Wednesday, April 1, 2015

Magna Carta: 800 Years After Runnymede

The Magna Carta Marathon continues with this YouTube video posted by the University of Virginia Law School.   "UVA Law professor A. E. Dick Howard and William & Mary law professor Tom McSweeney discuss the impact of Magna Carta on both American and English law in honor of its 800th anniversary this year. The event, sponsored by the Federalist Society at UVA Law and the Student Legal Forum took place on March 25 at the University of Virginia School of Law."

Robinette on Newly Discovered Prosser Letters

Christopher J. Robinette, Widener University School of Law, has posted The Prosser Letters: 1919-1948, which is forthcoming in volume 101 of the Iowa Law Review.
William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.

Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.

This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.
 We've previously noted an article by Professor Robinette on a student notebook of one of Prosser's classes.

The National History Center's Video Library

The National History Center has recently posted a pointer to its nicely indexed, web-based library of videos, mostly recordings of the Center's Congressional Briefings and meetings of the Washington History Seminar. Here's the list or recordings for the "State and Society" category:

Congressional Briefings
    NHC Congressional Briefing on Immigration Policy: April 5, 2013
    NHC Congressional Briefing on the Great Depression: May 21, 2009
    NHC Congressional Briefing on the Federal Role in Race and Reconstruction: March 13, 2006

Washington History Seminars
    Human Rights before Carter: December 8, 2014
    The Secret Ballot in the United States: April 7, 2014
    Vagrancy Laws and the Long 1960s: January 13, 2014
    Bureaucracy, Citizenship and Remembrance in Wartime Iraq: April 22, 2013
    Historical Perspective on the Arab Spring: April 8, 2013
    Weatherman Underground Terrorism: April 1, 2013
    Lincoln and the Emancipation Proclamation: January 28, 2013
    Islam and Democracy for the 21st Century: February 13, 2012
    Abraham Lincoln and the Irish: January 23, 2012
    Statelessness in 20th Century America: October 24, 2011
    Civil Military Relations: April 11, 2011
    The “Good Occupation”: Military Government in the American Imagination: March 14, 2011
    Rethinking the History of the French Welfare State: March 7, 2011
    Territory, Statehood, and Sovereignty: From Westphalia to Globalization: February 7, 2011
    The Protestant Boomerang: American Missionaries and the United States: November 15, 2010
    Reflections on the Mau Mau and the End of Empire: September 27, 2010
    Why a Congress and Not a Parliament?: September 13, 2010
    C. Vann Woodward and the Civil Rights Movement: May 10, 2010
    The French and American Revolutions and Modern Democracy: April 26, 2010
    Rising Inequality and the Return of Jim Crow: April 5, 2010

Miscellaneous Events
    Passing the Voting Rights Act, 1965: January 4, 2015 (Audio only)

Forthcoming is the Center's next Congressional Briefing, American Families, Global Competition, and Comprehensive Tax Reform in Historical Perspective, co-sponsored with the Joint Committee on Taxation.  It will be held May 8 at 10 a.m. in 2103 Rayburn House Office Building.

Thank you, Mitra Sharafi

Please join the Legal History Blog team in thanking Mitra Sharafi (University of Wisconsin-Madison) for her fantastic guest blogging during the month of March.

This month she has brought our attention to valuable historical sources and web resources, and discussed her current research in South Asian legal history.

For more on Professor Shafari's latest book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge), follow this link, and don't forget to take a look at her work elsewhere online compiling South Asian Legal History Resources.

McGaughey on Labor-Capital Codetermination in Germany

Ewan McGaughey, King's College, London, The Dickson Poon School of Law, has posted The Codetermination Bargains: The History of German Corporate and Labour Law:
Why does codetermination exist in Germany? Law and economics theories have contended that if there were no legal compulsion, worker participation in corporate governance would be ‘virtually nonexistent’. This positive analysis, which flows from the ‘nexus of contracts’ conception of the corporation, supports a normative argument that codetermination is inefficient because it is supposed that it will seldom happen voluntarily. After discussing competing conceptions of the corporation, as a ‘thing in itself’, and as an ‘institution’, this article explores the development of German codetermination from the mid-19th century to the present. It finds the inefficiency argument sits at odds with the historical evidence. In its very inception, the right of workers to vote for a company board of directors, or in work councils with a voice in dismissals, came from collective agreements. It was not compelled by law, but was collectively bargained between business and labour representatives. These ‘codetermination bargains’ were widespread. Laws then codified these models. This was true at the foundation of the Weimar Republic from 1918 to 1922 and, after abolition in 1933, again from 1945 to 1951. The foundational codetermination bargains were made because of two ‘Goldilocks’ conditions (conditions that were ‘just right’) which were not always seen in countries like the UK or US. First, inequality of bargaining power between workers and employers was temporarily less pronounced. Second, the trade union movement became united in the objective of seeking worker voice in corporate governance. As the practice of codetermination has been embraced by a majority of EU countries, and continues to spread, it is important to have an accurate positive narrative of codetermination’s economic and political foundations.

Tuesday, March 31, 2015

Present and Future of Civil Rights Movements: A CFP

[We have the following announcement.]

Present and Future of Civil Rights Movements Conference, Duke University School of Law, November 20-21, 2015

The Center on Law, Race and Politics at the Duke University School of Law will hold its Present and Future of Civil Rights Movements Conference on November 20-21, 2015. This symposium will examine the future of American civil rights through the interdisciplinary lens of critical race studies, bringing together scholars and practitioners from the legal and social science communities to engage with each other and create conversations towards a more equitable future.  We encourage paper and panel proposals on a wide range of topics including, but not exclusively encompassing, the following:

"    Present and Future of Civil Rights Movements in relation to
o    Race and criminal justice
o    Minority communities, wealth, and access to credit
o    Race and healthcare
o    Affirmative action
o    Undocumented students and immigration reform
o    School disciplinary policies and the school-to-prison pipeline
o    Reproductive rights
o    Passing and assimilation
o    Discourses about post-racialism
o    Multiracial identity
o    Race and the Workplace
o    Race and the Family
o    International conceptions of equality law

Each proposal must include a cover page with paper title, presenter, affiliation, and a current email contact, along with a C.V. of each presenter and an abstract of no more than 250 words. Please submit materials via email to with the subject line: CRS Symposium Proposal.

The deadline for submission is June 15, 2015. Scholars whose submissions are selected for the symposium will be notified no later than July 15, 2015. We encourage early submissions, as selections will be made on a rolling basis.

Please visit the Center website for more information.

Balleisen Named Vice Provost for Interdisciplinary Studies

A press release from Duke University brings word that “Ed Balleisen, associate professor of history and public policy whose research has led to collaborations with faculty from law, business, environment and other units, has been named vice provost for interdisciplinary studies, Provost Sally Kornbluth announced Monday.” Legal historians well know Professor Balleisen’s work, which includes
a landmark study of bankruptcy in nineteenth-century America, installments of a forthcoming history of business fraud, his collaboration with David Moss on a Tobin Project volume, and papers bridging the fields of history, public policy, law and ethics. Congratulations, Ed!

Managing Borders: An Interdisciplinary Conference

Via H-Law (and Hidetaka Hirota) we have word of the conference Managing Borders: An Interdisciplinary Conference on American Immigration, Heyman Center for the Humanities, Columbia University, New York, April 3-4, 2015:
Please join MANAGING BORDERS: An Interdisciplinary Conference on American Immigration Marking the 50th Anniversary of the Immigration and Nationality Act of 1965. In this two-day conference, leading scholars in the field of American immigration will introduce their latest research, discuss issues and problems associated to American immigration today, and explore new tasks and challenges for immigration scholars. A keynote lecture will be given by Professor Mary C. Waters from Harvard University.
The event is free and open to the public. No pre-registration is required. Seating is first come, first served. Space is limited.

JSCH 40:2

Via H-Law, here’s the table of contents for the Journal of Supreme Court History 40:2:

Melvin I. Urofsky

The Hughes Court Docket Books: The Early Terms, 1929-1933
Barry Cushman

Easing the Shoe Where It Pinches: The Lottery Case and the Demise of Dual Federalism
John W. Compton

Citizenship, Gender, and Conscience: United States v. Schwimmer
Megan Threlkeld

Justices Douglas and Whittaker in Meyer v. United States: A False Claim Rebutted
David J. Danelski 

Statement of Craig Alan Smith                          

Graveyard Dissents on the Burger Court
Greg Goelzhauser

Remembering Warren E. Burger
Robert Fabrikant

Judicial Bookshelf
D. Grier Stephenson, Jr.

Religion and the Constitution: An ICH Summer Seminar

The Institute for Constitutional History is pleased to announce a residential summer research seminar for advanced graduate students and junior faculty, which will be co-sponsored by the Stanford Constitutional Law Center. This year's seminar is entitled “Religion and the Constitution.”

The instructors will be Michael McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and Jack Rakove, the William Robertson Coe Professor of History and American Studies and Professor of Political Science and (by courtesy) Law at Stanford University.

This seminar will combine discussion of works-in-progress by the participants (on a variety of subjects) with a focused set of conversations about religion in the American Republic. We will examine the relation between the principles of religious freedom embodied in the First Amendment to the Constitution and the growth of the spiritually active, multi-denominational, and religiously tolerant culture that distinguishes the United States from most other societies. Seminar readings will follow a historical arc. We will begin with the emergence of practices of toleration in early modern Europe and the birth of a commitment to the free exercise of religion as a natural right in 18th- century America. After that we will examine the developing law of religion in 19th- and 20th-century America before concluding with the debates over religious accommodation that have become so controversial over the past few years. The relationship of history, law, and culture will be a subject of recurring interest.

The seminar will meet at Stanford Law School, from July 12-17, 2015. The Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at the Munger Graduate Residence on the Stanford campus, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.

Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted until May 15, 2015, and only by email at Successful applicants will be notified soon thereafter.

For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

The Stanford Constitutional Law Center grows out of the long and distinguished tradition of constitutional law scholarship at Stanford Law School. The Center seeks to carry on that tradition by directing attention to the most fundamental questions of constitutional order, especially the allocation and control of governmental power through law. The Center advances this mission through events and activities that foster scholarship, generate public discussion, attempt to transcend ideological divides, and provide opportunities for students to engage in analysis of the Constitution.

Reform, Reaction, and Constitutionalism in 20th-Century America: An ICH Seminar

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, "Reform, Reaction, and Constitutionalism in Twentieth-Century America."

The instructors are Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, and William E. Nelson, the Edward Weinfeld Professor of Law and Professor of History at New York University

This seminar will selectively study progressive reform efforts in America between 1920 and 1980 -- both their successes and their failures. The first session will focus on the 1920s, when both reformers and conservatives conceived of reform in terms of class conflict carried out mainly in the political process; in that decade, reformers enjoyed almost no success in altering the nation's law. The second session will turn to the New Deal and will focus particularly on the issue of how much redistributive change the New Deal actually achieved prior to 1938. The third and fourth sessions will study the period from 1938 to 1968, when reformers turned to the courts and the constitution in a fight to achieve ethnic and religious equality, and the children of turn-of-the-century Catholic and Jewish immigrants entered the nation's socio-economic mainstream. The third session will focus on the impact of World War II on the nation's socio-economic structure; the fourth will turn to the Cold War. The two final sessions, still focusing on law and the constitution, will turn to the years since 1968, when equality was reconceptualized in terms of race and gender, with the fifth session examining race and the sixth, gender. Our hypothesis will be that only marginal change has again occurred. A key question throughout the seminar will be why ethnic and religious conceptions of equality succeeded in transforming law for ethnic white men, while other progressive conceptions in large part failed.

It will meet Friday afternoons, 2:00-4:00 p.m., October 2, 9, 16, 23, November 6, 13. The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City.

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities.

Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at until May 15, 2015. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Mayeri's Jotwell Review of Tiemeyer's "Plane Queer"

Serena Mayeri has recently reviewed Phil Tiemeyer's Plane Queer: Labor, Sexuality, and AIDS in the History of Male Flight Attendants (University of California Press, 2013) for Jotwell, here. The opening paragraphs follow:
"In my employment discrimination course, I use Diaz v. Pan American Airlines (5th Cir. 1971), overturning Pan Am’s ban on male flight attendants, to illustrate how airlines and other employers tried and failed to exploit Title VII’s bona fide occupational qualification (BFOQ) exception in the years after the Civil Rights Act’s enactment. Pan Am defended its female-only policy as necessary to satisfy the “psychological needs” of its mostly male passengers, who “overwhelmingly” preferred to be served by “young girls.” In Diaz, the court ruled that the “essence” of an airline’s business was not to titillate male travelers, nor to offer maternal comfort to anxious fliers, but rather to keep passengers safe from harm. Excluding men, therefore, could not be “reasonably necessary to the normal operation” of an airline. 
Phil Tiemeyer’s Plane Queer reveals that Pan Am’s defense of the male steward ban was even more insidious than previously understood. The airline argued that male flight attendants performing traditionally female ministrations, such as tucking blankets around dozing passengers, would repulse their (assumedly) male, heterosexual, and homophobic customers. Tiemeyer argues persuasively that Diaz and the other early challenges to airlines’ sex BFOQs are properly seen as queer equality cases, belying conventional assumptions that gay employment rights advocacy merely piggybacked on, or at least postdated, movements for racial justice and women’s rights."

Monday, March 30, 2015

Digital Asian Legal History

Looking for great websites on the legal history of Asia? Here are some favorites from scholars working on the Middle East, South Asia, Southeast Asia and East Asia.

For websites that cut across Asia (often with an imperial focus), check out:
·                     Abdullahi Ahmed An-Na’im’s Islamic     Family Law project website
·                     the archive reviews on Dissertation Reviews
·                     the Center for Research Libraries’ overview of databases on comparative law(including historical materials)
·                      Rohit De and Fei-Hsien Wang's History and the Law website, Centre for History and Economics, University of Cambridge

Cushman's "Clerks of the Four Horsemen," Part II

Speaking of judicial clerks, Barry Cushman, Notre Dame Law School, has posted the second and concluding installment of The Clerks of the Four Horsemen, which appears in the Journal of Supreme Court History.  This installment is 40 (2015): 55-79.  According to Professor Cushman, it “follows the interesting and often surprising lives and careers of the men who clerked for Justices George Sutherland and Pierce Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange bedfellows.”  The first installment is here.  And see also Clare Cushman's Lost Clerks of the White Court.

Early Female Law Clerks of the DC Circuit

Cornelia Groefsema Kennedy (credit)
Good on the editorial board of the Ohio State Law Journal for dedicating a recent issue to Cornelia Groefsema Kennedy.  She commenced an illustrious legal and judicial career by becoming one of the first female law clerks in the DC Circuit, for Chief Judge Harold M. Stephens, in 1947-48.  A decade earlier, Stephens confessed to the newly appointed Henry Edgerton that "personally, I should be very much disinclined to have a woman law clerk.  I much prefer a woman secretary, but when it comes to the rough and tumble of law work, as such, I feel ill at ease in dealing with a women" (December 30, 1937, box 13, Stephens MSS, LC).  Yet Stephens and Groefsema appear to have had a cordial working relationship, judging from an affectionate greeting card from his "distaff" law clerk in box 270 of Stephens's papers.

Edgerton had raised the issue with Stephens, his undergraduate classmate at Cornell, because he wanted to hire a female clerk.  Mary Lybolt (Rosenzweig) was a 1934 graduate of the Cornell Law School, where Edgerton was a faculty member until his confirmation in December 1937.  Stephens told Edgerton, "if you prefer a woman, there is no reason why you shouldn’t have one.” Lybolt began her clerkship with Edgerton in 1938.

Update: In posting the above, I missed John Q. Barrett's tribute, written last June, shortly after Judge Kennedy's death.

On RegBlog: Lee's Workplace Constitution

Over at Penn Law’s RegBlog, a book symposium takes place this week on former LHB Guest Blogger Sophia Lee’s Workplace Constitution from the New Deal to the New Right.

Sir John Baker to Lecture on Magna Carta at St. Andrews

On Thursday, April 2, Sir John Baker, the Downing Professor Emeritus of the Laws of England at St Catharine’s College, University of Cambridge, will give a paper entitled Magna Carta – Statute or Myth? as the annual lecture of the Centre for Mediaeval and Early Modern Law and Literature, University of St Andrews:
Magna Carta has had an immense influence on hearts and minds, and even events, over the last eight hundred years. Yet it is not always understood that this has been achieved more by magic than by operation of positive law. Much of the text was obsolete or obsolescent five hundred years ago, and what remained was difficult even for the lawyers of those days to interpret. In any case, no remedies were provided for private subjects in case the words were not observed by the king. The lecture will address some of these legal difficulties and outline how and when they were overcome.

The English Legal Imaginery, 1500-1700

A two-part conference of papers slated for the forthcoming Oxford Handbook of English Law and Literature, 1500-1700, will take place this spring at Princeton University and the University of St. Andrews.  The website of the Centre for Mediaeval and Early Modern Law and Literature at St. Andrews explains that papers for the conference, entitled "The Legal Imaginery, 1500-1700" will include Roman law and common law, law and drama; law and education; equity, legal reform and literary censorship.

Part I is to take place at Princeton,  Friday, April 17 - 8: 00 AM to Saturday, April 18 - 6: 00 PM.  Speakers include Alastair Bellany, Bradin Cormack, Kathy Eden, Peter Goodrich, Paul Halliday, Daniel Hulsebosch, Lorna Hutson, Sandra Macpherson, Margaret McGlynn, Bernadette Meyler, Mary Nyquist, Joshua Phillips, Jason Rosenblatt, Ethan Shagan, Barbara Shapiro, Nigel Smith, Tim Stretton, Henry Turner, Chris Warren, Luke Wilson.  Part II will take place at the University of St Andrews, May 1-2, 2015.  Speakers will include Martin Butler, Bradin Cormack, Alan Cromartie, Steve Hindle; Rab Houston, Lorna Hutson, David Ibbetson, James McBain, Subha Mukherji, Joad Raymond, Carolyn Sale, James Sharpe, Erica Sheen, Quentin Skinner, Virginia Lee Strain, Elliott Visconsi, Ian Williams, Jessica Winston, and Andrew Zurcher.

Hat tip: Simon Stern

Sunday, March 29, 2015

First Book Workshops

First Book workshops seem to be a growing trend. In this post, I share some thoughts on the model, which offers real value for legal historians.

In a First Book workshop, a scholar presents the first draft of a book manuscript to a group of 4-6 readers who offer feedback during a half-day workshop. At my home institution of the University of Wisconsin–Madison, our Center for the Humanities awards Mellon-sponsored First Book Workshops for junior faculty members in the humanities who are turning their dissertations into books. When my book manuscript was featured several years ago, two of my readers were external. They flew in for a two-day, one-night trip. The other readers were colleagues at my institution. Our session lasted an afternoon and was audio-taped, so I could listen to the conversations again later. There were also group meals before and after the session. Afterwards, several of my readers gave me line-by-line edited versions of my manuscript, a remarkable investment of time and energy on their part. With such a wealth of comments, I felt rather overwhelmed initially. Hiring a graduate student to consolidate all of the comments on a single electronic document helped me move from a deer-in-the-headlights state to productive revision mode.

Why Reconstruction (Still) Matters

ICYMI, Eric Foner's very teachable op-ed in today's New York Times is here.

Sunday Book Roundup

The Washington Independent Review of Books reviews Steve Fraser's The Age of Acquiescence: The Life and Death of American Resistance to Organized Wealth and Power (Little, Brown, and Co).

Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford) is reviewed in the Wall Street Journal.
"In four topics of contention—campaign-finance regulation, state sovereignty, the Commerce Clause and the Second Amendment—Ms. Hollis-Brusky shows how members of the Federalist Society have offered incisive critiques of existing law and suggested originalist alternatives to settled interpretations."
H-Net adds several reviews of interest. There is a review of Darcy Ingram's Wildlife, Conservation and Conflict in Quebec, 1840-1914 (University of British Columbia Press).

There's also a review of Citizenship in Cold War America: The National Security State and the Possibilities of Dissent by Andrea Friedman (University of Massachusetts Press).

Also on H-Net is a review of Brian C. Rathbun's Diplomacy's Value: Creating Security in 1920s Europe and the Contemporary Middle East (Cornell University Press).

The Mulatto Republic: Class, Race, and Dominican National Identity by April J. Mayes (University Press of Florida) is reviewed here.

The final H-Net review of the week is one of Shannon Elizabeth Bell's Our Roots Run Deep as Ironweed: Appalachian Women and the Fight for Environmental Justice (University of Illinois Press).

In The Washington Post there is a review of The Class of '65: A Student, a Divided Town, and the Long Road to Forgiveness by Jim Auchmutey (Public Affairs).

There is an adapted excerpt of Ian Millhiser's Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted (Nation Books) in the New Republic.

Saturday, March 28, 2015

McSweeney on Magna Carta on Public Radio

Today at noon, with rebroadcasts through April 4, Thomas McSweeney, William & Mary Law, will be discussing Magna Carta and its legacy on the public radio show “With Good Reason,” which is produced by the Virginia Foundation for the Humanities and is broadcast on public radio stations in Alaska, Colorado, Florida, Georgia, Hawaii, Indiana, Massachusetts, Michigan, New Mexico, New York, Ohio, Tennessee, Texas, Virginia and Washington DC.  Airing times in various markets are here, and one may subscribe to the podcast on iTunes.  The W&M press release and photo credit are here.  (And here is where you can find out about the book Professor McSweeney is holding.)

Weekend Roundup

  • By any reckoning, the Amicus Brief of Cato Institute by William N. Eskridge Jr., and Steven Calabresi in the same-sex marriage case pending before the US Supreme Court is a landmark of forensic constitutional history.
  • The journal Quaestio Iuris, published by the law faculty of the State University of Rio de Janeiro (UERJ), seeks papers from university professors on Legal Theory, Philosophy of Law, Sociology of Law, History of Law, State Theory, Philosophy, Epistemology and other law-related topics. 
  • A hat tip to John Q. Barrett for bringing to our attention this story about the recovery of 34 boxes taken by the grandson of the great naval historian Samuel Eliot Morison from the U.S. Naval History and Heritage Command collection.  I wonder if they contain any documents relating to Willard Hurst, who compiled an administrative history of the Navy's Bureau of Personnel and was acknowledged in the volume on the Battle of the Atlantic in Morison's naval history of World War 2.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 27, 2015

Magna Carta at the Riesenfeld Rare Books Center

[Via H-Law, we have news of a new exhibit at the University of Minnesota Law Library.]

This year marks the 800th anniversary of Magna Carta. To join celebrations across the globe, the University of Minnesota Law Library has mounted a new exhibit, “Magna Carta, 800 Years: Rights and the Rule of Law,” open through December in the Stefan A. Riesenfeld Rare Books Research Center. Drawing on the strengths of the Riesenfeld Center and the Arthur C. Pulling Rare Books Collection, the exhibit includes more than 75 rare printed books and pamphlets related to the Great Charter and its influence in the Anglo-American legal tradition.

Items on display include notable early printed editions of Magna Carta, copies of the Petition of Right and English Bill of Rights, works by Edward Coke, trials, and documents related to the Levellers. Showcasing early America are rare copies of Thomas Paine's Common Sense, works by James Otis and John Dickinson, and the first US session laws with an unratified version of the Bill of Rights. In the nineteenth century, key speeches and trials chronicle the fight for equal protection under law; and items related to due process and human rights bring the Great Charter into the contemporary world. Through the exhibit we invite visitors to explore Magna Carta's great history and its continuing relevance.

The exhibit is on display through December 15, 2015, at the Law Library's Riesenfeld Center.  For more about exhibit items, please stay tuned to our blog and follow us on Tumblr.

Kreis on Overturning Inter-Racial Marriage Bans before Loving

Anthony Michael Kreis, a doctoral candidate in the University of Georgia School of Public and International Affairs, has posted The Historic Foundation of Collaborative Constitutionalism.  Here is the abstract:    
Legal scholars, political scientists, and historians have long inquired into the role courts play in society and republican governance. In terms of judicial capacity, many scholars reject the notion that courts can implement sweeping social change through brute force. Indeed, prominent social scientists have viewed courts’ efficacy in this arena with skepticism. Whether courts routinely safeguard minority rights against majoritarian impulses is also deeply contested. Relatedly, Alexander Bickel’s articulation of the “countermajoritarian difficulty” — the idea that judicial review is a deviant function in a democratic society — informs much of modern constitutional theory. Some have empirically tested judicial decision-making to learn whether courts actually act in a countermajoritarian fashion. Many historians and political scientists have concluded courts are more apt to follow rather than lead public opinion to the detriment of minority interests.

This question of judicial capacity and social change has returned with great intensity as courts have systematically dismantled state laws prohibiting same-sex marriage. Often in the course of debate, parallels have been drawn between same-sex marriage and interracial marriage. These connections, however, are generally thin in their analysis with respect to the comparative institutional influence of courts and legislatures. This article reconstructs the historical record to better assess the judicial function in social change during the 20 years prior to the U.S. Supreme Court’s pronouncement that interracial marriage bans are unconstitutional in Loving v. Virginia. The historical record reveals strong parallels between the movement to secure recognition of interracial marriages and that of same-sex marriage. Both movements relied upon courts as legitimizing institutions to erode marriage prohibitions. While the courts were woefully inadequate in combating interracial marriage prohibitions, they were not wholly absent actors. Judicial institutions were part of an evolving dialogue — engaging in a form of collaborative constitutionalism — that slowly chipped away at anti-miscegenation laws between 1948 and 1967.

Journal for Legal History Studies 26 (2014)

I'm a bit embarrassed to say that I've only just now learned of the existence of the Journal for Legal History Studies.  Here are the contents of volume 26 (December 2014):

You, Yi-Fei, How to “read” the Qin and Han funerary law?--A Case Study in Zhangjiashan “The Legal Text of Year 2”

Chen,Hwei-Syin, The changed and unchanged of the law and Society in Ming and Qing China – An Observation of legal Documents

Author: Terada, Hiroaki Translator: Chang, Teng-Kai     Between ‘Civil’ and ‘Criminal’ Procedure: Handling Homicide Cases at the District Level in Qing China

Lee, Dian-Jung, Stickman, Servant, and Hooligan: The Development about “Bare Stick” Legislation and the Influence of Manchu Bondservants in Qing (1644-1795)

Li, Jun-Fang,    Questions on Laws and Regulations of the Han Dynasty

Li, Yun-Long, A new exploration of “Duanli” in the Song dynasty

Chiang, Yu-Lin, Homeland and Colonial Identities: Chen Cheng-po and His Works
Prominent Legal Figure

Yu, Ming, Narrative and Account of Professor Yang Chongsen’s Legal Career

Chen, Chang-Ning     An Introduction to Wu Peilin “Civil Disputes and Legal Order in Counties in Qing Dynasty”

Shen, Wei     People and Events on Note of Peking Imperial Law School by Editor Xiong——A Close View to the Three Outstanding Persons of Xiong Family and Anhui Law Study Society

Mack on Robert Bell and His Case

Kenneth W. Mack, Harvard Law School, has posted Harvard Law School, Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell’s Encounter with American Law.  It is derived from Professor Mack’s Leon Silverman Lecture at the U.S. Supreme Court and appeared in the Journal of Supreme Court History 39 (November 2014): 347-71.  Here it the abstract:
This article uses the well-known case of Robert Bell, who was convicted of trespass in one of the important sit-in cases of the 1960s and ended his career as Chief Justice of the Maryland Court of Appeals, to offer some thoughts about the state action doctrine, conflicts between law and morality, and outsider claims on the legal system. It critiques three conventional readings of Bell’s case, and his seemingly unlikely subsequent career.

Employing a historical analysis of the state action doctrine, which was the central issue when Bell’s case reached the Supreme Court, it argues that the case that supposedly originated the doctrine – the Civil Rights Cases decision of 1883 – did no such thing.

In addition, this article questions the view of cases like Bell’s as presenting a sharp conflict between law and morality, arguing that it is not even clear that Bell was violating Maryland’s trespass law.

Finally, the article questions a now-common way of making sense of the arc of Bell’s career – one which would see his rise to the Chief Justiceship as an example of “agency,” in which outsider views of law become, over time, accepted by the legal system. Bell’s case, it will be argued here, has a far more complicated set of lessons to teach, if we discard some conventional ways of reading it.

Hibbitts on the Topography of Law Practice in Pittsburgh

Bernard J. Hibbitts, University of Pittsburgh School of Law, has posted Lawyering in Place: Topographies of Practice and Pleadings in Pittsburgh, 1775-1895, which originally appeared in the University of Pittsburgh Law Review 73 (2012): 620-47.  Here is the abstract:
Pittsburgh Panorama at U.S. Courthouse (LC)
Even in the digital age, lawyering is always located. Lawyers live and work in physical space, and they deal with other lawyers and with clients who also have at least some measure of physicalized existence. Distracted and ofttimes overwhelmed by written records, legal historians have traditionally paid little attention to the physical environment of lawyering, but there are signs that this is beginning to change, largely under the influence of developments in contemporary multimedia technology that regularly remind us of worlds beyond text. Indeed in light of several recent works on American, English and even ancient law it may be time to recognize the birth pangs of a new interdisciplinary field that we might label “legal topography”, literally the study of law in place. Part geography, part architecture, part art, part rhetoric, part anthropology, part psychology, and part performance studies, legal topography would study lawyering in its physical environment, examining how professional and public perceptions of (and interactions with) law are constructed by conditions and dynamics of place, and how those conditions in turn shape legal behavior and even understandings of lawyering and law itself.

This paper probes some of the parameters of legal typography by exploring aspects of lawyering in place in Pittsburgh over a period of 120 years, from 1775 to 1895. This great American city is not only a convenient, but also a compelling candidate for this treatment: its metropolitan and legal history is considerably shorter than other American legal centers such as Boston or New York, yet its experience encompasses a number of key legal topographical shifts that doubtless also occurred elsewhere. In the larger saga of American history, moreover, Pittsburgh at various stages not only represented but defined the frontier, the ante-bellum “market revolution” and late nineteenth-century industrialization, all circumstances that profoundly affected the physical environment of local lawyering. It is Pittsburgh’s remarkable and repeated ability to stand for America in these and other contexts that most appropriately draws our legal topographical gaze.

Thursday, March 26, 2015

Updated CFP: Globalization & the Law in Historical Perspective

[This is an updated version of a previously posted announcement for a junior scholars' conference in legal history,“Globalization & the Law in Historical Perspective," to take place June 4-5, 2015, at the Maurer School of Law, Indiana University-Bloomington.  Note two additions.  First, the deadline for submission is now April 10.  Second, a keynote will be delivered by Professor Sam Moyn of the Harvard Law School.  Sounds like a great opportunity to me!]

In recent years, there has been an explosion of new scholarship on the legal history of globalization.  This rapidly growing body of literature has encompassed diverse topics, including international social movements, the transnational flow of capital, human rights, diplomacy, and border control.  However, as historians have demonstrated, globalization is not a new phenomenon.  We invite junior scholars to submit proposals that offer fresh understandings on the historical relationships between law, legal institutions, and globalization.  Our intention is to host a conference with a wide range of papers chronologically, geographically, and across disciplines.  The conference, part of a series begun in 2007, will be held at the Indiana University Maurer School of Law in Bloomington, Indiana from June 4 – 5, 2015.

The central aim of the conference is to provide junior scholars with a forum to showcase their previously unpublished work and to connect with senior scholars in the field.  The keynote address at the conference will be delivered by Professor Sam Moyn (Harvard Law School).  The “Globalization & the Law in Historical Perspective” conference is sponsored by the Indiana University Maurer School of Law, Indiana University Department of History, University of Illinois College of Law, University of Michigan Law School, University of Minnesota Law School, University of Pennsylvania Law School, and American Society for Legal History.

Interested participants should submit a 300-word abstract and their cv to Bridget Gross (  Please place “Legal History Conference” in the subject line of your e-mail submission.  The deadline for proposals is Friday, April 10th, 2015.  Applicants will be notified by email no later than Monday, April 20th.

Accepted participants will be required to submit their final papers by May 20th, 2015.  Papers should not exceed 10,000 words, will be pre-circulated on a password protected website, and read by all conference participants.  Conference organizers will provide modest support for presenters’ travel to Bloomington, Indiana and lodging during the conference.

Federal History (2015)

Federal History 7 (2015), a publication of the Society for History in the Federal Government, is out and available on-line.  Here is the TOC.

Editor’s Note
— Benjamin Guterman

Roger R. Trask Lecture
Setting Precedent: The First Senate and President Washington Struggle to Define “Advice and Consent”
— Charlene Bickford

Public Management of Big Data: Historical Lessons from the 1940s
— Margo Anderson

The War Bond Poster: State Fundraising and National Cohesion Through Mass Media During the World Wars
— Hunter Hollins

A New Frontier: Reevaluating JFK’s Civil Rights Record Through a Case Study of Prince Edward County, Virginia
— Brian E. Lee

The State of Congressional History
•  Introductory Remarks, Richard McCulley
•  Promoting the History of the Senate, Donald A. Ritchie
•  Engaging the Public in the History of the U.S. House of Representatives, Matt Wasniewski
•  Resources and Perspectives, Raymond W. Smock

Fifty Years of Collecting: Curatorial Philosophy at the National Museum of American History
— Steven Lubar

CAL 2:1: New Historical Jurisprudence

Just available online is a special issue of Critical Analysis of Law 2:1 (2015), entitled New Historical Jurisprudence & Historical Analysis of Law.  Its editors explain: 

The New Historical Jurisprudence issue highlights and encourages a trend in recent legal scholarship, or rather scholarship on law, that--like the original historical jurisprudence--pursues a historical analysis of law, as a form of critical analysis of law, rather than legal history, as applied historiography. Generated by theorists with a historical sensibility, and historians with theoretical curiosity, this emerging body of work exploits and challenges the intersection of history and jurisprudence in innovative and exciting ways.
Here are the articles:
Markus D. Dubber
Samera Esmeir
Mireille Hildebrandt
Aaron T. Knapp
Peter L. Lindseth
Arlie Loughnan
Heikki Pihlajamäki
Lena Salaymeh
Galia Schneebaum, Shai J. Lavi
Karl Shoemaker
Robert J. Steinfeld

New Release: Schiller's "Forging Rivals"

Reuel Schiller, University of California-Hastings Law, has just published Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism, in the Cambridge Historical Studies in American Law and Society:
The three decades after the end of World War II saw the rise and fall of a particular version of liberalism in which the state committed itself to promoting a modest form of economic egalitarianism while simultaneously embracing ethnic, racial, and religious pluralism. But by the mid-1970s, postwar liberalism was in a shambles: while its commitment to pluralism remained, its economic policies had been abandoned, and the Democratic Party, its primary political vehicle, was collapsing. Schiller attributes this demise to the legal architecture of postwar liberalism, arguing that postwar liberalism's goals of advancing economic egalitarianism and promoting pluralism ultimately conflicted with each other. Through the use of specific historical examples, Schiller demonstrates that postwar liberalism was riddled with legal and institutional contradictions that undermined progressive politics in the mid-twentieth century United States.
Here’s the TOC:

Introduction. Legal history and the death of postwar liberalism
1. Forging postwar liberalism
2. Ed Rainbow's problem
3. The phony commission
4. A tale of two propositions
5. 1966: a terrible year for George Johns
6. "The day of the minstrel show is over"
7. Forging rivals, shattering liberalism

Professor Schiller puts the book in context in this post on how “the legacy of slavery and Jim Crow gave rise to modern labor and employment discrimination laws” on the Cambridge University Press’s blog. He will join us as a guest blogger in May.

Wednesday, March 25, 2015

Eugenics in South Asian Legal History

 While doing research for my book, I stumbled upon something unexpected: a body of writings on eugenics by and for a non-white population. There is a rich literature on the history of eugenics around the world (Alison Bashford and Philippa Levine's Oxford Handbook of the History of Eugenics is a great place to start). This scholarship explores the ways in which race science glorified whiteness from the nineteenth century until the mid-twentieth.

What I hadn’t realized was that non-Europeans were also using eugenics for their own purposes.

In the early twentieth century, Parsis (or Zoroastrians) in colonial Bombay published books adapting Euro-American race theory to their own population. These authors were writing at a time when their ethno-religious community was developing an increasingly racialized identity. Parsis disagreed over whether ethnic outsiders could be accepted into their religion and community, or whether European wives and adopted Indian orphans were out.  This controversy played out in the courts in a series of lawsuits across the British Empire. (I explore these cases in my book, here and here).