholder democracy of content. Gradually, the rhetoric of democracy became an apology for the status quo.

Chibundu on Political Ideology as a Religion: The Idolatry of Democracy

Maxwell O. Chibundu, University of Maryland School of Law, has posted a new essay, Political Ideology as a Religion: The Idolatry of Democracy. It appeared in the University of Maryland Law Journal of Race, Religion, Gender and Class. Here's the abstract:

In contemporary international law and politics, the invocation of the term “democracy” transcends both objective description and ritual symbolism. Normatively, it is deployed to delineate the good society from the pariah state. Prescriptively, it is employed to shun and coerce foes into preferred policies. In this article, I reflect on the ways in which contemporary liberalism's faith and commitment to “democracy” have become akin to those that classically are associated with religion. By tracing the roots, rise and spread of democracy to the demands of an essentially European middle-class engaged in industrialization, commerce and colonization, and by relating that history to its current unquestioning deployment in legal and political centers of power as an universal dogma that confers benediction or absolution to friends and damnation to enemies, the essay seeks to spur some reflection on the power and force of the concept. The preliminary reflections undertaken in this essay suggests that, as is often the case with most sociological concepts, democracy's sphere of authority, if it is to be sustained and made relevant,ultimately must be constantly revised and limited by the needs of the society over which it is intended to preside.

Fire History

There must be a book on the history of everything. The University of California Press Blog has a post on Neil G. Sugihara, Jan W. van Wagtendonk, Kevin E. Shaffer, Jo Ann Fites-Kaufman and Andrea E. Thode, eds., Fire in California's Ecosystems, which "includes an historical overview of fire, vegetation, and climate in California; overviews of fire as a physical and ecological process; and reviews the interactions between fire and the physical, plant, and animal components of the environment."

Priest reviews McNamara, From Tavern to Courthouse: Architecture and Ritual in American Law, 1658-1860

Martha J. McNamara, From Tavern to Courthouse: Architecture and Ritual in American Law, 1658–1860 (Johns Hopkins University Press, 2004) is reviewed in the Law and History Review by Claire Priest, Northwestern University. Priest writes:

From Tavern to Courthouse examines the legal history of early Massachusetts through the lens of courthouse architecture. It describes an emerging professional legal bar struggling to elevate its prestige through the construction of increasingly specialized and dignified spaces for court proceedings. The strength of the book lies in its visual images and in the anecdotal descriptions of physical spaces and rituals that McNamara culled from primary materials. The book contains what is likely to remain a definitive collection of photographs and drawings of the courthouses built in Massachusetts between the mid-seventeenth century and the mid-nineteenth century. The numerous anecdotes peppered throughout the book—often comments by major historical figures like Samuel Sewall and John Adams—provide a fascinating glimpse into how architecture and ritual were experienced by participants in the system.

McNamara uncovers three broad phases in the evolution of the legal system during the period she studies. The most important discovery of the book is that, prior to the late eighteenth century, court proceedings took place in "townhouses": multipurpose buildings located in town centers that contained mixed-use space for commercial and government activities. In the typical townhouse, merchants and shopkeepers used the first floor as a market exchange. The second floor contained multi-purpose rooms that accommodated, at various times, civil, criminal, and probate courts, town meetings, and public land title and mortgage records. Judicial business in the form of jury deliberations and decision making by individual justices of the peace often spilled over into local taverns.

As McNamara notes, the townhouse design reveals the close connections between commercial interests and the legal system in early America. In Boston, part of a merchant's daily routine was to "walk the exchange" at the townhouse, which meant to literally walk around the market gathering information about market developments (such as ships arriving and departing, new regulations, and market conditions). These merchants were likely to have frequent encounters with the justices of the peace, clerks, and legislators who performed their duties on the second floor of the building and, again, who often moved to taverns to deliberate as members of a jury or to execute deeds and decide cases as justices of the peace.

Although not emphasized by McNamara, the townhouse is terrific evidence that a central function of the colonial legal system was to generate reputational and economic information about individuals in the community. Why was the courthouse placed above the merchants' exchange? One reason is that the design made sense in a society, like that of the American colonies, in which most economic transactions involved relations of indebtedness and extensions of credit were a primary form of investment for people with resources. News of the daily court judgments, the recording of mortgages, and judicial decisions related to the probate of wills and inheritance were the contemporary equivalent of a ticker tape charting the status of one's investments. The information generated at court was market information as important as the information gleaned from the merchants' exchange.

In such a society, reputation was possibly a person's most valuable asset and shame sanctions were an effective form of punishment. Surprisingly, McNamara does not examine in detail how the architecture of townhouses included prominent spaces allocated for the administration of shame sanctions. In a conjectural drawing of the 1658 Boston townhouse included in the book (fig. 1.1), the whipping post and pillory are placed prominently in front of and visible from the merchants' exchange. One law in effect during the mid-seventeenth century (not mentioned by McNamara), for example, penalized the altering of public mortgage records with either two months in jail or two hours in the pillory at the merchants' exchange with a sign "Defacer of Records" over one's head. A discussion of the relationship between shaming sanctions and architecture would have enriched her account.

McNamara instead emphasizes that, from the perspective of lawyers and others involved in the legal system, the architecture of the townhouse suffered from one principal weakness: its mixed-use spaces did little to elevate their standing and, therefore, "the weight of communicating judicial authority fell primarily to the justices and to their court rituals" (11). Without dignified architecture, legal actors had to emphasize protocol and rituals, such as horn-blowing, costumes, and processionals to gain legitimacy. Heavy emphasis on protocol and costume, however, was not always effective. In his description of the famous Writs of Assistance case that mobilized support for the American Revolution, John Adams described the judges as wearing dress "more solemn and more pompous than that of the Roman Senate when the Gauls broke in upon them" (59).

Continue reading here.

Images: Ames Tavern in Dedham, Suffolk Courthouse.

Cranston on Law through Practice: London and Liverpool Commodity Markets, 1820-1975

Ross Cranston, London School of Economics, has posted a new paper, Law Through Practice: London and Liverpool Commodity Markets C.1820-1975. Here's the abstract:

Although now forgotten, organized markets in commodities like grain, cotton, sugar, coffee and spices became firmly established in London and Liverpool in the nineteenth century. These markets were stimulated by the rising volume of international trade, as Britain became the first industrial nation, a major importer of these commodities and a centre for organising their distribution elsewhere, especially in Europe. The story of these markets, and the role of law in their operation, is fascinating in itself. However, it also enables us to test some ideas about markets against the reality of what were, for a time, some of the leading physical and futures markets in commodities in the world. The first part of this article outlines key features in the organisation and operation of these markets; the second part concentrates on the central, if uncelebrated, functions of clearing and settling transactions in these markets; and finally there is a discussion of market integrity and the role of law in curbing abuse.

Bartholomew on Advertising and the Transformation of Trademark Law

Mark Bartholomew, University at Buffalo Law School, has posted a new article, Advertising and the Transformation of Trademark Law. It is forthcoming in the New Mexico Law Review. Here's the abstract:

Despite the presence of a vigorous debate over the proper scope of trademark protection, scholars have largely ignored study of trademark law's origins. It would be a mistake, however, to ignore the history behind trademark law. Scrutiny of the formative era in American trademark law yields two important conclusions. First, courts granted robust legal protection to trademark holders in the early twentieth century because they accepted the benign view of advertising presented to them by advertisers. As advertising became linked to cultural progress and social cohesion, courts adopted doctrinal revisions to protect advertising's value that remain embedded in modern trademark law. Second, judges adopted a specific construction of the consumer mind in the early 1900s to reconcile the tension between legal protection for trademark goodwill and belief in free competition. They concluded that although advertising successfully generates positive thoughts in consumers' heads, consumers will switch their trademark allegiances when presented with a better quality product from a competitor. In other words, the mark left by advertising is not permanent. Recent research in cognitive psychology suggests, however, that advertising does leave a permanent mark on its audience. Based on new insights into the involuntary functioning of the consumer mind, the Article suggests that trademark doctrine should be altered to avoid privileging marks that are already popular with consumers and are unlikely to ever lose their luster in our subconscious.

Tsesis on The Inalienable Core of Citizenship: From Dred Scott to the Rhenquist Court

Alexander Tsesis, Loyola University of Chicago, has posted a new article, The Inalienable Core of Citizenship: From Dred Scott to the Rehnquist Court. It is forthcoming in the Arizona State Law Journal. Here's the abstract:

This 150th anniversary of the Dred Scott decision presents the opportunity to assess whether the Supreme Court continues to rely on notions of states' rights doctrine to thwart civil rights initiatives. Particularly suspect are recent findings that Congress abused its Fourteenth Amendment Section 5 authority in passing the Religious Freedom Restoration Act, the Violence Against Women's Act, and parts of the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). While those decisions by no means treat victims as sub-humans, in the way that Dred Scott did blacks, they display a knee jerk rejection against federal efforts to protect individual rights for the common good.

This Article evaluates the extent to which congressional authority under the Thirteenth and Fourteenth Amendments, which were designed to overrule Dred Scott, extends to the protection of inalienable rights. The second part reflects on the universal rights Revolutionaries claimed were at the core of nationhood. That part also examines how the pragmatic, constitutional compromises they made for the sake of union sullied their achievements. The third part examines the extent to which Dred Scott distanced itself from the protection of universal rights that transcend state sovereignty. Part four discusses Reconstruction of the American conception of citizenship through both constitutional amendment and legislative initiatives. That section further considers how the Supreme Court undermined changes to the Constitution, gravitating back to the antebellum primacy of state authority over universally recognized rights. Part five discusses post-Reconstruction judicial interpretations of the Fourteenth Amendment. Part six then delves into some recent limitations on federal civil rights authority, which the Rehnquist Court predicated on state sovereignty, swinging the pendulum away from the Warren Court deference to legislative efforts on behalf of civil rights back to the Taney Court's narrow construction of federal powers.