The Survey: Copyrights & Wrongs

Given the turn towards digitizing books, articles, and primary sources, unprecedented possibilities exist for creating tailor-made course-packs in either hard copy or on electronic reserve. For example, rather than simply assigning cases, one can now cut and paste excerpts from cases, partner them with excerpts from monographs, and/or articles, and provide students with engaging narratives, primary materials, and scholarly analysis -- all in easily readable 10-20 page installments. Question: what, precisely, are the rules for such digital compilations? Though we're all familiar with the notion of fair use, what precisely does that mean when we can now assemble everything digitally, post it to electronic reserve, and give students the benefit of reading primary source excerpts along with the best new work, free from the burden of purchasing weighty textbooks and/or wordy monographs? My librarian and I have been working on the assumption that if an assignment represents less than 5% of the total work, then it can be excerpted and posted digitally. Is this correct? What if the source is itself digital, say I purchase a copy of my own book (which Oxford has rights to) in electronic form. Can I then assign more than 5% to students? An ongoing case filed by Oxford and Cambridge against Georgia State has gotten me wondering about this. Styled Cambridge v. Patton, the case builds on the 1991 suit against Kinko's by Basic Books, and the 1992 case by Princeton University Press against Michigan Document Services. Yet, what's new about this case is its emphasis not simply on printed course packs, but digital collections. Cambridge has claimed that it will grant permission of up to 20% of a digital work, but would still like to charge students 17 cents a page. What if a faculty member, or institution, bought the digital work?

Witte on John Milton and the Reformation of Rights and Liberties in England

John Witte Jr., Emory University School of Law, has just posted a number of earlier legal history papers on SSRN.  Among them is Prophets, Priests, and Kings of Liberty: John Milton and the Reformation of Rights and Liberties in England, which appeared in the Emory Law Journal, Vol. 57, p. 1528, 2008.  Here's the abstract:

John Milton

In the midst of the English Revolution, John Milton emerged as the most articulate and innovative advocate of religious rights and liberties. Milton, religious liberty was a God-given, God-directed natural right. Humanity has the image of God within, and therefore has the freedom to choose.

However, to use natural freedom, mankind needs supernatural direction. Milton took a radical step by arguing that Christ rendered the Mosaic law obsolete, arguing that instead Christians have the liberty to do their duties to God and neighbor, have the right to do what is good, and to imitate Christ in their daily lives.

In addition to removing the Mosaic moral law, Milton also attacked the Church of England, labeling the clergy lords of the religion and claiming the church had too many Catholic ties. Thus, Milton advocated five major reforms in the Church of England. First, Milton called for liberty of conscience, the dearest and most precious right. Second, supported one’s freedom to worship in community of one’s choosing. Third, the state should tolerate every peaceable church. Fourth, Milton advised a separation of church and state. Finally, Milton emphasized that there should be no established religion.

These reforms are based on Milton’s premise that family is the foundation of society. The domestic commonwealth is like the political commonwealth: it should be dissolved if it fails its fundamental purpose. For marriage, the fundamental purpose is both civil (reproduction) and religious (spiritual bond before God). If either of those purposes is frustrated, divorce is a remedy.

Milton also believed strongly in civil rights and liberties, including the right to democratic election, the right to petition, the right to associate, the right to a jury trial, and the right to an education. Milton also called for freedom of speech and press, claiming that censorship was self-defeating for the church, impractical, and harmful to both the author and the public. However, Milton still felt that blasphemous or treasonous statements should still be punished, even if they were not censored. Censorship is wrong to Milton because denies the nature of human judgment; truth comes from revelation, not from restriction.

Witte's other recently posted papers are here.

Brown-Nagin joins the Legal History Blog

I'm happy to announce that Tomiko Brown-Nagin is joining the Legal History Blog as our fourth "regular" blogger.  Tomiko is the Justice Thurgood Marshall Distinguished Professor of Law and Professor of History at the University of Virginia.  Her first book, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, was published in January by Oxford University Press.  Tomiko's next book is “The Only Woman in the Courtroom”: Constance Baker Motley and Twentieth- Century Struggles for Equality.

Welcome to Tomiko!
Photo source.

Gordon on Jehovah's Witnesses as defenders of religious liberty

American History Magazine has published a short essay by Sarah Barringer Gordon (University of Pennsylvania) on "What We Owe Jehovah's Witnesses."

Here's a taste:

One of the most momentous cases on the Supreme Court docket as war raged globally in 1943 was about a single sentence said aloud by schoolchildren every day. They stood, held their right hands over their hearts or in a raised-arm salute and began, "I pledge allegiance to the flag…" To most Americans the pledge was a solemn affirmation of national unity, especially at a time when millions of U.S. troops were fighting overseas. But the Jehovah's Witnesses, a religious sect renowned for descending en masse on small towns or city neighborhoods and calling on members of other faiths to "awake" and escape the snare of the devil and his minions, felt otherwise. They insisted that pledging allegiance to the flag was a form of idolatry akin to the worship of graven images prohibited by the Bible. In West Virginia State Board of Education v. Barnette, Walter Barnett (whose surname was misspelled by a court clerk) argued that the constitutional rights of his daughters Marie, 8, and Gathie, 9, were violated when they were expelled from Slip Hill Grade School near Charleston, W.Va., for refusing to recite the pledge.

. . .

Jehovah's Witnesses were unlikely champions of religious freedom. The sect's leaders denounced all other religions and all secular governments as tools of the devil, and preached the imminence of the Apocalypse, during which no one except Jehovah's Witnesses would be spared. But their persistence in fighting in the courts for their beliefs had a dramatic impact on constitutional law.

You can read the rest here.

hat tip: bookforum

Tani to Berkeley!

I'm very happy to report that Karen Tani, our Legal History Blog colleague, has accepted an entry-level offer at U.C. Berkeley Law School.  Congratulations to Karen and to Berkeley!

Greenhouse and Siegel, Before (and after) Roe v. Wade: New Questions about Backlash

Before (and after) Roe v. Wade: New Questions About Backlash has just been posted by Linda Greenhouse and Reva Siegel, both of Yale Law School.  It is forthcoming in the Yale Law Journal.  Here's the abstract:

Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor.

In this essay, we ask what escalation of the abortion conflict in the decade before the Supreme Court decided Roe might teach about the logic of conflict in the decades after Roe. To do so, we draw on sources we collected for our recently published documentary history, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (2010). We begin our story at a time when more Republicans than Democrats supported abortion’s decriminalization, when Catholics mobilized against abortion reform but evangelical Protestants did not, when feminists were only beginning to claim access to abortion as a right. We show how Republicans campaigning for Richard Nixon in 1972 took new positions on abortion to draw Catholics and social conservatives away from the Democratic Party. Evidence from the post-Roe period suggests that it was party realignment that helped escalate and shape conflict over Roe in the ensuing decades.

The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high.

Book Review Edition of Tulsa Law Review

A Book Review issue of the Tulsa Law Review, 45 Tulsa L. Rev. 575 (Summer, 2010), co-edited by Sanford Levinson (Texas-Law & Political Science) and Mark Graber (Maryland-Law & Political Science), recently was published. The editors explain the origins and purposes of the issue in an introduction. They note:

Two polemics inspired this issue of the Tulsa Law Review. Writing in the May 2009 Texas Law Review, Levinson bemoaned the decline of book reviews in law student edited journals. Noting that a majority of the so-called "top" law reviews published no book reviews at all, he complained of the "willful refusal ... of America's leading law reviews to serve as a venue for serious discussion of important books relevant ... to thinking about law." n1 In his view, "both serious scholars and general readers alike" regard "book reviews as invaluable filtering mechanisms" for determining what of the many works published merit reading and which are best left on library shelves. Graber, in the spring 2002 issue of Law and Social Inquiry, had earlier condemned the failure of prominent law professors to engage relevant political-science literature. ....

Both are delighted that the reviews that follow not only think critically about major books recently published on constitutionalism, jurisprudence, and legal history, but also provide opportunities either for law professors to discuss works by political scientists/historians or for political scientists/historians to engage law professors on subjects of mutual interest and concern.

The volume includes reviews by Mark Tushnet, Gerald Rosenberg, Jamal Greene, Daniel Hamilton, Ernest Young, Rebecca Zietlow, Stephen Feldman and Julie Novkov, among others, who cover a wide range of works on subjects of interest to legal historians. The book review's table of contents is here. The volume itself is accessible through Lexis-Nexis.

Brown-Nagin on C-Span

Tomiko Brown-Nagin discussed her new book Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement  at the Virginia Festival of the Book.  You can watch on C-Span.  Tomiko's upcoming book events are here.

New scholarship: Japanese Legal History

With hopes of encouraging readers to continue supporting Japan relief and recovery efforts, a spotlight on recent scholarship on Japanese legal history:

Tessa Morris-Suzuki, Borderline Japan: Foreigners and Frontier Controls in the Postwar Era (Cambridge, 2010).

This book offers a radical reinterpretation of postwar Japan's policies towards immigrants and foreign residents. Drawing on a wealth of historical material, Tessa Morris-Suzuki shows how the Cold War played a decisive role in shaping Japan's migration controls. She explores the little-known world of the thousands of Korean 'boat people' who entered Japan in the immediate postwar period, focuses attention on the US military service people and their families and employees, and also takes readers behind the walls of Japan's notorious Omura migrant detention centre, and into the lives of Koreans who opted to leave Japan in search of a better future in communist North Korea. This book offers a fascinating contrast to traditional images of postwar Japan and sheds new light on the origins and the dilemmas of migration policy in twenty-first century Japan.

Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Harvard, 2009).

This book assesses the historical significance of the International Military Tribunal for the Far East (IMTFE)—commonly called the Tokyo trial—established as the eastern counterpart of the Nuremberg trial in the immediate aftermath of World War II.

Through extensive research in Japanese, American, Australian, and Indian archives, Yuma Totani taps into a large body of previously underexamined sources to explore some of the central misunderstandings and historiographical distortions that have persisted to the present day. Foregrounding these voluminous records, Totani disputes the notion that the trial was an exercise in “victors’ justice” in which the legal process was egregiously compromised for political and ideological reasons; rather, the author details the achievements of the Allied prosecution teams in documenting war crimes and establishing the responsibility of the accused parties to show how the IMTFE represented a sound application of the legal principles established at Nuremberg.

Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge 2010)

Legal Imperialism examines the important role of nineteenth-century Western extraterritorial courts in non-Western states. These courts, created as a separate legal system for Western expatriates living in Asian and Islamic countries, developed from the British imperial model, which was founded on ideals of legal positivism. Based on a cross-cultural comparison of the emergence, function, and abolition of these court systems in Japan, the Ottoman Empire, and China, Turan Kayaoglu elaborates a theory of extraterritoriality, comparing the nineteenth-century British example with the post-World War II American legal imperialism. Ultimately, his research provides an innovative basis for understanding the assertion of legal authority by Western powers on foreign soil and the influence of such assertion on ideas about sovereignty.

Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart, 2011).

With almost 2,000 years of history, Japan boasts the second largest economy in the world. Yet, its first modern constitution - the Meiji Constitution - was not enacted until comparatively recently, in1889. Following World War II, Japan adopted and ratified its current Constitution, the Japanese Constitution of 1946. This book - part of the Constitutional Systems of the World series by Hart Publishing, Oxford - is designed to explain the outline of Japan's Constitution together with a number of its unique characteristics, and offers the historical background and context which help explain its significance. Major topics covered include the constitutional history of Japan, fundamental principles of the Constitution, the people and the Emperor, the Diet and legislative power, the Cabinet and executive power, and the Judiciary and judicial power. Also discussed are the protection of fundamental human rights, individual rights (including freedom of expression), economic freedoms, social rights, democratic and procedural rights, pacifism, and national defense. Although the Japanese Constitution was enacted under the strong influence of the US Constitution, many of its features are very different, for example: the existence of an Emperor, the long dominance of the Conservative party over the government, the relatively strong power of government bureaucrats, the absence of a leadership role in the Prime Minister, the small role the judiciary play in solving constitutional disputes, and the struggle over national defense. Written in an accessible style and comprehensive in content, the reader will find this account of the constitutional law of Japan both unique and stimulating.

J. Mark Ramseyer, Odd Markets in Japanese History: Law and Economic Growth (1996) (published online, Cambridge, 2009).

Employing a rational-choice approach, Professor Ramseyer studies the impact of Japanese law on economic growth in Japan. Toward that end, the author investigates the way law governed various markets and the way that people negotiated contracts within those markets. For much of the period at stake, the Japanese government was an oligarchy rather than a democracy; the judges operated a civil rather than common law regime; the economy grew modestly but erratically; and social customs changed rapidly and radically. As a result, this study applies an economic logic, but to markets in a vastly different world, in a different historical period, and with a different political regime and legal system. Findings reveal that the legal system generally promoted mutually advantageous deals, and that people generally negotiated in ways that shrewdly promoted their private best interests. Whether in the markets for indentured servants, prostitutes, or marriage partners, Odd Markets in Japanese History reports little evidence of either age- or gender- related exploitation.

This last one's not as recent and not as historical, but I think you all might enjoy it: Eric Feldman, "The Tuna Court: Law and Norms in the World's Premier Fish Market," California Law Review 94 (2006).

Legal scholars have long emphasized the corrosive impact of conflict on long-term commercial and interpersonal relationships. To minimize the negative consequences of such conflict, members of close-knit groups who anticipate future interactions create ways to resolve their disputes using internal group norms rather than state-enforced legal rules. From farmers in California's Shasta County to jewelers in midtown Manhattan, the literature describes people who create informal norms of conflict management that are faster and less expensive than formal law and that lessen the harm that conflict causes to their relationships.

This Article tells a different story. It describes a tightly organized group of commercial traders - tuna merchants in Tokyo - who are repeat players in a discrete marketplace where there are regular problems with the quality of auctioned goods. Rather than ignoring those problems or quietly resolving them with reference to informal market norms, Tokyo's tuna merchants make use of a highly specialized court created by the state - the Tuna Court - that follows formal rules and procedures that are contained in a government ordinance. The supposed disadvantages of legal rules are nowhere apparent. The Tuna Court is fast and inexpensive, and the process of articulating and resolving claims serves to strengthen individual relations and the cohesion of the market community. A comparison between Japan and the United States demonstrates that there is more disputing and more legal formality in the Japanese tuna market, and this Article credits a mix of economic and cultural factors for the difference. In short, by presenting a detailed case study of a highly specialized court that operates under government auspices, this Article argues that formal state law can outperform informal group norms by satisfying the business needs of close-knit merchants while simultaneously contributing to the shared values that underlie the success of their future transactions.

Please consider supporting Japan relief and recovery efforts.

Image credits: Borderline Japan; Tokyo War Crimes Trial; Odd Markets.

Symposium on Judicial Indepedence at Harvard Today

The Harvard Journal of Law and Public Policy is hosting a symposium today at Harvard Law School on judicial independence.  The occasion for the event is the publication later this spring of a book by Scott Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787.  Here's the book description:

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787, by Scott Douglas Gerber, provides the first comprehensive critical analysis of the origins of judicial independence in the United States. Part I examines the political theory of an independent judiciary. Gerber begins chapter 1 by tracing the intellectual origins of a distinct judicial power from Aristotle's theory of a mixed constitution to John Adams's modifications of Montesquieu. Chapter 2 describes the debates during the framing and ratification of the federal Constitution regarding the independence of the federal judiciary. Part II, the bulk of the book, chronicles how each of the original thirteen states and their colonial antecedents treated their respective judiciaries. This portion, presented in thirteen separate chapters, brings together a wealth of information (charters, instructions, statutes, etc.) about the judicial power between 1606 and 1787, and sometimes beyond. Part III, the concluding segment, explores the influence the colonial and early state experiences had on the federal model that followed and on the nature of the regime itself. It explains how the political theory of an independent judiciary examined in Part I, and the various experiences of the original thirteen states and their colonial antecedents chronicled in Part II, culminated in Article III of the U.S. Constitution. It also explains how the principle of judicial independence embodied by Article III made the doctrine of judicial review possible, and committed that doctrine to the protection of individual rights.

Gerber is speaking on a historical panel at 3:00 p.m. in Pound 108 at Harvard Law School:

The Origins of Judicial Independence
Professor William Casto, Texas Tech University School of Law
Professor Scott Gerber, Ohio Northern University Claude W. Pettit College of Law
Professor Stephen Presser, Northwestern University School of Law
Moderated by Steven Calabresi

The Survey: Wars & Transformations

In his Preface to Volume II of the Transformation of American Law, Morton J. Horwitz mysteriously notes that while Vol. I ended in 1860, Vol. II begins in 1870, because "only a separate book can do justice to the profound significance of the Civil War in American legal history." What, precisely, was that significance? Primary source collections stress the Emancipation Proclamation, an obvious transformation, as well as Lincoln's suspension of habeas corpus, Ex Parte Merryman, Ex Part Vallandigham, etc ... (these cases make for a nice war/law theme on suspensions of rights that can be revisited through World War I, World War II, the early stages of the Cold War, even the War on Terror). Another transformative theme is captured by Heather Cox Richardson in The Greatest Nation of the Earth: Republican Economic Policies During the Civil War, showing how the 37th Congress promoted a dramatic expansion of federal power, including federal promotion of the Transcontinental Railroad, federal sanction of a national currency, and federal promotion of land development through the Homestead and Land Grant Acts. On the first, the question of railroads opens a potential lens through which to view much of the post-Civil War period, including labor activism (the Strike of 1877), vigilantism (see David Thelen's excellent recovery of Jesse James's popular train-robbery campaigns in Missouri), the rise of Tort Law, and finally the question of legal segregation in the South (Plessy v. Ferguson was, after all, a train case). Another thread emerges with Republican monetary policy, particularly the creation of a national currency, which provides a nice precursor to Progressive Era Republican interventions in the economy (TR's support of Anti-Trust, the Federal Income Tax, and so on), as well as the Democratic Party's interventions during the New Deal (all topical given the 2008 bail-outs). Finally, Horwitz's theme is most directly picked up by Dan Hamilton in The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy During the Civil War. Hamilton's book raises an interesting counter-point to Richardson, which is that the Republican Party was ultimately bounded by the war, resulting in the tragic demise of land redistribution schemes in the South and a new emphasis on the right to private property on the Supreme Court. Here's another nice tie-in to the post-War era, including a foundation for discussions of property jurisprudence through the Progressive and Modern Eras. Any other Civil War themes that Horwitz might have been referring to?

Photo credit: Chicago U. Press

Zhang on Property Rights in Land, Agricultural Capitalism, and the Relative Decline of Pre-Industrial China

Property Rights in Land, Agricultural Capitalism, and the Relative Decline of Pre-Industrial China is a new article by Taisu Zhang, Yale University.  It appears in the San Diego International Law Journal, Vol. 13, 2011.  Here's the abstract:

Scholars have long debated how legal institutions influenced the economic development of societies and civilizations. This Article sheds new light on this debate by reexamining, from a legal perspective, a crucial segment of the Eighteenth and Nineteenth Century economic divergence between England and China: By 1700, English agriculture had become predominantly capitalist, reliant on “managerial” farms worked chiefly by hired labor. On the other hand, Chinese agriculture counter-productively remained household-based throughout the Qing and Republican eras.

The explanation for this key agricultural divergence, which created multiple advantages for English proto-industry, lies in differences between Chinese and English property rights regimes, but in an area largely overlooked by previous scholarship. Contrary to common assumptions, Qing and Republican laws and customs did recognize private property and, moreover, allowed reasonably free alienation of it. Significant inefficiencies existed, however, in the specific mechanisms of land transaction: The great majority of Chinese land transactions were “conditional sales” that, under most local customs, guaranteed the “seller” an interminable right of redemption at zero interest. In comparison, early modern English laws and customs prohibited the redemption of “conditional” conveyances - mainly mortgages - beyond a short time frame. Consequently, Chinese farmers found it very difficult to securely acquire land, whereas English farmers found it reasonably easy. Over the long run, this impeded the spread of capitalist agriculture in China, but promoted it in England.

Differences between Chinese and English norms of property transaction were, therefore, important to Qing and Republican China’s relative economic decline. By locating the causes of key global economic trends in customary property rights, the Article also has ramifications for influential theories of social norm formation and law and development.

Program for Michigan Conference on Race, Law, and History in the Americas

The Program is now available for We Must First Take Account: A Conference on Race, Law, and History in the Americas, April 1-2, 2011, at the University of Michigan. The conference is sponsored by the University of Michigan Law School, the Legal History Consortium (Michigan, Illinois, Minnesota, and Penn law schools), and the American Society for Legal History.

FRIDAY, APRIL 1
The William L. Clements Library, 909 S. University Avenue

Welcome
2:00-2:15 p.m.
Martha S. Jones, University of Michigan, Law School, Department of History & Center for Afroamerican and African Studies

Panel 1: Slavery
2:15-3:45 p.m.

Chair, Martha S. Jones, University of Michigan, Law School, Department of History & Center for Afroamerican and African Studies
Sarah Levine-Gronningsater, University of Chicago, Department of History
Black Children and the Law: Race, Age, and Freedom in New York, 1799-1841
Graham T. Nessler, University of Michigan, Department of History
The Shame of the Nation: The Force of Re-Enslavement and the Law of Slavery under the Regime of Jean-Louis Ferrand in Santo Domingo, 1804-1809
Michael A. Schoeppner, University of Florida, Department of History
Quarantine and Race in the Antebellum South
Comment:
Daniel W. Hamilton, University of Illinois, College of Law
Edlie L. Wong, University of Maryland, Department of English

Keynote Address
4:00-5:00 p.m.
Sherrilyn Ifill, Professor of Law, University of Maryland School of Law
Re-imagining Reparations

Welcome Reception
5:00-6:00 p.m.

SATURDAY, APRIL 2
University of Michigan Law School, 132 Hutchins Hall

Panel 2: The Body
9:00-10:30 a.m.

Chair, Richard Ross, University of Illinois at Urbana-Champaign, Department of History & College of Law
Silvia Capanema P. de Almeida, Universite Paris 13-Nord
Counting the Colors: A Study of the Racial Classifications and Racism in the Early 20th Brazilian Navy
Michelle A. McKinley, University of Oregon School of Law
The Unbearable Lightness of Being (Black): Legal and Cultural Constructions of Race and Nation in Colonial Latin America
Tera Agyepong, Northwestern University Department of African American Studies & School of Law
The Most Vicious and Depraved: The Construction of African American Girls at the Illinois State Industrial School for Girls & Their Exclusion from the Rehabilitative Ideal
Comment:
Sueann Caulfield, University of Michigan, Department of History, Residential College, & Latin American and Caribbean Studies Program
Susanna Blumenthal, University of Minnesota Law School & Department of History

Panel 3: Belonging
10:45 a.m.-12:15 p.m.

Chair, Jelani Jefferson Exum, University of Michigan Law School
Allison Gorsuch, Yale University, Department of History
Before Dred Scott: Citizenship in the Midwestern Territories
Gwen Jordan, University of Illinois-Springfield, Department of Legal Studies
Reconsidering Passing at the Intersection of Racial and Sexist Oppression: The Story of Ida Platt, Esquire 1863-1928
Beth Kressel, University of Michigan Law School
Creating a Community of Equal Public Rights Activists in Reconstruction-era New Orleans
Comment:
Rebecca J. Scott, University of Michigan, Department of History & Law School
Barbara Y. Welke, University of Minnesota, Department of History & Law School

Lunch Plenary
12:30-2:00 p.m.
Juan Perea, Cone, Wagner, Nugent, Johnson, Hazouri & Roth Professor of Law, University of Florida Levin College of Law
Searching for Hercules

Panel 4: Civil Rights
2:15-3:45 p.m.

Sherie Randolph, University of Michigan, Department of History and Center for Afroamerican and African Studies
Millington Bergeson-Lockwood, University of Michigan, Department of History
Resisting the Right to Exclude: African Americans and the Regulation of Public Accommodation in Boston, Massachusetts, 1865-1885
Megan Ming Francis, Pepperdine University, Department of Political Science
The NAACP, Mob Violence, and the Unexpected Breakthrough in Constitutional Law
Nicole Frisone, University of Minnesota, Department of History
Designing the Modern Community: Morris Milgram and Quota Driven Integration in Housing
Comment:
Matt Lassiter, University of Michigan, Department of History
Christopher Schmidt, Chicago-Kent College of Law & The American Bar Foundation

Panel 5: Borders
4:00-5:30 p.m.

Chair, Anthony Mora, University of Michigan Department of History & Program in American Culture
Kristina M. Campbell, University of the District of Columbia David A. Clarke School of Law
Rising Arizona: The Legacy of the Jim Crow Southwest on Modern Immigration Law and Policy
H. Timothy Lovelace Jr., University of Virginia, Department of History & School of Law
Fair Play for William Worthy: Cuba, Human Rights, and Worthy v. United States
Chantel Rodriguez, University of Minnesota, Department of History
The Politics of Health and Citizenship in the Railroad Bracero Program: Mexican Railroad Guest Workers Claims to Workplace Safety Rights, 1942-1947
Comment:
Kif Augustine-Adams, Brigham Young University Law School
William J. Novak, University of Michigan Law School

For additional information about the Program in Race, Law & History at the University of Michigan Law School visit the website.

University Press Blog Links

Dear Readers:

Just a heads up about some blog changes:  I am cleaning up the sidebar to make things easier to find, and to make room for new content.  I plan to delete the section in the sidebar on University Press Book Blogs and Websites.  There are few outclicks to those links, and the content isn't always legal-history related.  So I think it's best to let that go.

If you value those links, please bookmark them now.  I'll wait to delete that section until Wednesday of this week (or later if I'm too busy...).

I'm planning to add a teaching resources section to the sidebar.  If you have links you'd like to share for that, especially to comparative and non-U.S. legal history teaching resources, please let me know in the comments.

Photo source.

Book Review Round-up

Many good books reviewed in the press in the past week or so.  Here are the links:

Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermiel in the New York Review of Books;  GREAT SOUL: Mahatma Gandhi and His Struggle With India by Joseph Lelyveld in the New York Times;  THE FEAR: Robert Mugabe and the Martyrdom of Zimbabwe by Peter Godwin in the New York Times; Adam Smith: An Enlightened Life by Nicholas Phillipson in The New Republic's The Book;

THE BITTER WATERS OF MEDICINE CREEK: A Tragic Clash Between White and Native America by Richard Kluger in the New York Times; AMERICA AFLAME: How the Civil War Created a Nation by David Goldfield in the New York Times;

A Strange Stirring: The Feminine Mystique and American Women at the Dawn of the 1960s by Stephanie Coontz in The New Republic's The Book; When the World Calls: The Inside Story of the Peace Corps and Its First Fifty Years by Stanley Meisler in the Los Angeles Times.

The Survey: Synthesizing Slavery

Few subjects in the survey are more daunting than slavery. How to proceed? For those who focus on primary sources, Hall, Finkelman, and Ely provide a starting point, including an excerpt from the South Carolina Slave Code of 1740, an excerpt from Thomas R.R. Cobb's "Inquiry into the Law of Negro Slavery," and three cases. The first, State v. Mann has achieved canonical status for its meditation, penned by Judge Thomas Ruffin, on the absolute dominion of the slave-owner over the slave. The second, Souther v. Commonwealth, affirms the conviction of a master for the brutal torture and murder of a slave, and the third recounts the rejection of a slave's manumission by a Mississippi court. Yet, are these sources enough to convey the complexity of master/slave relations in the South? Presser and Zainaldin seem to think no, adding excerpts from Kenneth Stampp, The Peculiar Institution (1956); Eugene Genovese, Roll, Jordan, Roll (1976); the autobiography of Frederick Douglass, and 3 slave narratives. While Presser provides more coverage than Hall, the emphasis remains on work done in the 1970s (and earlier), downplaying work conducted in the past decade or so. Yet new work has begun a quiet revolution in the field, casting into doubt the extent to which slave codes and canonical cases like State v. Mann provide a full picture of what was actually going on. For example, in The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South, Laura Edwards makes the claim that "laws regulating slavery existed alongside customary practices" that also played a role in governing master/ slave relations. To prove her point, Edwards recovers stories of slaves beating their masters, stealing their goods, and traveling freely between plantations, indicating that the "power of the master" to quote from Judge Thomas Ruffin, was far from "absolute." In fact, Edwards even recovers the story of one of Thomas Ruffin's slaves, Jesse, who leaves his master's plantation and goes on a spending/drinking spree that lasts several days, violating "any number of laws" in the process. Such findings indicate that masters and slaves entered into what Edwards calls "customary arrangements" that frequently defied formal law, a position supported by other new work, including Anthony E. Kaye's Joining Places: Slave Neighborhoods in the Old South, Christopher Waldrep's Roots of Disorder: Race and Criminal Justice in the American South, 1817-80, and Ariela Gross's Double Character: Slavery and Mastery in the Antebellum Southern Courtroom. Recovering this customary, unwritten law of slavery seems to be increasingly important, prompting inclusions of new work into the old canon.

Photo credit: UNC Press

Weekend Round-up

• Around the web, there are many commemorations of the 100th anniversary of the Triangle Shirtwaist Factory Fire. This website, from Cornell's ILR school, is the best resource I've found for learning about the fire (lots of primary sources and other goodies). In terms of commentary, you can find an interesting series of posts at the New York Times City Room blog, and a thought provoking article at Dissent, by Greg Smithsimon (Brooklyn College). The UNC Press Blog has also posted a short comment by Jennifer Guglielmo (Smith College), whose recently published book is on a related topic (Italian women's resistance and radicalism in New York City, 1880-1945). (KT)
  

• In a guest post at Balkanization, Princeton graduate student Emily Zackin (political science) argues that, contrary to conventional wisdom, "American history is . . . replete with successful campaigns to create constitutional rights to protective and redistributive governance." To find these rights, we must look in U.S. state constitutions. You can read the full post here.

• The Historical Society has announced its 2012 conference. The theme will be "Popularizing Historical Knowledge: Practice, Prospects, and Perils." The Call for Papers is here.
  

The Weekend Round-up is a weekly feature compiled by all the Legal History bloggers.

Tomlins, Freedom Bound; Foner, The Fiery Trial; and Dubow, Ourselves Unborn win Bancroft Prize

Christopher Tomlins, Chancellor’s Professor of Law at UC-Irvine Law School, and Research Professor Emeritus at the American Bar Foundation, Chicago, has been awarded the 2011 Bancroft Prize for his book, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America 1580-1865 (Cambridge University Press 2010).  Other winners are Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery, and Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America.  The Bancroft Prize is awarded annually by the trustees of Columbia University for a book of exceptional merit in the fields of American history, biography, and diplomacy.

Congratulations to all!

White, Recovering the Legal History of the Confederacy

Recovering the Legal History of the Confederacy has just been posted by G. Edward White, University of Virginia School of Law.  Here's the abstract:

Constitution of the Confederate States of America

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass.

The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order of the Confederacy that was erected after secession. If focuses on two characteristics of that legal order: its architecture, including the drafting of the Confederate Constitution, the establishment of Confederate district courts, and the failure of the Confederate Congress to organize a Supreme Court for the Confederacy; and the central legal issues with which the Confederate government was preoccupied. The Article concludes that in the minds of contemporaries, the outcome of the Civil War and the dissolution of the Confederacy that accompanied it represented a transformative phase in American history, in which the way of life that the Confederacy symbolized was confined to oblivion.

Douglas, "God and the Executioner"

Davison Douglas (William & Mary Law School) has posted to SSRN "God and the Executioner: The Influence of Western Religion on the Use of the Death Penalty," published in The William & Mary Bill of Rights Journal (2000).

Here's the abstract:

The attitude of religious groups towards the use of capital punishment has ebbed and flowed throughout history. This essay contains an historical review of religious attitudes towards capital punishment and the influence of those attitudes on the state’s use of the death penalty.

The Christian Church has expressed strong support for capital punishment throughout most of its history, but in recent decades, opposition to the death penalty within the Catholic Church and many Protestant groups has emerged. The same is true with Judaism.

Despite this recent abolitionist sentiment from an array of religious institutions, there has been a divergence of opinion between the "pulpit and the pew" as the laity in the United States continues to support the death penalty in large numbers. This divergence is due in part to the declining influence of religious organizations over the social policy choices of their members. Consequently, the fate of the death penalty in the United States will most likely be resolved in the realm of the secular rather than the sacred.

Hat tip: bookforum

Parker, Common Law, History, and Democracy in America, 1790-1900

Common Law, History, and Democracy in America, 1790-1900: Legal Thought before Modernism by Kunal Parker has just been published by Cambridge University Press.  Here's the book description:

This book argues for a change in our understanding of the relationships among law, politics, and history. Since the turn of the nineteenth century, a certain anti-foundational conception of history has served to undermine law's foundations, such that we tend to think of law as nothing other than a species of politics. Thus viewed, the activity of unelected, common law judges appears to be an encroachment on the space of democracy. However, Kunal M. Parker shows that the world of the nineteenth century looked rather different. Democracy was itself constrained by a sense that history possessed a logic, meaning, and direction that democracy could not contravene. In such a world, far from law being seen in opposition to democracy, it was possible to argue that law - specifically, the common law - did a better job than democracy of guiding America along history's path. 

 And the blurbs:

"This is a wide-ranging and highly original treatment of law and history in nineteenth-century America. Parker incorporates into his story many new texts that have not been examined in this context before and re-examines familiar texts with a fresh eye and novel interpretations. Common Law, History, and Democracy in America, 1790-1900, is an illuminating and insightful work, offering an important contribution to the growing literature on historically and socially minded jurisprudence." - Robert Gordon, Yale Law School

"Parker has written an original and stimulating work of intellectual history. By insightfully analyzing how different historical sensibilities and temporalities interacted in nineteenth-century America, he succeeds in revising not only the standard narrative of American legal history, but also our understanding of nineteenth-century historical consciousness." - Dorothy Ross, Arthur O. Lovejoy Professor Emerita of History, Johns Hopkins University 

The table of contents and more info is here.   The press, unfortunately, has set the price quite high, so you should nudge your library to make sure they purchase a copy.  With library budget cutbacks, don't assume your library will have a copy unless they hear from you.

The Survey: Grand Theory?

What role can/should grand theory play in the teaching of legal history? In the foundational course on historiography at Duke, History Professor Malachi Hacohen assigned Braudel, Weber, and Marx; pushing us to analyze historic events through the analytics of each. While it is certainly possible to teach and write legal history without mentioning any of the above, I’ve found that they can provide helpful organizing principles, useful pedagogical counterpoints, not to mention discussion starters. Take Marx. In 1848, Marx posited that all history is the story of class struggle. In lecture, I argue that this made him Madisonian. After all, James Madison also argued that class, or what he termed the “unequal distribution of property,” posed the primary source of societal struggle, or “faction” (see Federalist 10). Of course, Madison and Marx disagreed on the prescription, one lobbying for a society without property and the other for a property-based society, but this is precisely where things get pedagogically interesting. For the remainder of the course, I can employ Marx as a type of Greek chorus, constantly reminding students that American law’s Whiggish expansion of rights and liberties may in fact be a grand tragedy, little more than a series of crabbed “bourgeois” concessions to preserve economic inequality – and capitalism (note: even though Marx underscores American law’s deep commitment to inequality, I try to keep the normative commentary to a minimum, leaving students to decide who is more accurate/sympathetic). To keep the theoretical thread alive, I weave in actual events, including Engels’ study of Kentucky Shakers in 1844 (which convinced him that communism could actually work), Marx’s letter to Lincoln immediately following the Civil War (celebrating it as a proletariat victory), the role of socialists in the Strike of 1877, the role of anarchists at Haymarket in 1886, Christopher J. Tiedemann’s fear of communist insurgency in his canonical work on the police power, the trials (literally) of Eugene V. Debs, the Red Scare of 1919, and so on, culminating in the life and death struggle between the U.S. and the U.S.S.R. during the Cold War. It’s not exactly Marxist history, to be sure, but a nod to grand theory nevertheless. Any Braudelians out there?

Photo credit: International Institute Social History

Villazor on "The Other Loving"

Rose Cuison Villazor (Hofstra University School of Law) has posted "The Other Loving: Uncovering the Federal Regulation of Interracial Marriages." The article is forthcoming in the New York University Law Review (2011).

Here's the abstract:

This Article seeks to fill a gap in the history of the regulation of interracial marriages. The conventional historical account of American antimiscegenation laws locates states as the only sources of marriage inequality. Completely overlooked in the narrative are the ways in which the federal government also restricted racially mixed marriages in the decades before 1967, when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia. Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages between White American soldiers and local Japanese women. These laws also converged to prevent those interracial couples who were able to get married from living in the U.S. together. Accordingly, this Article claims that the confluence of immigration, citizenship and military laws functioned as a collective counterpart to state antimiscegenation laws.

By unearthing the federal government’s role in restricting mixed marriages, this Article has three aims. First, the Article reveals that proscriptions against interracial marriages were far more pervasive than previously acknowledged. Second, it analyzes how federal laws and administrative regulations that were not designed to prohibit interracial marriages nevertheless operated to prevent mixed race relationships. Third, the Article uses this neglected history to demonstrate why we should be critical of federal involvement in the regulation of marriage. In light of contemporary cases challenging Congress’s discriminatory treatment of same-sex married couples under the Defense of Marriage Act (DOMA), this Article offers prescriptive insights on the federal government’s authority to determine who may get married and what privileges and benefits should be accorded to married couples.

Hat tip: The Faculty Lounge

Walsh to Speak on the Georgetown University Gay Rights Case

Walter J. Walsh, University of Washington School of Law, will speak on Monday, April 18 about his book-length analysis of the opinion in Gay Rights Coalition v. Georgetown University, a 1987 decision that, as an announcement explains,

was a forerunner of today's debates about the conflict between religious liberty and gay equality norms. The case arose when gay student organizations accused the University of violating the D.C. anti-discrimination law when it refused to grant them registered student organization status. In an opinion by Judge Julia Cooper Mack, the D. C. Court of Appeals ruled that the University could not be forced to grant the gay group formal recognition, but compelling it to grant them the same tangible benefits as all other RSOs. 536 A.2d 1. At the time of the decision, Professor Walsh clerked for Judge Mack.

Walsh will speak in Professor Nan Hunter's Sexuality and Law class from 1:20 to 3:20 pm in Room 201 of McDonough Hall at the Georgetown University Law Center, 600 New Jersey Ave. NW., Washington, DC.

New Blog: Canadian Legal History Blog

A hearty welcome to the Blogosphere to the Canadian Legal History Blog, edited by Jim Phillips and Mary Stokes. The editors explain:

We hope the blog will prove a useful place for the wonderful community of legal historians we have in Canada. It won't be the place to go to discuss the meaning of the second amendment of the US constitution, or medieval pleading and practice, but we want it to be where we post useful announcements and discuss aspects of the unique and exciting legal history of our country.

Teaching the Founding: Pauline Maier on BookTV

C-Span's BookTV program recently featured historian Pauline Maier (MIT--history), the expert on the Revolutionary Era and the author, most recently, of Ratification: The People Debate the Constitution, 1787-1788. For three hours--yes, three hours--Professor Maier spoke and took calls about a range of topics, many of which are of interest to legal historians. She discussed the Glorious Revolution, the American Revolution, the Declaration of Independence, the Founding Fathers, including lesser-known but important ones, the Constitution and "originialism" as an method of interpretation. She also discussed teaching about all of these subjects and debunked myths about the Founding and the Founding Fathers. I found the discusssion intriquing on its own terms, as well as because history-department historians and law school-historians sometimes speak in different ways about some of the topics listed above. The show is here.

Hatcher reviews Epp, "Making Rights Real"

The Law & Politics Book Review has posted a review of Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (University of Chicago Press, 2010).

Laura J. Hatcher (Department of Political Science, Southern Illinois University) introduces the book as follows:

As a professor who teaches administrative law and politics and is interested in the intersection of administrative law and constitutional litigation, I am always in search of theoretically-engaging and empirically grounded research for my upper division seniors and graduate students that is also readable. Charles Epp has produced such a work. In lucid prose, Epp develops an argument for understanding administrative change that takes into account pressures from within bureaucracies as well as from outside them. With a combination of interviews, content analysis of professional publications and court cases, as well as original survey data, Epp also gives his readers an excellent example of multimethod research that is driven by the question rather than a specific methodology. Through a close comparison of three case studies – policing, sexual harassment, and playground safety – Epp demonstrates that dynamic interactions among bureaucrats and activist reformers produced a framework for accountability that both proliferated throughout the country and has remained surprisingly resilient. In short, this is a book that is a must-read not only for administrative law and public administration scholars, but also for anyone interested in organizational change, social change, and litigation as a political process.

Though trained as a political scientist, not an historian, Epp (University of Kansas) has advanced an argument about change over time. Hatcher describes Making Rights Real as a story about the emergence of "legalized accountability" across different policy areas in the late 1970s and 1980s.

You can read the full review here.

McKoski on David Davis's Judicial Ethics

Ray McKoski, a retired Illinois Circuit Judge, has posted Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from "Big Judge Davis," which also appears in the Kentucky Law Journal 99 (2010-11): 259. Here is the abstract:

The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.

The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.

Image credit