Tuesday, December 31, 2013

Thank You, Susan Carle!

We at the Legal History Blog are so grateful to Susan Carle for joining us this past month as a guest blogger.

She has written candidly and thoughtfully about the challenges of being a white scholar writing about the African American experience (here); about hidden or forgotten "gems of scholarship" that she has come to appreciate (here); about emerging work in her field (see especially "new paths in civil rights historiography"); and much more. Most important, she has introduced us all to her new book, Defining the Struggle. Monitor the book's website for more information, including event postings, chapter summaries, and media coverage.

Thank you, Susan Carle!

Fletcher, "The Seminole Tribe and the Origins of Indian Gaming"

Matthew L. M. Fletcher (Michigan State University College of Law) has posted "The Seminole Tribe and the Origins of Indian Gaming." As Professor Fletcher explains on Turtle Talk, the piece emerged from a Florida International University Law Review symposium and will likely be published there. Here is the abstract:
The Seminole Tribe of Florida has played perhaps the most important role in the origins and development of Indian gaming in the United States of any single tribe. The tribe opened the first tribally owned high stakes bingo hall in 1979. The tribe in 1981 was involved in one of the earliest lower court decisions forming the basis of the legal theory excluding most states from the regulation of high stakes bingo, a theory that Congress largely codified in the Indian Gaming Regulatory Act (IGRA) years later. The tribe was a party to the Supreme Court decision in 1996 that radically altered the bargaining power between tribes and states over the negotiation and regulation of casino-style gaming under IGRA. And more recently, the tribe has been a leading participant in negotiations and litigation over the regulatory landscape of Indian gaming after the 1996 decision. The Tribe is one of the most successful Indian gaming tribes in the nation.

This paper traces that history, but also offers thoughts on how the culture and traditional governance structures of the Seminole Tribe played a part in its leadership role in the arena of Indian gaming.
The article is available for download here.

New Release: Underwood, "Deady Censorship: Murder, Honor, and Freedom of the Press"

New from the University of South Carolina Press: Deadly Censorship: Murder, Honor, and Freedom of the Press (2013), by James Lowell Underwood (University of South Carolina School of Law). The Press describes the book as follows:
On January 15, 1903, South Carolina lieutenant governor James H. Tillman shot and killed Narciso G. Gonzales, editor of South Carolina's most powerful newspaper, the State. Blaming Gonzales's stinging editorials for his loss of the 1902 gubernatorial race, Tillman shot Gonzales to avenge the defeat and redeem his "honor" and his reputation as a man who took bold, masculine action in the face of an insult.
James Lowell Underwood investigates the epic murder trial of Tillman to test whether biting editorials were a legitimate exercise of freedom of the press or an abuse that justified killing when camouflaged as self-defense. This clash--between the revered values of respect for human life and freedom of expression on the one hand and deeply engrained ideas about honor on the other--took place amid legal maneuvering and political posturing worthy of a major motion picture. One of the most innovative elements of Deadly Censorship is Underwood's examination of homicide as a deterrent to public censure. He asks the question, "Can a man get away with murdering a political opponent?" Deadly Censorship is courtroom drama and a true story. 
Deadly Censorship is a painstaking recreation of an act of violence in front of the State House, the subsequent trial, and Tillman's acquittal, which sent shock waves across the United States. A specialist on constitutional law, James Lowell Underwood has written the definitive examination of the court proceedings, the state's complicated homicide laws, and the violent cult of personal honor that had undergirded South Carolina society since the colonial era.
A few blurbs:
"The killing of newspaper editor Narcissus Gonzalez by Lieutenant Governor James H. Tillman is a story that has needed telling for over 100 years. Finally, Jim Underwood has unraveled the killing, the murder trial, and the aftermath and through his narrative tells a story of unfettered freedom of the press versus hot-bloodied Southern manhood honor. Without question, Deadly Censorship is a remarkable, eloquent, and important book."--W. Lewis Burke, Director of Clinical Legal Studies, School of Law, University of South Carolina

"Since the 1920s, the United States has had dozens of sensational trials--all of which have been labeled 'the trial of the century.' There is no question had the trial of Lieutenant Governor James Tillman for the murder of N. G. Gonzales, the editor of the State newspaper, occurred in our time that it would have had the same appellation. James Underwood's riveting account of this infamous South Carolina trial is as gripping as any contemporary courtroom drama."--Walter Edgar, author of South Carolina: A History 

Monday, December 30, 2013

Women Lawyers at the Department of Justice, 1937

Tallies of women lawyers in the federal government during the New Deal are hard to come by, so whenever I stumble upon one, I like to circulate it.  At right is a list of the "Portias" of the Department of Justice, circa 1937.  It is from the Personal Papers of Gordon Dean, box 5, entry A1: 140, RG 60 at National Archives 2.

Waugh on a Sodomy Prosecution in Colonia Australia

John Waugh, Melbourne Law School, has posted “A Gang of Judicial Assassins”: George Bateson and Colonial Sodomy Laws, which is to appear in Intimacy, Violence and Activism: Gay and Lesbian Perspectives on Australian History and Society (Monash University Publishing, 2013), 25–38.  Here is the abstract:
One night in November 1860, Melbourne police burst into the room where George Bateson, a 42-year-old Englishman, was in bed with a young man. Bateson was arrested and later convicted of sodomy. In prison, he poured out his outrage in a long series of letters in which he claimed to be the innocent victim of a conspiracy.

This paper puts Bateson’s case in its legal context by outlining the laws that applied to sex between men in colonial Australia, and considers two highly unusual aspects of the case: the police entrapment of Bateson, and the cache of letters in which he gives his version of the events leading to his conviction.

Slater on Public-Sector Unionism Since 1980

Joseph E. Slater, University of Toledo College of Law, has posted The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years, which appeared in the Hofstra Labor and Employment Law Journal 30 (2013); 511.  Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.

Spoo on Samuel Roth: "Pirate" or "Discourteous Reprinter"?

Robert E. Spoo, University of Tulsa College of Law, has posted Samuel Roth: Discourteous Reprinter, which originally appeared in the Dublin James Joyce Journal 5 (2012): 99-111.  Here is the abstract:
This article offers an in-depth view of the lawful piracy of foreign works in the United states in the early twentieth century, a practice that was made possible by protectionist features of U.S. copyright law in that period. The focus is the New York publisher Samuel Roth, a “pirate” who, paradoxically, abided by U.S. copyright law while filling his magazines with unauthorized foreign material. Roth built his career on the resources of this unusual feature of the American public domain. U.S. copyright law in 1925 was isolationist and protectionist; its technicalities were a constant worry to foreign-domiciled authors like James Joyce who could not always satisfy the rigid statutory conditions for copyright protection. Among those conditions was the requirement that English-language books be typeset, printed, and bound on American soil within a fixed number of months after publication abroad, on pain of loss of U.S. copyright forever. Confronted with these legal hurdles and shadowed by a reputation for indecency, Joyce made no attempt to secure U.S. copyright for the book version of Ulysses or for the early published extracts of what eventually became Finnegans Wake. These works lay in the American public domain, where Roth found them.

Even though Roth’s publishing activities were lawful in the United States, he was called a “pirate” during his lifetime and probably always will be. This is because he violated the principles of what had been known since the nineteenth century as “the courtesy of the trade,” an informal, norms-based practice voluntarily engaged in by American publishers which restored a precarious order to the publishing scene by imitating the main features of copyright law and permitting both publishers and authors to benefit, though inconsistently, from the wholly informal exclusive rights that trade courtesy recognized. In its simplest form, courtesy awarded informal rights to the first publisher that announced plans to reprint an unprotected foreign work — a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. According to this communal fiction, competitors were required to resist the temptation to exploit a free literary resource once it was claimed by the first comer. Participating publishers often paid foreign authors an honorarium or royalty and sought their permission for reprinting works — all in the name of self-interested honor. But courtesy was always threatened at the margins by upstarts or renegades in the trade who saw no reason to observe a code that could bring them no immediate, tangible benefits. Deviants from courtesy were called “pirates” by the reputable houses. Samuel Roth was one of those deviants. This article tells part of his story.

"The Messy History of the Federal Eminent Domain Power": Burset responds to Baude

The California Law Review Circuit has posted "The Messy History of the Federal Eminent Domain Power," by Christian Burset (J.D./Ph.D candidate, Yale Law School). Here's the abstract:
In this response to William Baude's article, Rethinking the Federal Eminent Domain Power, Christian Burset challenges Baude's claim that antebellum legislators, commentators, and judges uniformly refused to acknowledge a federal eminent domain power. Examining historical sources and case law, Burset highlights how changing political attitudes influenced historic beliefs about the ability of the federal government to condemn land within state boundaries.
For more on Baude's piece, which appeared in Volume 122 of the Yale Law Journal, follow the link.

Boyce on the Some Originalists

Bret Boyce, University of Detroit Mercy School of Law, has posted The Magic Mirror of 'Original Meaning': Recent Approaches to the Fourteenth Amendment, which appears in the Maine Law Review 66 (2013): 29.  Here is the abstract:    
The language of Section One of the Fourteenth Amendment, viewed in its legal and historical context, is replete with ambiguity. There is no scholarly consensus as to the amendment’s original meaning and its text and history do not permit us to choose with confidence among possible interpretations. Although there is wide agreement that the Privileges or Immunities Clause was Section One’s central provision, the original scope of that clause and its relation to Due Process and Equal Protection Clauses remain unclear. Recent interpretations literally run the gamut from the claim that the Privileges or Immunities Clause protected no new rights, to claims that it protected only a limited and relatively well-defined set of rights (variously defined by different interpreters), to the claim that it protected an open-ended set of rights that can never be completely specified or enumerated. A significant case can be made for and against each of these interpretations. In fact, the Fourteenth Amendment had not one but many “original meanings,” and to reduce its polyvalent text to a single “original meaning” is to traduce its history. Yet as the most important repository of individual rights in our Constitution, the Fourteenth Amendment must be given meaning by the people, their elected representatives, and the courts. The original understandings of its framers and ratifiers provide a point of departure for this interpretive endeavor, but can never fully specify the Amendment’s meaning for the present generation.
Boyce’s argument proceeds as a series of engagements with the originalisms of Philip Hamburger, Kurt Lash, Steven Calabresi, Jack Balkin, and Randy Barnett.

Sunday, December 29, 2013

Whitman on the Transition to Modernity in Criminal Law

James Q. Whitman, Yale Law School, has posted The Transition to Modernity, which is forthcoming in the Oxford Handbook of Criminal Law, ed. M. Dubber and T. Hörnle.  Here is the abstract:    
This paper addresses the transformation of criminal justice that took place between about 1750 and 1850. This was the period that witnessed the disappearance of the bloody public sanctions of the pre-modern world and the transition to imprisonment as the ordinary form of punishment; seminal campaigns against torture and excessive use of the death penalty; critical steps in the formation of the common law criminal trial; the move to modern forms of codification and refined dogmatic criminal theory on the Continent; and the flowering of the modern philosophy of criminal law. The paper offers an account of the forces at work in this remarkable period. After discussing the leading interpretations of Michel Foucault and John Langbein, the paper proposes a framework from theirs. The transition to modernity in criminal justice should be seen against the background of a Weberian monopolization of legitimate violence, as Western states claimed the sole authority to inflict punishment, displacing rivals that included nobles, heads of households, and the Church. In the course of this successful monopolization, the paper argues, states underwent a deep, and somewhat paradoxical, transformation. The secular criminal law that emerged by the middle of the nineteenth century had been Christianized, coming to resemble the historic law of the Church. The "modern" criminal law of the nineteenth century was in practice a form of pre-modern Christian law, making use of the historic Church punishment of imprisonment and adopting forms of culpability analysis that had been developed by Church lawyers.

Sunday Book Roundup

The web is light on book reviews this weekend, but here's a few that readers might find interesting. And, the Best Books of 2013 post has been updated one last time.

The Wall Street Journal reviews The Great Rent Wars: New York 1917-1929 (Yale) by Robert M. Fogelson. 

In the New York Times there's a review of Michael Burleigh's Small Wars, Faraway Places: Global Insurrection and the Making of the Modern World 1945-1965 (Viking). Reviewer Daniel Larison writes:
"In “Small Wars, Faraway Places,” Michael Burleigh recounts the violent end of the British and French empires in Africa and Asia, and their partial replacement by the United States in its often ill-informed and costly efforts to combat Communism during the early stages of the Cold War. Burleigh surveys many of the major international wars and anticolonial insurgencies between 1945 and 1965, but opts to focus most on those involving America, Britain and France, and how they related to the rivalry with the Soviet Union. The result is a well-researched and readable account of two tumultuous decades. Burleigh judges most of these wars, both small and large, to have been futile and destructive. But while he clearly has no interest in defending or rehabilitating such conflicts, he nonetheless offers a fair, thoughtful assessment of the motives and interests behind them. He also takes care to understand and explain the grievances of the insurgents." 
And in the Washington Post, Lincoln in the World: The Making of a Statesman and the Dawn of American Power (Crown) by Kevin Peraino is reviewed.
"Peraino similarly casts a revealing and fresh light on the complex diplomacy in the fall of 1862 aimed at averting British recognition of the Confederacy or a European intervention to halt the fighting. It has often been asserted that the Union victory at Antietam in September of that year, and the issuance of the Emancipation Proclamation that swiftly followed, effectively put an end to the threat of British interference, both by transforming the North’s war into a moral crusade and by establishing the inevitability of Union victory. But in fact, Peraino recounts, the ambiguous Union victory at Antietam actually increased (albeit briefly) the inclination of Lord Palmerston, the British prime minister, to press for an armistice; and as for the Emancipation Proclamation, Palmerston initially dismissed it as “trash.”" 

Saturday, December 28, 2013

Weekend Roundup

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

Friday, December 27, 2013

On being a white scholar writing about the African American experience

As I end my month as a guest blogger specifically asked to address the experience of writing Defining the Struggle, there is an issue, hard to discuss, that I think worth raising: that of being a white scholar writing about the African American experience. Of course a great deal of ink has been spilt on this topic before, and I don’t intend to revisit all of those debates; instead I thought I would write about the experience on a personal level.  

It can be awkward. At some archives I sensed unease with me. I understand the feeling that this is African American history to be discovered and told by African Americans, and I share that view to a large extent. I would not think, for example, that I should be vying to express the leading viewpoint on the hottest race-related topics of the day. At the same time, there is a lot of historical recovery work to do and not that many people doing it, and it seems to me okay for all those interested in such projects to pitch in.  

Ross, "Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics"

Bertrall L. Ross II (University of California, Berkeley School of Law) has posted "Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics," which was published in Volume 101 of the California Law Review (2013). Here's the abstract:
Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.
The full article is available here.

Hat tip: Legal Theory Blog

Thursday, December 26, 2013

Britto et al. on Zablocki v. Red Hail

Tonya L. Brito, Raymond Kirk Anderson, and Monica Ashley Wedgewood, University of Wisconsin, have posted Chronicle of a Debt Foretold: Zablocki v. Red Hail, 434 U.S. 374 (1978), which is to appear in The Poverty Law Canon: Exploring the Major Cases, ed. Marie Failinger and Ezra Rosser (University of Michigan Press, 2014).  Here is the abstract:
Zablocki v. Red Hail is a canonical case in family law jurisprudence. One of the few Supreme Court decisions addressing the fundamental right to marry, the case involves a successful challenge to Wisconsin's "permission to marry" statute. However, the conventional understanding of the case addresses only part of the story. The narrative threads uncovered as part of this oral history research study reveal a more multifaceted and complicated story than has been previously appreciated. The story behind Zablocki v. Red Hail spans the 1970s in Milwaukee, a period of great inequality and dynamic social change. It also engages the American Indian experience in the United States, particularly the experience of urban Indians who have been uprooted from their native lands and disconnected from their heritage and history. Finally, although Zablocki v. Red Hail was a significant constitutional victory, the ruling did not secure justice for Roger Red Hail because the pursuit of a rights-based claim left standing an economically unjust (and apparently unending) child support order.

December 2013 'Reviews in American History'

We recently noted the release of the December 2013 issue of Reviews in American History (full content available to subscribers only, unfortunately). Here are some other items of interest:
"Lincoln, Liberty, and the Law," by John M. Belohlavek (University of South Florida, Tampa) reviews Louis P. Masur, Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union (The Belknap Press of Harvard University, 2012); Harold Holzer, Emancipating Lincoln: The Proclamation in Text, Context, and Memory (Harvard University Press, 2012); and John Fabian Witt, Lincoln’s Code: The Laws of War in American History (Free Press, 2012).

In "The Hemings War," Henry Wiencek (independent scholar and author of the controversial Master of the Mountain) reviews M. Andrew Holowchak, Framing a Legend: Exposing the Distorted History of Thomas Jefferson and Sally Hemings (Prometheus Books, 2013).

In her State of the Field essay, "The Complicated Histories of Emancipation," Manisha Sinha (University of Massachusetts, Amherst) reviews James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (W. W. Norton, 2013); David S. Cecelski, The Fire of Freedom: Abraham Galloway and the Slaves’ Civil War (The University of North Carolina Press, 2012); and Christopher Hager, Word By Word: Emancipation and the Act of Writing (Harvard University Press, 2013).

In "Quakers, Slavery, and Racial Justice," Michael Birkel (Earlham College) considers Brycchan Carey, From Peace to Freedom: Quaker Rhetoric and the Birth of American Antislavery, 1657–1761 (Yale University Press, 2012) and Allan W. Austin, Quaker Brotherhood: Interracial Activism and the American Friends Service Committee, 1917–1950 (University of Illinois Press, 2012).
 
"Brandeis, Gitlow, and the Supreme Court’s Transformation During the Interwar Years," by William G. Ross (Cumberland School of Law, Samford University) reviews Marc Lendler, Gitlow v. New York: Every Idea an Incitement (University Press of Kansas, 2012) and Melvin I. Urofsky, Louis D. Brandeis: A Life (Schocken Books, 2009).

New Release: Daniels, "The Japanese American Cases: The Rule of Law in Time of War"

If, like me, you teach the Japanese American internment cases (or have a personal connection to this history), you'll want to check out the most recent addition to the Landmark Law Cases & American Society series from the University Press of Kansas: The Japanese American Cases: The Rule of Law in Time of War (2013), by Roger Daniels. Here's a description from the Press:
After Pearl Harbor, President Roosevelt, claiming a never documented "military necessity," ordered the removal and incarceration of 120,000 Japanese Americans during World War II solely because of their ancestry. As Roger Daniels movingly describes, almost all reluctantly obeyed their government and went peacefully to the desolate camps provided for them.
Daniels, however, focuses on four Nisei, second-generation Japanese Americans, who, aided by a handful of lawyers, defied the government and their own community leaders by challenging the constitutionality of the government's orders. The 1942 convictions of three men--Min Yasui, Gordon Hirabayashi, and Fred Korematsu--who refused to go willingly were upheld by the Supreme Court in 1943 and 1944. But a woman, Mitsuye Endo, who obediently went to camp and then filed for a writ of habeas corpus, won her case. The Supreme Court subsequently ordered her release in 1944, following her two and a half years behind barbed wire.
Neither the cases nor the fate of law-abiding Japanese attracted much attention during the turmoil of global warfare; in the postwar decades they were all but forgotten. Daniels traces how, four decades after the war, in an America whose attitudes about race and justice were changing, the surviving Japanese Americans achieved a measure of political and legal justice. Congress created a commission to investigate the legitimacy of the wartime incarceration. It found no military necessity, but rather that the causes were "race prejudice, war hysteria, and a failure of political leadership." In 1982 it asked Congress to apologize and award $20,000 to each survivor. A bill providing that compensation was finally passed and signed into law in 1988.
There is no way to undo a Supreme Court decision, but teams of volunteer lawyers, overwhelmingly Sansei--third-generation Japanese Americans--used revelations in 1983 about the suppression of evidence by federal attorneys to persuade lower courts to overturn the convictions of Hirabayashi and Korematsu.
Daniels traces the continuing changes in attitudes since the 1980s about the wartime cases and offers a sobering account that resonates with present-day issues of national security and individual freedom.
A few blurbs:
"Daniels has a well-deserved reputation as a leading historian on this subject. Here, he ably recounts the legal challenges to their internment by four young Japanese Americans, which resulted in Supreme Court decisions that still provoke debate and denunciation. He also brings this story up to date with accounts of the successful effort in the 1980s to vacate their criminal convictions and promote 'redress and reparations' on behalf of all victims. This book is a timely reminder of a shameful episode in American history."--Peter Irons, author of Justice at War: The Story of the Japanese-American Internment Cases

"In this revealing study, Daniels demonstrates how seemingly ordinary people asserted their constitutional rights against all odds. He analyzes judicial opinions and unearths internal divisions among government officials and conflicts among lawyers representing both sides. A must-read for all concerned with justice in America."--Eileen H. Tamura, author of In Defense of Justice: Joseph Kurihara and the Japanese American Struggle for Equality

Constitutional Conservatism during the Progressive Era

Out last month from Palgrave Macmillan was Toward an American Conservatism: Constitutional Conservatism during the Progressive Era, ed. Joseph W. Postell, University of Colorado at Colorado Springs, and Johnathan O'Neill, Georgia Southern University.  Here is the abstract:
During the Progressive Era (1880-1920), leading thinkers and politicians transformed American politics. Historians and political scientists have given a great deal of attention to the progressives who effected this transformation. Yet relatively little is known about the conservatives who opposed these progressive innovations, despite the fact that they played a major role in the debates and outcomes of this period of American history. These early conservatives represent a now-forgotten source of inspiration for modern American conservatism. This volume gives these constitutional conservatives their first full explanation and demonstrates their ongoing relevance to contemporary American conservatism.
Here is the TOC:
Introduction; Johnathan O'Neill and Joseph Postell

1. Constitutional Conservatism During the Progressive Era: The National Association for Constitutional Government and Constitutional Review; Johnathan O'Neill

2. The Progressive Origins of Conservative Hostility to Lochner v. New York; David E. Bernstein

3. William Howard Taft and the Struggle for the Soul of the Constitution; Sidney M. Milkis

4. The Election of 1912 and the Origins of Constitutional Conservatism; William Schambra

5. William Howard Taft on America and the Philippines: Equality, Natural Rights, and Imperialism; John Grant

6. Civilization versus Modernity: The League of Nations in the Crisis of World Civilization; W. Taylor Reveley

7. 'Roaring' against Progressivism: Calvin Coolidge's Principled Conservatism; Joseph Postell

8. Rational Compromise: Charles Evans Hughes as a Progressive Originalist; James R. Stoner, Jr.

9. The Two Phases of Herbert Hoover's Constitutional Conservatism; Gordon Lloyd and David Davenport

Epilogue; Charles Kesler
I did not know of the book until this week.  That’s too bad, as Hughes is a central figure in my forthcoming book, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, and I would have liked to have learned from Professor Stoner’s interpretation.  I know Professor Postell from his essay “The Anti-New Deal Progressive: Roscoe Pound’s Alternative Administrative State,” Review of Politics 74 (2012): 53-85.  In it, he rejects the thesis that Pound executed an “about face” in his thinking about the administrative state for much the same reasons I did here and will here.  Pace Jerome Frank in his If Men Were Angels, Pound never was an enthusiastic advocate of the administrative state.  Postell makes much of Pound’s position that a judiciary with the proper procedures and personnel could have made the administrative state unnecessary.  I am more impressed by how the modesty of the reforms Pound preferred as chair of the American Bar Association’s Special Committee on Administrative Law in 1937-38, which originally were limited to simplifying the procedures by which agency decisions were appealed into the courts.

Richardson Asks What Makes a Leading Case?

Ivor Richardson, Victoria University of Wellington Faculty of Law, has posted What Makes a 'Leading' Case? Which originally appeared in the Victoria University of Wellington Law Review 41 (2010): 317.  Here is the abstract:    
The theme developed in the paper is that what makes a leading case is not immediately apparent or able to be captured in a short definition. The crucial questions are how and why a case is seen to be or to have been particularly influential in settling an area of the law. Exploring these questions necessarily involves viewing the case in its historical context. Economic and behavioral implications and impacts should also be kept in mind.

The paper draws on empirical research involving retired judges, experienced lawyers, and judges' clerks and on specialist essays by senior academic lawyers produced for the 50th anniversary conference of the Court of Appeal in 2008. The research results show how much room there is for differing assessments of significance. The second half of the paper discusses a range of appeal cases explaining how and why the Court focused on particular matters of significance in deciding the cases.

Wednesday, December 25, 2013

Happy Holidays from the Legal History Blog!

Happy holidays from your team at the Legal History Blog! It is a joy to write for you.

{The cute picture comes from our 2010 post, by LHB founder Mary Dudziak}

And if you haven't seen this picture yet (from our archives), Merry Christmas.

Tuesday, December 24, 2013

Robson on Sumptuary Laws, Properly So-Called

Ruthann Robson, CUNY School of Law, has posted Constitutionalism, Clothes, and Bodies in Anglo-American Law, 1215-1789, as it appears in volume 2 of the British Journal of American Legal Studies (Fall 2013).  Here is the abstract:    
Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.”

Mack and Charles, eds., "The New Black"

This fall the New Press released The New Black: What Has Changed—and What Has Not—with Race in America, edited by Kenneth Mack (Harvard Law School) and Guy-Uriel Charles (Duke University). The book brings together "some of the country’s most celebrated and original thinkers on race" to "reexamine the familiar framework of the civil rights movement with an eye to redirecting our understanding of the politics of race." It's not legal history, but we imagine that Mack's historically informed perspective has helped shape the collection.

A few blurbs:
The New Black is an indispensable guide to thinking one’s way through the peculiar institutional complexities of our supposedly postracial moment: the tensions among racial progress in some quarters, fierce backlash in others, the shifting demographics of ethnicity, the subtleties of denial and unconscious bias, and the reconfigured challenge of civil rights for all Americans.” -- Patricia Williams

“The contributors to this book raise significant questions about the continued relevance of the civil rights ideal and argue persuasively that new ideas are necessary, advancing an important discussion of the shape of race relations beyond the Obama presidency.” -- Mary Frances Berry
More information is available here.

Kalman on Roe at Forty

The December 2013 issue of Reviews in American History is out. Full content is available to subscribers only, but over the next few days, we'll spotlight some items of interest -- starting with Laura Kalman's review essay "On Roe at Forty." Here's an excerpt from the opening paragraphs:
Jack Balkin opens What Roe v. Wade Should Have Said with the observation that the most important difference between the 1954 decision of Brown v. Board of Education and the 1973 decision of Roe v. Wade “is the degree of public acceptance each has enjoyed.” . . . .

As a cantankerous academic, I want to challenge this view, which is widely accepted, before addressing Roe’s reception and evaluating its “lessons” for us about the relationship between Supreme Court opinions and social change. I argue that Roe is doing better than conventional wisdom indicates and that Brown is doing worse.
Subscribers may read on here.

Monday, December 23, 2013

Fellowships and Travel Grants in Cold War Studies

[We have the following announcement for a fellowship and travel grants in Cold War Studies.]

New York University's Tamiment Library announces the Center for the United States and the Cold War Fellowships and Travel Grants for 2014-2015.

The Center for the United States and the Cold War supports research on the Cold War, especially on the ways in which this ideological and geopolitical conflict with the Soviet Union affected American politics, culture, and society. We will be offering a dissertation fellowship, a post-doctoral fellowship and some travel grants. Applicants for the dissertation fellowship must have passed their comprehensive examinations and expect to complete their dissertations within two years. The post-doctoral fellowship is designed for junior scholars who will have received the Ph.D. by August 31, 2014. A dissertation fellow will receive a stipend of $25,000 for a nine-month academic year. The stipend for the post-doctoral fellow is $45,000. There is one post-doctoral fellowship and one dissertation fellowship available. The *Center's travel grants *are for $1,000 to $2,500, depending on need, to support researchers and scholars who need to conduct in-depth research in the holdings of the Tamiment Library. Research trips may last any length of time, however only scholars outside the New York metropolitan area will be considered. This year there will be at least two travel grants.

The post-doctoral, dissertation, and travel grant recipients are selected on the basis of the applicant's scholarly qualifications; the scholarly significance of the project to the Center's mission to support research on the Cold War; and the appropriateness of the proposed study to the Tamiment Library's collections.

All applicants should submit a curriculum vitae, a short project description (5 pages maximum), and a short statement describing the relevance of the collections of the Tamiment Library to the project.

Please submit all materials by March 31, 2014 to Dr. Timothy Naftali, co-director, Center for the United States and the Cold War at ColdWarCenter@nyu.edu. When submitting a dissertation or post-doctoral fellowship application, please use the following format in the subject
line: Cold War Center Fellowship Application LAST NAME. For travel grants, please use the subject line Cold War Center Travel Application LAST NAME.

[More information here.]

De Jongh on the Early Modern Origins of the Corporate Form

Matthijs De Jongh, who now works in the Research Department of the Supreme Court of the Netherlands has posted, in English, the Summary and Concluding Observations from a thesis, Between Societas and Universitas: The Listed Company in Historical Perspective, completed, in Dutch, at the Erasmus University Rotterdam.  Here is the abstract:
Conflicts between shareholders and the company are an inherent feature of company law. They do not only arise in case of mismanagement by the directors. Conflicts of interest between individual shareholders and the company or fellow shareholders also serve as an important source of shareholder revolts. These conflicts give rise to questions which are at the heart of company law: what is the relation between a shareholder and the company? What duties does a director owe his shareholders? How should the interest of the company be defined? Do directors need to take into account other interests than the company’s interest? Are shareholders well suited to prevent mismanagement by directors? May shareholders act solely in their own interest, or do they need to take into account the interests of others?

This is the English summary of a Dutch thesis which addresses these questions from a historical perspective. This book starts with the predecessors of the English and the Dutch East India Company, incorporated in 1600 and 1602, respectively, and ends with the current corporate governance debate. This study not only provides answers under current company law, but it also aims at deepening our insight into the evolution of company law, particularly with respect to the balance of power within companies. The focus is on Dutch law, but the argument is embedded in a broad international context, taking into account influences from other legal traditions, including the UK, the US, Germany and France.

Two legal forms, originating from Roman law, play an important role in this book: societas (partnership) and universitas (corporation). Both have historically influenced the development of company law. But they are also used as a metaphor for conflicts of interest between individual shareholders and the collective interest. The Roman societas attached great importance to the interests of individual partners, whereas the universitas has emphasised the interest of the institution as a whole. The book consists of five parts. Part I summarises the historical development of societas and universitas. Parts II-V chronologically analyse the development of the law on listed companies from the perspective of the relationship between shareholders and the company. Part V deals with the heart of the contemporary corporate governance debate.

New Release: Willkins, "Hollow Justice: A History of Indigenous Claims in the United States"

New from Yale University Press: Hollow Justice: A History of Indigenous Claims in the United States (2013), by David E. Wilkens (University of Minnesota). The Press describes the book as follows:
This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government’s multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, Native peoples never attained a genuine sense of justice. David E. Wilkins addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities have been negotiated through treaties. How does the United States assure that guarantees made to tribal nations, whether through a century old treaty or a modern day compact, remain viable and lasting?
A few blurbs:
“There are a good number of books on the subject, but none provide the scope that this one does. . . . I can surely see this becoming the standard book to which people turn when wanting to know the story of Indian claims.”—Christian McMillen, author of Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory
“A highly readable and important study on the history of Native claims against the United States. . . . To my knowledge, this is the first sustained scholarly effort to link the acts of promise making and the consequences of promise-breaking between the US and the tribal nations with a close examination of the various institutional mechanisms developed over time to resolve those claims.“—N. Bruce Duthu, author of American Indians and the Law
A preview is available here.

Hart's "Discretion"

A hat tip to Geoffrey C. Shaw, who is a J.D. Candidate at the Yale Law School and a D. Phil. candidate at University College, Oxford, for bringing to our attention a just-published symposium in the Harvard Law Review, available online, It features a previously unpublished essay by H.L.A. Hart, DiscretionHart’s biographer Nicola Lacey introduces the essay; Shaw's contribution is H. L. A. Hart's Lost Essay: Discretion and the Legal Process School.  Here is its abstract:
This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart's paper - Discretion - in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart's work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart's work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart's year as a visiting professor. Hart's Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history.

Sunday, December 22, 2013

Sunday Book Roundup

A new set of book reviews are out in the December issue of The Federal Lawyer including reviews of


The Los Angeles Review of Books has a new review of Randall Kennedy's For Discrimination: Race, Affirmative Action, and the Law (Pantheon) written by Richard Sander at UCLA Law.

H-Net posted this week a review of a volume edited by Thomas Welskopp and Alan Lessoff, Fractured Modernity: America Confronts Modern Times, 1890s to 1940s (Oldenbourg Verlag). The book includes a piece by Manfred Berg who "presents a convincing argument for the ways that the preponderance of lynching in nineteenth-century America was intertwined--rather than at odds--with the modern civilizing process. In his view, the extralegal punishment that characterized lynch mobs in the American South originated in colonial notions that the community writ large bore the responsibility for the punishment for criminal acts."

Also on H-Net is a review of Thomas Boghardt's The Zimmermann Telegram: Intelligence, Diplomacy, and America's Entry into World War I (Naval Institute Press), as well as a review of José Angel Hernández's Mexican American Colonization during the Nineteenth Century: A History of the U.S.-Mexico Borderlands (Cambridge). Reviewer Sterling Evans writes
"Hernández’s conclusion is excellent! Readers get a useful review of the three types of repatriation (private, collective, and government-sponsored), and learn--perhaps a bit late for the book--of the overall significance of the study: an estimated 25 percent of Mexican Americans in these years returned to Mexico. Of course, this shows that a vast majority did not migrate southward, clearly illustrating that Mexican colonization policy more often did not result in the desired end. He then brings some of these findings and arguments to the present to discuss the current situation of México de afuera and the whole discourse of expanded Mexican (cultural, demographic) boundaries. "
Still another thoughtful review on H-Net is that of Kirt Von Daacke's Freedom Has a Face: Race, Identity, and Community in Jefferson's Virginia (Univ. of Virginia Press).

In the latest New York Review of Books Robert Darton reviews The Allure of the Archives by Arlette Farge, translated by Thomas Scott-Railton and forward by Natalie Zemon Davis (Yale Press).

Salon has published both a review of, and excerpt from, Jacqueline Jones's Dreadful Deceit: The Myth of Race from the Colonial Era to Obama's America (Basic Books).

Last week's "Best Books of 2013" post has also been updated.

Saturday, December 21, 2013

RG 21 (2013)

Via Juris Diversitas, we have news that the latest issue (No. 21) of Rechtsgeschichte - Legal History, the journal of the Max Planck Institute for European Legal History, is now available online. The issue, introduced, in German and English, by Thomas Duve, includes a contribution by Richard Helmholz and a symposium on Harold Berman’s Law and Revolution.  The contents follow.  We reproduce the abstract for Helmholz’s article below.  Abstracts, in English, for all articles are downloadable here.

Milan Kuhli: Power and Law in Enlightened Absolutism - Carl Gottlieb Svarez´ Theoretical and Practical Approach

Thorsten Keiser: Coercion in Contractual Labour Relationships in Germany from the 16th to the 20th century

Ignacio de la Rasilla del Moral: El estudio del Derecho international en el corto siglo XIX español

Wolfram Brandes: Taufe und soziale/politische Inklusion und Exklusion in Byzanz

Christoph H.F. Meyer: Taufe und Person im ersten Jahrtausend

Richard Helmholz: Baptism in the Medieval Canon Law
The classical statements of the medieval canon law, Gratian’s Decretum (ca. 1140) and the Gregorian Decretals (1234) both dealt with baptism.  Although a ‘theological’ subject, baptism had worldly consequences and its correct performance was thought to require regulation. This article seeks to bring to light the character of the canon law’s treatment of baptism by comparing its treatment with that it applied within the law of marriage, also a sacrament of the medieval church.  It surveys and compares the verbal formulas used for both, the standards of legal finality applied to choices made by and for children, the effect of coercion upon the validity of both, the role of parents and the clergy in arranging for and performing the two sacraments, and the common problem of dealing with legal uncertainty about each sacrament’s performance and validity. It states the basic rules applied in each case. In all of these areas, the canonists sought to arrive at objective and workable standards, but they turn out to have been more willing to bend somewhat to the subjective expectations of the men and women involved in dealing with marriage than with baptism. The explanation for the differences seems to lie in the unequal value accorded to the two sacraments by the medieval church. Baptism lay at the centre of the church’s mission in the world. Marriage did not.
Thomas Duve: Law and Revolution - Revisited

Gerhard Dilcher: Bermans Law and Revolution - eine rechtshistorische Revolution?

Andreas Thier: Harold Bermans Law and Revolution: A Necessary Challenge for Legal History Research

Wim Decock: Capital Confidence. Updating Harold Berman´s Views on Mercantile Law and Belief Systems

Pierre Monet: Usages et réceptions médiévistes de Berman: un point de vue français

Tomasz Giaro: The East of the West. Harold J. Berman and Eastern Europe

Alessandro Somma: Diritto comparato e rivoluzione

Wang Jing: Law and Revolution in China

John Witte Jr.: Harold J. Berman as Historian and Prophet

Weekend Roundup

  • Over at Balkinization, Gerard Magliocca asks "Is it possible that the Government wanted to lose The Civil Rights Cases and thus intentionally wrote lackluster briefs?" (And if you're a Twitter follower, check out Jed Shugerman's feed for an interesting response, based on his research on the early history of the Department of Justice.)
  • Josh Blackman (South Texas College of Law) has been researching Charles Hauser, the defendant in the famous Carolene Products case. He blogs about his findings here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, December 20, 2013

Jerome Hall Postdoctoral Fellowship at Indiana-Bloomington

[We have the following announcement for the Jerome Hall Postdoctoral Fellowships at the Indiana University Maurer School of Law.  Applications are due January 6, 2014.  Notice of some previous holders of the fellowship are here and here and here.]

  • Fellowships are offered each year beginning in the fall semseter.
  • Applications are due on the first Monday in January for the coming year's fellowships.
  • Applications can be sent electronically to hallpd@indiana.edu.
The Center [for Law, Culture and Society] invites applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.

Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project, and will receive a stipend plus a research allowance, health insurance, other benefits, and workspace at Indiana Law. If both sides are amenable, the option of teaching a research seminar is also possible, with a commensurate adjustment to the stipend.

Fellows will conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. (The term of the appointment will be 10 to 12 months, beginning August 1. The amount of the stipend will be the same regardless of the duration of the appointment.)

In evaluating applications, the Center will focus on:
  • the originality and significance of the candidate’s proposed research project within the field of sociolegal studies;
  • the candidate’s scholarly promise, achievements, and ability to complete the project; and
  • the potential contribution of the candidate to the intellectual life of the Center, the School of Law, and Indiana University.
A complete application consists of the following:
  • a research proposal (up to 10 pages),
  • curriculum vitae (with address and complete contact information), and
  • three letters of recommendation (must be sent separately).
  • Electronic application materials from applicants (research proposal, CV, and, optionally, cover letter and writing sample) should be submitted as a single, consolidated email attachment in PDF format. Letters of recommendation should be sent separately by letter-writers (either electronically or by regular post).
Applications should be sent to:E-mail: hallpd@indiana.edu

Jerome Hall Postdoctoral Fellowship Program
Center for Law, Society, and Culture
Indiana University Maurer School of Law
211 South Indiana Avenue
Bloomington, IN 47405

Percival, "Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law"

Robert V. Percival (University of Maryland - Francis King Carey School of Law) has posted "Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law." It is forthcoming in Marjolein B.A. van Asselt, Michelle Everson and Ellen Vos, eds., Trade, Health and the Environment: The European Union Put to the Test (Routledge, 2014). Here's the abstract:
Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the lens of history. It discusses the precautionary principle and why it is valuable even if it does not purport to answer the question of how stringent regulatory policy should be. It also considers recent studies that assess whether regulatory policy is more precautionary in the United States or the European Union and why it is difficult to make confident, comparative conclusions. The chapter then examines the history of how precaution has been incorporated into U.S. environmental law. It demonstrates that, despite the law’s promise to prevent harm before it occurs, regulatory policy has been largely reactive, concentrating primarily on highly visible problems only after harm has become manifest. After reviewing the state of contemporary regulatory politics in the U.S., the chapter concludes by analyzing lessons that can be learned to improve future regulatory policy.
The full paper is available here, at SSRN.

H-Law's "New Books in U.S. Constitutional/Legal History," Fall 2013 edition

Our friends at H-Law have sent out the Fall 2013 edition of New Books in U.S. Constitutional/Legal History. Timothy S. Huebner (Rhodes College) compiled and edited the list. In the coming weeks, we'll try to spotlight some items from the list that escaped our attention in previous months.
Abrams, Jeanne E.  Revolutionary Medicine:  The Founding Fathers and Mothers in Sickness and in Health.  New York:  New York University Press, 2013.  304 pp.  (cloth, $30.00, ebook).

Anderson, Karen.  Little Rock:  Race and Resistance at Central High School.  Princeton, N.J.:  Princeton University Press, 2013.  344 pp.  Paperback ed.  (paper, $24.95, ebook).

Baker, Bruce E. and Brian Kelly.  After Slavery:  Race, Labor, and Citizenship in the Reconstruction South.  Gainesville, Fla.:  University Press of Florida, 2013.  New Perspectives on the History of the South.  278 pp.  (cloth, $74.95).

Ball, Howard.  At Liberty to Die:  The Battle for Death with Dignity in America.  New York:  New York University Press, 2013.  224 pp.  Paperback ed.  (paper, $22.00, ebook).

Bernstein, Richard, ed.  An Expression of the American Mind:  Selected Writings of Thomas Jefferson.  London:  Folio Society, 2013.  616 pp.  (cloth, $79.95).

Blackman, Jon S.  Oklahoma’s Indian New Deal.  Norman, Okl.:  University of Oklahoma Press, 2013).  192 pp.  (cloth, $24.95).

New Release: "Law and War," edited by Sarat, Douglas, and Umphrey

New from Stanford University Press: Law and War (2014), edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Amherst College, all). A description from the Press:
Law and War explores the cultural, historical, spatial, and theoretical dimensions of the relationship between law and war—a connection that has long vexed the jurisprudential imagination. Historically the term "war crime" struck some as redundant and others as oxymoronic: redundant because war itself is criminal; oxymoronic because war submits to no law. More recently, the remarkable trend toward the juridification of warfare has emerged, as law has sought to stretch its dominion over every aspect of the waging of armed struggle. No longer simply a tool for judging battlefield conduct, law now seeks to subdue warfare and to enlist it into the service of legal goals. Law has emerged as a force that stands over and above war, endowed with the power to authorize and restrain, to declare and limit, to justify and condemn.

In examining this fraught, contested, and evolving relationship, Law and War investigates such questions as: What can efforts to subsume war under the logic of law teach us about the aspirations and limits of law? How have paradigms of law and war changed as a result of the contact with new forms of struggle? How has globalization and continuing practices of occupation reframed the relationship between law and war?
The Press has not yet posted a Table of Contents, but the International Law Reporter has noted a few items of interest, including:
  • Gabriella Blum, The Individualization of War: From War to Policing in the Regulation of Armed Combat
  • Samuel Moyn, From Antiwar Politics to Antitorture Politics
  • Larry May, War Crimes Trials during and after War

Two by Plater et al. on Criminal Prosecution and Punishment in Australia

David Plater, University of South Australia School of Law, has posted two articles on the history of criminal prosecution and punishment Down Under.  The first, with Sangeetha Royan is The Development and Application in Nineteenth Century Australia of the Prosecutor's Role as a Minister of Justice: Rhetoric or Reality?   Here is the abstract:    
The English notion of the proper prosecutorial role as that of the non-partisan ‘minister of justice’ was expressed in Australia by colonial legal practitioners but in practice the application of this role was to often prove a matter of rhetoric rather than of reality. Prosecutors in practice often acted as zealous and partisan advocates. This article considers the development of the prosecutorial role in Australia from 1824 to the early 20th century and, in particular, the extent to which the minister of justice model was applied in Australia. This article also examines the factors that influenced the perception and performance of the prosecutorial role in Australia. It is suggested that colonial prosecutors in practice were motivated by subjective factors such as the class or race of the accused and the nature of the crime that they were charged with. Prosecutorial zeal appears explicable, not by the tension of acting in an adversarial system, but in confronting defendants who were regarded as ‘criminals of the deepest dye’ who posed a real ‘threat’ to colonial society. Though the minister of justice role was applied in Australia on occasion, it was often reserved for ‘respectable’ defendants and to be the apparent product of class bias rather than genuine prosecutorial restraint. Nevertheless, despite the inconsistent development in Australia of the minister of justice role, as the 19th century progressed, it was increasingly applied as a matter of both rhetoric and reality, reflecting the increasing stability and confidence of the Australian colonies.
The second, with Sue Milne, University of South Australia School of Law, is ‘The Quality of Mercy is Not Strained’: The Norfolk Island Mutineers and the Exercise of the Death Penalty in Colonial Australia 1824-1860.  Here is the abstract:
The exercise of the death penalty in England in the 19th century has long been a subject of academic scrutiny and popular interest. Scholars have also studied the role and importance of the prerogative of mercy in the context of the capital sanction. The exercise of both the death penalty and the prerogative of mercy, in comparison, in colonial Australia have been often overlooked. This article, which is part of a wider ongoing study, considers the rationale and operation of the prerogative of mercy in colonial Australia during the period 1824 to 1860. The focus is on those convicted of a capital offence in the Australian colonies, particularly convicts already serving a sentence for previous offences, and who, indeed, might also be a previous recipient of a pardon. The article considers the question of secondary punishment and the grant of mercy in respect of three notable incidences of mutiny and piracy at Norfolk Island in 1827, 1834 and 1842. This article argues that whilst there was manifest a strong theme of punishment and deterrence in the exercise of the death penalty, these were not the sole or even paramount considerations. Rather it is argued that the colonial authorities, even in relation to those offenders who were “beyond the pale” such as the Norfolk Island mutineers, took seriously the exercise of mercy in the context of emerging self-government. The implementation of the death penalty was not randomly administered, but was considered within the operation of the rule of law, where, as far as possible, even in respect of offenders of the “deepest dye,” “mercy seasons justice.”

Thursday, December 19, 2013

Miller on Property in the Bible

Geoffrey P. Miller, NYU School of Law, has posted Property in the Bible.  Here is the abstract:  
The Bible is a rich source of information about the theory and practice of property law in ancient times. The text deals insightfully with the concept of the root of title and sets forth sensible rules for defining property rights, protecting those rights against infringement, and facilitating transfers of ownership. Overall, the institutions of ancient Israel responded in an efficient way to the challenge of administering a regime of private property under technological conditions which were substantially less advanced than those which prevail today.

CLH 1:2 (December 2013)

The latest issue of Comparative Legal History is out. We've previously noticed the publication of the inaugural issue.  The preface to 1:1 serves as a mission statement for the journal.  Here is the preface to 1:2.

The issue’s four articles appear below.  For the book reviews, consult the TOC.

Sarah A. Hinchliffe, Mediating Foreign Norms and Local Imperatives: Intellectual Property 'Law' between the East and the West, from Imperial China to 'Modern' Times
China is recognised as one of the oldest continuous civilisations in the world and has arguably been a forerunner in economic and technological developments for centuries. This article explores the motivations behind the protection of property rights in imperial China (221 BC – AD 1911), including Chinese efforts to regulate the reproduction of literary innovation and creation prior to the twentieth century. It suggests that the recognition and regulation of intellectual property appears to have been curtailed there by both institutional and cultural factors.
Chao-ju Dhen, Producing 'Lack as Tradition': A Feminist Critique of Legal Orientalism in Colonial Taiwan
This paper is an investigation into and a critique of the ideological construction of East Asian legal tradition as a 'lack' in the Japanese colonial project in Taiwan. Echoing Teemu Ruskola's and Laura Nader's critiques of Legal Orientalism but in a setting that transcends the West/non-West division, this study explores the colonised people's sense of legal inferiority—how they internalised Orientalism while claiming local subjectivity— through a feminist lens, demonstrating the gender dimension of Legal Orientalism. The discussion begins with an analysis of the colonised people's 'lagging behind' in the civilising process and their 'lack' of rule of law in colonial eyes, followed by an exploration of the 'lag' and 'lack' discourses both in the debate about whether or not Japan should have applied its civil code in the colony of Taiwan and in texts on colonial women's liberation, and concludes with a brief discussion on how the perception of 'lack as tradition' informs the narratives of Orientalist legal history.
Lee Godden and Niranjan Casinader, The Kandyan Convention 1815: Consolidating the British Empire in Colonial Ceylon
The Kandyan Convention (1815) was definitive in consolidating British sovereignty over colonial Ceylon. The Convention and later legal instruments reflect a shift in British colonial policy regarding the acquisition of territories of Empire. Previously, British Government policy had favoured indirect rule through mercantile interests. Seizing opportunities provided by Kandyan power struggles, Governor Brownrigg, at the far reaches of Empire, implemented direct British rule. The Convention, however, straddled an emerging sense of 'rights' by making a specific commitment to 'protect' Buddhist faith and authority. The centrality of Buddhism to Sinhalese society made these provisions a powerful inducement for the Kandyan ruling elite. Nevertheless, as subsequent events revealed, the protection of these rights proved to be less important than the establishment of full British colonial control through forceful administrative measures. The Convention was, therefore, an early precursor to the modes of governance pursued by the British Government as its formal Empire expanded over the latter part of the nineteenth century.
Peter Heehs, 'Not a Question of Theology'? Religions, Religious Institutions, and the Courts in India
Courts have played an important role in defining the relationship between religions and the state in India. Litigation by or against religious institutions has obliged the judiciary to engage in quasi-theological reasoning in order to determine what is 'religious', and therefore beyond state control, and what is 'secular', and therefore subject to government regulation. In pre-colonial India, religious conflicts were settled by means of local arbitration or by the threat or fact of violence. After British legal institutions were established, groups and individuals learned to use the courts to settle such conflicts. This tendency to seek legal solutions to religious disputes has continued in independent India. Since the state tends always to seek an increase of its powers, courts frequently decide such cases to the detriment of the litigants. Examples studied include the Maharaj Libel Case (1862), the Ramakrishna Mission Case (1995), and the Sri Aurobindo Society Case (1982).
Hat tip: Juris Diversitas

Rahman on Financial Reform in Historical Perspective

K. Sabeel Rahman, the Reginald Lewis Fellow at the Harvard Law School, has posted Managerialism, Structuralism, and Moral Judgment: Law, Reform Discourse, and the Pathologies of Financial Reform in Historical Perspective.  Here is the abstract:
Five years after the financial crisis, it remains unclear the degree to which regulatory reforms have succeeded in addressing the root causes of the financial crisis. This paper argues that ongoing policy debates about financial reform are undermined by a tension not between pro- and anti-regulatory views, but rather a deeper tension within reform discourse between two rival conceptual frameworks of how financial regulation should operate. The predominant approach to financial regulation in the United States, especially on matters of systemic risk and financial stability has revolved around a “managerial” approach, that relies heavily on the ability of insulated expert regulators to optimize and manage the vicissitudes of the financial system. Although this approach may seem logical, it is nevertheless at odds with a rival reform discourse present today, and historically. In this rival approach, the emphasis is less on expert macroeconomic management, and more on “structural” regulations: reforms that impose strict constraints on the size and powers of financial firms, potentially at greater cost to industry but also more easily implemented.

This paper identifies this disjuncture between managerial and structural approaches in financial regulation discourse today (Part I). It then traces historically how the managerial ethic comes to dominate financial reform law and policy over the last century (Part II). In short, I argue that the gravitation towards managerialism stems from an underlying unease with making moral judgments about the social value of finance, and an overeager deference to financial innovation as an unqualified good. This avoidance of moral judgment in turn has created pathologies in the law of financial regulation, displacing a fundamentally moral and substantive judgment about the value of various financial firms and activities into proxy debates over, for example, agency jurisdiction, centralization, or the quality of regulatory expertise (Part III). These pathologies continue to constrain the effective implementation of financial reform in the United States. The paper then returns to some of the major financial regulation debates today to suggest that addressing issues like “too-big-to-fail” or new financial instruments necessarily requires making a moral judgment about the social value of finance — and that such judgments, once embraced, open up a range of more structural, rather than managerial, approaches to financial reform (Part IV).
Contents after the jump.

Gems of Scholarship I Discovered along the Way

I have found that legal historians, especially, relish in the construction of hierarchies. There are the leading works, the leading scholars, the persons at ASLH conferences worthy of conversing with (but see Miss Peppercorn’s advice). Of course one needs such lists of what to read and who is at the top. But just as I am attracted in my scholarship to recovering the stories of those who haven’t previously “made the list,” I’m also attracted to underappreciated (in legal history, at least) gems of scholarship. Here are a few such gems I discovered along the way in researching secondary sources while writing Defining the Struggle

* I had not thought a great deal about the connections between literature and the civil rights movement. Then I read an impressively succinct article by Christopher Metress, using Hayden White’s concept of history as “emplotment” to criticize “an unwillingness to acknowledge the cognitive value of literary discourse in the production of social memory” (141). Metress juxtaposes a reading of Martin Luther King Jr.’s “Why We Can’t Wait” speech against Anthony Groom’s 2001 novel Bombingham, which interweaves the story of the 1964 Birmingham church bombing that killed four little girls in Alabama with a fictional character’s experiences during the Vietnam war in targeting innocents for slaughter. I can’t do justice to Metress’s conclusions in this short space, but do commend the essay to readers.

* Thus primed to think harder about literature as an historical artifact, I began researching the voices of African American middle-class women activists at the turn of the twentieth century. I became especially interested in the women who joined Du Bois’s Niagara Movement once it lifted its policy prohibiting women’s membership (yes, somewhat ironic for an organization devoted to citizenship equality). I noticed that many of these women were involved in literary pursuits, either in writing literature themselves, as did Barbara Pope, the plaintiff in the Niagara Movement’s only test case challenging Jim Crow train cars under the interstate commerce clause, or in promoting and studying it, as did Medora Gould, a teacher and activist (who, as history would have it, is the familial ancestor of law professor and former NLRB chair William Gould IV). In seeking to understand more about these women’s intellectual commitments and the connection between these commitments and their social activism, I stumbled upon Elizabeth McHenry’s Forgotten Readers: Recovering the Lost History of African American Literary Societies, a lovely, deeply considered work of exploration that seemingly has very little to do with legal history but which really does have a lot to do with how early twentieth century African American women thought about and pursued their commitments to law-related social reform activism.

* Another interesting and helpful discovery: Kate Dossett’s Bridging Race Divides: Black Nationalism, Feminism, and Integration in the United States, 1896-1935. Black nationalism is, obviously, a very important part of the civil rights history story. I had always thought about it as taking social reform work “out of the law”--about abandoning the commitment to law, general public institutions, and being part of one polity in favor of going into a separate space. And, I now realize, I had thought about Black nationalism as primarily masculine. This book helped me make sense of where my research had taken me to in trying to understand African American women’s early twentieth century activism, as a kind of “bridging” of the public/private, law/voluntarism, integration/separatism divides.

I’m sure we all have our favorites on the list of underappreciated gems of scholarship; I would welcome anyone sharing their lists with me.