- Joyce Appleby (1929-2016), a great historian, has died, reports @kawulf and @LHR_editor.
- Catfishing "dangerous" professors' syllabi?
- ICYMI: Mark Graber's four theses, from a historical perspective, on the Culture Wars, on Balkinization.
Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Before he took his seat on the Supreme Court, it was barely respectable to treat the Constitution, understood to mean what it meant to those who wrote and ratified it, as the law. Constitutional law was - as every sophisticated lawyer, jurist, and academic understood - whatever the courts said it was, and the written document had been superseded in significant part by a “living constitution” that reflected the progressive political agenda of the modern left. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to move the law ever farther to the left frequently find it prudent to pose as expositors of the Constitution’s original meaning.
Antonin Scalia, J. (Steve Petteway)
Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. His effort to alter the Supreme Court’s approach to constitutional adjudication faced serious obstacles that will continue to frustrate Justices - and observers like me - who share Scalia’s desire for a revival of respect for the written Constitution. Most obviously, political realities could easily prevent presidential appointments from producing a majority of like-minded Justices any time soon, if ever. There are, however, some more interesting obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.
Provocative in nature, this work looks critically at the bureaucratic infrastructure behind the U.S. federal government, from its origins as a self-governing republic in the 18th century to its modern presence as a centralized institution.Professor Moreno discussed his book on C-SPAN.
This fascinating critique analyzes the inner workings of the American government, suggesting that our federal system works not as a byproduct of the U.S. Constitution but rather as the result of liberal and progressive politics. Distinguished academic and political analyst Paul D. Moreno asserts that errant political movements have found "loopholes" in the U.S. Constitution, allowing for federal bureaucracy—a state he feels is a misinterpretation of America's founding dogma. He contends that constitutionalism and bureaucracy are innately incompatible... with the former suffering to accommodate the latter.
According to Moreno, the leadership of the United States strayed from the democratic principles of the early founders and grew to what it is today—a myriad of bureaucratic red tape couched in unreasonable policies. A straightforward, chronological narrative explains how non-elected bureaucrats became powerful political mavens in America. Each chapter covers several decades and features events spanning from the early history of the United States through coverage of the Affordable Care Act (Obamacare) of 2010.
This essay offers a critical examination of use of the term "long civil rights movement" as a framework for understanding the legal history of the battle against racial inequality in twentieth-century America. Proponents of the long movement argue that expanding the chronological boundaries of the movement beyond the 1950s and 1960s allows scholars to better capture the diverse social mobilization efforts and ideas that fueled the black freedom struggle. While not questioning the long framework's usefulness for studying the social movement dynamics of racial justice activism, I suggest that the long framework is of more limited value for those who seek to understand the development of civil rights, as a legal claim, particularly in the first half of the twentieth century. The tendency of long movement scholars to treat civil rights as a pliable category into which they can put any and all racial justice claims is in tension with historical understandings of the term. Susan Carle's Defining the Struggle: National Organizing for Racial Justice, 1880–1915 suggests an alternative approach. Her detailed and nuanced account of a period in American history when racial justice activists understood civil rights as a relatively narrow subset of legal remedies within a much broader struggle for racial equality indicates the need for an alternate history of civil rights—one that places the evolving, contested, and historically particularized concept of civil rights at the center of inquiry.
The Evarts Act (26 Stat. 826) altered the federal courts more extensively than any statute since the Judiciary Act of 1789 (1 Stat. 73), which set up the Supreme Court and the subordinate federal courts. The new law created an intermediate federal appellate court system (the circuit courts of appeals profiled here) and rejiggered the relationships and jurisdictions of the various parts of the new system. This map lays out the details of the new courts' first day on the job, and flags a few intriguing aspects of their early work.For details, see Josh Blackman's Blog.
H/t: Legal Theory Blog
To become an engine of sustained economic growth, markets require various market-supporting infrastructure from the government, such as justice (including property rights and contract enforcement), security, public goods, and, importantly, liberty or the freedom from government predation. Adam Smith’s developed his constitutional theory as part of his unpublished Lectures on Jurisprudence. This theory answers a critical question. If liberty, commerce, and security provide the road to opulence, what incentives do political officials have to sustain them? Smith's constitutional theory provides the answer.
Adam Smith (LC)
Despite several excellent treatments (see, e.g., Evensky 2005, Haakonssen 1981; Hont 2015; Kennedy 2005, and Winch 1978), Smith's constitutional theory remains relatively unknown, especially outside of the literature on Smith. Smith's impressive contributions to this theory parallel those of Locke in his Second Treatise (1689), Montesquieu in his Spirit of the Law (1748), and Madison in the Federalist Papers (1787-88). In many ways, Smith's focus on institutions and incentives is superior to that of the other political theorists who are far more well-known for work on this topic. Topics include Smith’s theory of sovereignty, the separation of powers as a system of mutual monitors, the right of resistance, and, generally, the incentives facing political officials to adhere to the constitutional rules.
An advance review:
The Case of Rose Bird provides a fascinating look at this important and complex woman and the political and cultural climate of California in the 1970s and 1980s. Seeking to uncover the identities and motivations of Bird’s vehement critics, Kathleen A. Cairns traces Bird’s meteoric rise and cataclysmic fall. Cairns considers the instrumental role that then-current gender dynamics played in Bird’s downfall, most visible in the tensions between second-wave feminism and the many Americans who felt that a “radical” feminist agenda might topple long-standing institutions and threaten “traditional” values.
“Cairns deftly weaves Bird’s biography into the larger stories of the time: the anti-feminist backlash, the increasing importance of money in politics, and the nasty, take-no-prisoners campaigns of the modern era. Extensively researched and expertly written, it will delight scholars and general readers alike. A must-read.”—Kathryn S. OlmstedMore information is available here.
|Ethel and Julius Rosenberg (Wiki)|
Whether or not Ethel Rosenberg was guilty of the offense for which she was tried, convicted, and executed, there is little doubt that the evidence upon which the conviction was based was threadbare. Indeed, even the government itself thought so. The government’s prosecution of Ethel relied exclusively on the testimony of David and Ruth Greenglass, Ethel’s brother and sister-in-law. A July 17, 1950 internal FBI memo declared there was not enough evidence to arrest Ethel Rosenberg. The government did not discover any new evidence against Ethel between the release of that memo and Ethel’s arrest on August 11, 1950. Furthermore, no new evidence was discovered in the time between her arrest and her indictment on January 31, 1951, shortly before her trial in March. And it was in that brief period that both the Greenglasses’ stories dramatically evolved as to the extent of Ethel’s supposed connections with the alleged conspiracy.
Her conviction and execution rested on three claims: (1) Ethel asked Ruth to convey Julius’ espionage recruitment offer to David; (2) Ethel typed up notes containing nuclear secrets in order to transmit them to the Soviets; and (3) Ethel and Julius received a mahogany table and other gifts from the Soviets as a reward for their commitment to the cause. Of the three, the only evidence present at the time Ethel was indicted was Ruth’s statement that Ethel asked Ruth to convey Julius’ recruitment offer to David. Despite giving several statements, over the course of eight months, neither Ruth nor David Greenglass mentioned Ethel typing up the notes until two weeks before trial. The indictment and pretrial documents also fail to report that Ethel received gifts from the Russians. This accusation was first introduced into the trial documents during the Greenglasses’ trial testimony.
The conclusion in the July 17, 1950 FBI memo, stating that the evidence against Ethel was insufficient to warrant prosecution, remained true throughout her arrest, prosecution, conviction, and execution.
The reason for her prosecution seems clear: Ethel was executed because she refused to cooperate with the Government to help convict her husband, Julius. Ethel was merely a pawn used for leverage in the government’s attempt to build a case against Julius Rosenberg.
In the Athenian law-courts, wealthy, educated, and powerful elites fought one another to prevail as leaders and advisors of the masses. Regulated by the masses’ ideals of a good society, elite competition pushed Athens toward stability, prosperity and cultural immortality. Or did it? This article puts pressure on the mass and elite model of Athenian litigation (M&E). According to the M&E model, litigation is a game played by elite litigants and mass audiences; elite litigants seek to win over their opponents as a means to gain honor; and the masses constitute a monolithic body with identical preferences. This model, we suggest, does not adequately explain the dynamics of law- and policy-making in the Athenian courts. Combining findings from two separate bodies of literature in classics and political science, we build a new model of Athenian litigation that modifies the M&E model in two fundamental respects: first, jurors’ preferences are meaningfully pluralistic, therefore litigants (who are not only elites) face uncertainty as to the precise position of the median juror; and second, litigants want to win, but they also have preferences over policy/legal outcomes. Our model identifies the mechanisms that enabled diverse interests to be advanced and negotiated in ways that fostered both stability and innovation in Athenian law- and policy-making.And with Josiah Ober, Stanford University, he has posted The Sparta Game: Violence, Proportionality, Austerity, Collapse, which is forthcoming in How to Do Things with History, ed.
This paper suggests that contemporary versions of Adam Smith’s informal equilibrium theory in Book III of the Wealth of Nations (Smith, 1776) can explain Sparta’s regime stability, along with distinctive features of the social system of ancient Sparta, namely the coordinated social uses of systematic violence, the public façade of material equality among the citizen population, the maintenance of a self-enforcing regime of austerity by an extensive body of citizens. In addition, it uses a dynamic element to explain the severe demographic decline that led to Sparta’s eventual loss of standing in the Greek world.
ABF Doctoral/Postdoctoral Fellowship Program in Law & Inequality
The American Bar Foundation (ABF) is committed to developing the next generation of scholars in the field of law and social science. The purpose of the fellowship is to encourage original and significant empirical and interdisciplinary research on the study of law and inequality.
Pending budgetary approval, the ABF will support several doctoral fellowships and one postdoctoral fellowship. For the doctoral fellowships, applications are invited from outstanding students who are candidates for Ph.D. degrees and who have completed all doctoral requirements except the dissertation by September 1, 2017. For the postdoctoral fellowship, applications are invited from scholars who have recently received their Ph.D.s (within the last two years) or who will have completed the dissertation by September 1, 2017.
Doctoral or proposed research must be in the general area of sociolegal studies or involve social scientific approaches to the law, legal institutions, or legal processes. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and inequality. Individuals from underrepresented minority groups are especially encouraged to apply.
Awards and Term
Doctoral and postdoctoral fellowships will be held in residence at the ABF’s headquarters in Chicago, IL and are expected to begin on September 1, 2017. Doctoral Fellows will receive a stipend of $35,000 per year for up to two academic years.
Continuing graduate students will be required to receive benefits through their degree-granting university. The Postdoctoral Fellow will receive a stipend of $60,000 per year for up to three academic years, and benefits through the ABF. All Fellows will also have access to a modest research account to reimburse expenses associated with research, travel to meet with advisors, or travel to conferences at which papers are presented. Reasonable relocation expenses may be reimbursed on application.
Applicants must include: (1) a dissertation proposal or writing sample with an outline of the substance and methods of the research; (2) two letters of reference, one of which must be from a supervisor of the dissertation; and (3) a curriculum vitae. In addition, at the applicant's option, a short sample of written work may be submitted.
Applications for this fellowship must be received no later than January 15, 2017.
Please submit your complete application for the ABF Doctoral/Postdoctoral Fellowship in Law & Inequality through the following url: https://apply.interfolio.com/37469. Direct all questions or concerns relating to your application submission to Lucinda Underwood, 312.988.6573 or Julian Perez, email@example.com, 312.988.6631.
The blending of myth and legal history evident in the body of literary and legal texts produced to debate the union proposals of James VI and I following the king's proclamation of them in 1604 illustrates the seamless nature of the legal and literary canons at a formative moment in the history of British-American constitutionalism. This case study focuses on one of the lesser known Union Tracts, George Saltern's 1605 Of the Antient Lawes of Great Britaine in conjunction with examples from various union tracts and contemporaneous works in British history, Calvin's Case and other judicial opinions, and works of British-American political thought to illustrate and evaluate the creative mix of mythical and historical elements present in the juridical historiography of the ancient constitution. King James's proposed 'restitution' of a realm which had in fact never previously existed in history--the unified realm of Great Britain--could only have been defended through such a blend of literary myth, history, and legal precedents. Furthermore, tracing the juridical historiography of ancient constitutionalism over the following centuries reveals the surprising extent to which ancient constitutionalist thought has continued to influence the development of British-American constitutionalism to the present day. The appendix includes a facsimile of George Saltern's Of the Antient Lawes of Great Britaine (1605).An endorsement:
"Being immemorial, the Ancient Constitution could have no founding fathers, but needed fathers as ancient as could be found. Erin Kidwell traces them back beyond English into British history and beyond King Alfred to King Lear, King Arthur and Brutus of Troy. This is a valuable study in the mythology necessary to medieval and early modern constitutionalism and the political thought arising from it." -- J.G.A. Pocock, P.E., Johns Hopkins University, author of The Ancient Constitution and the Feudal Law.Kidwell was for many years Curator of Legal History Collections at Georgetown Law Library. A notice of the book appears on the library's blog. The post notes that Georgetown Law’s Digital Initiatives Division has made its copy of George Saltern’s Of the Antient Lawes of great Britaine available here.
In the Soviet Union, bribery was a skill with its own practices and culture.
James Heinzen’s innovative and compelling study examines corruption under Stalin’s dictatorship in the wake of World War II, focusing on bribery as an enduring and important presence in many areas of Soviet life. Based on extensive research in recently declassified Soviet archives, The Art of the Bribe offers revealing insights into the Soviet state, its system of law and repression, and everyday life during the years of postwar Stalinism.
The Judicial Committee of the Privy Council was the final appellate court of almost all of the British Empire. The institution of the Privy Council appeal was perceived as an important instrument of British Imperial policy in a number of important areas. It was often perceived as a vital pillar of Imperial unity. This court was also promoted as the overseer of federal and devolved settlements within the component parts of the Empire. The appeal was also seen as providing a necessary form of economic oversight that guaranteed British investment in the colonies and self-governing Dominions. Finally, by the early 20th century the appeal was promoted as a means of protecting the rights of vulnerable minorities within the component parts of the Empire. This article examines the role of this court in these key areas of Imperial policy and their impact on popular perceptions of the Privy Council appeal.The second is The Irish Question and the Evolution of British Imperial Law, 1916-1922:
By the early twentieth century Dominion status seemed ideally suited as the answer to the perennial ‘Irish question’. It offered Ireland a generous measure of autonomy while maintaining the territorial integrity of the British Empire. Nevertheless, the prospect of granting Dominion status to Ireland remained little more than a fantasy on the eve of the outbreak of the First World War. This reality was altered by two parallel historical developments. The first of these was the 1916 Easter rising that killed any possibility of an effective home rule settlement for the entire island of Ireland. The second was a rapid acceleration in the evolution of the self-governing Dominions of the Empire towards greater autonomy in the constitutional sphere. In the aftermath of the First World War these two developments came together in the signing of the 1921 Treaty that permitted the Irish Free State to emerge with the status of a self-governing Dominion, the same constitutional status held by Canada, Australia, South Africa and New Zealand. This article will examine the legal and constitutional developments that took place between 1914 and 1922 that removed the possibility of an ‘Irish Dominion’ from the realms of fantasy and allowed it to play a vital role in the emergence of the self-governing Irish state. It also examines the important role of Hessel Duncan Hall’s book The British Commonwealth of Nations (1920) in influencing this process.
In the aftermath of the Nuremberg and Tokyo trials, most international lawyers focused on their importance and legacy. Although the legal and moral value of the two major trials against the (surviving) members of the Axis Alliance appears indisputable, their success runs parallel with the almost untold story of the decision to conceal the responsibilities of the Italian forces.More after the jump.
In October 1943, the Allied leaders had established the United Nations War Crimes Commission, an independent body tasked with investigating and recording the evidence of war crimes, and identifying where possible the individuals responsible; and reporting to the Governments concerned, when there was prima facie case for the prosecution of those individuals. Indeed, by March 1948 the Commission identified and listed more than 1,200 Italian nationals, who could have been held accountable for heinous war crimes, and in particular those committed on the territories of Ethiopia and Yugoslavia.
On 1 November 1943 the Big Three (UK, USA and USSR) had also adopted the Moscow Declaration, agreeing that Italian war criminals had to be brought to justice. This proposition would be broadened by the Treaty of Peace with Italy, signed in February 1947, which Article 45 established that Italy should have arrested and surrendered for trial the persons accused of having committed, ordered, or abetted war crimes and crimes against peace or humanity by any Allied or Associated Power (including Ethiopia, since under Article 38 this provision would be applicable to all acts entailing the responsibility of Italy or Italian national towards it, from 3 October 1935).
Despite these initiatives, apart from the 40 trials the British conducted in Italy immediately after the end of the conflict, no Italian would be held accountable for the commission of international crimes.
There is no nation in which the teachers of law play a more prominent role than in the United States. In this unique volume Stephen Presser, a law professor for four decades, explains how his colleagues have both furthered and frustrated the American ideals that ours is a government of laws not men, and that our legal system ought to promote justice for all. In a dazzling review of three centuries of teaching about American law, from Blackstone to Barack Obama, Presser shows how these extraordinary men and women shaped not only our law, but also our politics and culture.Elsewhere Professor Presser writes that the book contains chapters on “the leading law professors and their theories about law, including, among many others, Wilson, Story, Langdell, Holmes, Dworkin, Posner, Sunstein, MacKinnon, Williams, and Glendon.”
Canada’s Legal Past: Future Directions in Canadian Legal HistoryFrom July 16 to 18, 2017, the Faculties of Law and Arts at the University of Calgary will jointly host “Canada’s Legal Past: Future Directions in Canadian Legal History,” and we are seeking expressions of interest and abstracts. Canadian legal history has come into its own in the last thirty-five years, as scholars have moved to examine law within the context of cultural, philosophical and larger historical frames. This conference will provide an opportunity to take stock of the last generation of work on Canada’s legal history and to assess what comes next, in terms of topics, methodologies, sources, and theories. The majority of the papers will be original papers on recent work, but we are also hoping to attract historiographical scholarship that will identify future topics and approaches. The anniversary of the country will inspire reflections on the longer story of northern North America. We are hoping participants will locate the historical project that was and is Canada within the larger context of empires – indigenous and European – and the world and to consider questions of law’s relationship to the tension between local and faraway influences; to gender, race and indigeneity; to state-building, trade and commerce; and to the circulation of ideas, legal, cultural, religious, economic and otherwise. This conference will also provide an opportunity for discussions of the teaching of legal history in different disciplinary contexts within the academy, as it is is hoped that scholars from a range of disciplinary homes and backgrounds – working in French and English – will take part.Abstracts should be submitted by February 1 to Lyndsay Campbell (firstname.lastname@example.org), but early expressions of interest would be most welcome. Please do pass this call for papers along.* * *Passé juridique du Canada : les orientations futures de l’histoire juridique canadienneDu 16 au 18 juillet 2017, les facultés de droit et des arts de l’Université de Calgary seront l’hôte du colloque intitulé « Passé juridique du Canada : les orientations futures de l’histoire juridique canadienne », et nous invitons les intéressé-e-s à soumettre des manifestations d’intérêt et des résumés. L’histoire juridique canadienne s’est fait une place depuis les trente-cinq dernières années, avec des chercheur-euse-s qui ont envisagé le droit dans les contextes culturel, philosophique et historique plus vastes. Ce colloque sera l’occasion de faire le bilan de la dernière génération de travaux sur l’histoire juridique du Canada et d’évaluer les sujets, les méthodologies, les sources et les théories à venir. La majorité des communications seront des communications originales portant sur des travaux récents, mais nous souhaitons également attirer des travaux historiographiques qui permettront d’identifier les sujets et les approches futures. L’anniversaire du pays va inspirer des réflexions sur l’ensemble de l’histoire du nord de l’Amérique du Nord. Nous espérons que les participant-e-s aborderont le projet historique qui a été et qui est le Canada, dans le contexte plus large des empires (peuples autochtones et européens) et du monde, et qu'ils/elles examineront la relation du droit quant à la tension entre les influences locales et lointaines; au genre, à la race et à l'indigénéité; à la création d'états et du commerce; et à la circulation d’idées juridiques, culturelles, religieuses, économiques et autres. Ce colloque sera également l’occasion de discuter de l’enseignement de l’histoire du droit dans différents contextes disciplinaires au sein de l’académie, puisque nous espérons que des universitaires provenant de différents milieux disciplinaires et travaillant en français et en anglais y prendront part.Les résumés doivent être soumis au plus tard le 1er février, à Lyndsay Campbell (email@example.com), mais des manifestations d’intérêt envoyées plus tôt sont certainement les bienvenues. Veuillez s’il vous plaît partager cet appel à communications.* * *Conference organizers / Les organisateurs et organisatrices du colloque :· Blake Brown, History and Atlantic Canada Studies, St. Mary’s University (firstname.lastname@example.org)· Lyndsay Campbell, Law and History, University of Calgary (email@example.com)· Ted McCoy, Law & Society and Sociology, University of Calgary (firstname.lastname@example.org)· Nicole O’Byrne, Law, University of New Brunswick (email@example.com)· Adrian Smith, Law and Legal Studies, Institute of Political Economy, and Institute of African Studies, Carleton University (firstname.lastname@example.org)
In this meticulously researched volume, Leonard Wood presents his ground breaking history of Islamic revivalist thought in Islamic law. Islamic Legal Revival: Reception of European Law and Transformations in Islamic Legal Thought in Egypt, 1879-1952 brings to life the tumultuous history of colonial interventions in Islamic legal consciousness during the nineteenth and early twentieth centuries. It tells the story of the rapid displacement of local Egyptian and Islamic law by transplanted European codes and details the evolution of resultant movements to revive Islamic law. Islamic legal revivalist movements strove to develop a modern version of Islamic law that could be codified and would replace newly imposed European laws. Wood explains in unparalleled depth and with nuance how cutting-edge trends in European legal scholarship inspired influential revivalists and informed their methods in legal thought.TOC after the jump.
Timely and provocative, Islamic Legal Revival tells of the rich achievements of legal experts in Egypt who disrupted tradition in Islamic jurisprudence and created new approaches to Islamic law that were distinctively responsive to demands of the contemporary world. The story told bears important implications for understandings of Egyptian history, Islamic legal history, comparative law, and deeply contested and highly transformative interactions between European and Islamic thought.
Medical confidentiality is an essential cornerstone of effective public health systems, for centuries societies have struggled to maintain the illusion of absolute privacy. In this age of health databases and increasing connectedness, however, the confidentiality of patient information is rapidly becoming a concern at the forefront of worldwide ethical and political debate.
In Contesting Medical Confidentiality, Andreas-Holger Maehle travels back to the origins of this increasingly relevant issue. He offers the first comparative analysis of professional and public debates on medical confidentiality in the United States, Britain, and Germany during the late nineteenth and early twentieth centuries, when traditional medical secrecy first came under pressure from demands of disclosure in the name of public health. Maehle structures his study around three representative questions of the time that remain salient today: Do physicians have a privilege to refuse court orders to reveal confidential patient details? Is there a medical duty to report illegal procedures to the authorities? Should doctors breach confidentiality in order to prevent the spread of disease? Considering these debates through a unique historical perspective, Contesting Medical Confidentiality illuminates the ethical issues and potentially grave consequences that continue to stir up public debate.