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Few whites who violently resisted the civil rights struggle were charged with crimes in the 1950s and 1960s. But the tide of a long-deferred justice began to change in 1994, when a Mississippi jury convicted Byron De La Beckwith for the 1963 murder of Medgar Evers. Since then, more than one hundred murder cases have been reopened, resulting in more than a dozen trials. But how much did these public trials contribute to a public reckoning with America’s racist past? Racial Reckoning investigates that question, along with the political pressures and cultural forces that compelled the legal system to revisit these decades-old crimes.
Renee C. Romano brings readers into the courthouse for the trials of the civil rights era’s most infamous killings, including the Birmingham church bombing and the triple murder of Andrew Goodman, James Chaney, and Mickey Schwerner. The activists who succeeded in reopening these cases hoped that bringing those responsible to justice would serve to highlight the state-sanctioned racism that had condoned the killings and the lingering effects of racial violence. Courtroom procedures, however, worked against a deeper exploration of the state’s complicity in murder or a full accounting of racial injustices, past or present. Yet the media and a new generation of white southerners—a different breed from the dying Klansmen on trial—saw the convictions as proof of the politically rehabilitated South and stamped “case closed” on America’s legacy of violent racism. Romano shows why addressing the nation’s troubled racial past will require more than legal justice.A few blurbs:
“[An] insightful new book on the cold cases of the civil rights era.”—Kevin Boyle
“Over the last two decades, the violent death throes of Jim Crow have been replayed in courtrooms across the South, as prosecutors have reopened some of the most notorious murders of the civil rights era. In this wise, probing, gently skeptical book, Romano considers why these prosecutions are happening now, the truths they reveal and conceal, and what they tell us about America’s continuing racial odyssey.”—James T. Campbell
In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are.
Though Seminole Rock has come under scrutiny in recent years from scholars and the Supreme Court, the modern debate on whether and how to reform Seminole Rock deference still remains untethered from its roots and evolution. This Article is the first to consider the historical foundations of Seminole Rock and closely examine how this doctrine has risen to its current stature. In particular, this Article starts by describing Seminole Rock’s modest origins, which began in relatively limited price control contexts in the 1940s and 1950s during the first period of expansion of the modern administrative state. It goes on to examine the changing tides of the 1960s and describes how Seminole Rock deference shed its origins and emerged as a more widely-applied doctrine of judicial restraint by the 1970s, a time in which we experienced yet another expansion of the administrative state and a major transformation in administrative law theory.
Most notable, the gradual but broad expansion of the Seminole Rock doctrine has occurred largely without explanation from the courts and with very little commentary from academics. This Article details how, from its highly specific origins in 1945 to its evolution as an “axiom of judicial review” by the 1970s, Seminole Rock escaped critical examination by courts and scholars. By uncovering the historical roots of the Seminole Rock doctrine, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.
[From the website of the University of Cambridge Faculty of Law.]
More information is available here.This book considers an important and largely neglected area of Islamic law by exploring how medieval Muslim jurists resolved criminal cases that could not be proven beyond a doubt. Intisar A. Rabb calls into question a controversial popular notion about Islamic law today, which is that Islamic law is a divine legal tradition that has little room for discretion or doubt, particularly in Islamic criminal law. Despite its contemporary popularity, that notion turns out to have been far outside the mainstream of Islamic law for most of its history. Instead of rejecting doubt, medieval Muslim scholars largely embraced it. In fact, they used doubt to enlarge their own power and to construct Islamic criminal law itself. Through a close examination of legal, historical, and theological sources, and a range of illustrative case studies, this book shows that Muslim jurists developed a highly sophisticated and regulated system for dealing with Islam's unique concept of doubt, which evolved from the seventh to the sixteenth century.
Gordon W. Smith, PhD, dedicated much of his life to researching Canada's sovereignty in the Arctic. A historian by training, his 1952 dissertation from Columbia University on "The Historical and Legal Background of Canada's Arctic Claims" remains a foundational work on the topic, as does his 1966 chapter "Sovereignty in the North: The Canadian Aspect of an International Problem," in R. St. J. Macdonald's The Arctic Frontier. This work is the first in a project to edit and publish Smith's unpublished opus a manuscript on "A Historical and Legal Study of Sovereignty in the Canadian North and Related Law of the Sea Problems." Written over three decades (yet incomplete at the time of his death in 2000), this work may well be the most comprehensive study on the nature and importance of the Canadian North in existence.
Volume 1: Terrestrial Sovereignty provides the most comprehensive documentation yet available on the post-Confederation history of Canadian sovereignty in the north. As Arctic sovereignty and security issues return to the forefront of public debate, this invaluable resource provides the foundation upon which we may expand our understanding of Canada's claims from the original transfers of the northern territories in 1870 and 1880 through to the late twentieth century. The book provides a wealth of detail, ranging from administrative formation and delineation of the northern territories through to other activities including government expeditions to northern waters, foreign whaling, the Alaska boundary dispute, northern exploration between 1870 and 1918, the background of Canada's sector claim, the question concerning Danish sovereignty over Greenland and its relation to Canadian interests, the Ellesmere Island affair, the activities of American explorers in the Canadian North, and the Eastern Arctic Patrol. The final chapter examines the Eastern Greenland case and its implications for Canada.Free PDFs of individual chapters are available for download here, at the Press's website.
For many advocates of European integration in the late 1940s and early 1950s, the seeming example of technocratic independence under the New Deal offered a justification for the delegation of regulatory power to autonomous supranational bodies. The New Deal represented, from this perspective, the triumph of “functionalist” governance — that is, governance that evolved as a function of the problems it sought to address, rather than being determined by seemingly outdated constitutional categories (“separation of powers” in the purported case of the New Deal, “national sovereignty” in European integration). The irony, of course, was that Roosevelt’s New Deal was much less receptive, both in principle and practice, to the sort of technocratic independence that these advocates believed to be inevitable and desirable in the case of integration. Indeed, consistent with a more nuanced understanding of the New Deal model, European integration would eventually secure a durable institutional existence only after being brought more directly under the shared control and oversight of the national executives of the member states. Contrary to expectations of functionalist (and later so-called neofunctionalist) theorists, governance beyond the state in postwar Western Europe did not evolve merely as a consequence of functional demands for technocratic independence. Rather, two additional dimensions of change also proved decisive: the political — or the defense of existing institutional advantages and/or the struggle to realize new ones; and the cultural — or the mobilization of conceptions of “right” or legitimate governance in the face of purported functional and political pressures for change. As a consequence of the interplay of all three dimensions — functional, political, and cultural — European integration ultimately settled on a form of governance in which the political oversight and control of national executives played a decisive role, a feature of European supranationalism that persists to this day. Even if a measure of supranational technocratic autonomy was broadly recognized as functionally necessary to the European project, national executives worked successfully to preserve significant institutional advantages in the integration process by mobilizing conceptions of legitimacy that, for better or worse, remain wedded to national institutions to a significant degree. It was through national executive oversight — eventually supplemented by national parliamentary and national judicial oversight — that integration has been able to maintain a connection to conceptions of democratic and constitutional legitimacy on the national level, even as functional pressures seemed to warrant a shift in governance to autonomous supranational bodies.
More information is available here.The pesticide dibromochloropropane, known as DBCP, was developed by the chemical companies Dow and Shell in the 1950s to target wormlike, soil-dwelling creatures called nematodes. Despite signs that the chemical was dangerous, it was widely used in U.S. agriculture and on Chiquita and Dole banana plantations in Central America. In the late 1970s, DBCP was linked to male sterility, but an uneven regulatory process left many workers—especially on Dole’s banana farms—exposed for years after health risks were known.
Susanna Rankin Bohme tells an intriguing, multilayered history that spans fifty years, highlighting the transnational reach of corporations and social justice movements. Toxic Injustice links health inequalities and worker struggles as it charts how people excluded from workplace and legal protections have found ways to challenge power structures and seek justice from states and transnational corporations alike.
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four English prison reformers of the eighteenth and nineteenth centuries: John Howard, George Onesiphorus Paul, Elizabeth Fry, and John T. Burt. They built on the work of members of the House of Commons’ Committee Appointed [in 1728] to Enquire into the State of the Goals of This Kingdom, also known as the Gaol Committee. They influenced and were influenced by writers such as Cesare marchese di Beccaria (1738-1794), Jeremy Bentham (1748-1832), and Samuel Romilly (1757-1818), among others. The exhibit title comes from the epic poem “Winter” by James Thomson (1700-1748), in which he refers to the work in of the Gaol Committee in England’s prisons: “Unpitied, and unheard, where mis’ry moans; Where sickness pines, where thirst and hunger burn.”
Elizabeth Fry (HLS Library)
This exhibit was curated by Margaret Peachy and Mary Person, Historical & Special Collections, Harvard Law School Library. It will be on view through April 24, 2015 in the Harvard Law School Library's Caspersen Room.
A pdf of the TOC is here.Fascism was one of the twentieth century’s principal political forces, and one of the most violent and problematic. Brutal, repressive and in some cases totalitarian, the fascist and authoritarian regimes of the early twentieth century, in Europe and beyond, sought to create revolutionary new orders that crushed their opponents. A central component of such regimes' exertion of control was criminal law, a focal point and key instrument of State punitive and repressive power. This collection brings together a range of original essays by international experts in the field to explore questions of criminal law under Italian Fascism and other similar regimes, including Franco's Spain, Vargas's Brazil and interwar Romania and Japan. Addressing issues of substantive criminal law, criminology and ideology, the form and function of criminal justice institutions, and the role and perception of criminal law in processes of transition, the collection casts new light on fascism's criminal legal history and related questions of theoretical interpretation and historiography. At the heart of the collection is the problematic issue of continuity and similarity among fascist systems and preceding, contemporaneous and subsequent legal orders, an issue that goes to the heart of fascist regimes' historical identity and the complex relationship between them and the legal orders constructed in their aftermath. The collection thus makes an innovative contribution both to the comparative understanding of fascism, and to critical engagement with the foundations and modalities of criminal law across systems.
Dissent has a review by Samuel Moyn titled, "Fantasies of Federalism," which reviews both Frederick Cooper's Citizenship between Empire and Nations: Remaking France and French Africa, 1945-1960 (Princeton University Press) and Gary Wilder's Freedom Time: Negritude, Decolonization, and the Future of the World (Duke University Press).
On Books & Ideas, Olivier Burtin reviews Let Us Fight as Free Men: Black Soldiers and Civil Rights by Christine Knauer (University of Pennsylvania Press)."The greatest scholarly contribution of Let Us Fight as Free Men, its emphasis on discourse and textual analysis, is also the source of its greatest limitation. By focusing so much on what her actors said, Knauer often either forgets to provide the necessary contextual information—for instance when she mentions the first victory in Korea by an all-black unit in July 1950 (p. 175) without telling us exactly how this victory came about—or, inversely, dwells on topics that seem only loosely connected with the main theme of her story—as is the case with her lengthy discussion of how the black press fell victim to Orientalist clichés in its coverage of South Korean soldiers and women (pp. 153-159). The result is a book whose narrative thread may be difficult to follow for readers not already familiar with the details of this time period."The Federal Lawyer has new reviews this week, including one of a volume edited by John Oberdiek, Philosophical Foundations of the Law of Torts (Oxford University Press) and another review of Sotirios Barber's The Fallacies of States' Rights (Harvard University Press). Both reviews are available here.
"JUSTICE ANTHONY KENNEDY once famously suggested that the procedural nightmare depicted in Franz Kafka’s The Trial “is actually closer to reality than fantasy as far as the client’s perception” of our criminal justice system. In his short but dense work, Kafka’s Law: The Trial and American Criminal Justice, Robert P. Burns takes the comparison further, beyond the client’s perception to the realities of our system itself. This is a deeply pessimistic study about the way justice is meted out in this country. "
""Ghettoside" is her penetrating look at the Los Angeles Police Department — the title is taken from the nickname a Watts gang member gave to his neighborhood. A staff writer at the L.A. Times and the creator of a popular blog, Homicide Report, Leovy is not a newcomer to crime reporting. In "Ghettoside," she adopts an anthropologist's gaze to unravel the workings of this tribe. She tracks the daily movements of homicide detectives working cases that rarely attract the media spotlight. Think "Boyz N the Hood," not "Chinatown" and "L.A. Confidential." This is gritty reporting that matches the police work behind it."
"Karen J. Alter’s The New Terrain of International Law explores the immense contribution that international courts and tribunals provide in the development and strengthening of international law and international politics. In doing so, Alter, a professor of political science and law at Northwestern University, builds from an impressive amount of historical, political, and legal data. Alter starts from the observation that the proliferation of international courts and tribunals is a real paradigm changer for international law, and, importantly, she seeks to conceptualize how these new-style international courts affect domestic and international politics across different states, courts, cases, and issues."
The Center for the Study of Law and Society (credit) Monday, February 9 - Kaaryn Gustafson
Professor of Law, UC Irvine Law School
"The Legal Manufacturing of Hardworking Bastards: Marriage, Bastardy, Apprenticeship, and the Policing of Race and Labor in North Carolina, 1741-1870"Monday, March 9 - Steven Wilf
Professor of Law, University of Connecticut School of Law
"(Re)-Contextualizing Intellectual Property:
Social Conflict and Social Practice in Late 19th Century America"Monday, April 13 - Gregory Alexander
A. Robert Noll Professor of Law, Cornell University Law School
"The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam"
Monday, April 20 - Ariela Gross
John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
"From the Streets to the Courts: The Grassroots History of Colorblind Conservatism"
In recent years, numerous lawmakers, policy analysts, and scholars have been decrying the many defects of the present U.S. income tax system. Few have attempted to defend our return-based mass income tax. This essay reviews Learning to Love Form 1040, Lawrence Zelenak’s stirring and persuasive defense of a simplified version of our present federal income tax system. In contrast to the conventional economic critiques, Zelenak explores the underappreciated social, cultural, and political benefits of a return-based, mass income tax. Chief among these, he argues, is the existing regime’s potential to raise the tax consciousness of the average citizen and to enhance modern notions of fiscal citizenship.The full review essay is available here.
In addition to reviewing the central claims and findings of Learning to Love Form 1040, this essay argues that, like most provocative texts, this book is not the final word on U.S. tax reform. In the process of starting an important conversation, Zelenak leaves open several significant issues. After assessing the book’s evidentiary base, particularly its historical claims about the World War II origins of the U.S. mass income tax and changing American attitudes towards taxation, this essay turns to Zelenak’s specific reform proposals and highlights some of the missed opportunities. Finally, the review concludes by contending that Zelenak’s original and inspiring defense of the income tax is a uniquely early twenty-first-century project – one that at times wistfully reflects on an earlier age to show how we can revive a robust and pragmatic sense of fiscal citizenship.
The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause’s original understanding does not support this authority, with radical implications for current doctrine.
This Article uses unexamined historical sources to question this debate’s fundamental premise. It argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This Article instead posits alternate sources for federal authority over Indian affairs, drawing particularly on the Washington Administration. Asserting federal power against the states, the Administration embraced a holistic constitutional reading akin to present-day field preemption. With respect to authority over Indians, the Administration, through law-of-nations interpretations, asserted ultimate U.S. sovereignty over tribes, while acknowledging Native autonomy beyond these limitations. Yet these supposedly narrow legal principles ultimately formed the basis for the later elaboration of plenary power over tribes.
On the one hand, this history provides a more solid foundation for doctrinal principles derided as incoherent. On the other hand, it suggests more cabined federal authority over Indians. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of constitutional understandings.
A few blurbs:The Glorious Revolution and the Continuity of Law explores the relationship between law and revolution. Revolt - armed or not - is often viewed as the overthrow of legitimate rulers. Historical experience, however, shows that revolutions are frequently accompanied by the invocation rather than the repudiation of law. No example is clearer than that of the Glorious Revolution of 1688-89. At that time the unpopular but lawful Catholic king, James II, lost his throne and was replaced by his Protestant son-in-law and daughter, William of Orange and Mary, with James's attempt to recapture the throne thwarted at the Battle of the Boyne in Ireland. The revolutionaries had to negotiate two contradictory but intensely held convictions. The first was that the essential role of law in defining and regulating the activity of the state must be maintained. The second was that constitutional arrangements to limit the unilateral authority of the monarch and preserve an indispensable role for the houses of parliament in public decision-making had to be established. In the circumstances of 1688-89, the revolutionaries could not be faithful to the second without betraying the first. Their attempts to reconcile these conflicting objectives involved the frequent employment of legal rhetoric to justify their actions. In so doing, they necessarily used the word "law" in different ways. It could denote the specific rules of positive law; it could simply express devotion to the large political and social values that underlay the legal system; or it could do something in between. In 1688-89 it meant all those things to different participants at different times. This study adds a new dimension to the literature of the Glorious Revolution by describing, analyzing and elaborating this central paradox: the revolutionaries tried to break the rules of the constitution and, at the same time, be true to them.
"A first-rate history based on thorough and extensive research, including many important original sources . . . the best account so far of the relevant constitutional, legal, and political issues debated and resolved during and after the Glorious Revolution." --Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of LawMore information is available here.
"Digs deeper and more rewardingly into important aspects of the Glorious Revolution than anything yet produced and it will be recognized as a good argument for returning to telling legal matters that are often overlooked in prevailing approaches." --Thomas Green, Professor Emeritus, University of Michigan Law School
A few blurbs:In early 20th-century Yemen, a sizable Jewish population was subject to sumptuary laws and social restrictions. Jews regularly came into contact with Islamic courts and Muslim jurists, by choice and by necessity, became embroiled in the most intimate details of their Jewish neighbors’ lives. Mark S. Wagner draws on autobiographical writings to study the careers of three Jewish intermediaries who used their knowledge of Islamic law to manipulate the shari‘a for their own benefit and for the good of their community. The result is a fresh perspective on the place of religious minorities in Muslim societies.
"[A]rticulate[s] brilliantly the complexity of Jewish-Muslim interaction through a series of fascinating and hitherto unexplored court cases and scholars. Wagner convincingly illustrates that these two religious communities were far from being mutually exclusive, but rather were enmeshed in each other’s lives in the most remarkable and unexpected ways, and in a real sense mutually constitutive." —Bernard Haykel, Princeton UniversityMore information is available here.
"In beautiful prose, Mark Wagner explores the complex contours of Yemen's shari’a-based juridical system, considering how individual Yemeni Jewish women and men navigated this legal order and the larger social orbit of Yemeni society. Moving ably between Arabic and Hebrew sources, and between rich case studies and weighty conceptual questions, Jews and Islamic Law in Early 20th-Century Yemen will be prized by scholars of Jewish Studies and Middle East Studies alike for its erudition, clarity, and originality." —Sarah Abrevaya Stein, UCLA
In 2005, India passed a law giving individuals the right to information on the State’s acts and decisions. Using this law, the authors in this edited volume applied for official records about four of the worst episodes of mass violence in independent India. These traumatic events had not previously been scrutinised using the recently-minted law on this scale. The authors filed over 800 applications for information; the results of their unusual endeavour led to this book. Sifting through hundreds of government documents on criminal justice, administrative discipline, commissions of inquiry, emergency relief and monetary compensation, the authors examine the State’s response to sectarian violence in Nellie in 1983, Delhi in 1984, Bhagalpur in 1989 and Gujarat in 2002. Hundreds of people, most of them religious minorities, were killed, injured, displaced from their homes, and stripped of their livelihoods in these episodes of mass violence. In each instance, violence was encouraged by the politically powerful and tolerated by the police. This book examines official records and shows how State apathy in the wake of violence thwarted attempts to rehabilitate survivors and punish perpetrators. These failures are not simply an unfortunate coincidence. The State’s own records reveal that national and state governments have been negligent in recurring, systematic ways. By detailing how State processes have failed, this disquieting book demonstrates that the State could have pursued justice and reparation for victims of mass violence in the past, and could, in substantial measure, still do so.
This article takes criticisms of employment discrimination in the aftermath of the creation of workmen’s compensation legislation as a point of entry for arguing that compensation laws created new incentives for employment discrimination. Compensation laws turned the costs of employees’ workplace accidents into a risk that many employers sought to manage by screening job applicants in a manner analogous to how insurance companies screened policy applicants. While numerous critics blamed insurers for discrimination, I argue that the problem was lack of insurance. The less that companies pooled their compensation risks via insurance, the greater the incentives for employers to stop employing people they would have previously been willing to hire.Subscribers to Project Muse may access full content here.
"She was one of the early tax resisters, refusing to pay for licences for her dogs and carriage. She ignored all letters demanding payment until she was issued with a fine. Instead, she equipped her lawyer with a disquisition on female suffrage and the injustice of taxation without representation and sent him to court to read it to the judge. Eventually bailiffs turned up at her house and seized a seven-stone diamond ring, worth far more than she owed. But the suffragettes won the war: when the ring came up at auction, they flooded the auction house and refused to bid for it until the auctioneer was forced to lower the starting bid to £10 – at which price it was bought by a suffragette and returned to Sophia, amid rapturous applause."
And, All Eyes Are Upon Us: Race and Politics from Boston to Brooklyn by Jason Sokol (Basic) is also reviewed on HNN."The information comes at us steadily—there are useful facts on almost every page—but the narrative is spartanly furnished. There’s little portraiture, not much drama, and only enough mood-setting context to let us know what America was up to while L.B.J. and Congress were contriving new ways to strengthen the social safety net and exhaust the national treasury. The emphasis falls instead on the high, and sometimes low, workings of legislative government, as bills inched through committees and subcommittees, nicked and scarred in “mark-up” sessions; the feint-and-parry of parliamentary maneuver; and, above all, the votes. / This patient no-frills approach offers illuminations that a more cinematic treatment might not. "
Managing Borders
An Interdisciplinary Conference on American Immigration Marking the 50th Anniversary of the Immigration and Nationality Act of 1965
CONFERENCE WEBSITE: http://heymancenter.org/events/immigration-conference/
DATE: April 3-4, 2015Check out the confirmed participants after the jump.
LOCATION: Heyman Center for the Humanities, Columbia University
(The event is open and free to the public, but seating is limited. Seating is first come, first served.)
CONFERENCE DESCRIPTION:
In October 1965, President Lyndon B. Johnson signed the Immigration and Nationality Act. Also known as the Hart-Celler Act, this legislation decisively shaped the patterns of immigration to the United States and global migration that still continue today. This conference aims to use the 50th anniversary of this pivotal legislation in 2015 as an opportunity to explore the latest scholarship on American immigration, assess the state of the field, and identify new tasks and challenges for immigration scholars.
Coming from a wide range of academic disciplines, including history, literature, cultural studies, sociology, anthropology, political science, and law, participants in this interdisciplinary conference collectively seek to achieve a better understanding of issues and problems associated to American immigration today under the theme of “Managing Borders.” Broadly defined, “Managing Borders” encourages participants to examine the diverse roles of real and imaginative “borders” in the history of American immigration up to the present. How has the government developed and implemented policies for border control? How have immigrants crossed various kinds of borders and how were their border-crossing experiences like? How have social, cultural, economic, racial, and psychological factors shaped the relationship, a form of border, between citizens and noncitizens, between ethnic groups, or within a single ethnic group? How has immigration to the United States, or border-crossing to America, fitted into broader trends of global migration? How have scholars conceptualized various types of borders in the study of American immigration and global migration? Finally, what kinds of disciplinary borders now exist in migration scholarship, and how can we transcend them? As a whole, the conference hopes to provoke conversations that would lead the study of American immigration in an age that is simultaneously borderless and border-raising.
In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting fire in a theater into First Amendment law. Nearly one hundred years later, this analogy remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases and it has permeated popular discourse on the scope of individual rights.
This Essay examines the both the origins and the later life of Holmes’s theater analogy. Part One is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world of the late nineteenth and early twentieth centuries, when false shouts of fire in theaters were a pervasive problem that killed hundreds of people both in the United States and Great Britain. The person who shouted “fire” in a crowded theater was a recognizable stock villain of popular culture, condemned in newspapers, magazines and books from coast to coast. The analogy, lifted by Holmes from a federal prosecutor in Cleveland, was rooted in this larger world of popular culture. Understanding this world also answers another question: Why do lawyers and non-lawyers alike refer to “shouting fire in a crowded theater” rather than “falsely shouting fire in a theater and causing a panic,” which is what Holmes actually wrote? Along the way, we will encounter a real detective and even a mustachioed villain.
Part Two is based on an empirical study of the 278 subsequent judicial opinions that employ the theater analogy. In lower courts, opinions that invoke the analogy, not surprisingly, typically reject free speech claims, but opinions that paraphrase Holmes are, counter-intuitively, more receptive to free speech claims than opinions that quote Holmes precisely.
The Essay concludes by noting that the theater analogy has largely lost its capacity to frighten in the visceral way that Holmes’s audience would have understood it. Although it persists in constitutional law, it has become rarified and largely abstract, perhaps contributing in some small way to the general libertarian trend of modern First Amendment law.
Hat tip: Michael WidenerThe conference theme is “Legal Reform and Innovation.” Although a majority of ANZLHS conference papers focus on Australian and New Zealand legal history, we welcome contributions without regard to period or place covered.
The 2015 conference will also incorporate a third (and positively final) Adelaide Blackstone symposium. Following “William Blackstone: Life, Thought, Influence”(2007) and “Re-interpreting Blackstone’s Commentaries” (2012), the 2015 symposium will discuss “Blackstone and his Critics.” On Wednesday 9 December, it is anticipated that there will be a Workshop for Early Career Researchers and Higher Degree by Research students.
Proposals of papers and panels are now invited. All proposals, whether for individual papers or panels (typically consisting of three speakers, a chair and/or commentator) should include contact details, a brief biographical note, the title(s) of paper(s) and an outline of each paper (250 words maximum). Proposals should indicate whether they are to be considered for the conference/symposium or the ECR/HDR workshop. [Paper or panel proposals are due to anzlhs2015@adelaide.edu.au no later than March 31, 2015.]
New Jersey’s legal system was plagued with injustices from the time the system was established through the mid-twentieth century. In Battleground New Jersey, historian and author of Boardwalk Empire, Nelson Johnson chronicles reforms to the system through the dramatic stories of Arthur T. Vanderbilt—the first chief justice of the state’s modern-era Supreme Court—and Frank Hague—legendary mayor of Jersey City. Two of the most powerful politicians in twentieth-century America, Vanderbilt and Hague clashed on matters of public policy and over the need to reform New Jersey’s antiquated and corrupt court system. Their battles made headlines and eventually led to legal reform, transforming New Jersey’s court system into one of the most highly regarded in America.
Vanderbilt’s power came through mastering the law, serving as dean of New York University Law School, preaching court reform as president of the American Bar Association, and organizing suburban voters before other politicians recognized their importance. Hague, a remarkably successful sixth-grade dropout, amassed his power by exploiting people’s foibles, crushing his rivals, accumulating a fortune through extortion, subverting the law, and taking care of business in his own backyard. They were different ethnically, culturally, and temperamentally, but they shared the goals of power.
Relying upon previously unexamined personal files of Vanderbilt, Johnson’s engaging chronicle reveals the hatred the lawyer had for the mayor and the lengths Vanderbilt went to in an effort to destroy Hague. Battleground New Jersey illustrates the difficulty in adapting government to a changing world, and the vital role of independent courts in American society.
The Indiana University Center for Law, Society, and Culture will appoint two post-doctoral fellows for the 2015-16 academic year. We invite 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 the Indiana University Maurer School of Law. They 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, 2015. The amount of the stipend will be the same regardless of the duration of the appointment.)
You can find a list of former postdoctoral fellows here.For more information about how to apply, please visit: http://www.law.indiana.edu/centers/lawsociety/postdoctoral-fellowship.shtml
Alarmed by recent headlines regarding the demise of organized labor in the United States, I turn to the founding of the republic to show that hostility to labor unions has a long history. I rely on a foundational case from Pennsylvania, Commonwealth v. Pullis (1806), in which a shoemakers’ labor union was tried for conspiracy and crushed. Robert Cover’s seminal treatment of legal violence as an outcome at trials is central to my argument. I apply Cover’s definition of violence to the Pennsylvania case, and expand Cover's definition so that violence is not only visible in the result of the case, but also in the process driving the outcome, which includes the legislature, judge, lawyers, and the jury, and the context surrounding the trial. I argue that legal violence includes coercion; as such, violence is adaptive and insidious. It is powerful in its use of language and context. Overcoming such violence requires a redemptive act in which those disfavored by the law, like organized labor, recall their legal experience and, attracting new supporters, transform the legal landscape so that it accepts them.
This paper is a critical commentary on Jean-Christian Vinel’s 2013 book, The Employee: A Political History. In substance, Vinel’s book addresses the history and consequences of the failure of American unions to organize supervisory employees. However, as befits a book published in a series created “to reverse the fragmentation of modern U.S. history and to encourage synthetic perspectives on social movements and the state,” it ranges rather more broadly. Thus, the book is a legal and political history of a word (“employee”). It also attempts an intellectual history of American industrial relations theory, and of the course of labor relations law from the New Deal into the twenty-first century. It is also a brave effort to synthesize the distinct “critical” and “industrial realist” strains of labor relations history that spent the better part of the 1980s and 1990s, amid the unfolding, never-ending, crisis of American trade unionism, arguing over how to interpret the legacy of the New Deal’s collective bargaining policy. And it is an effort at a critique of both those positions (although Vinel’s sympathies are ultimately with the realists.) Finally, while indubitably an American history, The Employee is intermittently comparative. This commentary assesses sympathetically Vinel’s efforts, but parts company from his conclusions.
