Friday, February 12, 2016

Call for Submissions: Yale/Stanford/Harvard Junior Faculty Forum

We have the following call for submissions (note that this year's forum specifically calls for "Law and humanities" submissions):

Yale/Stanford/Harvard Junior Faculty Forum
Request for Submissions

June 28-29, 2016, Yale Law School

Yale, Stanford, and Harvard Law Schools announce the 17th session of the Junior Faculty Forum to be held at Yale Law School on June 28-29, 2016.

The Forum’s objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, rotating among Yale, Stanford, and Harvard. Twelve to twenty scholars (with one to seven years in teaching) will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Yale, Stanford, or Harvard, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal is discourse both on the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among American legal scholars generally, particularly among new and veteran professors.

TOPICS: Each year the Forum invites submissions on selected legal topics. For the upcoming 2016 meeting, the topics will cover the following areas of the law:
- Administrative Law
- Constitutional Law – theoretical foundations
- Constitutional Law – historical foundations
- Criminal Law
- Critical Legal Studies
- Environmental Law
- Family Law
- Jurisprudence and Philosophy
- Law and Humanities
- Public International Law
- Race/Gender Studies/Antidiscrimination
- Workplace Law and Social Welfare Policy

A jury of accomplished scholars, again not necessarily from Yale, Stanford or Harvard, with expertise in the particular topic, will choose the papers to be presented. There is no publication commitment, nor is previously published work eligible. Yale, Stanford, or Harvard will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: There is no limit on the number of submissions by any individual author. To be eligible, an author must be teaching at a U.S. law school in a tenured or tenure-track position and must not have been teaching at either of those ranks for a total of more than seven years. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years and that they earned their last degree after 2006. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Forum. Papers that will be published prior to the meeting in June 2016 are not eligible.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to Katherine Pothin ( with the subject line “Junior Faculty Forum.” The deadline for submissions is February 29, 2016. Please remove all references to the author(s) in the paper. Please include in the text of the email a cover note listing your name, the title of your paper, any coauthors, and under which topic your paper falls. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Christine Jolls ( and her assistant, Katherine Pothin (

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Gabby Blum ( or Adriaan Lanni ( at Harvard Law School, Richard Ford ( at Stanford Law School, or Christine Jolls ( or Yair Listokin ( at Yale Law School.

Thursday, February 11, 2016

Hickford on Prerogative Land Grants in Early NZ

Mark Hickford, Victoria University of Wellington Faculty of Law, has posted “Settling Some Very Important Principles of Colonial Law”: Three “Forgotten” Cases of the 1840s, published in Victoria University of Wellington Law Review 2004: 1-30.
This article reintroduces the 'forgotten" cases of R v Taylor, Attorney-General v Whitaker and Scott v Grace and considers their specific historical contexts. They raise controversial questions about the extent of the New Zealand governor's ability to grant lands outside of the provisions of local ordinances and imperial statutes by using the prerogative. The article notes the flow-on effects of the policy lacuna created by these judgments. The judgments of Justice Chapman and Chief Justice Martin caused considerable unease on the part of the colonial government and policy-makers in London as well as some New Zealand Company operatives. This in turn led to the subsequent legislative and policy efforts to qualify the reach of prerogative powers in colonies. The text of the cases is appended to this article.

Lavoie on Restraint of Alienation of Indigenous Lands across CANZUS

Malcolm Lavoie, University of Alberta Faculty of Law, has posted Why Restrain Alienation of Indigenous Lands?
This paper provides the first comprehensive account of the rule against alienating indigenous lands to private parties, that is to say, parties other than the government. This rule exists, in common law and statutory forms, across common law settler societies, including the United States, Canada, Australia, and New Zealand. The author provides an historical account of the development of the rule, outlining the ways in which the rule was seen to be justified across different time periods. The paper argues that none of the historical bases for the rule, which range from considerations of military strategy to outright racial paternalism, can provide an adequate justification for the rule in the present day. After providing an account of the current legal regimes in these four countries, the author sets out a contemporary justification for the rule, rooted in the collective autonomy and cultural integrity of indigenous groups. This is approached primarily from two angles. In economic or welfare-oriented terms, alienations of parts of a community's land base may impose a cost on members of the group by reducing the group's capacity to preserve its culture and way of life, goods which can only be enjoyed in collective form. Alternatively, one can take collective autonomy and cultural preservation as goods not fully reducible to welfare. Erosions of the group's land base impinge on its ability to exercise collective autonomy, especially if governance jurisdiction is linked to land ownership. The paper also considers the relevance of arguments based on indigenous sovereignty and distinctive indigenous approaches to land. Finally, the author outlines a set of promising alternative institutional arrangements that might reconcile the interests at stake in ways other than through a rigid prohibition on alienation to private parties.

Schneiderman on Dividing Power within the British Empire

David Schneiderman, University of Toronto Faculty of Law, has posted Dividing Power in the First and Second British Empires: Revisiting Durham's Imperial Constitution, which is forthcoming in Review of Constitutional Studies   
In his Report on the Affairs of British North America, Lord Durham proposed that “internal” government be placed in the hands of the colonists themselves and that a short list of subjects be reserved for Imperial control. Janet Ajzenstat maintains that Durham did not intend to formally restrict the authority of the new colonial legislature by dividing power. This paper argues otherwise: that Durham’s recommendation fell squarely within a tradition of distinguishing between the internal and external affairs of the colony. This was the imprecise but pragmatic distinction that American colonists invoked during the Stamp Act crisis as a means of curtailing imperial authority over internal taxation while maintaining their allegiance to the British Crown. It also was a division that Charles Buller relied upon in a constitution for New South Wales that he proposed prior to sailing to Canada as Durham’s principal secretary. Durham likely was drawing upon this tradition when he made his recommendation, a distinction that began to crumble away almost immediately. In the result, Canadians inherited a robust semblance of self-government, just as colonists during the Stamp Act crisis had desired, but without the need for revolution.

Wednesday, February 10, 2016

CFP: Law in the History of Capitalism

[We're moving this post up because the deadline is fast approaching.]

Law in the History of Capitalism, June 27-28, 2016, American Bar Foundation and University of Chicago Law School, 750 N. Lake Shore Drive, Chicago IL 60611.  Deadline for applications:  February 15, 2016

In recent years, there has been an explosion of new scholarship on the historical relationship between law and capitalism.  This new literature has examined a variety of topics including the connection between slavery and capitalism, new social and cultural perspectives on economic and business histories, and the role of the state in facilitating and frustrating economic development.  This infusion of interdisciplinary scholarship creates an opportunity for new work that puts law, legal institutions, and legal processes at the center of capitalist transformations.

The aim of this conference is to provide junior scholars with a venue to share their unpublished research and to connect with senior scholars in the field.  We thus invite junior scholars to submit proposals that offer original analyses of law in the history of capitalism.  Our goal is to host a conference with a variety of papers that range chronologically, geographically, and across disciplines.  The conference will be held at the American Bar Foundation in Chicago, Illinois, from June 27-28, 2016.

The “Law in the History of Capitalism” conference is co-sponsored by the American Bar Foundation, the American Society for Legal History, the University of Chicago Law School, the Indiana University Maurer School of Law, the University of Illinois College of Law, the University of Michigan Law School, the University of Minnesota Law School, and the University of Pennsylvania Law School.

Interested participants should submit a 300-word paper proposal and a cv of no more than 3 pages through the conference website.  Questions should be addressed to Erin Watt at  All proposals are due by February 15, 2016.  Applicants will be notified by email no later than March 30, 2016, whether their proposals have been accepted.  No previously published work will be accepted, as the conference is designed to provide a forum for productive and supportive discussion of works in progress.

Accepted participants will be required to submit a full paper of no more than 10,000 words by May 15, 2016.  Papers will be pre-circulated on a password-protected website and read by all participants.  Modest travel and accommodations support will be provided for presenters.  For further information, see the conference website.

Monti on Teaching Family Law in the Turn of the 20th-Century Italy

Annamaria Monti, Bocconi University, Department of Law, has posted What Can We Learn from a Family Law Course? The Teachings of an Early 20th Century Italian Professor, which is to appear in Family Law and Society in Europe from Medieval to Contemporary Ages, ed. di Renzo Villata (Springer, 2016).
This article aims to explore the concept of the family in Italian legal thought from the end of the 19th century up to the first fifteen years of the 20th century. Focus is placed on a source which has been largely untapped by historiographers, namely the lecture notes from law courses taught at Italian universities. Specifically, this article shall examine the lecture notes which recorded the teachings of Alfredo Ascoli (1863-1942), an eminent jurist who held professorships of Italian Private Law at the University of Pavia and Bocconi University in Milan during the period under examination. Ascoli was also a co-founder of the law journal Rivista di diritto civile (1909), as well as a future member of the Royal Commission for the Post-war period (1917).

The Italian Civil Code of 1865 struggled in many ways to meet the needs of a society that had already embarked upon the path of industrialization. At the same time, many Italian jurists were seeking new solutions in order to reform the legal method. By examining the teaching of law, it is possible to evaluate not only the state of teaching methodologies at the time, but also the extent to which the era’s profound social and economic changes were being dealt with in university lecture halls, where the country’s future ruling class received their education.

Leo Nebbia on the NRA

Leo Nebbia (credit)
The historian Ellis Hawley noted long ago that business critics of the New Deal seem to have discovered antistatism only after Franklin D. Roosevelt’s administration denied them the particular kind of statism they wanted.  I was reminded of Hawley’s insight and of the doubtless exasperating tendency of celebrity plaintiffs to go off message when I read a transcription of what I assume was a handwritten original of Leo Nebbia’s letter to Hugh S. Johnson, Administrator of the National Recovery Administration.  The transcribed letter survives in box 1 of the Leverett Samuel Lyon Papers at the American Heritage Center at the University of Wyoming.

Nebbia was a Rochester grocer convicted of violating New York State’s milk control law (passed in April 1933) and fined $5 when he gave away a loaf of bread to anyone who bought two quarts of milk at the state-mandated price.  An appeal, ultimately to the US Supreme Court, soon followed.  The Court upheld the conviction in a decision announced on March 5, 1934

In her entry on Nebbia in 100 Americans Making Constitutional History, edited by Melvin I. Urofsky, Victoria Saker Woeste observes that “although no direct evidence proves that Nebbia was allied with the distributors, and purposefully violated the statute to get the law overturned, his swift prosecution and other circumstantial evidence suggest that the milk dealers were in fact involved in the litigation.”  Certainly Nebbia has since become something of a folk hero for critics of the regulatory state.  Thus, Hadley Arkes called Nebbia “an early celebrated casualty” in “the Long March toward the New Deal and a planned economy.”

What seems to have prompted Nebbia to write Johnson was a widely reported address by Donald R. Richberg on March 7, 1934, in which the NRA general counsel argued that the Supreme Court's decision had all but established the constitutionality of the National Industrial Recovery Act under the Due Process Clause.  One would prefer to have the original, but here is my rendering of the transcription:
(Blue Eagle rubber stamped
in this corner)

                                                     L. Nebbia
                                                    348 Jay St.
                                                 Rochester, NY

                                                                                             March 9, 1934

Hugh S. Johnson[:]

I see NRA Counsel use my name, for basic[.]  Well[,] for myself I am very glad that everything went that way.

I will tell something about my stories.  I was selling milk at 6¢ QT[,] then NEW YORK St[ate] set the price at 9¢ Qt.  I sold the milk at 9¢ a quart.  I gave one loaf of bread [a]way with purchases of 2 Qrt. of milk.  I thought I was doing good, to the welfare of the people, also to compe[t]e with the chain stores, [where?] even today the price of milk is chisele[d?].  I do not like to cut prices, but if I don’t cut prices I can’t stay in business.

I like NRA.  I did help a lot.  I put to work two extra boys.  I [e]nlarged my store.  I am not a rich man.  What I have all can be seen with the eyes[–]no money in the bank[;] not any under the mattress.  I served twelve months in the World War, served seven months in France.  When I got married, I had no money.  Now I have a wife and four children and a little business, to [keep?] going on in this world.

I like to say[,] if not out of order[,] to help more[,] the NRA [ought] to have all stores, large and small[,] and all neighborhood stores to be closed at six o’clock in the evening.

I hope I did [not] do anything wrong by sending this letter.

Your truly, Leo Nebbia [signed]
That is, Nebbia still thought he should have been allowed to give away that loaf of bread, but he also believed that something really ought to be done about those chain stores and that NRA should prevent grocers from selling their wares at night.

Tuesday, February 9, 2016

Steilen on Judge-Made Law and the Rule of Law

Matthew J. Steilen, SUNY at Buffalo, Law School, has posted a quite interesting essay, On the Place of Judge-Made Law in a Government of Laws, which comprises
remarks given in March 2015 as a "Stead Seminar" at the University of Baltimore School of Law. The topic of the seminar was the place of judge-made law in a government of laws. The argument of the paper is that judge-made law is consistent with a government of laws insofar as it limits executive discretion. The argument is substantiated by a study of the origin of judge-made law in the early English common law.
H/t: Legal Theory Blog

CFP: Conceptual Change in History

[We have the following call for papers.]

Conceptual Change in History. Conference at the University of Helsinki, September 22-24, 2016.  Organised by the Oulu Centre for Theoretical and Philosophical Studies of History and the research project Reinventing the foundations of the European Legal Culture 1934-1964.

Keynote speakers: Theodore Arabatzis (University of Athens); Martti Koskenniemi (University of Helsinki); Sinai Rusinek (Van Leer Jerusalem Institute); Benjamin Straumann (New York University); Paul Thagard (University of Waterloo)

It is often suggested that historiography deals with change in time. If nothing ever changed, it would hardly make sense to do historical research. The nature of conceptual change has been an object of acute interest in recent years in the history and philosophy of science, cognitive science, Begriffsgeschichte, the history of ideas, legal history and other fields. Although a seemingly simple notion, the term ‘conceptual change’ hides a complex set of questions and problems.

Howlin on Juries, Politics, and Crim Con in Ireland

Niamh Howlin, Sutherland School of Law, University College Dublin, has posted two papers on Irish legal history.  The first is The Politics of Jury Trial in Nineteenth-Century Ireland, which appeared in Comparative Legal History (2015):
This article considers aspects of lay participation in the Irish justice system, focusing on some political dimensions of the trial jury in the nineteenth century. It then identifies some broad themes common to systems of lay participation generally, and particularly nineteenth-century European systems. These include perceptions of legitimacy, State involvement and interference with jury trials, and issues around representativeness. The traditional lack of scholarship in the area of comparative criminal justice history has meant that many of the commonalities between different jury systems have been hitherto unexplored. It is hoped that this paper will contribute to a wider discussion of the various commonalities and differences in the development of lay participation in justice systems.
The second is Adultery in the Courts: Damages for Criminal Conversation in Ireland, which is forthcoming in Law and the Family in Ireland 1800-1950, ed. K Costello and N Howlin:
This paper examines the civil action known as criminal conversation or 'Crim Con'. This allowed a husband to obtain damages from his adulterous wife's lover. No similar action existed for women whose husbands engaged in adulterous relationships.  The crim con action ceased to exist in England after 1857 but continued to be available -- and used -- in Ireland until the late 20th century. This paper examines the evolution of the action from the eighteenth to the twentieth centuries, its shifting rationale, its increasing popularity among the middle classes, and the nature and purpose of the damages awarded.

Monday, February 8, 2016

Hovenkamp on Appraising the Progressive State

Herbert J. Hovenkamp, University of Iowa College of Law, has posted Appraising the Progressive State:
The most salient characteristics of the progressive state are marginalism in economics and a penchant for use of scientific theory and data in policy making. Both have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better economically than alternatives, and by a wide margin. One of the progressive state’s biggest vulnerabilities is commonly said to be its susceptibility to special interest capture. The progressive state makes many decisions via either legislation or administrative agencies, and both are thought to be prone to special interest control at the expense of the public. Nevertheless, the superior economic performance of the progressive state calls that conclusion into question.

One severe weakness of the capture argument against the progressive state is that it uses the free market as a baseline for identifying what is in the public interest. Under such a standard, any theory of regulation that believes that market failure is more widespread and in need of correction will generate too many false positives suggesting capture. In fact, special interest capture often explains failures to regulate as much as special interest regulation itself, and today the former appears to dominate the latter in several important areas. Ironically one exacerbating factor in producing such capture is the structural features of the Constitution itself, which place much higher burdens on those seeking to regulate than on those seeking to resist it.

Job Posting: Associate Historian, Federal Judicial Center

[We're moving this post up because the deadline of February 12 is rapidly approaching.]

Vacancy Announcement: Associate Historian, 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.

Duties and Responsibilities: 
The Associate Historian works under the supervision of the Director of the Federal Judicial History Office and in collaboration with the office’s other Associate Historian to contribute to the Center’s efforts to fulfill one of its statutory missions to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.”  The Associate Historian is expected to contribute to the development and implementation of projects that are designed to preserve the history of the judicial branch, foster research on the history of the federal courts and federal judiciary, and promote greater interest in the history of the federal courts and federal judiciary among the general public.

Specifically, the Associate Historian (1) conducts research on the history of the federal judiciary and federal courts, (2) develops historical content for print publications and for the Center’s website, and (3) contributes to the planning and development of content for conferences, programs, and other events related to the history of the federal judiciary.  

Anglicization of Law and through Law

[We have the following announcement of the latest Symposium on Comparative Early Modern Legal History.]

Anglicization of Law and through Law: Early Modern British North America, India, and Ireland Compared

Date: Friday, April 8, 2016
Location: Newberry Library, Chicago
Organized by: Jane Ohlmeyer (Trinity College, Dublin), Richard Ross (University of Illinois at Urbana-Champaign), and Philip Stern (Duke University)

Scholars have long asked whether and how English settlements in North America, India, and Ireland converged towards metropolitan models, or anglicized, over the seventeenth and eighteenth centuries.  This question has commonly been asked about each region separately.  Our conference poses the question comparatively-and from the perspective of legal history.  We want to study the comparative anglicization of law and the anglicization of society through law in different portions of the English empire.  To this end, we are interested in the following sorts of questions: To what extent does the notion of "anglicization" make sense in the dissimilar contexts of early modern North America, Ireland, and India?  What value does the concept have as English law adapted to and conformed with extant legal systems from Belfast to Boston to Bombay?  How did local material, demographic, and ideological environments shape the meaning of anglicization?  How did imperial officials, settlers, merchants, and indigenous leaders, from their distinct perspectives, treat anglicization as a goal to be advanced, reworked, or resisted?  In what ways did each region serve as a laboratory for ideas and policies about anglicization that were later exported to other regions, and there reshaped?  The conference will bring together law professors, historians, and social scientists to think about a comparative legal and social history of anglicization across the dispersed early modern English empire.

Jane Ohlmeyer (Trinity College, Dublin), Richard Ross (University of Illinois at Urbana-Champaign), and Philip Stern (Duke University) organized "Anglicization of Law and through Law: Early Modern British North America, India, and Ireland Compared."  The conference is an offering of the Symposium on Comparative Early Modern Legal History, which gathers every other year at the Newberry Library in Chicago in order to explore a particular topic in the comparative legal history of the Atlantic world in the period c.1492-1815.  Funding has been provided by the University of Illinois College of Law. 

Attendance at the Symposium is free and open to the public.  Those who wish to attend should preregister by sending an email to Richard Ross at  Papers will be circulated electronically to all registrants several weeks before the conference.

For information about the conference, please consult our website or contact Prof. Richard Ross at or at 217-244-7890. 

[Schedule after the jump.]

Rakove Reviews Bilder's "Madison's Hand"

Jack N. Rakove, Stanford University, has posted A Biography of Madison's Notes of Debates, his review of Mary Sarah Blider’s Madison’s Hand, which is forthcoming in Constitutional Commentary:
In this truly provocative book, Mary Bilder writes what is in effect a biography of the composition, compilation, and revision of James Madison’s notes of debates from the Constitutional Convention of 1787. Working her way week by week through the course of the Convention, and doing her best to ascertain the character and source of Madison’s many later revisions, Bilder offers a number of striking hypotheses about the origins and evolution of the notes. Her two principal hypotheses pivot on the idea that the notes were originally conceived, not as a documentary legacy to History, but as a “legislative diary,” and that Madison’s principal intended reader was his absent friend and correspondent, Thomas Jefferson. Many of the key revisions in Madison’s notes were driven by their shared political agenda in the 1790s, as the two Virginians moved into active opposition to Hamiltonian policies.

This extended review offers a critical appraisal of Bilder’s main claims. Scholarship on the origins of the Constitution may never be the same once readers come to grips with her arguments. Yet at the same time, there is much to argue with in this fascinating book.

Call for Contributions: Feminist Judgments - Tax Volume

We have the following Call for Contributions:
Feminist Judgments: Rewritten Tax Opinions

Volume Editors
Bridget J. Crawford 
Anthony C. Infanti

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on those opinions for an edited collection entitled Feminist Judgments: Rewritten Tax Opinions. This edited volume, to be published by Cambridge University Press, is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, will be published in 2016 by Cambridge University Press. (That book’s Introduction and Table of Contents are available here.) Subsequent volumes in the series will focus on different courts or different subject matters. This call is for contributions to a volume of tax decisions rewritten from a feminist perspective. 

Tax volume editors Bridget Crawford and Anthony Infanti seek prospective authors for 8 to 10 rewritten tax-related opinions covering a range of topics. Authors are welcome to suggest cases of their own choosing or to consult the editors or others for ideas. All tax-related cases are appropriate for rewriting. Possible cases from U.S. courts are listed here, but that is not an exhaustive list.  Cases may come from any jurisdiction and any court, including non-U.S. jurisdictions. The volume editors conceive of feminism as a broad movement concerned with justice and equality, and welcome proposals to rewrite cases in a way that bring into focus issues such as gender, race, class, disability, sexual orientation, national origin, and immigration status.

As the core of the Feminist Judgments Project is judicial opinions, proposals must be either to (1) rewrite a case (not administrative guidance, regulations, etc.) or (2) comment on a rewritten case.  Rewritten opinions may be re-imagined majority opinions, dissents, or concurrences, as appropriate to the court. Feminist judgment writers will be bound by law and precedent in effect at the time of the original decision (with a 10,000 word maximum for the rewritten judgment). Commentators will explain the original court decision, how the feminist judgment differs from the original judgment, and what difference the feminist judgment might have made (4,000 word maximum for the commentary). Commentators and opinions writers who wish to work together are welcome to indicate that in the application.

In suggesting possible cases for rewriting, the volume editors have had the input and advice of an Advisory Panel of distinguished U.S. scholars including Alice Abreu (Temple), Patricia Cain (Santa Clara), Joseph Dodge (Florida State), Mary Louise Fellows (Minnesota), Wendy Gerzog (Baltimore), Steve Johnson (Florida State), Marjorie Kornhauser (Tulane), Ajay Mehrotra (American Bar Foundation, Northwestern), Beverly Moran (Vanderbilt), Richard Schmalbeck (Duke), Nancy Shurtz (Oregon), Nancy Staudt (Washington University), and Lawrence Zelenak (Duke).

The U.S. Feminist Judgments Project approaches revised judicial opinion writing as a form of critical socio-legal scholarship.  There are several world-wide projects engaged in similar efforts, including the U.K.-based Feminist Judgments: From Theory to Practice (2010); Australian Feminist Judgments: Righting and Rewriting Law (2014); the Women’s Court of Canada; ongoing projects in Ireland, New Zealand, and a pan-European project; and other U.S.-based projects currently under way. 

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten tax cases should fill out an application here. 

Applications are due by February 29, 2016 at 5:00 p.m. eastern. Editors expect to notify accepted authors and commentators by April 15, 2016. First drafts of rewritten opinions will be due on August 15, 2016. First drafts of commentary will be due on September 15, 2016. 
Cases that might be particularly well-suited to a historian's perspective include United States v. Rickert, 188 U.S. 432 (1903) (tribal trust lands and improvements are exempt from state and local taxes); Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972) (gender-based classification for eligibility for certain dependency deduction constitutes denial of equal protection); and Windsor v. United States, 570 U.S. (2013) (estate tax exemption for same-sex couples) 

Sunday, February 7, 2016

Sunday Book Roundup

The Law and Politics Book Review has put online a July book review of Finding Justice: A History of Women Lawyers in Maryland Since 1642 edited by Lynne A. Battaglia (Thompson Publishing).
"This engaging volume was produced as part of the Finding Justice Project, a collaborative effort among a small group of judges, lawyers, and legal academics to recover and illuminate neglected histories of women in law in Maryland. Sponsored by the Maryland Women’s Bar Association Foundation, the project sought to identify and learn about the work and lives of as many women lawyers as possible practicing in Maryland since 1642."
Stuart Banner reviews R.H. Hemlholz's Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press) for the Journal of Legal Education.

Concurring Opinions notes a review from the Journal of Legal Education: Duncan Farthing-Nichol reviews Justin O'Brien's The Triumph, Tragedy, and Lost Legacy of James M. Landis: A Life on Fire (Hart Publishing).

New Books adds an interview with Marc Simon Rodriguez, who discusses his new book, Rethinking the Chicano Movement (Routledge).

H-Net has a review of Tameka B. Hobbs's Democracy Abroad, Lynching at Home: Racial Violence in Florida (University Press of Florida).

The Washington Independent Review of Books offers a review of Baz Dreisinger's Incarceration Nations: A Journey to Justice in Prisons around the World (Other Press).

Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsberg Went to the Supreme Court and Changed the World by Linda Hirshman (Harper) is reviewed in the Los Angeles Review of Books.

The Atlantic has a review of Daniel K. Williams's Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade (Oxford University Press). 
"In a new book, Defenders of the Unborn, the historian Daniel K. Williams looks at the first years of the self-described pro-life movement in the United States, focusing on the long-overlooked era before Roe. It’s somewhat surprising that the academy hasn’t produced such a history before now, although Williams says that’s partially because certain archives have only recently opened." 
The Federal Lawyer has a new issue posted, with a review of Untrodden Ground: How Presidents Interpret the Constitution by Harold H. Bruff (University of Chicago Press), alongside many others--all available here.

Saturday, February 6, 2016

Weekend Roundup

  • The Call for Proposals for the annual meeting of the American Historical Association is available here. The theme is ""Historical Scale: Linking Levels of Experience."
  • On Friday, February 19, from 6:30 - 8:30 pm, the Arizona State University’s Center for Political Thought and Leadership will host the discussion New Challenges to Constitutional Law.  The Center explains: “The courts have become a battleground for presidential and regulatory overreach in issues ranging from Obamacare and immigration to foreign policy. At issue is the meaning of the U.S. Constitution. “ The “five distinguished legal scholars” who will address the topic are Clint Bolick, Supreme Court of Arizona, Eric Claeys, George Mason Law; Philip Hamburger, Columbia Law; Jonathan H. Adler, Case Western Reserve University Law; and Chris DeRose, Special Assistant Attorney General in Arizona.  John Lopez, Solicitor General in Arizona, will moderate.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, February 5, 2016

A New Journal on Roman Law and the Roman Law Tradition

[We have the following announcement.]

Interpretatio Prudentium - Roman Law and Roman Law Tradition in Review is a scientific Journal on Roman Law and Roman Law Tradition, edited by the Legal Theory and History – Research Center of the University of Lisbon (THD-ULisboa) in the course of the activities undertaken by the line of research "Roman Law Tradition in Action: the Lusophone experiences".

Interpretatio Prudentium has the purpose of disclosing results of scientific research that may contribute to a more accurate knowledge of the roman juridical experience but also of the different paths undertaken by the Roman Law Tradition, in particular of the roman roots of the different juridical cultures of Portuguese language. Simultaneously, the Journal intends to identify fractures and continuities within the Roman-Pandectist law tradition while promoting a critical vision of contemporary experiences.

In compliance with the utmost demanding criteria of scientific production and dissemination of results, Interpretatio Prudentium adopts the process of double-blind peer review and will be both published in paper and digital format, made freely available on its website. The Journal is also intended to be indexed within the leading science databases.

Interpretatio Prudentium
's Editing Committee invites the academic community to submit unpublished papers (monographs or reviews of recent publications) to be included in its first issue, to be released in Spring of 2016.  The Journal publishes in any Roman or Germanic language. The monographs, with a maximum of 50.000 characters (spaces not included), should be submitted to publication along with a summary and keywords, written in the original language of the article and in an adittional language. Reviews should be up to 10.000 characters.

Baslar on 50 Years of Turkey's Constitutional Court

Kemal Baslar, Ataturk University, has posted 50 Years of the Constitutional Court of Turkey, which appeared in the Justice and Law Review 3 (2012):
The Constitutional Court of Turkey is the fifth constitutional court adopting the European (Austrian) model of constitutional review. The Constitutional Court commemorated the 50th anniversary of its establishment on 25 April 2012. Its history is fraught with political and legal debates concerning the composition, competence, organisation and jurisprudence of the Court. This article is devoted to accounting for the these developments save its case-law. To be precise, the case law of the Court will not be assessed here; rather, a bird’s-eye-view-account of the past of the Court will be under scrutiny.

This article addresses foreign readers who would like to learn how the Turkish Constitutional Court evolved over the last five decades. To do this, the author has divided the history of the Court under three headings. The first period covers the years between 1962-1982; the second period falls between 1983-2010. The third period commenced after the approval of the 2010 constitutional amendments and ends with the developments until the end of May 2012. It is hoped that a cursory look at the past will provide the non-Turkish speaking reader a better understanding as to how constitutional justice has developed in Turkey.

Hickford on New Zealand's Political Constitutionalism

Mark Hickford, Pro Vice-Chancellor and Dean of Law at Victoria University of Wellington, has posted The Historical, Political Constitution -- Some Reflections on Political Constitutionalism in New Zealand's History and its Possible Normative Value, which appeared in the New Zealand Law Review 2013: 585-623:
This article contends that the concept of political constitutionalism in New Zealand is not merely of explanatory value. Rather if it is approached with a historically nuanced sense, then its normative value becomes clearer, with “normative” here meaning a focus on expanding and diversifying areas of contestability and dissent in and through politics as opposed to relying on case-by-case legalism. With reference to the complex histories of Crown-indigenous relations and the development of colonial New Zealand’s constitutional setting in 1852, this article argues that the real, historicised “lives” of the constitution yield normative understandings of our own political constitution in contemporary times. The risk is that, barring a sensitively historical approach, the particular values of political constitutionalism will lie neglected and forgotten. It is analytically inadequate to simply dub these aspects of constitutionalism as “pragmatic” given richer veins of intellectual and political thought were tapped into, deployed, and contested. And these supply a more granular, nuanced picture of historical, political constitutionalism in and as a process.

Hoofnagle on the Federal Trade Commission and the Development of Privacy Law

Just out from Cambridge University Press: Federal Trade Commission Privacy Law and Policy, by Christopher Jay Hoofnagle (University of California, Berkeley). A description from the Press:
The Federal Trade Commission, a US agency created in 1914 to police the problem of 'bigness', has evolved into the most important regulator of information privacy - and thus innovation policy - in the world. Its policies profoundly affect business practices and serve to regulate most of the consumer economy. In short, it now regulates our technological future. Despite its stature, however, the agency is often poorly understood by observers and even those who practice before it. This volume by Chris Jay Hoofnagle - an internationally recognized scholar with more than fifteen years of experience interacting with the FTC - is designed to redress this confusion by explaining how the FTC arrived at its current position of power. It will be essential reading for lawyers, legal academics, political scientists, historians and anyone else interested in understanding the FTC's privacy activities and how they fit in the context of the agency's broader consumer protection mission.
A few blurbs:
"Chris Hoofnagle has written the definitive book about the FTC's involvement in privacy and security. This is a deep, thorough, erudite, clear, and insightful work - one of the very best books on privacy and security." -- Daniel J. Solove

"A timely and insightful analysis of the FTC as a key actor in protecting information privacy. The historical context provides a solid basis for Hoofnagle's well-supported policy recommendations."  -- Priscilla M. Regan
More information is available here.

Update: The introduction appears here as an SSRN post.

Thursday, February 4, 2016

Christophers, "Capitalism and Competition in the Court of Law"

New from Harvard University Press: The Great Levelers: Capitalism and Competition in the Court of Law, by Brett Christophers (Uppsala University). A description from the Press:
For all the turmoil that roiled financial markets during the Great Recession and its aftermath, Wall Street forecasts once again turned bullish and corporate profitability soared to unprecedented heights. How does capitalism consistently generate profits despite its vulnerability to destabilizing events that can plunge the global economy into chaos? The Great Leveler elucidates the crucial but underappreciated role of the law in regulating capitalism’s rhythms of accumulation and growth.
Brett Christophers argues that capitalism requires a delicate balance between competition and monopoly. When monopolistic forces become dominant, antitrust law steps in to discourage the growth of giant corporations and restore competitiveness. When competitive forces become dominant, intellectual property law steps in to protect corporate assets and encourage investment. These two sets of laws—antitrust and intellectual property—have a pincer effect on corporate profitability, ensuring that markets become neither monopolistic, which would lead to rent-seeking and stagnation, nor overly competitive, which would drive down profits.
Christophers pursues these ideas through a close study of the historical development of American and British capitalist economies from the late nineteenth century to the present, tracing the relationship between monopoly and competition in each country and the evolution of legal mechanisms for keeping these forces in check. More than an illuminating study of the economic role of law, The Great Leveler is a bold and fresh dissection of the anatomy of modern capitalism.
A few blurbs:
The Great Leveler is a brilliant rethinking of a century and a half of U.S. and English economic history. It is a must read for all scholars of political economy. Focusing on the dialectic between monopoly and competition, Christophers uncovers four alternating periods that are characterized either by too much or too little competition. He sees the period from 1975 to the present as one of runaway monopolization, and questions whether national legal systems still have the power and authority to play a critical balancing role.—Fred Block
The book does a masterful job of weaving a rich skein of a complex whole (capitalism and its movement through time and space) into an accessible and convincing narrative.—Susan K. Sell
More information is available here.

Free Tom Mooney! A Yale Law Exhibit

[Via H-Law, we have word of a new exhibit at the Yale Law Library, Free Tom Mooney!]

Credit: Yale Law Library Blog
A hundred years ago, a bomb explosion was the pretext that San Francisco authorities needed to prosecute the militant left-wing labor organizer Tom Mooney on trumped-up murder charges. Mooney’s false conviction set off a 22-year campaign for his exoneration. The Yale Law Library, with a collection of over 150 items on the Mooney case, has mounted an exhibition marking the centennial of Mooney’s arrest.

“Free Tom Mooney! The Yale Law Library’s Tom Mooney Collection” is on display through May 27. The exhibition was curated by Lorne Bair and Hélène Golay of Lorne Bair Rare Books, and Mike Widener, Rare Book Librarian at the Yale Law Library.

The campaign to free Tom Mooney created an enormous number of print and visual materials, including legal briefs, books, pamphlets, movies, flyers, stamps, poetry, and music. It enlisted the support of such figures as James Cagney, Theodore Dreiser, Upton Sinclair, and George Bernard Shaw. It made Mooney, for a brief time, one of the world’s most famous Americans. The Law Library’s collection is a rich resource for studying the Mooney case, the American Left in the interwar years, and the emergence of modern media campaigns.

The exhibition is on display February 1 - May 27, 2016, in the Rare Book Exhibition Gallery, located on Level L2 of the Lillian Goldman Law Library, Yale Law School (127 Wall Street, New Haven, CT). Images of many of the exhibit items can be viewed in the Law Library’s Flickr site.

In Search of California’s Legal History: A Bibliography of Sources

Via Selma Moidel Smith, editor of Calfornia Legal History (the annual journal of the California Supreme Court Historical Society), we've received word of a tremendous research resource: "In Search of California’s Legal History: A Bibliography of Sources." The author of the bibliography is Scott Hamilton Dewey (Legal, Historical, and General Research Specialist, UCLA Law Library). Here's an excerpt from the Introduction.
In the summer of 1988, Christian G. Fritz and Gordon M. Bakken published an article, entitled, “California Legal History: A Bibliographic Essay” (hereinafter referred to as “Fritz & Bakken”).[1] This article discussed various key topics in the legal history of the State of California and pointed readers toward some of the essential resources then available regarding those topics. Fritz & Bakken’s article also marked an early recognition of California legal history as a rich research area worthy of further exploration.
Fritz & Bakken’s original essay was just over nineteen pages long. As Professor Fritz has observed recently, it was intended only as a brief introduction to its topic, and as an encouragement to additional research and researchers, at a time when American legal history generally remained relatively new as a field of study, and California legal history even newer.[2]
Like many other fields of history in the post-1970 era, California legal history has expanded hugely, even explosively, over its still-fledgling state as of 1988. The field of legal history also has tended at times to merge with other fields of history, such that now, in addition to more traditional, “pure” legal history of matters such as courts, cases, judges, lawyers, and legal doctrine, one also routinely finds “hybrid” studies, combining legal history with, for example, social history, gender history, demographic history, labor history, agricultural history, economic history, or environmental history — among many other possibilities. Thus California legal history has grown progressively richer and more complex over the past quarter century, in ways that might have been difficult even to dream of when Fritz & Bakken offered their original introduction.
This project updates and expands on the Fritz & Bakken essay, with the goal of "creat[ing] a resource that would encourage scholars to pursue new research and also enable teachers to prepare course curricula in the field."
The full bibliography is available here.

Wednesday, February 3, 2016

Morley on "Reverse Nullification"

Michael T. Morley, Barry University School of Law, has posted Reverse Nullification and Executive Discretion, which appears in the University of Pennsylvania Journal of Constitutional Law 17 (2015): 1283-34
The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is inconsistent with the text and original understanding of the Supremacy Clause and unnecessarily aggrandizes the practical extent of executive authority. The Supremacy Clause prohibits states from attempting to nullify or ignore federal laws that they believe are unconstitutional or unwise. It should not bar states from engaging in “reverse nullification” by enacting statutes that mirror federal law to ameliorate the effects of executive under- or non-enforcement. Far from undermining the “law of the land,” reverse nullification reinforces it by ensuring that the President cannot effectively amend or nullify federal law by declining to enforce it. The Court should craft an exception to its obstacle and field preemption doctrines to accommodate reverse nullification, and Congress should generally include an exception permitting reverse nullification in statutes’ express preemption provisions.

Bone on Judicial Education and Adjudication in the Sixties

Robert G. Bone, University of Texas School of Law, has posted Judging as Judgment: Tying Judicial Education to Adjudication Theory:    
This Article, written for a symposium on judicial education, explores the relationship between judicial education and theories of civil adjudication. Its thesis, simply stated, is that judicial education makes sense only against the backdrop of ideas and beliefs about adjudication. I explore this broad thesis from both a historical and a normative perspective. The historical discussion recounts the rapid rise of formal judicial education programs in the 1960s, and argues that judicial education caught fire when it did in large part because of prevailing ideas about law, courts, and adjudication, ideas that were shaped by the influential process school of jurisprudence and the new field of management science. These ideas and beliefs together pushed judicial administration to the forefront of the court reform agenda and focused attention on education as the way to mobilize broad-based support for reform. The Article then turns to the normative dimension and critically examines current judicial education programs. It argues that these programs largely overlook one of the most important functions that judicial education can perform today — facilitating critical reflection on the principles that underlie civil adjudication with the aim of working toward a shared normative view. In particular, in-person, face-to-face instruction is a good format for engaging judges in constructive discussion and debate about the best normative account that fits and justifies core features of American litigation practice and procedure. In the 1960s, jurists thought they understood how to make courts better and saw judicial education as a means to implement their shared views. Today, by contrast, jurists disagree about many of the most fundamental aspects of civil adjudication. Yet judicial education still has an important role to play, not as a means to implement a shared understanding, but rather as a means to facilitate such an understanding through critical reflection, discussion, and debate.

Desan on the Constitutional Approach to Money

Christine A. Desan, Harvard Law School, has posted The Constitutional Approach to Money: Monetary Design and the Production of the Modern World, which will appear in Money Talks, ed. Nina Bandelj, Frederick F. Wherry, and Viviana Zelizer:
In the modern lexicon, money is pure instrumentality, a colorless medium that transparently expresses real value. Contrary to that trope, however, we can get “inside” money: we can reconnoiter it as a structure entailing value that is engineered by certain societies. Taking a “constitutional approach” to money reveals its internal design, the architecture that creates a commensurable unit of value, enables it to travel, and enforces it as the preeminent way to pay. Seeing money’s internal design opens up new worlds. We can compare the medieval and early American methods of making money and consider how those methods shaped their markets. More remarkable still, we can locate the radical change in money’s design that institutionalized capitalism. That phenomenon arrived when the English government installed the self-interest of commercial actors as the pump at the heart of money creation. The revolutionary redesign produced unprecedented liquidity - the powerful markets and troubling pathologies of modern finance. It also produced an odd and self-protective artifact - the trope that money itself was empty, devoid of design and unworthy of our eye.

AJLH: Editors' Choice and TOC Alerts

[We have the following from Oxford University Press Journals.]

In March 2016, the American Journal of Legal History will publish its inaugural issue with Oxford University Press. As the publication of Volume 56 Issue 1 gets closer, the Editors, Stefan Vogenauer and Al Brophy, have pulled together this free access collection of classic papers from the AJLH archive, which is now available online.

Simply click on the article title to read. If you would like to receive automatic table of contents alerts from the AJLH, including our forthcoming March issue, please click here to sign up.

Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History, 17 AJLH (1973)

Michael Hoeflich, Law & Geometry: Legal Science from Leibniz to Langdell, 30 AM. J.L. HIST. 95 (1986)

Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AJLH 355-407 (2006)

Morton J. Horwitz, The Rise of Legal Formalism, 19 AJLH 251-264 (1975)

John H. Langbein, The Origins of Public Prosecution at Common Law, 17 AJLH 313-335 (1973)

Karen Newman Gross,  Marie Stefanin, Denise Campbell, Ladies in Red: Learning from America's First Female Bankrupts, 40 AJLH 1-40 (1996)

Michael Hoeflich, John Austin and Joseph Story: Two Nineteenth Century Perspectives on the Utility of the Civil Law for the Common Lawyer, 29 AM. J. LEGAL HIST. 36 (1985)

James W. Ely, Jr., That Due Satisfaction May Be Made: The Fifth Amendment and the Origins of the Compensation Principle, 36 AJLH 1-18 (1992)

Adriaan Lanni, Precedent and Legal Reasoning in Classical Athenian Courts: A Noble Lie?, 43 AM. J.L. HIST. 27 (1999)

James W. Fox, Jr., The Law of Many Faces: Antebellum Contract Law Background of Reconstruction-Era Freedom of Contract, 49 AM. J.L. HIST. 61 (2006)

Paul Kens, The Source of a Myth: Powers of the States and Laissez Faire Constitutionalism, 1900-1937, 35 AJLH 70-98 (1995)

Jayanth K. Krishnan, Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, 46 Am. J. Legal Hist. 447 (2004)

Tuesday, February 2, 2016

Max Planck Institute Seeks Applications for Postdoctoral and Research Scholarships

Postdoctoral and Research Scholarships 2017 
The Max Planck Institute for European Legal History (MPIeR) will be awarding several scholarships for a research stay at the institute in 2017.

Postdoc Scholarships enable highly qualified researchers from abroad who already obtained a PhD to either develop a new research topic in a thematically relevant context or to pursue an already existing project. Established researchers from abroad who have received their PhD more than 10 years ago can apply for a Research Scholarship, which enables them to come to the institute as a guest in order to pursue their own research project at the MPIeR.

For 2017 the research subjects are:

Department I – Professor Stefan Vogenauer

Legal transfer in common law world
History of European Union Law
Fundamental issues concerning legal reception

Department II – Professor Thomas Duve

Legal history of Latin America in early modern and modern periods
Methods of legal history in a global perspective
Law and Diversity: legal historical perspectives 
For more information, including how to apply follow the link.  Applications must be submitted by March 31st 2016.

Chopas to Speak on the Selective Internment of Italians in WW2

Mary Beth Basile Chopas, Adjunct Professor, UNC Law School, will present in Boston College’s Legal History Roundtable on February 25, 2016.  She will speak on her current project, “the first legal analysis of the selective internment process during World War II using Italian civilian internees as the case study.  It explores how the U.S. executive branch and administrative agencies responded to perceived threats during war, how ‘justice’ works during times of crisis, and how the federal government defined race and immigrant status and its impact on eligibility for citizenship during wartime.”

Borgwardt to Speak on "The Nuremberg Idea"

On Monday, February 8, 2016, from 4:00pm - 5:30pm, Elizabeth Borgwardt, Washington University in St Louis, will speak on The Nuremberg Idea: Crimes against Humanity in History, Law & Politics, in the 6th Floor Boardroom of the Woodrow Wilson International Center for Scholars in Washington, DC:
“The Nuremberg Idea” offers a historically-informed answer to one of the key social theory questions of our time: How did “human rights” become a concept that even the most heinous regimes feel they need to buy into? In tackling this question through the vector of the term “crimes against humanity,” this history offers a new transdisciplinary analysis of how human rights norms are formed, transmitted, and sustained, both domestically and at the supra-national level. Nuremberg-infused ideas about accountability and sovereignty have unfolded throughout the postwar era, culminating in the United Nations’ official adoption of the doctrine of “the Responsibility to Protect” in 2005.

Mayeux on "What Gideon Did"

Sara Mayeux, Sharswood Fellow, University of Pennsylvania Law School, has posted What Gideon Did, which is to appear in the Columbia Law Review 116 (2016):
Clarence Earl Gideon (DOJ)
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do — its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did — the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contextualizing that example with national comparisons.

The broad outlines of these post-Gideon changes are familiar to legal scholars. But situating these changes in a longer historical context and tracing them in detail from the perspective of lawyers on the ground in the 1960s yields two insights that help to explain the seemingly permanent post-Gideon crisis in indigent defense. First, the post-Gideon transformation was indeed limited in its practical effects, but its limits derived not only from politics but also from history — and from the legal profession itself. Lawyers themselves, long before Gideon, framed indigent defense as low-status, low-pay, less-than-fully-professional legal work. That framing survived even as private charities became post-Gideon public defenders. Second, the post-Gideon transformation was also limited — or, perhaps, destined to be perceived as limited — by tensions inherent in the attempt to provide large-scale legal assistance through government bureaucracies. Characteristics now identified as symptoms of crisis — such as politically determined funding, ever-expanding caseloads, and triage advocacy — first appeared as innovations that lawyers perceived Gideon to require. As public defenders proliferated, so too did complaints that they were underfunded and overworked, and that they encouraged guilty pleas over trials.

The origins of the indigent defense crisis lie not only in Gideon’s neglect but also, paradoxically, in Gideon’s transformative influence. This history lends some support to recent scholarly expressions of skepticism about Gideon, but it also provides some reasons for optimism: If the indigent defense crisis derives not only from intransigent political indifference but also from contingent choices made by lawyers, then lawyers may retain more power than they realize to mitigate the crisis.

Tait on Obergefell and the Return of Coverture

In commentary posted on the First Impressions blog of the Michigan Law Review and as an SSRN paper, Allison Anna Tait, University of Richmond School of Law, argues that Justice Kennedy’s opinion in Obergefell v. Hodges signals The Return of CovertureObergefell signals a new life for coverture values,” she writes. “As the French might say, coverture is dead; long live coverture.”

Colman on Samuel Warren's Gay Brother and the Right to Privacy

Charles E. Colman, an acting assistant professor at NYU Law who will be joining the University of Hawaiʻi’s  law faculty this summer, has posted About Ned, which is to appear in the Harvard Law Review 129 (2016): 128-52:
In this essay, I explore the possibility that the storied article "The Right to Privacy," 4 Harv. L. Rev. 193 (1890), might have come into existence in part because of lead author Sam Warren's powerful drive to protect his younger siblings -- and, in particular, his gay brother Ned. For reasons both obvious and less intuitive, Sam might have viewed the article as a promising vehicle for shielding Ned and the rest of the Warren family from potentially devastating journalistic and public scrutiny of Ned's sexuality.

Viewed in this light, the article acquires a special resonance in this, its one hundred twenty-fifth anniversary. Rhetoric central to the piece can be traced, link by link, case by case, to Supreme Court decisions that collectively established a multifaceted constitutional right to personal autonomy. The article can arguably be understood as a catalyst for the series of events culminating in the Supreme Court's 2015 recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage.

If "The Right to Privacy" is indeed about Ned, even in part, then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a fundamental right for gay people throughout the nation.

Monday, February 1, 2016

Perl-Rosenthal and Erman on Cruz as a "Natural Born Citizen”

As the first votes in the primary season are recorded tonight in Iowa (or, as I think of it, “back home in Iowa”), Nathan Perl-Rosenthal and Sam Erman, University of Southern California, weigh in on HNN on Ted Cruz: Is He or Isn’t He Eligible to be President?

Thank You, Anne Kornhauser!

We’re grateful to Anne Kornhauser for her series of thoughtful and thought-provoking posts, including those prompted by her book.  If you’d like to review them, they were:

Casting a Wide Net: The Varieties of Statist Liberalism

Law Talk: Finding the Rule of Law Among German Émigré Intellectuals in Wartime

Bringing Intellectual History Back In

"Militant Democracy" and the Crisis Politics of the State--Then and Now

John Rawls, German Émigrés, and the Administrative State: Finding the Connections

The Promises and Perils of Disciplinary Border Crossing

Signing Off


Blumenthal's "Law and the Modern Mind"

Just out from Harvard University Press is Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture, by Susanna L. Blumenthal, Professor of Law and Associate Professor of History at the University of Minnesota:
In postrevolutionary America, the autonomous individual was both the linchpin of a young nation and a threat to the founders’ vision of ordered liberty. Conceiving of self-government as a psychological as well as a political project, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry. Susanna Blumenthal probes the assumptions and consequences of this undertaking, revealing how ideas about consciousness, agency, and accountability have shaped American jurisprudence.

Focusing on everyday adjudication, Blumenthal shows that mental soundness was routinely disputed in civil as well as criminal cases. Litigants presented conflicting religious, philosophical, and medical understandings of the self, intensifying fears of a populace maddened by too much liberty. Judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Determining the threshold of competence was especially vexing in litigation among family members that raised profound questions about the interconnections between love and consent. This body of law coalesced into a jurisprudence of insanity, which also illuminates the position of those to whom the insane were compared, particularly children, married women, and slaves. Over time, the liberties of the eccentric expanded as jurists came to recognize the diversity of beliefs held by otherwise reasonable persons.

In calling attention to the problematic relationship between consciousness and liability, Law and the Modern Mind casts new light on the meanings of freedom in the formative era of American law.
Here are some endorsements:

    “This book is an unrivaled synthesis of the legal history of moral responsibility and mental capacity. No one has managed to connect so effectively the particulars of legal judgment of mental capacity—rendered by Blumenthal in a subtle and nuanced manner—with broader religious and cultural changes. She writes beautifully, and even more impressively, she discusses complex and sometimes abstruse doctrines with clarity and precision.”—Morton J. Horwitz, Harvard Law School

    “Susanna Blumenthal’s Law and the Modern Mind is an extensive and exquisitely detailed journey through a long overlooked corner of nineteenth-century jurisprudence in America. It is based on years of reading across an impressive array of ornate and largely arcane texts. The author’s capacity to render it into coherent analysis is even more impressive.”—Sarah Barringer Gordon, University of Pennsylvania Law School

    “Susanna Blumenthal is distinctive among legal historians of her generation. She brings to her work wide and thoughtful reading in various technical fields—the history of philosophy, the history of psychology, and American and English legal history—and has an immense gift for synthesis and summation. The book is an extraordinary achievement that helps to define the meaning of private law in the nineteenth-century judicial imagination.”—Hendrik Hartog, Princeton University

Signing Off

[By Anne Kornhauser]
I write this time  to say what I hope is a temporary "good-bye" as a blogger for the LHB and to thank once again Karen Tani and Dan Ernst for their generosity and patience as I test-piloted the blogging genre. I found it both fascinating and challenging to combine the short form and frequent deadlines of my erstwhile career as a journalist with the presentation of complex and nuanced ideas demanded by my current role as an academic. I also wrestled with tonal issues: how to match the more informal tenor of the blog post with the seriousness of the points I wished to make. I appreciate the indulgence of readers as I explored this new territory. 

The academic blog, I am convinced, is a great way for cloistered scholars to engage with the world, even if that world is still largely the one they already inhabit. Sheer numbers make it increasingly difficult to know of, let alone converse with, those in one's own field, never mind reaching across the disciplinary aisle. (My father once told me that in his day, in the 1950s, graduates students were expected to read everything in their field!) The internet facilitates all this and more by removing intellectual roadblocks and eroding hierarchies of status and significance. There are also dangers for intellectual life lurking in our digital age--of downplaying rigor, both substantive and formal, and of saying what need not be said, unburdened as bloggers are by limitations of space and the review process. But these issues are for another time.

For now, I wish to express my gratitude to those who created and those who have sustained this blog, to readers and tweeters and passers-by for allowing me to engage in a kind of reflexivity I would have never thought possible when I entered graduate school. I will end with a few questions about this evolving form of intellectual life. Do readers of this blog have any thoughts about why academic blogs appear to elicit fewer comments than many other kinds of blogs? Do we have more outlets for expressing our views? Should academic bloggers be more provocative? Are there certain types of posts that elicit more discussion than others? After all, the academic blog, at least those not written by an individual, has already developed some conventions of its own. One is that bloggers not wander too far outside their area of expertise, another is to be reasonable, and a third is that participants secure some sort of invitation or right of the blogger, as it were. I see advantages in all. But, I wonder, where did they come from? How did the academic blog evolve into its current form?