Monday, September 10, 2012

LHR 30:3

Law and History Review 30:3 (August 2012) is out.  Here are the articles and either the opening paragraph or abstracts:

The House that Built Holmes, by Brad Snyder
Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the House of the Truth. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.
From Slave to Litigant: African Americans in Court in the Postwar South, 1865–1920, by Melissa Milewski
This article draws on more than 600 higher court cases in eight southern states to show that African Americans succeeded in litigating certain kinds of civil cases against white southerners in southern appellate courts between 1865 and 1920.  While historians have often concentrated on cases involving issues of race, the much more common, seemingly prosaic civil suits African Americans litigated against whites over transactions, wills, and property also had important implications for race relations.  Through these suits, black southerners continued to successfully assert the legal rights they gained during Reconstruction long after Reconstruction had ended.  Moreover, I found that black litigants won the majority of civil cases litigated against white southerners in higher state courts - not only during Reconstruction, but, astonishingly, during the post-Reconstruction and Jim Crow eras as well.  I examine how the legal system itself, and the varied actions of participants in the legal system, allowed African Americans to litigate, and win, such cases.  This article has important implications for our understanding of the judicial system's relationship with politics and race and for its insights into the role of the courts in African Americans' centuries-long struggle for rights.
Judging Empire: Courts And Culture in Rome's Eastern Provinces, by Ari Z. Bryen
This paper contributes to the recent debate on the interrelationship between law and imperialism by presenting a new model for understanding courtroom interactions. Specifically, I argue that courtroom interactions should be understood as ritualized spaces in which the realities of day-to-day power-relations in empires are temporarily suspended and potentially renegotiated. The adoption of legal vocabularies by provincial populations is neither assimilation nor resistance, but rather an attempt to engage in a dialogue with imperial powers on terms that favor the provincials themselves. Drawing on papyri, monumental inscriptions, and literary texts, I argue that in Rome’s eastern provinces the government had no monopoly over legal texts or knowledge, a condition which provincials exploited through a process of selectively invoking and monumentalizing select legal texts, and forgetting others. Through a case study of how provincial populations generate and adopt ideas of the rule of law and how they deploy these concepts to influence and control Roman governors, this paper concludes that an approach to law as a ritual practice opens up new avenues for understanding the power dynamics of empires.
 Zionist Settlers and the English Private Trust in Mandate Palestine, by Adam S. Hofri-Winogradow
This essay is the first sustained description, based on archival materials, of the use Zionist settlers in British Mandate-era Palestine made of the English private trust and trust company, and Mandate authorities' reactions to that use. An early, ill-fated attempt to create a family trust of land in the English style produced an ambiguous decision by the Supreme Court of Palestine, which could be construed to mean that the private trust was no part of Palestinian law. I show how in the shadow of that decision, the Zionist settler population of Palestine made significant use of the trust for a variety of purposes. The story thus provides a particularly sharp example of a colonial population adopting more of the colonizer's own law than that colonizer was willing to have it use. Still more use was made of the trust company; it was a key instrument in encouraging Jewish immigration to, settlement of and investment in Palestine. Thanks to a particularly sophisticated international trust structure set up in 1933, more than 50,000 German Jews escaped the Nazi noose with at least some of their property intact. Their arrival in Palestine largely created its Jewish middle class. The essay thus contributes to the socio-legal history of British colonial law, that of Mandate Palestine, and that of the worldwide dissemination and uses of the trust and trust company during the early 20th Century.
“Let Them Make Him Duke to Rule that People”: The Law of the Bavarians and Regime Change in Early Medieval Europe, by Jonathan Couser
This article examines the eighth-century Law of the Bavarians.  It argues that this text was compiled, not within Bavaria itself between 744 and 748, as current scholarly consensus holds, but in the neighboring principality of Alemannia between 736 and 738.  The new dating and location of composition allows a reinterpretation of the text’s significance; rather than being a passive reflection of early medieval legal custom, it is actually a highly political production, designed to support a regime change – the imposition of a new duke from outside – with a minimum of compulsion.  Three parties within Bavarian society were granted new privileges in order to secure their support for the new regime of Duke Odilo (736-748): the Church, servants of the ducal court itself, and a select set of aristocratic kin-groups called genealogiae in the document.  In fact, this innovative device appears to have been remarkably successful.  Odilo was able to establish himself as duke in 736, and to survive a coup in 741, without any recorded military intervention.  A generation later, when Charlemagne took the duchy over in 788, he was careful to do so in ways that made use of the Bavarian Law’s political vision rather than suppressing it.  
The Digest of Laws of the Russian Empire: The Phenomenon of Autocratic Legality, by Tatiana Borisova
Researchers of the history of late imperial Russia quite often base their studies on the texts of laws as recorded in the official edition: the Complete Collection of the Laws of the Russian Empire (Polnoe Sobranie zakonov Rossiiskoi imperii). The laws were published there in chronological order for purposes of conducting inquiries; it was specifically the Complete Collection in which the original text of a decree approved by the emperor could generally be found.
[ Book reviews after the jump.]
Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer, Cambridge, MA: Harvard University Press, 2012.  Reviewed by Christopher W. Schmidt

Joanna L. Grossman and Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America, Stanford: Stanford University Press, 2011.  Reviewed by Dara Purvis

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, Cambridge: Harvard University Press, 2011.  Reviewed by David Schraub

Orna Alyagon Darr, Marks of an Absolute Witch: Evidentiary Dilemmas in Early Modern England, Farnham, Surrey: Ashgate, 2011.  Reviewed by Brian P. Levack

John Cerullo, Minotaur: French Military Justice and the Aernoult-Rousset Affair, DeKalb, IL: Northern Illinois University Press, 2010.  Reviewed by Nicole Dombrowski Risser.

Alexander Gillespie, A History of the Laws of War: 3 Volume Boxed Set, Oxford, England and Portland, Oregon: Hart, 2011.   Reviewed by Martti Koskenniemi

Elisa M. Becker, Medicine, Law and the State in Imperial Russia, Budapest: Central European University Press, 2011.   Reviewed by Cathy A. Frierson

Chris R. Kyle, Theater of State: Parliament and Political Culture in Early Stuart England, Stanford: Stanford University Press, 2012.  Reviewed by Robert Zaller

Philip Nord, France's New Deal: From the Thirties to the Postwar Era, Princeton: Princeton University Press, 2010.  Reviewed by Danièle Voldman

Magda Teter, Sinners on Trial: Jews and Sacrilege after the Reformation, Cambridge, MA: Harvard University Press, 2011.  Reviewed by Pawel Maciejko

Clifford Ando, Law, Language, and Empire in the Roman Tradition, Philadelphia: University of Pennsylvania Press, 2011.  Reviewed by Gregory Rowe

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