Thursday, February 28, 2013

CFP for MLA: Desire for Narrative in Law and Literature

[We have the following call for a session at MLA.]

CFP: Desire for Narrative in Law and Literature: A Special Session at MLA 2014

Hayden White has suggested “proper histories” narrate a changing relationship between a subject and a legal regime. As White states, “Where there is no rule of law, there can be neither a subject nor the kind of event which lends itself to narrative representation.” For White, law is essential to narrative, historical or otherwise. The converse, however, is also true: narrative is essential to law.

We seek participants for a roundtable discussion and invite 250 word proposals from scholars who study law and literature to explore topics such as the aesthetics of both modes of cultural production, the representation or influence of legal narratives in literature, and the influence of literary narrative strategies on legal decision making. Questions to be considered and addressed in brief, five-minute position statements might include, but are not limited to:

• What constitutes a legal narrative and who are its authors?
• What are the formal and aesthetic characteristics of legal narratives, and how do they compare with the formal and aesthetic characteristics of literary narrative?
• How have legal narratives evolved in response to cultural, political, or technological shifts, and with what consequences?
• How is the teaching of law or literature, or both, affected by calling into question the distinctions we usually make between legal and literary texts?
• What are the poetics of justice implicit in legal and literary narratives?
• Of what use are literary methodologies in the study of law, and vice versa?

Please submit proposals and a short bio by 5:00 pm on March 15, 2013. Contact info here.

What I'm Looking Forward To: A Companion to American Legal History

On April 15, A Companion to American Legal History, edited by Sally Hadden and Al Brophy, will be published.  The volume, part of the remarkably useful Blackwell Companions to American History series, includes twenty-eight essays, organized into four sections: (1) Chronological Overviews; (2) Individuals and Groups; (3) Subject Areas; and (4) Legal Thought.  Sally and Al lined up a terrific group of contributors to tackle the wide-ranging topics included in the volume.  (Among the contributors are the Legal History Blog’s own Karen Tani, who co-authored, with Felicia Kornbluh, an essay on “Siting the Legal History of Poverty: Below, Above, and Amidst,” and Clara Altman, who wrote an essay on "The International Context: An Imperial Perspective on American Legal History.")

This is such an impressively ambitious project and is sure to provide an indispensible resource for legal historians.   I had a chance to read a number of the essays in draft, and they were all excellent: filled with information and citations yet also readable and engaging.  They offer an easy way to get up to date on various areas of legal history.  I am really looking forward to having the final product on my desk.

You can get a preview of the book now on Amazon.  The preview includes the table of contents and excerpts from many of the entries.  You can also read Sally and Al’s lovely brief introduction to the volume.  The publisher's site also has some preview material, including the full text of Elizabeth Dale's opening essay, "Reconsidering the Seventeenth Century: Legal History in the Americas."

As to my own contribution to the Companion, I was invited to write an essay on the legal history of the period between 1920 and 1970.  In 8000 words.  Including references.  It was by far the hardest 8000 words I ever produced.  My job was made somewhat easier by the fact that many issues were already well covered in the topical essays.  But still, this was an intimidating—and often deeply frustrating—assignment.  I felt like I spent as much time struggling over what not to talk about as I did over what I actually did cover.  In the end, I just had to make the hard choices, explain why I think they make sense, and hope the essay coheres in an way that is both useful and insightful. 

Brilliant, Kang, Kornbluh and more in the latest issue of California Legal History

The 2012 issue of California Legal History is out, and it is full of good stuff. Of particular interest: the papers from last fall's ASLH panel "The Golden Laboratory: Legal Innovation in Twentieth-Century California":
Mark Brilliant, "From Integrating Students to Redistributing Dollars: The Eclipse of
School Desegregation by School Finance Equalization in 1970s California."
S. Deborah Kang, "Implementation: How the Borderlands Redefined Federal Immigration Law and Policy in California, Arizona, and Texas, 1917–1924."

Felicia Kornbluh, "Turning Back the Clock: California Constitutionalists, Hearthstone Originalism, and BROWN V. BOARD."
The full issue appears to be available here, at the website of the California Supreme Court Historical Society.

Vaneesan on the Evolving Populisms of Antitrust

Sandeep Vaheesan, American Antitrust Institute, has posted The Evolving Populisms of Antitrust.  Here is the abstract:    
Scholars often divide the eras of U.S. antitrust law into those of “populism” and “economics” and posit a fundamental conflict between the two concepts. Generally, the decisions of the current antitrust era are described as economic, and the mid-twentieth century period is labeled as populist. A review of Supreme Court decisions on antitrust reveals a more complex picture. From the enactment of the Sherman Act in 1890, the Court’s antitrust rulings have spoken of populist goals and aimed to advance these objectives through economically informed rules. Populism versus economics is thus a false dichotomy.

The populism and economics of antitrust jurisprudence have changed over time. In the decades following the passage of the Sherman Act, the Supreme Court often spoke of protecting small producers and displayed only secondary concern for consumers. The Court in the early era proscribed certain horizontal and vertical restraints but viewed many forms of dominant firm and horizontal conduct more favorably. Starting in the late 1930s, the Court adopted consumer protection as a principal aim of the antitrust laws but continued to champion the cause of small businesses as well. Its economics took a marked shift away from faith in the market and treated many forms of horizontal and vertical conduct as inherently problematic. The Court has since the 1970s held that the antitrust laws exist only to protect consumers and also adopted the view that most forms of business conduct can benefit consumers.

Although some scholars argue that antitrust law should seek to maximize “economic efficiency” and ignore distributional consequences, antitrust enforcers and the courts should continue to apply the antitrust laws as a consumer protection regime. First and foremost, Congress, as revealed in the legislative histories of the antitrust laws, showed an interest in preventing large firms from using their market power to raise prices and transfer wealth from consumers. Second, consumer-oriented antitrust enforcement can be one important policy tool to contain growing economic inequality by preventing wealth transfers from consumers to producers. Third, given how consumers often cannot organize politically on account of their vast numbers, antitrust enforcers can serve as trustees for this group and protect its interests from better-organized producer groups. Last, just as antitrust can help consumers, consumers can provide needed political support for antitrust enforcement.

Wednesday, February 27, 2013

St. Louis Freedom Suits Legal Encoding Project Now Complete

Washington University in St. Louis has announced the conclusion of the St. Louis Freedom Suits Legal Encoding Project:
Molly, John, Nancy, Winny, Dred, Harriet — these former slaves all sued for their freedom in the St. Louis Circuit Court long before the Emancipation Proclamation set them free. Now the case documents that record their stories and hundreds of others are just a browser click away.

The ability to access, search and interact with these unique resources marks the conclusion of the St. Louis Freedom Suits Legal Encoding Project, a major initiative for which the Digital Library Services (DLS) unit of Washington University Libraries secured funding from the Institute of Museum and Library Services (IMLS), with the Missouri History Museum as an institutional partner.
The cases of African Americans suing for their freedom in the first half of the 19th century — some successfully and others not — are captured in the original legal documents and record books of the early St. Louis Circuit Court. But those paper files remained largely unknown and unexamined until about 20 years ago, when a historian began researching and writing about the case records, comprised of many diverse legal documents covered in decades’ worth of coal dust.
For more of this article (by Evie Hemphill, Washington University Libraries), follow the link.

Donlan on Spanish West Florida and Orleans, 1803-1810

Seán Patrick Donlan, University of Limerick, has posted Entangled Up in Red, White, and Blue: Spanish West Florida and the American Territory of Orleans, 1803-1810, which is forthcoming in Entanglements in Legal History: Conceptual Approaches to Legal History, ed. Thomas Duve, Global Perspective on Legal History 1 (2013), Max Planck Institute for European Legal History Open Access Publication.  Here is the abstract:    
This article is a preliminary case study of legal and normative entanglement in Spanish West Florida — which stretched across the Gulf Coast of present-day Louisiana, Mississippi, Alabama, and Florida — between 1803-1810. Between the time of the Louisiana Purchase (1803) and the annexation of Westernmost part of West Florida by the United States (1810), the laws and norms of the Territory criss-crossed in various ways those of Spain and the United States. Indeed, the territory was, in turn, French, British, and Spanish before being annexed, in part, by the Americans. For the period under study here, and decades before, its settlers were largely Anglophone, while its laws were a variant of the Spanish colonial ius commune. West Florida had an especially close relationship with the area that would become the new American Territory of Orleans (1805), especially the city of New Orleans. Carved out of the vast Louisiana Territory purchased from France, the Territory of Orleans had its own complex history. Its population was still largely Francophone. In its first decade, its laws were already a gumbo of continental and Anglo-American ingredients. Together, the two territories sat at the precipice of the modern nation-state, of nationalism and popular sovereignty, of legal positivism and legal formalism. In both territories, the diffusion — direct and indirect, formal and informal, ongoing and sporadic — of the various laws and norms of natives and newcomers created intricate legal and normative hybrids.

Tuesday, February 26, 2013

Mehrotra on How the Income Tax Created the Modern Fiscal State

Over at, Ajay K. Mehrotra, Maurer School of Law at Indiana University, Bloomington, has posted How the Income Tax Created the Modern Fiscal State.  Here’s a taste:
As we commemorate the centennial of the 16th Amendment and look ahead to looming budgetary battles, we ought to keep in mind that the foundations of our modern fiscal state are rooted not in efforts to radically redistribute wealth, but in attempts to balance fiscal duties and civic responsibilities. The progressives who bequeathed this state to us certainly knew the difference.

McClain on Heart of Atlanta and the Thirteenth Amendment

Linda C. McClain, Boston University School of Law, has posted Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlanta Motel, Inc. v. United States, which appeared in the University of Maryland Law Review 71 (2011): 83.  Here is the abstract:
In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress's power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the "reasonable and responsible acceptance" of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that "neither slavery and involuntary servitude . . . shall exist within the United States." The owner of the Heart of Atlanta Motel unsuccessfully invoked this amendment to challenge Title II, drawing on a particular conception of private property. The Court rejected this argument briskly. Looking at this case in isolation would leave a modern reader ignorant of the role played by the Thirteenth Amendment in the debate over the enactment of Title II. This article revisits the Heart of Atlanta Motel case, drawing on contemporaneous press coverage and legal commentary about it and related legal challenges. It then shows how, when Congress considered Title II, proponents and opponents both appealed to the Thirteenth Amendment. The Administration and Congressional supporters emphasized the Commerce power as the constitutional hook for Title II, mindful of the Court's invalidation, in the Civil Rights Cases (1883), of the Reconstruction-era public accommodations law of 1875 and of the fate of Thirteenth and Fourteenth Amendment arguments there. However, they appealed to the Thirteenth Amendment, in conjunction with the Fourteenth Amendment, and to the unfinished business of Reconstruction. The Thirteenth Amendment, they argued, sought to abolish all the incidents of slavery and to secure full citizenship; racial discrimination in public accommodations was a continuing badge of servitude. By contrast, opponents of Title II (e.g., Senator Strom Thurmond) argued that the Thirteenth Amendment forbade Title II; they equated "involuntary servitude" with "rendering involuntary service" and with violating private property rights. This claim returns in the Heart of Atlanta challenge and the rhetoric of fellow Atlanta restaurant owner (and, later, governor) Lester Maddox. The article concludes by examining the legacy of Heart of Atlanta Motel for later antidiscrimination laws and their critics, focusing on analogies between race discrimination and other forms of discrimination, such as sex and sexual orientation.

Gay Marriage and the Supreme Court: Using the Past to Predict the Future

In my last post I discussed Michael Klarman’s recently published book, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford, 2012).  I described Klarman’s history of the gay rights movement and his consideration of what this history may tell us about the phenomenon of political backlash to court decisions.  In this post I turn to the last chapter of From the Closet to the Altar, in which Klarman offers some predictions about what we might expect with regard to gay marriage debate, including the possibility of the Supreme Court attempting to resolve the issue.

Klarman’s one big prediction is hard to argue with: “If any social change seems inevitable, it is the growing acceptance of gay equality generally and gay marriage specifically.”  This is a trend driven both by demographics (support for gay rights is strongest among youth) and by cultural changes.  The trend is also driven by the self-reinforcing nature of gay rights advances.  As Klarman observes, “the greatest increases in support for gay marriage in the last fifteen years have come in the states that already were the most supportive of gay rights.”  Societal acceptance of homosexuality, once it begins to take hold, has a tendency to gain momentum.

What role is the Supreme Court likely to play in this story?  Klarman’s book went to press before the Supreme Court agreed to hear the cases involving the federal Defense of Marriage Act and California’s Proposition 8, the state referendum banning same sex-marriage that both a federal district court and the Ninth Circuit have ruled unconstitutional.  (The justices will hear oral arguments next month.)  But Klarman does offer some “informed speculation” on how the Court might deal with the issue. 

Casto on Jackson and the Destroyer Deal

William R. Casto, Texas Tech Law, has posted Advising Presidents: Robert H. Jackson and the Problem of Dirty Hands, which is forthcoming in the Georgetown Journal of Legal Ethics 26 (2013). Here is the abstract:
Robert H. Jackson (Credit: LC)
Not so long ago, legal advice given to President George W. Bush regarding torture sparked considerable controversy, and discussions were frequently distorted by rancorous partisanship. This essay uses advice given to President Franklin Roosevelt by Attorney General, later Justice, Robert Jackson as a laboratory for exploring the ethical dimensions of the advisory relationship between government attorneys and the President. In particular, this essay examines the President’s unilateral decision in 1940 to transfer fifty destroyers to Great Britain. That Destroyers Deal is distant in time and now relatively uncontroversial. Today, everyone agrees with the substantive policy of helping the British against Nazi Germany, and we have all but forgotten the partisan divide between Roosevelt and the Republicans. The parallax between torture today and helping the British in 1940 enables us to factor partisanship and substantive policy more or less out of our judgment. To facilitate the Destroyers Deal, Jackson wrote a legal opinion for the President that Jackson knew was contrary to law. I have concluded that Jackson did the right thing, and this essay explains why. In particular, I draw upon but modify Michael Walzer’s well-known exploration of the problem of dirty hands. The latter part of the essay applies the lessons gleaned from Jackson’s experience to the advice regarding torture that President Bush received from his attorneys. On balance, I conclude that President Bush’s lawyers did the wrong thing, but I explain why others might disagree.

Monday, February 25, 2013

An Important Source on the Legal History of the U.S. West

[At our request, Professor Nystrom prepared the following post on the research tool he has created.  We are also grateful to David Tanenhaus, Nevada-Las Vegas History & Law, for bringing Professor Nystrom's project to our attention.]

An extensive set of records and briefs from the 9th Circuit Court of Appeals has been made easier for legal historians and researchers to find and use.  The 9th Circuit Historic Records Index System (9CHRIS) was created by Eric Nystrom, a historian at the Rochester Institute of Technology, to help identify individual documents within bound volumes originally collected by the University of California Hastings College of the Law and digitized in bulk by the Internet Archive in 2010.

9CHRIS is free and open for anyone to use.  Based on a wiki platform, users can search the title pages and the computer-generated keywords for each document.  Each page contains a direct link to the complete document online at the Internet Archive.  The wiki will also get better over time with community support -- users are encouraged to help clean up the OCR-generated text and leave notes for future researchers.

The system contains more than 38,000 individual documents, gathered in more than 3,300 bound volumes, spanning from 1891 to the late 1960s.  Though there are occasional gaps in the collection, the briefs, transcripts, exhibits, and other court documents available through 9CHRIS illuminate the wide range of topics heard by the court.

Typically western issues such as natural resource use and extraction (mining, ranching, timber, oil, and water), railroads, and maritime shipping and trade are common.  Questions of race and ethnicity (especially Chinese exclusion), gender, and family appear frequently in the records.  Lawsuits covering inventions, patents, and real estate also appear regularly.  Though these records exist in a few libraries and archives, they have not been readily accessible to historians and scholars until now.

The system is available for use here.  Questions can be directed to Eric Nystrom,

Lerner on Elightenment Economics and the Founding

Renee Lettow Lerner, George Washington University Law School, has posted Enlightenment Economics and the Framing of the U.S. Constitution, which appeared in the Harvard Journal of Law and Public Policy 35 (2012).  Here is the abstract:
Adam Smith (Credit: LC)
Some scholars have argued that the Framers of the U.S. Constitution did not have a common set of views on economics, or that the Constitution, except perhaps in isolated clauses, does not reflect any specific economic views. The principal Framers did, in fact, share a basic set of economic views, though of course they did not agree on all economic questions. Their shared economic views were common to enlightenment thinkers: promoting free trade, curtailing rent-seeking (the transfer of wealth from producers to non-producers through political power), and, in most instances, eliminating monopolies.

These economic views permeate the Constitution and are not manifest only in odd clauses. The Framers designed many features of the Constitution to further these economic ends. I discuss four of them here: (1) the Commerce Clause; (2) the interstate and alien diversity clauses; (3) the elaborate procedures of bicameralism and presentment for enacting bills (and the provision allowing the Senate to amend financial bills); and (4) the enumerated constitutional limitations on legislative power.

Eyer on "Constitutional Colorblindness and the Family"

Katie R. Eyer (Rutgers School of Law - Camden) has posted "Constitutional Colorblindness and the Family." It is forthcoming in the University of Pennsylvania Law Review. Here's the abstract:
Katie R. Eyer (credit)
Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including most notably affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents.

This paper, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last 40 years — had numerous opportunities to address the growing divide. Nevertheless the Court (and particularly its most strident affirmative action detractors) have been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided taking up cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a normative perception that remaining instantiations of race in family law are, at their core, benign.

This history has profound implications for the Court’s broader race law jurisprudence. Supreme Court doctrine has — on its face — rejected the possibility of a role for normative judgments about the “benign” or “invidious” nature of particular race-based classifications in its Equal Protection doctrine. But the history of the Court’s approach to family law suggests strongly that the Court itself does in fact weigh such factors sub rosa in its approach to taking up and adjudicating race law claims. This article suggests that there are serious process, legitimacy and substantive concerns raised by such a divergence, and discusses alternatives for bringing the Court’s doctrine into greater alignment with its practice.
The full text is available here, at SSRN.

Sunday, February 24, 2013

Gay Marriage, the Courts, and the Lessons of History

The cause of gay marriage has made remarkable breakthroughs recently.  There were the November victories at the polls: Maryland and Washington voters ratified legislation allowing same-sex marriage, Maine approved a ballot initiative allowing same-sex marriage, and Minnesota became the first state to reject a ballot initiative to constitutionally prohibit same-sex marriage.  There was President Obama’s embrace of the cause in his inaugural address, where, with his memorable reference to “Seneca Falls, and Selma, and Stonewall,” he framed gay rights as the necessary next step of the struggle for equality.  And now we are looking at a Supreme Court poised to consider the issue in a pair of cases scheduled for argument in March.

Of course these historic developments are still unfolding, and they are sure to occupy historians for generations to come.  While we wait to see how all this will play out and look forward to the historical assessments still to be written, what insights might legal historians have to offer about the struggle for gay rights thus far?  How has this struggle fit into existing models of law, the courts, and social change, which have generally relied upon the struggles for racial and gender equality as their touchstones?  Fortunately, Michael Klarman, one of the leading legal historians of our day, has written a fantastic new book that gives us much information and many provocative insights on the battle for marriage equality, the courts, and possible lessons of history.

The contributions of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-SexMarriage (Oxford, 2012), can be broken down (with some simplification) into three categories: history, theory, and prediction.  In this post I will explore the first two; in my next post I will discuss Klarman’s thoughts about how the Supreme Court will likely deal with gay marriage.

The Global Mississippi Valley, Edison, An "Unfinished Empire": This Week in the Book Pages

This week the Wall Street Journal has a review of Walter Johnson's River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Harvard).  Mark M. Smith writes, "Observers today speak breathlessly about the global economy and the flatness of the world's financial system as if those were recent trends.  Such observations are at least a couple of a centuries too late."  Johnson shows that in the decades before the Civil War the Mississippi Valley emerged as the "credit-importing, cotton-exporting leading edge of the global economy of the nineteenth century."  Read the full review here.

Also in the WSJ this week, David Price reviews Ernest Freeberg's The Age of Edison: Electric Light and the Invention of Modern America (Penguin).  According to Price, Freeberg's "broad research adds up to a vivid social history with parallels for todays' technology innovators and for those who wish to increase their number."  The Age of Edison is also reviewed in the LA Times this week, (here).

In the Washington Post, you'll find a review of Al Gore's The Future: Six Drivers of Global Change (Random House), and a review of Kishore Mahbubani's The Great Convergence: Asia, The West, and the Logic of One World (PublicAffairs).

Over at the New York Times Paul Clemens reviews Charlie LeDuff's Detroit: An American Autopsy (Penguin).  And you'll find a review of John Darwin's Unfinished Empire: The Global Expansion of Britain (Bloomsbury), a review of Ty Burr's Gods Like Us: On Movie Stardom and Modern Fame (Pantheon), and a review of Mohsin Hamid's How to Get Filthy Rich in Rising Asia (Riverhead).

Saturday, February 23, 2013

Kroncke on Pound in China

Pound in China, 1937 (Credit: HLS)
Because here at Legal History Blog we aim to be your go-to site for all things Poundian, we are please to note the publication of Jedidiah J. Kroncke’s "Roscoe Pound in China: A Lost Precedent for the Liabilities of American Legal Exceptionalism,” Brooklyn Journal of International Law 38 (2012): 77-143.  The article is available along with the rest of the issue here.

Weekend Roundup

  • Following on the heels of his essay in the latest issue of the Law & History Review, Al Brophy has posted some additional thoughts on "applied legal history." Follow the link.
  • Brian Harris, QC, has published Tales from the Courtroom.  “Told by a retired barrister, the tales in this book illustrate the role of the law in resisting oppression, whether from robber barons or modern governments. Selected for their intrinsic interest, the tales highlight lessons concerning the nature of justice and the diversity–sometimes the unknowability– of human conduct.”
  • The Sacramento Bee's reprinting of Stanford Law's press release on the recent hiring of Bernadette Meyler is here.  It reads in part: "'Bernie's research spans almost the entire range of the humanities, examining intersections between law and history, literature, drama, philosophy, and political thought. At the same time, she is a talented lawyer, who is deeply engaged with the complexities of modern-day constitutional law doctrine and policy,' said Stanford Law School Dean Elizabeth Magill. 'We are all thrilled to welcome her to the faculty.'"

    Read more here:
The Weekend Roundup is a weekly feature compiled by all the Legal History Bloggers.

Friday, February 22, 2013

The Honorable Louis F. Oberdorfer (1919-2013)

According to a press release from the U.S. District Court for the District of Columbia, a great American lawyer and judge, Louis F. Oberdorfer, died last night, on his 94th birthday.  We'll be on the lookout for obituaries.  In the interim, here is an interview.

Update: The Washington Post's obituary is here.

Sawers on American Trespass Law in 1791

Brian Sawers, a VAP at Maryland Law, has posted Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's, which appears in Michigan Law Review First Impressions, 111(February 2013): 21.  Here is the abstract:
Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.

In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.
 Hat tip: PropertyProf Blog

Seeing War; Representing War

Next Thursday, Washingtonians have an unusual opportunity to hear a great scholar. As part of the Smithsonian Museum of American Art’s “After Five” series and in conjunction with its exhibition “The Civil War in American Art,” Drew Gilpin Faust, “Harvard University’s president and eminent Civil War historian,” will discuss “some of the forms in which the American Civil War was perceived by and represented to the American people, and the ways in which the nation dealt with the unprecedented carnage the War wrought.”  Would-be attendees are to pick up free tickets beginning at 6:30 p.m. in the museum’s Kogod Courtyard.  The lecture itself will be in the Museum’s McEvoy Auditorium, from 7 to 8:30.

Weiner's "Rule of the Clan"

Next month, Farrar, Straus and Giroux will publish Mark S. Weiner’s The Rule of the Clan: What an Ancient Form of Social Organization Reveals About the Future of Individual Freedom.  FS&G explains:
A lively, wide-ranging meditation on human development that offers surprising lessons for the future of modern individualism, The Rule of the Clan examines the constitutional principles and cultural institutions of kin-based societies, from medieval Iceland to modern Pakistan
     Mark S. Weiner, an expert in constitutional law and legal history, shows us that true individual freedom depends on the existence of a robust state dedicated to the public interest. In the absence of a healthy state, he explains, humans naturally tend to create legal structures centered not on individuals but rather on extended family groups. The modern liberal state makes individualism possible by keeping this powerful drive in check—and we ignore the continuing threat to liberal values and institutions at our peril. At the same time, for modern individualism to survive, liberals must also acknowledge the profound social and psychological benefits the rule of the clan provides and recognize the loss humanity sustains in its transition to modernity.
     Masterfully argued and filled with rich historical detail, Weiner’s investigation speaks both to modern liberal societies and to developing nations riven by “clannism,” including Muslim societies in the wake of the Arab Spring.
Chapter One commences:
       Imagine that one fine morning you are strolling down the sidewalk on your way to work. Suddenly, a young jogger wearing headphones turns the corner, running swiftly, oblivious to the world around him. He crashes into you and as you hit the ground you feel a sharp pain in your arm, which quickly begins to swell. It’s broken. Soon after visiting your doctor, you contact your lawyer. He begins a civil suit against the jogger so that you can be compensated for your injury.  More.

Refiguring the Seventies

[We have the following announcement.]

Refiguring the 1970s: New Narratives in U.S. and International History
University of Chicago Graduate Student Conference

April 26–27, 2013

This conference capitalizes on the changing historiographic moment to offer a forum for graduate students from throughout the country (and abroad) to share the more innovative work on the 1970s.  Rather than view U.S. and international history as two isolated fields, this conference will explore interrelated and overlapping themes.  The 1970s saw the rise of formal equality in equal rights movements for women, gays, people of color, the disabled, and even animals; the decade brought both the end of formal empire throughout the globe and the rise of human rights as a transnational politics and ideology.  At the same time, market values and individualism worked to supplant more collective visions of society--what was once "public" gradually became the proper purview of the "private"--engendering the advent of neoliberal free-market economics and the partial erosion of the welfare state.  How do we explain the tension at the heart of these seemingly contradictory trends?  And how might a conference that explores the intersection of U.S. and international history shed light on these developments?

Four guest scholars who have done critical recent work on the 1970s will participate in the conference: Daniel Rodgers (Princeton, author of The Age of Fracture); Tim Borstelmann (University of Nebraska-Lincoln, author of The 1970s: A New Global History from Civil Rights to Economic Inequality); Matt Lassiter (University of Michigan-Ann Arbor, author of The Silent Majority: Suburban Politics in the Sunbelt South) and Mary Dudziak (Emory University, author of War Time). 

The conference will pair each presenter with a faculty commentator drawn from our guest scholars and history department faculty at the University of Chicago, Northwestern University, the University of Illinois-Chicago, and the London School of Economics. 

If you're interested in registering for the conference, please fill out this brief registration form by Friday, April 12. 

Thursday, February 21, 2013

Univ. of Michigan Legal History Workshop Schedule, Winter 2013

The University of Michigan Legal History Workshop, run by Martha S. Jones and William J. Novak, has distributed its Winter 2013 schedule:
Leigh Ann Wheeler (credit)
February 5.  Al Brophy. University of North Carolina Law School.  “University, Court, and Slave: Proslavery Thought and Jurisprudence in the Old South.”

February 19.  Leigh Ann Wheeler. Binghamton University.  “'Are You Free Read, See, and Hear?': Creating Consumer Rights Out of the First Amendment, 1940s-1060s.”

February 26.  Felice Batlan. Chicago-Kent Law School.  “Gendering Legal Aid: Lawyers, Social Workers, and the Poor, 1863-1960.”

March 19. Karen Tani. UC Berkley Law School.  “Administering Citizenship: The “Indian Problem” in the Age of the Federal Grant.”

Paul Brand (credit)
March 26.  Paul Brand. All Souls College, Oxford.  “Cui in vita sua contradicere non potuuit: Husbands, Wives and Power within the Family in Thirteenth Century England.”

April 2.  Christine Desan. Harvard Law School.  “Making Modern Money: Producing the Private as a Matter of Public Design.”

April 9.  Steven Pincus. Yale University Department of History.  “The Interventionist State: Wars and State Formation in Britain and its Empire.”
April 16.  Elizabeth Hinton. University of Michigan Department of Afroamerican and African Studies and Society of Fellows.  "Urban Policy as Crime Policy: The End of the Law Enforcement Assistance Administration and the Rise of the Modern Carceral Complex."
The Michigan Law Legal History Workshop meets Tuesday afternoons, 4-6 pm, at the University of Michigan Law School, 0220 South Hall, Ann Arbor, Michigan. The workshop is open to faculty, students, and scholars. Papers are circulated in advance and are available from Dara Faris (

Public and Private: An Institute for Constitutional History Summer Seminar

[We have the following announcement from our friends at the Institute for Constitutional History.]

The Institute for Constitutional History is pleased to announce a residential summer research seminar for advanced graduate students and junior faculty, which will be co-sponsored by the Stanford Constitutional Law Center. This year's seminar is entitled “Public and Private.” [The instructors are Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty and the Director of Princeton University's Program in American Studies, and Larry Kramer, who became President of The William and Flora Hewlett Foundation in September 2012, and served from 2004 to 2012 as Richard E. Lang Professor of Law and Dean of Stanford Law School.]


The notion that private freedoms are constituted and structured through legal rules, and especially constitutional decisions, is conventional wisdom.  But how have the boundaries between public and private been negotiated in constitutional controversies?  How have understandings of private selves and private institutions and private rights changed as they confronted or engaged with the demands of constitutional law?  We are interested in studies across American history and across the full range of potential intersection: "new" and "old" property, public lands and private resources, charters and franchises and corporations, regulation of wealth and health and sex and family, regulation versus outsourcing, public schools versus charter schools, taxes versus regulation, as well as the full range of civil liberties articulated across American constitutional history.  We are also interested in hearing about work that attempts to articulate what it means to describe an American constitutional order as distinctively (or indistinctly) capitalistic.


The seminar will meet at Stanford Law School, from July 7-13, 2013. The Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at the Munger Graduate Residence on the Stanford campus, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.


Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted until April 15, 2013, and only by email at Successful applicants will be notified soon thereafter.

For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

Felker-Kantor on "Struggles for Equal Employment Opportunity in Multiracial Los Angeles, 1964-1982"

The latest issue of the Pacific Historical Review includes an article that may be of interest: Max Felker-Kantor, "'A Pledge Is Not Self-Enforcing': Struggles for Equal Employment Opportunity in Multiracial Los Angeles, 1964–1982."Here's the abstract:
This article explores African American and Mexican American struggles for equal employment in Los Angeles after 1965. It argues that activists and workers used the mechanisms set up by Title VII of the 1964 Civil Rights Act to attack the barriers that restricted blacks and Mexican Americans to poor job prospects. It shows that implementation of fair employment law was part of a dialectic between policymakers and regulatory officials, on one hand, and grass-roots individuals and civil rights organizations, on the other. The bureaucratic mechanisms created by Title VII shaped who would benefit from the implementation of the law. Moreover, blacks and Mexican Americans mixed ethnic power and civil rights frameworks to make the bureaucratic system more capacious and race-conscious, which challenged the intentions of the original legislation. 
Subscribers may access the full article here. (Hat tip: H-Law)

Wednesday, February 20, 2013

Lerner on Thomas Nast's Legal Cartoons

Renee Lettow Lerner, George Washington University Law School, has posted Thomas Nast's Crusading Legal Cartoons, which appeared in 2011 Green Bag Almanac 59-78.  Here is the abstract:
Thomas Nast (credit)
The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City.

One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal remedies against the Ring. He was especially incensed that prominent lawyers such as David Dudley Field not only were willing to represent members of the Ring, but could cleverly exploit legal technicalities of their own making to win advantage. Nast excoriated the corruption and bribery of the bench by the Ring, and also, more generally, the adversarial system as it was developing in America

New Release: Sadeghi, "The Logic of Law Making in Islam"

The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition, by Behnam Sadeghi (Stanford University), is out this month from Cambridge University Press. Here's an overview of the book, from the publisher's website:
This pioneering study examines the process of reasoning in Islamic law. Some of the key questions addressed here include whether sacred law operates differently from secular law, why laws change or stay the same, and how different cultural and historical settings impact the development of legal rulings. In order to explore these questions, the author examines the decisions of thirty jurists from the largest legal tradition in Islam: the Hanafi school of law. He traces their rulings on the question of women and communal prayer across a very broad period of time – from the eighth to the eighteenth century – to demonstrate how jurists interpreted the law and reconciled their decisions with the scripture and the sayings of the Prophet. The result is a fascinating overview of how Islamic law has evolved and the thinking behind individual rulings.
The TOC is available here.

Tuesday, February 19, 2013

John Montgomery Ward: The Lawyer Who Took on Baseball

Chicago-Kent College of Law is currently celebrating its 125th anniversary.  As part of the celebration, the school has published Then & Now: Stories of Law and Progress, a collection of essays by Chicago-Kent faculty members exploring what was happening in law and society around the time of the school's founding.  For my contribution, I explored a fascinating episode in late-nineteenth-century baseball history, which featured a famous ballplayer who also happened to be a lawyer.

As 1888 drew to a close, John Montgomery Ward stood atop the world of professional baseball.  The star shortstop had just led the New York Giants to the National League pennant, followed by a triumph over the St. Louis Browns of the rival American Association in what even then went by the inflated title of baseball’s “World Series.”  A dominating pitcher early in his career (he threw the second perfect game in major league history), an arm injury forced Ward to recreate himself as an infielder, where he became one of the best fielders and hitters of his era.  He was lauded in the press as a ballplayer with “few equals and no superiors,” and “by long odds the most popular player in the profession.”  These accomplishments would eventually earn Ward a place in the Baseball Hall of Fame.

Ward’s skills on the ball field were only a part of what made him such a remarkable figure.  Contemporaries and historians alike have struggled to describe him.  One adjective-happy biographer took the saturation approach: he was a “jug-eared, willowy, peach-fuzzed, overreaching punk” as well as “honorable, smart, and tenacious.”  More admired than liked seems to have been the consensus view of Ward contemporaries.  In a profession not known for intellectualism, he stood out.  Although Ward left school at the age of thirteen in order to pursue his baseball career, he eventually earned, in his spare time, degrees in political science and law from Columbia.  He was said to speak five languages.  A regular contributor to newspapers and periodicals, in 1888 he published Baseball: How to Become a Player, which he described as a “handbook of the game, a picture of the play as seen by a player.” 

Ward was also a pioneering labor leader. In 1885 he established America’s first sports union, the Brotherhood of Professional Base Ball Players.  Initially designed to help sick, injured, or hard-up ballplayers and promote professional standards, the Brotherhood quickly evolved into something approaching a craft union for ballplayers.  Ward had forward-looking attitudes on race as well.  At a time when the color line was hardening in American society, and organized baseball had become a whites-only affair, Ward urged the Giants to sign an African American pitcher.

Social Security: A Right or a Privilege

Over on HNN, Eric Laursen, "an independent journalist and longtime anarchist activist, writer, and organizer," has published an appreciative write-up of Legal History Blogger Karen Tani's recent article in the Yale Law Journal, Welfare and Rights Before the Movement: Rights as a Language of the State. Lausen's post commences:
How did it come about that people have a “right” to certain benefits from the state -- or “entitlement,” in the loaded language of our day? A fascinating new paper by legal scholar Karen N. Tani argues that the idea of “welfare rights” first became commonplace not amongst activists in the 1960s, but with a group of mid-level Roosevelt administration officials who in the late 1930s were trying to get an ambitious new state-federal assortment of anti-poverty programs off the ground.

Mayeri reviews Self, "All in the Family"

JOTWELL's legal history section has just posted some new material: Serena Mayeri (University of Pennsylvania) reviews Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (Farrar, Straus and Giroux, 2012). Here's part of the first paragraph:
After reading Robert Self’s ambitious new book, it is almost impossible to imagine a satisfying history of the last half-century of American politics that does not place gender, sexuality, and the family at the center of analysis. Self’s story begins at the dawn of the Kennedy Administration and ends with John Kerry’s 2004 presidential defeat but focuses primarily on the period between the mid-1960s and the mid-1980s, when radicals, liberals, and conservatives contested and transformed the meaning of family. The central trope of All in the Family is a shift in the reigning paradigm of American politics from “breadwinner liberalism” to “breadwinner conservatism.”
Read on here.

Marzen on the Kansas-Nebraska Act

Chad G. Marzen, College of Business, Florida State University, has posted Law, Popular Legal Culture, and the Case of Kansas, 1854-1856.  Here is the abstract:
Image credit
In the wake of the movie Lincoln and the 150th anniversary of events such as the Emancipation Proclamation and the Battle of Gettysburg, more attention and discussion in 2013 is likely to be directed to the causes, effects, and legacy of the Civil War, in law and social impact. This article contends that there is one historical time and moment which should not be overlooked – the Kansas-Nebraska Act of 1854 and period of time with events relating to Kansas from approximately 1854-1856 which preceded the onset of the Civil War.

This Article applies Professor Friedman’s framework of popular legal culture to appeals for emigration to Kansas made by abolitionists and Northeasterners in response to the passage of the Kansas-Nebraska Act in 1854. Instruments of popular culture, including circulars, handbooks, music, poetry, speeches, and especially newspaper heavily influenced migration to Kansas from 1854 to 1856 as a direct response to the notion of popular sovereignty embraced by the Kansas-Nebraska Act.

This article concludes that by engaging in a close reading of Kansas rhetoric from 1854-1856 in the instruments of popular culture which responded to the Kansas-Nebraska Act, the significant change in tone helps to explain how popular culture and the response to the legislation led to the growing polarization between North and South prior to the onset of the Civil War.

Update: We hear from Professor Marzen that the paper will appear in the Wyoming Law Review (Winter 2014)

Monday, February 18, 2013

Smith on Anderson on Little Rock

"The Canary in the Mine": 1950s Little Rock as the Testing Ground for Orchestrated Resistance to School Desegregation, is a review written by Robert S. Smith, Associate Professor of History, University of Wisconsin-Milwaukee, has published an H-Policy review of Karen Anderson's Little Rock: Race and Resistance at Central High School (2010), which appeared in the Politics and Society in Twentieth-Century America Series of the Princeton University Press.  Smith writes:
As Karen Anderson shows in Little Rock, resistance in the city would shape resistance to school desegregation across the South, and ultimately nationwide over the next half-century. The Little Rock crisis provided a blueprint for subsequent strategies to resist Brown, and served "as a site for the creation of a class-conscious thinking about race that would inform 'color-blind' law in the South and the nation long after the decision in Brown v. Board of Education." Anderson documents the efforts of working-class whites, predominately segregationists; the middle class, predominately moderates; and business elites, respectively, to shape a vision of school reform that best fit their class-based ideologies and agendas. Anderson's contribution to the historiography of school desegregation is timely, interesting, and rather disturbing, given that she documents the emergence of a clear and purposeful blueprint for undermining meaningful public school desegregation, while foes of desegregation nominally accepted the changing legal climate.  Anderson also explores the "gendered political rhetoric and iconography" of the three classes into which she divides white Arkansans.
More.  Hat tip: H-Law

Symposium on The History and Future of the Economic Equity Act

"Congressional Power to Effect Sex Equity: The History and Future of the Economic Equity Act" is the topic of a symposium this Thursday, February 21, at Harvard Law School. Here's the announcement:
Patricia Seith (credit)
This symposium, hosted by the Harvard Journal of Law and Gender, explores the efforts of the Congressional Women’s Caucus and, more specifically, the Economic Equity Act, an omnibus piece of legislation active in Congress throughout the 1980s and first half of the 1990s. A bipartisan effort, the Economic Equity Act sought to improve the lives of women by tackling the economic challenges they faced as homemakers and caregivers, workers, consumers, and business owners. Focusing on practical reforms in areas such as tax, insurance, employee and retirement benefits, and credit and lending, the Act’s many successful provisions aimed to achieve sex equality not in theory, but in fact.
The event is tied to an article that we are publishing this winter, entitled Congressional Power to Effect Sex Equality and written by Patricia Seith. The article will provide a springboard for a discussion of efforts to legislate toward gender and class equity in the past and implications for the present and future. Confirmed speakers include Congresswomen Elizabeth Holtzman and Pat Schroeder, and scholars Alice Kessler-Harris (Columbia), Stephen Ansolabehere (Harvard University), Serena Mayeri (Penn Law), Patricia Seith (Stanford Law), and Suzanne Kahn (Columbia). A wine and cheese reception will follow. All are welcome!
[bold emphasis added]
We will update* the post when an electronic version of Seith's paper comes online. A few of the responses are already available:
Suzanne Kahn, Valuing Women’s Work in the 1970s Home and the Boundaries of the Gendered Imagination

Serena Mayeri, Filling in the (Gender) Gaps
For additional details, follow the link.

*UPDATE: Page proofs for Seith's article are available here, at SSRN.

Cromwell Fellowships in American Legal History

[We have the following announcement for the Cromwell Fellowships in American Legal History.]

In 2013, the William Nelson Cromwell Foundation will make available of a number of fellowship awards intended to support research and writing in American legal history. The number of awards to be made, and their amounts, is at the discretion of the Foundation. In the past four years, the trustees of the Foundation have made three to five awards, in amounts up to $5,000. Preference is given to scholars at the early stages of their careers. The Society's Committee for Research Fellowships and Awards reviews the applications and makes recommendations to the Foundation. (The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs.)

In 2012, Cromwell fellowships were awarded to:
Anne Fleming, PhD Candidate, History, Univ. of Pennsylvania, "City of Debtors: Law, Loan Sharks, and the Shadow Economy of Urban Poverty, 1900-1970"

Hidetaka Hirota, PhD and Postdoctoral Fellow, History, Boston College, “Don’t Give Me Your Huddled Masses: Pauper Deportation and the Origins of American Immigration Policy”

James Allison, JD, University of North Carolina at Chapel Hill; PhD Candidate, History, Univ. of Virginia,  "Sovereignty and Survival: American Energy Development and Indian Self-Determination"

Ryan Johnson, PhD Candidate, History, Univ. of Minnesota, “Enemies of the State: Knowing, Producing, and Policing Anarchism in the Making of the American National Security State, 1901-1921”

Suzanne Kahn, PhD Candidate, History, Columbia University, "Divorce and the Politics of the Social Welfare Regime, 1969-2001"
Application Process for 2013

Cornelia H. Dayton of the University of Connecticut is the chair of the Society's Committee on Research Fellowships and Awards, with members: Bruce Mann (ex officio, ASLH President), Harvard University; Felicia Kornbluh, University of Vermont; Victoria D. List, Washington and Jefferson College; William E. Nelson, New York University; Kunal Parker, University of Miami; and Victoria Saker Woeste, American Bar Foundation.

Applicants should submit a description of their proposed project (double-spaced, maximum 6 pages, with working title), a budget, a timeline, and a short c.v. (no longer than 3 pages). (There is no application form.) Two letters of recommendation from academic referees should be sent directly to the Committee Chair via email attachment. Applications must be submitted electronically (preferably in one .pdf file) no later than July 15, 2013.

Successful applicants will be notified after the annual meeting of the Cromwell Foundation, which normally takes place in the second week of November. An announcement of the awards will also be made at the annual meeting of the American Society of Legal History in Miami/Ft. Lauderdale, FL, November 7-10, 2013.

To apply, please send all materials to the chair of the Committee:

Sunday, February 17, 2013

Pragmatic Lincoln, Silent Cal, Smuggling and More: This Week in the Book Pages

 In the New York Times, you'll find plenty to read on presidents this Presidents Day weekend.  John Burt, Profess of English at Brandeis, has a new book on Lincoln.  Lincoln's Tragic Pragmatism: Lincoln, Douglas, and Moral Conflict (Belknap/Harvard) is "a work of history presented as an argument about moral conflict, and a work of philosophy presented as a rhetorical analysis of Lincoln's most famous speeches."  According to Steven B. Smith, "every serious student of Lincoln will have to read [it]"..."Burt sees Lincoln as a historicist for whom our moral conceptions emerge only over time and in ways that we can never fully comprehend."  Read on here.  John Burt discusses Lincoln's Tragic Pragmatism in the Book Review Podcast here.  For more on Lincoln, Greg Tobin reviews Daniel Stashower's The Hour of Peril: The Secret Plot to Murder Lincoln Before the Civil War (Minotaur), also reviewed in the Washington Post.

Also in the New York Times: a review of Coolidge by Amity Shlaes (Harper).  In a revival of Republican interest in Calvin Coolidge, "no one,"Jacob Heilbrunn writes, "is offering as silky a defense" of him than Amity Shlaes  who "has always had a deft finger on the conservative pulse."  And Joe Scarborough reviews Ike and Dick: Portrait of a Strange Political Marriage (Simon & Schuster) by Jeffrey Frank.  

On war, The Wall Street Journal has a review of Stephen Budiansky's Blackett's War: The Men Who Defeated the Nazi U-Boats and Brought Science to the Art of Warfare (Knopf), and in the Washington Post has Gerard DeGroot's review of Max Boot's Invisible Armies: An Epic History of Guerrilla Warfare from Ancient Times to the Present (Liveright).

And in the Wall Street Journal, you'll find a review of Smuggler Nation: How Illicit Trade Made America (Oxford) by Peter Andreas.  As Eric Felter explains, Andreas "recounts the well-worn story of American independence less as a lofty quest for freedom per se than as a struggle for freedom from onerous trade restrictions."  Read on here.

Saturday, February 16, 2013

The Yigal Arnon Legal History Workshop at Tel Aviv University

[We have the following announcement .]

The Yigal Arnon Legal History Workshop of Tel Aviv Law Faculty, moderated by Prof. Leora Bilsky, Prof. Assaf Likhovski and Dr. Doreen Lustig, is happy to announce its line-up for Spring 2013. The workshop meet  on Wednesdays from 10:15-11:45, room 17 of the the Zvi Meitar Center, Tel Aviv Law Faculty.

March 13: Michael Birnhack, TAU Law School
The Melting Pot of Copyright Law: Urheberrecht in Jerusalem

April 3: Alan Tzvika Nissel, Helsinki University
The U.S. Turn to Technique

April 10: Roy Kreitner, TAU law School
Shifting the Ground of Monetary Politics: The Case of the 1870s

April 17: Théofilakis Fabien, IHTP
´I don´t fight for my life´: The defendant Adolf Eichmann in the case 40/60, Jerusalem, 1961

April 24: Ronen Shamir, Sociology Department, Tel Aviv University
Wired, chapter 3 in Current flow: the Electrification of Palestine (forthcoming, Stanford University Press).

May 1: Shai Lavi, TAU Law School
Humane Killing and the Ethics of the Secular: A Present Moment of a Late Nineteenth-Century Legacy

May 8: Ajay K. Mehrotra, Maurer School of Law, University of Indiana
"The VAT Laggards: A Comparative History of U.S. and Japanese Resistance to the Value-added Tax."

May 22: Thomas Sugrue, Department of History, University of Pennsylvania
Race and American Urban Policy in the Shadow of the 1960s

May 29: Rande Kostal, Western Ontario
The Destruction of Philosophies Allied Planning for the De-Nazification of German Law

June 12: Amalia Kessler, Stanford University
Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877

Friday, February 15, 2013

New Release: Cottrol's Comparative History of Race in the Americas

Out this month from the University of Georgia Press is The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere, by Robert J. Cottrol, GW Law.  The press explains:
Students of American history know of the law’s critical role in systematizing a racial hierarchy in the United States. Showing that this history is best appreciated in a comparative perspective, The Long, Lingering Shadow looks at the parallel legal histories of race relations in the United States, Brazil, and Spanish America. Robert J. Cottrol takes the reader on a journey from the origins of New World slavery in colonial Latin America to current debates and litigation over affirmative action in Brazil and the United States, as well as contemporary struggles against racial discrimination and Afro-Latin invisibility in the Spanish-speaking nations of the hemisphere.

Ranging across such topics as slavery, emancipation, scientific racism, immigration policies, racial classifications, and legal processes, Cottrol unravels a complex odyssey. By the eve of the Civil War, the U.S. slave system was rooted in a legal and cultural foundation of racial exclusion unmatched in the Western Hemisphere. That system’s legacy was later echoed in Jim Crow, the practice of legally mandated segregation. Jim Crow in turn caused leading Latin Americans to regard their nations as models of racial equality because their laws did not mandate racial discrimination—a belief that masked very real patterns of racism throughout the Americas. And yet, Cottrol says, if the United States has had a history of more-rigid racial exclusion, since the Second World War it has also had a more thorough civil rights revolution, with significant legal victories over racial discrimination. Cottrol explores this remarkable transformation and shows how it is now inspiring civil rights activists throughout the Americas.
Here are the blurbs:
“Cottrol’s well-written book is a brilliant explication of the comparative treatment of persons of African ancestry in the western world. This is a must-read for those interested in the larger context of the black experience in the Western Hemisphere.”
Davison M. Douglas, author of Jim Crow Moves North: The Battle over Northern School Segregation, 1865–1954

“This book is an extremely important, groundbreaking work of comparative synthesis that will be a must-read for students of race in the United States as well as in Latin America. It will be the definitive book on the comparative history of race and law in the Americas.”
Ariela Gross, author of What Blood Won’t Tell: A History of Race on Trial in America

New Release: Kim, "Law and Custom in Korea"

Cambridge University Press recently published Law and Custom in Korea: Comparative Legal History, by Marie Seong-Hak Kim (St. Cloud State University). A description from the Press:
This book sets forth the evolution of Korea's law and legal system from the Chosǒn dynasty through the colonial and postcolonial modern periods. This is the first book in English that comprehensively studies Korean legal history in comparison with European legal history, with particular emphasis on customary law. Korea's passage to Romano-German civil law under Japanese rule marked a drastic departure from its indigenous legal tradition. The transplantation of modern civil law in Korea was facilitated by Japanese colonial jurists who themselves created a Korean customary law; this constructed customary law served as an intermediary regime between tradition and the demands of modern law. The transformation of Korean law by the brisk forces of Westernization points to new interpretations of colonial history and it presents an intriguing case for investigating the spread of law on the global level. In-depth discussions of French customary law and Japanese legal history in this book provide a solid conceptual framework suitable for comparing European and East Asian legal traditions.
And a few blurbs:
"At first look, the title of the book gives readers an expectation of continuity in theme evolving in Korean customary law from premodern times to the present. It is, however, a saga in which Kim tells us of how the civil law tradition in France and Germany was transplanted to Japan and only a few decades later to its colony Korea, as Japanese rulers and judges saw that it fit the needs of efficient colonial management and Western jurisprudence's requirements of customary law. Kim's book provides us with sad but rich stories to explore from Korean civil law history." – Dai-Kwon Choi (Seoul National University)

"For too long, East Asia in general and Korea in particular has been treated as a backwater in comparative legal studies. Marie Kim's monumental contribution helps correct this state of affairs. With nuance and rigor, she uses the lens of custom to situate modern Korean law in a comparative context. A major advance not only for our understanding of modern Korea but also of colonial and postcolonial legality more broadly." – Tom Ginsburg (University of Chicago Law School)
Read on here.

Thursday, February 14, 2013

Comparative Historical Approaches to Fiscal Sociology

[We've previously noted the calls for this series of workshops, supported by a grant from the National Science Foundation, held in conjunction with the annual meeting of the Social Science History Association, and organized by a group of scholars in the field of fiscal sociology. The final workshop will be convered this fall.]

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

The workshop will be held on Wednesday, November 20th, in Chicago, IL in conjunction with the annual meetings of the Social Science History Association (SSHA). Interested students will also have a chance to present their own work on Thursday, November 21st, as part of the SSHA conference.

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

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

Submit materials no later than February 22, 2013 to each of the following:

Monica Prasad, Department of Sociology, Northwestern University (

Ajay Mehrotra, Maurer School of Law, Indiana University – Bloomington (

Isaac Martin, Department of Sociology, University of California – San Diego (

Walsh reviews Crowe, "Building the Federal Judiciary"

JOTWELL's Courts Law Section has posted a book review that may be of interest: Kevin C. Walsh (Richmond School of Law) covers Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton University Press, 2012). Here's the first paragraph of the review:
Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.
Read on here.