Thursday, December 13, 2018

Barnett on Lochner

Randy E. Barnett, Georgetown University Law Center, has posted After All These Years, Lochner Was Not Crazy — It Was Good, which appears in the Georgetown Journal of Law & Public Policy 16 (2018): 437-43
For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.
H/t: Legal Theory Blog

Witt on Calvin on Marriage

John Witte, Emory University School of Law, has posted The Marital Covenant in John Calvin’s Geneva, which appears in Political Theology 19 (2018): 282-299:
John Calvin (LC)
This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and discernible goods and goals that couples and communities alike had to support. This covenantal framework gave Calvin new rationales for old rules concerning marital and non-marital sex and cohabitation, courtship and weddings, procreation, nurture, and education of children, and the punishment of adultery, polygamy, and “unnatural” sex within and beyond the marital bed. But Calvin also set out new teachings on the proper communal formation and maintenance of the marital covenant, and introduced into Genevan law the rights of husbands and wives alike to divorce and remarry in cases of hard fault.

Wednesday, December 12, 2018

Tobin Project Jobs and Request for Proposals on Cultural Capture

The Tobin Project is seeking “talented recent graduates and current seniors” to “join our team as Research Analysts and Case Writers. Research Analysts work with leading social scientists and Tobin Project staff to generate and diffuse rigorous social science research aimed at solving important problems facing society. Case Writers translate such academic research into pedagogical case studies.

With the Social Science Research Council (SSRC), it is also requesting proposals for “graduate student research on ‘cultural capture’ and its relevance to executive branch rulemaking. Cultural capture refers to the possibility that informal connections between regulators and representatives of regulated industries, such as shared identities and overlapping social networks, may well lead to undue special interest influence. We are especially interested in proposals that will investigate the possibility of cultural capture through examination of ‘regulatory-adjacent spaces’—such as industry association meetings, policy conferences, and job fairs—where regulators and industry officials may socialize.”  Deadline January 18, 2019

Washington History Seminar Spring 2019 Schedule

The Spring 2019 schedule for the Washington History Seminar is out:

January 14      Panel Discussion: Joshua Shifrinson on Rising Titans, Falling Giant: How Great Powers Exploit Power Shifts; Joseph Parent and Paul MacDonald on Twilight of the Titans: Great Power Decline and Retrenchment; David Edelstein on Over the Horizon: Time, Uncertainty, and the Rise of Great Powers; Stacie Goddard on When Right Makes Might: Rising Powers and World Order

January 28      Derek Leebaert on Grand Improvisation: America Confronts the British Superpower, 1945-1957

February 4      Kathleen Day on Bankers, Bailouts, and the Struggle to Tame Wall Street

February 12*   Fitzhugh Brundage on Civilizing Torture: An American Tradition

February 25     Kate Lemay on Triumph of the Dead: American WWII Cemeteries, Monuments, and Diplomacy in France

March 4           Stephan Kieninger on The Diplomacy of D├ętente: Cooperative Security from Schmidt to Shultz

March 11         Ngoei Wen-Qing on The Arc of Containment: Britain, the United States, and Anticommunism in Southeast Asia

March 18         Devin Fergus on Land of the Fee: Hidden Costs and the Decline of the American Middle Class 

March 25         Gail Hershatter on Women and China’s Revolution

April 1             Sarah Igo on The Known Citizen: A History of Privacy in Modern America

April 4*            Robert Jervis on How Statesmen Thing: The Psychology of International Politics

April 8             Jennifer Miller on Cold War Democracy: The United States and Japan

April 15           Daniel Immerwahr on How to Hide an Empire: A History of the Greater United States

April 22           Felix Boecking on No Great Wall: Trade, Tariffs, and Nationalism in Republican China, 1927-1945

April 29           Konrad Jarausch on Broken Lives: How Ordinary Germans Experience the Twentieth Century

May 6             Piotr Kosicki on Catholics on the Barricades: Poland, France and Revolution, 1891-1956

May 13           Joanne Freeman on The Field of Blood: Violence in Congress and the Road to Civil War

*event does not take place on Monday

Kumarasingham on Commonwealth constitutional history

Harshan Kumarasingham, University of Edinburgh, has published "Written Differently: A Survey of Commonwealth Constitutional History in the Age of Decolonisation." Here's the abstract for the article, which came out in the Journal of Imperial and Commonwealth History, 46 (2018):5, 874-908:
This article provides a survey and definition of the field of Commonwealth constitutional history since 1918, especially during and after global decolonisation. It asks what is Commonwealth constitutional history and how it differs from its English and Imperial counterparts. The article puts forward a working definition of Commonwealth constitutional history and introduces key and diverse writers who illustrate the range and potential of this history. The article provides an historiography and survey of constitutional history in the Pre-Commonwealth and Post-war Commonwealth periods while also assessing the opportunities of Post-British Commonwealth constitutional history. The objective of this article is to show how Commonwealth constitutional history can contribute to the historical study of state power and to see its worth to other disciplines and fields of history. Commonwealth constitutional history is a necessity to examine the politics, power and consequences of the British empire during the long age of decolonisation.
Further information is available here

Tuesday, December 11, 2018

Assembling My Own Legal History Course Materials

As I mentioned in an earlier post, a few years ago I decided to start assembling my own primary source materials, tailored to the dates and coverage of my courses. (This also reduced course costs—I post the materials via our course management system, allowing students to print and/or view the materials online, as they like.) I initially expected the process to be fairly straightforward; I had taught legal history courses many times over, and thus knew what kinds of materials would illustrate, complement, and complicate my lectures and the historical scholarship I assigned. However, it turned out to be much more time consuming than I had anticipated, because there’s just so much fascinating material one could assign, and it was so easy to go down rabbit holes. Although I thought I knew what I was looking for, I kept finding materials sources that were so intriguing that I rewrote some lectures entirely in order to include them.

The first and easiest part of the task was gathering cases, statutes, and other sources I’d already been teaching and wanted to continue using. For each, though, I now had to decide how much of the original source to include. For example, I had long used casebook excerpts of seventeenth and eighteenth-century Virginia statutes regarding servitude and slavery, but there was so much rich and interesting material in the statute books that it was hard to figure out what to exclude. And editing nineteenth and twentieth-century judicial opinions for an undergraduate audience required significant attention to both length and clarity.  

In other areas, I knew only generally what I wanted (these included colonial cases involving domestic disputes, and nineteenth-century private law cases with more interesting fact patterns than the ones I’d been using). Without specific documents in mind, I looked to the footnotes of relevant books and articles for ideas; I also tried to browse online sources to the extent possible. For colonial records, I am extremely thankful for, where it is easy to full-text search many colonial legal reports. Here my strategy was to identify something like Nathaniel B. Shurtleff’s Records of the Governor and Company of the Massachusetts Bay in New England, search various volumes for words like “adultery” and “drunk,” and see what came up. (A lot.) And once I found an interesting case, I could search the litigants’ names; I was happy (for me, of course, not for them) whenever I found couples whose domestic strife kept them returning to the courts. Similarly, in paging through the nineteenth-century legal treatises available through HeinOnline (especially the Early American Case Law and the Legal Classics collections) I found brief descriptions of and citations to nineteenth-century tort and contract cases that seemed engaging and readily comprehensible.

Finally, I wanted to see what other kinds of sources were out there, and I wanted to broaden my sources to showcase non-elite, non-male, and non-white perspectives on law and legal change. Here too I looked to the footnotes of academic books and articles; I also went back to other people’s syllabi to see what sources they included. (I’ve been collecting paper and electronic syllabi since I started teaching. Online resources have significantly improved in recent years, and one particularly useful collection of legal history can be found at the Triangle Legal History Seminar’s website. Academic crowd-sourced reading lists of primary and secondary sources like the Trump Syllabus 2.0 and the #CharlestonSyllabus—now a book—are another great resource. And The Docket is planning a syllabus repository.)

I also browsed the resources on Project Avalon – both its Chronology of American History 1492-present and its more focused collections like Statutes of the United States Concerning Native Americans – for sources of possible interest. George Mason University’s History Matters website also has a great set of primary sources, as does the American Yawp (especially pre-1923). I also sat down with a pile of all of the various American history document collections I’d accumulated via book sales, exam copies, and free book piles in academic hallways. These included (but were definitely not limited to) the Founders’ Constitution (now also online); Women’s America (Linda K. Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, and Judy Tzu-Chun Wu, eds.); multiple volumes of A Documentary History Of The Negro People In The United States (Herbert Aptheker, ed.); The Constitutional and Legal Rights of Women (Judith A. Baer and Leslie Friedman Goldstein, eds.); The Age of Jim Crow (ed. Jane Dailey); and the excellent but out of print Women in American Law: From Colonial Times to the New Deal (Marlene Stein Wortman, ed.)

At the end of the day, of course, I found more material, and more ideas for hunting down even more material, than I could ever use (or ask students to read). (I’ll describe how I repurposed some of these sources for paper topics in a later post.) I had, however, created collections that represented a broader set of voices and perspectives and that I was excited to teach.

Simmons on Homestead Law since 1889

Thomas Simmons,  University of South Dakota Law School, has posted Homestead: A (New) Hope, which appears in the South Dakota Law Review 63 (2018): 75-130:
A finely-tuned balancing of commercial enterprise against a family’s interests in shelter is at the heart of homestead exemption laws. In South Dakota, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article by this author, "Prequel to Homestead", outlined South Dakota’s homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota’s becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.

Kirkby on Modern Jurists and Ancient Law

Coel Kirkby, University of Sydney Law School, has posted Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961, which is forthcoming in the American Journal of Legal History:
This study traces how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart. It first examines how Maine developed his historical jurisprudence as a form of social evolutionary analysis of law. Next, it traces the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study. Finally, it looks at how Hart uses primitive law to make his famous argument that law was ‘the union of primary and secondary rules’. In each case, legal thinkers develop their concepts of modern law through a foundational contrast with primitive law. This is a striking feature of much Anglo-American jurisprudence that cuts across the borders of the positivist, natural, historical, realist, and other schools of jurisprudence. Appreciating these new uses of primitive law is a first step in excavating an intellectual history of legal thought grounded in the context of colonial knowledge.

Monday, December 10, 2018

Havrylyshyn Wins Ca. Supreme Court Historical Society Selma Moidel Smith Award

From our friends at the California Supreme Court Historical Society, we have word that Alexandra Havrylyshyn, a Robbins Postdoctoral Research Fellow and graduate of Berkeley Law, won first place in this year’s Selma Moidel Smith Law Student Writing Competition. Sponsored by the California Supreme Court Historical Society, the competition is judged by a panel of law professors and lawyers. The award recognizes excellent scholarship on any aspect of California legal history. 

Credit: California Supreme Court Historical Society
Havrylyshyn’s paper, “How a California Settler Unsettled the Proslavery Legislature of Antebellum Louisiana,” will be published in the 2019 volume of California Legal History.  The paper uncovers the little-known history of Judge John McHenry. During his time on the bench in Louisiana, McHenry interpreted proslavery laws so as to favor liberty for certain enslaved individuals. Relying on McHenry’s personal and legal papers (preserved at the University of California, Berkeley’s Bancroft Library), this article argues that a commitment to the rule of law, rather than a clear commitment to ending slavery, ultimately explains McHenry’s unpopular opinions. In a context of heightened sectional tension over the legality of slavery, McHenry departed Louisiana for California, where he was called upon to help frame the state’s first constitution.

Photo: Retired California Supreme Court Associate Justice Kathryn Mickle Werdeger, California Supreme Court Chief Justice Tani Cantil-Sakauye, Alexanra Havrylyshyn, attorney Selma Moidel Smith, and California Supreme Court Historical Society president George Abele.

Antislavery Constitutionalism: An ICH Seminar

[We're moving this announcement up, because the deadline for this excellent seminar (December 15) is approaching.]   The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty: Antislavery Constitutionalism: