Tuesday, October 17, 2017

Journal on European History of Law

[We spotted the following on H-Announce.]

The association The European Society for History of Law is the publisher of the Journal on European History of Law which is published 2x per year. It is assigned for law-historians and Romanists that want to share with their colleagues the results of their research in this field.

At the same time, reviews of books with historical themes are being published. You can also find there information about the happenings in the field of law-history.

Articles in the journal are published in English or in German, according to the authors wish. The articles must fulfill the criteria written in the guidelines for authors. The executive editor decides on whether to publish the articles and in which order.

All the works must be reviewed. The executive editor decides on whether to publish the materials and in which order. After the review, the decision will be sent to the author by email.

The authors are held responsible for the lingual and formal level of the papers submitted. These levels are checked by the editor’s office and some small necessary changes can be done by the editor.  The Journal on European History of Law is included in ERIH PLUS.

Monday, October 16, 2017

Pearlston on Canadian Judicial Interpretations of Lesbian Sex under the Divorce Act

Karen Pearlston, Faculty of Law, University of New Brunswick, has published "Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968," which appears in the Canadian Journal of Law and Society 32 (2017): 37-53.  It's gated, but here is the abstract.
The Divorce Act, 1968, provided no-fault divorce for the first time. It also included a list of fault-based grounds for divorce. In addition to the traditional grounds, a spouse whose wife or husband had “engaged in a homosexual act” during the marriage could petition for divorce. This novel provision was aimed at giving husbands a way to divorce their lesbian wives. A close reading of the resulting jurisprudence and surrounding context shows not only that courts struggled to define the homosexual act between women, but also that the legal history of lesbian women differs from that of gay men in a number of respects. Notably, male homosexuality was regulated primarily through criminal law. In contrast, when parliamentarians specifically addressed lesbians, they turned their minds to the family and family law.

O'Kelley reviews Lamoreaux & Novak, "Corporations and American Democracy"

Writing for JOTWELL's Corporate Law section, Charles O'Kelley (Seattle University School of Law) has posted an admiring review of Corporations and American Democracy (Harvard University Press), edited by Naomi R. Lamoreaux (Yale University) and William J. Novak (University of Michigan Law School). Here's a taste:
Lamoreaux & Novak contains the work of 16 scholars, organized as an introductory essay and ten chapters, which together provide a coherent and enlightening look at the nature of the corporation and corporate law from the founding of America to the present. At the same time, Lamoreaux & Novak also provides a provocative look at the nature of democracy, viewed in the context of the nation’s ongoing struggle over the proper relationship between corporations and government. Whether your interest lies in better understanding the corporation at the turn of the 19th century, in the early stages of the industrial revolution, during the pre-first-World-War reform era, in the early days of the New Deal, or as the corporation later evolved, Lamoreaux & Novak has something for you. For me, the highlight was Chapters 2 and 3, which provide a much needed clarification of the standard account of our understanding of the corporation as it evolved in the nineteenth century.
Read on here.

Call for applications: American Bar Foundation visiting position in "diversity and law"

Via the Faculty Lounge, word of a visiting position at the American Bar Foundation:
The American Bar Foundation (ABF) invites applications for its William H. Neukom Fellows Research Chair in Diversity and Law. This is a one-year, visiting position for the 2018-19 academic year. The ABF anticipates that the Neukom Chair will become a long-term position in the future. 
We seek an outstanding scholar with a distinguished record of scholarship in law and the social sciences who is conducting empirical research on diversity and law, broadly conceived. Topics of interest include, but are not limited to, diversity in the legal profession and other institutions of justice; the impact of diversity on legal processes, legal institutions, and public policy; the roles of race, gender, disability, and sexuality in legal institutions and legal processes; and the interaction between legal processes and inequalities of race, gender, disability, and sexuality. Applicants from all social science fields, history, and law will be considered. 
In addition to pursuing the Research Chair’s own research, the Neukom Fellows Research Chair will participate in the ABF’s expanding program of research in diversity and law. The Neukom Chair is expected to be in residence at the ABF during the visit, and to make at least one formal presentation on the scholarly work they are doing at the ABF. 
The ABF is an independent, scholarly research institute committed to social science research on law, legal institutions, and legal processes. Its faculty consists of leading scholars in the fields of law, sociology, psychology, political science, economics, history, and anthropology. The ABF is strongly committed to diversity in hiring. Review of applications will begin on December 15, 2017, but the search will be ongoing until the position is filled.
We ask that applicants submit a letter of application, a curriculum vitae, a brief (no more than 2-page) description of current research and a list of three references. Application letters should be addressed to Robert L. Nelson, Chair, Search Committee, and sent in electronic form to Holly Gitlin, Executive Assistant, at facultysearch@abfn.org with the subject line “Faculty Search.” Queries about the application process can be directed to Ms. Gitlin at (312) 988-6582. 
The American Bar Foundation encourages diversity in its workforce and seeks to provide equality of opportunity for all applicants and employees. All persons are considered for positions on the basis of job-related requirements. All decisions regarding recruiting, hiring, promotion, assignment, training, termination, and other terms and conditions of employment will be made without unlawful discrimination on the basis of race, color, national origin, ancestry, sex, sexual orientation, gender identity or expression, religion, age, disability, veteran status, pregnancy, or marital status, in accordance with the ABF’s commitment to equal opportunity and all governing laws.

HLS Opens Surrey (and Other) Papers

From Et Seq., the blog of the Harvard Law School Library, comes word that Historical and Special Collections at HLS has opened several new collections to researchers.  The big one is the  papers of Stanley S. Surrey, the “dean of the academic tax bar.”  (The temptation to write, “Oh, great: just in time to be ignored by congressional tax reformers,” is overwhelming.)  The other collections are the Lloyd L. Weinreb Papers; the Gary J. Greenberg Papers (Senior Trial Attorney in DOJ’s Civil Rights Division,1967-1969; the Andrzej Henryk Wojcik Collection of Cuban criminal and civil court documents from 1881 and 1890, the David Charny Papers; and Jeffrey Toobin research for his book “the kidnapping, crimes and trial of Patty Hearst.”  Et Seq. also reports that an original letter written by Oliver Wendell Holmes, Jr. to Lady Clare Castletown will be opened to researchers "after conservation work has been completed," which certainly sets our pulses racing.  H/t: David Warrington.

Sunday, October 15, 2017

Sunday Book Review Roundup

Richard Aldous' Schlesinger: The Imperial Historian appears to be garnering significant attention.  The new biography is reviewed in The Nation, The Washington Post and the Boston Review

Michael Kazin's War Against War: The American Fight for Peace, 1914-1918  is reviewed in The Nation

Greater Gotham: A History of New York City from 1898 to 1919 by Mike Wallace has recieved a glowing review in The New York Times.

In The Washington Post is a review of Ron Chernow's Grant.

Robert Paxton thoughtfully reviews Benjamin Martin's The Nazi-Fascist New Order for European Culture in The New York Review of Books.

At H-Net is a review of legal historian Michelle McKinley's Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700

In the New Republic Nell Irvin Painter reviews Toni Morrison's The Origin of Others.

At Salon Nancy MacLean speaks about her Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America.

In Dissent's fall issue is a review of Noam Maggor's Brahmin Capitalism: Frontiers of Wealth and Populism in America’s First Gilded Age.

Saturday, October 14, 2017

Weekend Roundup

  • Earlier this week, Susanna Blumenthal, Minnesota Law, presented the paper “Counterfeiting Confidence: The Problem of Trust in the Age of Contract” at Emory Law, and Rebecca Scott, University of Michigan, presented  “Luisa Coleta and the Capuchin Friar: Slavery, Salvation, and the Adjudication of Status (Havana, 1817)” to the American Studies Workshop at Princeton University.  H/t: Legal Scholarship Blog
  • Congratulations to Michael Schoeppner, University of Maine, Farmington, for winning the 2017 Hines Prize awarded by the Carolina Lowlands and Atlantic World program of the College of Charleston for the best new scholarly publication by a first-time author relating to any aspect of the Carolina Lowcountry and/or the Atlantic World.  He received it for his manuscript “Regulating Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America."  H/t: UMF's press release.
  • Legally Insane, a new podcast, apparently plays legal history for yuks. 
  • The Commission on Legal Pluralism will hold its biennial conference in Ottawa, Aug.22-24, 2018, featuring the theme, "Citizenship, legal pluralism, and governance in the age of globalization." Beforehand (Aug.17-20), there will be a short course on legal pluralism. Details on how to apply are here (deadline: Nov.1, 2017).
  • G. Edward White, Virginia Law, will deliver the 2017 William M. Acker Jr. Visiting Lecture at Birmingham-Southern College on Thursday, November 2, at 7 p.m.  His subject will be “The Marshall Court as a Premodern Institution.”  And on October 17, Hauke Brunkhorst, University of Feinsburg, will lecture on the Evolutionary Sociology of Constitutionalism at Boston College of Law in the Clough Distinguished Lectures in Jurisprudence series.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 13, 2017

Call for Applications: Princeton Postdoc in "Law and Difference"

We have the following call for applications, from Princeton University:
“Law & Difference” Postdoctoral Research Associate 
Position Description 
Princeton University’s Shelby Cullom Davis Center for Historical Study is pleased to announce one residential Postdoctoral Research Associate or more senior position, renewable for a second year contingent upon satisfactory performance. During the academic years 2018–2019 and 2019–2020, the Shelby Cullom Davis Center for Historical Studies will focus of the topic of “Law & Legalities.” In conjunction with our program of residential fellowships, we invite recent Ph.D's to apply for a postdoctoral position focused on the more specific topic of “Law & Difference.” The successful candidate will work on some aspect of how the social construction and lived experience of difference—such as race, ethnicity, gender, sexuality, religion, ability/disability, or age—intersect with legal, illegal, quasi-legal, and extra-legal forms of social order. We invite candidates working on any time period or geographical area, and especially encourage applicants whose work ranges beyond the twentieth-century United States. 
The Postdoctoral Research Associate will be engaged in full-time work on the proposed historical project during the first year, and may teach up to one undergraduate course per semester in the second year (if renewed) pending need, enrollments, and the approval of the Office of the Dean of the Faculty. The “Law & Difference” position is strictly residential, as the Postdoctoral Research Associate will also participate in all of the Davis Center’s weekly activities (along with the Center’s other fellows). The program is designed to nurture the academic career of an emerging scholar by providing opportunities to pursue research and possibly teach while gaining mentoring from Princeton faculty and the resident Davis Center fellows. 
The initial expected term of appointment is July 1, 2018–June 30, 2019, with renewal possible for a second year contingent upon satisfactory performance. The Postdoctoral Research Associate will receive a competitive salary along with University benefits and an annual research fund of $5,000.
More information is available here.

Mosvick on the Law and Judicial Politics of Conscription in the Civil War

Nicholas M. Mosvick, a Ph.D. candidate at the University of Mississippi, has posted Courtroom Wars: Pennsylvania Judges and Popular Constitutional Discourse in the Civil War North, which appears in the Faulkner Law Review 8 (2017): 269-348 (2017):
In November 1863, the Pennsylvania Supreme Court issued a temporary injunction in the case of Kneedler v. Lane by a vote of 3-2 which declared the Enrollment Act of 1863 or the Conscription Act unconstitutional. This article seeks to describe how, over the course of 1863, Pennsylvania judges confronted the constitutional arguments over the Conscription Act amidst a background of Judge Woodward's campaign for governor and the push by Democratic newspapers and party members to share constitutional critiques of the Conscription Act with the public. The article also accesses newly unearthed evidence in the form of briefs, interrogatories, and oral arguments before the Pennsylvania Supreme Court in the case of Kneedler, showing the meticulous ways in which anti-administration lawyers crafted their arguments against the constitutionality of the Conscription Act. The robust debate that emerges from these cases and legal arguments reflects the constitutional discourse among Northern citizens, which reflects their trepidation over expanding federal power and changing notions of sovereignty.

Landauer on Nagendra Singh & international law

Carl Landauer has published "Passage from India: Nagendra Singh's India and international law" in the Indian Journal of International Law (2016) 56 (3-4): 265-305. Here's an abstract:

This article engages the effort by the eminent Indian international lawyer, Nagendra Singh, to establish the role of Indian international law--going back to ancient Indian interstate law--in the development of modern international law, particularly in his book of 1969, India and International Law. The article begins by examining Singh's narrative of this special role with his focus on the growth of Indian law in terms of particular Indian sources and legal doctrines. The article also puts Singh in the context of other scholars both early in the twentieth century and in the 1950s and 1960s. Because Singh asserts the precedence of Indian international law, the article addresses not only his view of the unity of India but also which "India" he identifies--especially with a narrative that continues through Mughal lndia, and even through British India--and how his vision relates to a Nehruvian vision of India. The article then discusses the tension between the importance of peace and armed defense in Singh's writing. Finally, the article addresses Singh's approach to the colonial world and the position of the "new states" in the postwar international legal order. It places Singh within Chirnni's epithet for Indian scholars - coping with dualism. Overall, Singh worked very much within the existing international framework as represented in two volumes of Oppenheim's classic treatise. 

The Federal Courts Web Archive

In Custodia Legis, the blog of the Law Library of Congress, has recently announced a new archive of websites of the federal judiciary.  From the post:
The Federal Courts Web Archive, recently launched by the Library of Congress Web Archiving Team and the Law Library of Congress, provides retrospective archival coverage of the websites of the federal judiciary. The websites in this archive include those of the Supreme Court of the United States, as well as federal appellate courts, trial courts, and other tribunals.  These sites contain a wide variety of resources prepared by federal courts, such as: slip opinions, transcripts, dockets, court rules, calendars, announcements, judicial biographies, statistics, educational resources, and reference materials. The materials available on the federal court websites were created to support a diverse array of users and needs, including attorneys and their clients, pro se litigants seeking to represent themselves, jurors, visitors to the court, and community outreach programs.

Thursday, October 12, 2017

CFP: Regulating Age of Consent and Child-Marriage in the British Empire

Krishnaraja Wadiyar IV & Rana Prathap Kumari (wiki)
[We have the following call for papers.] 

Comparative perspectives on regulating age of consent and child-marriage in the British Empire, 1880 to 1930.  June 15, 2018.  SOAS University of London.

This is a call for proposals for a one-day interdisciplinary conference which aims to explore the debates that led to the reform of age of consent laws around the British Empire during the years 1880 to 1930. The conference is particularly interested in exploring the issues of age of consent and child marriage through interdisciplinary and comparative perspectives in law and history.

Intertwined within these debates are notions of gender, women's rights, biology, and attempts to understand the native psyche. These compete with tropes of cultural relativism, orientalism, the female victim, and the white man's burden amongst other concerns. For the purpose of this conference, consent is interpreted widely to include physical and intellectual consent to sexual activities as well as marriage.  The conference aims to bring together the growing number of scholars who are currently working on the histories of age of consent in the British Empire.

Recognising that the development and history of the age of consent debate is transnational, international, and multi-layered one, the conference is conceived of as a starting point for forming an international network of scholars working in the area.

Themes of the conference include but are not limited to notions of consent-physical and/or intellectual; age of consent campaigns and national movements; religion/class/region based perspectives on consent; comparative or regional studies on age of consent/marriage; age of consent for males; consent, female body, and nationalism/imperialism.

Please send 300-word abstract with a short bio to ageofconsentsoas@gmail.com. The deadline is 08 January 2018.  Bursaries might be available for PG students.  Organisers: Dr Kanika Sharma (SOAS) and Dr Laura Lammasniemi (Anglia Ruskin University).

CFP: Legal History and Empires: Perspectives from the Colonised (Updated)

[Here is the updated CFP for a conference we noted earlier.  Please note that the due date for submitting proposals is January 15, 2018.]

The conference "Legal History and Empires: Perspectives from the Colonised" will be held at the University of the West Indies, Cave Hill Campus, in Barbados from July 11 to 13, 2018. The conference is jointly sponsored by the Faculty of Law and Faculty of Humanities and Education of The University of the West Indies, Cave Hill Campus, and an international group of legal historians and historians of the law.  [The keynote speaker is] Dr. Maya Jasanoff, Coolidge Professor of History, Harvard University.

This conference follows the successful conference on the Legal Histories of the British Empire held at the National University of Singapore in 2012, and is similarly designed to bring together senior and emerging scholars working in the fields of imperial and colonial legal history. We invite paper or panel proposals addressing legal histories of empires broadly, and encourage participants to think in particular how their research connects with the theme of the conference: perspectives from the colonized.  Without in any way limiting the range of proposals topics and themes might include: relations between Empires; histories from the peripheries of empire; mobilities, networks and transplants; law and gender; Indigenous histories and the law; slavery and indentured labour; regulation of labour; histories of immigration law; administration of justice and rule of law; histories of public or private law; colonial law and local circumstances; settler colonialism; crime; the professions.

Individual paper proposals should be maximum 300 words (and include a bio of no more than 100 words); panel proposals should consist of an overall panel theme (300 words), the titles of individual papers and short bios (no more than 100 words) of each presenter. Panels may include commentators. Proposals should be sent to Prof Shaunnagh Dorsett, University of Technology Sydney (Shaunnagh.Dorsett@uts.edu.au) by 15 JANUARY 2018.

General inquiries about the Conference should be addressed to Dr. Asya Ostroukh, UWI, Cave Hill (asya.ostroukh@cavehill.uwi.edu).  The Conference website is [here.]  (Information, including accommodation options and additional optional activities on July 10 and 14 will be available soon.)

Zhang, "The Laws and Economics of Confucianism"

Out today from Cambridge University Press: The Laws and Economics of Confucianism: Kinship and Property in Preindustrial China and England, by Taisu Zhang (Yale Law School). The book is part of the series Studies in Economics, Choice, and Society. A description from the Press:
Tying together cultural history, legal history, and institutional economics, The Laws and Economics of Confucianism: Kinship and Property in Pre-Industrial China and England offers a novel argument as to why Chinese and English pre-industrial economic development went down different paths. The dominance of Neo-Confucian social hierarchies in Late Imperial and Republican China, under which advanced age and generational seniority were the primary determinants of sociopolitical status, allowed many poor but senior individuals to possess status and political authority highly disproportionate to their wealth. In comparison, landed wealth was a fairly strict prerequisite for high status and authority in the far more 'individualist' society of early modern England, essentially excluding low-income individuals from secular positions of prestige and leadership. Zhang argues that this social difference had major consequences for property institutions and agricultural production.
A few blurbs:
"In this lucid and thought-provoking study, Taisu Zhang creatively and empirically reinterprets the causal relationships among cultural norms, property institutions, and socioeconomic behavior in early modern China and England. This holds profound implications for the study of global economic history, Sino-Western comparison, and Chinese law and society. This important book will not fail to stimulate new inquiries and debates for many years to come."-- Li Chen 
"Marrying cutting-edge historical archival work with remarkable cross-disciplinary theoretical breadth, Taisu Zhang boldly and brilliantly raises vitally important questions about the interplay of culture, law, and economic institutions in pre-industrial China and England. Anyone interested in global economic history or in today’s China will want to engage this powerful but inviting book." -- William P. Alford
More information, including the TOC, is available here.

We are also excited to report that Taisu Zhang will be joining us as a guest blogger for the month of December. We look forward to hearing more about this project!

Wednesday, October 11, 2017

CFP: LSA 2018 (Toronto)

[We have the following for the organizers of legal history panels at the annual meeting of the Law and Society Association.]

The Law & History [Collaborative Research Network] (CRN 44) offers to help organize legal history panels for the annual Law & Society Association annual meeting (this year June 7 - 10, 2018 in Toronto). The LSA submission deadline is coming up quickly - Oct. 18 - so if you have a paper you'd like to present, please send your abstracts to us (email addresses below) by Oct. 15, so that we have enough time to quickly organize papers into panels by the deadline. Please also go ahead and submit your paper in the system as an individual paper and let us know that you have; the submission system requires that panels be constructed from those papers already in the system. 

And if you are putting together a panel yourself, and would like us to sponsor it, please let us know (so that we can add it to our list, and advertise it among CRN members as the conference approaches). Feel free to note it as a CRN 44 panel in the LSA submission process.

Joanna Grisinger
Associate Professor of Instruction
Center for Legal Studies, Northwestern University

Kimberly Welch
Assistant Professor 
Department of History, Vanderbilt University 

Logan Sawyer
Associate Professor
University of Georgia Law School

Kathryn Schumaker
Assistant Professor
Department of Classics and Letters, University of Oklahoma

Mayeux on the Idea of the Criminial Justice System

Sara Mayeux, Vanderbilt University Law School, has posted The Idea of “The Criminal Justice System,” which is forthcoming in the American Journal of Criminal Law:
The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science. The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.” Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

Sugarman on C.W. Brooks and the “Legal Turn” in Early Modern English History

A few years back, we were indebted to David Sugarman, Lancaster University Law School, for the sad news of Christopher W. Brooks’s death.  Now Professor Sugarman has posted an assessment of Professor Brooks’s contribution to legal history.  It is Promoting Dialogue between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and the “Legal Turn” in Early Modern English History and is out in a special issue (44: 5) of the Journal of Law & Society, entitled "Main Currents in Contemporary Sociology of Law."   Professor Sugarman dedicates the paper to the memory of another English legal historian, John Beattie.  Here is the abstract:
This paper argues that the work of socio-legal scholars and historians would benefit from greater dialogue, and from taking the social history of law itself more seriously. It points up the benefits and the difficulties that might arise from greater cross-fertilization. By way of a case study, it focuses on the ‘legal turn’ in recent history writing on early modern England, particularly, Christopher W. Brooks’s ground-breaking analysis of the nature and extent of legal consciousness throughout society, and the central role of law and legal institutions in the constitution of society. The paper critically reviews Brooks’s principal ideas and findings, the contexts within which they arose, their theoretical underpinnings, and their larger significance. It highlights Brooks’s engagement with diverse scholars, including John Baker, Marc Galanter, Jürgen Habermas, Robert W. Gordon, J.G.A. Pocock and E.P. Thompson. It is proposed that Brooks investigated both elite and popular legal consciousness on an almost unparalleled scale, adopting top-down and bottom-up approaches that revealed the trickle-up, as well as trickle-down, diffusion of legal ideas, transcending the boundaries of social, political, and legal history. More generally, the paper seeks to demonstrate that the turn to law in early modern English history has enlarged the field in terms of subject-matter, methodologies and the range of sources utilised, deepening understanding of the workings of law and its wider importance. Indicative subject areas and topics enhanced by the legal turn are outlined including: law, gender, agency and social hierarchy; legal consciousness; trust, contractual thinking, and capitalism; governance and the growth of state power; and the decline in the participation of ordinary people in the legal system, and the so-called ’vanishing trial’. The paper concludes that a convergence between history, legal history and socio-legal studies has been underway in recent decades, that it provides opportunities for greater cross-fertilization, and that this would enhance our understanding of the role of law in society, and of society. For that greater dialogue to happen there would need to be better institutional support, changes in the cultures and mind-sets of history, socio-legal studies and legal history, and greater self-reflexivity. It would also generate difficult questions and controversy as to what sort of rapport might be appropriate, when, how and to what effect

Jaffe on the jury in India

James Jaffe, University of Wisconsin, has published "After Nanavati" in the Economic and Political Weekly 53:32 (12 Aug. 2017). Here's an abstract:
Image result for nanavati blitz
The famous Nanavati case of 1959 gave birth to two myths: that it was the last jury trial in India and that it was the prurient sensationalism of the new tabloid press, Blitz in particular, that corrupted the jury system and made its abolition necessary. It was actually the refusal of the government and the legal profession to confront class and caste differences in the courtroom, and not the popular press, that led to the abolition of the Indian jury.

Witt's Hands Lecture: "Adjudication in the Age of Disagreement"

The published version of John Fabian Witt's Hands Lecture, delivered for the special session of the Second Circuit Court of Appeals in celebration of the 125th Anniversary, is now available online. It is titled "Adjudication in the Age of Disagreement." Here's a taste:
What explains all the praise for this court? What makes a tribunal strong? What role do judges play in our system of governance such that the Second Circuit’s particular virtues hold such a distinctive place in the tradition of adjudication? In the time I have here with you today I would like to offer the beginnings of an answer. It does not lie in the distance between the court’s traditions and [Judge Martin] Manton’s conduct. [Manton was convicted of bribery in 1939.] That would be too easy. At base, I think the answer lies in something far more subtle and interesting: the relationship between a central tradition of the Second Circuit and one of the great questions we face as a society today. That question is how to deal with disagreement.

Tuesday, October 10, 2017

AHA Book Prizes to Garfinkel, Goluboff and Haley

The American Historical Association has announced its book prizes for 2017.  The Littleton-Griswold Prize in "US law and society, broadly defined” goes to Risa Goluboff, Virginia Law, for Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (2016).  Other award of interest to legal historians include the Joan Kelly Memorial Prize for women’s history and/or feminist theory to Sarah Haley, UCLA, for No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (2016) and the Helen and Howard R. Marraro Prize in Italian history or Italian-American relations to Paul Garfinkel, Simon Fraser University, for Criminal Law in Liberal and Fascist Italy (2016).

Update: UVA Law's press release on Vagrant Nation is here.

Stanford Center for Law and History & Inaugural Graduate Student Paper Prize

[We have the following announcement.]

We are pleased to announce the creation of the new Stanford Center for Law and History (SCLH). SCLH brings together faculty, postdocs, and students from across Stanford University’s many schools and departments—and beyond—to participate in a broad range of conferences, workshops, and lectures devoted to examining the multifaceted interrelationships between law and history (without geographic, temporal, or other subject-area limitations).

On April 20, 2018, SCLH will host its inaugural one-day conference, titled “Legal Histories of Policing and Surveillance.” The event will include a keynote address by Professor Michael Willrich and three panels featuring a range of prominent legal historians entitled: “Broadening the State’s Criminal Oversight Power,” “Surveillance Technologies and Legal Culture,” and “Policing Intimate and Family Life.”

The conference organizers will select one graduate student as the inaugural winner of the SCLH Graduate Student Paper Prize. This student will be added to one of the three panels—alongside distinguished faculty working on related topics—based on the fit between the proposed paper and the three panel themes. Funding for travel and housing will be provided.

To apply, submit the following in a single PDF here. The deadline is Friday, December 1, 2017.
  • CV
  • 500 word paper abstract
  • Briefly describe (75 words or less) which of the three panels is the best fit for your paper and why.
The organizers will inform the selected graduate student by early January 2018. The prize winner must circulate a fifteen to twenty page paper to the organizers by Monday, April 9, to share with other conference attendees.

For any questions, please email: akessler@law.stanford.edu and edkatz@stanford.edu

Milewski's "Litigating Across the Color Line"

Melissa Milewski, a Lecturer in American History at the University of Sussex, has published Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights, with the Oxford University Press.  Professor Milewski will guest blog on her book next month.
As a result of the violence, segregation and disfranchisement that occurred throughout the South in the decades after Reconstruction, it has generally been assumed that African Americans in the post-Reconstruction South litigated few civil cases and faced widespread inequality in the suits they did pursue. In this groundbreaking work, Melissa Milewski shows that black men and women were far more able to negotiate the southern legal system during the era of Jim Crow than previously realized. She explores how, when the financial futures of their families were on the line, black litigants throughout the South took on white southerners in civil suits and at times succeeded in finding justice in Southern courts. Between 1865 and 1950, in almost a thousand civil cases across eight southern states, former slaves took their former masters to court, black sharecroppers litigated against white landowners, and African Americans with little formal education brought disputes against wealthy white members of their communities.

As black southerners negotiated a legal system with almost all white gate-keepers, they found that certain kinds of civil cases were much easier to gain whites' support for than others. But in the suits they were able to litigate, they displayed pragmatism and a savvy understanding of how to get whites on their side. Their negotiation of this system proved surprisingly successful: in the civil cases African Americans litigated in the highest courts of eight states, they won more than half of their suits against whites throughout the period from 1865 to 1950.

Litigating Across the Color Line
shows that in a tremendously constrained environment where they were often shut out of other government institutions, seen as racially inferior, and often segregated, African Americans found a way to fight for their rights in one of the only ways they could. Through these suits, African Americans adapted and at times made a biased system work for them. At the same time, Milewski considers the limitations of working within a white-dominated system at a time of great racial discrimination -- and the choices black litigants had to make to get their cases heard.  
Here are some endorsements:
“Shining new light on race, rights, and justice, Melissa Milewski shows how ex-slaves found a measure of power by going to court in the Jim Crow South.  This is a vivid and arresting account of legal conflict over property, contracts, fraud, and personal injury, and of challenges waged against white supremacy, disenfranchisement, and mob violence.”—Amy Dru Stanley, University of Chicago

“In this thoroughly researched, deeply nuanced, strongly revisionist example of the new cultural history of law, Melissa Milewski unearths the fascinating human stories of nearly a thousand civil lawsuits between blacks and whites in eight southern states from 1865 to 1950.  Many readers will be surprised to learn that African-Americans won a majority of the cases, that black women were parties in 41% of them, and that African-Americans quickly learned to manipulate white supremacist beliefs to their advantage in the courts.  Beautifully written, Milewski’s book will be a landmark not only in legal history, but also in the history of the South and of race relations.”—J. Morgan Kousser, author of Colorblind Injustice

“Working from a database of ordinary civil cases in which African Americans were involved in the post-Reconstruction South, and enhanced by her exploration of the social and economic background of several of those cases, Melissa Milewski opens up new lines of thinking about how the law in a racist, grossly unequal society can both reproduce the society's power relations and deliver justice to the subordinated groups.”—Mark Tushnet, Harvard Law School
 “In this engrossing and meticulous assessment of civil cases in local and state courts, Melissa Milewski builds on considerable research to discern African Americans’ legal strategies for protecting their hard-earned rights and navigating the judicial landscape of the New South. She reveals the complexity of the region’s legal culture and challenges notions that African Americans enjoyed no power within it by detailing their shrewd maneuvers to advance their cases through a system that, while uncompromising about protecting the larger white power structure, exercised more flexibility regarding individual cases surrounding such issues as labor, property, and physical damages. Readers will not be able to look at African Americans’ participation in southern legal culture in the same way after absorbing Litigating Across the Color Line.”—Kidada E. Williams, author of They Left Great Marks on Me: African American Testimonies about Racial Violence from Emancipation to World War I

Monday, October 9, 2017

Australasian Legal History Libraries

Our Google Alert has turned up what may well be a familiar source for our readers, but we’re posting it anyway in case it is not.  Australasian Legal Information Institute (AustLII) is maintaining Australasian Legal History Libraries, which “aim to make searchable as many resources concerning Australasian legal history as AustLII is able to assemble.”  The three libraries are Australasian Colonial Legal History Library (pre-1901); Australian Federation Law Library (1901-1950); and Australasian Modern Legal History Library (1951-2000).  The first includes some New Zealand materials.

LAPA Fellowships

[Here is this year’s announcement for the Law and Public Affairs Fellowships at Princeton University.  Over the years, LAPA fellowships have gone to many legal historians. Previous LAPA fellows include Michelle McKinley (Oregon Law School), James Whitman (Yale Law School), Daniel LaChance (Emory University), David Lieberman (UC Berkeley School of Law), Camille Robcis (Cornell University), Steven Wilf (University of Connecticut), Christopher Beauchamp (Brooklyn Law), Susanna Blumenthal (University of Minnesota), David Sugarman (Lancaster University), Linda Przybyszewski (Notre Dame), Sarah Barringer Gordon (University of Pennsylvania), Cornelia Dayton (University of Connecticut) ; David Rabban (University of Texas Law), and Your Humble Blogger.  Lewis Grossman (Washington College of Law/American University), who is a fellow this year.]

The Program in Law and Public Affairs (LAPA) at Princeton University invites outstanding faculty members of any discipline, independent scholars, lawyers, and judges to apply for visiting, residential appointments for the academic year 2018-2019.  LAPA Fellows devote the major portion of their time to their own research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance.  In addition, LAPA Fellows are expected to be in residence for ten months and participate in LAPA programs, including a biweekly seminar, a weekly luncheon discussion group, as well as some public events and conferences.  The program does not support, as a primary activity, off-site fieldwork or work in remote archives, development of course materials, work in legal practice, direct advocacy of causes or residence elsewhere. (For more information on LAPA, see [here]).

Fellows may apply to teach one course in Princeton’s graduate or undergraduate programs, subject to the needs of the University, sufficient enrollment, approval of the Dean of the Faculty, and the cooperation of the sponsoring academic department. One of the fellows, who will teach an undergraduate course, will be named the Martin and Kathleen Crane Fellow in Law and Public Affairs.

Financial Support for Fellows

As a general rule, Fellows receive a research salary of one-half their ten (10) month salary at their home institution, up to a maximum set each year before selection is made.  This means that some support will be lower than one half of an actual salary for those at the high end of a salary spectrum.  Research salaries will not be set below a minimum amount specified by the University.  Fellows earn additional salary for teaching a course, but this opportunity is not guaranteed.

Fellows may also apply for funding from additional sources so long as receipt of the funds does not interfere with the LAPA requirements. 

Selection Criteria

All applicants must have received a doctorate, juris doctor, or an equivalent professional degree at the time of submission of the fellowship application. The selection committee looks particularly closely at the proposal outlining work the applicant proposes to do while in residence at Princeton.  Successful LAPA applicants should demonstrate substantial expertise in law-related matters.  The committee is composed of Princeton faculty members representing LAPA’s three funding sources, the Woodrow Wilson School for Public and International Affairs, the University Center for Human Values, and the general University.  They evaluate applicants on the basis of (1) the quality of their achievements in their field of specialization and their ability to benefit from the activities of the program; (2) the quality and significance of their proposed projects; (3) the future contributions they are likely to make to legal scholarship and practice; and (4) their ability to contribute to intellectual life in legal studies at Princeton.  In selecting fellows, the committee may consider how each individual will contribute to the fellows’ cohort as well as to the program.

For additional details regarding the application process and requested information see [here].   Fellowship applications must be submitted using the on-line application.  Additional information about current and prior fellows is found [here]

The deadline for submissions is 11:59 PM (EST) November 13, 2017.

Condos on violence & legality in colonial India

Mark Condos, Queen Mary, University of London, published "License to Kill: The Murderous Outrages Act and the rule of law in colonial India, 1867-1925" last year in Modern Asian Studies 50:2. Here is an abstract:
In 1867, the Government of India passed one of the most brutal-minded and
draconian laws ever created in colonial India. Known as the ‘Murderous Outrages Act’, this law gave colonial officials along the North-West Frontier wide powers to transgress India’s legal codes in order to summarily execute and dispose of individuals identified as ‘fanatics’. Arguments for the creation and preservation of this law invariably centred around claims about the purportedly ‘exceptional’ character of frontier governance, particularly the idea that this was a region that existed in a perpetual state of war and crisis. Far from being peripheral in its impact, this article explores how this law both drew upon and enabled a wider legal culture that pervaded India in the wake of 1857. It argues that this law was a signal example of British attempts to mask the brute power of executive authority through legalistic terms, and was also evocative of a distinctly ‘warlike’ logic of colonial legality.

Sunday, October 8, 2017

Sunday Book Review Roundup

In the Atlantic, Ira Katznelson reviews Hitler's American Model: The United States and the Making of Nazi Race Law by James Q. Whitman, who argues “that the Nuremberg Laws themselves reflect direct American influence,” but also, according to Katznelson, “implicitly challenges readers to consider when and how, under what conditions and in which domains, the ugly features of racism have come most saliently to the fore in America’s liberal democracy.”

In Lawfare, Michael Neiberg reviews Robert Gerwarth’s The Vanquished: Why the First World War Failed to End. Gerwarth’s history recognizes that the war involved interstate conflicts, civil wars, and political revolutions, reflecting on how the war disturbed the “European system” and enabled postwar extrimism (and rejecting, as Neiberg notes, a “brutalization thesis” that others have adopted).

In the NYRB, Linda Greenhouse reviews Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics, in which Marjorie J. Spruill argues that the competition between “family values” and “equal rights” politics--which exemplified by the 1977 National Women’s Conference and a competing Pro-Life, Pro-Family Rally--“led to today’s cultural and political polarization.” The result, Greenhouse argues, is a “invaluable, if at times barely readable, reference book,” laden with quotes from various participants but ignorant of the ways that womens’ pro-family and pro-life activism “was a claim, even if unacknowledged, to equal access to power, to equality in form if not in name.” She references Robert Self’s All in the Family: The Realignment of American Democracy Since the 1960s and Jane J. Mansbridge’s Why We Lost the ERA (1986).

In the NY Times, Kevin Peraino reviews A Force So Swift: Mao, Truman and the Birth of Modern China, 1949, an “absorbing” chronicle of Mao’s rise to power and the effect it had on American foreign relations.

Dorothy Wolpert reviews Owen Fiss’s group biography of 13 eminent lawyers, judges, and law professors. Or, as Wolpert argues, is Pillars of Justice: Lawyers and the Liberal Tradition more of a memoir? (“Rather than sharing a particular ideology (they don’t), each played a role in Fiss’s life in the law. And what a charmed life it has been!”)

The New Books Network is always a great source of book reviews. Some of this week’s choices may be of interest to legal historians (admittedly, the first two are histories of the ’90s and you have VH1 for that): Astrid Noren-Nilsson on Cambodia’s Second Kingdom: Nation, Imagination, and Democracy Bryant Simon on The Hamlet Fire: A Tragic Story of Cheap Food, Cheap Government, and Cheap Lives; Steve Sheinkin on The Port Chicago 50: Disaster, Mutiny, and the Fight for Civil Rights; Michael Wintroub on The Voyage of Thought: Navigating Knowledge Across the Sixteenth-Century World.

The next Hamilton? In Slate, David Plotz reviews Ron Chernow’s Grant, which emphasizes that the former president was a military genius, a champion of Reconstruction, and “humble, charming, decent man.” (“Ron Chernow is slogging his biographical way through American currency one misunderstood white guy at a time.”). Adam Gopnik reviews the book in the New Yorker, taking an appropriate digression to summarize Grant’s drinking problem. The Economist’s review foresees a resurgence in popularity for the General and President who was “farsighted on race” (you might have to fork over a $50… this one is behind a paywall... and if you take the plunge, the Economist also contains a review of a new history of British society.

Saturday, October 7, 2017

Weekend Roundup

  • The legal historian Tanya K. Hernández has been appointed to the Archibald R. Murray Professorship at Fordham Law.
  • From our in-box: "Mr. Ville Erkkilä (MA) will defend his doctoral thesis, The Conceptual Change of Conscience: Franz Wieacker and German Legal Historiography 1933-1968, in a public examination on 13 October 2017 at 12 noon. The defence will take place at the Faculty of Law of the University of Helsinki, in lecture hall IV (Suomen Laki -sali, Porthania, Yliopistonkatu 3). The opponent will be Dr. Udi Greenberg (Dartmouth College). The defence is open to the public. The thesis is available [here.]
  • Over at AHA Blog: a report on the National History Center's Congressional briefing on civilian control of the military.
  • And the National History Center has announced another Congressional briefing, this one on the History of Civil War Monuments.  Monday, October 23, 2017, 9:30-10:30 am. Rayburn House Office Building, Room 2044.  With David W. Blight, Yale University; Karen L. Cox, University of North Carolina at Charlotte; Gaines M. Foster, Louisiana State University; and Moderator: James Grossman, American Historical Association.  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 6, 2017

Introducing the new website Bunk

We have recently learned of a new website, supported by the University of Richmond, that is sure to interest readers: Bunk: Rewiring American History. It is described as "a shared home for the web’s most interesting writing and thinking about the American past."

Here's a bit more, from an article about the venture in NiemanLab:
Bunk, which takes its name from the 1916 Henry Ford quote that “history is bunk,” launched in beta earlier this month. “A big part of this project is amplifying what’s already out there online,” said Tony Field, the site’s editor. “There’s so much great work being done online by scholars already. That includes blogs, conversations on social media between historians — there’s a very active community of historians on Twitter — not to mention all of the great digital archives all over the place, and digital humanities work based at universities and elsewhere. We were very interested in what it would mean to try to harness all of that energy and make it accessible to a broader audience of people who aren’t, say, historians on Twitter.” 
Content is presented in a mosaic format on the home page, featured in “Collections” on specific themes (“Monument Wars,” “Immigrants Not Welcome”), and searchable by theme (Money, Power, Family). The aggregated content includes a few paragraphs on Bunk’s site, then you click through to the publisher’s original site to finish. One big part of the vision is to highlight connections between disparate pieces of media. “We wondered what it would mean to build a machine that thinks like a historian,” Field said. The algorithm that links together related articles on the site is enabled by a team of student workers tagging content by theme, people named, timeframe, and place. “Can we replicate the experience of sitting with somebody who has training and a deep level of knowledge as she reads the newspaper?” Field said. “What sort of connections would be taking place in the mind of somebody like that, and can we share that experience with our audiences?”
Content that you'll find there now includes Walter Johnson's recent piece for the Boston Review, on how the spectre of Dred Scott haunts St. Louis, and a "collection" on voting rights and gerrymanderingFor an example of original content, see Sara Mayeux's recent piece on "Litigating the Line Between Past and Present." 

CFP: Arguing for the Rule of Law

[We have the following announcement.]  Call for Papers: Arguing for the Rule of Law: Using the Hebrew Bible and Caricatures of Foreigners in British and Spanish America.  Friday, October 26, 2018.  Newberry Library, Chicago.  Deadline for Applications: November 8, 2017.

This is a call for papers in anticipation of a one-day conference to be organized by Jorge Cañizares-Esguerra (University of Texas) and Richard Ross (University of Illinois) through the Symposium on Comparative Early Modern Legal History.  The conference, to be held at the Newberry Library in Chicago on Friday, October 26, 2018, is entitled, “Arguing for the Rule of Law: Using the Hebrew Bible and Caricatures of Foreigners in British and Spanish America.”  It will address the following topic: How did settlers, imperial officials, indigenous peoples, and Africans in the New World seek to demonstrate, or disprove, that a polity respected the rule of law?  (The phrase “rule of law” is modern; but the core of the idea is not).  Colonial rule invited accusations of arbitrary government and systematic lawlessness.  This conference will focus on two common techniques used to assess whether a polity respected the supremacy of law.  First, controversialists asked whether governance accorded with God’s expectations of justice as laid out in Scripture, particularly the Hebrew Bible.  Second, caricatures of other societies could be held up to make one’s own appear lawful and just, or the reverse.  British American settlers applauded the civility of their law by reference to the presumed barbarism of the Irish and Amerindians.  They saw liberty in their exploitive legal order by opposing it to the supposed absolutism of the Spanish and French empires.  Spanish settlers justified their rule and derecho by contrasting them to the law of indigenous polities and of their New World rivals.  The conference will bring together historians, law professors, and social scientists to think about the complex debates about the rule of law in the English and Iberian Atlantic. 

Interested presenters should submit an abstract of between 200 and 500 words and a c.v. by November 8, 2017.  Please send submissions and inquiries to Richard Ross [rjross@illinois.edu]; 217-244-7890.  No previously published work will be accepted. Applicants will be notified by email shortly after the submission deadline.  Accepted participants will be required to submit a full paper of no more than 10,000 words by the end of September 2018. Papers will be pre-circulated and read by all participants.  The conference will pay for travel and hotel expense.

Mintzker, "The Many Deaths of Jew Süss"

Recently out from Princeton University Press: The Many Deaths of Jew Süss: The Notorious Trial and Execution of an Eighteenth-Century Court Jew, by Yair Mintzker (Princeton University). A description from the Press:
Joseph Süss Oppenheimer—"Jew Süss"—is one of the most iconic figures in the history of anti-Semitism. In 1733, Oppenheimer became the "court Jew" of Carl Alexander, the duke of the small German state of Württemberg. When Carl Alexander died unexpectedly, the Württemberg authorities arrested Oppenheimer, put him on trial, and condemned him to death for unspecified "misdeeds." On February 4, 1738, Oppenheimer was hanged in front of a large crowd just outside Stuttgart. He is most often remembered today through several works of fiction, chief among them a vicious Nazi propaganda movie made in 1940 at the behest of Joseph Goebbels. 
The Many Deaths of Jew Süss is a compelling new account of Oppenheimer's notorious trial. Drawing on a wealth of rare archival evidence, Yair Mintzker investigates conflicting versions of Oppenheimer's life and death as told by four contemporaries: the leading inquisitor in the criminal investigation, the most important eyewitness to Oppenheimer's final days, a fellow court Jew who was permitted to visit Oppenheimer on the eve of his execution, and one of Oppenheimer's earliest biographers. What emerges is a lurid tale of greed, sex, violence, and disgrace—but are these narrators to be trusted? Meticulously reconstructing the social world in which they lived, and taking nothing they say at face value, Mintzker conjures an unforgettable picture of "Jew Süss" in his final days that is at once moving, disturbing, and profound. 
The Many Deaths of Jew Süss is a masterfully innovative work of history, and an illuminating parable about Jewish life in the fraught transition to modernity.
Yair Mintzker is associate professor of history at Princeton University. He is the author of The Defortification of the German City, 1689–1866.
More information is available here.

Thursday, October 5, 2017

Ansar on a Neglected Classic: Selznick's "TVA and the Grass Roots"

Atif Ansar, University of Oxford, Said Business School, has posted The Fate of Ideals in the Real World: A Long View on Philip Selznick's Classic on the Tennessee Valley Authority (TVA), which is forthcoming in the International Journal of Project Management:
Philip Selznick’s first book —TVA and the Grass Roots: A Study in the Sociology of Formal Organization (1949) ("TGR")—tells the story of how the the ideals of the Tennessee Valley Authority (TVA) were thwarted by the reality of political pressures from its environment. Although TGR boasts one of the highest citations for a scholarly work in management, project management scholars do not cite it. Why has project management scholarship lost one of its founding classics? We investigate why TGR meets the criteria of a classic. We show that TGR’s focus on societal outcomes and ideals is an improvement on conventional project management’s focus on technical outputs and efficiency. Moreover, TGR contributes process theories — e.g., goal displacement and values depletion — for how major projects often fail. We conjecture that project management scholars ignore TGR because it represents uncomfortable knowledge. Project management discipline is in a crisis. We call for a humanist paradigm shift.
H/t: Legal Theory Blog

Chaudhry on proprietary rights in British India

Last year, Faisal Chaudhry, now at the University of Arizona, published "A Rule of Proprietary Right for British India: From revenue settlement to tenant right in the age of classical legal thought" in Modern Asian Studies 50:1. Here is the abstract:
Scholars have long debated the impact of the British ‘rule of property’ on
India. In our own day it has become common for historians to hold that the
Raj’s would-be regime of free capitalist property was frustrated by a pervasive
divide between rhetoric and reality which derived from a fundamental lack of
fit between English ideas and Indian land control practices. While seemingly
novel, the contemporary emphasis on the theory-practice divide is rooted in an
earlier ‘revisionist’ perspective among late-nineteenth-century colonial thinkers
who argued that land control in the subcontinent derived from a uniquely Indian
species of ‘proprietary’ (rather than genuinely propertied) right-holding. In this
article, I critically examine the revisionist discourse of ‘proprietary right’ by
situating it in a broader comparative perspective, both relative to earlier ideas
about rendering property ‘absolute’ during the East India Company’s rule and
relative to the changing conception of the property right among legal thinkers
in the central domains of the Anglo-common law world. In so doing, the article
significantly revises our understanding of the relationship between property, law,
and political economy in the subcontinent from the late eighteenth to the late
nineteenth century.

Cornell on "The Persistence of Anachronism and Presentism in the Academic Debate Over the Second Amendment"

In the tragically timely category -- we have word of a recent essay by Saul Cornell (Fordham University) in the Journal of Criminal Law and Criminology: "'Half-Cocked': The Persistence of Anachronism and Presentism in the Academic Debate Over the Second Amendment." The essay appeared in Volume 106, no. 2 (2016) and was a response a piece in the journal's 2015 symposium on the Second Amendment. Here's the abstract:
James Lindgren’s recent forward to The Journal of Criminal Law and Criminology’s 2015 symposium on “The Past and Future of Guns,” purports to be a neutral and scholarly account of the current state of the debate on the meaning of the Second Amendment. Lindgren’s introductory essay fails to achieve both of these goals. Rather than survey the pre-Heller scholarship in a comprehensive and even-handed manner, Lindgren provides a distorted and superficial account of the historical literature. He compounds this error by ignoring the vast post-Heller scholarly literature, failing to note that much of this recent body of scholarship has been deeply critical of Heller, and has generally vindicated the work of the historians he criticizes. Indeed, the evidence he himself offers in defense of his interpretation actually undercuts his claims about the meaning of the Second Amendment. Lindgren’s essay does not chart a path forward in this contentious debate, but proffers an incomplete and analytically flawed account of the Founding Era’s understanding of this important provision of the Constitution.

Wednesday, October 4, 2017

Dekle on the Murder Trials of Abraham Lincoln

Recently out from Southern Illinois University Press: Prairie Defender: The Murder Trials of Abraham Lincoln (May 2017), by George R. Dekle, Sr. (independent scholar). A description from the Press:
According to conventional wisdom, Abraham Lincoln spent most of his law career collecting debt and representing railroads, and this focus made him inept at defending clients in homicide cases. In this unprecedented study of Lincoln’s criminal cases, George Dekle disproves these popular notions, showing that Lincoln was first and foremost a trial lawyer. Through careful examination of Lincoln’s homicide cases and evaluation of his legal skills, Dekle demonstrates that criminal law was an important part of Lincoln's practice, and that he was quite capable of defending people accused of murder, trying approximately one such case per year. 
Dekle begins by presenting the viewpoints of not only those who see Lincoln as a perfect lawyer whose only flaw was his inability to represent the wrong side of a case but also those who believe Lincoln was a less-than-honest legal hack. The author invites readers to compare these wildly different stereotypes with the flesh-and-blood Lincoln revealed in each case described in the book, including an axe murder suit in which Lincoln assisted the prosecution, a poisoning case he refused to prosecute for $200 but defended for $75, and a case he won by proving that a supposed murder victim was actually still alive. 

Vaheesan on Antitrust in Two Gilded Ages

Sandeep Vaheesan, Regulations Counsel at the Consumer Financial Protection Bureau, has reminsicent of a classic article by my emeritus Georgetown Law colleague (and dean who hired me) Robert Pitofsky, The Political Content of Antitrust.  Mr. Vaheesan’s paper is Accommodating Capital and Policing Labor: Antitrust in the Two Gilded Ages:
In enacting the antitrust laws, Congress sought to prevent big businesses from maintaining and augmenting their power through collusion, mergers, and monopolistic practices and also aimed to preserve the ability of workers to act in concert. The antitrust laws have at times produced significant benefits for Americans. Antitrust achievements include the restructuring of the oil industry in 1911, the creation of competitive market structures in the mid-twentieth century, and the termination of AT&T’s telecommunications monopoly in 1984.

Yet, the history of antitrust in the United States is not one of uninterrupted successes. Over two multi-decade periods, the executive branch and federal courts, in enforcing and interpreting the antitrust laws, have failed to advance Congress’ vision and indeed inverted Congressional intent. During the original and current Gilded Ages, the antitrust laws were and have been used to protect the power of large-scale business and also to limit the autonomy of workers to organize and seek higher wages and better working conditions. Through this anti-labor application, the federal government has employed antitrust to aid big business, rather than restrain its power.

Despite this history of accommodating capital and policing labor, the antitrust laws can still be reinterpreted and redeemed. Executive and judicial action can remake these laws to control the power of large corporations through competitive market structures and also protect the freedom of all workers to organize for higher wages and better working conditions. A renewal of antitrust, in accordance with the expressed purposes of Congress, would help remedy the inequities of the New Gilded Age and create a more just society.
As it happens, just this morning I had another illustration of the appeal of the Gilded Age and Progressive Era for contemporary political analysts and commentators in an episode of the Washington Post’s “Daily 202,” podcast, Why a Republican strategist thinks we’re in a new Gilded Age.