Thanks to Charles Zelden

The Legal History Bloggers are grateful to Charles Zelden for starting 2012 off with a month of guest posts on the past and present of election law.  He has put the shifting tally of the Iowa caucuses and Virginia's ballot access laws in historical perspective, explained how he does 21st-century history, informed us about vote denial and dilution in the South, and taken a look back at South Carolina v. Katzenbach.  Thanks Charles!

CFP: U.S. Intellectual History

The Society for U.S. Intellectual History has just announced the Call for Papers for the Fifth Annual Conference, Co-sponsored and hosted by the Center for the Humanities, The Graduate Center of the City University of New York.  It will be held (again) in New York City, November 1-2, 2012.  Proposals due: June 1, 2012.  All the details are here.

Highly recommended.  This is a great, smallish conference, and for it's size gets rather outsized NYT coverage.

Where to Buy Books

I've added to the sidebar a new entry with links to independent bookstores and other non-Amazon book buying options.  It appears right underneath the blogger book covers.  I'm not promoting any place in particular -- just making it easier for you to quickly find books at a variety of places.  If you'd like to suggest others, please do so in the comments.

• IndieBound
• Independent Bookstore List & Links
• Powell's Books
• Strand Bookstore (NYC)
• Labyrinth Books (Princeton)
• Politics & Prose (DC)
• Barnes and Noble
• Independent Online Booksellers (used & out of print)

Keith Law Collection Acquires Feikins Papers

[The press release from Wayne State follows:]

The Damon J. Keith Law Collection of African American Legal History has announced the donation of the papers and records of the late Honorable John Feikens, former judge of the U.S. District Court for the Eastern District of Michigan. Judges Damon J. Keith and John Feikens served as the inaugural co-chairmen of the Michigan Civil Rights Commission from 1963 to 1966, demonstrating a shared commitment to civil rights and equal justice.

Before his death, Judge Feikens was adamant that his materials be given to the Keith Collection in view of his lifelong friendship with Keith. "Judge Feikens was a dear friend and a thoughtful and compassionate jurist who cared deeply about his community, the larger issues in society and the role judges could play in shaping society," said Keith. "We are honored to have his papers as part of the Keith Collection."

Judge Feikens was appointed to the bench in 1970 and served as the chief judge of the Eastern District of Michigan from 1979 to 1986, at which point he took senior status.  He has been recognized for his integrity and willingness to stick up for the "little guy." His materials include documents and artifacts relating to his time on the bench and will become available to scholars and researchers in the near future, after they are processed by Wayne State University's Reuther Library, where they will be housed.

The Damon J. Keith Law Collection of African American Legal History at Wayne State University Law School was created to record the history of African American lawyers and judges. The mission of the Keith Collection is to collect, preserve and provide resources pertaining to African American legal history, including the history of prominent African American lawyers, judges and lawmakers whose service to the community reflects an interest in and commitment to civil rights and social justice. The Keith Collection works in partnership with the Walter P. Reuther Library, a world-renowned archival repository, the Damon J. Keith Center for Civil Rights and the Wayne State University Law School.

Fiscal Sociology at SSHS

[We have the following announcement of the fourth annual Workshop on Comparative Historical Approaches to Fiscal Sociology, to be held in conjunction with the annual meeting of the Social Science History Association.]

In recent years, scholars from a variety of disciplines have embarked on an innovative wave of multidisciplinary research on the social and historical sources and consequences of taxation. We invite interested graduate students from history, law, and the social sciences to participate in a one-day workshop on this "new fiscal sociology." In addition to brief lectures introducing students to the basics of taxation and the comparative history of taxation, the workshop will consist of discussion of classic and contemporary texts.

The workshop will be held on Wednesday, October 31, 2012, in Vancouver, B.C., in conjunction with the annual meetings of the Social Science History Association (SSHA).  Interested students will also have a chance to present their own work on Thursday, November 1, as part of the SSHA conference.

Space is limited. Small housing and travel stipends will be provided for a limited number of applicants under a grant from the National Science Foundation.

Applicants should submit a CV and a paragraph explaining their interest in this workshop, and (if applicable) a draft of a research paper that they would be willing to present at the SSHA. Preference will be given to students who also submit conference papers, but we encourage applications from all students interested in the workshop, including those at early stages of their graduate career.

Submit materials via e-mail to:

Monica Prasad, Department of Sociology, Northwestern University ( m-prasad@northwestern.edu ); and
Ajay Mehrotra, Maurer School of Law, Indiana University - Bloomington ( amehrotr@indiana.edu ); and
Isaac Martin, Department of Sociology, University of California - San Diego ( iwmartin@ucsd.edu ),

no later than February 20, 2012.

Symposium: Legal Heterodoxy in Islamic and Jewish History

The UC Berkeley School of Law Program on Jewish Law and the Robbins Collection have announced a symposium on Legal Heterodoxy in Islamic and Jewish History: Late Antique and Medieval Transformations. The symposium, which is free and open to the public, will take place at Boalt Hall on April 23-24, 2012.  

Here's a glimpse of the program:


April 23:

10:00 a.m.: Legal Systems of the "Other"
Islam Dayeh (Freie Universitat Berlin), Yaakov Elman (Yeshiva University), and Shari Lowin (Stonehill)

1:30 p.m.: Minority & Dissenting Opinions 
Intisar Rabb (Boston College), Azzan Yadin-Israel (Rutgers), and Philip Ackerman-Lieberman (Vanderbilt)

4:00 p.m.: Orthodoxy & Heresy
Mohammed H. Benkheira (Sorbonne), Naftalis Cohn (Concordia), Danial Boyarin & Lena Salaymeh (UC Berkeley)

April 24:

9:30 a.m.: Legal & Theological Hermeneutics
Mohammad Fadel (University of Toronto), Steven Fraade (Yale), Michael Pregill (Elon)

To register, or for more information, contact Lena Salaymeh or Noah Greenfield.

Cushman Reviews Shesol's "Supreme Power"

Barry Cushman, University of Virginia School of Law, has posted The Man on the Flying Trapeze, his review of Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (W.W. Norton & Co., 2010).  The review will appear in University of Pennsylvania Journal of Constitutional Law 15 (2012).  Here is the abstract.

Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression. The third is how to specify the relationship between these two stories. What effect, if any, did the events recounted in the political story have on the legal story? Each of the three Parts of this essay offers an evaluation of Mr. Jeff Shesol's efforts to address each of these questions in his book, Supreme Power: Franklin Roosevelt vs. The Supreme Court. Part I discusses Mr. Shesol's treatment of the political story; Part II takes up his account of the legal story; and Part III explores his analysis of the relationship between the two. I conclude that while Mr. Shesol does a very nice job with the first question, his efforts to answer the second and the third are not nearly so successful

The promise and perils of doing Twenty-First Century history

Writing the history of contemporary events – events that you yourself not only witnessed, but witnessed with the expectation that you would write about them in a scholarly context – can be peculiar and yet oddly rewarding. To be sure, it has its risks.In 1614, while imprisoned in the Tower of London, the English courtier, sailor, soldier, and literary figure Sir Walter Raleigh amused himself with writing a history of the world. In his preface, he noted that some might object to his going back to the beginning and instead would have preferred that he write the history of his own time: “To this I answer, that whosoever, in writing a modern history, shall follow truth too near the heels, it may haply strikeout his teeth.”

I still have all my teeth, even though I have tried writing about twenty-first-century episodes in the history of voting rights and election law. This adventure’s beginnings took me by surprise – but the events that gave rise to them took us all by surprise. As a constitutional historian who knew something about voting rights and the workings of the judicial system, I spent much of November and December 2000 as an expert commentator for local TV news in South Florida. My role persisted for five weeks, as the events of what we came to call Bush v. Gore unreeled before us. Like many historians, political scientists,and legal scholars, I struggled to explain events and constitutional arguments to a general audience, seeking to make sense of a chaotic situation that was becoming the focus of heated passions on left and right. I kept answering media questions, based on my sense of how the judicial process was supposed to operate, that sometimes turned out to be wrong; at other times, I had to admit that I had no answers. I found myself writing down questions and issues that I knew demanded further study. Before long, I realized that someday I would write about the history left behind by these messy and impassioned events.

This is the first promise of doing twenty-first century history: that looking at contemporary events with a historian’s eye offers the chance to evaluate events critically, as they are happening, as a preliminary step to a considered investigation of these events. The second promise of doing twenty-first century history is the recovery, preservation, and distillation of what will constitute the raw material of the historical record. This second promise is much easier because time has not yet had a chance to erode that historical raw material. Although some archival materials (such as papers of judges or Justices) may be beyond the historian’s reach for now,public documents (such as court filings, newspaper accounts, and government reports)are easily found, accessed, and assembled. What makes possible this wide-ranging recovery of that historical raw material? The Internet. With regard to Bush v Gore, for example, I was able to read every court filing in every one of over forty cases comprising the storm of litigation surrounding the 2000 Florida presidential vote; I could read almost every newspaper account of the events of November and December 2000; and I could get copies of these sources and of nearly every report, government or private, studying the historical events and their ramifications. The book that I finally published in 2008 -- Bush v. Gore: Exposing the Hidden Crisis of American Democracy (University Press of Kansas) – was solidly based on archival research – but it was archival work that I could do in the comfort of my own home and office, within a rich and deep archive that I had assembled and organized myself. As a result, I could research, write, and publish my book much sooner and in more detail than would have been the case had I been investigating an older topic requiring extended visits to regional and national archives and research libraries.

To be sure, the account I’ve just given seems too optimistic. The greatest peril is your readers’ memory of the history you’re writing about, which may be a mix of what historian Bernard Lewis called “remembered” and “invented” history, as opposed to the “recovered” history that you’re hoping to present.

Put simply, historians doing twenty-first century history faces the daunting task of convincing people to read their work, and thereby to expose themselves to a new and perhaps counter-intuitive argument, when they already may have made their minds up on the subject so strongly that they will resist any contrary perspective.

In fact, I ran into that very problem almost from the moment that I began writing, and I found that the problem afflicts the audience most likely to be reading this blog entry: legal and constitutional historians. For us, as for most Americans,the electoral deadlock of 2000 was a historical event as traumatic and memorable as the assassination of John F. Kennedy in 1963 or the destruction of the space shuttle Challenger in 1986 Suddenly, the subjects on which so many of us work – the U. S. Constitution, the judicial process, the right to vote – mattered to an extraordinary range of people beyond our narrow professional circle; what already was important to us, had become important to everyone. Further, many of us tracked the events of 2000 closely and with care; we read briefs and watched or listened to the oral arguments; and we read and re-read the opinions generated by the cases in the various levels of courts that heard them. Many of us wrote on the subject, explaining and offering critiques of these events. And even those of us who did not write ourselves read the writings of colleagues.

U Michigan Legal History Workshop Schedule

The schedule for the Winter 2012 University of Michigan Law School Legal History Workshop, led by Bill Novak and Martha Jones, is now available.

January 31. Michael Vorenberg, Brown University
"Birth, Belief, and Blood: Allegiance, Law, and the American Civil War"

February 7. Visit to the William L. Clements Library. (Closed Session.)

February 14. Chris Schmidt, Chicago-Kent Law School
"Divided by Law: The Sit-Ins, Legal Ambiguity, and the Role of the Courts in the Civil Rights Movement"

February 21: Nick Parillo, Yale Law School
"Against the Profit Motive: The Transformation of American Government, 1780-1940"

March 6: Sophia Lee, University of Pennsylvania Law School
"The Workplace Constitution: Race, Labor and Conservative Politics from the New Deal to the New Right"

March 13: Mark Tushnet, Harvard Law School
"Civil Liberties After 1937 -- The Justices and the Theories"

March 20: Adriaan Lanni, Harvard Law School
"Law and Order in Classical Athens"

March 27: John Hudson, St. Andrews/Michigan Law
"The Varieties of Legal History"

April 3: Veronica Santarosa, Michigan Law
"Financing Long-distance Trade without Banks: the Joint Liability Rule and Bills of Exchange in 18th-century France"

April 10: Sara McDougall, CUNY/John Jay College
"Husbands, Wives, and Adultery in Late-Medieval France"

Dedek on Scholastic Jurisprudence and Us

Helge Dedek, McGill University Faculty of Law, has posted The Splendour of Form: Scholastic Jurisprudence and "Irrational Formality," which appeared in Law and Humanities 5 (2011): 349-383.  Here is the abstract:    

The Western legal tradition portrays itself as a tradition of rationality. Although this tradition has its roots in the academic treatment of law at the medieval university, the medieval juridical mannerisms seem to be anathema to the Weberian "formal rationality." Scholasticism has become the synecdoche for the problems we moderns have when trying to access medieval thought. Medieval Scholastic jurisprudence seems prima facie strangely formalistic, guided by ambitions that are incomprehensible to the "modern mind." Yet medieval jurisprudence is not as remote from us as it might seem at first glance. This paper aims to demonstrate that what connects the medieval and the modern jurist are aspects of legal discourse that cannot be explained in `rational' terms. To this end, the paper focuses on the "legal aesthetics" of the Scholastic jurists, exemplified by an inquiry into the doctrine of "interesse," one of the most controversial areas of the law of damages.

Give and Take: This Week in the Book Pages

Perusing this week's book pages, Olivier Zunz's Philanthropy in America: A History (Princeton University Press) stood out to me as particularly interesting. Pablo Eisenberg's review, for the Nation, describes the book as "sweeping" and "insightful." The book "trace[s] the evolution of American philanthropy over the past 150 years," focusing specifically on philanthrophists' efforts to "influence and change national policies in the realms of science, education, health, economic development and anti-poverty programs." Read on here.

The Nation also offers a Q&A with Frank Bardacke, about his new book Trampling Out the Vintage: Cesar Chavez and the Two Souls of the United Farm Workers (Verso). The book "tells the dramatic story of the rise and fall of the UFW," with "emphasis on the rank-and-file leaders, who are too often obscured by the long shadow cast by Chavez."

For subscribers to the Chronicle of Higher Education, I recommend Nina Ayoub's review of Armed With Abundance: Consumerism and Soldiering in the Vietnam War (University of North Carolina Press), by Meredith H. Lair. This "fluid and engrossing new book" seeks "to enlarge public notions of American soldiering" by studying day-to-day life and material conditions.

A different war crops up in the book pages of the Wall Street Journal. John B. Hattendorf reviews 1812: The Navy's War (Basic Books), by George C. Daughan, and How Britain Won the War of 1812: The Royal Navy's Blockades of the United States, 1812-1815 (Boydell Press), by Brian Arthur (here).

This week in the New York Times, you'll find a review of Jews and Booze: Becoming American in the Age of Prohibition (New York University Press), by Marni Davis. Underneath the "beguiling title," writes reviewer Sam Roberts, is "a thoughtful, instructive and often insightful dissertation that is much drier than it needs to be." Here's a taste:

Prohibition presented a dilemma. “Should Jews insist on ‘special rights’ for the sake of their own historical continuity, or break with the past for the sake of assimilation?” That dilemma, Davis writes, meant that “in the years leading up to and during national Prohibition, Jews who made a living selling liquor, or who defended alcohol’s legal availability, unwittingly acted as flash points for American anxieties about immigration and ­capitalism.”

Read on here.

Also reviewed Elizabeth the Queen: The Life of a Modern Monarch (Random House), Sally Bedell Smith (here), and God's Jury: The Inquisition and the Making of the Modern World (Houghton Mifflin Harcourt), by Cullen Murphy (here).

A new issue of the New York Review of Books is out. Subscribers will want to check out Andrew Delbanco's review of American Oracle: The Civil War in the Civil Rights Era, by David W. Blight. 

Non-subscribers may read Anatol Lieven's essay on "Afghanistan: The Best Way to Peace." It covers nine recent books on the topic. 

Much more from the NYRB -- on Hitler, Occupy Wall Street, the Bible, and national security -- is here.

This week the New Republic: The Book spotlights Liberation Square: Inside the Egyptian Revolution and the Rebirth of a Nation (St. Martin's Press), by Ashraf Khalil (here). World War Two buffs may also be interested in the magazine's review of Monty and Rommel: Parallel Lives (Overlook Press), by Peter Caddick-Adams (here).

They say that history is stranger than fiction. Keith Heyer Meldahl says that geology, is too. Check out a review of his new book, on the formation of the American West (Rough-Hewn Land), in this week's Los Angeles Times, here.

Voting for OAH Election Closes Feb.1

If you are a member of the Organization of American Historians and you want to vote, the slate of candidates is here.

To cast a vote, find the email the OAH sent you, with a link, or go here and enter your member ID number.

Weekend Round-Up

• Wanita Scrogg's review for the AALL Spectrum of Micheal Ariens's Lone Star Law is here.

• Timothy Sandefur laments the state of California's constitutional history on the Pacific Legal Foundation's PLF Liberty Blog.

• Philip Hamburger has posted the essay Judicial Office and the Liberty Protected by Law on the Library of Law and Liberty blog.  Stephen Presser and James Stoner respond.

• On January 30, from 4:00 to 5:30 p.m, the Washington History Seminar of the Woodrow Wilson International Center for Scholars' History and Public Policy Program (in collaboration with the National History Center) will be devoted to "Roosevelt and Churchill" with Warren Kimball.  Kimball is the Robert Treat Professor Emeritus at Rutgers University and the editor of Churchill and Roosevelt: The Complete Correspondence.  The seminar will take place in the Wilson Center's 6th Floor Moynihan Boardroom in Washington, D.C..  Reservations are requested at HAPP@wilsoncenter.org or 202-691-4166.

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

Upcoming Deadlines and Opportunities for Graduate Students

In addition to the Summer Institute on Archival Research posted below, here are a few other opportunities and upcoming deadlines for graduate students.

Miller Center National Fellowship.  Applications for the Miller Center National Fellowship are due February 1.  The Miller Center awards fellowships to those completing dissertations in American politics, foreign policy, and world affairs, or on the impact of global affairs on the U.S.

"Crossing Boundaries, Workshopping Sexualities." The Sexualities Section of the American Sociological Association has an excellent opportunity for sociologists of sexuality studies, and particularly for graduate students.  The first national mini-conference on sexuality studies in sociology will be held at the ASA’s annual meeting in Denver from August 17-20.  Those doing historical sociology or socio-legal studies might want to check out the “Crossing Boundaries,Workshopping Sexualities” website.  Submissions are invited for dissertation master classes, works-in-progress sessions, and “critical issues” workshops.  Proposals are due February 15.     

LSI Graduate Student Paper Competition. Submissions for the 2012 Lawand Social Inquiry Graduate Student Paper Competition are due March 1, 2012.  

Seminar on Archival Research for Grad Students in Cold War and Post-1945 International History

Summer Institute on Conducting Archival Research

The Summer Institute on Conducting Archival Research (SICAR) is a five-day seminar in which Ph.D. students receive training in conducting archival research. Although archival research is an integral part of many academic disciplines, it is virtually never taught at the graduate level. In an effort to address this deficiency, the George Washington University began the Summer Institute in 2003. SICAR welcomes students working on dissertation topics related to the Cold War and post-1945 international history. In 2012, the Summer Institute will continue to welcome participants from various disciplines including history, government and politics, international relations, sociology, anthropology, and public policy, as well as area and regional studies. Preference will be given to students who have defended their dissertation proposal and who are about to embark on archival research. The 2012 workshop will be held from May 21-25 (students will need to arrive by May 20). The deadline for applications is February 6 , 2012.

More details are here.

Frydman on the History of Legal Interpretation and Legal Reasoning

The Meaning of Laws: A History of Legal Interpretation and Legal Reasoning has been posted by Benoit Frydman, Perelman Centre for Legal Philosophy, Free University of Brussels. It is an excerpt from his book, LE SENS DES LOIS: HISTOIRE DE L'INTERPRETATION ET DE LA RAISON JURIDIQUE, p. 708, Paris-Bruxelles, 2005.The SSRN posting and the book are in French.  Here's the short abstract:

This book provides a history of legal thinking and reasoning. It focuses on the tools, methods and procedures to interpret legal texts. The book analyses 10 consecutive models: rhetorical; biblical-Talmudic; patristic; scholastic; geometrical; philological-historical; sociological; economical; normative-positivist and pragmatic.

PostDoc at Penn: Constitution Making

University of Pennsylvania

DEMOCRACY, CITIZENSHIP AND CONSTITUTIONALISM POSTDOCTORAL FELLOWSHIP in the Social Sciences and the Humanities 2012-2013

The Penn Program on Democracy, Citizenship, and Constitutionalism (DCC) invites applications for one (1) one-year postdoctoral fellowship in the social sciences or the humanities.  Applicants’ research should be relevant to the DCC Program’s 2012-2013 theme, “Constitution Making.” The DCC Fellow will teach one undergraduate seminar.  Eligibility is limited to applicants who will have received their Ph.D. within five years prior to the time they begin their fellowship at Penn (May 2007 or later). $53,800 stipend and health insurance.  Application deadline: March 16, 2012. For guidelines and application, see the School of Arts and Sciences website or write DCC Postdoctoral Fellowship, Office the Dean, School of Arts and Sciences, University of Pennsylvania, 1 College Hall, Room 116, Philadelphia, PA 19104-6377.  The University of Pennsylvania is an equal opportunity/affirmative action employer.

H-Net Review Round-up: Lincoln, Human Rights, Abortion, and more

Via H-Law, we've received word of a number of interesting H-Net reviews:

For H-CivWar, Lewie Reece (Anderson University) reviews Roger D. Billings & Frank J. Williams, eds., Abraham Lincoln, Esq.: The Legal Career of America's Greatest President (University Press of Kentucky), and Harold Holzer, Craig L. Symonds, & Frank J. Williams, eds., The Lincoln Assassination: Crime and Punishment, Myth and Memory A Lincoln Forum Book (Fordham University Press) (here).

For H-Histsex, Lori Beaman (University of Ottowa) reviews Cardell K. Jacobson & Lara Burton, eds., Modern Polygamy in the United States: Historical, Cultural, and Legal Issues (Oxford University Press) (here).

For H-Human-Rights, Eric Wiebelhaus-Brahm (Florida State University) reviews Lilian A. Barria & Steven D. Roper, eds., The Development of Institutions of Human Rights: A Comparative Study (Palgrave Macmillan) (here).

For H-SHGAPE, Molly Varley reviews Jamie Q. Tallman, The Notorious Dr. Flippin: Abortion and Consequence in the Early Twentieth Century (Texas Tech University Press) (here).

For H-Africa, Filip Reyntjens (University of Antwerp) reviews Zachariah Cherian Mampilly, Rebel Rulers: Insurgent Governance and Civilian Life during War (Cornell University Press) (here).

AHA Annual Meeting Coverage (brought to you by the AHA)

AHA Today has posted coverage of several sessions from the AHA's recent annual meeting that may be of interest to our readers.  Graduate students might find the session on Turning Your Dissertation Into a Book useful. "Compression and concision—prune, prune, and prune some more—were the panel’s watchwords." But that advice "floated in tension with its seeming opposite: that in the transformation from dissertation to book, our subjects must be more widely contextualized."  Those interested in political and social history will find commentary during the session, Historians and the Obama Narrative, of interest. A consensus emerged that President Obama is a "pragmatist," "someone able to see the world from a variety of perspectives, finding no single truth, but remaining always open to re-framing and reassessment."  Historian James McPherson--called "America's historian"--was feted at the annual meeting.  Read about the session, "A Life in American History," here.  The session on U.S. State Archives and Government Information Secrecy turned on the question of "finding the right balance between safeguarding and sharing sensitive government documents is the key to a functional but reasonably transparent system."  That balance is elusive.  Finally, consider coverage of  two sessions about technology and its impact on the profession, Whither the Future of the History Textbook, and Geeks Bearing Gifts: New Tools for the Humanities.

Minnesota's Legal History Workshop

Here is the schedule for this semester's meeting of the Legal History Workshop/Seminar Series at the University of Minnesota.  The workshop meets from 3:35 to 5:30pm in Room 55 of the Law School (Mondale Hall).

February 1: Ari Bryen, ACLS Faculty Fellow in Rhetoric and Classics, University of California, Berkeley
"Martyrdom, Rhetoric, and the Politics of Procedure"

February 10 (Friday): Adam Kosto, Professor of History, Columbia University 12:15-2:10 p.m. "Medieval Hostages, Contract Theory, and the History of International Law"

February 24 (Friday): Samuel Moyn, Professor of History, Columbia University 12:15-2:10 p.m. From Antiwar Politics to Antitorture Politics"

February 29: Oren Gross, Irving Younger Professor of Law, University of Minnesota
"Words as Power: The Rhetoric of War in Historical Perspective"

March 7: Erickson Lecture, Room 50, 3:30 p.m.
Lauren Benton, Professor of History and Affiliate Professor of Law, New York University
"The Trial of Arthur Hodge: Petty Despots and the Making of an Imperial Legal World"

March 21: Rebecca Rix, Assistant Professor of History, Princeton University
"'We, the People'? Redefining Representation and 'the Public' in the Progressive Era"

March 28: Sophia Lee, Assistant Professor of Law, University of Pennsylvania Law School
"The Workplace Constitution: Race, Labor, and Conservative Politics from the New Deal to the New Right"

April 4: Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Professor of History, Princeton University
"Someday All This Will Be Yours: A History of Inheritance and Old Age"

April 11: Paul Halliday, Professor of History and Law, University of Virginia
"The Courtroom, the Clerk's Archive, and the Judge's Voice: Technologies of Judicial Authority in Eighteenth-Century England"

The schedule with abstracts is here.

Rosenberg on Classical Contract Law

Anat Rosenberg, Interdisciplinary Center, Herzliyah-Radzyner School of Law, has posted Classical Contract Law, Past and Present.  Here is the abstract:

This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It shows how despite significant controversies among historians, a widely shared consensus has it that nineteenth-century contract law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism - but they functioned as external critiques and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with the individualism of its age. 

The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning of contract at the decisive era for modern contract law's development. This idea's persistence bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness.

Colley on the Unwritten Constitution

On January 12, Professor Linda Colley, of Princeton's History Department, testified before the Political and Constitutional Reform Committee of the House of Commons at a hearing entitled "Mapping the Path to Codifying--or Not Codifying--the UK's Constitution."  Professor Colley commenced:

It is famously said that we have an unwritten constitution. It might be interesting to think that that phrase "unwritten constitution" is, in historical time, relatively new. You can now search parliamentary debates on computer. Hardly anybody talks in Westminster about an unwritten constitution before 1850. It is rare in Westminster and the media really up to the 1870s. It is only then that the idea of an unwritten constitution really becomes ensconced in political analysis here. Why is that so? Partly because people had a much stronger sense than they do now of the extraordinary texts that support the constitution: Magna Carta, the Petition of Rights, Habeas Corpus, the Bill of Rights, the Acts of Union with Scotland and Ireland. Even the 1832 Reform Act when it was passed was referred to as a "new constitution".

One thing that has happened, particularly since the second world war, is that we have lost a lot of that broad knowledge of important constitutional texts. This is something of a challenge....

The complete and uncorrected transcript of the hearing, at which Dr. John Allison, Senior Lecturer in Law, Cambridge University, also spoke, is here.

"There but For the Grace of God Go I"

On January 21, while the eyes of the political world were focused on the South Carolina primary, the Iowa Republican Party officially announced that Rick Santorum – notMitt Romney -- had won the Iowa caucuses.   Of course, for days we’d known that the vote total in Iowa was problematic, but the official results from election night (January 3), when Romney was declared the winner by 8 votes, remained in force until Saturday, January 21.  . The announcement of Romney’s victory was based, however, on the uncertified results from January 3.  This was where the problems began.   As both the2000 Presidential race in Florida and the 2008 Senate race between Al Franken and Norm Coleman in Minnesota should have taught us, the counting of votes does not end on election night.  It can take weeks for all the votes to be officially counted and certified.  During this period, vote totals change as elections officials discover uncounted ballots and add them to the vote totals.  In Iowa, it turned out that eight precincts never had their votes counted.  Vote totals were consequently revised; the resulting changes gave Santorum a 34-vote victory.

Most of the press commentary on Iowa’s vote counting gaffe has focused on the workings of the caucus system, the professionalism of the Iowa GOP, and questions whether Iowa’s standing as the first-in-the-nation state on the presidential calendar is threatened.  Some commentators have questioned the relevance of the Iowa caucuses, which don’t actually choose any delegates; they contend that the caucuses are largely a media invention with little practical impact except to drive out fringe presidential candidates.

While all of these are valid points, they all miss the big picture.   

"Immigration Battle," "Sex Panic": Two New Reviews from the LPBR

The latest batch of reviews from the Law and Politics Book Review includes a few noteworthy items:

Karen A. Woodrow-Lafield (University of Maryland College Park) reviews The Immigration Battle in America's Courts (Cambridge University Press), by political scientist Anna O. Law (DePaul University). Here's a taste:

The core empirical inquiry is whether the Supreme Court of the United States and the U.S. Court of Appeals are contrasting in opposing and welcoming aliens’ claims for status. The central arguments are that each court’s unique institutional context serves to shape judges’ perception of roles, that each court’s role has been dynamic, and that evolving institutional settings have multiple consequences. Overall, the federal judiciary serves the roles and missions as conceived by the founders.

Chapter 3, on the federal judiciary's historical role in this area, may be of the most interest to readers of his blog. It identifies "[t]hree factors . . . at play in the evolution of the Supreme Court and Courts of Appeals –key pieces of legislation, 'judicialization' of immigration policy, and agency choices of enforcement strategies in U.S. immigration policy."

Read on here.

Also reviewed: Sex Panic and the Punitive State (University of California Press), by anthropologist Roger N. Lancaster (George Mason University). According to reviewer Joseph Fischel (Brown University), Lancaster "insists that episodic 'sex panics' are not simply sensationalist, epiphenomenal media accounts produced for profit, but rather reflect and reiterate what he calls forms of 'punitive governance.'" The rise of "punitive governance" is evident in "the extension of the state’s supervisory and carceral powers, the expansion and subsequent legitimation of security measures, and the enactment of harsher regulatory and punitive laws."

LHB readers may be particularly interested in some of the historical examples that Lancaster invokes:

1930s public alarm around the sexual stranger; postwar, McCarthy era crackdowns on homosexuals and other nonconforming sexual subjects; teen prostitution and child pornography purges in the late 1970s; public hysteria around AIDS and (manufactured) satanic ritual abuse rings of the 1980s; and finally, a seemingly unending parade of sex offender statutes in the 1990s and 2000s, catalyzed most explicitly (though not at all entirely) by singularly heinous but statistically unrepresentative events of sexual violence . . . .

Read on here.

Ando, "Law, Language, and Empire in the Roman Tradition"

Clifford Ando (image credit)

Clifford Ando, Professor of Classics, History, and Law at the University of Chicago, discusses his new book Law, Language, and Empire in the Roman Tradition (University of Pennsylvania Press) in a recent issue of Rorotoko.

On the book "in a nutshell":

For complicated reasons, Roman law as an academic discipline long remained fixated on describing its rules.  How did one write a will at Rome?  What was the age of marriage?  Books had titles like “The Roman law of slavery.” 

My book attempts to side-step questions about what Romans lawyers thought—in order to ask about how they thought.  Why did they think law changed?  How did they think change in the law could or should be justified?  And how did they think legal institutions could or should adapt to social change? 

For the fact of the matter was, Roman society was in constant flux. . . .

On how he came to the project:

Despite popular visions of Rome as a society of empire and of laws, this was not how professional historians saw the matter. For a generation at least, the dominant picture had instead been of ancient government as minimalist in its achievements and even its intents. 

I therefore embarked on a large-scale history of the role of government in social and cultural change. To do that, I had to take Roman law more seriously than I had in the past.

Ando concludes with some thoughts about the book's broader significance. He hopes it will "draw attention to the astonishing creativity of Roman lawyers," as well as to "an understudied problem in the history of the Roman law, namely, the historical priority of private law at Rome, in contrast to all other forms of legal thought."




Read on here.

Experts, Moochers, Pundits, Harlots: This Week in the Book Pages

This week in the book pages, Roads to Power: Britain Invents the Infrastructure State (Harvard University Press), by historian Jo Guldi, caught my eye. Here's a snippet of the Wall Street Journal review:

To summarize [Guldi's] argument, roads were wretched before central government got involved. Only when the expertise of state-funded professionals was put to work did the country become properly traversable. Then a combination of libertarian ideologues and not-in-my-backyarders (along with the odd misguided radical) blocked progress. The parish and turnpike roads that followed were a disappointment, indeed a disaster, for poorer and more outlying regions. Many local corporations found that the income from their tolls was insufficient to maintain their roads. Eventually the central state was forced to step in, take over the unprofitable routes and put the experts back in charge. Ms. Guldi then goes on to extend that argument to our own age: President Obama's Recovery Act, free Wi-Fi in public libraries, Chinese bullet trains, etc.

Continue reading here.

Also in the WSJ:

• Coverage of Heaven Cracks, Earth Shakes: The Tangshan Earthquake and the Death of Mao's China (Basic Books), by British writer James Palmer. It chronicles the events of 1976, in which "a cataclysmic upheaval—physical, political, economic—. . . sent China rocketing toward its present wealth and superpower status." Read on here.  

• A review of three new books on leadership, under the byline "History's most fearsome commanders have lessons for business today, even without the pillaging." (The commanders are Julius Caesar, Atatürk, and Hannibal.)

• A review of A Nation of Moochers: America's Addiction to Getting Something for Nothing (St. Martin's Press), by Charles J. Sykes. It is "a talk-radio segment in book form" in which the author gathers Goldman Sachs, public employees, school lunch beneficiaries, and infants born on Medicaid under the rubric of "irresponsible grasping."

In the book pages of the New York Times, readers will want to check out historian Mary Beth Norton's review of The Lives of Margaret Fuller: A Biography (W.W. Norton & Co.), by John Matteson. Here's the first paragraph:

Margaret Fuller, a woman of great talent and promise, had the misfortune to be born in Massachusetts in 1810, at a time and place in which the characteristics of what historians have termed “true womanhood” were becoming ever more rigidly defined. Well brought-up women like herself were to be cultured, pious, submissive and genteel. Fuller, by contrast, was assertive and freethinking. She was also — and to some extent, still is — a difficult person to like.

Read on here. Another review of the book, from the WSJ, is here. 

Also noteworthy:

• John McWhorter's review of Speaking American: A History of English in the United States (Oxford University Press), by Richard W. Bailey. The book "argues that geography is largely behind our fluid evaluations of what constitutes 'proper' English."

• Charles Isherwood's review of Ben Jonson: A Life (Oxford University Press), by Ian Donaldson. It is a "happily readable new biography" of "Britain's first literary celebrity."

• Tony Perrottet's column on what historians may learn from guides to local harlots.

Weekend Round-Up

• It is probably a breach of scholarly decorum to point out when colleagues have been remaindered.  With apologies, then, we note that until the end of the month you can get copies of Owen Fiss's and William Wiecek's contributions to the Holmes Devise History of the U.S. Supreme Court for only $20 a piece during the Cambridge University Press's New Year American History Sale.

• 

  image credit

  The Liberty Fund has started the Library of Law and Liberty, a blog that will include, among other things, reviews of works of constitutional and legal history.

• Lucky law students at the University of Hawai'i: during the January term they can take legal history (or legal history inflected) courses from Christine Desan and Lawrence M. Friedman.

• The Frances S. Summersell Center for the Study of the South at the University of Alabama invites researchers to apply for fellowships to use the University's collections. Resources in legal history include the files of Huntsville lawyer S.D. Cabiness and the antebellum law firm Belser and Harris. (Hat tip: H-Law.) 

• Congratulations, Margot Canaday! The Straight State has won the Order of the Coif Biennial Book Award.

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

Upcoming CFP Deadlines

Some of the big conferences and a few smaller ones have issued CFPs. If you are looking for opportunities to present your work, here are some deadlines that you might not want to miss:

January 20: Law and Legal Cultures in Germany (Milwaukee, Wisconsin, October 4-7, 2012)

January 26: American Studies Association (San Juan, Puerto Rico, November 15-18, 2012), “Dimensions of Empire and Resistance: Past, Present, and Future.”

January 31: Harvard’s Annual Interdisciplinary Humanities Graduate Student Conference: How To End A Revolution? (Cambridge, Massachusetts, April 13-14, 2012)

February 15: American Historical Association (New Orleans, Louisiana, January 3-6, 2013) “Lives, Places, Stories”

February 15: Organization of American Historians (San Francisco, California, April 11-14, 2013)

February 29: American Society for Legal History (St. Louis, Missouri, November 8-11, 2012)

Book Prizes in Anglo-American and American Legal History

Here is a joint announcement of the John Phillip Reid Book Award of the American Society for Legal History and the Cromwell Book Prize of the William Nelson Cromwell Foundation.  The Reid Award and the Cromwell Book Prize are mutually exclusive. The Reid Book Award is for a book by a mid-career or senior scholar, and the Cromwell Book Prize is for a “first book” by a junior scholar.  For advice where the distinction is doubtful, please consult Philip Girard, chair of the ASLH Committee on the John Phillip Reid Book Award, and Daniel Ernst, chair of the Cromwell Book Prize Advisory Subcommittee.

John Phillip Reid Book Award

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The award is given on the recommendation of the Society's John Phillip Reid Prize Committee.

For the 2012 prize, the Reid Award Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2011. Nominations for the Reid Award should be submitted by May 25, 2012, by sending a curriculum vitae of the author and one copy of the book to each member of the committee.  (Committee members and addresses appear after the jump.)

 Cromwell Book Prize

William Nelson Cromwell

The William Nelson Cromwell Foundation awards annually a $5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar.  The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference.  The prize is limited to “first books,” i.e., works by a junior scholar that constitute his or her first major undertaking.

The William Nelson Cromwell Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Committee will consider books published in 2011.  The Society will announce the award after the annual meeting of the Cromwell Foundation, which normally takes place early in November.

To nominate a book, please send copies of it and the curriculum vitae of its author to John D, Gordan, III, Chair of the Cromwell Prize Advisory Committee, and to each member of the Cromwell Book Prize Advisory Subcommittee with a postmark no later than May 31, 2012.  (Subcommittee members and addresses appear after the jump.)

Tillman on Teachout, Amar and the Foreign Emoluments Clause

Seth Barrett Tillman, National University of Ireland, Maynooth Faculty of Law, has posted Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar – Contradictions and Reconciliation.  Here is the abstract:

The Foreign Emoluments Clause is a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here.
Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar.

Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing).

If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position.

On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.

Smith on The Legal History of Posttraumatic Stress Disorder

Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder is a recent article by Deirdre M. Smith, University of Maine School of Law.  It appeared in the Temple Law Review, Vol. 84, No. 1, 2011.  Here's the abstract:

This Article examines the origins of the unique relationship between the psychiatric diagnosis Post-traumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry’s standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM) - and is the focus of significant controversy within psychiatry - because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person’s symptoms, a practice more commonly associated with the law. In short, the diagnosis uniquely medicalizes liability. The law has turned to PTSD, on the erroneous assumption that its location in the DSM signifies that it is well-settled science, to serve as a mechanism to resolve difficult problems in assessing legal responsibility. These uses include determining whether a criminal complainant is credible and when emotional distress from another’s negligence is sufficient in itself to serve as a basis for liability. However, by adopting PTSD’s conceptualization of causation of psychological injury, courts unknowingly delegate normative determinations of liability to psychiatry broadly and to the individual psychiatrists who present PTSD evidence at trial. I argue that the legal system should consider PTSD’s origins and its persistent controversies as part of a broader reexamination of the role of the diagnosis in the law.

Cassel on Extraterritoriality and Imperial Power in 19th C China and Japan

Grounds of Judgment:  Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan  by Par Kristoffer Cassel has just been published by Oxford University Press. 

 Here's the book description:

Perhaps more than anywhere else in the world, the nineteenth century encounter between East Asia and the Western world has been narrated as a legal encounter. Commercial treaties--negotiated by diplomats and focused on trade--framed the relationships among Tokugawa-Meiji Japan, Qing China, Choson Korea, and Western countries including Britain, France, and the United States. These treaties created a new legal order, very different than the colonial relationships that the West forged with other parts of the globe, which developed in dialogue with local precedents, local understandings of power, and local institutions. They established the rules by which foreign sojourners worked in East Asia, granting them near complete immunity from local laws and jurisdiction. The laws of extraterritoriality looked similar on paper but had very different trajectories in different East Asian countries.

Par Cassel's first book explores extraterritoriality and the ways in which Western power operated in Japan and China from the 1820s to the 1920s. In Japan, the treaties established in the 1850s were abolished after drastic regime change a decade later and replaced by European-style reciprocal agreements by the turn of the century. In China, extraterritoriality stood for a hundred years, with treaties governing nearly one hundred treaty ports, extensive Christian missionary activity, foreign controlled railroads and mines, and other foreign interests, and of such complexity that even international lawyers couldn't easily interpret them. Extraterritoriality provided the springboard for foreign domination and has left Asia with a legacy of suspicion towards international law and organizations. The issue of unequal treaties has had a lasting effect on relations between East Asia and the West.

Drawing on primary sources in Chinese, Japanese, Manchu, and several European languages, Cassel has written the first book to deal with exterritoriality in Sino-Japanese relations before 1895 and the triangular relationship between China, Japan, and the West. Grounds of Judgment is a groundbreaking history of Asian engagement with the outside world and within the region, with broader applications to understanding international history, law, and politics.

And the endorsements:

"Minutely argued and cogently presented, Par Cassel's Grounds of Judgment gives us a completely new base line from which to examine the practice of extraterritoriality from both the Chinese and the Japanese legal perspectives. An absorbing and valuable book." --Jonathan Spence, author of The Search for Modern China


"This sophisticated analysis of the changing legal orders in nineteenth-century East Asia nicely explodes the old dichotomy between Western international law and Chinese and Japanese responses to it. Cassel shows that even the seemingly immovable obstacle of extraterritoriality was subject to flexible interpretations that derived from domestic legal practices, which affected not only Westerners but also Japanese and Chinese in the treaty ports of the two countries. An impressive contribution both to international legal history and to the history of modern East Asia." --Carol Gluck, Columbia University


"Relying on primary and secondary sources in a host of languages, Par Cassel's new book offers the most thoroughgoing comparative examination of treaty port law and jurisdiction for late imperial China and late-Tokugawa and Meiji Japan. Especially interesting in his analysis is the treatment of the highly controversial topic extraterritoriality-with fascinating insights and stunning conclusions. This is a must read for anyone interested in late-Qing China, Tokugawa-Meiji Japan, or comparative legal history." --Joshua A. Fogel, Canada Research Chair, York University


"This is an impressive and important book. Cassel has gone back to the basics underpinning the nineteenth-century 'unequal treaties' between the different Western powers and China and Japan, and equally importantly those signed between the latter. Rich in comparative insight, Grounds of Judgement draws on an exemplary range of sources and clearly and engagingly re-writes long-unquestioned narratives. With this book Cassel compels us to rethink our fundamental assumptions about this complex tangle of relationships, and about the East Asian experience of the age of empires and its lasting legacies." --Robert Bickers, author of The Scramble for China: Foreign Devils in the Qing Empire, 1832-1914

Cromwell Foundation Articles Prize

The William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2011.  Articles published in 2011 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed.  Please send a brief letter of nomination no longer than a page, along with an electronic or hard copy of the article, by May 31, 2012, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC  27599-3380 or via email abrophy@email.unc.edu

History and Constitutional Law in the Law Reviews

Here are a few recently-published law review articles of interest to historians, along with references to related literature.

Jamal Greene (Columbia-law) considers the rationales cited for placing a few historic cases hold up in "The Anticanon," 125 Harv. L. Rev. 379 (2011). Pertinent parts of the abstract follow.

 Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. .... I argue that anticanonical cases achieve their status through historical happenstance, and that subsequent interpretive communities’ use of the anticanon as a rhetorical resource reaffirms that status. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus. 

Sanford Levinson (Texas--Law & Political Science) offers a fascinating response to Greene.  In "Is Dred Scott Really the Worst Case of All Time: Why Prigg is Worse Than Dred Scott (But is Likely to Stay out of the 'Anticanon'), Levinson  wonders why Prigg v. Pennsylvania is not a part of the anticanon; its outcome is just as "bad" as Dred Scott, or even worse.  Subjective, externalist factors might explain why Prigg is out and Dred Scott is in the anti-canon, Levinson suggests: the authors of the relevant opinions in the two cases were studies in contrast.  Dred Scott was the handiwork of Roger B. Taney, a Maryland slaveholder apparently not known for the social graces. Taney's negative attributes may have helped to stigmatize Dred Scott.  By contrast, Joseph Story--an opponent of slavery, a professor at Harvard Law School whose likeness now graces the law school's library--was every bit the Northern sophisticate. Story's positive attributes might cause commentators to downplay Prigg's defects.

The Amistad

Social status matters, and it's hard to imagine it not affecting assessments of  the Justices' opinions, just as Levinson contemplates.  I wonder if, in this instance, Story's involvement in the Amistad Case might be significant?  Story wrote the majority opinion in the Amistad Case (1841), where the Supreme Court held that Africans bound into slavery on a Spanish ship had been kidnapped from Africa and illegally traded.  The Supreme Court ordered the Africans freed over the objections of both the Spanish and the U.S. governments.  The outcome in the Amistad case gave momentum to the abolitionist movement.  Given Story's role in this important case, some might find it plausible to draw a distinction between him, a non-slaveholder who upheld slaveholders' rights (in Prigg), and Taney, a slaveholder who upheld slaveholders' rights using strong proslavery rhetoric (in Dred Scott).  Others might reject such moral relativism, particularly since the constitutional issues in Amistad are different than those presented in Prigg and Dred Scott. In any event, Levinson raises an important question about the  anticanon in an interesting way.  For more on the Amistad case, see Howard Jones's Mutiny on the Amistad (Oxford, 1988), among other treatments.

Let's not forget, by the way, that Chief Justice Taney's relationship to slavery has been reconsidered of late, even if his opinion in Dred Scott remains notorious.  Timothy S. Huebner's "Roger B. Taney and the Slavery Issue: Looking Beyond-- and before--Dred Scott," J. Am. Hist. (June, 2010), notes that Taney manumitted his slaves and expressed antislavery sentiment on  occasion. On this account, Taney's decision in Dred Scott did not necessarily reflect his personal views.

Levinson's quick reference to how public displays such as statues can mediate culture and shape institutional memory reminded me of one of his prior works.  In 1998, Levinson published a book-length treatment about the significance of public monuments. It is Written in Stone: Public Monuments in Changing Societies; the work raises issues still relevant to our time.  Here's the publisher's description of the book:  

Is it “Stalinist” for a formerly communist country to tear down a statue of Stalin? Should the Confederate flag be allowed to fly over the South Carolina state capitol? Is it possible for America to honor General Custer and the Sioux Nation, Jefferson Davis and Abraham Lincoln? Indeed, can a liberal, multicultural society memorialize anyone at all, or is it committed to a strict neutrality about the quality of the lives led by its citizens?

 In Written in Stone, legal scholar Sanford Levinson considers the tangled responses of ever-changing societies to the monuments and commemorations created by past regimes or outmoded cultural and political systems. ... Levinson looks at social and legal arguments regarding the display, construction, modification, and destruction of public monuments. He asks what kinds of claims the past has on the present, particularly if the present is defined in dramatic opposition to its past values. In addition, he addresses the possibilities for responding to the use and abuse of public spaces and explores how a culture might memorialize its historical figures and events in ways that are beneficial to all its members.

OAH's 2012 Program Now Online

The program for the 2012 annual meeting of the Organization of American Historians,
scheduled for April 18-22 in Milwaukee, is now available online.  As usual, the lineup at the meeting is impressive. Here's the link to the program.  The following sessions on "legal and constitutional history" may be of interest to our readers:

Border Formations, Repatriation, and Exclusion: Chinese and Mexican Migration to the United States, Mexico, and China

State Power at the Border: Comparative Perspectives on US Immigration
Regulation from the Civil War to the Progressive Era

A Different Kind of History: Historians in the Legal Arena

Policing, Violence, and the Democratic State in the United States since 1850

Remembering Guantánamo: Building a Public History of One Hundred Years in the “Legal Black Hole”

Teaching Prohibition with Federal Court Records

Birthright Citizenship: Can the Fourteenth Amendment Defend Itself?

Probert on Cohabitation and Marriage Among the Victorian Poor

Rebecca Probert, University of Warwick School of Law, has posted A Banbury Story: Cohabitation and Marriage Among the Victorian Poor in Notorious Neithrop.  Here is the abstract:    

The parish of Neithrop, now a suburb of Banbury, was known in the nineteenth century as a place ‘inhabited by the poor and persons of bad character’ and, according to the demographer Peter Laslett, was an area ‘notorious’ for non-marital arrangements. Drawn to investigate further by the tragic story of Susan Owen, allegedly murdered by the man she was living, ‘Badger’ Willson, and by the suggestion that five out of a row of eight houses were inhabited by cohabiting couples, I discovered a very different picture. Not only did it turn out that neither of these specific claims was true, but the high rate of marriage among Neithrop couples also cast doubt on the widespread assumption that cohabitation was common among the Victorian poor.

Two Constitutional History Classics from Barry Cushman

Barry Cushman, University of Virginia School of Law, has recently posted two older but important articles; in particular, “Secret Lives” belongs in the canon of scholarship on the constitutional history of the Twenties and Thirties.

The first article is Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s.  It originally appeared in the Buffalo Law Review, 50 (2002):

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, and 1940, on five major areas of public concern: labor; federal regulatory power; redistribution; fiscal policy; and relief and social security. The poll results reveal public preferences that are far more politically moderate than some have inferred from the election returns. The results also show that comparatively little change in constitutional doctrine was necessary in order to accommodate those popular preferences. This in turn helps to rationalize, if it does not explain, the consistent popular aversion to proposals to limit the power of the Supreme Court, as well as the persistent public opposition to President Roosevelt's ill-fated Court-packing plan.

The second is The Secret Lives of the Four Horsemen, which originally appeared in the University of Virginia Law Review 83 (1997):

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars have seen the Four Horsemen as far right, reactionary, staunchly conservative apostles of laissez-faire and Social Darwinism. And not without good reason. One need only read opinions such as those in Adkins v. Children's Hospital and Morehead v. Tipaldo, Railroad Retirement Board v. Alton Railroad and Ribnik v. McBride, Hammer v. Dagenhart and Carter Coal, and the dissents in such cases as Nebbia, Blaisdell, the Gold Clause Cases, and the Wagner Act Cases to understand why. One can hardly avoid coming away from these and other decisions with the impression that these were men fanatically devoted to property rights and callously indifferent to the commonweal.

Here and there one finds shreds of biographical evidence suggesting that something like the milk of human kindness may have flowed in parsimonious quantities through their veins. We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the 1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers. We read of Butler's leadership in the fight for workmen's compensation in his home state of Minnesota; of his efforts on behalf of the federal government in prosecuting Swift, Armour and other large meatpackers for violations of the Sherman Antitrust Act; and of his success in saving the Canadian government "huge sums of money in valuation proceedings against some of the western railroads." We are told of McReynolds' role as an avid trustbuster for Presidents Taft and Wilson, of his environmentalism, and of his generosity toward charitable causes. We learn of Van Devanter's reputed sensitivity to the plight of the Native American. But such paltry gestures of concern for the underdog have been far from sufficient to rebut Fred Rodell's charge that their jurisprudence was driven by "their basic and bone-deep Hamiltonian empathy with the well-to-do."

When one dips a bit deeper into the U.S. Reports, however, one discovers some startling data. One finds the Four Horsemen actually supporting liberal case outcomes. At first one is inclined to dismiss these cases as mere aberrations, attributable perhaps to the dull Horsemen's inability to recognize when the liberals were pulling the wool over their eyes. But the cases continue to mount until the sheer volume is so immense as to point irrefragably to only one conclusion: the Four Horsemen were themselves closet liberals. It appears that they struck a reactionary pose in celebrated cases in order to retain the good graces of the conservative sponsors to whom they owed their positions and whose social amenities they continued to enjoy, while in legions of low-profile cases they quietly struck blows for their own progressive agendas. In this way, it seems, the Horsemen could continue to enjoy access to the corridors of power and influence and the hospitality of the most fashionable Washington salons, while at the same time working surreptitiously to undermine the very causes that their conservative patrons held most dear. Theirs, then, is not a simple story of handmaidens of the industrial and financial elite. It is instead a tale of luxury and deceit.