Sunday, February 28, 2010

Levinson on Annotated Constitutions and more in the book pages

The Citizen's Constitution by Seth Lipsky, and The Annotated U.S. Constitution and Declaration of Independence by Jack Rakove are reviewed on The New Republic book blog by Sanford Levinson. "One must always avoid the temptation to view the Constitution as consisting solely of what has gained the attention of the judiciary," Levinson writes. "Now two new books help give us a view of the entire document." He finds each book to have strengths and weaknesses.
Rakove’s book may be more elegant, but Lipsky’s is more reader-friendly, because of the amount of information (and opinions) that Lipsky is free to provide....Rakove is one of the most gifted writers among contemporary American historians, and he provides an illuminating overview of the political history that generated both the Declaration in 1776 and then, only eleven years later (following the failure of our first constitution, the Articles of Confederation) the Constitution that was drafted in Philadelphia.

Inevitably, one will prefer either Rakove’s or Lipsky’s specific annotations. Rakove, for example, is better on Congress’s power to declare war, while Lipsky is better on Congress’s power to pass “an uniform Rule of Naturalization.”

Read the rest here.

If you haven't managed to read Sarah Palin, Going Rouge, you might try the cartoon version, Sarah Palin, Going Rote, at the Village Voice.

And for the baseball fans out there, WILLIE MAYS: The Life, the Legend by James S. Hirsch is reviewed in the New York Times.

Saturday, February 27, 2010

Fletcher on Inland Treaty Rights in Michigan

Matthew L. M. Fletcher, Michigan State University College of Law, has posted “Occupancy” and “Settlement”: Anishinaabemowin and the Interpretation of Michigan Indian Treaty Language. This one hits close to home, as, since the age of two, I’ve vacationed on land settled as a result of the treaty. Here is the abstract:
The 2007 Consent Decree in United States v. Michigan, a major victory for the tribal interests, recognized that the lands in ownership by the state, federal, and tribal governments – vast swaths of Michigan – would stand in for the lands not yet “required for settlement.” The Michigan Indians’ “privilege” to continued “occupancy” acquired legal determinacy. This short essay examines how Michigan Indian treaty negotiators would have understood the meaning of the words “settlement” and “occupancy,” and how that understanding strongly influenced the land base in which Michigan Indians can continue to exercise their inland treaty rights in accordance with the 1836 Treaty.
Image credit: Henry Schoolcraft, Indian Agent

Friday, February 26, 2010

Gordon-Reed awarded National Humanities Medal

Legal Historian Annette Gordon-Reed, author of The Hemingses of Monticello and other works, was awarded a National Humanities Medal at the White House yesterday. Also honored were Robert A. Caro ("The Years of Lyndon Johnson: The Path to Power, Means of Ascent and Master of the Senate"), David Levering Lewis ("W.E.B. Du Bois: The Fight for Equality and the American Century, 1919-1963") and William H. McNeill ("Plagues and Peoples"). Others honored ranged from Bob Dylan to Elie Weisel to Kennedy speechwriter Theodore Sorensen. The story is here. Hat tip to Ralph Luker.

Blog Rountable on Walker, The Ghost of Jim Crow

In case you missed it, Anders Walker's new book, The Ghost of Jim Crow, has been the focus of a book discussion at PrawfsBlawg. Contributors include:

Willoughby Anderson, A Smarter Southern Strategy

Al Brophy, Attack on the Moderates

Chris Schmidt, Strategic Constitutionalism and Resistance to Brown

Walker and others respond in the comments to the posts.

NAACP at the Library of Congress

The Library of Congress has mounted the on-line exhibition, NAACP: A Century in the Fight for Freedom, 1909-2009. According to the Library, the exhibition
presents a retrospective of the major personalities, events, and achievements that shaped the NAACP’s history during its first 100 years. Currently, the site highlights 70 treasures and will eventually expand to feature more than 150 items.
Image Credit: Charles Hamilton Houston

Shugerman on Judicial Elections, Judicial Review and Economic Crisis

Jed Handelsman Shugerman, Harvard Law School, has posted Economic Crisis and the Rise of Judicial Elections and Judicial Review, which is forthcoming in the Harvard Law Review 123 (2010). Here is the abstract:
Almost ninety percent of state judges today face some kind of popular election. This peculiar institution emerged in a sudden burst from 1846 to 1853, when twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. Indeed, some critics of judicial power in the early republic supported judicial elections for precisely those reasons, but they pursued other more direct attacks instead.

Judicial elections swept the country in the late 1840s and 1850s and the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become more a tool of party patronage and cronyism. Legislative overspending on internal improvements and an economic depression in the early 1840s together had plunged the states into crippling debt. A wave of nineteen states called constitutional conventions from 1844 to 1853, and in addition to direct limits on legislative power, these conventions adopted judicial elections. Many delegates stated that their purpose was to strengthen the separation of powers and to empower courts to use judicial review.

The reformers got results: elected judges in the 1850s struck down many more state laws than their appointed predecessors had in any other decade. These elected judges played a role in the shift from active state involvement in economic growth to laissez-faire constitutionalism. Oddly, the first generation of elected judges were the first to justify judicial review in countermajoritarian terms, in the defense of individual and minority rights against abusive majorities and the "evils" of democracy. This Article concludes with lessons about judicial independence and democracy from this story.
Appendices are here.

Thursday, February 25, 2010

Lynn Hunt on How Writing Leads to Thinking

In AHA Perspectives, Lynn Hunt, UCLA, launches a new series on “The Art of History.” Senior scholars will reflect on the art and craft of historical research and writing. Hunt begins:
Writing is stressful. Sitting in my computer chair my neck and shoulder muscles almost immediately tense up as I dig around in my brain for the best phrase or even any coherent string of words, whether I am writing an essay like this one, a book chapter, a letter of recommendation, or an email message to a friend. Writing is time-consuming. It’s a great way to pass the time on a long airplane flight because you lose track of the passage of time altogether. It’s even better, from that point of view exclusively, than watching an episode of Mad Men on your laptop. Writing means many different things to me but one thing it is not: writing is not the transcription of thoughts already consciously present in my mind. Writing is a magical and mysterious process that makes it possible to think differently.
One of Hunt's rules is
not to look at notes....Reorganizing your notes is a form of house cleaning; it might make you feel good about yourself as a tidy person, but it will not produce a chapter—or even a page. Only writing can do that.
Continue reading here.
Image credit.

Lindsay on Political Economy, Race, and the Federalization of American Immigration Law

Preserving the Exceptional Republic: Political Economy, Race, and the Federalization of American Immigration Law has been posted by Matthew J. Lindsay, University of Baltimore - School of Law. It was published in the Yale Journal of Law and the Humanities (2005). Here's the abstract:
Between 1882 and 1891, the U.S. Congress enacted a spate of immigration laws though which the federal government assumed virtually exclusive control over a regulatory sphere that historically had been the province of the states. This Article argues that this federalization of immigration regulation represented an attempt to reconcile the nation’s most cherished ideological commitment - the notion that the U.S. would forever remain an exceptional, “free labor” republic - with the unprecedented social and economic convulsions of the 1870s and 1880s.

The meaning of both immigrants and immigration was fundamentally transformed during the Gilded Age due to two successive “crises” of mass economic dependency - first, a wrenching depression that began in 1873 and lasted throughout the decade; and second, the so-called crisis of “foreign pauper labor” that dominated American political discourse on immigration throughout the 1880s. Eschewing sustained inquiry into the structural economic causes of these crises, policymakers, political intellectuals, labor spokesmen, and economists instead diagnosed an outbreak of mass economic pathology, which attributed widespread “pauperism,” and later, “pauperizing labor,” to the defective character of the poor themselves. That defectiveness, they further concluded, was not home-grown, but rather imported from the allegedly effete, racially degraded, declining civilizations of Europe. By drawing on a series of highly specialized, frequently shifting ideas about racial difference, policymakers and others submerged a conspicuously unexceptional picture of industrial America into a discourse of economic pathology that associated foreignness with racial unfitness for free labor.

This emergent construction of European immigrants demanded a basic redirection of regulatory policy and practice. Within less than two decades, policymakers, immigration officials, courts, labor leaders, and others reconceived the principal purpose of immigration regulation from that of assisting newly landed immigrants, to that of excluding undesirables and, accordingly, shifted its operational emphasis from policing the environment into which immigrants entered to policing the immigrants themselves. Under the weight of these new regulatory priorities, the robust federalism that historically had characterized the regulation of immigration gave way. Contemporaries’ construction of mass dependency in effect nationalized the purposes of immigration regulation, as a consensus emerged among influential northerners that the future of the American citizenry, the quality of citizenship itself, and, ultimately, the very health of the republic, lay in the balance.

Kazee on Anti-Tax Pledges

Although this paper “sounds in” political science, it will be of interest to historians of taxation. On Friday, February 26, 2010, at 12:30 pm, Nicole Kazee, University of Illinois at Chicago, will present the paper Drowning it in the Bathtub? Anti-Tax Pledges and State Policymaking at the Miller Center of Public Affairs. To attend, RSVP to 434.243.8726 or gage@virginia.edu.

Image credit

Genealogists to the Rescue!

The Suburban Journals chain of newspapers serving the St. Louis metropolitan area reports on a group of genealogists who have devoted years to the indexing of the court records of Monroe County, Missouri. The story, by Chris Campbell, commences:
Pat Vaseska emerged from the records room at the Monroe County Courthouse with blood on her hands.

A nail had pricked her probing finger. That's not an unusual occurrence for Vaseska, who has been working in the room for almost a decade, attempting to index more than 150 years of court records.

"It's a miracle I don't have tetanus," Vaseska joked.

Vaseska was joined by three friends: Janet Flynn, Jan Wenk and Phyllis Veath. All are ardent students of genealogy.

The group began working to index Monroe County's "treasure trove" of court documents eight years ago.
More.

Image credit: John Swistak, Jr.

Wednesday, February 24, 2010

Carolingian Canon Law, the Inquisition's Courts, and Kentucky!

A press release from the University of Kentucky, announcing the receipt by Abigail Firey, of Kentucky's history department, of an ACLS Digital Innovation Fellowship, has drawn my attention to the Carolingian Canon Law Project, which is described on its website thus:
The Carolingian Canon Law project is producing a searchable, electronic rendition of major works of Carolingian canon law, in a presentation that shows their relation to other works of canon law used by Carolingian jurists. This project maps the extent of variation in "standard" legal texts known to Carolingian jurists, and identifies particular points of variation. In addition to clarifying the textual history of medieval canon law, the project will provide historical and bibliographic annotation of several hundred canons used by jurists before, during, and after the Carolingian period.
The same press release notes that another member of Kentucky's department, Gretchen Starr-LeBeau, has won "a Philosophical Society Fellowship to continue her comparative study of early modern courts of the Inquisition in Spain, Italy, Portugal and Mexico." Professor Starr-LeBeau says of her research:
I really became interested in how those convicted in the Inquisition defended themselves and the strategies they used. . . . For my latest project, I'll be comparing court records throughout Spain, Venice, Lisbon and Mexico City.

Knowles on Justice Robert H. Jackson and the Foundations of the London Charter

'Judgment of the Law': Justice Robert H. Jackson and the Foundations of the London Charter has just been posted by Helen J. Knowles, State University of New York - SUNY at Oswego. Here's the abstract:
By the spring of 1945, when President Truman appointed U.S. Supreme Court Justice Robert H. Jackson to be America’s chief prosecutor at the Nuremberg war crimes tribunal, the more contentious political objectives for the Allied pursuit of postwar justice had already been the subjects of considerable debate within policy-making circles in the Roosevelt Administration. When he traveled to London to negotiate the Charter for the tribunal, Jackson took with him more than his own conceptions of what should be included in the document. As Jackson himself said, the structure of principles that he designed “only recognized an evolution that already had been consummated.” In this article I examine the impact of this consummation on the crafting of the London Charter.

The Charter reflected Jackson’s personal devotion to the rule of law, but a more complete understanding of his contributions to the Charter can best be achieved by examining the work of three other individuals. Drawing on materials from various manuscript collections at the F.D.R. Library, I look at the work of Herbert C. Pell, Henry L. Stimson, and Henry Morgenthau, Jr. Jackson benefited from the domestic policymaking battles between these individuals because he was able to take with him to London the fruits of their labors and, through remaining purposefully detached from the baggage of the executive branch, meld them with principles that reflected his own beliefs.
Photo: Robert Jackson at Nuremburg.

Nourse and Maguire on the Lost History of Equal Protection

Victoria Nourse, University of Wisconsin Law School and Emory University School of Law, and Sarah Maguire have posted The Lost History of Governance and Equal Protection. The paper, which also appears in the Duke Law Journal, 58 (2009), commences with a substantial review of "class legislation" cases from the early twentieth century. Here is the abstract:
Constitutionalists believe that the Equal Protection Clause died during the early decades of the twentieth century. We aim to correct the record on this claim and, in the process, demonstrate equality's long held aspirations to political theory. Decades before Professor John Hart Ely and public choice, equal protection aspired to be a principle of governance as much as a principle of classification or discrimination. This tradition was not limited as is modern equality law to race, sex, or even caste, but aimed to tie equality to the duties of representatives to govern for all, not simply for some. This Article argues that early twentieth-century equal protection law strove in imperfect ways for a theory of abusive representation; it naïvely hoped that the generality of legislation could bind majorities to minorities. To resurrect and articulate an analogous modern theory would require far more than law-office history; it would require fleshing out what the old theory of equality failed to do: to construct a convergence-forcing method that would tie the fate of legislative majorities to that of minorities. In that spirit, we offer a proposal that emphasizes (à la the new governance literature) the power of "embedded constitutionalism," a proposal that combats abusive representation by forcing the active consideration and deliberation of constitutional values in more powerful institutions" in this case, legislatures.

Tuesday, February 23, 2010

Robert Justin Lipkin

Moved up with an update.

I am so sorry to report the death of Robert Justin Lipkin, Distinguished Professor of Law at Widener School of Law. He was a thoughtful participant in the law blogosphere and a friend of legal history. I did not know him well, but profited from the times I had a chance to talk with him.

Professor Lipkin blogged at Essentially Contested America and Ratio Juris. He is remembered fondly at Widener School of Law, and around the web: here, here, and here. His last blog post, reflecting on the state of health care politics, asked Is the United States Any Longer Governable?

Via the Legal Theory Blog:

    My colleagues and I would like to let you know that Widener Law School will be hosting a memorial for Bobby at 4:00 on March 8th at the Law School's Delaware Campus in Wilmington. The formal program will last about an hour to be followed by a reception where people can share their thoughts and memories on a more informal basis. The address and directions to the Delaware campus are here: Click here: Widener Law - Delaware Visitors Center.

    Also, we are preparing a book of thoughts and remembrances about Bobby for his family and other people who were close to him. If anyone would like to write something specifically for the book, please let either Associate Dean Erin Daly or me know in the next few days. Also, please feel free to email with any questions about the memorial. I can be reached at andrewstrauss@comcast.net, and Erin can be reached at edaly@mail.widener.edu.

    Andrew Strauss

Egerman on Avoiding Confrontation

Avoiding Confrontation is a new paper by Mark Egerman, a Fellow at Georgetown University Law Center. Here's the abstract:
This article takes seriously Justice Scalia’s facetious aside in Giles v. California and examines whether there should be a separate confrontation doctrine for domestic violence cases. The history of Confrontation is explored, starting with one of its predecessors, the judicial duel. Dueling was used as a judicial fact-finder for centuries and developed a complex series of regulations that focused not only on accuracy, but also on the status of the participants. As the doctrine of confrontation developed, it retained some of the substantive status-oriented elements of dueling. An analysis of major cases from the Common Law and the Supreme Court tracks these developments and uncovers these elements. Modern confrontation doctrine is shown to embody non-adjudicatory elements concerned with status and social power.

These elements imagine a series of relationships between accuser and accused that do not adequately address the concerns reflected in Domestic Violence situations. Hierarchical crimes which focus on the domination of a subordinated victim present different concerns than the types of crime anticipated by our doctrine of confrontation. This helps explain why the recent set of Confrontation rulings have caused such problems within the domestic violence scholarly community and presented such a serious challenge to effective prosecution of these crimes.

While most scholars addressing these concerns have argued that the Court has misinterpreted the Confrontation Clause, this article believes that the Court may very well be right and confrontation doctrine may pose a problem that cannot be reconciled through traditional means. Justice Scalia was correct; perhaps we do need a separate doctrine to address these concerns. The article concludes by proposing the partial unincorporation of the Confrontation Clause as it applies to victims of domestic violence in state courts.

Lazarus on Environmental Law and the Supreme Court

Available on the Georgetown University Law Center's website, is a recording of my colleague Richard Lazarus's inaugural address as the Justice William J. Brennan, Jr., chair, entitled Environmental Law and the Supreme Court: The Significance of Advocacy and Opinion Writing at One First Street, N.E. Lazarus is the author of The Making of Environmental Law (University of Chicago 2004). His address draws upon extensive research in the justices' papers to describe the string of defeats environmental lawyers in cases on the merits brought under the National Environmental Policy Act since its enactment in 1970.

The address will be of interest to historians of environmental law and the recent history of the U.S. Supreme Court. Viewers who can do without Georgetown Law's version of pomp and circumstance can skip to about the thirty-third minute, although by doing so you'll miss my colleague Peter Byrne's wonderful and substantive introduction of Professor Lazarus and his career.

Hadden to Lecture at the Uiversity of Manchestern

Sally Hadden, Florida State University, will speak on the topic, “What's done, what's undone: An appraisal of 18th century Legal History prior to the American Revolution,” on Wednesday, 24 February 2010, to the American Studies seminar at the University of Manchester.

Hat tip: History@Manchester Blog

Monday, February 22, 2010

R.B. Bernstein is finalist for the George Washington Book Prize

Another long-time American Society for Legal History member is nominated for a major book prize. Via Ralph Luker:
The finalists for the George Washington Book Prize for 2010 are:

Richard Beeman's Plain, Honest Men: The Making of the American Constitution,

R.B. Bernstein's The Founding Fathers Reconsidered, and

Edith B Gelles' Abigail & John: Portrait of A Marriage.

"The $50,000 award—co-sponsored by Washington College, the Gilder Lehrman Institute of American History, and George Washington's Mount Vernon—is the largest prize nationwide for a book on early American history, and one of the largest literary prizes of any kind."

Urofsky among LA Times book prize finalists

The Los Angeles Times has announced its finalists for 2009 book prizes. Among them is Mel Urofsky's new biography of Louis Brandeis. Winners will be announced April 23, 2010. Here are the lists in Biography and History:
Biography

Lanni on Judicial Review and the Athenian 'Constitution'

Judicial Review and the Athenian 'Constitution' is a new paper by Adriaan Lanni, Harvard Law School. Here's the abstract:
This paper examines the judicial procedures for reviewing legislation in classical Athens and argues that we can discern from these sources a coherent theory of the Athenian “Constitution.” I argue that prosecutors consistently attempted to depict the challenged statute as a threat to the basic democratic legislative or adjudicative process. This suggests that the legal review of statutes was understood as a means of preserving popular decision making structures rather than enforcing substantive values. From a modern perspective, classical Athens offers an interesting alternative model of a highly democratic form of “judicial review” in which constitutional precommitments were limited and constitutional challenges were adjudicated by large juries of ordinary citizens. Far from taking issues out of the realm of popular decision making, judicial review in Athens was quite limited in scope and focused on preserving the key democratic political values: the citizenry’s lawmaking power, and the jury’s wide power to adjudicate disputes.
Image credit.

Flannery on the Glass House Boys of Pittsburgh

James L. Flannery, University of Pittsburgh School of Law, has recently published The Glass House Boys of Pittsburgh: Child Labor, Compulsory Education and Glass, 1880-1915 (University of Pittsburgh Press, 2009). He's now posted the first chapter, Child Labor Reforms and the National Child Labor Committee. Here is Professor Flannery's abstract for his book:
As with any important historical event, the elimination of child labor in the Pittsburgh glass bottle factories in the early twentieth century was the product of a complex of intersecting forces – social, political, cultural, and economic. Child labor had been the focus of legislative reform efforts from much of the progressive era and the nation’s glass factories had been a special concern of the reformers. But, while these reform efforts had been successful in many other regions, the Pittsburgh glass bottle plants were particularly resistant to change. In Pittsburgh the progressives had to contend with a group of glass manufacturers who were unusually well organized in opposition to reform and a political culture that was historically corrupt and conservative. In particular, however, the chief obstacle to reform was the men of the glass workers’ union in Pittsburgh, the Glass Bottle Blowers’ Association. Unlike virtually all other unions of the period, the skilled glass workers of Western Pennsylvania staunchly opposed child labor reform and fought desperately to keep the glass house boys hard at work, day and night, in the region’s glass bottle plants. As in other industrial areas, the glass manufacturers in Pittsburgh also opposed child labor reform, and, as in other areas the families of the child workers, needing the added wages to survive, actively worked to subvert many of the reform efforts. But in Western Pennsylvania the glass workers’ union was the key barrier to reform. As a result, child labor reform, and in particular the elimination of night work by children, was repeatedly thwarted in the state legislature and the Pittsburgh glass houses continued to exploit the labor of small children well beyond the time when it was successfully regulated in virtually every other glass-producing region in the country. The Glass House Boys of Pittsburgh recreates this singular story of reform held hostage and provides a fascinating study in the relationship between law, politics and social change.
Image Credit: Library of Congress, Prints and Photographs Division

Sunday, February 21, 2010

Clintonania and more in the book reviews

"In today’s world of suicide bombers and a ravaged economy," writes Richard L. Berke in the New York Times, the Bill Clinton/Paula Jones/Monica Lewinsky mess "seems not merely frivolous, but ludicrous." Still, in The Death of American Virtue: Clinton vs. Starr, Ken Gormley "recreates it all, from the Clintons’ investment in the Whitewater development in rural Arkansas to the Paula Jones sexual harassment lawsuit and Clinton’s affair with Lewinsky, culminating in the impeachment trial. This hefty volume, going beyond the sordid details, provides helpful context for the larger story, the fractionalization of American politics that defined the Clinton years." The Death of American Virtue is also reviewed in the Boston Globe.

The Clinton Tapes: Wrestling History With the President by Taylor Branch is reviewed by Chris Lehmann for The Nation. "One would hope that Taylor Branch's sprawling book The Clinton Tapes could restore some much-needed balance to the rearview vision of the Clinton years," he writes.
Here, after all, are the unfiltered reflections of Clinton himself, delivered in seventy-nine taped sessions during his tumultuous administration.... But it becomes clear over the many long pages of Branch's chronicle that the author isn't really wrestling alongside the chief executive to coax a myth-resistant account of Clinton and his record from the maw of history (and thus inevitably tussling at times with Clinton himself). Rather--to stretch sports metaphors a bit--he is serving as a cut man in the president's corner, salving bruises and dispensing smelling salts before sending him back into the fray.
David Dow's new book The Autobiography of an Execution "will transfix you," writes Art Winslow in the Los Angeles Times.

THE POKER BRIDE: The First Chinese in the Wild West by Christopher Corbett is taken up in the New York Times.

Saturday, February 20, 2010

Summer 2010 at the Institute for Constitutional History

The Institute for Constitutional History announces two programs for the summer of 2010.

The first is the 2010 Summer Research Seminar, “The Economic Constitution: Coercion or Freedom?” It will take place in Washington, D.C. at the George Washington University Law School from June 6 through 11. The instructors are Risa Goluboff, Professor of Law and History and the Caddell & Chapman Research Professor at the University of Virginia, and Avi Soifer, Dean and Professor of Law at the William S. Richardson School of Law, University of Hawai’i. The content, format and application process for the seminar is as follows:
Since at least 1913, when Charles Beard published An Economic Interpretation of the Constitution of the United States, scholars actively pursued ways in which the Constitution relates, or might relate, to economic issues. For Beard, the Constitution reflected the property-protecting instincts of the ruling class. Progressive scholars generally leveled similar accusations at the justices who interpreted the Constitution to protect property rights during the first third of the twentieth century. Yet reading the Constitution as a document that protected the rights of the propertied was only one of many economic Constitutions that people have propounded over the course of American history. Many people have suggested alternative ways in which the Constitution speaks to economic issues.

In the aftermath of Reconstruction, for example, freed slaves claimed constitutional rights to land and livelihoods. During the New Deal and beyond, the question of the federal government’s affirmative obligations to provide security came to the fore. During the 1960s, the welfare rights movement and its allies made claims that the Constitution protected rights to a minimum income. And weaving in and out across the decades, workers argued for rights to organize and bargain; African Americans and others argued for robust understandings of the forms of coercion prohibited by the Thirteenth Amendment; and the wandering poor claimed constitutional rights to their vagrancy. This seminar will explore the multiple ways in which Americans have interpreted the Constitution to speak to economic issues. We invite projects that concern the Constitution’s economic dimensions broadly defined, that cover any period within the long sweep of American history, and that hone in on the interpretations of any of the many actors involved in constitutional interpretation—from laypeople to judges, lawyers to legislators, social movement activists to scholars.

We will conduct this seminar as a workshop; we welcome early career scholars and graduate students. We ask that participants identify their topics in advance and provide a short bibliography of suggested shared readings. Our regular meetings will be devoted to discussion of significant texts identified by the conveners and the presentation by participants of early work in progress for comment and refinement. Some time outside the scheduled meetings will be reserved for individual consultation with the seminar leaders.

The seminar will meet at The George Washington University Law School, from June 6 to June 11, 2010. The Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at The George Washington University, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.

Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, and/or professional development. Materials will be accepted until March 22, 2010, and only by email at MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.
The ICH's second program is the 2010 Interdisciplinary Summer Workshop for College Instructors, “Processes of Constitutional and Legal Change." It will take place in New Haven, Connecticut at Yale Law School from July 11 through 16. The instructors are David Fontana, Associate Professor of Law at George Washington University Law School, and Steven Teles, Associate Professor of Political Science at Johns Hopkins University. The announcement follows:
A simple–but crucial–question captures the essence of one of the central scholarly debates regarding American and comparative constitutional law, and all other forms of law: How does law change? This workshop focuses on the question, by discussing several debates that share the common research goal of trying to explain constitutional and other forms of legal change. By examining each of these debates, we can better understand the different ways that law evolves, and we can also understand the successes and failures of scholars in trying to explain that evolution.

On its first day, the workshop will discuss what political and social dynamics lead to the creation of law and legal systems in the first place. Why do some countries create—and succeed—in creating the rule of law, while other countries do not even try, or try and fail? After we better understand how legal systems are created, we will then turn to the different forms of legal systems currently in existence, from the more court-driven common law systems inspired by the British model to the more legislatively-driven civil law systems prevalent in Continental Europe. By examining how the common law and civil law systems rise and fall, the second day of the workshop will give participants a sense of how change transpires within a legal system—after the basic fundamentals for the rule of law are established.

After the workshop discusses these larger, structural dynamics of legal systems, we will focus on changes that take place once the basic structural fundamentals of the legal system are in place. The third day of the workshop will focus on the role that elections play in transforming law. While some political scientists and law professors have proposed that electoral change is the key to explaining change in the law, others have suggested that the professional and expert character of the law insulates it from shifts in popular sentiment.

Our final day of sessions will reverse field, examining the ongoing scholarly debate about whether and how law changes the rest of the political and social world. We will focus primarily on the claim that structural features of the courts severely limit their efficacy as an instrument in driving change, as well as the counterargument that focuses on the indirect effects of legal mobilization.

While the content of each day might change, the theme remains constant: How does law change, and how does law change the world—and how have scholars tried to explain this? Our focus will be both on American law, especially constitutional law, and law in the rest of the world. Each day of the workshop, we will have a session led by a member of the faculty of our host institution, Yale Law School, whose scholarship relates to the particular scholarly debate we are discussing that day. Our Yale Law faculty participants will include Bruce Ackerman, Jack Balkin, and Robert Gordon.

Participants will receive accommodation at the New Haven Hotel and a modest stipend for meals. (All sessions will be held on the campus of Yale Law School, within walking distance of the hotel.) Participants will also receive a travel reimbursement up to $250. Workshop participants are expected to attend all sessions and engage in all program activities.

The summer workshop is designed for college-level instructors who now teach or plan to teach undergraduate courses in constitutional studies, including constitutional history, constitutional law, and related subjects. Instructors who would like to devote a unit of a survey course to constitutional history are also welcome to apply. All college-level instructors are encouraged to apply, including adjuncts and part-time faculty members, from any academic discipline associated with constitutional studies (history, political science, law, anthropology, sociology, literary criticism, etc.). Preference will be given, however, to applicants from the Eastern region of the United States who teach at liberal arts colleges. Foreign nationals teaching outside the United States are not eligible to apply.

To apply, please submit the following materials: a detailed résumé or curriculum vitae with contact information; syllabi from any undergraduate course(s) in constitutional studies you currently teach; a 500-word statement describing your interest in both constitutional studies and this workshop; and a letter of recommendation from your department chair or other professional reference (sent separately by e-mail or post). The application statement should address your professional background, any special perspectives or experiences you might bring to the workshop, and how the workshop will enhance your teaching in constitutional studies.

The deadline for applications is April 1, 2010. Applications should be sent via electronic mail to MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.
For further information, please contact Maeva Marcus, Director, Institute for Constitutional History, The George Washington University Law School, 2000 H Street, NW, Washington, DC 20052, (202) 994-6562, MMarcus@nyhistory.org

Hamilton to Lecture on Emancipation and Property

According to the Ada (Ohio) Herald, Daniel W. Hamilton, University of Illinois College of Law, will lecture at Ohio Northern University College of Law on Wednesday, February 24, on the topic, "Emancipation and the Common Law: Slavery Litigation after the Civil War." According to the Herald, Professor Hamilton "will discuss American property ideology and the legal and constitutional issues raised by the Civil War."

Friday, February 19, 2010

Davies, A Crank on the Court: The Passion of Justice William R. Day

This is a first: we're posting the abstract of an article published in The Baseball Research Journal. Ross E. Davies, George Mason University School of Law, has just published A Crank on the Court: The Passion of Justice William R. Day. Here's the abstract:
There is an understandable tendency to date the Supreme Court’s involvement with baseball from 1922, when the Court decided Federal Baseball Club of Baltimore v. National League of Professional Base Ball Clubs – the original baseball antitrust exemption case. And there is a corresponding tendency to dwell on William Howard Taft – he was Chief Justice when Federal Baseball was decided – when discussing early baseball fandom on the Court. The first tendency is not only understandable, but also pretty much correct. The Court heard only a few baseball-related cases before 1922, and none was especially weighty from either a legal or a baseball perspective (although each was surely important to the people involved). The second tendency, while also understandable, is not so correct. Taft was a baseball fan, but he was neither the first nor the most fanatical on the Court that decided Federal Baseball, not by a long shot. William R. Day was, and here is why . . .
The photo appears in the article, and is from the Library of Congress.

Lindsay on How Antidiscrimination Law Learned to Live with Racial Inequality

How Antidiscrimination Law Learned to Live with Racial Inequality has just been posted by Matthew J. Lindsay, University of Baltimore School of Law. It was published in the University of Cincinnati Law Review (2006). Here's the abstract:
This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for both racial inequality and racism itself, hastening the day when race will be, as the Supreme Court has put it, “truly irrelevant.” And indeed, the logical simplicity and moral clarity of the colorblindness ideal give it a certain intuitive appeal.

This Article argues that recent history in fact belies such claims. Critics of the colorblindness model have long observed that the Supreme Court’s insistence on race-neutrality has proven a poor remedy for entrenched racial inequality. Remarkably - and here is the paradox - the Court’s very enforcement of the colorblindness ideal has itself fueled the reproduction of racial difference. In the service of colorblindness, the Burger and Rehnquist Courts, in dialogue with a host of influential social scientists and public intellectuals, redefined racial inequality from a wrong in and of itself - and as such a presumptive object of civil rights enforcement - to a morally benign legal irrelevancy. The Court did so by reconstructing African Americans from a class characterized, for the purpose of civil rights enforcement, by the systematic social, economic, and political subordination endured by its members, to a class characterized by its ethnically distinctive culture. By unveiling this critically neglected racial project, this Article casts new light on how American antidiscrimination law, though unequivocally committed to racial equality in theory, has learned to live with racial inequality in fact.

A Bibliography of the Legal History of Washington State

"Sources of Washington State Legal History: An Annotated Bibliography," by W. Clinton Sterling, forthcoming in Law Library Journal 102 (2010), is available here. The author is the Senior Reference Librarian and Assistant Professor of Law at the Chastek Library, Gonzaga University School of Law.

Image credit

Thursday, February 18, 2010

The Global Impact of Brown v. Board of Education

Cross-posted from SCOTUS Blog, where this essay is part of its special Black History Month coverage:

In May 1954, Brown v. Board of Education made headlines, not only in American newspapers, but also around the world. “At Last! Whites and Blacks in the United States on the same school benches,” was the headline in Afrique Nouvelle, a newspaper in French West Africa (now Senegal). In India, the Hindustan Times noted that “American democracy stands to gain in strength and prestige from the unanimous ruling” since school segregation “has been a long-standing blot on American life and civilization.” For the Sydney Morning Herald in Australia, Brown would “go a long way toward dissipating the validity of the Communist contention that Western concepts of democracy are hypocritical.”

The global reaction to Brown was also noted in American news coverage. The decision would “stun and silence America’s Communist traducers behind the Iron Curtain,” argued the Pittsburgh Courier, an African American newspaper, for it would “effectively impress upon millions of colored people in Asia and Africa the fact that idealism and social morality can and do prevail in the Unites States, regardless of race, creed or color.”

Justice Stephen Breyer referred to the global attention given to Brown in his dissent in Parents Involved in Community Schools v. Seattle School District No. 1 in 2007. He emphasized the historic importance of Brown, noting that the case “deeply affected not only Americans, but the world.” But the global significance of the case goes beyond Justice Breyer’s point that Brown enabled others to find a positive model in American racial justice. Brown is one example of the way American law plays a role in U.S. public diplomacy. When major Supreme Court cases are covered in the world press, they inform the understanding of peoples of other nations about the nature of American democracy.

While Brown was held up as an achievement, it came at a troublesome time for the American image abroad. American civil rights failings had long been a staple in the international press. Editorials around the world lambasted racial segregation in public schools and elsewhere, and instances of racial violence, including lynching, caused international outrage. All nations had their own injustices, so why was it that peoples around the world focused their ire on American racism?

It was the Cold War, which American leaders described as a battle between a nation that upheld rights, and the Soviet Union which repressed them. With nations in Africa and Asia poised to gain independence, the United States hoped the new countries would follow its lead. The Cold War balance of power itself seemed to turn on the faith of other nations in the benefits of democracy. Yet in the world’s leading democracy, citizens were segregated by race, and African Americans were sometimes brutalized for attempting to exercise basic rights.

The Soviet Union took advantage of this American weakness. American racism was a principal Soviet propaganda theme by the late 1940s. This propaganda was overblown, yet it had an impact because the long history of oppression of African Americans was well known around the world. Many believed that American world leadership, and world peace itself hinged on the nation solving its racial problems. As Gunnar Myrdal put it in 1944, “America, for its international prestige, power, and future security, needs to demonstrate to the world that American Negroes can be satisfactorily integrated into its democracy.”

Supreme Court Justices encountered international concern about American race discrimination in their overseas travels. When Justice William O. Douglas traveled to India in 1950, the first question he was asked was, “Why does America tolerate the lynching of Negroes?” Douglas later wrote that he had learned from his travels that “the attitude of the United States toward its colored minorities is a powerful factor in our relations with India.” Chief Justice Earl Warren echoed Douglas’s concerns in a 1954 speech to the American Bar Association. “Our American system like all others is on trial both at home and abroad,” he said. “The way it works, the manner in which it solves the problems of our day; the extent to which we maintain the spirit of our constitution with its Bill of Rights, will in the long run do more to make it both secure and the object of adulation than the number of hydrogen bombs we stockpile.”

When Brown v. Board of Education was argued, the Justice Department made sure the Court was aware that the case before it had important national security consequences. In an Amicus Curiae brief, the Justice Department argued that segregation had “an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.” The brief quoted extensively from Secretary of State Dean Acheson, who argued that the damage to U.S. foreign relations from race discrimination was growing. School segregation had been “singled out for hostile foreign comment.” The impact of such practices on American international prestige “jeopardizes the effective maintenance of our moral leadership of the free and democratic nations of the world.”

When Brown was decided, the ruling gave American diplomats ammunition they had been seeking. The U.S. government quickly helped get the word out about Brown. The case was the top story on the Voice of America, where it was accompanied by a commentary explaining that the decision came about "by law under democratic processes rather than by mob rule or dictatorial fiat." The State Department informed American Embassy staffs around the world about how to manage the news. “You may imagine what good use we are making of the decision here in India,” wrote U.S. ambassador to India George V. Allen. The United States Information Service circulated a press release in that country calling Brown “another milestone in the American Negro’s steady progress toward full equality as a citizen.” The international impact of Brown was followed closely by civil rights organizations. If civil rights advances aided U.S. foreign relations, then the NAACP could argue that its effort to change the nation’s racial practices were not un-American, but instead strengthened the country.

When American judges and legal scholars discuss the impact of American law around the world, they tend to focus on the question of whether other nations draw from the American model. In the story of Brown’s global impact, we can see another role of American law in the world. Rather than exporting American ideas to other nations for their benefit, the United States sought to spread the story of Brown to repair the American image, and to safeguard U.S. foreign relations during the Cold War. We may think that sending our legal ideas overseas helps others, but in this example American justice aided American diplomacy.

______________________________________________________________________________
Sources for quotes in this essay and more of this history can be found in Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000), and Mary L. Dudziak, “Brown as a Cold War Case,” 91 Journal of American History 32 (2004).

Cushman, Clerking for Scrooge

Barry Cushman, University of Virginia, has just posted Clerking for Scrooge, a review essay on The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington, edited by Dennis Hutchinson and David Garrow. The essay was published in the University of Chicago Law Review (2003). Here's the abstract:
During the Supreme Court’s memorable October,1936 term, a young man named John Knox clerked for Justice James Clark McReynolds. Knox kept a diary during the term, and between 1952 and 1963 converted the diary into a 978-page memoir. Yet his own efforts to publish the memoir came to naught. In 1978 he deposited all or a portion of the manuscript at a series of libraries. But there it languished until rescued from obscurity by David Garrow and Dennis Hutchinson, who in 2002 published an edition of the manuscript with the University of Chicago Press. This essay reviews Knox’s remarkable memoir of the events of that year, situating Knox’s experience with McReynolds in the larger context of the evolving institution of the judicial clerkship and its relationship to the construction of judicial reputation.

Wednesday, February 17, 2010

Boisseau and Thomas on Feminist Legal History

Feminist Legal History: Women and the Law in U.S. History, is a forthcoming collection edited by Tracey Jean Boisseau and Tracy A. Thomas, both of the University of Akron. The abstract to their Introduction is now on SSRN:
Feminist Legal History offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. The essays in this book look at women’s status in society over time through the lens of the law. The conventional story portrays law as a barrier or constraint upon women’s rights. While law has and continues to operate as a restraint upon women’s full participation in society, law has also worked as a facilitating structure. The overall picture gleaned from the snapshots in time offered in this book shows the actualizing power of the law for women. Women have used the law historically as a vehicle to obtain personal and societal change. Even more, women have used feminist theory to transform the law itself to incorporate an appreciation of gendered realities.

The introduction provides the context necessary to appreciate the essays in this book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two hundred years. This history, while sparse, provides the common foundation for the authors, and establishes the launching point for the deeper and more detailed inquiries offered here. The introduction then provides an exploration of the key themes advanced in the book. In Part I, Contradictions in Legalizing Gender, the essays develop analyses of the law’s contradictory response to women’s petitions. The essays in this section provide evidence of law’s operation as a barrier, limiting women’s power and agency and challenge the assumptions that such barriers have been eliminated today. Yet the essays in part I also present a more nuanced historical picture. They show the law’s facilitation of women’s agency and power, often based on the same gendered norms that elsewhere produced limitations. Part II of the book, Women’s Transformation of the Law, shows women’s impact upon the law and illustrates how women changed the law to incorporate their own, gendered, perspectives. By “feminizing” the legal process and altering the substantive law to respond to women’s needs, women were able to shape the law in their own image.

The introduction concludes with an overview of feminist legal thought. An appreciation of such theory and methodology is important to understanding the lens through which the authors and advocates over time approached the problems presented. Feminist Legal History is not just a collection of stories about women. Instead, it is a feminist inquiry of the historical record, in which feminist theory illuminates the positions and motivating beliefs of women over time.

Crane on Reclaiming the Meaning of 'Direct Tax'

Reclaiming the Meaning of 'Direct Tax' is a new paper by Charlotte Crane, Northwestern University School of Law. Just this abstract is posted:
The history of the litigation in the carriage tax case, Hylton v. United States (1796), including the extraordinary steps taken to present a case to the Supreme Court in which the tax would be ratified, suggests that the case was far more important than the simple amount of revenue at stake. This article explores the motivation behind the imposition of the carriage tax, and its defense in Hylton, as a part of the effort s of Hamilton and his fellow Federalists to create a robust federal government. That federal government would include revenue officers whose loyalties were primarily to the federal government not the state governments, and a federal power to tax that was neither limited to excise and other transaction-based taxes nor constrained by the apportionment clause.

European Society of Comparative Legal History

[Here's news of a constellation in the legal historical firmament:]

The European Society of Comparative Legal History (ESCLH) is pleased to announce the creation of the Society, the launch of our blog, and our inaugural conference.

The ESCLH aims to promote comparative legal history and seeks affiliation with individuals and organisations with complementary aims. Our blog is intended to provide a site for discussion, the sharing of information, and a Register of Legal Historians (with research interests in any area of legal history).

The ESCLH inaugural conference, 'Law and Historical Development from a Comparative Perspective', will be held at the University of Valencia (Spain) on 5-6 July 2010. Presentations should be in English and are welcome on any topic in comparative legal history.

Those interested in making a presentation should email Dr Seán Patrick Donlan (sean.donlan@ul.ie) by Monday, 15 March 2010 with a short (250 word) proposal. Note that the conference fee is €100; transportation and accommodation are not included.
For additional information, please contact a member of the ESCLH Executive Committee.

Dr Seán Patrick Donlan (Limerick): sean.donlan@ul.ie
Professor Jan Hallebeek (VU Amsterdam): j.j.hallebeek@rechten.vu.nl
Professor Dirk Heirbaut (Ghent): dirk.heirbaut@UGent.be
Professor Aniceto Masferrer (Valencia): Aniceto.Masferrer@uv.es
Professor Remco van Rhee (Maastricht): remco.vanrhee@maastrichtuniversity.nl
posted by Sean Patrick Donlan at 9:52 AM

Hat tip: Comparative Law Blog

Tuesday, February 16, 2010

Fellowship for research at the Library of Congress

J. Franklin Jameson Fellowship in American History

The Franklin Jameson Fellowship in American History is offered annually by the Library of Congress and the American Historical Association to support significant scholarly research for one semester in the collections of the Library of Congress by scholars at an early stage in their careers in history. The fellowship is named in honor of J. Franklin Jameson, a founder of the Association, longtime managing editor of the American Historical Review, formerly Chief of the Manuscript Division of the Library of Congress, and the first incumbent of the Library's Chair of American History. It is designed to assist scholars early in their careers.

Eligibility

At the time of application, applicants must hold the Ph.D. degree or equivalent; must have received this degree within the past seven years, and must not have published or had accepted for publication a book-length historical work. The fellowship will not be awarded to complete a doctoral dissertation.

Research Project

The applicant's project in American history must be one for which the general and special collections of the Library of Congress offer unique research support. Applicants should include a statement substantiating this relationship.

Duration

The fellowship will be awarded for 2–3 months, as the Jameson Fellow desires, to spend in full-time residence at the Library of Congress. Working space will be provided by the Library of Congress, but the Jameson Fellow is required to spend at least two months in residence.

Other Requirements

Before the conclusion of the fellowship, the Jameson Fellow will summarize the results of his or her research at a professional gathering arranged by the American Historical Association and the Library of Congress. Jameson Fellows are not required to complete their projects during the tenure of the fellowship, nor need they necessarily publish their results as a discrete work.

Stipend

The total stipend may vary from year to year. For 2010–11, the amount will be $5,000. This will not be prorated according to the proposed length of tenure of the fellowship.

Selection

Selection will be by a committee of the American Historical Association, in consultation with designated officers of the Library of Congress, who will advise the committee on the strength of Library holdings to sustain the research project. The AHA encourages non-tenured faculty, public historians, independent scholars, and two-year faculty to apply.

Deadline

All application materials and letters of recommendation must be postmarked by March 15, 2010.

Full details about how to apply are here.
Photo: Library of Congress reading room.

Greene on Race in Brazil and the United States

Determining the (In)Determinable: Race in Brazil and the United States is a new article by D. Wendy Greene, Cumberland School of Law, which draws upon Brazilian and U.S. legal history. It appeared in the Michigan Journal of Race & Law (2009). Here's the abstract:
Recently, the Brazilian states of Rio de Janeiro, São Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states have established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining “who is Black” has become a complex yet important undertaking in Brazil. Contrary to many scholars’ advancements race in Brazil is skin color or physical appearance, whereas in the United States race is based on ancestry, this Article advances the notion that in both American countries one’s physical appearance is the primary determinant of Blackness. Furthermore, when U.S. courts have been charged with determining Blackness, racial constructs based on physical appearance - not the rule of hypodescent -- have steered their legal pronouncement of race. This Article first offers a necessary survey of African slavery in Brazil and the United States. This Article demonstrates that despite the contrasts in demography, slave law, and ensuing racial ideology - “racial democracy” in Brazil and “racial purity” in the United States - the enslavement and subordination of Africans and their descendants spawned a common racial hierarchy and assembly of phenotypes designating Blackness and whiteness. Moreover, this Article surveys historical and contemporary racial determination cases which demonstrate the salience of physical appearance in determining race in the United States and debunks the notion that the hypodescent rule is applied to determine “Blackness”. These cases additionally illuminate the paradoxical nature of race - specifically Blackness and whiteness - in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography. Ultimately, this exploration of racial determination cases imparts insight and guidance to Brazilian arbiters currently determining who is Afro-Brazilian for affirmative action purposes.

Reused, Rebound, Recovered

[We have the following announcement, via H-Law, of the exhibit "Reused, Rebound, Recovered: Medieval Manuscripts in Law Book Bindings," running from February to May 2010, in the Rare Book Exhibition Gallery on Level L2 of the Lillian Goldman Law Library, at the Yale Law School, 127 Wall Street, New Haven CT.]

Nearly 150 early printed books in the Yale Law Library have bindings that incorporate visible pieces of medieval manuscript. A number of these books are featured in the latest exhibit from the Law Library's Rare Book Collection, "Reused, Rebound, Recovered: Medieval Manuscript Fragments in Law Book Bindings." The exhibit is on display through May 2010 in the Law Library.

In 15th- and 16th-century Europe, recycling was second nature. Bookbinders, for their part, cut apart discarded medieval manuscripts and reused the strong, flexible and expensive parchment in their bindings. These scraps reveal information about the distribution and popularity of medieval texts, the evolution of scripts, and the history of printing and binding. A precious few of them preserve the only surviving fragments of long-lost texts.

The exhibit reflects the diversity of medieval material in the Law Library's bindings. The Bible and liturgical manuscripts are well represented, some with early forms of musical notation. Four of the law books contain legal texts in their bindings. Other examples include a sermon, a fragment of Cicero, and two Hebrew manuscripts. One of the fragments is the oldest item in the Law Library's collection, dating from around 975-1075.

While most of the fragments are identified and tentatively dated, a couple remain mysteries. The exhibit coincides with the annual meeting of the Medieval Academy of America, March 18-20 at Yale University. Conference attendees will be invited to try their hand at identifying the fragments.

The exhibit was curated by Benjamin Yousey-Hindes, a Ph.D. candidate at Stanford University, and Mike Widener, Rare Book Librarian at the Lillian Goldman Law Library.

For those unable to visit the exhibit in person, it will appear in installments on the Yale Law Library Rare Books Blog.

Monday, February 15, 2010

Curtis reviews Tsai, Eloquence and Reason

Eloquence and Reason: Creating a First Amendment Culture by Robert Tsai is reviewed by Michael Kent Curtis in the Northwestern Law Review. Curtis writes that Eloquence and Reason
is a very fine and thought-provoking book about the role of the judge and the ordinary citizen in interpreting the Constitution. In it, Professor Robert Tsai shows how, over time, rhetorical dialogue among judges, political elites, and ordinary citizens creates, legitimizes, and transforms our understanding of the Constitution and the rights it embodies. Tsai uses the "First Amendment"—or more accurately the liberties of speech, press, petition, assembly, and association—as a case study. He also suggests how judges should perform constitutional analysis.
Curtis's extended review is here.

The Legacy of John Hope Franklin

The National Archives of the United States is sponsoring the event, From Slavery to Freedom and the Legacy of John Hope Franklin, to be held Thursday, February 18, at 7 p.m. in the Archives’ William G. McGowan Theater, 700 Pennsylvania Ave. NW, Washington, DC. According to the announcement:
The ninth edition of From Slavery to Freedom by John Hope Franklin and Evelyn Higginbotham has been revised to reflect the most current scholarship on African American history. Tonight we present a program on the legacy of John Hope Franklin and this award-winning work. Joining the discussion will be Evelyn Brooks Higginbotham, co-author of From Slavery to Freedom; Archivist of the United States David S. Ferriero; and John Franklin, son of John Hope Franklin. A book signing will follow the program.
Image credit.

Comparative Copyright History: Canada and Mandate Palestine

As it happens, two papers were recently posted, each of which taking a comparative approach tot he history of copyright, although centered on different countries. The first is A Canadian Copyright Narrative, by Daniel J. Gervais, Vanderbilt University School of Law. It also appears in Intellectual Property Journal, 21 (2009). Here is the abstract:
Copyright policy, like other major areas of public policy, requires a solid anchoring in fundamental principles. That anchor can only be found through a clear understanding of the purpose of copyright.

One could rely on public choice theory and posit that by allowing various stakeholders to push their issues the end-result will be balanced. From a pragmatist’s perspective, the theory rests on three key assumptions. First, that all interested parties are represented by (equally) well equipped experts. Second, that these experts have correctly analyzed not only the current state of play but also the predictable future and correctly devised measures (including, but not limited to, legislative amendments) that will adequately align the regulatory framework with their objectives. Third, the end result of blending the various “adequate” and well-formulated proposals in a single politically acceptable package will maintain the (correct) analysis of each (equally well equipped) lobby and not produce unintended or negative consequences. If one accepts that these assumptions are well founded, then by all means the government and Parliament should limit themselves to a clearinghouse function whose main objective is to keep everyone equally happy (or as minimally unhappy as possible).

One may also disagree with one or more of the above assumptions. I will declare myself to be one of those skeptics, one who believes that proper policy is made when the policy objective is identified from a national interest perspective, not just by mosaicing sectoral interest groups, and then an objective analysis of the measures designed to implement the objective is made that takes into account possible unintended consequences. I suggest that the first step is to develop a coherent discourse, a narrative. This is what I suggest is needed in the copyright domain. The power of a narrative is at least three-fold: it guides policy-making; it assists courts in interpreting copyright laws; and, with proper education, it increases understanding and, hopefully, internalization of copyright norms.

To develop a copyright narrative, one probably should begin by looking at the roots of the current system. One of the problems of copyright policy in North American is that it is a house built on someone else’s foundations, though at times we are not exactly sure whose foundations. This is nothing new. After all., Canada and, in a different way of course, the United States have “imported” the Common Law, the French Civil Code (Louisiana, Quebec) and several other parts of their legal edifice, state, provincial and federal, from other countries. There are differences, however, between copyright and, for example, the common law. The volume of contract, property and tort cases, as well as doctrinal debate, restatements etc. – interspersed with numerous statutory interventions of course – have allowed us both to understand the origins of common law rules and to transform, and adapt, many of the underlying common law concepts. Can the same be said of copyright? Seventeenth century debates in Brittan, and elsewhere in Europe from which the first copyright statutes emerged, had the great merit of forcing the courts in those jurisdictions to examine the whys and wherefores of copyright law with much greater depth than was the case in North America, until recently.

The perceived need to anchor copyright debates in a solid policy context and, hence, to develop a coherent (and hopefully convincing) narrative has been the subject of excellent contemporary research. We are indebted to a number of scholars for their work in this area. The attempt to find normative applications from a historically derived model for copyright is not new either. However, the research thus far tends to provide a blurred picture, by espousing justificatory theories based on one or many of the following: commercial and personal interests of authors, understood as property and/or liability rules; commercial interests of publishers and other “rights holders” and/or the social costs of overprotection and the related economic-driven search for an optimal point of protection.

In Part II of this paper, I will look at the Canadian narrative and try to present a faithful picture of its current state of evolution. To do so, however, a detour via England is required, because that is whence the soil from which the Canadian narrative comes. This historical detour will be the focus of Part I. Part III will suggest a path for the next stages of the Canadian narrative that is both consistent with international norms and hopefully useful in moving the debate forward. That part ends with a brief look at the impact that the linkage with trade rules may have on copyright.
The second paper is Hebrew Authors and English Copyright Law in Mandate Palestine, by Michael Birnhack, Buchmann Faculty of Law, Tel Aviv University. It is forthcoming in Theoretical Inquiries in Law 12 (2011). Here is the abstract:
This article (re)tells the as yet-untold story of copyright in Mandate Palestine. It is a story about the introduction of copyright law in one region, beginning a century ago: the Ottoman province that became Palestine under the British rule (1917-1922) and a Mandate (1922-1948), and then Israel (1948). The account provides an early case of legal globalization through colonialism (although Palestine was a Mandate, not a colony). The imposition of copyright law in Palestine enables us to observe the difficulties of applying an uninvited legal transplant and to trace its dynamics.

The discussion queries the fate of copyright law in Mandate Palestine from two perspectives. First, the Colonial-Imperial point of view: I will ask "why that then", i.e., why did the British government impose copyright law in the newly administered territory only a month after the establishment of the civil administration in the summer of 1920 and then replaced it in 1924. The answers are to be found in the general imperial agenda, its Palestine agenda, as well as the nature of copyright and additional reasons. Second, from the local point of view, I will trace the first steps of copyright law within the Hebrew community and especially within the literary circle in the 1920s.

The discussion is located within several frameworks. The first is that of globalization and legal transplants. Copyright law today is at the forefront of the battle on globalization. Copyright features high on the agenda of those nations that push for stronger legal protection and for more enforcement measures in the name of free trade, private property as well as harmonization and unification. The new global copyright regime imposes foreign concepts on countries which are not always interested in these legal formulas. While copyright law was first introduced in the region by the Ottoman Empire in 1910, it was the 1911 (British) Imperial Copyright Act, applied to Palestine in 1924 (with a precursor in 1920), alongside a Copyright Ordinance that left their mark in the long run. Here, I focus on the non-Orthodox Jewish Zionist Hebrew community, known as the Yishuv. The article examines the literary field.

A second framework of the discussion is the interaction between law and social norms. This framework is a subset of the previous, globalization one, as copyright law was foreign and the social norms were local. It took a while for copyright law to be absorbed in the region and for the notion of a legal protection for intangible creative works to resonate within the local community. One main goal of the article is to point out this slow absorption and seek for explanations. This does not mean that there were no local copyright-related needs. There were such needs. The legal issues that bothered the literary field concerned the author-publisher relationship, attribution, the integrity of the work and international transactions. However, the answers to these problems were not found in the law but rather in private ordering, namely contracts and social norms.