Sunday Book Roundup

Here's this weekend's book review line-up:

Harold H. Bruff's Untrodden Ground: How Presidents Interpret the Constitution (University of Chicago Press) is reviewed by The New Rambler.

"Untrodden Ground boldly treads where few have ventured before. With lively prose and a touch of humor, Harold Bruff’s superb book furnishes the reader a tour of 44 Presidents and their constitutional claims. Think of the hefty, 557-page tome as something of a “Top 40” for presidential power geeks, with Bruff playing the role of Casey Kasem. Rather than ballads and jams, we are treated to discussions of the Spot Resolutions, the Cuban Missile Crisis, and the Tenure of Office Act."

New Books adds interviews with Patrick Hagopian--who discusses his book, American Immunity: War Crime and the Limits of International Law (University of Massachusetts Press), and with Lisong Liu--who discusses his book, Chinese Student Migration and Selective Citizenship: Mobility, Community, and Identity Between China and the United States (Routledge).

H-Net has a review of Yuma Totani's Justice in Asia and the Pacific Region, 1945-1952: Allied War Crimes Prosecution (Cambridge University Press).

The Los Angeles Review of Books has a review of Lisa McGirr's The War on Alcohol: Prohibition and the Rise of the American State (Norton).

"Lisa McGirr’s The War on Alcohol: Prohibition and the Rise of the American State is dry and tendentious, like certain counties in Tennessee. But anyone with a serious interest in drug policy should read her book to understand how we arrived at our present tragedy.
Like our current war on drugs, Prohibition thrived on prejudice. McGirr, a Harvard historian, sees Prohibition as the beginning of centralized police power — “the rise of the American State” — and argues that this power was mainly directed against minorities. It became a war on the poor and in particular against poor urban minorities."

And finally, in a review titled, "A Valentine for a Justice," the LA Review of Books examines Notorious RBG: The Life & Times of Ruth Bader Ginsburg by Irin Carmon and Shana Knizhnik (Dey Street Books). 

"Notorious RBG: The Life and Times of Ruth Bader Ginsburg is a loving, slightly ironic biographical gift-book that is a spin-off from a Tumblr fan site that launched Justice Ginsburg into the pop culture stratosphere. The book was written by the Tumblr creator, recent NYU Law grad Shana Knizhnik, and TV reporter Irin Carmon, who interviewed the Justice for MSNBC."

Weekend Roundup

• Ronald Collins interviews David O. Stewart, who clerked for Justice Lewis F. Powell, Jr., in OT 1979, about the writing of Justice Powell's opinion in the commercial speech landmark Central Hudson.

• Idaho's attorney general is in search of missing volumes of his predecessors' reports. 

• Mississippi State University to receive rare book collection: “The donations were assembled from the private library of John Robinson Block, publisher of the Pittsburgh Post-Gazette and Toledo Blade.... [It] spans books printed from 1801 to 1898 and includes the scarce first publication of the laws of the Mississippi Territory from 1801, session laws from the territory, the first digest of laws in the territory, Civil War-era imprints along with reconstruction and post reconstruction laws through 1898.  [H/t: Starkville Daily News]

• On AHA Today: Philippa Strum on Why Americans Get to Talk So Much.  Hint: Anita Whitney had something to do with it. 

• Balinkinization has been posting essays by participants in advance of a conference, organized by Texas Law’s Joseph Fishkin and Willy Forbath, on The Constitution and Economic Inequality on January 29 and 30th, 2016.  Pretty much all of them have a historical dimension, but see especially those of Mark Graber, Gerard N. Magliocca, Ajay Mehrotra, William J. Novak, and James Gray Pope.

• As part of a report for the National Cooperative Highway Research Program on the legal issues associated with driverless vehicles, Santa Clara Law’s Dorothy Glancy. Robert Peterson, and Kyle Graham include an interesting section “on early legal response to technologies such as steamboats, railroads, telegraphy, automobiles, airplanes, and computers, with an emphasis on how the law has been invoked to address the perceived risks associated with these devices and systems.”

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

Bradley and Siegel on the "Historical Gloss" on Judicial Separation of Powers

Curtis A. Bradley and  Neil Siegel, Duke University School of Law, have posted Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers:

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”— a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support what Commonwealth theorists have termed “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to non-legal but obligatory constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.

H/t: Legal Theory Blog

Bernstein on Abortion at Common Law

Anita Bernstein, Brooklyn Law School, has posted Common Law Fundamentals of the Right to Abortion, which appeared in the Buffalo Law Review 63 (2015): 1141-120:

In an article relied on by Justice Blackmun in Roe v. Wade, a lawyer named Cyril Means, Jr., asserted that abortion had been “a common law liberty” back in the fourteenth century. Responding in part to criticisms of this thesis, this Article extends what Means contended. The prerogative to terminate one’s own pregnancy really is a common law liberty: what the common law provides to pregnant persons is in some respects broader than the privacy-related right sited in the Fourteenth Amendment. As expressed consistently for centuries through its doctrines of criminal law, torts, property, contract, and unjust enrichment, the common law takes a position on abortion that comports with the modern coinage “pro-choice.”

Kinports on Blackmun and the Criminal Rights Counterrevolution

Kit Kinports, Penn State Law (and a law clerk to Justice Blackmun during OT 1981) has posted Justice Blackmun's Mark on Criminal Law and Procedure, which appeared in the Hastings Constitutional Law Quarterly 26 (1999): 219-70:

Justice Harry A. Blackmun (LC)

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, was strong on law and order, and weal on civil liberties."

During the Justice's twenty-four years on the Supreme Court, his colleagues - under the leadership of Chief Justices Burger and Rehnquist - narrowly interpreted and even overruled outright a number of the Warren Court's pro-defendant rulings. Despite initial predictions about Justice Blackmun's views on criminal issues and the general tendency of Supreme Court Justices to remain loyal to the policies of the President who nominated them, the Justice would eventually be called a "swing Justice" and "a voice of reason" in criminal cases. The Justice himself, on the other hand, is fond of saying that his views never shifted, but that it was the Court that changed around him. In attempting to evaluate these various characterizations and to describe the Justice's judicial personality, as reflected in his criminal law opinions, and then turn to the role he played in the Burger and Rehnquist Courts' efforts to restrict the rights afforded criminal defendants.

The Promises and Perils of Disciplinary Border Crossing

[By Anne Kornhauser]

For the past month I have been touting the advantages of a multidisciplinary approach to certain kinds of historical understanding. Legal history is by nature multidisciplinary, but in my work I have chosen to situate legal history within a larger field of operation. I do not want to end this blogging stint, however, without mentioning a few of the drawbacks to the disciplinary eclecticism I have embraced, most of which are practical.

The first is that academics, like many people, like to put everyone in boxes. This means that scholars need to be able to identify their discipline and one or more subfields to constitute our expertise, to be recognizable within our profession. This form of identification makes sense to me; as a scholar, one needs to be able to speak with authority about a subject and to train authors in an area of specialization. If one claims too many forms of expertise, or none at all, one runs the danger of being accused of dilettantism, ignorance, or insouciance, and the accusers might just be right.

Yet expertise in the humanities and the social sciences is a tricky business. If it is difficult to parse, say, chemistry into its component parts, it is next-to-impossible to parse human behavior. As I have mentioned in previous posts, historians make do with different emphases, or perspectives, looking through some lenses but not others, isolating actors, institutions, and objects to make a case from a certain angle of vision about the significance of the human motivations, actions, or institutions we study. In some cases, we try to generalize or attribute causality to larger structural forces from our chosen vantage point and methodological assumptions. Whether looking for meaning or cause, the best we can do is to try to persuade through interpretation and evidence. One means of doing so is to assign greater importance to one aspect of the human condition over others.

Historians--still--almost always start with place. The discipline of history remains tied to the nation-state, though transnational, global, and "big" history have begun to disrupt this historiographical habit. There is something worth preserving here too: whether one starts with a nation-state, a geographical region, or a local community, there are many reasons to study a particular space and many obstacles to writing and teaching truly global histories. Since we must draw some lines, one thing that makes global history salutary is that it forces us to better justify some of those lines. History departments, academic publishing catalogues, history books, are organized foremost by time and place. But time and place only go so far in the business of identification within the historical discipline. It is what we study within the field of history that truly brands us: ideas, politics, culture, law, etc.

Here again, the reasons are mostly practical. As the field has grown, the ineluctable logic of classification proceeds apace. Academic publishers have developed series and specialized editors, job descriptions ask for greater and greater degrees of specificity in what we study and teach, and academic societies have sprung up to bolster thematic specialization. Finally, methodological or ideological infighting over a field or subfield can be another source of ever-multiplying subdivisions.

As good guild members, we like to protect our little fiefdoms in academia, policing the borders and admitting only those with proper identification. The historian who transcends prescribed categories may not quite fit into any scholarly community. More important, there is a risk that in covering so much ground, disciplinary or otherwise, one will be accused of meddling or superficiality. I, for one, will take that risk in exchange for what I believe can be gained from drawing on multiple disciplines both methodologically, in terms of the tools we use to study the past, and interpretively, in terms of how we define our objects of historical study. Invoking multiple disciplines allows for a wider array of possibilities for how we might read our sources; a deeper historical understanding, in particular the ability to recognize broad patterns of conceptualization, practice, and behavior that might otherwise be invisible to us; new ways to think about inherited disciplinary and epistemological categories, not to mention a more diverse community of interlocutors with whom to share ideas.

For these reasons, among others, I was attracted to legal history to complement the intellectual history I had already gravitated toward. Throughout my academic training, border-crossing was de rigueur. I intend to keep it up, unless the border patrols crack down. For I admit, I want to be accepted by the guild as much as anyone. And I do not just mean getting tenure, which I have. I mean being a valued, and valid, professional.

Maxeiner on a Transtlantic German Legal Scholar

James R. Maxeiner, University of Baltimore School of Law, has posted

two articles on J.L. Tellkampf, a legal scholar who already in 1841 in an important series of articles in the America Jurist pointed the way to a modern American legal system as one where codifying and systematizing would lead common law.

Supported by Justice Joseph Story, poet Henry Wadsworth Longfellow and famous naturalist Alexander von Humboldt, he was a professor at Columbia College and at Union College. His research into prison discipline paralleled that of Alexis de Tocqueville. He was a founder of what is now the Correctional Association of New York. Francis Lieber found him a rival. In New York Tellkampf worked with “Young Americans” such as the codifiers of the New York Revised Statutes and David Dudley Field. He knew the poet Poe and other lead Young Americans. He supported reform and criticized past practice.

Before coming to the U.S. in 1838, Tellkampf was a young supporter of modern constitutionalism in Germany and a colleague of the Brothers Grimm at the University of Göttingen. Upon his return to Germany he was a member of the Frankfurt Parliament of 1848 and of its all important constitutional committee and an advocate of American practices.

The article J.L. Tellkampf: German Legal Scientist in the U.S. 1838-1847 in an Age of Reform [forthcoming in volume 50 of the Yearbook of the Society of German American Legal Studies (2016)] is about Tellkampf’s life in the United States and the mixed reception he received here in his pursuit of legal scholarship. The article The First Humboldtian Research Trip into the Polis: J.L. Tellkampf in the United States 1838-1847 is about his research into legal methods, codification, currency backing and prison discipline.

Northwestern Seeks Legal Studies Instructor

We have the following job posting:

Northwestern Legal Studies

Instructor Position (1 course, spring 2016)

The Center for Legal Studies at Northwestern University seeks an instructor for an undergraduate course entitled “The American Revolution” in Spring Quarter 2015 (March 29-May 31 plus finals). The course is organized around the question of “liberty for whom?” and examines the lives of the diverse people who experienced the American Revolution. A core syllabus has already been designed, but the instructor will have freedom to change some aspects of the course. Two prominent scholars – Elizabeth Fenn and Kathleen DuVal – are scheduled to visit the course.  The course is scheduled to meet Tu/Th from 12:30-1:50 pm.  

Advanced graduate students and recent graduates are encouraged to apply. Please send a cover letter, CV, and summary of teaching evaluations (if any) to the Legal Studies Program Assistant, Annie Kelchner at legalstudies@northwestern.edu by February 20, 2016.  Salary will be commensurate with experience.  

Northwestern University does not discriminate or permit discrimination by any member of its community against any individual on the basis of race, color, religion, national origin, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, or any other classification protected by law in matters of employment.

Su on Catholic Constitutionalism

Anna Su, University of Toronto Faculty of Law, has posted Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae, which is forthcoming in the Notre Dame Law Review:    

This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century when Catholicism became a potent social force in the United States. This history offers an opportunity to reflect on what the new global geography of Catholicism portends in the future as well as the importance of law in shaping religious change.

Global Perspectives on Legal History 4

[We have the following announcement.]

With Legislar en la América hispánica en la temprana edad moderna. Procesos y caraterísticas de la producción de los Decretos del Tercer Concilio Provincial Mexicano (1585), the Max Planck Institute for European Legal History presents the fourth publication in its book series Global Perspectives on Legal History.

The decrees of the Third Mexican Provincial Council, celebrated in 1585, had an important impact on the organization of the colonial Church and Spanish-American society, from the time they were published in 1622 until the nineteenth century.  This research focuses on how the decrees were drafted, taking into consideration the working materials used in the conciliar meeting room by the bishops and their assistants, and thus highlighting the intentions of the conciliar fathers in their new and original elaboration of both Canon Law and Derecho Indiano.

Global Perspectives on Legal History is a book series edited and published by the Max Planck Institute for European Legal History, Frankfurt am Main, Germany.  As its title suggests, the series is designed to advance the scholarly research of legal historians worldwide who seek to transcend the established boundaries of national legal scholarship that typically sets the focus on a single, dominant modus of normativity and law. The series aims to privilege studies dedicated to reconstructing the historical evolution of normativity from a global perspective.  It includes monographs, editions of sources, and collaborative works. All titles in the series are available both as premium print-on-demand and in the open-access format.  More information on the series and forthcoming volumes [is here.]

Osvaldo Rodolfo Moutin, Legislar en la América hispánica en la temprana edad moderna.
Procesos y caraterísticas de la producción de los Decretos del Tercer Concilio Provincial Mexicano (1585).  Global Perspectives on Legal History 4.  Frankfurt am Main: Max Planck Institute for European Legal History 2016. 216 p., € 11,64 D.  ISBN: 978-3-944773-03-2.  Open Access Online Edition.  Print-on-demand.

CFP: Graduate Student Workshop on the History and Politics of Public Finance

We have the following call for applications:

8th Annual Graduate Student Workshop 

The last decade has witnessed a revival of multidisciplinary research on the social, political, and historical sources and consequences of public finance. We invite interested graduate students from history, law, public policy, and the social sciences to participate in a one-day workshop on this “new fiscal sociology.” In addition to brief lectures introducing students to the comparative history of taxation and public finance, the workshop will consist of discussion of classic and contemporary texts.

The graduate student workshop will be held on Wednesday, November 16th, 2016, in Chicago, Illinois in conjunction with the annual meeting of the Social Science History Association (SSHA). Participants may also have the opportunity to present their own work on Thursday, November 17^th, as part of the Public Finance network at the SSHA conference.

Space is limited. Some funds for reimbursement of housing and travel expenses will be available for a limited number of participants.

Applicants should submit a CV and a paragraph explaining their interest in this workshop, and (if applicable) a draft of a research paper that they would like to present at the SSHA. Preference will be given to students who also submit conference papers, but we encourage applications from all students interested in the workshop, including those at early stages of their graduate careers.

Submit materials via e-mail no later than February 20, 2016 to:

• Isaac Martin, Department of Sociology, University of California – San Diego (iwmartin@ucsd.edu)
• Lucy Barnes, Department of Political Science, University College London  (l.barnes@ucl.ac.uk)
• Molly Michelmore, Department of History, Washington and Lee University  (MichelmoreM@wlu.edu)

LHR 34:1

Law and History Review 34:1 (February 2016) is available online:

“The Greatest Thrill I Get is When I Hear a Criminal Say, ‘Yes, I Did it’”: Race and the Third Degree in New Orleans, 1920–1945
Jeffrey S. Adler

The Investigation into the Traffic in Women by the League of Nations: Sociological Jurisprudence as an International Social Project
Paul Knepper

Law, Sovereignty, and the War on Smuggling in Coastal China, 1928–1937
Philip Thai

Multiple Voices and the Force of Custom on Punishment: Trial of ‘Family Honor Killings’ in Mandate Palestine
Badi Hasisi, Deborah Bernstein

Trial by Jury as “Mockery of Justice”: Party Contention, Courtroom Corruption, and the Ironic Judicial Legacy of Antimasonry
Elizabeth Bussiere

No Greater Provocation? Adultery and the Mitigation of Murder in English Law
K.J. Kesselring

Reviews

John Hudson, The Oxford History of the Laws of England, Volume II: 871–1216, Oxford: Oxford University Press, 2012. Pp. xxiii + 958. $300.00 cloth (ISBN 978-0-19-826030-1).
Thomas J. McSweeney

Matthew Dyson and David Ibbetson, eds., Law and Legal Process: Substantive Law and Procedure in English Legal History, Cambridge: Cambridge University Press, 2013. Pp. xiii + 358. $99.00 cloth (ISBN 978-1-107-04058-8).
Jonathan A. Bush

Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law, Cambridge: Cambridge University Press, 2015. Pp. xiii + 414. $115.00 cloth (ISBN 978-1-107-08099-7).
Rudolph Peters

Elke Stockreiter, Islamic Law, Gender, and Social Change in Post-Abolition Zanzibar, New York: Cambridge University Press, 2015. Pp. 295. $99.99 cloth (ISBN 9781107048416).
Fahad Ahmad Bishara

Deborah A. Rosen, Border Law: The First Seminole War and American Nationhood, Cambridge, MA: Harvard University Press, 2015. Pp. 316. $45.00 cloth (ISBN 978-0-674-96761-8).
Laurel Clark Shire

Michael A. Ross, The Great New Orleans Kidnapping Case: Race, Law, and Justice in the Reconstruction Era, Oxford: Oxford University Press, 2015. Pp. 309. $27.95 cloth (ISBN 978-0-19-977880-5).
Mia Brett

Allyson Hobbs, A Chosen Exile: A History of Racial Passing in American Life, Cambridge, MA: Harvard University Press, 2014. Pp. 400. $29.95 cloth (ISBN 978-0-674-36810-1).
Jane Dailey

Kara W. Swanson, Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America, Cambridge, MA: Harvard University Press, 2014. Pp. 333. $35.00 cloth (ISBN 9780674281431).
Michael Willrich

Anne M. Kornhauser, Debating the American State: Liberal Anxieties and the New Leviathan, 1930–1970, Philadelphia: University of Pennsylvania Press, 2015. Pp. 323. $59.95 cloth (ISBN 978-0812246872).
David Brown

Book Review of Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right – CORRIGENDUM
D. Dinner

In This Issue
Elizabeth Dale

Freidland on the Appointments Clause

Steven Friedland, Elon University School of Law, has posted “Advice and Consent” in the Appointments Clause: From Another Historical Perspective, which appeared in the Duke Law Journal Online 64 (May 2015).  To quote from its lengthy abstract:

A central premise of this paper is that the brilliance of the Appointments Clause has become obscured by dysfunction past and present. The Senate’s deference to the President’s nominees in the past was just as damaging to effective government as some of the political polarization and obstruction of the current day. In other words, the appointments process has changed over time, but not necessarily for the worse. Historical rubber-stamping of nominees by the Senate, with lightning-fast approval, is not preferable to careful and reflective consideration and the opportunity for collaborative competency between two branches of government. Yet, today’s new appointments process is fraught with peril, from wholesale refusal to act in a timely manner to staged public hearings designed to reveal nothing. Some of these new tactics are inconsistent with the process values of the clause and have a far-reaching impact. . . .

This Essay first explores the Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate in responding to presidential nominations.

CFP: What Results Can We Expect from Digital Humanities?

We have the following call for papers from the Max Planck Institute for European Legal History.]

The project "The School of Salamanca: A Digital Collection of Sources and a Dictionary of its Juridical-Political Language" invites all interested scholars to submit contributions to the forum
“With the Eyes of a Humanities Scholar: What Results Can We Expect from Digital Humanities?" [That is, "Die geisteswissenschaftliche Perspektive: Welche Forschungsergebnisse lassen Digital Humanities erwarten?”]

Contributions should adopt the perspective of the humanities and focus on the experiences scholars made in their research work with DH instruments. Therefore, the interaction between research interests in the humanities and digital tools is going to be of crucial importance: how do digital possibilities impact on research methods and questions? What new research questions arise from the digital availability of data and from the implied possibility of mass analysis? Do the DH instruments with their presumed "objective" results restrict the range of research questions and limit the scope of interpretation?

Contributions to the Forum are to be published in the journal of the Max Planck Institute for European Legal History, Frankfurt: RG Rechtsgeschichte - Legal History 24 (2016). The forum gathers short, incisive contributions (no detailed research papers) treating a common topic. Contributions should not be longer than 8,000 characters (including blanks). To keep the essayistic character of the texts, footnotes should be used sparingly, if at all.

Contributions will be accepted in English, German, Spanish, Italian, French, and Portuguese.  Deadline is April 1, 2016.  Contact person: Dr. Christiane Birr.  Further information and submission of manuscripts: birr@rg.mpg.de

Goluboff's "Vagrant Nation"

Ria Goluboff (UVA)

Out from Oxford University Press next month, but already heralded by a press release from theUniversity of Virginia School of Law, is Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, by Risa Goluboff, UVA’s dean-in-waiting:

In 1950s America, it was remarkably easy for police to arrest almost anyone for almost any reason. The criminal justice system-and especially the age-old law of vagrancy-served not only to maintain safety and order but also to enforce conventional standards of morality and propriety. A person could be arrested for sporting a beard, making a speech, or working too little. Yet by the end of the 1960s, vagrancy laws were discredited and American society was fundamentally transformed. What happened?

In Vagrant Nation, Risa Goluboff answers that question by showing how constitutional challenges to vagrancy laws shaped the multiple movements that made "the 1960s." Vagrancy laws were so broad and flexible that they made it possible for the police to arrest anyone out of place: Beats and hippies; Communists and Vietnam War protestors; racial minorities and civil rights activists; gays, single women, and prostitutes. As hundreds of these "vagrants" and their lawyers challenged vagrancy laws in court, the laws became a flashpoint for debates about radically different visions of order and freedom.

Goluboff's compelling account of those challenges rewrites the history of the civil rights, peace, gay rights, welfare rights, sexual, and cultural revolutions. As Goluboff links the human stories of those arrested to the great controversies of the time, she makes coherent an era that often seems chaotic. She also powerfully demonstrates how ordinary people, with the help of lawyers and judges, can change the meaning of the Constitution.
       
The Supreme Court's 1972 decision declaring vagrancy laws unconstitutional continues to shape conflicts between police power and constitutional rights, including clashes over stop-and-frisk, homelessness, sexual freedom, and public protests. Since the downfall of vagrancy law, battles over what, if anything, should replace it, like battles over the legacy of the sixties transformations themselves, are far from over.

CFP: Human Rights and Empire: A Graduate Conference

[We have the following call for papers.]

Human Rights and Empire: A Graduate Conference, University of Chicago Pozen Family Center for Human Rights, Thursday and Friday, May 19-20, 2016

Imperial powers have often been among the most vocal advocates of human rights. Are human rights ideals in tension with imperialism, or might such ideals in fact be implicated in imperial projects? Especially if such ideals have been complicit in empire, can invocations of human rights still be useful in opposing imperial and racial domination? How does the history of human rights relate to the history of imperialism and decolonization?

This conference will bring together graduate students working with a range of theoretical and historical approaches to address the politics of human rights in relation to race and empire. Potential topics include (but are not limited to) the relationship between liberalism and empire; questions of intervention and sovereignty; narratives of nationhood in human rights discourse; the place of international law in past and contemporary forms of imperialism; international imaginaries and forms of solidarity beyond the nation-state; and connections between human rights, sovereignty, and self-determination.

The conference will run for a day and a half, starting mid-afternoon on Thursday, May 19th and ending early Friday evening, May 20th, 2016. It will include up to six workshop-style sessions on pre-circulated graduate student papers, as well as a keynote talk by Antony Anghie (University of Utah) on “Colonialism and the Future of Human Rights.” Each session will begin with comments from a University of Chicago graduate student discussant. The presenter will have time to respond to discussant comments before opening the conversation to the wider group.

Paper proposals, including a title and an abstract of approximately 500 words, are due by Tuesday, March 1 at 9:00am CST, and should be submitted through the conference website. Notifications will be sent by mid-March. University of Chicago graduate students are welcome to apply; however, preference will be given to external applicants. The conference will cover the cost of lodging in shared rooms for out of town presenters. A limited amount of travel funding is available for participants who cannot secure funding from their home institution.

Those presenting papers will be expected to send their paper draft to the conference organizer for circulation to participants by Monday, May 9th. They are also expected to read all papers and attend all sessions. Travel plans should include arriving in Chicago by 12noon on Thursday, May 19th and depart no earlier than 7pm on Friday, May 20th.

The conference is sponsored by the University of Chicago Pozen Family Center for Human Rights. For more information and to submit an abstract [go here.]

Lino on Dicey on Empire

Dylan Lino, a PhD Candidate at the Melbourne Law School and Visiting Researcher at the Harvard Law School, has posted Albert Venn Dicey and the Constitutional Theory of Empire, which is forthcoming in the Oxford Journal of Legal Studies:

In the post-1945 world, constitutionalism has transcended the nation-state, with an array of transnational arrangements now manifesting constitutional characteristics — so says a growing number of scholars. This paper reveals an earlier but largely forgotten discourse of transnational constitutionalism: the constitutional theory of the British Empire in the late-nineteenth and early twentieth centuries. Focusing on the work of Albert Venn Dicey, the paper shows that, when the Empire was at the height of its power and prestige, British constitutional scholars came to see the Empire as a constitutional order and project. For Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial constitutional order was balancing British constitutional principles with imperial unity. This paper focuses in particular on parliamentary sovereignty, a constitutional principle that for Dicey was both necessary for and dangerous to the Empire’s integrity. An exercise in intellectual history, the paper rethinks Dicey’s work and the constitutional tradition in which Dicey has played such an integral part, seeking to bring empire back into the picture.

Lindseth on a Great French Administrative Law Scholar

Peter L. Lindseth, University of Connecticut School of Law, has posted Between the ‘Real' and the ‘Right': Explorations Along the Institutional-Constitutional Frontier, which is forthcoming in Constitutionalism and the Rule of Law: Bridging Idealism and Realism, ed. Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese  (Cambridge University Press):

The aim of this chapter is to offer some fragments of a theory of institutional (and by extension constitutional) change that might shed some light on the interplay between idealism and realism at the heart of this volume. The chapter first lays out some sources and influences for my own understanding of that interplay, using the work of Maurice Hauriou (1856-1929) as the point of entry into the discussion. Hauriou was perhaps France’s greatest administrative law scholar of the late-nineteenth and early-twentieth centuries and, more importantly for our purposes, the progenitor of the ‘theory of the institution and the foundation’. More clearly than any other theorist in my view, it was Hauriou who articulated the ‘special phenomenon of the institution [as] the transformation of an organization of fact into an organization of law, of the real into the right’. Building on Hauriou’s insights (particularly as to the role of ideas in institutional evolution), this chapter attempts to distill out elements of a theory of institutional change in three primary dimensions – functional, political, and cultural – while also introducing certain extensions and complications. From there, the discussion turns to a particular form of interaction between the ‘real’ and the ‘right’: the transformation of a set of ‘institutions’ into a robust ‘constitution’ for a political community. This transformation may be analogized to a kind of ‘phase transition’, to use the language of the natural sciences. Its key manifestation is the manner in which certain institutions attain a legitimacy to exercise not merely regulatory or normative power but also the power of compulsory mobilization, whether human (defense or policing) or fiscal (taxation, spending, and borrowing). Legitimate compulsory mobilization, this discussion suggests, is a crucial element in the political metabolism of a community, converting social resources into work for public ends. It is the ultimate boundary – the Rubicon, if you will – between a merely ‘institutional’ regime as opposed to a robustly ‘constitutional’ order for a particular political community. To illuminate the significance of this institutional-constitutional frontier, the chapter concludes with discussion of an historical example – the emergence and evolution of supranational governance in Europe over the last six and half decades.

More news from H-Law: new listserv

We recently noted some exciting changes coming to H-Law, announced in a recent "State of the List" message. Here's what the plan is for H-Law's traditional listserv function:

[T]he Digital Commons is not well-suited to the sort of open and free discussion that once was the core element of H-Law.  With this truth in mind, H-Law – in partnership with the American Society for Legal History – has started a separate legal history listserv.  The LHL will look and feel much as the old H-Law 1.0 did. Members will post questions, comments, or replies, using their normal email programs.  Messages will be sent to a central page where moderators will evaluate the posts and then forward them to the whole list.  Where revisions are required, the moderator will contact the poster separately.  The same rules of netiquette and topic focus of H-Law (solely on legal history broadly defined) will govern the listserv and will be enforced.  Decisions on the suitability of a post will rest with the moderator and the H-Law Editorial Board.  Please note that those interested in joining the Legal History Listserv will need to register separately for that listserv.  Membership on H-Law will not provide access to the LHL.

To join the Legal History Listserv, go to http://lists.aslh.net/mailman/listinfo/legal-history-listserv. 

John Rawls, German Émigrés, and the Administrative State: Finding the Connections

[By Anne Kornhauser]

And then there was Rawls. The most obvious payoff to the eclectic approach I took in my book exploring the relationship between liberalism and the modern American state came in a novel reading of the philosopher John Rawls. This reading stemmed from two methodological moves: First, I freed myself from the ideological litmus test of "liberalism" and used instead Sheldon Wolin's notion of a "community of preoccupations" in order to determine whom I would write about. Second, I juxtaposed Rawls and the German émigré intellectuals I had studied. As I did so, I noticed a symbiosis in their thinking about the problems posed by the growing administrative state for liberal democracy, particularly when it came to law.

Saying anything different about Rawls was a challenge in its own right as writing about Rawls has become a virtual industry with bibliographies that run into the hundreds of pages. The sheer volume of the secondary literature was daunting, despite the fact that historians have only recently jumped on the Rawlsian bandwagon. If I was successful in this endeavor, it was because I discovered a conversation across the disciplines--not always, or even usually in the literal sense that my actors spoke directly to one another, but they did read each other's work and, more important, they identified similar concerns about the state and for similar reasons.

Making my task even more difficult, Rawls is not known to have written much about the state, or, for that matter, any political institution. That fact is reflected in earlier drafts of my own work on Rawls and has been pointed out by multiple critics who have condemned Rawls either for having little interest in democracy or for his refusal to acknowledge any real-world applications of his philosophy. But in studying the German émigrés' sympathetic but judgmental views of the new administrative state, I began to see the outlines of that state in Rawls's work up to and including A Theory of Justice (1971). I was also aided in this understanding by Rawls's archives, which had not been available to me when I first began the research that would form the basis of this book. In this particular case, the archives were critical because Rawls was not the kind of thinker who contextualized his work. In fact, his theory of justice exemplifies decontextualized, or idealized, normative philosophy.

The outlines of his theory were sketched in Rawls's work of the 1950s and 1960s, and in his thinking as early as the late 1940s. This periodization was important to me because I believed that World War II and its state provided an important backdrop to Rawls's thinking. His theory of justice, I felt, could be considered to be, among other things, a sympathetic critique of the American administrative state as it arose from the war. Rawls's updated social contract theory posited the conditions necessary for consent in a constitutional democracy and the principles of justice that a free and rational people would agree to as a test of the fairness of their institutions.

What the German émigré intellectuals allowed me to see in Rawls that had not been as visible earlier were concerns specific to the administrative state as well as a struggle in Rawls, similar to their own, about whether legality could effectively constrain some of the more worrying aspects of that state: the threat it posed to the rule of law as a check on arbitrary power; its reliance on discretionary, unaccountable decision making; and the concomitant diminution of legislative authority and democratic participation in government. To this Rawls added a key insight regarding the difficulties of critiquing such a state in the first place, given its lack of transparency and the technocratic justifications state actors often gave for their actions.

I unearthed these aspects of Rawls's thinking--rarely made explicit in his published writings and only occasionally in those that remain unpublished--because if one read between the lines, one could see that Rawls was posing similar questions to those of the German émigrés about the role of law in taming the administrative state. The archives revealed that Rawls had read a number of these German thinkers, including his Harvard colleague Carl Friedrich, who had come earlier to the United States but who was an important interlocutor in the liberal conversation about the American state, the émigré Arnold Brecht of the New School, as well as Gustav Radbruch, a central figure in German jurisprudence. Rawls also read American legal scholars, such as Lon Fuller and Jerome Hall, who were thinking along similar lines as the German émigrés, and who themselves cited these thinkers and addressed the fate of the rule of law ideal in the wake of the fall of Weimar and the rise of the Nazi state.

These men formed a motely grab bag of legal thought. Yet reading them had a profound impact on Rawls, forcing him to grapple with the very meaning of law in the context of the modern state. In A Theory of Justice, Rawls placed law and justice in separate categories, arguing that law was a merely formal system that had no intrinsic relationship to substantive ethical content, or justice. Reading the German thinkers and pondering the role of law in Nazi Germany, Rawls grew more hesitant on this point. The law, Rawls now conceded, might have something to do with justice. If the legal system was too distorted, for example, it would no longer "deserve the name of law" (Debating the American State, 207). He also noted in this context that while a legal system could exist in a totalitarian state, citizens in a democracy would be much less likely to tolerate injustice in the law. Therefore, law could serve, at least in theory, as a brake on arbitrary power and on other threats to constitutional democracy arising from the administrative state.

Morris L. Cohen Student Essay Competition

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

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Eighth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses to attend the AALL Annual Meeting.

The entry form and instructions are available at the LH&RB website.

Entries must be submitted by 11:59 p.m., April 18, 2016 (EST).

Two from Metzger's Roman Law Backlist

Ernest Metzger, University of Glasgow School of Law, has posted two items from his backlist.  The first is Agree to Disagree: Local Jurisdiction in the Lex Irnitana, which appeared in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, ed. A. Burrows, D. Johnston, R. Zimmermann (Oxford University Press, 2013), 207-225:

The lex Irnitana (AD 91) is one of our principal sources for Roman civil procedure during the classical period. In character it is a municipal charter for a municipium in Baetica. It contains extensive provisions on the conduct of civil lawsuits, and among its most contested provisions is Chapter 84 on jurisdiction.

The main point of disagreement: was it possible only to have 'small lawsuits' heard locally, or might the parties, by agreement, consent to have lawsuits of substantial value heard also? The disagreement is of much greater significance than this single inscription might suggest: Roman civil procedure underwent revolutionary reforms in 17 BC, and 'consent to jurisdiction' was one of these reforms. This inscription is the most important clue to these reforms.

This article argues that local litigants, by consent, might indeed have significant lawsuits heard locally. The article examines the construction of Chapter 84, and concludes (1) that Chapter 84 has suffered from an error in redaction, specifically, that a large section of text was inserted by the draftsman in the wrong place, and (2) that one portion of Chapter 84 was poorly restored by its earliest editors, in such a way that the printed text makes no sense.

The second is Absent Parties and Bloody-Minded Judges, which appeared in Mapping the Law: Essays in Memory of Peter Birks, ed. A. Burrows and A. Rodger (Oxford University Press, 2006), 455-473:

This is an article about judges' liability.  The single judge who presided over the standardcivil trial in classical Rome was instructed by a short statement ('formula') as to how he should proceed. The formula told him what to consider and (with various allowances) how much to condemn the defendant to pay in the event the plaintiff prevailed. An obvious misstep (e.g., exceeding the allowances) could bring liability on the judge himself. One type of misstep, however, requires special treatment in the law: there were instances in which a judge should not adjudicate at all. This occurs when some unforeseen event intervenes which renders further adjudication undesirable. The best known example of such an event is absence. If e.g. a party is absent because he is seriously ill, the trial is said to be interrupted by a so-called 'dividing of the day' (diem diffindere). Moreover, if a judge, whether innocently or not, gives judgment notwithstanding the absence, the judgment is of no effect, and indeed the judge puts himself in jeopardy of liability.

Reid on the Forced Share in European Estates Law

Charles J. Reid Jr., University of St. Thomas School of Law, has posted two essays on the forced share, “the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children.”  Both are chapters in the Norwegian Academy of Sciences’ Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today, ed. Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt (Routledge, 2016).  The first is The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian?

This paper is concerned with the origins of the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children. I begin this paper in Late Republican Rome with the adoption by the praetors of the cause of action for setting aside inofficious wills (the querela inofficiosi testamenti) and the enforcement of the Lex Falcidia, the statute establishing the forced share at one-quarter of the estate. I then consider the emergence of the vocabulary used to justify this mandatory estate practice, focusing in particular on the richly-textured noun pietas. I examine the social background of this practice, looking in particular at ancient concepts of marriage and family. I review Pliny the Younger's criticism of testators who neglected the interests of family members. And I close with the great legal reforms of the law of wills by the Emperors Theodosius II and Justinian.

The second is The Jurisprudence of the Forced Share: The High and Late Middle Ages:

This paper represents a continuation of themes I explored in The Jurisprudence of the Forced Share in the Ancient World. The article is divided into four main sections. In the first two sections, I examine three basic sets of ideas that would prove of vital significance to medieval lawyers as they justified the forced share. These were: (1) the ideal of reciprocity that came to be expressed in the noun pietas; (2) the relationship of natural law and natural rights to the moral obligation to provide for one's young; and (3) the expectation that all families would be characterized by an ideal the scholastic writers called natural love. The second two sections of the paper then explore principally the writings of the medieval canon lawyers and focus on several related themes: (1) the reemergence of the idea of testamentary freedom and the corresponding effort to restrain it through the mechanism of the forced share; (2) the jurisdictional claims of the Church to interpret wills and to judge testamentary disputes; and (3) the justification of the forced share as the final legal expression of pietas, reciprocity, natural love and natural rights.

Sunday Book Roundup

If you're lucky enough to be snowed in this weekend, there's plenty of book reviews to read:

From The New Rambler is a review of Divergent Paths: The Academy and the Judiciary by Richard Posner (Harvard University Press).

There's also a review of Saikrishna Bangalore Prakash's Imperial from the Beginning: The Constitution of the Original Executive (Yale University Press).

"The ghost of George Washington haunts almost every page of Saikrishna Prakash’s new book, Imperial from the Beginning: The Constitution of the Original Executive.  It is a man, not a text, that dominates Prakash’s investigation of the creation of the American Presidency.  From the Philadelphia Convention where Washington presided over (and likely influenced) the drafting of Article II, to the military quashing of the Whiskey Rebellion with Washington riding at the head of the new federal army--it is the “imperial” presence and practices of General Washington that Prakash believes generally represent the original understanding of Executive Power."

H-Net adds a review of Radical Equality: Ambedkar, Gandhi, and the Risk of Democracy by Aishwarya Kumar (Stanford University Press).

 The Los Angeles Review of Books features a review of Mark Mulder's Shades of White Flight: Evangelical Congregations and Urban Departure (Rutgers University Press).

The New Republic reviews Richard Tuck's The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge University Press).

"... it is so refreshing to read Richard Tuck’s The Sleeping Sovereign. Tuck, a political theorist and historian of ideas, argues that the point of an eighteenth-century constitution (like ours) was not to limit democracy, but to empower it, even to rescue it from the dustbin of history. This is surprising because the counter-majoritarian difficulty has shaped so much of the American experience of constitutionalism in the last century."

Illiberal Reformers: Race, Eugenics & American Economics in the Progressive Era by Thomas C. Leonard (Princeton University Press) has also been reviewed in the New Republic.

The New York Times reviews Let the People Rule: Theodore Roosevelt and the Birth of the Presidential Primary by Geoffrey Cowan (Norton & Co.).

David E. Bernstein, George Mason Law, has reviewed The Workplace Constitution: From the New Deal to the New Right, by former guest blogger Sophia Z. Lee, (Cambridge University Press), on reason.com and as an SSRN paper:

"Sophia Lee's The Workplace Constitution brings more fresh air to this stale field. Lee, a law professor and historian at the University of Pennsylvania, doesn't so much challenge the dominant paradigms of labor history as ignore them. And by ignoring them, she is able to address matters that labor historians have neglected."

David Greenberg's Republic of Spin: An Inside History of the American Presidency (Norton & Co.) is also reviewed in the NYT.

So too is a review, by Ira Katznelson, of Karl Rove's book, The Triumph of William McKinley: Why the Election of 1896 Still Matters (Simon & Schuster)

Melvin Urofsky's Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue (Pantheon) is reviewed in The Nation.

"His book is a fascinating—­if at times dry and encyclopedic—­tour through the Court’s dissenting history. It dissects the many purposes of a dissent, some of them on display in Obergefell: to facilitate a future change in the law, to invite action from Congress, to provoke public scrutiny of the Court, to nitpick, to limit the scope of a majority decision. Dissent and the Supreme Court also illustrates a paradox: While a robust dissenting tradition encourages the free exchange of ideas, the Supreme Court unquestionably speaks most forcefully when it uses a single, unanimous voice."

The Texas Law Review has a review of Robert Tsai's America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard University Press) by Aziz Rana, as well as Tsai's response.

Weekend Roundup

• An online research resource that may be of interest: digitized records of the Southern Christian Advocate's "Lost Friends" column, which "featured messages from individuals searching for loved ones lost in slavery." The column ran from 1877 into the first decade of the twentieth century. (H/t: Lawyers, Guns & Money, via Dean Rowan)  

• William Baude, University of Chicago Law School, and Judd Campbell, Executive Director, Stanford Constitutional Law Center, have posted Early American Constitutional History: A Source Guide, “a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship.”

Credit: Claire Stamler-Goody

• Also from the University of Chicago Law School: A visit to the D’Angelo Law Library’s Rare Books Collection, partially pictured at right, with Alison LaCroix and R.H. Helmholz.

• From the Woodrow Wilson Center: The Researcher’s Guide to the International Atomic Energy Agency Archives.

• Just posted on the website of the DC Circuit Historical Society is the oral history of Bruce J. Terris, who served in the Solicitor General’s office in the late 1950s and 1960s and then became a public interest lawyer.

• Here’s the line-up for the Clough Graduate Workshop at Boston College, which meets Tuesdays at Noon at 10 Stone Avenue, Room 201.

• Legal Education for a Changing Legal Profession, at the University at Buffalo, February 12 and April 8.

• Via H-Law: At the College of William and Mary, Jim Crow and Civil Rights in the Age of President Obama, the latest from the Lemon Project, “a multifaceted and dynamic attempt to rectify wrongs perpetrated against African Americans by the College through action or inaction.”

• Hart Publishing’s January sale, with a 50% discount on selected titles, including legal history.

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

Kaal and Oesterle on Regulating Hedge Funds

Wulf A. Kaal, University of St. Thomas, Minnesota, School of Law, and Dale A. Oesterle, Ohio State University Michael E. Moritz College of Law, have posted The History of Hedge Fund Regulation in the United States, which is to appear in the Handbook on Hedge Funds (Oxford University Press, 2016):

The hedge fund industry in the United States evolved from a niche market participant in the early 1950s to a major industry operating in international financial markets. Hedge funds in the United States were originally privately-held, privately-managed investment funds, unregistered and exempt from federal securities regulation. With increasing investor demand and significant growth of the hedge fund industry came a tectonic shift in the regulatory framework applicable to the industry. The book chapter summarizes the regulatory evolution of the hedge fund industry.

As it happens, we've just noticed a related work: Onur Ozgode, “Governing the Economy at the Limits of Neoliberalism: The Genealogy of Systemic Risk Regulation in the United States, 1922–2012” (Ph.D. dissertation, Columbia University, 2015).

Yackee on the First Investor-State Arbitration

Jason W. Yackee, University of Wisconsin Law School, has posted The First Investor-State Arbitration:    

In recent years investor-state arbitration has become ubiquitous. Foreign investors who believe the states hosting their investments have violated their rights under international law routinely sue those states before international tribunals. Most investment law experts would probably identify the origins of the field in a famous “first”, the signing of the first bilateral investment treaty (between Germany and Pakistan) in 1959. But in fact, we can trace investor-state arbitration back much further — nearly a century further — to a long forgotten but nonetheless fascinating dispute between the Suez Canal Company and Egypt, arbitrated by a commission of legal and diplomatic luminaries appointed by Napoleon III, the Emperor of France. The arbitration is fascinating, in part, because the Company’s claim of mistreatment has a strikingly modern (and perhaps even timeless) character: under what circumstances, and with what consequences, can the government of the day change its laws in order to promote its conception of the public good, where the change negatively impacts, and perhaps even destroys, the value of the foreigner’s investments? The Suez Commission’s solution, based essentially on a principle of sanctity of contract, is one that finds significant support in modern jurisprudence. Citing “the contract” is, and long has been, a powerful rhetorical and legal weapon for the aggrieved investor.

Ganz on Insanity & Responsibility & Jekyll & Hyde

Credit

Melissa J Ganz, Department of English, Marquette University, has posted Carrying On Like a Madman: Insanity and Responsibility in Strange Case of Dr. Jekyll and Mr. Hyde, which appeared in Nineteenth-Century Literature 70 (December 2015): 363-97:

This essay reads Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde (1886) alongside medico-legal debates about the nature and scope of insanity, arguing that the novel seeks to shore up the idea of individual responsibility in Victorian society. The cognitive test of insanity that emerged from the M’Naghten case of 1843 deemed a person legally irresponsible for his acts if, due to a defect of reason resulting from mental disease, he was unable to perceive the nature and quality of his acts or to know that they were wrong. Alienists such as James Cowles Prichard and Henry Maudsley, however, argued that this test failed to acknowledge the existence of affective and volitional disorders such as moral and impulsive insanity. In their treatises, they urged judges to adopt a more permissive standard — an ‘‘irresistible impulse’’ test — that deemed accused criminals ‘‘mad’’ if they could not control their actions, even if they knew what they were doing was wrong. While the novel appears to be sympathetic to the position articulated by Prichard and Maudsley, I argue, it ultimately shows the dangers of broadening the definition of insanity. To recognize the idea of irresistible impulse as the basis of an insanity defense, Stevenson suggests, is to confound the distinctions between freedom and compulsion, deviance and disease. Contesting the use of emotional insanity to acquit educated professionals like Jekyll, Stevenson holds the doctor guilty of murder.

Forrest McDonald (1927-2016)

The New York Times's obituary of the historian Forrest McDonald.  Does any work of constitutional history have a more engaging introduction than his Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985)?  Also: Seth Tillman's and Al Brophy's appreciations.

Update: More appreciations: R. B. Bernstein in H-Law; Richard Brookhiser in the National Review (h/t Seth Hillman), and on the website of the University Press of Kansas, McDonald's former editor Fred Woodward.  And here's an appreciation in the Tuscaloosa News.

Exciting News from H-Law

In a State of the List message, H-Law Editor Charles L. Zelden has announced a number of exciting changes that will add new varieties of web-based content to its original function as a listserv, including a resources tab (initially focusing on course syllabi), new blogs (starting with World Legal History Blog, edited by Nurfadzilah Yahaya (Research Fellow, Asia Research Institute, National University of Singapore) and, later this winter, H-Law Legal History Podcasts with Siobhan Barco.

All this new content will eventually be available here, at the H-LAW website.

Interview with Mary Ziegler in NOTCHES

Students from Princeton University's Program in Gender and Sexuality Studies recently devoted three class sessions to After Roe: The Lost History of the Abortion Debate by former guest blogger, Mary Ziegler. As part of their coursework for "Reproductive Politics in the United States and Abroad," the students conducted an interview with Ziegler for NOTCHES, published this week.

Here's the final exchange of the interview--Mary's book recommendations!

Students: Can you recommend three books for those interested in learning more about the history of reproductive politics in the United States? 

MZ: It is always hard to pick just three, but here are several that immediately come to mind:
1) Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (Oxford UP, 2010). This provocative book offers an important look at how attitudes toward the fetus have evolved, mirroring larger changes to American law and culture.
2) Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade (Oxford UP, 2015). This book offers the first meaningful study of the early anti-abortion movement. It is an indispensable read for those interested in the history of opposition to reproductive rights.
3) Linda Gordon, The Moral Property of Women: The History of Birth Control Politics in America (Illinois UP, 2002). Gordon’s classic study offers crucial context for the fight for legal abortion, mapping out the contributions of family planners, feminists, population controllers, and eugenic legal reformers.

Vanderford on "The Legacy of St. George Tucker"

New from the University of Tennessee Press: The Legacy of St. George Tucker: College Professors in Virginia Confront Slavery and Rights of States, 1771–1897, by Chad Vanderford (University of Texas of the Permian Basin). The Press describes the book as an effort to "isolate[] the different ideological strands in southern political thought of this era" and "understand these ideas in the context of their time." More from the Press:

St. George Tucker (1752–1827), Founding Father, professor, and political theorist, saw clearly that slavery runs against the grain of the values articulated in the Declaration of Inde­pendence. Under certain narrowly construed circumstances, however, he thought it necessary to tolerate slavery. He viewed secession as an extreme step, but one that the Declaration of Independence left open as a possibility for all free states.

St. George Tucker’s arguments hinged on a modern view of natural right that builds on the premise that political power can only be legitimate if it rests on the consent of the governed. He believed that equally free and independent individuals constructed a voluntary union of equally free and independent states. His son Henry Tucker (1780–1848), and grandson, John Randolph Tucker (1823–1897) sought to defend this ideology of modern natural right against fellow professors, North and South, who tended to replace it with the ancient ideology of natural right: the view that wisdom gives one the title to command. Many southern intellectuals came to believe that individuals are not equally free and independent by nature; many northerners came to argue that the states had never been equally free and independent. These disagreements contributed to the outbreak of the Civil War.

And a blurb (cribbed from the book's amazon page):

“In The Legacy of St. George Tucker, Chad Vanderford provides a cogent longitudinal explication of how Virginia intellectuals constructed and defined proslavery ideology and state rights. He reminds twenty-first-century readers that in order to judge late-eighteenth-and early-nineteenth-century thinkers fairly, they must position basic political ideas within the context of their day, not ours. Vanderford’s book will prove valuable not only for students and researchers of political theory, but also of southern intellectual life and the political worlds of the Colonial, Early National, and Old South.”
--John David Smith

CFP: History of Human Rights

[We've recently spotted a call for chapters in a history of human rights.  H/t: AHA Members Forum)

A new volume in the successful Routledge UK series is underway: The Routledge History of
Human Rights (for other volumes, see [here]). Coeditors Jean Quataert and Lora Wildenthal have eleven authors committed and are now seeking additional historians and other scholars for this edited volume of thirty-five or more historical essays. Our collection has an unusually flexible and large format—see below.

The Routledge History of Human Rights takes advantage of – and pushes in new directions–historians’ ongoing critical examinations of the many dimensions of human rights. Its essays will, taken together, offer an assessment of complex and contingent historical developments associated with human rights norms and visions, institutions, advocacy networks, activists, and critics. The  volume will show the ways these groups and forces intersected and interacted in the international arena, as well as in transnational, regional, national and local settings from the late nineteenth century to the end of the twentieth century, with an emphasis on the post-1945 period.

While the volume stresses the uniqueness of the post-1945 rupture, it also recognizes continuities
with late nineteenth-century and early twentieth-century precursors in international law,
humanitarianism, and international institutions. We will include histories “from above” and “from below,” emphasizing the importance of the perspectives of the historical actors. We intend our volume to be the most geographically and thematically comprehensive collection of essays to date on the history of human rights.

We are bringing together a wide range of authors to compile a volume that will advance research and teaching in this field and offer new questions to help train the next generation of human rights scholars and teachers.

On the volume’s format: This volume offers its authors distinct advantages for the widespread dissemination of their contributions, via the book’s entire framework as well as independently.  Each volume in this Routledge series appears in three versions:

1.  a hardback copy of around 35 chapters (expensive and designed for purchase by libraries and repositories);
2. a paperback version (reasonably priced); [and]
3. an e-book version, where the e-chapters can be assigned to students singly or in any combination adapted to a particular course. No longer will students have to buy the whole collection. Likewise, any reader can order an e-chapter or any combination of e-chapters.

Routledge is developing the portal through which teachers and readers will be able to select their own combinations of e-chapters from a volume or even from multiple volumes in the series. It is very exciting to be involved in this publishing innovation.

We see this as a collaborative project, and we are planning to hold authors’ workshops at our home universities for in-depth, face-to-face discussion that will add coherence to the volume and promote new scholarly contacts and insights.

Please let us know if you are interested in contributing a chapter. We would also like to hear your recommendations of junior or other scholars we might contact, or your suggestions for themes and approaches. We also are glad to discuss our current table of contents with you.  Deadline for chapter proposals (title and 200 words): 15 March 2016.

Jean Quataert, Professor of History, Binghamton University, profquat@binghamton.edu

Lora Wildenthal, Professor of History, Rice University, wildenth@rice.edu