Sunday, November 23, 2014

Sunday Book Roundup

The Nation has a review of Danielle Keats Citron's Hate Crimes in Cyberspace (Harvard University Press).
"In Hate Crimes in Cyberspace, Danielle Keats Citron aims to change that situation, giving readers a sense of the scope and seriousness of the problem of cyberstalking and harassment; an account of existing law, both state and federal; and a set of thoughtful and persuasive proposals for improving both law and law enforcement."
Clayborne Carson and Tenisha Armstrong have edited The Papers of Martin Luther King, Jr. Volume VII: To Save the Soul of America Jan. 1961-Aug. 1962 (University of California Press), and the book has recently been reviewed in the Washington Independent Review of Books.

The Federal Lawyer has its December issue up online with two sets of book reviews. The first set includes reviews of David Dorsen's Henry Friendly: Greatest Judge of His Era (Belknap) and two of John Lukacs's recent publications: History and the Human Condition: A Historian's Pursuit of Knowledge (Intercollegiate Studies Institute) and A Short History of the Twentieth Century (Belknap Press). A second set of reviews includes a review of Andro Linklater's Owning the Earth: The Transforming History of Land Ownership (Bloomsbury). Of the last, the reviewers write,
"If you have a propensity for “big” history, with a big thesis, and supported by fascinating historical facts, accounts, and portraits, mostly pertinent to the argument, then you will enjoy Andro Linklater’s Owning the Earth. From the roots of American democracy to tales of Russian autocracy to revolutionary move- ments in Asia and South America, Linklater provides a rich history of the global evolution of land ownership. His scope is remarkably large. Whereas his previous work did an admi- rable job of depicting how the historical trans- formation of ownership in the United States was aided by the process of measuring and recording, he has expanded his range here into a somewhat unmanageable though always interesting tract."
Women of the World: The Rise of the Female Diplomat by Helen McCarthy (Bloomsbury) has been reviewed in HistoryToday.

H-Net has added a review of Christine Knauer's Let Us Fight as Free Men: Black Soldiers and Civil Rights (University of Pennsylvania Press), a review of Elissa Helms's Innocence and Victimhood: Gender, Nation and Women's Activism in Postwar Bosnia-Herzegovina (University of Wisconsin Press), and a review of Kyle G. Volk's Moral Minorities and the Making of American Democracy (Oxford University Press).

The New York Review of Books has a review of three books on teaching under the title, "Why Is American Teaching So Bad?": The Teacher Wars: A History of America’s Most Embattled Profession by Dana Goldstein (Doubleday), Building a Better Teacher: How Teaching Works (and How to Teach It to Everyone) by Elizabeth Green (Norton), Getting Schooled: The Reeducation of an American Teacher by Garret Keizer (Metropolitan).

Christopher Hill's Outpost: Life on the Frontlines of America Diplomacy (Simon & Schuster) is reviewed in The Washington Post. Also in the Post is a review of Katha Pollitt's Pro: Reclaiming Abortion Rights (Picador). From the review:
"Katha Pollitt may not appreciate my starting this review with her description of her own experience of motherhood, but this is my attempt to broaden her audience beyond the predictable cast for her small, powerful book. “People think of pregnant women as weak and vulnerable, but when I was pregnant with my daughter I felt as if I could put my hand in fire and it would only glow,” she writes in “Pro.” “I never felt alone: There were two of us, right there. I didn’t think of my child as an embryo or fetus. . . . I thought of her first as a funny little sea creature of indeterminate sex, and later, yes, as a baby, even though she was only a baby in my thoughts.”
To state what should be obvious, Pollitt, like most other women who support abortion rights, celebrates motherhood as a choice. The poet and columnist for the Nation is also one of the most eloquent champions for women’s reproductive freedom, and her latest book is a manifesto."
A Chosen Exile: A History of Racial Passing in American Life by Allyson Hobbs (Harvard University Press) reviewed in The New York Times.
"But for every Elsie there is a Robert Harlan, light-skinned, straight-haired, who showed no interest in renouncing his blackness. Born a slave to his black mother and a white father, probably the master, James Harlan, he was raised in the same household as the white Harlan boys. His probable father made him a free man and he went on to make a fortune in the gold rush in California. He remained close to the other Harlans, one of whom was Justice John Marshall Harlan — the “great dissenter” of the Supreme Court — who argued on behalf of equal rights under the law in Plessy v. Ferguson." 

Saturday, November 22, 2014

Lee's "Workplace Constitution": The Introduction

We’ve previously noted the publication of The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press 2014) by Sophia Z. Lee, University of Pennsylvania Law School.  The introduction is now available via SSRN.  Here’s the abstract:    
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to quite different ends: African Americans wanted access to unions, while right-to-work litigants wanted to be free of them. Although the civil rights movement went on to dismantle Jim Crow laws, and the right-to-work movement had the support of some of the nation’s most prominent politicians and opinion makers, their conflicting purposes sapped support for the workplace Constitution and ultimately led to its collapse.

The Workplace Constitution tells for the first time the story of anti-New Deal conservatives’ legal campaigns, recovers overlooked civil rights and labor advocacy, and moves constitutional history into little-explored venues such as administrative agencies. In recounting the civil rights and right-to-work movements’ surprising successes and explaining their ultimate failure, the book provides a fresh perspective on postwar conservatism and liberalism, emphasizing how law intertwined their fates and how that entanglement in turn shaped the law. Those interested in the history of the United States’ conservative, labor, and civil rights movements; its Constitution and political institutions; and the legal rights of its workers will find much of interest here. In the twenty-first century, the workplace Constitution has all but vanished. This book illuminates what has been gained and lost in its demise, both in the workplace and beyond.

Weekend Roundup

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, November 21, 2014

Kearley on an Obscure and Important American Legal Antiquarian

Timothy G. Kearley, University of Wyoming College of Law, has posted The Enigma of Samuel Parsons Scott., which appears in Roman Legal Tradition 10 (2014): 1-37.  Here is the abstract:    
S. P. Scott (credit)
Samuel Parsons Scott (1846-1929) single-handedly translated into English the Corpus Juris Civilis, the Visigothic Code, and the Siete Partidas. The latter was very well received, and not long ago was reprinted in a new edition; the first mentioned was criticized strongly but often has been used because, until recently, it contained the only published English translation of Justinian’s Code. However, almost nothing has been known about Scott, as he was an independent scholar who lived and worked in the small American town of Hillsboro, Ohio. This article uses information obtained from Hillsboro newspapers, local histories, probate court records, and the catalog of Scott’s personal library, to describe his life and the details of his work. It proposes an explanation for why he went from being a successful small-town business man, who wrote about history and his travels as an avocation, to a being a recluse who devoted his last years to translating ancient laws. The article’s analysis of Scott and his library also suggests some possible explanations for the flaws in his translation of the Justinianic Corpus.

Hollander on Legal Education and Interdisciplinary Legal Scholarship at Princeton

I've only just stumbled across An Unexpected Story: The History and Origins of Princeton’s Long-standing Tradition of Interdisciplinary Legal Scholarship, by David A. Hollander, Law & Legal Studies Librarian, Princeton University Library.  The article “traces the development of Princeton University’s largely unknown tradition of interdisciplinary legal education and scholarship. After discussing the history of Princeton’s now-forgotten law school and the multiple attempts to revive it, he then examines how legal education and research have always been an integral part of academics at Princeton, and how the strong presence of interdisciplinary legal studies at Princeton today springs from this fascinating history.”

Call for Applications: Summer Session on Political Violence: Perspectives from Law, History and Political Theory

Via H-Law, we have the following Call for Applications:
Summer School 2015 - Call for Applications
Political Violence: Perspectives from Law, History and Political Theory
University of Edinburgh - 24 to 26 June 2015
In June 2015 the University of Edinburgh will offer an interdisciplinary Summer School on Political Violence. This three-day event will give participants the opportunity to benefit from the knowledge of an unrivalled panel of international experts in the field of war and political violence and to receive critical feedback on their own projects. The programme combines people and perspectives from History, Law and Political Science and will involve intensive scholarly discussions and social activities that allow participants to network with each other in a friendly environment in the scenic, culturally vibrant setting of the city of Edinburgh. Participants will include a diverse mix of academics, MA and PhD students from the Social Sciences and Humanities, and practitioners working in NGOs and legal institutions.
List of Speakers
The programme will feature morning lectures by expert speakers and presentations from participants in the afternoon. Our speakers will attend and comment on the afternoon presentations. The detailed programme will be published in early 2015. In order to facilitate productive discussions, the maximum number of participants will be capped at 25. All participants are expected to share their papers a week before the Summer School starts.
The tuition fee for the Summer School is £150. This covers participation in the course as well as coffee and lunch breaks over three days. Fees must be paid before the start of the Summer School. Participants will need to organize and finance their own travel arrangements and accommodation, though there will be a limited number of places available in University accommodation organised on a first come, first served basis (single-room @ £40 per night). For a select number of participants there will be a possibility of a fee-waiver and financial assistance for accommodation, which will take into account both academic merit and economic circumstances.
The Summer School is supported by a number of institutions at the University of Edinburgh, including the Global Justice Academy, the Graduate School of Social and Political Sciences, and the Research and Knowledge Exchange Office, College of Humanities and Social Science.
For more information, including how to apply, follow the link. The deadline is January 16, 2015.

Thursday, November 20, 2014

Dorsett on Legal Transplants in New Zealand

Shaunnagh Dorsett, University of Technology Sydney Law, has posted How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand, which appears in New Zealand Journal of Public and International Law 14 (2014): 103.  Here is the abstract:    
"Unearthing" is a problematic task for historians. To some extent it assumes continuity between the past and the present, and that matters identified by whatever means as ‘traditions’ in the present were understood that way in the past. It is a backward looking task, rather than an exploration of understandings at a moment in time. Rather than ‘unearthing’, this article seeks to start at the beginning and to think about how things get going in colonies. It pays attention to foundations and to questions of institutional design. This article draws on literature on legal transplants, and examines one example of a legal transplant in New Zealand: the Resident Magistrates’ Court, focusing in particular on its civil jurisdiction. If not the "number eight wire" approach, it is a recognition of pragmatism - the ways in which legal forms, both discursive and institutional, circulated Empire and are made and remade in new times and places in response to local circumstance.

"Law As . . ." II

The papers from the second “Law As . . .” conference, held in March 2012, at the University of California Irvine Law School, organized by Christopher L. Tomlins, late of UC Irvine's law faculty and now of Berkeley's Jurisprudence and Social Policy faculty, is out in the UC Irvine Law Review 4:1 (March 2014).  The papers from the “Law As” III conference, held earlier this year, are forthcoming in the law review. 

Here’s a list of the papers.  All are available here.

Foreword: “Law As . . .” II, History As Interface for the Interdisciplinary Study of Law
Christopher Tomlins

Every Law Tells a Story: Orthodox Divorce in Jewish and Islamic Legal Histories
Lena Salaymeh

Law As Temporality: Colonial Politics and Indian Settlers
Renisa Mawani

Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law
Susan Bibler Coutin, Justin Richland, and Véronique Fortin

Repetition in History: Anglo-American Legal Debates and the Writings of Walter Bagehot
Kunal M. Parker

?Standing on Shaky Ground: Criminal Jurisdiction and Ecclesiastical Immunity in Seventeenth-Century Lima, 1600–1700
Michelle A. McKinley

Demonic Ambiguities: Enchantment and Disenchantment in Nat Turner’s Virginia
Christopher Tomlins

Property, Law, and Race: Modes of Abstraction
Brenna Bhandar

Hargrave’s Nightmare and Taney’s Dream
Michael Meranze

Reconstructing the Limits of Schmitt’s Theory of Sovereignty: A Case for Law As Rhetoric, Not As Political Theology
Brook Thomas

Mannheim’s Pendulum: Refiguring Legal Cosmopolitanism
Thomas Kemple

Humane Killing and the Ethics of the Secular: Regulating the Death Penalty, Euthanasia, and Animal Slaughter
Shai J. Lavi

The Rescaling of Feminist Analyses of Law and State Power: From (Domestic) Subjectivity to (Transnational) Governance Networks
Mariana Valverde

Beyond Sexual Humanitarianism: A Postcolonial Approach to Anti-Trafficking Law
Prabha Kotiswaran

Political Theology with a Difference
Nomi Maya Stolzenberg

How to Speak Well of the State: A Rhetoric of Civil Prudence
Jeffrey Minson

Law As (More or Less) Itself: On Some Not Very Reflective Elements of Law
Shaun McVeigh

Lee's "Workplace Constitution"

We note with pleasure the publication of The Workplace Constitution from the New Deal to the New Right, by Sophia Z. Lee, Penn Law, in the American Society for Legal History’s book series with the Cambridge University Press, Studies in Legal History
Today, most Americans lack constitutional rights on the job. Instead of enjoying free speech or privacy, they can be fired for almost any reason or no reason at all. This book uses history to explain why. It takes readers back to the 1930s and 1940s when advocates across the political spectrum – labor leaders, civil rights advocates, and conservatives opposed to government regulation – set out to enshrine constitutional rights in the workplace. The book tells their interlocking stories of fighting for constitutional protections for American workers, recovers their surprising successes, explains their ultimate failure, and helps readers assess this outcome.
We look forward to Professor Lee's book-related posts as a guest blogger in 2015, but for now here are three endorsements:

"The Workplace Constitution from the New Deal to the New Right is both ambitious and important - it moves across time and among a variety of individuals, organizations, and government entities, and it utilizes a wide range of archival material - all of keen interest to historians, legal scholars, and political scientists alike. Lee’s formidable intelligence gives us new insights, as well as historical and historiographical surprises."
Risa L. Goluboff, John Allan Love Professor of Law and Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia

"Sophia Lee brilliantly pairs her analysis of the civil rights movement with the rise of the right-to-work movement and the ‘union-avoidance’ industry. She also matches her fine history of the state action theory with an equally persuasive argument that administrative agencies have been a fruitful source of constitutional visions and versions. This beautifully written book represents deep and broad research and entirely original analysis. I know of nothing like it."
Laura Kalman, University of California, Santa Barbara

"Sophia Lee’s The Workplace Constitution from the New Deal to the New Right is one of the most insightful and provocative studies of the bifurcated matrix of laws and court rulings that govern the American work regime. Deploying a marvellous talent as narrative historian, Lee demonstrates that the attempt to construct a labor relations regime that simultaneously protects the rights of racial minorities proved an enormously vexing and contentious project, one standing close to the heart of American politics for more than half a century."
Nelson Lichtenstein, MacArthur Foundation Professor in History, University of California, Santa Barbara

TOC after the jump.

Wednesday, November 19, 2014

Hughes's Sense of Humor

Charles Evans Hughes (LC)
James C. McReynolds (LC)
To follow up on Professor Olken’s paper on Charles Evans Hughes and Blaisdell, here’s an old note I stumbled across earlier in the week, from Felix Frankfurter’s President’s Personnel File at the Roosevelt Library.  On December 1, 1935, FDR wrote Frankfurter that during the Supreme Court justices' recent formal call on the President, “I think the Chief Justice pulled a fast one on me.  After he had been talking with me himself or ten minutes he got up, said he thought some other members of the Court could have a talk with me and went across the room and brought McReynolds and plumped him down.  The Chief Justice has a sense of humor though few people realize it.  Thank God no photographers were present.”

Olken on Hughes's Blaisdell Opinion

Samuel R. Olken, John Marshall Law School, has posted Charles Evans Hughes and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence, which appeared in the Oregon Law Review 72 (1993): 513-602.  Here is the abstract:    
In 1934, in the midst of the Depression, the United States Supreme Court, in Home Building & Loan Ass’n v. Blaisdell, upheld the constitutionality of the Minnesota Mortgage Moratorium Act. The Court’s 5-4 decision marked a significant step in the Court’s transformation of its jurisprudence of economic liberty, as a bare majority of the Court, led by Chief Justice Charles Evans Hughes, flexibly interpreted the Contract Clause prohibition of the impairment of contractual obligations to allow a state to modify a mortgage agreement. In so doing, the divided Hughes Court signaled a willingness to adapt the Constitution to changing economic circumstances. Although it would be three more years before a majority of the Court consistently adapted living constitutionalism in support of the laboratories of democracy and the power of government – both state and federal- to regulate private economic affairs in the public interest, Chief Justice Hughes’s Blaisdell opinion was an integral step in the constitutional revolution of the 1930s.

This article analyzes the Blaisdell decision from the duel historical perspectives of the nineteenth and early twentieth century Contract Clause jurisprudence and the pragmatic federalism of Charles Evans Hughes. It explains that the Court’s decision to reconcile the Contract Clause prohibition of state laws that impaired contract obligations with the reasonable exercise of state police powers reflected a long line of cases that constrained the scope of the constitutional limitation through the prism of federalism.

From this perspective, Chief Justice Hughes crafted a fairly modest opinion that nudged the Court along the path of living constitutionalism yet also heeded Court precedent that recognized the authority of states to modify contract remedies in ways that left intact underlying contract obligations. The article also examines the extent to which Hughes’s judicial statesmanship allowed for significant contributions by Justices Stone and Cardozo in the creation of an important opinion in the evolution of federalism and Supreme Court judicial review.

CFP: Beyond the New Deal Order

[We have the following Call for Papers.]

BEYOND THE NEW DEAL ORDER: A Conference at the University of California, Santa Barbara
September 24-26, 2015

When Steve Fraser and Gary Gerstle edited The Rise and Fall of the New Deal Order in 1989, they made the concept of a political and social “order” central to an interpretative framework that reperiodized U.S. history, from the election of Franklin Roosevelt, through Lyndon Johnson’s Great Society and on to the Ronald Reagan’s victory in 1980. The New Deal was not just a presidential moment, but a far larger construction - a combination of ideas, policies, institutions, cultural norms and electoral dynamics - that spanned several decades and sustained a hegemonic governing regime. The Rise and Fall of the New Deal Order offered a unique way to conceptualize the history of social reform and political conflict in the 20th century, and it quickly emerged as the dominant narrative within and against which a new generation of scholars have sought to investigate the foundation, evolution, limits and decline of the New Deal. More than a quarter century after the book’s appearance, the concept of a multi-decade, political-social New Deal order still pervades our historical understanding of 20th century America.

Our conference, “Beyond the New Deal Order,” draws upon the new ways of thinking about politics, ideas, economy, gender, race and ethnicity, and the U.S. role in the world that have emerged in recent historical scholarship to interrogate the foundational suppositions put forward by Fraser, Gerstle and their co-authors more than a quarter century ago. Is the concept of a New Deal order still a viable way of framing the reform impulses unleashed in the Depression decade and continuing through the 1960s and even after? How does the New Deal order fit into the larger sweep of American history, including what historian Richard Hofstader once called “the American political tradition?” And finally, did the New Deal order actually fall, or, given the demographic reconfiguration of the American electorate and the emergence of movements and coalitions organized outside or in opposition to the New Deal framework, would “transformation” rather than “fall” be a better word to describe how such an order continues to function in the 21st century?

We invite panel and paper submissions for possible presentation at the conference. We are especially interested in broad and inclusive submissions that focus upon the following themes:
  • How has the changing structure of capitalism, in the U.S. and the world, contributed to the fate of the New Deal order?
  • Has a new political order, neoliberal or otherwise, taken shape in the United States?
  • How have political parties evolved during and after the New Deal order
  • The New Deal order considered as a global project, and its relationship to American power, military, political, and ideological. 
  • Populisms of the Left and Right. 
  • Race and democracy in New Deal politics and political economy. 
  • The gendered politics of the American state and its social policy.
  • The New Deal and its opposition as ideological and intellectual projects. 
  • The U.S. “Labor Question,” from the Great Depression to the Great Recession.
Please send a two paragraph précis and a short c.v. by February 1. Some funding for graduate students and those with limited travel budgets may be available.  Send proposals to Kristoffer Smemo at

For the planning committee: Nelson Lichtenstein and Alice O’Connor, UCSB, co-conveners; Steve Fraser, The Murphy Institute, CUNY; Gary Gerstle, University of Cambridge; Romain Huret, Ecole des Hautes Etudes en Sciences Sociales; and Jean-Christian Vinel, Université Paris-Diderot.

Spurlin et al. on Reports of S.D. Constitutional Conventions

Candice Spurlin, Catherine Chicoine, Stacy Hegge, and Patrick M. Garry, University of South Dakota School of Law, have posted Journalistic Coverage of the 1883, 1885 and 1889 Constitutional Conventions, which appears in the South Dakota Law Review 59 (2014): 101-55.  Here is the abstract:    
Newspapers have played a significant role in politics in the United States throughout its history. South Dakota is no exception, newspaper played a significant role in the passage of South Dakota's Constitution and its striving for statehood. Newspapers were so prevalent in the southern part of the Dakota Territory in the late 1800s that more than two hundred and twenty towns published their own papers.

Not only did newspapers proliferate in these prairie towns, but they became intimately involved in territorial and statehood politics. This article reprints selected newspaper articles from across the Territory that highlight the discussions taking place at the three Constitutional Conventions of 1883,1885 and 1889. The final of these three conventions ratified the South Dakota Constitution which ultimately led to statehood in November of 1889.

Tsontakis on the Appointment of Arizona's First Federal District Judge

Taft Signs Arizona Statehood Bill (LC)
Anthony Tsontakis, Arizona Legislative Council, has posted Political Vengeance and Remorse in 1912 Arizona, which has just been published in Arizona Attorney (November 2014): 36-43.  It “recounts the political firestorm triggered by President Taft's appointment of Territorial Governor and Territorial Supreme Court Justice Richard Sloan to be the first federal judge for the new district court formed in the State of Arizona in 1912.”

Tuesday, November 18, 2014

Weinrib on Civil Liberties Outside the Courts

Laura M. Weinrib, University of Chicago Law School, has posted Civil Liberties Outside the Courts, which is forthcoming in the Supreme Court Review.  Here is the abstract:
This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the “Constitutional Revolution” reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.

ASLH Panel Report: Rolling Back the Rights Revolution

The 4:00 pm Saturday round of panels at the recently concluded annual meeting of the American Society for Legal History included “Rolling Back the Rights Revolution: The Conservative Ascendancy and the Shifting Legal Terrain.”  I chaired and commented at this quite adequately attended session.  The panel was to consist of three papers, including “Litigation, Arbitration and the American State,” by Sarah Staszak, an assistant professor of political science at the City College of New York and, currently, a Robert Wood Johnson Foundation Scholar in Health Research at Harvard University, but Professor Staszak was unable to attend.  Not to worry: before too long you'll be able to read her No Day in Court: Access to Justice and the Politics of Judicial Retrenchment, due out next year from the Oxford University Press. Professor Staszak has already published some of her other findings in Law and Social Inquiry and Studies in American Political Development.

The first paper, then, was “The Rights Revolution and the Politics of Fiscal Retrenchment,” by Alexander Gourse, a Ph.D. candidate in history at Northwestern and a JD candidate at the Stanford Law School.  It is part of his dissertation, “The Lawyers’ War on Poverty and the Politics of Democratic Pluralism, 1964-1989.”  It recounted a failed constitutional referendum, Proposition 1, that a conservative activist, Lewis Uhler, persuaded then Governor Ronald Reagan to support in 1973 despite the misgivings of the governor’s other advisers. Uhler was the son of a Sunkist executive and FDR hater; he was also Edward Meese’s classmate at Yale College and the University of California-Berkeley’s law school.  His proposal set a ceiling for state expenditures that would decrease over time in a constitutionally implemented program of “enforced austerity.”  Although the referendum failed, in part because Governor Reagan publicly stated that he did not understand it, Gourse shows that it was an early point of entry for economist James M. Buchanan’s public choice theory into the thinking of conservative political and legal figures.  The then-law professor Anthony Kennedy, for example, worked on Proposition 1.

The second paper was “Silencing the Cell Block: Prison Litigation, Federal Courts and the Creation of North Carolina’s Inmate Grievance Commission,” by Amanda Hughett, who is ABD in Duke University’s History Department.  Hughett starts her paper, also culled from a dissertation in progress, with Congress’s passage in 1995 of the Prison Litigation Reform Act, which, she writes, made “it nearly impossible for inmates to challenge correctional practices that violate their constitutional rights.”  She especially faults the statute’s requirement that prisoners exhaust all administrative remedies before filing a federal lawsuit, because most states' grievance procedures are extremely difficult for prisoners to navigate.  When she investigated the origins of North Carolina’s grievance system, she expected to find conservatives intent on rolling back “civil rights by limiting access to federal courts.”  She found, instead, that the initial proponent was a lawyer for the North Carolina Civil Liberties Union, who had concluded that federal courts were so overwhelmed by frivolous Section 1983 suits that they could not give “those very few cases that are promising” the requisite attention.  Only later did the U.S. Senator and former North Carolina Attorney General Robert Morgan lay the statutory groundwork that allowed a grievance procedure “designed to improve life behind bars” to become “an obstacle that inmates had to overcome to access the courts.”

My comment, which discusses Staszak’s paper along with Hughett’s, follows after the jump.

ASLH Election Results

More news from this year's meeting of the American Society for Legal History:

Five members of the Board of Directors are rotating off: Richard Bernstein (New York Law School), Christian G. Fritz (University of New Mexico), Daniel W. Hamilton (University of Nevada, Las Vegas), Linda K. Kerber (University of Iowa), and Amalia Kessler* (Stanford University). 

The five newly elected members are: Alison LaCroix (University of Chicago), Ajay Mehrotra (Indiana University), Patti Minter (Western Kentucky University), Polly Price (Emory University), and Karl Shoemaker (University of Wisconsin).

The other members of the 2015 Board are:
Susanna Blumenthal (2013) (University of Minnesota)
Margot Canaday (2012) (Princeton University)
Jane Dailey (2013) (University of Chicago)
Cornelia Dayton (2013) (University of Connecticut)
Jeremy Kessler, (graduate student representative) (2013) (Yale University)
Michael Lobban (2013*) (Queen Mary College, University of London)
Bruce H. Mann (2013) (Immediate Past President) (Harvard University)
Reuel Schiller (2012) (University of California, Hastings)
Mitra Sharafi (2012) (University of Wisconsin)
David S. Tanenhaus (2012*) (University of Nevada, Las Vegas)
Karen Tani (2012) (University of California, Berkeley)
One member of the Nominating Committee is rotating off:  Lucy Salyer (University of New Hampshire).

One new member has been elected: Martha Jones (University of Michigan)

The other members of the 2015 Nominating Committee are: 
Michael Willrich (2012), Chair (Brandeis University)
Daniel R. Ernst (2013) (Georgetown University)
Ariela Gross (2012) (University of Southern California)
Daniel Sharfstein (2013) (Vanderbilt University)
Thank you to all for their service!

* Executive Committee Member

Monday, November 17, 2014

Edward Coke, Meet Humphrey Bogart

Over at Worlds of Law, Marc S. Weiner has posted another in his series of videos that take legal history as a point of departure about much broader matters.  The latest is On Looking into Coke’s Reports (alternately, “Edward Coke, Meet Humphrey Bogart.”  It asks “Do law and film ever treat time in the same way? “ and seeks an answer in “rare books, jazz, the passage of time, and old movies … and the law reports of the great jurist Edward Coke.”

While at WOL, check out a save-the-date announcement for February 2018 (that’s not a typo).  It is for the opening at New York City’s Grolier Club of “Law’s Picture Books: The Yale Law Library Collection,” an exhibit Weiner is to co-curate with Mike Widener of the Yale Law Library.

The Lincoln Record Society's Magna Carta Conference

[Here is the provisional program for the Lincoln Record Society's Magna Carta Conference, to be held April 7-9, 2015, at the University of Lincoln.]

Tuesday, 7 April (afternoon)
Early career researchers sessions
  • Sophie Ambler (University of East Anglia), ‘Who Witnessed Magna Carta?’
  • Will Eves (University of St. Andrews), ‘Royal Justice in the Years Preceding Magna Carta: Actions of Mort D'Ancestor before King John, 1199-1216’
  • Katherine Har (University of Oxford), ‘Navigating the royal administration of justice in late twelfth- and early thirteenth-century England’
  • Joshua Hey (University of St. Andrews), ‘A Comparison of the Oaths in Magna Carta’
  • Felicity Hill (University of East Anglia), ‘Magna Carta and Pastoral Care’
  • James Richardson (University of York), ‘Ecclesiastical liberty and church reform: bishops and their dioceses in the reign of Edward I’
Wednesday, 8 April (all day).
A keynote address by David Carpenter and the following speakers:
  • Dauvit Broun (University of Glasgow), ‘Scotland’s Magna Carta?’
  • David Crook (University of Nottingham / Lincoln Record Society), ‘Magna Carta and the Charter of the Forest, 1215-17’
  • Philippa Hoskin (University of Lincoln), ‘Magna Carta, episcopal rights and the 1250s ‘
  • Helen Lacey (University of Oxford), ‘Invocations of Magna Carta in the Later Middle Ages’
  • Frédérique Lachaud (Universite de Lorrainé, Metz), ‘Limiting the king’s powers by law and counsel: Magna Carta in the context of political theory (c. 1150-c. 1215)’
  • Jessica Nelson (The National Archives), ‘Anglo-Scots relations in the Age of Magna Carta’
  • Louise Wilkinson (Christ Church University, Canterbury), ‘Lincolnshire Women in the Age of Magna Carta’
Evening: Evensong with lecture in Langton by Wragby church, birthplace of Archbishop Stephen Langton, one of the chief architects of Magna Carta.  Formal dinner in Lincoln Cathedral (lecture by Lord Patrick Cormack, Chairman of the Historic Lincoln Trust, and medieval music from Lincoln Waits)

Thursday, 8 April (morning)
Events TBC but will include a visit to Lincoln Cathedral Library, a visit to Lincoln Castle to view Lincoln’s copy of Magna Carta, and a walking tour of uphill Lincoln.

Gudridge on Young, "How Do You Measure a Constitutional Moment?"

Over at JOTWELL, Pat Gudridge (University of Miami School of Law) has shined a spotlight on a student Note by Daniel Taylor Young, titled, "How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change," which appeared in Volume 122 of the Yale Law Journal (2013). Here's the abstract:
Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance.  This Note develops a new empirical strategy to evaluate this claim using the debate over ratification of the Fourteenth Amendment as its test case.  The Note applies a statistical process known as unsupervised topic modeling to a dataset containing over 19,000 pages of text from U.S. newspapers published between 1866 and 1884.  This innovative methodological technique illuminates the structure of constitutional discourse during this period. The Note finds empirical support for the notion that the salience of constitutional issues was high throughout the ratification debate and then gradually declined as the country returned to a period of normal politics. These findings buttress Ackerman’s cyclic theory of constitutional change at one of its more vulnerable points.
And here's a snippet of Gudridge's essay:
“[F]or all the millions of words and thousands of newspaper articles this Note analyzes,” Mr. Young concedes, “this is a rather modest conclusion.” “[T]here is nothing surprising about the fact that the media was paying attention to the passage of major constitutional amendments in the aftermath of a devastating civil war.” (P. 2053.) It’s not Young’s bottom line, however, that marks his effort as important. “[M]illions of words and thousands of newspaper articles”—no law student reads this much! How did he do that?
“Algorithmic topic modeling,” his Note’s title tersely declares. Forty pages plus (out of 54 total) admirably explain what this involves. There is also an elegant technical appendix. Each newspaper front page from the period (all accessible on line) is treated as a separate document and run through optical character recognition software to identify words as words. The documents are computer-converted to brute lists stripped of all original interior organization, so-called common words deleted; the remaining identified words are counted in cases of repetition within each of the documents. The quantified word lists are statistically analyzed (more software) as word distributions, compared with each other, and the most common clusters of words across the full set of documents extracted. These clusters provide the ultimate working material for purposes of Young’s discussion. Texts become data.
I'm curious as to what historians think about this kind of analysis. Thoughts from readers?

New Release: Moore on The Court of Appeal for Ontario

New from the University of Toronto Press and the Osgoode Society: The Court of Appeal for Ontario: Defining the Right of Appeal in Canada, 1792-2013 (2014), by Christopher Moore. A description from the Press:
In Christopher Moore’s lively and engaging history of the Court of Appeal for Ontario, he traces the evolution of one of Canada’s most influential courts from its origins as a branch of the lieutenant governor’s executive council to the post-Charter years of cutting-edge jurisprudence and national influence.
Discussing the issues, personalities, and politics which have shaped Ontario’s highest court, The Court of Appeal for Ontario offers appreciations of key figures in Canada’s legal and political history – including John Beverly Robinson, Oliver Mowat, Bora Laskin, and Bertha Wilson – and a serious examination of what the right of appeal means and how it has been interpreted by Canadians over the last two hundred years. The first comprehensive history of the Ontario Court of Appeal, Moore’s book is the definitive and eminently readable account of the court that has been called everything from a bulwark against tyranny to murderer’s row.
Reviewers say:
“[Christopher Moore] has written a work that captures not just the facts and chronology, but also the character and personality of this marvellous, beloved institution.”
-- The Honourable Warren K. Winkler, QC, Former Chief Justice of Ontario
“Christopher Moore’s book is lively and engaging. It is a worthy and significant scholarly contribution to Canadian (and, of course, Ontario) legal history.”
-- Lorne Sossin, Dean, Osgoode Hall Law School, York University
Hat tip: Canadian Legal History Blog

Sunday, November 16, 2014

Sunday Book Roundup

Nell Irving Painter has a review in The New York Times of William Wells Brown: An African American Life by Ezra Greenspan (Norton & Co.). 
"Greenspan, an English professor at Southern Methodist University, has written a highly sophisticated biography that appreciates Brown’s many and varied forms of self-expression. This deep and wide depiction of Brown within his several contexts rests upon a patchwork of sources, American and European — for Brown, despite his many books, left no archive. 
The child who would be William Wells Brown was born enslaved in Kentucky, in about 1814, the son of his owner’s cousin. In St. Louis, given the job of tending a young charge also called William, his name was changed to Sandford with the carelessness characteristic of slave naming. As Sandford he worked in his owner’s medical office and on the Mississippi River’s ships and docks. After several unsuccessful attempts at escape, one with his mother, he finally fled St. Louis at about age 19. He retook his own name William and added Wells Brown in honor of the Quaker who had rescued him from starving and freezing in Ohio."
This week Nicholas R. Parrillo's Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (Yale University Press) is reviewed alongside Dana Goldstein's The Teacher Wars: A History of America's Most Embattled Profession (Doubleday) and Radley Balko's Rise of the Warrior Cop: The Militarization of America's Police Force (PublicAffairs).

You can read about Michael A. Ross's latest, Great New Orleans Kidnapping Case: Race, Law and Justice in the Reconstruction Era (Oxford University Press) in The New York Times, in a double book review with Gary Krist's Empire of Sin (Crown) in The Wall Street Journal, and there's even a short YouTube piece from Oxford University Press about Ross's book. From the NY Times,

"The police chief put his top black detective, John Baptiste Jourdain, on the case. Jourdain, the son of a white Creole father and free black mother, had already left a historical footprint. In 1864 he was among some 1,000 Afro-Creoles who signed a petition asking Lincoln to extend the vote to the free blacks of Louisiana. In 1867 he testified before a Congressional committee about bloody riots of the previous year, when officers from New Orleans’s police force, then still all-white, helped a mob attack a biracial state convention.

Jourdain, Mr. Ross writes, had studied investigative techniques originating in France, including deductive reasoning and the use of disguises, which he adopted during the Digby investigation. He interacted easily with whites involved in the case, including Thomas Digby, Mollie’s father, who repeatedly welcomed him into the family home, Mr. Ross relates. “We think of the Irish and African-Americans as being at one another’s throats, and yet here the interactions were all quite respectful,” the historian said."
The Nation asks "How did 'one person, one vote' become the rule for statehouses across the country?" in a review of J. Douglas Smith's On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought “One Person, One Vote” to the United States (Farrar, Straus and Giroux).

The Nation also has a recent review of several new works on capitalism and slavery including Sven Beckert's The Monied Metropolis (Cambridge), Christine Desan's Making Money (Oxford), Edward E. Baptist's The Half Has Never Been Told (Basic), Sven Beckert's Empire of Cotton (Knopf), Walter Johnson's River of Dark Dreams (Harvard), and the edited volume, The Cambridge History of Capitalism.

And, lastly, H-Net has added a couple reviews of note, including a review of Cheryl Janifer LaRoche's Free Black Communities and the Underground Railroad: The Geography of Resistance (Univ. of Ill. Press) and a review of Glenn Tatsuya Mitoma's Human Rights and the Negotiation of American Power (Univ. of Penn. Press).

Saturday, November 15, 2014

Weekend Roundup

  • Canadian legal historians are justifiably proud of Philip Girard for his beautifully crafted and insightful plenary address at last week's meeting of the ASLH. 
Philip Girard (credit)
  • In the wake of the disclosure that the founder of the Mormon Church, Joseph Smith, had as many as 40 wives, the New York Times asked LHB guest blogger Sarah Barringer Gordon (University of Pennsylvania) to weigh in on the Church's efforts at transparency. (Hat tip: @PennHistory)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, November 14, 2014

ASLH's Sutherland Prize to Walker

[Via H-Law, we have the following news of the ASLH’s Sutherland Prize, announced last week at the Society’s annual meeting.]

The Sutherland Prize, named in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually, on the recommendation of the Sutherland Prize Committee, to the person or persons who wrote the best article on English legal history published in the previous year. This year's committee, which was composed of Dan Klerman, James Oldham, and Joshua Tate, unanimously chose as the winner, Garthine Walker, "Rape, Acquittal and Culpability in Popular Crime Reports in England, c. 1670-c1750," Past & Present, 220:115-142.

Garthine Walker's article explores rape prosecutions in early modern England through reports in the popular press.  The article's findings upend much of the conventional wisdom about the relationship between law and society in the context of rape prosecutions.  Accounts in newspapers and similar sources do not generally doubt the veracity of the victim's account.  They do not blame the victim for provoking the crime, nor do they suggest that she "asked for it" or enjoyed it.  Low conviction rates, therefore, cannot be explained as reflecting misogynistic attitudes towards women or societal refusal to believe women's testimony.  This article thus encourages legal historians to rethink rape law so as to understand why legal standards and popular attitudes diverged.

Cromwell Article Prize and Research Awards

Via H-Law, we have news of two other awards given by the Cromwell Foundation, after consultation with the American Society for Legal History, at last week’s annual meeting of the ASLH. The William Nelson Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States

The 2014 Cromwell Article Prize went to Nicholas Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, which appeared in volume 123 of the Yale Law Journal, pages 266-411. 

The Cromwell Foundation also awards Research Fellowships.  The number of awards to be made, and their amounts, is at the discretion of the Foundation. In the past several years, the trustees of the Foundation have made from three to eight awards, in amounts up to $5,000. Preference is given to scholars at the early stages of their careers. The Committee for Research Fellowships and Awards of the American Society for Legal History (ASLH) reviews the applications and makes recommendations to the Foundation.

The 2014 recipients (and research topics) are:

John M. Collins
, "The Ghost of Thomas of Lancaster: Wartime in the American Revolution"

Scott De Orio
, "Deviant Subjects: Sex Offenders, Stigma, and Citizenship in Modern America"

Helen Dewar, "Contested Delegations: Subjects, Sovereignty and Law in the French Atlantic, 1598-1663"

Nancy O. Gallman
, "American Constitutions: Life, Liberty, and Property in Colonial East Florida"

Jane C. Manners
, "'Infinitely Dangerous to the Revenue of the United States': The Great New York Fire of 1835 and the Ethics of Disaster Relief in Jacksonian America"

Emily Margolis, "'Punishment They So Richly Deserved': Women, Property, and Patriarchy in the Early Antebellum South"

Samanthis Q. Smalls, "Slaves, Jails, and the Question of Ownership"

Cromwell Dissertation Prize to Minoff

The William Nelson Cromwell Foundation awarded this year's Cromwell Dissertation Prize to Elisa Martia Alvarez Minoff (University of South Florida, St. Petersburg) for “Free to Move? The Law and Politics of Internal Migration in Twentieth-Century America.” Professor Minoff completed her dissertation at Harvard University, under the direction of Lizabeth Cohen.

Via H-Law, here's the official citation:
Elisa Martia Alvarez Minoff’s “Free to Move? The Law and Politics of Internal Migration in Twentieth-Century America” reframes our understanding of the rise of the American social welfare state.  Mining a stunning array of archival sources, Minoff makes a compelling case that a critical, yet underappreciated factor in the development of the New Deal state was the effort to deal with the movement of people across jurisdictional boundaries within the United States. Through exhaustive, creative research and elegant prose, she shows how social welfare advocates from the 1930s to the 1970s called upon federal political and legal institutions to take increased responsibility for protecting the rights of American migrants. Minoff presents compelling, fine-grained portraits of the reformers who led the struggle to protect migrants as well as many of the migrants themselves, demonstrating that the expansion of federal authority in the middle decades of the twentieth century was much more than an abstract solution to the limitations of local and state-level institutions. That federal expansion was also a response to millions of people who left home in search of new opportunities. The resulting policy and doctrinal changes, although never matching the most ambitious visions of these reform advocates, constitute a key component of the contemporary welfare state and the basis for a new, national conception of citizenship.
The dissertation is available online, here.

The members of this year's Cromwell Dissertation Prize Committee were:
John D. Gordan, III, Chair
Christian G. Fritz (University of New Mexico School of Law), Chair
Alison LaCroix (University of Chicago Law School)
Catharine MacMillan (University of Reading)
Christopher W. Schmidt (Chicago-Kent College of Law)
 Congratulations to Professor Minoff!

Sawyer on English Law in Colonial Maryland

Jeffrey K. Sawyer, University of Baltimore School of Law, has posted, in two parts “The Rhetoric and Reality of English Law in Colonial Maryland.”  Part 1 - 1632-1689, appears in the Maryland Historical Magazine 108 (Winter 2013): 392-409:
The rule of English law in the English-speaking colonial world is at once obvious and puzzling. Along with language, the law anchored the Englishness of life in colonial America, At the same time, warring states and rival investors used law and diplomacy as weapons in their arsenals of global competition, and so the law of nations provided an unstable and frequently contested framework for exploration and settlement. The governance of struggling Atlantic settlements (especially before 1660) rose, fell, and was reconstructed with the various fortunes of each. In these early settlements there was much law-making, but law was perhaps negotiated as often as it was applied; local officials frequently adjusted English rules to local circumstances. The more historians investigate this world, the harder it is to be sure, exactly, how colonial law worked.

This article examines why a perennial contest over the precise authority of English law was so central to the rule of law in early Maryland. Two new perspectives will help further this inquiry, which has long interested colonial historians generally and historians of Maryland in particular. The first is a heightened appreciation of the fact that early American legal history unfolded in distinct phases. The second is a recognition that the contest over English law in the colonies developed along different but overlapping dimensions, a political or rhetorical dimension and an operational dimension. This latter world of law was the reality of lawsuits, debt collection, inheritance, criminal prosecutions, judgments, and so on.
Part 2, 1689-1732, appears in the Maryland Historical Magazine 109 (Spring 2014): 81-95:
The first half of this essay, published in MdHM, 108 (2013): 393-409, explored the status of English law in colonial Maryland from the colony's beginnings to 1689. Despite heated rhetoric to the contrary, the central issue of contention for Marylanders was not the extension of specific rules of English law, but whether the proprietor and his judicial appointees should have the last word on the subject. Political flare-ups in the legislature notwithstanding, a stable legal reality developed in practice. Maryland law ruled in all legal proceedings. English law remained available in reserve for use as appropriate where Maryland law was silent. This practical solution prevailed against the impractical alternative sometimes advocated by the Lower House of the legislature, namely, requiring judges, by their oath of office, to apply English rules in any case where Maryland law was silent. The issue remained a highly emotional one, however, as English law continued to symbolize liberty as strongly as it had before, and any abridgment of it came even more strongly to epitomize tyranny during Maryland's years as a royal colony and during the restored proprietorship of Charles Calvert, the Fifth Baron of Baltimore. The resolution of the conflict was a subtle compromise that accommodated political realities as well as the intricacies of early Maryland law.

Grisinger Reviews "Teaching Legal History"

Over at Jotwell, Joanna Grisinger, Northwestern, has posted Bringing History into the Law School Classroom, a review of Teaching Legal History: Comparative Perspectives, ed. Robert M. Jarvis (Wildy & Sons, 2014), to which I contributed.

The Schiller Backlist

Reuel Schiller
Reuel Schiller, Hastings Law, has posted some of his backlist on SSRN.  If you haven’t been reading Professor Schiller, here’s a chance to catch up.

An Unexpected Antagonist: Courts, Deregulation, and Conservative Judicial Ideology, 1980-94, in Making Legal History Essays in Honor of William E. Nelson, edited by Daniel J. Hulsebosch and R.B. Bernstein (New York University Press, 2013), 264-92

Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning Of Union Strength, Berkeley Journal of Employment and Labor Law 20 (1999): 1-73

The Strawhorsemen of the Apocalypse: Relativism and the Historian as Expert Witness, Hastings Law Journal 49 (1998): 1169-77

Reining in the Administrative State: World War II and the Decline of Expert Administration, in Total War and the Law: The American Home Front in World War II, edited by Daniel R. Ernst & Victor Jew (Praeger, 2002), 185-206  Not available for download, but here's the abstract:
This article argues that World War II had a profound effect on the relationship between courts and the administrative state in the United States. Between 1940 and 1950, administrative law changed dramatically. During the 1930s, it allowed administrative agencies to function with a great deal of autonomy. By 1950, the judiciary had asserted considerably more control over the administrative state. There is a direct link between the United States’ involvement in World War II and this change. In particular, three aspects of the wartime experience caused changes in American political culture that, in turn, contributed to this transformation. First, America’s encounter with totalitarianism – both abroad and on the home front – diminished people’s trust in the administrative state, which they began to associate with the unchecked power of fascism. Second, the track record of the wartime agencies – particularly the War Production Board and the Office of Price Administration – did little to assure Americans that administrative power could be used in a manner that was both efficient and consistent with democratic principles. Finally, the prosperity the War created caused one-time advocates of the administrative state to question the value of economic planning and to refocus their attention on curing economic maladjustments through Keynesian fiscal policy rather than through administrative control of economic actors. Thus, by the end of the War there were few advocates of extreme administrative autonomy left. Ideological, political, and economic changes dictated that the judiciary be put firmly in control of the administrative state.
Singing the 'Right-to-Work Blues': The Politics of Race in the Campaign for 'Voluntary Unionism' in Post-War California, in The Right and Labor in America: Politics, Ideology, and Imagination, edited by Nelson Lichtenstein & Elizabeth Tandy Shermer (University of Pennsylvania Press 2012)
This article tells the story of the failed attempt to pass a right-to-work proposition in California in 1958. In particular, it shows how right-to-work activists attempted to persuade African Americans to vote in favor of the proposition by portraying it as a fair employment practices measure. Because many California labor unions engaged in discriminatory practices, anti-union forces within the state thought they could tap into the hostility that many African Americans felt towards the labor movement. This strategy was unsuccessful. African Americans voted against the right-to-work proposition in overwhelming numbers. Nevertheless, the campaign exacerbated tensions in the tenuous political alliance between labor and the African American community. In the years that followed the proposition’s defeat, these tensions would undermine the political power of the labor movement, the African American community, and the Democratic Party.

Thursday, November 13, 2014

ASLH's New Honorary Fellows: António Manuel Hespanha

[Here, via H-Law, is the citation for the Professor António Manuel Hespanha, whose selection as an Honorary Fellow was announced at the recent ASLH meeting.]

António Manuel Hespanha (credit)
Professor António Manuel Hespanha is generally regarded as the leading Portuguese historian of his generation and as a scholar whose work has radically revised the legal, political and cultural history of early modern Europe and of the Portuguese empire in Brazil and China.

António Manuel Hespanha was born in Coimbra, Portugal, in 1945.   He earned a law degree from the University of Coimbra in 1967 and a Ph.D. in political, legal and constitutional history from the New University of Lisbon in 1987.  He recently retired from the New University of Lisbon Law School as Professor, Chairman of the Scientific Board, President of the Academic Assembly, and Director of the Center for Studies on Law in Society. He is also Honorary Research Fellow of the Institute for Social Sciences of the University of Lisbon. In the course of his academic career, Hespanha has held several different positions in Portuguese academia: he first taught at the Coimbra University Law School, the University of Lisbon Law School, and – unusually for a European academic—was also a faculty member in the History Department of the New University of Lisbon. He has served as a visiting professor in the history of law at the Autonomous University of Madrid, Yale University, and the University of Macao, among other places.

ASLH's New Honorary Fellows: Mary Frances Berry

Mary Frances Berry (credit)
[Here, via H-Law, is the citation for the Professor Mary Frances Berry, whose selection as an Honorary Fellow was announced at the recent ASLH meeting.  Penn's press releases are here and here.]

Mary Frances Berry, the Geraldine R. Segal Professor of American Social Thought and Professor of History at the University of Pennsylvania, is a leading historian of race, gender and the Constitution in the United States.  She is also a public intellectual known both for her archival finds and her ability to marshal them on behalf of public policy. Professor Berry is the author of ten books, with an eleventh in press.  Even her earliest work has proven unusually influential.
  Mary Frances received her B.A. and M.A. from Howard and her Ph.D. and J.D. from Michigan. Her career has included sojourns in history departments and law schools; academic administration, including a stint as Chancellor of the University of Colorado, Boulder; and public service. She was Assistant Secretary for Education at HEW during the Carter Administration.  During the Clinton and Bush II Administrations, she chaired the U.S. Commission on Civil Rights, of which she was a member for a quarter-century.  She has been President of the Organization of American Historians and Vice President of the American Historical Association.  She is the recipient of 34 honorary doctoral degrees from colleges and universities.

We could go on about her scholarship, but we limit ourselves here to saying that the committee was especially taken by her My Face Is Black Is True: Callie House and the Struggle for Ex-Slave Reparations (2005), which the Journal of American History likened to a “a paradigm shaping archaeological discovery,” and one which was “destined to become a seminal work in African American history.”  Like the rest of her scholarship, writes one reviewer, it “is beautifully written, almost novelistic, and conveys the emotional dimensions of the tragedy of the ex-slaves’ fate.”  The book uncovers the role of Callie House, founder of the National Ex-Slave Mutual Relief, Bounty and Pension Association.  Through grass roots organizing, and despite constant harassment from the federal government, which imprisoned her, and resistance from black elites, which wanted no part of her crusade, House created the reparations movement. She was erased from history until Mary Frances found her.  Even then, Mary Frances could find “no one who admitted to being related to her,” and in the book’s final chapter, she writes movingly of repeatedly tramping the grounds of Mt. Ararat Cemetery in Nashville with her nephew, “vainly seeking a marker for Callie House.”

Mary Frances’s scholarship and activism is powerfully and cheerfully courageous. “When conservative commentators criticized me for complaining when presidents and other officials refused to enforce civil rights law,” she recounted in her history of the Civil Rights Commission, “I recalled what my best friend, Minerva Hawkins, always said, ‘Remember, Mary Frances, when you’re in the limelight you make a good target.’”  After her 1984 arrest in front of the South African Embassy for protesting apartheid, reporters asked Mary Frances why she had braved the conservative mood of the American people. She told them “if Rosa Parks had taken a poll before she sat down on the bus in Montgomery, she’d still be standing up.  But she didn’t take a poll.  She knew what was necessary to be done, and she did it.  So, I didn’t take any polls either.”  We salute this remarkable historian, writer and activist.

ASLH's New Honorary Fellows: Charles Donahue

[Here, via H-Law, is the citation for the Professor Charles Donahue, whose selection as an Honorary Fellow was announced at the recent ASLH meeting.]

The American Society for Legal History is pleased to elect Professor Charles Donahue, Jr., as an Honorary Fellow of the Society.

Charles Donahue (Credit: Harvard Magazine)
Professor Donahue is the Paul A. Freund Professor of Law at Harvard Law School.  He received an A.B. in Classics and English from Harvard University in 1962 and the LL.B. from Yale University in 1965.  Prior to joining the Harvard Law School faculty, he was a member of the faculty of the University of Michigan Law School.  He is a member of the American Law Institute, former Literary Director and Vice-President of the Ames Foundation, former Vice-President and Honorary Treasurer for the U.S.A. of the Selden Society, and, of course, former President of the American Society for Legal History.  He is a Fellow of the Royal Historical Society and of the Medieval Academy of America.  In 2011 the University of Paris II (Panthéon-Assas) awarded him an honorary doctorate in recognition of his scholarship.

Professor Donahue is one of the leading medieval legal historians working today.  He is widely admired and respected for the range of his scholarship, the depth of his knowledge, and his generosity toward other scholars both young and established.

His scholarship ranges widely across medieval law and history.  He has examined the place of human rights in Roman law and the roles of women in medieval litigation, as well as fundamental questions of English common law and more.  With his prodigious breadth of knowledge, he has made pioneering contributions in every area he has addressed.  But throughout his scholarly travels, he has always returned to his abiding interest, medieval canon law.

Professor Donahue has devoted much of his career to exploring the question, “What Causes Fundamental Legal Ideas?"–a question he first posed in the title of an article on marital property in England and France in the thirteenth century in the Michigan Law Review in 1979.  He has led the way in extending Roman and canon law scholarship to include the impact of Roman and canon law in real world settings.  In his most sustained exploration of the question, he asked whether the canon law of marriage and marital property was monolithic or whether it was shaped by local needs and assumptions.  To answer, he dug deeply into the records of ecclesiastical courts in England and across western Europe.  His investigations culminated in what truly and literally can be described as his magnum opusLaw, Marriage, and Society in the Later Middle Ages:  Arguments About Marriage in Five Courts, published by Cambridge University Press in 2007.

The book is a tour de force of comparative legal history.  Professor Donahue moves beyond the canonical rules governing the formation and dissolution of marriage and studies how the rules were applied.  With his profound knowledge of canon law and ecclesiastical court practices, he demonstrates that within the common application of the general canon law of marriage, there were significant differences among courts in the types of cases heard and their outcomes.  He discerns differences in practice with such a fine eye that, as one reviewer remarked, he “enables us to grasp the world views or mentalités of the men and women who brought proceedings” before the courts.  In other words, he sees the people in the records.

That Professor Donahue could see the people in the records so clearly is in no small measure due to his intimate familiarity with archival court records that he himself translated, edited, and published.  Translating and editing court records, law reports, legal treatises, and the like, has been a staple of scholarship in medieval legal history to a degree unmatched by legal historians of any other period.  Professor Donahue is the preeminent modern exemplar of this tradition.

His contributions in this area have been many, significant, and selfless.  He has edited or co-edited major volumes for both the Selden Society and the Ames Foundation.  Indeed, whether or not he was editor, every volume published by the Ames Foundation in the last twenty-five benefitted from his advice, counsel, and often direct supervision as Literary Director of the Foundation.  He has had a hand–often both hands–in making available to fellow students of the field a large swath of the sources on which their own scholarship rests.

In sum, Professor Donahue has shaped the broad discipline of legal history and influenced the work of others.  As a scholar we admire, whose work we aspire to emulate, and on whose shoulders we stand, we are pleased and honored to welcome him as an Honorary Fellow of the Society.