Thursday, October 31, 2013

Berkowitz on SSI at the Washington History Seminar

Washington History Seminar’s Historical Perspectives on International and National Affairs series continues with "The Other Welfare: Supplemental Security Income and U.S. Social Policy" by Edward Berkowitz, George Washington University:
Supplemental Security Income, passed in 1972 during an innovative and expansive phase of the American welfare state, marked an effort to do welfare right. But economic and political circumstances, as well as the contingencies of the moment, all combined to turn the program into a source of controversy over such things as whether parents coached their children to act "crazy" in an effort to secure benefits or whether immigrants deserved benefits. As a result, instead of marking a new departure in social policy, the program replicated many of the features of the welfare system it was designed to replace.

Edward Berkowitz, who received his doctorate in history from Northwestern University, is a professor of history, public policy, and public administration at George Washington University. He is the co-author, along with former chief Social Security historian Larry DeWitt, of The Other Welfare: Supplemental Security Income and U.S. Social Policy (Cornell University Press, 2013). Other recent books include a history of the nineteen seventies (Something Happened, 2006) and a history of mass culture in modern America (Mass Appeal, 2010).
The seminar will take place on Monday, November 4, 2013, at 4:00 p.m. at the Woodrow Wilson Center, 6th Floor Moynihan Boardroom, Ronald Reagan Building, Federal Triangle Metro Stop. 
Reservations requested because of limited seating: or 202-450-3209
Photo ID required for admittance to the building.

LPBR reviews Magliocca, Griffin, and more

The Law & Politics Book Review is out with a new batch of reviews. Items of interest include:

  • John R. Vile (Middle Tennessee State University) reviews AMERICAN FOUNDING SON: JOHN BINGHAM AND THE INVENTION OF THE FOURTEENTH AMENDMENT (New York University Press), by Gerard N. Magliocca.
  • Kathie Barrett (University of West Georgia) reviews THE DEFENDANT IN INTERNATIONAL CRIMINAL PROCEEDINGS; BETWEEN LAW AND HISTORIOGRAPHY (Hart Publishing), by Björn Elberling.
  • Kimberley Fletcher (Ohio University) reviews LONG WARS AND THE CONSTITUTION (Harvard University Press), by Stephen M. Griffin.
  • Samuel S. Stanton, Jr. (Grove City College) reviews THE RISE AND FALL OF WAR CRIMES TRIALS, FROM CHARLES I TO BUSH II (Cambridge University Press), by Charles Anthony Smith

Walker on Stop and Frisk in the 1960s

Anders Walker, Saint Louis University School of Law, has posted "To Corral and Control": Stop, Frisk, and the Geography of Freedom, which is forthcoming in the University of Richmond Law Review (May 2014).  Here is the abstract:
This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner-city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national narrative of expanding freedoms even as it contributed to black incarceration.

LHR 31:4 (November 2013)

Here’s the TOC to Law and History Review 31:4 (November 2013).

In this Issue, by Elizabeth Dale

Understanding Curtiss-Wright, Edward A. Purcell

The French Revolution, the Union of Avignon, and the Challenges of National Self-Determination, by Edward James Kolla

The Statute of Westminster, 1931: An Irish Perspective, by Thomas Mohr

A Fine Mixture of Pity and Justice:” The Criminal Justice Response to Infanticide in Ireland, 1922–1949, by Karen M. Brennan

Judicial “Truth” and Historical “Truth”: The Case of the Ardeatine Caves Massacre, by Giorgio Resta and Vincenzo Zeno-Zencovich

Wednesday, October 30, 2013

Tomlins on Animals Ferae Naturae

Christopher L. Tomlins, University of California, Irvine School of Law, has posted Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America, which appears in the University of Toronto Law Journal 63 (2013): 35-52.  Here is the abstract:    
This essay comments on the three substantive articles comprising the University of Toronto Law Journal’s symposium on ferae naturae and the law of property. It argues that the articles collectively represent a reconsideration of the influential thesis developed by Robert Ellickson in Order without Law, that when members of any community resolve disputes arising in the course of some shared activity they are prone to do so in ways that avoid the costs that law imposes on the process of settlement because ‘coordination to mutual advantage without supervision by the state’ works better than order with it. Rather than confirming law’s unimportance, this essay argues, the articles collectively demonstrate the importance of law. The essay recognizes, however, that some of the ways in which the importance of law is demonstrated are distinct from the measures of importance originally considered by Ellickson. Following their lead, the essay considers additional criteria by which we might assess the significance of the law of property in wild animals – not least whether that law has taken the animals themselves into consideration.

Two ABF Fellowships

ABF Doctoral Fellowship Program in Law and Social Science, 2014 –2015

The American Bar Foundation is committed to developing the next generation of scholars in the field of law and social science. The purpose of the fellowships is to encourage original and significant research on law, the legal profession, and legal institutions.

The 20th Annual Forum of Young Legal Historians

[We have the following CFP for "Common Laws," the Twentieth  Annual Forum of Young Legal Historians, which is to convene in Cambridge, April 2-5, 2014.]

2014 will mark not only twenty years of Annual Forums organised by the Association of Young Legal Historians, but also the first time an Annual Forum has been held in a common law jurisdiction. As such, the theme of the XXth Annual Forum—‘common laws’—invites attention both to the common law legal tradition, and also to the recurrent themes of legal commonality, harmonisation and integration that have been a feature of the Association’s Annual Forums over the past two decades.

The common law is above all a system built on the accumulation of case law over time. This provides rich materials for legal historians, whether in the form of contextualised case studies, the identification and critique of ‘leading cases’, or an analysis of changing patterns of case law and litigation across history. Case law is, however, by no means unique to the common law tradition. Judicial decisions play a leading role in mixed systems like Scots law, and even in codified civilian systems large domains of the law have historically been the product of case law rather than legislation; administrative law in France being one notable example. In addition to presentations on the history of the common law itself, the organisers therefore also welcome presentations addressing case law, case studies, and ‘leading cases’ in all legal systems and across all periods of history.

‘Common law’ can, of course, be understood in more than one sense. In particular, neither the United Kingdom nor the University of Cambridge are isolated from the tradition of the ius commune. English common law is, of course, not the only system of law operating within the UK; and Roman civil law is to this day a foundational aspect of the legal curriculum at the University of Cambridge. In particular, the Regius Professorship of Civil Law has since its establishment in 1540 served as a focus for teaching and research in Roman law in Cambridge. The organisers therefore welcome presentations addressing the ius commune and the common inheritance of Roman civil law.

Finally, the forum’s theme invites attention to the idea of commonality across legal systems. Within Europe, the EU has served as an obvious focal point for legal harmonisation, as have wider international organisations such as UNIDROIT, UNCITRAL, or the Hague Conference on Private International Law. At the level of individual states, points of commonality—especially in the field of legislation—can be found in places as diverse as Germany and Japan, or Switzerland and Turkey. Each of these efforts at harmonisation and commonality has a history, and the organisers therefore also invite presentations that address this theme.

Presentations may be given in any major language, but the organisers advise that English-language presentations are likely to receive the widest audience.  Intending presenters are encouraged to send an application consisting of an abstract in either English or French (not more than 350 words), and a brief curriculum vitae to before 31 January 2014. The conference fee will be £70 for presenters, and £85 for others.  Further information about the Association of Young Legal Historians and past Annual Forums can be found at

We look forward to welcoming you to Cambridge next spring.  Organizers: James McComish, Jacob Currie, Astron Douglas, Philip Murray, Joe Sampson, Andreas Televantos

[Hat tip: Valentin Jeutner]

Tuesday, October 29, 2013

Backhouse Receives Governor General's Persons Case Award

Congratulations to legal historian Constance Backhouse, one of five recipients of the 2013 Persons Case Award from the Governor General of Canada. The Canadian Legal History Blog explains:
For our non-Canadian readers, the Persons Case, more formally known as Edwards v. Canada (Attorney General) declared that the term 'person' in the British North America Act (then the Constitution of Canada) included women. Since 1979 the Governor General has made this award yearly to five women who have contributed to the legal and social advancement of Canadian women in honour of the famous five who were the applicants in the case, a constitutional reference to the Supreme Court of Canada (which found against them) and then appellants to the Judicial Committee of the Privy Council, then the final court of appeal for Canada, where they were successful in October of 1929. For those interested, the case, the famous five, and the enunciation of the principle of the 'living tree' by Lord Sankey, whereby the constitution is to be interpreted as a growing document (the opposite of U.S. 'originalism') are the subject of the book The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (Toronto: The Osgoode Society and University of Toronto Press, 2007), by Robert J. Sharpe and Patricia McMahon.

Rosen on the Trademark and the Treaty Power

Zvi S. Rosen’s essay, Treaty Power Justifications for Early Federal Trademark Laws, is available on-line from the University of Pennsylvania’s Journal of Constitutional Law 16 (2013): 1-13.  Here is the abstract:
On November 5, 2013, the Supreme Court will hear oral argument in Bond v. United States, marking the second time the Pennsylvania woman will appear before that tribunal. Bond was charged under 18 U.S.C. § 229(a)(1), a statute designed to implement the 1993 Chemical Weapons Convention. A scholarly debate has since raged about the scope of Congress’s powers to enforce treaties. Can Congress do under the treaty power what it could not otherwise do under Article I’s enumeration of powers?

Professor Rosen examines the federal trademark laws from the mid-nineteenth century. The Supreme Court held that the 1870 Trademark Act was not a valid exercise of either the Commerce Clause or the Intellectual Property Clause, forcing Congressional sponsors of the 1881 Trademark Act to “the idea that the treaty could provide its own constitutional justification under the power to make treaties and the Necessary and Proper Clause.”

This Essay analyzes claims about the federal treaty power made by contemporaneous litigants, newspapers, and politicians in order to draw lessons for the issues at the heart of Bond v. United States.

Reflections on Two Documentary Readers

Charles T. Wood (credit)
The arrival last week of two, maroon-covered volumes of a paperback documentary reader was bound to kindle powerful associations for me.  My gateway into legal history was a “Britcon” course taught by Charles T. Wood at Dartmouth, who assigned readings from two, maroon-covered volumes of a paperback documentary reader, Carl Stephenson and Frederick George Marcham’s Sources of Constitutional History (1937; rev. ed. 1972).  Not until, on a panel at the 2010 meeting of the American Society for Legal History, John Langbein attributed the gradual attrition of American-trained historians English legal history to the passing of Britcon from the undergraduate curriculum did I realize that in chasing into graduate study the excitement I felt in Wood’s course I was acting in accordance with a scholarly discipline’s plan for its own reproduction.

Monday, October 28, 2013

DeLombard on Northup and Douglass

"Why Did '12 Years a Slave' Get the Hollywood Treatment, Not Frederick Douglass's Autobiography?" asks Jeannine Marie DeLombard in an interesting and timely HNN post.

An ASLH Meetup on Environmental Law

David Schorr, Faculty of Law, Tel Aviv University has put out the following call over H-Law:
At the last meeting of the American Society for Environmental History (Toronto, April 2013) a bunch of attendees interested in the legal aspects of environmental history had an informal get-together to talk about our work and what we might possibly do as a group.  I'd like to arrange something similar for the upcoming ASLH meeting in Miami, for those interested in the interaction of law, history, and the environment. If you're interested in getting together, please email me off list and we'll try to find a time that works for as many of us as possible.  If you're not attending the conference but are interested in updates, please let me know, too.
We here at LHB are happy to facilitate other (scholarly) meetups in Miami.  Just let us know.

Charles Tait's Charges to Federal Grand Juries, 1822-1825

[We have the following announcement from our friends at the Bounds Law Library at the University of Alabama.]

The Bounds Law Library at the University of Alabama announces the publication of Traveling the Beaten Trail: Charles Tait's Charges to Federal Grand Juries, 1822-1825, number eight in its series of Occasional Publications. For this work, legal historians David I. Durham and Paul M. Pruitt, Jr. have collaborated with Professor Sally E. Hadden of Western Michigan University. They present us with a collection of grand jury addresses given by Judge Charles Tait (federal district judge of Alabama from 1820 to 1826), transcribed from the extant originals. The authors introduce these texts with biographical and critical essays, providing essential background on both Judge Tait and the antebellum grand jury charge.
This latest Bounds publication illuminates important aspects of the legal history of frontier Alabama and the picaresque "old southwest." It also provides local insights into early national problems. Furthermore, Judge Tait's addresses contain his thoughts upon such timely topics as piracy, human trafficking, and the unifying role of the federal government. Copies of Traveling the Beaten Path are free for the asking; just contact Paul Pruitt at

Sunday, October 27, 2013

Sunday Book Roundup

With 50 years passing since the assassination of President Kennedy, several books about his life are being reviewed. This week, in the LA Times critic David Ulin writes about the books he read in the years after the President's death in a piece titled, "Kennedy assassination books fed an appetite for conspiracy," and the paper also includes brief summaries of several books on Kennedy's life here.

The Washington Post reviews five JFK books: A Cruel and Shocking Act (Henry Holt and Co.) by Philip Shenon (here), End of Days: The Assassination of John F. Kennedy (William Morrow) by James Swanson (here), If Kennedy Lived: An Alternate History (Putnam Adult) by Jeff Greenfield (here), Camelot’s Court: Inside the Kennedy White House (HarperCollins Publishers) by Robert Dallek (here), and The Kennedy Half-Century (Bloomsbury) by Larry J. Sabato (here).

So too does the New York Times take up JFK as the subject of several reviews. Jill Abramson has written a lengthy piece on JFK that spans several books here; and there is a JFK shortlist that includes many of the books already mentioned as well as JFK, Conservative (Houghton Mifflin Harcourt) by Ira Stoll. Lastly, the NY Times also has a JFK Sampler that includes older books like Theodore H. White's The Making of the President 1960 (Atheneum, 1961).

Believe it or not, reviews on other topics were also published this week. One review even talks directly to historians. David Bell tells us "This Is What Happens When Historians Overuse the Idea of the Network," in the Economist. Bell writes,
"Certainly we should not expect from global history the tidiness and narrative drama of a Sherlock Holmes story. (“And so, Watson, the evidence shows indubitably that the culprit is Western imperialism.” “But Holmes, that is what you said last time.”) Yet if it is so difficult to do global history in a satisfying and engaging manner and without doing injustice to the story’s manifold actors, then perhaps historians should not be investing quite so much effort and resources into syntheses such as this volume. Perhaps the “global turn,” for all of its insights and instruction, has hit a point of diminishing returns. The fact that contemporary technology, economics, and politics have made us so acutely aware of global connections in our own day does not mean that past events are always best dealt with by setting them within a similarly vast context. “I could be bounded in a nutshell and count myself a king of infinite space,” said Hamlet. Many of the most interesting historical phenomena—think only of the origins of most major world religions—have started with rapid, incredibly intense changes that took place in very small spaces indeed. Perhaps it is time to turn back to them."
If you're looking for "Legal and Constitutional History from Below—Below the Supreme Court, That Is . . .", H-Net adds a review of a volume edited by Paul Finkelman and Roberta Sue Alexander, Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio (Ohio University Press).

Another H-Net review covers Jill Norgren's Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (New York University Press).

The Nation reviews Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic Books) by Gary May.

Saturday, October 26, 2013

SHAFR Seeks a Website Designer/Developer

Call for Proposals: Website Designer/Developer
Society for Historians of American Foreign Relations
Deadline: November 25, 2013

The Society for Historian of American Foreign Relations (SHAFR) seeks a Website Designer/Developer to enable the organization to have a dynamic online presence for its members and for others interested in foreign relations and international history.

SHAFR promotes excellence in research and teaching in the history of U.S. foreign relations. The organization’s mission is to promote the study, advancement, and dissemination of knowledge about American foreign relations. Our members work and live in over 40 countries and in fields ranging from U.S. history, world history, international relations, area studies, and beyond. They include historians in colleges and universities, government offices, archives and museums, nongovernmental organizations, and secondary schools, as well as graduate students.

The current SHAFR website provides information about the organization and its activities, and facilitates SHAFR activities like conference registration and annual elections. It is also an important resource for members and others interested in foreign relations history, with links to SHAFR publications, to teaching resources, and occasionally to online commentary on current issues in foreign policy. SHAFR also has a Facebook page and is on Twitter.

SHAFR’s goal for a website redesign is create a site that makes SHAFR activities and resources more easily accessible and extensively utilized, and that is a more effective social media presence for the organization and its members.

Weekend Roundup

  • Columbia University’s Center for American Studies recently hosted “Charles Beard at 100," a roundtable in honor of the centennial of Beard’s An Economic Interpretation of the Constitution of the United State. The Junto has posted a recap here.  
  • From Joseph J. Thorndike and the folks at Tax Analysts, a short movie on the centennial of the Sixteenth Amendment.  We loved its opening: "Did you know it's the one hundred year anniversary of the federal income tax?  Neither did I."
  • From the Wellesley Centers for Women "Women = Books" blog: Felicia Kornbluh argues that "the history of AIDS/ HIV is being mottled and shorn of its political meaning." 
  • Welcome to the Blogosphere to SupremeBystander, “government, constitutional, and legal prose for the judiciously curious."
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, October 25, 2013

Mehrotra's "Making the Modern American Fiscal State"

I’m very happy to note the publication of Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929, by Ajay K. Mehrotra, a professor of law and associate dean for research at the Maurer School of Law at Indiana University, Bloomington.  The book appears in the series Cambridge Historical Studies in American Law and Society, which is edited by Christopher Tomlins. 

Saith the press:
At the turn of the twentieth century, the US system of public finance underwent a dramatic transformation. The late nineteenth-century regime of indirect, hidden, partisan, and regressive taxes was eclipsed in the early twentieth century by a direct, transparent, professionally administered, and progressive tax system. In Making the American Fiscal State, Ajay K. Mehrotra uncovers the contested roots and paradoxical consequences of this fundamental shift in American tax law and policy. He argues that the move toward a regime of direct and graduated taxation marked the emergence of a new fiscal polity - a new form of statecraft that was guided not simply by the functional need for greater revenue but by broader social concerns about economic justice, civic identity, bureaucratic capacity, and public power. Between the end of Reconstruction and the onset of the Great Depression, the intellectual, legal, and administrative foundations of the modern fiscal state first took shape. This book explains how and why this new fiscal polity came to be.
Here’s the TOC:


Part I. The Old Fiscal Order:
1. The growing social antagonism: partisan taxation and the early resistance to fiscal reform
2. The gradual demise: modern forces, new concepts, and economic crisis

Part II. The Rise of the Modern Fiscal State:
3. The response to Pollock: navigating an intellectual middle ground
4. The factories of fiscal innovation: institutional reform at the state and local level
5. Corporate capitalism and constitutional change: the legal foundations of the modern fiscal state

Part III. Consolidating the New Fiscal Order:
6. Lawyers, guns, and public monies: the US treasury, World War I, and the administration of the modern fiscal state
7. The paradox of retrenchment: postwar Republican ascendancy and the resiliency of the modern fiscal state


Reviews by Brian Balogh, Lawrence M. Friedman, Louise Campbell, Richard Bensel, and Michael Bernstein after the jump.

Pope on U.S. v. Cruikshank

James Gray Pope, Rutgers Law School, Newark, has posted Snubbed Landmark: How United States v. Cruikshank Truncated the Reconstruction Amendments and Racialized Class Politics in America, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review.  Here is the abstract:
United States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the privileges or immunities clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washington v. Davis, announced that the Fourteenth Amendment’s equal protection clause and the Fifteenth Amendment’s ban on racial exclusions from voting protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boerne v. Flores, first excepted the Fourteenth Amendment from the general principle that Congress enjoys discretion to select the means of implementing its constitutional powers. Historically, if the argument of this article holds true, Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s. The Circuit Court opinion of Justice Joseph Bradley unleashed the second and decisive phase of Reconstruction-era terrorism, while the ruling of the full Court ensured its successful culmination in the “redemption” of the black-majority states.

Despite its enormous jurisprudential and historical importance, however, Cruikshank has been omitted from the mainstream narrative and pedagogical canon of constitutional law. The results have been obfuscation and distortion. Unlike the Civil Rights Cases, Slaughter-House, Davis, and City of Boerne – from which students learn the principles actually announced in CruikshankCruikshank lays bare the true origin of those principles in affirmative judicial intervention immunizing overtly racist terrorism against effective law enforcement. By contrast, Plessy v. Ferguson, the legal profession’s chosen focus for confession and atonement, merely let stand the legal product of a white supremacist state government that owed its existence to Cruikshank. With Cruikshank safely off-stage, American law students are treated to a happy tale of progress from Plessy to Brown starring the Supreme Court as the primary protector of civil rights – a role that, ironically, the Court carved out for itself by truncating Congress’s civil rights powers in C

CFP: The Michigan Journal of Race & Law at Twenty

We have the following call for papers from the Michigan Journal of Race & Law:
"The Highest Tribute": The Michigan Journal of Race & Law at Twenty
"In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute." Writing in 1972 in Furman v. Georgia, Thurgood Marshall set the bar for students and scholars of race and law. Twenty years ago, students at Michigan Law embraced Marshall's challenge and from their efforts the Michigan Journal of Race & Law was born. Since then, the Journal has been a platform for the exploration of issues relating to race, law, and civil rights. The Journal is recognized for publishing cutting edge scholarship enabling it to examine many subjects in-depth and with great effect, including critical race theory, law and economics, immigration, education, criminal justice, and beyond. The Journal takes pride in the many perspectives it embraces, publishing the views of scholars, students, practitioners, and social scientists. Since the inaugural issue, the Journal has become nationally recognized as one of the leading civil rights journals in the country.

The Michigan Journal of Race & Law, in conjunction with the Michigan Law Program in Race, Law & History, will host a day-long event to mark the Journal's first twenty years, looking back at the history of the Journal and its leadership in the field. We also seek to launch the Journal's next twenty years, highlighting new directions in scholarship at the intersection of race and law. Our keynote speaker will be Mary Frances Berry (JD '70, PhD '66), the Geraldine R. Segal Professor of American Social Thought and Professor of History at the University of Pennsylvania. We seek paper proposals that reflect the Journal's broad mission. We especially encourage the submissions of new (yet-to-be- published) work and submissions by alumni of the Journal.

Please submit a 300 word abstract and short (maximum 3 page) C.V. no later than December 15, 2013. We will accept electronic submissions via e-mail at Please include "MJRL Symposium Submission" in the subject line of your e-mail. The final program selections will be announced January 15, 2014. Final papers of no more than 9,000 words are due by August 1, 2014. All papers will be pre-circulated to conference participants. Support for presenters' travel and lodging expenses will be provided. Special note for Michigan Law alumni, the conference date coincides with the reunion weekend for the classes of 1989, 1994, 1999, 2004 and 2009.

When: Friday, September 19, 2014
Where: University of Michigan Law School, Ann Arbor, Michigan
For more information, please e-mail

Thursday, October 24, 2013

Parrillo's "Against the Profit Motive"

Nicholas R. Parrillo, Yale Law School, has just published Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, with Yale University Press:
In America today, a public official’s lawful income consists of a salary. But until a century ago, the law frequently provided for officials to make money on a profit-seeking basis. Prosecutors won a fee for each defendant convicted. Tax collectors received a percentage of each evasion uncovered. Naval officers took a reward for each ship sunk. Numerous other officers were likewise paid for “performance.” This book is the first to document the American government’s for-profit past, to discover how profit-seeking defined officialdom’s  relationship to the citizenry, and to explain how lawmakers—by ultimately banishing the profit motive in favor of the salary—transformed that relationship forever.
The TOC is available from the YUP’s website, as is the Introduction.

New Release: Iacobelli, "Death or Deliverance: Canadian Courts Martial in the Great War"

The University of British Columbia Press has just released Death or Deliverance: Canadian Courts Martial in the Great War, by Teresa Iacobelli (SSHRC postdoctoral fellow). A description from the Press:

Soldiers found guilty of desertion or cowardice during the Great War faced death by firing squad. In this revealing look at military law in the Canadian Expeditionary Force, historian Teresa Iacobelli examines the cases of 25 Canadian soldiers who were executed by their own military as well as the untold stories of the 197 men who were sentenced to death but spared.

Death or Deliverance -- the first book to consider commuted sentences alongside cases that ended in tragic executions -- offers a nuanced account of military law in the Great War. Novels, histories, movies, and television series often depict courts martial as brutal and inflexible, and social memories of this system of frontline justice have inspired modern movements to seek pardons for soldiers executed on the battlefield. Beyond well-known stories of unyielding and callous generals, however, lies another story, one of a disciplinary system capable of thoughtful review and compassion for the individual soldier.

Published to coincide with the centennial anniversary of the outbreak of the First World War, this book reconsiders an important and unexamined chapter in the history of both a war and a nation.

Aust on a Human Rights Pioneer

Helmut Aust, Humboldt University of Berlin, has posted From Diplomat to Academic Activist: André Mandelstam and the History of Human Rights, which is forthcoming in European Journal of International Law 25 (2014).  Here is the abstract:
Today mostly forgotten, André Mandelstam (1869-1949) was a pioneer of the human rights movement in the interwar period. Originally a diplomat in the service of the Russian Empire, he went into exile after the Bolshevik revolution and became an important member of the internationalist scene in Paris. An active contributor to the various professional associations and institutions of the time, Mandelstam came to draft the first ever international human rights declaration which was pronounced by the Institut de droit international at its New York session in 1929. His work on human rights protection was influenced by his experiences as diplomat in Constantinople where, in the years preceding the First World War, he had witnessed the growing tensions over the treatment of the Armenian population of the Ottoman Empire. This article traces Mandelstam’s impact on the development of international human rights law and uncovers the driving forces for his work: the end of the Russian and Ottoman empires as well as his career change from diplomat to academic activist. The contribution invites us to reconsider traditional narratives of the origins of international human rights protection as well as to rethink the imperial(ist) influences upon this development.

Wednesday, October 23, 2013

CIA, NSA and "the Family Jewels"

On Monday, October 28, 2013, at 4:00 p.m. the Washington History Seminar on Historical Perspectives on International and National Affairs convenes to hear The Family Jewels Then and Now, by John Prados of the National Security Archive and George Washington University.
The famous 1970s investigations of the Central Intelligence Agency (CIA) conducted by the Church Committee and others followed leaks of information from the intelligence agencies revealing activities that were illegal or abusive under the CIA's charter. The CIA secretly compiled a document known as "The Family Jewels" detailing the abuses. This season of inquiry resulted in the intelligence oversight system that exists today. Now a fresh set of leaks confronts Americans, revealing widespread eavesdropping by the National Security Agency (NSA). What is the proper response to these revelations?

John Prados is a senior fellow of the National Security Archive. He leads the Archive's CIA project, which has recently released a collection of materials documenting agency covert operations. Prados holds a PhD in Political Science (International Relations) from Columbia University and is the author of more than twenty books, including The Family Jewels: The CIA, Secrecy, and Presidential Power (University of Texas Press, 2013).
The session will also include a Report from the Field by Thomas S. Blanton of the  National Security Archive.  It will take place at the Woodrow Wilson Center, 6th Floor Moynihan Boardroom, Ronald Reagan Building, Federal Triangle Metro Stop, Washington, DC.  Reservations requested because of limited seating: or 202-450-3209.  A photo ID is required for admittance to the building.

McKenzie on Helpless Groups (in Bankruptcy and Beyond)

Troy A. McKenzie, New York University School of Law, has posted “Helpless” Groups, which is forthcoming in the Fordham Law Review 81 (2013).  Here is the abstract:
William O. Douclas (LC)
This Essay confronts the idea of the “helpless” group — that is, the group comprising individuals who are thought to be incapable of protecting their own interests. That idea plays an important role in the history of the modern class action, which has been justified as a device providing redress for “small claims held by small people.” The rhetoric of helplessness did not begin with the class action. Instead, the concern about helpless individuals corralled into a group and preyed upon by their adversaries (and their own lawyers) originated in the world of business bankruptcy before it made its way to the world of the class action. The Essay traces the history of the helpless group in business bankruptcy cases and describes the influence of that history on the development of the modern class action. Bankruptcy, however, has shifted away from the perception that claimants are helpless to protect themselves in the process — a shift that explains the creation of committees and other forms of group representation in modern Chapter 11 practice. The Essay considers whether similar forms of group representation may serve a role in aggregate litigation outside the class action.

Bignami on the Legal Foundations of the European Constitutional Order

Francesca Bignami, George Washington University Law School, has posted Rethinking the Legal Foundations of the European Constitutional Order: The Lessons of the New Historical Research, which is forthcoming in the American University International Law Review 28 (2013): 1311.  Here is the abstract:    
This essay examines the implications of new historical research on the origins of EU law for legal theory. Based on a review of the recent work of Morten Rasmussen, Bill Davies, Anne Boerger-de Smedt, Karin van Leeuwen, and Alexandre Bernier, the essay demonstrates how this historical research improves our understanding of two important themes in comparative law — comparative legal traditions and legal transplants. By examining the legal actors in different jurisdictions responsible for building an area of public law — the economic law of the fledgling European Communities — the new historical research contributes to the legal traditions literature on legal elites, which has traditionally focused entirely on private law. Historical research on the founding treaties and early litigation before the Court of Justice also contributes to the comparative law theory of transplants by illustrating how and why domestic law was transplanted into the relatively understudied context of supranational law. In this essay, however, I take issue with the claim that the recent historical research undermines the conceptualization of the European legal order, today, as a constitutional order. If constitutionalization is defined as the routine application and enforcement of EU law, then there is considerable evidence that the current legal order approximates more closely a federal legal system than public international law. Moreover, from a theoretical perspective, historical research demonstrating that the origins of EU law were more contested and contingent than originally believed does not in itself provide sufficient grounds for inferring that the current status of the European legal order is uncertain. As shown by a large body of social science research on path dependence, many resilient institutional systems have been put on self-reinforcing paths by contingent events and highly contested beginnings.
Hat tip: Legal Theory Blog

Yet Another Thing to Remember When Reading a Holmes Opinion

Edward D. White (LC)
During one of Thomas Corcoran’s evening visits with the then-retired justice, Oliver Wendell Holmes volunteered that the only other member of the Brethren who really understood his job was Edward Douglass White.  Corcoran protested that he had read many of  White’s opinions, including The Pipeline Cases, 234 U.S. 548 (1914), and that all he could ever make out his prolix prose was whether the justice voted to affirm or reverse.  Just so, Holmes replied.  He and White had fought on opposite sides of the Civil War, and both believed that the Court should never again throw its support to a faction that might produce another one.  “I wrote so short you couldn’t understand it," Holmes said, in Corcoran's recollection, "and White wrote so long that you couldn’t understand it.  All we decided was the immediate point.”

[Other things to remember when reading a Holmes opinion are here and here.]

Tuesday, October 22, 2013

UNC-Charlotte Seeks Professor of Social Justice, Human Rights, and Law

Via H-Law, we have the following job posting:
The Department of Africana Studies at the University of North Carolina at Charlotte is seeking candidates for a tenure-ladder position at the Associate or Full Professor level in the area of social justice, human rights, and the law.  The appointment will begin in August 2014.
Candidates with scholarly expertise and teaching interests in the legal frameworks of race, civil rights, gender, and cultural identity in the US, or in comparative and transnational settings are particularly encouraged to apply.  Interested applicants are required to hold Ph.D. degree in any relevant field in the humanities or the social sciences.  Applicants must demonstrate an excellent record of advanced scholarship and teaching, as well as a strong trajectory for institutional leadership.  Applicants must also demonstrate commitment to promote diversity and community engagement as a value in the department and College of Liberal Arts and Sciences.  A Juris Doctor (JD) degree or comparable experience/credentials in legal studies is desirable but not required.
Follow the link for more information.

Tani's Jotwell Review of Dauber's "Sympathetic State"

My LHB coblogger Karen Tani has posted on Jotwell a review of Michele Landis Dauber's The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (University of Chicago Press, 2012). It commences:
The inner city deserves a disaster relief plan,” wrote Reverend Jesse Jackson, on the eve of Detroit’s bankruptcy filing and in the wake of Hurricane Sandy. The storm-ravaged coastal communities “all deserve[d] aid,” Jackson emphasized, but in cities around the country a “disaster” was unfolding that was “equally devastating, equally beyond anyone’s fault, and yet essentially ignored at the national level.”1 Readers may disagree about the merits of the analogy or the wisdom of Jackson’s proposal, but the structure of the argument should surprise no one—at least not after reading Michele Landis Dauber’s important new book, The Sympathetic State.

Henry Friendly: A Book Panel at the City Bar

The City Bar of New York held a panel on Thursday, October 3, 2013, on Henry Friendly: Greatest Judge of His Era, by David M. Dorsen, which may now be streamed, here.  The other panelists were the Honorable Pierre N. Leval, Senior Circuit Judge, U.S. Court of Appeals for the Second Circuit (and a Friendly clerk); the Honorable Martin Glenn, U.S. Bankruptcy Judge, Southern District of New York (and a Friendly clerk); Louis A. Craco, Willkie, Farr & Gallagher; and Frederick T. Davis, Debevoise & Plimpton (and a Friendly clerk and the recorder of the judge’s oral history).  Ira M. Feinberg, Hogan Lovells (and a Friendly clerk) moderated.  We notice an earlier panel, at GW Law, here.

Hat tip: John Q. Barrett

Litchfield Law School Sources

Among the recent activities of the William Nelson Cromwell Foundation is a  project to locate and facilitate the use of Litchfield Law School student notebooks and related sources.  The project now has a website, Litchfield Law School Sources, at the Yale Law School Library’s Document Collection Center.  The site explains:
Tapping Reeve, 1744-1823 (Credit)
This resource brings together text, images, interpretive material and bibliography about Litchfield Law School and the law notebooks kept by its students.  During the school’s years of operation, 1774 to 1833, nearly 1,000 young men traveled to Litchfield to study with Tapping Reeve, the founder, and James Gould, his assistant and sole proprietor after Reeve’s death. More than 270 notebooks have survived, representing the efforts of 90 students as they recorded law lectures delivered by their teachers and copied charts and essays on particular points of  law. At a time when the usual method of legal training in this country was an apprenticeship with a solo practitioner, these notebooks are evidence of the beginning of professional legal education, based on a comprehensive curriculum which relied heavily on the content and structure of  William Blackstone’s Commentaries on the Laws of England. These manuscript notes are housed in 36 academic law libraries, historical societies, and state repositories, concentrated in New England, but also found in New Jersey, Maryland, North Carolina, Georgia, Louisiana, Iowa, Ohio and Michigan. Gathering, describing and scanning these notebooks in a single location enables further study without additional travel. This website is a portal for research, description, and comparison of those volumes which have been digitally scanned.  Readers can also consult the Litchfield Historical Society website, where the Litchfield Ledger provides biographical information and a list of students both at the law school and at Miss Pierce’s Female Academy in Litchfield, where many law students met their future wives.

Monday, October 21, 2013

Konefsky and Sullivan on Legal Education Now

Alfred S. Konefsky, SUNY Buffalo Law School, and Barry Sullivan, Loyola University Chicago School of Law, have posted In this, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust, which is forthcoming in the Buffalo Law Review.  Here is the abstract:
This essay seeks to situate the challenges facing legal education within the broader context of professional culture—a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.

In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.

Belt Wins American Studies Award

Rabia Belt, a doctoral candidate in the University of Michigan’s Department of American Culture and a Research Academic Fellow at the Georgetown University Law Center has won the American Studies Association’s Gene Wise-Warren Susman Prize, for “the best paper to be presented by a graduate student at the annual meeting” of the ASA.  Her paper is entitled “What Does Citizenship Mean for People with Mental Disabilities?”

A Conference on the Great Society

[Via Legal Scholarship Blog, we have the following call for papers.]

The University of Baltimore School of Law hosts the 19th Annual Mid-Atlantic People of Color Legal Scholarship Conference (MAPOC) 2014, "President Lyndon B. Johnson’s Great Society and Beyond: The Historical and Contemporary Implications of Progressive Action and Human Fulfillment Honoring and Critiquing the 50th Anniversary of Johnson’s Vision," January 23-25, 2014.

In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society. As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . . The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.” At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society.

As part of the annual conference, the MAPOC Planning Committee provides scholars with an opportunity to present works-in-progress (WIPs) and receive feedback from a designated moderator and other conference attendees. We accept various types of proposals for WIP presentations, such as draft articles, article outlines, and article ideas. WIPs can cover any subject matter that is publishable in a law journal.  The submission deadline for WIP abstracts is Saturday, November 30, 2013.  If you would like to present a WIP, please send your abstract to Rosana Chavez at  If you have any questions about the WIPs abstract submission process, please contact Cris Houston at

MAPOC 2014 Planning Committee:
Reginald Leamon Robinson, Howard University, Chair
Odeana Neal, University of Baltimore, Site Chair
Cris Houston, University of the District of Columbia, Works-in-Progress Chair
dré pond cummings, Indiana Tech University
Paul Finkelman, Albany Law School

New from Quid Pro Books: Northup and Story

Our friends at Quid Pro Books have drawn our attention to the reprinting of two quite notable books.  The first is Solomon Northup’s Twelve Years a Slave, in a very readable font and with such images “as the manifest of slaves from the ship Orleans that carried Northup to New Orleans, and the plantation house Northup built.”  Writes the press of the book:
The classic and compelling narrative of the kidnapping, slavery, and freedom of a free man of color wrested to rural Louisiana. Lured to the nation’s capital by the prospect of work, Solomon Northup, a free man born in New York, is kidnapped and sold into slavery. He spends the next twelve years in bondage, primarily on a plantation in Louisiana, along the Red River. Solomon was a witness to the inhumanity of the institution of slavery, the abuses suffered at the hands of cruel masters, and working conditions and the daily lives of his fellow slaves.

Throughout his enslavement, Solomon never reveals his true identity as a free man, kept secret for fear of brutal physical consequences and the possibility of being traded to a plantation further away from society. Eventually enlisting the aid of a white man from Canada employed on the plantation, Solomon strives to realize his dream of returning to Saratoga, New York, to his wife and now-grown children.

First published in 1853, Twelve Years a Slave is a stark description of that “peculiar institution” that drove the southern economy and bitterly divided Americans. Solomon Northup’s narrative is perhaps one of the most important–and compelling–first-hand accounts of slavery that exists. The new edition features additional interesting and rare images relating to Solomon Northup, such as the actual “manifest of slaves” from the ship that brought him in chains to New Orleans. The paperback uses clearer, more legible formatting and font than do typical reproductions of this book, and the eBooks include the additional images and active Contents, linked notes, and proper digital presentation–also rare among the usual eBook editions of this work.
The second book is a one-volume abridgment of Joseph Story’s Commentaries on the Constitution of the United States (1833), with an introduction by Penn Law’s Kermit Roosevelt III:
Justice Joseph Story’s famous and influential review of the origins, influences, and early interpretations of the Constitution is now presented in the author’s own 1833 Abridged Edition—considered the most useful and readable version of this important work, written by the Supreme Court’s youngest member. No other ebook version offers the accessible abridged form, and in proper digital format no less. The new hardcover and paperback use modern, legible font. Plus in print or digital, this edition adds an extensive 2013 introduction by Kermit Roosevelt III.

One of the United States’ most influential legal scholars and jurists wrote his landmark treatise before the Civil War, describing federalism, states’ history, freedoms, and constitutional structure. He abridged it into this usable book. Adding a new and informative Foreword by constitutional scholar Kermit Roosevelt III of the University of Pennsylvania Law School, the quality Quid Pro edition features active Contents, proper formatting, and embedded pagination from the original, for continuity of referencing and citation. Professor Roosevelt catalogs many instances in which the current Court has relied on this book to decide issues of gun rights, federalism, and privacy. In addition, he provides a fascinating biographical summary of Story and describes the origins of this monumental work, as well as the sway it has had on legal history since 1833.

Issues and Readings on the Recent History of the Federal Judiciary

[Recently, Edward A. Purcell, Jr., the Joseph Solomon Distinguished Professor of Law at the New York Law School, had occasion to comment on the issues that have been particularly significant in the recent history of the federal judiciary and suggest some readings thereon.  I thought his remarks deserve a wider audience; at my suggestion and with his kind permission they appear here.  I should note that among Professor Purcell’s many publications are Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (Yale University Press, 2000); Litigation & Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (Oxford University Press, 1992); “Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts.” 24 Law & Social Inquiry 679–750 (1999); and The Crisis of Democratic Theory: Scientific Naturalism & the Problem of Value (University Press of Kentucky, 1973).]

In my view the most important developments relating to “caseloads, court administration, and judicial nominations” in the federal courts over the past forty years or so are social, political, and ideological.

This is not, of course, to say that such “real world” factors as rising caseloads, changing legal issues and social conditions, and the increasingly important impact of a globalized economy have not created many significant institutional and technical problems for the federal courts, for they surely have.  Such developments as case management, control of discovery, continued expansion of non-Article III courts, use of alternate dispute resolution forms, etc. are of great importance.  However, the ways in which those developments have been conceived and addressed are ultimately reflective of broader political, social, and ideological pressures.  The history of the federal courts and the developing “law” of the federal courts has always been a history of American politics and governance writ small.  Although political and ideological pressures changed in their resonance, shifted in their focus, and sharpened or moderated as the nation’s animating conflicts changed, the history of the federal courts remained throughout a key and often critical subcategory of the general history of American political and intellectual history.

In my view, the impact of politics and a massive shift in the nature, popularity, and salience of ideological assumptions are central factors that have shaped the ways that the federal courts and their law have been remolded to meet “real world” challenges over the past forty years or so.  One could easily take as one’s text a statement that would, by now, seem irrefutable.  “[I]deology influences judicial decisions at all levels of the federal judiciary.”  Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (2013), 385.

Thus, for me, the organizing principle for efforts to assess the history of the federal courts over the past decades should not focus on technical, docket, or general institutional issues but rather on the political context that has shaped the ways in which those technical, docket, and general institutional issues were conceived, interpreted, and addressed (or not).

Enough generalities.  I think that some of the most relevant issues and sources for such a history would include the following.

On the “conservative” ascendency and relevant changes in the Republican Party over the past half century:  Steven M. Teles, The Rise of the Conservative Legal Movement (2008); Donald T. Critchlow, The Conservative Ascendancy:  How the GOP Right Made Political History (2007); Joseph Crespino, Strom Thurmond’s America (2012); Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (2012); Geoffrey Kabaservice, Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party from Eisenhower to the Tea Party (2012); Joseph Crespino, In Search of Another Country (2009); Robert O. Self, American Babylon (2005).

On changes in the appointment process, Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments (2005); Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process (2005); Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (rev. ed. 1999); James F. Simon, In His Own Image: The Supreme Court in Richard Nixon’s America (1973); Lee Epstein, Jeffrey A. Segal & Chad Westerland, “The Increasing Importance of Ideology in the Nomination and Confirmation of Supreme Court Justices,” 56 Drake L. Rev. 609 (2008); Lee Epstein, Jeffrey A. Segal, Nancy Staudt, and Rene Lindstadt, “Symposium:  Empirical Measures of Judicial Performance: The Role of Qualifications in the Confirmation of Nominees to the U.S. Supreme Court,” 32 Fla. St. U. L. Rev. 1145 (2005).

On the contemporary Supreme Court’s sympathy for business, William  Haltom  & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis (2004); Sheryl Gay Stolberg, “Pugnacious Builder of the Business Lobby,” New York Times, June 2, 2013, Sec. Bu 1; Theodore Eisenberg, “The U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business,” 6 J. Empirical Legal Stud. 969 (2009).

On the impact of wealth inequality on governmental policy, Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (2008); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer–And Turned Its Back on the Middle Class (2010); Jacob S. Hacker, The Great Risk Shift: The New Economic Insecurity and the Decline of the American Dream (2008).  For the disproportionate political influence of wealth and its success in securing favorable public policies, see Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012); Benjamin I. Page, Larry M. Bartels, and Jason Seawright, “Democracy and the Policy Preferences of Wealthy Americans,” 11 Perspectives on Politics 51 (2013).

I would also note a symposium to be held at the University of Pennsylvania Law School next month commemorating the seventy-fifth anniversary of the Federal Rules of Civil Procedure.  There will be a number papers, which will be published in the University of Pennsylvania Law Review sometime next spring, addressing precisely the issue of what has happened in, and happened to, the federal courts since 1938.  Several (one, I must confess, by me) that will focus on changes over the past 30 years or so and the role of politics and ideology in shaping those changes.  Some of these papers will attempt to merge the technical with the political and social in ways that illuminate the law and history of the federal courts.

Sunday, October 20, 2013

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

We have previously noted Professor Gordon S. Wood’s visit to Ohio Northern last March.  Now ONU’s Scott D. Gerber has posted his debate with Professor Wood on The Supreme Court and the Uses of History, which also appears in the Ohio North University Law Review 39 (2013).

Sunday Book Roundup

Readers this week can find a review of Lincoln’s Citadel: The Civil War in Washington, D.C. (Norton) by Kenneth J. Winkle in the Washington Post. "A prize-winning Lincoln biographer (“The Young Eagle”), Winkle is also a scholar of quantitative history — call it a “big data” approach to the past — who clearly delights in raw numbers and their telling effect. “Lincoln’s Citadel” is a treasure trove of empirical specificity."

The New York Times reviews The Great Escape: Health, Wealth, and the Origins of Inequality (Princeton University Press) by Angus Deaton. 

The NYT also takes a look at a few books--including Robert M. Fogelson's The Great Rent Wars: New York, 1917-1929 (Yale University Press)--in a piece titled, "Landlord vs. Tenant: When It All Began."

The LA Review of Books has a thoughtful essay about Karen E. Fields and Barbara J. Fields's Racecraft: The Soul of Inequality in American Life (Verso).

"Serrano, a staff writer in the Los Angeles Times' Washington, D.C., bureau, starts with two main characters: former Union soldier Albert Woolson and onetime rebel soldier Walter Washington Williams. Each man forms a compelling story of becoming caught up in the nation's bloodiest war and its aftermath. By the late 1950s, as the United States neared the centennial of the start of the war, each was feted as the oldest living veteran of his respective army. 
But one was a fraud, a scam that would have gone undetected had he not outlived all of his fellow Confederate veterans. 
There's not a lot of suspense here. It becomes clear pretty quickly which was the real deal and which a fraud. But suspense isn't the point. Serrano uses the men as a window into the long-playing reverberations of the Civil War, from the reunions to the reenactments to the wounds covered with, in retrospect, tissue paper."
And H-Net adds reviews of three edited volumes of interest, including Knowledge and Power: Essays on Politics, Culture, and War (Society for the Promotion of Science and Scholarship) edited by Bruce A. Thompson, Carolyn Halladay, and Donald Abenheim (here);  Joel Isaac and Duncan Bell's Uncertain Empire: American History and the Idea of the Cold War (Oxford University Press) (here); as well as Willibald Steinmetz, Ingrid Gilcher-Holtey, and Heinz-Gerhard Haupt's Writing Political History Today (Campus Verlag) (here).

Friday, October 18, 2013

The Selected Letters of Learned Hand

Recently published by the Oxford University Press is Reason and Imagination: The Selected Correspondence of Learned Hand, edited by Constance Jordan, with a preface by the late Ronald Dworkin.  Here is the press’s description:
Judge Learned Hand is an icon of American Law. Though he was never nominated to our country's highest court, Hand is nevertheless more frequently quoted by legal scholars and in Supreme Court decisions than any other lower court judge in our history. He was the model for all judges who followed him, setting the standard for the bench with a matchless combination of legal brilliance and vast cultural sophistication.

Hand was also renowned as a superb writer. Now, in Reason and Imagination, Constance Jordan offers a unique sampling of the correspondence between Hand and a stellar array of intellectual and legal giants, including Justice Oliver Wendell Holmes, Theodore Roosevelt, Walter Lippmann, Felix Frankfurter, Bernard Berenson, and many other prominent political and philosophical thinkers. The letters--many of which have never been published before--cover almost half a century, often taking the form of brief essays on current events, usually seen through the prism of their historical moment. They reflect Hand's engagement with the issues of the day, ranging from the aftermath of World War I and the League of Nations, the effects of the Depression in the United States, the rise of fascism and the outbreak World War II, McCarthyism, and the Supreme Court's decisions on segregation, among many other topics. Equally important, the letters showcase decades of penetrating and original thought on the major themes of American jurisprudence, particularly key interpretations of the First, Fifth, and Fourteenth Amendments, and will thus be invaluable to those interested in legal issues.

Most of these letters have never before been published, making this collection a priceless [sic; it costs $39.95]  window into the mind and life of one of the giants of American law.
Here is the TOC:

Preface, Ronald Dworkin

Introduction, Constance Jordan

Prologue: A Better Social Philosophy, 1897-1908
Part I: The United States and Europe, 1909-1920
Part II: In for Democracy, 1921-1931
Part III: World War and World Power, 1932-1946
Part IV: The Bill of Rights, 1947-1958
Epilogue: "Pagan and Puritan," 1959-1961

Symposium on Tomlins, "The State and the Unions"

Labor History recently published a symposium in honor of the twenty-fifth anniversary of The State and the Unions, by Christopher L. Tomlins (UC Irvine). The articles are available only to subscribers, but the introduction, by Craig Phelan, is open access, as are the abstracts.

Here, for example, is the abstract for the contribution by Jean Christian Vinel (Université Paris Diderot) (whose book, The Employee, we mentioned earlier this week):
The thrust of this article is to review the evolution of the historiography of American labor law since the publication of Christopher Tomlins' widely celebrated The State and the Unions (1985). More than an isolated effort, Tomlins' critique of New Deal labor law was part of a broader analytical paradigm which should be called the ‘critical synthesis’. Dominating the field until the mid-1990s, the critical synthesis owed a part of its success to the crisis of labor history. Then, it gradually receded as labor unions continued their steep decline and historians of labor rekindled their faith in American liberalism and the Democratic Party. In analyzing the rise and fall of the critical synthesis, the article thus lays bare all the factors – scientific, social, and political – that contribute to the making and unmaking of analytical paradigms in the political history of labor. Finally, in doing so, the article places the debate on the Employee Free Choice Act in historical perspective.
Here is the abstract for Tomlins's response, titled "The State, the Unions, and the Critical Synthesis in Labor Law History: A 25-Year Retrospect":
This article responds to Jean-Christian Vinel’s assessment of the ‘critical synthesis’ whose proponents created labor law history as a new and flourishing field of scholarship in the decade after 1978. Vinel accords my book, The State and the Unions (1985) a key role in the development of this new field. Here, I situate my book in relation to the critical synthesis, and assess the capacity of critical legal scholarship to address the current parlous state of the U.S. labor movement. I look to current labor historians to engage with and build on the work that the labor law historians undertook.

Thursday, October 17, 2013

Kent on The New Originalism and the Foreign Affairs Constitution

Andrew Kent, Fordham University School of Law, has posted The New Originalism and the Foreign Affairs Constitution, which is forthcoming in volume 82 of the Fordham Law Review.  Here is the abstract:    
This symposium essay addresses how the new originalism – focused on the objective semantic meaning that the Constitution’s text would have had to hypothetical members of the adopting generation – grapples with particular interpretive issues raised in the constitutional foreign affairs area. I first suggest that new originalism struggles with background norms of the common law or the law of nations which were understood by some members of the Founding generation to implicitly qualify or restrict parts of the constitutional text. This issue is omnipresent in foreign affairs law because courts, executive officials, and other interpreters must decide whether the boundaries of the Constitution’s broadly written protections for life, liberty, and property extend to domains such as wartime or extraterritorial activity by the U.S. government, or to persons beyond the paradigm case of U.S. citizens within the United States. The Constitution’s meaning is significantly altered depending on whether unwritten general law is allowed to undercut textually broad rights. Second, I suggest that the exacting textualism practiced by many new originalists might only imperfectly understand certain aspects of the foreign affairs Constitution. This is because some of it was drafted hastily and poorly, certain important topics were not addressed at all, and some Founding-era interpreters understood the foreign affairs portions of the Constitution in a holistic manner focused on purpose and structure, instead of parsing text in the manner of new originalism. This potentially large gap between results reached by new originalism and the expectations and practices of the Founders problematizes new originalism’s claim to be based on the public meaning of the text to the adopting generation.

Quebec Secession at the Clough Center

The next public event at Boston College’s Clough Center for the Study of Constitutional Democracy is the panel Quebec Secession: Constitutional, Comparative, and Historical Perspectives. It will take place Wednesday, October 23, 2013, at 12:00 p.m. in the Barat House, Boston College Law School.  The panelists are Frank Iacobucci, a former Justice of the Supreme Court of Canada; Robert A. Burt, the Alexander M. Bickel Professor of Law at Yale University; and Jamie Cameron, a professor at the Osgoode Hall Law School.  Space is limited. Lunch will be served.  RSVP to by 10/18.