Thursday, December 31, 2009
President Obama declared on Tuesday that “no information may remain classified indefinitely” as part of a sweeping overhaul of the executive branch’s system for protecting classified national security information.According to the National Security Archive blog, "This process involved a level of public input that has never before taken place during the revision of an EO governing classification of national security information." And "as to the EO itself, well, it holds great promise for decreasing overclassification." Among the specific provisions, Obama's Executive Order "establishes, for the first time, the principle that no information may remain classified indefinitely and that information may not be excluded from declassification based on type of record. These are both important, given that some agencies have tried to argue that specific categories of documents, such as President Daily Briefs, can never be declassified, or that very ancient secrets cannot be declassified."
In an executive order and an accompanying presidential memorandum to agency heads, Mr. Obama signaled that the government should try harder to make information public if possible, including by requiring agencies to regularly review what kinds of information they classify and to eliminate any obsolete secrecy requirements....He also established a new National Declassification Center at the National Archives to speed the process of declassifying historical documents by centralizing their review, rather than sending them in sequence to different agencies.
More info is here. The Executive Order is here.
"How few of the human race," John Adams rejoiced, "have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children." All previous nations, they told themselves over and over, had been compelled to accept their constitutions from some conqueror or some supreme lawgiver, or had found themselves entrapped by a form of government molded by accident, caprice, or violence. But Americans knew that they were, as John Jay declared, "the first people whom heaven has favoured with an opportunity of deliberating upon, and choosing the forms of government under which they should live." They became the architects of their constitutions, and thus for them the state became a work of art, a distinctly artificial entity. Drawing out the implications of that idea in the making of the Constitution is the theme of Eric Slauter's richly imaginative book.
Wood's review takes up The State as a Work of Art: The Cultural Origins of the Constitution by Eric Slauter, in the July 1, 2009, New Republic. Hat tip to U.S. Intellectual History.
Slauter's book, Wood writes, "is the first full-scale effort by a literary scholar to bring the special tools of his discipline to bear on the Constitution and its cultural origins. The result is a smart, strange, and frustrating book."
Read the rest here.
Wednesday, December 30, 2009
Section on Legal History
January 8, 2010, 4:00 - 5:45 pm
Melrose, Third Floor, Hilton New Orleans Riverside
Habeas Corpus: The Enduring Issues
Moderator: Judith K. Schafer, Tulane University School of Law
Speaker: Eric M. Freedman, Hofstra University School of Law
Speaker: Stephen I. Vladeck, American University Washington College of Law
Commentator: Robert J. Cottrol, The George Washington University Law School
This panel will present the results of new historical research into the development of habeas corpus as a protector of liberty in the colonial, early national and antebellum periods.
The inspiration for Welke and Ledford's effort is Linda Kerber's widely circulated Conference Rules: Everything You Need to Know about Presenting a Scholarly Paper in Public. This new guide, focusing on how to get to the podium in the first place, is also destined to be a classic.
Along with much good advice, the authors have included two successful panel proposals from the 2009 meeting, complete with paper abstracts. You can find it all here.
The generous support of the Doris Quinn Foundation enables the New Netherland Institute to join with academic institutions, the New York State Library, and the New York State Archives in offering visiting professorships, fellowships, and research residencies. Since the grant's inception in early 2005, the first visiting professor completed his residence, as did the second fellow. The Visiting Professorship consists of two semesters of teaching at two academic institutions. Visiting professors are invited by the New Netherland Institute in agreement with both participating institutions. The visiting professorship carries a stipend of $15,000 per semester, which is matched by the host institution. Courses are determined in consultation between the visiting professor and the appropriate department of the host institution.
The Fellowship consists of a nine-month dissertation program to facilitate research on New Netherland and the Dutch Colonial Atlantic World, part of which is spent working in the rich collections of the New Netherland Institute, the New York State Library, and the New York State Archives at Albany, and one semester in residence at the McNeil Center for Early American Studies at the University of Pennsylvania. The fellowship carries a stipend of $18,000. Doctoral candidates in any discipline who are in the research or writing stage of the dissertation are eligible, and any project dealing with the Dutch experience in North America in the Atlantic world before 1850 will be considered.
Tuesday, December 29, 2009
An Archeology of Agency in the Civil Law Tradition: Early Modern Spain, France, and Colonial Spanish America
with Amalia Kessler, Stanford University, as commentator.
(Dis)Inheriting Slavery: Property, Power, and Belief in the Last Requests of Masters and Slaves with Ariela J. Gross, University of Southern California Gould School of Law, as commentator.
Don't Ask, Don't Tell, Don't Marry, with panelist Elizabeth L. Hillman, University of California Hastings College of the Law.
Marriage on Trial: Historians and Lawyers in Same-Sex Marriage Cases, with Nancy F. Cott, Harvard University, Joan Heifetz Hollinger, University of California, Berkeley Law School, Linda K. Kerber, University of Iowa, and others.
The Law and Its Uses? A View from South America
A World of Hurt: Medieval Marriage Practice and Law in a Century of Crisis
Control, Discipline, and Order in Modern China
And these papers:
At the Border of Law and Politics: The Bakke Case and Affirmative Action, Laura Kalman, University of California, Santa Barbara
A Mississippi Mockingbird: The Legal Lynching of Willie McGee, 1945–51, Patricia Michelle Buzard Boyett, University of Southern Mississippi
Status, Race, and Marriage: French Continental Law versus French Colonial Law, Valérie Gobert-Sega, École des Hautes Études en Sciences Sociales, Paris, France
Redefining Chinese: Nationality Law, Borderlands, and State Succession, 1909–90s, Shao Dan, University of Illinois at Urbana-Champaign
Enemy Combatants: African American Soldiers in Confederate Prisons, Thomas J. Ward Jr., Spring Hill College
Other panels featuring legal historians:
Barack Obama and the American Democratic Tradition, with Annette Gordon-Reed, New York Law School, and David J. Garrow, University of Cambridge, as commentators.
Gay Marriage and Proposition 8: Reflections with A More Perfect Union, 1975–2007 by Sarah Barringer Gordon, University of Pennsylvania,
And my panel: Oceans Apart? Global Influences on Progressive-Era American Politics and Thought. I will comment, along with Paul Kramer, Vanderbilt University.
For more, search the full program.
These three books on the atomic bombings of Japan represent an apple, an orange, and a banana for comparison purposes. One is a reference work with primary sources, one is a synthetic overview, and one is a narrowly focused monograph. Together, however, they do reflect the diversity of the useful scholarship still being produced despite the admitted vastness of the existing literature on "The Bomb."
Most innovative of the three is the reference work, Michael Kort's Columbia Guide to Hiroshima and the Bomb. It joins at least a half-dozen other titles in the same series on a wide variety of historical topics. Other reference works and document readers of course exist, but none tries to do what the Columbia Guide does. It begins with a seventy-five-page "Historical Narrative," accessible to the lay reader, which briefly describes the debate over Hiroshima and then traces events from the launching of the Manhattan Project through the Japanese surrender. Part 2 devotes thirty-five pages to ten "Key Questions and Interpretations," such as "Was the Policy of Unconditional Surrender Justified?" Part 3, "Resources," uses thirty pages to provide a chronology, glossaries of terms and names, and a bibliography of primary and secondary sources. The last section presents over two hundred pages of primary documents arranged in seven sections: American civilian documents; American military documents; summaries of Japanese diplomatic cable traffic obtained via MAGIC codebreaking; Japanese government and military documents and diary entries; Japanese surrender documents; key sections of the U.S. Strategic Bombing Survey, including portions of interrogations of Japanese officials; and postwar statements by Japanese officials collected by the U.S. Army historical division.
The Columbia Guide largely succeeds in achieving its goal, "to make available to a wide audience the primary source materials necessary for making a reasoned judgment about the American decision to use nuclear weapons against Japan during World War II" (p. xiii),
This is also one of a series, in this case Oxford University Press's The Making of the Modern World. In a field of secondary-source-synthesizing overviews already plenty crowded, Rotter's stands out. He covers what one might expect: the origins of the atomic bomb; the atomic programs of World War II's major combatants; the bombings of Hiroshima and Nagasaki; the early Cold War and development of the hydrogen bomb; and, in a final chapter, brief capsule-histories of subsequent cases of nuclear proliferation....
Michael D. Gordin's brief Five Days in August, as its title suggests, is by far the most narrowly focused of the three books. By shedding unusual light on the period August 9-14, 1945--that is, between the destruction of Nagasaki and the Japanese surrender--Gordin quite usefully restores a sense of contingency to the history of the bomb. That is, he tells "the story of how the atomic bomb was thought about and treated before anyone could claim that the bomb had ended the war, simply because the war was not yet over" (p. 10).
Marie and her sister were the “Barnettes” (a court clerk misspelled the family’s surname) in the landmark U.S. Supreme Court decision West Virginia Board of Education v. Barnette (1943), in which the Court struck down a West Virginia law that required public school students to stand, salute the American flag and recite the Pledge of Allegiance. The famous decision established that public school students had First Amendment rights and that the First Amendment often prohibits the government from compelling people to engage in certain speech.More.
Monday, December 28, 2009
This paper examines the use of Roman law by members of the House of Lords in three recent decisions: Fairchild vs. Glenhaven Funeral Services  UKHL 22; Foskett vs. McKeown  1 AC 102; and OBG vs. Allan  UKHL 21, The contrasting views of Professor Peter Birks and Professor Sir Basil Markesinis are considered, and it is argued that within the decisions can be seen the value of reference to Roman law.
Martin Flaherty, History “Lite” Revisited
Risa Goluboff, Of Vagrants and Wanderers: History and Mythology in Papachristou v. City of Jacksonville
William J. Novak, Law, History, and Constitutional Myth-Making
Mary Dudziak, Law as Public History: How Supreme Court Opinions, Like Historical Monuments, Enabe Visions of the Past to Shape the Future
Sunday, December 27, 2009
Saturday, December 26, 2009
This book chapter discusses the similarities between the norms and ethos of chivalry and those of the legal profession and explores the possible effect of the former on the latter. Dominant chivalric norms, loyalty and honor, are also dominant norms of the legal profession. But the existence of these congruencies does not necessarily show an influence of chivalry on the legal profession. As the subsequent discussion will show, despite some similarities between these two institutions, it is doubtful whether there was very much direct influence of the norms and those of chivalry on those of the legal profession, whose norms and ethos were the product of various internal and external influences.
The chapter begins with a short discussion of the norms and ethos of chivalry as foundation for the chapter’s focus on the legal profession. The chapter then turns to a discussion of the ethos of the legal profession. It first discusses loyalty as a norm of the legal profession, exploring its existence in the medieval common law, civil law, and canon law professions. Some other congruencies between the norms and ethos of chivalry and those of the legal profession are identified as well.
The chapter proceeds to an exposition of honor and reputation as elements of the legal profession’s ethos. It begins with a discussion of serjeants-at-law, the highest ranking medieval common law lawyers, exploring their creation and professional society. Moving forward in time, the chapter then discusses barristers, the preeminent early modern lawyers, investigating their membership in the Inns of Court, their social status, and image. The chapter then turns to a discussion of honor among 18th and 19th century lawyers in England and the United States. This portion of the chapter involves an inquiry into the use of the title of esquire in England and the United States from the 17th century to modern times as an indication of honor and a discussion of the use of defamation actions by lawyers in early modern England to protect their honor and reputation. This discussion concludes with an identification of honor as an aspect of the ethos of the civil and canon law professions.
The next portion of the chapter deals with the possible influence of chivalry on the ethos of the legal profession. The first portion of this discussion explores the linkage between lawyers and chivalry. Canon and civilian lawyers offer the clearest evidence of a connection with chivalry as these lawyers were fond of comparing themselves with knights. This discussion traces the development of this practice from Roman sources through medieval commentators on the status and dignity of lawyers in France, England, Germany, and Spain. It concludes with an identification of the medieval English serjeants’ Order of the Coif and their retainer agreements’ similarity to knightly orders and agreements.
The chapter then turns to a discussion of external influences on the ethos of the legal profession. It identifies loyalty as a longstanding and deeply embedded social value, the influence of religion on loyalty and other norms as an aspect of the profession’s ethos, and the influence of Renaissance humanism on the ethos of the Continental and English legal professions. This part of the discussion concludes by showing the longstanding societal premium placed on honor and good reputation as indicated by religious, ancient, early modern, and modern values.
The chapter concludes that loyalty and honor show that aspects of the norms and ethos of chivalry and those of the legal profession are congruent. But congruency does not establish influence. Evidence and inference must prove the latter. That involves examining primary sources regarding the norms and ethos of the legal profession from its inception and throughout time and attempting to discover the contemporary and prior internal and external influences on these norms and ethos. Those efforts show that although there is some evidence of a possible influence of the ethos of chivalry on that of the legal profession, it is not extensive.
Thursday, December 24, 2009
Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of property (hereinafter 'the House') a general lack of stirring....
This draft chapter for a collection of essays on Israeli environmental history argues that the shape and structure of Israeli environmental law, particularly its relative lack of uniform “command and control” emissions or technology standards, is directly traceable to the country’s past as a territory of the British Empire. Even much supposedly modern Israeli legislation is actually based on models inherited from the Palestine Mandate, including a reliance on nuisance law, Continental-style ad-hoc licensing of pollution, and ambitious centralized planning of land and water use. Moreover, even contemporary developments in Israeli environmental law, such as the turn to economic instruments, can be understood as deriving from the country’s colonial past. Comments and suggestions are welcome!
Unable to persuade her family to join her in Seattle, Robinson reluctantly returned to Boston and once again attempted to establish a law practice. She first sought work as a stenographer in the law office of Thomas Wentworth Higginson (right), so as to reacquaint herself with the methods of practice in Massachusetts. "The work was extremely hard, and my employer was entirely unaccustomed to having a woman about the office, and could not get used to it; while I, though full of admiration for the man's energy and sterling good heart, could not get used to his gruff, short ways of speech and manner." Her escape was almost by chance. "When I went into court with [Higginson] to take the testimony of a hotly contested case, one of the court officials who knew me (as of course they all do) put my name of the list as one of the counsel, and so it came out in all the papers the next day, to my intense surprise. This was too much for good Col. H., so he told me that he really thought I was wasting my abilities in his office, and in justice to myself and all women, I ought to be in practice for myself."
Her new office was quite modest:
I was very lucky in getting a little room opening from the large offices used by two attorneys who do a trust and conveyancing business, and who let me have it rent free, on consideration of my rendering some little services for them occasionally. . . . I have not fitted up as I did my first little office, by any means. I have come to the conclusion that too much luxury in a lawyer's office doesn't look business like. So an oil cloth carpet-because the floor is a very poor one-a desk, office chair and a couple of common chairs are all I have put in, and I don't worry about dust, or spots on the windows any more than other lawyers do.Despite Robinson's sympathy with the temperance movement and her pro-suffrage tendencies, she believed that women lawyers best served the cause of women's rights by succeeding professionally and treating their careers like their male counterparts did. "I must assume that all women who study law do so with the same purpose that their brother students have in view," she wrote, "namely, that of being admitted to the bar and entering upon the practice of the profession for which they have studied." She advocated a gender-neutral approach to lawyering. "Do not take sex into the practice. Don't be 'lady lawyers.' Simply be lawyers, and recognize no distinction-no existence of any distinction between yourselves and the other members of the bar. This will be your surest way to that forgetfulness of self which will give your mind freedom to achieve success." Besides, an appeal to women clients was not likely to be rewarded. "As a rule, women are more timid and reluctant to trust their affairs to the care of a woman lawyer than are men," Robinson maintained.
Robinson thought that the only justifiable excuse for abandoning legal practice was marriage and child-rearing "because they are woman's highest duties." Other than that, Robinson wrote:
Anything whatever that lures the woman attorney away from her office should be put aside-must be put aside-if women are ever to establish themselves as a recognized element of the bar of this country. . . . If a woman who has studied law or been admitted to the bar abandons practice, even temporarily for the lecture field-whether her subject be temperance, suffrage, or any other great stirring question of the day, and whether her object be philanthropy, money, fame, or all three-she may be the more successful lecturer for her legal training, doubtless, but the world will say she lectures because she cannot succeed in practice. And so of any other path, aside from that of the law itself, which she may choose.In 1889 Robinson wrote to the Equity Club for advice about the compatibility of marriage and a professional career. "Is it practicable for a woman to successfully fulfill the duties of wife, mother and lawyer at one and the same time? Especially a young married woman? I wish some of our members would discuss this question in its pros and cons." In 1890, she answered the question to her own satisfaction, marrying Eli Sawtelle, a Boston piano maker and dealer. Sawtelle supported his wife's career:
My husband is proud of my professional ambition and does everything a husband can do to encourage and sustain me in it. His wedding present was a fine new roll-top desk for my office, and he does not fret very much when it is discovered that every pair of his socks is in need of mending.Robinson quickly added that when Eli's socks needed darning, "I sit down the same instant, usually and have a pair ready in about three minutes." And as late as 1890 she was still puzzling her way through the confiicting demands of marriage and career in an article on women lawyers for the legal magazine, The Green Bag. A difficulty in estimating the number of female lawyers, she explained, was "the fact that many women who have studied law, who have taken degrees in law, or who have been admitted to the bar, are not at the present time in active practice, owing to a variety of reasons; yet as we do not cease to regard as a lawyer the politician who spends his days at Washington in his country's service, so neither should the woman who has temporarily or even permanently abandoned the office and the court-room for the platform of the nursery, thereby lose recognition as a lawyer." The overall tone of Robinson's Green Bag article is an optimistic one, convinced that a new day has dawned for lady lawyers.
This happy time in Robinson's personal and professional life came to an abrupt end when she died unexpectedly the following year at the age of forty-one. She died of an overdose of the drug belladonna, which was taken to induce sleep. The Chicago Legal News reported that Robinson had been sick for the six months prior to her death. The story described her illness as "a severe attack of grip which left her very weak and her nerves in a shattered condition. Under the best of medical treatment she failed to regain her strength." Whether or not her death was from an accidental overdose or a suicide is uncertain. The conventions of Victorian writing, particularly about the infirmities of women, often left the reader uncertain of the subject's true health. Robinson's "shattered nerves" could be a euphemism for a nervous breakdown and precursor to suicide. Alternately, Robinson could have just been recovering from a severe cold and bronchitis which was described as "nerves" because she was female, and in nineteenth-century medicine women were thought to be prone to nervous system disorders. Also, belladonna is a very potent and lethal drug, and it would have been quite easy for Robinson to miscalculate the dose. The truth behind Robinson's death will never be known, but the idea of the career woman's physical collapse because her feminine constitution was ill-suited to the professional life captured the public imagination.
[In some years I next assign Charles C. Moore's short story, "The Woman Lawyer," first published in the Hartford Daily Times on May 18, 1886, and reprinted in the Green Bag in 1914. Its title notwithstanding, the story is valuable principally for the light it throws on notions of masculinity prevailing among male lawyers in nineteenth-century America. On that topic, I believe the best work is still Michael Grossberg's chapter "Institutionalizing Masculinity: The Law as a Masculine Profession," in Meanings for Manhood: Constructions of Masculinity in Victorian America, ed. Mark Christopher Carnes and Clyde Griffen (University of Chicago Press, 1990), 133-51.]
Image credit: Higginson.
Wednesday, December 23, 2009
Segal reviews Logan, Knowledge as Power: Criminal Registration and Community Notification Laws in America
Segal finds Logan's book "outstanding." The author
analyzes the history and current impetus underlying the proliferation of registration lists. Although considered a 21st century innovation, in the early 1930s Los Angeles, reacting to the reported arrival of gangsters, enacted the first known registration statutes.
Public panics, supplemented by a claimed community knowledge entitlement, emerged following various media accounts of sexual crimes. The panics fostered legislation and required registration lists including more than 3.3 million names (p.150) according to 2006 data.
Continue reading here.
Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentieth-century phenomenon and textualism as a new-and-improved version of the text-focused, plain-meaning interpretation that predominated in the nineteenth century. This account gives textualists the historical high ground - the safe, traditional, and conservative choice - and puts purposivists in the position of having to defend a relatively recent and comparatively radical position. This accuracy of this account is belied, however, by nineteenth-century judges’ methods of constitutional interpretation, as expounded by treatise writers of the era. Their theories can be categorized in three groups, none of which is more than superficially textualist. First was an approach popularized by Joseph Story in mid-century that I call plain meaning purposivism. These thinkers embraced a strong plain meaning rule and a text-focused interpretive framework, but they founded their approach on a set of strongly intentionalist and purposivist notions of the overall meaning of the Constitution. This school was followed after the Civil War by a more direct form of purposivism that I refer to simply as conventional purposivism. These purposivists softened the plain-meaning purposivists’ meaning rule and counseled interpreters to more freely use extratextual indicia of constitutional and legislative intent. By the 1880s, a third and non-purposivist group had evolved: evolutionary constitutionalists. In their view, the Constitution should be interpreted not with regard to original intention but with a Burkean, Spencerian understanding of the nation’s evolving cultural, social, and economic character. The nineteenth century, then, was a mostly purposivist age. It was an era in which purposivism, in contrast to evolutionary constitutionalism, was the textually conservative choice, and in which textualism, which is founded on the fundamental rejection of intentionalism, did not exist. An understanding of this history is particularly pertinent today, as our interpretive discourse stands poised to discard purposivism and enter an age of textualist consensus.
The Supreme Judicial Court's denial of Robinson's petition proved to be only a minor setback, as the following year the legislature amended the 1876 statute to permit women to practice law on the same terms as men. Even before her admission Robinson had set up her own law office. It was not her preferred course of entering the profession.
I had no special acquaintance with any lawyer, and all my efforts utterly failed to gain for me admission in any capacity to any law-office. So I took a trip into the country for the summer to recuperate, and in the fall returned to Boston, quietly hired a tiny office in a building full of lawyers, fitted it up, framed and hung my diploma, sent out cards, and, was ready for such business as I could do without going personally into the courts.Very little came her way. “When I was taking in very little business (for business and money are not always synonymous, and either one would have been welcomed),” she recalled, “it was a real consolation to me to learn by comparing notes with some of my classmates whom I knew to be bright fellows and able lawyers, that they had even less business than I. In these large old Eastern cities, it is exceedingly difficult for a young lawyer to gain a foothold in the active ranks of the profession. Our people are very reluctant to trust any but gray hairs.”
Unsatisfied with her legal practice in Boston, Robinson decided to move to Seattle because of the “liberality of western views on the ‘woman question.’” She stayed “nearly a year, was delighted with the place, climate, people, and the bright new civilization; succeeded well professionally, because though I had few matters entrusted to my care, and had a great deal of uncomfortably leisure time, three or four of my cases paid excellent fees. And the referee work which Judge [Roger S.] Greene [a territorial judge and advocate of women's rights, pictured at left] gave me was sure pay and good pay.” Robinson had the chance to appear in court in front of mixed juries for the first time. In Boston, Robinson “did go into the probate court in person to claim separate maintenance for a deserted wife, and, though the case was hard fought, I won it.” But in Seattle, Robinson had a variety of opportunities for court work:
All united in urging me to undertake it, and the judge started me in earnest by appointing me as counsel for a prisoner at the opening of the first term after my arrival. So I made the attempt, with fear and trembling, and shall always be glad, for besides finding I could do the work, I had the invaluable experience of going more than once before a mixed jury of men and women-something that I suppose no other woman attorney has done.Because of her favorable courtroom experiences in Seattle, Robinson disagreed with fellow Equity Club member Corinne Douglas about the inappropriateness of women appearing in court. "I have found in experience that the public, from whom business must come if at all, judges a woman lawyer as it does a man, largely by his success or non-success in court, and if one is never seen or heard there, one's abilities are matter of serious doubt."
Inappropriate or not, once in the courtroom, Robinson had to decide how to preserve her feminine modesty while best representing her client, regardless of her sex. The touchstone for this sensitive issue, for many members of the Equity Club, was whether or not the lady attorney should remove her hat in the courtroom. Until the 1960s women generally wore hats in public, particularly when they appeared in public spaces, such as a courtroom. However, etiquette dictated that in respect for the bench and the law, attorneys doff their hat in court. Thus female lawyers faced a peculiar dilemma: to keep their hats on and preserve their feminine modesty (and the respect and civility due a "lady") or to observe the proper reverence for the law and go bare-headed as their male counterparts did? Robinson struggled with this issue:
One problem is not yet settled entirely to my satisfaction, and that is: Shall the woman attorney wear her hat when arguing a case or making a motion in court, or shall she remove it? I decided the point myself, temporarily at least, when I went into court with my first case. I had been accustomed, like the majority of women, to wear my hat or bonnet in public places, and as my chief idea was to feel as much at ease as I could, I determined to wear a small hat which set back from the face, knowing that if I should uncover my head there would be an added sense of unaccustomness besides that which the place and the business would create. The same feeling has led me to wear a hat or bonnet ever since on similar occasions. And it seems well to me that when our object is to accustom judge, jury, clients and the public to the presence of women attorneys in court, there should be as few minor variations from the usual customs and appearance of women in public places as may be. Women who go on the witness stand do not remove their hats; why, then, should women attorneys? And it is surely no mark of disrespect to the court for a woman to appear at the bar in her bonnet, which it is customary for her to wear in church. . . . Is there any good reason why a woman who is trying a case should bare her head-and with no chance to look in a mirror to see if her hair is straight or rather to see if it is still in curl?Image credits: Roger S. Greene; Clara Shortridge Foltz and Her Hat. More on Foltz
Tuesday, December 22, 2009
The second rape trial for one of the Scottsboro Boys, Haywood Patterson, was noted for a secret and private ex parte meeting between a key prosecution witness and the presiding trial judge, James E. Horton, Jr. Although the two people at this meeting - Judge Horton and Dr. Marvin Lynch - agree that this secret meeting took place, they dispute what was said. Understanding what was said at this meeting, which took place in the courthouse bathroom, is crucial as it changed the course of the historic trial. Drawing on relevant primary and secondary source documents as well as a statistical analysis of the 810 - page trial court transcript, the historic evidence, while not definitive, clearly supports Judge Horton's account of what was said.
Ralph's belated note about their anniversary reminded me that we missed the Legal History Blog 3rd anniversary on November 27. Nearly half a million readers and counting. Thank you for visiting!
Photo: Frank enjoys the "blizzard of 2009."
The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world's major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers in the new American Constitution, the time of the creation of the Constitution, there was still support for an Executive Branch composed of a diverse range of leaders, and the rules of the new Constitution did not hinder this ambition. At the second key moment defining the separation of powers in the new Constitution, the creation of the Twelfth Amendment in 1804, a series of new rules and the political and legal realities that followed resulted in the highest levels of the Executive Branch becoming far more homogeneous than the one that preceded the Twelfth Amendment.
Upon graduation, Robinson faced another hurdle: admission to the bar. Unlike today's highly formalized bar examination, becoming a member of the Massachusetts bar in 1881 required only that the applicant be a citizen of the Commonwealth, be twenty-one years of age or older, be of good moral character, and pass an examination administered by either the Supreme Judicial or Superior Court. Regardless of Robinson's legal qualifications, her petition was denied on account of her sex. She described her ordeal to the Equity Club in an 1887 letter:
For I must assume that all women who study law do so with the same purpose their brother students have in view-namely, that of being admitted to the bar and entering the practice of the profession which they have studied. If they hesitate at all, it is for lack of knowing just how to set about it and here I can sympathize with them indeed. When I graduated from the Boston University Law School six years ago with my degree as the result of three consecutive years' course at the school, I was very much at a loss as to my next step.[The Equity Club was founded by female law students at the University of Michigan in the 1880s. It collected and circulated correspondence from women lawyers of the pioneer generation. The letters still are engaging reading. See Virginia G. Drachman, ed., Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club, 1887 to 1890 (Ann Arbor: University of Michigan Press, 1993).]
Robinson's case garnered much attention in the Boston legal community. She prepared the petition for admission on her own behalf; the Boston Bar Association provided briefs for the opposition; and two Boston lawyers submitted amici curiae briefs opposed to Robinson's admission. Robinson argued that the word "citizen" in the Massachusetts statute authorizing admission to the bar was a gender neutral term which included both men and women. She also argued that because the Massachusetts legislature should have known that fourteen states had admitted women to the bar, it implicitly provided for the possibility of a lady lawyer. Robinson also contended that as a citizen, under the Fourteenth Amendment to the Constitution, her privileges and immunities could not be abridged, and thus she was entitled to take the bar examination just like her male colleagues.
While admitting that "the word 'citizen,' when used in its most common and comprehensive sense, doubtless includes women," the Massachusetts court denied Robinson's petition. First, the judges qualified the universal nature of the statutory language. "Every statute must be construed in connection with the whole system of which it forms part, and in light of the common law and of previous statutes upon the same subject." In other words, the Court could use precedent to determine if "citizen" meant male and female or only male in the context of admissions to the bar. Citing a string of cases prohibiting women from exercising public office and noting the absence in the historical record of female practitioners, the Supreme Judicial Court concluded:
The reenactment of the act relating to the admission of attorneys with the same words [using the term "citizen" merely to distinguish "aliens"] without more, so far as it relates to the personal qualifications of the applicant, since other statutes have expressly modified the legal rights and capacities of women in other respects, tends to refute than to advance the theory that the Legislature intended that these words should comprehend women.Thus, the Court rejected Robinson's inclusive definition of the word "citizen" as it appeared in the statute.
Chief Justice Horace Gray's opinion clearly stated that any changes to the legal status of women had been accomplished by acts of positive law and that any future changes would also have to be enacted by legislative action. He thereby disposed of Robinson's argument that the statute, because it did not explicitly prohibit women from taking the bar examination, automatically included both sexes. "A woman is not, by virtue of her citizenship, vested by the Constitution of the United States, or by the Constitution of the Commonwealth, with any absolute right, independent of legislation, to take part in the government, either as a voter or as an officer, or to be admitted to practice as an attorney," Gray wrote. “Whenever the Legislature has intended to make a change in the legal rights or capacities of women, it has used words clearly manifesting its intent and the extent of change intended," which "precludes the inference that any change in the legal rights or capacities is to be implied." He concluded, "No inference of an intention of the Legislature to include women in the statutes concerning the admission of attorneys can be drawn from the mere omission of the word 'male.'"
Robinson's civil-rights claim based on the Fourteenth Amendment also proved unpersuasive. Again using the term "citizen," Robinson contended that the Fourteenth Amendment, which protected the privileges and immunities of citizens of the several states, meant that Massachusetts could not discriminate against her bar application on the basis of her sex. In the Slaughter House cases, however, the U.S. Supreme Court had articulated a dual view of citizenship that divorced the privileges and immunities of a citizen of the United States from his or her privileges and immunities within a state. Because the setting of standards for licensure, including the admission of lawyers to the bar, had always been the provenance of the state governments, Gray reasoned that Robinson did not have a valid Fourteenth Amendment claim and that no federal question was involved.
For Gray, Robinson's petition for admission to the bar was tied closely to the concept of women holding public office, an idea he could not countenance. In 1871, ten years before Robinson's case, the Supreme Judicial Court of Massachusetts had ruled decisively that women could not be justices of the peace, as they "would have no constitutional or legal authority to exercise any of the functions appertaining to that office." Aware of the earlier decision, Robinson argued in her brief that lawyering was an administrative, not judicial, appointment and that therefore her sex did not prohibit her from exercising her office. Gray rejected the argument that admission to the bar was a private matter. "An attorney at law is not indeed, in the strictest sense, a public officer," he wrote, "but he comes very near it." Admitting a woman to the bar would give her a semi-public status at odds with the legally established incapacity of women to hold public office. Gray referred to a string of English cases in which it had been determined that women could not execute public office, concluding that "no woman, married or unmarried, could take part in the government of the state" and women "could not take part in the administration of justice, either as judges or jurors." Because Massachusetts had done nothing to "prove such a change in the law and usage prevailing at the time of our separation from the mother country," Justice Gray did not think women in Massachusetts could execute public offices either.
[For more on the decision, see Douglas Lamar Jones, "Lelia J. Robinson's Case and the Entrance of Women into the Legal Profession in Massachusetts," in The History of Law in Massachusetts: The Supreme Judicial Court 1692-1992 (1992). On another "first," see Matthew G. Berger, "Mary Hall: The Decision and the Lawyer," Connecticut Bar Journal 79 (2005): 29-58.]
Monday, December 21, 2009
In this article first published in 1996, the author discusses the pre-1889 understanding of immigration authority.
For over four decades, Lawrence Friedman has been one of the key figures in American law and society studies, as well as the country’s leading legal historian. His unique vantage point has brought him into contact with a wide range of subfields in legal studies, including comparative law. Though he has never published in the leading journals of the discipline, Friedman’s series of book chapters and articles commenting on the field of comparative law have articulated a consistent and important methodological challenge. This essay elaborates Friedman’s comparative jurisprudence and argues that comparative law since the 1960s would have been much more fruitful had it followed Friedman’s advice to engage with the law and society tradition. The essay also critiques Friedman’s use of legal culture as the central focus of analysis. Friedman emphasizes similarities across societies, and hence rejects claims of incommensurability at a theoretical level. But in employing the empirically problematic concept of legal culture as his central explanatory variable, Friedman recreates incommensurability at a practical level.
Like most professional women of the nineteenth century, Lelia Josephine Robinson (1850-1891), the first woman admitted to the Massachusetts bar, came from a white, solidly middle class background. Her father was a trader in Boston and she was raised in the city. She enjoyed a comfortable childhood. She attended public schools in Boston and at seventeen considered her education complete. She also married Rupert J. Chute, a local tinsmith, when she was seventeen. Unlike many Victorian women, Robinson continued her outside employment during her marriage. She worked as a journalist and wrote articles for many Boston papers between 1867 and 1877.
Ten years after wedding Chute, Robinson divorced him in 1877. Divorce in the late nineteenth century was exceedingly rare and difficult to obtain. One of the few acceptable grounds for divorce was adultery, and Robinson publicly charged Chute with adultery in her petition for divorce. Robinson never discussed her first marriage in any of her writings, including her treatise on The Law of Husband and Wife (1889). She resumed the use of her maiden name when she began studying law at the Boston University School of Law in the fall of 1878.
Robinson never explained why she wanted to study law, and she presented somewhat conflicting views of her law school career. In 1891, for example, she wrote that "no three years of my life have ever been pleasanter or more satisfactory in every sense of the word." She elaborated,
I was not permitted to realize or remember the fact that I was the only woman in a large school of men. I was simply a student like the rest, and they made me welcome and at my ease. The only question was what I should do after graduation, for it was then thought to be exceedingly improbable that a woman would gain admission to the bar in Massachusetts.But some time later she recalled:
[B]eing the only woman in law school, I had to decide, with nothing to guide me, what social attitude I should take towards the hundred and fifty men in the school. I knew none of the students, and the dean, to whom I introduced myself, did not give me any introductions to the students or professors. I was not even told where to sit at lectures, further than to "sit anywhere." So at the first lecture I attended I took a back seat, but could not hear well, and was uncomfortably conscious that the men with difficulty restrained themselves from turning round to look at me. So the next day I resolved to take a front seat, and seeing a gray haired student of elderly appearance, I sat down between him and an exceedingly young man. (I didn't learn till weeks later that they were seated in alphabetical order, and that I had unconsciously ousted one of the C's from his seat, and when I did learn this, the generous C would not resume it, but left me in possession.) Next, I thought it would be absurd not to speak to these men whom I was to meet daily, for lack of an introduction, so I began to bow and speak to all whose faces I could remember, wherever I met them, in school or out. Long afterward I found that this had made it very easy for me, for it seemed that a lady from the west, who had taken part of the course the previous year, had never spoken with any students except one or two with whom she was specially acquainted; that she came a little late to lectures, took a back seat and left a little early, and did not attend recitations at all, thus seeming to feel herself out of place and consequently causing the men to think her so, while the general opinion seemed to be favorable to my attendance, and they paid me the great compliment of calling me a "good fellow." But in settling these and many other small points while in school and after beginning to practice, I was often in great doubt and perplexity.More.
Sunday, December 20, 2009
Saturday, December 19, 2009
Harvard Law School
Harvard Law School is seeking fellows who have a J.D. degree, who have completed the required coursework for their doctorate degree, or who have recently been awarded the doctorate degree. A JD is preferred, but not required We will also consider applicants who are beginning a teaching career in either law or history. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period.
Fellows are expected to spend the majority of their time on their own research. They are also asked to help coordinate the Legal History Colloquium, which meets five or six times each semester. Fellows are invited to present their own work. Fellows will be required to be in residence at the Harvard Law School during the academic year (September through May).
Applicants for the fellowship for 2010-11 should address a letter to the co-chairs of the Berger Fellowship Program, Professors Bruce Mann and Jed Shugerman, at the Harvard Law School, Cambridge, MA 02318.
Applications should outline briefly the fellow's proposed project (no more than five typewritten pages) and should contain a writing sample and a curriculum vitae that gives the applicant's educational background, publications, works in progress, and other relevant experience, accompanied by official transcripts of all academic work done in college or at the graduate level. The applicant should arrange for two academic references to be sent to the co-chairs. Applications by e-mail are preferred (the transcripts may be sent by regular mail): firstname.lastname@example.org
The deadline for applications is Monday, February 1, 2010, and announcement of the award will be made by March 1, 2010.
The fellow selected will be awarded a stipend of $32,000 (health care and research come out of that amount.For further information contact Professor Shugerman's assistant:
Harvard Law School
Griswold 4 North
Cambridge, MA 02138
A list of current and previous fellows is here.
The Great Depression contributed to the rapid growth in the size and functions of the administrative state. While its importance for administrative law scholarship was greater in America than in Australia or the United Kingdom, it focused scholars everywhere on questions of the democratic legitimacy of government institutions functioning beyond any practical oversight of Parliament. The current global economic crisis poses similar questions. New banking laws permit forced sales and nationalisation in the UK, and the laws relating to compensation for government interventions in both Australia and the UK carry the potential for serious unfairness. Vast government stimulus programs contain few legal constraints or genuine oversight mechanisms. These are issues warranting the attention of administrative law scholars.
Friday, December 18, 2009
The decades before and after the turn of the twentieth century, like those surrounding the turn of the twenty-first, are often understood as periods of globalization. The two periods share key features that characterize the global as a motif, including high mobility of goods, services, people, ideas and, perhaps most centrally, capital. An important distinguishing feature between the periods is the monetary regime: the gold standard for the turn of the twentieth century; managed flexibility (ranging from currency pegs to floating exchange rates) for the turn of the twenty-first. This paper examines the legal infrastructure of these two monetary regimes in order to illuminate two distinct yet related issues. The first is the connection between the form of rulemaking (e.g., legislation versus technocratic regulation) and the means of isolating monetary policy decisions from political influence. The second is the role of the monetary regime in mediating value. Both the gold standard and the managed flexibility regime aim to shield money from partisan intervention, but they do so in different ways; attention to the legal framework sheds light on how these differing regimes pursue the goal of insulating money from politics.
The first day’s program will include the following: a keynote address by a senior official of the Department of State; a roundtable discussion by Kennedy, Johnson, and Nixon-Ford Administration policy advisors on Vietnam; presentations by scholars from the Socialist Republic of Vietnam; and a panel of presentations by senior scholars of the War. The second day’s program will consist of a series of panels where academic and independent scholars will present papers on topics/themes related directly or indirectly to American policy in Indochina from 1946 to 1975.
Those interested in submitting proposals should keep in mind that the Program Committee will be more likely to form panels by historical period than by theme, but the latter will be considered.
To achieve the above objectives, the Program Committee welcomes proposals for original papers/panels dealing with, but not limited to, the following
● Early United States involvement in Southeast Asia: Truman to Kennedy
● The Americanization of the Vietnam War-policy, strategy, and operations
● United States relationships with and/or involvement in South Vietnamese governments
● The role of force and diplomacy in the implementation of policy
● The air war against North Vietnam
● Vietnamese Communists’ approaches to the war
● The influence of non-governmental players-e.g., the media, the anti-war movement-on policy and public opinion
● Intelligence and policy
● Pacification and nation-building in South Vietnam
● Embassy Saigon and the implementation of United States policy in South Vietnam
● Explanations for the outcome of the Vietnam War
● The legacy of the Vietnam War for American military and foreign policies
Paper and panel proposals (abstracts and curricula vitae) must be in English, which is the language of the conference, and should be sent, via e-mail or fax, by March 1, 2010 to:
Dr. John M. Carland, Program Committee Chair, Office of the Historian:
Hat tip: H-Diplo.
Thursday, December 17, 2009
Built in 1824, the Anne Arundel County Courthouse has been expanded three times over the years to dominate an entire city block off Church Circle in Annapolis.Circuit Court judges have set legal precedents there in such areas as slavery, voter's rights and historic preservation. But until now, there was no place in the courthouse to memorialize that history.More.
"As wonderful as this courthouse is, and I think it is marvelous ... I've always thought that component was missing," Circuit Court Judge Nancy Davis-Loomis said Thursday at the grand opening of the courthouse's new museum. The museum's first permanent exhibit, called "Crossroads of the Community," focuses on the courthouse's place at the center of life in the county - both physically and figuratively.