Tuesday, September 2, 2014

Job Announcement: Director of the Federal Judicial History Office

[We have the following announcement.]

Director of the Federal Judicial History Office
Federal Judicial Center
Washington, DC  20002-8003

The purpose of the Federal Judicial Center is to further the development and adoption of improved judicial administration in the courts of the United States, primarily through rigorous and objective research and education. Congress established the Center in 1967 as a separate organization within the federal judicial system at the request of the Judicial Conference of the United States. A nine-member board, chaired by the Chief Justice of the United States, determines its basic policies.

The Center seeks an accomplished historian to fill a senior position as director of its Federal Judicial History Office. The director is responsible for developing and carrying out programs in furtherance of the Center’s statutory mandate to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” The director of the history office works under the supervision of the Center’s director and deputy director and manages a small staff of professional historians.

  • Develop and implement a public history program for the federal courts;
  • Develop programs and resources that provide the federal courts, scholars, educators, and the general public with access to the history of the judicial branch of government;
  • Develop historical resources for publication and for presentation on the Federal Judicial Center’s websites;
  • Maintain the Biographical Directory of Federal Judges and other on-line reference sources related to the history of the federal courts;
  • Develop and maintain guides to research in the history of the federal courts;
  • Work with federal judges and court staff to support history programs in the courts;
  • Consult with federal judges about the disposition of chambers papers.
  • Ph.D. in U.S. History;
  • Record of peer-reviewed, scholarly publications;
  • Excellent communication, writing, and editorial skills;
  • Demonstrated ability to work with diverse constituencies;
  • Excellent managerial and supervisory skills;
  • Understanding of and appreciation for the independence of the federal judiciary.
  • J.D;
  • Knowledge of and research experience in U.S. legal or constitutional history;
  • Experience producing historical resources for non-academic audiences;
  • Experience compiling and managing digital history resources;
  • Experience in developing institutional partnerships for historical projects;
  • Experience working with history and social studies educators;
  • Record of involvement in professional historical associations and a commitment to public history.
The pay level for this position in 2014 is $155,000.  The position does not carry the tenure rights of positions in the competitive civil service.  All other federal government benefits (e.g. leave, life and health insurance, retirement benefits) are applicable. 
Submit a cover letter describing your qualifications for the position and a resume that specifies dates of employment, salaries, and responsibilities for all related positions to:

                                    Federal Judicial Center
                                    ATTN:  Human Resources Office, Room 6-190
                                    Announcement #14-11
                                    Thurgood Marshall Federal Judiciary Building
                                    One Columbus Circle, NE
                                    Washington, DC  20002-8003

To receive full consideration for this position, applications must be received by close of business October 1, 2014; however, this vacancy will remain open until filled.  Please refer to Announcement #14-11 on your application.

All new employees with the Federal Judicial Center will be subject to an FBI/OPM background check.  All hiring decisions are provisional based on a favorable outcome. Relatives of Center staff members may not be employed at the Center in any capacity.

The Federal Judicial Center is an Equal Opportunity Employer

Vermeule Reviews Hamburger's "Is Administrative Law Unlawful?"

No,” by Adrian Vermeule, Harvard Law School, is a review of Philip Hamburger’s Is Administrative Law Unlawful?   It is forthcoming in the Texas Law Review.  Here is the abstract:
Philip Hamburger has had a vision, a dark vision of lawless and unchecked power. He wants us to see that American administrative law is “unlawful” root-and-branch, indeed that it is tyrannous -- that we have recreated, in another guise, the world of executive “prerogative” that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. The administrative state stands outside, and above, the law.

But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.
In his conclusion, Professor Vermeule considers the possibility that Professor Hamburger’s book “is interestingly wrong, in an unbalanced sort of way,” but decides that it is “merely disheartening.”  To compare the Federal Trade Commission to Star Chamber is “irresponsible,” Professor Vermueue writes, because it tends to feed a fear of dictatorship ”that bubbles unhealthily around the margins of popular culture, and that surfaces in disturbing forms on extremist blogs, in the darker corners of the Internet."

Center for the Study of Law and Society Speaker Series: Fall 2014 Lineup

The Center for the Study of Law and Society at the University of California, Berkeley has posted the fall lineup for its speaker series. A number of legal historians are scheduled to present:
Monday, September 8 – Christopher Tomlins
Professor of Law, Berkeley Law 
"Revulsions of Capital: The Political Law of Slavery in the Epoch of the Turner Rebellion, Virginia, 1829-1832” 

Monday, September 29Mary Dudziak
Asa Griggs Candler Professor of Law, Emory Law
"Going to War: An American History" 

Monday, October 20Rebecca McLennan
Associate Professor of History, UC Berkeley
"Circuit Justice: Law, Legitimacy, and the Federal Courts in the Early Republic" 
Monday, October 27William Forbath
Lloyd M. Bentsen Chair in Law, University of Texas School of Law
"Diaspora and Rights: Jews, Law and Identity Politics"
(co-sponsored with Berkeley Institute for Jewish Law and Israeli Studies) 

Monday, September 1, 2014

NYU Legal History Colloquium: Fall 2014 Lineup

New York University School of Law has posted the fall lineup for its Legal History Colloquium:
September 8
Wars and State-Making Reconsidered: The Rise of the Interventionist State
Steven Pincus, Bradford Durfee Professor of History, Yale University, Department of History
(paper coauthored with James Robinson, David Florence Professor of Government, Harvard University)
September 22
The Process Acts, the Cause of Action, and the Alien Tort Statute
Anthony Bellia, Professor of Law, Concurrent Professor of Political Science, and Notre Dame Presidential Fellow, University of Notre Dame Law School
Bradford Clark, William Cranch Research Professor of Law, The George Washington University Law School
October 6
Writing Constitutions and Writing Global History
Linda Colley, Shelby M.C. Davis 1958 Professor of History, Princeton University, Department of History
October 20
Republican Government, Federalist State: The Crisis of Maritime Regulation in the Era of the Napoleonic Wars
Gautham Rao, Assistant Professor, American University, Department of History
November 3
Equal Footing and a Constitution for Continental Expansion
Stephen Holmes, Walter E. Meyer Professor of Law, NYU School of Law
November 17
The World According to Grotius
Scott Shapiro, Charles F. Southmayd Professor of Law and Professor of Philosophy, Yale Law School
December 1
The Invention of Peace: The Idea of Europe and the International Legal Order on the Eve of World War I
Anthony Pagden, Distinguished Professor, UCLA Departments of Political Science and History

Klerman on the Economics of Legal History

Daniel M. Klerman, USC Gould School of Law, has posted Economics of Legal History, which is forthcoming in the Oxford Handbook of Law & Economics, ed. Francesco Parisi.  Here is the abstract:
This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

2) Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century women’s rights legislation.

3) Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.

4) Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the “law merchant”).

5) Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.

Sunday, August 31, 2014

Sunday Book Roundup

H-Net has posted several new reviews this week, one of which is of Edgar J. McManus and Tara Helfman's Liberty and Union: A Constitutional History of the United States (Taylor and Francis).
"In their new concise edition of Liberty and Union, Edgar J. McManus and Tara Helfman have done an admirable job of condensing what is a complicated and nuanced area of history into a “short” textbook. They focus on liberty as the cement that holds the Union together and forms the basis for constitutional development. While the book is promoted as an abridged history designed for single-semester courses, given its length and complicated material, it would be better suited for a two-semester class."
Another H-Net review is of The Woman Suffrage Movement in America: A Reassessment by Corrine M. McConnaughy (Cambridge).
"She argues that previous studies of the woman suffrage movement focused too closely on the suffragists and not enough on the lawmakers who actually gave women the right to vote. To fill this void, she examines the legislative process in several states to discover how and why a majority of their legislators were convinced to support woman suffrage." 
Other book reviews new on H-Net include a review of Brent Tarter's The Grandees of Government: The Origins of Persistence of Undemocratic Politics in Virginia (UVA Press), and a review of After Slavery: Race, Labor, and Citizenship in the Reconstruction South edited by Bruce E. Baker and Brian Kelly (University Press of Florida).
"Coeditors Baker and Kelly, along with the contributors, provide an informative study of labor history in the Reconstruction South. The essays show that the working-class narrative is key to a complete understanding of the remaking of the South. Raising provocative questions about black/white relations in the labor movement, workers' responses to labor legislation, and the role of gender (especially conceptions of manhood), the work encourages additional analysis of laborers' experiences. In sum, After Slavery is enlightening scholarship on the history of labor and citizenship in the post-emancipation era."
 In The Washington Post Alice Goffman's On the Run: Fugitive Life in an American City (University of Chicago Press) is reviewed.

The Daily Beast reviews Jack Shuler's The Thirteenth Turn: A History of the Noose (Public Affairs), which "features an evocative account of the U.S.-Dakota War of 1862, which reached its infamous nadir when 38 American Indians were hanged in public in Mankato, Minnesota. At the heart of this chronicle of the country’s “largest simultaneous execution” is a mesmerizing bit of prose that even the most jaded reader is likely to find moving."

And, The Washington Post has a review of Feminism Unfinished: A Short, Surprising History of American Women's Movements by Dorothy Sue Cobble, Linda Gordon, and Astrid Henry (Liveright).
"“Feminism Unfinished,” however, argues that the “wave” metaphor obscures the history of a continuous American women’s movement sustained by labor activists, civil rights advocates and ­social-reform campaigners, who may have looked placid on the surface but were paddling like hell underneath. Each of the three authors contributes a chapter to their history of American feminism, and they declare together in their prologue that “there was no period in the last century in which women were not campaigning for greater equality and freedom.” They hope that uncovering the “multiple and unfinished feminisms of the twentieth century can inspire” the women’s movements of the 21st. That’s the surprise signaled in the teasing subtitle."

Saturday, August 30, 2014

Weekend Roundup

    • Yesterday, with a group of entering students at Georgetown Law, I was privileged to hear about the Law Library of Congress's plans for next year's observance of the 800th anniversary of Magna Carta from Nathan Dorn, Curator of Rare Books.  A preview from In Custodia Legis is here.  DRE.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, August 29, 2014

    Mulligan et al. on Early Translations of the US Constitution

    Christina Mulligan, Brooklyn Law School; Michael Douma, James Madison University; Hans Lind, Yale University; and Brian Patrick Quinn have posted Founding-Era Translations of the United States Constitution:
    Before its ratification, the United States Constitution was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New York. Although copies of both the German- and Dutch-language translations have been preserved, they have largely escaped analysis — and public awareness — until now. This paper provides historical context for these translations and analyzes how they might aid our interpretation of the U.S. Constitution in the present day.
    A separately posted appendix "contains founding-era German and Dutch translations of the United States Constitution, along with extensive commentary on the translations."

    Walsh on Supreme Court Review of State Criminal Prosecutions

    Kevin C. Walsh, University of Richmond School of Law, has posted In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions.  Here is the abstract:
    It seems so obvious that the Supreme Court needs to have appellate jurisdiction to review state criminal prosecutions that involve questions of federal law that everybody assumes the Court has always possessed this jurisdiction. But it was not always so. This article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that Section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions rejecting federal-law-based claims of right, immunities, or defenses.

    Section 25 is one of the most important provisions of the original judiciary act that gave enduring institutional shape to a federal court system incompletely constructed by Article III. In the landmark 1821 case of Cohens v. Virginia, the Supreme Court held, as a constitutional matter, that the Supreme Court could engage in appellate review of state criminal prosecutions that fit within Article III’s extension of the federal judicial power to cases arising under federal law. The claim that the Court categorically lacked statutory jurisdiction over state criminal prosecutions under Section 25 was neither raised nor decided. And for almost two centuries nobody has thought to examine the issue despite the obvious importance of correctly understanding this key provision of the foundational statute for federal jurisdiction.

    Building on commentaries by a contemporary critic of Cohens, the astute and once-eminent (but now obscure) Charles Hammond of Ohio, this article offers a combination of neglected arguments and newly discovered evidence tending to establish that Section 25 did not encompass Supreme Court appellate review of state criminal prosecutions. This article’s rediscovery of civil-only Section 25 and its recovery of Charles Hammond’s constitutional vision not only have immediate implications for ongoing scholarly debates over the extent of congressional control over federal jurisdiction, but also have potentially wide-ranging import for generating new insights into the liquidation of Article III and the constitutional construction of the federal judiciary.

    Katz's "Women in the Mosque"

    New from Columbia University Press is Women in the Mosque: A History of Legal Thought and Social Practice by Marion Holmes Katz, a professor of Middle Eastern and Islamic studies at New York University:
    Juxtaposing Muslim scholars’ debates over women’s attendance in mosques with historical descriptions of women’s activities within Middle Eastern and North African mosques, Marion Holmes Katz shows how over the centuries legal scholars’ arguments have often reacted to rather than dictated Muslim women’s behavior.

    Tracing Sunni legal positions on women in mosques from the second century of the Islamic calendar to the modern period, Katz connects shifts in scholarly terminology and argumentation to changing constructions of gender. Over time, assumptions about women’s changing behavior through the lifecycle gave way to a global preoccupation with sexual temptation, which then became the central rationale for limits on women’s mosque access. At the same time, travel narratives, biographical dictionaries, and religious polemics suggest that women’s usage of mosque space often diverged in both timing and content from the ritual models constructed by scholars. Katz demonstrates both the concrete social and political implications of Islamic legal discourse and the autonomy of women’s mosque-based activities. She also examines women’s mosque access as a trope in Western travelers’ narratives and the evolving significance of women’s mosque attendance among different Islamic currents in the twentieth century.
    Intisar A. Rabb, Harvard Law School, and director of the Islamic Legal Studies Program, says of the book:
    Marion Holmes Katz brings to light and adds context to the fascinating history of women’s access to mosques through a dexterous presentation of a wide range of legal sources, travel accounts, contemporaneous Christian and Jewish accounts, literature, and a unique sixteenth-century manuscript recounting when women contested the ruling authorities’ attempt to ban them from Islam’s most sacred mosque in Mecca. A must-read for anyone interested in a solid historical account related to issues of women and gender in Islam.

    Thursday, August 28, 2014

    DeMott on Agency Law's "Third Bottle"

    One of the topics at a forthcoming conference on Opportunities for Law’s Intellectual History is “Legal Doctrine.”  Before you roll your eyes, cast them upon The Contours and Composition of Agency Doctrine: Perspectives from History and Theory on Inherent Agency Power, by Deborah DeMott, Duke University School of Law.  It is forthcoming in the University of Illinois Law Review (2014):
    This Essay explores the history of formulations of agency doctrine, arguing that agency law can best be rationalized as a distinctive subject by recognizing that an agent acts as an extension of the principal. The Essay relies on historical material, some unpublished, related to the drafting of the Restatements of Agency, the disagreements among Reporters and other participants about the contours of agency law, and the intellectual backdrop against which these experts worked. Their disputes, preceded as they were by challenges to the fundamental coherence of agency law, led to successive formulations of agency doctrine; while attempting to provide a comprehensive level of generality, some formulations threatened to distort established limits on the scope of a principal's responsibility for the actions of a principal. The Essay develops in particular the history of the doctrine of inherent agency power, tracing its origins back to the early days of work on the first Restatement of Agency through to the Restatement Third, which jettisons the doctrine. Originating as a form of catch-all (termed a "third bottle" by those working on the first Restatement) inherent agency power as a doctrine was an over-generalization that responded to the narrowness with which other doctrine were formulated, in particular apparent authority.

    Wednesday, August 27, 2014

    Bessler's "Birth of American Law"

    Out from the Carolina Academic Press next month, but available for preorder now, is The Birth of American Law: An Italian Philosopher and the American Revolution, by John D. Bessler, University of Baltimore School of Law.  The press explains that it
    tells the forgotten, untold story of the origins of U.S. law. Before the Revolutionary War, a 26-year-old Italian thinker, Cesare Beccaria, published On Crimes and Punishments, a runaway bestseller that shaped the Declaration of Independence, the U.S. Constitution, and early American laws. America's Founding Fathers, including early U.S. Presidents, avidly read Beccaria's book—a product of the Italian Enlightenment that argued against tyranny and the death penalty. Beccaria's book shaped American views on everything from free speech to republicanism, to ''Life, Liberty and the pursuit of Happiness,'' to gun ownership and the founders' understanding of ''cruel and unusual punishments,'' the famous phrase in the U.S. Constitution's Eighth Amendment. In opposing torture and infamy, Beccaria inspired America's founders to jettison England's Bloody Code, heavily reliant on executions and corporal punishments, and to adopt the penitentiary system.

    The cast of characters in The Birth of American Law includes the usual suspects—George Washington, Thomas Jefferson, John Adams and James Madison. But it also includes the now little-remembered Count Luigi Castiglioni, a botanist from Milan who—decades before Alexis de Tocqueville's Democracy in America—toured all thirteen original American states before the 1787 Constitutional Convention in Philadelphia. Also figuring in this dramatic story of the American Revolution: Madison's Princeton classmate William Bradford, an early U.S. Attorney General and Beccaria devotee; John Dickinson, the ''Penman of the Revolution'' who wrote of Beccaria's ''genius'' and ''masterly hand''; James Wilson and Dr. Benjamin Rush, signers of the Declaration of Independence and fellow Beccaria admirers; and Philip Mazzei, Jefferson's Italian-American neighbor at Monticello and yet another Beccaria enthusiast. In documenting Beccaria's game-changing influence, The Birth of American Law sheds important new light on the Constitution, the Bill of Rights, and the creation of American law.

    Hovenkamp on Inventing the Classical Constitution

    Herbert J. Hovenkamp, University of Iowa College of Law, has posted Inventing the Classical Constitution.  Here is the abstract:
    One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would make every participant a winner. The participants have liberty and property rights antecedent to the state, but choose to give up as little of these as needed to empower government. Because insisting on either unanimous consent or individual voter participation on every issue is impractical and unwise, republican representative government comes into existence. But then it is essential that this government act consistently with the social contract and not be captured by factions, or special interests.

    The result is constitutionalism that is wary of legislation as excessively vulnerable to special interest capture, suspicious of non-unanimous direct democracy tools such as initiatives and referenda because they often disrespect individual rights, and severely critical of most forms of economic regulation. With this distrust of legislation comes a reliance on judges to get the right answer, striking down statutes as unconstitutional even when the court's mandate is not explicitly stated in any constitutional language.

    This article argues, first, that the Constitution was not classical in its inception. Historically it was "pre-classical," particularly on matters of private contract and property rights and government intervention in the economy. That conclusion is consistent with its text, but even clearer from contemporary perspective, as well as early court interpretation.

    Second, a distinctively "classical" perspective on the Constitution came later, as the influence of Adam Smith's Wealth of Nations and his English and American followers filtered through American academies. The adoption of classical views resulted from the Jacksonian movement, which began in the 1820s. It took root in federal constitutional doctrine with Jackson's appointment of Chief Justice Roger B. Taney, an economic liberal. Classical liberal views increasingly influenced both state and federal constitutional thought well into the twentieth century, although state courts interpreting their own constitutions led the way. These included a strong antiregulatory bias favoring private markets, suspicion of monopoly, development of a technical and narrowly focused patent system as an exception to this hostility toward monopoly, legislative capture justifications for judicial review, and a strong view of liberty of contract. As these doctrines expanded, however, constitutional doctrine began to depart more significantly from constitutional texts.

    Third, one defining element of classical political theory -- the "social contract" -- never captured an important following in American mainstream constitutional thought, not even during the early national period or the later heyday of constitutional classicism. While judges and constitutional writers sometimes spoke of a social "contract" or "compact," they almost always meant the text of a constitution or some other authoritative document. They rarely advocated for a social contract doctrine that would enable them to jump off the ratified text to some unnamed fundamental principle. Even the academic and judicial architects of economic substantive due process during the Gilded Age and Progressive Era did not typically rely on the social contract idea, and some of them forcefully rejected it.

    Fourth, and concluding, the idea that classical constitutional doctrine was displaced by "progressive" constitutionalism is also wrong, or at least wildly exaggerated. The constitutional revolution that occurred during the first four decades of the twentieth century was certainly supported by self-identified "progressives." But support for change was broader and much more centrist, driven by changes in economic theory that today are accepted by liberals and conservatives alike. This makes it impossible to go back.

    Historiography and Sources of Commercial Law

    We have word of the conference “Historiography and Sources of Commercial Law,” to be held in Helsinki, September 1-3, 2014.  Its organizer is a project funded by the Academy of Finland and Finnish Cultural Foundation, "The Making of Commercial Law: Common Practices and National Legal Rules from the Early Modern to the Modern Period," which I believe is directed by Professor Heikki Pihlajamäki of the University of Helsinki, with a steering group consisting of the professors Albrecht Cordes (Frankfurt), Serge Dauchy (Lille) and Dave De ruysscher (Brussels).  Here are the sessions:

    Monday, 1 September 2014

    Session 1: Sources and Commercial Law, 9.30-12.00, venue: Lecture room P545 (Faculty Meeting Room), Faculty of Law, Porthania, Yliopistonkatu 3

    Eberhard Isenmann: Legal, moral-theological and genuinely economic opinions on questions of trade and economy in 15th and early 16th century Germany

    Dave De ruysscher: Merchant manuals as sources

    Heikki Pihlajamäki: Constructing a Field of Law: The Birth of Commercial Law in Early Modern Sweden

    Session 2: Commercial Legal Conflict Resolution in the Baltic Sea Region and Universal Commercial Law, 13.30-15.00, venue: Lecture room P545 (Faculty Meeting Room), Faculty of Law, Porthania, Yliopistonkatu 3

    Justina Wubs-Mrozewicz: Mercantile conflict resolution in practice: connecting diplomatic and legal sources from Danzig c. 1460-1580

    Albrecht Cordes: Levin Goldschmidt and the concept of universal commercial law
    Coffee Break, 15.00-15.30

    Session 3: Superior Courts as Fora for Commercial Legal Conflicts 1, 15.30-17.45, venue: Lecture room P545 (Faculty Meeting Room), Faculty of Law, Porthania, Yliopistonkatu 3

    Alain Wijffels: Records and sources of commercial litigation before the Great Council of Mechelen (15th-16th centuries)

    Peter Oestmann: Court records as sources for the history of commercial law: The Oberappellationsgericht Lübeck as commercial court

    Mia Korpiola: Svea Court of Appeal records as a source of commercial law

    Tuesday, 2 September 2014

    Session 4: Superior Courts as Fora for Commercial Legal Conflicts 2, 9.00-10.30, venue: Lecture room P545 (Faculty Meeting Room), Faculty of Law, Porthania, Yliopistonkatu 3

    Anja Amend-Traut: The high imperial courts (the Aulic Council and the Imperial Chamber Court) and commerce

    Boudewijn Sirks: The High Council of Holland and Zealand (to be confirmed)
    Coffee Break, 10.30-11.00

    Session 5: Comparing English and Continental Commercial Law, 11.00-12.30, venue: Lecture room P545 (Faculty Meeting Room), Faculty of Law, Porthania, Yliopistonkatu 3

    Guido Rossi: Comparing the sources of English and continental commercial law - with the example of maritime insurance law

    Margrit Schulte Beerbühl: Bankruptcies, speculation bubbles and the law: bankruptcy law vs. bankruptcy management in late eighteenth-century Hamburg and London

    Session 6: Custom and Codification in French and Italian Commercial Law, 14.00-16.15, venue: Lecture room P545 (Faculty Meeting Room), Faculty of Law, Porthania, Yliopistonkatu 3

    Richard Court:  Genoese merchants and the consuetudine

    Edouard Richard: Rise of usages in French commercial law and jurisprudence (17th-19th centuries)

    Olivier Descamps: On origins of the French Commercial Code: vicissitudes of the Gorneau Draft

    Tuesday, August 26, 2014

    The Passing of Professor Chris (C.W.) Brooks

    [We are grateful to Professor David Sugarman, Lancaster University, for sending us this very sad news.] 

    It is with great sadness that we report the death of Professor Chris (C.W.) Brooks aged 65.  A native of Maryland, with a first degree from Princeton, and a doctorate from Oxford, Chris joined the Department of History at Durham University in 1980 as a lecturer, rising to the rank of professor.  His wide-ranging research interests in the history of early-modern England included a particular focus on the law and its social and cultural implications.  He is best known for his exemplary monographs, Pettyfoggers and Vipers of the Commonwealth. The Lower Branch of the Legal Profession in Early Modern England (Cambridge University Press, 1986); Lawyers, Litigation and English Society since 1450 (Hambledon, 1998); Law, Politics and Society in Early Modern England (Cambridge University Press, 2008) and his co-edited collections, (co-edited with J. Barry) The Middling Sort of People: Culture, Society and Politics in England 1550-1800 (Macmillan, 1994) and (co-edited with M.J. Lobban) Communities and Courts in Britain 1150-1900 (Hambledon, 1997).  He was a founder-member of the Board of Editors of Law and History Review and a member of council of the Selden Society.  At the time of his death he was preparing the 1625-1689 volume of the Oxford History of the Laws of England

    An event to celebrate Chris' life will take place on Saturday 30th August 2014 at 1:00pm in the Lindisfarne Centre, St Aidan's College, Durham University, Windmill Hill, Durham DH1 3LJ, England.  All are welcome. 

    Donations in Chris' memory can be made to Linacre College, Oxford, or to The National Humanities Centre, PO Box 12256, 7 Alexander Drive, Research Triangle Park, North Carolina, NC 27709-2256.

    Tamanaha's Case against the "Formalist Age"

    Brian Z. Tamanaha, Washington University in Saint Louis School of Law, has posted The Mounting Evidence Against the “Formalist Age,” which appears in the Texas Law Review 92 (2014).  Here is the abstract:
    In Beyond the Formalist-Realist Divide (2010), I challenge the widely held view that American legal culture at the turn of the twentieth century was dominated by belief in legal formalism, which the legal realists came on the scene to shatter in the 1920s and 1930s. Our image of the “Formalist Age,” I argue, is not historically accurate — many prominent jurists in the period expressed consummately realistic views of law and judging. This essay is a concise presentation of the historical evidence that supports my position, citing a major work completed since the publication of my book that adds support to my argument. While presenting this evidence, I respond to assertions by Professors Al Brophy and Frederick Schauer that the many realistic statements I convey in the book are merely examples of early realism, which are insufficient to refute the conventional image of the formalist age.

    What I show is that, not only is the evidence of realism explicit and plentiful — as realistic as anything legal realists would say three decades later — but also that realistic views of law and judging were uttered by the very jurists who have been identified as leading legal formalists. The story of the formalist age does not hold up.

    Monday, August 25, 2014

    Tsai on America's Forgotten Constitutions at the National Archives

    Robert L. Tsai, American University, Washington College of Law, discusses his book America’s Forgotten Constitutions: Defiant Visions of Power and Community at the National Archives at noon on Thursday, September 18.  Catch him in person at the William G. McGowan Theater or live via YouTube here.  The National Archives explains, "The U.S. Constitution opens by proclaiming the sovereignty of all citizens: “We the People.” Robert Tsai will discuss the history of alternative constitutions and those who refused to accept the Constitution’s definition of who 'the people' are and how their authority should be exercised. A book signing will follow the program."

    AJLH 54:3

    Here are the contents of the American Journal of Legal History 54:3 (July 2014):

    Pink Franklin v. South Carolina:
    The NAACP's First Case
    W. Lewis Burke

    The East German Contribution to Equal Gay and Lesbian Rights in Germany
    Greg Taylor

    A 20th Century Debate About Imprisonment for Debt
    Stephen J. Ware

    The Campaign for Women's Property Rights: Sarah Bank's Story
    Christopher Collier

    Mehrotra on Beard and the Columbia School of Political Economy

    Ajay K. Mehrotra, Indiana University Maurer School of Law, has posted Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis, which is to appear in Constitutional Commentary 29 (2014): 475-510.  Here is the abstract:   
    Charles A. Beard, circa 1917 (LC)
    A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

    This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

    This article was part of a special symposium on the 100th Anniversary of Charles Beard’s An Economic Interpretation of the Constitution, hosted by the University of Virginia’s Miller Center and law school.

    Graber on Stevens, Bingham, and the Fourteenth Amendment

    Mark Graber, University of Maryland Francis King Carey School of Law, has posted Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment.  Here is the abstract:
    Thaddeus Stevens (credit)
    This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.

    Sunday, August 24, 2014

    Sunday Book Roundup

    Given recent events in Ferguson, both NPR and The New Yorker suggest reading or rereading James Baldwin's Notes of a Native Son (Beacon Press). You can listen to the NPR spot here, and read The New Yorker article here. Also, The Daily Beast has put together a reading list for understanding "How We Got to Ferguson."

    The LA Review of Books has a review of Alice Goffman's On the Run: Fugitive Life in an American City (University of Chicago Press). Reviewer Priyanka Kumar writes,
    "Alice Goffman's On the Run couldn’t be more aptly titled. In the Philadelphia suburb that is the focus of Goffman’s powerful sociological study, young Black men are “on the run” for real, and they coach their preteen siblings how to be on the run. At 21, Goffman was tutoring a high school student, whose cousin introduced her to Mike, 22, on Sixth Street. Goffman began to hang out with Mike (their relationship is sibling-like), and, over time, Mike and his friends agreed to be subjects in her book. A year and a half later, Mike is sentenced to one to three years in prison and, shortly after, Goffman is accepted into a PhD program in Princeton. The two worlds — prison and Princeton — couldn’t be further apart. Goffman’s book shows how men like Mike get entangled in the criminal justice system; once they’re in, their youth is all but consumed in a spiral of police run-ins, court dates, bench warrants, prison, and probation."
    n+1 has an online book review written by Tim Barker that examines Joshua Bloom and Waldo E. Martin Jr.'s Black Against Empire: The History and Politics of the Black Panther Party (University of California Press) and Charles E. Cobb Jr.'s This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible (Basic).

    Over at New Books in American Studies, there is an interview with Glenn Feldman about his new book Nation within a Nation: The American South and the Federal Government (University Press of Florida).

    H-Net has posted a review of Marjorie Heins's Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-communist Purge (New York University Press).
    "Marjorie Heins crafts a complete picture of the process in which academic freedom became a “special concern of the First Amendment” (p. 8). She argues that both the legal repudiation of loyalty oaths in Keyishian v. Board of Regents (1967), and the witch hunts and purges of teachers leading up to the Keyishian victory still resonate today. Heins claims, “We remain a society in which the range of acceptable views is remarkably narrow and where emotional appeals often overwhelm coherent discussion of political issues” (p. 269). "
    The Los Angeles Review of Books reviews Clark Stoeckley's  The United States v. Pvt. Chelsea Manning (OR Books), "a graphic account that combines courtroom sketches by Clark Stoeckley with trial transcripts."

    And finally, The Washington Post has noted the schedule for history events at the National Book Festival here.

    Saturday, August 23, 2014

    Weekend Roundup

    • We've already noticed one twitter feed on Magna Carta; here is another, Canadian one.
    • On H-Law, Jon Roland points to three on-line collections: US Treasury Reports, 1789-1980; the Journals of the Continental Congress, 1774-1789; and State constitutions in use from independence through adoption of the U.S. Constitution.  All are available from the Constitution Society, "a private non-profit organization founded in 1994 and dedicated to research and public education on the principles of constitutional republican government. It publishes documentation, engages in litigation, and organizes local citizens groups to work for reform.. . .This organization was founded in response to the growing concern that noncompliance with the Constitution for the United States of America and most state constitutions is creating a crisis of legitimacy that threatens freedom and civil rights."
    • The National History Center's first monthly newsletter is here.
    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, August 22, 2014

    Tillman on Originalism and the Disqualification Clause

    Seth Barrett Tillman, National University of Ireland, Maynooth Faculty of Law, has posted Originalism and the Scope of the Constitution's Disqualification Clause, which is forthcoming in the Quinnipiac Law Review 33 (2014).  Here is the abstract:    
    This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office . . . under the United States” language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear.

    I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office . . . under the United States” language, i.e., the operative language in the Disqualification Clause.

    Waugh on Australia's Chinese Exclusion Case

    John Waugh, Melbourne Law School, has posted an article from his backlist, Chung Teong Toy v Musgrove and the Commonwealth Executive.  It first appeared in Public Law Review 2 (1991): 160–178.  Here is the abstract:    
    Alfred Deakin (credit)
    This article looks at perhaps the best-known Australian constitutional case of the nineteenth Chung Teong Toy v Musgrove (1888), in which a challenge to the power of the colony of Victoria to exclude Chinese immigrants led the Supreme Court to undertake a fundamental examination of the status and powers of the Executive under the colony's constitution. At the 1891 Australian federal convention, Alfred Deakin said that the case would demand "the most careful consideration" when the federal constitution was being framed. Its history, and its context in colonial constitutional law, throw light on parts of Chapter II of the Australian Constitution, in particular s 64.

    Tomlins on Historicism and Materiality in Legal Theory

    Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted Historicism and Materiality in Legal Theory, which is forthcoming in Law, Theory and History: New Essays on a Neglected Dialogue, ed. Maksimilian Del Mar and Michael Lobban (Hart Publishing).  Here is the abstract:
    Current interest in a rapprochement between legal theory and legal history rests on a transformation of legal theory into a species of historicism, a mode of inquiry that emphasizes the tempero-spatial locatedness of its objects of attention, and examines the multiplicity of relations existing between object and context. Contemporary paradigms in historicism further contend that whatever the context in relationship to which the object of inquiry is situated, the outcome is indeterminacy – the irreducible contingency of alternative possibilities, paths taken and not taken. Given the stranglehold that historicism has achieved in legal history, it is not surprising that its core contentions should be the drivers of revisionism in legal theory. However, alternatives should be considered. This paper undertakes a critique of historicism, and examines a rival philosophy of history that I will call “materiality.” A less developed, more eclectic, standpoint, materiality stresses the impact upon the formation of law of technologies, artifacts, and material practices. Rather than collapse law into its context, it seeks to examine the fabrication of law’s differentiation. Its potential is exemplified in work as varied as Cornelia Vismann’s Files: Law and Media Technology (2000; trans. 2008) and Bruno Latour’s The Making of Law (2002; trans. 2010). My main emphasis, however, will be on the species of historical materialism developed in the work of Walter Benjamin (1892-1940), where one finds both an intense stress on the materiality of an object of attention, and an understanding of historical perspective to entail much more than the derivation of the object’s meaning from the circumstances in which it is located. If history promises to enliven our understanding of an object, we must recognize the object is not enlivened by the relationalities of its time, within which it allegedly belongs, but by the fold of time that creates it in constellation with the present, the moment of its recognition.

    Thursday, August 21, 2014

    Kisilowski on Lawyers, the Rule of Law, and "Socialist Legality"

    Although the article, appearing in the Fall 2014 issue of Law & Social Inquiry, is gated, I want to note the publication online of The Middlemen: The Legal Profession, the Rule of Law, and Authoritarian Regimes, by Maciej Kisilowski, Central European University.  Here is the abstract:
    Scholars are increasingly interested in exploring ways to strengthen the rule of law in authoritarian states—especially when deeper political reforms are not attainable. The article contributes to this discussion by revisiting the story of the emergence of the so-called socialist legality in the communist states of Eastern Europe. Using the historical record from Poland, the author demonstrates a previously unnoticed, yet pivotal, role of legal professionals in facilitating socialist legality's rise to prominence. Using the lenses of Pierre Bourdieu's theory of fields, the article chronicles the evolving dynamic between the legal profession, the authoritarian regime, and society. These observations challenge conventional explanations of the emergence of the rule of law in nondemocratic conditions.

    A MOOC on the Legacy of the Paris Peace Conference

    Sarah Bannerman, a researcher at the Law School of the University of Glasgow, writes to draw our attention to a forthcoming MOOC on which she and Professor Christian Tams, also of Glasgow Law, have been working, in collaboration with the BBC.  A link to the MOOC, including a trailer, is here. According to Ms. Bannerman, the course will cover
    The Big Four (credit)
    the legacy of the Paris Peace Conference of 1919 and its pursuit to create a new world order through the creation of the League of Nations. This is a free course that is open to anyone interested in learning more about how today’s world was fashioned from the outcomes of World War One. The course will go live on the 13th October and will last for three weeks, requiring around five hours of work per week. Participants will be able to [debate] the main issues online with other students.

    Dudziak on the Future as a Concept in National Security Law

    LHB Founder Mary L. Dudziak, Emory University School of Law, has posted The Future as a Concept in National Security Law, which is forthcoming in the Pepperdine Law Review.  Here is the abstract:    
    With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what concesption of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

    If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a "next attack," and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

    Rana on Colonialism and Constitutional Memory

    Aziz Rana, Cornell Law School, has posted Colonialism and Constitutional Memory, which is forthcoming in the UC Irvine Law Review.  Here is the abstract:
    The United States shares a number of basic historical traits with various British settler societies in the non-white world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences?

    This essay, prepared for the Third "Law As..." Symposium, offers an initial response, arguing that a significant reason is the symbolic power of the American Federal Constitution in sustaining a particular narrative of the country as free and equal from the founding. Although this creedal narrative has played a powerful and productive role in creating a more inclusive national community, it has also, paradoxically, made it more difficult for Americans to appreciate the country’s colonial underpinnings and thus to address specific structural grievances. In developing these claims, the essay first explores how universalistic accounts of national identity and constitutional meaning began to take political hold with the country’s emergence onto the global stage following the Spanish-American War. It then analyzes the unacknowledged contemporary costs of creedal narratives by recovering a tradition of radical black critique, which viewed the dominant national identity as truncating dilemmas of race in part by deemphasizing the need for material restitution and symbolic rupture.
    Hat tip: Legal Theory Blog