Thursday, May 31, 2012

Kerber on Kindle

I just discovered that Linda Kerber's classic Women of the Republic: Intellect and Ideology in Revolutionary America, first published in 1980, is now available in Kindle.  You can find a used copy for less, but for e-reader users, it's welcome to find pre-Kindle and Nook books coming out in this format.  Because of Kindle, I can take a small library along with me while traveling.

Bradley on Attorney General Bradford's 1795 Opinion on the Alien Tort Statute

Curtis A. Bradley, Duke University School of Law, has posted a new essay, Attorney General Bradford's Opinion and the Alien Tort Statute.  The essay considers an important 1795 opinion of the Attorney General, and includes primary sources in the appendix.  Here's the abstract:
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. This document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions, and the opinion was discussed by both sides in the oral argument before the Supreme Court in the first hearing in the pending ATS case, Kiobel v. Royal Dutch Petroleum. Surprisingly, however, no one appears to have looked for the official records and correspondence concerning the Sierra Leone incident, other than the Bradford opinion itself. Based on research conducted in the archives of both the U.S. State Department and the British Foreign Office, this essay considers the broader diplomatic context of the Bradford opinion. The essay concludes that, when read in light of the complaints from the British government that Bradford was responding to, his opinion provides support for the extraterritorial application of the ATS, but only with respect to the conduct of U.S. citizens. It also concludes that the opinion does not provide support for aiding and abetting liability under the ATS, at least as that concept is typically invoked today. The two principal documents that Bradford was responding to in his opinion, which have not previously been considered in the scholarship on the ATS, are transcribed as an appendix to the essay.

Wednesday, May 30, 2012

Hartog on Davis, "Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname"

Writing for the JOTWELL legal history section, Hendrik Hartog (Princeton University) calls readers' attention (here) to Natalie Zemon Davis, "Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname," Law &History Review (2011). Hartog begins by discussing the author's profound influence on his own career. He then discusses the article, which he calls "a triumph of the moral and historical imagination." Here's more:
Now, many years beyond her official “retirement,” Davis publishes “Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname,” as part of her continuing inquiry into slaveholding and the lives of slaves in the Dutch colony of Suriname.  Her larger project of reconstructing life in early modern Suriname has required her to learn new languages and literatures.  It has resulted in provocative and illuminating studies of the ironic situation of Jews who moved to Suriname to found a radically free place for themselves and who then, of course, became slaveholders.  But the Law and History Review article pursues a different question, about the various meanings of what “criminal law” meant in a radically violent slave society.
Read on here.

Finkelman on Why Sweatt v. Painter Matters

Paul Finkelman, Albany Law School, has just posted Breaking the Back of Segregation: Why Sweatt Matters.  It appears in 36 Thurgood Marshall Law Review 7-37 (2010) (published in 2012).  The Thurgood Marshall Law School, home of the law review, was first opened in response to Heman Sweatt's  lawsuit against the University of Texas Law School, which denied him admission because of race.  Here's the abstract:
In this article the author argues that Sweatt v. Painter (1950) deserves greater prominence in legal history and the history of integration. Sweatt is the first case in which the Supreme Court articulated that under some circumstances "separate but equal" could never pass constitutional muster because the institution created for blacks could never be equal to the institution for whites. Here the Court held that no matter what the State of Texas create for blacks, it could never create an law school that was "equal" to the law school at the University of Texas at Austin. Significantly, the unanimous Court that decided this case include a graduate of the University of Texas Law School, Justice Tom Clark. Thus, this article argues that Sweatt set the stage for Brown v. Board of Education by sending a clear message to the South that in important ways segregation could never create equal institutions.

Tuesday, May 29, 2012

Ely on Property Rights and the Supreme Court in the Gilded Age

James W. Ely, Jr., Vanderbilt Law School, has posted Property Rights and the Supreme Court in the Gilded Age, which is forthcoming in the Journal of Supreme Court History.  Here is the abstract:
Justice Stephen Field
This article challenges the conventional wisdom about the property-rights jurisprudence of the Supreme Court in the period 1870-1900. It asserts that the Court was animated to protect the rights of property owners as a means of upholding individual liberty against governmental overreaching. The justices saw private property as essential for the enjoyment of liberty. This commitment to individualistic values was reinforced by utilitarian considerations. The Court repeatedly stressed the vital role of property and contractual rights as the basis of economic growth. In upholding property right the justices drew upon the long-standing Anglo-American tradition of property-conscious constitutionalism. The essay concluded that there was a close affinity between the views of the framers of the Constitution concerning the sanctity of property rights and the jurisprudence of the Gilded Age.

Weinberg on the Economics and History of Commercial Paper

The University of Kentucky College of Law, has posted some of its faculty’s backlist.  Here is one by Harold R. Weinberg that originally appeared in volume 70 of the Kentucky Law Journal in 1982, entitled Commercial Paper in Economic Theory and Legal History:
Commercial-paper played a significant role in antebellum America by partially filling the void resulting from the shortage of gold and silver coinage and the absence of a reliable paper currency. Although most legal historians would agree with this premise, a controversy has arisen in recent years concerning negotiability, that collection of legal rules which greatly enhanced the usefulness of bills of exchange and promissory notes in commerce and finance.

Many scholars believe that negotiability, along with other pre-Civil War legal doctrines, was intended to facilitate the development of a national market system and economic growth. This view typically holds that courts acted with the general approval of society and either ignores any major wealth redistributive consequences of these developments or assumes that such consequences were unanticipated.

A very different view of the rise of commercial paper negotiability during 1780-1860 has been advanced by Morton Horwitz. In The Transformation of American Law he argues that American judges developed negotiability primarily to protect mercantile and entrepreneurial minorities that stood to gain from an expanding market economy. This was accomplished at the expense of persons possessing a pre- or anti-commercial consciousness. The sweeping transformation described by Horwitz, which was also reflected in property, contract, and other areas of law, was one in which enterprise was subsidized and protected while farmers, workers, consumers, and less powerful groups were increasingly disadvantaged.

This controversy among legal historians bears an illuminating relationship to the work of other analysts who have sought to employ economic tools to advance the understanding of legal doctrine. Numerous studies of common law rules, including many relating to the branches of law discussed by Horwitz, suggest that judge-made law can be understood "as if" it were the product of judges who sought to maximize social wealth by utilizing a criterion of economic efficiency. This conclusion is obviously at variance with the Horwitzian view of antebellum legal history. It must also be unsatisfactory to historians whose training does not permit them to be satisfied with "as if" explanations, but which requires them to ask why common law rules approximate an efficient allocation of resources.

Analysts have begun to explore two lines of explanation for the emergence of efficient case law. “Visible hand” theories postulate the existence of judges who sought to announce efficient doctrine. “Invisible hand” theories, on the other hand, do not depend on judicial motivations. They hold, for example, that the costs imposed by an inefficient rule create an incentive for litigants to expend resources in order to obtain the rule's modification or reversal. Efficient legal doctrine might therefore have evolved even if judges were indifferent to or biased against efficiency as a decisional criterion.

Parts I and II of this article seek to advance the inquiry into the significance of commercial paper in legal history by presenting a positive economic analysis of some of the decision rules that were important to commercial paper negotiability. It is hoped that this theory might be of use to historical studies of the allocative, distributive, or other characteristics of the judicially created negotiability doctrine applied prior to the Civil War. The article's conclusion offers some suggestions concerning how this inquiry might be further advanced. It is also hoped that this analysis will have relevance to modern commercial paper law, much of which closely resembles the rules applied by nineteenth century judges.

A Distinct Judicial Power: The Federalist Society Podcast

Here is the Federalist Society’s podcast on A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787, by Scott Gerber, Ohio Northern University.  The commentator is James Pfander, Northwestern University School of Law.

Monday, May 28, 2012

A New Study of a Very Old Chinese Legal Text

From the Santa Barbara Independent we have a press release from the University of California Santa Barbara on a UCSB professor's work in an ancient Chinese legal source.  It commences:
In an ancient tomb in China's Hubei Province, archeologists discovered a basket of medical, mathematical, and legal texts that date back to the late third and early second centuries B.C. A historian at UC Santa Barbara is working to translate and interpret the legal texts, of which there are two, and describes them as "a gold mine of social and legal history."

“The finds are unprecedented,” said Anthony Barbieri-Low, an associate professor of history at UCSB. “They are as important as the Dead Sea Scrolls.”

New Approaches to the Study of Violence

The latest (and gated) issue of the American Political Science Association’s Perspectives on Politics is devoted to the study of violence.  The editor Jeffrey C. Isaac’s introduction is “New Approaches to the Study of Violence.”  The other contributions are:

States, Insurgents, and Wartime Political Orders
Paul Staniland

A Plague of Initials: Fragmentation, Cohesion, and Infighting in Civil Wars
Kristin M. Bakke and Kathleen Gallagher Cunningham and Lee J. M. Seymour

Terrorism and Civil War: A Spatial and Temporal Approach to a Conceptual Problem
Michael G. Findley and Joseph K. Young

The Political Science of Genocide: Outlines of an Emerging Research Agenda
Ernesto Verdeja

Can There Be a Political Science of the Holocaust?
Charles King

Retreating from the Brink: Theorizing Mass Violence and the Dynamics of Restraint
Scott Straus

“You Talk Of Terrible Things So Matter-of-Factly in This Language of Science”: Constructing Human Rights in the Academy
Charli Carpenter

Too Much Information? Political Science, the University, and the Public Sphere
Lisa Anderson

Looking into the Abyss
Daniel Chirot

Children and War: How “Soft” Research Can Answer the Hard Questions in Political Science
Christopher Blattman

Genocide and the Psychology of Perpetrators, Bystanders, and Victims
Lee Ann Fujii

Genocide and the Psychology of Perpetrators, Bystanders, and Victims
Kristina E. Thalhammer

Genocide and the Psychology of Perpetrators, Bystanders, and Victims
Joan C. Tronto

For Memorial Day: Toni Morrison's Home

On Memorial Day we are encouraged to remember those who have given their lives for the country through their military service.  Toni Morrison's new novel Home follows one soldier's homecoming.  It is a sobering mediation on the limits of our ability to understand.  My take appears today on the Oxford University Press blog.  I can't fully cross-post, but here's the beginning:
Toni Morrison’s new novel Home about a Korean War veteran’s struggles after the war might seem perfectly suited to an impending cultural turn. The close of the U.S. combat mission in Iraq and an anticipated draw-down of American troops in Afghanistan, might signal the end of a war era and a renewed focus on what we now call the homeland. Perhaps we can turn to Morrison’s beautiful and brief narrative to understand the journeys of our generation’s soldiers as they, like Frank Money (the protagonist), try to find their way home.

The message of this novel is sobering. Whatever home might be for Frank, it is not a place where war is absent, as he brings Korea along with him as he travels. If peace is thought of as an absence of war, it is a state that Morrison’s character is unable to experience. War memories, psychological injury, and loss have become a part of him, so that his wartime and peacetime selves have become one. His army jacket and dog tags are outward signs of an inner melding. Home for this soldier/citizen cannot be a place apart. And so a central theme in the novel is the kind of space home can be for a broken veteran like Frank.
Continue reading here.  Cross-posted from War Time.

New Issue of the Journal of American History

A new issue of the Journal of American History is out. It is a special issue on “Oil in American History." The TOC is here.

Book reviews of interest include:

Sunday, May 27, 2012

Hate Speech, Epidemics, Political Economy and More: This Week in the Book Pages

"Should hate speech be outlawed?" This is the provocative title of John Paul Stevens's review, in the New York Review of Books, of The Harm in Hate Speech (Harvard University Press), by legal philosopher Jeremy Waldron (New York University).  The book is a published version of the Oliver Wendell Holmes lectures that Waldron delivered at Harvard University in 2009. In Waldron's view, Stevens writes, "we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society."

Disease Maps: Epidemics on the Ground (University of Chicago Press), by medical geographer Tom Koch, has top billing over at the New Republic: The Book (here). Reviewer Howard Markel offers great praise for this "sumptuous exploration of epidemics of the distant past and the geographical analyses that explained and transformed them."

In the book pages of the New York Times, you'll find a review of Land of Promise: An Economic History of the United States (Harper/HarperCollins), by Michael Lind. Reviewer David Leonhardt describes the book as "ambitious" and "rich with details." Starting from the concept of dueling traditions of political economy, Lind takes the controversial position that “[w]hat is good about the American economy is largely the result of the Hamiltonian developmental tradition, and what is bad about it is largely the result of the Jeffersonian producerist school.” Read on here.

The New York Times also covers, here, Those Who Have Borne the Battle: A History of America’s Wars and Those Who Fought Them (PublicAffairs), by veteran, historian, and former Dartmouth College president James Wright. According to reviewer Andrew J. Bacevich (Boston University), the book focuses on "how the United States has raised the forces with which it wages war; and how, in the aftermath of battle, it cares for and remembers those who fought."

Elsewhere in the NYT, another Ivy League President: the "By the Book" column spotlights historian Drew Gilpin Faust. Asked about "a book that prepared [her] for academic life in some way," she mentions "Amanda Cross’s murderous take on academic life" and, "[i]n a more serious vein, . . . Clark Kerr’s 'The Uses of the University.'"As for a book she "wish[es] all incoming freshmen at Harvard would read," she picks "Kathryn Schulz’s 'Being Wrong,'" which, in Faust's words, "advocates doubt as a skill and praises error as the foundation of wisdom." Read on here.

Mary Dudziak's Wartime continues to inspire discussion. This week Samuel Moyn (Columbia University) reviewed the book for Lawfare, here. Dudziak's response is here, at Balkinization.

In the Wall Street Journal, you'll find reviews of Political Woman: The Big Little Life of Jeane Kirkpatrick (Encounter), by Peter Collier, here, and The Admirals: Nimitz, Halsey, Leahy, and King--The Five-Star Admirals Who Won the War at Sea (Little, Brown), by Walter R. Borneman, here.

In the book pages of the Nation, Stephen F. Cohen (Princeton University) and Peter Reddaway (George Washington) take on, here, Orlando Figes's much acclaimed The Whisperers: Private Life in Stalin's Russia (2007). Did Vladimir Putin's regime "in effect ban[] a Russian edition" of the book? Cohen and Reddaway think not.

Saturday, May 26, 2012

American Law Institute Project on American Indian Law

The American Law Institute, which held its annual meeting last week in Washington DC, is poised to undertake a new project on American Indian Law.  Professor Matthew L.M. Fletcher of Michigan State University College of Law led the discussion at the annual meeting.  Previously, he convened a conference on American Indian law to discuss whether the ALI could produce work that would have a positive impact in this area.

Professor Fletcher is the right person for the job.  In addition to his expertise in American Indian law, he also has an especial sensitivity to and appreciation for legal history scholarship, which is essential, as he writes, for understanding modern American Indian law.  His own work includes Preconstitutional Federal Power, 82 Tulane L. Rev. 510 (2007), among others.  A post about the ALI project and Professor Fletcher's role can be found on his blog, Turtle Talk.

Professor Fletcher’s memo to ALI members emphasized the need for historical understanding for the modern undertaking.  He noted, for example:  “Federal government policymaking has outlined American Indian affairs throughout American history.  The fluctuating history of federal-tribal legal affairs is extremely well documented.”  The memo canvasses the “Treaty Era”, the “Removal Era,” and the “Reservation Era,” with numerous citations to the scholarly literature.

Appropriately enough for the ALI, Professor Fletcher also invokes the memory of Karl Llewellyn and what he termed Llewellyn's “implicit contributions” to the project on American Indian Law.  Professor Fletcher wrote:   
 In 1941, Professor Llewellyn and E. Adamson Hoebel published The Cheyenne Way:  Conflict and Case Law in Primitive Jurisprudence, a deeply influential work of legal anthropology involving the reduction of Cheyenne dispute resolution outcomes to writing.  Some argue that Professor Llewellyn applied his experience studying the Cheyenne Indians as the Reporter of Article 2 (Sales) of the Uniform Commercial Code, perhaps persuading Llewellyn to draft Article 2 to remove many of the formalistic aspects of contract.  We meet to hopefully evoke that teaching once again.

Weekend Roundup

  • Congratulations to Kristin Collins, Boston University Law, on her recent tenuring. As "BU Today" reports, Professor Collins's "research interests include gender and the law, legal history, federal courts, and civil procedure. Her current research focuses on the origins of family welfare policy and the legal construction of the family and gender in early 19th-century administrative law." 
  • Norman Rosenberg's H-Law review of Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America is here.
  • Princeton's press release on "Policy Issues and Analysis of Nonprofits, NGOs and Philanthropy," a course by the legal historian Stanley Katz, is here.
  • I've previously mentioned my participation in the Miller Center of Public Affairs fellows program.  A webcast of the Spring National Fellows Conference is here.  Other mentors who commented on their fellow's work include Gerald Berk, Margot Canaday, Elisabeth Clemens, Susan Hyde, Matthew Lassiter, and Jacob Shapiro.  DRE.
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 25, 2012

Abrams on the History of Cesarean Sections and Malpractice Claims

From 'Barbarity' to Regularity: A Case Study of 'Unnecesarean' Malpractice Claims is a new article by Jamie R. Abrams, University of Louisville Brandeis School of Law.  It appears in the South Carolina Law Review, Vol. 63, 2011.  Here's the abstract:
This paper is a case study from “barbarity” to “regularity” examining comparatively the first ever “unnecesarean” lawsuit arising out of an 1858 cesarean section malpractice case next to a modern forced cesarean section malpractice suit. It positions the modern “unnecessarean” epidemic, in which 30% of births today are by cesarean section, in a historical medical malpractice context. This case study primarily examines a controversial 1858 lawsuit arising out of the first documented cesarean section performed by the revered Dr. Elias Cooper in California. The surgery left Mary Hodges’s bladder, womb, and intestines permanently fused together and left her permanently disfigured. The plaintiffs contended that Dr. Cooper performed the surgery, even knowing that the fetus was dead, to advance his own professional reputation because he expected her to die anyway. This 1858 case, positioned in the backdrop of the California gold rush, the pioneering spirit of individuality, and the emerging role of science in the medical profession, presents a dynamic and revealing case study to uncover the early underpinnings of the medicalized childbirth debate. The case occurred in a transformative moment – indeed a war – over how the medical community would regulate itself and its role in obstetrics. This case is contrasted with a 1996 forced cesarean section case. Both women litigated questions of interventionist childbirth at transformative moments in the history of childbirth – from the positioning of cesarean sections as “barbarity” to their “regularity.”

This case study reveals that the phalanx-like institutional presence of the medical community drives standard of care decisions, distinct from malpractice liability. It reveals unique consent considerations for the “birthing mother,” distinct from the fetus/mother considerations. Finally, it reveals the irreconcilable and paradoxical acceptance of medical uncertainty and rejection of maternal uncertainty. It is a paradoxical story of progress and entrenchment. It reveals the vindicating power of organized medicine that Dr. Cooper so candidly sought; lingering patient-physician relationships just as fraught with ambiguity as Ms. Hodges’s faced; and a startling lack of clarity regarding the effective resolution of medical uncertainty within obstetric standards of care.

deGregory Reviews Kelley, "Right to Ride"

Blair L. M. Kelley (credit)
Our friends at H-Law have posted a review of Blair L. M. Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson (2010). The book is part of the University of North Carolina Press's John Hope Franklin Series in African American History and Culture.

Reviewer Crystal A. deGregory offers this introduction to the book:
Right to Ride explores the interconnectedness of social status, gender, and skin color with such clarity that it is no surprise that the book earned the Association of Black Women Historians’ 2010 Letitia Woods Brown Memorial Book Award. Right to Ride’s achievement is especially impressive when one considers that its main contention--that “the age of ‘accommodation’ was simultaneously a time of resistance”--stands in direct opposition to decades-old historiography (p. 12).
Here's a bit more:
Other important dimensions of this work include its exploration of the critical roles African American women and community institutions played in initiating and sustaining black protest. Black men and women alike were aware of gender politics and often used them to their advantage. Because many of the arguments underpinning racism were centered on notions of protecting white womanhood, attacks on black womanhood “laid bare the irrationality of segregation” (p. 11). Even so, black women’s protest was not just limited to the public square. To challenge segregation, black women also used litigation, as well as their influence as community leaders. . . . In black communities, or the world-within-a-world, the problem of segregation was expansive enough for the employment of different tactics--such as litigation or economic boycotts--and for the popularity of divergent ideologies.
"[M]ost impressive" of all, writes deGregory, is the book's "successful reconstruction of the interrelationship of black protests against segregated streetcars in several cities [New Orleans, Richmond, and Savannah] over time."

The full review is here.

Marion Janet Harron (1903-1972)

[Each year I write a biographical sketch for the exam in my American Legal History course.  Here is this year’s.]

Marion Janet Harron (1903-1972) was born in San Francisco.  She graduated Phi Beta Kappa from the University of California, Berkeley, in 1924 and stayed on for a law degree, which she received in 1926, having made law review.

While a student, Harron was drawn into what one historian has called “the female dominion of American reform,” a network of women-led, nonpartisan organizations that worked to improve the conditions of children, the poor, and the working classes.  During her summers in law school, for example, she worked for a state board that set minimum wages for working women. 

Although Harron passed the California bar the summer she graduated from law school, instead of practicing law in her home state she moved to New York City.  For two years she worked on the staff of the National Industrial Conference Board (NICB), a nonprofit, nonpartisan business group that sought to popularize practices “beneficial to employers and employees and subservient to the welfare of the nation.”  That a social reformer like Harron would work for a business group is not as unlikely as you might think.  Many people believed that competition prevented well-intentioned businessmen from paying their workers a living wage.  If businessmen could combine in trade associations and set minimum prices, they could pay their workers better.  Before the passage of the National Industrial Recovery Act, however, they risked prosecution under the antitrust laws.  For this reason, Harron praised the NICB for showing “how far the economically justifiable combination of business is to be hampered by our inflexible law against combination.”

After her stint at the NICB, Harron surveyed New York’s factory laws for a state commission.  During this period she helped the Columbia University law professor Herman Oliphant develop legal arguments against court injunctions that forbid workers from joining trade unions.  When Oliphant created the short-lived Johns Hopkins University Institute for the Study of Law, he hired Harron to compile a survey of the research projects of American law professors.  In 1929 she returned to New York City.  Although her obituary said she “practiced law on Wall Street,” Harron never worked for a corporate law firm.  Rather, she toiled in the trusts, estates, and real estate department of a major bank.

Thursday, May 24, 2012

Lubet on the Trials of Jon Brown's Black Conspirators

Steven Lubet, Northwestern University School of Law, has posted Execution in Virginia, 1859: The Trials of Green and Copeland.  Parts of the essay are adapted from Lubet's John Brown’s Spy: The Adventurous Life and Tragic Confession of John E. Cook (Yale University Press, 2012).  Here is the abstract:
John Anthony Copeland, Jr. (credit)
Shields Green Awaiting Trial (credit)
This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a remarkable attorney - George Sennott of Boston. Unlike virtually all of the other lawyers at the Harper's Ferry trials, Sennott boldly condemned slavery and announced that he was honored to defend the black insurrectionists. Sennott also employed a creative legal strategy in which he raised the Dred Scott decision as a defense to the treason charge. If black men could not be citizens, he argued, they likewise could not be guilty of treason. The tactic was only partially successful. Green and Copeland were acquitted of treason but convicted nonetheless of murder. Even after pronouncing the death penalty, the Virginia authorities continued their racist treatment of the prisoners. Green and Copeland were executed separately from their white comrades - segregation on the gallows - and their corpses were turned over to medical students for dissection, despite the frantic efforts of Copeland's family to retrieve his body for decent burial. Throughout his ordeal, and right up until the time he faced the noose, John Copeland held to his ideals. On the morning of his execution he wrote a moving letter to his parents in which he expressed devotion to the "holy cause" for which he would die, while condemning "the demands of the cruel and unjust monster Slavery."

Wednesday, May 23, 2012

OAH Distinguished Lecture Series Adds Legal Historians Canaday, Goluboff and Gordon

The Organization of American Historians recently welcomed twenty-five new OAH Distinguished Lecturers for 2012-2013. Three legal historians are among the group: Margot Canady (Princeton); Risa Goluboff (Virginia); and Sally Barringer Gordon (Pennsylvania). The Distinguished Lecture Series, established in 1981, is a speakers bureau dedicated to American history. OAH Distinguished Lecturers speak around the country every year, visiting college campuses and addressing undergraduate and graduate student conferences. They also engage general audiences at public events sponsored by historical societies, museums, libraries, and humanities councils. More than 400 historians have participated in the program. Read more about this year's new group of lecturers here and listen to podcasts of a variety of past lectures here.

Tuesday, May 22, 2012

Mapping the Common Law

Mapping the Common Law: Testing the Boundaries between Contract, Tort, Restitution and Equity, is a day-long conference to be held June 29, 2012, in the Auckland Museum Auditorium, Auckland, New Zealand.  It is sponsored by the Legal Research Foundation, which the conference’s brochure identifies as “a leading law reform body in New Zealand.” 

As the flyer explains:
The common law is broken into divisions (contract, tort, restitution, equity, judicial review, etc.) and subdivisions or causes of actions (for example, within tort: trespass, negligence, defamation, nuisance, Rylands v. Fletcher).  This classification generally works well.  However, problems arise when the same facts give rise to concurrent causes of action (breach of contract and negligence; negligence and nuisance; breach of trust and unjust enrichment) and when concepts from one division of common law appear in another (for example, when an account of profits is ordered as a remedy for breach of contract).

This conference explores:
  • why and how the common law method of case reasoning produces a classification;
  • the historical origins of the current classification of common law;
  • the problems of concurrent liability and cross-fertilisation of concepts;
  • flaws and tensions in the current classification; and
  • what changes we might to expect to see in the future.
Among the speakers is Michael Lobban, Professor of Legal History at Queen Mary University, London, who will address “the historical origins of the classification.”  Gerald Postema, North Carolina Law, and Benjamin Zipursky, Fordham Law, are also to appear on the program, as is the Rt. Hon. Dame Sian Elias, the Chief Justice of New Zealand.  The chair will be Justice Stephen Kos, High Court, Wellington.

To register, please email

Hat tip

Teitelbaum on The Blackwall (1869) and Marine Salvage

Ahoy, admiralty law experts and enthusiasts!  My Georgetown colleague Joshua C. Teitelbaum has posted  Inside the Blackwall Box: Explaining U.S. Marine Salvage Awards.  Here is the abstract:    
Under U.S. maritime law, a salvor of imperiled maritime property on navigable waters is entitled to a monetary award from the owner. When the salvage service is rendered voluntarily in the absence of a contract, the court determines the salvage award according to six factors enumerated by the Supreme Court in The Blackwall, 77 U.S. 1 (1869). The law, however, does not specify a precise formula or rule for calculating awards on the basis of the Blackwall factors. How do courts turn their findings on the Blackwall factors into salvage awards? This article addresses this question by examining the reported decisions of U.S. courts in salvage cases from 1799 to 2007. It employs two statistical methods - fractional polynomial regression and regression tree analysis - to make inferences about the mapping from factors to awards implicit in the salvage cases. In addition to presenting the first systematic empirical study of U.S. marine salvage awards, which complements the traditional doctrinal analysis offered by maritime commentators, an important contribution of the article is that it showcases statistical methods that are well suited to empirical doctrinal analysis but are underutilized in legal scholarship.

Monday, May 21, 2012

Edwards on the Expulsion of German Czechoslovaks after World War II, and the understanding of restitution

Unworthiness, Time and Collective Responsibility: A Case Study in the Paradoxes of Restitution is a new paper by Mark A. Edwards, William Mitchell College of Law.  Here's the abstract:
This article examines a massive but largely forgotten ethnic cleansing that occurred immediately after World War II, in which millions of ethnically German Czechoslovaks lost their property rights and citizenship and were forcibly expelled from the country. Drawing upon interviews with claimants now pursuing restitution, it tells stories that are both remarkable and revealing of paradoxes that undermine restitution claims.

It argues that the social construction of rights-worthiness plays a critical role in mass dispossession and restitution. The social construction of rights-worthiness changes over time, so that in many instances people once considered unworthy of property rights ‘become’ worthy of them. However, time also inevitably corrodes the practicality and moral weight of claims to restitution. This creates what I refer to as the time/ unworthiness paradox: by the time claims for restitution become socially viable, they are often no longer practically or morally viable.

The article also identifies a paradoxical role the concept of 'collective responsibility’ plays in restitution claims. Mass dispossessions often occur because of the wrongs committed by a few members of a group. However, restoring property rights to victims of mass dispossessions often requires the dispossession of innocent current occupiers of land. Thus, it is frequently argued, restitution may commit the very wrong it seeks to right. The article proposes refining our concept of 'collective responsibility’ to distinguish between two phenomena: the assignment of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others. The former is unjust; the latter is an embrace of justice.

Malone Reviews 2 Books on the Courts, Mexican Immigrants, and Education

The Law & Politics Book Review has posted a review of two recently published books on the courts, Mexican immigrants, and education. Reviewer Christopher Malone (Pace University) offers this introduction:
Is this country big enough for the diversity that it claims to idealize? Is the polity large enough for the racial and cultural distinctions that come with that diversity? Will the color-lines continue to be the biggest source of division, or the nation’s greatest strength? Will they tear us asunder, or make us whole?

Those questions in much of their complexity lie at the heart of two recently published books: Philippa Strum’s Mendez v. Westminster: School Desegregation and Mexican American Rights [University of Kansas Press, 2010], and Michael Olivas’s No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Children [New York University Press, 2012]. Mendez was decided on the heels of World War II, amidst a thawing in race relations and the NAACP’s ongoing strategy to dismantle segregated schools, at a time when the courts were increasingly open to their challenges. Plyler was decided in 1982, just after the country had elected the most conservative president since the Great Depression and right when the courts would begin in earnest their rightward journey with a blitz of the conservative judicial appointments. In this sense, the two cases could be read as bookends in the modern liberal era of the judiciary. Taken together, these two books cast an important light on the persistent problem of the color-line that an expanding Latino population has posed and will continue to pose for the United States. In their own way, Strum and Olivas deal with issues of race and inclusion, immigration and citizenship, the worth of an education as the bedrock of American Democracy, federalism – and the ability of the courts to help navigate the country through those rocky, collective shoals.
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Read on here.

In Memory of Alan Rodger: A Conference on Legal History and Roman Law

We have word of a conference in memory of the legal historian Alan Rodger:
Friends and colleagues of Alan Rodger will meet in his memory at the University of Glasgow, on 7-8 September 2012, for a conference on legal history and Roman law.

Alan Rodger, Lord Rodger of Earlsferry, wrote on legal history and Roman law for more than forty years. He was a student of David Daube at the University of Oxford, and remained an active and engaged scholar even as he pursued a career as an advocate and in government, eventually serving as a Justice of the Supreme Court of the United Kingdom.
Speakers will include:
Tiziana J. Chiusi (Professor of Civil Law, Roman Law and Comparative Law, University of Saarland); Michael Crawford FBA (Emeritus Professor, History, University College London); Robin Evans-Jones (Professor of Jurisprudence, University of Aberdeen); Joshua S. Getzler (Professor of Law and Legal History, University of Oxford); Kenneth Reid CBE, FBA, FRSE (Professor of Scots Law, University of Edinburgh); John Richardson FRSE (Emeritus Professor of Classics, University of Edinburgh); Boudewijn Sirks (Regius Professor of Civil Law, University of Oxford).
Those considering attending should so indicate to rodgermemorial AT

The full announcement is here.  A list of tributes and obituaries is here.

Sunday, May 20, 2012

"Historic" Decision: NAACP Endorses Marriage Equality

The NAACP--the nation's oldest and largest civil rights organization--has endorsed marriage equality. The group issued a statement yesterday that read:
The NAACP Constitution affirmatively states our objective to ensure the “political, educational, social and economic equality” of all people. Therefore, the NAACP has opposed and will continue to oppose any national, state, local policy or legislative initiative that seeks to codify discrimination or hatred into the law or to remove the Constitutional rights of LGBT citizens. We support marriage equality consistent with equal protection under the law provided under the Fourteenth Amendment of the United States Constitution. Further, we strongly affirm the religious freedoms of all people as protected by the First Amendment.
The move binds the legacy of the black movement for civil rights to the gay rights struggle, and some view the endorsement as "historic" in significance. The L.A. Times reported:
"Directors of the National Gay and Lesbian Task Force erupted in applause at their board meeting Saturday as their phones buzzed with the news. “Today is a historic day,” Rea Carey, executive director of the task force, said a phone interview from Seattle. “This is what leadership looks like in this country.”

For more on the endorsement, see articles in the N.Y.Times and Wall St. Journal, both of which note the (positive) political implications for President Obama of the NAACP's endorsement. (The endorsement is consistent with the President's own groundbreaking position on same-sex marriage and should help shore up  support among African Americans, an important constituency, so the argument goes).

Electoral politics aside, it's important to note that Julian Bond, the former chairman of the NAACP and co-founder of the Student Nonviolent Coordinating Committee, personally embraced gay rights years ago and has since pushed black leaders inside and outside of the NAACP to do the same. For instance, in response to a 2004 query by Ebony magazine about whether gay rights should be considered a civil rights issue, Bond answered: "Of course.... 'Civil rights' are positive legal prerogatives--the right to equal treatment before the law. These are rights shared by all--and there is no one in the United States who does not--or should not--share in these rights. Gay and lesbian rights are not special rights in any way." See Crisis Magazine (2004) for more in-depth coverage of black spokespersons' views on gay rights.

In past discussions of the link between black civil rights and gay rights, Bond frequently noted that Bayard Rustin, a gay man, played an important role in the civil rights movement. An architect of the 1963 March on Washington, Rustin--a provocative intellectual--penned articles that gave the movement direction. For more on Rustin, see Lost Prophet: The Life and Times of Bayard Rustin by John D'Emilio, The Troubles I've Seen by Jervis Anderson, I Must Resist: Bayard Rustin's Life in Letters by Bayard Rustin & Michael C. Long, ed., and Brother Outsider, an award-winning documentary.

Liberalism, Divorce, Motherhood, and More: This Week in the Book Pages

This week in the New York Times: Jeff Shesol reviews, here, The Cause: The Fight for American Liberalism From Franklin Roosevelt to Barack Obama (Viking), by journalist Eric Alterman and historian Kevin Mattson. Shesol notes that the book is "less . . . about liberalism than it is . . . about liberals — stretch limousines full of them, fleet after fleet." "The net effect," Shesol continues, "is that of a Pointillist painting, though when you step back from the canvas and squint a little, the dots fail to cohere into a discernible image.

The Guardian has a review of Mrs Robinson's Disgrace: The Private Diary of a Victorian Lady (Bloomsbury), by Kate Summerscale. It is part cultural history, part painstaking reconstruction of the precedent-setting UK divorce case Robinson v. Robinson & Lane (1858). Another review, from BookForum, is here.

"Day to day, memory is what we choose to forget." So begins Timothy Snyder's Wall Street Journal review of The Jews in Poland and Russia, volume 1: 1350-1881 (Littman Library), by Antony Polonsky. It is the first in an "exemplary and formidable three-volume work of historical synthesis."

In the book pages of the Nation, Jennifer Szalai reviews, here, four books on modern motherhood, including The Conflict: How Modern Motherhood Undermines the Status of Women (Metropolitan Books), by Elisabeth Badinter.

Writing for the New Republic: The Book, Eric Posner covers Better, Stronger, Faster: The Myth of American Decline ... and the Rise of a New Economy (Free Press), by Daniel Gross. Here's a taste:
Daniel Gross celebrates the flexibility and the robustness of the American economy, arguing that it enjoys many hidden strengths, and will expand in the future, but his book . . . is undermined by a crucial ambiguity. Gross sets up as his target the “declinists” who view the economy with despair, but he does not clearly explain who the declinists are or what they believe, and in the end he provides a boosterish, one-sided account of American economic advantages that relies on anecdotes and skimps on analysis. The book is less interesting for its argument than for what it reveals about how Americans might confront the pangs of national decline.
Read on here.

Also in TNR: more high praise, this time from David Garrow, for Dale Carpenter's Flagrant Conduct (mentioned previously on the blog here).

The June 7 issue of the New York Review of Books is out. Check it out here.

Saturday, May 19, 2012

The Filibuster

"19th Century Filibuster," from U.S. Senate Art and History,

A group of Congressmen and potential beneficiaries of the DREAM Act last week filed a lawsuit challenging the constitutionality of the filibuster.   More on the lawsuit in a blog post by Common Cause President Bob Edgar. (According to a US Senate web site, “The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.”) 

The lawsuit brings to mind famous uses of the filibuster in the past.  It is commonly said that Southern senators invoked the filibuster to block civil rights legislation, including anti-lynching legislation.  The Civil Rights Act of 1964 endured a 57 day filibuster. 

The constitutional challenge is sure to invoke history on one side or the other (or both).  Perhaps our readers will comment on the leading historical treatments of the filibuster.

Weekend Roundup

  • BackStory, a podcast by the historians Ed Ayers, Peter Onuf, and Brian Balogh, has recently completed an episode called Born in the USA, which takes up (among other things) some legal issues, including birthright citizenship. Guests include Laura Wattenberg: Founder,, Peggy Bendroth: Congregational Christian Historical Society, Laurel Thatcher Ulrich: Professor of History, Harvard University, and Jessica Waters, Professor of Law, American University
  • Just in time for the History Channel miniseries, the Pike County Tourism, a non-profit in Pike County, Kentucky, reminds us that “The Hatfield McCoy Feud was more than just a shootout, a lot of battles were fought in court” and invites LHB readers to take its Hatfield McCoy Driving Tour.
  • Matthew A. Axtell, a doctoral candidate in Princeton’s history department, seeks participants on a panel or roundtable “on the environmental history of law for next year’s American Society for Environmental History (ASEH) Conference in Toronto, Ontario (April 3-6, 2013).  The goal of the session would be to present and discuss historical work that analyzes the material ecological and environmental health impacts of differing legal regimes on landscapes, airscapes, waterscapes, animal populations, and/or human bodies across time.”  If interested, send him copy of your paper proposal and your CV to  by Friday, June 1, 2012.  Hat tip (and a fuller version of Axtell’s query): H-Law
  • Duquesne University's press release on the passing of Samuel J. Astorino reports that Professor Astorino "had an extraordinary life, growing up and working in the steel mills in Carnegie; serving in the U.S. army; and serving as a special clerk to Justice Nicholas Papadakos on the Pennsylvania Supreme Court. . . .  Known for the unique historical perspective that he brought to the study of law, Astorino published numerous articles on local and national public and legal history." 
  • Check out the new Oxford Handbook of Governance, "an authoritative and accessible state-of-the-art analysis of the social science literature on governance."
  • Wondering about the state of undergraduate research on constitutional history at the University of St. Thomas (Minnesota)?  Then check out this press release.
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, May 18, 2012

A Student Prize in Supreme Court History

[We have the following announcement via H-Law.]

The Supreme Court Historical Society annually makes an award for the best student paper submitted during a calendar year.  The Hughes-Gossett Student Award consists of a cash stipend and publication in the Journal of Supreme Court History.  Papers must have been written while a student, but that may be as an undergraduate, graduate, or law student, and must deal with some aspect of Supreme Court history.  This is a broad measure, and in the past we have welcomed papers on particular justices or advocates, cases, or reactions to cases.  This is a history competition, and we do not take papers that are primarily jurisprudential or theoretical.  Papers may be sent as e-mail attachments to Clare Cushman, the managing editor of the Journal, at  Papers may be submitted at any time.

LGBT Legal History Tour of Greenwich Village

[LeGaL–the LGBT Bar Association of Greater New York–is sponsoring]

a one-of-a-kind LGBT legal history tour in celebration of June Pride. The tour, led by our own Rick Landman and joined by Professor Arthur Leonard will take us from the historic site of the Stonewall riots to neighborhood corners where gay rights were demanded to community statues reflecting our relationships and numerous other sites in historic Greenwich Village.

Along the way, we'll discuss the history of the LGBT Movement from a legal perspective and how the legal community influenced the Movement. We'll learn the answers to some lesser-known questions relevant to our history such as:

*    What legal case went up to the NJ Supreme Court that allowed "homosexuals" to congregate in "gay bars "in 1967 (2 years before the Stonewall riots)? And what did Meth have to do with it?

*    Why did so many lesbian and gay organizations start out with names that didn't have "lesbian" or "gay "in their incorporated titles?

*    How did NYC use the Administrative Code to remove Adult Use Establishments from the West Village? What is the status of those zoning laws as of today?

*    How did LeGaL members help to create many of today's LGBT groups and laws and even the Community Center?

Meeting Location: The Tour begins at Christopher Street Park (Sheridan Square) and will end by the waterfront near the pier at the end of Christopher Street.

Cost: Suggested Donation of $10 to the LeGaL Foundation

Tour may be limited to the 1st 25 registrants.

RSVP here.

McKinley Receives ACLS Fellowship

Michelle McKinley, University of Oregon School of Law, has recently been awarded an American Council of Learned Societies fellowship for July 2012-May 2013.  It will support research and writing on her book-in-progress, “Fractional Freedoms: Slavery, Legal Activism and Ecclesiastical Courts, 1589-1700,” which examines “the legal agency of slaves — particularly enslaved women — in Peruvian ecclesiastical and civil courts during the 17th century.”  The ACLS’s website explains:
How could enslaved women assert legal claims to personhood, wages, and virtue, when the law regarded them as mere property? Under what conditions did the civil law of slavery create opportunities for enslaved women to demand liberty and justice in a judicial forum? This project focuses primarily on enslaved women as legal actors within the landscape of Hispanic urban slavery: women who were socially disfavored, economically active (at times modestly prosperous), and extremely litigious. A retrospective look at their freedom suits tells us how litigants strategically exploited the rhetorical power of liberty through recourse to the law, though their lived realities were decidedly unfree and unequal.
Professor McKinley received the ASLH's Surrency Prize for an article on this topic.

Thursday, May 17, 2012

"Representing the Race" at the Hue-Man Bookstore

Kenneth Mack, Harvard Law School, will be reading from his recently-published Representing the Race: The Creation of the Civil Rights Lawyer, on Monday, May 21, at 6:00 PM, at the Hue-Man Bookstore, 2319 Frederick Douglass Blvd (8th Avenue/Central Park West/Fred Douglass, between 124th and 125th) in Manhattan.  See you there!

CFP: Law and Culture in Medieval /Early Modern Europe & the Atlantic World

Via H-Law, we have the following call for papers, from the Centro de Estudos Medievais - Oriente & Ocidente, Departamento de Filosofia e Ciências da Educação da Faculdade de Educação da Universidade de São Paulo:
The international peer reviewed journal International Studies on Law and Education (ISSN 1516-6821) published by the Universidade de São Paulo, the Universidade do Porto and the Editora Mandruvá of Brazil requests submissions of previously unpublished articles that treat any aspect of the interrelationship between law and culture in Medieval/early modern Europe and the Atlantic world. Studies with a strong comparative and or interdisciplinary focus are encouraged.

Submissions and any questions should be directed to Prof. Enric Mallorquí-Ruscalleda, coordinator of this volume. Although the language of preference is English, studies written in any romance language, as well as German, will be considered.
The deadline for submission is the 30th of November of 2012, and decisions regarding acceptance will be communicated no later than fifteen days later (along with necessary modifications, if applicable).
More information is here.

Tomlins on Critical Legal Histories

Christopher L. Tomlins has posted to SSRN a further analysis of Robert Gordon's "Critical Legal Histories," a much-cited and influential 1984 article available from the Yale Law School Digital Commons. 

Tomlins provides the following abstract of his article, What is Left of the Law and Society Paradigm after Critique"?  Revisiting Gordon's 'Critical Legal Histories':
For more than twenty-five years, Robert Gordon’s “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon’s essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon’s articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal-historical analysis of the resultant stress on the contingency and complexity of social life.
Tomlins's article will appear in Law and Social Inquiry, Vol. 37, No. 1, p. 155, Winter 2012, and is available on SSRN at this link.

Crowell v. Benson: The View from Butler's Docket Book

Pierce Butler (Library of Congress)
The survival of the docket books kept by Owen Roberts and Pierce Butler during their years on the U.S. Supreme Court is not exactly a secret.  Robert Post, for one, drew heavily upon Butler’s in “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” Minnesota Law Review 85 (2001): 1267-1383.  That said, I suspect that even very good constitutional historians overlook them because they are reposited not at the National Archives or the Library of Congress but the U. S. Supreme Court. (Permission to consult them is obtained by writing the Court’s Office of the Curator.)  Judging from the entries I examined earlier this academic year, Roberts seems only to have recorded votes in conference, but Butler went further and jotted down fragmentary notes of Chief Justice Hughes’s summary of the issues and Butler’s own impressions of how to resolve them.  Although sketchy, Butler's notes shed some new light on Crowell v. Benson (U.S. 1932), a landmark of administrative law and federal courts.  I hope other historians ask to consult the docket books for their own research.  If enough do, perhaps the Supreme Court might transfer them to a more accessible repository.

Wednesday, May 16, 2012

Mirow on Spanish Colonial Law and the Constitution of Cádiz

Matthew C. Mirow, Florida International University College of Law, has posted Pre-Constitutional Law and Constitutions: Spanish Colonial Law and the Constitution of Cádiz, which is forthcoming in volume 12 of the Washington University Global Studies Law Review.  Here is the abstract:
The Constitution of Cádiz or the Spanish Constitution of 1812 is presently undergoing world-wide and extensive study because of its bicentennial and because of its important place in the development of liberal constitutionalism in Europe and Latin America. It also played a role in the independence of many Latin American republics which will celebrate their bicentennials over the next decade.

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: (1) as general knowledge related to the Americas and their institutions; (2) as a source for providing a particular answer to a specific legal question; and (3) in the debates about how grounded the Constitution is in historical sources and laws, its historicity. Although the example is drawn from Spanish colonial law and the Constitution of Cádiz, the general methodology will likely be appealing to others working in the fields of comparative constitutional law and constitutional history.

Goluboff Receives Burkhardt Fellowship

[From the UVA press release.]
University of Virginia law and history professor Risa Goluboff's innovative work in legal history recently was recognized through two honors. On Thursday, the American Council for Learned Societies named Goluboff a Frederick Burkhardt Residential Fellow, a $75,000 award that supports recently tenured scholars in the humanities and social sciences. The next day, the Organization of American Historians announced that she would be one of their distinguished lecturers.

The Burkhardt fellowship funds an academic-year residency while the recipient works toward a major scholarly work. Goluboff's fellowship at the Library of Congress will support her as she writes her forthcoming book, "People Out of Place: The Sixties, the Supreme Court, and Vagrancy Law."

"Vagrancy law provides a way of organizing a history of the social revolutions of the 1960s," Goluboff said. "There is no legal history of the 1960s, in part because "the Sixties" is a big and diffuse thing. Thinking about the variety of ways in which vagrancy laws were used to keep people in their places — and the multiple attacks on the whole idea of everyone having a hierarchical place in American society — helps provide an organizing principle for a legal history of the Sixties."

Ball, The Right to Be Parents: LGBT Families and the Transformation of Parenthood

Thanks to Al Brophy at Faculty Lounge, I learned of Carlos Ball's new book, The Right to Be Parents: LGBT Families and the Transformation of Parenthood (NYU Press), which addresses the role of litigation in expanding LGBT parental rights.  Increasingly there are good materials for teaching transgender rights in constitutional law.  One contribution of this book is that its coverage of transgender family rights may make it easier to incorporate that area into legal history classes.  Here's the book description:
In 1975, California courts stripped a lesbian mother of her custody rights because she was living openly with another woman. Twenty years later, the Virginia Supreme Court did the same thing to another lesbian mother. In ordering that children be separated from their mothers, these courts ruled that it was not possible for a woman to be both a good parent and a lesbian.

The Right to be Parents is the first book to provide a detailed history of how LGBT parents have turned to the courts to protect and defend their relationships with their children. Carlos A. Ball chronicles the stories of LGBT parents who, in seeking to gain legal recognition of and protection for their relationships with their children, have fundamentally changed how American law defines and regulates parenthood. Each chapter contains riveting human stories of determination and perseverance as LGBT parents challenge the widely-held view that having a same-sexual orientation, or that being a transsexual, renders individuals incapable of being good parents.

To this day, some courts are still not able to look beyond sexual orientation and gender identity in order to fairly apply legal principles in cases involving LGBT parents and their children. Yet on the whole, stories are of progress and transformation: as a result of these pioneering LGBT parent litigants, the law is increasingly recognizing the wide diversity in American familial structures. The Right to be Parents explores why and how that has come to be.
And the endorsements:
"Ball trains his keen, compassionate and judicious legal mind on heart-tugging, often precedent-setting cases that sought to divest parental custody, visitation and adoption decisions of centuries of gender and sexual bias in US family jurisprudence. This beautiful, wise book documents and helps to guide this momentous legal transformation in contemporary definitions of parenthood. An invaluable, engaging and eloquent contribution to family studies, legal thought, and public knowledge." -Judith Stacey,author of Unhitched: Love, Marriage and Family Values from West Hollywood to Western China

“If the adage is true that those who do not learn from history are doomed to repeat it, then Carlos Ball’s book will be a tremendous antidote to a hard and painful history. Uninformed and bigoted assumptions about sexual orientation had devastating consequences for many families. No one who reads this important work will fail to appreciate that the gains we have made in greater protection and security for our families came at a very high price for those parents and children who paved the way."-Kate Kendell, Esq.,Executive Director, National Center for Lesbian Rights

"Unique and essential, Professor Ball’s book recounts compelling tales of lesbian and gay parents fighting in the courts for rights that most Americans take for granted. The narratives make little-known histories available even to readers with no legal training, and they also provide clear explanations of legal issues that have been at stake. A wonderful contribution, this volume should be of special interest to lesbian and gay parents and their children as well as to all those who care about them."-Charlotte J. Patterson,University of Virginia