month, with posts on everything from grant writing and book reviewing advice, recommendations of scholarship in Asian legal history, news about the OAH meeting, and more. Chris can usually be found at the History Department at MIT. If you have not yet read his great new book, Uncle Sam Wants You:World War I and the Making of the Modern American Citizen, it can be found here and here.
The Adventures of Notorious Ph.D., Girl Scholar kicks off the discussion with an opening post: Should politics be historical? Should history be political?
Here is the book description:
Written for everyone interested in women's and gender history, History Matters reaffirms the importance to feminist theory and activism of long-term historical perspectives. Judith M. Bennett, who has been commenting on developments in women's and gender history since the 1980s, argues that the achievement of a more feminist future relies on a rich, plausible, and well-informed knowledge of the past, and she asks her readers to consider what sorts of feminist history can best advance the struggles of the twenty-first century.
Bennett takes as her central problem the growing chasm between feminism and history. Closely allied in the 1970s, each has now moved away from the other. Seeking to narrow this gap, Bennett proposes that feminist historians turn their attention to the intellectual challenges posed by the persistence of patriarchy. She posits a "patriarchal equilibrium" whereby, despite many changes in women's experiences over past centuries, women's status vis-à-vis that of men has remained remarkably unchanged. Although, for example, women today find employment in occupations unimaginable to medieval women, medieval and modern women have both encountered the same wage gap, earning on average only three-fourths of the wages earned by men. Bennett argues that the theoretical challenge posed by this patriarchal equilibrium will be best met by long-term historical perspectives that reach back well before the modern era. In chapters focused on women's work and lesbian sexuality, Bennett demonstrates the contemporary relevance of the distant past to feminist theory and politics. She concludes with a chapter that adds a new twist--the challenges of textbooks and classrooms--to viewing women's history from a distance and with feminist intent.
A new manifesto, History Matters engages forthrightly with the challenges faced by feminist historians today. It argues for the radical potential of a history that is focused on feminist issues, aware of the distant past, attentive to continuities over time, and alert to the workings of patriarchal power.
And blurbs:
"This is a remarkable work, at once erudite, insightful, witty, provocative, and analytically brilliant. Bennett writes with narrative verve and energy that captures the reader in both her compelling argument and detailed evidence."--Bonnie G. Smith, Rutgers University
"Judith Bennett offers a striking analysis of the current state of feminist history. In a series of lucid chapters, she demonstrates the political and intellectual consequences of forgetting the past. This book should be required reading for every feminist who cares about the future."--Martha Vicinus, University of Michigan
"Bennett argues convincingly that our understanding of modern women's condition and contemporary feminist dilemmas must be rooted in the longue durée. From that perspective, we can develop a more nuanced and sophisticated analysis of the 'patriarchal equilibrium' that has so long constrained women's lives and efforts to transform them."--Nancy A. Hewitt, Rutgers University
In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.
While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburg
decision.
an narrative. It empowered a whole new field of study.” Beyond his scholarly contributions, "few historians achieved the stature, both as scholars and as moral figures — and as combinations of the two — that Dr. Franklin did," writes Peter Applebome.he and I taught constitutional history together at Duke, and I never ceased to marvel at how he managed both to embody this history and yet recount it with an extraordinarily candid honesty. Our students would fall into the deepest hush while he recounted his experiences researching his epic 1947 work, "From Slavery to Freedom: A History of African Americans" (reprinted scores of times since, and still widely read), in segregated libraries at Southern universities and Southern state libraries. He would describe the various Jim Crow rules he was required to navigate -- a separate table from white patrons, a prohibition on being waited on by white female librarians and similar indignities -- without a trace of bitterness.
John Hope drove a large Mercedes-Benz sedan and got across 53rd St. just before the light changed. I was following in my decrepit little Rambler American, and sailed through the light, only to be stopped immediately by a police cruiser. John Hopenoticed, and pulled over to the curb. As the cop was bawling me out, he noticed the car stopped ahead. “Is that Professor John Hope Franklin?” “Yes it is, officer.” “Well, then, young man, if you can just get me his autograph you can drive on home.”
Image credit.This book offers an exposition of the idea, proclaimed in the Preamble to the Australian Constitution, that Australia is a federal commonwealth. Original sources are analyzed, neglected writers are brought to light, and conceptual frameworks are evaluated. The book takes careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, and shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, the book sheds fresh light on the terms and structure of the Australian Constitution and marshals these insights to address a range of problems associated with the interpretation and practical operation of the Constitution.
State v. Mann overturned a jury's conviction of John Mann for assault upon a slave he had hired from a woman named Elizabeth Jones. Historians seeking to understand the case have faced a significant hurdle: the paucity of evidence of the facts surrounding the trial. The record is not silent, however, on John Mann, Elizabeth Jones, or her wounded slave Lydia. Available evidence enables us to reconstruct sufficient facts to support tentative conclusions. Elizabeth Jones was a minor who had inherited Lydia upon the death of her parents. She was being raised in rural Chowan County in the household of her brother-in-law, Josiah Small. Small acted in Elizabeth's interest by keeping Lydia hired out. In 1828 Lydia was hired by John Mann, a widowed and bankrupt sea captain living in Edenton. Little about John Mann would have suggested to a Chowan County judge and jury that he ought to enjoy the powers of a master. Close study of the evidence suggests that Ruffin's reversal would have been seen in Edenton as wrong on the facts. Further study of the law of masters, hirers, and slaves suggests that the reversal was at least questionable on the law. Read in this new light, State v. Mann can be seen to stand on its own as a succinct but powerful treatise in implicit defense of slavery in terms that Ruffin's fellow planters would have readily understood. In justifying the reversal of Mann's conviction, Ruffin successfully enlists the key Burkean themes of conservative southern thought of the day, fatalistic themes emphasizing the surpassing importance of the status quo over any hope of reform. The opinion can be read as part of a broader pattern reflected in the writings of an increasingly defensive slaveholding elite; thematically it foreshadows Thomas Dew's crucially important defense of slavery in his Review of the Debate in the Virginia Legislature of 1831 and 1832. And yet Ruffin's rhetoric outdid itself. In attempting to silence any criticism of the workings of the system from which its author so clearly benefited, ironically State v. Mann may have hastened slavery's undoing.
Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's intervention, Near's holding that prior restraints are
anathema to the Constitution has been a bulwark of our legal system ever since.
Part I of this article briefly outlines the background of the Near case, while Part II discusses the role of incorporation in making a First Amendment challenge feasible. Part III traces McCormick's efforts to draw the institutional press into the Near litigation. Part IV covers the proceedings before the Supreme Court, while Part V describes the landmark opinion itself. Finally, Part VI discusses the aftermath of Near v. Minnesota and the mobilization of the institutional press.
The source is Senate Committee on Banking and Currency, Stock Exchange Practices, 73d Cong., 2d sess., February 27, 28, 1934, 6574, 6467.“I believe in the stock exchanges,” declared the New Deal lawyer Thomas G. Corcoran in a congressional hearing on the bill that became the Securities Exchange Act of 1934. “I do not believe you should kill them. I do believe you should regulate them–not because I have any social philosophy in regard to the subject–but because as a sheer matter of economic wisdom they should be regulated.” Speaking not long after the Dow Jones Industrial Average fell 89 percent and unemployment reached 25 percent, Corcoran charged that unregulated financial markets “have cost many millions of dollars; they have cost 12,000,000 men their jobs.” With the lawyer for the New York Stock Exchange glowering nearby, he defended the sweeping power the legislation would give federal administrators. The stock exchanges “cannot be expected tamely to submit to regulation,” he declared. To create a commission to regulate America’s financiers and not to endow it with broad powers was to “put a baby into a cage with a tiger to regulate the tiger.” The danger was all too real that “the stock exchanges and the forces allied with stock exchanges, which are supposedly being regulated, will actually regulate the regulators.”
"The eminent historian John Hope Franklin died today at the age of 94," commences an obituary on the Chronicle of Higher Education's website. The Chronicle's notice continues:Mr. Franklin graduated from Fisk University in 1935 and earned a doctorate in history at Harvard University. In his long career, he taught at St. Augustine’s College, North Carolina Central University, Brooklyn College, and the University of Chicago. In 1983 he moved to Duke University, which today published a tribute to his life and career.More from the Chronicle here. The New York Times's notice is here. Duke University's extensive webpage on Professor Franklin is here.
In 1948 Mr. Franklin served as an expert witness on behalf of Lyman T. Johnson, whose federal lawsuit against the University of Kentucky resulted in the desegregation of that institution.
The American Historical Association blog has an "Image Resource Roundup" on the blog today, with links to great on-line photo archives. Among them, the Federal Judicial Center’s Historic Federal Courthouses, with images of, well, historic federal courthouses, the Flickr Commons, and the LIFE magazine photo archive. There is much more here.Image: Los Angeles Post Office and Courthouse, 1892.
e United States. Before World War I, however, suffrage states remained almost exclusively confined to the American West. The reasons for this pioneering role of the West are still unclear. Studying the timing of woman suffrage adoption at state level, we find that states in which women were scarce (the West) enfranchised their women much earlier than states in which the sex ratio was more balanced (the rest of the country). High sex ratios in the West, that is high ratios of granters to grantees, reduced the political costs and risks to male electorates and legislators of extending the franchise. They are also likely to have enhanced female bargaining power and may have made woman suffrage more attractive in the eyes of western legislators that sought to attract more women to their states. Our finding of a reduced-form inverse relationship between the relative size of a group and its success in securing the ballot may be of use also for the study of other franchise extensions and for inquiries into the dynamics of political power sharing more generally. 
In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American law. Courts routinely found infringement of fact-based works, such as maps, charts, road-books, directories, and calendars, on the basis of the copying of their factual content, and concluded that the industry of plaintiffs in gathering and presenting facts should be protected under copyright law. What caused the transformation in the doctrine of originality between the Civil War and World War I?Image credit: Western UnionThis article argues that the rise of creativity-based originality in copyright law has strong ties to a previously little-examined episode in copyright history: the debate over legal protection for news in the last decades of the nineteenth century. Until the 1880s, the American news industry remained in a pre-copyright era, and played no part in copyright discourse. Newspaper editors followed a widespread custom of freely copying text from other newspapers. That custom was acknowledged and encouraged by a massive government subsidy in the form of free postage for newspaper copies that were being exchanged between editors. Newspaper owners never registered their papers before publication, and thus forsook copyright protection for them.
In the middle decades of 1800s, however, technological changes, foremost among them the introduction of the telegraph, radically changed the structure of the news industry. The telegraph provided newspapers with an opportunity to invest in more timely news; yet together with improvements in typesetting, printing, and transportation technology, it also created an appropriability problem. It shrank the lead-time advantage that newspapers traditionally had relied upon to realize the value of their investment in news, and also exposed them to competition from which they had previously been geographically isolated. At the same time, the new communications technologies led to the emergence of companies and large associations that dominated markets, often with the aid of anticompetitive practices. Prominent among these were the news industry organizations of the Associated Press and the Western Union.
Within this context, the Associated Press, Western Union and others began in the 1880s to press for legal protection of news reports, in both legislative and judicial arenas. Opposition to those efforts led to the first prominent articulations of the notion that facts are not created by authors, and are therefore not copyrightable subject matter. Paradoxically, that notion was then reinforced by proponents of legal protection for news, when they resolved to seek that protection outside of statutory copyright, in common law misappropriation, and made the tactical decision to argue that news was not copyrightable in order to avoid copyright preemption of their common law claims. An earlier, shorter version of this article will appear in a collection of essays published by Edward Elgar Publishing, Inc.
inslow in the Los Angeles Times. "Of the two," Winslow writes, "Purdy is more accepting of the concept of American exceptionalism but sees it as a condition requiring ongoing adaptation, a 'living tradition.'" Purdy's book is loosely about pushing the boundaries of liberty and searching out the common good, in pursuit of what John Adams called "the sensations of freedom," often as revealed in presidential rhetoric. Tracking the speeches of various U.S. presidents, he laments that "the divorce of civic identity from government, which Nixon set in motion, is nearly complete in Bush's speeches," and that in this conceptual shift, government "is the thing that went away and cleared the space now filled by private virtue."
imply assumed and not based on comparative evidence. So Hodgson's book is most welcome. According to Winslow, Hodgson "concedes that a highly qualified version of exceptionalism has existed but within relatively narrow historical confines," and "it is 'less exceptional than is often claimed."Sketching out international contexts from the Revolution forward, Hodgson points out that the American revolt was but one theater in a global struggle between England and France (a viewpoint also argued recently by Thomas Bender in "A Nation Among Nations").... Hodgson takes pains to point out that principles of the Revolution were "deeply rooted in European origins" and English Common Law but that Americans were "increasingly attracted to a national ideology that cast them as redeemers of a sinful world." Other than that distinction, much of his historical overview is an attempt to correct the record by showing how similar experience was in U.S. and European industrial nations, eroding the perception of American difference.
He hopes to persuade those who think that the "original intent" of the Founding Fathers can be discerned and should be followed today (read: Justice Antonin Scalia and his acolytes) that the framers approached their task with "uncertainty and humility," and that those who interpret their words now should adopt the same stance. As Beeman remarks, "there was precious little agreement among even those who had drafted the Constitution as to the precise meaning" of many clauses.
history, biography and diplomacy are Thomas G. Andrews for Killing for Coal: America’s Deadliest Labor War (Cambridge: Harvard University Press); Drew Gilpin Faust for This Republic of Suffering: Death and the American Civil War (New York: Alfred A. Knopf); and Pekka Hämäläinen for The Comanche Empire (New Haven: Yale University Press).
y of North Carolina Press, 1996).
Robert Rosen, University of Miami School of Law, has posted Samson the Judge: Religion and Violence in Milton's SAMSON AGONISTES. Here is the abstract:In this provocation, John Milton's SAMSON AGONISTES is read paying attention to the legal language and taking seriously that Samson is a judge. This reading connects Samson's story to the judge's duty to preserve confidences. It emphasizes that decisions and secrets are not things that judges give, but are avowals of themselves. In looking at a story from the Book of Judges, it adds to the Coverian literature by emphasizing that in the Hebrew prophetic literature, judges precede the state.Image credit (and an on-line edition of the poem).
Earlier this month, Deborah Rosen, Lafayette College, spoke on the topic "Racial Borders: Law and Citizenship in the United States, 1787-2009,"in the Politics, Ethics and Citizenship series of the Center of Ethics at Muhlenberg College. More particularly, she discussed "the evolution of constitutional law as it pertains to African Americans' citizenship, American Indian citizenship and the 'whiteness' prerequisite for naturalization of immigrants." The lengthy summary in the Muhlenberg Weekly is here.
book, Deardorff writes, Frymer "attempts to integrate the schools of New Institutionalism and American Political Development, as well as the theory of intersectionality, within his research." While some excellent research has been conducted exploring the history of African Americans in the labor movement and during the New Deal (Kelley 1990; Sullivan 1996), within political science this has resulted in the following historical narrative: legislative change, followed by a strategy of litigation, resulting in union desegregation. Frymer makes a compelling case that when we deliberately set about to integrate race and class within the civil rights and labor narratives, we find that they are not sequential, but intertwined. He asserts that the institutions created to help democratize class – the Wagner Act of 1935 and the National Labor Relations Board (NLRB) – and race – Title VII of the Civil Rights Act of 1964, Equal Employment Opportunity Commission (EEOC), and the Federal Employment Practice Committee (FEPC) – did not work coherently to prevent racial discrimination in unions while simultaneously advancing the workers’ power. Instead they were striving at cross-purposes and cross-agendas. As a consequence, the role of the federal courts in enforcing civil rights legislation is much larger and significant than previously understood; its result, according to Frymer, was the gutting of the labor movement and the subsequent decline of the Democratic party. This is an intriguing argument and one that substantially bolsters the contention that racism in America is institutional, [*193] despite the continued emphasis on personal attitudes. In the introductory chapter, Frymer seems to imply these choices were the result of arrogance and poor judgment on the part of civil rights organizations and the judiciary. As his narrative unfolds, however, it becomes evident that he believes that the legislation establishing these institutions, the internal cultures of the NLRB and EEOC, as well as the subsequent choices made by Congress, rendered a strong judicial role inevitable.
Frymer turns to the questions of how this alternative interpretation of the empowerment of post-New Deal federal courts should influence judicial scholarship. Most importantly, he challenges – in a different fashion than the usual rejoinder – Alexander Bickel’s “countermajoritarian” critique. While he traces the recently revised perspective of many progressive legal scholars as to the appropriate role of the courts in policy making, Frymer argues that an institutional perspective recognizes that both the legislature and the courts inevitably have policy-making functions in a democratic society. BLACK AND BLUE is a powerful demonstration of how a different theoretical paradigm can result in new interpretations of not only historical events, but current understandings of both racism and judicial legitimacy.
