Oliveri, "Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis"

Rigel Christine Oliveri (University of Missouri School of Law) has posted "Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis," which is forthcoming in the Missouri Law Review. Here's the abstract:

The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination.

St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis.

This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.

Hat tip: Poverty Law

Welcome, Mary Ziegler!

We’re very pleased to announce that Mary Ziegler, the Stearns Weaver Miller Professor at the Florida State University College of Law, will be guest blogging with us for the month of August.  The occasion is her recent publication of After Roe: The Lost History of the Abortion Debate (Harvard University Press).  Welcome, Mary!

How Materiality Shapes the Law: From Manuscripts to Digitization

[We have the following announcement.]

How Materiality Shapes the Law: from Manuscripts to Digitization

August 27, 2015 at Berkeley Law

Public Reception: 4:00–4:30pm 295 Boalt Hall (Warren Room)

Public Panel Event: 4:30–6:00pm 170 Boalt Hall (Koret Room)

Gero Dolezalek (Aberdeen) Why Did Early Modern Scots Hand-Write Legal Literature Instead of Printing It?

Paul Halliday (University of Virginia) Precedents Are Things: Clerical Authority and the Judge’s Voice in the Eighteenth Century

Robert Berring, Jr. (Boalt) Rethinking Legal Authority in the Digital Age

(Gero Dolezalek will teach a legal paleography workshop on August 28, 2015.)

Contact: RBS-Mellon Fellow and Robbins Collection Associate Research Fellow, Lena Salaymeh (lenas@berkeley.edu).  Please RSVP here if you plan to attend.

Wyzanski Speaks!

Wyzanski, 1937 (LC)

Back in 2011, I mentioned that although the recording of Paul Freund's contribution to the Stanley Reed Oral History Project of the Louie B Nunn Center for Oral History of the University of Kentucky Libraries was available online, Charles E. Wyzanski, Jr.'s was not.  Well, Wyzanski's is now, along with those of twenty-one other contributors. Anyone interested in the constitutional history of the New Deal will want to give it a listen.  It covers far less terrain than Wyzanski's oral history at Columbia University, but nothing beats the spoken word, at least when Wyzanski is the speaker!  (Apologies in advance to Stanley Reed fans.)

CFP: Constitutional History: Comparative Perspectives

[We have the follow call for papers.]

Paper proposals are invited for the Second Annual Illinois-Bologna conference on Constitutional History: Comparative Perspectives. The conference will be held in Chicago, Illinois, on April 12 & 13, 2016. The conference keynote speaker will be Justice Rosalie Silberman Abella of the Supreme Court of Canada. 

Accompanying the spread of constitutional government around the world has been a profound interest in the comparative aspects of constitutional law. Scholars have catalogued the differing features of national constitutions and examined how different constitutional systems resolve common legal issues. So, too, judges faced with legal questions have sought guidance in the decisions of constitutional courts of other nations. While comparative constitutional law is therefore a well-established field, less attention has been paid so far to the comparative dimensions of constitutional history. This international conference aims to address that shortcoming by energizing the study and analysis of constitutional history from comparative perspectives. The conference has several interrelated goals. It will provide a forum for presentation and discussion of current research on issues of constitutional history that crosses national boundaries. Relevant topics in this regard include such things as the origins of constitutional governments in different nations, changes in constitutional structures over time, comparative studies of the shifting roles of constitutional actors, the development of individual rights in different systems, and the legitimacy and longevity of constitutions in various nations. The conference will also bring together scholars who, at present, are working on constitutional histories of single jurisdictions—with the expectation that conversations among these scholars will allow for sharing of methodologies and point also to fresh areas of research that may transcend national boundaries. In addition, the conference has relevance to the task of judging. In some nations, notably the United States, constitutional history plays an important and sometimes decisive role in the resolution by courts of questions of constitutional law. The conference will take up the place of constitutional history in constitutional adjudication. By comparing the practices of courts around the world, the conference will trace the movement (or not) of constitutional history from the academy to the courthouse and examine the risks and benefits of modern practices.

Scholars interested in presenting a paper at the conference should e-mail a title and summary of the proposed paper along with a CV to Professor Jason Mazzone at mazzonej[@]illinois.edu. Proposals received by November 1, 2015 will receive priority. After that date, submitted proposals will be considered only if space remains.

Papers from the conference will be published in the University of Illinois Law Review. Conference participants are responsible for their own travel and accommodation expenses.  Sponsored by: University of Illinois College of Law, University of Bologna School of Law, Center for Constitutional Studies and Democratic Development, University of Illinois Law Review

Tyler on Habeas and the American Revolution

Amanda L. Tyler, University of California, Berkeley School of Law, has posted Habeas Corpus and the American Revolution, which is forthcoming in the California Law Review 103 (2015): 635-98.

Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John Marshall declared that when the Founding generation constitutionalized “this great writ,” they invoked “[t]he term...in the [C]onstitution, as one which was well understood.” No matter how well the Founding generation understood the content, reach, and application of the “privilege of the writ of habeas corpus,” however, significant portions of the relevant historical backdrop to the ratification of the Suspension Clause remain lost to the annals of history. In particular, the details surrounding one of the most consequential periods in the history leading up to the adoption of the Suspension Clause — namely, the treatment and legal classification of the American colonists by the British during the American Revolutionary War — remain largely unexplored in legal scholarship.

Professor Tyler seeks to recover and tell this story here by drawing upon a wealth of sources, including: archival documents, parliamentary debates, contemporary press accounts, colonial papers, diaries and private papers of key participants, and significant decisions and rulings of the British courts. As these materials reveal, determinations regarding the reach and application of the English Habeas Corpus Act of 1679, rather than solely the common law writ of habeas corpus, were of tremendous consequence during this important period in Anglo-American legal history. Where the Act was in force and where prisoners could claim its protections, the legal framework demanded that such persons be charged criminally and tried in due course or otherwise be discharged. Significantly, the privilege associated with the English Act did not speak merely to process; it further imposed significant substantive constraints on what causes would be deemed legal justification for detention in the first instance. The important role that the Act played in the Revolutionary War legal framework, moreover, suggests that modern jurisprudence has underappreciated the Act’s enormous influence upon the development of habeas law in the Anglo-American tradition. Finally, the history recovered here demonstrates more generally that during the Revolutionary War, suspension, geography, and allegiance each played significant roles in determining the availability of the privilege of the writ of habeas corpus to those who would claim its protections.

Dudziak Named Kluge Chair in American Law and Governance

[We’re delighted to report that LHB Founder Mary L. Dudziak will be the Kluge Chair in American Law and Governance at the Library of Congress.  Here is the LC press release.]

Librarian of Congress James H. Billington today announced the appointment of Mary L. Dudziak, prominent U.S. legal historian, as the next Kluge Chair in American Law and Governance at the Library’s John W. Kluge Center.  Her appointment begins August 1. She will spend five months in residence.

Dudziak is the Asa Griggs Candler Professor of Law and director of the Project on War and Security in Law, Culture and Society at Emory University.  An expert in constitutional law, legal history, diplomatic history and civil rights history, Dudziak will use the Library’s collections and resources to research and write her forthcoming book, “Going to War: An American History.”

“The book is an effort to get to the roots of an important problem: the relative absence of political engagement with presidential war power in an era of ongoing war,” said Dudziak. “American military engagement has been persistent through the 21st century, but as time goes on Congress has appeared reluctant to formally authorize war and the American public has been somewhat disengaged from the conflicts. This has left the president without meaningful political limits on the power to go to war. To better understand how this contemporary problem came about, my book will examine the history of American war politics since the early 20th century, focusing not only on lawmakers but also the way their constituents —civilians as well as military-service members—experienced American wars.”

Dudziak will use items in the Library of Congress collections to further her research. In particular, she will examine Congressional papers held by the Library’s Manuscript Division. Toward the end of her tenure, Dudziak will deliver a public lecture on her research.

Prior to her position at Emory, Dudziak was the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California.  She also taught at Duke, Harvard, the University of Maryland and the University of Iowa.  Dudziak serves on the Historical Advisory Committee for the U.S. Department of State and the editorial board of the journal Diplomatic History.

Her books include “War-Time: An Idea, Its History, Its Consequences,” “Exporting American Dreams: Thurgood Marshall’s African Journey,” “Cold War Civil Rights: Race and the Image of American Democracy” and edited collections.  She is the author of numerous book chapters, journal articles, essays, reviews and op-eds.  Dudziak received her Ph.D. from Yale University, her J.D. from Yale Law School, and her A.B. in sociology from University of California, Berkeley.

The Kluge Chair in American Law and Governance is a distinguished senior research position in residence at the Library.  Its holder is appointed by the Librarian of Congress.  Using research facilities and services at the Library of Congress, the scholar conducts research that focuses on the development of government in the United States and on domestic matters of, and among, the three branches of government.

Through a generous endowment from John W. Kluge, the Library of Congress established the Kluge Center in 2000 to bring together the world's best thinkers to stimulate and energize one another, to distill wisdom from the Library's rich resources, and to interact with policymakers in Washington. For more information about the Kluge Center visit here.

Brophy on Antislavery Women and the American Jurisprudence

Alfred L. Brophy, University of North Carolina School of Law, has posted Antislavery Women and the Origins of American Jurisprudence, which is forthcoming in the Texas Law Review.

“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.

On Cover Design

This summer finds me in the final stages of my first book, titled States of Dependency: Welfare, Rights, and American Governance, 1935-1972. I hope to blog regularly in the coming months about the last steps in the publishing process and what I would like the book to accomplish. This post is about cover design, a subject of which I was ignorant just a few months ago.

"Getting to design your own book cover is the sort of ultimately maddening power that probably shouldn’t be entrusted to vain mortals," wrote essayist Tim Kreider in the New Yorker a few years ago. "It’s a little like getting to choose your own face." The academics I know have actually tended not to obsess over cover design, in the same way that they tend not to obsess about their daily wardrobe choices. By the time many of us turn to these decisions, we feel like we're up against a deadline and are just anxious to move along. Or we would just rather spend our time on research and writing, tasks that feel more substantial.

I have no real quarrel with that approach. An uninspired cover has never stopped me from reading and appreciating an academic book. But a good cover is such a delight. Done well, a cover helps the reader get in the right mindset, by evoking place, time period, and mood. The covers I most admire are also clever. They visually distill the argument, helping the reader remember the author's main points long after the book has been re-shelved. In other words, cover design isn't, or doesn't have to be, a vanity project. It can be a service to the reader. And even when the ultimate product doesn't quite work (the jury is out on mine), I think that striving to make it work can the author better identify what the book is really about and what readers ought to take away.

Sunday Book Roundup

Greetings from The Terrace at the University of Wisconsin, Madison--quite possibly the happiest place to finish up a Sunday Book Roundup after a week in the archives!

Up on H-Net is a review of Revolutions: A Very Short Introduction by Jack A. Goldstone (Oxford University Press).

Another review from H-Net is of Black Woman Reformer: Ida B. Wells, Lynching, and Transatlantic Activism by Sarah L. Silkey (University of Georgia Press).

Common-Place has a new special July issue out with four (!) reviews. The first is a review of Thomas P. Slaughter's Independence: The Tangled Roots of the American Revolution (Hill & Wang).

"Rather than writing an extended brief for Slaughter's contentions, Independence provides a broad and yet selective sweep of the history of the thirteen colonies that became the original United States. The challenge for any author is that there is no best way to cover that much time and space in a straightforward story. Slaughter decides on a more episodic approach, nonetheless managing to weave in a great many incidents and issues that serve as pieces to the puzzle."

Also in the new July issue is a review of Corinne T. Field's The Struggle for Equal Adulthood: Gender, Race, Age, and the Fight for Citizenship in Antebellum America (UNC Press).

"If you are not currently convinced that age should be a historical category of analysis alongside gender, race, class, and disability, Corinne Field's new book should go a long way toward persuading you. The Struggle for Equal Adulthood: Gender, Race, Age, and the Fight for Citizenship in Antebellum America advances the study of citizenship in the nineteenth-century United States by showing how the political significance of maturity and adulthood were at the center of women's and African Americans' efforts to expand democracy to its full meaning and potential."

The third review from Common-Place is a review of Matthew Garrett's Episodic Poetics: Politics and Literary Form After the Constitution (Oxford University Press), which

"explores the complex textures that resulted when the post-constitutional moment's consolidating energies found verbal expression in the fragmentary form of the period's literary production. The book is a "microstructural or subgeneric literary history" (88). It follows the episode—an "integral, but also extractable unit of any narrative" across a range of genres: political essay, memoir, novel, and miscellany (3). As Garrett argues in his lucid introduction, the episode is a dialectical form, "a part that exists as such only in relation to a real or implied whole" (4). This mediating between the one and the many makes the episode an especially rich site for analyzing the politics of form in the early nation."

Lastly, Jenna M. Gibbs's Performing the Temple of Liberty: Slavery, Theater, and Popular Culture in London and Philadelphia, 1760-1850 (Johns Hopkins University Press) is reviewed in Common-Place as well.

"Jenna Gibbs's Performing the Temple of Liberty begins with a fanciful invitation to the reader to accompany her on a "stroll along the Thames River," past the scene of slaves being led to ships that will transport them for sale overseas, towards taverns and coffeehouses where Londoners might have been discussing the Haymarket Theatre's current production of Colman's Inkle and Yarico. She juxtaposes these two images—shackled black bodies en route to the Americas with a play featuring white bodies in blackface debating the moral evils of slavery—to offer a point of entry into her larger subject: a comparative study of performance culture and abolitionism in London and Philadelphia during the latter part of the eighteenth century and the first half of the nineteenth century."

As usual, the New Books series has posted several interesting interviews this week, including an interview with Megan Threlkeld about her book, Pan-American Women: U.S. Internationalists and Revolutionary Mexico (University of Pennsylvania Press).

Also interviewed is William Elliot III and Melinda Lewis, who discuss their book, The Real College Debt Crisis: How Student Borrowing Threatens Financial Well-Being and Erodes the American Dream (Praeger).

Kyle Volk, author of Moral Minorities and the Making of American Democracy (Oxford University Press) is interviewed, too.

"His book ... provides a compelling narrative of how nineteenth-century Americans negotiated the tension between majority rule and minority rights and between representative democracy and popular democracy. He focuses on debates in the antebellum northern states where moral reform efforts of Sabbatarians, temperance activist, and racial segregationists circumvented representative government to assert their social vision through direct majority rule."

HNN has posted a review of David Sehat's The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon & Schuster).

And finally, in a piece titled, "How NASA advanced the cause of African Americans during the Civil Rights movement," Richard Paul and Steven Moss's We Could Not Fail: The First African Americans in the Space Program (University of Texas Press) is reviewed in The Washington Post.

Weekend Roundup

• From the Chronicle of Higher Education: Christopher Loss (Vanderbilt University) places our current woes in context. "[F]aculty work has always been challenging, . . . student indifference is not new, . . . business and government are necessary partners, . . . teaching and research have always existed in tension . . . ."

• Over at Environment, Law, and History, David Schorr writes about "Magna Carta and the environment."

• The University of Oregon's press release on Michelle McKinley's Fulbright is here. 

• Lyle Denniston, for the National Constitution Center, notes Tuaua v. United States, the DC Circuit decision on American Samoa and the Insular Cases decided last month, and quotes from the historians' brief.  Denniston writes that Tuaua raises “a basic inquiry into what the words of the Constitution stand for . . . that probably is best resolved by the Supreme Court” and could “provide a useful examination of whether the Insular Cases have survived into the 21st Century human rights era.”  In April, we noted Professors Erman and Perl-Rosenthal's op-ed.

• We’ve previously noted the release of more grand jury testimony in the Rosenbergs’ case.  Via HNN, here is Bruce Craig’s assessment.

• Congratulations to legal historians who have received ACLS fellowships for 2015: Brian Cuddy, Mellon/ACLS Dissertation Completion Fellowship, for “Wider War: American Force in Vietnam, International Law, and the Transformation of Armed Conflict, 1961-1977"; Philip Thai, Luce/ACLS Postdoctoral Fellowship in China Studies, for “The War on Smuggling: Law, State Power, and Illicit Markets in Coastal China”; and Michael Willrich, ACLS Fellowship, for “The Anarchist’s Advocate: War, Terror, and the Origins of America’s Surveillance State.”  H/t: ASLH

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

de la Rasilla del Mora on British International Lawyers and the Spanish Civil War

Ignacio de la Rasilla del Moral, Brunel Law School, has posted "In the General Interest of Peace": British International Lawyers and the Spanish Civil War, which is forthcoming in the Journal of the History of International Law 17 (2015).   

At the time when the Syrian Civil War has re-ignited the interest of international lawyers for the study of Civil Wars, this article reviews the core issues and different doctrinal positions present in the international legal debates triggered by the Spanish Civil War. It pays particular attention to the contributions of the first two British judges at the International Court of Justice, A. D. McNair (1946-1955) and H. Lauterpacht (1955-1960) to these debates. Their writings can be seen as respectively representative of the two stages through which British international lawyers went in the international legal debates on the Spanish Civil War. Up to early 1938, British International lawyers adopted a characteristically apologetic approach to the policy undertaken by the British Government on the advice of the British Foreign Office. The second stage, from early 1938 to the end of the Spanish Civil War in March 1939, was in turn informed by a “practitioner's approach” to the analysis of the domestic cases brought before the British courts as a result of the hostilities. The article concludes with an analysis of the case for British “benevolent neutrality to the Nationalists” in the Spanish Civil War, reviewing the underlying motives which historians have highlighted as lurking behind the British-led non-intervention policy in the Spanish Civil War.

Call for Applications: University of Toronto Centre for Criminology and Sociolegal Studies

From our friends at the Canadian Legal History blog, we have the following call for applications:

Job Field: Tenure Stream
Faculty / Division: Faculty of Arts and Science
Department: Centre for Criminology and Sociolegal Studies
Campus: St. George (downtown Toronto)
Job Posting: 30 June 2015
Job closing: 15 September 2015

Description

The Centre for Criminology and Sociolegal Studies in the Faculty of Arts and Science at the University of Toronto invites applications for a tenure stream appointment in the area of Criminology or Sociolegal Studies. The appointment will be at the rank of Assistant Professor and will commence on July 1, 2016. Research and teaching expertise in the area of criminal justice, either in a domestic or international context is preferred.  

The Centre for Criminology and Sociolegal Studies is internationally renowned for the study of law, crime, order, and security from a variety of disciplinary perspectives and theoretical approaches. With backgrounds in sociology, history, law, anthropology, psychology, philosophy, and political science, faculty are actively engaged in Canadian and international criminological research and teaching. We welcome applications from scholars from those and other relevant backgrounds.  

The successful candidate will teach in both the undergraduate and graduate programs and they will be expected to develop an independently funded program of research. Candidates must be able to teach a selection of courses in criminology, and law and society, and must have strong communication skills as well as demonstrated success in developing students’ mastery of a subject and of the latest developments in the field.  

Applicants must have earned a PhD in criminology, law, or a cognate social science discipline by the date of appointment, or shortly thereafter, and must have a demonstrated record of excellence in teaching and research. Evidence of excellence in teaching will be demonstrated by letters of reference, teaching evaluations, dossier and/or syllabi submitted as part of the application. Candidates also must have strong evidence of research of an internationally competitive caliber, demonstrated by publications in leading journals in the relevant field, presentations at significant conferences, awards and accolades, and strong endorsements by referees.

Issacharoff on the Purse, the Sword and the Constitution

Lucas Issacharoff,  Independent, and Samuel Issacharoff, New York University School of Law, have posted Constitutional Disequilibrium in the Declining Marginal Cost of War, which is forthcoming in the University of Chicago Law Review:    

Institutional practices evolve to fill gaps in all constitutional blueprints. One of the underappreciated features of the initial constitutional settlement of authority over war was the accountability of the Executive through the process of budgetary authorization, and the corresponding need for Congress to answer to the citizenry for the tax implications of military expenditures. This political accountability is more complex than often described, consisting not merely of the division of the “declare war” and “commander in chief” clauses of Article I and Article II, but also of the temporal limitation of the budgetary power for the army and a variety of practical and political obstacles to the president going it alone in warfare. The thesis of this Article is that critical features of the ensuing constitutional equilibrium, which largely controlled the war power even in the absence of formally declared hostilities, have come undone as a result of the declining social and economic costs of modern forms of warfare, the development of the permanent and socially insular standing army, and the rise of its associated military-industrial complex as an independent institutional actor. The combination of an enormous permanent military budget and the elimination of conscription has eroded the effectiveness of the institutional division of authority over war that emerged in the earliest days of the Republic. This broader phenomenon of constitutional disequilibrium, in which constitutional doctrines and settlements prove dependent on the existing state of technology and institutional arrangements, in turn highlights the difficulty of managing today’s warfare in a fashion that avoids executive unilateralism.

Hoyos on "Who are the People?"

Roman J. Hoyos, Southwestern Law School, has posted Who Are “the People”?

The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined.

The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere.

One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.

Moulton, "The Fight for Interracial Marriage Rights in Antebellum Massachusetts"

New from Harvard University Press: The Fight for Interracial Marriage Rights in Antebellum Massachusetts (April 2015), by Amber D. Moulton (Researcher, Unitarian Universalist Service Committee). A description from the Press:

Well known as an abolitionist stronghold before the Civil War, Massachusetts had taken steps to eliminate slavery as early as the 1780s. Nevertheless, a powerful racial caste system still held sway, reinforced by a law prohibiting “amalgamation”—marriage between whites and blacks. The Fight for Interracial Marriage Rights in Antebellum Massachusetts chronicles a grassroots movement to overturn the state’s ban on interracial unions. Assembling information from court and church records, family histories, and popular literature, Amber D. Moulton recreates an unlikely collaboration of reformers who sought to rectify what, in the eyes of the state’s antislavery constituency, appeared to be an indefensible injustice.

Initially, activists argued that the ban provided a legal foundation for white supremacy in Massachusetts. But laws that enforced racial hierarchy remained popular even in Northern states, and the movement gained little traction. To attract broader support, the reformers recalibrated their arguments along moral lines, insisting that the prohibition on interracial unions weakened the basis of all marriage, by encouraging promiscuity, prostitution, and illegitimacy. Through trial and error, reform leaders shaped an appeal that ultimately drew in Garrisonian abolitionists, equal rights activists, antislavery evangelicals, moral reformers, and Yankee legislators, all working to legalize interracial marriage.

This pre–Civil War effort to overturn Massachusetts’ antimiscegenation law was not a political aberration but a crucial chapter in the deep history of the African American struggle for equal rights, on a continuum with the civil rights movement over a century later.

A few blurbs:

“An outstanding piece of history. Moulton is the first to provide a thorough examination of the shifting arguments for and against the repeal of laws prohibiting interracial marriage. She offers a nuanced and convincing explanation for why the forces of repeal were able to overturn the ban without diminishing white resistance to marriage across the color line. Her book is an insightful exploration of the evolving political, social, and moral thinking of whites and blacks struggling to comprehend the complex meaning of black freedom in the North.”—Joanne Pope Melish

“Amber Moulton’s finely-grained history of the nation’s first sustained fight for marriage rights chronicles the petitioning campaign that culminated in the repeal of Massachusetts’ interracial marriage ban in 1843. As advocates for equality struggled to make the case that marriage is a civil right on which all other social and political rights are dependent, those invested in preserving the North’s racial caste system waged a pitched political battle in newspapers, political cartoons, and the streets, warning that ‘amalgamation’ would lead to licentiousness and the end of social stability. Both sides had a role in shaping the debate about marriage and civil rights that continues to this day, making The Fight for Interracial Marriage Rights in Antebellum Massachusetts important reading for historians and activists alike.”—Elise Lemire

More information is available here.

Schorr on Art and the History of Environmental Law

David Schorr, Tel Aviv University Buchmann Faculty of Law, has posted Art and the History of Environmental Law, which is forthcoming in Critical Analysis of Law:

This article is an initial exploration of what the history of environmental law can learn from the arts. Looking at visual art (mainly paintings, with some drawings, prints, photographs, and poster art), supplemented by occasional glances in the direction of literary works, it asks what, if anything we can learn about the environmental law of the industrialized West of nineteenth and twentieth centuries before 1970, when environmental problems certainly abounded but before there was "environmental law". The focus is on pollution law, especially air pollution, with some attention paid also to land use law.

The paper explores, first, how art may be read as reflecting the conditions against which environmental laws developed (or did not); next, indications in art of the effects of environmental law; and finally environmental law itself as depicted in art.

Wald on the Jewish Law Firm

Eli Wald, University of Denver Sturm College of Law, has posted The Jewish Law Firm: Past and Present, the typescript, pre-publication version of a chapter appearing in Jews and the Law, ed. Marc Galanter, et al (New Orleans: Quid Pro Press, 2014), 65-124.

The rise and growth of large Jewish law firms in New York City during the second half of the twentieth century was nothing short of an astounding success story. As late as 1950, there was not a single large Jewish law firm in town. By the mid-1960s, six of the largest twenty law firms were Jewish, and by 1980, four of the largest ten prestigious law firms were Jewish firms. Moreover, the accomplishment of the Jewish firms is especially striking because, while the traditional large White Anglo-Saxon Protestant law firms grew at a fast rate during this period, the Jewish firms grew twice as fast, and they did so in spite of experiencing explicit discrimination.

What happened? This book chapter is a revised, updated study of the rise and growth of large New York City Jewish law firms. It is based on the public record, with respect to both the law firms themselves and trends in the legal profession generally, and on over twenty in-depth interviews with lawyers who either founded and practiced at these successful Jewish firms, attempted and failed to establish such firms, or were in a position to join these firms but decided instead to join WASP firms.

According to the informants interviewed in this chapter, while Jewish law firms benefited from general decline in anti-Semitism and increased demand for corporate legal services, a unique combination of factors explains the incredible rise of the Jewish firms. First, white-shoe ethos caused large WASP firms to stay out of undignified practice areas and effectively created pockets of Jewish practice areas, where the Jewish firms encountered little competition for their services. Second, hiring and promotion discriminatory practices by the large WASP firms helped create a large pool of talented Jewish lawyers from which the Jewish firms could easily recruit. Finally, the Jewish firms benefited from a flip side of bias phenomenon, that is, they benefited from the positive consequences of stereotyping.

Paradoxically, the very success of the Jewish firms is reflected in their demise by the early twenty-first century: because systematic large law firm ethno-religious discrimination against Jewish lawyers has become a thing of the past, the very reason for the existence of Jewish law firms has been nullified. As other minority groups, however, continue to struggle for equality within the senior ranks of Big Law, can the experience of the Jewish firms serve as a “separate-but-equal” blueprint for overcoming contemporary forms of discrimination for women, racial, and other minority attorneys? Perhaps not. As this chapter establishes, the success of large Jewish law firms was the result of unique conditions and circumstances between 1945 and 1980, which are unlikely to be replicated. For example, large law firms have become hyper-competitive and are not likely to allow any newcomers the benefit of protected pockets of practice. While smaller “separate-but-equal” specialized firms, for instance, ones exclusively hiring lawyer-mothers occasionally appear, the rise of large “separate-but-equal” firms is improbable.

Jockusch and Finder, eds., "Jewish Honor Courts"

New from Wayne State University Press: Jewish Honor Courts: Revenge, Retribution, and Reconciliation in Europe and Israel after the Holocaust (June 2015), edited by Laura Jockusch (Hebrew University) and Gabriel N. Finder (University of Virginia). The Press explains:

In the aftermath of World War II, virtually all European countries struggled with the dilemma of citizens who had collaborated with Nazi occupiers. Jewish communities in particular faced the difficult task of confronting collaborators among their own ranks—those who had served on Jewish councils, worked as ghetto police, or acted as informants. European Jews established their own tribunals—honor courts—for dealing with these crimes, while Israel held dozens of court cases against alleged collaborators under a law passed two years after its founding. In Jewish Honor Courts: Revenge, Retribution, and Reconciliation in Europe and Israel after the Holocaust, editors Laura Jockusch and Gabriel N. Finder bring together scholars of Jewish social, cultural, political, and legal history to examine this little-studied and fascinating postwar chapter of Jewish history.

The volume begins by presenting the rationale for punishing wartime collaborators and purging them from Jewish society. Contributors go on to examine specific honor court cases in Allied-occupied Germany and Austria, Poland, the Netherlands, and France. One essay also considers the absence of an honor court in Belgium. Additional chapters detail the process by which collaborators were accused and brought to trial, the treatment of women in honor courts, and the unique political and social place of honor courts in the nascent state of Israel. Taken as a whole, the essays in Jewish Honor Courts illustrate the great caution and integrity brought to the agonizing task of identifying and punishing collaborators, a process that helped survivors to reclaim their agency, reassert their dignity, and work through their traumatic experiences.

For many years, the honor courts have been viewed as a taboo subject, leaving their hundreds of cases unstudied. Jewish Honor Courts uncovers this forgotten chapter of Jewish history and shows it to be an integral part of postwar Jewish rebuilding. Scholars of Jewish, European, and Israeli history as well as readers interested in issues of legal and social justice will be grateful for this detailed volume.

Contributors include Veerle Vanden Daelen, Dan Porat, Ido de Haan, Nico Wouters, Katarzyna Person, Helga Embacher, Rivka Brot, Gabriel N. Finder, Laura Jockusch, David Engel, Simon Perego, Ewa Kozminska-Frejlak, and Gali Drucker Bar-Am. More information is available here.

5th Doctoral Scholarship Conference @ YLS

[We have the following call for papers.]

Yale Law School is proud to host the 5th Doctoral Scholarship Conference, which will be held on December 4-5, 2015. The conference aims to provide doctoral students and recent graduates with a forum to present, share and debate their work. It seeks to promote high-quality research and to facilitate a dialogue across diverse subject areas and methodological approaches, with a view towards fostering a community of aspiring legal scholars.

The conference is open to current doctoral candidates, in law or law-related disciplines, and those who graduated during the previous academic year (2014-2015). We welcome submissions engaging any area of law. Papers will be selected based on quality and their capacity to provoke fruitful debate with other submissions.

Submissions: Abstracts of 300-500 words (with your institutional affiliations and several relevant keywords)  should be submitted online by August 31st, 2015 using the conference website.  Please do not submit abstracts via email.

Selected applicants will be informed of acceptance in late September, and presenters will be asked to submit their papers of up to 10,000 words in length (12,000 including footnotes) by October 31, 2015.

We regret that we are unable to provide financial assistance.  For any questions please contact doctoralconference.law@yale.edu.

Haley on the Communitarian Conservatism of Japanese Judges

John Owen Haley, University of Washington School of Law, has posted The Role of Courts in 'Making' Law in Japan: The Communitarian Conservatism of Japanese Judges which appeared in the Pacific Rim Law & Policy Journal 22 (2013): 491-503.

Courts in Japan have long played a central role in the formation and development of law. Despite some scholarly dissension as to the theory of judicial precedent as a source of law, adherence to judicial precedent is well-established in law and practice, touching nearly all fields of Japanese law.

This essay offers historical perspectives on judicial and legal precedent — from the twelfth century through the Meiji Era, the Taisho and early Showa Eras, and through the postwar period. It discusses the role of precedent and Japan's distinctive pattern of subsequent legislative action affirming judicial precedent (sometimes years later).

This essay is based on an address at the University of Waseda, October 22, 2012.

Spillenger on the Constitutionalization of Choice of Law

Clyde S. Spillenger, UCLA School of Law, has posted Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850-1940, which is to appear in the UCLA Law Review 62 (2015): 1240-1327.

This Article examines the developments leading to the U.S. Supreme Court’s decisions in the 1930s that legitimated the extraterritorial application of state law in civil litigation. Today, these decisions are thought of as having established the basic constitutional limitations on choice-of-law rulings by state courts. But they are better understood as the culmination of an historical process in which the Court first proscribed the extraterritorial application of statutory rules of decision, and then, as the economic relevance of state boundaries receded and the regulatory function of state-created rules of decision increased in importance, emphatically retreated from that position. The 1930s decisions led to a new conception of choice of law in which a party’s domicile — in particular, the state’s power to apply its rules of decision to protect or regulate its own — came to play as important a role as the territorial locus of particular events in resolving conflicts of laws. This conception, which remains central to much of modern conflicts law, contrasts sharply with the Court’s unwillingness (reinforced by recent decisions) to take domiciliary interests into account when determining the constitutional limitations on personal jurisdiction.

Jaffe's "Ironies of Colonial Governance"

James Jaffe, University of Wisconsin-Whitewater, has published Ironies of Colonial Governance: Law, Custom and Justice in Colonial India in Cambridge University Press's Studies in Law and Society series.

The village council, or panchayat, has long held an iconic place in India history, culture, and society. Ironies of Colonial Governance traces the history of that ideal and the attempts to adapt it to colonial governance. Beginning with an in-depth analysis of British attempts to introduce a system of panchayat governance during the early nineteenth-century, the book analyses the legacies of these actions within the structures of later colonial administrations as well as the early nationalist movement. Particular attention is paid to the ways in which the ideologies of panchayat governance evolved during this period as well as to the transnational exchange and circulation of panchayat ideologies.

TOC after the jump.
H/t: Katy Schumaker for the Law & History - LSA Collaborative Research Network

Sunday Book Roundup

Here's a collection of book reviews for this weekend:

Tm Weiner's book, One Man Against the World: The Tragedy of Richard Nixon (Holt) is adapted for essay form in The Nation, and is reviewed by the History News Network here.

Christopher Dickey's Our Man in Charleston: Britain's Secret Agent in the Civil War South (Crown) is reviewed in The New York Times here and in excerpt form in The Daily Beast here. Here's an excerpt of the excerpt:

"Under federal law the African slave trade was deemed piracy, and the penalty was death. Yet when the Echo and other African slave-trade cases came before the federal courts in the South, the local grand juries refused to indict. Some businessmen figured they had a green light to start importing Africans. The Wanderer and the Clotilda were the last known slave ships to land their cargos in the U.S., in 1858 and 1860, respectively. Southerners were growing ever more confident about their ability to defy the federal government and destroy national institutions that did not bend to their will, including the Democratic Party, which they had long dominated."

Diplomatic Games: Sport, Statecraft, and International Relations since 1945 edited by Heather L. Dichter and Andrew L. Johns (University Press of Kentucky) is reviewed on H-Net.

Alex Lichtenstein reviews James Neff's Vendetta: Bobby Kennedy Versus Jimmy Hoffa (Little Brown) for The Washington Post.

"Neff’s saga ends with a whimper rather than a bang, as Kennedy’s Justice Department finally convicts Hoffa for jury tampering and the skimming of union pension funds in 1964. Peopled by larger-than life, clever lawyers, sleazy investigators, obese hoodlums and shadowy turncoats, “Vendetta” will grab readers’ attention. But it offers precious few insights into the larger fate of the union movement or one of its most powerful and tragic figures."

New Books in History interviews Carlos K. Blanton about his new biography, George I. Sanchez: The Long Fight for Mexican American Integration (Yale University Press).

Pubic Books has a multi-book review by Rinku Sen, "The End of Feminism? Far From It," examining Katha Pollitt's Pro: Reclaiming Abortion Rights (Picador), Feminism Unfinished: A Short Surprising History of the American Women's Movement by Dorothy Sue Cobble, Linda Gordon, and Astrid Henry (Liveright), and Roxane Gay's Bad Feminist (Harper Perennial). Of Feminism Unfinished, the review reads:

"Henry also covers Anita Hill’s revelations of sexual harassment during the Clarence Thomas confirmation hearings. The hearing itself served as a symbol of how far women had come—here was an African American woman lawyer—and how that progress was complicated by the continued discrimination they faced in the workplace. Hill, and supporting feminist organizations, had a long climb—too long, it turned out—in convincing an overwhelmingly male Congress that a history of sexual harassment ought to keep someone off the Supreme Court. Hill was unsuccessful politically in that moment, yet her story had a lasting progressive effect not only on workplace law, but also on workplace culture."

Dinner to Emory Law

In the category of lateral hiring news, legal historian Deborah Dinner has moved from Washington University, St. Louis, School of Law, to Emory Law School. From her Emory bio:

Deborah Dinner is a legal historian whose scholarship examines the interaction between social movements, political culture, and legal change. Dinner’s research focuses in particular on how law responds to vulnerabilities that derive from familial and employment relationships, at home and at work. Her courses and curricular interests include Property, the Fourteenth Amendment, Family Law, Employment Discrimination, and Legal History.

Dinner is currently writing a book titled Contested Labor: Social Reproduction, Work, and Law in the Neoliberal Age, which examines debates about the meaning of sex equality in the late twentieth century. The book argues that neoliberal ideology, the rise of the New Right, and the transition from an industrial to a service economy foreclosed feminists’ efforts to achieve greater state protection for workers and caregivers, even as women made significant strides toward equal employment opportunity. . . . .

Read on here.

Do you have hiring news? Feel free to email us!

Weekend Roundup

• A sighting of ASLH past president Bruce Mann in the Washington Post.

•  QVC Meets the NCC: "Mike George, president and CEO of QVC, will become chairman of the National Constitutional Center Corporate Council on Sept. 1."

• The new website of the Osgoode Society for Canadian Legal History (logo at right) is up and running.

• From The Junto: How to use research technology to make the most of your time in the archives.  

• Over at the Faculty Lounge, Al Brophy (University of North Carolina, Chapel Hill) offers "quick takes" on some legal historical aspects of Harper Lee's Go Set a Watchman.  
  

• Via John Q. Barrett's "Jackson List," we have some pointers for Professor Laurence H. Tribe's 11^th annual Robert H. Jackson Lecture on the Supreme Court of the United States, delivered at the Chautauqua Institution on July 11.  Topics included Jackson’s judging on the Supreme Court.  Video of the lecture, with brief introductions and a Q&A, are here.  The text of Professor Tribe's lectures, here and here.  Excerpts from Professor Tribe's interview at the Robert H. Jackson Center in Jamestown, NY, on July 9^th are here.

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

Denham on the U.S. District Court for the Middle District of Florida

New from the University Press of Florida: Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida (June 2015), by James M. Denham (Florida Southern College/Lawton M. Chiles Center for Florida History). A description from the Press:

Representing half of the state’s population, the U.S. District Court for the Middle District of Florida is one of the busiest federal courts in the nation. It is recognized most often as the battleground for the Terri Schiavo "right to die" case, but it has been at the center of major decisions for more than fifty years. The famous and the infamous have stood before these judges, including young civil rights lawyer Thurgood Marshall, mobster Santo Trafficante, drug lord Carlos Lehder, baseball star Denny McLain, movie star Wesley Snipes, criminal defense attorney F. Lee Bailey, and Constance Baker Motley, the first African American woman to argue a case before the U.S. Supreme Court.

More information is available here.

Rice on "Seven Years a Citizen"

Daniel B. Rice, a recent graduate of the Duke University School of Law, has posted The Riddle of Ruth Bryan Owen.

Ruth Bryan Owen (Credit)

This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan. The Expatriation Act of 1907 ironically stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Owen had been a naturalized citizen for three years at the time of her House election in 1928, and she had accumulated far more citizenship credit in her youth. Even so, her defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. The House therefore faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively?

Owen’s case explodes the conventional assumption that “mathematical” constitutional provisions are, by nature, self-interpreting patches of plain meaning. And in recounting Owen’s historic victory, this Article presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for sex-discrimination doctrine.

Purcell on Bickel

Edward A. Purcell Jr., New York Law School, has posted a classic article from his backlist, Alexander Bickel and the Post-Realist Constitution, which appeared in the Harvard Civil Rights- Civil Liberties Law Review 11 (1976): 521-64.

This article examines the career and major writings of Alexander M. Bickel. It identifies the major themes that marked Bickel’s work, the fundamental principles that guided his thinking, and the changing social and political pressures that shaped his constitutional jurisprudence and then reshaped it over the years. It considers his efforts to incorporate and supercede the jurisprudential insights that legal realism highlighted, the importance of his close relationship with Justice Felix Frankfurter, his commitment to the early civil rights movement and Brown v. Board of Education, his subsequent transformation into a stinging critic of the later Warren Court, and finally his last efforts to develop a “conservative” constitutional and political philosophy. The article concludes that Bickel’s jurisprudence will remain provocative and insightful because it focused on the fundamental tensions inherent in the American constitutional structure and, thus, will remain relevant to the challenges that the nation’s constitutional government will confront in the future. Finally, it suggests that Bickel’s problematic but fascinating book, The Least Dangerous Branch, will stand as his most enduring monument as a constitutional theorist and that his brilliant collection, Unpublished Opinions of Mr. Justice Brandeis, will be recognized as his most incisive achievement as a constitutional historian.

Daniel on the Legislative Backlash to the CIO

Anthony Michael Daniel, a doctoral candidate in political science at Columbia University, has posted State-Level Origins of the United States Labor Relations Order.

Why did the United States adopt its labor laws? The extant federal laws have undergone little substantive change since 1959, and are mainly intact from the 1947 Taft-Hartley amendments to the 1935 Wagner Act. This paper goes back to the Wagner to Taft-Hartley period to ask why some states adopted precursor laws to Taft-Hartley while others did not. These states are valuable and understudied sites of investigation in the development of the United States labor relations order. A key lesson of the state-level experience during the 1930s and 1940s is that Congress of Industrial Organization (CIO) density and militance are linked with the adoption of restrictive labor laws. These laws were adopted because they served to restrain organized worker resistance in the form of strikes. The resultant decline in efficacious militance led to the present political canalization of American labor unions. In this paper, I construct a unique dataset of state-level characteristics and laws from 1936 to 1948 and deploy penalized maximum likelihood logistic regression to evaluate standard American Political Development theories of New Deal policy change. Labor militance is found to be a strong predictor of restrictive law adoption. My findings suggest that extant explanations give short shrift to CIO disruption-backlash in the states in explaining the crystallizing of the long-running and extant labor law. This paper is of interest to students of New Deal policy, the development of the United States labor relations order, and American Political Development generally.

French on "Love Letters, Bodies, and the Law in Mexico"

New from the University of Nebraska Press: The Heart in the Glass Jar: Love Letters, Bodies, and the Law in Mexico (2015), by William E. French (University of British Columbia). A description from the Press:

The Heart in the Glass Jar begins with one man’s literal heart (that of a prominent statesman in mid-nineteenth-century Mexico) but is truly about the hearts, bodies, legal entanglements, and letters—as both symbols and material objects—of northern Mexicans from the 1860s through the 1930s.

William E. French’s innovative study of courtship practice and family formation examines love letters of everyday folk within the framework of literacy studies and explores how love letters functioned culturally and legally. French begins by situating love letters in the context of the legal system, which protected the moral order of families and communities and also perpetuated the gender order—the foundation of power structures in Mexican society. He then examines reading and writing practices in the communities that the letters came from: mining camps, villages, small towns, and the “passionate public sphere” that served as the wider social context for the love letters and crimes of passion. Finally, French considers “sentimental anatomy,” the eyes, hearts, souls, and wills of novios (men and women in courting relationships), that the letters gave voice to and helped bring into being.

In the tradition of Carlo Ginzburg’s The Cheese and the Worms and Natalie Zemon Davis’s The Return of Martin Guerre, French connects intimate lives to the broader cultural moment, providing a rich and complex cultural history from the intersection of love and law.

More information is available here.

Meyerson on the Original Meaning of God

Michael I. Meyerson, University of Baltimore School of Law, has posted The Original Meaning of 'God': Using the Language of the Framing Generation to Create a Coherent Establishment Clause Jurisprudence, which appears in the Marquette Law Review 98 (2015): 1035-1102.

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing period reveals that those responsible for the initial implementation of the First Amendment were able to create a compromise that permitted the use of governmental religious speech in a way that was inclusive of all citizens, regardless of faith. Committed to creating an “American” vision of religious freedom, one that was distinct from the restrictive practices of the individual states, George Washington, Thomas Jefferson, and James Madison created a new template for public religious vocabulary. Through the use of non-sectarian, theologically equivocal language, they found a way to talk simultaneously to the most orthodox segment of the population and atheists, deists, and other members of religious minorities.

My Article proposes building on the lessons of the framing period to create a workable Establishment Clause jurisprudence. If we accept that non-sectarian phrases such as “endowed by their Creator” need not divide our nation, we can modify the traditional “endorsement test.” A workable test reflecting the Framers’ wisdom would only judge governmental speech as unconstitutional if it endorsed religion in such a way “that it sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Simple non-sectarian utterances, such as the Supreme Court’s invocation “God save the United States and this honorable court,” would be permitted, while the courthouse display of the Ten Commandments would be prohibited, and judges and lawyers would finally be able to rely on a usable, understandable Establishment Clause jurisprudence.

Legal History Review 83:1-2

The latest issues of the Legal History Review, also known as the Tijdschrift voor Rechtsgeschiedenis and the Revue d'Histoire du Droit and not to be confused with the Law and History Review, are available online here.

Update: Link fixed. H/t: Jonathan Rose

Delegating to the Automobile

56:2 (April 2015) of the journal Technology and Culture is a special issue, "(Auto)Mobility, Accidents, and Danger."  Of special interest for legal historians is Delegating to the Automobile: Experimenting with Automotive Restraints in the 1970s (pp. 440-463) by Jameson M. Wetmore, which is a view, from later in the twentieth century, of an analogous issue to the one Sally H. Clarke addressed in Unmanageable Risks: MacPherson v. Buick and the Emergence of a Mass Consumer Market, Law and History Review 23 (2005): 1-52.  Here’s the abstract to Wetmore’s (gated) article:

This article explores the attempts in the United States in the 1970s to implement a new paradigm for automobile safety—crashworthiness, the idea that automobile passengers should be protected in the event of a crash. A large number of strategies were proposed, including air bags, seatbelt modifications, mandatory belt-use laws, and ignition interlocks. Many of these did not initially come to fruition, but they did give the automobile safety community a chance to experiment with different ways of distributing responsibilities between automobile occupants, automobile manufacturers, and, to a lesser extent, government agencies. These experiments helped pave the way for the successful implementation of a number of new strategies in the 1980s, 1990s, and 2000s.

The TOC for the entire issue is here.

NARA to Release Greenglass Transcript at Noon

David Greenglass (credit: NSA/public domain)

Back in May we noted that Judge Alvin K. Hellerstein of the Southern District of New York granted the motion of the National Security Archive and others (including the American Society for Legal History) ordered the unsealing of the grand jury testimony of Max Elichter and David Greenglass before the grand jury in the espionage prosecutions of Julius and Ethel Rosenberg.  Today at noon, the National Archives will release those transcripts.  I expect Greenglass's biographer Sam Roberts, a party in the suit to unseal the testimony and  will have a story on the website of the New York Times later today.  The National Security Archive, which was represented by my Georgetown Law colleague David Vladeck, will hold a press conference at 2 pm at George Washington University's Gelman Library.  Among the participants will be Wisconsin Law's Brad Snyder, whose article on the U.S. Supreme Court's handling of the appeals of the Rosenbergs' convictions is here.

Update: Mr Roberts's article is here.

TIL 16:2: Sovereignty as Trusteeship for Humanity

Just out is Theoretical Inquiries in Law, volume 16, number 2 (2015), a symposium issue entitled Sovereignty as Trusteeship for Humanity:  Historical Antecedents and Their Impact on International Law.  Here are its contents:

Introduction
Yael Braudo, TIL Editorial Board    

Sovereignty and Natural Law in the Legal Discourse of the Ancien Régime
Michel Troper    

Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought
David Dyzenhaus

On Sovereignty, Legitimacy, and Solidarity Or: How Can a Solidaristic Idea of Legitimate Sovereignty Be Justified?
Sergio Dellavalle

A Genealogy of State Sovereignty
Lorenzo Zucca

Early Modern Sovereignty and Its Limits
Benjamin Straumann

Sovereign Trusteeship and Empire
Andrew Fitzmaurice

Three Grotian Theories of Humanitarian Intervention
Evan J. Criddle

Sovereignty as Trusteeship and Indigenous Peoples
Evan Fox-Decent, Ian Dahlman    

The Paradoxes of Sovereigns as Trustees of Humanity: Concluding Remarks
Eyal Benvenisti