Monday, December 22, 2008

Law and History Review 27:2

Pre-print drafts of the articles forthcoming in volume 27, issue 2 of Law and History Review are now up on its website. Here are the abstracts and links:

Rebecca Probert, Control over Marriage in England and Wales, 1753-1823: The Clandestine Marriages Act of 1753 in Context
It has been widely assumed that the Clandestine Marriages Act of 1753 was absolute in its requirement that parental consent be given to the marriage of any minor, and that the period during which it was in force marked a distinctive epoch in English legal history in this respect. Yet even after the Act the absence of parental consent did not invalidate a marriage in all circumstances, and there were a number of ways in which parental control could be avoided. Moreover, both the earlier canon law and the legislation that in 1823 replaced the 1753 Act also required parental consent, even if its absence did not render a marriage void. There has also been a tendency to view the provisions of the 1753 Act in isolation from other legal initiatives, but within the propertied classes conditions in wills that made financial provision dependent on the recipient marrying with the consent of a named person provided a further layer of control, as did the wardship jurisdiction of the Court of Chancery. Viewed in context, the 1753 Act was both less drastic and less distinctive than has been assumed, and the extent to which a minor’s choice of marriage partner might be constrained varied considerably according to class and gender.
Daniel R. Ernst, The Politics of Administrative Law: New York’s Anti-Bureaucracy Clause and the O’Brian-Wagner Campaign of 1938
In the latter half of 1938 administrative procedure was at the center of political debate in New York State. In August a constitutional convention adopted, subject to ratification in the fall, a provision to permit courts to determine for themselves the facts underpinning the adjudications of state agencies. In October John Lord O’Brian’s bid to unseat U.S. Senator Robert F. Wagner became a referendum on the procedures of his legislative offspring, the National Labor Relations Board. The controversies revealed divisions in the legal profession and the party system that would ultimately determine how the bureaucracies of the 1930s were incorporated into the American legal and political order. Trial lawyers in the New York State Bar Association and “Old Guard” Democrats and Republicans pressed for heightened judicial review. They were opposed by Wall Street lawyers and liberals in the state Republican Party who preferred to make agencies’ procedures more like those of the courts. The election returns in November showed the political superiority of this “procedural Diceyism” and had implications for the history of party competition, the sociology of the legal profession, and the New Deal.
Leslie J. Reagan, Rashes, Rights, and Wrongs in the Hospital and in the Courtroom: German Measles, Abortion, and Malpractice before Roe and Doe
This essay analyzes an innovation in malpractice law–now known as “wrongful birth” and “wrongful life” suits–through a close reading of trial transcripts and surrounding legal, medical, and popular media materials. These suits first arose in the early 1960s in the midst of the German measles epidemic when the nation feared the disease and its “crippling” effects on the developing fetus. The trial record exposed much of medical practice, physician-patient communication, and ideas about disability, but it also suppressed crucial information. Analyzed in conjunction with media sources and the social record, these suits reveal the complex and subtle ways in which reputations, religion, race, and class entered medical decision-making about providing medical care, in these cases, therapeutic abortions. Finally, this article provides a new perspective on the cultural and parental attitudes toward children with disabilities in the 1960s.
Mary Ziegler, The Framing of a Right to Choose: Roe v. Wade and the Changing Debate on Abortion Law
Roe v. Wade has produced an impressive body of historical scholarship, focused on rights-based arguments and alliances that shape abortion debate today. However, before Roe, policy-based arguments were at least as important to abortion advocacy. One such argument described abortion as a method of population control, designed to cut welfare expenses, reduce pollution, or cut illegitimacy rates. By shifting the balance in the debate away from policy-based arguments, including those related to population control, Roe reshaped the coalitions involved in the abortion debate. Before Roe, supporters of population control, now not associated with pro-choice advocacy, were willing to support abortion reform. In turn, pro-life activists emphasized the threat that population control might pose to African-Americans, and some African-Americans who supported abortion after Roe opposed abortion reform when, before the decision, abortion was thought of as population control. Roe helped to change the rhetoric and coalitions that define abortion debate. By neglecting this change, the leading histories have missed what Roe reveals about how judicial decisions matter politically and culturally. In re-framing a political issue, a judicial decision can help to reshape the coalitions and arguments that define the debate.

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