Lubin on Writing and Customary Law in Premodern India and Java

Timothy Lubin, Washington and Lee University, has posted Writing and the Recognition of Customary Law in Premodern India and Java, which appeared in the Journal of the American Oriental Society 135 (2015): 225-59:

Explaining what made ancient Greek law unusual, Michael Gagarin observes that most premodern legal cultures “wrote extensive sets (or codes) of laws for academic purposes or propaganda but these were not intended to be accessible to most members of the community and had relatively little effect on the actual operation of the legal system.” This article addresses the implications of writing for customary or regional law in South and Southeast Asia. The textual tradition of Dharmasastra (“Hindu law”), which canonizes a particular model of Brahmin customary norms, can certainly be called a “scholarly” exercise, and it was also intended as propaganda for the Brahmanical cosmopolitan world order. But it also formulated a procedural principle to recognize the general validity of other, even divergent, customary norms, though for the most part such rules remained lex non scripta. On the other hand, inscriptions provide evidence that writing was used for diverse legal purposes and offers glimpses of actual legal practice. In these records, customary laws are sometimes laid down as statutes by decree of a ruler or community body, or are simply invoked as long-established customary rules. But even when Dharmasastra texts are not directly cited, their influence over the longue durée is discernable in the persistence of sastric legal categories and terms of art. This influence is even more evident in Java, where legal codes on the Dharmasastra model were composed in Javanese, and where the inscriptions came to exhibit a closer connection with sastric discourse than is found in India.

Tsesis on the Declaration as Introduction to the Constitution

Alexander Tsesis, Loyola University Chicago School of Law, has posted The Declaration of Independence as Introduction to the Constitution, which is to appear in the Southern California Law Review 89 (2016):

Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation. For a time, until ratification of the Fourteenth Amendment, it was the nation’s only formal acknowledgment of human equality.

The Supreme Court has paid scant attention to the Declaration’s overarching statement on national governance and its mandates to protect individual rights while securing the people’s “Safety and Happiness.” The early record of lawmaking in the United States, on the other hand, demonstrates the influence of the Declaration’s normative statement from the country’s inception. From the nation’s founding, Americans’ constitutional understandings have been shaped by the Declaration of Independence’s statements on human rights and mandates for just government. The judiciary has not adequately followed the will of the people to rely on the Declaration in developing constitutional interpretation.

H/t: Legal Theory Blog

Netanel on "The Jewish Law of Copyright Since the Birth of Print"

Oxford University Press has released From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, by Neil Weinstock Netanel (UCLA). A description from the Press:

Jewish copyright law is a rich body of jurisprudence that developed in parallel with modern copyright laws and the book privileges that preceded them. Jewish copyright law owes its origins to a reprinting ban that the Rome rabbinic court issued for three books of Hebrew grammar in 1518. It continues to be applied today, notably in a rabbinic ruling outlawing pirated software, issued at Microsoft's request.

In From Maimonides to Microsoft, Professor Netanel traces the historical development of Jewish copyright law by comparing rabbinic reprinting bans with secular and papal book privileges and by relaying the stories of dramatic disputes among publishers of books of Jewish learning and liturgy.. He describes each dispute in its historical context and examines the rabbinic rulings that sought to resolve it. Remarkably, the rabbinic reprinting bans and copyright rulings address some of the same issues that animate copyright jurisprudence today: Is copyright a property right or just a right to receive fair compensation? How long should copyrights last? What purposes does copyright serve? While Jewish copyright law has borrowed from its secular law counterpart at key junctures, it fashions strikingly different answers to those key questions.

The story of Jewish copyright law also intertwines with the history of the Jewish book trade and with steadfast efforts of rabbinic leaders to maintain their authority to regulate that trade in the face of the dramatic erosion of Jewish communal autonomy in the eighteenth and nineteenth centuries. This book will thus be of considerable interest to students of Jewish law and history as well as copyright scholars and practitioners.

A few blurbs:

Sunday Book Roundup

Of Courtiers and Kings: More Stories of Supreme Court Law Clerks edited by Todd C. Peppers and Clare Cushman (UVA Press) is reviewed in The New Rambler.

"Nevertheless, some good stories make it through the encomiastic firewall; and some of the portraits are more than two-dimensional. One can’t help but empathize with such a character as Potter Stewart – the genuine humanity of the guy – when one learns, via his 1972- and 1973-term clerks, that he hated Warren Burger (his Chief Justice), was frightened of William Rehnquist, and had the habit of chewing the ends of his neckties.
And it tells you something about Rehnquist to read the story of him and his 1974 clerk, going to play ping-pong in an upstairs room, next to the Supreme Court gym. As they were entering the room, a janitor walked out, leaving the place reeking of marijuana. But Rehnquist never reported the matter, so the janitor kept his job. Someone should have told Potter Stewart that he really had nothing to fear from the old softie."

From H-Net comes a review of On the Edge of Freedom: The Fugitive Slave Issue in South Central Pennsylvania, 1820-1870 by David G. Smith (Fordham University Press).

New Statesman has a review of Joan Brady's America's Dreyfus: The Case Nixon Rigged (Skyscraper Publications).

"The one-sentence summary of this extraordinary book is that it is about the dirty tricks employed by Richard Nixon and his allies in the late 1940s and early 1950s to secure the conviction of Alger Hiss, a former government official, on a trumped-up charge of perjury. That leaves out many material facts. Joan Brady was only eight years old when a former Communist Party member, Whittaker Chambers, told the House Un-American Activities Committee (HUAC) that Hiss was a communist. She was not quite ten when Hiss was convicted in January 1950. But in 1960 she was living with Dexter Masters, whom she later married. Masters was an old friend of Hiss. Hiss came to dinner and remained friends with Brady until his death in 1996."

The Federal Lawyer has a new issue out with several reviews of note, all found here. One is of Harold H. Bruff's Untrodden Ground: How Presidents Interpret the Constitution (University of Chicago Press). There's also a review of Jilly Leovy's Ghettoside: A True Story of Murder in America (Spiegel & Grau), and a review of Shakespeare and the Law: A Conversation Among Disciplines and Professions edited by Bradin Cormack, Martha C. Nussbaum, and Richard Strier (University of Chicago Press).

In The Washington Post there is a review of Fergus M. Bordewich's The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster).

The Firebrand and the First Lady: Portrait of a Friendship: Pauli Murray, Eleanore Roosevelt, and the Struggle for Social Justice by Patricia Bell-Scott (Knopf) is reviewed in The New York Times.

"The February 1953 issue of Ebony included an article entitled “Some of My Best Friends Are Negroes.” The byline was Eleanor Roosevelt’s, though the headline, apparently, was not. “One of my finest young friends is a charming woman lawyer — Pauli Murray, who has been quite a firebrand at times but of whom I am very fond,” Roosevelt wrote. “She is a lovely person who has struggled and come through very well.” Indeed, nothing was ever easy for Murray, a black woman born in 1910, a woman attracted to women and also a poet, memoirist, lawyer, activist and Episcopal priest. But her tender friendship with Roosevelt, sustained over nearly a quarter-century and more than 300 cards and letters, helped. It is the rich earth Patricia Bell-Scott tills for “The Firebrand and the First Lady,” a tremendous book that has been 20 years in the making."

Also from The New York Times is a review of Mannish Sinha's The Slave's Cause: A History of Abolition (Yale University Press).

Weekend Roundup

• HNN collects much historical and historically inflected commentary on Justice Scalia's legacy and the appointment of his successor here.  Along similar lines, Wednesday's New York Times ran a piece by Emily Bazelon and John Fabian Witt (Yale Law School) on "Senate Republicans and the Supreme Court: Where Is This Headed Exactly?"

• From the Rome News Tribune: “The Georgia Legal History Foundation will present a workshop in Rome on March 3-4 that will revisit ‘Georgia’s Last Frontier: The People, Lawyers and Judges of Northwest Georgia-Cherokee Country.’”

Roger B. Taney (credit)

• Randall Lesaffer, Professor of Legal History at Tilburg Law School, reviews the history of Dutch-Belgian land swaps on OUPblog.

• Seth Barrett Tillman, in the Baltimore Sun, on whether Ex parte Merryman speaks to whether Taney’s statue (right) should remain on public view 

• Paul Finkelman on HuffPo on whether Ted Cruz is a “natural born citizen.”

• We all know that in 2013 US tax historians rose to the occasion of their great centennials, that of the Sixteenth Amendment and the Revenue Act of 1913.  Now come the Canadians: “Osgoode Hall Law School of York University and the Canadian Tax Foundation are planning a special centennial publication to mark the 100th anniversary of the Income Tax Act,” writes Canadian Legal History Blog. 

• The Library of Congress has digitized its collection of Rosa Parks's papers and put them on-line.

• The legal historians Annette Gordon-Reed and Kenneth Mack participated in a discussion at the Harvard Law School on “an international legal effort now underway in the Caribbean to hold European nations that engaged in that region’s slave trade accountable to the modern-day descendants of those slaves.”  H/t: Harvard Gazette

• Princeton University's School of Architecture is sponsoring a series of lectures called Detroit 101.  It asks, "Is the contemporary narrative of Detroit based on a fact or fiction?"  The topics are Arts & Image, Urbanism & Design, The Arts of Urban Transition, Philanthropy & Public Policy, and History, Race and Real Estate, a topic upon which Thomas Sugrue, NYU, will, with others, address.

• ICYMI: the Washington Post ran a lovely, illustrated story on FSA photographers and the Great Depression; NPR ran one on The Life and the Adventures of a Haunted Convict, "the earliest known prison memoir by an African-American writer."

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

LSI 41:1

Two articles in the Winter 2016 issue (41:1) of the (gated) journal Law and Social Inquiry are of particular interest to legal historians.  The first is The Institutionalization of Supreme Court Confirmation Hearings, by Paul M. Collins Jr. and Lori A. Ringhand:

This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee's role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee's role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.

[Presumably their next article will be "The Deinstitutionalization of Supreme Court Confirmation Hearings."]

The second article is The People Against Themselves: Rethinking Popular Constitutionalism, by Sean Beienburg and Paul Frymer.  It is a review essay of Bruce Ackerman’s Civil Rights Revolution (2014) and Jed Handelsman Shugerman’s People's Courts (2012):

In the course of reviewing Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America and Bruce Ackerman's The Civil Rights Revolution, we argue for a reassessment of the way that scholars think about popular constitutionalism. In particular, we urge scholars to resist the tendency to create a dichotomy between judicial interpretation of law and a set of nonjudicial venues in which popular constitutionalism supposedly takes place. Popular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between these institutions. By implication, this suggest that judges, rather than serving as obstacles to popular understandings of law, can and have used various forms of democratic authorization to strike down legislation violating both state and federal constitutions, thus bridging judicial review and popular constitutionalism with explicit support from the citizenry.

Hickford on the NZ Constitution Act of 1852

Mark Hickford, Victoria University of Wellington Faculty of Law, has posted Considering the Historical-Political Constitution and the Imperial Inheritance in Mid-Nineteenth Century New Zealand: Balance, Diversity and Alternative Constitutions, which appeared in the New Zealand Journal of Public and International Law (2014) 145-85:

In considering the intellectual context for the New Zealand Constitution Act 1852, this essay examines a web of Whig-liberal and Tory as well as radical precepts influencing its drafting and the political constitutional culture it both expressed and reflected. In so doing, it contends that it is insufficient to label New Zealand's historical, political constitutional fabric or the 1852 constitution specifically as, say, “pragmatic.”  Rather, this article argues for a richer, historical engagement with political constitutionalism. This article will also examine the intellectual influences underlying an alternative, previously unidentified, draft constitution referred to as the “MS project.”

Strum on Joseph McCarthy's First Case

Philippa Strum, Woodrow Wilson International Center for Scholars, has posted Dorothy Kenyon: Senator Joseph Mccarthy's First Case, which originally appeared in History Weekly (2015):

The first person to testify about accusations of subversion leveled by Senator Joseph McCarthy in 1950 was Dorothy Kenyon, a women's rights and civil liberties activist lawyer. McCarthy's choice of a woman as what he would call his first case reflected and added to the confusion about women's roles that was a feature of the United States in the post-World War II era.

Lebovic's "Free Speech and Unfree News"

Sam Lebovic, Assistant Professor of History at George Mason University, has just published Free Speech and Unfree News: The Paradox of Press Freedom in America, with the Harvard University Press.  (The American Society for Legal History supported Professor Lebovic’s work on the book with a Paul Murphy Prize.)

Does America have a free press? Many who answer yes appeal to First Amendment protections that shield the press from government censorship. But in this comprehensive history of American press freedom as it has existed in theory, law, and practice, Sam Lebovic shows that, on its own, the right of free speech has been insufficient to guarantee a free press.

Lebovic recovers a vision of press freedom, prevalent in the mid-twentieth century, based on the idea of unfettered public access to accurate information. This “right to the news” responded to persistent worries about the quality and diversity of the information circulating in the nation’s news. Yet as the meaning of press freedom was contested in various arenas—Supreme Court cases on government censorship, efforts to regulate the corporate newspaper industry, the drafting of state secrecy and freedom of information laws, the unionization of journalists, and the rise of the New Journalism—Americans chose to define freedom of the press as nothing more than the right to publish without government censorship. The idea of a public right to all the news and information was abandoned, and is today largely forgotten.

Free Speech and Unfree News compels us to reexamine assumptions about what freedom of the press means in a democratic society—and helps us make better sense of the crises that beset the press in an age of aggressive corporate consolidation in media industries, an increasingly secretive national security state, and the daily newspaper’s continued decline.

Here are some endorsements:

“How could a nation proud of its commitment to free expression also be a place where journalists must scour through leaked documents to learn basic facts about government policies? Sam Lebovic’s spectacular and important book shows how the idea of a ‘right to know’ dropped out of twentieth-century understandings of the First Amendment. Essential for understanding what has become of an American free press.”—Mary L. Dudziak, author of War Time: An Idea, Its History, Its Consequences

“Provocative and stimulating. Lebovic shows that, although the American press has grown unusually free from government interference, it is constrained by the vast expansion of government secrecy and the intensification of the profit motive in the shifting news marketplace.”—Michael Schudson, author of The Rise of the Right to Know

TOC after the jump

S.F.C. (Toby) Milsom (1923-2016)

S F C (Toby) Milsom (credit)

We're grateful to David Seipp, Boston University Law, for sharing with us the sad news that Professor Stroud Francis Charles (Toby) Milsom has died.  Professor Seipp writes:

Readers of the legal history blog should know that Professor S.F.C. (Toby) Milsom passed away on February 24, 2016, at the age of 92.  His extraordinary contributions to the history of the common law will be celebrated, revised, revived, and debated for at least as long in the future.  Toby Milsom can still be heard in a series of conversations about his life and career [here.]

We googled upon an illustration of Professor Seipp’s point, if anyone needs one, in Robert C. Palmer’s statement of the objectives of his English Legal History course at Houston Law.

Dick on Tax Imperialism in Puerto Rico

Diane Lourdes Dick, Seattle University School of Law, has posted U.S. Tax Imperialism in Puerto Rico, which is forthcoming in the American University Law Review 65 (2016):

This Article uses historical and legal analysis to demonstrate how U.S. domination over Puerto Rico’s tax and fiscal policies has been the centerpiece of a colonial system and an especially destructive form of economic imperialism. Specifically, this Article develops a novel theory of U.S. tax imperialism in Puerto Rico, chronicling the sundry ways in which the United States has used tax laws to exert economic dominance over its less developed island colony. During the colonial period, U.S. officials wrote and revised Puerto Rican tax laws to serve U.S. economic interests. In more recent years, U.S. tax laws have disadvantaged Puerto Ricans, who still lack voting rights and full democratic representation in Congress. A theory of tax imperialism may also have application far beyond the U.S.-Puerto Rican experience. For instance, it may help us understand the relationships between the United States and its other possessions and territories throughout history, and between the United Kingdom and its British Crown dependencies, overseas territories, and newly-independent colonies.

Strum on Mendez v. Westminster

We’ve already noticed Philippa Strum’s book on Mendez v. Westminster.  Now comes her posting of an article on the case, “We Always Tell Our Children They are Americans": Mendez v. Westminster and the Beginning of the End of School Segregation, which originally appeared in the Journal of Supreme Court History (2014): 307-28.  She writes, “Mendez v. Westminster, decided in 1946, was the first case in which a federal court declared "separate but equal" to be unequal. Although the NAACP was not involved at the trial level, the brief it submitted on appeal became its practice brief for Brown v. Board of Education. The case led to integration of Mexican-American children in schools throughout California and the southwest.”

Louis D. Brandeis: An Interdisciplinary Retrospective

Louis D. Brandeis (LC)

[We have word of the following conference.]

On March 31-April 1, 2016, Touro Law Center and the Jewish Law Institute will host a national conference, Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, representing a broad range of disciplines and hailing from around the United States, will explore topics that include, among others: Brandeis's groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the Supreme Court nearly one hundred years ago; and his jurisprudence on the Court.

To register, go to the conference website and select “Brandeis Conference” from the Giving Options Dropdown menu. Registration fee of $54 includes breakfast, lunch and the reception on Thursday and breakfast and lunch on Friday.  For additional information, please contact Touro Law’s Events Office at (631) 761-7064 or email events@tourolaw.edu.

Schedule after the jump.

Schmidt on German Free Lawyers and American Legal Realists

And while we're departing from our usual practice of posting abstracts only to ungated articles, here's another, by Katharina Isabel Schmidt, Law, Modernity, Crisis: German Free Lawyers, American Legal Realists, and the Transatlantic Turn to “Life,” 1903–1933, which is just out in German Studies Review 39 (February 2016): 121-140:

Scholars have long recognized American jurists’ idiosyncratic commitment to a prudent, pragmatic, and political style of legal reasoning. The origins of this style have been linked to the legacy of the most American legal movement of all: the realists. Conversely, German jurists’ doctrinal, idealistic, and apolitical approach can be tied to the relative failure of Germany’s equivalent movement: the free lawyers. How to account for the seemingly inverse fate of realistic jurisprudential reform projects on both sides of the Atlantic? In this paper I employ transnational history to shed light on this particular instance of German-American divergence.

Three by Lanni on Ancient Greek Law

Adriaan Lanni, Harvard Law School, has posted the abstracts for three chapters that appear in essay collections but are not available online.  The first, forthcoming in Ancient Law, Ancient Society, ed. Kehoe & McGinn  is Collective Sanctions in Ancient Athens:

This paper examines the use of collective sanctions in classical Athens. Collective sanctions have been interpreted in two very different ways: for some they reflect a distinctively primitive conception of collective guilt and responsibility; for others collective sanctions are an instrumental method of promoting deterrence. The paper argues that the Athenians understood collective sanctions primarily in instrumental terms. While the long pedigree of collective sanctions in Greek literature and culture made these punishments less morally repugnant to the Athenians than they are to moderns, the relatively rare uses of collective sanctions in classical Athens do not support a cultural account. At the same time, modern functional accounts only explain a small subset of Athenian collective punishments. Most functional accounts describe ancient collective liability as a form of indirect, delegated deterrence which encourages group members to monitor, prevent, and punish individual wrongdoers within the group. I argue that while this model applies to one form of collective punishment in Athens — group punishment of boards of magistrates — in most cases Athenian collective sanctions were aimed at direct, rather than indirect, deterrence.

The second is Public and Private in Classical Athenian Law Enforcement, which appeared in Public and Private in Ancient Mediterranean Law and Religion, ed. Clifford Ando and Jörg Rupke (deGruyter 2015):

This essay explores the extent to which the distinction between a public and private sphere is a meaningful one in Athenian law enforcement. Athenian law did treat the household as a private sphere in some respects: the head of the household enjoyed near-exclusive power to discipline its members and retained the legal right to use self-help to protect the oikos long after public legal institutions had become dominant in other areas of life. On the other hand, the notion of a sphere of private conduct free from practical state interference was a myth. While Athenian statutes did not directly regulate private matters, in practice Athenian courts enforced norms of private conduct through character evidence raised by the litigants. Finally, the operation of informal means of social control (such as social sanctions and gossip) and the formal court system were so interdependent that the traditional dichotomy between “private” and “public” or “formal” and “informal” mechanisms of enforcing norms does not apply to the Athenian legal system.

The third, coauthored with Victor Bers, is Disqualified Olympians: the Skeptical Greek View of Divine Judges, appeared in The Divine Courtroom in Comparative Perspective, ed.  Ari Mermelstein and Shalom E. Holtz (Brill 2014):    

Greek literature and legal practice exhibit a reluctance, bordering on refusal, to deem the Olympian gods as fit judges, either of themselves or of humans. Although there is an occasional word of praise, the gods are routinely portrayed as preoccupied with advancing their own interests, and notably petulant over perceived slights to themselves. In Aeschylus’ mythical account of the creation of Athens’ first court, Athena declares herself incapable of judging the defendant, a mere mortal, without human jurors to help her. Respectable divine agents of justice are almost always figured as abstractions (“Themis” or the spirits in Hesiod), named, not portrayed with any specificity, devoid of personality — not to speak of judges who have decided a specific case in a specific way.

Perhaps reflecting this ambivalence about the quality of divine judging, Athenian courts were conceived of as predominantly mortal affairs. To be sure, traces of divine participation can be seen, for example, in the use of oaths and the process of juror selection. But despite the ubiquity of religious symbols and rituals in Athenian life, Athenian jurors did not, for the most part, seek the assistance of the divine or draw legitimacy from the involvement of the gods in their decisions.

This pessimistic view of the gods as judges is not merely a byproduct of anthropomorphism, for the Greeks imagined the gods not merely as flawed humans, but as lacking the seriousness mortals acquired precisely as a consequence of their impending death.

New Bibliography from O'Donnell: After Slavery & Reconstruction

From Ratio Juris, Patrick S. O'Donnell has posted an extensive bibliography, "After Slavery & Reconstruction: The Black Struggle in the U.S. for Freedom, Equality, and Self-Realization* — A Bibliography."  

A sample of other past bibliographies from O'Donnell can be found here and here.

Supreme Court Nominations in Election Years

Two assessments of the history of Supreme Court nominations in election years have hit the Interweb.  The first is A History of Supreme Court Nominations in Election Years, by Paul Finkelman, on OUPblog.  The second is an SSRN post by Bryan H. Wildenthal, Thomas Jefferson School of Law, Memorandum on Supreme Court Vacancies and Confirmations during Presidential Election Years.  H/t: Legal Scholarship Blog

Shane on Originalism and the Unitary Executive

Peter M. Shane, Ohio State University Michael E. Moritz College of Law, has posted The Originalist Myth of the Unitary Executive:

Both Executive Power Vesting Clauses and clauses equivalent to Article II’s Faithful Execution Clause were prevalent in early state constitutions that nonetheless fractured gubernatorial control over state bureaucracies. Originalist defenders of a unitary executive reading of the federal Constitution nonetheless dismiss the interpretive significance of the pre-1787 state constitutions. These early texts supposedly paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid. The core problem with this originalist stance is that state constitutions written in the first decades after 1789 persisted in using the same clauses, now found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any “unitary executive” reading of Article II that purports to be based on “original public meaning.” These findings are also consistent with the early history of federal public administration, which corroborates a common understanding that Article II’s vesting of executive power permitted substantial legislative control over the allocation of decisional authority within the executive branch.

H/t: Legal Theory Blog

Hoffer on Rutgers v. Waddington

The University Press of Kansas has released Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review, by Peter Charles Hoffer (University of Georgia). A description from the Press:

Once the dust of the Revolution settled, the problem of reconciling the erstwhile warring factions arose, and as is often the case in the aftermath of violent revolutions, the matter made its way into the legal arena. Rutgers v. Waddington was such a case. Through this little-known but remarkable dispute over back rent for a burned-down brewery, Peter Charles Hoffer recounts a tale of political and constitutional intrigue involving some of the most important actors in America’s transition from a confederation of states under the Articles of Confederation to a national republic under the U.S. Constitution.

At the end of the Revolution, the widow Rutgers and her sons returned to the brewery they’d abandoned when the British had occupied New York. They demanded rent from Waddington, the loyalist who had rented the facility under the British occupation. Under a punitive New York state law, the loyalist Waddington was liable. But the peace treaty’s provisions protecting loyalists’ property rights said otherwise. Appearing for the defendants was war veteran, future Federalist, and first secretary of the treasury, Alexander Hamilton. And, as always, lurking in the background was the estimable Aaron Burr. As Hoffer details Hamilton's arguments for the supremacy of treaty law over state law, the significance of Rutgers v. Waddington in the development of a strong central government emerges clearly—as does the role of the courts in bridging the young nation’s divisions in the Revolution’s wake.

Rutgers v. Waddington illustrates a foundational moment in American history. As such, it is an encapsulation of a society riven by war, buffeted by revolutionary change attempting to piece together the true meaning of, in John Adams’ formulation, “rule by law, and not by men.”

And a blurb:

“Rutgers v. Waddington—a case about a brewery!—is best remembered by scholars as one of the early milestones in developing the American doctrine of judicial review. But as Peter Hoffer explains in this deftly argued book, the case raises a larger array of significant questions about the nature of American law, politics, and constitutionalism in the immediate aftermath of the Revolution: everything from the authority of the law of nations to the practical problem of reintegrating the Loyalists into the new republic. Hoffer does a remarkable job of demonstrating how a single case can be read—and taught—for multiple purposes. ” —Jack N. Rakove

More information is available here.

Giocoli on a Vital Issue in Progressive-Era Rate Regulation

Nicola Giocoli, University of Pisa, has posted "Value is Not a Fact": Reproduction Cost and the Transition from Classical to Neoclassical Regulation:

The paper draws on Siegel (1984) to argue that, while paving the way for constitutionalizing the free market in Lochner v. New York (1905), the reproduction cost method that the Supreme Court established in Smyth v. Ames (1898) as the preferred technique for assessing the “fair value” of a business for regulatory purposes, also exposed the conventional character of any valuation exercise, against the claim of objectivity made by classical economists and traditional jurists. The inconsistency between the method and the classical laissez faire philosophy underlying the Court’s jurisprudence did not escape progressive critics of the Smyth doctrine who could argue that if “value is not a fact”, then government could legitimately use it as a policy variable to pursue different kinds of socio-economic goals.

Mullen and Funk on the Spread of the Field Code of Civil Procedure

[Lincoln A. Mullen, Assistant Professor, Department of History and Art History, George Mason University, and Kellen Funk, a Yale JD and Princeton History ABD, have posted a notice on Professor Mullen’s website of their new working paper on the migration of the New York Code of civil procedure.  From the website:]

David Dudley Field (LC)

Kellen Funk and I are working on detecting how a New York legal code of civil procedure spread to most other jurisdictions in the United States. That Field Code and the other codes derived from it are the basis of modern American legal practice, so tracking the network and content of the borrowings reveals the structure of a significant part of American legal history.

In response to an invitation from the Digital Humanities Working Group at George Mason, we wrote a working paper that describes the current state of our research. In the paper we explain the historical problem to show why it is worth tracking how the Field Code spread. Then we give an overview of how we went about detecting which civil procedure codes were similar to one another, after which we give a few sample visualizations to show how we went about learning from those similarities. And finally we wrap up with a summary of what we think our project tells us about the history of nineteenth-century American law. We are working on an article, which will be structured rather differently with a fuller statement of our argument and many more visualizations, but in the meantime the working paper gives a fairly succinct overview of the project and its argument. It may also be of interest for going into more detail as to how a historical data analysis project proceeds from problem to interpretation than we may be able to do in the article. We also have a notebook with more details about the project.

First Women Lawyers in Britain and the Empire Symposia

[We have the following announcement.  H/t Legal Scholarship Blog.]

First Women Lawyers in Britain and the Empire Symposia

The Sex Disqualification (Removal) Act 1919 heralded women’s long awaited entry to the legal profession.  What do we actually know about that journey?  How much of that struggle has been recorded?  Where is it recorded?  The ‘First Women Lawyers in England, Wales and the Empire’ Symposia seek to unite academics and researchers in this area and explore the journey of those first women lawyers.

The first symposium was held in September 2015 and following its success the second symposium will be held on Thursday 30th June 2016 at St Mary’s University. The symposium, entitled Pioneers: Those who tried and "failed" and the quasi-lawyers, will focus on early individual struggles as well as establishing and recording the activities of the women’s movement pre 1919 and its contribution to the 1919 legislation.

Submissions are welcomed from those researching in this area, including anyone with knowledge that will place the struggle for entry to the legal profession in England and Wales in an international context.  Skype participation is welcomed and possible.

Contributions of £15 are requested to cover refreshments and lunch.  Confirmed Plenary Speakers are Prof Leslie Howsam (via Skype), Dr Cheryl Law, Dr Anne Logan

Please submit your abstract (max 300 words) by email, no later than 8th April 2016. Presentations are to last 20 minutes plus 10 minutes for questions. Please also indicate whether you would like to attend a light supper at 6pm for an additional cost of £20.

St, Mary’s University, Waldegrave Drawing Room, June 30, 2016, 10am (registration and coffee) for 10:30am start

Please contact: Dr Judith Bourne, judith.bourne@stmarys.ac.uk

(Not the) Sunday Book Roundup

Emily Prifogle is otherwise occupied this weekend, but we want to note Lucas A. Powe Jr.’s list of eight books on Supreme Court nominations in today’s Washington Post: Ethan Bronner’s Battle for Justice; Jane Mayer and Jill Abramson’s Strange Justice, Clarence Thomas’s My Grandfather’s Son; John Anthony Maltese's Selling of Supreme Court Nominees, Melvin Urofsky’s Louis D. Brandeis, Roger K. Newman’s Hugo Black, Laura Kalman’s Abe Fortas, and Mark V. Tushnet’s Making Constitutional Law.  Also, Patricia Bell-Scott’s Firebrand and the First Lady (on the friendship of Pauli Murray and Eleanor Roosevelt) is reviewed in the New York Times Book Review, John Mack Faragher’s Eternity Street, which “explores the violent past of Los Angeles,” is reviewed in the Chicago Tribune; and Samuel Moyn discusses his Christian Human Rights on New Books in History.  Finally, in an essay posted on SSRN and forthcoming in the John Marshall Review of Intellectual Property Law, Timothy K. Armstrong, University of Cincinnati College of Law, reviews The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton University Press, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (University of Toronto Press, 2014).

Weekend Roundup

• Congratulations to Mary Sarah Bilder, Boston College Law upon being named a finalist for the George Washington Prize for Madison's Hand.

• Welcome to the blogosphere to H–Law’s World Legal History Blog, edited by Nurfadzilah Yahaya, a Research Fellow at Asia Research Institute at the National University of Singapore who received her PhD in History from Princeton University in 2012.

• Patricia Bell-Scott, professor emerita at the University of Georgia, will be giving a book talk at the Franklin D. Roosevelt Library on March 3, 2016 at 7:00 PM on The Firebrand and the first Lady: Portrait of a Friendship: Pauli Murray, Eleanor Roosevelt, and the Struggle for Social Justice.

• The Supreme Court Historical Society has announced a lecture for its members by Jeffrey Rosen, George Washington University Law School, at the Court on March 9, 2016, at 6 pm, to commemorate the 215th anniversary of John Marshall's appointment as Chief Justice of the United States. 

• We imagine that some future historian of originalism will find in commentary following an announcement of Justice Scalia's an unusual opportunity to compare popular understandings of that concept with versions advanced by law professors, judges and other legal experts.  ICYM them, here is Nina Totenberg on NPR and OXY on The Liberal Yale Law Prof Who Agrees With Scalia.

• "Northwestern University and Duke University are holding a week-long workshop on Research Design for Causal Inference . . . at Northwestern Law School” on August 1-5, 2016.

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

Geyh's "Courting Peril"

Charles Gardner Geyh, the John F. Kimberling Professor of Law at the Indiana University Maurer School of Law, has published Courting Peril: The Political Transformation of the American Judiciary, with Oxford University Press.

The rule of law paradigm has long operated on the premise that independent judges disregard extralegal influences and impartially uphold the law. A political transformation several generations in the making, however, has imperiled this premise. Social science learning, the lessons of which have been widely internalized by court critics and the general public, has shown that judicial decision-making is subject to ideological and other extralegal influences. In recent decades, challenges to the assumptions underlying the rule of law paradigm have proliferated across a growing array of venues, as critics agitate for greater political control of judges and courts. With the future of the rule of law paradigm in jeopardy, this book proposes a new way of looking at how the role of the American judiciary should be conceptualized and regulated. This new, "legal culture paradigm" defends the need for an independent judiciary that is acculturated to take law seriously but is subject to political and other extralegal influences. The book argues that these extralegal influences cannot be eliminated but can be managed, by balancing the needs for judicial independence and accountability across competing perspectives, to the end of enabling judges to follow the "law" (less rigidly conceived), respect established legal process, and administer justice.

TOC after the jump:

Craft, "American Justice in Taiwan: The 1957 Riots and Cold War Foreign Policy"

New from the University Press of Kentucky: American Justice in Taiwan: The 1957 Riots and Cold War Foreign Policy, by Stephen G. Craft (Embry-Riddle Aeronautical University). A description from the Press:

On May 23, 1957, US Army Sergeant Robert Reynolds was acquitted of murdering Chinese officer Liu Ziran in Taiwan. Reynolds did not deny shooting Liu but claimed self-defense and, like all members of US military assistance and advisory groups, was protected under diplomatic immunity. Reynolds’s acquittal sparked a series of riots across Taiwan that became an international crisis for the Eisenhower administration and raised serious questions about the legal status of US military forces positioned around the world.

In American Justice in Taiwan, author Stephen G. Craft provides the first comprehensive study of the causes and consequences of the Reynolds trial and the ensuing protests. After more than a century of what they perceived as unfair treaties imposed by Western nations, the Taiwanese regarded the special legal status of resident American personnel with extreme distrust. While Eisenhower and his advisers considered Taiwan to be a vital ally against Chinese communism, the US believed that the Taiwanese government had instigated the unrest in order to protest the verdict and demand legal jurisdiction over GIs. Regardless, the events that transpired in 1957 exposed the enormous difficulty of applying the US’s Uniform Code of Military Justice (UCMJ) across cultures.

Employing meticulous research from both Western and Chinese archives, Craft demonstrates that the riots were only anti-American in that the Taiwanese rejected the UCMJ, the affording of diplomatic immunity to occupying US forces, and the military courts’ interpretation of self-defense. His compelling study provides a new lens through which to examine US–Taiwan relations in the 1950s, US policy in Asia, and the incredibly charged and complex question of the legal status of US troops on foreign soil.

A few blurbs:

An excellent microhistory of an intrinsically interesting series of events: the murder of a Taiwanese civilian by an American serviceman, his subsequent trial, and the riots that followed his acquittal. . . . [It] makes significant contributions to the history of U.S. relations with Taiwan, to the history of the Cold War in Asia, and to the history of US overseas forces. -- Robert McMahon

Craft does a superb job of placing a specific legal event, crime, and trial into a much broader historical context. The great strengths of the study are its use of a particular seemingly routine trial to shed light on the inherent tensions in the US–Taiwan relationship . . . and its very complete use of Chinese primary sources to supplement what has traditionally been a Western focus on the Taiwan riots. -- Michael Schaller

More information is available here.

Three by Twomey on Australian Constitutional History

Anne Twomey, University of Sydney Faculty of Law, has posted three recently published papers on Australian constitutional history.  The Exercise of Reserve Powers in Victoria from 1912-1955, appeared in the Australian Bar Review 39 (2014): 198-214:    

The reserve powers of the monarch or his or her vice-regal representatives are rarely exercised. When they are exercised and the political players loudly object and dispute the legitimacy of their use, they become notorious parts of political history, etched on the public psyche, such as the King/Byng affair in Canada in 1926 and the dismissal of the Whitlam Government in Australia in 1975. In contrast, when the political players choose instead to accept what has happened and move on, the events become lost in history and their lessons ignored. This paper explores the rich history of the exercise of the reserve powers in the Australian State of Victoria from 1912-1955 and ponders how the players and the public in 1975 might have behaved differently if they had had a better understanding of this neglected constitutional history.

Advice to Vice-Regal Officers by Crown Law Officers and Others, appears in the Public Law Review 26 (2015): 193-216:

In countries such as the United Kingdom, Australia, Canada and New Zealand, the monarch or her vice-regal representative is formally advised by responsible Ministers. Difficulties may arise, however, when those Ministers cease to be responsible or advise actions that may be illegal or unconstitutional. In such circumstances, the Queen or Governor-General may need access to legal advice or advice about constitutional conventions and principles. This article addresses the distinction between formal and informal advice to vice-regal officers and the issues that arise when such advice is given by the Attorney-General, the Solicitor-General and legal or political experts. These include whether a Solicitor-General (in countries where he or she is a legal officer - not a member of the Government) should be confined to giving legal advice, rather than policy advice, and whether the Solicitor-General must advise the government of the nature of the advice or even that it has been requested and given.

Royal Assent–The Business of Parliament or the Executive? appears in Australasian Parliamentary Review 30 (2015): 31-47:

In countries with Westminster-type parliamentary systems, royal assent to bills is normally given as a matter of course. In unusual circumstances, however, Ministers may advise the delay or refusal of royal assent. In such a case, should the Queen or her vice-regal representative act upon the advice of Ministers in delaying or refusing assent or on the advice of the two Houses of Parliament that have passed the bill? What if Ministers have ceased to be responsible to Parliament? Are they entitled to override the will of the Houses? A clash arises between the principles of responsible government and representative government. This article considers judicial authority, convention, textual indications, practice and the views of participants in the grant of royal assent in the United Kingdom, Australia, New Zealand and Canada. It contends that rather than relying reflexively on the proposition that the Queen acts on ministerial advice, consideration must be given to all relevant constitutional principles and an effort must be made to reconcile conflicts in accordance with the underlying purposes of these principles.

The Historical Roots of the U.S. Immigration Debate

Also via H-Law, we have an announcement of the conference How Did We Get Here? The Historical Roots of the U.S. Immigration Debate, sponsored by the Zolberg Institute on Migration and Mobility, New School for Social Research, and the Department of Historical Studies, Eugene Lang College, New School University, on Friday, March 4., from 10:00 am to 4:00 pm in Room 529 of the New School University, 80 Fifth Avenue, New York, NY

Why are the politics and policies surrounding immigration in the United States so fraught? Where does the appropriate balance lie between the human rights of newcomers and the national interest? Nearly everyone across the political spectrum can agree that the system needs to be overhauled, but as the longstanding political deadlock demonstrates, few can agree over the objectives and the means of achieving reforms. These very same questions have arisen at different points in U.S. history.  What historic lessons can be drawn to shed light on the present situation? This one-day conference brings together historians, legal scholars, and social scientists in an attempt to contextualize the origins of current-day immigration politics and practice. By bringing to light how the current system coalesced from the early republic through the Obama administration, the hope is that we may recover some ideas from the “useable past” that could point to new openings and possibilities for change.

10:30 AM–12:00 PM:  Early Republic through Federalization of Immigration Control, 1780s-1880s
Hidetaka Hirota, Lecturer in History and the Center for the Study of Ethnicity and Race, Columbia University
Kunal Parker, Professor of Law & Dean’s Distinguished Scholar, University of Miami Law School
Beth Lew-Williams, Assistant Professor of History, Princeton University

1:00–2:30 PM: Ellis Island/Angel Island and National Origins Eras, 1890s-1965
Alan Kraut, University Professor of History, American University
Katherine Benton-Cohen, Associate Professor of History, Georgetown University
Anna O. Law, Herbert Kurz Chair in Constitutional Rights and Associate Professor of Political Science, Brooklyn College, CUNY

3:00 – 4:30 PM: 1965 to the Present
Heath Brown, Assistant Professor of Public Policy, John Jay College and The Graduate Center, CUNY
Alexandra Delano, Assistant Professor of Global Studies, The New School, and Co-Director of the Zolberg Institute on Migration and Mobility
Lina Newton, Associate Professor of Political Science, Hunter College, CUNY

Individuals and Legal Institutions around the Medieval Mediterranean

Via H-Law, we have an announcement of the conference Individuals and Legal Institutions around the Medieval Mediterranean at the Center for Jewish Studies, Duke University, Durham, NC, March 7-8, 2016

While there is a vast literature on medieval Jewish and Islamic law, the histories of medieval Jewish and Muslim legal institutions received substantially less attention. A relative dearth of documentary sources and a privileged position given to prescriptive texts have led to a top-down approach that views courts predominantly from the perspective of the central political power and/or the legal tradition. This situation contrasts with the study of courts and the legal arena in Christian Europe where there has been a long tradition of studying legal institutions “from below,” whether through the lens of dispute settlement, microhistory, or legal anthropology. This conference will attempt to bridge the gap between the study of legal culture and practice in medieval Europe and the Islamic world by bring together scholars of medieval Christian, Muslim, Jewish and secular legal institutions to think comparatively about the study of individuals and legal institutions “from below.” In order to supply a comparative perspective, we will be joined by scholars who have tackled such questions in adjacent fields, from Late Antiquity to the Ottoman Empire. The talks will explore how individuals accessed legal institutions and maneuvered in the legal arena, how legal institutions catered to and were affected by litigants’ participation, and to what extent viewing litigants as consumers is a fruitful model in Europe and across the Mediterranean. 

More

Uribe on "Spousal Killers, Law, and Punishment in the Late Colonial Spanish Atlantic"

New from Stanford University Press: Fatal Love: Spousal Killers, Law, and Punishment in the Late Colonial Spanish Atlantic, by Victor M. Uribe-Uran (Florida International University). A description from the Press:

One night in December 1800, in the distant mission outpost of San Antonio in northern Mexico, Eulalia Californio and her lover Primo plotted the murder of her abusive husband. While the victim was sleeping, Prio and his brother tied a rope around Juan Californio's neck. One of them sat on his body while the other pulled on the rope and the woman, grabbing her husband by the legs, pulled in the opposite direction. After Juan Californio suffocated, Eulalia ran to the mission and reported that her husband had choked while chewing tobacco. Suspicious, the mission priests reported the crime to the authorities in charge of the nearest presidio.

For historians, spousal murders are significant for what they reveal about social and family history, in particular the hidden history of day-to-day gender relations, conflicts, crimes, and punishments. Fatal Love examines this phenomenon in the late colonial Spanish Atlantic, focusing on incidents occurring in New Spain (colonial Mexico), New Granada (colonial Colombia), and Spain from the 1740s to the 1820s. In the more than 200 cases consulted, it considers not only the social features of the murders, but also the legal discourses and judicial practices guiding the historical treatment of spousal murders, helping us understand the historical intersection of domestic violence, private and state/church patriarchy, and the law.

A few blurbs:

"A highly valuable contribution to the history of social violence and Spanish law both in the metropolis and the colonies."

—Eric Van Young

"This book is exceptional in its archival coverage as well as its historiographical depth. Its revisionist interpretations of existing scholarship will be welcomed by scholars."
—Ann Twinam

More information is available here.

Keppel, "Brown v. Board and the Transformation of American Culture"

New from Louisiana State University Press: Brown v. Board and the Transformation of American Culture: Education and the South in the Age of Desegregation, by Ben Keppel (University of Oklahoma). A description from the Press:

Brown v. Board of Education, which ended legally sanctioned segregation in American public schools, brought issues of racial equality to the forefront of the nation’s attention. Beyond its repercussions for the educational system, the decision also heralded broad changes to concepts of justice and national identity. “Brown v. Board” and the Transformation of American Culture examines the prominent cultural figures who taught the country how to embrace new values and ideas of citizenship in the aftermath of this groundbreaking decision.

Through the lens of three cultural “first responders,” Ben Keppel tracks the creation of an American culture in which race, class, and ethnicity could cease to imply an inferior form of citizenship. Psychiatrist and social critic Robert Coles, in his Pulitzer Prize–winning studies of children and schools in desegregating regions of the country, helped citizens understand the value of the project of racial equality in the lives of regular families, both white and black. Comedian Bill Cosby leveraged his success with gentle, family-centric humor to create televised spaces that challenged the idea of whiteness as the cultural default. Public television producer Joan Ganz Cooney designed programs like Sesame Street that extended educational opportunities to impoverished children, while offering a new vision of urban life in which diverse populations coexisted in an atmosphere of harmony and mutual support.

Together, the work of these pioneering figures provided new codes of conduct and guided America through the growing pains of becoming a truly pluralistic nation. In this cultural history of the impact of Brown v. Board, Keppel paints a vivid picture of a society at once eager for and resistant to the changes ushered in by this pivotal decision. 

More information is available here.

Mader on Constitutional Unamendability

George Mader, William H. Bowen School of Law at the University of Arkansas at Little Rock, has posted Binding Authority: Unamendability in the United States Constitution--A Textual and Historical Analysis, which is forthcoming in the Marquette Law Review:

Through an examination of the text of the original Constitution and the history of its framing, this article demonstrates the framers understood the difficulties — logical, syntactic, and political — involved in creating unamendable constitutional provisions, yet did create two such provisions. One provision expired by its own terms in 1808, but while it was in force it barred amendment of several other provisions. The other is the ban on religious tests in Article VI, which is permanent — it may never, ever be removed. Additionally, this article demonstrates it is possible for a present-day amendment to be permanently unalterable and for such an amendment to make a part of the existing Constitution similarly unalterable. In the past, the possibility of such unalterable amendments was accepted. Indeed, an amendment proposal sent by Congress to the states for ratification in 1861 was an attempt to avoid the Civil War by prohibiting forever any federal interference with slavery in the states. Each of these permanent limitations (or attempted limitation) on amendment was aimed at compromise to avert a serious national crisis. Despite its usefulness as a tool for binding compromises, unamendability is a dangerous device, so the article also addresses whether the power to create permanent provisions should be permanently removed, and how that may be accomplished.

Abramson and Tate to Speak on Juries in Historical Perspective at DBA

[We have word of two events sponsored by the Legal History Group of the Dallas Bar Association from its Chair, Josiah Daniel, of Vinson & Elkins LLP.  Those with questions about the events should contact Mr. Daniel at jdaniel@velaw.com.]

Under a broad theme of “Juries—Petit and Grand—in Historical Perspective,” the Dallas Bar Association’s Legal History Group has two presentations coming up that may be of interest to legal historians in, or who may be visiting, the Dallas area on these dates:

Professor Jeffrey Abramson of the University of Texas Law School will present “The Representative Jury In Historical and Contemporary Perspective” on Friday, March 4, Noon-1:00 pm Central Standard Time; and

Professor Joshua Tate of the SMU’s Dedman School of Law will present “The Grand Jury in Historical Perspective” on Thursday, May 12, Noon to 1:00 pm Central Daylight Time.

Both will be held in the Belo Mansion, headquarters of the Dallas Bar Association in downtown Dallas; lunch is available for a reasonable fee; and the presentations are free with MCLE accreditation for Texas lawyers.

C. Jane Banfield, 1930-2016

Via the Canadian Legal History Blog, we have word of the passing of C. Jane Banfield, "retired York University Professor, founder of the York University Law and Society Program and a founding director of the Osgoode Society." The Globe and Mail obituary is here.

Call for Participation: Conference and Special Issue on "The Tragedy of the Commons at 50"

Via Environment, Law, and History, we have the following call for participation:

Conference and Special Issue:
The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

On the occasion of the 50^th anniversary of the publication of
Garrett Hardin's "Tragedy of the Commons"

Cegla Center for Interdisciplinary Research of the Law

with the support of

David Berg Foundation Institute for Law and History

GlobalTrust: Sovereigns as Trustees of Humanity

S. Horowitz Institute for Intellectual Property

Buchmann Faculty of Law

Tel Aviv University

June 28-30, 2017

Call for Papers – due 1 March 2016

            Few modern publications—or indeed ideas—have been as influential for the development of law, political science, economics, or environmental studies as Garrett Hardin's "Tragedy of the Commons", his blockbuster 1968 article in Science magazine. The notion of ownerless resources being inexorably and inevitably subject to overuse and degradation, illustrated through a parable of a common pasture consciously grazed to oblivion by herdsmen, proved to be a gripping one. It has seemed to explain or justify problems and solutions from areas such as population control, ownership of and sovereignty over natural resources, pollution, and cultural and technological innovation, and it has remained a dominant trope in many fields in and outside law since its publication. Of course Hardin's idea has not gone unchallenged, and recent decades have seen a wealth of scholarship dedicated to refuting or modifying the "Tragedy" thesis and identifying or advocating countervailing and related effects.

            Like all ideas, the idea of the "Tragedy" has a history and a context, the exploration of which is the object of this conference. Precedents in economic writing of the 1950s have been pointed out, and Hardin's article itself acknowledged his debt to a nineteenth-century "mathematical amateur". The aim of this conference and special issue is to go beyond these immediate and explicit intellectual sources and explore three themes in the history of the idea of the tragedy of the commons (the functioning of actual commons in history remains outside this conference's scope):

1. The idea of the commons in history: The idea of "the commons", whether communally owned or accessible to all, is one that lawyers, economists, political theorists, and others have written about for centuries. Some, like Hardin, were alarmed by it; other valorized it; yet others saw it in a more complex light. We aim to excavate new layers of the intellectual antecedents of Hardin and his opponents, within the Western tradition as well as outside it, and understand the historical contexts in which these earlier ideas and texts were produced.
2. Hardin's world: Not only did Hardin not write in an intellectual vacuum; "Tragedy" was written in a specific time and place, and in a certain political, ideological, cultural, and social environment. We seek to illuminate the contexts that might explain the particular circumstances in which "The Tragedy of the Commons" was written, published, and popularized.
3. The Tragedy's career: Half a century after the publication of Hardin's article, its reception, revision, and rejection already have histories. We wish to understand better the enthusiasm with which the idea of the Tragedy has been embraced, as well as the intellectual, ideological, and political sources and attractions of alternative approaches, most prominently that of Elinor Ostrom's school of commons studies. 

One-page proposals addressing any aspect of the above themes are welcome. Accepted articles will be published, after peer review, in a special issue of Theoretical Inquiries in Law, the TAU Cegla Center's prestigious journal.

More information is available here.

Bartlett on Mayeri, "Marital Supremacy and the Constitution of the Nonmarital Family"

Over at JOTWELL, Katharine Bartlett (Duke University) has posted an admiring review of Serena Mayeri's recent article, "Marital Supremacy and the Constitution of the Nonmarital Family," published in Volume 103 of the California Law Review (2015). Here's the first paragraph:

A concern about the marriage equality movement is that it has reinforced the supremacy of marriage and detracted from the LGBT community’s broader agenda of family pluralism.¹ In her stunning new work, Serena Mayeri describes a similar dynamic in the history of another civil rights movement—the movement to eliminate illegitimacy classifications. There, too, important civil rights were secured at the cost of achieving broader, more comprehensive legal reform on behalf of non-conforming families. The parallelism of these two movements is not random or fortuitous. Indeed, Mayeri’s work shows that the movements contributed to the same legacy of marital supremacy and that the loser in these two movements was the same: women, especially poor women and women of color, whose circumstances and desires put them outside the mainstream of traditional marriage.

Read on here.

Call for Participation: "Hearing the Inarticulate: Ethics and Epistemology in the Archives”

The Janet Prindle Institute for Ethics at DePauw University has issued the following call for participation:

“Hearing the Inarticulate: Ethics and Epistemology in the Archives,” Seminar and Writing Retreat, Prindle Institute for Ethics at DePauw University, June 20-29, 2016

In the late 1970s, Lawrence Levine’s landmark book Black Culture and Black Consciousness modeled new ways of understanding “people who, though quite articulate in their own lifetimes, have been rendered historically inarticulate by scholars who have devoted their attention to other groups and other problems.” In the four decades since then, abundant and energetic scholarly work in that spirit—social history, the expansion of literary and other canons, ethnographies of the underprivileged—has generated a wealth of new knowledge and insight. But the essential problem Levine identified has not gone away. For all that we have learned about ordinary people, we still know more about “the educated, the intelligentsia, the elite.” Those who long were, and often still are, “rendered . . . inarticulate”—people who are poor, illiterate, disabled, or otherwise socially marginalized—remain less well understood, both as historical actors and as citizens of the contemporary world. As Beth Schweiger has written recently, “What ordinary people were thinking about remains generally beyond the bounds of intellectual history.”

A key reason is methodological: studying the “inarticulate” is usually more difficult, laborious, and time-consuming than studying the articulate. As James C. Scott notes, “historically, the goal of peasants and subaltern classes has been to stay out of the archives.” For academics who themselves constitute a social elite, writing about ordinary or marginalized people also involves challenges of research and interpretation that are ethical as well as methodological. How do we derive meaning from obscure, incomplete, and fragmentary evidence of “what ordinary people were thinking”? How can we responsibly give voice to people, often very unlike ourselves, who were or are silenced? How do we know if we are restoring the voices of marginalized people on their own terms or reinventing them for our own ends?

In June 2016, DePauw University’s Prindle Institute for Ethics will host a seminar and writing retreat devoted to such questions. The Institute aims to bring together an intimate group of scholars in a variety of disciplines and using a variety of frameworks—which might include (but are not limited to) childhood, class, disability, gender, immigration, incarceration, literacy, and race—who see their work contributing to the larger project of hearing the inarticulate.

Participants will spend ten days in residence at DePauw, dividing their time between workshops devoted to each other’s works in progress and—taking advantage of the Prindle Institute’s spacious and secluded setting—long blocks of uninterrupted writing. Ideally, participants will not only receive extensive feedback from their fellows but also draft substantial portions of essays or book chapters. Those selected to participate will receive travel, lodging, and most of their meals during the retreat, as well as a $500 stipend to cover incidental expenses.

Hearing the Inarticulate will be directed by Christopher Hager, the current Nancy Schaenen Visiting Scholar at the Prindle Institute. Hager is Associate Professor of English at Trinity College, Connecticut, and the author of Word by Word: Emancipation and the Act of Writing, which won the 2014 Frederick Douglass Prize. Seminar faculty will also include Grey Gundaker, the Duane A. and Virginia S. Dittman Professor of American Studies and Anthropology at the College of William and Mary, and Andy Cullison, Phyllis W. Nicholas Director of the Prindle Institute and Associate Professor of Philosophy at DePauw.

To apply, send a two-page CV and a statement of purpose (no more than 1500 words) to prindleinstitute@depauw.edu by March 1, 2016. The statement should describe both your larger scholarly agenda as well as the specific project, or portion of a project, you intend to work on during the retreat. Graduate students who have advanced to the dissertation stage are eligible to apply. Direct questions to christopherhager@depauw.edu.

Hat tip: Rabia Belt