Friday, July 31, 2009

Powles on Approaches to Constitutional Change in Tonga

Testing Tradition in Tonga: Approaches to Constitutional Change has been posted by Guy Powles, Monash University, Faculty of Law. It appeared in Revue Juridique Polynesienne, Vol. 13, 2007. Here's the abstract:
The Constitution of Tonga, 132 years old in 2007 -- indeed one of the world's oldest extant constitutions -- has recently, for the first time in history, been subjected to significant scrutiny by the people who live under it. The review process has also canvassed the views of the thousands of Tongans who live in the diasporas of New Zealand, Australia and the USA. However, in the context of an increasingly polarised political debate, the translation of the outcome of that process into constitutional change is proving a difficult task for Tonga's leaders, and the two years that have elapsed since the general elections of March 2005 have been among the most momentous in history.
This paper attempts to stand back from the trauma and hurt of recent events and to ask some underlying questions. How is it that the Pacific region is home to a monarchical system that still rules its people, and what has been the secret of its success? What are the changes to the political structure that are already occurring this century? Finally, what order of change is in the air -- will it be constitutional reform on a major scale?
While considering these questions, this paper also offers a Political Chronology in its Appendix, as a summary of the events through the 1990s and early 2000s which culminated in the formal process of constitutional reform and the current scene. These years have witnessed diverse developments on the Tongan political stage, which, when considered against the backdrop of conservative society, must be regarded as remarkable.
Image: Coat of arms, Tonga

Thursday, July 30, 2009

Lahav, American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?

Pnina Lahav, Boston University School of Law, has posted American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools? It appears in Theoretical Inquiries in Law, Vol. 10, No. 2, 2009. Here's the abstract:
Following independence in 1948, the Hebrew University of Jerusalem founded a law faculty and modeled it on the European example (Continental and British). Today, the Israeli law faculty is much more similar to the U.S. law school than to institutions of legal education in Europe. This Article traces the history of the changes in Israeli legal education. It argues that the shift began after 1967, faced resistance in the 1980s, and gained momentum in the 1990s. Presently we may be witnessing the beginning of a shift away from U.S. influence and back to Continental Europe or even Asia. The Article discusses three major educational components, which together signaled the shift to U.S. influence: a student-run law review, curricular reform, and open and lively class discussion. The Article then offers several factors to explain the shift: judicial opinions that began to rely on American decisional law, the adoption of the U.S. model of practice by the legal profession, the privatization of law schools, globalization, and Americanization and foreign affairs. Finally, the Article considers the contribution to Americanization made by active U.S. attempts to export American law to other legal systems.
Photo: Hebrew University of Jerusalem.

Wednesday, July 29, 2009

Bird and Smythe on Legal Precedents, Judicial Discretion, and the Diffusion of Strict Liability, 1963-87

Legal Precedents, Judicial Discretion, and the Diffusion of the Strict Liability Rule for Manufacturing Defects, 1963-87, is a new paper by Robert C. Bird, University of Connecticut - Department of Marketing, and Donald J. Smythe, California Western School of Law. Unfortunately only the abstract is posted on SSRN. For more information about the paper, contact the authors via SSRN. Here's the abstract:
This article reports the results of a study that uses social network analysis to compare the persuasiveness of legal precedents in the diffusion of the strict liability rule for manufacturing defects. This new study tests which legal precedents were most influential and also whether certain state judicial variables influenced the diffusion process. The results are striking. The federal circuit regions appeared to define an important reference group in the diffusion process and social network effects dominated economic and political variables. In addition, the de facto separation of powers in the enactment of new state legislation appeared to influence courts’ propensities to adopt the strict liability rule. When the executive and legislative branches were controlled by the same political party – regardless of whether it was the Republican or Democratic Party – state courts were more inclined to adopt the strict liability rule. This last result contradicts an economic hypothesis that predicts courts should be less inclined to exercise discretion when the de facto separation of powers between the executive and legislative branches is narrower.

Lacey, Women, Crime and Character: From Moll Flanders to Tess of the D'Urbervilles

Nicola Lacey, Women, Crime, and Character: From Moll Flanders to Tess of the D'Urbervilles was reviewed in the Times Higher Education supplement (UK) a while ago, but I've just come across it. Tess Cosslett, Lancaster University, writes:

Nicola Lacey's book is a version of her 2007 Clarendon Law Lectures; although "expanded", it is shorter, and with a narrower, tighter focus than the usual academic monograph. Her argument participates in, and adds to, the growing field of law and literature studies, which includes Alexander Welsh's Strong Representations: Narrative and Circumstantial Evidence in England (1992), and Jan-Melissa Schramm's Testimony and Advocacy in Victorian Law, Literature and Theology (2000). But whereas these books conduct detailed and illuminating readings of literary texts in the light of 19th-century legal changes, Lacey's book works the other way round: a complex argument about the development of legal concepts is backed up by readings of literary texts....

She argues that in the 18th and 19th centuries there was a general development away from ideas of external "character" as a legal concept and defence and towards more internal concepts of individual responsibility - although she also shows that both these ways of thinking coexisted for a long while. Women are affected by these changes - when recognisable markers of social status become more difficult to rely on, as a result of urbanisation, women's correct behaviour is the more policed as a sign of respectability.

The central development that Lacey attempts to explain relates to the ways in which female offenders are portrayed in the novel. Moll Flanders, the cheerful criminal heroine of Defoe's early 18th-century novel, becomes unthinkable in the 19th century, supplanted by victim-heroines such as Hardy's Tess of the D'Urbervilles. Lacey, however, argues against the idea that women were perceived as without agency in this later period. Instead, they can be seen as agents who were hampered by social constraints and codes.
Here, almost entirely literary evidence is invoked, from works such as Vanity Fair and Middlemarch, the novels being used to demonstrate widespread cultural assumptions.
The rest is here.

Tuesday, July 28, 2009

Reviewed: Gordon, Mapping Decline: St. Louis and the Fate of the American City

Mapping Decline: St. Louis and the Fate of the American City by Colin Gordon (forthcoming in paperback) will be appealing to legal historians interested in urban history, property, race, and poverty. The book goes beyond traditional histories of urban decline, making effective use of digital mapping techniques. The University of Pennsylvania Press did a beautiful job producing it, including more than seventy-five full color maps.

Mapping Decline was reviewed by Dan Trudeau, Macalester College, for Urban Geography. Trudeau writes:

In Mapping Decline, Colin Gordon chronicles the historic causes and contemporary consequences of the urban crisis in the St. Louis metropolitan area. Students of U.S. urban history will already be familiar with St. Louis’ story. It follows the archetypal narrative of decline in the postwar era: government programs for urban renewal fail to revitalize the central city while public subsidies for development at the urban fringe enable centrifugal forces that strip the urban core of investment, population, and tax revenue. Underlying this transformation is the dual process of White flight to the suburbs and the containment of Blacks in the urban core. Mapping Decline thus follows the path worn by Hirsch (1998) and Sugrue (2005) in their respective examinations of urban crisis in Chicago and Detroit. While Gordon’s explanation is not new, he adds a visual dimension to the narrative by including an extensive battery of maps and figures. Furthermore, Mapping Decline contributes to the empirical urban literature by tracing the trajectory of St. Louis’ decline to the end of
the 20th century.

This political history of St. Louis’ urban crisis unfolds over five chapters, which are organized thematically....Chapter 2 describes the private efforts and public policies that have isolated Blacks in particular neighborhoods of St. Louis that are bereft of private investment. To support this point, this chapter features an especially rich set of maps that show the geographies of restrictive deed covenants, race restrictive practices of realtor associations, redlining designations of the Home Owner’s Loan Corporation, slum clearance, construction of public housing, and patterns of disinvestment by the mortgage lending industry.
The reviewer finds the book's maps "cartographically disappointing," and finds "Sugrue’s (2005) Origins of the Urban Crisis...a more detailed examination of how changes at global and regional levels affected U.S. cities during the postwar era," but concludes that

Gordon has nevertheless prepared an engaging text that should be accessible to a broad audience....Mapping Decline distinguishes itself from other historical accounts of the urban crisis by showing how the deleterious effects of local, state, and federal government policies continue to thwart the recovery of the central city. Toward this end, Gordon presents a convincing case for why the decline of St. Louis is not by any means inevitable. Mapping Decline thus provides an impassioned call to arms to rescue St. Louis and other cities like it.
The rest is here.

Levenstein on African American Women and the Politics of Poverty in Postwar Philadelphia

A Movement Without Marches: African American Women and the Politics of Poverty in Postwar Philadelphia, by Lisa Levenstein, is a compelling new book from University of North Carolina Press, in the John Hope Franklin Series in African American History and Culture, edited by Waldo E. Martin, Jr. and Patricia Sullivan. Bringing together race, gender, urban history and poverty, the book will be appealing for many courses. Sadly, it is currently priced out of the course adoption market, so we will have to hope for a quick paperback. Here's the book description:

In this bold interpretation of U.S. history, Lisa Levenstein reframes highly charged debates over the origins of chronic African American poverty and the social policies and political struggles that led to the postwar urban crisis.

A Movement Without Marches follows poor black women as they traveled from some of Philadelphia's most impoverished neighborhoods into its welfare offices, courtrooms, public housing, schools, and hospitals, laying claim to an unprecedented array of government benefits and services. Levenstein uncovers the constraints that led women to public institutions, emphasizing the importance not only of deindustrialization and racial discrimination but also of women's experiences with sex discrimination, inadequate public education, child rearing, domestic violence, and chronic illness.

Women's claims on public institutions brought a range of new resources into poor African American communities. With these resources came new constraints, as public officials frequently responded to women's efforts by limiting benefits and attempting to control their personal lives. Scathing public narratives about women's "dependency" and their children's "illegitimacy" placed African American women and public institutions at the center of the growing opposition to black migration and civil rights in northern U.S. cities. Countering stereotypes that have long plagued public debate, A Movement Without Marches offers a new paradigm for understanding postwar U.S. history.
And the blurbs:

"A Movement Without Marches is a deeply humane account of poor women's struggles for dignity and survival. Lisa Levenstein combines history from the bottom up with an unparalleled account of the institutions, from courts to schools, that shaped and constrained black women's lives. Her book opens up new ways of thinking about the unfinished history of race, gender, and civil rights in modern America."--Thomas J. Sugrue, author of Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North

"If we could persuade our elected representatives to consider the historical context in which they make policies regarding welfare and poverty that impact the lives of women and their families this would be one book they should read. The stories here challenge one-dimensional sound bites that too often suffice in public discourse on these issues."--Tera W. Hunter, author of To 'Joy My Freedom: Southern Black Women's Lives and Labors After the Civil War

"A Movement Without Marches offers a subtle and illuminating portrait not only of political and civic activism, but also of social and economic citizenship in the making, as we learn how African American working-class women worked to make Philadelphia's public institutions work for rather than against their needs, interests, and rights."--Alice O'Connor, author of Poverty Knowledge: Social Science, Social Policy, and the Poor in Twentieth-Century United States History

Monday, July 27, 2009

Prest, William Blackstone: Law and Letters in the Eighteenth Century

William Blackstone: Law and Letters in the Eighteenth Century by Wilfrid Prest, recently published by Oxford University Press, is "the first scholarly biography of the most influential figure in the history of English and American law." Unfortunately the book is not priced to sell by OUP, although some discounts can be found on-line. Even if the price takes it out of the coursebook market, this is a book every law library should have a copy of. Here's the book description:

Lawyer, judge, politician, poet, teacher, and architect, William Blackstone was a major figure in eighteenth century public life. Over his varied and brilliant career he made profound contributions to English politics, law, education, and culture through involvements in legal practice, Parliament, and the University of Oxford. Throughout he also remained engaged in his society's literary and spiritual life. Despite the breadth and influence of his work, Blackstone the man remains little known and poorly understood, the lack of engagement with his public and private life standing in stark contrast to the scale of his influence, particularly on the development and teaching of the law.
Blackstone's 'Commentaries on the Laws of England remains the most celebrated and influential text in the Anglo-American common-law tradition. This great book has inevitably overshadowed its author, while the dispersal of his personal and professional papers further complicates the task of understanding the man behind the work. The lack of a thorough account of Blackstone's life has fuelled controversy surrounding his intellectual background and political views. Was he the deeply reactionary conservative painted by Bentham, or rather a committed reformer and early champion of human rights?
The present biography makes full use of a considerable body of new evidence that has emerged in recent years to shed light on the life, work, and times of this neglected figure in English and American history. Exploring Blackstone's family upbringing and private life, his political activities and ideology, his religious outlook and championing of the enlightenment, Prest weaves together the threads of an extraordinary mind and career.
And a blurb:

A splendidly controlled and fascinating story of a major historical figure who has never had anything like such treatment before...richly documented, unwaveringly fair but never constrained by the relative lack of personal sources, and above all judicious, indeed magisterial, albeit with numerous human touches..." Paul Langford, Lincoln College, Oxford

Cooper on The Lost History of Estate and Gift Taxation

Ghosts of 1932: The Lost History of Estate and Gift Taxation is a new paper by Jeffrey A. Cooper, Quinnipiac University School of Law. Here's the abstract:
In 1932, the United States confronted a bleak economic landscape. Amid the financial carnage caused by the 1929 stock market crash and the ensuing Great Depression, economic activity had ground to a halt, tax revenues had plunged, and the nation’s debt had soared. The declining government revenues and soaring debt threatened both the viability of American industry and the nation’s credit rating. Congress took bold action that year, enacting a massive tax bill (“the Revenue Act of 1932”) designed to balance the federal budget without further stifling economic growth.
As has been true through nearly a century of tax legislation, Congress included estate and gift taxes as a component of the Revenue Act of 1932. The architects of these estate and gift tax provisions made a number of crucial legislative choices, implicating issues of tax policy that remain as relevant today as they were some eighty years ago. Yet, histories of American taxation typically devote frustratingly little analysis to the specific estate and gift tax provisions included in the Revenue Act of 1932. As such, despite their continued relevance, the details of key decisions, and the motivations of those who made them, effectively have been lost to history.
In this paper, I seek to reclaim this lost history of estate and gift taxation. While the ensuing analysis certainly will enable us to more fully appreciate the events of 1932 and evaluate the actions Congress took in that fateful year, my inquiry is not of mere historical interest. Rather, the choices made in 1932 have helped shape the fundamental structure of U.S. estate and gift taxation for nearly eight decades, including our modern estate and gift tax code. As such, understanding the events of 1932 can help us to understand why our estate and gift taxes operate the way they do as well as help inform future debate about the optimal structure of our wealth transfer tax system.

Visconsi on Criminal Blasphemy

Elliott Visconsi, Yale English Department and Law School, has posted The Invention of Criminal Blasphemy: Rex v. Taylor (1676), which originally appeared in Representations, 103 (Summer 2008). Here is the asbtract:
This article provides an account of the emergence of the common law jurisdiction over blasphemy, arguing that the blasphemy laws first developed in Rex v. Taylor had an explicitly secular purpose. Instead of understanding this crucial decision as an emblem of the early modern fusion of church and state, this article reads Sir Matthew Hale's famous axiom that 'Christianity is parcel of the laws of England' as a step towards the emergence of an English civil religion.
Image Credit: Sitr Matthew Hale

Sunday, July 26, 2009

Reviews of Burns, Packing the Court, and more

"Two big ideas animate" PACKING THE COURT: The Rise of Judicial Power and the Coming Crisis of the Supreme Court by James MacGregor Burns, writes Adam Liptak in the New York Times.

One is that the court has for more than 200 years illegitimately claimed a power not granted to it by the Constitution. The other is that it has on the whole used this power to protect the powerful and to thwart progress....

[T]he book’s title is, of course, a reference to Roosevelt’s failed attempt to increase the number of justices after the court repeatedly struck down New Deal legislation. That episode, presented in lively detail, accounts for only two of the book’s 12 chapters, but it informs Burns’s view of the court from start to finish.

Liptak finds Burns' attack on judicial review "hard to take very seriously as a practical matter this late in the life of the Republic." Continue reading here.

Burns' book ends with a challenge, writes Emily Bazelon in Slate.

Burns imagines a president—he hopes this president—leading Congress to pass progressive legislation that amounts to a new New Deal. If a "hostile" Supreme Court then struck down such a compact, the president, Burns proposes, should refuse to obey the court. The president "would flatly announce that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation of legislation was not—and never has been—in the Constitution."...

[A]smackdown between Obama and the Supreme Court is nowhere on the horizon. But it's a tribute to Burns' lucid history of the Supreme Court that by the time you reach his audacious proposal, tucked into the conclusion, you're ready to entertain it seriously for a moment—and to think about its merits for longer.

Ultimately, Bazelon is skeptical: "Would we really be better off placing more faith in Congress or a shades-of-Cheney strong executive?" The rest is here.

Also in the NY Times, Jonathan Tepperman reviews A SAFE HAVEN: Harry S. Truman and the Founding of Israel by Allis Radosh and Ronald Radosh.

THE THIRD REICH IN THE IVORY TOWER: Complicity and Conflict on American Campuses by Stephen H. Norwood is taken up by Glenn C. Altschuler in the Boston Globe.

Saturday, July 25, 2009

Kim on Koreans and Race from Seoul to LA

The Stanford University Press Blog features Nadia Kim's recent book, Imperial Citizens: Koreans and Race from Seoul to LA, and a recent author interview:

Nadia Kim, author of Imperial Citizens Koreans and Race from Seoul to A, was interviewed recently by New America Media. The book Imperial Citizens from Seoul to LA, was interviewed recently by New America Media. The book Imperial Citizens examines the origins, nature, and extent of racial ideas about Koreans in relation to White and Black Americans, investigating how immigrants engage these ideas before they depart for the United States, as well as after they arrive. It shows how Korean history has shaped race relations, from interactions with white soldiers in Korea to interactions with Americans in the US....
According to Kim, "Koreans were thrust into the racial tensions already existing in the United States, and how Koreans are still severely misunderstood here. Kim's book and interview are gateways to understanding Korean racial history, because, as she puts it, Koreans remain an 'invisible and foreign minority here.'" More here.

Friday, July 24, 2009

Brooks on Asian Americans, Housing, and the Transformation of Urban California

There are many interesting new books this year, and I have not had a chance to mention many that have crossed my desk. I will do my best to catch up on books over the rest of the summer. If we miss your new legal history book, send us a note about it, especially a link to a review.

Many legal historians, especially those interested in race, urban spaces, and housing, will have an interest in Charlotte Brooks' new book, Alien Neighbors, Foreign Friends: Asian Americans, Housing, and the Transformation of Urban California (University of Chicago Press, 2009). Here's the book description:

Between the early 1900s and the late 1950s, the attitudes of white Californians toward their Asian American neighbors evolved from outright hostility to relative acceptance. Charlotte Brooks examines this transformation through the lens of California’s urban housing markets, arguing that the perceived foreignness of Asian Americans, which initially stranded them in segregated areas, eventually facilitated their integration into neighborhoods that rejected other minorities.

Against the backdrop of cold war efforts to win Asian hearts and minds, whites who saw little difference between Asians and Asian Americans increasingly advocated the latter group’s access to middle-class life and the residential areas that went with it. But as they transformed Asian Americans into a “model minority,” whites purposefully ignored the long backstory of Chinese and Japanese Americans’ early and largely failed attempts to participate in public and private housing programs. As Brooks tells this multifaceted story, she draws on a broad range of sources in multiple languages, giving voice to an array of community leaders, journalists, activists, and homeowners—and insightfully conveying the complexity of racialized housing in a multiracial society.
And the blurbs:

A nuanced exploration of multiracial race relations and the complexities attending Asian Americans' shifting social status in California's cities, this book is an important contribution to urban and Asian American history. Charlotte Brooks's discussions about the exclusion of Asian Americans from New Deal programs and the undoing of racial covenants in the cold war era are original, well-researched, and subtly argued. She compellingly illuminates the limits of postwar racial liberalism. -- Mae Ngai, author of Impossible Subjects: Illiegal Aliens and the Making of Modern America

A fascinating study, beautifully accomplished. Comparing the experience of Japanese and Chinese Americans in two California cities, Brooks illuminates the complex texture of discrimination, and the role of citizenship and international affairs in the evolution of equality. This book illustrates the way focused studies of particular communities contribute important insights to our understanding of the intersection of U.S. foreign affairs and civil rights history. -- Mary L. Dudziak, author of Exporting American Dreams: Thurgood Marshall's African Journey

Alien Neighbors, Foreign Friends takes a direct and compelling approach to its investigation of how the most viciously racialized groups in pre-World War II California became, in the decades after the war, the state's most praised non-whites. This book is especially important for it intervention in the black-white binaries of recent urban historiography on racial segregation, the urban crisis, and civil rights politics. It is a book unlike almost anything else in the literature, and as such it significantly broadens our understanding of how race has shaped American cities. -- Robert Self, author of American Babylon: Race and the Struggle for Postwar Oakland

ASLCH 2010: Call for Participation

The Association for the Study of Law, Culture and the Humanities has posted its "call for participation" for its 13th annual conference, to be held March 19-20, 2010, at Brown University, Providence, Rhode Island. According to the call, the ASLCH
is an organization of scholars engaged in interdisciplinary, humanistic legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory, jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, ideals, values, authority, obligation, justice, and about law's place in culture.

We will be accepting proposals for panels, roundtables, papers, and volunteers for chairs and discussants from July 15th until October 15th 2009.
More here.

Thursday, July 23, 2009

Sellers on Classical Influences on the Founders and on the French Revolution

Mortimer Newlin Stead Sellers, University of Baltimore School of Law, has posted two short essays will which appear in THE CLASSICAL TRADITION, Anthony Grafton, Glenn Most, Salvatore Settis, (eds.), Harvard, 2009. Here are the abstracts:

The American Revolution was a Whig revolution, which made it also a neo-Roman revolution from the start. Americans petitioned, remonstrated, and eventually fought to preserve neo-Roman conceptions of mixed government, liberty, and the rule of law that had dominated British political discourse since the Glorious Revolution of 1688. The Roman example gave Americans heroes, vocabulary, and a constitution for their revolutionary experiment in government without a king. The most important of the many classical influences on the American founding fathers was the political history of the Roman republic, because the American Revolution was political, and could neither have taken place nor succeeded as it did without classical learning to guide it. With the Revolution’s triumph in the federal constitution, the new American republic supplanted its ancient models. Subsequent revolutions would look to the United States and to its sister republic in France for political inspiration, just as Americans and their predecessors once imitated Rome.

The French Revolution was the last great political event to take its inspiration, iconography and institutions primarily from classical antiquity. French revolutionaries depended heavily on Roman and Greek history for ideas, and for the courage to apply them. But even if their understanding of history had been accurate (it seldom was) French politicians could never settle which ancient model to follow. Classical antiquity provides innumerable conflicting moral and political examples and the French came close to having tried them all, running through the whole of Roman history in fifteen years. Eighteenth-century Frenchmen postured as Romans, Athenians and Spartans, without ever achieving liberty against arbitrary power, or any consistent rule of law. The French Revolution’s ostentatious classicism, comprehensive experimentation, and obvious failure, discredited Roman and Greek antiquity as practical models for political reform. Future revolutions would need new models, including the experience of France itself, and the transatlantic successes of the United States of America. The French Revolution discredited classical antiquity, by following it too capriciously, too blindly and to the bitter end.

Carroll on Carlson on "The Crimes of Womanhood"

Tamar W. Carroll, Cornell University, has posted on H-Law her review of A. Cheree Carlson, The Crimes of Womanhood: Defining Femininity in a Court of Law (Urbana: University of Illinois Press, 2009). The review, entitled, "Gendered Rhetoric in the Victorian-era American Courtroom," commences:
In this interesting book, Carlson analyzes six highly publicized trials involving women defendants or principals in the late nineteenth- and early twentieth-century United States. Several of the cases remain well known today: the 1892 trial of Lizzie Andrew Borden, accused of murdering her father and stepmother; the multiple trials from 1840 to 1878 of Ann Trow Lohman, better known as the abortionist Madame Restell; and the 1925 Rhinelander v. Rhinelander case in which a wealthy white man sued his wife for fraud for failing to disclose her "colored" race prior to their marriage.

The other cases, those of Elizabeth Parsons Ware Packard (1864), Mary Harris (1865), and Mary Todd Lincoln (1875), all involved questions of mental competency. Packard and Lincoln were both committed by male guardians to psychiatric hospitals against their will; juries eventually ruled that they were not insane and released them from their confinement. Harris shot and killed the man who had led her to believe they were to be married and then abandoned her for another woman. Harris was found not guilty by the jury, who believed her lawyer's claim that Harris was suffering from insanity brought on by emotional distress and menstrual disorder at the time of the murder. These courtroom dramas unfolded as the legal and medical professions sought to establish professional legitimacy and battled for authority to define criminal insanity.
More here.

Langbein, Lerner and Smith, History of the Common Law

For anyone considering a Fall 2009 adoption of John Langbein, Renee Lettow Lerner, and Bruce P. Smith, History of The Common Law: The Development of Anglo-American Legal Institutions, I'm assured by the folks at Aspen that although the book won't be published until the week of August 17, copies can be in university bookstores in time for the start of classes. Page proofs for professors considering adoption are available now.

According to the publisher,
This introductory text explores the historical origins of the main legal institutions that came to characterize the Anglo-American legal tradition, and to distinguish it from European legal systems. The book contains both text and extracts from historical sources and literature. [Its illustrations include] medieval illuminated manuscripts, paintings, books and manuscripts, caricatures, and photographs.

Two great themes dominate the book: (1) the origins, development, and pervasive influence of the jury system and judge/jury relations across eight centuries of Anglo-American civil and criminal justice; and (2) the law/equity division, from the emergence of the Court of Chancery in the fourteenth century down through equity's conquest of common law in the Federal Rules of Civil Procedure. The chapters on criminal justice explore the history of pretrial investigation, policing, trial, and sentencing, as well as the movement in modern times to nonjury resolution through plea bargaining. Considerable attention is devoted to distinctively American developments, such as the elective bench, and the influence of race relations on the law of criminal procedure.

Other major subjects of this book include the development of the legal profession, from the serjeants, barristers, and attorneys of medieval times down to the transnational megafirms of twenty-first century practice; the literature of the law, especially law reports and treatises, from the Year Books and Bracton down to the American state reports and today's electronic services; and legal education, from the founding of the Inns of Court to the emergence and growth of university law schools in the United States.
I'll have more to say about the book and the tradition it represents when it's out. Because I've noticed (and, truth to tell, felt) some sticker shock at the $159 price, I'll add now that I'm told that it is the first casebook by a major publisher of law school teaching materials to be published in full color, because so many of its more than 250 illustrations are in color. Also, the (1,184-page) book is likely to have a long life on a law student/lawyer's shelf as a reference work. Finally, Amazon appears to be discounting it.

Update: In my remarks on price, I may have been guilty of extrapolating from the last time I bought a casebook, which I believe was 1983. I've been assured that the price is quite comparable to other recently published casebooks of similar dimensions.

Wednesday, July 22, 2009

Bruce Mann Slated to Be ASLH President-Elect

From the election materials on the American Society of Legal History's website, we learn that Bruce H. Mann, Harvard Law School, is on the ballot as the ASLH's president-elect, whose two-year term as president would, assuming that he prevails in the uncontested election, follow that of Constance Backhouse, which commences later this year. The Nominating Committee reports:
Bruce H. Mann is the Carl F. Schipper, Jr. Professor of Law at Harvard Law School. He has also taught at the University of Pennsylvania, Washington University in St. Louis, and the universities of Connecticut, Houston, Texas, and Michigan, and in the Department of History at Princeton. He has been a member of the Society and attended all but one or two annual meetings since 1976, when he was a graduate student. He has twice served on the Board of Directors and has chaired the Publications Committee since 2001. He has also been a member of the Nominating Committee, the Surrency Prize Committee, and three Program Committees, including as chair for the 1986 annual meeting in Toronto. He has presented or commented on papers and chaired panels at ten annual meetings. He was editor of Law & History Review from 1987-1993.

His first book, Neighbors and Strangers: Law and Community in Early Connecticut, was published in the Society's Studies in Legal History series. His other publications include The Many Legalities of Early America, which he co-edited with Christopher Tomlins, and articles and essays in various history journals and law reviews. His most recent book, Republic of Debtors: Bankruptcy in the Age of American Independence, received prizes from the Society for Historians of the Early American Republic, the American Historical Association, and the Law and Society Association. His primary research interest is the relationship among law, economy, and society in early America, although he occasionally writes on the law of wills and charitable foundations.

He is a Fellow of the Massachusetts Historical Society and an elected Member of the American Antiquarian Society, and is a long-time member of the Advisory Council of the McNeil Center for Early American Studies in Philadelphia.
According to the University of Ottawa's website, Constance Backhouse, whose tenure as president begins this year,
holds the positions of Distinguished University Professor and University Research Chair at the University of Ottawa. She teaches in the areas of criminal law, human rights, legal history, and women and the law.

Professor Backhouse's most recent book is Carnal Crimes: Sexual Assault Law in Canada, 1900-1975 (Toronto: Irwin Law, 2008). She is the co-author, along with her sister, the Hon. Justice Nancy L. Backhouse, of The Heiress versus the Establishment: Mrs. Campbell’s Campaign for Legal Justice (Vancouver: UBC Press, 2004), which was named by the Literary Review of Canada as one of the five “books most likely to become classics of their kind” for the year 2004. It was also selected by The Beaver magazine as a “Book Club Title” for 2005, and short-listed for the Toronto Book Award in 2005. She is the author of Colour-Coded: A Legal History of Racism in Canada,1900-1950 (Toronto: U of T Press, 1999), which was awarded the 2002 Joseph Brant Award as the “best book in multicultural history published within the past three years” by the Ontario Historical Society. Her book, Petticoats and Prejudice: Women and the Law in Nineteenth-Century Canada (Toronto: Women’s Press, 1991), was awarded the 1992 Willard Hurst Prize in American Legal History by the Law and Society Association. Another of her books, Challenging Times: The Women’s Movement in Canada and the United States (Montreal and Kingston: McGill-Queen’s U. Press), co-edited with David H. Flaherty, was named the 1993 “Outstanding Book on the Subject of Human Rights in the United States” by the Gustavus Myers Center for the Study of Human Rights in the U.S. She is the co-author with Leah Cohen of two books on sexual harassment: Sexual Harassment on the Job (Englewood Cliffs, NJ: Prentice-Hall, 1981) and The Secret Oppression: Sexual Harassment of Working Women (Toronto: Macmillan, 1979). The latter was the first book published in Canada on the topic, and the second in North America.
The members of the nominating committee are Barbara Welke (Chair), Christina Duffy Burnett, Christopher Capozzola, Amalia Kessler, and David S. Tanenhaus.

Update: A column summarizing an account of the sexism prevalent during Professor Backhouse's law school days is here.

Seminar on Lincoln's Constitution at NY Historical Society

Akhil Reed Amar (Yale University) and James Oakes (CUNY)
to Teach Graduate-Level Course About Constitutional Issues Raised by Lincoln’s Presidency
In its capacity as the New York City home of the Institute for Constitutional History (ICH)—an organiza
tion that is co-housed in Washington, DC, at the George Washington University Law School—the New-York Historical Society is pleased to announce that its first semester-long graduate course will take place in autumn 2009 as the Robert H. Smith Seminar. In keeping with the Lincoln Bice
ntennial theme of the Historical Society’s programs in 2009, including its major exhibition Lincoln and New York, the seminar will focus on the constitutional issues arising from the presidency of Abraham Lincoln and will be taught under the title of Lincoln’s Constitution.
Designed for graduate students and junior faculty in history, political science, law and related disciplines, the seminar will be taught by the distinguished scholars Akhil Reed Amar (Yale College and Yale Law School) and James Oakes (CUNY Graduate Center).
“We are proud to be taking this major new step in advancing the mission of ICH,” stated Louise Mirrer, president and CEO of the Historical Society. “The history and use of the Constitution are central to American history and culture, but do not constitute a central field of historical st

udy at any university in the New York metropolitan area. The New-York Historical Society offers an optimal site for such a program, given its collections, location, reputation for high standards, and ability to provide a neutral ground that can convene scholars from a wide variety of institutions.”
The collections of the Historical Society’s Museum and Library are extraordinarily rich in materials related to the Constitution and its history. Among these are papers, letters, maps, caricatures and other documents having to do with the John Peter Zenger case, the Stamp Act, the events of the early Federal period (including the crises of the 1790s) and the political battles of the early 19th century; Rufus King's notes on the Constitutional Convention; William Livingston's draft of the Constitution, marked up during the Convention; John McKesson’s notes on New York State’s ratifying convention; John Jay’s draft of Federalist #64; and Jay’s marked copy from the ratifying convention.
Commented Maeva Marcus: “As director of the Institute for Constitutional History, I am very pleased that N-YHS will be the home for ICH programs in the New York metropolitan area. Lincoln's Constitution, taught by two eminent scholars, will be a splendid beginning for the Robert H. Smith seminars in constitutional history.”
The Lincoln’s Constitution seminar at the Historical Society will move beyond the period when the Constitution was framed and first interpreted to consider some of the critical yet unresolved questions that Lincoln addressed during his years in public life. Among these were:
  • What rights and protections did slaveholders have under the Constitution?

  • Was secession lawful, or was the Union perpetual under the Constitution?

  • What were the constitutional war powers of the presidency?

  • Under what conditions could the president suspend habeas corpus?

  • Did emancipation violate the constitutional right of property?

  • What was the citizenship status of former slaves, and of free blacks generally?

  • And who got to decide these issues: Congress, the Supreme Court, or Lincoln?
Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and Yale Law School. Co-editor of a leading constitutional law casebook, Processes of Constitutional Decisionmaking, Amar has also written several books, including The Constitution and Criminal Procedure: First Principles, The Bill of Rights: Creation and Reconstruction, and most recently America’s Constitution: A Biography.
James Oakes is Distinguished Professor of History at the CUNY Graduate Center. He is a winner of the 2008 Lincoln Prize for his book The Radical and the Republican: Frederick Douglass, Abraham Lincoln and the Triumph of Antislavery Politics. His previous books include The Ruling Race: A History of American Slaveholders and Slavery and Freedom: An Interpretation of the Old South.
Applications for admission to the seminar may be made by email only, in care of, and will be accepted until August 30. Applicants should include a copy of their curriculum vita and a short statement on how this seminar will be useful in their research, teaching, or professional development. Successful applicants will be notified by email. For further information, please contact Maeva Marcus at (202) 994-6562 or e-mail
Lincoln’s Constitution will be taught at the New-York Historical Society, 170 Central Park West, on Thursday afternoons from 1:00 to 3:00 p.m. The seminar will be held on September 17 and 24 and on October 1, 15, 22, and 29, 2009.
Image source

Tuesday, July 21, 2009

Copyeditors dish on authors

Authors and copyeditors need each other, but on both sides of the aisle, it is not always a cheerful relationship. If you've ever had one of those experiences when you read through your copyedited manuscript, and wondered...what was he/she thinking? Well, now you get to hear the other side.

A top ten list of authors' most common mistakes, and "what drives copyeditors crazy," is being unveiled at the Oxford University Press blog. The target is writers for medical and scientific journals, but this likely carries over to other fields. While the author of the post is attempting to be helpful, one of copyeditors' top ten complaints, "Making life difficult for the copy editor," seems instead to illuminate the way communication problems can plague both sides of the relationship. The first three are here, and then stay tuned for more views about your "particularly charming" behavior.

Legal History Syllabi

If you are working on syllabi for next year's courses, a useful source of ideas is a collection of legal history syllabi on the Triangle Legal History Seminar's website.

Some of the links don't work, but you can find your way to Tom Russell's American Legal History syllabus, University of Denver College of Law, along with his links to documents; Elizabeth Dale's course at the University of Florida; and Barbara Welke's U.S. Women's Legal History Course at the University of Minnesota.

There is English Legal History, for example Robert Palmer's course at the University of Houston; Roman and Ancient Law, including Bernard Hibbet's course at University of Pittsburgh Law School; and a section on Global/Comparative/Non-Anglo American Legal History, with Sue Peabody's course, WSU-Vancouver, on Slavery, Freedom and the Law in the Atlantic World.

Also on the site is a link to the Center for History and New Media's helpful Syllabus Finder.

Brown on Thurgood Marshall's Jurisprudence

Rebecca L. Brown, USC Law School, has posted Deep and Wide: Justice Marshall's Contributions to Constitutional Law on bepress. It is forthcoming in the Howard Law Journal 52 (2009). Here is the abstract:
This essay, a contribution to a symposium marking the 100th anniversary of Justice Thurgood Marshall’s birth, explores Justice Marshall’s singular understanding of equality as a driving force underlying all of constitutional law. His theory of equality as giving rise to an obligation on government to provide reasons for its actions reflects a sophisticated and under-appreciated perspective on American constitutionalism, as illustrated by several examples offered in the essay.

Monday, July 20, 2009

Info for Law Review Submissions

For those planning to submit an article to law reviews, Allen Rostron and Nancy Levit, University of Missouri at Kansas City School of Law, have a useful guide listing the submissions information for 192 law reviews. [Careful readers will notice that the abstract says "about 188" journals, but the document itself says 192.] It was updated in June.

And for essays intended for law review on-line supplements, Colin Miller, John Marshall Law School, has posted a Submission Guide for Online Law Review Supplements, covering 19 reviews.

Davis and Brophy on Trusts and Estates in the Antebellum South

Stephen Duane Davis II, Law Clerk, U.S. District Court, Northern District of Alabama, and Alfred L. Brophy, University of North Carolina School of Law, have posted The Most Esteemed Act of My Life: Family, Property, Will, and Trust in the Antebellum South. Here is the abstract:
This paper combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families, and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property, often managed through trusts after their owners died and also frequently divided between family members, to the maintenance of family wealth.

While some in the United States at the time, including some jurists, as well as politicians and novelists, questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in 'The Most Esteemed Act of My Life' invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.
Image credit.

Saturday, July 18, 2009

Round-up of recent history posts

Updated: Al Brophy at Faculty Lounge, Bridget Crawford at Feminist Law Professors, and other bloggers have had important history-related posts recently, covering topics I missed while traveling/too busy with other things. (Warning: I'm having trouble getting to Feminist Law Profs today -- which may be my connection. It is usually easy to access. If you have trouble, using a browser other than Explorer might help. I believe following the direct links to posts will be ok -- since the hang-up is probably due to a video on the blog's front page....) Here's a round-up:

Al recently noted the passing of Kenneth Stampp, leading historian of slavery and author of The Peculiar Institution. More remembrances are here.

Many covered Robert Post's appointment as Dean of Yale Law School, bringing another history-friendly dean to a major law school. Adding to this two new historian law deans, Davison Douglas at William and Mary, Bruce Smith at Illinois, it has been a favorable year for legal history, at least when it comes to bringing legal history and its fans, into law school leadership roles. Al noted another implication of Post's deanship: the question of whether it will have an impact on "Post's much-anticipated tenth volume of the Oliver Wendell Holmes Devise History of the Supreme Court, Constitutional Rights and the Regulatory State, 1921–30."

With more news of cuts, Al also worries about the state of university presses.

At Feminist Law Professors, Bridget Crawford has had a number of excellent history-related posts, including a link to a new on-line exhibit commemorating the 40th anniversary of the Stonewall Riots, news on a new Nixon tape release, a post on A Feminist Legal History of U.S. Patriotism, discussing a review of Francesca Morgan, Women and Patriotism in Jim Crow America (UNC Press 2005). Bridgett also links to an art exhibit on woman suffrage in Iowa.

Kim Krawiec at Faculty Lounge discusses News From 1930 and Washington Irving's The Great Mississippi Bubble.

Claire Potter, Tenured Radical, has thoughts on the California budget crisis, its impact on universities, and responses.

Friday, July 17, 2009

"A festschrift can be like a witness protection program for scholarship"

In the course of his helpful new review of Daniel Hamilton and Albert Brophy's edited collection, Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, Stuart Banner discusses a problem with festschrift volumes: it is often difficult for scholars to find the essays. Banner finds the essays in the Horwitz volume to be interesting and valuable. Nevertheless,
The problem is that the papers published in these books can be nearly impossible for researchers to find. The articles in a special issue of a law review are indexed just like regular articles, and they are word-searchable in the same electronic databases. There is no comparable research infrastructure for essays in books, with one exception – Michael Taggart’s index of common law festschriften (Taggart 2006) – but even that index is not widely known....A festschrift can be like a witness protection program for scholarship....

Festschriften for law professors were once very rare, but they are becoming much more common. This may be a function of the turn toward interdisciplinarity in legal scholarship. The normal vehicle for honoring a law professor was once a special issue of a law review, and that is probably still the most common way, but the legal academy has shifted toward the norms of disciplines like history and philosophy, and the festschrift is one of them. There are still relatively few American law professors, compared with professors in other disciplines, who send enough students on to academic careers to populate a festschrift. The ones that do are usually the ones, like Morton Horwitz, with one foot in another discipline, so it is not surprising that most of these recent volumes have honored law professors in interdisciplinary fields like legal history, jurisprudence, and international law.

The solution to the invisibility of this work?
Publish festschriften online. Harvard University Press has not done so with this book, nor, to my knowledge, have any of the other publishers of festschriften in recent years. If the reason is that publishers need to sell [*504] enough copies to recoup printing costs, perhaps the ultimate answer is to dispense with physical books and move toward the virtual festschrift. Maybe one day Google Books will rescue festschrift chapters from oblivion; even if you cannot read the full text, at least you can find out that a given search term is in the book somewhere. An intermediate solution would be for the authors to post pre-prints of their contributions online themselves. The Social Science Research Network would be a natural location for the chapters in this book, but when I checked in June 2009, only four of the eighteen authors had posted their chapters there. It is a shame, because all of these essays are worth reading.

Banner's full review in at the Law and Politics Book Review.
Marshalls protect witness in witness protection program.

Banner reviews Hamilton & Brophy's Horwitz collection

Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, by Daniel W. Hamilton and Alfred L. Brophy (eds), Cambridge: Harvard University Press, 2009, has been reviewed by Stuart Banner, UCLA Law School, for the Law and Politics Book Review. Banner writes:

This book is the first of two planned festschrift volumes in honor of the legal historian Morton Horwitz, who has been teaching at Harvard Law School since 1970. Horwitz’s most well known books are both called THE TRANSFORMATION OF AMERICAN LAW (Horwitz 1977 and 1992), which explains the title of this volume. Seventeen of the eighteen contributors are former students who are now law professors or historians themselves. The eighteenth is Horwitz’s longtime colleague Charles Donahue. As is often true in collections like these, there is no common theme to the chapters. Most of the authors have contributed substantive historical essays within their various fields of expertise. The exceptions are William Treanor and Daniel Hamilton, who offer short appreciations of Horwitz himself, and Donahue, who appraises the state of legal history generally. The authors of the substantive historical pieces make varying degrees of effort to connect their work to Horwitz. On one end of the spectrum, Daniel Hulsebosch prefaces his discussion of the early American judges James Kent and Joseph Story with a few pages analyzing what Horwitz had to say about them, and Assaf Likhovski frames his research in the law of British Palestine as “Horwitzian journeys.” On the other end, a few of the authors do not mention Horwitz at all.
Some of the essays suggest the influence of Horwitz’s own work. Polly Price’s chapter on “Stability and Change in Antebellum Property Law” is reminiscent of Horwitz’s first Transformation book, both in its subject and in the way Price amasses early reported court opinions to build up a sense of what judges believed they were doing. Dalia Tsuk’s essay on “Pluralism, Individualism, and Democracy” in the twentieth century recalls Horwitz’s second Transformation book, which was more of a high-level intellectual history of legal thought. But the chapters are in a wide variety of styles, most of which are very different from Horwitz’s. Stephen Siegel traces the doctrinal origins of “strict scrutiny,” an important concept in constitutional law in the second half of the twentieth century. Alfred Brophy examines the role of utilitarian thinking in debates over the Fugitive Slave Act of 1850. Elizabeth Blackmar contributes a history of the “free rider,” who has played a leading role in the economic analysis of law. Gregory Mark offers what he calls a “speculative essay” on the shifting purposes served by the limited liability of corporate shareholders. Mary Bilder and Alison LaCroix each explore the colonial origins of different aspects of early republican constitutionalism. It is hard to draw any conclusion from these diverse essays, other than that Horwitz’s former students evidently do not [*503] constitute any particular school. They span the full range of approaches to legal history.
Banner notes that "as with many festschriften, most of the chapters read like small parts of larger works in progress or already published. The contributors are all very good at what they do, so the essays are all interesting and well crafted, but few would likely have been published on their own." Still, he writes, "all of these essays are worth reading."

Banner also comments on the genre of the festschrift, which will be the topic of a separate post. The full review is here.

Reece Reviews the Lincoln Legals

H-Law has posted a review of Daniel W. Stowell, ed., The Papers of Abraham Lincoln: Legal Documents and Cases, 4 vols. (Charlottesville: University of Virginia Press, 2008) by Lewie Reece, Anderson College. In part, Reece writes:
For many years, Lincoln’s law practice was so bound up with the romanticized image that it was hard to approach, in a sustained way, Lincoln as a practicing lawyer. When older historical studies examined Lincoln’s study of law it often became a tug of war between those examining Lincoln as a legal theorist and those who pursued a more anecdotal approach to Lincoln as he practiced on the circuit. Yet presenting a more analytical approach to Lincoln’s legal career was often difficult due to a lack of access to the relevant sources. Some were provided in The Collected Works of Abraham Lincoln (1951), edited by Roy Basler, but they were only a slight selection of a much larger legal correspondence that was largely buried in Illinois country archives. This deficiency was finally resolved by a massive publication of Lincoln's legal correspondence in 2000 of a three CD-ROM collection, The Law Practice of Abraham Lincoln: Complete Documentary Edition (2000), edited by Martha Benner and Cullom Davis. The last few years have also seen an expansion of interest in Lincoln’s legal career, with a very useful study of Lincoln’s years as a lawyer by Brian Dirck, Lincoln the Lawyer (2007). Dirck’s study was but part of a larger reexamination of Lincoln’s years as a practicing lawyer, and his legal career has been receiving renewed attention from a growing number of scholars.

While The Law Practice of Abraham Lincoln was an exceptional work, it was no substitute for a letterpress edition that could put these documents into book form. . . .
The rest, here.

Thursday, July 16, 2009

CFP: Toronto Group for International, Transnational and Comparative Law

The Toronto Group for International, Transnational and Comparative Law is holding its Third Annual Conference in Toronto January 29-31, 2010, entitled "Concerning States of Mind, Disturbing the Minds of States", and loosely themed around a renewed focus on historicism in international and transnational legal scholarship.

The principal aim of this conference is to encourage critical inquiry and collaborative discussion among graduate students and junior faculty members, providing a forum in which to explore the work at play in various projects aimed at historicizing and redefining international, transnational, and comparative law and legal scholarship.

Keynote speakers will include Martti Koskenniemi, Academy Professor, University of Helsinki.

The abstract submission deadline is Oct.19th, 2009. Please see the call for papers for additional submission details and contact information, and note that presenters at the Conference will have the opportunity to publish their papers with the Comparative Research in Law and Political Economy Paper series (CLPE).

Washington and Lee and Lincoln

Surface mail recently brought the announcement and schedule for the conference "Lincoln for the Ages: Lessons for the 21st Century," at Washington and Lee University, on September 25-26, 2009. Justice Clarence Thomas deliver the opening address Friday night; Saturday's three panels are "Character: the Personal in the Political," "Politics: Self-Government in Principle and Practice," and "Civil-Military Affairs: the Executive Goes to War." More information is here; you may also contact Dr. Lucas Morel of Washington and Lee's Politics Department, at A $30.00 registration fee gets you admission to the symposium and a luncheon.

Mason on Wrongful Death at Common Law

Malcolm S. Mason, an independent scholar, has posted Civil Liability at Common Law for Wrongful Death: A Footnote to the Dictum of Lord Denman in O'Connell v. The Queen. Here is the abstract:
Since the enactment in Britain of Lord Campbell’s Act (The Wrongful Death Act) (1846) it has been widely but erroneously assumed that the Common Law provided no civil remedy for wrongful death. This mistaken view is sometimes thought to rest on the maxim, Actio personalis moritur cum persona, or on the thought that the value of a human life is beyond estimation, or on the doctrine of merger in felony, or on the obsolete right of appeal, or on the need of a contract. None of these justify the belief in lack of civil remedy at common law. The common practice of American courts, including some made up of learned lawyers, shows the contrary. If we now return to a close examination of the English precedents, we find the existence of the remedy confirmed. Why was the mistaken view accepted. Speculatively, it was because of the rise of railroad accidents and of Lord Campbell’s gifts as an orator which exceeded his gifts as a lawyer.
Mr. Mason was a research fellow of the Foundation of Research in Legal History at the Columbia Law School under Julius Goebel. In the 1930s he was an attorney at the Agricultural Adjustment Administration and the National Labor Relations Board. He was General Counsel of the Office of Alien Property during World War II and, later, Chairman of HEW's Departmental Grant Appeals Board.

Image credit: Lord Campbell.

Wednesday, July 15, 2009

Hughes on the Origin of Intellectual Property

Notes on the Origin of Intellectual Property: Revised Conclusions and New Sources is a new paper from Justin Hughes, Yeshiva University Benjamin N. Cardozo School of Law. Here's the abstract:
Following work published in 2006, this article explores the history of the phrase 'intellectual property' as it was used in the 19th century and early 20th century by jurists speaking French, Spanish, Italian, and English. During this period 'intellectual property' was used by many commentators to refer to copyright alone; indeed, in Spanish, the phrase unambiguously meant just copyright. The article sketches out how officials in WIPO's predecessor organization rechristened it an 'intellectual property' entity and helped establish the modern, umbrella sense of the term for patents, copyrights, trademarks, etc. Finally, the manuscript explores how the property-or-not debate has animated discussions of copyright theory throughout the history of copyright law.

Duxbury on Lord Wright

Neil Duxbury, London School of Economics Law Department, has posted Lord Wright and Innovative Traditionalism. Here is the abstract:
This study presents the mid-twentieth century English lord of appeal, Lord Wright, as an innovative traditionalist judge. Judges have a duty to be creative, Wright believed, but only within the framework of existing legal authority. Wright explained his innovative traditionalist perspective in relation to precedent, public policy and legislation, and he illustrated his perspective particularly by way of contributions to decisions on worker compensation, commercial contracts, restitution and international criminal law. He was not always a bold judge, as is especially evident from his contribution to Liversidge v. Anderson. But his efforts to develop the law without undermining established precedents and statutory authority could be subtly effective. In contract and tort decisions he consistently argued that personal liability should attach only to outcomes which could reasonably have been expected to come about. He was realistic, and believed courts must be realistic, about the tendency of the business world to be guided primarily by its own norms. He incisively criticized implied contract theory and advanced a conception of unjust enrichment which, in England, was considerably ahead of its time. In employment law, he added a twist to freedom-of-contract reasoning, arguing that if it is permissible for individuals to use their economic advantage to impose contractual terms on weaker parties then it should also be permissible for those parties to combine and gain the upper hand. After World War II, he argued that the positive laws necessary for punishing war criminals already existed. This study draws these arguments together in an effort to capture Wright’s judicial style and to show that some of his contributions to legal thought and doctrine run deep and are historically significant.
Hat tip: Legal Theory Blog