The History of Danish Law

You heard it here first. The Next Big Thing will be Danish Legal History.  An inexpensively priced entree is The History of Danish Law: Selected Articles and Bibliography, edited by Ditlev Tamm, who is Professor of the History of Law at the University of Copenhagen.  In the preface, Tamm writes:

A complete history of Danish law in English is not available.  However many topics from Danish legal history have in later times been exposed in English.  This book was originally meant as a bibliography to help finding out what is written by mostly Danish Legal historians in other European languages on Danish law.  I found it useful to combine such a bibliography with a series of my articles on selected topics of the History of Danish law from the middle ages till our times.

Here are the contents:

The Danes and Their Legal Heritage

How Nordic are the Old Nordic Laws?

The Birth of Danish Legal Science in the 16th and 17th Centuries

Crime and Courts in Early Modern Denmark and Norway

The Danish Code of 1683: An Early European Code in an International Context

The Danish Debate on Montesquieu: Holberg, Kofod Ancher, Stampe, Sneedorf, and Schytte
Anders Sandoe Orsted and the Influence from the Civil Law upon Danish Private Law at the Beginning of the 19th Century

The Danish Constitution of 5 June 1849: Genesis and Impact

Professors and Politics in the 19th Century

Harmonization of Nordic Law in the 19th and 20th Centuries

Alf Roos 1899-1979: A Biographical Outline

Phases of Collaboration, Shades of Guilt: Coping with the Tangled Web of Collaboration in Post-War Denmark

By Way of Conclusion: From European to a Global Approach?

Danish Legal History: Selected Bibliography of Books and Articles in English, German, French, Italian, and Spanish.

Civil Rights in the American Story

Civil Rights in the American Story, a conference at the University of Alabama School of Law, will be held Friday, March 8, 2013.  The principal speakers are David W. Blight, Mark Brilliant, Richard Thompson Ford, and Susan Sturm:

American uncertainties and ambivalence about race go at least as far back as Tocqueville’s pained observations about the three races in America and their sad inability to live together as equals. In the intervening two centuries those uncertainties have not been resolved by civil war, legal prescription, mass protest, or inspiring leadership. Today, racial conflict between blacks and whites, and conflict about race is as vexing as it has ever been. Race, as Gunner Myrdal reminded us, is the “American Dilemma.”

Uncertainty is particularly acute in the legal domain where, over the last four decades, courts and judges have struggled to come to terms with the meaning of the Constitution’s guarantee of equal protection of the law. In that period the record of judicial interpretation and understanding of racial equality has taken the form of a back and forth movement in which first desegregation, then integration with its accompanying need for busing and affirmative action, and now “color blindness” have been the prevailing ideologies.

In both law and society the meaning of civil rights is hotly debated. At the same time, Americans take great pride in the progress made in opening up opportunities cross racial lines. The purpose of this symposium is to inquire about the place of civil rights in America’s post-Brown v. Board of Education story. How important has the story of civil rights “progress” been in the last half century? What have been the most important counter-narratives? What issues, e.g. affirmative action, immigration, have posed the greatest challenges to America’s embrace of the narrative of progress in civil rights?

State Formations: Histories and Cultures of Statehood

The Ohio State University Center for Historical Research Center for Historical Research welcomes applications for the 2013-2014, the first year of a two-year program on the theme of "State Formations: Histories and Cultures of Statehood."  The deadline is February 1, 2013.

CHR Fellows are typically one-year appointments to work in the Center, affiliated with the Department of History, and housed in Dulles Hall on the OSU-Columbus campus.  Our hope is that this year of research and writing will provide the fellows time to make significant progress on a major intellectual project, usually a book.  Faculty Fellows will teach one course in the department; all fellows will engage in the on-going intellectual life of the Center and make a presentation of their research during their fellowship term.

The fellows are invited to participate in all History Department activities, including our ongoing seminars: the Early Modern Seminar, the Women's History Seminar, the Early American Seminar, the Modern U.S. Seminar, and any other seminars and conferences supported by the department. Fellows will have access to facilities of The Ohio State University, its libraries, and the normal social amenities sponsored on campus. The History Department and the College of Humanities will provide visiting fellows with office space equipped with personal computers, staff assistance, research support, copying facilities, telefax and e-mail service, and access to the internet.

More information on the fellowships and information on presenting in the program as other than a fellow are available here.

Law & Society 2013 Annual Conference: Call for Participation

[I'm moving up this previously posted call for the Law & Society meeting because the deadline is next week and we hear from our friends on the Program Committee that it is particularly keen to have papers from legal historians.]

The Law and Society Association announces its Call for Participation in its 2013 Annual Conference, which will be held in Boston on May 30 - June 2, 2013. The theme of the meeting is "Power, Privilege, and the Pursuit of Justice: Legal Challenges in Precarious Times." LSA explains:

The meeting’s theme aims to incite debate on the challenges that will define law and society over the next decade.  The financial crisis that struck in 2008 still rends the economy, politics, law, and society.  How will polarized politics, rapid technological change, and global shifts in economic power affect law and society over the next years, domestically and transnationally?

To envision the future, we invite participants to extend and rethink law and society’s past insights to engage a new and changing context. The Program Committee has listed a series of sub-themes in featured sessions and other panels with the aim of spurring cross-cutting discussions.

Proposals for Individual Papers, Fully-Formed Sessions, and Poster Papers are welcome. All proposals are due by December 4, 2012.  Further information is available here. 

Waldrep Wins Craig Joyce Medal from ASLH

Via H-Law, we have the following announcement:

Chris Waldrep (credit)

Christopher Waldrep, professor of history at San Francisco State University, is the second recipient of the American Society for Legal History’s Craig Joyce Medal, given  on occasion by the Society “to recognize members who have given long and outstanding service” to the Society.

The ASLH honored Chris Waldrep with this award because of his long and diverse service to the Society, but most of all for his pivotal role in the founding and guidance of H-LAW, the list-serv co-sponsored by the ASLH and H-NET (Humanities and Social Sciences Network Online).  In 1993, Chris led a small band of scholars in exploring what was then the information age’s cutting-edge technology.  They launched H-LAW, now entering its twentieth year of existence as one of the oldest and best-regarded list-servs in the H-NET family.

Under Chris’s sage and steady leadership, H-LAW has become an indispensable resource for the legal-history community.  Many scholars have formed close and lasting online friendships and collaborations with colleagues whom they have never met face-to-face, but whom they have come to know and trust via H-LAW.  H-LAW also has fostered and continues to foster online discussions of pivotal issues and questions of interest to legal and constitutional historians worldwide, and H-LAW also has given rise to a flourishing book-review operation that keeps H-LAW subscribers and other H-NET list-servs up to date on the latest and best scholarship in our field.

Without Chris Waldrep, there would have been no H-LAW (at least in the form it took), and without the guiding vision that he brought to founding and shaping H-LAW, the legal-history community would not be what it is today.

Although late last year a sudden illness sidelined Chris Waldrep, his example and the extraordinary work that he did in founding, growing, developing, and refining H-LAW continue to inspire and guide his colleagues and friends.

Professor Charles L. Zelden, the first book-review editor of H-LAW and now its head moderator, accepted the Craig Joyce Award for Chris Waldrep.

Jefferson the Slaveholder

The storm over Henry Wiencek's Master of the Mountain" continues in today's New York Times.  Notable is Paul Finkelman's characterization of Jefferson as "one of the most deeply creepy people in American history."  Our earlier notice is here.

CFP: Business and Politics in 20th Century America

The Hagley Museum and Library in Wilmington, Delaware, has issued a Call for Proposals for a conference on Business and Politics in 20th Century America, to be held November 8, 2013:

Over the past ten years there has been a surge of new scholarship on the relationship between business and American politics in the twentieth century. Much of this work examines the efforts by business and business people to influence politics, often in response to the growth of the American federal government that began with the Progressive Era and continued with the mid-century New Deal. Many of these finely grained studies draw on, and continue to use, the collections in the Hagley Library. It is fitting, then, to invite scholars working on this topic to come to Hagley to assess the state of knowledge, and discuss new work emerging from research. We are especially interested in papers that address some of the following questions:

 *   As the spectrum of government activities has expanded in the course of the twentieth century, so too have the range of decisions, policies, and agencies that affect business.  Where are the places, including those hidden from view, where businesses and trade associations have sought to influence policy and the parameters of government activity?
 *   To what extent were business people actually able to mobilize to affect the political process-and how did they achieve this: through lobbying, political contributions, grass roots activism, or other means?
 *   How widely was the liberal order of an expanded federal state and recognized labor unions accepted by the business community-which individual business people, which industries and sectors were receptive to the liberalism of the postwar years, and which sought to oppose it more openly?
 *   Why were business people often philosophical critics of this liberal order, while at the same time seeking government initiatives and programs that might work in their favor?
 *   In what manner, and for what purposes, did business seek to influence the regulation of foreign trade and American foreign policy?
 *   We often imagine that the varied interests of different business sectors will lead to different politics-to what extent has this been the case? E.g. what important divisions have there been in the business community? Between small and large businesses? Between finance and industry?
 *   Business is often seen as anti-ideological, focused on short-term profits. But business people-like anyone else-have broader views of the world, political affiliations, religious beliefs, etc. What is the relationship between ideology and interest in business activism?
 *   Has business activism changed over the postwar years, especially in the 1970s and afterwards?

Papers proposed for the conference should be based on original research and engage with current scholarship. Please submit a 500-word abstract and a c.v. of no more than three pages. Proposals are due by April 30, 2013 and should be sent via email to Carol Lockman.  Travel support will be available for presenters.

Batlan reviews Mayeri, "Reasoning from Race"

We always pay attention when the JOTWELL legal history section posts new material. The latest is a review of Reasoning from Race, by Serena Mayeri (University of Pennsylvania). Reviewer Felice Batlan (IIT Chicago-Kent College of Law) introduces the book as follows:

Scholars have understood well that second wave feminism has deep roots in the Civil Rights Movement. Only in recent years, however, have historians explored the full extent of the material and ideological connections between these two movements.  Reasoning from Race brings this agenda to the field of legal history.  It examines what it meant for feminist legal advocates to use race analogies, how this changed over time, and how ultimately civil rights lawyers then attempted to reason from sex. In doing so, Meyeri seeks to demonstrate that the Civil Rights Movement and the Women’s Rights Movement cannot be understood in isolation from each other. Rather the movements were in dialogue with one another, taking the lead from and piggybacking on each other at different times.

The full review is available here.

A Harmless and Quite Possibly Amusing Satirical Endeavor

[The Green Bag invites submissions for its first micro-symposium, to be published in our Winter 2013 issue, on Orin S. Kerr's A Theory of Law, 16 Green Bag 2d 111 (2012).  Welcome is any commentary on the piece, which appears in its entirety below, that is “novel, interesting, and not mean-spirited.  Humor optional.”  The call continues:]

Professor Kerr will, of course, be given a chance to have the last word. Whether he will take that chance remains to be seen.

Length limit: No longer than the original A Theory of Law, which is 164 words long, including title, byline, and footnotes. (It is reproduced in its entirety below.)

Deadline: Finished works must be received at editors@greenbag.org by December 25, 2012. No extensions will be granted and no post-deadline tinkering will be permitted.

Selection criteria: Works will be selected for publication by the Green Bag and Professor Kerr based on their novelty, interestingness, and good-spiritedness.

"A Theory of Law," by Orin S. Kerr†

It is a common practice among law review editors to demand that authors support every claim with a citation. These demands can cause major headaches for legal scholars. Some claims are so obvious or obscure that they have not been made before. Other claims are made up or false, making them more difficult to support using references to the existing literature.

Legal scholars need a source they can cite when confronted with these challenges. It should be something with an impressive but generic title. I offer this page, with the following conclusion: If you have been directed to this page by a citation elsewhere, it is plainly true that the author’s claim is correct. For further support, consult the extensive scholarship on the point.[1]

† Orin Kerr is the Fred C. Stevenson Research Professor at the George Washington University Law School.

[1] See generally Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012).

Miller on Taxation in the Bible

Geoffrey P. Miller, NYU School of Law, has posted Taxation in the Bible, an entry in the forthcoming Oxford Encyclopedia of the Bible and Law.  Here is the abstract:

Given the range of biblical references, contested issues of sources and dating, and limited information about legal institutions and social practices, conclusions about taxation in the Bible must be drawn with caution. The available information, however, suggests that taxation was an important aspect of public administration in biblical Israel.

Hurst Summer Institute: Deadline Approaching

The American Society for Legal History and the Institute for Legal Studies at the University of Wisconsin Law School invite early stage scholars to apply for the seventh biennial Hurst Summer Institute in Legal History. Here's an excerpt from the announcement:

The purpose of the Hurst Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The “Hurstian perspective” emphasizes the importance of understanding law in context; it is less concerned with the characteristics of law as developed by formal legal institutions than with the way in which positive law manifests itself as the “law in action.” The Hurst Institute assists scholars from law, history, and other disciplines in pursuing research in legal history.

The previous Hurst Institute sessions were led by distinguished legal history scholars Lawrence M. Friedman (Stanford University), Robert W. Gordon (Yale and Stanford) and Barbara Young Welke (University of Minnesota).  The 2013 Hurst Institute will be chaired by Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Professor of History, and Director of the Program in American Studies at Princeton University.  More information about guest scholars will be provided at a later date.

The two-week program is structured but informal, and features presentations by guest scholars, discussions of core readings in legal history, and analysis of the work of the participants in the Institute. The general format includes intensive daily sessions Monday-Friday that run through mid-afternoon, a few scheduled social events, and some free time for additional discussion, reading and research. Fellows will have the opportunity to conduct archival work at the Wisconsin Historical Society. (The Society holds a vast array of primary documents and is particularly strong in areas involving nineteenth and twentieth century social movements and labor activism. In addition, the Library possesses an excellent collection of federal and state government material which is largely un-cataloged.)

The ASLH Hurst Selection Committee will select twelve Fellows to participate in this event. 

Follow the link for more information on how to apply. Applications will be accepted from December 1, 2012 to January 15, 2013.

Programs from previous sessions of the Institute are available here, along with lists of previous Hurst Fellows.

Law School Reform, Notable Books in Law and History, and More: This Week in the Book Pages

Over at the Daily Beast, R.B. Bernstein reviews Bernard Bailyn's The Barbarous Years: The Peopling of British North America: The Conflict of Civilizations, 1600-1675 (Knopf).  Bernstein writes:

The Barbarous Years, the capstone of his extraordinary career, returns Bailyn and his readers to the 17th century, the period to which he devoted his earliest scholarly work, and reveals a time of torment, want, and what the poet John Donne called “a flood, a flood of blood.”

You can read the rest of the review, here.

TNR: The Book has David Fontana's review of Failing Law Schools (Chicago) by Brian Tamanaha.  Fontana writes:

[A]fter a century of mainly positive attention, law schools are now making news with...the existential crisis they face.   Brian Tamanaha’s book is the best analysis yet of this crisis. American law schools are, as the title of his book says, simply “failing.” They offer only a one-size-fits-all law school education that does not teach many law students what they should learn and is also incredibly expensive. If we are to save one of our cherished American institutions, we must take Tamanaha’s concerns to heart.

In the New York Times this week, you'll find reviews of Evan Thomas, Ike's Bluff:President Eisenhower's Secret Battle to Save the World (Little Brown) (here) and Anne Applebaum's Iron Curtain: The Crushing of Eastern Europe, 1944-1956 (Doubleday) (here),

On the Washington Post's list of 50 Notable Works of Nonfiction are several books on law and history including:

David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton)

Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By (Basic)

Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (Doubleday)

Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard)

Justice Black, Media Celebrity

Previously I wrote about Judge Posner’s recent lecture at Chicago-Kent’s Symposium on the Supreme Court and the American Public. The judge took members of the Supreme Court to task for what he sees as their excessive and occasionally undignified roles as public intellectuals.  Although Judge Posner is certainly right that the frequency of justices participating in public intellectual activities has increased, there is a long and colorful history of members of the Supreme Court inserting themselves, for one reason or another, into public debate.

At the same symposium, I gave a paper entitled “Beyond the Opinion: Why Do Supreme Court Justices Talk to the Public?”  My presentation revolved around a case study of Justice Hugo L. Black and his late-career experience as a reluctant but ultimately quite effective public figure. 

Justice Black spent most of his career on the High Court conscientiously avoiding making news for his off-the-bench activities.  His time on the Court had gotten off to an epically bad start when, just a month after being confirmed by his colleagues in the Senate, a journalist broke the story that the newest justice had been a member of the Ku Klux Klan in Alabama early in his political life.  Black, who was in Europe at the time, cut short his vacation and returned home to defend himself in a nationally broadcast radio address.  He basically said that he had been a member of the KKK but was no longer, and that his record in the Senate and his personal relationships with blacks, Catholics, and Jews showed that he was not a bigot.  (Newsweek’s headline following the speech: “I Did Join, I Resigned; The Case Is Closed.”)  The speech turned out to be remarkably successful in deflating the controversy.

For at least two decades following this embarrassing episode, Black retreated from the public spotlight.  He would, as justices like to say, let his written opinions speak for themselves.  Through the 1940s and 1950s, as Black defined for himself in his judicial writings a distinctive approach to constitutional interpretation, as well as a notably accessible language of expression, he was regularly urged to present his views in a more public setting.  He refused.  “Should I conclude to deliver lectures anywhere,” he wrote to a friend in 1959, “it will be over the protests of certain inner voices that keep telling me that the best thing I can do is tend to my knittin’ here at home.”

Eventually he did begin to accept a few of these invitations, however, and during the 1960s he delivered several much-discussed lectures and public interviews in which he laid out his views on the Constitution and the work of the Supreme Court.

The highlight of Black’s late-life career as a public intellectual came in 1968 when the 82-year-old justice became the first justice to sit for a feature-length television interview.  CBS broadcast the interview on primetime on December 3, 1968.  His wide-ranging remarks made for surprisingly powerful television. 

Early in the interview, Black pulled a well-worn copy of the Constitution from his suit pocket.  “I don’t know it by heart,” he confessed.  “[M]y memory is not that good.  When I say something about it, I want to quote it precisely.”  When questioned about the attacks on the Court for its decisions protecting the rights of criminal defendants, Black went on the offensive.  “Well, the Court didn’t do it…. The Constitution-makers did it…. They were the ones that put in every one of these amendments…. And so, when they say the Court did it, that’s just a little wrong.  The Constitution did it.” He suggested that the Court’s implementation ruling in Brown v. Board of Education (1955), with its “all deliberate speed” formula, was ill-advised. (This was the page-one headline story in newspapers the following day.)  At one point, the 82-year-old justice picked up a volume of the U.S. Reports to read the concluding lines of his opinion in Chambers v. Florida (1940) in which he wrote that “courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.”  It left him wiping away tears. The interview was awarded an Emmy for the year’s best cultural documentary. 

(Full length audio of the interview is available through Oyez; the transcript of the interview was eventually published in Southwestern University Law Review 9 (1977): 937-951.)

Justice Black could put on quite a show in these off-the-bench settings.  In terms of communicating with a general audience, in serving as a spokesperson for the Court, in expressing his deepest commitments about the law and the Constitution and the Court, in putting on display a sense of passionate commitment as well as gravitas, he might very well be unequaled among the Justices who have served on the Court.

Wisconsin Law & Society Post-doc

The Institute for Legal Studies at the University of Wisconsin Law School invites applications for its 2013-14 Law & Society Post-doctoral Fellowship. Here's part of the announcement.

Eligibility: This fellowship is intended for early career social science and humanities scholars whose research contains a strong legal component and who plan to compete for a University teaching position in the U.S. market. Non-US citizens may apply, but must meet the stated criteria.

About the Fellowship: The Institute for Legal Studies of the University of Wisconsin Law School will appoint a post-doctoral fellow for the 2013-14 academic year. We invite applications from scholars who are in the early (pre-tenure) stage of their career or whose careers have been interrupted or delayed. Eligibility is limited to humanities or social science scholars who work in the law and society tradition, for example, anthropologists, economists, historians, political scientists, and sociologists. Advanced ABD graduate students may apply, but the PhD must be completed before beginning the fellowship. The stipend will be $25,000, plus a research allowance of $5,000 and benefits that include health insurance.

The fellowship is designed to support a scholar at an early stage in his or her career when, under prevailing circumstances, career pressures or teaching responsibilities might divert the individual away from research. At the Institute, the Fellow will be able to devote most of his or her time to research and writing and will find a sympathetic and critical audience to support that work. Fellows are expected to be in full-time residence in Madison, to organize and lead a colloquium for graduate students, and to participate in the intellectual life of the Institute, which includes lectures, workshops, and conferences.

Deadlines: The Institute for Legal Studies holds one post-doctoral fellowship competition per year. Completed applications, including letters of reference, must be received by January 10, 2013, in order to ensure full consideration. The award will be announced in March, 2013.

More information about the application process is available here. A list of previous fellowship recipients is here.

Congressional Timeline 2.0 from the Dirksen Center

The Dirksen Center announces its Congressional Timeline 2.0.  “The Congressional Timeline arrays more than 550 of the nation's laws on a double-banded timeline beginning in 1933 to the present. In addition to the major laws passed by Congress, now at your fingertips are the partisan composition of each Congress, along with the presidential administration and the congressional leaders; the session dates of each Congress; measures of legislative productivity, such as the number of bills introduced and passed; information about women and African-Americans serving in Congress; and examples of documents, photos, audio clips, transcripts, videos, and lesson plans all related to legislation.”  More.

LOA's "American Antislavery Writings"

John G. Basker’s edition of the Library of America volume American Antislavery WritingsColonial Beginnings to Emancipation is just out.  Here is LOA's description:

Distinguished by passionate eloquence, moral fervor, and joyful solidarity, and, extraordinarily for its time, embracing writers male and female, black and white, antislavery literature encompassed a dazzling variety of genres: autobiography, fiction, children’s literature, poetry, oratory, and song. In telling one of the most important stories in American history, American Antislavery Writings offers a survey of unprecedented range and depth, reclaiming many forgotten voices and casting the works of some of the greatest American writers—Franklin, Emerson, Thoreau, Alcott, Melville, Dickinson—in a new light.

The anthology reaches back to America’s colonial beginnings, when the first stirrings of the movement that would change the course of a nation emerged from the scrupulous piety of men like George Keith in Pennsylvania and Samuel Sewall in Massachusetts. Religious arguments against the sin of slavery were soon augmented by Enlightenment ideas about universal human equality and a growing awareness that the emerging American economy was dependent on an immoral labor system. With the American Revolution, Phillis Wheatley and Olaudah Equiano put forward the first published African American indictments of slavery, and slave-owners such as Arthur Lee and George Washington grappled with their own involvement in an inhuman institution.

In the nineteenth century an astonishing proliferation of abolitionist writing was disseminated through periodicals such as William Lloyd Garrison’s Liberator, as well as in books, pamphlets, public lectures, and even hymnals and children’s readers. The persuasive force of this literature achieved perhaps its fullest expression in the writings of Frederick Douglass, William Wells Brown, and Harriet Beecher Stowe, each of whom is generously represented here. As the crisis over slavery intensified, crucial events—from the passage of the 1850 Fugitive Slave Act to John Brown’s raid on Harpers Ferry—elicited stirring responses that propelled the country closer toward war. Culminating with the writings that solidified the Civil War’s transformation into a crusade against the nation’s original sin of slavery, especially Lincoln’s Emancipation Proclamation and his magnificent Second Inaugural, here is the inspiring moral and political struggle whose evolution parallels the story of America itself.

Basker blogs on it here; the table of contents is here.

Cottrol on Race and Law in Three Latin American Nations

Robert J. Cottrol,  George Washington University Law School, has posted The Long Lingering Shadow: Law, Liberalism, and Cultures of Racial Hierarchy and Identity in the Americas, which originally appeared in volume 76 of the Tulane Law Review in 2001.  Here is the abstract:

This is an article on race relations and comparative legal history. It contrasts the law of race and slavery in three Latin American nations, Brazil, Colombia, and Venezuela, with the parallel history in the United States. The article examines the Afro-Latin experience as a critical issue in its own right and as a way to better inform our discussion of racial hierarchy, identity, and legal remedy in the United States. This article examines the paradoxical role played by liberal legal and cultural norms in the United States. It shows how liberalism helped create a system of castelike separation between black and white in the United States. This castelike separation was far more rigid than found elsewhere in the hemisphere and was enforced by discriminatory laws. Yet the article also argues that the very liberalism that helped create strong castelike boundaries in the United States has also helped produce a more thorough North American civil rights revolution than has, to date, occurred in Latin America.

After the Introduction in Part I, this article is divided into four more parts. Part II, entitled "The Enduring Significance of Race," briefly reviews current debates in U.S. society over the extent to which law should recognize race or take race into account in such areas as remedial efforts, racial definition, and criminal justice. Part III is called "Afro-Americans, A Hemispheric Perspective," and provides the reader with an introduction to the issues of race and Afro-American populations in Latin America, as well as a comparison of racial stratification in the United States and Latin America. Part IV is named "Slavery, Freedom, and the Law: Differing American Experiences." This Part examines the role of the law of slavery in developing and sustaining differing patterns of race relations in the Americas. The role of law in perpetuating and challenging racial hierarchy in the United States, Brazil, Colombia, and Venezuela after emancipation is examined in Part V, entitled "From Emancipation to Equality, the Unfinished Journey."

Giladi, "Francis Lieber on Public War"

New from Rotem Giladi (Hebrew University): "Francis Lieber on Public War," Goettingen Journal of International Law 4 (2012) 2, 447-477. Here's the abstract:

This paper examines Francis Lieber's concept of modern war as "public war" - in the Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber was not the first to engage the distinction between private and public war, his treatment of modern war as exclusively public nevertheless deserves special attention. It became, in time, a foundational concept of the 19th Century effort to modernize and humanize the laws of war. Today, it remains embedded, albeit implicit, in contemporary international humanitarian law and its paradigmatic interstate war outlook. 

Yet Lieber's public war definition was driven by the ideological sensibilities of his youth in Vormärz Germany: romantic nationalism, ardent republicanism, and profound faith in modernity and progress. It took normative form but was, essentially, an ideological assertion. Lieber's public war definition sought to offer ideological justification for the modern nation State, its formation and existence. It also sought to construct and justify, again in ideological terms, the formation, existence, and preservation of an international order comprised of nation States; such order, alone, could meet the challenges of modern conditions. For Lieber, limiting war to nations and States alone was an ideological imperative of progressive civilization in the modern age. 

Reflection on Lieber's public war definition suggest lines of inquiry that may produce a richer understanding of the intellectual foundations and ideological motivation of modern international law. At the same time, such inquiries compel historical, normative, and policy reconsideration of interstate paradigm of war and its costs. They also promise to enrich contemporary normative and policy debates about the regulation of privatized warfare and non-state actors.

The full article is available here.

A Wisconsin Bench and Bar: Meet the Authors

 [We’re moving this up to note the upcoming presentation by the authors of this work at the Sequoya Public Library in Madison, Wisconsin, from 7:00 pm - 8:30 pm on Monday, November 26, 2012.  For more information, contact Elena Spagnolie at 608-263-0734.]

The University of Wisconsin Press and the Dane County Bar Association announce the publication of Lawyers Who Shaped Dane County: A History of The Practice of Law in the Madison Area, by Tom Ragatz, Paul Humphrey, and Sally Garbo Wedde.

The book is filled with history, photos, anecdotes, and stories of Dane County’s leading lawyers, following them through the transformations of their law firms, into government and politics, and to the bench.  It also traces the development of the Dane County Bar Association, women lawyers who made their mark on the profession, the courthouses, and the influence of the UW Law School.   This book is a comprehensive look at the active presence of our profession in Dane County, and the influence lawyers have had on our area.

Civil Rights in the Shadow of Slavery by George Rutherglen

Scholars of constitutional law and civil rights will be interested in a new release from Oxford University Press. It is Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866 by George Rutherglen (UVA Law).  This short book (it comes in at only 224 pages) packs a powerful punch. It is an incredibly useful primer on the relationship between the 1866 Act and the Reconstruction Amendments; the book's arguments turn on both historical and legal analysis. OUP's description of Civil Rights in the Shadow of Slavery and  its table of contents follow.

The 1866 Civil Rights Act is one of the most monumental pieces of legislation in American history, figuring into almost every subsequent piece of legislation dealing with civil rights for the next century. While numerous scholars have looked at it in the larger social and political context of Reconstruction and its relationship with the Fourteenth Amendment, this will be the first book that focuses on its central role in the long history of civil rights. As George Rutherglen argues, the Act has structured debates and controversies about civil rights up to the present. The history of the Act itself speaks to the fundamental issues that continue to surround civil rights law: the contested meaning of racial equality; the distinction between public and private action; the division of power between the states and the federal government; and the role of the Supreme Court and Congress in implementing constitutional principles. Slavery, Freedom, and Civil Rights shows that the Act was not just an archetypal piece of Radical Republican legislation or merely a precursor to the Fourteenth Amendment. While its enactment led directly to passage of the amendment, their simultaneous existence going forward initiated a longstanding debate over the relationship between the two, and by proxy the Courts and Congress. How extensive was the Act's reach in relation to the Amendment? Could it regulate private discrimination? Supersede state law? What power did it endow to Congress, as opposed to the Courts? The debate spawned an important body of judicial doctrine dealing with almost all of the major issues in civil rights, and this book positions both the Act and its legacy in a broad historical canvas.

Table of Contents

Chapter 1: The Birth of Civil Rights: The Circumstances, Acts, and Legacy of the 39th Congress 

Chapter 2: Citizenship, Slavery, and the Constitutional Origins of the Act 

Chapter 3: Reconceiving Civil Rights: The Passage and Structure of the Act 

Chapter 4: The High Tide of Reconstruction: The Fourteenth Amendment and Later Legislation 

Chapter 5: Restrictive Interpretations and the End of Reconstruction 

Chapter 6: The Verdict of Quiescent Years: Aliens, Property, and State Action 

Chapter 7: Resurrecting Civil Rights: Reading an Old Act for a New Era 

Chapter 8: Reaffirming the Revived Act: Extension, Reconsideration, and Recodification 

Chapter 9: Discerning the Future from the Past: The Contemporary Significance of the Act 

Kahn on Loewenstein, Post and Hate Speech.

Robert A. Kahn, University of St. Thomas School of Law, has posted Karl Loewenstein, Robert Post and the Ongoing Conversation between Europe and America Over Hate Speech Laws.  Here is the abstract:

European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.” This article focuses on two authors whose writing appears to make these claims: Karl Loewenstein and Robert Post. A German Jewish émigré fleeing Nazi Germany, Loewenstein warned Americans that fascism was a new, modern phenomenon that required a new democracy, one that could protect itself by restricting speech. Post’s position on democracy is quite different – he finds hate speech restrictions largely incompatible with democratic legitimacy. While at times Post shows an exceptionalist unwillingness to judge Europe for its lack of hate speech laws, at other points he is quite willing to say that a stable successful democracy does not ban hate speech. Tracking the competing claims of Loewenstein and Post opens the door to a more fluid analysis of European and American positions on hate speech – one that is both comparative and normative.

The Max-Planck Summer Academy for Legal History

Max-Planck-Institut für Europaeische Rechtsgeschichte announces the Max-Planck Summer Academy for Legal History, to be held July 29 to August 16, 2013:

The Max-Planck Summer Academy for Legal History, offered by the Max Planck Institute for European Legal History (MPIeR), provides an in-depth introduction to methods and principles of research in legal history. Although its main focus is on European legal history, there is special emphasis on global perspectives on legal history. It addresses a selected group on highly motivated early-stage researchers, usually PhD candidates, working on a research project with an interest in the basic research of historical formation and transformations of law and other normative orders.

The academy consists of two modules and lasts three weeks; the first two weeks provide an introduction to the study of sources, methodological principles, as well as theoretical models and controversial research debates on basic research fields of legal history (module 1). During the third week the participants discuss a special research theme and develop their own approach to the theme (module 2).

[The special theme for module 2 is Global Perspectives on Legal History.] Global History, World History, Imperial History, Atlantic or Pacific History: the variety of transnational historiography is growing ever larger still. These global perspectives provide new challenges and opportunities for legal history. In various lectures and workshops during the third week of the summer academy the participants reflect on the different concepts and models of how to approach the global perspectives in legal history. The aim is to raise awareness when employing these perspectives and enabling the participants to critically analyze the discourses on transnational historiographies.   A detailed schedule including the lecturers will be available [here.]

 More.

The Lochner Era: A Robert H. Smith Seminar

[Because the application deadline of November 30 is fast approaching, we are moving up this notice of a Smith seminar on constitutional history from 1880 to 1940, led by Barry Cushman.]

The Institute for Constitutional History has announced another Robert H. Smith seminar for advanced graduate students and junior faculty.  This one is “The Lochner Era, 1880-1940.”  It will be led by Barry Cushman, the John P. Murphy Foundation Professor of Law and Concurrent Professor of History and Political Science at the University of Notre Dame.  (Before taking his position at Notre Dame, Cushman was the James Monroe Distinguished Professor of Law and Professor of History at the University of Virginia.)  He has published widely on constitutional history and received the American Historical Association’s Littleton-Griswold Prize for his book, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (Oxford University Press, 1998).

Our friends at the ICH elaborate:

Chief Justice Melville Weston Fuller (credit)

This seminar will examine significant developments in the areas of constitutional law governing social and economic regulation in the so-called "Lochner Era," extending roughly from 1880 to 1940.  Attention will be given to restrictions on and changes in the scope of the federal powers to tax, to spend, and to regulate interstate commerce, as well as to limitations placed upon state and federal regulatory competence by the Due Process Clauses of the Fifth and Fourteenth Amendments, the Equal Protection Clause, the Tenth Amendment, and the Dormant Commerce Clause.  We will seek to understand how these limitations and developments presented both obstacles and opportunities to regulatory reformers, how they constrained and shaped legal strategies, and why particular reformers succeeded or failed in securing their regulatory objectives.  The assigned readings will include Supreme Court decisions of the period and secondary works that focus on specific topics within the period.

The seminar will meet Thursday evenings, 6:00-8:00 p.m., January 10, 17, 24, and 31, February 7, and 14, in the Deans Conference Room (E212) at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

The ICH adds:

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at MMarcus@nyhistory.org until November 30, 2012.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

Ross on Constitutional Objections to the League of Nations

William G. Ross, Samford University Cumberland School of Law, has posted Constitutional Issues Involving the Controversy about American Membership in the League of Nations, 1918-1920, which is forthcoming in volume 53 of the American Journal of Legal History (2013).  Here is the abstract:    

Constitutional issues were an integral part of the controversy over U.S. membership in the League of Nations. Opponents of membership contended that the League would diminish national sovereignty, violate principles of federalism, and interfere with the separation of powers between the president and Congress. In particular, opponents warned that the League would impair congressional and presidential war powers, restrict federal authority over many domestic issues – particularly labor regulations, tariffs, and immigration – and limit the police powers of the states. Proponents of the League contended that constitutional objections were no more than a pretext for political opposition and that Congress, the president, and the U.S. Supreme Court would never interpret the League’s covenant in a manner that brought it into conflict with the Constitution.

This article examines these constitutional issues and considers the extent to which they contributed to the U.S. Senate’s rejection of the League. The article concludes that “irreconcilable” foes of the League were motivated mostly by political objections, but that the so-called “reservationists” raised serious constitutional questions that could have been resolved in favor of membership in League if President Wilson had been willing to compromise with the reservationists.

Justices Behaving Badly

Last week Judge Richard Posner kicked off a two-day symposium at Chicago-Kent College of Law on the Supreme Court and the AmericanPublic  with an address on “The Supreme Court and Celebrity Culture.”  Judge Posner offered his characteristic mix of provocation and humor in discussing the “public intellectual activities” of Supreme Court Justices.  His assessment of the last half century of Supreme Court history (going back to the early 1960s, when he clerked for Justice Brennan) was not particularly flattering.  Increasingly during this period, the justices have become too enamored with the limelight of the public stage.  Basically, they talk too much, and they talk too much about things they don’t know anything about. 

Judge Posner was particularly exercised about the slew of “trials” Supreme Court justices have presided over involving historical or literary figures.  Justice Kennedy has a kind of traveling production in which he presides over a murder trial for Hamlet, whose lawyers argue that their client was insane when he killed Polonius.  In 1987, Justices Blackmun, Brennan, and Stevens participated in a mock trial in which the question of the authorship of Shakespeare’s plays was considered.  The three-justice panel concluded that William Shakespeare was indeed the author, although Justice Stevens subsequently reconsidered the issue and has come to believe that the real author is Edward de Vere, the Earl of Oxford.  Apparently, he has persuaded some of his colleagues on this point. 

While some might see this as all in good fun, Posner thinks not. Leave this kind of discussion to historians and literary scholars, he said.  There is something undignified about Supreme Court justices pontificating on such matters. 

Fortunately, Posner’s stern judgment did not extend to Justice Sotomayor recent visits to Sesame Street.  This was fine, he explained.  The justice simply was explaining the role of the judge in resolving disputes, something she is eminently competent to do.  (Posner was referring to Justice Sotomayor’s first visit to the show.  In her more recent appearance, the justice gave Abby Cadabby career advice, which included the heartbreaking admonition that princess was not a solid career path: “Pretending to be a princess is fun, but it is definitely not a career.”  Judge Posner did not opine on whether this topic risked veering too far from the justice’s area of expertise.)

Posner also discussed Supreme Court oral arguments, and here too he saw troubling developments.  In their ever increasing volubility from the bench, the justices were taking things too far, further undermining the dignity of the Court.

(When politely pressed during Q&A on whether he saw any tension between his criticism of the justices and his own famously outspoken and astoundingly wide-ranging career as public intellectual, Posner laughed, suggested that his books are intended as serious scholarly interventions, and shifted the subject.)

Posner concluded his remarks on a rather mischievous note, explaining that ultimately these undignified practices by Supreme Court justices were inconsequential because dignity had disappeared from public life.  It is hard to know how seriously to take this point.  To be sure, standards of dignity for our public officials have evolved quite dramatically over the past half century.  But there are still norms of propriety that operate in public life.  Furthermore, it would seem that if there were any place where these norms have been particularly resilient, it would be with regard to the behavior and activities of Supreme Court justices. 

While there has been a trend in recent decades toward a more publicly engaged Court, there are still some quite powerful assumptions about proper behavior for a sitting Justice.  Recall, for example, the outcry over Justice Scalia’s visit to Michelle Bachmann’s Constitution Study Group, or the criticism of the Court that followed oral arguments in the health care case.  People still have certain expectations of dignified conduct for Supreme Court justices.  Furthermore, it is hard to imagine members of the current Court engaging in some of the extrajudicial activities that characterized earlier Courts—Justice Jackson leaving the Court for a year to prosecute Nazis in Nuremberg; Chief Justice Vinson playing poker with President Truman (and offering advice on the constitutionality of seizing the steel industry); Justice Douglas angling for the presidency; Chief Justice Warren leading the investigation into the Kennedy assassination; Justice Fortas continuing in his role as President’s Johnson’s confidant and advisor while on the Court.  Perhaps our more recent generation of justices turn to Shakespeare and Sesame Street simply because they have fewer demands on their free time? 

LaCroix asks What If Madison Had Won?

James Madison (Credit: LC)

Alison L. LaCroix, University of Chicago Law School, has posted What If Madison Had Won? Imagining a Constitutional World of Legislative Supremacy, which originally appeared in the Indiana Law Review 45 (2011): 41-59.

Identifying the proper degree of federal supremacy and the best means of building it into the constitutional structure were central concerns for many members of the founding generation. At the Constitutional Convention, James Madison proposed granting Congress the power to veto state legislation. Madison’s “negative” was intended to connect Congress and the states in a single compound legislature, giving Congress the power either to veto or to ratify by silence the acts of state legislatures. The negative failed to gain the approval of the convention delegates, however, and they instead chose to build federal supremacy into the Constitution via the judiciary-centered mechanisms of the Supremacy Clause and Article III. This essay asks what would have happened if Madison’s negative had carried the day, and the Constitution had implemented federal supremacy by way of a legislative rather than a judicial device. One potential answer is that the negative should be understood as the functional equivalent of modern preemption doctrine. Had the negative been incorporated into the Constitution in 1787, however, the combined force of the negative’s distinctive characteristics might well have led not to a stronger union but to forceful resistance to federal power by diverse state legislatures in a variety of circumstances. Two nineteenth-century case studies illustrate this point: the controversy over the Bank of the United States, and the debate over Congress’s power to supplant state legislation in the area of interstate commerce. In contrast to Madison’s and many modern commentators’ understanding of the negative as a highly centralizing mechanism, these case studies show that the negative would likely have led to fragmentation and disintegration between the federal center and the state peripheries long before the antebellum sectional crisis.

McSweeney on Civilian Learning and English Case Law

Thomas McSweeney, who is in the second year of a VAP at Cornell Law, published English Judges and Roman Jurists: The Civilian Learning Behind England’s First Case Law in the Temple Law Review 84 (Summer 2012): Here is the abstract:

This Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, the justices and clerks of the royal courts began to treat cases as if they were the opinions of great jurists, to apply the same types of dialectical reasoning that were used in civil law discourse to those cases, and to work them into systems of authority. They used cases, as the modern common law does; but they used cases to create systems of the kind we usually associate with civil law. In the second Part of the Article, I turn to the modern common law and, using the methods of medieval case law as a mirror, show that the differences between civil law and common law reasoning are more perceived than real. American lawyers tend to view common law as flexible and creative, whereas they view civil law as ossified and hierarchical. This largely stems from the fact that common lawyers focus on the judicial opinion as the place where legal reasoning takes place. By integrating other texts, like the student outline and the restatement—which seek to create a harmonious system out of judicial opinions—into the picture of common law reasoning, I show that common law reasoning shares quite a bit in common with civil law reasoning.

This Week in the Book Pages: Patriarchs, Rebels, Crusaders, Survivors

This week in the New York Times: Christopher Buckley reviews The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy (Penguin Press), by David Nasaw. Here's a taste:

The book’s subtitle . . . is if anything an understatement. Joe Kennedy was personally involved in virtually all the history of his time. There has been no dearth of books about America’s royal family, but this one makes a solid case that the ur-Kennedy was the most fascinating of them all.

Read on here. (You can find another review here, in the Wall Street Journal)

Also reviewed in the NYT: Marvel Comics: The Untold Story (Harper/HarperCollins), by Sean Howe (here); Darkest America: Black Minstrelsy From Slavery to Hip-Hop (W. W. Norton & Company), by Yuval Taylor and Jake Austen (here);  On Saudi Arabia: Its People, Past, Religion, Fault Lines—and Future (Alfred A. Knopf), by Karen Elliott House (here); and The Partisan: The Life of William Rehnquist (PublicAffairs), by John A. Jenkins (here).

The Nation is full of good stuff this week:

• Nicholas Guyatt reviews The Amistad Rebellion: The Atlantic Odyssey of Slavery and Freedom (Viking), by Marcus Rediker. Rediker "retell[s] the saga [of the famous slave revolt] from the perspective of the rebels themselves." Read on here.

• Samuel Moyn covers four books on China, totalitarianism, and famine. The review essay, available here, discusses the past and the future of "food politics" in China.

• Helen Epstein reviews, here, How Children Succeed: Grit, Curiosity, and the Hidden Power of Character (Houghton Mifflin Harcourt), by Paul Tough, and Fire in the Ashes: Twenty-Five Years Among the Poorest Children in America (Crown), by Jonathan Kozol.

• John Connelly reviews, here, four books on Poland and the Holocaust.

This week in the Wall Street Journal: a review of The Barbarous Years: The Peopling of British North America: The Conflict of Civilizations, 1600-1675 (Knopf), by Bernard Bailyn. Reviewer J. R. McNeill describes the book as "something of a prequel to 'Voyagers to the West'": In this volume, Bailyn "considers the British, Dutch, Swedish and Finnish migrants over the first seven decades of the 17th century" and "pays much more attention to the people who were on these shores first." Read more here.

Also reviewed in the WSJ: The Law of Superheroes (Gotham), by James Daily and Ryan Davidson (here); and Inventing the Christmas Tree (Yale University Press), by Bernd Brunner (here).

In the Chronicle of Higher Ed, subscribers may access a review, by Peter Monaghan, of James T. Patterson's The Eve of Destruction: How 1965 Transformed America (Basic Books). As the title suggests, the book "argues that that one year was pivotal in postwar American politics, society, and culture."

A Temporary Position at Salem State

[The following notice appeared in the listings of the New England Higher Education Recruitment Consortium.]

Salem State University seeks to fill a one-year full-time position in World History and U.S. Constitutional/Legal History for the 2013-14 academic year. Responsibilities include teaching the required world history sequence, constitutional/legal history, and upper-division electives in the areas of specialization. Minimum qualifications include Ph.D. or ABD in history. Teaching experience preferred. Subject to available funding.

Weekend Roundup

• We recently noted the publication of Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio, eds. Paul Finkelman and Roberta Alexander (Ohio University Press, 2012). Paul Finkelman (Albany Law School) has now posted his contribution to the volume: "A Political Show Trial in the Northern District: The Oberlin-Wellington Fugitive Slave Case." It is available for download here, at SSRN.

• Catholic University law alumni were recently treated to a session on legal history led by Geoff Watson and Kenneth Pennington.  The story is here.

• “First Freedom: The Fight for Religious Liberty,” a new documentary for PBS premiering nationally on Tuesday, December 18, 2012 at 8 p.m. ET.  PBS urges you to check your local listings and watch the trailer now.  According to the press release, Douglas Brinkley,  Forrest Church, John Hope Franklin, and Jon Meacham are among those interviewed on-camera.

•  The Virginia Historical Society, funded by a matching grant from the Andrew W. Mellon Foundation and other donations, provides research fellowships of up to three weeks a year. More information is here.  Hat tip: H-Law

The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Alford on the British Constitutional History and the Article II Vesting Clause

Ryan Patrick Alford, Ave Maria School of Law, has posted Not Even Wrong: The Use of British Constitutional History to Defend the Vesting Clause Thesis.  Here is the abstract:

The article discusses the Vesting Clause Theorists' claim that the British constitution of 1787 can be considered the baseline against which the Framers defined the "executive power" granted by Article II of the Constitution of the United States. While this is the best argument still remaining for the conception of broad presidential powers that they advance, it is profoundly misguided, as it necessarily relies upon a fatal misunderstanding of seventeenth and eighteenth century English (and British) constitutional history.

It details that the monarchy had lost the powers the vesting clause theorists posit to be the model for the president’s long before the framing, owing to the movement towards parliamentary supremacy and the creation of a cabinet responsible to Parliament. As the article shows, this was clear to the revolutionary generation, who accordingly could not have believed that royal powers could serve as a useful baseline for those of a president. More importantly, it demonstrates how this process of constitutional change in eighteenth century Britain destabilized the notion of executive power, such that there was no undisputed, commonsensical definition: executive power was an essentially contested concept by 1787.

The article posits further that to understand the original scope of presidential powers, one must grasp that the key feature of American political thought during the American Revolution was that it was a reaction against developments in eighteenth century British constitutional theory. The Founding Fathers drew deeply from seventeenth century constitutionalism, inheriting a deep distrust of strong executive powers. The article's historical analysis demonstrates that the arguments of Vesting Clause Theorists (such as John Yoo) resemble the defenders of absolutism that the Framers' abhorred, and are therefore in many significant respects antithetical to the fundamental political ideals that defined the intellectual context of the framing.

Lebovic Wins Murphy Prize

At its meeting in November 2011, the Board of the ASLH voted to offer two one-time awards of $5,000 in honor of the constitutional historian Paul L. Murphy (1923–1997)  in support of the completion of books on civil liberties in American history.  This year's prize went to Sam Lebovic, who completed a Ph.D. in History at the University of Chicago and is currently a fellow at the Center for Cultural Analysis, Rutgers University.  Here, courtesy of H-Law, is the citation:

The Paul Murphy Prize for 2012 is awarded to Sam Lebovic for his book project "Beyond the First Amendment: The Problem of Press Freedom in the American Century." Lebovic's project is exciting and original.  In this legal, political and cultural history of press freedom and the First Amendment in the United States from 1919 to the 1970s, Lebovic argues that press freedom encompassed more than the freedom to speak and publish. Going well beyond the history of litigants, courts and caselaw, he recovers a version of freedom of the press based on the public's right to know, and pursued by journalists, politicians, lawyers and philosophers. The free-flow of information was jeopardized by the rise of totalitarianism, the power of corporate media, and the growth of the national security state. In the context of a Cold War focus on secrecy, a New Deal-era effort to limit consolidation of the media and to promote a broad public right to know was "debated, contested, and ultimately defeated," leaving the more prevalent concept of freedom of speech as protecting only an individual right of expression. Lebovic's approach is multi-layered and ambitious, historicizing the right to information and conceptions of free speech in the context of a changing political culture.  He ranges from the labor politics of the news media in the 1930s, to the national security classification system, to the centralization of the news industry, and many of the topics and sources in this work are very important and understudied. The result promises to be a brilliant reconfiguration of press freedom.

Kumar reviews Mukherjee, "India in the Shadows of Empire"

Via H-Law, we have word of a review (commissioned by H-Asia) of Mithi Mukherjee, India in the Shadows of Empire: A Legal and Political History, 1774-1950 (Oxford University Press, 2010).

Prakash Kumar (Colorado State University) offers this introduction:

Mithi Mukherjee’s book examines the history of the empire’s lingering presence in and the colonial history of South Asia through the lens of laws and legal institutions, modes, and discourses. Mukherjee argues persuasively for the need to ground our understanding of postcolonial political formations in India in the colonial history of political discourses. She extends Michel Foucault’s analysis to the political domain and deploys the categories of discourse and teleology (explained as goal-specific discourse) to remind readers that polity and political processes in India should not be simply understood as if they had no history and as if they originated sui generis. Instead, she maintains, this polity has a political and cultural genealogy, and is a product of discourses and conflicts of the colonial past.

Read on here.

Surrency and Sutherland Prizes Announced

The ASLH’s two article prizes are out.  The Surrency Prize, named in honor of Erwin Surrency, is awarded annually to the person or persons who wrote the best article published in the Law and History Review in the previous year.  This year’s winner is Rebecca Scott, University of Michigan, for "Paper Thin: Freedom and Re-enslavement in the Diaspora of the Haitian Revolution," which appeared in the November 2011 issue.  According to the citation, the article,

carefully reconstructs the passage of thousands of individuals who had been displaced by the Haitian Revolution from Saint-Domingue to Cuba and on to New Orleans.  Scott chronicles the shifting status of these refugees after the abolition of slavery by decree and then by the French National Convention from slave to free to slave and sometimes back again.  Her analysis of the bureaucracy of slavery - the process of designation that sometimes occurred peremptorily on the deck of a ship - and individual resistance to such designations scrutinizes an underexplored aspect of slavery's machinery.  Scott's detailed micro-history of the legal struggles of Adélaide Métayer/Durand in New Orleans to maintain her freedom and that of her children is a work of art.

"Paper Thin" is richly sourced from multiple archives and in secondary literature in multiple languages, and the story-telling is gripping.  The Surrency Prize Committee was impressed by Scott's mastery of this transnational tale and commends the essay as a model work of social, cultural, and legal history that challenges scholars to think about the ill-focused border between slavery and freedom in the Americas.

Th ASLH’s Sutherland Prize is named in honor of the late Donald W. Sutherland, “a distinguished historian of the law of medieval England and a mentor of many students.”  It is awarded to “the person or persons who wrote the best article on English legal history published in the previous year.  This year’s winner is my Georgetown Law colleague James Oldham for Informal Lawmaking in England by the Twelve Judges in the Late 18th and Early 19th Centuries, Law and History Review 29 (2011): 181.

Hat tip: H-law

Brown-Nagin Wins the Reid Award

Tomiko Brown-Nagin, Harvard Law School, has won the ASLH's 2012 John Phillip Reid Book Award for her book, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.  Here is the citation:

Brown-Nagin sets out to answer the question of 'what would the story of the mid-twentieth-century struggle for civil rights look like if legal historians de-centered the U.S. Supreme Court, the national NAACP, and the NAACP LDF and instead considered the movement from the bottom up?' To answer this question, she considers the usual landmark civil rights cases but does so with a detailed examination of the actors involved in the civil rights movement in a major American city.  It is not only the officers and lawyers of the national and local organizations involved in the civil rights movement who appear in Nagin's account, but teachers, real estate agents, students, shopowners, and single mothers, among others.  Brown-Nagin highlights the class, gender, generational, and ideological differences among Atlanta's civil rights lawyers, activists, and laypeople, which fuelled responses to racial discrimination ranging from elite accommodation to civil disobedience to outright confrontation.  The result is that the legal and racial geography of Atlanta, the city that long prided itself on being "too busy to hate," has never been so vividly drawn or acutely analyzed.

From this canvas of conflict, Brown-Nagin derives fresh insights about the nature of legal change, the competing demands of the legal profession, the power of social movements, and the meaning of the postwar struggle for racial equality. In particular, she argues that litigation's ability to catalyze change is most potent when the lawyers take their cues from the movement, instead of vice versa.

Hat tip: H-Law

Cromwell Article Prize to Engstrom

image credit

This year's William Nelson Cromwell Foundation Cromwell Article Prize ("for an excellent article in American legal history published by an early career scholar") was awarded to David Freeman Engstrom (Stanford University) for “The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972.” The article appeared in volume 63 of the Stanford Law Review (2011). Here's the citation:

During deliberations Committee members praised Engstrom’s deep look at the strategies employed by various civil rights groups to craft fair employment law, along with his intensive archival work across a wide range of sources, to tell a new story about how civil rights emerged not just from statutes and from judicial interpretation, but from the administrative state as well.  Recent monographs have begun to open up the story of civil rights in the post-War period by showing that civil rights action activism emerged in many places, not just on southern streets in the wake of Brown v. Board of Education, and not just in education and in public accommodations.  Engstrom, an assistant professor at Stanford Law School, extends that analysis to the employment setting.  In telling this new story, he extensively mined the federal archives.  This is an important and neglected story that stretches across decades as our nation moved from the Second World War through the Civil Rights movement and then its ending.  It is also an extraordinary work of research, which invites us to see how administrative law functions and is central to our legal history.

Hat tip: H-Law