Wednesday, October 31, 2007
Tamanaha on The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field
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.
Some outstanding Halloween dog costumes.
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.
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.
Tuesday, October 30, 2007
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
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.
Monday, October 29, 2007
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.
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.
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.
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.
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.
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.
A link to a recent paper by Beauchamp is here.
Sunday, October 28, 2007
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
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.
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.
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.
Saturday, October 27, 2007
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 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
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 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 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.
And...only 35% geek, which just goes to show you that non-geeks can blog. ("Is that all?" asked the boyfriend. Ouch!)
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.
Friday, October 26, 2007
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." ). 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.
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.
Thursday, October 25, 2007
Priest reviews McNamara, From Tavern to Courthouse: Architecture and Ritual in American Law, 1658-1860
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).
Wednesday, October 24, 2007
Update: Tips from other law blogs: You can donate directly to the San Diego Chapter of the American Red Cross (hat tip Truth on the Market), or to Catholic Charities in LA or San Diego, which broadly serves the poor, not just Catholics (hat tip Bainbridge).
10/25 Update: From the LA Times: The McCormick Tribune Foundation has teamed up with partners in California to create two fire relief campaigns, one in the San Diego area and one in the Los Angeles area. The Foundation will match at least the first $500,000 raised for each campaign at fifty cents on the dollar. Additional matching funds will be made available based on fundraising response. All donations, plus the match, will go directly to agencies supporting disaster response and recovery efforts for those affected by the fires, as the Foundation and its partners cover all administrative costs. [Note: the direct link from the LA Times webpage does not work at this writing. Use the links from this blog, or google the foundation.]
Personal update: Because I've gotten queries, a personal note: My home in LA is not affected. It is in Santa Monica, not near the LA fire area. I am away in Princeton this year, and far from all of this, and my daughter is in high school in the Boston area.