Sunday Book Roundup

Hello from Seattle and the Law & Society Association Conference! Here's a list of reviews for this Sunday's reading:

H-Net has posted the following--

• A review of Michael J. Gerhardt's The Forgotten Presidents: Their Untold Constitutional Legacy (Oxford University Press).
• A review of Narendra Subramanian's Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (Stanford University Press).
• A review of Mark Lewis's The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 (Oxford University Press). 

The New Republic reviews Perry Anderson's American Foreign Policy and Its Thinkers (Verso).

The Washington Independent Review of Books has a review of Caroline Fredrickson's Under the Bus: How Working Women Are Being Run Over (The New Press).

The New Books series has posted these interviews--

• Miriam Pawel discusses her book, The Crusades of Cesar Chavez (Bloomsbury Press).
• Beatrix Hoffman discusses her book, Heath Care for Some: Rights and Rationing in the United States (University of Chicago Press).

In another interview, Steve Instep discusses his new book, Jacksonland: President Andrew Jackson, Cherokee Chief John Ross, and a Great American Land Grab (Penguin) with Politics & Prose, here.

The Times Literary Supplement reviews Jeffrey J. Williams's How to Be An Intellectual (Fordham University Press).

The Los Angeles Times has a summer reading guide for those of you done with grading, here.

Cromwell Research Fellowships in American Legal History

[Via H-Law, we have this announcement of the Cromwell Research Fellowships in American Legal History, which has a deadline of July 13, 2015.]

In 2015, the William Nelson Cromwell Foundation will make available of a number of fellowship awards to support research and writing in American legal history. The number of awards to be made, and their amounts, is at the discretion of the Foundation. In the past several years, the trustees of the Foundation have made five to eight awards, in amounts up to $5,000. Preference is given to scholars at the early stages of their careers. The Committee for Research Fellowships and Awards of the American Society for Legal History (ASLH) reviews the applications and makes recommendations to the Foundation. (The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs.)

Applicants should submit a description of their proposed project (double-spaced, maximum 6 pages, with working title), a budget, a timeline, and a short c.v. (no longer than 3 pages). The budget and timeline can be part of the Project Description or separate. (There is no application form.) Two letters of recommendation from academic referees should be sent directly to the Committee Chair via email attachment, preferably as pdf files. Applications must be submitted electronically (preferably in one .pdf file) no later than midnight July 13, 2015. Please send all materials to the chair of the Committee: . Successful applicants will be notified by early November.

This year, the ASLH’s Committee on Research Fellowships and Awards consists of: Cornelia H. Dayton, University of Connecticut, chair; Joanna Grisinger, Northwestern University; Michael Grossberg (ex officio, ASLH President), Indiana University; Victoria D. List, Washington and Jefferson College; Yvonne Pitts, Purdue University; Michael Vorenberg (Brown University); and Victoria Saker Woeste, American Bar Foundation.

Berger Reviews Ablavsky, "Beyond the Indian Commerce Clause"

Over at JOTWELL, Bethany Berger (University of Connecticut School of Law) has posted an appreciative review of "Beyond the Indian Commerce Clause," by former LHB guest blogger Gregory Ablavsky (University of Pennsylvania, headed soon to Stanford Law School). The article appeared in Volume 124 of the Yale Law Journal (2015).

In Berger's words, it is a "groundbreaking" contribution to the debate about the place of tribal nations in the United States' legal and constitutional structure. Here's a brief excerpt:

Following an emerging approach to constitutional history, Ablavsky looks beyond the words of the [Indian Commerce] Clause and its limited history to a greater range of constitutional actors and a longer temporal context. Canvassing statements and correspondence by the Washington administration, state officials, and others, Ablavsky argues that the founders located the Indian affairs power in the general constitutional status of the United States, and particularly the interplay of the nation’s military, territorial, commercial, and diplomatic affairs powers.

Read on here.

Punctuating Happiness

[From the National Archives's press release.]

The National Archives, in partnership with the Institute for Advanced Study, will host a free conference on the Declaration of Independence titled “Punctuating Happiness,” from 9:15 a.m. to 4:15 p.m. on June 23, 2015, in the William G. McGowan Theater of the National Archives Museum in Washington, DC. The conference will be streamed live on the National Archives YouTube channel....

Inspired by the work of Danielle Allen, UPS Foundation Professor in the School of Social Science at the Institute for Advanced Study and author of Our Declaration (Liveright 2014) and research paper “Punctuating Happiness,” the conference will explore the National Archives’ work in preserving the original Declaration of Independence, the diversity of the document’s textual tradition, how this diversity affects historical research, and how it is taught in schools.

Speakers will include National Archives Executive for Research Services Bill Mayer and National Archives Director of Conservation Mary Lynn Ritzenthaler; historians David Armitage, Holly Brewer, Woody Holton, Eric Slauter, and Richard Wendorf; the editor of the The Papers of Thomas Jefferson, James McClure; and Seth Kaller, a collector and broker of rare documents who has documented that the 1823 Stone Engraving is not the exact replica of the parchment that it is commonly thought to be.

Ms. Allen’s research raises questions about the transcription of the Declaration taken from the 1823 Stone engraving. Specifically, that the Stone engraving uses a period after “pursuit of happiness,” whereas the 1776 manuscripts by Thomas Jefferson, John Adams, and Secretary for the Continental Congress Charles Thomson use semicolons or commas. She argues that the question of whether a period belongs there affects whether we read a sentence with three self-evident truths, or with five. And it affects whether we take the self-evident truths to concern primarily individual rights or rather to concern the positive value of government as a tool for securing individual rights.

Coulson on Revisting US v. Thind

Doug Coulson, Carnegie Mellon University, Department of English, has posted British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States v. Thind Revisited, which appears in the Georgetown Journal of Law & Modern Critical Race Perspectives 7 (2015): 1-42.

This article reexamines the United States Supreme Court’s opinion in United States v. Thind, which held that high caste Hindus were not “white persons” and were therefore racially ineligible for naturalized citizenship, through a rhetorical history of the briefs, judicial opinions, National Archives and Records Administration documents, and British intelligence documents related to the case. As the Court’s final statement on the racial eligibility provisions of the early Naturalization Act, Thind has been the subject of significant scholarly commentary regarding race and citizenship in the United States and heralded as a crucial Asian American civil rights case. The article begins by analyzing the case’s overruling of the majority of lower courts which had found high caste Hindus to be racially eligible for naturalization, two of which the Court had expressly approved of only three months earlier in Ozawa v. United States, a reversal of the Court’s own position not addressed in Thind or by prior studies of the case. In an effort to account for this reversal, the article considers Thind’s political activities in furtherance of Indian independence and the effort of British and American intelligence officials to oppose his naturalization on the basis of his political activities, the parties’ competing citations of British authorities on the significance of India’s caste system for the racial classification of Asian Indians, and how Justice Sutherland’s opinion both responds to and evades the arguments in the case in a manner that suggests a political decision. The article concludes by considering the rhetorical dimensions of race, citizenship, and law.

CFP: Critical Legal Histories of the North American West

From Southern Methodist University, we have the following call for papers:

Laying Down the Law: Critical Legal Histories of the North American West

A Joint Symposium Sponsored by the William P. Clements Center for Southwest Studies at SMU and the University of Nebraska Lincoln’s History Department and Center for Great Plains Studies

We solicit proposals for papers that offer a critical approach to legal borderlands in the North American West. Legal borderlands include spaces such as bordertowns on the margins of Indian reservations (Whiteclay, Nebraska and Pine Ridge) and international boundaries (El Paso, Texas and Juarez, Chihuahua); mining camps that host a vast range of racial/ethnic and gendered residents (Clifton-Morenci in Arizona); and multilingual courtrooms where federal, state, territorial, and tribal laws intersect (everywhere in the West). In addition to physical spaces, legal borderlands also include philosophical spaces where the legal code is ambiguous or contradictory—for instance, in its support of violence initiated as self-defense, in its assumption of consent in heterosexual and not in homosexual relations, or in its ambiguous definitions of racial and gendered rights.

Laying Down the Law will center its discussion on two deceptively simple questions: how have legal borderlands defined the North American West, and how have Westerners defined and/or challenged legal borderlands? We expect that contributors’ answers to these questions will characterize the West as a place of many overlapping legal borderlands rather than a lawless place.  Our aim is to encourage proposals that center on contested jurisdictions and jurisprudence, on disputes over authority and identity, and on inconsistent racial and sexual regulations.  Collectively, contributors’ essays should illustrate the importance of western legal history, in its myriad and complex forms, in American experience, history, and identity.

We welcome submissions from scholars of all ranks to contribute critical and innovative scholarship toward this anthology of western legal history. 8-10 selected participants will meet at UNL in Fall 2016 to circulate early drafts of their essays in a workshop setting and to present their work in a public forum. Participants will meet again in Spring 2017 (location TBD) to share advanced drafts. Conference co-organizers Katrina Jagodinsky (University of Nebraska Lincoln) and Pablo Mitchell (Oberlin College) will co-edit the chapters in an anthology published by a university press that maintains lists in both Western and Legal History. Noted scholars Kelly Lytle Hernández, Nayan Shah, and Jeff Shepherd have already agreed to contribute chapters as well. Please submit a one-page CV and a 500-800 word proposal describing your project, the research undertaken, and its connection to the symposium theme to Pablo Mitchell (prmitche@oberlin.edu) by September 15, 2015. For more information about the symposium please contact Pablo or Katrina Jagodinsky (kjagodinsky@unl.edu).

New Release: Siegel's "Forensic Media"

Greg Siegel, an Associate Professor of Film and Media Studies at the University of California, Santa Barbara, has published Forensic Media: Reconstructing Accidents in Accelerated Modernity with Duke University Press:

In Forensic Media, Greg Siegel considers how photographic, electronic, and digital media have been used to record and reconstruct accidents, particularly high-speed crashes and catastrophes. Focusing in turn on the birth of the field of forensic engineering, Charles Babbage's invention of a "self-registering apparatus" for railroad trains, flight-data and cockpit voice recorders ("black boxes"), the science of automobile crash-testing, and various accident-reconstruction techniques and technologies, Siegel shows how "forensic media" work to transmute disruptive chance occurrences into reassuring narratives of causal succession. Through historical and philosophical analyses, he demonstrates that forensic media are as much technologies of cultural imagination as they are instruments of scientific inscription, as imbued with ideological fantasies as they are compelled by institutional rationales. By rethinking the historical links and cultural relays between accidents and forensics, Siegel sheds new light on the corresponding connections between media, technology, and modernity.

Professor Siegel's appearance on New Books in History is here.

Legal History at San Francisco State University's Labor Archives and Research Center

I was fortunate to be able to do a large chunk of the research for Forging Rivals at the Labor Archives and Research Center at San Francisco State University (LARC). LARC is a fantastic resource that is underappreciated by legal historians.

LARC contains over 6000 feet of primary source material related to the labor movement in California. This includes the records of dozens of local unions, the papers of California labor leaders and others involved in the labor movement, oral histories, and labor periodicals, as well as ephemera and material culture of unions and working people in the state. Obviously, it is an incredible resource for people studying labor history.

What is less obvious on its face, but quite obvious once you get into LARC’s holdings, is what a great resource it is for legal historians. Some of the collections are composed primarily of legal materials: briefs, trial transcripts, depositions, exhibits. For example, LARC houses the Norman Leonard Collection, which includes materials on Harry Bridges’ trials, Smith Act cases (including Dennis v. United States, and Yates v. United States), HUAC cases, and cases involving the McCarran Act and the Free Speech Movement, as well as traditional labor law cases involving some of the more radical West Coast unions. The legal history of anticommunism is also recounted in the Harry Bridges Papers, the William Schneiderman Papers and the Archie Brown Papers. Similarly stuffed with legal materials is the Sam Kagel Collection, which contains the records of thousands of arbitrations that Kagel, one of America’s leading labor arbitrators, was involved in over the course of his fifty-year career. Case files for other significant arbitrations are included in the papers of the University of California’s Institute of Industrial Relations, also housed at LARC.

There are also materials at LARC for researchers interested in the development of the administrative state in twentieth-century America. The Clark Kerr Collection includes detailed records of the War Labor Board’s activities on the West Coast. Similarly, Patrick Henning’s papers contain materials related to California’s Agricultural Labor Relations Board. Not surprisingly, the National Labor Relations Board shows up repeatedly in the collection in a variety of contexts: in labor newspapers, individual union's collections, and the papers of labor leaders who interacted with the agency. Finally, the collection has many sources related to the politics surrounding the creation of a variety of administrative entities within California, including the Agricultural Relations Board, and state and local agencies created to combat employment and housing discrimination.

Much of LARC’s collection consists of the papers of individual labor unions and various Bay Area labor councils. Many of these contain materials that are of special interest to legal historians. In particular, the legal files of individual union locals have materials related to grievance arbitrations, proceedings before the NLRB (both at the regional and national level) and cases in state and federal courts. These records also contain a plethora of information about legislation and ballot propositions that unions supported or opposed.

All of this adds up to an impressive resource for legal historians. If you are studying the development of labor and employment law or anticommunism, LARC is a must-visit archive. There is also a tremendous opportunity to study the history of labor arbitration, a subject that legal historians have neglected. Finally, because the collection is so rich in materials related to union involvement in California politics, anyone studying the legal history of California will find LARC’s collection to be invaluable.

For information about LARC and its holdings, click here and here. This entry is based, in large part, on Conor Michael Casey’s article ‘Legal History Through Labor’s Prism: Collection Highlights of the Labor Archives and Research Center, SFSU.” This article is not available on-line, but if you contact LARC’s exceptionally knowledgeable and helpful staff, they will be able to provide you with a copy.

CFP: Policy History 2016

The Institute for Political History, the Journal of Policy History, and the Peabody College of Vanderbilt University are hosting the ninth biennial Conference on Policy History at the Loews® Vanderbilt Hotel in Nashville, Tennessee from Wednesday, June 1 to Saturday, June 4, 2016.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 4, 2015.

Proposals for panels and papers must be submitted online at the links  below, and must include the following:
1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es).
5. Mailing Address(es).
6. Panel and paper title(s).
7. One (1) page single-spaced abstract of panel and papers in Microsoft Word or PDF format.
8. One (1) page single-spaced description of panel participants including educational background, major publications, awards or fellowships of presenters, also in Microsoft Word or PDF format.

Submit paper proposals here.  Submit panel proposals here

The 2016 Policy History Conference will also feature two outstanding plenary sessions.  Organized by conference co-chairs Christopher Loss of Vanderbilt University and Bartholomew Sparrow of the University of Texas at Austin, these panels are not only timely in their nature but will examine the changing role of authority and ideology in American political culture.

Liberalism in America
Andrew Rehfeld, Washington University in St. Louis
William Rorabaugh, University of Washington
Rogers Smith, University of Pennsylvania
Jeffrey Tulis, The University of Texas at Austin

Technology and the State
Angus Burgin, The Johns Hopkins University
Sarah Igo, Vanderbilt University
Margaret O'Mara, University of Washington
John Skrentny, University of California - San Diego

Pedrioli on Race and NYT v. Sullivan

Carlo A. Pedrioli, Barry University, has posted New York Times v. Sullivan and the Rhetorics of Race: A Look at the Briefs, Oral Arguments, and Opinions, which is forthcoming in the Georgetown Journal of Law and Modern Critical Race Perspectives 7 (2015): 109-36 

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for the Court, the racial context that framed the case was hard to ignore, and Brennan, in ultimately resolving the case without remanding it to the Alabama courts for further proceedings, did not completely ignore race. Additionally, Justice Hugo Black, a native of Alabama, discussed race explicitly and at more length in his concurring opinion, and Justice Arthur Goldberg briefly mentioned race. Overall, the article aims to provide a better understanding of some of the rhetorical choices that may be available to legal advocates and members of the bench regarding complex topics like race.

Lerner on Magna Carta and the Proportionality Principle

Craig S. Lerner, George Mason University School of Law, has posted Does the Magna Carta Embody a Proportionality Principle? which is forthcoming in the George Mason University Civil Rights Law Journal 25 (2015):

American scholars often argue that the Magna Carta embodies a “proportionality principle” mandating that the punishment fit the crime. This principle, according to a familiar narrative, found expression centuries later in the English Bill of Rights, which was reproduced another century later in the American Bill of Rights. Justices on the U.S. Supreme Court have claimed the authority of the Magna Carta when infusing the Eighth Amendment with a proportionality principle not immediately evident from its text.

This Essay explores and questions the narrative. The argument that the Magna Carta embodies a proportionality principle seizes upon three Chapters (20 to 22) that provide that a penalty not exceed “the degree of the offense.” Yet these sections exclusively concern the Norman practice of amercements — a penalty imposed for a litany of administrative offenses that were almost never of a criminal nature. Furthermore, given the prevalence of violent crime and the widespread acceptance of cruel punishment, it is implausible to project humanitarian motives onto the authors of Chapters 20 to 22. The Essay concludes with broader reflections on the uses made of the Magna Carta in this year, the 800th anniversary of its sealing. Like virtually every legal document in recorded history, the Magna Carta embodies at some level a proportionality principle. But as jurists purport to extract more meaningful and specific lessons from the Magna Carta on this and other points, their arguments lapse into poor scholarship and hopeless anachronism.

New Release: "Patriation and Its Consequences"

Just released is Patriation and its Consequences: Constitution Making in Canada, ed. Lois Harder and Steve Patten (Vancouver: UBC Press, 2015):

Few moments in Canadian history are as intriguing as the "patriation" of Canada’s constitution from Britain. Over the years, the tale of the political battle between Prime Minister Pierre Trudeau and the "Gang of Eight" provincial premiers opposing his patriation plans has developed mythical status. Constitutional lore suggests Canadians would not have a patriated constitution and entrenched the Charter of Rights and Freedoms if not for some last-minute negotiations that took place in a hotel kitchen the night of 4 November 1981 – a night Quebec Premier René Lévesque famously described as the "Night of the Long Knives," when his seven provincial allies deserted him.
In an effort to look beyond this familiar narrative, Patriation and Its Consequences: Constitution Making in Canada revisits these negotiations and the personalities, visions, and struggles that shaped the resulting constitutional agreement. Offering fresh perspectives on the politics of this key moment in Canadian history, it focuses on the players behind the patriation process, including First Nations and feminist activists, who helped shape Canada’s new constitution.

The volume also examines the long shadow of patriation, including the alienation of Quebec, the character of Canadian federalism, Indigenous constitutionalism and Aboriginal treaty rights, and the struggle to ensure gender equality rights in Canada.

The TOC (and a link to Eric Adams's chapter), follows after the jump:

CFP: Ocean of Law

[Via H-Law, we have the following CFP.]

Ocean of Law: Intermixed Legal Systems across the Indian Ocean World, 1550-1950, Leiden University, December 7-9, 2015.    Keynote speakers: Prof. Paul Halliday, University of Virginia; Prof. Engseng Ho, Duke University and National University Singapore

A sixteenth-century Arabic legal text, Ibn Hajar al-Haytami’s Tu?fat al-Mu?taj, travelled from the Middle East, via South Asia to Southeast Asia. It was used in the Muslim legal circles as well as in the colonial courts of British India and the Dutch East Indies. This journey of the Tuhfat is only one example of, first, how legal ideas and texts travelled across borders and, second, how these ideas shaped the legal traditions and systems encountered during their journey. These moments of interaction reveal how legal cultures negotiated, influenced, and conflicted each other. They also show how information and legal systems were reconstructed. Over centuries, intermixed legal systems evolved across the Indian Ocean world creating an ocean of law.

This conference will bring together scholars working on the legal histories of the Indian Ocean World (1550-1950). Questions will be addressed such as: how were legal systems formed regionally through interactions? To what extent did law play a role in the shaping of societal, multi-cultural or maritime settlements, and of empires and colonial states in general? How did law function in the cosmopolitan communities and how did the legal systems influence each other?

Legal history in connection with the Indian Ocean world is relatively a new field. Recent work by many scholars in this area has added value to the cultural history of such regions as South, Southeast and East Asia, and the Middle East and of the workings of imperial and colonial structures. Interdisciplinary research and cooperation of scholars working on early-modern and modern history of the broader Indian Ocean world help trace back the journeys of legal ideas and to reconstruct these legal histories. This conference will provide a platform for scholars to discuss and share their work.

The existing historiographies on legal pluralism, spatialization of law, movement of ideas, information networks, and cultural brokerage serve as stepping stones for further discussions. The main themes of the conference would be:

• Religious and secular laws: the construction, generalization and/or homogenization of laws varying from Christian, Islamic, Hindu, Buddhist to Confucianist legal notions against/with the ‘secular’ laws.

• Colonial and non-colonial laws: colonial legal discourses and the saving/reforming enterprise of non-colonial laws.

• Legal institutions: continuities, discontinuities and ruptures in differently functioning (pluralistic) legal institutions and their organizations.

• Micro and macro legal systems: macro legal theories’ regional functionality, micro legal practices’ negotiations with the broader systems.

• Relationships between theory and practice of law: texts and juridical manuals in practice, the exclusions and inclusions, selections and deletions.

We welcome a range of contributions about the cultural mechanisms of law in the Indian Ocean world. We aim this to be an interdisciplinary platform and therefore invite papers from historians, anthropologists, legal scholars and others whose research is related to the Indian Ocean legal world. We also invite papers focussing on various regions of the Indian Ocean rim from East Africa to East Asia in order to put together panels comprising of scholars working on different regions, time-periods, and themes for discussing the connections and comparisons in legal cultures. However, we intend to limit the approaches into a cultural historical perspective to understand how law played a role in the cultural formations and transformations.

Abstracts of 500 words are due by 10 June, 2015 and should be sent to oceanoflaw@gmail.com. As an outcome of the conference, an edited volume / special issue of a peer-reviewed journal will be published. We encourage those, who are interested in publishing, to submit their full paper of no more than 10,000 words by 1 November, 2015.

For further conference details please see the conference website, here.

Conveners: Mahmood Kooria MPhill ; Sanne Ravensbergen MA.  Advisory committee: Prof. dr. Jos Gommans, Prof. dr. Léon Buskens, Dr. Alicia Schrikker, Dr. Adriaan Bedner.  Sponsored by: Leiden University Institute for History, Leiden University Centre for the Study of Islam and Society (LUCIS), Asian Modernities and Traditions (AMT), Itinerario: International Journal on the History of European Expansion and Global Interaction, Leiden University Fund.

JSLH 22 (2014)

Here is the TOC for the Journal of Southern Legal History 22 (2014): 1-300:

John C. Bell, Jr., “President's Foreword”

Cayce Myers, “Introduction to an Oral History of Dr. Verner Chaffin”

Cayce Myers, “An Interview of Dr. Verner Chaffin on March 16, 2012"

“The United States Attorney's Office Middle District of Georgia”

Moderators: Manley F. Brown, Hon. Marc T. Treadwell. Discussants: Gary B. Blasingame, Manley F. Brown, Joseph H. Davis, Joseph W. Popper, Jr.

Michael Mears, “Entrapped in the Web of His Own Ambition: The Story of Senator Roscoe Dean, Jr.”

Zachary Newkirk, “Gray Jackets and Rifles to Black Robes and Gavels: Confederate Veterans in the U.S. Federal Courts from Ulysses Grant to William H. Taft”

Donald E. Wilkes, Jr., “The Great Writ in the Peach State: Georgia Habeas Corpus, 1865-1965"

Jurisprudence and (Its) History

Just out in the Virginia Law Review is the symposium "Jurisprudence and (Its) History," which was held last September and sponsored by UVA's Program in Legal and Constitutional History and the Virginia Law Review. As the review's website explains:

The Jurisprudence and (Its) History Symposium featured seven invited speakers, who each present a paper, and seven commentators, who introduced each session with a comment on each paper.  Those papers and commentaries have been published in Volume 101, Issue 4 of the Virginia Law Review, and can be found here.

The term “jurisprudence” typically refers to the philosophy of law. So understood, its aspirations are broad and deep; its aim is not to master some particular area of legal doctrine but to understand the nature and purpose of law in general. For the past several decades, however, jurisprudence has come to describe the more specific practice of using the techniques of analytic philosophy to clarify the meaning of familiar legal concepts, such as “right,” “duty,” “authority,” or “law” itself.

One consequence of this narrowing of scholarly ambitions is that less attention has been paid to those legal philosophers from the past who have had different, and often broader, understandings of what philosophical inquiry into law properly entails. In part because of this neglect, today many law students, law teachers, and lawyers who are deeply interested in exploring the intellectual foundations of law have dismissed jurisprudence as an esoteric field of study whose practitioners are gripped by concerns remote from their own.

The aim of this symposium is to consider whether the boundaries of jurisprudence might be broadened, and its insights deepened, by looking to the history of jurisprudential thought. Some papers examine the work of past legal philosophers, others consider the role that the history of legal provisions – particularly constitutional ones – plays in legal theory, and still others take up directly the methodological question of whether or in what way philosophical thinking has been or should be, influenced by its own intellectual history.  What all of the papers share, however, is a common concern with how history bears on philosophical thinking about law.

The papers listed below are all available here.  An introduction, by Charles L. Barzun, University of Virginia School of Law, and Dan Priel, York University Osgoode Hall Law School, is also up on SSRN.

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.

But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one — one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people have attached to law. Perhaps, then, philosophical and historical inquiries about law share the same ultimate scholarly goal and subject matter.

This essay serves as the Introduction to a symposium in the Virginia Law Review that explores just this possibility. Its purpose is both to highlight some of the themes common to the symposium’s essays and comments, and, more ambitiously, to suggest that these papers show how philosophers and historians of law might bring their respective disciplinary methods to bear in answering the same kind of question. In particular, both methods are useful for answering questions about what best explains the endurance or disappearance of an idea, theory, or set of concerns in legal thought or practice. Our claim is not that legal historians and philosophers of law should agree in the answers they give to such questions. They will and should often disagree. Rather, our goal is to show how scholars from the two disciplines may plausibly be seen as joining issue in a productive debate, rather than simply talking past one another.

Contents after the jump

Joseph on "Islamic Law and the Management of Natural Resources in Seventeenth and Eighteenth Century Ottoman Syria"

The May 2015 issue of Environment and History includes an article of interest: "Islamic Law and the Management of Natural Resources in Seventeenth and Eighteenth Century Ottoman Syria," by Sabrina Joseph (Zayed University). Here's the abstract:

Drawing on evidence from seventeenth and eighteenth century Islamic legal sources in Ottoman Syria, the paper examines the laws governing the use and management of natural resources, particularly for agricultural production. Islamic jurists played a key role in mediating the state's relationship with local populations and legitimising local practices and customs that governed land and water use. Often, this translated into laws which prioritised protecting the public good while not necessarily challenging existing power structures. The paper also explains how pious endowments (waqfs) were integral to the management of land and water resources in Ottoman Syria. The study sheds light on indigenous narratives regarding the environment and how Islamic law adapted to social and economic circumstances on the ground. Ultimately, the law contributed to ensuring the socio-cultural sustainability of ‘management’ strategies implemented by local populations vis à vis the environment.

Subscribers may access full content here.

Hat tip: Environment, Law, and History

Sunday Book Roundup

After a week off, we're back with plenty of book reviews for the long weekend.

From The New Rambler, there is a review of The Empire Trap: The Rise and Fall of U.S. Intervention to Protect American Property Overseas: 1893-2013 by Noel Maurer (Princeton University Press).

Amy Gajda's The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press) is also reviewed in The New Rambler. 

The Nature of Legislative Intent by Richard Ekins (Oxford University Press) is reviewed in The New Rambler as well.

The Nation has a review of Raymond Williams's Keywords: A Vocabulary of Culture and Society (Oxford University Press) and Franco Moretti's Distant Reading (Verso).

"Members of Williams’s generation believed that analyzing culture would bring about revolution. Much of their prose now sounds turgid, and many of their political hopes were either beaten into submission or inflated into a hyperbole that remains purely hypothetical. The New Left’s long revolution has ended up looking a lot like a retreat of left politics into the academy. This may be why Moretti and other distant readers have stepped back from making any greater claim for their data than that it offers valuable insights into literary history and forms for those of us already interested in literature. And yet, if we want there to be a T.S. Eliot or Raymond Williams or Franco Moretti to write about our current crisis in the future, academics will have to fight to preserve universities good enough to produce them today."

James M. McPherson reviews Eric Foner's Gateway to Freedom: The Hidden History of the Underground Railroad (Norton) for The New York Review of Books.

Also in The New York Review of Books is a review of Barney Frank's memoir, Frank: A Life in Politics from the Great Society to Same-Sex Marriage (Farrar, Straus and Giroux).

Jill Leovy's Ghettoside: Investigating a Homicide Epidemic (Bodley Head)  and LAPD '53 by James Elroy and the Los Angeles Police Museum (Abrams Image) is reviewed in the New Statesman.

"And yet, Ellroy himself never seems overly concerned with penetrating to the human heart of the crimes. It seems he would rather riff on them, using gallows humour that seeks to blur the line between then and now. He likens two corpses from 1953 to contemporary figures, Philip Seymour Hoffman and Barack Obama, seemingly without purpose or reason. Such ­literary stunts smack of NHI, one of the “old unwritten” codes of the LAPD that Jill Leovy mentions in her book, Ghettoside: “No Human Involved”."

On HNN there is a review of Godfrey Hodgson's JFK and LBJ: The Last Two Great Presidents (Yale University Press).

Richard Drake's The Education of an Anti-Imperialist: Robert M. LaFollette and U.S. Expansion (University of Wisconsin Press) is reviewed on HNN too.

Over on H-Net, there is a review of Generation Vet: Composition, Student Veterans, and the Post-9/11 University (Utah State University Press) edited by Sue Doe and Lisa Langstraat.

Also posted on H-Net is a review of Carolyn T. Adams's From the Outside In: Suburban Elites, Third-Sector Organizations, and the Reshaping of Philadelphia (Cornell University Press).

"From the Outside In is a compelling study of the network of special-purpose authorities, quasi-governmental bodies, and nonprofit corporations that have come to dominate land use policy within Greater Philadelphia and reshape the city of Philadelphia, often in the interests of suburban elites. Because these institutions are not explicitly profit seeking or part of the government, they are considered “Third Sector” organizations. Despite not technically belonging to the private or public sector, Third-Sector organizations like the Old Philadelphia Development Corporation (OPDC) and Philadelphia Industrial Development Corporation (PIDC) have wealthy businesspeople on their boards and receive government grants. While the book focuses on Philadelphia and the ring of suburbs that surround the city in both Pennsylvania and New Jersey, metropolitan regionalism and Third-Sector governance are emerging issues everywhere."

Carl Sferrazza Anthony's Ida McKinley: The Turn-of-the-Century First Lady through War, Assassination, and Secret Disability (Kent State University Press) is reviewed on H-Net as well.

So too is a review of The Forgotten Presidents: Their Untold Constitutional Legacy (Oxford University Press) by Michael J. Gerhardt.

Salon has an excerpt from Reagan: The Life (Doubleday) by H.W. Brands, titled "Ronald Reagan's FDR side: What today's conservatives--and liberals--get wrong about the Gipper."

The Washington Post reviews Akhil Reed Amar's The Law of the Land: A Grand Tour of Our Constitutional Republic (Basic).

"In “The Law of the Land,” Yale Law School professor Akhil Reed Amar has done just that by examining a range of issues involving the Constitution and the Supreme Court through the lens of geographical differences.
“America’s Constitution looks slightly different in each of the cities, states and regions that make up this great land,” Amar declares. His approach is to examine a melange of cases, presidents, justices and eras, with a dozen states serving in some way as filters. The book builds on themes of his earlier work, especially his 2005 book, “America’s Constitution,” which noted ways in which the document expressly incorporated geopolitics into its text." 

Also in The Post is a review of Steve Inskeep's Jacksonland: President Andrew Jackson, Cherokee Chief John Ross, and the Great American Land Grab (Penguin).

"What Inskeep shows us — through letters, first-rate historical research and able prose — is how the Cherokee (dispossessors and colonists of other neighboring tribes such as the Creek, Catawba and Tuscarora) fought for the United States and then, after their destinies were intertwined, ended up fighting against the government, in court and through lobbyists and by any other means except outright warfare. What emerges from the story of the two men is a bigger portrait of power and conflict in early America, which wasn’t simply a matter of white transgression and Indian resistance. Rather, Indians and whites were sometimes allies, sometimes not, sometimes united in cause, sometimes not. And the map of power wasn’t simply federal-vs.-tribal. There was a complex web of relationships among Indian tribes, the federal government and states (like Georgia) that wanted to dictate state sovereignty on their own terms."

There are many, many interviews from New Books:

• An interview with the authors--John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur--of Happiness and the Law (University of Chicago Press).
• An interview with Lee Drutman about The Business of America is Lobbying: How Corporations Became Politicized and Politics Became More Corporate (Oxford University Press). 
• An interview with Nancy Shoemaker about her book, Native American Whalemen and the World: Indigenous Encounters and the Contingency of Race (University of North Carolina Press). 
• An interview with Nicholas B. Dirks, discussing Autobiography of an Archive: A Scholar's Passage to India (Columbia University Press). 
• And interview with Ed Conway, about his work, The Summit: Bretton Woods, 1944 (Pegasus).

Weekend Roundup

• Of course, legal historians know all about Law for the Elephant--but an elephant for the law? 

• The schedule for Fall 2015 for the Washington History seminar is out.  Sessions include Adam Rothman on Beyond Freedom’s Reach: A Kidnapping in the Twilight of Slavery and Philippa Strum on Speaking Freely: Whitney v. California and American Speech Law.

• A report on that recent congressional briefing on tax history and policy appears on the AHA's blog.

• From Balkinization: Jack Balkin talks with David Sehat (Georgia State) about his new book, The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon & Schuster, 2015). 

•  The National History Center's updated guide to researching in the National Archives is here.

• Over at New Books in History, it's Princeton week: Julian E. Zelizer on The Fierce Urgency of Now and Kevin M. Kruse, on One Nation Under God.

• The US Senate on its retiring historian, Donald Ritchie on HNN.

• Over at the Faculty Lounge: The Making of a Lawyer, 1878 Version.

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

Three by Ariens on the History of Legal Ethics

Michael S. Ariens, St. Mary's University School of Law, has posted three papers on the history of legal ethics.  The first is Lost and Found: David Hoffman and the History of American Legal Ethics, from the Arkansas Law Review 67 (2014):

David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind.

Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.

The second is Brougham's Ghost, North Illinois University Law Review 35 (2015):

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to a client, nor did it represent a traditional view within the American legal profession. It was consciously rejected in nearly all writings of American lawyers for most of American history, and was not explicitly embraced until the 1970s. Reminding lawyers of the duty of zealous representation was promoted in the 1960s in part to solidify the Supreme Court’s Constitutional Criminal Procedure revolution, for only zealous lawyers could protect the rights of the criminally accused. Brougham’s ethic of advocacy was used to provide a historical justification for a revived zeal in criminal defense practice, an effort to make those lawyers more professional. This justification was transformed in the 1970s by two events: first, the American legal profession became enmeshed in a professionalism crisis as a consequence of the Watergate affair. Second, that professionalism crisis was exacerbated by a fear of diminishing economic prospects for American lawyers.

This essay is divided into three parts. First, it offers a full assessment of Brougham’s representation of Queen Caroline. Second, it traces the published and negative reaction of American lawyers to Brougham’s statement of the duty of zealous representation from the 1840s on. Third, the essay explains why the consistent rejection of Brougham by American lawyers became the “classic statement” of the duty of the advocate beginning in the 1970s.

The third is The Agony of Modern Legal Ethics, 1970-1985, St. Mary's Journal of Legal Malpractice and Ethics 5 (2014): 134:

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United States and the Soviet Union. Relatedly, American lawyers argued they possessed a central role in maintaining the rule of law. From the 1950s through the mid-1960s, the popular image of lawyers may have peaked. It was at this time that the ABA began its work to update the 1908 Canons of Ethics. The ABA’s adoption of the Code of Professional Responsibility in 1969 was the first significant reformulation of a lawyer’s code of ethics, and was intended to demonstrate that lawyers deserved the trust placed in them by American society. The ABA’s adoption of the Code, and its quick acceptance by most states as law, were the last acts in a "golden age."

By 1974, the American legal profession was reeling from the turmoil of the late 1960s, followed by the Watergate affair and an economic downturn that adversely affected many lawyers. The larger legal profession was buffeted by a series of lawsuits alleging antitrust violations by the ABA and state bar organizations, and the Supreme Court held in 1977 that a ban on lawyer advertising for ethical reasons was unconstitutional. Although some lawyers did exceedingly well economically during the 1970s, many struggled. In late 1977, the President of the ABA called for the Code’s replacement. Shortly thereafter, the ABA’s House of Delegates approved the nomination of the members of the Kutak Commission, which was handed this task. During the half-decade effort to craft the Model Rules of Professional Conduct, the problematic ethical behavior of lawyers continued to make national news. Within the profession, a significant segment of the Bar rejected the structure and tenets of the Code, demanding a "modern" code of legal ethics befitting the needs of modern lawyers. Another segment of the lawyer population challenged the particular vision within the Code of the ethical duties of lawyers in representing clients. When the ABA adopted its Model Rules of Professional Conduct, it replaced a code that combined rules and aspirations with an approach that merely set a floor regarding lawyer conduct. The drafters of the Model Rules intentionally created a law of lawyering that supplanted an ethic of lawyering. Much more so than the Code, the Model Rules ushered in the modern understanding of lawyer.

This Article examines a crucial period in the history of American legal ethics, 1970-1985. Its thesis is that a shallow, though broad, consensus among American lawyers concerning the ideals of legal professionalism dissolved during the 1970s. An ideological dissensus, propelled by the scandalous behavior of some Executive Branch lawyers in the Watergate affair, joined by a heightened fear of economic torpor, shattered the post-World War II profession’s accepted self-definition.

The Model Rules of Professional Conduct implicitly acknowledged this ideological disagreement, a disagreement that has coursed through the history of the American legal profession from the late 1970s to the present.

Politics, Administration, and Fair Employment Practices

How Did It Operate?  Without Coercive Power.
Library of Congress

One of Forging Rivals' chapters focuses on the history of the San Francisco Commission on Equal Employment Opportunity (CEEO). Created in 1957 after a decade of contentious political wrangling, the CEEO enforced San Francisco’s local prohibition on employment discrimination. It closed its doors in 1960, less than three years later, when a statewide fair employment practices law was passed establishing a state agency charged with combating employment discrimination.

The CEEO was one of a number of fair employment practices agencies that sprang up in postwar America. Indeed, by the time San Francisco Mayor George Christopher appointed its first commissioner, 22 jurisdictions (11 states and 11 cities) had some administrative body that enforced fair employment practice standards. By one calculation, there had been close to 10,000 complaints made to these commissions by the middle of the 1950s. Only a handful of these complaints – about 20 nationwide-- resulted in full adjudications.

This last statistic – that less than 1 in 500 complaints were fully adjudicated – raises some interesting questions. Surely this fact does not suggest that all but a tiny number of these claims were frivolous. After all, in the decade after World War II, discriminatory employment practices were widespread and openly practiced. Contemporary commentary, as well as my own research in Forging Rivals, indicated that this number was so low because local and state agencies focused their energy on the informal resolution of the complaints they received. This research also revealed that these informal resolutions did little to stop employment discrimination. To understand why this is the case, it’s helpful to look at the United States' first attempt to use the administrative state to promote fair employment practices.

In 1941, President Roosevelt created the federal Fair Employment Practices Commission (FEPC) by an executive order. The FEPC was a major civil rights victory. It was the first federal effort to combat race discrimination since the end of Reconstruction. That said, the FEPC was a weak agency. Its powers were purely investigatory. When it found instances of employment discrimination, it could bring public pressure on employers and unions to end discriminatory practices, but, beyond that, it was powerless.

Many of the state and local fair employment practices agencies that emerged after the War were shaped by this wartime experience. In particular, civil rights activists fought hard to ensure that the postwar agencies had some form of coercive power: that they could fine employers, require employers to eliminate discriminatory practices, or force employers to hire or promote people they had discriminated against. In exchange for these sorts of powers, most agencies were required to keep their investigations, deliberations, and adjudications entirely confidential. This trade off – coercive power for secrecy – turned out to be a problematic one. It made it difficult for agencies to generate political support for themselves. If the San Francisco CEEO was any indication, this lack of political support made agencies reluctant to punish recalcitrant employers and unions. Indeed, stranded in a hostile political environment, and lacking methods of generating support, these agencies struggled mightily to avoid using their coercive powers. Instead, they functioned as mediation services, secretly resolving employment disputes in a manner that did little to address the systemic problem of employment discrimination.

The San Francisco CEEO thus illustrates an interesting characteristic of regulatory governance: isolated expertise, even when coupled with coercive authority, may not be enough to further an agency’s policy goals if the agency can’t generate political support for its mission. For people steeped in the study of the administrative state, this may be a quotidian observation, but seeing the actual mechanics of administrative failure in the face of political opposition is fascinating. Additionally, it is striking how the administrative actors at the postwar fair employment practice commissions did not anticipate the need to develop and nurture political support. Their disappointment with the wartime FEPC and its lack of coercive power led many of them to believe that silencing themselves in exchange for enforcement powers was a worthwhile horse trade. As it turned out, it was not.

Adams on Canadian Constitutional Identities

Eric M. Adams, University of Alberta Faculty of Law, has posted Canadian Constitutional Identities, which is forthcoming in the Dalhousie Law Journal 38 (2015):

Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.

New Release: Bannai on Korematsu's Quest for Justice

Although the publication date is November, Lorraine K. Bannai, Seattle University School of Law, has posted the preface, prologue and toc for her book Enduring Conviction: Fred Korematsu and His Quest for Justice (University of Washington Press):

Fred Korematsu's decision to resist F.D.R.'s Executive Order 9066, which provided authority for the internment of Japanese Americans during World War II, was initially the case of a young man following his heart: he wanted to remain in California with his white fiancée. However, he quickly came to realize that it was more than just a personal choice; it was a matter of basic human rights.

After refusing to leave for incarceration when ordered, Korematsu was eventually arrested and convicted of a federal crime before being sent to the internment camp at Topaz, Utah.

He appealed his conviction to the Supreme Court, which, in one of the most infamous cases in American legal history, upheld the wartime orders. Forty years later, in the early 1980s, a team of young attorneys resurrected Korematsu's case. This time, Korematsu was victorious, and his conviction was overturned, helping to pave the way for Japanese American redress.

Lorraine Bannai, who was a young attorney on that legal team, combines insider knowledge of the case with extensive archival research, personal letters, and unprecedented access to Korematsu his family, and close friends. She uncovers the inspiring story of a humble, soft-spoken man who fought tirelessly against human rights abuses long after he was exonerated. In 1998, President Bill Clinton awarded Korematsu the Presidential Medal of Freedom.

Lieblich on Kelsen's Assimilation through Law

Eliav Lieblich, Radzyner School of Law, Interdisciplinary Center, has posted a pre-submission version of Assimilation Through Law: Hans Kelsen and the Jewish Experience, which is forthcoming in The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought, ed. James Loeffler and Moria Paz:

Hans Kelsen was perhaps the foremost continental lawyer of the 20th century. The founder of the immensely influential Pure Theory of Law, he is primarily remembered as a groundbreaking Austrian jurist. However, Kelsen was also a Jew, albeit an extremely assimilated one. His life story – from his early days in Vienna until his death in California – is truly representative of the tragedy of European Jewry in the 20th century. This Chapter discusses Kelsen in light of the ever-present tensions between Jewish and European identity, with particular attention to his position as an international lawyer. Focusing on the period surrounding the publication of the first edition of his Pure Theory of Law (1934), the Chapter discusses Kelsen along three interrelating themes relevant to the Jewish experience of the time. The first part situates Kelsen in relation to a key dilemma of Jewish politics: the tension between Jewish nationalism and assimilationism. It highlights the different constructions of Kelsen’s identity, and their uses by various actors. The second theme focuses on assimilationist politics in Kelsen’s jurisprudence, suggesting a reading of Kelsen’s Pure Theory which I call “assimilation through law.” The third theme pitches Kelsen’s Pure Theory of (international) law against the ideology of progress – a key idea in the thought of assimilated Jewish internationalists. As I demonstrate, although Kelsen’s Pure Theory famously claimed to be “anti-ideological,” the notion of progressivism still shines through its cold and analytic reasoning.

Levi on the NLRA, Credible Commitments and Labor Violence

Margaret Levi, Stanford University, Tania Melo, University of Washington, , Barry R. Weingast, Stanford University, and Frances Zlotnick, Stanford University have posted Ending a Century of Violent Labor Conflict: A New Perspective on Unionization and the National Labor Relations Act:

Open access to labor organizations lagged nearly a century behind open access to business organizations, arising as part of the New Deal in the mid-1930s. During the century previous to the New Deal, firms and governments actively suppressed labor organization, frequently resorting to violence. Conflict and violence ended with the National Labor Relations Act (NLRA) of 1935.

Why did the violence associated with labor last for a century? What did the NLRA do to solve this problem, and why couldn’t Congress have done so earlier? In this paper, we develop a new perspective on labor organization and violence that addresses these questions. We argue that the century-long violence surrounding labor resulted from an inability to solve a series of commitment problems. All three parties to the violence – labor, business, and government – faced commitment problems. We show that the NLRA succeeded because it finally solved the commitment problems underlying the century of labor violence.

Sen, McCleskey, & Basuchoudhary on Civil Litigation on the Virginia Frontier, 1745-1755"

The latest issue of the Journal of Interdisciplinary History includes an article of interest: Tinni Sen, Turk McCleskey, and Atin Basuchoudhary, "When Good Little Debts Went Bad: Civil Litigation on the Virginia Frontier, 1745-1755." Here's the abstract:

The use of a multinomial logit model to analyze a hitherto unavailable dataset of 1,376 small-claims lawsuits in colonial Augusta County, Virginia, for information about debts, litigants, and procedures finds no evidence of prejudice in the legal system. The magistrates' consistently fair enforcement of legitimate contracts may have induced both plaintiffs and defendants to settle their disputes in court rather than in private. The evidence corroborates the view that by the mid-eighteenth century, Virginia's frontier judicial system was sufficiently impartial to encourage creditors to draw up efficient contracts even for small debts.

Subscribers to the journal may access full text here. 

Hat tip: Mike Widener

Greenglass Testimony before the Rosenberg Grand Jury Ordered Unsealed

We've just learned that Judge Alvin K. Hellerstein of the Southern District of New York has just granted the motion of the National Security Archive, the American Historical Association, the American Society for Legal History, the Organization of American Historians, the Society of American Archivists and Sam Roberts to unseal the testimonies of Max Elichter and David Greenglass before the Rosenberg grand jury.  "The requested records are critical pieces of an important moment in our nation's history," wrote Judge Hellerstein.  "The time for the public to guess what they contain should end."  H/t Brad Snyder/David Vladeck

Joseph V. Baker and the Invisible Man

Joseph V. Baker
Emory University Library

Joseph V. Baker is one of the most fascinating peripheral characters to drift through Forging Rivals. He was not a lawyer, but a public relations executive. In 1958, right-to-work initiatives appeared on the ballots in California and Ohio. Baker was the author of a brilliant (though deeply deceptive) pamphlet that was distributed in African American neighborhoods in both states as the election approached. The pamphlet, entitled “The Negro and His Right to Work,” portrayed right-to-work laws as civil rights legislation that would free black workers from the thrall of racist union bosses.

Baker, as it turns out, is an essentially unknown African American civil rights pioneer, though of a decidedly different stripe than those who are normally featured in Black History Month presentations. Born in South Carolina in 1908, his family moved to Philadelphia in 1920s. He attended the city’s famed Central High and went on to Temple University, where he studied journalism. From there he become the first African American staff member at The Philadelphia Inquirer. In 1934, at the same time that Baker was forging a career in journalism, he started the first African-American-owned public relations firm. By the 1950s, he had left journalism to devote himself entirely to the PR business and Republican Party politics. His clients included some of America’s biggest corporations (NBC, DuPont, U.S. Steel, American Tobacco, the Association of American Railroads, Procter and Gamble, Chrysler) and (as the pamphlet reveals) the California and Ohio Republican parties.

Not a

Baker's Right-to-Work Pamphlet
Author's Collection

lot has been written about Baker. He seems to have pioneered the now obvious (but at the time revolutionary) strategy of marketing products specifically to African Americans.  He convinced businesses to feature black people in advertising that targeted the black community. He also persuaded companies that hiring black workers was a sure-fire way to generate brand loyalty among African Americans. Finally, his work for NBC was instrumental to increasing the number of African Americans appearing on broadcast television in roles that didn’t reinforce odious stereotypes. “Integration without Identification” was Baker’s mantra as he convinced the network to cast black actors in roles that were “in no way identified . . . as being played by a Negro.” His firm also reviewed scripts for NBC in an effort to prevent portrayals of African Americans that might offend. “Avoid jive terms and lines written in consciously bad English,” Baker admonished the writers at NBC.

As his involvement with the right-to-work campaign reveals, Baker was conservative when it came to matters of class. He was a lifelong Republican, who never made the transition to the Democratic Party that so many African Americans of his generation did during the postwar period. It is also a bit difficult to applaud Baker as a civil rights pioneer when one of his major accomplishments seems to have been encouraging American corporations to target the African American community for alcohol and cigarette sales. (Baker’s name pops up repeatedly in the UCSF Tobacco Legacy Project database of tobacco company documents.) Yet, if, as Ralph Ellison suggested, invisibility to white Americans was one of the major obstacles that African Americans had to overcome to achieve full citizenship, Baker certainly had a part in rendering them visible. For Baker’s work at NBC see, Murray Foreman, “Employment and Blue Pencils: Race, Employment, and Representation, 1926-1955,” in Michele Hilmes, ed., NBC: America’s Network, 117-34. (This is where I drew the quotes from.) A small collection of Baker’s papers are housed at Emory University's Manuscript, Archives, and Rare Book Library. 

The U.S. Commerce Court, 1910-1913

William Howard Taft, April 1909 (LC)

[Here's the other essay from this year's exam in American Legal History, on a short-lived attempt to subject administration to a court-centered notion of the rule of law, dreamed up by that "progressive conservative," William Howard Taft.]

Before 1906, the Interstate Commerce Commission could not prospectively set the rates railroads charged shippers.  It had to wait until a shipper challenged a railroad's existing rate and decide whether it was reasonable or unreasonable.  The railroad was then free to try again.  Further, an ICC order only became effective if a federal court decided to enforce it.  In making that decision, the court was free to take evidence not presented to the ICC and make up its own mind where the weight of the evidence lay. The Hepburn Act of 1906 fundamentally changed this by allowing the ICC to set future rates and by making ICC orders effective immediately and forcing the railroads to go to court to overturn them.  In these proceedings, the federal courts could not take new evidence, but whether they had to defer to the ICC's factual findings or were free to weigh the evidence themselves was not clear from the statute.  The Supreme Court finally addressed that issue in the Illinois Central case, decided in January 1910.

Three days before the Court announced its decision in Illinois Central, President William Howard Taft called upon Congress to create the US Commerce Court.  No American President had greater experience in the courts.  In the 1880s and 1890s, Taft had been a prosecutor in a rural Ohio county, a trial judge in Cincinnati, and a federal appellate judge.  He believed that because the Hepburn Act had granted the ICC "a legislative function," the commission should not also perform the judicial one of finally determining the legality of the rates it prescribed.  He proposed that this judicial power be entrusted to a Commerce Court with exclusive jurisdiction over challenges to ICC orders.  Such a court would allow the federal judiciary to acquire the expertise needed for the "effective, systematic, and scientific enforcement" of federal railroad law.  At present, generalist judges on the U.S. Courts of Appeals often failed to master the "great volume of conflicting evidence" in railroad rate cases.  Too often they let stand ICC orders that "robbed" railroads of a reasonable return upon their investment.

As established by the Mann-Elkins Act of June 18, 1910, the Commerce Court consisted of five newly appointed and life-tenured judges who served during good behavior for five-year terms.  After their term expired, they would join one of the existing Circuit Court of Appeals.  The Chief Justice of the United States would appoint replacements from among the existing bench of federal appellate judges.  Judges were not eligible to return to the Commerce Court during the year following their service.  The Commerce Court had exclusive jurisdiction over all challenges to ICC orders.  The only appeal was by certiorari to the US Supreme Court.

Journalists dubbed the Commerce Court Taft's "pet project."  When it was before Congress, the legal profession said little about it one way or the other.  Progressive Republicans, including Wisconsin's Robert M. La Follette, and Democrats opposed it.  They thought the ICC was already protecting the public interest by keeping railroads from charging shippers (and, ultimately, consumers) too much.  They were sure the Commerce Court would "usurp" the jurisdiction of the ICC and do the bidding of the railroads.  Shippers saw things the same way, but the railroads did not enthusiastically support the court either.  They preferred the existing system of appeals to the various Circuit Courts of Appeals, where their able advocates could overwhelm a nonspecialist bench. 

The Commerce Court convened for the first time in February 1911.  Its chief judge was Martin Knapp, a former chairman of the ICC.  He believed that the current ICC favored shippers excessively and seemed bent on keeping it in check.  Another judge was Julian Mack, a Jewish lawyer and reformer from Chicago.  A third, Robert Archibald, owed his position to "Boss" Penrose, who dominated Pennsylvania's Republican Party.  Archibald's impeachment in 1912 for using his influence over railroads to secure contracts for his associates did not directly tarnish the other judges.  Still, contemporaries thought the scandal underlined "the peculiar character" of the Commerce Court.

More general was the complaint that the Commerce Court was attempting to "overshadow and dwarf" the ICC by intrusively reviewing and then reversing its orders.  In four of its first five cases, the court reversed a shipper-friendly order of the ICC, only to be itself reversed by the US Supreme Court, which reinstated the ICC's original order.  George W. Wickersham, Taft’s Attorney General, blamed the ICC for not clearly setting out the facts justifying its orders.  The commission's opinions, he complained, blended "facts and observations and deductions and conclusions of law"; "everything enters into it.  It is exceedingly difficult to go through that and pick out the facts."  He hoped that the Commerce Court's reversals would induce the ICC to produce better findings.  For its part, the ICC blamed the Commerce Court's intrusive standard of review.  The court's assertion of a right to reject orders that were "clearly and palpably against the weight of the evidence" meant that 99 out of 100 of its orders were at risk of reversal, the commissioners maintained.

In a sympathetic account of the Commerce Court published in 1928, Felix Frankfurter argued that its judges had not engaged in "a conscious attempt . . . to usurp authority" but had struggled in good faith to work out their jurisdiction.  He hinted that an administrative court might be worth trying again.  But during the Taft and Wilson administrations, most congressmen felt otherwise.  J. Harry Covington (D-Maryland), who would later found the law firm Covington & Burling, warned that "we have drifted far away from constitutional landmarks in the creation of special courts in this country."  He believed that "the best jurisprudence of America" had been created by judges who could resolve "all the varied questions which came before the courts."  The judgments of specialized courts were more "often warped than well-rounded."

A bill to abolish the Commerce Court passed both houses of Congress in 1912 but fell to Taft's veto.  After Woodrow Wilson took office in 1913, the court was abolished and its judges assigned elsewhere in the federal judiciary.