Sunday, March 31, 2013

Supreme Court Histories, Gideon After 50 Years, and More on Justice and Injustice in the Courts: This Week in the Book Pages

In the New York Times Adam Liptak reviews Out of Order: Stories From the History of the Supreme Court (Random House) by Sandra Day O'Connor.  Here's a sample:
She has a lot to say. But, the provocative title of her new book notwithstanding, she is not saying it here. Instead, she has delivered a disjointed collection of anodyne anecdotes and bar-association bromides about the history of the Supreme Court. “Out of Order” is a gift shop bauble, and its title might as well refer to how disorganized and meandering it is.
Read the full review here.

Abbe Smith, a law professor at Georgetown, reviews two books that "put a damper on the celebration" of the 50th anniversary of Gideon v. Wainwright.  Kids For Cash: Two Judges, Thousands of Children, and a $2.8 Million Kickback Scheme (The New Press) by William Ecenbarger is "a harrowing tale" of two Pennsylvania judges who "accepted millions of dollars in kickbacks from a private juvenile detention facility" for sending girls and boys to jail.  The Injustice System: A Murder in Miami and a Trial Gone Wrong (Viking) by Clive Stafford Smith "makes a strong case" that a man sentenced to death in Miami 26 years ago is innocent.

Also in the NY Times this week: a review of Jonathan Sperber's Karl Marx: A Nineteenth-Century Life (Liveright), a book that according to reviewer Jonathan Freedland has the "express purpose" of dispelling "the dominant notion of a timeless Marx-- less man, more ideological canon-- and relocate hime where he lived and belonged, in his own time, not ours."  And, Amy Wilentz reviews Sugar in the Blood: A Family's Story of Slavery and Empire (Knopf) by Andrea Stuart.

Nell Irvin Painter reviews Jeanne Theoharis's The Rebellious Life of Mrs. Rosa Parks (Beacon Press).  "This first comprehensive biography" is, Painter writes, "[r]ichly informative, calmly passionate, and much needed."  Read on here.

And, in case you missed it, Adam Liptak reviews Stuart Banner's The Baseball Trust: The History of Baseball's Antitrust Exemption (Oxford).

In the LA Times this week, you'll find a review of Barry Siegel's Manifest Injustice: The True Story of a
Convicted Murderer and the Lawyers Who Fought for His Freedom (Henry Holt), and a review of Jack Nelson's Scoop: The Evolution of a Southern Reporter (University Press of Mississippi).

In the Washington Post Dina Temple-Raston reviews Jess Bravin's The Terror Courts: Rough Justice at Guantanamo Bay" (Yale), a comprehensive account of the creation of the [military] commissions" at Guantanomo Bay "in the months after the Sept. 11 attacks."

Friday, March 29, 2013

New Release: Morris, "Under Household Government: Sex and Family in Puritan Massachusetts"

Another new release from Harvard University Press: Under Household Government: Sex and Family in Puritan Massachusetts, by M. Michelle Jarrett Morris (University of Missouri). Here's a description from the Press:
Seventeenth-century New Englanders were not as busy policing their neighbors’ behavior as Nathaniel Hawthorne or many historians of early America would have us believe. Keeping their own households in line occupied too much of their time. Under Household Government reveals the extent to which family members took on the role of watchdog in matters of sexual indiscretion.
In a society where one’s sister’s husband’s brother’s wife was referred to as “sister,” kinship networks could be immense. When out-of-wedlock pregnancies, paternity suits, and infidelity resulted in legal cases, courtrooms became battlegrounds for warring clans. Families flooded the courts with testimony, sometimes resorting to slander and jury-tampering to defend their kin. Even slaves merited defense as household members—and as valuable property. Servants, on the other hand, could expect to be cast out and left to fend for themselves.
As she elaborates the ways family policing undermined the administration of justice, M. Michelle Jarrett Morris shows how ordinary colonists understood sexual, marital, and familial relationships. Long-buried tales are resurrected here, such as that of Thomas Wilkinson’s (unsuccessful) attempt to exchange cheese for sex with Mary Toothaker, and the discovery of a headless baby along the shore of Boston’s Mill Pond. The Puritans that we meet in Morris’s account are not the cardboard caricatures of myth, but are rendered with both skill and sensitivity. Their stories of love, sex, and betrayal allow us to understand anew the depth and complexity of family life in early New England.
A few blurbs:
Morris succeeds brilliantly at bringing to life the personal and social panorama of Puritan Massachusetts. Through the stories uncovered by her extraordinary sleuthing, we learn about the strength of Puritan families and their inner workings, as well as Puritan sexual culture: the importance of sex to marriage, the differences attributed to male and female sexuality, and the nuances of courtship and seduction. Deft, lively, sometimes just plain fun, Under Household Government is a vivid and compelling portrait of family life in early New England.—John Demos, Yale University
Morris demonstrates that Puritans policed one another’s sexual behavior, not as mere busybodies, but to defend their own families’ assets and reputation. In the process, they sometimes resorted to less than honorable means: false alibis, perjury, defamation, and jury tampering. Morris is a gifted storyteller, and readers will be surprised to learn that colonial New Englanders were not always the strait and narrow ‘Puritans’ we might have imagined.—Elizabeth Reis, University of Oregon
And the TOC:
Introduction
1. Daniel Gookin’s Household
2. Contrary to the Laws of God and This Jurisdiction
3. Lawful Remedies, Diabolical Erections, and an Unwanted Suitor
4. The Rape of Elizabeth Pierce
5. A Family of Allies
6. Two Missing Infants
7. Traitors, Rebels, and Slaves
Conclusion
A Peek behind the Scenes

Thursday, March 28, 2013

DC Area Legal History Roundtable to Convene at GW Law

The DC-Area Legal History Roundtable reconvenes on April 5, 2013, at the George Washington University Law School–more particularly, in the Student Conference Center, on the second floor of Lisner Hall, 2023 G Street, NW.  Thanks to GW Law for sponsoring the event and GW’s Renée Lerner for doing the honors!

12:00    Lunch

12:25    Welcoming remarks by Renée Lerner, George Washington University

12:30    Presentation: Robert Cottrol, George Washington University, Introduction and Chapter Two of The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere (Studies in the Legal History of the South, University of Georgia Press 2013).

1:30    Presentation: Daniel Ernst, Georgetown University, Introduction and Chapter Three, "Chief Justice Hughes," of his forthcoming book, Tocqueville's Nightmare: Americans Confront the Administrative State (Oxford University Press).

2:30    Break

2:45    Presentation: Joyce Malcolm, George Mason University, Chapter One, "The Court Martial of Benedict Arnold," of her forthcoming book about Benedict Arnold (Harvard University Press).

3:45    Half-baked ideas in legal history, moderated by Mary Clark, American University

4:15   Wrap-up and next steps

New Release: Jayal, "Citizenship and Its Discontents: An Indian History"

Harvard University Press has released Citizenship and Its Discontents: An Indian History (Feb. 2013), by Niraja Gopal Jayal (Jawaharlal Nehru University, India). Here's the HUP description:
Breaking new ground in scholarship, Niraja Jayal writes the first history of citizenship in the largest democracy in the world—India. Unlike the mature democracies of the west, India began as a true republic of equals with a complex architecture of citizenship rights that was sensitive to the many hierarchies of Indian society. In this provocative biography of the defining aspiration of modern India, Jayal shows how the progressive civic ideals embodied in the constitution have been challenged by exclusions based on social and economic inequality, and sometimes also, paradoxically, undermined by its own policies of inclusion.

Citizenship and Its Discontents explores a century of contestations over citizenship from the colonial period to the present, analyzing evolving conceptions of citizenship as legal status, as rights, and as identity. The early optimism that a new India could be fashioned out of an unequal and diverse society led to a formally inclusive legal membership, an impulse to social and economic rights, and group-differentiated citizenship. Today, these policies to create a civic community of equals are losing support in a climate of social intolerance and weak solidarity. Once seen by Western political scientists as an anomaly, India today is a site where every major theoretical debate about citizenship is being enacted in practice, and one that no global discussion of the subject can afford to ignore.
And the TOC:
Part I: Status

1. The Subject-Citizen: A Colonial Anomaly
2. Legal Citizenship and the Long Shadow of the Partition
3. Aspirational Citizenship: Migrants and Emigrants  
Part II: Rights

4. Pedagogies of Duty, Protestations of Rights
5. The Unsocial Compact
6. Social Citizenship in Neoliberal Times  
Part III: Identity

7. Genealogies of Mediated Citizenship
8. Passages from Backwardness to Citizenship
9. The Future of the Civic Community

Kersch reviews Quitt, "Stephen A. Douglas and Antebellum Democracy"

Last November, Cambridge University Press released a "thematic biography" of Stephen Douglas, by Martin H. Quitt (University of Massachusetts, Boston). Stephen A. Douglas and Antebellum Democracy is now the subject of a new review, by political scientist Ken I. Kersch (Boston College).  Here's the first paragraph:
“Judge” and Illinois Senator Stephen A. Douglas (the former his proudly preferred title) was a major player in the constitutional debates leading up to the Civil War, though ever since he has dwelt, in historian Martin Quitt’s description, “in Lincoln’s shadow” (p.169). This, Quitt reminds us, was a stunning reversal. From his mid-twenties on, it was Douglas, not Lincoln, who was considered the political star, destined ultimately for the White House. It was a coup for the relatively obscure Lincoln – a one-term Whig Congressman – to get the famed Judge Douglas to join him for a series of debates during their 1858 contest for the U.S. Senate seat from Illinois which, electorally, Douglas won, and Lincoln lost. Those brilliant debates – critical texts of American constitutional theory – marked the beginning of the reversal of the friendly antagonists’ political (and constitutional) fortunes. From Appomattox Courthouse on, we have lived in Lincoln’s world, not Douglas’s. While there’s no suggestion that Quitt would want it otherwise, he plainly feels that something has been lost in Douglas’s historical eclipse. In that sense, at least, he seeks to redeem Douglas’s political and constitutional thought – as well as Douglas’s personal reputation.
Read the full review here, at the Law & Politics Book Review. An excerpt of the book is available here, at the CUP website.

Wednesday, March 27, 2013

Gordon Wood and Scott Gerber on the Supreme Court and the Uses of History

We've previously noted that Gordon Wood delivered two talks at Ohio Northern University and posted the link to one of them.  A link to the second is now available.  It is a debate with ONU's Scott Gerber on "The Supreme Court and the Uses of History" and may be viewed here.

Zhang on Customary Property in Preindustrial China and England

Taisu Zhang has posted Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England, which is forthcoming in the American Journal of Comparative Law.  Zhang is a Visiting Assistant Professor at Duke University School of Law.  He has a JD from the Yale Law School and is a Ph.D. candidate in Yale’s History Department.  The paper was a recipient of the American Society for Legal History’s Kathryn T. Preyer Award.  Here is the abstract:    
Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually "despotic" towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households than richer ones, but Chinese customary law allowed debtors to indefinitely retain redemption rights over collateralized property, whereas English debtors would generally lose the property permanently if they failed to redeem within one year.

This article argues that the comparatively "egalitarian" tendencies of Qing and Republican property institutions stemmed from the different ways Chinese and English rural communities allocated social status and rank. Hierarchical "Confucian" kinship networks dominated social and economic life in most Chinese villages. Within these networks, an individual's status and rank depended, in large part, on his age and generational seniority, rather than personal wealth. This allowed many low-income households to enjoy status and rank quite disproportionate to their wealth. In comparison, substantial landed wealth was generally a prerequisite for high status in early modern England, effectively excluding lower-income households from positions of sociopolitical authority. Chinese smallholders possessed, therefore, significantly more social bargaining power, and were more capable of negotiating desirable property institutions. Paradoxically, the predominance of kinship hierarchies actually enhanced macro-level political and economic equality.

Capozzola to Deliver Jeans Lecture

The Joplin Independent reports that Christopher Capozzola, MIT History, will deliver the 19th Annual Jeans Lecture in History at the Missouri Southern State University at 7:00 om on Thursday, April 4.  His topic will be  “Uncle Sam Wants You: World War I and the Making of the Modern American Citizen.”

New Release: Superfine, "Equality in Education Law and Policy, 1954-2010"

New from Cambridge University Press: Benjamin M. Superfine, Equality in Education Law and Policy, 1954–2010 (2013). Here's a description, from the CUP website:
Educational equality has long been a vital concept in U.S. law and policy. Since Brown v. Board of Education, the concept of educational equality has remained markedly durable and animated major school reform efforts, including desegregation, school finance reform, the education of students with disabilities and English language learners, charter schools, voucher policies, the various iterations of the Elementary and Secondary Education Act (including No Child Left Behind), and the "Stimulus." Despite such attention, students' educational opportunities have remained persistently unequal as understandings of the goals underlying schooling, fundamental changes in educational governance, and the definition of an equal education have continually shifted. Drawing from law, education policy, history, and political science, this book examines how the concept of equality in education law and policy has transformed from Brown through the Stimulus, the major factors influencing this transformation, and the significant problems that school reforms accordingly continue to face.
The TOC and an excerpt are available here.

Tuesday, March 26, 2013

The Making of Competition Policy: A Reader

New out from Oxford University Press is the reader The Making of Competition Policy: Legal and Economic Sources, edited by Daniel A. Crane and Herbert Hovenkamp.  The press writes:
This book provides edited selections of primary source material in the intellectual history of competition policy from Adam Smith to the present day. Chapters include classical theories of competition, the U.S. founding era, classicism and neoclassicism, progressivism, the New Deal, structuralism, the Chicago School, and post-Chicago theories. Although the focus is largely on Anglo-American sources, there is also a chapter on European Ordoliberalism, an influential school of thought in post-War Europe. Each chapter begins with a brief essay by one of the editors pulling together the important themes from the period under consideration.
Read the introduction here and the table of contents after the jump.

Symposium: "Supreme Court Narratives: Law, History, and Journalism"

The latest issue of the New York Law School Law Review features articles based on the journal's April 2012 symposium on Supreme Court Narratives: Law, History, and Journalism. Here's a glimpse of the contents: 
Foreword by James F. Simon, Dean Emeritus and Martin Professor of Law Emeritus, New York Law School. 

Chief Justices and Chief Executives: Some Thoughts on Jim Simon’s Books by Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale University.  

President John Adams and Four Chief Justices: An Essay for James F. Simon by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School, and Adjunct Professor of Political Science and History, Skadden, Arps Honors Program in Legal Studies, City College of New York. 

Two Great Leaders by L.A. Powe, Jr., Anne Green Regents Chair, The University of Texas.

Graceful, Scholarly, and Illuminating: The Books of James F. Simon by Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York Law School. 

Using the Papers of U.S. Supreme Court Justices: A Reflection by Stephen Wermiel, Fellow in Law and Government, American University Washington College of Law. 

“Dealing with the Appellate Caseload Crisis”: The Report of the Federal Courts Study Committee Revisited by Roger J. Miner, Senior Judge, U.S. Court of Appeals for the Second Circuit.

Monday, March 25, 2013

Asian Exclusion and Cold War Civil Rights

Via H-Law, we have news of the latest seminar sponsored by The Center for the United State and the Cold War for this upcoming seminar hosted by the Tamiment Library at New York University.  On March 28, from 5-7, Jane Hong, Harvard University, will speak at the Tamiment on “The Japanese American Citizens League (JACL) and the Judd Bill: Bringing the Repeal of Asian Exclusion into the Story of Cold War Civil Rights.”  Nikhil Pal Singh, New York University , will comment.

Law and the U.S. Foreign Relations Survey, Part IV: Law, Civilization, and Empire


Even when they understand America’s westward expansion as a process offoreign policy and imperial development, students remain reluctant to abandon entirely the edifice of American “isolation.” In part this is justified, given the highly ideological emphasis on political “non-entanglement” put forward by many American statesmen into the early twentieth century. Many Americans contrasted their nation’s “republican” foreign policy with the “Old Diplomacy” of Europe, allegedly dominated by power and self-interest. U.S. expansion, its defenders claimed, served to expand the “Empire of Liberty” or at least represented the divinely ordained fulfillment of “Manifest Destiny.” The implication is that even when the United States became an overseas empire in 1898, it followed different rules and acted for different motives than Europe. While I push students to consider what makes U.S. foreign relations unique, it is important to emphasize the continuities as well. The history of international law helped me to make this connection by linking America to a broader vision of empire as a “civilizing” and “humanitarian” mission.

Early in the semester, we read John Quincy Adams’s 1841 address on the Opium War. Adams is the perfect messenger for this theme of transatlantic imperial continuity because he is so often associated with its opposite. As secretary of state, he authored most of the Monroe Doctrine, that quintessential statement of American hemispheric separation and anti-colonial sentiment.

Adams begins his speech by noting that determining the justness of the Opium War is not merely important to Britain and China but is “of deep interest to the whole human race” (303). He proposes the Law of Nations as the best arbiter of the cause. In so doing he reveals two important facets of this law. First, Adams admits that there is no single, universal, agreed-upon code, but rather the existence of “a system of Rules, varying according to the character and condition of the parties concerned” (306). Thus he distinguishes the law between “Christian communities” from that governing “our intercourse with the Indian tribes of our own Continent” (307). There is “another Law of Nations between us, and the woolly headed natives of Africa; another with the Barbary Powers and the Sultan of the Ottoman empire…” (307). International law, in other words, is circumscribed by race, nation, religion, and culture.

Adams then sidesteps what he has just said and claims that there is in fact a General Law of Nations, applicable to all. Citing Vattel (though ultimately disagreeing with him), Adams argues that all nations must recognize the equality of all others, and must balance self-interest with the need to “contribute to the happiness of all” (312). By refusing to open its ports fully to British trade, and by requiring the “ko-tow,” China “utterly denies the equality of other Nations with itself” (313). This “enormous outrage upon the rights of human nature…should cease” (313). Thus Adams sides with England on the grounds of humanity:
“I cannot forbear to express the hope that Britain, after taking the lead in the abolition of the African Slave trade and of slavery; and of the still more degrading tribute to the Barbary African Mahometans, will extend her liberating arm to the farthest bounds of Asia…” (313)
Thus the principles of equality and selflessness become the rationale for a war of drug-pushing and empire! While Adams’s views were somewhat out of place in his time (and the address was not published for nearly seventy years, by the Massachusetts Historical Society), they are nonetheless useful pedagogically.

Viewed from a modern perspective, Adams’s sophistry is plain. Students are tempted to dismiss international law altogether as a mere rationalization of power. But this would be too easy. Rationalization—whether through public speech or private self-justification—is necessary for the consistent expression of power. And the American myth of selflessness and Right makes it especially important in this country. Adams is worth reading because his appeals to universal principles foreshadow the later legal justifications for empire in the late nineteenth century.

To understand the American imperial expansion of the 1890s in light of European colonialism, we devoted a later class to the legal concept of civilization in the late-nineteenth century. I assigned Gordon Chang’s “Whose ‘Barbarism’? Whose ‘Treachery’? Race and Civilization in the Unknown United States-Korea War of 1871” in order to emphasize the rhetorical importance of “civilization” at the time, and to highlight its contested nature. But I argued that the concept of civilization was not merely rhetorical, but was inscribed into the legal expression of colonialism. For instance, “uncivilized” or partially civilized states often were forced to grant extraterritorial jurisdiction to foreign powers. Granted, the definition of civilization was fuzzy. We discussed how international law treatises defined civilization sometimes in terms of religion (with Christian=civilized, on the model presented by John Quincy Adams), sometimes in terms of race (Francis Lieber claimed “Internationalism is part of a white man’s religion”), and more generally in terms of behavior. As Gerrit Gong has explained, Japan became “civilized” in international law treatises in part when its diplomats adopted Western practices, but also because its victory over China in 1894-95 marked it as an imperial power. American leaders did not fail to understand the linkage between imperial power and civilizational status.

The civilizing mission also figured directly in legal documents. We read excerpts from the General Act of the Congress of Berlin (1885) that set out legal rules for the colonial partition of Central Africa. Signatories promised to “watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being…” Notably, an American delegate attended the meeting—surprising on its face, considering America’s anti-colonial rhetoric and lack of African colonies. But the class understood that this was made possible by the way that the Congress explained colonialism as a civilizing project that seemed to fulfill many of the traditionally “republican” aspects of American foreign policy: it committed the signatories to free trade in the region, emphasized neutrality, and guaranteed openings to missionaries and scientific expeditions. In short, the Berlin Congress reveals late-19th century European colonialism as rationalized in ways quite compatible with how Americans understood their own imperial expansion.

Establishing this history of colonialism through law helps to prepare the class to understand the American imperial expansion of 1898 not as an “aberration” to past US practice, nor as an exceptionally American event. Other types of sources help to substantiate this, of course, including this cartoon. But the legal background is especially useful. It also helps to explain why the US found law so essential to the development of its empire in the early 20th century, a subject of my next post. 

Shugerman on the Creation of the Department of Justice

Jed Handelsman Shugerman, Harvard Law School, has posted The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, which is forthcoming in the fall in volume 66 of the Stanford Law Review.  Here is the abstract:
Thomas A. Jenckes (Credit: NYPL)
This Article offers a new interpretation of the founding of the Department of Justice in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government's capacity to litigate a growing docket as a result of the Civil War, and more recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex- slaves' civil rights. However, it has been overlooked that the DOJ bill eliminated about one third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with "retrenchment" (budget-cutting and fiscal conservatism) and anti-patronage reform. The DOJ's creation was contemporaneous with major professionalization efforts (especially the founding of modern bar associations) to make the practice of law more exclusive and more independent from partisan politics. A small group of reformers worked on a combination of the DOJ bill, civil service reform, bureaucratic independence, and founding modern bar associations in the late 1860s through 1870.

This Article also explains why the Department of Justice did not include civil service reforms as part of this professionalization project, even though the same reformers were fighting for broad civil service legislation at exactly the same time. The same Congressman who led the DOJ effort in 1870, Thomas Jenckes, was also known as "the father of the Civil Service" and simultaneously fought for civil service reform. Jenckes succeeded in passing a DOJ bill to professionalize government lawyers by reorganizing them under a more professional and independent Office of the Attorney General, rather than through civil service reform. Meanwhile, reformers fell short in their civil service campaign for other kinds of federal employees, reflecting a view that government lawyers were different from other government officials in the post-Civil War era.

In this new light, the DOJ's creation conflicts with one historical trend, the growth of federal government's size. Instead, it was at the very leading edge of two other major trends: the professionalization of American lawyers and the rise of bureaucratic autonomy and expertise. This story helps explain a historical paradox: how the uniquely American system of formal presidential control over prosecution evolved alongside the norms and structures of professional independence.

March 2013 Issue of Reviews in American History

The March 2013 issue of Reviews in American History is out. Full content is available to subscribers only, but here's a peak at some reviews of interest:

In "Constitutionalism in the American Civil War," Edward J. Blum reviews Mark E. Neely Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (University of North Carolina Press, 2011).

Eileen Boris reviews Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Harvard University Press, 2011) in an essay titled "Possibilities Lost and Found: Recovering the Intersectional Vision of Legal Feminism."

In "Rethinking Legal Liberalism: The Sexual Freedom Doctrine that Never Was," Leandra Zarnow takes up Marc Stein, Sexual Injustice: Supreme Court Decisions from Griswold to Roe (University of North Carolina Press, 2010).

In a reflective essay, titled "On Family Properties: Race, Real Estate, and the Exploitation of Black Urban America," Beryl Satter (Rutgers University-Newark) asks, "How can one elucidate the historical meaning of one's own family tragedy?" Her nine-year struggle with this question culminated in Family Properties: Race, Real Estate, and the Exploitation of Black Urban America (Picador, 2009)

Sunday, March 24, 2013

The Start and End of World Wars, the "Wild Frontier," and the South Reconsidered: This Week in the Book Pages

In the Wall Street Journal this week William Anthony Hay reviews The Sleepwalkers: How Europe Went to War in 1914 (Harper) by Christopher Clark.  As Hay explains, Clark examines the origins of World War I, a topic about which historians "have generated a tremendous literature."  Clark "rejects the idea that any single government or individual deserves preponderant blame for the war"; it "was a tragedy, not a crime."  The complete review is here.

From the start of WWI to the end of WWII: the WSJ has a review of two books about the United Nations. Capital of the World: The Race to Host the United Nations (NYU) by Charlene Mires "chronicles the process by which the United Nations headquarters ended up on New York's East River, and Roger Lipsey's Hammarskjold: A Life (Michigan) "illuminat[es] the diplomatic dramas that would soon unfold inside" the UN.

The Washington Post has a review of Bob Thompson's Born on a Mountaintop: On the Road with Davy Crockett and the Ghosts of the Wild Frontier (Crown), "an enjoyable journey along the trail of Crockett's life and legend-- part road trip and part history lesson."

In the LA Times Steve Oney reviews Tracy Thompson's The New Mind of the South (Simon & Schuster).  He writes: "The contemporary American South is so different from the troubled yet exotic Dixie of the past that it's nearly unrecognizable, argues Tracy Thompson in her splendid new book."  Read on here.

And in Foreign Affairs you'll find a review essay, "Israel's Warlords: How the Military Rules in War and Peace," by Aluf Benn.  Benn takes up two books Patrick Tyler's Fortress Israel: The Inside Story of the Military Elite Who Run the Country-- and Why They Can't Make Peace (Farrar, Straus and Giroux), and Charles D. Freilich's Zion's Dilemmas: How Israel Makes National Security Policy (Cornell).

Saturday, March 23, 2013

From Litchfield to Yale: The Exhibition Talk

Interior, Litchfield Law School (credit)
We've previously noticed the the exhibition, From Litchfield to Yale: Law Schools in Connecticut, 1782-1843.  The guest curator, Michael von der Linn, will deliver an exhibition talk on Wednesday, March 27, from 2:00 - 3:00pm, in Room 122, Yale Law School, 127 Wall Street, New Haven CT.  According to the announcement:
Since 2001, von der Linn has been Manager of the Antiquarian Book Department at The Lawbook Exchange, Ltd., one of the world's leading dealers in antiquarian law books. He holds a Ph.D. in musicology from Columbia University. Von der Linn has an ongoing interest in the history of American legal education. The Summer 2010 issue of The Green Bag included his article Harvard Law School's Promotional Literature,  1829-1848.
The talk is free and open to the public.

Hat tip: H-Law

Weekend Roundup

  • Over at Concurring Opinions, Gerard Magliocca has posted a link to a recording of FDR's Constitution Day address in 1937.  Magliocca and my Georgetown Law colleague Marty Lederman, who provided me with this link to Felix Frankfurter and Thomas Corcoran's draft and this link to the final text, were struck by what Marty calls FDR's "swagger, disdain and passion," in what is, in effect, "a victory lap," notwithstanding the defeat of the Court-packing plan.  he observes that FDR "elicits laughter early in the speech by mentioning as an aside that the Constitution not only doesn't mention the power of judicial review--it doesn't speak to the number of Justices, either."  Alluding to West Coast Hotel, FDR jibed, "For twenty years the Odd Man on the Supreme Court refused to admit that State minimum wage laws for women were constitutional. A few months ago, after my message to the Congress on the rejuvenation of the Judiciary, the Odd Man admitted that the Court had been wrong—for all those twenty years—and overruled himself."  All this is true enough, but especially in light of Ira Katznelson's argument in Fear Itself (not to mention Alonzo Hamby's in For the Survival of Democracy), Roosevelt's opening observations about the spread of dictatorships ought not be overlooked.
  • Check out the (for me, at least) arresting photograph of the "authors of the history of the Supreme Court of the United States meet in the Library of Congress, June 17-19, 1957": Charles Fairman, Paul A. Freund, Carl B. Swisher, Phil C. Neal, Alexander M. Bickel, and Julius Goebel, Jr."  [An earlier version of this post had a defective link; you may search for the photograph here.] It is from Harvard's on-line collection of legal portraits.  How about a restaging with more recent contributors to the Holmes Devise?  With ASLH presidents?  DRE
  • The Reports of the Advisory Committee on the Records of Congress (including the fifth and latest) are here.  Hat tip: H-Law
  • A few weeks ago, we noted that on March 14, 2013, Gordon Wood would be lecturing at Ohio Northern University on "The Revolutionary Origins of the Civil War."  The lecture and the conferral of an honorary degree on Professor Wood are recorded here.
The Weekend Roundup is a weekly feature compiled by all the Legal History Bloggers.

Friday, March 22, 2013

Legal Historians in the Op-Ed Pages: Dudziak on "Obama's Nixonian Precedent"

Mary Dudziak (Emory Law) has an op-ed, titled "Obama's Nixonian Precedent," in today's New York Times. Here's the first paragraph:
ON March 17, 1969, President Richard M. Nixon began a secret bombing campaign in Cambodia, sending B-52 bombers over the border from South Vietnam. This episode, largely buried in history, resurfaced recently in an unexpected place: the Obama administration’s “white paper” justifying targeted killings of Americans suspected of involvement in terrorism.
Read on here.

Banner's "Baseball Trust"

The latest from Stuart Banner, a Mets fan, a former little league coach, and the Norman Abrams Professor of Law at the UCLA School of Law, is The Baseball Trust: A History of Baseball's Antitrust Exemption, published by Oxford University Press.  Saith the press:
The impact of antitrust law on sports is in the news all the time, especially when there is labor conflict between players and owners, or when a team wants to move to a new city. And if the majority of Americans have only the vaguest sense of what antitrust law is, most know one thing about it-that baseball is exempt.

In The Baseball Trust, legal historian Stuart Banner illuminates the series of court rulings that resulted in one of the most curious features of our legal system-baseball's exemption from antitrust law. A serious baseball fan, Banner provides a thoroughly entertaining history of the game as seen through the prism of an extraordinary series of courtroom battles, ranging from 1890 to the present. The book looks at such pivotal cases as the 1922 Supreme Court case which held that federal antitrust laws did not apply to baseball; the 1972 Flood v. Kuhn decision that declared that baseball is exempt even from state antitrust laws; and several cases from the 1950s, one involving boxing and the other football, that made clear that the exemption is only for baseball, not for sports in general. Banner reveals that for all the well-documented foibles of major league owners, baseball has consistently received and followed antitrust advice from leading lawyers, shrewd legal advice that eventually won for baseball a protected legal status enjoyed by no other industry in America.

As Banner tells this fascinating story, he also provides an important reminder of the path-dependent nature of the American legal system. At each step, judges and legislators made decisions that were perfectly sensible when considered one at a time, but that in total yielded an outcome-baseball's exemption from antitrust law-that makes no sense at all.
As you might expect, baseball fans in the ranks of American legal historians have stepped up to the plate and blurbed away:

"This is the best single-volume history of baseball's antitrust exemption. Prof. Banner does an excellent job mining primary sources to show how savvy lawyers and baseball officials laid the groundwork for 'baseball's bizarre monopoly.' Banner brings a lawyer's rigor, a historian's discerning eye, and a baseball fan's ear to this very important work of baseball and American legal history. This is a tale that needed to be told."
-Brad Snyder, author of A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports

"One of the great puzzles of the history of both baseball and anti-trust law is the 'exemption' granted to the baseball industry from anti-trust law. Nearly everyone agrees that the exemption, which is not available to other professional sports, makes very little sense as a matter of law or economics. Stuart Banner demonstrates that the exemption was not intended to serve the usual reason for avoiding anti-trust laws, but rather to preserve baseball's 'reserve clause,' which bound players indefinitely to their clubs and thereby reduced the players' leverage. By following shrewd advice from lawyers, organized baseball was able to convince both the courts and Congress that replacing the reserve clause with free agency would undermine competitive balance. Even though this turned out not to be the case, baseball's anti-trust exemption remains in place. Banner's book will be the place to start in understanding that curious anomaly."
-G. Edward White, author of Creating the National Pastime

"One Law for All?: Western Models and Local Practices in (Post-) Imperial Contexts"

Via the Law & Politics Book Review, we have word of an interesting collection of essays: Stefan B. Kirmse, ed., One Law for All?: Western Models and Local Practices in (Post-) Imperial Contexts (Campus Verlag, 2012). Here's a description from the University of Chicago Press (which is distributing the book for Campus Verlag):
Examining new archival material from the nineteenth and early twentieth centuries, One Law for All? discusses legal transfer and practice in imperial and post-imperial societies, including Russia, Latin America, Africa, and East Asia. The essays collected here analyze the legal sphere as a site of struggle, both in debate and in everyday life, from the level of universal aspirations to particular local practices. The contributors explore the ways in which both lawmakers and ordinary people talk about and actively use the law, thereby telling a story of contested European hegemony, local assertions, and multiple legal borrowings.
Here's the Table of Contents:
Introduction / Stefan B. Kirmse 9

Discussing Legal Reform

A Step for the "Whole Civilized World"? The Debate over the Death Penalty in Russia, 1905-1917 / Benjamin Beuerle 39

A New Legal Order under Discussion: Legal Reform and the Loya Jirga in Afghanistan in the 1920s / Benjamin Buchholz 67

Agents of Knowledge Transfer: Western Debates and Psychiatric Experts in Late Imperial Russia / Lena Gautam 93

Gatekeepers to the Legal System: The Role of Legal Intermediaries

Tinterillos, Indians, and the State: Towards a History of Legal Intermediaries in Post-Independence Peru / Carlos Aguirre 119

The Ties that Bind: Sovereignty and Law in the Late Russian Empire / Jane Burbank 153
When People Go To Court

Law and Courts as Negotiating Tools: Marriage and Divorce in Republican China, 1912-1949 / Xiaoqun Xu 183

Dealing with Crime in Late Tsarist Russia: Muslim Tatars and the Imperial Legal System / Stefan B. Kirmse 209

Entanglements and Interactions within a Plural Legal Order: The Case of the German Colony Cameroon, 1884-1916 / Ulrike Schaper 243

De jure and de facto: The Penal Code of 1871 and Juridical Culture in Mexico City / Manuel de los Reyes García Márkina 265
And here's a link to a very comprehensive and thoughtful review, by Jonathan F. Parent (Department of Political Science, Rockefeller College of Public Affairs & Policy, University at Albany, SUNY).

Siegel and Greenhouse, "Backlash to the Future?"

"Backlash to the Future? From Roe to Perry" is the title of a new article by Reva Siegel (Yale Law School) and Linda Greenhouse (Yale Law School). It is forthcoming in the UCLA Law Review's online companion, Discourse, and is available for download here, at SSRN. Here's the abstract:
Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's sole or even its principal cause.

When change through adjudication or legislation threatens the status quo, it can prompt counter-mobilization and "backlash." We do not doubt that adjudication can prompt backlash. But we do doubt that adjudication is distinctively more likely than legislation to prompt backlash and that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.
Hat tip: bookforum

Thursday, March 21, 2013

Dean Daniel Hamilton!

The William S. Boyd School of Law of the University of Nevada, Las Vegas, has just announced the appointment of Daniel W. Hamilton, now of the University of Illinois's law faculty, as dean.  According to the announcement:
Dean-Elect Hamilton received his Ph.D. in American legal history in 2003 from Harvard University, where he was a resident tutor in history and law at Harvard College. He received his J.D. from George Washington University and his bachelor's degree from Oberlin College. He was a Golieb Fellow in Legal History at New York University School of Law during the 2003-04 academic year.  He teaches property law, legal history, and constitutional law, and he researches and writes primarily on American property ideology and the legal and constitutional issues raised by the Civil War.
(We add that he is the author of The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy During the Civil War, published by the University of Chicago Press.)  A press release is here.  Congratulations to Dan and to UNLV!

Update: over at The Faculty Lounge, Al Brophy observes that "Dan's appointment adds to the number of legal historians who are deans, including Dave Douglas at William and Mary, Greg Mark at DePaul, Robert Post at Yale, Bruce Smith at Illinois, Ray Solomon at Rutgers, and Bill Treanor at Georgetown."

St. George Tucker's Law Reports and Selected Papers, 1782-1825

Just out from the University of North Carolina Press is St. George Tucker's Law Reports and Selected Papers, 1782-1825, in three volumes, edited by Charles F. Hobson, editor of The Papers of John Marshall, is a resident scholar at the William and Mary School of Law.  Price for the set: $250 the set.

The press explains:
Best known for his edition of Blackstone's Commentaries, St. George Tucker (1752-1827), a lawyer and judge in the state and federal courts of Virginia, played a central role in the legal history of post-Revolutionary Virginia and of the new nation. This comprehensive three-volume edition of Tucker's law reports and selected loose papers, edited by Charles F. Hobson, is an unsurpassed archive for studying the "republicanization" of the common law as it unfolded in the commonwealth of Virginia. In addition, Tucker's papers provide an invaluable source for tracking Virginia's efforts to establish a system of state superior courts operating alongside the older county court system dating from the colonial period.

Tucker's reports fill a documentary gap caused by the 1865 fire that destroyed Virginia's higher court records. The editor's general introduction supplies an informative overview of Tucker's life and judicial career. Editorial aids and appendixes include a guide to Tucker's abbreviations, a short-title bibliography, a glossary of selected legal terms, a biographical register of the Virginia bench and bar, and correspondence and documents relating to the rupture between Tucker and Spencer Roane.
Here are the blurbs:

"St. George Tucker belongs with James Kent as one of the most important and influential legal thinkers of the post-Revolutionary era. His reports provide crucial insight into the legal debates shaping major ideological issues such as slavery, crime and punishment, debt regulation, the power between church and state, judicial review, and the common law in the new nation. Through the lens of a deeply divided court, we see these abstract intellectual questions made concrete in legal decisions affecting actual people. This is a real gift."
--Holly Brewer, University of Maryland

"St. George Tucker was a towering figure among lawyers and judges of the early republic. His papers offer a comprehensive picture of law in Virginia across forty years, from the technical minutiae of procedure to broader questions of inheritance, contract, debt, land title, crime, and more, including whether a person was slave or free. This superbly executed edition will be an essential resource for anyone interested in the development of American law in a crucial period of its history."
--Bruce H. Mann, Harvard Law School

March 2013 issue of the Journal of American History

The March 2013 issue of the Journal of American History is out. Subscribers may access full content online. Here are two articles that may be of particular interest:

Patronage and Protest in Kate Brown’s Washington

New laws and constitutional amendments dramatically altered African Americans’ relationship to the federal government after the Civil War. Kate Masur shows that unprecedented opportunities for federal employment opened to African Americans at the same time. Her article follows a remarkable woman named Kate Brown from her work as a restroom attendant in the U.S. Capitol to her protest against discrimination on a local railroad to her marriage and divorce. This history offers a human–scale perspective on African Americans and Republican patronage in the Civil War era and shows how access to government work shaped black life in Washington, D.C., at a pivotal moment. It reveals something of the mechanics of patronage: how African Americans mobilized their connections to prominent whites, and to one another, to create opportunities for advancement. It also allows us to see how public protest was woven into an individual life preoccupied, as well, with making a living, sustaining (and breaking) kinship ties, and creating a safe and satisfying personal existence.

The Moment of Transition: State Officials, the Federal Government, and the Formation of American Immigration Policy

The Immigration Act of 1882 was the first general immigration legislation at the national level with exclusion and deportation clauses. By analyzing the act’s enduring reliance on state officials for its implementation, Hidetaka Hirota, in the essay that won the 2012 Louis Pelzer Memorial Award, demonstrates that the federalization of immigration control was a more gradual and contingent process than historians have assumed. He also argues that the roots of the almost–unlimited official power in determining the excludability and deportability of aliens, which characterized federal immigration control from the late nineteenth century onward, lay in the administration of the 1882 act by state officials in New York and Massachusetts.
Also in this issue:
"American Enlightenments: Continuity and Renewal," by Nathalie Caron and Naomi Wulf

"'Their blood shall not be shed in vain': American Evangelical Missionaries and the Search for God and Country in Post-World War II Asia," by Sarah Miller-Davenport

"The Cold War Romance of Religious Authenticity: Will Herberg, William F. Buckley Jr., and the Rise of the New Right," by K. Healan Gaston 
And of course, the book reviews, which (time permitting) your loyal bloggers will scour for items of interest.

Wednesday, March 20, 2013

Shaping Legal Cultures from Late Antiquity to the Middle Ages

University of Pennsylvania announces the conference Shaping Legal Cultures from Late Antiquity to the Middle Ages: Institutions, Genres, and Theories in Roman, Jewish, Sassanian, Christian, and Islamic Law, to be held  Sunday, April 7, 2013, 9:00 a.m. - 5:30 p.m., in Cohen Hall, Terrace Room, 249 South 36th Street, Philadelphia, Pa 19104.  According to the announcement:
This one-day conference will explore ways in which region affected the "packaging" of legal traditions within disparate cultures that flourished in geographic contiguity between the sixth and the twelfth centuries. Students of late Roman, Sassanian, Byzantine, Jewish, Islamic and Christian canon law will consider how their respective traditions of law were shaped by such extra-legal phenomena as patronage networks, institutions, circumstances of material production, compositional choices, modes of disseminating law and jurisprudential theories. By facilitating awareness of the regionalism of certain formative, extra-legal factors, this cross-cultural collaboration should stimulate new avenues of historical research.
Graduate students from outside the Philadelphia area may be eligible for a modest transportation stipend. Those interested should contact Chrissy Walsh at chwalsh@sas.upenn.edu for further information.

Hat tip: H-Law

Samuels on America's Most Important Piracy Case

Joel H. Samuels, University of South Carolina School of Law, has posted The Full Story of United States v. Smith, America's Most Important Piracy Case, which was published in Penn State Journal of Law and International Affairs 1 (2012): 320-62.  Here is the abstract:
This article explores the seminal United States Supreme Court decision of United States v. Smith (1820). Smith, an early piracy case, has influenced developments in both domestic and international law on piracy, universal jurisdiction, and a range of broader themes. This article is the first to explore the context within which the case arose, as well as the circumstances of the case itself. In addition to the details of the case, the story of the men prosecuted for their cruise aboard the vessel known as the Irresistible in the late spring and early summer of 1819 also offers a window into important issues of the day, including growing federal assertions of power over the states, the roles of Congress and the courts in defining and punishing piracy under the Constitution, theories of punishment, and the power of the press.

More from Quid Pro Books

Yesterday the mail brought another reminder of the value for legal historians of Quid Pro Books, a press created and run by Alan Childress of Tulane Law.  First, it publishes out-of-print classics.  Although the press publishes in all the electronic formats you'd expect, I'll reveal my biases and confess that it is a real pleasure to hold in my hands a paperback copy of Harry N. Scheiber’s The Wilson Administration and Civil Liberties, 1917-1921.  How nice as well that our students can download an electronic edition of Karl N. Llewellyn’s Bramble Bush, with an extensive introduction by Stewart Macaulay pointing out the continued relevance of the book after so much change in legal education since its appearance in 1930.

Second, Quid Pro has published festschriften and other conference volumes.  My recent mailing inlcuded Law and the Quest for Justice, ed. Marjorie S. Zatz, Doris Marie Provine and James P. Walsh, a volume that honors John P. Frank, whose remarkable career took him from a realist legal education at the Wisconsin Law School of Lloyd Garrison and Willard Hurst, to a clerkship with Hugo Black, to an SJD at Yale and a somewhat peripatetic and prolific period in legal education, to the Phoenix bar, where he litigated Miranda, advocated for reforms of the federal judiciary and lawyered for the Arizona Democratic Party.  (See his entry in the YBDAL.)  Contributors to the collection include Charles Ogletree, Jack Greenberg, Anthony Lewis, Geoffrey Stone, Judith Resnik, Janet Napolitano, Lani Guinier, Robert Reich, Linda Greenhouse, and Erwin Chemerinsky.

Finally, Quid Pro Brooks has published useful histories by working lawyers who might not otherwise find a press.  Earlier we noted Andrew Fede’s Roadblocks to Freedom.  Yesterday's package included Herbert James Lewis’s Clearing the Thickets: A History of Antebellum Alabama.

Tuesday, March 19, 2013

Sohoni on Notice and the New Deal

Mila Sohoni, an Acting Assistant Professor at New York University School of Law, has posted Notice and the New Deal, which appears in Duke Law Journal 62 (2013).  Here is the abstract:    
The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas — federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice — which includes the doctrines of vagueness, retroactivity, and the rule of lenity — evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks.

Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court’s notice jurisprudence — Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state.

Like much of the New Deal “settlement,” the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates — and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines.
Hat tip: Legal Theory Blog