Friday, February 23, 2018

Roiphe and Green on Presidential Control of the Department of Justice

Rebecca Roiphe, New York Law School, and Bruce A. Green, Fordham University School of Law, have posted Can the President Control the Department of Justice? which is forthcoming in the Alabama Law Review:
As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice and the Independent Counsel disagreed about whether the President, as head of the executive branch under Article II, could direct individual prosecutions if he so chose. The Supreme Court in United States v. Nixon left the issue unresolved and has never revisited it.

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.
H/t: Legal Theory Blog

Thursday, February 22, 2018

A Post-Doc at Northwestern's Center for Legal Studies

[We have the following announcement.]

Northwestern University’s Center for Legal Studies invites applications from outstanding candidates for a full-time, two-year, non-renewable teaching and research post-doctoral fellowship beginning fall 2018. The purpose of the fellowship is to recognize and support original interdisciplinary research and teaching in the study of law and inequality in race, crime, policing, mass incarceration, civil rights, and related subject areas.

Eligible candidates will hold a PhD in sociology, political science, history, psychology, economics or related disciplinary and interdisciplinary fields by the start of the appointment (August 15, 2018) and have a record of excellence in teaching and research in law and racial inequality.

The fellowship will be held in residence in Northwestern University’s Center for Legal Studies for two academic years (2018-19 & 2019-20).  Fellows will teach two (2) undergraduate courses per year of the fellowship (4 total) and participate in the intellectual life of the Center including attending speaker events, workshops and reading groups in interdisciplinary legal studies.

Application info here.

Shahani on Partition refugees in Bombay

Image result for "economic & political weekly"Uttara Shahani (Cambridge University) has published "Refugee Legal Challenges to Bombay Government's Land Requisition Housing Scheme: Nation-making in Partitioned India" in Economic & Political Weekly 53:4 (27 Jan. 2018), 73-79. Here is the abstract:
Partition refugees who arrived in India challenged the laws that various provincial governments enacted to "regulate" and "rehabilitate" them. By looking at one of the earliest and key cases concerning writs that emerged out of Sindhi refugee legal challenges to the Bombay government's land requisition scheme of 1947-48, this article suggests that partition refugees helped to shape the legal and constitutional landscape of newly independent India. 
Further information is available here.

Bilder to Speak on "The Lady and George Washington"

On Thursday, March 1st, from 4:00 pm - 5:30 pm at Luce Hall, 34 Hillhouse Avenue, Room 202, Yale University, Mary Sarah Bilder, the Founders Professor of  Law at Boston College Law School, will deliver the annual lecture of the Yale Center for Historical Enquiry and the Social Sciences, entitled The Lady and George Washington: The Constitutional Politics of Gender.

Wednesday, February 21, 2018

Szto on Chinese American Property Ownership

Mary Szto, Valparaiso University Law School, has posted From Exclusion to Exclusivity: Chinese American Property Ownership and Discrimination in Historical Perspective, which originally appeared in the Journal of Transnational Law and Policy 33 (2015-16):
Chinese investors are now the largest number of foreign investors in US residential and commercial real estate. Many buy in upscale, exclusive markets. It is little known, however, that in the past Chinese faced severe property discrimination in the US. This paper traces three eras of Chinese property ownership and discrimination. Many Chinese first came to the US for the 1849 Gold Rush and for building the first transcontinental railroad. However, during the Exclusion Era (1882-1943), Chinese were prohibited from immigrating to the US and becoming citizens because they were deemed unassimilable. Racial restrictive covenants in deeds were first used against the Chinese. Chinese lived in Chinatowns not only because of restrictive covenants, but because of extreme violence against them elsewhere. During the Cold War era, Chinese Americans were deemed a "model assimilated minority" worthy of living in suburbs. The Chinese had not changed, but geopolitics had. Unfortunately, the model minority myth pitted minority groups against each other. In the Post-Cold War era, the Chinese American population has multiplied. However, along with other Asian Americans and minorities, Chinese Americans face housing, education, and job discrimination. I conclude that we must unearth the past history of property discrimination to address continuing discrimination, leverage the current investment, and to seek property equity and healing communities for all.

Tuesday, February 20, 2018

Colwell on reclaiming native American culture

Chip Colwell, Denver Museum of Nature & Science, has published Plundered Skulls and Stolen Spirits: Inside the fight to reclaim Native America's Culture with the University of Chicago Press in its Law and Society series. The book won Choice Magazine's Outstanding Academic Title Award. From the publisher: 
Plundered Skulls and Stolen Spirits: Inside the Fight to Reclaim Native America's CultureWho owns the past and the objects that physically connect us to history? And 
who has the right to decide this ownership, particularly when the objects are sacred or, in the case of skeletal remains, human? Is it the museums that care for the objects or the communities whose ancestors made them? These questions are at the heart of Plundered Skulls and Stolen Spirits, an unflinching insider account by a leading curator who has spent years learning how to balance these controversial considerations.
Five decades ago, Native American leaders launched a crusade to force museums to return their sacred objects and allow them to rebury their kin. Today, hundreds of tribes use the Native American Graves Protection and Repatriation Act to help them recover their looted heritage from museums across the country. As senior curator of anthropology at the Denver Museum of Nature & Science, Chip Colwell has navigated firsthand the questions of how to weigh the religious freedom of Native Americans against the academic freedom of scientists and whether the emptying of museum shelves elevates human rights or destroys a common heritage. This book offers his personal account of the process of repatriation, following the trail of four objects as they were created, collected, and ultimately returned to their sources: a sculpture that is a living god, the scalp of a massacre victim, a ceremonial blanket, and a skeleton from a tribe considered by some to be extinct. These specific stories reveal a dramatic process that involves not merely obeying the law, but negotiating the blurry lines between identity and morality, spirituality and politics.
Things, like people, have biographies. Repatriation, Colwell argues, is a difficult but vitally important way for museums and tribes to acknowledge that fact—and heal the wounds of the past while creating a respectful approach to caring for these rich artifacts of history.
 Praise for the book:

 "Colwell ably and sensitively tells the often conflict-ridden story of how and why museums in the US relinquished their hold over this material. . . . Colwell finds himself squarely in the middle of each quandary: a practising anthropologist who works alongside Native Americans every day and is sensitive to their cultural dynamics. Colwell’s account favours the Native American perspective--a sensible approach for a book aimed at scientifically literate readers who may lean the other way. Readers will come away with a deeper appreciation of Native American cultural imperatives and the complexity of the situation." -New Scientist

Plundered Skulls and Stolen Spirits breaks new groundColwell’s dual roles of museum curator and human rights advocate offers a narrative of personal growth and professional practice that couples a humanist’s sensitivities with a historian’s insistence on primary documentary sources. The resulting breath of fresh air contributes mightily to still-controversial conversations about American reburial and repatriation. The message sounds loud and clear: Twenty-first century museums can indeed stand tall in addressing their own complex histories. Why do some still feel obliged to cover up past performance, to lock out qualified researchers from their archives and to sugar-coat their past in the hopes that nobody will notice?” -David H. Thomas

“Plundered Skulls and Stolen Spirits uses the story of one museum to show how Native American symbols of identity and ceremony and ancestral bones were initially appropriated as objects of cultural patrimony, but recently have become part of a complicated struggle of ownership. As Colwell profoundly shows, the emotional price paid by everyone involved—Native American, archaeologist, and museum curator—is never small.” -Larry J. Zimmerman

Further information is available here

Thomas Responds to Tidmarsh on English Fire Courts and Article III

Suja A. Thomas, University of Illinois College of Law, has posted The Limits of History: The English Fire Courts, Congress, the Seventh Amendment Civil Jury Trial, which appeared in the University of Chicago Law Review Online 83 (2018): 281-95.  It is a response to Jay Tidmarsh, The English Fire Courts and the American Right to Civil Jury Trial, 83 U Chi L Rev 1893 (2016).
Can Congress create Article III courts to decide civil cases where plaintiffs claim damages that are related to certain crises, such as the mortgage crisis--thus, shifting those cases from juries to judges to decide? Jay Tidmarsh said yes in an article published in the University of Chicago Law Review. He did not properly consider, however, the limits of history's influence on the Seventh Amendment. This article describes those limits and the actual conditions for the right to a jury trial in the late eighteenth century--the relevant time period for determining the scope of the jury trial. It further shows that Congress does not have the significant authority to usurp the jury for which Tidmarsh has argued.

Baldy Fellowships in Interdisciplinary Legal Studies, 2018-2020: Call for Applications

UPDATE: The deadline for these fellowships has been extended to March 9.

We have the following call for applications:
The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social and natural sciences. 
Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to university libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.), and are encouraged to develop collaborative research projects with faculty members where appropriate. 
Post-Doctoral Fellowships are available to individuals who have completed the Ph.D. or J.D. but have not yet begun a tenure-track appointment. Post-Doctoral Fellows will receive a stipend of $40,000, up to $2000 in annual professional travel support, and appropriate relocation assistance. Post-doctoral fellowships are ordinarily for a period of two academic years. Information on current and past Baldy Post-Doctoral Fellows is available here.

Senior Fellowships are available for established scholars who wish to work at the Center, typically during a funded sabbatical or research leave. Awardees will receive a living expense allowance of $1,800 per month during the period of their residence as well as appropriate relocation assistance. Senior Fellows typically spend one semester in residence, but other terms are possible. Information on current and past Baldy Senior Fellows is available here.
For more information and to apply, follow the link: Baldy Fellowships in Interdisciplinary Legal Studies 2018.

Monday, February 19, 2018

Chigozie on International Organizations and Global Security

Nnuriam Paul Chigozie, University of Lagos, has posted The Quest for Global Security and Peace, and the Rise of International Organizations: Historical Perspective, which appears in the Equatorial Journal of History and International Relations 1 (2018): 1-12:
Among the central concerns of international politics are questions of war and peace. Why does war happen? How can wars be ended? Is it possible to avoid conflicts altogether? Throughout the course of world history, people aspired for global peace, security, socio-cultural relationship, and global federations. The Peace of Westphalia signed in October 1648 saw the rise of sovereign states in the modern sense in Europe, but the cause of global peace and security did not receive a significant boost until more than a century and a half thereafter, when the Congress of Vienna consciously attempted, for the first time in modern diplomatic history, to substitute an idea of the collective peace and security of Europe in place of old competitive security that had survived in the Balance of Power system. Against this background, this study aims to analyze how the quest for global peace and security led to the rise of international organizations over the years.

Bluff, "Against the Deportation Terror"

New from Temple University Press: Against the Deportation Terror: Organizing for Immigrant Rights in the Twentieth Century (Nov. 2017), by Rachel Ida Bluff (University of Wisconsin-Milwaukee). A description from the Press:
Despite being characterized as a "nation of immigrants," the United States has seen a long history of immigrant rights struggles. In her timely book Against the Deportation Terror, Rachel Ida Buff uncovers this multiracial history. She traces the story of the American Committee for the Protection of the Foreign Born (ACPFB) from its origins in the 1930s through repression during the early Cold War, to engagement with "new" Latinx and Caribbean immigrants in the 1970s and early 1980s. 
Functioning as a hub connecting diverse foreign-born communities and racial justice advocates, the ACPFB responded to various, ongoing crises of what they called "the deportation terror." Advocates worked against repression, discrimination, detention, and expulsion in migrant communities across the nation at the same time as they supported reform of federal immigration policy. Prevailing in some cases and suffering defeats in others, the story of the ACPFB is characterized by persistence in multiracial organizing even during periods of protracted repression. 
By tracing the work of the ACPFB and its allies over half a century, Against the Deportation Terror provides important historical precedent for contemporary immigrant rights organizing. Its lessons continue to resonate today.
An advance review:
"Against the Deportation Terror makes a significant contribution to the historiography of immigration, citizenship, and noncitizenship. Buff's revisionist history of the American Committee for the Protection of the Foreign Born (ACPFB) provides the framework for her larger argument about the political mobilization of noncitizens within the increasingly repressive immigration regime between the 1920s and the early 1960s. The ACPFB's history is vital to an understanding of the historical roots of the contemporary immigrants' rights movement. This book will play a major role in the burgeoning scholarship on the history of the multinational 'American Left' in the twentieth century."
—David Gutiérrez
More information is available here.

Sunday, February 18, 2018

Sunday Book Review Roundup

Tera Hunter's Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century is reviewed at Common-Place.

At Public Books is a review of We Will Win the Day: The Civil Rights Movement, the Black Athlete, and the Quest for Equality by Louis Moore.

Marjorie Spruill's Divided We Stand: The Battle Over Women's Rights and Family Values That Polarized American Politics is reviewed in The Washington Independent Review of Books.

In The Washington Post is a review of Black Fortunes: The Story of the First Six African Americans Who Escaped Slavery and Became Millionaires by Shomari Wills.

As always there are several interviews of interest at the New Books Network.  Sasha Turner discusses her Contested Bodies: Pregnancy, Childrearing, and Slavery in JamaicaMahon Murphy speaks about his Colonial Captivity during the First World War: Internment and the Fall of the German Empire, 1914-1919Howard I. Kushner is interviewed about his On the Other Hand: Left Hand, Right Brain, Mental Disorder, and HistoryChristopher Grobe introduces his The Art of Confession: The Performance of Self from Robert Lowell to Reality TVChristopher Haber speaks about his I Remain Yours: Common Lives in Civil War LettersFinally, Richard Brown discusses his Self-Evident Truths: Contesting Equal Rights from the Revolution to the Civil War.

In The Nation, Gabriel Winant reviews Lane Windham's Knocking on Labor’s Door: Union Organizing in the 1970s and the Roots of a New Economic Divide.  Also in The Nation is a review of The Impossible Presidency: The Rise and Fall of America's Highest Office by Jeremi Suri.

Richard Rothstein's The Color of Law: A Forgotten History of How Our Government Segregated America ireviewed in The New York Review of Books

Roxanne Dunbar-Ortiz's Loaded: A Disarming History of the Second Amendment is reviewed in the Los Angeles Review of Books.  Also at the site is a review of 1984: India's Guilty Secret by Pav Singh.  FinallyThe Gifted Generation: When Government Was Good by David Goldfield is also reviewed at LARB.

Saturday, February 17, 2018

Weekend Roundup

  • The Franklin D. Roosevelt Presidential Library and Museum will present an African American History Month conversation and book signing with David Lucander, the author of Winning the War for Democracy: The March on Washington Movement, 1941-1946 on Wednesday, February 28, 2018. The program will begin at 7:00 p.m. in Henry A. Wallace Center at the FDR Presidential Library and Home"  More
  • We were looking for something else when we stumbled upon Harvard Law Record podcasts with HLS legal historians Tomiko Brown-Nagin (All Rise! Episode 5) and Michael Klarman (All Rise! Episode 6).
    (Credit: #dc1968)
  • Detroit's engagement with the 50th anniversary of the 1967 rebellion has been fascinating to observe.  Here's the latest, from The Intelligencer, on DC's engagement with 1968, fifty years on: "In honor of the 50th anniversary of the events of 1968, DC Public Library has compiled a Library Resource Guide to help you navigate the many collections and events the Library has to offer in commemoration of that momentous year. The guide includes Evolutions and Legacies: Martin Luther King, Jr. and D.C., 1957-1972, an online exhibit curated by Special Collections Archivist Derek Gray and #dc1968 project curator, Dr. Marya A. McQuirter."
  • UPDATE: From Muster, the blog of the Journal of the Civil War Era, Martha S. Jones (Johns Hopkins) on "Legal History's Debt to Frederick Douglass." "[A]cross his lifetime, Douglass never forget how [Justice] Taney had used the high court to demean African Americans. From the podium and the pen, Douglass made a record that has endured and thus ensured Dred Scott will be long remembered as the lowest point in the history of race and law."
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, February 16, 2018

Thompson Reviews MacLean's "Democracy in Chains"

Fred Thompson, Willamette University, has posted  Public Choice and the Origins of the Radical Right: A Review of Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America.
Democracy in Chains is a heck of a read, but it is, at its core, fundamentally flawed. Its core is a confrontation with James Buchanan and the origins of public choice theory, which argues that public choice is a backlash to both the New Deal and the civil rights movement. The flaw reflects MacLean’s misapprehension of the content of public choice theory and its implications, a misunderstanding of what Buchanan actually believed (or, at least, claimed to believe), and, therefore, an unwarranted leap from Buchanan’s role in creating public choice theory to all things nasty about right-wing politics.

Saavedra on the Property on the Chilean Frontier, 1790-1830

Manuel Bastias Saavedra, University of Bremen, has posted The Lived Space: Possession, Ownership, and Land Sales on the Chilean Frontier (1790-1830), which appears (and may be cited) in Historia Crítica 67
By looking into sales of indigenous land in the territory of Valdivia between 1790 and 1830, this article discusses how legal interactions were tied to the local spaces of rural habitation. Since ownership was linked with possession and use in Spanish colonial law, local social relations and shared local knowledge were crucial for determining legal ownership and ensuring the validity of land transfers. This article provides insights into how law operated in newly integrated colonial spaces, and reveals that land transfers did not yet constitute purely contractual relations but were instead socially negotiated transactions involving different levels of authority and dependency.

Schmidt on Enforcing the 14th Amendment

Christopher W. Schmidt, Chicago-Kent College of Law, has posted Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan, which is forthcoming in volume 113 of the Northwestern University Law Review:
William J. Brennan (LC)
Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan (1966). Justice Brennan’s opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation” the rights enumerated in that amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in Boerne v. Flores (1997) the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today Morgan stands largely as an aberration of American constitutional law.

This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history of Section 5 during a period when most have assumed it had no presence, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.

Pritchard and Thompson on the 2d Circuit and Securities Law in the 60s

Adam C. Pritchard, University of Michigan Law School, and Robert B. Thompson, Georgetown University Law Center, have posted Securities Law in the Sixties: The Supreme Court, the Second Circuit, and the Triumph of Purpose Over Text:
Henry J. Friendly (credit)
This articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.

Thursday, February 15, 2018

Moyn on Legal History as a Source of International Law

This is gated, but it ended up in our inbox and is interesting, so we’re posting it anyway: Samuel Moyn, Legal History as a Source of International Law: The Politics of Knowledge, in the Oxford Handbook of the Sources of International Law, edited Samantha Besson and Jean d’Aspremont:
This chapter maintains that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. It begins by laying out this argument, before assessing its implications for mainstream accounts of the sources of international law. The chapter goes on to explore a recent legal conflict in which history figured in order to test and improve the claim that history is political. It looks at the recent contention in US courts interpreting the Alien Tort Statute (1789) about whether a norm of corporate liability for atrocity crimes is part of customary international law. Finally, the chapter concludes that this fascinating instance of the uses of history in the ascertainment of the requirements of international law fits well the theory that historical knowledge is ineradicably political, though contained by professionalism.
Here are the parts of the piece:
I. Introduction
II. History of International Law as Contemporary Politics
III. Historians versus Lawyers: A Brief Contrast
IV. The Setting: The Alien Tort Statute in US Courts
V. Analysing the Historical Debate
VI. Conclusion: How the Past Matters in International Law
Research Questions
Selected Bibliography

2018 LSI Annual Graduate Student Paper Competition

[We are moving this post up, because the deadline is two weeks away.]

[We have the following announcement. Deadline: March 1, 2018]

Image result for "Law and social inquiry"The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of law and social science written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted starting January 1, 2018 and must be received by March 1, 2018.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper and contact details for the student. Submissions will be evaluated by our editors.  The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. All submissions (direct and faculty nominated) are weighted equally in the competition. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US).

Please send your article as a Microsoft Word document or PDF to  Please indicate that (1) you intend to be considered in the competition, (2) you are currently a graduate student, and (3) you have not submitted your article to other journals for publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once they have been received by our office.

Submissions must include a title page with a mailing address, e-mail address, and phone number. The second page should include a 100-150 word abstract. Beginning on the third page, all pages should be paginated.  Text, footnotes, endnotes, and references should be double-spaced in Times New Roman 12 point font and have 1” margins on all sides with no headers or footers.  Submissions must not exceed 15,000 words, including references and footnotes.

Questions regarding the competition can be directed to Willa Sachs: 988-6517. 

Kay on Amending the US Constitution

Richard S. Kay, University of Connecticut School of Law, has posted Formal and Informal Amendment of the United States Constitution, which is forthcoming in the American Journal of Comparative Law:
This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitutions in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of stability and predictability, the reasons we have a written constitution in the first place.

White on Rhodesia & African decolonization

Out with the University of Chicago Press' Law and Society series, we missed this one when it appeared in 2015. Luise White (University of Florida) has published Unpopular Sovereignty: Rhodesian Independence and African Decolonization. From the press:
Unpopular Sovereignty: Rhodesian Independence and African Decolonization by White, Luise (2015) PaperbackIn 1965 the white minority government of Rhodesia (after 1980 Zimbabwe) issued a unilateral declaration of independence from Britain, rather than negotiate a transition to majority rule. In doing so, Rhodesia became the exception, if not anathema, to the policies and practices of the end of empire. In Unpopular Sovereignty, Luise White shows that the exception that was Rhodesian independence did notin fact, make the state that different from new nations elsewhere in Africa: indeed, this history of Rhodesian political practices reveals some of the commonalities of mid-twentieth-century thinking about place and race and how much government should link the two.  
White locates Rhodesia’s independence in the era of decolonization in Africa, a time of great intellectual ferment in ideas about race, citizenship, and freedom. She shows that racists and reactionaries were just as concerned with questions of sovereignty and legitimacy as African nationalists were and took special care to design voter qualifications that could preserve their version of legal statecraft. Examining how the Rhodesian state managed its own governance and electoral politics, she casts an oblique and revealing light by which to rethink the narratives of decolonization.
Praise for the book:

“This is a thorough, comprehensive, and well-researched book that will be the essential starting point for the reconsideration of Zimbabwe’s recent history and historiography. A sharply acute and very readable study that resets the foundations for the understanding of Rhodesia’s Unilateral Declaration of Independence in 1965, it sets the events surrounding and following UDI in the context of African decolonisation and in their international context. With fascinating accounts of the constitutional machinations and the regime of economic sanctions and its failures, it is unrivalled as a rich resource for the period based on a very wide range of sources.” -Martin Chanock

“White’s Unpopular Sovereignty is a groundbreaking contribution to studies of decolonization. She places the seemingly anomalous history of Rhodesian independence within the decolonization of the rest of Africa. This is combined with a reanimation of the history of the ‘high politics’ of late colonialism by incisive accounts of the effects of various franchise commissions and experiments at constitution writing. The result is one of the most decisive challenges to linear versions of decolonization: of Rhodesia-into-Zimbabwe, to be sure, but also, more broadly, of colonies into nation-states. Written with characteristic brilliance, verve, and wit, Unpopular Sovereignty will become indispensable reading for scholars of colonialism and of the postcolonial world.” -Mrinalini Sinha

“Set in the late-colonial context of decolonization in Africa, this masterful book demonstrates that sovereignty does not flow in a linear fashion and according to preordained coordinates; and, that its predicates and foundations—political autonomy and self-government, on the one hand, and political identity and subjectivity, on the other—abide time and space in unpredictable ways. Relating the arguments to contemporary Zimbabwe, White demonstrates once and for all that the nature of sovereign power or associated political processes and outcomes are better understood through the manners in which shifting terrains of global, regional, and local alliances shaped the interests and the terms of the quest for power for protagonists—white minorities and so-called native populations alike. This is a truly impressive intervention in the historiography (and theory) of decolonization in Zimbabwe that holds significant insights for accounts of postcolonial sovereignty everywhere. Simply wonderful and a joy to read.” -Siba N'Zatioula Grovogui

Further information is available here

Lynch's History of Circuit Courts in the Early American Republic

David Lynch,a retired English Circuit Judge and a Master of the Bench of the Honourable Society of the Middle Temple, has published The Role of Circuit Courts in the Formation of United States Law in the Early Republic: Following Supreme Court Justices Washington, Livingston, Story and Thompson (Hart, 2018):
While scholars have rightly focused on the importance of the landmark opinions of the United States Supreme Court and its Chief Justice, John Marshall, in the rise in influence of the Court in the Early Republic, the crucial role of the circuit courts in the development of a uniform system of federal law across the nation has largely been ignored. This book highlights the contribution of four Associate Justices (Washington, Livingston, Story and Thompson) as presiding judges of their respective circuit courts during the Marshall era, in order to establish that in those early years federal law grew from the 'inferior courts' upwards rather than down from the Supreme Court. It does so after a reading of over 1800 mainly circuit opinions and over 2000 original letters, which reveal the sources of law upon which the justices drew and their efforts through correspondence to achieve consistency across the circuits. The documents examined present insights into momentous social, political and economic issues facing the Union and demonstrate how these justices dealt with them on circuit. Particular attention is paid to the different ways in which each justice contributed to the shaping of United States law on circuit and on the Court and in the case of Justices Livingston and Thompson also during their time on the New York State Supreme Court.
An endorsement that matters:
“Exhaustively researched and admirably argued, this book analyzes the crucial role played by the federal circuit courts in bridging the diversity of the new nation and the need to establish a unified body of national law. It also throws important new light on the internal operation of the Marshall Court. A significant contribution to our understanding of the federal court system of the early republic.” 
Professor R Kent Newmyer, University of Connecticut School of Law
Table of Contents after the jump.

Wednesday, February 14, 2018

Crowdsourcing SCOTUS Conference Notes

Marcia Coyle reports in the National Law Journal on @SCOTUSNotes, a crowdsourcing project to transcribe the conference notes of justices of the US Supreme Court.  “The initial focus of the project,” she reports, “is on 12,600 pages of notes taken by Justices William Brennan Jr. and Harry Blackmun in cases decided between 1959 and 1994, and overlapping notes taken by Blackmun and Brennan between 1970 and 1990.”  H/t: J. Grisinger.

Find a Co-Panelist for ASLH 2018!

[We're moving this up, as the deadline is now just two weeks away.]

[We here at Legal History Blog are happy to facilitate the matching service envisioned in this message from our friends at the American Society for Legal History, and we’ll be sure to post any comments we receive promptly.  Those ISO another papergiver or commentator should also consider posting to H-Law, which reaches scholars LHB may not.]

 The deadline to submit panels and papers for the 2018 ASLH Annual Meeting in Houston, Texas, is March 1, 2018. As the Call for Papers notes, “Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.” To help those of you with individual papers find other like-minded presenters to organize panels, the comments to this post are open. Feel free to post your paper topic and/or panel idea below (and make sure to include an email address or other contact information). And please feel free to spread the word (the conference hashtag is #ASLH2018).

Stevens's "A Time for Scandal"

Rosemary Stevens, professor emeritus at the University of Pennsylvania, has published A Time of Scandal: Charles R. Forbes, Warren G. Harding, and the Making of the Veterans Bureau, with the Johns Hopkins University Press.
In the early 1920s, with the nation still recovering from World War I, President Warren G. Harding founded a huge new organization to treat disabled veterans: the US Veterans Bureau, now known as the Department of Veterans Affairs. He appointed his friend, decorated veteran Colonel Charles R. Forbes, as founding director. Forbes lasted in the position for only eighteen months before stepping down under a cloud of criticism and suspicion. In 1926—after being convicted of conspiracy to defraud the federal government by rigging government contracts—he was sent to Leavenworth Penitentiary. Although he was known in his day as a drunken womanizer, and as a corrupt, betraying toady of a weak, blind-sided president, the question persists: was Forbes a criminal or a scapegoat?

Historian Rosemary Stevens tells Forbes’s story anew, drawing on previously untapped records to reveal his role in America’s initial and ongoing commitment to veterans. She explores how Forbes’s rise and fall in Washington illuminates President Harding’s efforts to bring business efficiency to government. She also examines the Veterans Bureau scandal in the context of class, professionalism, ethics, and etiquette in a rapidly changing world. Most significantly, Stevens proposes a fascinating revisionist view of both Forbes and Harding—and raises questions about not only the validity but the source of their respective reputations. They did not defraud the government of billions of dollars, Stevens convincingly documents, and do not deserve the reputation they have carried for a hundred years.

Packed with vibrant characters—conniving friends, FBI agents, and rival politicians split by sectional and ideological interests as well as gamblers, revelers, and wronged wives— A Time of Scandal will appeal to anyone interested in political gossip, presidential politics, the "Ohio Gang," and the 1920s.

Research Fellowship with the NYU Center on the Administration of Criminal Law

We have the following call for applications:
The Center on the Administration of Criminal Law at NYU Law School is a nonpartisan research center that focuses on good government practices in the criminal justice system. Its primary areas of research include the role of mercy and the opportunity for second chances in the justice system. Through the Mercy Project, it has worked on obtaining federal and state clemency grants for individuals incarcerated in prison. 
As part of this research agenda, the Center is seeking applicants for a one-year research fellowship that focuses on the historical use of the state clemency power. The research will involve analyzing and writing about historical state clemency grants in an effort to understand how government actors and the public viewed the clemency power, with the goal of contributing to, and reshaping, current attitudes toward clemency and the notion of who is “deserving” of second chances in our justice system today. Research will likely involve a combination of primary and secondary source review, and some travel may be required. Salary is $55,000, and the position will remain open until filled. 
While the ideal candidates are those who have completed coursework for a doctorate or who have recently been awarded a doctoral degree, candidates with a J.D. and strong history training will also be considered.

Interested candidates should email a transcript from their most recent academic institution, resume, and writing sample to

Schmidt on Civil Rights since the Civil War

Christopher W. Schmidt, Chicago-Kent College of Law, has posted the introduction to Civil Rights: An American History, a book under contract with the Cambridge University Press:
This book is a history of how Americans have struggled over the meaning of civil rights from the Civil War through today. I explain how a label initially deployed in the aftermath of the Civil War as a term of legal categorization, valued (and challenged) as much for what it excluded as for what it protected, morphed into something quite different in the twentieth century. A narrow term of law became, in the 1940s, an agenda for policy reform and then, in the 1960s, a rallying cry for a social movement. Yet even as the movement for this new, emboldened idea of civil rights remade American life and law, progressive activists challenged its perceived limitations. They argued that civil rights reforms failed to break down the entrenched inequalities that still defined American society, that what was needed was a different mindset, more ambitious legal tools, and more far-reaching labels, such as social and human rights. In the years following the civil rights movement, conservatives began to describe their own agenda of law-and-order policies, ending affirmative action, and opposing abortion as protecting civil rights. Liberals denounced what they saw as the illegitimate cooptation of the term, while at the same time framing their own causes—equal rights for women, the disabled, LGBT people—as new battles for civil rights.

The premise of Civil Rights: An American History is that there has never been a singular, unchanging definition of civil rights. My goal is to reconstruct the concept in all its complexity; to not dismiss paradox or contradiction as errors or mistakes but to use them to help illuminate the public meaning of civil rights. I want to excavate the term as it was used and contested, redefined and redeployed. On a more general level, this book offers a case study of how the words and categories by which we understand our world become objects of contestation and points of leverage for social, political, and legal action.

Civil rights has become one of the most powerful and contested terms of our present-day struggles. Its power lies in its distinctive blend of abstract idealism and historical specificity. One cannot speak of civil rights without referencing the history of civil rights, without placing today’s struggles alongside past struggles. To debate the meaning of civil rights today is to debate the history of civil rights in America. This book provides the first comprehensive account of that history.

Tuesday, February 13, 2018

An Essay Collection on Reconstruction and Race (in)Justice

New from Edward Elgar is Reconstruction and the Arc of Racial (in)Justice, edited by Julian Maxwell Hayter and George R. Goethals, both of the University of Richmond:
This collection of original essays and commentary considers not merely how history has shaped the continuing struggle for racial equality, but also how backlash and resistance to racial reforms continue to dictate the state of race in America. Informed by a broad historical perspective, this book focuses primarily on the promise of Reconstruction and the long demise of that promise. It traces the history of struggles for racial justice from the post US Civil War Reconstruction through the Jim Crow era, the Civil Rights and Voting Rights decades of the 1950s and 1960s to the present day.

The book uses psychological, historical and political perspectives to put today’s struggles for justice in historical perspective, considering intersecting dynamics of race and class in inequality and the different ways that people understand history. Ultimately, the authors question Martin Luther King, Jr.’s contention that the moral arc of the universe bends toward justice, challenging portrayals of race relations and the realization of civil rights laws as a triumph narrative.

Scholars in history, political science and psychology, as well as graduate students in these fields, can use the issues explored in this book as a foundation for their own work on race, justice and American history.
TOC is here.

Kimmel on conversion in early modern Spain

Out with the University of Chicago Press' Law and Society series, we missed this one when it appeared in 2015. Seth Kimmel (Columbia University) has published Parables of Coercion: Conversion and Knowledge at the end of Islamic SpainThe book was awarded the American Comparative Literature Association's Harry Levin Award in 2017. From the press:
Parables of Coercion: Conversion and Knowledge at the End of Islamic Spain
In the sixteenth and seventeenth centuries, competing scholarly communities sought to define a Spain that was, at least officially, entirely Christian, even if many suspected that newer converts from Islam and Judaism were Christian in name only. Unlike previous books on conversion in early modern Spain, however, Parables of Coercion focuses not on the experience of the converts themselves, but rather on how questions surrounding conversion drove religious reform and scholarly innovation.
In its careful examination of how Spanish authors transformed the history of scholarship through debate about forced religious conversion, Parables of Coercion makes us rethink what we mean by tolerance and intolerance, and shows that debates about forced conversion and assimilation were also disputes over the methods and practices that demarcated one scholarly discipline from another.
 Praise for the book:

"In Parables of Coercion Kimmel succeeds wonderfully in excavating the intersection of early modern Spanish socioreligious and intellectual history and in deciphering its various discourses....Kimmel further uncovers the dialectical relationship between socioreligious discord and innovative cultural production by religious intellectuals in seventeenth-century Spain, and in the process he manages brilliantly to render meaningless the conventional, simplistic characterization of early modern Spain as a purely intolerant society. It was far more complicated during the sixteenth century afterlife of Islamic Spain than historiographical orthodoxy suggests." -Modern Philology

"Ranging across canon law, sacred philology, and history in sixteenth- and early seventeenth-century Spain, Seth Kimmel aims to demonstrate how the phenomenon of Muslim converts to Christianity was entertained by experts in those disciplines, as well as the ways in which the Morisco question affected the disciplines themselves." -Renaissance Quarterly

"Kimmel has written a fascinating study of the learned cultures built out of a century of Spanish Christian intolerance toward Islam, beginning with the coerced conversion of Spain's Muslims to Christianity in the early sixteenth century, to the expulsion of the Moriscos (as the converts and their descendants were called) in the early seventeenth. He shows us how the evolving  'Morisco question' animated the emergence of disciplines such as philology, history, theology, political theory, and economics. In the process, he provides us with an alternate and disquieting history of our own scholarly, political, and religious practices." -David Nirenberg

Further information is available here.

Connor Named LHR's First Associate Editor for Digital Projects

[We have the following announcement.]

The Law and History Review is please to announce that Dr. Michan Connor has been selected as the journal's first Associate Editor for Digital Projects.  Michan is an interdisciplinary scholar of urban America, whose work addresses the relationship between metropolitan political fragmentation and racism and the significance of cities in American democracy. His work has been published in venues including the Journal of Urban History, Journal of Urban Affairs, and American Studies. He earned a doctorate in American Studies and Ethnicity from the University of Southern California, and has served as a faculty member at the University of Texas at Arlington and a visiting scholar at the James Weldon Johnson Institute at Emory University. He now lives in the Washington, D.C. area.

Congratulations, Michan Connor!

Monday, February 12, 2018

Crowdsourcing an Early Mass Jurist

We do our part.  From a WBUR report, incorporated into a post on NPR:
Among what it calls its "extensive collection of historic paintings and photographs," the Massachusetts Supreme Judicial Court has an oil painting of a justice who has remained unidentified, and it's launched a public campaign in the hopes that someone knows who he is.
In a statement, the court said the justice "may have sat on the bench between 1780 and 1820."
H/t: J. Grisinger.

Gordon on Wenger, "Religious Freedom"

Over at JOTWELL, LHB guest blogger Sarah Barringer Gordon (University of Pennsylvania) has posted an admiring review of Religious Freedom: The Contested History of an American Ideal (University of North Carolina Press, 2017), by Tisa Wenger (Yale University). Here's a taste:
Most likely, Tisa Wenger’s new book Religious Freedom: The Contested History of an American Ideal is not on many law professors’ reading lists. But for anyone who is interested in issues of church and state, race, and American empire, it should be. Wenger has uncovered a powerful collection of movements, legal claims, and government interference in religious life in the early twentieth century. Many of us have either never heard of them, or have not understood how crucial they were to religion’s role in public policy and (occasionally) resistance to government power. This is not a book written by a legal expert: the terms “disestablishment” and “free exercise” don’t appear here. But it is full of constitutional claims and legal conflict, as well as a careful examination of the incentives for invoking religious freedom.
Read on here.

Saturday, February 10, 2018

Weekend Roundup

  • More on ASLH stalwart Patti Minter's candidacy for a seat in the Kentucky legislature. 
  • We've previously mentioned the legal history feature on the OAH's Process blog. Follow the link to see new posts by Katrina Jagodinsky (University of Nebraska), Gregory Evans Dowd (University of Michigan), and Andrea Geiger (Simon Fraser University).
  • Thursday was Legal Records Appreciation Day in Vermont!  The declaration was in conjunction with the a tribute for Dr. Samuel B Hand. who, vermontbiz reports, laid “the ground work for the identification, preservation and accessibility of legal records, specifically court records, in this state.”
  • The Smithsonian recently published a story on new database on “New York’s Historic Ties to Slavery,” with “searchable records of slavery from birth registrations to runaway slave advertisements.”
  • Amir Toft and Raha Rafii are seeking panelists for an ASLH proposal on "Courts and Judges in Islamic History." Please e-mail them by Feb.16 if you'd like to join forces: Details posted on H-Law here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.