Securities Regulation at the Movies

At 1:00 tomorrow the SEC Historical Society webcasts an intriguing session, Silver Screen: How Films Shape Public Perception of Financial Regulation:

Films - from 1914's "The Good-for-Nothing" to 2011's "Limitless" - have helped to shape how we view financial regulation. The cinema can influence our image of the capital markets, what we recognize as financial fraud, and what we expect the appropriate roles for regulators to be.

Join Professor David Lipton, Columbus School of Law, The Catholic University of America; J. Bradley Bennett, FINRA; and John Reed Stark, Stroz Friedberg LLC as they share their insights and show film clips on how the cinema portrays - accurately or not - the regulation of the capital market system....

The program will look at scenes from such films as "Being There," "Boiler Room," "Fletch," "The Godfather Part II," "The Other Guys," "Rogue Trader," "Too Big to Fail" and "Wall Street." Because of copyright considerations, the live broadcast will contain the only showing of these clips.

Silver Screen will video broadcast live on Tuesday, November 1st at 1:00 pm ET here and will be free and accessible worldwide without prior registration.

Contract Law in America: The Anniversary Edition

Last week’s mail brought a copy of a new edition of a legal classic, Lawrence M. Friedman’s Contract Law in America: A Social and Economic Case Study (2011).  My copy from Quid Pro Books is a very serviceable paperback, with embedded references to the pagination in the University of Wisconsin Press’s original edition.  The book will also soon be available as a download for your Kindle, Nook, iPad or other digital device from Amazon, Barnes & Nobles, and other vendors.

Stewart Macaulay summarizes the book in his foreword, which expands upon his contribution to a recent festschrift for his former colleague at Wisconsin.  Friedman, Macaulay writes, “looked at the contracts cases coming before the Supreme Court of Washington at three periods: (1) the organization of the Wisconsin Territory to the Civil War (1836-1861); the Progressive era in the first two decades of the twentieth century (1905-1915); and (3) a time ten years after World War II (1955-1958).”  He found that Wisconsinites did not use contract disputes to bring major economic issues to the state supreme court.  Instead, they preferred to settle their disputes or to resolve them in other, nonjudicial ways.  Legislation took many other classes of disputes (such as employment and trade regulation) out of “the domain of pure common law contract.”  The Wisconsin Supreme Court resolved the remainder not by applying “hard, abstract and formal contract law” but by employing “malleable concepts such as waiver and estoppel, and substantial performance.”  Ultimately, the court “sought what it saw as just results on the facts of the particular case before it.”

The blurbs make the case for the new edition:

“Contract Law in America is one of the most important works in the entire scholarly literature on American legal history. Friedman took a subject that had been treated by researchers in exclusively doctrinal terms, bringing an entirely new perspective that revealed how contract law has been at the very center of how we need to understand ‘law in action’ in key periods of American development. In the methodology that Friedman applied, in the brilliance of the analysis, and in the new light his book cast on the full dimensions of governance and law in the United States, this book broke new ground. It remains today, still, required reading for any student of legal history.”
— Harry N. Scheiber
Stefan A. Riesenfeld Professor of Law and History, University of California at Berkeley

“The republishing of Contract Law in America is a very welcome event. For years this has been one of the neglected classics of legal literature. Friedman did what the Legal Realists only dreamed of doing—he studied in-depth what kinds of contracts cases state courts had decided over time, and found grand patterns in the decisions. As real-world contracts dropped out of common law litigation and into private ordering and specialized regulation, courts abandoned abstract formal rule-making for particularized equitable resolutions. In the present moment, more receptive to social and empirical studies of law than was 1965, Friedman’s book should finally find the audience it deserves.”
— Robert W. Gordon
Professor of Law, Stanford University

“Contract Law in America remains a classic examination of the relationships among legal doctrine, legal culture, and the shifting frameworks of American business enterprise. Amid the current academic re-engagement with questions of political economy, we can only hope that more historians, social scientists, and legal scholars acquaint themselves with Friedman’s probing analysis of how law did, and did not, influence American commerce, and how commerce did, and did not, influence American law.”
— Edward J. Balleisen
Associate Professor of History, Duke University

After encomia like those, a further endorsement is unnecessary, but I’ll add mine anyway.  Chapter 4, “Contract Law and the Legislature,” is essential reading for any legal historian of the administrative state.  Readers who considered only the book’s title might not expect to find a remarkably comprehensive, concise, and lively summary of the rise of the regulatory state in Contract Law in America.  But this was a book conceived at the University of Wisconsin Law School when Willard Hurst was its intellectual leader, and Friedman understood that “the structural framework within which contractual behavior took place was created by legislation and legislatively created agencies.”  In Chapter 4 he wastes little time on statutes that were “the stock-in-trade of every common law jurisdiction,” such as the Statute of Frauds, usury laws, and the Uniform Sales Act, but lingers over those that illustrate the stages of Wisconsin’s historical development.  Thus he recounts the luxuriant growth of the homestead exemption in the nineteenth century–including a statute, surely adopted at the urging of the bar,  exempting two hundred dollars' worth of the “library and implements of any professional man”– and attributes it to Wisconsin’s desire to promote economic growth.  “The legal enforceability of market transactions in Wisconsin existed, or was allowed to exist,” Friedman wrote, “only with respect to surplus capital–which was scarce.”  As a result, potential settlers knew that an economic catastrophe would not leave them without the means to recover.

More generally, Friedman finds that in their frontier days Wisconsites preferred a self-enforcing style of regulation, such as a 10-percent bounty for fishing wayward logs out of the state’s rivers.  This he attributes to a brute socioeconomic fact:

Twentieth-century government depends on heavy taxes and a large, trained corps of government professionals.  Frontier Wisconsin had neither.  Its citizens were too poor to be taxed heavily, and without substantial taxes, the state could not maintain a large staff of employees.  These facts were more important, perhaps, in explaining why government did not do as much as it might, than any theories about government’s proper role in the economy.

As you might expect from the forgoing, things get even more interesting once Wisconsinites become sufficiently wealthy to tax themselves and sufficiently appreciative of their social interdependence to want to do so.  For a Hurstian like Friedman, the resulting legislation was contract law.  Thus, the Standard Fire Insurance Policy of 1895 was “the high-water mark of forced conformity of contract," and food, health, and labor laws mandated terms in other contracts.

Even more unexpected is the space Friedman gave to occupational licensing, which legal scholars had more or less ignored since Ernst Freund’s Administrative Powers over Persons and Property (1928).  Not only did licensing laws construct the markets in which contracting took place; by Friedman’s third period, they backstopped the interests of consumers.  After noting that “an auto dealer’s license might be revoked for willful ‘failure to perform any written agreement with any retail buyer,’” he brought his point home with a dagger thrust to one of a doctrinally oriented Contracts scholar’s more sacred cows.  “Holmes said, in 1897, that ‘The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it–and nothing else,’” Friedman wrote.  “But the legislature did not read Holmes.”

Macaulay concludes his foreword with a tip for reading his friend and colleague: “If you keep in mind Friedman’s sense of humor well mixed with anger at stupidity that hurts people, you can understand him better.”  Of the many reasons to discover or rediscover Contract Law in America, the chance to observe that sensibility at work is among the best.

"This Is Just to Say": This Week in the Book Pages

This week the New Republic covers Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences (University of Chicago Press), by political scientist Kevin J. McMahon. Here's a glimpse of McMahon's argument, courtesy of reviewer Eric Posner:

In looking for justices, Nixon focused on how their appointment and performance would help his own electoral prospects. Thus, he cared about appointing a conservative white southerner, so as to appease the south; a Catholic, so as to make inroads among socially conservative working-class Americans of Italian, Irish, and Polish descent who would later become Reagan Democrats; and a woman. And after a few misfires, Nixon realized that he could not appoint a complete idiot. Nixon also sought a justice who would support his anti-busing and pro-law-and-order positions—and yet the overall picture, in McMahon’s telling, is one in which Nixon cared about ideological conformity but only with respect to these two issues (as opposed to other hot-button issues like pornography, speech, and religion) and not very strongly.

Also from TNR:

• A review of Illustrating Empire: A Visual History of British Imperialism (Bodleian Library, University of Oxford), by Ashley Jackson and David Tomkins. It is not only a "lovely and informative book, . . . full of images that navigate nearly every aspect of British imperialism," but also "an implicit rebuke to the thesis . . . that a huge percentage of British citizens had no idea about the scope of the British Empire until nearly the end of the nineteenth century." 

• A review of Corey Robin's The Reactionary Mind (mentioned previously here and here). Reviewer Alan Wolfe is "tempted by [Robin's] analysis" and convinced that his "arguments deserve widespread attention," but doubts that this book will become "part of our national conversation."
  

• A review of the latest in what Jack Rackove calls "Founders Chic," James Brookhiser's James Madison (see below).

In the book review pages of the Nation, you'll find a review of George F. Kennan: An American Life (Penguin Press), by John Lewis Gaddis. Here's the lowdown, from reviewer Andrew Bacevich:

Enjoying unprecedented access to all Kennan’s papers, having interviewed Kennan and members of his family, Gaddis has taken the measure of his man. Yet even while insisting resolutely on his subject’s claim to greatness, Gaddis succeeds chiefly in revealing Kennan’s frailties and foibles. The man in full turns out to have been all too human.

Also reviewed: the new William Carlos Williams biography (here).

 From this week's New York Times:

• Kevin Boyle offers his take on Tony Horwitz's Midnight Rising: John Brown and the Raid that Sparked the Civil War (Henry Holt) (mentioned in last week's round-up, here). "[I]t’s impossible to read this fine book," Boyle notes, "without thinking about the modern-day Browns, soldiers of a vengeful God, seeking righteousness in a fierce burst of violence, justice in the shedding of blood."

• LHB readers are likely well acquainted with one James Madison. For those who aren't, consider the new biography by Richard Brookhiser. Reviewer Richard Beeman has some kind words for it. (For a balanced but less charitable view, see the New Republic review, above, by Jack Rackove.)

• The NYT also offers a long review of two books on Pauline Kael, an American movie critic who "transformed the sensibility and standards of mainstream pop culture criticism in America — mostly for the better, despite her bullying personality (in print and in life), her sloppy professional ethics and her at times careerist escapades in self-dramatizing contrarianism."  Follow the link for more on Pauline Kael: A Life in the Dark (Viking), by Brian Kellow, and The Age of Movies: Selected Writings of Pauline Kael (Library of America), edited by Sanford Schwartz.  Book excerpts are here and here, respectively.

The Los Angeles Times covers two authorized biographies: Walter Isaacson's biography of Steve Jobs and Allister Sparks and Mpho Tutu's biography of Desmond Tutu. According to the first review, "Isaacson gives the Steve Jobs fairy tale a swift, full, and less than utterly flattering airing." The Tutu biography, reviewer Scott Kraft writes, is "surprisingly dry and dutiful," and, in essence, "a high-gloss keepsake." 

In the latest installment of the London Review of Books:

• Pankaj Mishra reviews Civilisation: The West and the Rest (Allen Lane), by Niall Ferguson (open access, here) (also reviewed this week in the Wall Street Journal, here).

• Bernard Porter reviews The Opium War: Drugs, Dreams and the Making of China (Picador), by Julia Lovell (subscribers only, here).

 A new issue of History Today is out. Scroll down to see the reviews section.

Weekend Round-Up

• Richard A. Epstein reviews David’s Bernstein’s Rehabilitating Lochner in the Claremont Review of Books.

• A finding guide to U.S. Legal History Research Resources compiled by Vic Garces, a Reference Librarian at the University of Minnesota Law Library, appears here.

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

Tomlins's Freedom Bound: The WMQ Symposium (et al.)

A review by Stuart Banner, UCLA Law, in the William & Mary Quarterly of the Bancroft-Prize-winning Freedom Bound by UC Irvine's Christopher L. Tomlins appears here.

Update
Since posting, I've learned from Richard Ross, Illinois Law and History, that Professor Banner's essay is part of a “critical forum” in the Quarterly on Tomlins's book.  It originated as an author-meets-readers session at "The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas,” a conference Professor Ross and Tamar Herzog (Stanford History) organized as the 2010–11 offering of the Newberry Library's Symposium on Comparative Early Modern Legal History.

 The other contributors to the WMQ forum (published in this on-line edition of the October 2011 issue) are Julia Adams (Yale Sociology); Tamar Herzog and Richard Ross, Paul Eiss (Carnegie Mellon Anthropology and History); and Richard White (Stanford History).  Chris Tomlins responds.

A Further Update
Peter Onuf, Virginia History, has published a comprehensive review of Freedom Bound in the November 2011 issue of the Journal of Legal Education.  The October 2011 issue of the American Historical Review has another review, as well as reviews of books by Alison LaCroix, Kunal Parker, and Barbara Welke.  (Or so I'm told; my copy hasn't found me yet.)

Four New Books from the Osgoode Society

News of a joint book launch held on October 26 by the Osgoode Society for Canadian Legal History appears on Slaw.  The four books were:

The Lazier Murder: Prince Edward County, 1884
by Robert J. Sharpe, Justice of the Court of Appeal for Ontario.
Published for the Osgoode Society by the University of Toronto Press.

Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax
by Philip Girard, Professor, Schulich School of Law, Dalhousie University.
Published for the Osgoode Society by the University of Toronto Press.

Dewigged, Bothered and Bewildered: British Colonial Judges on Trial
by John Mclaren, Emeritus Professor of Law, University of Victoria.
Published for the Osgoode Society with the Frances Forbes Society by the University of Toronto Press.

Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society
by Lesley Erickson, Professor, Department of History, University of Calgary
Published for the Osgoode Society by the University of British Columbia Press.

Shulman on Three Books on Originalism and the Religion Clauses

The Siren Song of History: Originalism and the Religion Clauses is a review essay by Jeffrey Shulman, Georgetown University Law Center.  It appears in the Journal of Law and Religion, Vol. 27, p. 101, 2011.  There is no abstract on SSRN, but here are the books under review:

• The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5;

• Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; and

• God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7.

"Denaturalizing Citizenship" symposium: Smith, Tushnet respond

Issues in Legal Scholarship, a faculty-edited UC Berkeley Law journal, has just published an issue on "Denaturalizing Citizenship," edited by Leti Volpp.  It is a symposium on Linda Bosniak's The Citizen and the Alien: Dilemmas of Contemporary Membership (2006) and Ayelet Shachar's The Birthright Lottery: Citizenship and Global Inequality (2009).

LHB readers may be particularly interested in the contributions by Rogers Smith and Mark Tushnet. Here are the abstracts:

The Political Challenges of Bounded, Unequal Citizenships, Rogers M. Smith (University of Pennsylvania)

The Citizen and the Alien and The Birthright Lottery are outstanding works by scholars well informed on both law and moral philosophy. Their enterprises can be constructively carried further by increased engagement with the politics shaping modern nation-state citizenships. Bosniak’s seminal analysis of the inconsistencies in immigration and citizenship policies can be extended by further engagement with the range of arguments used to defend restrictively bounded national citizenships. Shachar’s bold and original recommendations for lessening the trans-national inequalities of the modern nation-state system might be furthered by building also on obligations stemming from the mutually constitutive past and present relationships between particular richer and poorer states.

Creedal Citizenship, by Mark Tushnet (Harvard University)

This Essay sketches the idea of creedal citizenship, where citizenship results from a person’s agreement with a set of principles that define the nation of citizenship. Some nations already include elements of creedal citizenship in their self-definitions, and the common practice of requiring some degree of civic knowledge as a predicate for naturalization reflects some ideas associated with creedal citizenship. But, in its pure form, creedal citizenship would disconnect citizenship from territory entirely, yet without moving to “world citizenship” or requiring open borders. Creedal citizenship is of course not a realistic policy option anywhere today, but exploring its conceptual contours may illuminate some areas of current controversy.

American Law and Lawyers

Some years ago, I was very pleased to discover American Law and Lawyers, a legal newspaper of national scope and a particular interest in the federal regulatory state during its years of publication, 1939 to 1947.  The University of Minnesota’s Law Library had a complete run that it was willing to lend.  Turning the pages of the bound copies took some time, but I learned much that I otherwise would have missed.

Now Hein-on-Line has mounted a complete and word-searchable run of ALL in its law journal library.  If you work in this period, have access to that database, and have not previously consulted this source, check it out.

Lobban on Legal Theory and Judge-Made Law in England, 1850-1920

Legal Theory and Judge-Made Law in England, 1850-1920 has just been posted by Michael Lobban, Queen Mary, University of London. It is forthcoming in Quaderni Fiorentini vol. 40 (2011) pp. 553-94.  Here's the abstract:

Many nineteenth century jurists agreed that John Austin’s separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin’s tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin’s strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way.

The article ends by briefly looking at three jurists who accepted Austin’s analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W. Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.

Ghachem on Slavery and Prosecuting Torture in Pre-Revolutionary Saint-Domingue (Haiti)

Prosecuting Torture: The Strategic Ethics of Slavery in Pre-Revolutionary Saint-Domingue (Haiti) is a new article by Malick W. Ghachem, University of Maine School of Law.  It appears in the current issue of the Law and History Review (Vol. 29, No. 4, pp. 985-1029, 2011), which is a special issue on  Law, Justice and Slavery.  Only the abstract is on SSRN:

This article tells the story of the prosecution of a master for the torture of two female slaves suspected of using poison in pre-revolutionary Saint-Domingue (Haiti): the so-called Lejeune affair of 1788. The case illustrates how a terror-torture nexus, rooted in an early modern anxiety about the crisis-prone nature of slave societies and fueled by deep-seated planter fears of a slave revolution, complicated the administration of plantation life in this Old Regime French colony. Slave law assumed the precautionary task of counteracting the tendency towards planter brutality that inhered in the master-slave relationship, purportedly demonstrating to slaves that they too enjoyed the protection of royal authority. In response, the defendant in the case argued that his prosecution would only further fan the flames of slave resistance. Dramatizing as it does the development of a strategic or commonwealth ethics of colonial administration, the Lejeune affair underscores the interpretive limits of the standard, functionalist definition of torture as a technique used by state actors to investigate crime. And it suggests that colonial slave law, by the very act of encountering its own preemptive limits, generated ideological pressures that militated against (and not only for) the continuation of plantation slavery.

Institute for Constitutional History Seminars: Warren Court Legacy, Revolutionary Origins of American Constitutionalism

Another announcement from the Institute for Constitutional History: next semester it will offer two new seminars for advanced graduate students and junior faculty.

Equal Justice Under Law: The Enduring Legacy of the Warren Court, 1953-1969, led by Stephen Wermiel (American University Washington College of Law).

Program Content:

This seminar will examine the Warren Court of the 1950s and 1960s, stressing politics, doctrine, and the strong judicial personalities of the period. Topics covered will include the Court’s transformative role in civil rights and civil liberties, the rights of the accused, the electoral process and access to the courts.  The seminar will explore both the politics of the Warren Court and the Warren Court’s impact on the politics of the nation.

Logistics:

Thursday evenings, 6:00–8:00 p.m., February 9 and 23, March 1, 8, 22 and 29.  The seminar will meet in Room 415 of Burns Hall at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

The Revolutionary of Origins of American Constitutionalism, led by Pauline Maier (Massachusetts Institute of Technology) and R. B. Bernstein (New York Law School).

Program Content:

This seminar will explore the origins of American constitutionalism and law in the Anglo-American past and the arguments and achievements of the revolutionary period (roughly 1764-1789).    Its six sessions will examine the ideology and organizational forms of the resistance to Britain, look closely at the first state constitutions (the world’s first written constitutions) and the issues they raised and to some extent resolved, then turn to the Articles of Confederation, the Federal Convention, the Constitution, state ratification debates, and the contributions of the First Federal Congress in fleshing out the new constitutional system.   Although the assigned readings will include prominent secondary works, the seminar will focus on critical documents of the time including the resolutions of the Sons of Liberty (1766), state non-importation associations (1767-70), and the first and second Continental Congresses (especially between 1774 and 1776); Thomas Paine’s Common Sense and John Adams’s “Thoughts on Government” (1776); the first state constitutions, including those of Virginia, Pennsylvania, New York, and Massachusetts; the Articles of Confederation; Madison’s “Notes of Debates” in the Federal Convention; the Constitution of the United States; selections from the state ratification debates; the Judiciary Act of 1789, and the twelve amendments to the Constitution that Congress recommended in September 1789 (of which ten were enacted and eventually became known as the “Bill of Rights”). 

Logistics:

Friday afternoons, 3:00–5:00 p.m., February 17 and 24, March 2, 9, 16 and 23. The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City.

Here's the information about the application process and cost:

Application Process:

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email until December 1, 2011.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email.

Additional Information:

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Richardson on The Origins of African-American Interests in International Law

Henry J. Richardson III, Temple University - James E. Beasley School of Law, has posted his 2010 Mitchell Lecture, delivered at the University of Buffalo: The Origins of African-American Interests in International Law.  It appears in the Buffalo Human Rights Law Review, Vol. 17, No. 1, 2011 .  Here's the abstract:

In exploring contemporary lessons to be drawn from the evolution of African American interests in international law, what can History teach contemporary policy makers and local people? Working through international legal history, African American history, and international law through the New Haven School, the historical voices of African Americans are clarified to identify what these subordinated people demanded of international law for their own freedom. Those voices demanded good governance in freedom, and made claims to some better outside law giving them the right to freedom that they knew they had, as against the local law of the territory which defined their enslavement. Beginning with the slave trade - and slave resistance as its inherent synonym - from Africa into the Atlantic Basin, slavery in North America was a corner of the international slave system, and Black claims to outside law against it are explored. Claims to better outside law in speech, agency, and action were defined by Black men and women over the generations by their normative opposition to slavery and racial oppression. They comprise the foundation of Black interests in international law, where the latter offered potential for, but was not a constant source of better outside law. Thus race and the rights of African-heritage people who became African Americans have always been international questions, and these men and women historically participated in and affected international politics as part of their survival struggles. This history becomes even more clear through the actions and voices of African Americans in the American Revolution, implicitly the Constitutional Convention, the forced westward slave migration into Mississippi territory, slave revolts and other consequences of the Haitian Revolution, and the War of 1812.

Subordinated peoples can have a jurisprudence on which they act without a dominating people's or group's permission. Contemporary lessons from the history of African American interests in international law can be drawn relative to two policy categories: first, lessons for African Americans on the need to more completely recognize and organize to act on their international law interests based on contemporary examples and successes; and second, lessons for expanding the understanding of the US treaty-making process from the existence and inclusiveness of such African American interests. The final lesson from such African American interests goes to their implications for the contemporary governance of America as a pluralistic nation. That governance and its scholarship must now incorporate the trend that African Americans and every minority and coherent disadvantaged group in the American process has, or will define, their own interests in international law in a globalized world, in large part for rights-protective reasons within the United States. The implications of this trend are discussed, and the resulting challenge to the American academy is framed, with general optimism.

The Methodology of Originalism

[We have the following announcement from our friends at the Institute for Constitutional History.]

The Institute for Constitutional History, along with The George Washington Law Review, is proud to announce a symposium commemorating the 100th anniversary of Farrand’s Records of the Federal Convention [on November 3-4, 2011].  The keynote address, "The Methodology of Originalism," will be presented by Associate Justice Antonin Scalia of the Supreme Court of the United States.  Panel discussions will feature prominent federal jurists and academics.

We would like to invite you to attend the Symposium.  In order to do so, you must register to attend one of the symposium's events.   Information about the Symposium, including the panel discussions and registration information, can be found here.  Please note, however, that Justice Scalia's keynote address is a ticketed event.  Those who wish to attend Justice Scalia's address must enter a ticket lottery.  The registration deadline is October 28.

[This strikes me as quite a well-conceived event.  Harvard Law's John Manning will be handling the questions and answers for Justice Scalia.  There's some solid and interesting historical papers, such as Mary Sarah Bilder on "How Bad Were the Official Records of the Convention?" and Maeva Marcus’s "The Effect (or non-effect) of Founders on the Bench During the Early Republic."  Several of the law professor's papers are promising, including Jamal Greene’s “The Persistence of "Original Intent" as a Description of Originalist Interpretation” and John O. McGinnis’s “Thayer's View of Judicial Review and the Founding.”  Among the speakers scheduled for the Judges panel are Frank Easterbrook and Diane Wood.

[For more information, please contact the Institute for Constitutional History at (202) 994-6562 or
icsgw@law.gwu.edu]

Federal Judges Revealed

In a search for useful secondary sources on federal judges, I've turned up Federal Judges Revealed (Oxford, 2008) by

William Domnarski, a practicing lawyer and author of two other books on federal judges.  The most recent book, reviewed in Oral History Review (Winter/Spring 2011), the George Washington Law Review, and Federal Lawyer, may be of interest to blog readers.  The publisher's description of the book follows.

The power and influence of the federal judiciary has been widely discussed and understood. And while there have been a fair number of institutional studies-studies of individual district courts or courts of appeal--there have been very few studies of the judiciary that emphasize the judges themselves. Federal Judges Revealed considers approximately one hundred oral histories of Article Three judges, extracting the most important information, and organizing it around a series of presented topics such as "How judges write their opinions" and "What judges believe make a good lawyer."

Here are excerpts from two reviews.

"Federal Judges Revealed offers a captivating look inside the personal and professional lives of judges as well as insight into the workings of the federal judicial system as a whole. Domnarski has done the legal community a service by collecting this information and organizing it into a cohesive and readable whole."
--Emily Judge, The Federal Lawyer

"Federal Judges Revealed stands as a valuable addition to the literature on judges and judging. It provides a useful introduction to, and overview of, a previously overlooked resource for studying how a broad range of judges understand their role."
--Chad M. Oldfather, Professor, Marquette University Law School, George Washington University Law Review

Purdy on Occupy Wall Street and its Library

Jed Purdy, Duke Law School, has a thoughtful post on Occupy Wall Street.  He ends with the idea that

The Occupiers are experimenting with the thought that inequality and opacity are optional, or, at least, that there can be ways of living together that are much more equally free, and much more intelligible, than those we have accepted. Their contribution, for now, is to invite others to pursue the same thought. It is really no more, or less, than the thought behind the Declaration of Independence: that societies are erected by naturally free and equal people, who are entitled to change the rules when they believe a different arrangement would serve their freedom better. History shows that this principle is dangerous, but also that we cannot do without it.

 His rumination is eloquent from beginning to end.  But I was struck especially with his opening:

Via Occupy Wall Street Library Blog

As an approach to library science, anarchism is at its strongest and its weakest. The volunteers at the Occupy Wall Street library in Zuccotti Park “shelve” no book into the waterproof bins that serve as open-air shelves without first cataloguing it online and branding it with a Sharpie. This procedures creates a complete catalog of the books that sympathizers have donated, thanks to a small knot of natty book-lovers, some of whom unroll their camping gear at night amid the stacks of political theory, alternative economics, polemics on the financial crisis, bodice-rippers, and spiritual charlatanism of every kind. Once catalogued, the books go into an anarchist lending system, which is no system at all: take it if you want it, return it if you will, keep it if you need it. The catalog says nothing about the library’s present holdings except what has been there. It is an instantly obsolete memorial produced by tirelessly fastidious people who refuse to turn their fastidiousness into a rule for anyone else. It sits at the meeting-place of the database, the civic institution, and public art.

There is only one other meditation on libraries and the nature of politics that I know of, and I encountered it a decade ago in the incomparable work of Khaled Abou el Fadl, UCLA Law School.  A Conference of the Books: The Search for Beauty in Islam opens with this passage:

In a small town outside Princeton, New Jersey, in a small crowded apartment, blessed by its immeasurable powers and burdened by its keeper, you will find the Islamic Civilization. The glories, the infamies, the victories, the ecstasies, the soft supplications, the tearful entreats, the dreams, the endless lessons of human follies and the exacting record of the divine covenant are all here, present every night. The impregnable resilient volumes stand side-by-side in a solemn procession testifying to our deeds. Hasn't the Lord commanded us to recite and to bear witness? Here, in this small crowded space, is the endless recitation and the eternal murmurings of the Conference of Books. Who was ever foolish enough to believe that there is a past and present? There is only the read and unread, otherwise all times are ever present in this library. If you listen carefully enough, in the dead of night you will hear the whispers, the arguments, the debates. You will hear the constant search for the divine and the aching sublimation. When was this conference first held? "At first, God created the intellect," the Prophet said. With creation, the library was born and with the library, the numerous books testifying to the glory of the divine. Has any civilization honored the book more than we have? And, has any civilization betrayed the book more than we have? In the beginning we memorized from our Prophet, "An hour's reflection is better than a year's worship." Puzzled we asked "even better than reading the Quran?" And he, may he be blessed, said, "And, can the Quran be useful without knowledge?" Ali, his student and companion, then declared "God did not distribute to His servants anything more to be esteemed than intelligence..."

Covey on the History of Temporary Insanity

Temporary Insanity: The Strange Life and Times of the Perfect Defense has just been posted by Russell D. Covey, Georgia State University College of Law.  It appears in the Boston University Law Review, Vol. 91, 2011.  Here's the abstract:

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more prosaic forms – compelled the criminal act. Given that the insanity defense is considered paradigmatic of excuse defenses, it is puzzling that temporary insanity also functions as a sort of justification defense. This Article seeks to solve that puzzle by canvassing the colorful history and the conceptual function of the defense. Ultimately, it argues that temporary insanity should be viewed as an equitable doctrine that provides relief where the traditional legal rules exclude or are inadequate to the defendant’s particular circumstances. Because the temporary insanity defense permits juries to resolve difficult cases in a manner consistent with the deep purposes of the criminal law, it is misleading to conceptualize that defense as merely a nullification doctrine.

Tiffert on The Chinese Judge, 1907-1949

The Chinese Judge: From Literatus to Cadre (1907-1949) has just been posted by Glenn D. Tiffert, University of California, Berkeley.  It is forthcoming in PASSAGES TO MODERNITY: KNOWLEDGE, CULTURE, AND INSTITUTIONS IN MODERN CHINA, Eddy U., Robert Culp, eds.  Here's the abstract:

Since the late Qing, probably no phrase has seized the imagination of legal reformers in China more than 'rule the country by law 以法治国,' and no group has occupied a more central place in their designs than the judiciary. Yet, the judiciary registers only weakly in the large and growing literature on courts and judicial practice in China.

This study explores the dynamics of judicial recruitment, selection and training in republican China, and the impact these had in determining the shape of the modern Chinese legal system. For historians, the study illuminates the rise of a novel professional community that spearheaded the pursuit of modernization in China, and the concomitant reconstitution of the state, learned elites, knowledge and power. For legal scholars, this study furnishes background against which to read the challenges, policies, debates and values that animate judicial reform today, particularly with respect to the relationship between authoritarianism, the rule of law, professionalization and the soaring technical sophistication of the Chinese judiciary.

Finally, this study aims to contribute to the historiographical reformulation of contemporary China’s connection to the past by retexturing our image of the republican era and its role in producing the PRC.

Hay on Archival Research in Legal History

Just posted -- an older essay about research and archiving, from one of the masters of our trade:  Archival Research in the History of the Law: A User's Perspective, by Douglas Hay, Osgoode Hall Law School and Dept of History, York University.  It appeared in Archivaria, No. 24, pp. 36-46, Summer 1987.  Here's the abstract:

Legal history and the social history of law have become very active fields of research in Britain, the United States, and Canada in the past ten years. Moreover, they have begun to affect each other, so that social historians are now much more sensitive to doctrinal changes, shifts in legal rules, and legal concepts, while legal historians increasingly appreciate that explaining legal change – or the lack of it – may require extensive research outside the law library. In short, lawyers and historians are beginning to meet not only in law libraries, but also in archives. And, like all users, they are asking the impossible.

From law librarians, they want every variant edition of every obscure and outdated procedural manual, every ancient set of reports, and every printed trial extant for earlier centuries. Fortunately, large international microfilming projects are increasingly making it possible for librarians to supply all of these, and seen extensive manuscript collections of legal materials. But historians of law make more outrageous demands on archivists: retain everything; prepare finding aids for everything; manage your collections with us, above all others, in mind. I am told that the professional duties of archivists include measuring such demands by the tests of budgets, conservation imperatives, the interests of other users, the finite dimension of the working year, available shortage space, and a healthy instinct for preservation of self as well as collections. But since I am a user, not an archivist, I shall innocently describe utopia, and say little about how to get there. My only excuse for doing so is that legal records, like all records, present specific problems, problems that are not particularly evident without close familiarity with the recent large research literature, much of it still in dissertation form, on the legal and social history of the law. A review of some of its themes may help archivists, lawyers, and historians to discuss some of the hard decisions about retention. One of my conclusion is that lawyers and historians may in fact have rather different professional imperatives, even conflicting ones, and that the historically and legally informed archivist will necessarily play a critical role in adjudicating between them.

Women, Reproduction and Rights in Journal of Women's History

The fall issue of the Journal of Women's History focuses, in part, on reproduction and rights.  Here are a couple of works from the issue that may be of interest to legal historians.  "Abortion Will Deprive You of Happiness!" Soviet Reproductive Politics in the Post-Stalin Era by Amy Randall (Santa Clara Univ--History), published in Journal of Women's History, Vol. 23, No. 3 (Fall 2011) is available here.  The abstract follows.

This article examines Soviet reproductive politics after the Communist regime legalized abortion in 1955. The regime's new abortion policy did not result in an end to the condemnation of abortion in official discourse. The government instead launched an extensive campaign against abortion. Why did authorities bother legalizing the procedure if they still disapproved of it so strongly? Using archival sources, public health materials, and medical as well as popular journals to investigate the antiabortion campaign, this article argues that the Soviet government sought to regulate gender and sexuality through medical intervention and health "education" rather than prohibition and force in the post-Stalin era. It also explores how the antiabortion public health campaign produced "knowledge" not only about the procedure and its effects, but also about gender and sexuality, subjecting both women and men to new pressures and regulatory norms.

The same issue of the journal contains a Book Review of five works on "Gender, Fertility, and Modern Medicine," by Laura J. McGough (University of Ghana--School of Public Health), available here.
The abstract of the review follows. The reviewed books are:

• Monica M. E. Bonaccorso, Conceiving Kinship: Assisted Conception, Procreation and Family in Southern Europe (Oxford, 2009).
• Matthew Connelly, Fatal Misconception: The Struggle to Control World Population (Cambridge:  Belknap Press of Harvard, 2008).
• Melanie Beals Goan, Mary Breckinridge: The Frontier Nursing Service and Rural Health in Appalachia (UNC, 2008).
• Angélique Janssens (ed.),Gendering the Fertility Decline in the Western World (Bern, 2007).
• Margaret Marsh and Wanda Ronner, The Fertility Doctor: John Rock and the Reproductive Revolution (Johns Hopkins University Press, 2008)
• Arleen Marcia Tuchman, Science Has No Sex: The Life of Marie Zakrzewska, M.D (UNC, 2006).

Few issues are as central to women's history as reproduction, which, in many societies, has defined women's role. The importance of having children has made infertility a major social stigma, borne primarily by women, while the inability to limit the number of births has also placed a burden on women who historically have been responsible for raising children. None of this is news, of course. What is new in this latest crop of books on the topic of fertility and reproductive health is the subtlety with which the authors approach the subject, no longer dividing the world into feminist heroes and villains, but respectfully examining the flawed, all too human protagonists who tried to help women in difficult circumstances whether that involved assisting women with too many children, helping women gain access to birth control, or helping infertile couples (but usually focusing on the women) to conceive.

This Week in the Book Pages

The big one this week is Justice John Paul Stevens's review, for the New York Review of Books, of The Collapse of American Criminal Justice (Belknap Press/Harvard University Press), by William J. Stuntz. (We've mentioned the book previously, here and here.)  Stevens concludes that the book "is well worth reading," for the following reasons:

It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law. It should motivate voters and legislators to take action to minimize those injustices.

Also in the NYRB, although only available to subscribers: Gordon Wood reviews Moneymakers: The Wicked Lives and Surprising Adventures of Three Notorious Counterfeiters (Penguin), by Ben Tarnoff (here); Michael Tomasky reviews Showdown: JFK and the Integration of the Washington Redskins (Beacon), by Thomas G. Smith (here); and Timothy Snyder reviews four new releases in European history, which he gathers under the title "A Core of European Tragedy, Diversity, Fantasy" (here).

The Wall Street Journal covers Midnight Rising: John Brown and the Raid that Sparked the Civil War (Henry Holt), by Tony Horwitz. Reviewer David Reynolds concludes that "much of [the] book is a gloss of what is already known," and that in attempting "to enhance Brown's role in history," Horwitz "revives a few old, negative images of Brown."

Also reviewed in the WSJ: Jerusalem: The Biography (Knopf), by Simon Sebag Montefiore (here), and Eminence: Cardinal Richelieu and the Rise of France (Walker), by Jean-Vincent Blanchard (here).

In the book review pages of the Nation, you'll find a review of two new books on Scientology: Inside Scientology: The Story of America’s Most Secretive Religion (Houghton Mifflin Harcourt), by Janet Reitman, and The Church of Scientology: A History of a New Religion (Princeton University Press), by Hugh B. Urban.  Here's the bottom line, according to reviewer Mark Oppenheimer:

Scientology may not last, but there will always be something like it. Reitman’s and Urban’s books are gifts to all religious people, especially Scientologists. They pay Scientology’s hierarchy the simple courtesy of holding them to adult standards of truthfulness and ethical behavior, and they confront Scientology lay people with some hard truths about their church. They also make the case—Urban’s book, explicitly so—that government and religion do not mix, and that perhaps it would be better, less entangling, to tax religious organizations. Reitman and Urban offer religions the respect they deserve in the form of the scrutiny they require. The Constitution, guarantor of free press as well as free religion, offers nothing less.

The New Republic: The Book gives top billing to Citizen Islam: The Future of Muslim Integration in the West (Continuum), by Zeyno Baran.  According to the review, the book "describes how Islamists have captured many Islamic religious and social institutions, including most of the Western ones."

The featured review in the New York Times book pages is Rin Tin Tin: The Life and the Legend (Simon and Schuster), by Susan Orlean (also featured in this week's book review podcast).  Other reviews of interest include The End: The Defiance and Destruction of Hitler’s Germany, 1944-45 (Penguin Press), by Ian Kershaw (here) and The Struggle for Egypt: From Nasser to Tahrir Square (Oxford University Press), by Steven A. Cook (here).

The NPR Books section also has some good stuff this week, including a Fresh Air interview with Justice Stevens, on his recently released memoir, and a Morning Edition story on Sybil Exposed: The Extraordinary Story Behind the Famous Multiple Personality Case (Free Press), by Debbie Nathan (also reviewed recently in Salon).

This week the LA Times reviews Elizabeth and Hazel: Two Women of Little Rock (Yale University Press), by David Margolick (mentioned in an earlier round-up, here) and A Thousand Lives: The Untold Story of Hope, Deception, and Survival at Jonestown (Free Press), by Julia Scheeres (here).

The most talked about book this week seems to be Deng Xiaoping and the Transformation of China (Belknap Press/Harvard University Press), by Ezra F. Vogel.  It received coverage in numerous outlets. Reviews are here, here, and here.

Last but not least, Salon recently reviewed The Great A&P and the Struggle for Small Business in America (Farrar, Straus and Giroux), by Marc Levinson.  According to the review:

Levinson covers the history of A&P, the industry it revolutionized, and the enmity it inspired, in everyone from the mom-and-pop shopkeepers it put out of business to the government trustbusters who for years made the company the target of federal investigation. He also explores the deeper unease underlying the dominance of A&P, as the growth of chains and the modernization of grocery trade seemed to threaten the very existence of small-town life.

Weekend Round-up

• "No More Plan B": In this month's issue of Perspectives on History (the newsmagazine of the AHA), Anthony Grafton and Jim Grossman urge history department faculty to "tell . . . students, from the beginning, that a PhD in history opens a broad range of doors," rather than leading them to view anything other than a college or university teaching position as a second-best "alternative" to an academic career.

• Over at the Historical Society, Philip White offers advice on "Surviving a Book Edit."

• Readers interested in originalism might want to check-out the informal discussion taking place at SCOTUSblog.

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

Dissertations in Foreign Affairs History (and related topics)

It is often hard to keep up on dissertations of interest.  The Society for Historians of American Foreign Relations makes it easier by posting lists of recent dissertations on its website. They may be especially helpful to legal historians interested in comparative or transnational history, foreign relations and military conflict. Here's just a sampling from the 2009 list:

• Decker, Alicia Catharine. ―Beyond the Barrel: Women, Gender, and Military Rule in Idi Amin’s Uganda, 1971-1979,‖ Emory University, 2007 (WOMEN‖S STUDIES), DA 3279869, Mar. 2008.

• Maulden , Patricia A. ―Former Child Soldiers and Sustainable Peace Processes: Demilitarizing the Body, Heart, and Mind,‖ George Mason University, 2007 (PS), DA 3270239, Jan. 2008.

• Hassan, Fazal Mohammed. ―Ending Oppression and Establishing Justice: Examples from Islamic History of Select Muslims and Islamist Groups Justifying the Use of Armed Force,‖ Florida State University, 2006, DA 3252121, Aug. 2007.

• García Guevara, Aldo Vladimir. ―Military Justice and Social Control: El Salvador, 1931-1960,‖ University of Texas at Austin, 2007, DA 3285997, Apr. 2008.

• Clovis, Samuel H., Jr. ―Federalism, Homeland Security, and National Preparedness: A Case Study in the Development of Public Policy,‖ University of Alabama, 2006 (PS), DA 3252359, Aug. 2007.

• Gleich-Anthony, Jeanne M. ―Democratizing Women: American Women and the U.S. Occupation of Japan, 1945-1951,‖ Ohio University, 2007, DA 3295439, Je. 2008.

• Schmitz, John Eric. ―Enemies among Us: The Relocation, Internment, and Repatriation of German, Italian, and Japanese Americans during the Second World War,‖ American University, 2007, DA 3273603, Jan. 2008.

• Takita, Sachiko. ―The Tule Lake Pilgrimage and Japanese American Internment: Collective Memory, Solidarity, and Division in an Ethnic Community,‖ University of California, Los Angeles, 2007 (SO), DA 3280845, Mar. 2008.

• Saunders, Elizabeth Nathan. ―Wars of Choice: Leadership, Threat Perception, and Military Interventions,‖ Yale University, 2007 (PS), DA 3293376, Je. 2008.

Lipton on Defining Corporate Personhood at the Turn of the Twentieth Century

Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century is a law review Note just posted by Daniel Lipton, JD/MA University of Virginia - School of Law, 2011.  It appeared in the Virginia Law Review, Vol. 96, 2010 .  Here's the abstract:

Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial entity theory were foundational doctrines in early twentieth century corporate law as applied by American courts, and uses corporate crime and politics as a platform for debunking that myth.

After 1905, Congress and state legislatures passed laws banning corporate political expenditures. Around the same time, lawmakers enacted groundbreaking statutes subjecting entire corporations to criminal liability. The American judiciary reacted favorably to both legislative movements, contemporaneously citing elements of artificial entity theory to justify bans against political contributions, and real entity theory to rationalize corporate criminal liability. This suggests that the real entity and artificial entity theories were more instrumental than foundational concepts in the courts.

The judiciary, however, was not without doctrinal ballast. It defined corporate personhood and constitutional rights through the property interests entangled in the corporation. Corporate personhood thus emerged in the decades preceding and following the turn of the twentieth century through the substantive due process analysis that characterized much of the Lochner Era jurisprudence. This concept of corporations as repositories of property interests ultimately explains why courts were willing to uphold bans on corporate political contributions and recognize corporate criminal liability.

The Note concludes by examining the continued relevance of property interests with regard to corporate personhood in the recent and controversial Citizens United decision. In particular, without directly challenging the First Amendment policies of the present Court, this Note seeks to add historical depth to the debate in Citizens United and demonstrate that affording corporations the right to political expenditures was neither doctrinally mandated nor historically inevitable.

McAllister on Kentucky v. Dennison (1861)

A Marbury v. Madison Moment on the Eve of the Civil War has just been posted by Stephen R. McAllister, University of Kansas - School of Law.  It appeared in Green Bag 2D, Vol. 14, p. 405, Summer 2011.  Here's the abstract:

On the occasion of its 150th anniversary, this article explores the background and the story of Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861), an important extradition case that the Supreme Court decided on the eve of the start of the Civil War. The case arose after Kentucky indicted a “free man of color” in Ohio for the crime of aiding the escape of a Kentucky slave. The Governor of Kentucky requested that Ohio extradite the defendant, and the Governor of Ohio refused. Kentucky brought an original mandamus action in the Supreme Court against the Ohio Governor in the fall of 1860, the case was heard in February, 1861, and decided in mid-March of that year, only a few weeks before Confederate forces fired on Fort Sumter. Chief Justice Taney wrote the unanimous opinion of the Court, which held that the Ohio Governor had a clear constitutional duty to turn over the fugitive Kentucky sought, but that the Court and Congress lacked the constitutional power to compel the Ohio Governor to do so. The article examines the events surrounding the case, and offers some comments on “Marbury v. Madison moments,” the legacy of Chief Justice Taney, the subsequent career of Governor Dennison, and the principles the case established, one of which the Supreme Court expressly overruled 125 years later.

New in the Chronicle of Higher Education: Publishing Advice, William Stuntz's Latest, Derrick Bell, and Occupy Wall Street

Find useful advice on writing book proposals in a Chronicle of Higher Education article by Patrick H. Alexander, "The Less-Obvious Elements of an Effective Book Proposal, accessible online here. Here's a snippet.

Publication of a scholarly book ultimately depends on the peer-review process, but that step occurs only if the proposal accomplishes its single mission: to get you a hearing. Too often, however, scholars misunderstand the job of the proposal in the overall process.

The Collapse of American Criminal Justice (Harvard, 2011) by the late William J. Stuntz is reviewed by Peter Monaghan in the Chronicle Review.  The book marshalls historical evidence in support of its claim that "[a]mong the great untold stories of our time is this one: the last half of the twentieth century saw America's criminal justice system unravel."  Monaghan concludes: "When a renowned scholar of criminal law and procedure says the criminal-justice system is in ruin, the indictment should stick."  Subscribers can access the review, "The Rule of Law is Broken," here.

Lani Guinier and Gerald Torres remember the late Derrick Bell in the Chronicle Review.  The remembrance can be viewed online by subscribers. Here's an excerpt:

The legal academy lost an intellectual force of nature with the passing of Derrick Bell on October 5. He worked in so many ways: a mentor to many of today's leading academics, a master teacher whose commitment to his law students was unquestioned and unmatched, and a provocative scholar and critic. He was a celebrated maverick before that word lost its luster.

The roots of the ongoing Wall Street protests lie in the "ethnography of Madagascar." So says Dan Berrett in an article in the Chronicle of Higher Education. Here's an excerpt from his article, which is accessible online here. 

Occupy Wall Street's most defining characteristics—its decentralized nature and its intensive process of participatory, consensus-based decision-making—are rooted in ... the scholarship of anarchism and, specifically, in an ethnography of central Madagascar. It was on this island nation off the coast of Africa that David Graeber, one of the movement's early organizers, who has been called one of its main intellectual sources, spent 20 months between 1989 and 1991. He studied the people of Betafo, a community of descendants of nobles and of slaves, for his 2007 book, Lost People. In Betafo he observed what he called "consensus decision-making," where residents made choices in a direct, decentralized way, not through the apparatus of the state. "Basically, people were managing their own affairs autonomously," he says. The process is what scholars of anarchism call "direct action."

Conference: The Future of Law and Society

On November 3-4, 2011, the Center for the Study of Law and Society at the University of California, Berkeley will hold a conference on "The Future of Law and Society." Here's the description:

In the 50 years since the founding of the Center for the Study of Law and Society at the University of California, Berkeley by Philip Selznick with funding from the Russell Sage Foundation, the field of law and society has been firmly established in research centers and academic associations, in doctoral programs and in the legal academy.  But law and society may be at a time of transition, and the time to consider the future direction of the field is upon us. What are the key questions to ask moving forward?  What will be the field’s substantive strengths?  Its theories? Its methods?  Its institutional homes?   In this Conference we bring together law and society scholars at the forefront of a range of disciplines and ask them to consider the future of the field from the lens of their own research questions, theories and methods.  Through their choices of topics, theory and methodology, and through their career paths and the direction of their students, they are shaping the future of the field.  

And the line-up:

SESSION 1:  HISTORY AS PROLOGUE
Harry Scheiber, University of California, Berkeley, Chair
Jerome Skolnick, New York University
Malcolm Feeley, University of California, Berkeley
Robert A. Kagan, University of California,
Lawrence Friedman, Stanford University

SESSION 2:  LAW, RIGHTS AND SOCIAL CHANGE
David Lieberman, Chair/Discussant
Michael McCann, University of Washington
Javier Couso, Universidad Diego Portales (Chile)
Laura Beth Nielsen, Northwestern U. & American Bar Foundation                      
Charles Epp, University of Kansas

SESSION 3:  LAW, CULTURE AND INEQUALITY
Catherine Albiston, University of California, Berkeley, Chair/Discussant
Kitty Calavita, University of California, Irvine (Emerita)
Leti Volpp, University of California, Berkeley
Kathleen Hull, University of Minnesota
David Wilkins, Harvard University

SESSION 4:  GLOBAL GOVERNANCE
Jonathan Simon, University of California, Berkeley, Chair/Discussant
Tom Ginsburg, University of Chicago and American Bar Foundation
Sida Liu, University of Wisconsin
Sally Engle Merry, New York University
John Hagan, Northwestern University and American Bar Foundation
César Rodríguez-Garavito, Universidad de los Andes (Colombia)

SESSION 5: IN THE ACADEMY
Calvin Morrill, University of California, Berkeley,   Chair/Discussant
Austin Sarat, Amherst College
Laura Gomez, University of California, Los Angeles
Edward Rubin, Vanderbilt University
Lauren Edelman, University of California, Berkeley

On-line registration and additional information are here.

An UPDATE from the Center: Online registration has been closed. Those who have not yet registered "are invited and encouraged to register at the Conference." The Thursday dinner and Friday lunch are now filled, but "there is plenty of room at all the conference panels" and at the Closing Reception on Friday. 

Legal History as a Murder Mystery: Dale, The Chicago Trunk Murder

Elizabeth Dale, University of Florida, is in the enviable position of having two books published this fall!  The first is here.  The second is a lively read -- criminal law history as a mystery:  The Chicago Trunk Murder: Law and Justice at the Turn of the Century.  Here's the book description:

On November 14, 1885, a cold autumn day in the City of Broad Shoulders, an enthusiastic crowd of several hundred watched as three Sicilians Giovanni Azari, Agostino Gelardi, and Ignazio Silvestri were hanged in the courtyard of the Cook County Jail. The three had only recently come to the city, but not long after they were arrested, tried, and convicted for murdering Filippo Caruso, stuffing his body into a trunk, and shipping it to Pittsburgh.

Historian and legal expert Elizabeth Dale brings the Trunk Murder case vividly back to life, painting an indelible portrait of nineteenth-century Chicago, ethnic life there, and a murder trial gone seriously awry. Along the way she reveals a Windy City teeming with street peddlers, crooked cops, earnest reformers, and legal activists—all of whom play a part in this gripping tale. Chicago’s Trunk Murder shows how the defendants in the case were arrested on dubious evidence and held, some for weeks, without access to lawyers or friends. The accused finally confessed after being interrogated repeatedly by men who did not speak their language. They were then tried before a judge who had his own view and ruled accordingly. Chicago’s Trunk Murder revisits these abject breaches of justice and uses them to consider much larger problems in late nineteenth century criminal law. Written with a storyteller’s flair for narrative and brimming with historical detail, this book will be must reading for true crime buffs and aficionados of Chicago lore alike.

And a blurb:

“Chicago’s Trunk Murder is a valuable reconstruction of an 1880s Chicago murder trial. The author’s exhaustive primary research in court records,newspapers, and geneaological records and thorough mining of the relevant secondary literature create a fascinating portrait of the dynamics of anti-immigrant prejudice and ‘common sense justice’ (as opposed to a concern for due process) underlying a criminal trial in an emerging gilded Age American metropolis.”
—Michael J. Pfeifer, John Jay College of Criminal Justice, City University of New York