Saturday, April 30, 2011

Weekend Round-Up

  • In honor of Earth Day, Heather Cox Richardson pays tribute to Christopher Stone's famous law review article on the legal rights of forests, oceans, and other "natural objects" ("Should Trees Have Standing?"). Check it out at the Historical Society.
  • Readers who study civil rights may be interested to learn about the re-discovery of a cache of old files in the Tuscaloosa County Sheriff's Office (hat tip to Al Brophy at the Faculty Lounge; we join him in sending our thoughts to the Tuscaloosa community in the wake of the devastating tornado)
  • For Alabama tornado relief, links for those who would like to donate are here, with thanks to Al Brophy.
    • The George Washington University Law Library has announced a position for a reference librarian to specialize in legal history and rare books.
    • Here is the call for papers for the Fourteenth International Congress of Medieval Canon Law, to be held August 5-11, 2012, at Saint Michael's College, University of Toronto.
    • The latest issue of On Our Way, the newsletter of the Franklin D. Roosevelt Presidential Library, is now on-line. It includes an account of the Library's exhibit on the anniversary of the Social Security Act.
    • Just in time for Law Day, Evansville, Indiana, lawyers, in historical garb, paraded to the old county courthouse yesterday and impersonated leading figures in the history of the local bar. The story here.
    The Weekend Round-up is a weekly feature compiled by all the Legal History Bloggers.

    Friday, April 29, 2011

    Cooper on Agency Deference

    This paper "sounds in" administrative law more than legal history, but it includes a substantial section on the nondelegation doctrine in the 1930s. It is a note by Aaron Cooper, a member of the Georgetown University Law Center's Class of 2011, entitled Sidestepping Chevron: Reframing Agency Deference for an Era of Private Governance, and it is forthcoming in volume 99 of the Georgetown Law Journal. Here is the abstract:
    Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically "appointed" actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the non-delegation doctrine, addresses the relationship of agency deference to the separation of powers and the fragmentation of the political branches, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private delegation context.

    Duncanson on The Sovereign, the Law and the Two British Empires

    The Sovereign, the Law and the Two British Empires has just been posted by Ian Duncanson, La Trobe University School of Law.  It appeared in the Windsor Yearbook of Access to Justice, Vol. 25, No. 2, p. 313, 2007.  Here's the abstract:
    All political societies have peculiarities, and nothing special is to be concluded from the Anglophone focus of the present article. The theme here is that there was a schism between the first and second British empires, not in itself an original thought, as the paper makes clear. The first empire, as conceived by many historians, was an Atlantic empire governed by the British monarch and the Westminster legislature in the United Kingdom, and by the British monarch through his local representative, the colonial governor and the colonial assemblies. It appeared as a kind of confederation to many contemporaries, including Franklin and Washington, until as late as the mid-1770s. In each of the communities, the common law governed according to the customs of the people, subject to amendment by the appropriate legislature. The latter might be at London, Massachusetts or Philadelphia. For reasons outlined in the article, this system broke down when Westminster asserted ultimate sovereignty and the validity to override colonial assemblies and tax the colonies without their consent. The colonies objected and broke with Britain. In Britain itself and in the remaining colonies, Westminster’s assertion represented a new, stronger view of sovereignty, one in which law no longer even notionally refl ected the slowly changing customs, habits and expectations of the governed. Instead, sovereignty represented the will of the sovereign. The legitimacy or validity of laws no longer referred to their content, or their conformity with a 'balanced' constitution. Instead, the legitimacy rested in the pedigree of a law. To its practical question, ‘is this a valid law?’ the British imperial world was ready for the Benthamite answer. The latter was to remain culturally dominant for many decades, and still dominates the dry fields of legal positivism and conservative social science. Bentham asked ‘is a law the sign of the volition of the sovereign?’ Elsewhere, Bentham asserted that the content of the law bore no relation to its validity. This article examines this change from the earlier Whig thought which informed the American Revolution and what became of it.

    On Willrich, "Pox"

    Back in January, Clara mentioned Michael Willrich's new book on Progressive Era efforts to address the great smallpox epidemic and the civil liberties battles that resulted (Pox: An American History (Penguin, 2011)). Here's an excerpt from a review by Scott Gottlieb for the Wall Street Journal:
    In "Pox: An American History," Michael Willrich meticulously traces the story of how the smallpox vaccine was pressed into service during a major outbreak. Sometimes the shots were physically forced on people, outraging their sense of personal freedom and—when the vaccine sickened some and killed others—galvanizing suspicion of vaccination programs. The episode, Mr. Willrich says, prompted large swaths of Americans to insist that "the liberty protected by the Constitution also encompassed the right of a free people to take care of their own bodies and children according to their own medical beliefs and consciences."
    Gottlieb (New York University School of Medicine; American Enterprise Institute) emphasizes "the federal role in the practice of medicine" -- specifically, the way in which the epidemic forced state and local governments to share with "the feds" their traditional power over public health issues. (Read the full review here.) But the book appears to include many other points of interest. We'll be on the look-out for reviews that pay greater attention to the legal historical contribution.

    For more on Pox, check out NPR's coverage: it includes a conversation with Willrich about the current anti-vaccine controversy and an excerpt from the book.

    Image credit: Willrich

    Thursday, April 28, 2011

    Munir on The Judicial System of the East India Company

    The Judicial System of the East India Company: Precursor to the Present Pakistani Legal System is an article by Muhammad Munir, International Islamic University Islamabad.   It appeared in the Annual Journal of International Islamic University, Islamabad, Vol.13-14, pp. 53-68, 2005-06, and will be a chapter of his book,  Introduction to Pakistani Legal System.  Here's the abstract:
    The work discusses how the British East India Company came to the subcontinent for the purpose of trade in 1604 and how it slowly and gradually started interfering in the local justice system by acquiring revenue collection of 38 villages in 1717 near Calcutta. In 1765 the Company was granted revenue collection as well as customs of three provinces. The Company also acquired the administration of justice in the areas under its control and the role of Muslim qadis and judges was over. Company’s officials, who were traders rather than trained judges, were running the court system and the Privy Council was born as the highest court of appeal. The doctrine of precedent was introduced in the subcontinent which is now institutionalized in India and Pakistan.
    Image source.

    Ely on The Constitution and Economic Liberty

    The Constitution and Economic Liberty has just been posted by James W. Ely Jr., Vanderbilt Law School.  It is forthcoming in the Harvard Journal of Law and Public Policy.  Here's the abstract:
    This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.

    Wednesday, April 27, 2011

    The Survey: Video?

    My stint is almost over, but thought I'd pose a penultimate question about video. How to best incorporate film/television clips into class? Beginning with the 1930s, great video exists for almost every imaginable topic, from the New Deal, through Civil Rights, the Cold War, and the Culture Wars. One easy way to incorporate clips is simply to hyperlink YouTube through Powerpoint, which features everything from 30 second clips of Bloody Sunday in Selma to full films like Leni Riefenstahls Triumph of the Will. However, the transition can be a little rough (not to mention the fact that flashing YouTube's icon onscreen tends to detract from the professionalism of the overall presentation), which has led me to experiment with uploading clips directly into Powerpoint slides. The problem here, of course, is finding sources without having to pay steep licensing fees. One great site is the Prelinger Archive, which features over 1,000 free clips, many rarely seen. While interested in learning of other sites, I'm also intrigued by the idea of making my own clips straight from dvd. Any advice on how to do this, what programs work best, and so on? My assumption is that clips of under one minute included solely for educational purposes satisfy fair use, but could be wrong there as well.

    Photo credit: Prelinger Archives

    Swanson on the History of Food and Drug Law as Intellectual Property

    Food and Drug Law as Intellectual Property Law: Historical Reflections is a new article by Kara W. Swanson, Northeastern University School of Law.  It appears in the Wisconsin Law Review, p.329, 2011.  Here's the abstract:
    This Article returns to the late nineteenth and early twentieth centuries to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs. One centers on the safety of these consumables, and the effectiveness of the Food and Drug Administration. The other is spurred by serious questions of equity involving the ownership and pricing of patented pharmaceuticals and crops, and centers on patent law and the Patent and Trademark Office. These debates were once part of a single broad conversation about food and drugs. This Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law. It argues both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential. Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement. It uncovers the opposition to trade secrets that supported an alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the historical shift in the pharmaceutical market from trade secrets to patents in relation to the recent trend toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy.

    A Perpective on the U.S. Supreme Court, Public Opinion and "Legal Realism" in Law & Society Review

    The current issue of Law & Society Review (March 2011) contains an article that may be of interest to legal historians, constitutional scholars and others who follow the various historical and contemporary debates about the impact of "legal realism" on judging and on society. The article, "Has Realism Damaged the Legitimacy of the Supreme Court?" by James L. Gibson (Wash. U., St. Louis--Pol. Sci.) and Gregory Caldeiri (Ohio State--Pol Sci), is a work of political science. It reports the results of a survey about judging and realism and/or attitudinal models about judicial decisionmaking. (The usual disclaimers about precisely how to define "realism" apply). The abstract follows.

    Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.


    The full article is available here.

    The D.C. Circuit in the McCarthy Era: United States v. Lattimore

    [Because I recently attended a planning session that has left me quite excited about this event, I'm moving this post up from last month.]

    The Historical Society of the District of Columbia Circuit and the Litigation Section of the District of Columbia Bar Present The D.C. Circuit in the McCarthy Era: United States v. Lattimore, to be held Thursday, May 12, 2011, from 4:30 p.m. – 6:00 p.m. in the Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.

    In 1952, during the height of McCarthyism, Owen Lattimore was indicted on seven counts of perjury before the Senate Internal Security Subcommittee, including testimony that “he had never been a sympathizer or any other kind of promoter of Communism or Communist interests.” Lattimore was represented pro bono by former D.C. Circuit Judge Thurman Arnold, Abe Fortas, and Paul Porter; the United States by U.S. Attorney Leo Rover. Lattimore moved to dismiss. District Judge Luther Youngdahl dismissed four counts. The Court of Appeals, en banc, sustained the dismissal of two counts and reversed on two counts. The Government re-indicted Lattimore in a single count which Judge Youngdahl dismissed. The Court of Appeals sustained the dismissal by a 4-4 vote.

    This program will include a reenactment of the arguments presented to Judge Youngdahl on the Motion to Dismiss. Following this reenactment, a panel of all the participants will discuss the role of the courts in national security cases at mid-century and the relevance of that history today

    Participants
    The McCarthy Era and the State of the Nation in the 1950s
    Martin Sherwin, Professor, George Mason University

    Legal History of the Lattimore Case
    Patricia M. Wald, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit

    Reenactment
    G. Duane (Bud) Vieth, Arnold & Porter
    Miguel Estrada, Gibson Dunn & Crutcher
    Berl Bernhard, DLA Piper and law clerk to Judge Youngdahl

    Panel Discussion
    Moderator
    Daniel R. Ernst, Georgetown University Law Center

    Image credit: Owen Lattimore, with Abe Fortas

    Tuesday, April 26, 2011

    Michaels on The Two Rationalities of European Private Law

    Of Islands and the Ocean: The Two Rationalities of European Private Law has just been posted by Ralf Michaels, Duke University School of Law.  It will appear in THE FOUNDATIONS OF EUROPEAN PRIVATE LAW, Roger Brownsword, Hans-W Micklitz, Leone Niglia, Steve Weatherill, eds., Hart Publishing, 2011.  Here's the abstract:
    Debates over European private law frequently concern matters of ideology – how social or how liberal should it be – or of form – code versus common law – or of level of regulation – European level versus member state level. Underlying all these debates is a deeper one that is insufficiently recognized, that about the rationality of European private law. Historically, private law has always been characterized by two rationalities that can be called compensatory and competitive. I show how these two rationalities still characterize European private law in both form and substance, and how it is unlikely that one will ever win over the other, because both are complementary to each other. More importantly, I demonstrate how both rationalities have traditionally been represented in different forms and at different levels. The current bifurcation in European private law between the compensatory Draft Common Frame of Reference and the competitive regulatory directives is a fruit of this history, and not necessarily an undesirable state of affairs.

    Charles M. Gray (1928-2011)

    I note with sadness the passing of Charles M. Gray, a learned, kind, and thoughtful constitutional historian of Great Britain. While a student at the University of Chicago Law School in the early 1980s I took his "British Constitutional History" and often talked with him at legal history events. I recall his essay "Bonham's Case Reviewed" as a classic on that legal landmark, but perhaps even more I remember how, simply by displaying his love of his subject, he made a compelling case for the scholarly life. A student quoted in the University of Chicago's press release got it just right: "He definitely glows from his eternal enjoyment of teaching, and in turn, this inspires his students to learn. I never leave his classes without serious reflection on my own ideas and the ideas that are greater than myself."

    Miller on "Christianity, American Indians, and the Doctrine of Discovery"

    Robert J. Miller (Lewis & Clark Law School) has posted "Christianity, American Indians, and the Doctrine of Discovery." It was originally published in Remembering Jamestown: Hard Questions about Christian Mission (Pickwick Publications, 2010), edited by Amos Yong and Barbara Brown Zikmund.

    Here's the abstract:
    The European countries that explored and colonized North America utilized the international law Doctrine of Discovery to claim the sovereign, property, and human rights of Indigenous peoples. Discovery was developed primarily in the fifteenth century by Spain, Portugal, England, and the Church and was designed to control the acquisition of non-European lands. The assumed superiority of European religions and civilizations played a major role in justifying Discovery. Starting with the fifteenth century papal bulls and the later English Royal charters, the primary goals of colonization were alleged to be "propagating Christian Religion" and bringing "human civility" to the "pagan," "heathen," "Infidels and Savages" who "yet live[d] in Darkness and miserable ignorance of the true Knowledge and Worship of God." The United States Supreme Court expressly adopted the Doctrine of Discovery in 1823 in Johnson v. M'Intosh and expressly relied on Christian religion and Euro-American civilization to justify its decision. The goals of, and the justifications for, Discovery continued to be part of United States Indian policy and Manifest Destiny until nearly the end of the twentieth century.
    The full paper is available here.

    Hat tip: bookforum

    Monday, April 25, 2011

    The April 2011 issue of the American Journal of Legal History is out

    Here's what can be found in the new issue of the American Journal of Legal History:
    Equal or Effective Representation: Redistricting Jurisprudence in Canada and the United States, by Robert W. Behrman

    History’s Orphan: Arthur MacLean and the Legal Education of Women, by Ronald Chester

    Writing the Discursive Proto-Culture of Modern Anglo-American Trial Advocacy: Edward William Cox’s The Advocate, by Philip Gaines

    Bringing Ideas Back In—A Brief Historiography of American Colonial Law, by Scott D. Gerber
    And book reviews of:
    Michael Les Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era
    George Alan Billias, American Constitutionalism Heard Round the World, 1776-1989: A Global Perspective
    Thomas H. Cox, Gibbons v. Ogden, Law, and Society in the Early Republic
    Frank Dobbin, Inventing Equal Opportunity
    Dennis J. Hutchinson and David J. Garrow (eds.), The Forgotten Memoir of Joh Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington
    Randall Lesaffer, European Legal History: A Cultural and Political Perspective.

    Thomas reviews Hernández on the History of the U.S. Border Patrol

    H-Law has posted a review of Kelly Lytle Hernández, Migra! A History of the U.S. Border Patrol (Berkeley: University of California Press, 2010).

    Here's an excerpt from the review, by William Thomas:

    In Migra! Kelly Lytle Hernández, an assistant professor in history at the University of California-Los Angeles, explores the U.S. Border Patrol’s role in curbing unauthorized immigration and enforcing laws along the Mexico-U.S. border. Hernández traces the practices and ideology of the Border Patrol from its creation in the 1920s to the late twentieth century.

    She argues that for about the first decade and a half of its existence, the Border Patrol used “physical brutality” on a regular basis to achieve its goals, but she also maintains that in the 1940s, the patrol began to eschew “raw violence” (p. 109). At midcentury, she notes, some in the Border Patrol viewed themselves in part as guardians of immigrants. “In memo after memo,” she writes, “officers shared stories about abuses by farmers, who held migrants captive, paid poverty wages, and provided unsanitary living conditions” (p. 177).
    Thomas has some quibbles with the book, but concludes that "it deserves attention from those who study immigration, federal law enforcement, or the American Southwest" because of its attention to the perspectives of various groups (Anglo growers, Mexican Americans, the Border Patrol) on unauthorized immigration.

    The full review is here.

    Schwartz and Peifer on Privacy Law in Germany and the US

    Paul M. Schwartz, University of California, Berkeley School of Law, and Karl-Nikolaus Peifer, University of Cologne Law School, have posted Prosser's Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept? It also appears in the California Law Review 98 (2010): 1925. Here is the abstract:
    After fifty years, William Prosser’s essay “Privacy” rests securely in the canon of classic American law review articles. Today, Prosser’s verdict on the momentous article by Samuel Warren and Louis Brandeis can fittingly be applied to his own work: “It has come to be regarded as the outstanding example of the influence of legal periodicals upon the American law.” At the fiftieth anniversary of Prosser’s “Privacy,” this article takes a comparative approach in assessing his accomplishments. Germany’s legal system offers a fitting point of comparison because of its well-developed privacy law as well as its rich media landscape with similar kinds of invasions of privacy. Moreover, both the United States and Germany share the same Western cultural focus regarding the importance of the individual and the significance of permitting each person to use self-determination in forming her life.

    We argue that Prosser built on the earlier work by Warren and Brandeis to operationalize their central insight into terms that the U.S. legal system could easily adopt. Prosser also decided that the common law privacy cases were not tightly linked to each other in a conceptual fashion, but rather were “a complex of four distinct and loosely related torts.” The splintering of the privacy tort was a highly significant and profoundly creative jurisprudential choice.

    Yet, there is a road not taken in American privacy law – that of a right of personality. The idea behind such a right is that each person, as a unique and self-determining entity, is due certain kinds of protection. This Article explores the development and current status of the right of personality in Germany. German law views the privacy tort as safeguarding an interest that rests on human dignity.

    Thus, while there is one unitary concept of tort privacy in Germany, more than four categories follow from it. Nonetheless, many of the resulting categories can be placed into the Prosser categories. In other words, there has been a fair amount of convergence between the two legal systems. Another aspect of the convergence concerns judicial methodology. German courts engage in a balancing approach that is quite similar to the tack of American courts.

    There are also significant differences between the approaches in the Germany and the United States. One highly significant difference is that German personality rights have a constitutional aspect. As a result, they apply to the behavior of both the government and private parties. Another difference is that German law does not balance interests in cases that involve “a core area of life formation.” In these cases, the court conducts a necessary examination of whether a “significant impact” on the core interest took place. If such an impact occurred, the court must protect the individual against the violation of her interests. Information about the core area of private life is subject to absolute protection.

    In the article’s final Part, it considers the present and future status of tort privacy in Germany and the United States and the relative merits of the two approaches. We conclude by discussing the question posed in this Article’s subtitle: are four privacy torts better than one? The answer turns, however, on the role that each legal form plays in its respective legal system and underlying culture. Our approach is to consider the different legal and cultural functions served by the different forms of the privacy tort in the United States and Germany.

    Sunday, April 24, 2011

    Weber in America, 1861, Thinking in an Emergency, and more in the book pages

    "Max Weber in America? The idea seems almost preposterous," writes Alan Wolf in The New Republic/The Book, in a review of Lawrence A. Scaff's aptly titled Max Weber in America.  But ultimately,
    Weber cannot be understood without an appreciation of his experiences in this country, and America’s special path to modernity is difficult to grasp without a substantial dip into Weber’s extensive body of writing....Weber’s fascination with all aspects of American culture belies any notion that the new world and the old were incapable of meeting on equal terms.
    More on Weber's American adventures, and this "wonderful book," is here.

    "That fateful first shot" of the Civil War "unleashed a barrage of books about the War Between the States," writes Debby Applegate in the New York Times.  "In 1995 one bibliographer estimated that more than 50,000 had been published, exploring every aspect of the conflict on and off the battlefield. Thousands more have appeared since then." More are forthcoming for the sequecentennial, but "few will be as exhilarating as '1861: The Civil War Awakening,'" by Adam Goodheart.   The author
    combines a journalist’s eye for telling detail with the rigorous research of a good historian. But he gives his far-flung journey narrative tension and suspense by religiously following two fundamental rules of the novelist: first, make the reader care about your characters, then make the reader worry about them.
    Continue reading here.

    Elaine Scarry, Thinking in an Emergency, is taken up in the Times Higher Education (UK) book section.  Patrick Tissington finds it "Short but densely populated with fascinating material that has furnished me with a long list of further reading to pursue."  The book is a "mind-blowing canter around some difficult topics - conflict, democracy and nuclear war. It is, moreover, a highly timely work in light of recent spontaneous uprisings against oppressive regimes - and, as Scarry points out, we in the West are perhaps not as free as we might think."  The rest is here.

    Imani Perry reviews Malcolm X:  A Life of Reinvention by Manning Marable in the San Francisco Chronicle.  
    Although the conflict over the content has probably driven sales and attention to the book, the brilliance of this biography has little if anything to do with its apparently shocking revelations. Marable has crafted an extraordinary portrait of a man and his time. Malcolm moves through the social and intellectual history of mid-20th century black America, and his periods of growth and stagnation mirror the tides of black life.
    Continue reading here.

    And in the New York Review of Books, Sean Wilentz reviews  Colonel Roosevelt by Edmund Morris, and Gordon Wood reviews  First Family: Abigail and John by Joseph J. Ellis, and Abigail and John Adams: The Americanization of Sensibility by G.J. Barker-Benfield.

    Friday, April 22, 2011

    Two Takes on History and the War Powers

    Lou Fisher, who has long argued that presidential unilateralism is unconstitutional, takes up President Obama's reliance on a UN Security Council Resolution as authorization form American military engagement in Libya.  With his usual clarity, Fisher writes on Law.com:
    May the U.N., rather than the elected representatives of Congress, authorize the United States to use military force against another nation? Is it possible to transfer the constitutional power of Congress to an international body? The answer to both questions: No. Authority under law and the Constitution must come from Congress. Statutory law, dating to 1945, speaks unambiguously about the use of American troops in a U.N. military operation: "The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution." 22 U.S.C. 287d.
    Historical practice since 1945, he argues, "shows that members of Congress have failed to protect the Constitution, their own institutional powers and the rights of citizens who elected them to office."  The rest is here.

    On the Lawfare blog, Curtis Bradley also takes up "the role of historical practice in debates over separation of powers, including in debates over the Constitution’s distribution of war authority."
    There are two basic positions on the constitutional distribution of war powers – a pro-Congress view and a pro-Executive view.  Although it has some variants, the pro-Congress view generally contends that the President is constitutionally required to obtain congressional authorization for the use of military force except when defending the United States from attack or protecting the safety of U.S. citizens abroad.  The pro-Executive view, by contrast, contends that the President may use military force abroad without congressional authorization, and that Congress’s ability to check the President stems primarily from its control over appropriations.

    The military operations in Libya have once again triggered a substantial debate over war powers.  The positions in this debate are illustrated by, on the one hand, an opinion from the Office of Legal Counsel, and, on the other hand, an essay critiquing the opinion by Professor Michael Glennon.  As is evident from these materials, debates over war powers are often in part debates over the interpretation and weight to be given to historical practice — in particular, the instances in which presidents have initiated the use of military force without congressional authorization.  The OLC opinion on Libya, for example, recites various instances of “such presidential initiative,” whereas Glennon argues that many of these instances are distinguishable.
    In thinking about the Libya debate, I’ve started to have greater doubts, or at least uncertainties, about the proper role of historical practice in constitutional interpretation relating to the separation of powers.

    (emphasis added)  Ultimately, Bradley suggests that "constitutional claims based on practice are made too readily in a variety of contexts and that we need to think more deeply about when and why this practice should matter."  The full post is here, and another is here.

    2011 Hurst Fellows Named

    The Institute for Legal Studies at Wisconsin Law has announced the 2011 Hurst Fellows. The draft program for the Hurst Summer Institute in Legal History, to be held June 12-24 under the able direction of Barbara Young Welke, is here. As Duke legal historian Edward Balleisan explains, "The institute gives early career legal historians the chance to engage intensively with several eminent scholars in the field, as well as exceptionally talented peers. They have the opportunity to build intellectual networks that can last for years." (Duke's press release, in which Professor Balleisan quite understandably kvells over the selection of three Duke history graduate students, is here.)

    Thursday, April 21, 2011

    The Survey: Prohibition

    Is Prohibition worth teaching? Though granted little more than passing mention in Presser and Hall, I've found at least three reasons to include the topic in lecture. One, Prohibition helps tie together a variety of threads central to the legal history of the early twentieth century, including Progressive reform, female suffrage, evangelical Protestantism, anti-Catholicism, and the rise of organized crime (for a book that ties these strands together nicely, see Michael Lerner's Dry Manhattan: Prohibition in New York City). Two, prohibition can be viewed through an even longer lens, going back to the Early Republic. For example, Joyce Appleby uses temperance as a lens through which to recover the "darker side of American freedom," noting how "the fight against intemperance and indolence" characterized the early lives of many Americans in the Jeffersonian era, making the cultivation of moral discipline critical for individual success. (See Joyce Appleby, "The Personal Roots of the First American Temperance Movement"). Introducing Appleby's thesis into lecture provides a nice way of bringing the nineteenth century back in, reassessing the role of individual agency in history, and perhaps interrogating the possibility of something that might be considered a uniquely American "character." On this last note, discussions of Prohibition provide a nice link to current debates over the regulation of vice, including the President's decision not to prosecute medical marijuana in California. For a critical assessment of this move, see Robert Mikos's new piece "A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana." Mikos argues that the President's non-enforcement policy is limited at best, and that only true repeal will guarantee the safety of dispensaries. Comparing the President's move to Roosevelt's calls for repeal during the Great Depression provides one jumping off point for class discussion, as does the framing of marijuana in explicitly medical terms, not something that worked with alcohol.


    Photo credit: Harvard University Press

    Nussbaumer Reviews The Nature of Rights at the American Founding and Beyond

    Kirsten Nussbaumer, Saint Louis University, has posted The Nature of Rights at the American Founding and Beyond, which is a review essay, to appear in Law and History Review, of The Nature of Rights at the American Founding and Beyond, ed. Barry Shain (University Press of Virginia, 2008), with essays by Shain, Rogers Smith, Richard Primus, James H. Hutson, John Phillip Reid, Akhil Reed Amar, Jack N. Rakove, A. Gregg Roeber, Gordon S. Wood, Daniel T. Rodgers, Leif Wenar, and Stephen Macedo.
    Legal Pluralism and Modernization: American Law Professors in Ethiopia and the Downfall of the Restatements of African Customary Law is a new article by Kaius Tuori, Center of Excellence in Global Governance Research.  It is forthcoming in the Journal of Legal Pluralism.  Here's the abstract:
    The purpose of the article is to explore the “law and development” movement’s controversial impact in Ethiopia through the involvement of American law professors such as A. Arthur Schiller in the struggle between modernization and traditionalism in the 1960s and 1970s. Elsewhere in Africa there were efforts to improve the administration of law by producing restatements of customary indigenous law, but Ethiopia had opted for wholesale modernization of its legal system. Because it was claimed that the Ethiopian law reform had led to the nullification of law, Schiller attempted to produce a restatement of customary indigenous land law in order to show the viability of traditional law.

    These two contradictory trends, modernization and traditionalism, are presented against the background of the intellectual currents of normative pluralism and colonialism. Schiller’s work was based on the premise that legal pluralism would be the future of African law. The Ethiopian codification recognized customary law only in the norms of land tenure, which Schiller used as a pretext for his project to demonstrate that law reform based on the utilization of traditional law was possible and would successfully correct the nullification of law in rural areas.

    In the end, all legal reforms were made redundant by the 1974-1975 socialist revolution in Ethiopia. The legacy of Schiller is in the development of legal pluralism, where he attempted to chart a course between the subjection of indigenous law to the state legal system and its irrelevance by advocating autonomy and development within the traditional legal culture.

    New titles from Landmark Law Cases & American Society series

    A recent review in the Law & Politics Book Review (of Herbert Johnson's Gibbons v. Ogden, below) prompted me to check up on the University of Kansas's Landmark Law Cases and American Society series. I found a bunch of new titles. Here's the list:
    Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy. Abridged and Updated (2010). [We posted a review of this one, here.]

    Joyce A. Baugh, Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation (2011).

    Peter Charles Hoffer, Free Press Crisis of 1800: Thomas Cooper’s Trial for Seditious Libel (2011).

    Earl M. Maltz, Fugitive Slave on Trial: The Anthony Burns Case and Abolitionist Outrage (2010). [This case brings back memories of TAing Mary Frances Berry's undergraduate legal history course. A student wrote an entire paper on "the trails of Anthony Burns."]

    Herbert A. Johnson, Gibbons v. Ogden: John Marshall, Steamboats, and the Commerce Clause (2010).

    N. E. H. Hull and Peter Charles Hoffer, Roe v. Wade: The Abortion Rights Controversy in American History. Second Edition, Revised and Expanded (2010).

    Mark A. Weitz, Sleepy Lagoon Murder Case: Race Discrimination and Mexican-American Rights (2010).

    Ralph A. Rossum, Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians (2011).
    A full list of titles in the series is available here (scroll down).

    Image credit: Anthony Burns image, from the Library of Congress's Slaves and the Courts, 1740-1860 collection.

    A Conversation on Human Dignity at the Kluge Center

    The John W. Kluge Center at the Library of Congress announces a discussion, Dignity of the Human Person, from 8:30 a.m. to 12:30 p.m. on Tuesday, April 26, in Room 119 on the first floor of the Thomas Jefferson Building, 10 First St. S.E., Washington, D.C. The event is free and open to the public; no tickets are needed. Speakers include John Witte, Jr., the Jonas Robitscher Professor of Law, the Alonzo L. McDonald Family Distinguished Professor and director of the Center for the Study of Law and Religion at Emory University. Jean Bethke Elshtain will moderate.

    Wednesday, April 20, 2011

    Glickstein on The Circuit Judges and the Repeal of the Judiciary Act of 1801

    After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801 has just been posted by Jed Glickstein, a Yale Law School student.  The paper relies on correspondence by judges that appears both in published collections of letters, and in archival collections, including materials at the Maryland Historical Society.  Here's the abstract:
    A student of law or American history almost always encounters the midnight judges as a mere footnote to Marbury v. Madison. Yet despite an outpouring of work on the conflict between the Republicans and the federal judiciary in the wake of the Election of 1800, insufficient attention has been paid to the judges’ role in the crisis they served to precipitate. This Article aims to correct that oversight.

    Drawing on a wide variety of documentary evidence, including a cache of archival letters between the judges that has escaped notice to date, it sketches a comprehensive picture of the judges’ efforts in defense of their offices. It also adds important new details and contextualizes others, and corrects a persistent misconception in the existing literature. And, by taking a broader perspective than the standard Supreme Court-centered account of the repeal of the Judiciary Act of 1801, it highlights the ways in which practical, political, and constitutional factors shaped and constrained the (non)resolution of the episode’s core issue: the constitutionality of abolishing the office of a sitting judge. This new evidences argues for a revised understanding that puts the midnight judges, if not on the marquee, at least in a supporting role in working out the meaning of the repeal.

    Neumann on the History of Professional Education in Law, Medicine, and Architecture

    Osler, Langdell, and the Atelier: Three Tales of Creation in Professional Education has just been posted by Richard K. Neumann Jr., Hofstra University School of Law.  Here's the abstract:
    William Osler at Grand Rounds
    Modern professional education was developed in the late nineteenth century in bursts of creativity by talented but flawed teachers. The insights they came to and the decisions they made continue to determine what both students and teachers experience today in professional schools. This article explains how that happened and why, focusing on medicine, law, and architecture.

    Medical education in its current form was created primarily by William Osler at the Johns Hopkins medical school, who led the development of bedside learning in a teaching hospital around which the medical school curriculum is centered. The enduring image of medical education is that of a medical student in a white coat working with patients in a hospital ward.

    Legal education as we know it was created primarily by Christopher Columbus Langdell at Harvard, who invented the casebook, the classroom based on Socratic questioning, and the essay exam and is associated with the development of the student-edited law review. He negotiated the Langdellian bargain, through which the financial resources of a law school are supported by the economies of scale in the large law school classroom, providing the enduring image of a teacher professing to and occasionally interrogating an audience of a hundred or more students. The required portion of the law school curriculum today has changed little since 1870, even though law, law practice, and the world in which law operates have been transformed during the intervening 140 years. Law school today is largely as Langdell left it.

    Architectural education is descended from the Parisian atelier, a design studio where students learned from a master architect and from what one scholar calls the “emotional power of the design studio experience.” The enduring image of architectural education is that of a student learning to create alone at a designing board with occasional comments from a teacher who might also sketch silently with the student.

    The article explains how education in these three professions differ because of varying value systems. It also describes the special conditions needed for paradigm-shifting breakthroughs like the invention of the casebook and the teaching hospital.

    New slavery bibliography at Ratio Juris

    Over at the Ratio Juris blog, Patrick O'Donnell (Santa Barbara City College) has updated his impressive list of online research bibliographies. The latest addition, assembled with help from Al Brophy (UNC) and Allen Mendenhall (Auburn), is on slavery.

    The 14-page bibliography takes a broad view of the subject: it includes comparative and transnational perspectives, scholarship on abolition and emancipation, and a few things on contemporary reparations debates.

    The list is also useful for rounding up new work. Here are some of the more recent titles on the list (I've excluded ones that we've mentioned recently on the blog):
    Ali, Kecia. Marriage and Slavery in Early Islam. Cambridge, MA: Harvard University Press, 2010.

    Alston, Richard, Edith Hall and Laura Proffit, eds. Reading Ancient Slavery. London: Duckworth, 2011.

    Andrews, William L., ed. Slave Narratives after Slavery. New York: Oxford University Press, 2011.

    Blackburn, Robin. The American Crucible: Slavery, Emancipation and Human Rights. London: Verso, 2011.

    Bradley, Keith and Paul Cartledge, eds. The Cambridge World History of Slavery, Vol. 1: The Ancient Mediterranean World. Cambridge, UK: Cambridge University Press, 2011.

    Burke, Diane Mutti. On Slavery’s Border: Missouri’s Small Slaveholding Households, 1815-1865. Athens, GA: University of Georgia Press, 2010.

    Desmond, Adrian and James Moore. Darwin’s Sacred Cause: Race, Slavery and the Quest for Human Origins. Chicago, IL: University of Chicago Press, 2011.

    duBois, Page. Slavery: Antiquity and Its Legacy. New York: Oxford University Press, 2010.

    Eltis, David and David Richardson. Atlas of the Transatlantic Slave Trade. New Haven, CT: Yale University Press, 2010.

    Fountain, Daniel L. Slavery, Civil War and Salvation: African American Slaves and Christianity, 1830-1870. Baton Rouge, LA: Louisiana State University Press, 2010.

    Goldstone, Lawrence. Inherently Unequal: The Betrayal of Equal Rights By the Supreme Court, 1865-1903. New York: Walker & Co., 2011.

    Greene, Sandra E. West African Narratives of Slavery: Texts from Late Nineteenth- and Early Twentieth-Century Ghana. Bloomington, IN: Indiana University Press, 2011.

    Hammond, John Craig and Matthew Mason, eds. Contesting Slavery: The Politics of Bondage and Freedom in the New American Nation. Charlottesville, VA: University of Virginia Press, 2011.

    Harrod, Stanely. Border War: Fighting over Slavery before the Civil War. Chapel Hill, NC: University of North Carolina Press, 2010.

    Hodges, Graham Russell Gao. David Ruggles: A Radical Black Abolitionist and the Underground Railroad in New York City. Chapel Hill, NC: University of North Carolina Press, 2010.

    Joshel, Sandra R. Slavery in the Roman World. Cambridge, UK: Cambridge University Press, 2010.

    Katz-Hyman, Martha B. and Kym S. Rice, eds. World of a Slave: Encyclopedia of the Material Life of Slaves in the United States, 2 Vols. Santa Barbara, CA: Greenwood/ABC-CLIO, 2011.

    Klein, Herbert S. and Francisco Vidal Luna. Slavery in Brazil. Cambridge, UK: Cambridge University Press, 2010.

    Lewis, Catherine M. and J. Richard Lewis. Women and Slavery in America: A Documentary History. Fayetteville, AR: University of Arkansas Press, 2011.

    Manegold, C.S. Ten Hills Farm: The Forgotten History of Slavery in the North. Princeton, NJ: Princeton University Press, 2010.

    Minardi, Margot. Making Slavery History: Abolitionism and the Politics of Memory in Massachusetts. New York: Oxford University Press, 2010.

    Paquette, Robert and Mark M. Smith, eds. The Oxford Handbook of Slavery in the Americas. New York: Oxford University Press, 2010.

    Popkin, Jeremy D. You Are All Free: The Haitian Revolution and the Abolition of Slavery. Cambridge, UK: Cambridge University Press, 2010.

    Rasmussen, Daniel. American Uprising: The Untold Story of America’s Largest Slave Revolt. New York: Harper, 2011.

    Snyder, Christina. Slavery in Indian Country: The Changing Face of Captivity in Early America. Cambridge, MA: Harvard University Press, 2010.

    Wallace, W. Jason. Catholics, Slaveholders, and the Dilemma of American Evangelicalism, 1835-1860. Notre Dame, IN: University of Notre Dame Press, 2010.

    Warshauer, Matthew. Connecticut in the American Civil War: Slavery, Sacrifice, and Survival. Middletown, CT: Wesleyan University Press, 2011.

    Zilfi, Madeline C. Women and Slavery in the Late Ottoman Empire. Cambridge, UK: Cambridge University Press, 2010.

    Tuesday, April 19, 2011

    Wilson on Humanity's Histories

    Humanity’s Histories: Evaluating the Historical Accounts of International Tribunals and Truth Commissions is am article by Richard Ashby Wilson, University of Connecticut.  It appeared in Politix (2007).  Here's the abstract: 
    Since the trials of high-ranking Nazi war criminals in Nuremberg during 1945-1946, commentators have been asking whether courts are the best place to write a history of war crimes and crimes against humanity. This debate gained momentum during the 1961 Eichmann trial in Israel and the Holocaust trials in France in the 1970s and 1980s, and took on new relevance during the wave of democratizations in Africa, Latin America and Eastern Europe in the 1980s and 1990s. During the 1990s, the United Nations and major donor governments adopted official policies stating that the task of writing a new official history was central to facilitating both co-existence and accountability after authoritarianism and violent conflict, and they promoted new institutions such as truth and reconciliation commissions to fulfill this undertaking. Now it is time to critically evaluate this range of institutions and ask: have international tribunals or commissions of inquiry actually provided significant insights into the origins and causes of political violence? How might states or international institutions document human rights violations in a way that is comprehensive and engages in a meaningful reckoning with the past?

    Weill on The Theoretical and Historical Origins of the Legislative Override Power

    Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Legislative Override Power has just been posted by Rivka Weill, Radzyner School of Law - Interdisciplinary Center.  Here's the abstract:
    It is often asserted that a formal constitution does not necessitate judicial review over primary legislation. Rather, a country may conceive of other mechanisms to protect the constitution from intrusion by the regular political bodies. The question arises whether the reverse holds true. Can we envision a country that exercises judicial review over primary legislation yet lacks a formal constitution? Surprisingly, Israel's constitutional system, prior to the famous 1995 United Mizrahi Bank decision, offers an affirmative answer to this question.

    This article focuses on Israel's constitutional experience during its founding period. It further explains the unique revolutionary role performed by the Israeli Supreme Court in deciding United Mizrahi Bank against the background of parliamentary sovereignty tradition. Using Israel as a case study within a comparative constitutional framework, the article offers three important lessons: First, it explains how an American style judicial review over primary legislation may co-exist with parliamentary sovereignty, notwithstanding the prevailing understanding of these two seemingly mutually exclusive frameworks. It further details the mechanisms by which judicial review can be introduced within a parliamentary sovereignty tradition. Second, it explains the theoretical and historical roots of legislative override power in common-law interpretation techniques. While the notwithstanding clause is considered a unique Canadian invention, this article suggests that Israel has exploited legislative override techniques prior to the adoption of the Canadian Charter. Last, using the Israeli and Canadian experiences, it offers several warnings about how not to interpret “notwithstanding clauses” if one desires robust constitutionalism.

    Monday, April 18, 2011

    The Survey: World War I/ Articles or Books?

    Oft-neglected, World War I provides a nice opportunity to tie themes from the 19th and 20th Centuries together, including the suspension of civil liberties during wartime (free speech), and the expansion of civil rights post-wartime (female suffrage). Question: what is a good source to assign? This semester, I lectured heavily from Paula Abrams' '09 book, Cross Purposes: Pierce v. Society of Sisters and the Struggle over Compulsory Public Education. The work touches on many of the themes that help unify late 19th and early 20th Century legal history, including vigilantism, the Klan, anti-Catholicism, and anti-communism. Further, the book provides a nice regional counterpoint to the American South, suggesting that Oregon confronted many of the same problems as Mississippi and Alabama. Yet, recurring questions of what is and is not fair use prompted me to skip assigning the book in lieu of Abrams' earlier article, "The Little Red Schoolhouse: Pierce, State Monopoly of Education and the Politics of Intolerance," published in Constitutional Commentary and available digitally on Lexis, Westlaw, and HeinOnline. Here, even though lecture came from the book, students prepared for class by reading the article. Is this feasible/desirable in other contexts? Provided that the distribution is limited to those who have access to digital services, fair use problems seem to evaporate, meanwhile the gist of the argument remains. Further, a surprising number of the best books out there also have companion/precursor articles. Examples range from Horwitz's 1973 article "Transformation in the Conception of Property in American Law," 40 U. Chi. L. Rev. 248 (1973); Dudziak's classic "Desegregation as a Cold War Imperative," 41 Stan. L. Rev. 612 (1988); and Klarman's canonical "How Brown Changed Race Relations: the Backlash Thesis," J. Am. History 81 (1994). Seems like the answer for digital readers is to nudge, whenever possible, towards assigning early article versions/portions of books rather than the books themselves. Any problems with this approach?

    Photo credit: University of Michigan Press

    Starger on Competing Traditions and Due Process Dissent

    Exile on Main Street: Competing Traditions and Due Process Dissent has just been posted by Colin P. Starger, University of Baltimore School of Law.  It will appear in the Marquette Law Review, Vol. 95, 2012.  Here's the abstract:
    Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in caselaw. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in empirical approach, this Article proposes an alternative method that permits analysis of contextual and inter-textual aspects of doctrinal development. This method proceeds by dividing doctrinal territories into rival schools of thought and then constructing opinion genealogies for each competing school. Connections between opinions – majority, concurring, and dissenting – are justified using both citation and more nuanced hermeneutic analyses. Through systematic tracking of debate between rival schools over generations, the impact of dissents is revealed in the turns taken during unfolding doctrinal argument.

    Using this method, this Article examines two key Due Process territories – economic liberty and “incorporation” – and demonstrates how uncited Supreme Court dissents dramatically changed the course of these doctrines. First, it is demonstrated that uncited dissents by Joseph Bradley in the Slaughter-House Cases and by Oliver Wendell Holmes in Lochner v. New York directly contributed to the well-known rise and fall of economic liberty. Second, the momentous battle over incorporation is proven to have dramatically turned under the influence of uncited dissents by John Marshall Harlan in Hurtado v. California and Hugo Black in Adamson v. California. The incorporation story features analysis of John Paul Stevens’ final passionate dissent after 35 years on the Court, which came in last Term’s blockbuster Second Amendment incorporation case, McDonald v. City of Chicago. Apparent contradictions in this critical opinion are resolved by connecting Stevens to the tradition of uncited great dissents that forever changed substantive due process doctrine.

    To illustrate the results of its method, this Article introduces an innovative series of “opinion maps” that graphically represent the competing due process genealogies in economic liberty and incorporation doctrine. Rendered using custom software designed by the author, the opinion maps present information-rich, epic-scale historical portraits of these key constitutional doctrines. The maps have practical and theoretical use. Practically, they offer accessible guides to the place of and relationships between major opinions in two crucial substantive due process debates. Theoretically, the figures rendered collectively suggest deep metaphors for the interpretative space we call doctrine and for the vital role dissents play in drawing lines of authority that define the shape and boundaries of this interpretative space.

    Mohamed reviews Lydon, On Trans-Saharan Trails

    Via H-Law, we've received notice of this review: Ghislaine Lydon, On Trans-Saharan Trails: Islamic Law, Trade Networks, and Cross-Cultural Exchange in Nineteenth-Century Western Africa (Cambridge University Press, 2009).

    The review, published on H-Levant, is by Mohamed Hassan Mohamed (University of Windsor). Here's the first paragraph:
    In their discourse on the network of trade linking the historic Maghrib and Bilad al-Sudan, Africanists tend to emphasize the “trans” in trans-Saharan trade. The Sahara often comes across as a barrier between what Hegel dubbed “European Africa” (north) and “Africa proper” (south). Anglophone scholars often “skip” the Sahara and posit the Maghrib mainly as a depot for the gold and slaves the caravans had picked up from its African beyond. Change and continuity are conceived in terms of decrease in the quantity of gold shipments and increase in the volume of slaves heading northward. To account for the disparity between the small number of Africans in the Maghrib and the projected increase in the volume of slave shipments, Africanists invoke miscegenation to turn “mixed” communities into signs of descent from African slaves. The situation is complicated by the standard complaint about the lack (or dearth) of local sources, often an alibi for the elevation of accounts by modern European travellers and consuls to authorities on what caravan traders were up to. Against this backdrop, Ghislaine Lydon’s On Trans-Saharan Trails is a welcome addition to Anglophone literature on northwest Africa.
    Law appears to figure most strongly in the last three chapters, on "the culture behind the caravan trade network." From Mohamed --
    In the absence of centralized states, traders utilized a variety of strategies to minimize the risks of trading in cross-cultural settings including partnership and a wide range of paper contracts. The efficacy of such arrangements, however, was contingent on the omnipresence of judges, clerics, and muftis who served as guardians of Muslim ethics of trade. According to Lydon, “documents such as contracts were not considered official legal instruments in Islamic law” (p. 293).
    The rest of the review is here. The book's TOC is available here.

    Image credit

    Sunday, April 17, 2011

    From the "Court of Literature" to the "Basement of the Ivory Tower": This Week in the Book Pages

    A popular book in this week's reviews is A Thousand Times More Fair: What Shakespeare’s Plays Tell Us About Justice (Ecco, 2011), by NYU law professor Kenji Yoshino. Yoshino uses twelve of the Bard's plays to reflect on current debates about law and justice. The reviews are mixed. In the New York Times, Gary Wills concludes that Yoshino's Law and Literature class is "probably great fun" and that "students may sharpen some lawyerly skills" by considering "how the O. J. Simpson 'bloody glove' resembles Desdemona’s ­strawberry-spotted handkerchief." "But if they want more understanding of Shakespeare, they should sneak off to the theater, where he belongs . . . ." Eric Posner (University of Chicago Law School), writing for the New Republic/The Book, offers a similarly lukewarm assessment: he praises Yoshino for drawing out "crisp lessons," but also notes occasions when the author uses Shakespeare's work to "illustrate moral platitudes."
    This week the Washington Post book review editors seem to be ruminating on the truth, and the cost of its exposure. They've chosen to cover Why Leaders Lie: The Truth About Lying in International Politics (Oxford, 2010), by political scientist John Mearsheimer, and Inside WikiLeaks: My Time with Julian Assange at the World's Most Dangerous Website (Crown, 2011), by former WikiLeaks spokesman Daniel Domscheit-Berg. The Post also takes up Gary W. Gallagher's The Union War (Harvard, 2011), an "exceptionally fine" book in which Gallagher debunks "what has become the new conventional wisdom, that the North fought the war in order to achieve the emancipation of the slaves." And did you ever want to know the truth about the founding fathers' hobbies? Now you can: the first four presidents were obsessed with horticulture, according to Founding Gardeners: The Revolutionary Generation, Nature, and the Shaping of the American Nation (Knopf, 2011), by design historian Andrea Wulf.

    "They all knew they were right." This is the title of the Wall Street Journal review of Moral Combat: Good and Evil in World War II (Harper, 2011), by independent historian Michael Burleigh. (Burleigh left academia, he explained in an interesting 2008 interview with the Guardian, to avoid becoming surrounded by "cronies" and "clones.") Reviewer Timothy Snyder (Yale University) credits Burleigh for having "seen and filled an opening in the history of World War II": the morality angle. Burleigh "insists on the ineluctable historical presence of morality in our lives, which leads him to his basic insight: that those who did evil believed that they were doing good." The full review is here.

    Also in the WSJ Books Section, Harold Holzer picks five great Civil War diaries, and Bill Kauffman reviews Howard Mean's new biography of Johnny Appleseed, "'nurseryman; religious zealot; real-estate dabbler' and even altruistic capitalist."

    The Nation spotlights the first volume of The Letters of Rosa Luxemburg (Verso, 2011), edited by Annelies Laschitzam, Georg Adler, and Peter Hudis. Reviewer Vivian Gernick distills from the collection "Luxemburg’s single most important insight -- that socialists must remain empathic beings throughout their revolutionary lives. Otherwise, she asked, what kind of world would they be making?"

    If only undergraduates could analyze primary sources so well. Over at the Los Angeles Times, you'll find a review of In the Basement of the Ivory Tower (Viking, 2011), in which the anonymous "Professor X" (of Atlantic essay fame) relates a series of "bonehead tales from the classroom" and builds an argument about the corruption of the community college system. (An earlier WSJ review -- asking "Do you have to read 'King Lear' to write a speeding ticket?" -- is here; the NYT covered the book here.)

    Also reviewed in the LA Times, Jerusalem, Jerusalem: How the Ancient City Ignited Our Modern World (Houghton Mifflin Harcourt, 2011), by former Catholic priest James Caroll. The "ambitious," interdisciplinary book uses the famous city to ground an exploration of "the tumultuous past" of three world religions. (An earlier NYT review is here.)

    "Didn't they notice?" "Why is no one paying attention?" That is the theme of David Runciman's review of Treasure Islands: Tax Havens and the Men who Stole the World (Bodley Head, 2011) by Nicholas Shaxson
 and Winner-Take-All Politics: How Washington Made the Rich Richer – and Turned Its Back on the Middle Class (Simon and Schuster, 2011) by Jacob Hacker and Paul Pierson
. The full review is in the London Review of Books.

    Passivity in the face of corruption also appears to be a theme of Cambodia's Curse: The Modern History of a Troubled Land (PublicAffairs, 2011), by Joel Brinkley, reviewed this week in the San Francisco Chronicle.

    Last, a few repeats: We've already mentioned the NYRB review of the new Gandhi biography, by Joseph Lelyveld. An additional review, from the LA Times, is here. We've also noted the publication of Francis Fukuyama's The Origins of Political Order. Reviews from the NYT, the SF Chronicle, and the WSJ are here, here, and here.

    Happy reading!

    Saturday, April 16, 2011

    Mayeri's Reasoning from Race


    Reasoning from Race: Feminism, Law, and the Civil Rights Revolution by Serena Mayeri (Pennsylvania--Law & History), which Harvard University Press will officially release on May 5th, 2011, already is available online. Here is the first paragraph of the publisher's description of the book:

    Informed in 1944 that she was “not of the sex” entitled to be admitted to Harvard Law School, African American activist Pauli Murray confronted the injustice she called “Jane Crow.” In the 1960s and 1970s, the analogies between sex and race discrimination pioneered by Murray became potent weapons in the battle for women’s rights, as feminists borrowed rhetoric and legal arguments from the civil rights movement. Serena Mayeri’s Reasoning from Race is the first book to explore the development and consequences of this key feminist strategy.

    Here are excerpts from endorsements of the book. Barbara Welke (Minnesota--History) writes: "Reasoning from Race sets as its ambition to trace the history of how sex-equality federal statutes and constitutional jurisprudence came to rely on and in turn often be limited by analogies to race. ... Mayeri succeeds brilliantly." Nancy MacLean (Duke--History) calls the book "powerful" and "important." And Laura Kalman (Cal-Santa Barbara--History) adds: "This brilliant book opens an entirely new window on the vexed relationship between civil rights and the women's movement."





    Weekend Round-up

    • For those interested in last week's Slavery's Capitalism conference (we announced the program here), check out Al Brophy's coverage over at the Faculty Lounge.
    The Weekend Round-up is a weekly feature compiled by all the Legal History Bloggers.