Thursday, February 28, 2008

Drafting the Future of Human Rights

"2048: DRAFTING THE FUTURE OF HUMAN RIGHTS" will be held at Boalt Law School (U.C. Berkeley) tomorrow. Speakers include Mary Robinson, Past President of Ireland and a former United Nations High Commissioner for Human Rights, and Robert Haas, Chairman Emeritus of Levi's and Karima Bennoune, Professor, Rutgers University, Board Member, Amnesty International USA.

The historical context will be addressed at an afternoon panel: "Looking Back on the Future of Human Rights: 1948, Race, and the Cold War."


Jonathan Simon, Associate Dean for Jurisprudence and Social Policy, UC Berkeley (moderator).

Carol Anderson, Professor of History, University of Missouri, author of "Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights."

Elizabeth Borgwardt, Professor of History, Washington University in St. Louis, author of "A New Deal for the World: America's Vision for Human Rights." (She is unable to attend, but her book is essential reading.)

Mary L. Dudziak, Judge Edward J. and Ruey L. Guirado, Professor of Law, History, and Political Science, University of Southern California, author of "Cold War Civil Rights: Race and the Image of American Democracy" and "Exporting American Dreams: Thurgood Marshall's African Journey."

The program and on-line resources on the Universal Declaration of Human Rights are here.

Stewart on "Customs in Common": The Old Emperor's Clothes

'Customs in Common': The Old Emperor's Clothes has just been posted by Iain M. Stewart, Macquarie University. It appeared in the Macquarie Law Journal (2006). Here's the abstract:
Assesses whether the concept of 'custom' continues effectively to identify a more popular alternative to formal law, as canvassed by E.P. Thompson in Customs in Common (1991). Traces the development of the idea of 'custom' or 'customary law' in the western legal tradition, from Justinian through Norman law (Laws of William, Glanvill, Bracton) and common law, then in the respectively anti-popular and pro-popular reflections of Savigny and Marx. Agrees with Thompson that popular customs can be nasty as well as nice. But concludes that, whatever sense the concept of 'custom', may once have been made in legal or law-related discourse, that sense has now disintegrated. Little remains but Owl's observation to Pooh that 'the customary procedure' is 'the Thing to Do'.

Call for Papers: Politics and the Constitution

Conference on Politics and the Constitution
San Francisco State University
September 16-17, 2008

DEADLINE July 1, 2008.

Call for Papers: Politics and the Constitution. San Francisco State University will host its fourth annual conference exploring the U.S. Constitution and its history. The conference will meet on the campus of San Francisco State University on Tuesday and Wednesday, September 16 and 17, 2008. Our theme this year looks at the Constitution and elections, politics, and the political process. Possible topics include the Electoral College and electoral controversies from1800 to 2000, the Supreme Court's role in the political process, the Supreme Court and constitutional interpretation as a campaign issue,popular constitutionalism, and national security and civil rights.
We invite proposals from graduate students and established scholars on topics dealing with political influences on the judiciary as well as judicial influences on the political process regardless of time period.
The deadline for submission of proposals, consisting of an abstract(s)and a one-page c.v. is July 1, 2008. Complete panels or individual paper proposals will be considered. Send your proposal to Robert Cherny, Department of History, San Francisco State University, San Francisco, California 94132. Alternatively, you can send your proposal as an e-mail attachment to Hat tip.

Wednesday, February 27, 2008

Gillers on The Transformation of American Obscenity Law from Hicklin to Ulysses II

Stephen Gillers, New York University, has posted a recent article, A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II. It appeared in the Washington University Law Review (2007). Here's the abstract:
How is it that between 1922 and 1934, James Joyce's Ulysses, considered the greatest English language novel of the twentieth century, could not get published in the United States without risk of prosecution and jail? How did American law get its ideas about obscenity and censorship so wrong? This Article closely analyzes the facts and the reasoning,or lack of reasoning,in R. v. Hicklin, the Queen's Bench decision of 1868 whose throwaway single sentence defining obscenity was reflexively adopted by American courts and became the greatest legal impediment to artistic freedom in the United States for nearly a century. The Article traces Hicklin's influence in the United States through the first third of the twentieth century. Using archival and other sources, it then closely examines the first court test of a part of Ulysses,in New York in 1920-21, a case that might have been won, but ended in the obscenity convictions of two women who published an obscure literary magazine. Their convictions impeded publication of the book until Morris Ernst's brilliant legal strategy gave his client, Random House, confidence that it could publish Ulysses in the United States without fear of prosecution. While the district court decision in Ernst's favor is rightly applauded for freeing Ulysses, the judge's reasoning does not resemble anything we can recognize as law. It is a decision for one book only. Even Augustus Hand's opinion for the Second Circuit affirming Ernst's victory, which cousin Learned joined and which contains the seeds of modern obscenity doctrine, required some jurisprudential sleight of hand to escape unfavorable circuit and Supreme Court precedent. The story from Hicklin to Ulysses II is both riveting in itself and as legal and cultural history. But it is also a lesson about harm done when government interferes with the intellectual and personal autonomy of individuals.

Tuesday, February 26, 2008

Martinez archival documents posted by Yale L.J. Pocket Part

The new issue of the Yale Law Journal Pocket Part focuses on Jenny Martinez's (Stanford) recent article, Antislavery Courts and the Dawn of International Human Rights Law, which appeared in the Yale Law Journal, posting digital images of some of the archival documents Martinez relied on. Hat tip. According to the article: "between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts were the first international human rights courts." More details are here.

This is a great use of the law review on-line supplement. I hope more journals will use their on-line supplements to link to original research.

Hammer on Catholicism and Evolution from Scopes to Dover

Reconciling Faith, Reason, and Freedom: Catholicism and Evolution from Scopes to Dover has just been posted by Christoper M. Hammer, a JD and History MA candidate at the University of Virginia. Here's the abstract:
The participants in the Scopes trial presented a dramatic tension between religion and science that tended to highlight a mutual exclusivity between traditional belief in God and adherence to the theory of evolution. The reaction of the nation's Roman Catholics to the trial, underrepresented in previous scholarly accounts, tend to undermine this stark dichotomy between religion and science. This paper traces reactions to the trial published in Catholic periodicals to present their acceptance of the principles underlying each side of the trial - the defense's appeal to human reason and the prosecution's appeal to faith - and their rejection of what they considered to be each side's excesses. These same tensions - deriving from the principle of compatibility between the Catholic faith and scientific observation - were present in the Dover litigation over a school district's promotion of the alternative theory of intelligent design to explain human origins.

Monday, February 25, 2008

Call for Proposals: African Studies Association

The African Studies Association is accepting proposals for its 2008 annual meeting, to be held November 13-16, 2008 in Chicago, Illinois. The deadline is March 15. Details about how to submit a proposal are here. The theme for the meeting is “Knowledge of Africa: The Next Fifty Years.”


Over the past fifty years, the types and levels of academic knowledge produced in African Studies have advanced impressively. African knowledge has gained growing recognition in all fields, from music to the environment, and new constituencies have generated and applied their knowledge to situations on the ground. The fiftieth anniversary of the annual meetings of the African Studies Association marks an important milestone and offers an opportunity to take stock of African Studies and map out possible future directions in the field, which has been characterized by complex interplay between academic analysis and social concern, theory and policy, and knowledge within and outside the continent. Also, knowledge production practices in African Studies have varied between disciplinary and interdisciplinary modes of inquiry; some disciplines and interdisciplinary fields have made greater advances than others.

The theme for the 2008 ASA annual meeting centers on current and projected advances in African Studies as a body of knowledge. The past fifty years of African Studies involved vigorous debate and attempts to overcome Eurocentric theories and analytical models and their application in scholarly and policy discourses. In various disciplines and interdisciplinary fields scholars debated about the relevance of existing theories and methodologies, and sometimes sought to develop new ones, in explaining African phenomena. The applicability of ostensibly universal conceptual schemas was particularly fraught in the realm of policy formation. Many scholars and social activists queried the relevance, and stressed the devastating consequences, of policy prescriptions devised by international agencies and Western governments, such as structural adjustment programs, that were imposed on African countries and took little account of African realities.

As we ponder the next fifty years, based on the past half-century of debate, empirical study, and conceptualization, what are the likely trajectories of knowledge production in the various fields of study and inquiry in African Studies? What are the likely intersections between Africanist and global knowledges, knowledges produced within and outside the continent, and knowledge production and policy formation? Mapping out future directions in African Studies requires an understanding of the changing institutional architecture and ideological trends within Africa and in the major external centers of Africanist knowledge production including the United States—the profound transformations taking place and that are likely to take place in higher education institutions and research systems and in regional and global policy regimes.

This fifty-year anniversary, therefore, provides a good time to review the state of knowledge production in African Studies: the central problems that have been examined, the theories and concepts that have been applied and developed, the most useful principles and methodologies of research, and the relationships among theory, empirical evidence, and policy. Conceptualization and especially theory are central to the development of knowledge in each area of African Studies, so it is critical to interrogate the theoretical and conceptual foundations in the various areas of inquiry in the field. The guiding theories may of course differ in the various categories of disciplines: social science, humanities, arts, liberal professions, natural sciences, and interdisciplinary or transdisciplinary studies.

Out of this systematic attention to knowledge production, it is hoped that the conference will yield an assessment of what the disciplines have become and how African Studies have transformed them. It is also hoped that discussion at the annual meeting will yield a sense of the evident needs and directions of change in African Studies knowledge production.

There is more here.

Benvenisti on The Origins of the Concept of Belligerent Occupation

The Origins of the Concept of Belligerent Occupation is a new article by Eyal Benvenisti, Tel Aviv University. Benvenisti has posted only the abstract. The full text will be available later this year when it appears in the Law and History Review. Here's the abstract:
The law of occupation imposes two kinds of obligations on an army that seizes control of enemy land during war: the obligation to protect the lives and property of the invaded population and the obligation to respect the sovereign rights of the ousted government. These two principles, which reflect the private and public aspects of the law, stem from unrelated intellectual, social, and political roots. This Essay tracks the parallel yet separate evolution of these two aspects of the law until they merge in the text of the 1899 Hague Regulations. The private aspect, the principle of immunity of private property of enemy nationals, was first raised by Vattel and Rousseau in the second half of the eighteenth century, as an extension of the basic distinction between combatants and non-combatants. The public aspect reflects the crystallization of the idea of sovereignty as a collective claim for exclusive control over territory and nationals, inspired by the ideas of the French Revolution and sustained by the balance of power that emerged in Europe at the time. The Essay traces the development of the notion of belligerent occupation as a regime distinct from conquest and its transformation from an idea into a norm of general international law.

Corcos on The Use of Tocqueville's Writing in U.S. Judicial Opinions

Christine A. Corcos, Louisiana State University, has posted a new essay, A Man for All Reasons: The Use of Tocqueville's Writing in U. S. Judicial Opinions. It is forthcoming in the Louisiana Law Review (2008). Here's the abstract:
The United States has never been given to particular adoration of foreign observers of its mores, who quite often turn out to be critics rather than admirers. Nevertheless, one of its favorite visitors since his one and only appearance on the scene in 1831-1832 is the 25-year-old magistrate Alexis de Tocqueville, sent by his government to study penal reform in the new republic. Tocqueville and his good friend Gustave de Beaumont, like young adventurers before and since, took the opportunity to extend their stay, and turned their tour of prisons into a journey through the young nation that furnished the raw material for what readers ever since have considered to be the single most insightful study of the United States ever written. Since the publication of Tocqueville's study, titled De la democratie en Amerique, which appeared in English in 1835, the second volume following in 1840, all manner of students of U. S. society have pored over it, studying it, quoting and misquoting it, and claiming it as support for their varied ideas. Both conservatives and liberals have claimed Tocqueville as a founding father of their thought. But as John Lukacs points out, Tocqueville cannot be so simply categorized.
Through all of these evaluations, assessments and hagiographies, commentators sometimes lose sight of the fact that Tocqueville was, by training and choice, an attorney, and what is more, a civil law trained attorney, a magistrate, a member of the Legislative Assembly, a drafter of the Constitution of France's Second Republic and a member of Louis-Napoleon Bonaparte's Cabinet. Ultimately, as one student of his thought points out, it may not matter.
As a civilian, Tocqueville was trained in a newly formed legal regime. As an attorney practicing within a code enacted only a year before his birth, he had a vital interest in determining how such new codes could be integrated into existing social, political, and legal environments. His interest in the new republic across the ocean, which was engaged in a similar experiment, was at once philosophical and practical. Thus, what use U. S. judges have made of his words in their own opinions is certainly of interest.

Sunday, February 24, 2008

Sunday book review round-up

"A strong ideological fixation is not a promising basis for a responsible foreign policy," is the opening line of "One Angry Man," Brian Urquart's review of a Bush Administration memoir, Surrender Is Not an Option: Defending America at the United Nations and Abroad by John Bolton (Threshold), in the New York Review of Books. Bolton, who served as U.S. ambassador to the United Nations on a recess appointment, resigning when it became clear that he would not be confirmed, seems angry at just about everything. But his time as a diplomat was not without its satisfactions. His "happiest moment at State,...was personally 'unsigning' the Rome Statute," which set up the International Criminal Court. For Urquart, however, "These and other of Bolton's achievements as undersecretary did much to undermine America's leadership and position in the world."

Truth and reconciliation commissions are explored in a fictional account by David Park, THE TRUTH COMMISSIONER (Bloomsbury), reviewed by David Horspool for the London Times. Horspool writes:
Park occupies the interiors of all [commission participants] with a sympathy that does not shy away from the squalor of what they have perpetrated and witnessed. The refusal to draw facile lessons is reinforced by the fact that the least likable character is the one with ostensibly the highest moral standing: truth commissioner Henry Stanfield. Unfaithful, venal and irresolute, he is a reminder that whatever the motives behind an institution, it is administered by flawed individuals.
He praises the novel for its "combination of the hardest of realities with a measure of poetry and of humanity."

History, story-telling, and the limits of evidence are touched on in David Waldstreicher's New York Times review of MR. AND MRS. PRINCE: How an Extraordinary Eighteenth-Century Family Moved Out of Slavery and Into Legend by Gretchen Holbrook Gerzina (researched with Anthony Gerzina) (Amistad/HarperCollins Publishers). For this book,

Gretchen Holbrook Gerzina went looking for an African-American Yankee with a royal name, locally famous for performing ballads and arguing for her rights in court. In the case of Lucy Terry Prince, the recoverable truth is limited, but it still has more drama than the sketchy legend....Years of strenuous digging in the account books and personal papers of whites who knew the Princes have enabled Gerzina to present a moving, if less than rounded, portrait of a striving family....But “Mr. and Mrs. Prince” isn’t — it can’t be — the inner life of a vernacular poet and her enterprising husband. Instead of lamenting the limits of the evidence, the author spins a parallel story out of the dig for evidence. For the most part, the search is artfully woven into the story of the Princes’ hard work.

Read more about it here.

Drew Gilpin Faust's acclaimed new book, This Republic of Suffering: Death and the American Civil War (Knopf) is reviewed in the Washington Post by Stephen Budiansky. He writes:

The American Civil War was the first "war of peoples," and as Drew Gilpin Faust vividly demonstrates, the unprecedented carnage of this first modern war overwhelmed society's traditional ways of dealing with death. The customs, religion, rhetoric, logistics -- even statistical methods -- of mid-19th century America were unequal to slaughter on such a scale. How American society attempted to come to terms with death that broke all the rules about dying, and how the nation ultimately did -- and did not -- face up to this new reality of war are Faust's haunting and powerful themes. If nothing else, this finely written book is a powerful corrective to all the romantic claptrap that still envelops a war that took as many American lives, 620,000, as all other wars from the Revolution to Korea combined.

In Budiansky's view, "Faust convincingly demonstrates that the trauma of the Civil War revolutionized the American military's approach to caring for the dead and notifying families," but "is less convincing in making a case that the war's confrontation with death produced a permanent transformation in American belief, politics, character, habits of mind and modes of expression." Read the rest here. Also reviewed is HOW THE SOUTH COULD HAVE WON THE CIVIL WAR: The Fatal Errors That Led To Confederate Defeat by Bevin Alexander (Crown).

Saturday, February 23, 2008

Newberry Library Symposium on Comparative Early Modern Legal History

Center for Renaissance Studies
Symposium on Comparative Early Modern Legal History

"Criminal Justice in the British Atlantic World, 1500-1850"

Friday, February 29, 2008 ~ 9 am- 5 pm

The Symposium on Comparative Early Modern Legal History is sponsored by the University of Illinois at Urbana- Champaign and organized by Bruce Smith. The Symposium gathers yearly under the auspices of the Center for Renaissance Studies in order to explore a particular topic in the comparative legal history of the Atlantic world in the periodc.1492-1815. For a tentative list of speakers and more information on the symposium, please visit this page.


While there is no fee to attend the Newberry Library's Symposium on Comparative Early Modern Legal History, participants should register in advance. To register, please contact the Center for Renaissance Studies at 312.255.3514, or at Funds may be available for graduate students and faculty of Consortium institutions to travel to the Newberry Library to attend the Symposium on Comparative Early Modern Legal History. If you have any questions,please contact the Center for Renaissance Studies.

Hat tip: H-Law. Image credit.

Friday, February 22, 2008

Richardson, The Origins of African-American Interests in International Law

The Origins of African-American Interests in International Law by Henry J. Richardson III has just been published by Carolina Academic Press.

Book description:

This book explores the birth of the African-American international tradition and, particularly, the roots of African Americans' stake in international law. Richardson considers these origins as only formally arising about 1619, the date the first Africans were landed at Jamestown in the British North American colony of Virginia. He looks back to the opening of the European slave trade out of Africa and to the 1500s and the first arrival of Africans on the North American continent. Moving through the pre-Independence period, the American Revolution, the Constitutional Convention, and the Westward Migration, the book ends around 1820.
This historical period also roughly corresponds to two other key historical phenomena greatly affecting the Atlantic Ocean basin: the rise of international law as a modern legal system (including European states and their Atlantic colonies) and the rise and flourishing of the international slave trade in African slaves to the Americas by European and New World governments and merchants. Only by placing African slavery in the British North American colonies in the context of the international slave system encompassing and linking the New World can the voices, struggles, demands, claims, and decisions of slaves and Free Blacks in North America towards freedom, relative to their evolving interests under international law, be properly understood. These interests comprise no less than the birth of an African-American international jurisprudence.


This magnificent study by Professor Richardson of the relevance of international law to the struggle of African Americans against slavery and the slave trade of the course of several centuries deserves the widest possible reading. Such an outstanding jurisprudential account of anti-slavery resistance from the perspective of slavery's captives fills a crucial gap in the scholarly literature. It is a great contribution. --Richard Falk, Albert G. Milbank Professor of International Law and Practice Emeritus, Princeton University, and Visiting Professor of Global and International Studies, University of California at Santa Barbara
Richardson's important book might be read alongside works on African Americans and foreign relations, especially Brenda Gayle Plummer, Rising Wind: Black Americans and U.S. Foreign Affairs, 1935-1960 (University of North Carolina Press, 1996). See also The African American Voice in U.S. Foreign Policy Since World War II, Michael Krenn, ed. (Routledge, 1999).

Balmer on the Influence of Hobbes on Holmes

Thomas A. Balmer, Associate Justice of the Oregon Supreme Court, has just posted an article, Present Appreciation and Future Advantage: A Note on the Influence of Hobbes on Holmes. It appeared in the American Journal of Legal History (2005). Here's the abstract:

Oliver Wendell Holmes, Jr., was a major figure in American law, philosophy, and social thought generally, and his influence is still felt in those fields. This article examines the influence of Thomas Hobbes on Holmes. The article examines Holmes's reading of Hobbes's works and Holmes's references to Hobbes in judicial opinions and other writings. It then considers several parallels between the views of Hobbes and Holmes, including their view of life as a ceaseless struggle for self-preservation and power; the absolute nature of sovereign power; and the positivist view of law, in contrast to natural law. The article closes with some observations about the role of literary style in the writings of Hobbes and Holmes.

Image credits:
Hobbes, Holmes.

What you missed in Tempe

The imaginative local arrangements committee for last fall's American Society for Legal History conference, chaired by Jon Rose of Arizona State, has not let the end of the meeting put an end to its labors. They've just circulated a slideshow of the meeting, complete with captions. If you missed linking up with colleagues in Tempe, you can find them here.

Davies on Correcting Search-and-Seizure History

Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law, is a new article by Thomas Y. Davies, University of Tennessee. It appeared in the Mississippi Law Journal (2007). Here's the abstract:
The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.
The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.
Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.
Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities.

Thursday, February 21, 2008

Kreimer on FOIA, The Abuses of Anti-Terrorism, and the Strategy of Transparency

Seth F. Kreimer, University of Pennsylvania, has a new article, RAYS OF SUNLIGHT IN A SHADOW “WAR”: FOIA, THE ABUSES OF ANTI-TERRORISM, AND THE STRATEGY OF TRANSPARENCY (pdf). It has just appeared in the Lewis & Clark Law Review. Hat tip to the FOIA Blog. Here's the abstract:
In the wake of the September 11 attacks, the “Global War on Terror” has marginalized the rule of law. From the dragnet detentions in the aftermath of the initial attacks, to novel and secretive surveillance authority under the Patriot Act, to the incarceration and torture of “enemy combatants,” the administration’s “war” has sought to establish zones of maneuver free of
both legal constraint and of political oversight. In the first half decade of these efforts, the tripartite constitutional structure which is said to guard against executive usurpation remained largely quiescent. Opponents both inside and outside of the government turned instead to subconstitutional structures to expose this self-avowed “dark side,” and to lay the foundation for a return to the rule of law. This Article examines four case studies of this strategy of transparency. At the center of each account lies the Freedom of Information Act (FOIA). The studies highlight, however, the crucial roles played by a broader complex of structures of transparency that have come to constitute the framework of national governance during the last generation, the importance of the integrity of the civil servants administering those structures, and the fulcrum of sustained advocacy.

Munoz on George Washington on Religious Liberty

George Washington on Religious Liberty has just been posted by Vincent Phillip Munoz, Tufts University. The article appeared in The Review of Politics (2003). Here's the abstract:
Despite the Supreme Court's repeated invocations of America's founding fathers for First Amendment religion jurisprudence, George Washington's political thought regarding religious freedom has received almost no scholarly attention. This is unfortunate, for Washington's words and actions speak to contemporary Establishment Clause and Free Exercise issues. Washington, moreover, offers an alternative to Jefferson's and Madison's approach to church-state matters. The scholarly exclusion of Washington thus has led to a narrow view of the founders' thought on religious liberty. This article sets forth Washington's understanding of the right to religious liberty. It pays particular attention to Washington's disagreement with Madison on the propriety of government support of religion. It also draws attention to the limits Washington placed on an individual's right to religious free exercise by focusing on how Washington dealt with Quaker claims for religious exemptions from military service.

Wednesday, February 20, 2008

Welcome to Richard Ross

I am very pleased to introduce Richard Ross, the Legal History Blog's new Guest Blogger. Richard is Professor of Law and History, Thomas M. Mengler Faculty Scholar, and Co-Director of the Program in Legal History at the University of Illinois. He is currently at work on a book on the intellectual history of legal communications in early modern England and early America. He has a number of forthcoming articles: “Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of ‘Intensity,’” American Historical Review 113 (in press, October 2008); “The Career of Puritan Jurisprudence,” Law and History Review 26 (in press, summer 2008); and “Legal Communications and Imperial Governance: British North America and Spanish America Compared,” in Cambridge History of Law in America, eds. Christopher L. Tomlins and Michael Grossberg (in press, Cambridge University Press, 2008). His full list of publications is here.

Richard is the founder and director of the Symposium on Comparative Early Modern Legal History, which meets under the auspices of the Center for Renaissance Studies at the Newberry Library (Chicago). The Symposium yearly presents a conference that gathers law professors, historians, and social scientists to explore a particular topic in comparative legal history in the early modern period, broadly defined (c.1492-1815). He is overseas this year, and I hope he will share his insights on European archives.
Update: Richard will begin blogging in mid-March.

Thanks, Al!

Many thanks to Al Brophy of the University of Alabama for his great stint as the Legal History Blog's first guest blogger. Al can be found blogging both at Property Prof and a new blog, Faculty Lounge.

Look for guest appearances by other legal history luminaries, coming soon.

The Market and Tort Law in the Antebellum Era

Some of the richest debates in intellectual history in recent years have taken place in discussions of the complex relationship between the rise of capitalism and the rise of antislavery sentiments. Much of this debate is presented in Thomas Bender's edited volume, The Antislavery Debate.

To present a thumbnail sketch: there is a question about why antislavery sentiments came on so strongly, beginning about the time of the American Revolution, and became so triumphant within such a short compass of time. From the beginning of the American Revolution in 1775 until the end of the Civil War in 1865, there was an extraordinary shift in attitudes towards slavery; and also towards the market. What, then, do we make of the correlation between them?

David Brion Davis, one of the most and perhaps the most distinguished historians of slavery, suggested in Slavery in the Age of Revolution (1975) that the growth of the market led to further something of class consciousness. The movement against slavery validated free labor. Much to this, I think.

There are some pretty cool thought-experiments you could run on this. For instance, one might test this with reference to the anti-rent movement in up-state New York in the 1840s though the 1860s. (Thoughts on Charles McCurdy's important book on the anti-rent movement here.) I hope to have some well-considered thoughts on this later; for now I'll note that the anti-renters did not correlate highly with anti-slavery voters.

Thomas Haskell of Rice University's history department suggested an alternative hypothesis: that the growth of the market led individuals to have a wider sense of their world--it led them, to understand the effects of their decisions on others. Pretty interesting stuff here--and connected in a lot of ways to the common sense moral philosophy that is related to Adam Smith's thought.

I'm partial to John Ashworth's interpretation, which is that the increase in wage labor led to increased awareness of the ways that slavery interfered with wage labor. But this is a topic on which there's a lot to say.

So that led to me think about the connections of capitalism to common law development. Morton J. Horwitz' incredibly influential Transformation of American Law, 1780-1860 (1977) is in a lot of ways similar to Davis' Problem of Slavery in the Age of Revolution. Horwitz links development of the common law to the development of the market. And like Davis, Horwitz sees the correlation in class terms--judges worked in conjunction with lawyers to create a pro-development common law. (This rapidly becomes very complex; my apologies for the cryptic version here. I'm happy to play through permuations in the discussion.) That is, Davis and Horwitz see the market as creating divisions among Americans. Not too surprsing, I suppose. There's some pretty interesting stuff to talk about with the development of the market and the common law, as well. Did the common law evolve in a more pro-market direction from the Revolution throught the Civil War? (And there are even more basic questions, like what would that mean?)

What, I wonder, is the parallel to Haskell in the legal history literature? I'm wondering if there's some space for thinking through Haskell's interpretation of how the market transformed humans (mostly Americans') moral sensibilities in the legal system. Might we, for instance, test his thesis that the market created a wider sense of duty by looking at tort cases?

That question led me back to G. Edward White's intellectual history of tort law. White's mostly concerned with tort law post-1870, but in the first chapter he sketches a similar process to Haskell.

So here's a question: is there evidence of this "widening perception" in the antebellum tort cases? That is, can we detect any hints of such sentiments in cases from northern or southern judges in the period 1800-1860? So that sends me off to some of the formative tort cases, like Farwell v. Boston & Worcester R.R. or one of my new favorite cases, Thomas Ruffin's Heathcock v. Pennington, about a slave who died in a mine accident. Ruffin placed the loss on the slave's owner, rather than the owner of the mine.

One other question: while antislavery sentiments grew, they grew rather slowly. Even on the eve of Civil War, a majority of voters (so far as we can tell) we not terribly concerned with the welfare of slaves. I wonder if we ought also to be looking at the other side of the coin: the correlations between the market and proslavery thought? (I'm partial to Davis' and Ashworth's explanation, which is that the growth of antislavery had more to do with the competition between wage and slave labor than with widening horizons caused by the market.)

We certainly should bring into the discussion Eugene Genovese and Elizabeth Fox-Genovese's work on The Mind of the Master Class. (They argue that proslavery thinkers were anti-capitalist.) And in opposition to them, I'd wheel out some of the pro-market southern judges, who were also among the most prominent proslavery thinkers of the antebellum era (Thomas Ruffin and Joseph Lumpkin). Ah, this rapidly becomes to burdensome to sustain in a blog entry....

And with that I think it's time to decamp from my visit here at legalhistoryblog and return to writing University, Court, and Slave--which is about moral philosophy in the old South. I've had an absolutely wonderful time visiting and I very much hope that Mary will let me come back again sometime.

Tsai on Reconsidering Gobitis: Lessons in Presidential Leadership

Reconsidering Gobitis: Lessons in Presidential Leadership, is a new paper by Robert L. Tsai, University of Oregon (& moving to American University). A principal source for the paper is archival records at the FDR Library. Much has been written about Gobitis, of course, but among Tsai's contributions, which go beyond the case itself, is to examine the Court and the executive branch together, rather than the Court in isolation. Here's the abstract:
In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of terror visited upon Jehovah's Witnesses in the wake of Gobitis. Drawing upon previously unearthed archival material, this article for the first time attributes the dramatic upheaval in legal reason to the mechanics of linguistic transformation spurred by presidential initiative. A sophisticated strategy implemented by the executive branch altered the social terrain within which constitutional text was read, systematically eroded the picture of communal life rhetorically constructed by the High Court in Gobitis, and presented an alternative reading of the First Amendment in urgent and attractive fashion. Despite what many believed to be a deliberative moment, however, the Supreme Court incompletely memorialized the dialogic interaction between the branches of government. By copying the President's words without attribution, the Justices impoverished our appreciation of the constitutional system in action. Understanding the remarkable episode within this paradigm sheds light on a variety of enduring questions, from the necessary interconnections between judges and other social actors as they together build a constitutional vocabulary, to the post-war ascendancy of the First Amendment in the public mind, to the benefits and risks of presidential initiative as to rights.

Tuesday, February 19, 2008

Schulman & Zelizer, eds., Rightward Bound: Making America Conservative in the 1970s

Rightward Bound: Making America Conservative in the 1970s, Bruce Schulman and Julian E. Zelizer, eds., has just been published by Harvard University Press. It might be read along with The Rise of the Conservative Legal Movement: The Battle for Control of the Law, by Steven M. Teles, recently noted here. Schulman & Zelizer's table of contents, with contributors, is here.

Book description:

Often considered a lost decade, a pause between the liberal Sixties and Reagan’s Eighties, the 1970s were indeed a watershed era when the forces of a conservative counter-revolution cohered. These years marked a significant moral and cultural turning point in which the conservative movement became the motive force driving politics for the ensuing three decades.

Interpreting the movement as more than a backlash against the rampant liberalization of American culture, racial conflict, the Vietnam War, and Watergate, these provocative and innovative essays look below the surface, discovering the tectonic shifts that paved the way for Reagan’s America. They reveal strains at the heart of the liberal coalition, resulting from struggles over jobs, taxes, and neighborhood reconstruction, while also investigating how the deindustrialization of northern cities, the rise of the suburbs, and the migration of people and capital to the Sunbelt helped conservatism gain momentum in the twentieth century. They demonstrate how the forces of the right coalesced in the 1970s and became, through the efforts of grassroots activists and political elites, a movement to reshape American values and policies.

A penetrating and provocative portrait of a critical decade in American history, Rightward Bound illuminates the seeds of both the successes and the failures of the conservative revolution. It helps us understand how, despite conservatism’s rise, persistent tensions remain today between its political power and the achievements of twentieth-century liberalism.

Endorsements include:
Rightward Bound brilliantly demonstrates how American conservatism emerged as a full-blown movement in the 1970s and, in the process, created the United States of the twenty-first century. It is a wonderful book! --Laura Kalman, University of California, Santa Barbara
A new generation of American historians demonstrates that the decade of the 1970s proved the crucial seed time for the rise of modern American conservatism. There was nothing inevitable about the nation's march to the right, which makes this book all the more fascinating and necessary for those who want to understand twenty-first century America. --Nelson Lichtenstein, author of Wal-Mart: The Face of Twenty-First-Century America

McMurtry Fellowship in Canadian Legal History

The pool of eligible applicants for this is limited to those with an affiliation with an Ontario University:

R. Roy McMurtry Fellowship in Legal History

The R. Roy McMurtry Fellowship in Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established byChief Justice McMurtry's friends and colleagues, and endowed by private donationsand the Law Foundation of Ontario.

The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University. The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history.
The selection committee may take financial need into consideration.The first fellowship will be awarded in July 2008, and will have a value of at least $16,000. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History. Those interested should apply by sending a full c.v. and a statement of the research they would conduct as a McMurtry fellow to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline for applications is April 15,2008. For more information contact

Hat tip: H-Law.

Carrington: Could and Should America Have Made an Ottoman Republic in 1919

Paul D. Carrington, Duke University Law School, has posted a new essay, Could and Should America Have Made an Ottoman Republic in 1919. It is forthcoming in the William & Mary Law Review (2008), and it draws from his 2005 book, Spreading America's Word: Stories of its Lawyer Missionaries. Here's the abstract:
Numerous Americans, perhaps especially American lawyers, have since the 1780s presumed to tell other peoples how to govern themselves. In 2006, that persistent impulse was once again echoed in an address to the American Bar Association by a Justice of the Supreme Court. The purpose of this essay is to question the wisdom of this evangelical ambition, especially when the form of instruction includes military force. It is draws on Spreading America's Word (2005) and directs attention to the hopes of American Protestant Zionists to make a democratic republic in Ottoman Palestine. It suggests that chances were better in 1919 than they are in 2008, but were none to good at that time. It rejects the appeal of the militant "neo-conservatives" who expressed their hopes and expectations in The Project for A New American Century, an instrument that should be read and remembered for centuries to come.

Monday, February 18, 2008

Teles, The Rise of the Conservative Legal Movement

Book Description:

Starting in the 1970s, conservatives learned that electoral victory did not easily convert into a reversal of important liberal accomplishments, especially in the law. As a result, conservatives' mobilizing efforts increasingly turned to law schools, professional networks, public interest groups, and the judiciary--areas traditionally controlled by liberals. Drawing from internal documents, as well as interviews with key conservative figures, The Rise of the Conservative Legal Movement examines this sometimes fitful, and still only partially successful, conservative challenge to liberal domination of the law and American legal institutions.

Unlike accounts that depict the conservatives as fiendishly skilled, The Rise of the Conservative Legal Movement reveals the formidable challenges that conservatives faced in competing with legal liberalism. Steven Teles explores how conservative mobilization was shaped by the legal profession, the legacy of the liberal movement, and the difficulties in matching strategic opportunities with effective organizational responses. He explains how foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from American elite institutions. And he portrays the reality, not of a grand strategy masterfully pursued, but of individuals and political entrepreneurs learning from trial and error.

Using previously unavailable materials from the Olin Foundation, Federalist Society, Center for Individual Rights, Institute for Justice, and Law and Economics Center, The Rise of the Conservative Legal Movement provides an unprecedented look at the inner life of the conservative movement. Lawyers, historians, sociologists, political scientists, and activists seeking to learn from the conservative experience in the law will find it compelling reading.

Endorsements include:

"The Rise of the Conservative Legal Movement provides an essential road map to the organizational mobilization of conservatives over the past quarter century."--Al Gore, corecipient of the 2007 Nobel Peace Prize

"A timely and important book. Drawing on inside accounts from key players, Teles tells the remarkable story of how conservatives overthrew liberal legal assumptions; more importantly, he shows how successful ideas depend on building organizations, institutions, and networks to propagate and defend them."--Jack M. Balkin, Yale Law School

Margeton on Legislative Histories and Librarians

Of Legislative Histories and Librarians, is an essay just posted by Stephen G. Margeton, Catholic University. It appeared in the Law Library Journal (1993). Here's the abstract:
Of Legislative Histories and Librarians: The Early Years briefly chronicles the interest of legal librarians in legislative history research during the period from the 1930s through the 1980s. It describes the materials that are included in a legislative history of a Congressional enactment, and how law firms and agencies created library services to systematically collect bills, resolutions, reports, hearings and the all-important Congressional debate. The piece highlights the special contributions to legislative history research by the Law Librarians' Society of Washington, D.C., whose members identified local law firms and agencies that had bound legislative histories for loan (Union List of Legislative Histories), as well as several local law librarians who made significant contributions to the art of tracking Congressional bills and building impressive collections of bound legislative histories. The author notes that federal agency libraries also played an important role in legislative history research, as did private publishers who were instrumental in distributing early collections in hard copy and micro format. Of particular note was the work of the Library of Congress, whose Bill Status system was one of the first automated bill tracking systems, and Congressional Information Service, a company that developed an abstracting and indexing system for Congressional hearings and reports and a practical microfiche distribution service.

Donald on Approaching Comparative Company Law

David C. Donald, University of Frankfurt, has posted a new paper, Approaching Comparative Company Law. Here's the abstract:
This paper identifies some common errors that occur in comparative law, offers some guidelines to help avoid such errors, and provides a framework for entering into studies of the company laws of three major jurisdictions. The first section illustrates why a conscious approach to comparative company law is useful. Part I discusses some of the problems that can arise in comparative law and offers a few points of caution that can be useful for practical, theoretical and legislative comparative law. Part II discusses some relatively famous examples of comparative analysis gone astray in order to demonstrate the utility of heeding the outlined points of caution. The second section offers a framework for approaching comparative company law. Part III provides an example of using functional definition to demarcate the topic "company law", offering an "effects" test to determine whether a given provision of law should be considered as functionally part of the rules that govern the core characteristics of companies. It does this by presenting the relevant company law statutes and related topical laws of Germany, the United Kingdom and the United States, using Delaware as a proxy for the 50 states. On the basis of this definition, Part IV analyzes the system of legal functions that comprises "company law" in the United States and the European Union. It selects as the predominant factor for consideration the jurisdictions, sub-jurisdictions and rule-making entities that have legislative or rule-making competence in the relevant territorial unit, analyzes the extent of their power, presents the type of law (rules) they enact (issue), and discusses the concrete manner in which the laws and rules of the jurisdictions and sub-jurisdictions can legally interact. Part V looks at the way these jurisdictions do interact on the temporal axis of history, that is, their actual influence on each other, which in the relevant jurisdictions currently takes the form of regulatory competition and legislative harmonization. The method of the approach outlined in this paper borrows much from system theory. The analysis attempts to be detailed without losing track of the overall jurisdictional framework in the countries studied.

Sunday, February 17, 2008

The Great Gatsby and The Fashion of Literature

My visit at legalhistoryblog is drawing to a close (perhaps Mary fears that I'll never leave!), but Dan Filler's post over at thefacultylounge on why we teach the death penalty (one hypothesis is that profs find it interesting) and this morning's New York Times story on the shifting fortunes of The Great Gatsby (it's at a high part of the sine curve right now, up from near obscurity in the 1950s0) reminds me that what's in fashion changes over time.

So why does seemingly every high school student read The Great Gatsby? Well, in part because Robert Redford played him the 1974 movie. Rather similar to the renaissance of Herman Melville's Billy Budd. I take it Billy Budd (which wasn't published until the twentieth century--the profits from sales when it was in copyright went to Harvard's History of American Civilization Program, I am told) was popularized in legal circles by Robert Cover's Justice Accused. (I might have thought that Cover would also use Harriet Beecher Stowe's obscure Dred: A Tale of the Great Dismal Swamp for the same purpose: to tell the conflicts that judges get into between their antislavery feelings and the proslavery law. And I'm increasingly thinking that there's a pretty important story to tell about proslavery judges (like Henry Lumpkin of Georgia) who reach antislavery results.

All this causes me to wonder what other literature is out there waiting to be discovered, particularly what other literature is out there waiting to tell us something about jurisprudence. Couple of suggestions (all from the nineteenth century) are Catharine Sedgwick's Clarence, James Fenimore Cooper's trilogy on the anti-rent movement, and Nathaniel Beverly Tucker's George Balcombe.

Reviewed: Kramer, Dynamic of Destruction, and Stone, World War I

The "culture of destruction" in World War I is the topic of a review of two new books in the Times Literary Supplement (London). Craig Gibson reviews Alan Kramer, DYNAMIC OF DESTRUCTION: Culture and mass killing in the first world war (Oxford University Press) and Norman Stone, WORLD WAR ONE: A short history (Penguin).

World War II "seems to have a monopoly on much of the twentieth century’s worst cruelties," Gibson writes. But Kramer "wants us to re-examine the First World War for evidence of similar violence, in kind if not in scale, and for clues as to why the 1914–45 era as a whole has become synonymous with a particularly cynical type of warfare." He uses the mass killings and destruction following the German invasion of Louvain, Belgium, "as a starting point for a discussion of some of the wanton awfulness that Europeans perpetrated on each other (and the world) during the first half of the twentieth century." But

the case of Louvain was not unique, nor was it the first town where the Occupiers perpetrated atrocities. Because of its cultural importance, and because of the number of citizens murdered, however, Louvain has become synonymous with the crimes committed by the Germans in the First World War, as Auschwitz has for the later conflict. At the same time, Kramer argues that, though particularly heinous, Louvain was part of a broader trend – and one not necessarily the exclusive purview of Germany’s Sonderweg. Crimes against civilians and enemy combatants had become part of warfare in the early twentieth century – despite the good efforts of various international conventions and organizations such as the Red Cross.
One factor behind the violence was "the enemy within, a recurring problem – sometimes real, oftentimes imagined – for nation states in the era of the First World War....The Russian, German, Austro-Hungarian and Ottoman Empires contained large minorities whose loyalty to their rulers remained in doubt." In addition, "the totality of the First World War, and by that one means the total mobilization of the nation’s resources in the pursuit of total victory, has to be taken into account....Total war required the dehumanization of the enemy, which included the mobilization of the civilian populace for hatred."

In contrast to Kramer, Stone's new book is a traditional account of World War I, an "entertaining history, filled with colour and bombast, less concerned with providing reams of documentation and more with telling an interesting tale well."

The rest is here.

Reviewed: McGinty, Lincoln and the Court

LINCOLN AND THE COURT by Brian McGinty (Harvard University Press) has a brief review in the Washington Post by Charles Lane. Lane writes:

Lincoln's struggle to withstand judicial review is the subject of Brian McGinty's fascinating book. Lincoln thought that the Southern rebellion posed an existential threat to the United States, and that he, as commander-in-chief, was authorized to take extraordinary measures to save the Union. These included the suspension of habeas corpus without prior congressional approval, a blockade of Southern states by U.S. warships and the emancipation of slaves without compensation.
History has generally been kind to Lincoln's approach, but it was controversial in its time. Taney challenged the suspension of habeas corpus in the 1861 case of ex parte Merryman, asserting that it was "too plain and too well settled to be open to dispute" that only Congress could suspend the right to challenge an unlawful detention in court. But McGinty, a lawyer as well as a historian, shows that the law was cloudier than Taney acknowledged -- and that the Southern-sympathizing chief justice completely failed to take account of the secessionist disorder raging around Washington.

Fortunately for Lincoln, Congress subsequently ratified his decision on habeas.....
The HUP book description claims that "McGinty rescues the story of Abraham Lincoln and the Supreme Court from long and undeserved neglect," but as Lane notes the topic of Lincoln and the Court "has been covered in other recent books." Still, "the issue of presidential power in wartime is as fresh as today's headlines."
The rest is here.

Saturday, February 16, 2008

Romero on Maldef and the Legal Investment in a Multi-Colored America

Tom Romero II, Hamline, has posted a new essay, Maldef and the Legal Investment in a Multi-Colored America. It is forthcoming in the Berkley La Raza Law Journal. Here's the abstract:
This is an essay that comes out of a roundtable on Mexican American Citizenship at the 2006 Annual Meetings of the Western History Association. This essay focuses on the early legal strategy of the Mexican American Legal Defense and Education Fund (MALDEF) to tentatively explore the role that color consciousness played in MALDEF's understanding of law and jurisprudence. Accordingly, the essay briefly explores the manner by which the organization began to conceptualize the non-Whiteness of Mexican Americans as a matter of law in the late 1960s and early 1970s. The analysis is therefore suggestive of not only an important transformation in the color consciousness for many in the Mexican American community, but of an emerging critique of the Black-White paradigm in American law. Indeed, the essay argues that as numerous Mexican Americans became legally invested in their non-White color status largely but not exclusively as Chicana/os, the legal strategy pursued by MALDEF in this formative moment reflected the extent that many in community remained similarly committed to a categorization that recognized Chicana/os distinctive status as a non-White and non-Black group.

Oman, Preaching to the Court House and Judging in the Temple

Preaching to the Court House and Judging in the Temple, is a new paper by Nathan B. Oman, William and Mary. Here's the abstract:
A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

Zeitlow on The Promise of Congressional Enforcement of the Thirteenth Amendment

Rebecca E. Zietlow, University of Toledo, has posted a new essay, The Promise of Congressional Enforcement of the Thirteenth Amendment. It is forthcoming in THE PROMISES OF LIBERTY: THIRTEENTH AMENDMENT ABOLITIONISM AND CONTEMPORARY CONTEXT, Alexander Tsesis, Ed., (Columbia Univ. Press). Here's the abstract:
In recent years, the Supreme Court has placed restrictions upon congressional power to enact laws protecting rights of belonging, those rights that promote an inclusive vision of who belongs to the national community of the United States and that facilitate equal membership in that community. The Rehnquist Court restricted congressional power to enforce the two primary sources of those rights, the Commerce Clause [and] Section Five of the Fourteenth Amendment. However, the oft-overlooked Section Two of the Thirteenth Amendment, which empowers Congress to enact appropriate measures to enforce the abolition of slavery accomplished by Section One of that Amendment, has considerable potential to resolve this dilemma. The Reconstruction Congress intended the enforcement power granted by Section Two to be a broad source of individual rights, and the Court generally has been deferential to that power.
The broad vision of freedom held by the Framers of the Thirteenth Amendment encompasses both economic rights and the right to racial equality. This chapter considers legislation that Congress has enacted pursuant to its Section Two power, and examines Court rulings evaluating that legislation. While Congress has rarely exploited its Section two power, important civil rights statutes such as the 1866 Civil Rights Act, several Anti-peonage Acts, portions of the 1968 Fair Housing Act, and the 2000 Trafficking Victims Protection Act of 2000, are based in that power. The chapter concludes that Section Two of the Thirteenth Amendment holds great promise for a Congress seeking to define and protect our rights of belonging in the future.

Friday, February 15, 2008

Ford on The Plurality of Settler Sovereignty in early New South Wales

Lisa Ford, Macquarie University, has posted a new paper, Traversing the Frontiers of the History Wars: The Plurality of Settler Sovereignty in early New South Wales. Here's the abstract:
Australian historians of indigenous-settler relations have assumed that indigenous people in early New South Wales had no recognized rights to self-government. Using Lachlan Macquarie's Proclamation of 1816 as a case study, this paper argues instead that in early New South Wales, courts, governors and settlers all assumed that indigenous people were independent of the colonial state, governed by their own laws and only in exceptional circumstances governed by British law.

Thursday, February 14, 2008

Jones on Free Women of Color in the Antebellum North

Southern Free Women of Color in the Antebellum North: Race, Class, and a 'New Women's Legal History,' is a new article by Bernie D. Jones, UMass-Amherst Legal Studies and Suffolk Law School. It is forthcoming in the Akron Law Review. Here's the abstract:
This article explores the possibilities of a "new women's legal history" as indicated by the intersections of race, gender and class as experienced by Southern enslaved women newly freed in the antebellum North, such as Nancy Wells of Mississippi and Amy Willis of South Carolina. Women such as these had been the enslaved partners and biological daughters of white slaveholding men in the South. They were brought north to Ohio for the purpose of being manumitted and identified as family members eligible to receive inheritances in their home states. The article considers too, the significance of John Jolliffe, a Cincinnati abolitionist lawyer, in developing legal strategies and representing the men and women. These private law cases, involving manumission, inheritance rights and family matters, further contribute to an understanding of abolitionist law practice. Cases such as these also enabled the practice that gave him notoriety: his pro bono work representing clients like Margaret Garner, who fought repatriation to slavery under the fugitive slave acts.
The first section contextualizes the development of theoretical perspectives on race, gender and class in American legal history. The second explains the social and legal status of African-American women in the antebellum United States, enslaved and free. It demonstrates the significance of legal institutions in northern states like Ohio that affected the fortunes of newly freed women of color and influenced their abilities to gain inheritances in their homes states in the South. John Jolliffe is discussed in section three, and the article concludes in section four with a discussion of the relationship between the different types of cases Jolliffe handled: the manumission and inheritance cases discussed in the previous sections and the fugitive slave cases as demonstrated in the case of Margaret Garner.

February 14

Tired of Hallmark? For your Valentine's Day, vintage e-Valentines!

And around the blogosphere, there are results of Feminist Law Prof's Valentine's Day poll (in response to the question: what are you doing for Valentine's Day, the most popular response was "when is it?"); and Diane Amann has a post on socially responsible flowers.

Wednesday, February 13, 2008

Jones on Critical Race Theory: New Strateges for Civil Rights in the New Millennium?

Bernie D. Jones, UMass Amherst and Suffolk Law School, has posted an article, Critical Race Theory: New Strategies for Civil Rights in the New Millennium? It appeared in the Harvard BlackLetter Law Journal (2002). Here's the abstract:
The development of critical race theory points to a new direction taken by civil rights activists in the wake of civil rights setbacks in the 1970s and 1980s when official government policy no longer supported an expansive civil rights agenda. The United States Supreme Court began limiting and eviscerating precedents that once promised full equality for African Americans under the law. Critical race theorists who fought against this declension from civil rights began storytelling, in which they gave voice to the contemporary civil rights struggle. They explained the situation of "outsiders," people of color dispossessed by the law.
The Parts of this Article - civil rights litigation before the Supreme Court under Earl Warren and under Chief Justices Burger and Rehnquist, the breakup of the African American liberal coalition, the storytelling response, and protest - explain the development of critical race theory, its antecedents in the legal liberalism that enabled the civil rights movement, and its rejection of formalism on the Supreme Court. The critical race theorists had as their objective, ending exclusive reliance upon civil rights litigation, storytelling to broaden public consciousness of racism and discrimination under the law, and protest reminiscent of the civil rights movement of the 1950s and 1960s.

Bederman on Romero's Enduring Legacy

David J. Bederman, Emory
, has posted a new paper on admiralty law history: Romero's Enduring Legacy. Here's the abstract:
This paper was delivered as part of the Eighth Nicholas J. Healy Lecture: Admiralty's Greatest Supreme Court Hits, on May 3, 2007, as part of a series of scholarship on landmark admiralty cases. The 1959 decision of the U.S. Supreme Court in Romero v. International Terminal Operating Company, continues to exercise an odd influence on contemporary thinking about admiralty jurisdiction and procedure. To the extent that the Supreme Court's decision explores the division-of-power between state courts and federal tribunals in the fashioning of maritime law, it offers a unique discourse on the juxtaposition of substantive law and jurisdictional competence that is relevant not only for general constitutional interpretation, but also for the every-day work of admiralty practitioners throughout the land. Romero is a tribute not only to the relevance of constitutional theory, but also the imperatives of practice, in making a coherent maritime law for all ages.

Tuesday, February 12, 2008

Pfander on Removing Federal Judges

James E. Pfander, Northwestern, has posted a new article, Removing Federal Judges . It appeared in the University of Chicago Law Review (2007). Here's the abstract:
Scholars have in recent years raised a host of questions about Article III's provisions for judicial independence. In a provocative recent essay, Professors Sai Prakash and Steve Smith challenge the conventional view that federal judges may be removed from office only through the relatively cumbersome process of House impeachment followed by a trial in the Senate. Prakash and Smith base their argument against impeachment-and-removal exclusivity on the history of good behavior tenure and the role that courts played in adjudicating claims of misbehavior at common law. Prakash and Smith contend that this judicial mode of removing from office remains available for federal judges, something Congress may revive through the passage of appropriate legislation.
This Essay disputes the Prakash and Smith thesis. It shows that the English common law mode of removal from office through judicial proceedings had essentially disappeared by the time of the framing. Both in England, where the Act of Settlement of 1701 regulated judicial office, and in the newly independent states, constitutional documents almost invariably assigned the ouster of superior court judges to the legislative branch of government. The drafting and ratification debates reveal that the framers of the federal Constitution made a similar choice, providing a legislative mode of removing misbehaving judges and foreclosing alternative modes. In the end, the evidence sustains the conventional view that the Constitution permits the removal of federal judges only through the legislative process.