Tuesday, August 22, 2017

Leo Hershkowitz: Dumpster Diver for Legal History

Today's New York Times brings word of the death of Leo Hershkowitz. That might not be a familiar name to legal historians today, even though he taught history at Queens College "for about 50 years."  The obituary's reference to his many heroic efforts to save New York City documents, including coroner’s records from the late 18th and early 19th centuries, from the shredder, reminded me of a story Stanley Katz once told me about one such batch of documents. When I checked with Professor Katz, he replied:
He was one of the early non-lawyers legal historians, entirely focused on the city and state of New York. Back in the late 1960s or early 1970s, when I was trying to write a history of the chancery courts in New York, many of the records were hard to find. But I knew that many of them were in a court in Albany. Leo knew too, and discovered that the court was going to destroy the 18th-century records as of no current value. He got the court to agree to release the records to him, hired a truck, and drove to Albany to collect the records--which I think he then gave [to the New-York Historical Society or the Hall of Records in New York City]. He literally, and by his lonesome, saved the New York 18th-century chancery court records. Blessings on him. He wrote a good book on Boss Tweed, too.

Cromwell Foundation Grants: Deadline Approaching

The September 1 deadline for submission of applications for William Nelson Cromwell Foundation grants (other than Early Career Scholar grants, which are administrated by an ASLH Committee).  Procedures may be found on the Foundation’s website.

Osgoode Society Legal History Workshop: Winter 2018

Via our friends at the Canadian Legal History Blog, we have the lineup for the Winter 2018 Osgoode Society Legal History Workshop:
Wednesday January 10 or 17: TBA 
Wednesday January 31 – Elizabeth Koester, University of Toronto: ‘Litigating Eugenics:  The 1936 Eastview Birth Control Trial’.
Wednesday February 14: Tom Telfer, Western University: ‘The New Bankruptcy “Detective Agency”? The Origins of the Superintendent of Bankruptcy in Great Depression Canada.’
Wednesday February 28 - Donald Fyson, Laval University: TBA
Wednesday March 14: Jeff McNairn, Queen’s University: ‘ “Where covert guile and artifice abound:” Making Legal Knowledge of Insolvency and Fraud in Upper Canada, 1794-1843.’
Wednesday March 28: Michael Boudreau, St Thomas University: ‘Capital Punishment in New Brunswick, 1869-1957’.
Wednesday April 4 - Shelley Gavigan, Osgoode Hall Law School: ‘Historicizing Criminalization of Canada’s First Nations: A Project for Legal Historians?’

Monday, August 21, 2017

Goluboff and Schragger on Obama's Supreme Court

Risa L. Goluboff and Richard Schragger, University of Virginia School of Law, have posted Obama’s Court? which is forthcoming in The Presidency of Barack Obama: A First Historical Assessment, ed. Julian E. Zelizer (Princeton University Press):
In this chapter for an edited volume on the Obama presidency, we examine Obama’s judicial legacy and specifically his relationship to the Supreme Court. Obama shaped the Court with two important appointments, Sonia Sotomayor and Elena Kagan, thus increasing the number of women on the Court to three. But he was unable to shift the Court dramatically in a progressive direction, despite the death of Antonin Scalia — the intellectual center of the conservative Court — late in Obama’s second term. Obama’s nomination of Merrick Garland, a moderate, was stymied by a recalcitrant Republican-led Senate.

So too, despite a conservative majority on the Court, conservatives’ hopes to change the fundamental terms of the existing constitutional settlement were not realized. Obama’s signature social welfare program — the Affordable Care Act — survived constitutional challenge, while marriage rights were extended to gays and lesbians. The constitutional doctrine the Supreme Court elaborated in the middle of the twentieth century had two essential features: the broad legitimacy of the federal administrative state, especially in the realm of economic regulation, and the judicial protection of civil rights and civil liberties. Those two pillars of Supreme Court jurisprudence mostly survived, even as conservative justices cut back significantly on racial civil rights, expanded gun rights, and extended speech and religious rights to corporations.

With Donald Trump’s election in 2016, Obama lost the appointment that would have shaped the Court for years. Scalia’s replacement, Neil Gorsuch, appears to share Scalia’s judicial approach. Ideologically, the Court looks about the same as it did during Obama’s two terms in office. Trump’s ascendancy, however, raises the possibility that a new appointment will substantially alter what has been a fairly stable, fifty-year constitutional settlement.
H/t: Legal Theory Blog. The New York Times's report on the conference that produced the volume is here.

Brown's "Alexander Hamilton and the Development of American Law"

Kate Elizabeth Brown, an assistant professor of history and political science at Huntington University, has published Alexander Hamilton and the Development of American Law, with the University Press of Kansas:
Alexander Hamilton is commonly seen as the standard-bearer of an ideology-turned-political party, the Federalists, engaged in a struggle for the soul of the young United States against the Anti-Federalists, and later, the Jeffersonian Republicans. Alexander Hamilton and the Development of American Law counters such conventional wisdom with a new, more nuanced view of Hamilton as a true federalist, rather than a one-dimensional nationalist, whose most important influence on the American founding is his legal legacy.

In this analytical biography, Kate Elizabeth Brown recasts our understanding of Hamilton’s political career, his policy achievements, and his significant role in the American founding by considering him first and foremost as a preeminent lawyer who applied law and legal arguments to accomplish his statecraft. In particular, Brown shows how Hamilton used inherited English legal principles to accomplish his policy goals, and how state and federal jurists adapted these Hamiltonian principles into a distinct, republican jurisprudence throughout the nineteenth century. When writing his authoritative commentary on the nature of federal constitutional power in The Federalist, Hamilton juxtaposed the British constitution with the new American one he helped to create; when proposing commercial, monetary, banking, administrative, or foreign policy in Washington’s cabinet, he used legal arguments to justify his desired course of action. In short, lawyering, legal innovation, and common law permeated Alexander Hamilton’s professional career.
Among the endorsements:
“Katherine Brown’s forcefully and persuasively argued book reminds us that Alexander Hamilton’s contributions to the nation included his work in law. He was a founding father of American law whose jurisprudence greatly influenced early American constitutionalism. Scholars generally regard Hamilton as a relentless defender of strong central government, but Brown makes the case for Hamilton’s more balanced federalism and his introduction of the doctrine of corresponding powers. Although he regarded law as an instrument of republican statecraft and is rightly known for his public lawmaking role, Hamilton was also an accomplished courtroom advocate with a large practice. Brown’s work will restore Hamilton to the place he occupied in the history of American law.”
—Peter Charles Hoffer, author of Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review
Professor Brown discusses her book here.

Davis Center fellowships

The Shelby Cullom Davis Center at Princeton's History department will feature the theme, "Law & Legalities" for the coming two academic years. Applications for one- and two-semester fellowships are due on Dec.1, 2017:

This two-year seminar will bring together visiting scholars working on law in societies around the world and throughout human history, on topics including (but not restricted to) state administration, gender and sexuality, race, religion, property, science, environment, technology, war, migration, commerce, medicine, disability, incarceration, and human rights. How have legal, illegal, quasi-legal, and extra-legal forms of social order interacted in different periods and places? We will consider the historical possibilities and predicaments that have emerged within legal and juridical systems (both ‘hard’ and ‘soft’), as well as the conflicts that have arisen from the overlapping jurisdictions of custom, community, religion, nation-state, empire, and international bodies. 
Fellowships are awarded to employed scholars who are expected to return to their position.  Verification of employment and salary will be requested prior to approval by the Dean of the Faculty.  PhD required.  To apply for a visiting position, please link to: https://dof.princeton.edu/academicjobs. The deadline for receipt of applications and letters of recommendation for fellowships for 2018/2019 is December 1, 2017, 11:59 p.m. EST. Applicants must apply online and submit a CV, cover letter, research proposal, abstract of proposal, and contact information for three references. 
Further information is available here and here.

Sunday, August 20, 2017

Sunday Book Review Roundup

In the The Atlantic is a review of Lincoln Mullen's The Chance of Salvation: A History of Conversion in America.  

Svetlana Alexievich's "magnificent and harrowing" The Unwomanly Face of War: An Oral History of Women in World War II is reviewed in both The Atlantic and The New York Times.

In addition to being reviewed in this week's New York Times, Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America is reviewed twice in the Boston Review.  Bethany Moreton calls MacLean's work is "indispensable reading" that "adds a critical storyline to the complex and multi-causal conservative counterrevolution." The work joins a growing body of scholarship that seeks to "clothe the neoliberal intellectual apparatus in three-dimensional historical specificity" and, in particular, richly historicizes the particular milieu from which James M. Buchanan's public choice school of political economy emerged -- i.e., the fight against voting rights and desegregation.  The result is a work that does much to illuminate the sources of the "unrelenting assaults on political institutions" that have characterized a great deal of the politics of the neoliberal present.  In the wake of Charlottesville, the second review points to her work's especial value as a chronicle of "the long gestation period of the current upsurge of white supremacist and anti-democratic sentiment."

At the New Books Network Maurice Samuels speaks about his The Right To Difference: French Universalism and the Jews.  Also on the site, Betty S. Anderson discusses her A History of the Modern Middle East and over one million other books are available for Amazon Kindle. Learn more A History of the Modern Middle East: Rulers, Rebels, and Rogues.

Intellectual theorist and historian Mark Lilla's The Once and Future Liberal: After Identity Politics seems to be attracting significant attention is reviewed in both The Washington Post and The New York Times.  (Lilla is also interviewed by NPR.)

Ibram X. Kendi's Stamped from the Beginning: The Definitive History of Racist Ideas in America is reviewed in the New Statesman.  Also reviewed in the publication is John Lloyd's The Power and the Story: The Global Battle for News and Information.

In the Los Angeles Review of Books is a review of Keri Leigh Merritt's Masterless Men: Poor Whites and Slavery in the Antebellum South. Meritt "makes creative use of a wide range of other sources, including county court cases, coroner’s reports, jail records, Civil War veterans’ questionnaires, slave narratives, and accounts written by travelers, abolitionists, and slaveholders" in order to plumb the history of poor, antebellum whites.  In so doing, her work shows the path travelled by poor Southern whites from "pariahs" to their inclusion "into the system of white privilege," a path that was neither "ever-present nor inevitable."

In the London Review of Books is a review of Thomas Laquer's The Work of the Dead: A Cultural History of Mortal Remains.

Yuri Slezkine's The House of Government: A Saga of the Russian Revolution is reviewed in both the Los Angeles Review of Books and the The New York Times.  Slezkine's history of the Bolshevik House of Government and the millenarianism of the larger Russian Revolution is ultimately, says the NYT's review, a narrative exploration of "the possibilities and limits of social engineering."

At Public Books is a review of Leigh Eric Schmidt's Village Atheists: How America’s Unbelievers Made Their Way in a Godly Nation.  Also reviewed at Public Books is Peter Dauvergne's Environmentalism of the Rich.

Herb Boyd's Black Detroit: A People's History of Self-Determination is reviewed in the Chicago Tribune.

Saturday, August 19, 2017

Weekend Roundup

  • A statue of Clarence Darrow has just gone up in the county courthouse in Dayton, Tennessee, where it joins one of William Jennings Bryan. 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, August 18, 2017

JOTWELL roundup: on Pfander, Fortner, Hinton, Chused & Williams

As regular readers know, JOTWELL's Legal History section is a great source for identifying must-read work in our field. Lately I've noticed lots of other JOTWELL sections also calling attention to historical work. Here's a roundup:

Writing for the Courts Law section, Steve Vladeck has posted an admiring review of James Pfander's Constitutional Torts and the War on Terror (2017).

Writing for the Criminal Law section, Margareth Etienne directs readers to Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (2015).

A "Poverty Law" contribution, by Wendy Bach, flags Elizabeth Hinton's much-admired From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (2016).

And Janet Halley's review for the Family Law section takes up Richard Chused and Wendy Williams, Gendered Law in American History (2016).

Using film to teach non-US & global legal history

[This is the second of two posts on film & pedagogy. The first is on US legal history.]
Tokyo Trial Poster
Credit: IMDb

What films (and film clips) do you use when teaching legal history? This summer, we asked many of you this question (H/t: Law & History CRN). We received an avalanche of responses. Here they are, hopefully just in time for your fall syllabus needs. (Most responders describe films and video clips shown in class, but some assign videos to be watched in advance.)

For teaching global and non-US legal history:
  • Yael Berda: I use the first episode of Rome to explain Max Weber’s concept of imperium in Roman law. I show Gandhi to talk about perceptions of citizenship and legal status within the British empire.
  • Levi Cooper: When teaching Jewish legal history, I use clips (not full movies), or even just stills from movies to illustrate a point, start a discussion, pique interest, or as an aide-memoire. For example:
o   When teaching about the centrality of dispute and dissent in Jewish law, I start with a clip from Fiddler on the Roof ("he's right and he's right, they can't both be right...")
o   When teaching about the reaches of Jewish law as a religious legal system that is not based on political borders, I show a clip from The Martian ("Mark Watney, space pirate").
o   I open my class on the minority opinions in Jewish law with a still from Minority Report.

More after the jump.

On Charlottesville

Legal historians have been speaking out in the wake of violent white supremacist demonstrations in Charlottesville:

Risa Goluboff, dean of UVA law, has issued multiple statements, including this one. Here’s an excerpt:
As I seek to understand these events, the historian in me moves away from the present to contemplate both the past and the future. When the story of the long march of civil rights is told, this moment will—I hope, if I don’t quite predict—be seen as a late and ultimately futile response to the successes of the freedom struggles of the last fifty years. Those successes are far from complete. This weekend was a disturbing reminder that progress is all too often accompanied by reaction. In the words of Thurgood Marshall: “I wish I could say that racism and prejudice were only distant memories. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust…. We must dissent because America can do better, because America has no choice but to do better.”
Not surprisingly, given his work on Confederate monuments and the legacies of slavery on university campuses, Alfred Brophy (University of Alabama) has been much sought-after by journalists. He’s quoted here, in an article at FiveThirtyEight. Also here, in Vox.

The New York Times ran an article titled "Historians Question Trump’s Comments on Confederate Monuments." It includes quotes from legal historians John Fabian Witt (Yale) and Annette Gordon-Reed (Harvard).

Witt also recently chaired a Yale University committee charged with considering the renaming of Calhoun College and establishing a general set of principles for navigating this terrain. As journalist Matthew Yglesias pointed out on twitter, the committee's report includes some useful concepts for thinking about Charlottesville and Confederate monuments.

Giuliana Perrone (University of California, Santa Barbara) has an op-ed in Haaretz, titled "Charlottesville Proves: Confederate Monuments Always Embodied a White Heritage of Hate."

Steven Lubet (Northwestern) has an op-ed up at CNN.com: "How much longer can decent people serve in Trump's cabinet?"

Over at the Huffington Post, Jane Dailey (University of Chicago) writes about Baltimore's Confederate monument -- which she says "was never about 'history and culture.'"

And at History News Network, Matthew Crow (Hobart and William Smith Colleges) discusses "Jeffersonian Democracy after Charlottesville."

If we've missed anything, let us know and we'll update the post. Please also consider this message from the American Historical Association:
In the wake of the Charlottesville tragedy, historians across the country are providing important historical context and insight to the public. If you have written an op-ed, given an interview, or otherwise participated in a media conversation about the importance of historical thinking and knowledge within the current debate, please send a link to us at jgreen@historians.org. We will be compiling our members’ statements on a resource page that all historians and educators can use.

Thursday, August 17, 2017

Vote Now! (and a Head's Up on Your ASLH Membership)

"The annual ASLH election is now in progress," announces a notice that's just up on the website of the American Society for Legal History.  "From August 15 to September 15, members in good standing of the ASLH will be voting for 3 elections (president-elect, board of directors, nominating committee)."  There's more on procedures for voting on-line, but right now we want to draw your attention to the following paragraph:
If you have not received a ballot but expected to receive one, it means that you are considered a lapsed member of the society.  [Unless the email ended up in your spam folder.]  Please contact Cambridge University Press to renew your subscription to the LHR and simultaneously renew your membership with the ASLH. Any lapsed member who renews their membership via CUP before September 1 may send proof of that renewal to either Patricia Minter (patricia.minter@wku.edu) or Sally Hadden (sally.hadden@wmich.edu) to be sent a ballot in the current election. All members who renew prior to September 1 will receive an email ballot on September 2 from Vote-Now. Individuals who renew after September 1 will not vote in the 2017 election.
And if you've never been a member of ASLH, now's a great time to join!

Using film to teach US legal history

[This is the first of two posts on film & pedagogy. The second is on global and non-US legal history.]

12 Years a Slave Poster
Credit: IMDb
What films (and film clips) do you use when teaching legal history? This summer, we asked many of you this question (H/t: Law & History CRN). We received an avalanche of responses. Here they are, hopefully just in time for your fall syllabus needs. (Most responders describe films and video clips shown in class, but some assign videos to be watched in advance.)

For teaching US legal history:
  • Winston Bowman: I frequently use two clips: (1) the scene from Dirty Harry in which a prosecutor tells Clint Eastwood's character that a serial killer will be set loose because he failed to follow proper procedures. Rather oddly, the scene includes a judge and professor from Berkeley who scolds him for failing to obtain a warrant. (2) a surprisingly affecting cartoon from Orson Welles' adaptation of Kafka's The Trial. The cartoon is an interpretation of "Before the Law," a parable about the tantalizing and confounding promise of access to justice that is included in the novel and was also published as a short story. 
  • Al Brophy: I brought my legal history seminar students (it was a seminar on slavery and property) to 12 Years a Slave back when it was a first run movie.
  • Orna Alyagon Darr: I use Gideon's Trumpet that tells the story of Gideon v. Wainwright when I teach the history of the right to counsel & the public defenders system.
More after the jump.

Wednesday, August 16, 2017

McElwain on the Anomalous Life of the Japanese Constitution

Kenneth Mori McElwain, an associate professor at the University of Tokyo’s Institute of Social Science, has published a substantial piece of comparative constitutional history on nippon.com, The Anomalous Life of the Japanese Constitution.  The website explains:
The Japanese Constitution was drafted in the early postwar years and has never been amended. In this essay, a constitutional history and politics specialist examines Japan’s basic law as compared to its counterparts around the world.  Do its brevity and reliance on legislation to alter its impact mean that Prime Minister Abe Shinzō does not need to focus on amending the Constitution to achieve his policy goals?

Bond on an Austrian Interned in Australia in WW1

Catherine Bond, University of New South Wales, has posted 'Through the Dreadful Circumstances of Fate, a Broken Man’: Anton Reznicek, War and Australian Law, 1911-1930, which is to appear in Legal History 17 (2017): 46:
This article examines the life of Anton Reznicek, an Austrian man who came to Australia to test a patented diving suit and was forced to remain in the country as a result of the outbreak of World War I. It traces Reznicek’s arrival, internment and deportation, and the 11-year campaign of correspondence he undertook seeking to receive either the restoration of, or remuneration under, his Australian patent rights. Reznicek’s story is unique on account of the fact that, through his choices, he managed to interact with, or be affected by, a majority of the most significant laws enacted in Australia during the war. This article pieces together a story scattered across archival records, newspaper articles and personal documents, providing an important case study into the individual legal experience in World War I Australia.

War, Law and Restraint: The SHAFR Panel

War, Law, and Restraint, that panel organized by LHB Founder and SHAFR President Mary Dudziak at this summer’s annual meeting of the at the Society for Historians of American Foreign Relations is now available on C-SPAN’s website.  Participants were, in addition to Professor Dudziak (Emory Law), my Georgetown Law colleague Rosa Ehrenreich Brooks; Jack Landman Goldsmith, Harvard Law School; Helen Kinsella, University of Wisconsin-Madison; and John Fabian Witt, Yale Law School.

Tuesday, August 15, 2017

A Podcast on Wong Kim Ark

Wong Kim Ark (wiki)
The new episode of the Washington Post’s podcast, Constitutional, centered on Wong Kim Ark (1898), is availableErika Lee, University of Minnesota, and Lucy Salyer, University of New Hampshire, comment.

Brauneis on the Supreme Court's Deadlock on Fair Use, 1958 & 1974

Robert Brauneis, George Washington University Law School, has posted Parodies, Photocopies, Recusals, and Alternate Copyright Histories: The Two Deadlocked Supreme Court Fair Use Cases:
Before any of the Supreme Court’s trio of fair use decisions – Sony v. Universal City Studios, Harper & Row v. Nation, and Campbell v. Acuff-Rose – there were the 1958 case of CBS v. Loew’s and the 1974 case of Williams & Wilkins v. United States: two copyright infringement suits that had turned on fair use in the lower courts, and that the Supreme Court had decided to review and had heard argument in. In both of those cases, however, one of the Justices recused himself, and the others deadlocked 4-4, leading to summary affirmance of the lower court judgments. How would the Court have decided those cases without the recusals? How would the decisions have affected the development of copyright and fair use doctrine? And were the recusals justified?

The papers of a number of Justices, combined with other historical materials, provide surprisingly good answers to those questions. In CBS v. Loew’s, a case in which the Ninth Circuit had held that a Jack Benny parody of the movie Gaslight infringed copyright in that work, the Supreme Court voted to reverse. Justice Douglas started to draft an opinion for the Court, only to recuse himself to pursue a business opportunity with CBS that never materialized. In Williams & Wilkins, a case in which the Court of Claims had held the photocopying practices of two government libraries to fall within the scope of fair use, the Court would also most likely have reversed, with Justice Blackmun providing the fifth vote to decide that the practices were infringing. However, Blackmun recused himself because the Mayo Clinic, whose employment he had left fifteen years previously, took the position that the photocopying was fair use, and was one of thirteen parties signing on to one of many amicus briefs in the court below. Justice Douglas’s recusal, I argue, was unjustified, and Justice Blackmun’s dubious at best.

In a world in Douglas and Blackmun had not recused themselves and the Court had decided CBS and Williams & Wilkins, how could copyright law look different than it now does? I explore that question at three different moments in time. First, I argue that immediately after a CBS v. Loew’s decision in 1958, there might not have been a fair use doctrine separate from a general inquiry into copyright infringement. Second, I contend that just after a Williams & Wilkins decision in 1974, fair use doctrine would likely have focused entirely on what have become known as “productive” or “transformative” uses, while excluding “non-productive” uses and eschewing any distinction between commercial and noncommercial uses. Finally, I consider the present moment, and consider the possible continuing impact of hypothetical decisions in CBS and Williams & Wilkins. Ultimately, however, my goal is not to prove exactly how CBS or Williams & Wilkins would have come out, or would have diverted the path of fair use doctrine or copyright infringement analysis. Rather, I am interested in using the materials that are available about those cases, and the realization that the Supreme Court came very close to deciding them, to free up my imagination, and yours, about how copyright law and the fair use doctrine could be different than they are.

Monday, August 14, 2017

Bank on the Respectability of Tax Avoidance

Steven A. Bank, UCLA School of Law, has posted When Did Tax Avoidance Become Respectable? which is forthcoming in the Tax Law Review:
No matter how many tax scandals are revealed in the media – and there have been many in the past year, involving a diverse set of taxpayers ranging from Donald Trump to Apple – what is most remarkable is that, by and large, the public has considered them relatively non-scandalous. This was not always the case. During the 1930s, even the most innocuous tax avoidance maneuvers, such as buying tax-exempt bonds, were attacked as morally suspect. When did that change and why? This Article offers a novel attempt to gauge the respectability of tax avoidance – using a unique, hand-collected dataset of newspaper advertisements for tax planning services in prominent national papers between 1930 and 1970 – and concludes that a shift occurred after World War II. The Article then explains the reason for this shift, suggesting that a combination of extremely high rates, a broadened base of taxpayers subject to that rate, and a deterioration of the wartime consensus for the rate structure laid the foundation for the respectability of tax avoidance in the 1950s and 1960s. In effect, just as the high wartime rates for the wealthy had been justified as a means of compensating for the sacrifice of the poor during the war, the pursuit, and tacit approval, of tax avoidance after the war was a means of compensating for the high rates at a time when the sacrifice rationale for them had ceased to be compelling. This history parallels the modern experience with corporate tax shelters and has lessons for those seeking to reform the current tax system.

Campbell on Natural Rights and the First Amendment

Jud Campbell, University of Richmond School of Law, has posted Natural Rights and the First Amendment, which is forthcoming in the Yale Law Journal.
The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding-Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding-Era elites shared understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Sunday, August 13, 2017

Sunday Book Review Roundup

How should you entertain yourself this summer weekend?  Well I don't know . . . this blog can only provide so much!  But you're welcome to read these book reviews.

In Black Detroit: A People’s History of Self-Determination, now reviewed in the Washington Post, Herb Boyd “surveys the sights and sounds, personalities and events that defined Detroit as it rose to become the hub and pulse of black working-class life and later devolved to a struggling post-industrial ghost town.”

In the New York Times, you can read Travis Mallon’s review of William Stahr’s Stanton: Lincoln’s War Secretary. Mallon notes that “Stahr issues appropriate scoldings” regarding Stahr’s wartime civil liberties policies, but stays “aware of the overwhelming circumstances.”

In the NYRB, Michael Greenberg’s Tenants Under Siege: Inside New York City’s Housing Crisis addresses Richard Rothstein’s “revelatory” The Color of Law: A Forgotten History of How Our Government Segregated America. “We speak nowadays with contrition of redlining," he says. "We may soon look with equal shame on what might come to be known as bluelining: the transfiguration of those same neighborhoods with a deluge of investment aimed at a wealthier class.”

Also in the NYRB, Ian Buruma writes about The Memory of Justice, the 1976 documentary film directed by Marcel Ophuls. The initial version of the film, Ophuls was forced by the producers to focus on American and French war crimes in Vietnam and Algeria. In the 2015 version, which reflects ten years of reconstruction by Martin Scorsese’s Film Foundation and Paramount, the Ophuls’ original emphasis on Nazi Germany and the Nuremburg trials is resurrected. Relatedly, the New Books Network features an interview with Michael Barnett about a new edition of his seminal text Eyewitness to a Genocide: The United Nations and Rwanda, a “careful survey of the forces that led to UN inaction in the spring and early summer of 1994,” that is “simultaneously a history, an analysis of institutional culture, and a disquisition on moral responsibility.” This is the first in the NBN’s new series on Rwanda.

Also in the NBN, an interview with Rosalind Rosenberg about Jane Crow: The Life of Pauli Murray (which is a multi-layered and rich biography of Pauli Murray, an activist, lawyer and Episcopal priest whose life intersected with the most significant civil and human rights issues of the twentieth century) and one with Joyce Salisbury about Rome’s Christian Empress: Galla Placidia Rules at the Twilight of the Empire (which covers Galla Placida’s time as regent for Valentinian, when “she dealt with the problems of barbarian invasions, rebellious commanders, and the many other challenges of an empire in decline.”).

In The Nation, Michael Kazin reviews J. M. Opal’s Avenging the People: Andrew Jackson, the Rule of Law, and the American Nation, Kazin argues that Jackson “poses—or at least ought to pose—an interpretive dilemma” for modern historians. For one camp, the one that Opal seems to inhabit, Jackson’s era was characterized by the “ruthless exponent of policies that expanded slavery and pushed Native Americans out of their homelands.” For the other, he was a “self-made man who railed against the well-born elite, he also persuaded many white farmers and wage earners—both immigrants and the native-born—that a lack of privilege should not prevent them from thriving.” The magazine also features a review of The Rise of a Prairie Statesman: The Life and Times of George McGovern by Thomas J. Knock.

The Guardian celebrates Kumari Jayawardena’s influential work Feminism and Nationalism in the Third World on the occasion of its republication. “More than three decades after it first came out, the book remains the best introduction to the history of women’s movements in Turkey, Egypt, Iran, India, Sri Lanka, Indonesia, the Philippines, China, Vietnam, Korea and Japan. It takes us into the lives and ideas of a host of women and men who sought reform and revolutionary transformation.”

The Guardian also includes a review of Robert Winder’s The Last Wolf: The Hidden Springs of Englishness, a “patchwork of history” on “the conundrum of Englishness,” and Jared Rubin’s Rulers, Religion and Riches: Why the West Got Rich and the Middle East Did Not, which takes the long view and tackles the “dramatic reversal of fortunes” between the Middle East and western Europe. (“By 1600, however, the Islamic world had fallen behind western Europe, and for centuries the Middle East has been beset by slow growth.”).

Saturday, August 12, 2017

Weekend Roundup

  • The historians' brief in the Emoluments Clause case, CREW v. Trump, is out.  Signatories are Jed Handelsman Shugerman, John Mikhail, Jack N. Rakove, Gautham Rao, and Simon Stern.
  • Update: according to a story in the Hartford Courant, with the cessation on August 25 of its use "for the purpose of a county courthouse," the land on which Litchfield's 250-year old courthouse sits will revert to "the heirs of the original six proprietors who leased the land to the county in 1803."
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 11, 2017

Hiring Update: Zulfiqar to Rutgers-Camden

More good news from the hiring front: Adnan Zulfiqar has joined the faculty at Rutgers-Camden as Assistant Professor of Law. Cribbing from the Rutgers website:
Adnan Zulfiqar's scholarship centers on better understanding the theoretical and practical dynamics of legal change in domestic and global contexts. His interdisciplinary approach particularly relies on legal history, including history of the present, to uncover potential conflicts and innovations for legal reform. Zulfiqar’s primary fields of inquiry are criminal law, the laws of war (IHL) and Islamic law. In criminal law, his work explores questions on criminal codification, over-criminalization, and abuse of authority. In Islamic law, he focuses on the formulation, evolution and application of Islamic legal concepts, with particular emphasis on legal obligation in times of war and revolution.
Before joining the faculty at Rutgers, Zulfiqar was a George Sharswood Fellow at the University of Pennsylvania Law School and a Harry F. Guggenheim Fellow. He previously consulted with the United Nations Development Programme (UNDP) and the International Development Law Organization (IDLO), helping draft penal codes and commentaries for the Federal Republic of Somalia and the Republic of the Maldives. Zulfiqar also worked as an Associate in the Investigations, White Collar and Fraud Group at Hogan Lovells, LLP (Washington, D.C.) and was a Legislative Staffer for U.S. Senator Max Cleland (D-GA). He is currently a Fellow at the Truman National Security Project.
Zulfiqar received his J.D. from the University of Pennsylvania Law School and has an M.L.S. in International Affairs (Georgetown) and M.A. in Near Eastern Languages & Civilizations (UPenn). He is currently completing his Ph.D. dissertation on collective duties in Islamic law, with a specific focus on jihad and social responsibility, at the University of Pennsylvania.
Congratulations to Adnan Zulfiqar and to Rutgers! If you have hiring updates for us to share, please feel free to email us.

CFP: Social Histories of Neoliberalism

In light of the deep connections between social history and legal history, this Call for Papers may be of interest:

Social Histories of Neoliberalism: CFP for Special Issue of the Journal of Social History

What does the history of neoliberalism look like from the bottom-up? In recent years, historians have identified the 1970s and the 1980s as the dawning of a new era in global political economy. Its contours are complex and contradictory: old modes of production have been disrupted by technological transformations, new forms of financialization, and a shifting global geography of work; state regulation of the economy has been rolled back and delegitimized; the emergence of social movements committed to new forms of freedom has been accompanied by new forms of coercion and policing. While intellectual, economic, and political historians have begun to sketch the “commanding heights” of these transformations, we know far less about the lived experience of these important developments. And while these transformations in political economy were clearly global in their implications, our narratives of these years remain largely centered on the U.S. and Western Europe.
The Journal of Social History is preparing a special issue devoted to exploring the history of neoliberalism at the grass-roots, the margins, and the periphery. “Social Histories of Neoliberalism” will feature articles revealing the lived experience of recent economic and political transformations from a variety of ignored locations around the world. We are particularly interested in articles that use empirically grounded case-studies to illuminate or challenge accounts of macro-level historical change, or that deploy or interrogate theoretical categories in innovative ways. And we are very open to transnational or comparative approaches that seek to unite the study of more than one geographic location (particularly non-Western locations). But we are deliberately leaving our terms open and our definitions broad. “Social Histories of Neoliberalism” is intended to draw together a variety of articles that would not otherwise be placed in dialogue and, in so doing, help to define and inspire new approaches to the history of these important decades.
Please send a cv and an abstract of no more than 600 words to Sam Lebovic (slebovic[at]gmu.edu) by September 1. Articles selected for inclusion in the volume will be due by March 15, 2018, and will then be sent out for peer review.

Hiring Update: Mitchell to Purdue

More hiring news: Mary X. Mitchell has joined the history department at Purdue University as an assistant professor. From the Purdue website:
Mary X. Mitchell joins Purdue as an assistant professor in the history department. She earned her PhD in history and sociology of science from the University of Pennsylvania in 2016. Before beginning her doctorate, Mitchell worked in university technology licensing, earned her JD, practiced law, and served as a judicial law clerk to the Honorable Anthony J. Scirica of the United States Court of Appeals for the Third Circuit.
She is currently an Atkinson Postdoctoral Fellow in Sustainability at Cornell University.
Mitchell is broadly interested in the intersections between law, technology, and science. Her research explores the transnational legal histories of nuclear weapons and energy. She is completing a book manuscript tentatively titled, Test Cases: American Law, Nuclear Weapons, and Extraterritorial Power in the Postwar Pacific. Test Cases uses legal conflict over nuclear weapons testing to trace the contours of America’s Pacific expansion following World War II. Mitchell is concurrently beginning research for a new book about the history of liability, insurance, and compensation frameworks for nuclear reactor incidents.
She has published articles in Environmental History, the Journal of the History of Biology, and Change over Time. Her research has been supported by funders including the William Nelson Cromwell Foundation. Mitchell will be on leave during the 2017-2018 school year.
Congratulations to Mary Mitchell and to Purdue! Do you have hiring news? Feel free to email us.

Thursday, August 10, 2017

Special issue: The Child at Risk

We've learned of a special issue of SOLON: Journal of Law, Crime & History 7:1 (2017) on "The Child at Risk in Modern Britain." Daniel J. R. Grey is the guest editor. Here is the line-up:

Daniel J. R. Grey, Introduction: The Child at Risk in Modern Britain, 1-15

Margaret L. Arnot, Perceptions of Parental Child Homicide in English Popular Visual Culture 1800-1850, 16-74

Kim Stevenson,
, ‘Children of a Very Tender Age Have Vicious Propensities’: Child Witness Testimonies in Cases of Sexual Abuse, 75-97

Judith Rowbotham, When to Spare the Rod? Legal Reactions and Popular Attitudes Towards the (In)Appropriate Chastisement of Children, 1850-1910, 98-125

Victoria Bates, The Child as Risk: Precocious Girls and Sexual Consent in Late Victorian Britain, 126-144

Kate Bradley, Saving the Children of Shoreditch: Lady Cynthia Colville and Needy Families in East London, c.1900-1960, 145-163
Conference Report

Rhiannon Pickin, Lives Trials and Executions, Liverpool, 24 May 2017, 164-168

Further information is available here.

Hiring Update: Lvovsky to Harvard Law

More good news from the hiring front: Anna Lvovsky has joined the faculty at Harvard Law School as an Assistant Professor of Law. Cribbing from the HLS website:
Anna Lvovsky is an Assistant Professor of Law at Harvard Law School, where she teaches American legal history, the history of policing, criminal law, and evidence. Professor Lvovsky’s scholarship focuses on the legal and cultural dimensions of policing, judicial uses of professional knowledge, and the regulation of gender, sexuality, and morality. Her recent work examines judicial deference to police expertise and the role of moral judgment in the Supreme Court’s Fourth Amendment jurisprudence.
Professor Lvovsky’s book project, Queer Expertise: Urban Policing and the Discovery of the Gay World, 1920-1970, under contract with the University of Chicago Press, examines how the police drew on a combination of scientific expertise and lay stereotype about homosexuality to shape the legal status of gay men in the United States. As a dissertation, the project received the 2016 Julien Mezey Dissertation Award from the Association for the Study of Law, Culture, and the Humanities.
Prior to joining HLS, Professor Lvovsky was an Academic Fellow at Columbia Law School. She clerked for Judge Michael Boudin of the 1st U.S. Circuit Court of Appeals and for Judge Gerard E. Lynch of the 2nd U.S. Circuit Court of Appeals. Professor Lvovsky graduated magna cum laude from Harvard Law School, where she was articles co-chair of the Harvard Law Review and the recipient of the LGBTQ Writing Prize, and received her Ph.D. in the History of American Civilization from Harvard University. She earned a B.A. summa cum laude from Yale College.
Congratulations to Anna Lvovsky and to Harvard Law! Do you have other hiring news for us to pass along? Feel free to email us.

Wednesday, August 9, 2017

Franklin Research Grants

[We have the following, updated information on the Franklin Research Grant program of the American Philosophical Society.]

Scope: This program of small grants to scholars is intended to support the cost of research leading to publication in all areas of knowledge. The Franklin program is particularly designed to help meet the cost of travel to libraries and archives for research purposes; the purchase of microfilm, photocopies or equivalent research materials; the costs associated with fieldwork; or laboratory research expenses.

Eligibility: Applicants are expected to have a doctorate or to have published work of doctoral character and quality. Ph.D. candidates are not eligible to apply, but the Society is especially interested in supporting the work of young scholars who have recently received the doctorate.

Award: From $1,000 to $6,000.

Deadlines: October 2, 2017, and December 1, 2017; notification in January 2018 and March 2018.
American Philosophical Society

Augustine-Adam on Mexico's Chinese Labor Law Cases

Kif Augustine-Adams, Brigham Young University J. Reuben Clark Law School, has posted, in Spanish, By a Single Vote: Quong Fat and Chinese Amparo Cases before the Mexican Supreme Court, 1917 to 1932.  Here is the English abstract:
In 1919, Quong Fat and eighteen other plaintiffs of Chinese extraction sought amparo, judicial relief, in Mexico’s federal court system against the fines and imprisonment they suffered for failing to comply with Sonora’s Labor Law. Sonora’s new law required all businesses to employ at least 80% Mexicans. The decision that the Supreme Court of Mexico rendered in the case is one of the first in a series of petitions that Chinese brought before the Supreme Court of Mexico in the 15-year period from 1917, when Mexico inaugurated a new Constitution after the bitter fratricide of revolution, to 1932, when Sonora violently expelled Chinese from the state. This project focuses specifically on amparo petitions brought by Chinese living in Sonora because that state explicitly enacted into law the significant social discrimination that Chinese faced throughout Mexico, as they did around the world, in the late 19th and early 20th centuries. Application of Sonora’s laws by municipal presidents, police, state court judges, civil registrars and other government officials imposed significant discrimination on Chinese. Even where Sonoran legislation was racially neutral on its face, as was the 1919 Labor Law, the discriminatory impact of Sonora’s laws fell heavily on the Chinese population.

Moreover, Sonora’s discrimination against Chinese provides a particularly compelling context for understanding the multifaceted tensions between federal and state power and among the three branches of government. Mexico’s Supreme Court and federal judiciary played a particular role in moving post-revolutionary Mexico from violence towards law as its organizing principle.

This study first presents a detailed analysis of the political and legal context that led Quong Fat’s case to the Supreme Court. An analysis of the Supreme Court’s reasoning follows, considering the process by which the Supreme Court found no violations of the new Constitution under either Article 4’s right to work or Article 21´s allocation of judicial and administrative authority. The Supreme Court revoked the lower court’s grant of amparo against fines and imprisonment but upheld amparo for the forced closures of Chinese businesses. Ten other cases follow, cases in which the Supreme Court considered enforcement against Chinese of Sonora’s 1919 Labor Law and its 1931 amendment. The Court decided all of these cases on procedural grounds rather than on the merits. In conclusion, the study observes themes to be drawn from the cases including the substantive meaning of Articles 4 and 21, the development of Supreme Court procedure and jurisprudence, the value of lawyers, and the shifting and often volatile relationship between the federal judiciary, federal executive, and state authority in post-revolutionary Sonora.

Hiring Update: Farbman to Boston College

Here's some news from the hiring front: Daniel Farbman has just joined the faculty at Boston College as an Assistant Professor of Law. Cribbing from the BC website:
[Farbman] teaches and writes in the areas of local government law, legal history, constitutional law, the legal profession, civil rights, and property. His work focuses on the legal history of radical reform movements in public law both from an institutional perspective and from the perspective of the practice of cause lawyering.
After he graduated from Amherst College in 2001, Dan spent a few years in New York City trying (and failing) to make it as a professional actor before he enrolled at Harvard Law School. After graduating in 2007, he was a clerk for Judge Margaret Morrow on the Central District of California in Los Angeles before beginning a Skadden Fellowship at Advancement Project in Washington, D.C. At Advancement Project he worked with community organizers around the country on grassroots efforts to fight racial injustice in public education with a particular focus on the school to prison pipeline.
After leaving practice, Dan pursued a PhD in American Studies at Harvard. For three years prior to joining Boston College, he was a Climenko Fellow and Lecturer on Law at Harvard Law School. While at Harvard, Dan taught Legal Research and Writing and a seminar on Legal Realism.
Congratulations to Daniel Farbman and to BC Law! Other hiring news? Please let us know!

Ranney on Wisconsin and the Shaping of American Law

New from the University of Wisconsin Press: Wisconsin and the Shaping of American Law, by Joseph A. Ranney (Marquette University Law School). A description from the Press:
State laws affect nearly every aspect of our daily lives—our safety, personal relationships, and business dealings—but receive less scholarly attention than federal laws and courts. Joseph A. Ranney looks at how state laws have evolved and shaped American history, through the lens of the historically influential state of Wisconsin.

Organized around periods of social need and turmoil, the book considers the role of states as legal laboratories in establishing American authority west of the Appalachians, in both implementing and limiting Jacksonian reforms and in navigating legal crises before and during the Civil War—including Wisconsin's invocation of sovereignty to defy federal fugitive slave laws. Ranney also surveys judicial revolts, the reforms of the Progressive era, and legislative responses to struggles for civil rights by immigrants, women, Native Americans, and minorities in the nineteenth and twentieth centuries. Since the 1960s, battles have been fought at the state level over such issues as school vouchers, voting, and abortion rights.
More information is available here.

Tuesday, August 8, 2017

Bamzai on Deference to Executive Statutory Interpretation in Marbury

CJ John Marshall (LC)
Aditya Bamzai, University of Virginia Law, has posted Marbury v. Madison and the Concept of Judicial Deference, which appeared in the Missouri Law Review 1057 81 (2016): 1057-1073:
This paper, prepared for a symposium on administrative law hosted by the University of Missouri School of Law, analyzes the relationship between Chief Justice Marshall's opinion in Marbury v. Madison and the concept of judicial deference to executive statutory interpretation.
H/t: Legal Theory Blog

Vanderbilt launches legal history undergraduate major

More legal history news from Vanderbilt: the History Department is launching a new undergraduate major in legal history, titled "Law, History, and Society." The program takes advantage of the department's strong cohort of legal historians. Details are available here.

Brennan on Compulsory Licensing of IP

David J. Brennan, Swinburne Law School, has posted The First Compulsory Licensing of Patents and Copyright, which is forthcoming in Legal History 17 (2017): 1-45:
This article explains how compulsory licensing for intellectual property originated in British law in the 19th Century and the early part of the 20th Century for both patents and copyright. It is a history that is intricate, straddling the two regimes that comprise the main pillars of intellectual property, and requires consideration of contemporaneous developments occurring in the USA, North American colonies and Continental Europe. Through its exposition and analysis of the first five distinct compulsory licensing regimes, some concluding observations are made about the triggers for the first compulsory licences and the conditions that might help predict the desirability of compulsory licensing as a matter of modern public policy in any given setting.

Monday, August 7, 2017

Vanderbilt Legal History Colloquium, 2017-18

Last year the Vanderbilt History Department began a legal history speaker series/colloquium, sponsored by the Vanderbilt College of Arts and Science and directed by Professor Thomas A. J. McGinn. Here's the lineup for this coming academic year:
September 18
Barbara Welke (University of Minnesota)
"Finding Their Way to the Law”
October 9
Juandrea Bates (Winona State University)
"'Privileges Reserved for a True Family:' Legal Constructions of Family and the
Restriction of Citizenship Rights in the Early Argentine Republic"

November 6
Indira Gesink (Baldwin Wallace University)
"The Complex Sex: Intersexuality in Pre-modern Islamic Legal Texts"
November 13
Donald Davis (University of Texas at Austin)
"The Evolution of the Legal Subject in Classical Hindu Law"

January 29
Paul Halliday (University of Virginia)
Title TBD
February 12
Susannah Burghartz (University of Basel)
Title TBD

March 12
Adam Goodman ( Assistant Professor of History & Latin American and Latino Studies, University of Illinois at Chicago )
"Fighting the Deportation Machine: Immigrant Activism in the Streets and in the Courts, 1970-1985" 

March 19
Pascal Pichonnaz (Université de Fribourg)
"Limitation of recoverable losses: From Damages circa rem to foreseeability of damages: some aspects of an evolution”

April 9
Sam Erman (University of Southern California, Gould School of Law)
"The Reconstruction Constitution in the Age of Empire"