Legal History Blog

Steiker Reviews Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition

2012-02-01T07:00:00.000-05:00

Carol Steiker's (Harvard-law) review of David Garland's book, Peculiar Institution: America's Death Penalty in an Age of Abolition (Harvard, 2010) is available here. The abstract of the review, which appears in 125 Harv. L. Rev. (Jan. 2012), follows.

In the past decade, a burgeoning literature has sought to address the growing divide between the United States and other Western liberal democracies with regard to criminal punishment practices. Although all of these countries, the United States included, have experienced many of the same problems over the past forty years — such as steep crime rate increases, a sophisticated international drug trade, and growing threats from terrorism — the United States has seen nothing short of a revolution in its punishment practices since the 1960s, a stunning shift unprecedented in its own history and unique among its contemporaries. American imprisonment rates have soared, increasing fivefold between 1972 and 2007, reflecting and accompanying other punitive criminal justice policies such as “zero tolerance” policing initiatives, expansions of the scope of the substantive criminal law, “three strikes” statutes enhancing punishment for recidivists, in-creased use of criminal sanctions for juvenile offenders, widespread authorization of sentences of life without possibility of parole — and, of course, increased use of the death penalty.

A diverse group of scholars, including historians, sociologists, and legal scholars, has offered various explanations for these radical changes — some complementary, some contradictory. Professor David Garland was an early and influential participant in this scholarly discussion with his generative book The Culture of Control, in which he described the recent trends in crime policy and social attitudes toward crime in both the United States and Britain as the product of “two underlying social forces — the distinctive social organization of late modernity, and the free market, socially conservative politics that came to dominate the USA and the UK in the 1980s.” Now Garland has turned his attention to a crime policy issue that divides the United States from Britain and the rest of the Western industrialized world — the continued retention and use of capital punishment, which accelerated in the United States from the 1970s to the 1990s, the same period in which Europe embraced abolition.

You can hear Garland discuss his book during a lecture at NYU by clicking here.

Welcome, Felice Batlan!

2012-02-01T00:00:00.000-05:00

We are pleased to announce that Felice Batlan will be joining us for the month of February. Professor Batlan is Associate Professor of Law and Co-Director of the Institute for Law and the Humanities at IIT-Chicago-Kent College of Law.

Her path to legal history is a fascinating one: after earning her JD from Harvard Law School, Professor Batlan spent nine years in private practice, eventually becoming head of global compliance and associate general counsel at Greenwich Capital Markets. She then returned to school and earned a Ph.D. in history from New York University. With this unique background, Professor Batlan has served as an adviser to the Security & Exchange Commission historical society and assembled a truly unusual teaching package (corporate law, securities regulation, legal history, and feminist legal theory).

We know her best because of her important work on feminist legal history, women lawyers, sociological jurisprudence, and legal aid. Her most recent publications include "The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910," Law and History Review (2010) and "Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence," in Dan Hamilton and Alfred Brophy eds., Transformations in American Legal History, Vol. II (2010). We are looking forward to hearing more about her current projects. Welcome, Felice Batlan!

Thanks to Charles Zelden

2012-01-31T23:00:00.000-05:00

The Legal History Bloggers are grateful to Charles Zelden for starting 2012 off with a month of guest posts on the past and present of election law. He has put the shifting tally of the Iowa caucuses and Virginia's ballot access laws in historical perspective, explained how he does 21st-century history, informed us about vote denial and dilution in the South, and taken a look back at South Carolina v. Katzenbach. Thanks Charles!

CFP: U.S. Intellectual History

2012-01-31T19:26:00.000-05:00

The Society for U.S. Intellectual History has just announced the Call for Papers for the Fifth Annual Conference, Co-sponsored and hosted by the Center for the Humanities, The Graduate Center of the City University of New York. It will be held (again) in New York City, November 1-2, 2012. Proposals due: June 1, 2012. All the details are here.

Highly recommended. This is a great, smallish conference, and for it's size gets rather outsized NYT coverage.

Where to Buy Books

2012-01-31T17:08:00.002-05:00

I've added to the sidebar a new entry with links to independent bookstores and other non-Amazon book buying options. It appears right underneath the blogger book covers. I'm not promoting any place in particular -- just making it easier for you to quickly find books at a variety of places. If you'd like to suggest others, please do so in the comments.

Keith Law Collection Acquires Feikins Papers

2012-01-31T14:00:00.000-05:00

[The press release from Wayne State follows:]

The Damon J. Keith Law Collection of African American Legal History has announced the donation of the papers and records of the late Honorable John Feikens, former judge of the U.S. District Court for the Eastern District of Michigan. Judges Damon J. Keith and John Feikens served as the inaugural co-chairmen of the Michigan Civil Rights Commission from 1963 to 1966, demonstrating a shared commitment to civil rights and equal justice.

Before his death, Judge Feikens was adamant that his materials be given to the Keith Collection in view of his lifelong friendship with Keith. "Judge Feikens was a dear friend and a thoughtful and compassionate jurist who cared deeply about his community, the larger issues in society and the role judges could play in shaping society," said Keith. "We are honored to have his papers as part of the Keith Collection."

Judge Feikens was appointed to the bench in 1970 and served as the chief judge of the Eastern District of Michigan from 1979 to 1986, at which point he took senior status. He has been recognized for his integrity and willingness to stick up for the "little guy." His materials include documents and artifacts relating to his time on the bench and will become available to scholars and researchers in the near future, after they are processed by Wayne State University's Reuther Library, where they will be housed.

The Damon J. Keith Law Collection of African American Legal History at Wayne State University Law School was created to record the history of African American lawyers and judges. The mission of the Keith Collection is to collect, preserve and provide resources pertaining to African American legal history, including the history of prominent African American lawyers, judges and lawmakers whose service to the community reflects an interest in and commitment to civil rights and social justice. The Keith Collection works in partnership with the Walter P. Reuther Library, a world-renowned archival repository, the Damon J. Keith Center for Civil Rights and the Wayne State University Law School.

Fiscal Sociology at SSHS

2012-01-31T00:30:00.000-05:00

[We have the following announcement of the fourth annual Workshop on Comparative Historical Approaches to Fiscal Sociology, to be held in conjunction with the annual meeting of the Social Science History Association.]

In recent years, scholars from a variety of disciplines have embarked on an innovative wave of multidisciplinary research on the social and historical sources and consequences of taxation. We invite interested graduate students from history, law, and the social sciences to participate in a one-day workshop on this "new fiscal sociology." In addition to brief lectures introducing students to the basics of taxation and the comparative history of taxation, the workshop will consist of discussion of classic and contemporary texts.

The workshop will be held on Wednesday, October 31, 2012, in Vancouver, B.C., in conjunction with the annual meetings of the Social Science History Association (SSHA). Interested students will also have a chance to present their own work on Thursday, November 1, as part of the SSHA conference.

Space is limited. Small housing and travel stipends will be provided for a limited number of applicants under a grant from the National Science Foundation.

Applicants should submit a CV and a paragraph explaining their interest in this workshop, and (if applicable) a draft of a research paper that they would be willing to present at the SSHA. Preference will be given to students who also submit conference papers, but we encourage applications from all students interested in the workshop, including those at early stages of their graduate career.

Submit materials via e-mail to:

Monica Prasad, Department of Sociology, Northwestern University ( m-prasad@northwestern.edu ); and
Ajay Mehrotra, Maurer School of Law, Indiana University - Bloomington ( amehrotr@indiana.edu ); and
Isaac Martin, Department of Sociology, University of California - San Diego ( iwmartin@ucsd.edu ),

no later than February 20, 2012.

Symposium: Legal Heterodoxy in Islamic and Jewish History

2012-01-30T17:00:00.000-05:00

The UC Berkeley School of Law Program on Jewish Law and the Robbins Collection have announced a symposium on Legal Heterodoxy in Islamic and Jewish History: Late Antique and Medieval Transformations. The symposium, which is free and open to the public, will take place at Boalt Hall on April 23-24, 2012.

Here's a glimpse of the program:

April 23:

10:00 a.m.: Legal Systems of the "Other"
Islam Dayeh (Freie Universitat Berlin), Yaakov Elman (Yeshiva University), and Shari Lowin (Stonehill)

1:30 p.m.: Minority & Dissenting Opinions
Intisar Rabb (Boston College), Azzan Yadin-Israel (Rutgers), and Philip Ackerman-Lieberman (Vanderbilt)

4:00 p.m.: Orthodoxy & Heresy
Mohammed H. Benkheira (Sorbonne), Naftalis Cohn (Concordia), Danial Boyarin & Lena Salaymeh (UC Berkeley)

April 24:

9:30 a.m.: Legal & Theological Hermeneutics
Mohammad Fadel (University of Toronto), Steven Fraade (Yale), Michael Pregill (Elon)

To register, or for more information, contact Lena Salaymeh or Noah Greenfield.

Cushman Reviews Shesol's "Supreme Power"

2012-01-30T15:23:00.004-05:00

Barry Cushman, University of Virginia School of Law, has posted The Man on the Flying Trapeze, his review of Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (W.W. Norton & Co., 2010). The review will appear in University of Pennsylvania Journal of Constitutional Law 15 (2012). Here is the abstract.

Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression. The third is how to specify the relationship between these two stories. What effect, if any, did the events recounted in the political story have on the legal story? Each of the three Parts of this essay offers an evaluation of Mr. Jeff Shesol's efforts to address each of these questions in his book, Supreme Power: Franklin Roosevelt vs. The Supreme Court. Part I discusses Mr. Shesol's treatment of the political story; Part II takes up his account of the legal story; and Part III explores his analysis of the relationship between the two. I conclude that while Mr. Shesol does a very nice job with the first question, his efforts to answer the second and the third are not nearly so successful

The promise and perils of doing Twenty-First Century history

2012-01-30T10:00:00.002-05:00

Writing the history of contemporary events – events that you yourself not only witnessed, but witnessed with the expectation that you would write about them in a scholarly context – can be peculiar and yet oddly rewarding. To be sure, it has its risks.In 1614, while imprisoned in the Tower of London, the English courtier, sailor, soldier, and literary figure Sir Walter Raleigh amused himself with writing a history of the world. In his preface, he noted that some might object to his going back to the beginning and instead would have preferred that he write the history of his own time: “To this I answer, that whosoever, in writing a modern history, shall follow truth too near the heels, it may haply strikeout his teeth.”

I still have all my teeth, even though I have tried writing about twenty-first-century episodes in the history of voting rights and election law. This adventure’s beginnings took me by surprise – but the events that gave rise to them took us all by surprise. As a constitutional historian who knew something about voting rights and the workings of the judicial system, I spent much of November and December 2000 as an expert commentator for local TV news in South Florida. My role persisted for five weeks, as the events of what we came to call Bush v. Gore unreeled before us. Like many historians, political scientists,and legal scholars, I struggled to explain events and constitutional arguments to a general audience, seeking to make sense of a chaotic situation that was becoming the focus of heated passions on left and right. I kept answering media questions, based on my sense of how the judicial process was supposed to operate, that sometimes turned out to be wrong; at other times, I had to admit that I had no answers. I found myself writing down questions and issues that I knew demanded further study. Before long, I realized that someday I would write about the history left behind by these messy and impassioned events.

This is the first promise of doing twenty-first century history: that looking at contemporary events with a historian’s eye offers the chance to evaluate events critically, as they are happening, as a preliminary step to a considered investigation of these events. The second promise of doing twenty-first century history is the recovery, preservation, and distillation of what will constitute the raw material of the historical record. This second promise is much easier because time has not yet had a chance to erode that historical raw material. Although some archival materials (such as papers of judges or Justices) may be beyond the historian’s reach for now,public documents (such as court filings, newspaper accounts, and government reports)are easily found, accessed, and assembled. What makes possible this wide-ranging recovery of that historical raw material? The Internet. With regard to Bush v Gore, for example, I was able to read every court filing in every one of over forty cases comprising the storm of litigation surrounding the 2000 Florida presidential vote; I could read almost every newspaper account of the events of November and December 2000; and I could get copies of these sources and of nearly every report, government or private, studying the historical events and their ramifications. The book that I finally published in 2008 -- Bush v. Gore: Exposing the Hidden Crisis of American Democracy (University Press of Kansas) – was solidly based on archival research – but it was archival work that I could do in the comfort of my own home and office, within a rich and deep archive that I had assembled and organized myself. As a result, I could research, write, and publish my book much sooner and in more detail than would have been the case had I been investigating an older topic requiring extended visits to regional and national archives and research libraries.

To be sure, the account I’ve just given seems too optimistic. The greatest peril is your readers’ memory of the history you’re writing about, which may be a mix of what historian Bernard Lewis called “remembered” and “invented” history, as opposed to the “recovered” history that you’re hoping to present.

Put simply, historians doing twenty-first century history faces the daunting task of convincing people to read their work, and thereby to expose themselves to a new and perhaps counter-intuitive argument, when they already may have made their minds up on the subject so strongly that they will resist any contrary perspective.

In fact, I ran into that very problem almost from the moment that I began writing, and I found that the problem afflicts the audience most likely to be reading this blog entry: legal and constitutional historians. For us, as for most Americans,the electoral deadlock of 2000 was a historical event as traumatic and memorable as the assassination of John F. Kennedy in 1963 or the destruction of the space shuttle Challenger in 1986 Suddenly, the subjects on which so many of us work – the U. S. Constitution, the judicial process, the right to vote – mattered to an extraordinary range of people beyond our narrow professional circle; what already was important to us, had become important to everyone. Further, many of us tracked the events of 2000 closely and with care; we read briefs and watched or listened to the oral arguments; and we read and re-read the opinions generated by the cases in the various levels of courts that heard them. Many of us wrote on the subject, explaining and offering critiques of these events. And even those of us who did not write ourselves read the writings of colleagues.

U Michigan Legal History Workshop Schedule

2012-01-30T05:00:00.000-05:00

The schedule for the Winter 2012 University of Michigan Law School Legal History Workshop, led by Bill Novak and Martha Jones, is now available.

January 31. Michael Vorenberg, Brown University
"Birth, Belief, and Blood: Allegiance, Law, and the American Civil War"

February 7. Visit to the William L. Clements Library. (Closed Session.)

February 14. Chris Schmidt, Chicago-Kent Law School
"Divided by Law: The Sit-Ins, Legal Ambiguity, and the Role of the Courts in the Civil Rights Movement"

February 21: Nick Parillo, Yale Law School
"Against the Profit Motive: The Transformation of American Government, 1780-1940"

March 6: Sophia Lee, University of Pennsylvania Law School
"The Workplace Constitution: Race, Labor and Conservative Politics from the New Deal to the New Right"

March 13: Mark Tushnet, Harvard Law School
"Civil Liberties After 1937 -- The Justices and the Theories"

March 20: Adriaan Lanni, Harvard Law School
"Law and Order in Classical Athens"

March 27: John Hudson, St. Andrews/Michigan Law
"The Varieties of Legal History"

April 3: Veronica Santarosa, Michigan Law
"Financing Long-distance Trade without Banks: the Joint Liability Rule and Bills of Exchange in 18th-century France"

April 10: Sara McDougall, CUNY/John Jay College
"Husbands, Wives, and Adultery in Late-Medieval France"

Dedek on Scholastic Jurisprudence and Us

2012-01-30T01:00:00.000-05:00

Helge Dedek, McGill University Faculty of Law, has posted The Splendour of Form: Scholastic Jurisprudence and "Irrational Formality," which appeared in Law and Humanities 5 (2011): 349-383. Here is the abstract:

The Western legal tradition portrays itself as a tradition of rationality. Although this tradition has its roots in the academic treatment of law at the medieval university, the medieval juridical mannerisms seem to be anathema to the Weberian "formal rationality." Scholasticism has become the synecdoche for the problems we moderns have when trying to access medieval thought. Medieval Scholastic jurisprudence seems prima facie strangely formalistic, guided by ambitions that are incomprehensible to the "modern mind." Yet medieval jurisprudence is not as remote from us as it might seem at first glance. This paper aims to demonstrate that what connects the medieval and the modern jurist are aspects of legal discourse that cannot be explained in `rational' terms. To this end, the paper focuses on the "legal aesthetics" of the Scholastic jurists, exemplified by an inquiry into the doctrine of "interesse," one of the most controversial areas of the law of damages.

Give and Take: This Week in the Book Pages

2012-01-29T04:00:00.000-05:00

Perusing this week's book pages, Olivier Zunz's Philanthropy in America: A History (Princeton University Press) stood out to me as particularly interesting. Pablo Eisenberg's review, for the Nation, describes the book as "sweeping" and "insightful." The book "trace[s] the evolution of American philanthropy over the past 150 years," focusing specifically on philanthrophists' efforts to "influence and change national policies in the realms of science, education, health, economic development and anti-poverty programs." Read on here.

The Nation also offers a Q&A with Frank Bardacke, about his new book Trampling Out the Vintage: Cesar Chavez and the Two Souls of the United Farm Workers (Verso). The book "tells the dramatic story of the rise and fall of the UFW," with "emphasis on the rank-and-file leaders, who are too often obscured by the long shadow cast by Chavez."

For subscribers to the Chronicle of Higher Education, I recommend Nina Ayoub's review of Armed With Abundance: Consumerism and Soldiering in the Vietnam War (University of North Carolina Press), by Meredith H. Lair. This "fluid and engrossing new book" seeks "to enlarge public notions of American soldiering" by studying day-to-day life and material conditions.

A different war crops up in the book pages of the Wall Street Journal. John B. Hattendorf reviews 1812: The Navy's War (Basic Books), by George C. Daughan, and How Britain Won the War of 1812: The Royal Navy's Blockades of the United States, 1812-1815 (Boydell Press), by Brian Arthur (here).

This week in the New York Times, you'll find a review of Jews and Booze: Becoming American in the Age of Prohibition (New York University Press), by Marni Davis. Underneath the "beguiling title," writes reviewer Sam Roberts, is "a thoughtful, instructive and often insightful dissertation that is much drier than it needs to be." Here's a taste:

Prohibition presented a dilemma. “Should Jews insist on ‘special rights’ for the sake of their own historical continuity, or break with the past for the sake of assimilation?” That dilemma, Davis writes, meant that “in the years leading up to and during national Prohibition, Jews who made a living selling liquor, or who defended alcohol’s legal availability, unwittingly acted as flash points for American anxieties about immigration and capitalism.”

Read on here.

Also reviewed Elizabeth the Queen: The Life of a Modern Monarch (Random House), Sally Bedell Smith (here), and God's Jury: The Inquisition and the Making of the Modern World (Houghton Mifflin Harcourt), by Cullen Murphy (here).

A new issue of the New York Review of Books is out. Subscribers will want to check out Andrew Delbanco's review of American Oracle: The Civil War in the Civil Rights Era, by David W. Blight.

Non-subscribers may read Anatol Lieven's essay on "Afghanistan: The Best Way to Peace." It covers nine recent books on the topic.

Much more from the NYRB -- on Hitler, Occupy Wall Street, the Bible, and national security -- is here.

This week the New Republic: The Book spotlights Liberation Square: Inside the Egyptian Revolution and the Rebirth of a Nation (St. Martin's Press), by Ashraf Khalil (here). World War Two buffs may also be interested in the magazine's review of Monty and Rommel: Parallel Lives (Overlook Press), by Peter Caddick-Adams (here).

They say that history is stranger than fiction. Keith Heyer Meldahl says that geology, is too. Check out a review of his new book, on the formation of the American West (Rough-Hewn Land), in this week's Los Angeles Times, here.

Voting for OAH Election Closes Feb.1

2012-01-28T13:27:00.000-05:00

If you are a member of the Organization of American Historians and you want to vote, the slate of candidates is here.

To cast a vote, find the email the OAH sent you, with a link, or go here and enter your member ID number.

Weekend Round-Up

2012-01-28T00:30:00.000-05:00

Wanita Scrogg's review for the AALL Spectrum of Micheal Ariens's Lone Star Law is here.

Timothy Sandefur laments the state of California's constitutional history on the Pacific Legal Foundation's PLF Liberty Blog.

Philip Hamburger has posted the essay Judicial Office and the Liberty Protected by Law on the Library of Law and Liberty blog. Stephen Presser and James Stoner respond.

On January 30, from 4:00 to 5:30 p.m, the Washington History Seminar of the Woodrow Wilson International Center for Scholars' History and Public Policy Program (in collaboration with the National History Center) will be devoted to "Roosevelt and Churchill" with Warren Kimball. Kimball is the Robert Treat Professor Emeritus at Rutgers University and the editor of Churchill and Roosevelt: The Complete Correspondence. The seminar will take place in the Wilson Center's 6th Floor Moynihan Boardroom in Washington, D.C.. Reservations are requested at HAPP@wilsoncenter.org or 202-691-4166.

The Weekend Round-Up is a weekly feature compiled by all the Legal History bloggers.

Upcoming Deadlines and Opportunities for Graduate Students

2012-01-27T11:25:00.000-05:00

In addition to the Summer Institute on Archival Research posted below, here are a few other opportunities and upcoming deadlines for graduate students.

Miller Center National Fellowship. Applications for the Miller Center National Fellowship aredue February 1. The Miller Center awardsfellowships to those completing dissertations in American politics, foreignpolicy, and world affairs, or on the impact of global affairs on the U.S.

"Crossing Boundaries, Workshopping Sexualities." The Sexualities Section of the American SociologicalAssociation has an excellent opportunity for sociologists of sexuality studies,and particularly for graduate students. The first national mini-conference on sexuality studies in sociologywill be held at the ASA’s annual meeting in Denver from August 17-20. Those doing historical sociology orsocio-legal studies might want to check out the “Crossing Boundaries,Workshopping Sexualities” website. Submissionsare invited for dissertation master classes, works-in-progress sessions, and “criticalissues” workshops. Proposals are dueFebruary 15.

LSI Graduate Student Paper Competition. Submissions for the 2012 Lawand Social Inquiry Graduate Student Paper Competition are due March 1,2012.

Seminar on Archival Research for Grad Students in Cold War and Post-1945 International History

2012-01-26T20:49:00.000-05:00

Summer Institute on Conducting Archival Research

The Summer Institute on Conducting Archival Research (SICAR) is a five-day seminar in which Ph.D. students receive training in conducting archival research. Although archival research is an integral part of many academic disciplines, it is virtually never taught at the graduate level. In an effort to address this deficiency, the George Washington University began the Summer Institute in 2003. SICAR welcomes students working on dissertation topics related to the Cold War and post-1945 international history. In 2012, the Summer Institute will continue to welcome participants from various disciplines including history, government and politics, international relations, sociology, anthropology, and public policy, as well as area and regional studies. Preference will be given to students who have defended their dissertation proposal and who are about to embark on archival research. The 2012 workshop will be held from May 21-25 (students will need to arrive by May 20). The deadline for applications is February 6 , 2012.

More details are here.

Frydman on the History of Legal Interpretation and Legal Reasoning

2012-01-26T13:00:00.001-05:00

The Meaning of Laws: A History of Legal Interpretation and Legal Reasoning has been posted by Benoit Frydman, Perelman Centre for Legal Philosophy, Free University of Brussels. It is an excerpt from his book, LE SENS DES LOIS: HISTOIRE DE L'INTERPRETATION ET DE LA RAISON JURIDIQUE, p. 708, Paris-Bruxelles, 2005.The SSRN posting and the book are in French. Here's the short abstract:

This book provides a history of legal thinking and reasoning. It focuses on the tools, methods and procedures to interpret legal texts. The book analyses 10 consecutive models: rhetorical; biblical-Talmudic; patristic; scholastic; geometrical; philological-historical; sociological; economical; normative-positivist and pragmatic.

PostDoc at Penn: Constitution Making

2012-01-26T12:01:00.000-05:00

University of Pennsylvania

DEMOCRACY, CITIZENSHIP AND CONSTITUTIONALISM POSTDOCTORAL FELLOWSHIP in the Social Sciences and the Humanities 2012-2013

The Penn Program on Democracy, Citizenship, and Constitutionalism (DCC) invites applications for one (1) one-year postdoctoral fellowship in the social sciences or the humanities. Applicants’ research should be relevant to the DCC Program’s 2012-2013 theme, “Constitution Making.” The DCC Fellow will teach one undergraduate seminar. Eligibility is limited to applicants who will have received their Ph.D. within five years prior to the time they begin their fellowship at Penn (May 2007 or later). $53,800 stipend and health insurance. Application deadline: March 16, 2012. For guidelines and application, see the School of Arts and Sciences website or write DCC Postdoctoral Fellowship, Office the Dean, School of Arts and Sciences, University of Pennsylvania, 1 College Hall, Room 116, Philadelphia, PA 19104-6377. The University of Pennsylvania is an equal opportunity/affirmative action employer.

H-Net Review Round-up: Lincoln, Human Rights, Abortion, and more

2012-01-26T01:00:00.000-05:00

Via H-Law, we've received word of a number of interesting H-Net reviews:

For H-CivWar, Lewie Reece (Anderson University) reviews Roger D. Billings & Frank J. Williams, eds., Abraham Lincoln, Esq.: The Legal Career of America's Greatest President (University Press of Kentucky), and Harold Holzer, Craig L. Symonds, & Frank J. Williams, eds., The Lincoln Assassination: Crime and Punishment, Myth and Memory A Lincoln Forum Book (Fordham University Press) (here).

For H-Histsex, Lori Beaman (University of Ottowa) reviews Cardell K. Jacobson & Lara Burton, eds., Modern Polygamy in the United States: Historical, Cultural, and Legal Issues (Oxford University Press) (here).

For H-Human-Rights, Eric Wiebelhaus-Brahm (Florida State University) reviews Lilian A. Barria & Steven D. Roper, eds.,The Development of Institutions of Human Rights: A Comparative Study (Palgrave Macmillan) (here).

For H-SHGAPE, Molly Varley reviews Jamie Q. Tallman, The Notorious Dr. Flippin: Abortion and Consequence in the Early Twentieth Century (Texas Tech University Press) (here).

For H-Africa, Filip Reyntjens (University of Antwerp) reviews Zachariah Cherian Mampilly, Rebel Rulers: Insurgent Governance and Civilian Life during War (Cornell University Press) (here).

AHA Annual Meeting Coverage (brought to you by the AHA)

2012-01-25T10:30:00.000-05:00

AHA Today has posted coverage of several sessions from the AHA's recent annual meeting that may be of interest to our readers. Graduate students might find the session on Turning Your Dissertation Into a Book useful. "Compression and concision—prune, prune, and prune some more—were the panel’s watchwords." But that advice "floated in tension with its seeming opposite: that in the transformation from dissertation to book, our subjects must be more widely contextualized." Those interested in political and social history will find commentary during the session, Historians and the Obama Narrative, of interest. A consensus emerged that President Obama is a "pragmatist," "someone able to see the world from a variety of perspectives, finding no single truth, but remaining always open to re-framing and reassessment." Historian James McPherson--called "America's historian"--was feted at the annual meeting. Read about the session, "A Life in American History," here. The session on U.S. State Archives and Government Information Secrecy turned on the question of "finding the right balance between safeguarding and sharing sensitive government documents is the key to a functional but reasonably transparent system." That balance is elusive. Finally, consider coverage of two sessions about technology and its impact on the profession, Whither the Future of the History Textbook, and Geeks Bearing Gifts: New Tools for the Humanities.

Minnesota's Legal History Workshop

2012-01-25T09:15:00.002-05:00

Here is the schedule for this semester's meeting of the Legal History Workshop/Seminar Series at the University of Minnesota. The workshop meets from 3:35 to 5:30pm in Room 55 of the Law School (Mondale Hall).

February 1: Ari Bryen, ACLS Faculty Fellow in Rhetoric and Classics, University of California, Berkeley
"Martyrdom, Rhetoric, and the Politics of Procedure"

February 10 (Friday): Adam Kosto, Professor of History, Columbia University 12:15-2:10 p.m. "Medieval Hostages, Contract Theory, and the History of International Law"

February 24 (Friday): Samuel Moyn, Professor of History, Columbia University 12:15-2:10 p.m. From Antiwar Politics to Antitorture Politics"

February 29: Oren Gross, Irving Younger Professor of Law, University of Minnesota
"Words as Power: The Rhetoric of War in Historical Perspective"

March 7: Erickson Lecture, Room 50, 3:30 p.m.
Lauren Benton, Professor of History and Affiliate Professor of Law, New York University
"The Trial of Arthur Hodge: Petty Despots and the Making of an Imperial Legal World"

March 21: Rebecca Rix, Assistant Professor of History, Princeton University
"'We, the People'? Redefining Representation and 'the Public' in the Progressive Era"

March 28: Sophia Lee, Assistant Professor of Law, University of Pennsylvania Law School
"The Workplace Constitution: Race, Labor, and Conservative Politics from the New Deal to the New Right"

April 4: Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Professor of History, Princeton University
"Someday All This Will Be Yours: A History of Inheritance and Old Age"

April 11: Paul Halliday, Professor of History and Law, University of Virginia
"The Courtroom, the Clerk's Archive, and the Judge's Voice: Technologies of Judicial Authority in Eighteenth-Century England"

The schedule with abstracts is here.

Rosenberg on Classical Contract Law

2012-01-24T16:17:00.002-05:00

Anat Rosenberg, Interdisciplinary Center, Herzliyah-Radzyner School of Law, has posted Classical Contract Law, Past and Present. Here is the abstract:

This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It shows how despite significant controversies among historians, a widely shared consensus has it that nineteenth-century contract law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism - but they functioned as external critiques and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with the individualism of its age.

The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning of contract at the decisive era for modern contract law's development. This idea's persistence bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness.

Colley on the Unwritten Constitution

2012-01-24T00:30:00.000-05:00

On January 12, Professor Linda Colley, of Princeton's History Department, testified before the Political and Constitutional Reform Committee of the House of Commons at a hearing entitled "Mapping the Path to Codifying--or Not Codifying--the UK's Constitution." Professor Colley commenced:

It is famously said that we have an unwritten constitution. It might be interesting to think that that phrase "unwritten constitution" is, in historical time, relatively new. You can now search parliamentary debates on computer. Hardly anybody talks in Westminster about an unwritten constitution before 1850. It is rare in Westminster and the media really up to the 1870s. It is only then that the idea of an unwritten constitution really becomes ensconced in political analysis here. Why is that so? Partly because people had a much stronger sense than they do now of the extraordinary texts that support the constitution: Magna Carta, the Petition of Rights, Habeas Corpus, the Bill of Rights, the Acts of Union with Scotland and Ireland. Even the 1832 Reform Act when it was passed was referred to as a "new constitution".

One thing that has happened, particularly since the second world war, is that we have lost a lot of that broad knowledge of important constitutional texts. This is something of a challenge....

The complete and uncorrected transcript of the hearing, at which Dr. John Allison, Senior Lecturer in Law, Cambridge University, also spoke, is here.

"There but For the Grace of God Go I"

2012-01-23T18:49:00.000-05:00

On January 21,while the eyes of the political world were focused on the South Carolinaprimary, the Iowa Republican Party officially announced that Rick Santorum – notMitt Romney -- had won the Iowa caucuses. Of course, for days we’d known that the vote total in Iowa was problematic,but the official results from election night (January 3), when Romney wasdeclared the winner by 8 votes, remained in force until Saturday, January 21. . The announcement of Romney’s victory wasbased, however, on the uncertified results from January 3. This was where the problems began. Asboth the2000 Presidential race in Florida and the 2008 Senate race between AlFranken and Norm Coleman in Minnesota should have taught us, the counting ofvotes does not end on election night. Itcan take weeks for all the votes to be officially counted and certified. During this period, vote totals change as electionsofficials discover uncounted ballots and add them to the vote totals. In Iowa, it turned out that eight precinctsnever had their votes counted. Votetotals were consequently revised; the resulting changes gave Santorum a 34-votevictory.

Most of thepress commentary on Iowa’s vote counting gaffe has focused on the workings ofthe caucus system, the professionalism of the Iowa GOP, and questions whetherIowa’s standing as the first-in-the-nation state on the presidential calendaris threatened. Some commentators have questionedthe relevance of the Iowa caucuses, which don’t actually choose any delegates;they contend that the caucuses are largely a media invention with littlepractical impact except to drive out fringe presidential candidates.

While all ofthese are valid points, they all miss the big picture.

"Immigration Battle," "Sex Panic": Two New Reviews from the LPBR

2012-01-23T12:00:00.000-05:00

The latest batch of reviews from the Law and Politics Book Review includes a few noteworthy items:

Karen A. Woodrow-Lafield (University of Maryland College Park) reviews The Immigration Battle in America's Courts (Cambridge University Press), by political scientist Anna O. Law (DePaul University). Here's a taste:

The core empirical inquiry is whether the Supreme Court of the United States and the U.S. Court of Appeals are contrasting in opposing and welcoming aliens’ claims for status. The central arguments are that each court’s unique institutional context serves to shape judges’ perception of roles, that each court’s role has been dynamic, and that evolving institutional settings have multiple consequences. Overall, the federal judiciary serves the roles and missions as conceived by the founders.

Chapter 3, on the federal judiciary's historical role in this area, may be of the most interest to readers of his blog. It identifies "[t]hree factors . . . at play in the evolution of the Supreme Court and Courts of Appeals –key pieces of legislation, 'judicialization' of immigration policy, and agency choices of enforcement strategies in U.S. immigration policy."

Read on here.

Also reviewed: Sex Panic and the Punitive State (University of California Press), by anthropologist Roger N. Lancaster (George Mason University). According to reviewer Joseph Fischel (Brown University), Lancaster "insists that episodic 'sex panics' are not simply sensationalist, epiphenomenal media accounts produced for profit, but rather reflect and reiterate what he calls forms of 'punitive governance.'" The rise of "punitive governance" is evident in "the extension of the state’s supervisory and carceral powers, the expansion and subsequent legitimation of security measures, and the enactment of harsher regulatory and punitive laws."

LHB readers may be particularly interested in some of the historical examples that Lancaster invokes:

1930s public alarm around the sexual stranger; postwar, McCarthy era crackdowns on homosexuals and other nonconforming sexual subjects; teen prostitution and child pornography purges in the late 1970s; public hysteria around AIDS and (manufactured) satanic ritual abuse rings of the 1980s; and finally, a seemingly unending parade of sex offender statutes in the 1990s and 2000s, catalyzed most explicitly (though not at all entirely) by singularly heinous but statistically unrepresentative events of sexual violence . . . .

Read on here.

Ando, "Law, Language, and Empire in the Roman Tradition"

2012-01-23T05:00:00.000-05:00

Clifford Ando (image credit)

Clifford Ando, Professor of Classics, History, and Law at the University of Chicago, discusses his new book Law, Language, and Empire in the Roman Tradition (University of Pennsylvania Press) in a recent issue of Rorotoko.

On the book "in a nutshell":

For complicated reasons, Roman law as an academic discipline long remained fixated on describing its rules. How did one write a will at Rome? What was the age of marriage? Books had titles like “The Roman law of slavery.”

My book attempts to side-step questions about what Romans lawyers thought—in order to ask about how they thought. Why did they think law changed? How did they think change in the law could or should be justified? And how did they think legal institutions could or should adapt to social change?

For the fact of the matter was, Roman society was in constant flux. . . .

On how he came to the project:

Despite popular visions of Rome as a society of empire and of laws, this was not how professional historians saw the matter. For a generation at least, the dominant picture had instead been of ancient government as minimalist in its achievements and even its intents.

I therefore embarked on a large-scale history of the role of government in social and cultural change. To do that, I had to take Roman law more seriously than I had in the past.

Ando concludes with some thoughts about the book's broader significance. He hopes it will "draw attention to the astonishing creativity of Roman lawyers," as well as to "an understudied problem in the history of the Roman law, namely, the historical priority of private law at Rome, in contrast to all other forms of legal thought."

Read on here.

Experts, Moochers, Pundits, Harlots: This Week in the Book Pages

2012-01-22T05:00:00.000-05:00

This week in the book pages, Roads to Power: Britain Invents the Infrastructure State (Harvard University Press), by historian Jo Guldi, caught my eye. Here's a snippet of the Wall Street Journal review:

To summarize [Guldi's] argument, roads were wretched before central government got involved. Only when the expertise of state-funded professionals was put to work did the country become properly traversable. Then a combination of libertarian ideologues and not-in-my-backyarders (along with the odd misguided radical) blocked progress. The parish and turnpike roads that followed were a disappointment, indeed a disaster, for poorer and more outlying regions. Many local corporations found that the income from their tolls was insufficient to maintain their roads. Eventually the central state was forced to step in, take over the unprofitable routes and put the experts back in charge. Ms. Guldi then goes on to extend that argument to our own age: President Obama's Recovery Act, free Wi-Fi in public libraries, Chinese bullet trains, etc.

Continue reading here.

Also in the WSJ:

Coverage of Heaven Cracks, Earth Shakes: The Tangshan Earthquake and the Death of Mao's China (Basic Books), by British writer James Palmer. It chronicles the events of 1976, in which "a cataclysmic upheaval—physical, political, economic—. . . sent China rocketing toward its present wealth and superpower status." Read on here.

A review of three new books on leadership, under the byline "History's most fearsome commanders have lessons for business today, even without the pillaging." (The commanders are Julius Caesar, Atatürk, and Hannibal.)

A review of A Nation of Moochers: America's Addiction to Getting Something for Nothing (St. Martin's Press), by Charles J. Sykes. It is "a talk-radio segment in book form" in which the author gathers Goldman Sachs, public employees, school lunch beneficiaries, and infants born on Medicaid under the rubric of "irresponsible grasping."

In the book pages of the New York Times, readers will want to check out historian Mary Beth Norton's review of The Lives of Margaret Fuller: A Biography (W.W. Norton & Co.), by John Matteson. Here's the first paragraph:

Margaret Fuller, a woman of great talent and promise, had the misfortune to be born in Massachusetts in 1810, at a time and place in which the characteristics of what historians have termed “true womanhood” were becoming ever more rigidly defined. Well brought-up women like herself were to be cultured, pious, submissive and genteel. Fuller, by contrast, was assertive and freethinking. She was also — and to some extent, still is — a difficult person to like.

Read on here. Another review of the book, from the WSJ, is here.

Also noteworthy:

John McWhorter's review of Speaking American: A History of English in the United States (Oxford University Press), by Richard W. Bailey. The book "argues that geography is largely behind our fluid evaluations of what constitutes 'proper' English."

Charles Isherwood's review of Ben Jonson: A Life (Oxford University Press), by Ian Donaldson. It is a "happily readable new biography" of "Britain's first literary celebrity."

Tony Perrottet's column on what historians may learn from guides to local harlots.

Weekend Round-Up

2012-01-21T02:00:00.000-05:00

It is probably a breach of scholarly decorum to point out when colleagues have been remaindered. With apologies, then, we note that until the end of the month you can get copies of Owen Fiss's and William Wiecek's contributions to the Holmes Devise History of the U.S. Supreme Court for only $20 a piece during the Cambridge University Press's New Year American History Sale.

image credit
The Liberty Fund has started the Library of Law and Liberty, a blog that will include, among other things, reviews of works of constitutional and legal history.

Lucky law students at the University of Hawai'i: during the January term they can take legal history (or legal history inflected) courses from Christine Desan and Lawrence M. Friedman.

The Frances S. Summersell Center for the Study of the South at the University of Alabama invites researchers to apply for fellowships to use the University's collections. Resources in legal history include the files of Huntsville lawyer S.D. Cabiness and the antebellum law firm Belser and Harris. (Hat tip: H-Law.)

Congratulations, Margot Canaday! The Straight State has won the Order of the Coif Biennial Book Award.

The Weekend Round-Up is a weekly feature compiled by all the Legal History bloggers.

Upcoming CFP Deadlines

2012-01-20T14:00:00.000-05:00

Some of the big conferences and a few smaller ones haveissued CFPs. If you are looking for opportunities to present your work, hereare some deadlines that you might not want to miss:

January 20: Lawand Legal Cultures in Germany (Milwaukee, Wisconsin, October 4-7,2012)

January 26: American Studies Association (San Juan, PuertoRico, November 15-18, 2012), “Dimensions of Empire andResistance: Past, Present, and Future.”

January 31: Harvard’sAnnual Interdisciplinary Humanities Graduate Student Conference: How To End ARevolution? (Cambridge, Massachusetts, April 13-14, 2012)

February 15: American Historical Association (New Orleans,Louisiana, January 3-6, 2013) “Lives, Places, Stories”

February 15: Organizationof American Historians (San Francisco, California, April 11-14, 2013)

February 29: American Society forLegal History (St. Louis, Missouri, November 8-11, 2012)

Book Prizes in Anglo-American and American Legal History

2012-01-20T10:50:00.002-05:00

Here is a joint announcement of the John Phillip Reid Book Award of the American Society for Legal History and the Cromwell Book Prize of the William Nelson Cromwell Foundation. The Reid Award and the Cromwell Book Prize are mutually exclusive. The Reid Book Award is for a book by a mid-career or senior scholar, and the Cromwell Book Prize is for a “first book” by a junior scholar. For advice where the distinction is doubtful, please consult Philip Girard, chair of the ASLH Committee on the John Phillip Reid Book Award, and Daniel Ernst, chair of the Cromwell Book Prize Advisory Subcommittee.

John Phillip Reid Book Award

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The award is given on the recommendation of the Society's John Phillip Reid Prize Committee.

For the 2012 prize, the Reid Award Committee will accept nominations from authors, presses, or anyone else, of any book that bears a copyright date in 2011. Nominations for the Reid Award should be submitted by May 25, 2012, by sending a curriculum vitae of the author and one copy of the book to each member of the committee. (Committee members and addresses appear after the jump.)

Cromwell Book Prize

William Nelson Cromwell

The William Nelson Cromwell Foundation awards annually a $5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar. The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. The work may be in any area of American legal history, including constitutional and comparative studies, but scholarship in the colonial and early national periods will receive some preference. The prize is limited to “first books,” i.e., works by a junior scholar that constitute his or her first major undertaking.

The William Nelson Cromwell Foundation awards the prize on the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History. The Committee will consider books published in 2011. The Society will announce the award after the annual meeting of the Cromwell Foundation, which normally takes place early in November.

To nominate a book, please send copies of it and the curriculum vitae of its author to John D, Gordan, III, Chair of the Cromwell Prize Advisory Committee, and to each member of the Cromwell Book Prize Advisory Subcommittee with a postmark no later than May 31, 2012. (Subcommittee members and addresses appear after the jump.)
Read more »

Tillman on Teachout, Amar and the Foreign Emoluments Clause

2012-01-20T00:30:00.000-05:00

Seth Barrett Tillman, National University of Ireland, Maynooth Faculty of Law, has posted Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar – Contradictions and Reconciliation. Here is the abstract:

The Foreign Emoluments Clause is a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here.
Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar.

Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing).

If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position.

On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.

Smith on The Legal History of Posttraumatic Stress Disorder

2012-01-19T12:00:00.002-05:00

Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder is a recent article by Deirdre M. Smith, University of Maine School of Law. It appeared in the Temple Law Review, Vol. 84, No. 1, 2011. Here's the abstract:

This Article examines the origins of the unique relationship between the psychiatric diagnosis Post-traumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry’s standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM) - and is the focus of significant controversy within psychiatry - because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person’s symptoms, a practice more commonly associated with the law. In short, the diagnosis uniquely medicalizes liability. The law has turned to PTSD, on the erroneous assumption that its location in the DSM signifies that it is well-settled science, to serve as a mechanism to resolve difficult problems in assessing legal responsibility. These uses include determining whether a criminal complainant is credible and when emotional distress from another’s negligence is sufficient in itself to serve as a basis for liability. However, by adopting PTSD’s conceptualization of causation of psychological injury, courts unknowingly delegate normative determinations of liability to psychiatry broadly and to the individual psychiatrists who present PTSD evidence at trial. I argue that the legal system should consider PTSD’s origins and its persistent controversies as part of a broader reexamination of the role of the diagnosis in the law.

Cassel on Extraterritoriality and Imperial Power in 19th C China and Japan

2012-01-19T08:16:00.001-05:00

Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan by Par Kristoffer Cassel has just been published by Oxford University Press.

Here's the book description:

Perhaps more than anywhere else in the world, the nineteenth century encounter between East Asia and the Western world has been narrated as a legal encounter. Commercial treaties--negotiated by diplomats and focused on trade--framed the relationships among Tokugawa-Meiji Japan, Qing China, Choson Korea, and Western countries including Britain, France, and the United States. These treaties created a new legal order, very different than the colonial relationships that the West forged with other parts of the globe, which developed in dialogue with local precedents, local understandings of power, and local institutions. They established the rules by which foreign sojourners worked in East Asia, granting them near complete immunity from local laws and jurisdiction. The laws of extraterritoriality looked similar on paper but had very different trajectories in different East Asian countries.

Par Cassel's first book explores extraterritoriality and the ways in which Western power operated in Japan and China from the 1820s to the 1920s. In Japan, the treaties established in the 1850s were abolished after drastic regime change a decade later and replaced by European-style reciprocal agreements by the turn of the century. In China, extraterritoriality stood for a hundred years, with treaties governing nearly one hundred treaty ports, extensive Christian missionary activity, foreign controlled railroads and mines, and other foreign interests, and of such complexity that even international lawyers couldn't easily interpret them. Extraterritoriality provided the springboard for foreign domination and has left Asia with a legacy of suspicion towards international law and organizations. The issue of unequal treaties has had a lasting effect on relations between East Asia and the West.

Drawing on primary sources in Chinese, Japanese, Manchu, and several European languages, Cassel has written the first book to deal with exterritoriality in Sino-Japanese relations before 1895 and the triangular relationship between China, Japan, and the West. Grounds of Judgment is a groundbreaking history of Asian engagement with the outside world and within the region, with broader applications to understanding international history, law, and politics.

And the endorsements:

"Minutely argued and cogently presented, Par Cassel's Grounds of Judgment gives us a completely new base line from which to examine the practice of extraterritoriality from both the Chinese and the Japanese legal perspectives. An absorbing and valuable book." --Jonathan Spence, author of The Search for Modern China

"This sophisticated analysis of the changing legal orders in nineteenth-century East Asia nicely explodes the old dichotomy between Western international law and Chinese and Japanese responses to it. Cassel shows that even the seemingly immovable obstacle of extraterritoriality was subject to flexible interpretations that derived from domestic legal practices, which affected not only Westerners but also Japanese and Chinese in the treaty ports of the two countries. An impressive contribution both to international legal history and to the history of modern East Asia." --Carol Gluck, Columbia University

"Relying on primary and secondary sources in a host of languages, Par Cassel's new book offers the most thoroughgoing comparative examination of treaty port law and jurisdiction for late imperial China and late-Tokugawa and Meiji Japan. Especially interesting in his analysis is the treatment of the highly controversial topic extraterritoriality-with fascinating insights and stunning conclusions. This is a must read for anyone interested in late-Qing China, Tokugawa-Meiji Japan, or comparative legal history." --Joshua A. Fogel, Canada Research Chair, York University

"This is an impressive and important book. Cassel has gone back to the basics underpinning the nineteenth-century 'unequal treaties' between the different Western powers and China and Japan, and equally importantly those signed between the latter. Rich in comparative insight, Grounds of Judgement draws on an exemplary range of sources and clearly and engagingly re-writes long-unquestioned narratives. With this book Cassel compels us to rethink our fundamental assumptions about this complex tangle of relationships, and about the East Asian experience of the age of empires and its lasting legacies." --Robert Bickers, author of The Scramble for China: Foreign Devils in the Qing Empire, 1832-1914

Cromwell Foundation Articles Prize

2012-01-19T00:30:00.000-05:00

The William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2011. Articles published in 2011 in the field of American legal history, broadly conceived, will be considered. There is a preference for articles in the colonial and early National periods. Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History. This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed. Please send a brief letter of nomination no longer than a page, along with an electronic or hard copy of the article, by May 31, 2012, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC 27599-3380 or via email abrophy@email.unc.edu

History and Constitutional Law in the Law Reviews

2012-01-18T15:00:00.000-05:00

Here are a few recently-published law review articles of interest to historians, along with references to related literature.

Jamal Greene (Columbia-law) considers the rationales cited for placing a few historic cases hold up in "The Anticanon," 125 Harv. L. Rev. 379 (2011). Pertinent parts of the abstract follow.

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. .... I argue that anticanonical cases achieve their status through historical happenstance, and that subsequent interpretive communities’ use of the anticanon as a rhetorical resource reaffirms that status. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus.

Sanford Levinson (Texas--Law & Political Science) offers a fascinating response to Greene. In "Is Dred Scott Really the Worst Case of All Time: Why Prigg is Worse Than Dred Scott (But is Likely to Stay out of the 'Anticanon'), Levinson wonders why Prigg v. Pennsylvania is not a part of the anticanon; its outcome is just as "bad" as Dred Scott, or even worse. Subjective, externalist factors might explain why Prigg is out and Dred Scott is in the anti-canon, Levinson suggests: the authors of the relevant opinions in the two cases were studies in contrast. Dred Scott was the handiwork of Roger B. Taney, a Maryland slaveholder apparently not known for the social graces. Taney's negative attributes may have helped to stigmatize Dred Scott. By contrast, Joseph Story--an opponent of slavery, a professor at Harvard Law School whose likeness now graces the law school's library--was every bit the Northern sophisticate. Story's positive attributes might cause commentators to downplay Prigg's defects.

The Amistad

Social status matters, and it's hard to imagine it not affecting assessments of the Justices' opinions, just as Levinson contemplates. I wonder if, in this instance, Story's involvement in the Amistad Case might be significant? Story wrote the majority opinion in the Amistad Case (1841), where the Supreme Court held that Africans bound into slavery on a Spanish ship had been kidnapped from Africa and illegally traded. The Supreme Court ordered the Africans freed over the objections of both the Spanish and the U.S. governments. The outcome in the Amistad case gave momentum to the abolitionist movement. Given Story's role in this important case, some might find it plausible to draw a distinction between him, a non-slaveholder who upheld slaveholders' rights (in Prigg), and Taney, a slaveholder who upheld slaveholders' rights using strong proslavery rhetoric (in Dred Scott). Others might reject such moral relativism, particularly since the constitutional issues in Amistad are different than those presented in Prigg and Dred Scott. In any event, Levinson raises an important question about the anticanon in an interesting way. For more on the Amistad case, see Howard Jones's Mutiny on the Amistad (Oxford, 1988), among other treatments.

Let's not forget, by the way, that Chief Justice Taney's relationship to slavery has been reconsidered of late, even if his opinion in Dred Scott remains notorious. Timothy S. Huebner's "Roger B. Taney and the Slavery Issue: Looking Beyond-- and before--Dred Scott," J. Am. Hist. (June, 2010), notes that Taney manumitted his slaves and expressed antislavery sentiment on occasion. On this account, Taney's decision in Dred Scott did not necessarily reflect his personal views.

Levinson's quick reference to how public displays such as statues can mediate culture and shape institutional memory reminded me of one of his prior works. In 1998, Levinson published a book-length treatment about the significance of public monuments. It is Written in Stone: Public Monuments in Changing Societies; the work raises issues still relevant to our time. Here's the publisher's description of the book:

Is it “Stalinist” for a formerly communist country to tear down a statue of Stalin? Should the Confederate flag be allowed to fly over the South Carolina state capitol? Is it possible for America to honor General Custer and the Sioux Nation, Jefferson Davis and Abraham Lincoln? Indeed, can a liberal, multicultural society memorialize anyone at all, or is it committed to a strict neutrality about the quality of the lives led by its citizens?

In Written in Stone, legal scholar Sanford Levinson considers the tangled responses of ever-changing societies to the monuments and commemorations created by past regimes or outmoded cultural and political systems. ... Levinson looks at social and legal arguments regarding the display, construction, modification, and destruction of public monuments. He asks what kinds of claims the past has on the present, particularly if the present is defined in dramatic opposition to its past values. In addition, he addresses the possibilities for responding to the use and abuse of public spaces and explores how a culture might memorialize its historical figures and events in ways that are beneficial to all its members.

OAH's 2012 Program Now Online

2012-01-18T12:32:00.000-05:00

The program for the 2012 annual meeting of the Organization of American Historians,
scheduled for April 18-22 in Milwaukee, is now available online. As usual, the lineup at the meeting is impressive. Here's the link to the program. The following sessions on "legal and constitutional history" may be of interest to our readers:

Border Formations, Repatriation, and Exclusion: Chinese and Mexican Migration to the United States, Mexico, and China

State Power at the Border: Comparative Perspectives on US Immigration
Regulation from the Civil War to the Progressive Era

A Different Kind of History: Historians in the Legal Arena

Policing, Violence, and the Democratic State in the United States since 1850

Remembering Guantánamo: Building a Public History of One Hundred Years in the “Legal Black Hole”

Teaching Prohibition with Federal Court Records

Birthright Citizenship: Can the Fourteenth Amendment Defend Itself?

Probert on Cohabitation and Marriage Among the Victorian Poor

2012-01-18T11:00:00.000-05:00

Rebecca Probert, University of Warwick School of Law, has posted A Banbury Story: Cohabitation and Marriage Among the Victorian Poor in Notorious Neithrop. Here is the abstract:

The parish of Neithrop, now a suburb of Banbury, was known in the nineteenth century as a place ‘inhabited by the poor and persons of bad character’ and, according to the demographer Peter Laslett, was an area ‘notorious’ for non-marital arrangements. Drawn to investigate further by the tragic story of Susan Owen, allegedly murdered by the man she was living, ‘Badger’ Willson, and by the suggestion that five out of a row of eight houses were inhabited by cohabiting couples, I discovered a very different picture. Not only did it turn out that neither of these specific claims was true, but the high rate of marriage among Neithrop couples also cast doubt on the widespread assumption that cohabitation was common among the Victorian poor.

Two Constitutional History Classics from Barry Cushman

2012-01-18T00:30:00.000-05:00

Barry Cushman, University of Virginia School of Law, has recently posted two older but important articles; in particular, “Secret Lives” belongs in the canon of scholarship on the constitutional history of the Twenties and Thirties.

The first article is Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s. It originally appeared in the Buffalo Law Review, 50 (2002):

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, and 1940, on five major areas of public concern: labor; federal regulatory power; redistribution; fiscal policy; and relief and social security. The poll results reveal public preferences that are far more politically moderate than some have inferred from the election returns. The results also show that comparatively little change in constitutional doctrine was necessary in order to accommodate those popular preferences. This in turn helps to rationalize, if it does not explain, the consistent popular aversion to proposals to limit the power of the Supreme Court, as well as the persistent public opposition to President Roosevelt's ill-fated Court-packing plan.

The second is The Secret Lives of the Four Horsemen, which originally appeared in the University of Virginia Law Review 83 (1997):

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars have seen the Four Horsemen as far right, reactionary, staunchly conservative apostles of laissez-faire and Social Darwinism. And not without good reason. One need only read opinions such as those in Adkins v. Children's Hospital and Morehead v. Tipaldo, Railroad Retirement Board v. Alton Railroad and Ribnik v. McBride, Hammer v. Dagenhart and Carter Coal, and the dissents in such cases as Nebbia, Blaisdell, the Gold Clause Cases, and the Wagner Act Cases to understand why. One can hardly avoid coming away from these and other decisions with the impression that these were men fanatically devoted to property rights and callously indifferent to the commonweal.

Here and there one finds shreds of biographical evidence suggesting that something like the milk of human kindness may have flowed in parsimonious quantities through their veins. We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the 1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers. We read of Butler's leadership in the fight for workmen's compensation in his home state of Minnesota; of his efforts on behalf of the federal government in prosecuting Swift, Armour and other large meatpackers for violations of the Sherman Antitrust Act; and of his success in saving the Canadian government "huge sums of money in valuation proceedings against some of the western railroads." We are told of McReynolds' role as an avid trustbuster for Presidents Taft and Wilson, of his environmentalism, and of his generosity toward charitable causes. We learn of Van Devanter's reputed sensitivity to the plight of the Native American. But such paltry gestures of concern for the underdog have been far from sufficient to rebut Fred Rodell's charge that their jurisprudence was driven by "their basic and bone-deep Hamiltonian empathy with the well-to-do."

When one dips a bit deeper into the U.S. Reports, however, one discovers some startling data. One finds the Four Horsemen actually supporting liberal case outcomes. At first one is inclined to dismiss these cases as mere aberrations, attributable perhaps to the dull Horsemen's inability to recognize when the liberals were pulling the wool over their eyes. But the cases continue to mount until the sheer volume is so immense as to point irrefragably to only one conclusion: the Four Horsemen were themselves closet liberals. It appears that they struck a reactionary pose in celebrated cases in order to retain the good graces of the conservative sponsors to whom they owed their positions and whose social amenities they continued to enjoy, while in legions of low-profile cases they quietly struck blows for their own progressive agendas. In this way, it seems, the Horsemen could continue to enjoy access to the corridors of power and influence and the hospitality of the most fashionable Washington salons, while at the same time working surreptitiously to undermine the very causes that their conservative patrons held most dear. Theirs, then, is not a simple story of handmaidens of the industrial and financial elite. It is instead a tale of luxury and deceit.

The Thirteenth Amendment at the Columbia Law School

2012-01-17T17:03:00.001-05:00

Over at Legal Theory Blog, Larry Solum has posted the program for a conference on the Thirteenth Amendment, to be held Friday, January 27 at the Columbia Law School. Participants include Jack Balkin, Sanford Levinson, Mark Graber, Eric Foner, Aviam Soifer, Alexander Tsesis and Rebecca Zietlow

Fletcher's Legal History of the Grand Traverse Ottawa and Chippewa

2012-01-17T14:30:00.000-05:00

Matthew L. M. Fletcher,a Professor and the Director of the Indigenous Law and Policy Center at the Michigan State University College of Law, has published The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians, with the Michigan State University Press. Here is the publisher's description:

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An absorbing and comprehensive survey, The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians shows a group bound by kinship, geography, and language, struggling to reestablish their right to self- governance. Hailing from northwest Lower Michigan, the Grand Traverse Band has become a well-known national leader in advancing Indian treaty rights, gaming, and land rights, while simultaneously creating and developing a nationally honored indigenous tribal justice system. This book will serve as a valuable reference for policymakers, lawyers, and Indian people who want to explore how federal Indian law and policy drove an Anishinaabe community to the brink of legal extinction, how non- Indian economic and political interests conspired to eradicate the community’s self-sufficiency, and how Indian people fought to preserve their culture, laws, traditions, governance, and language.

Hat tip

Mossoff on Locke and Marx

2012-01-17T11:30:00.000-05:00

Adam Mossoff, George Mason University School of Law, has posted Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory, which is forthcoming in Social Philosophy and Policy 29 (2012). Here is the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

Mazzacano on Puritanism in Massachusetts Bay

2012-01-17T00:30:00.000-05:00

Peter Mazzacano, Osgoode Hall Law School, York University, has posted Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640), which also appears in The Journal Jurisprudence 12 (2011): 599-678. Here is the abstract:

The goal of this article is to examine the degree to which Puritanism influenced early American political culture. That is, how did Puritan values and practices facilitate the development of an exceptional political culture during the formative years of Massachusetts Bay? Utilizing a case-study method of analysis, this article examines the political developments in the General Court and the town of Boston during the decade 1630 to 1640. The research methods used are primarily the writings of leading Puritans, and concomitant town, church, and colonial records. The main finding is that the Puritans paid little heed to notions of democracy, theocracy, oligarchy, or British political traditions; instead, Puritan institutions and practices were based on the primary Puritan ideal of godliness. However, the formative influence of the godly ideal inadvertently reinforced democratic and republican ideals. The conclusion is that the focus on godliness provides a comprehensive and multiple explanations for the course of political developments in early Massachusetts Bay.

Tuck on King's Global Impact

2012-01-16T18:43:00.000-05:00

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Stephen Tuck, author of We Ain’t What We Ought to Be: The Black Freedom Struggle From Emancipation to Obama, has an op-ed today in the New York Times on Martin Luther King, Jr.'s global impact. He writes in part:

Today, King’s legacy abroad remains profound, and as contested as ever. In Britain, his statue stands above the west entrance to Westminster Abbey, while the American civil rights movement is among the top five most popular history subjects in high schools.

But absent from Westminster is a statue of a black British figure, and black British history remains on the sidelines at schools and universities. Looking to King helps us think about racial justice, but he can be used to forget about it, too.

Read the rest here. Tuck is a lecturer at Pembroke College, Oxford, and visiting fellow at the W.E.B. Du Bois Institute at Harvard.

CFP: Islamic Law and Society

2012-01-16T14:00:00.000-05:00

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Encounters: An International Journal for the Study of Culture and Society invites

papers that deal with the intersection between Islamic law and society particularly as it pertains to such issues as: the status of women and/or family law, property rights, land tenure, criminal law, finance/economy, and inter-faith relations. Papers from all periods of history and all disciplines are welcome, as are papers that examine the impact of Islamic law in western contexts.

The editors are particularly interested in the following questions:

-- How is the law a ‘living law’? To what extent have legal thinkers integrated custom into the lawmaking process?

-- To what extent has the law provided an arena for individuals of different religions to negotiate and/or settle their disputes?

-- What sort of relationship has existed between the various schools of law and have legal thinkers drawn upon schools of law other than their own in formulating laws?

-- To what extent have Western legal systems accommodated Islamic law? What impact has this had on notions of citizenship and minority rights?

-- How have state law/secular law and shari’a overlapped and/or informed one another in the lawmaking process? How has this relationship evolved over time?

Follow the link for more information about the application process.

Hat tip: H-Law

Call for Nominations: John Hope Franklin Prize

2012-01-16T10:00:00.000-05:00

The Law & Society Association is still accepting nominations for the 2012 John Hope Franklin Prize. Here's the announcement:

The John Hope Franklin Prize is awarded annually by the Law and Society Association to recognize exceptional scholarship in the field of Race, Racism and the Law. The 2012 Prize will recognize an article published in 2010 or 2011. The competition is open to all forms of law and society scholarship, to authors at any stage of their careers, and to authors from any country of origin, although article copies submitted to the committee must be in English. Articles may be published in any scholarly journal, including socio-legal journals, journals in other disciplines, and law reviews, or may be a chapter in a book volume. Co-authored articles may be submitted for consideration. The Award will be announced during the Annual Meeting. The prize is a cash award of $500 and appropriate recognition of the recipient(s) during the Association’s Annual Meeting.

The prize is named for John Hope Franklin, a professor of history and law whose interdisciplinary research documented the history of racism and its effects, whose scholarship had both national and international influence, and whose commitments to intellectual freedom, professional service, and civic activism were resolute.

While there is not a limit on the number of articles one may nominate, an article may not be considered for the John Hope Franklin prize and another LSA prize. The decision in determining whether an article should be submitted for consideration by the Franklin prize committee rather than another LSA prize committee rests with the article’s nominator in consultation with the author.

The committee to select the year 2012 recipient of the award includes Tonya Brito, chair (Law, University of Wisconsin), Mario Barnes (Law, UC Irvine), and Tanya K. Hernandez (Law, Fordham University), Blanca G. Silvestrini (History, University of Connecticut), and Kaimipono D. Wenger (Thomas Jefferson School of Law).

Nomination Process: Nominations may be submitted by authors or others. Articles and letters of nomination must be submitted as an attachment in Word.doc or PDF.pdf format by February 1, 2012 to this address: franklin_prize_nom@lawandsociety.org.

Hat tip: Poverty Law

Law and History Review Seeking New Editor

2012-01-16T04:00:00.000-05:00

Via H-Law, we have the following announcement:

After seven years of exceptional service, David Tanenhaus has decided to step down as editor of the Law and History Review, which is sponsored by the American Society for Legal History and published by the Cambridge University Press. The ASLH Publications Committee invites applications for the position. Applicants should be members of the Society who are accomplished legal historians, have the intellectual range to work with manuscripts from different periods and regions in legal history, and are conversant with both law and history. The departmental or institutional support required for the position is usually modest.

The editor's responsibilities include soliciting manuscripts in all fields of legal history, shepherding submitted manuscripts through the peer review and editorial processes, working with the journal's print and electronic publisher Cambridge University Press, and maintaining collaborative relationships with the journal's Editorial Board and the Board ASLH Board of Directors. Production management is the responsibility of the Cambridge University Press. Appointment is for an initial five-year term.

Interested scholars should send an electronic version of their current c.v. and a statement of what they would like to accomplish as editor of the journal by March 30, 2012, to the Chair of the Publications Committee: Michael Grossberg. Inquiries about the position should be directed to the same email address or by phone at: 812-855-3882.

Thanks, David, for your service and dedication. We are all in your debt!

Hartog, Bargaining for a Child's Love

2012-01-15T16:06:00.000-05:00

"Economic malaise and political sloganeering have contributed to the increasingly loud conversation about the coming crisis of old-age care: the depletion of the Social Security trust fund, the ever rising cost of Medicare, the end of defined-benefit pensions, the stagnation of 401(k)’s," legal historian Dirk Hartog writes in the New York Times, in an op-ed drawn from his new book.

News accounts suggest that overstretched and insufficient public services are driving adult children “back” toward caring for dependent parents.

Such accounts often draw on a deeply sentimental view of the past. Once upon a time, the story line goes, family members cared for one another naturally within households, in an organic and unplanned process. But this portrait is too rosy. If we confront what old-age support once looked like — what actually happened when care was almost fully privatized, when the old depended on their families, without the bureaucratic structures and the (under)paid caregivers we take for granted — a different picture emerges.

Continue reading here.

Free Speech, Middle Age, and More: This Week in the Book Pages

2012-01-15T05:00:00.000-05:00

The big one this week is the New Republic review of Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press) and Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press), by law professors John Inazu and Timothy Zick, respectively. According to reviewer Jeremy Kessler (a JD/PhD student at Yale), both books "investigate the disappearance of the First Amendment 'right of the people peaceably to assemble' in contemporary America." Both are timely:

Although Inazu and Zick wrote their books before the Occupation [of Wall Street] emerged, their histories help to explain—and even to justify—the . . . movement’s extreme mode of assembly: an assembly that insists on peculiar decision-making procedures, engages in twenty-four-hour protest, and refuses to cooperate with government officials and their permitting regimes.

Read on here.

The New York Times reviews In Our Prime: The Invention of Middle Age (Scribner), by journalist Patricia Cohen. The book is "a lively, well-researched chronicle of the social and scientific forces that brought midlife America to its current befuddled state — better off by most measures than any previous generation, but miserably out of fashion."

Another review (paired with a nice screen shot of Bill Murray clutching a stuffed owl in Lost in Translation) is here, in the Wall Street Journal.

Also in the WSJ book pages: A short review of The Plots Against the President: FDR, A Nation in Crisis, and the Rise of the American Right (Bloomsbury), by Sally Denton; a list of five all-time best books on the Nuremberg trials, selected by British writer William Shawcross; and an announcement of the release of Lewis Hine (D.A.P.), a "handsome survey" of Hine's "social photography."

In the book pages of the Nation, you'll find a review of William Stuntz, The Collapse of American Criminal Justice. (The book has been widely reviewed -- see our previous posts here, here, and here.)

The Los Angeles Times takes up The Partnership: Five Cold Warriors and Their Quest to Ban the Bomb (Harper), by journalist Philip Taubman. The book "traces the evolution of five former Cold War hawks into relative doves and follows their efforts to spur U.S. and Russian political leaders to dismantle stockpiles of nuclear weapons." Read more here.

Also reviewed: The Operators: The Wild and Terrifying Inside Story of America's War in Afghanistan (Blue Rider Press), by Michael Hastings.

Weekend Round-up

2012-01-14T05:00:00.001-05:00

This week we've been rounding up coverage of the AHA. Read even more here, at the Chronicle of Higher Ed.

The inter-disciplinary Centre for Citizenship, Civil Society and Rule of Law at the University of Aberdeen has announced that it will offer 3-year Ph.D. studentships. More info is here. (Hat tip: H-Law)

How does one write a dissertation from afar? GradHacker offers advice.

Inspired by a recent AALS panel, Al Brophy at the Faculty Lounge has posted some thoughts on the legacy of Derrick Bell.

The latest issue of Rorotoko features an interview with Brian C. Kalt on his book Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (Yale University Press).

The doctoral program in Law in a Changing World at the University of Helsinki has issued a call, here, for applications for eight doctoral student positions for the period beginning September 2012. (Hat tip: H-Law)

The Weekend Round-Up is a weekly feature compiled by all the Legal History bloggers.

The Dakota War at William Mitchell College of Law

2012-01-14T03:30:00.000-05:00

The William Mitchell College of Law is observing the 150-year anniversary of the Dakota War of 1862 with a series of events, lectures, law review articles, and a new course on Dakota Legal History. An exhibit officially opens with a reception at 5 pm on Tuesday, January 17.

The exhibit "provides viewers with a visual history of the causes of the war, the conflict itself, and the aftermath." It was developed by Mitchell’s Indian Law Program, with funding from the Minnesota Historical Society.

Join the LHB Facebook Team

2012-01-13T19:03:00.000-05:00

I am looking for a second administrator for the Legal History Blog Facebook page to work with me to manage page content and maintain daily updates and features. These tasks do not demand a substantial time commitment, but require consistent and daily attention, so it would be great to have a second person to help keep up the page.

This is a great opportunity for a graduate student, but I welcome expressions of interest from any legal historian with basic Facebook knowledge. You should have experience using Facebook and have a personal profile, but you need not have experience administering a page. Ideally, we are looking for someone who can commit to working with the page for a year.

If you are interested, please contact me at cjaltman@brandeis.edu to express your interest. A copy of your cv and a brief description of your experience as a legal historian would be helpful too.

Facebook Page Update

2012-01-13T17:00:00.005-05:00

If you follow the Legal History Blog on Facebook, you have probably noticed some changes on the page. If not, I want to invite you to join us on Facebook where you will find new features and new ways to enjoy the Legal History Blog. If you “like” us on Facebook, you’ll receive notifications and links to all new blog posts in your daily newsfeed.

On Facebook, we keep you updated on what our guest blogger is writing about, and provide reminders of upcoming conference and other deadlines. In addition, each week we will spotlight a topic in legal history by providing links to recent and older blog posts.

Spotlight on: Law and War

This week, to reflect on nine years of war in Iraq, we are spotlighting law and war including links to the following posts:

Mary Dudziak, "An Age Without Surrender Ceremonies," November 1, 2010

Mary Dudziak, "'Wartime' Becomes 'Crisis Time' in Post 9/11 Legal Thought," February 17, 2011

The topic for next week is writing and publishing.

In case you miss any of these features on Facebook, I’ll round-up everything here on the blog at the end of each week.

Click here to join the Legal History Blog on Facebook.

Likhovski on Jewish Voluntary Taxes in Mandatory Palestine

2012-01-13T15:30:00.000-05:00

Assaf Likhovski, Tel Aviv University School of Law, has posted Taxation Without a State: Jewish Voluntary Taxes in Mandatory Palestine, 1938-1948. Here is the abstract:

In the late 1930s and 1940s, the Jews of British-ruled Palestine established an informal system of direct and indirect taxation. This system, which raised large amounts of money, was similar in some senses to a charity and in other senses to a governmental tax system. This paper provides an outline of the history of this system and some of its unique characteristics (such as the absence of formal rules of taxation and tribunals for the adjudication of disputes, the participatory nature of the system, the use of tax publicity or the role of this system in constructing a notion of Jewish “citizenship.”) While the system discussed in the paper was the result of the unique context of Palestine in the 1940s, a context which no longer exists, the history of this system is still relevant today. This history can be used theoretically to rethink some of our assumptions about the role of formal law (and other types of governmental techniques of control) by modern states, and the appropriate balance between civic rights and civic duties. It may also be relevant practically, by pointing to the utility of the use of civil society organizations in the process of tax collection and the disadvantages of tax privacy.

Land Tenure Patterns among the Pre-Hispanic Aztec Nobility

2012-01-13T14:00:00.000-05:00

Anastasia Kalyuta, the Kislak Fellow at the Library of Congress, is to lecture on the topic, "Who really owned the estate in the place of ‘Place of Dog Tail’?: Land Tenure Patterns among the Pre-Hispanic Aztec Nobility in the late 15th-early 16th centuries.” The lecture will be delivered on Thursday, January 26, at 12:00 PM, at LJ 119, Thomas Jefferson Building, 10 First St. S.E., Washington DC.

Dr. Kalyuta’s lecture will focus on comparative analysis of land tenure and related practices of inheritance, land distribution and exploitation among Aztec nobility on the eve of Spanish conquest and aftermath. The lecture will explore distinctions of elite land tenure in two main centers of Aztec empire-Tenochtitlan and Tetzcoco. A native of Saint Petersburg Russia, Dr. Kalyuta studied at Saint Petersburg State University and the Institute of Anthropology and Ethnology of the Russian Academy of Science in Moscow. She has conducted field studies in Mexico City through the Institute of Anthropological Investigations at the National Autonomous University of Mexico and has held several fellowships including a Fulbright fellowship and a fellowship at the Dumbarton Oaks.

For more information, contact the Kluge Center at (202) 707-3302. Request ASL and ADA accommodations five days in advance at 202-707-6362 or ADA@loc.gov.

The Politics of Birthright Citizenship in Historical Perspective

2012-01-13T11:00:00.000-05:00

[The Center for the History of the New America Announces its inaugural conference, “Born in the USA: The Politics of Birthright Citizenship in Historical Perspective.” It will be held on March 29 & 30, 2012, at the University of Maryland at College Park. It is co-sponsored by the Institute for Constitutional History and the University of Maryland Francis Carey King Law School. The conference is free and open to the public. Its organizers explain:]

Next March, an interdisciplinary group of prominent academics, lawyers, jurists, and political figures will assemble in College Park for the Center for the History of a New America's first major conference. Their goal: to place in historical perspective the current debate as to whether the United States ought to reconsider birthright citizenship, which grants automatic citizenship to most persons born on the soil of the United States. Birthright citizenship is part of the Constitution, having been put there by the Fourteenth Amendment, ratified in 1868. It has given the United States one of the most liberal citizenship regimes in the world, and it has helped to build America's reputation as a land of immigrants, where anyone can come to seek opportunity, liberty, and equality in a regime of laws that does not discriminate on the basis of race, creed, or national origins.

Some who want to eliminate birthright citizenship argue that it has acted as a perverse incentive for immigrants to seek illegal entry to the United States. Birthright citizenship, some argue, permits illegal immigrants to think that they can find a route to permanent residence and security in the United States by giving birth to children on American soil. Their children, who become American citizens upon birth, the argument goes, will "anchor" the illegal parents to America, thus rewarding behavior that ought to be punished. The state of Arizona is at the forefront of this campaign against birthright citizenship, as it is for other aspects of the campaign against illegal immigrants. In the short term, anti-illegal immigrant forces in the state hope to trigger a legal challenge to a nineteenth century Supreme Court ruling that declared that a child born to non-citizens on American soil is in fact an American citizen. In the long term these forces hope to stimulate a national campaign to amend the Fourteenth Amendment.

As with many issues regarding immigration, the debate sometimes proceeds with a lot of passion and without a strong knowledge of history. Here are some questions that would benefit from a robust exploration: First, how aware were the framers of the Fourteenth Amendment about the immigration question? To the extent to which they were, what were their thoughts about immigration and birthright citizenship? What do we know of the original intent of the framers of the Fourteenth Amendment's citizenship clause? Second, why did the Supreme Court in 1898 uphold birthright citizenship for the children of non-citizens? And why in some cases were Native Americans treated differently with regard to birthright citizenship? Third, how well or how poorly did birthright citizenship work for America, in regards both to legal and illegal immigration, over the course of American history after 1868? On balance, has birthright citizenship been a source of cohesion or discord, of Americanization or cultural balkanization, in American life? Fourth, what evidence can be marshaled to show that illegal immigrants today are motivated to come by the promise of birthright citizenship for their children? And, finally, what would be the consequences to the Constitution, to personal liberties, and to immigration of a successful effort to remove birthright citizenship from the Fourteenth Amendment?

2011 Pulitzer Prize Winner Eric Foner of Columbia University will open the conference with a keynote address. Other confirmed participants include former acting Solicitor General of the United States Walter Dellinger, New York Times immigration reporter Marc Lacey, 14th Amendment experts Peter Schuck (Yale Law School), Garrett Epps (University of Baltimore Law School), and Mark Graber (University of Maryland Law School); noted historians Gary Gerstle (Vanderbilt), David Gutierrez (UCSD), Linda Kerber (Iowa), Heather Cox Richardson (Boston College), Mae Ngai (Columbia), and Aristede Zolberg (The New School); immigration expert Tamar Jacoby, political scientist James Hollifield (SMU), and legal scholars Christina Burnett (Columbia Law School), Linda Bosniak (Rutgers Law School), , William Novak (University of Michigan), Ayelet Shachar (University of Toronto Law School), Rebecca Tsosie (Arizona St. Law School), Patrick Weil (Yale Law School), and Marley Weiss (UMD Law).

For more information contact Ira Berlin (iberlin@umd.edu) or Michael A. Ross (maross@umd.edu).

A Remembrance of the Honorable Robert Carter: Judge, Lawyer, and Mentor

2012-01-12T23:30:00.000-05:00

Last week I noted that Judge Robert Carter had passed away. The following remembrance of Judge Carter, which I penned, is cross-posted from the American Constitution Society's blog.

Judge Robert L. Carter passed away last week. I had the honor of serving as a law clerk to the judge and found that experience profoundly rewarding. The judge, a brilliant man best known for his role as a chief strategist in Brown v. Board of Education, inspired me and many others. I share memories of my experience with him to shed light on his stupendous legal ability, his character, and his contributions as a mentor who taught invaluable lessons about life and the law.

As a NAACP Legal Defense Fund lawyer, Judge Carter litigated Briggs v. Elliott, the South Carolina case consolidated with four others as Brown. We initially bonded over my South Carolina roots: he had a hand in my life’s trajectory, and he knew it. I, in turn, saw in the judge a model of professional success and outstanding moral character. Each day, he made something extraordinary seem ordinary: the idea that one individual could touch another’s life and radically alter its course. After spending a year in the presence of this great man — a lawyer who faced racial threats and insults merely for practicing his profession — a clerk for Judge Carter could scarcely contemplate disengagement from the world. The judge’s life and work taught social responsibility.

Over the course of his career as a lawyer, Judge Carter earned a reputation as a man of strong convictions, unyielding principle, and great passion. Carter earned the reputation when, as Thurgood Marshall’s lieutenant, he consistently took the most “radical” view among LDF strategists, and when he resigned as General Counsel of the NAACP to support a colleague’s right to criticize the Warren Court. Yet, the judge, a Nixon appointee, taught me that success in the legal profession requires a clear head, a balanced and context-specific assessment of a problem, and a judicious temperament. He conveyed that passion for one’s work or causes can be productive, only if coupled with strategic thinking and professionalism.

[More after the break]

What makes History, History?

2012-01-12T12:00:00.004-05:00

I do Twenty-First century history – and, yes, it does sound strange to my ears to be saying this. Over one-third of my published work deals with events that happened after Y2K. In a future blog entry, I’ll discuss some of the promise and perils of doing Twenty-First Century history, but now I want to address a related question: what makes the work that I do history?

It isn’t history simply because it is a study of the past, because what I write about isn’t the past -- at least not for most of us; it’s too close to the present to look or feel like the past. On the other hand, most freshman students are too young to remember Bush v Gore at all or to have clear memories of 9/11. (Here, I invoke the exchange between the Ghost of Christmas Past and Ebenezer Scrooge in Charles Dickens’s A Christmas Carol: When this ghost announces itself, Scrooge asks, “Long past?” The ghost answers, “Your past.”) So chronology alone isn’t enough to make what I do history.

My work also isn’t what a purist would consider to be “proper” history as it includes elements of a presentist agenda. Although such concerns do not drive my work, I believe that my work does have a lot to add to our current debates about how we can make practical democracy work. For example, in arguing that we need to evaluate the events of November and December 2000 as comprising a breakdown of the American electoral system – a breakdown that could have been fixed but was not -- I inevitably find myself commenting on current electoral practices. In fact, the events of the last few years has largely proved my thesis that the only people who really took to heart the lessons of 2000 (that we had a broken electoral system, not just broken voting machines) were the partisans who took advantage of such opportunities to skew the electoral process in their favor and against their foes.

In the end, the only answer that I’ve been able to devise is methodological. What I do is history and not journalism because, to the best of my ability, I treat even recent events in the same way that I would treat events that took place a century ago. I examine all the primary sources that I can find; I work to set these sources and the events they explain within a wider historical context; and then I try to craft a narrative that expresses these insights. Similarly, what I do is not political science because I don’t build my work around theoretical models, nor do I subordinate my narrative to an abstract, normative agenda about political processes. Although my work has theoretical, analytical, and normative foundations, I bury each in the narrative -- letting the voices and actions of the historical actors who appear in my work drive the narrative. (That is to say, I shape the theoretical, analytical, and normative elements of my work by reference to what those historical actors tell us, rather than applying my facts to suit the needs of testing or explaining those theoretical, analytical, and normative elements).

So I conclude by turning the question back on those among this blog’s readers who find themselves doing recent history – why (or how) do you situate your work as history as opposed to journalism or political science? Or to repeat this blog's title: In your view, what makes history, history?

Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age

2012-01-12T10:00:00.000-05:00

Someday All This Will Be Yours: A History of Inheritance and Old Age, by Hendrik Hartog, has just been published by Harvard University Press. Attendees of the 2010 American Society for Legal History Conference will remember the very fine and moving keynote lecture Dirk gave, drawn from the book.

Here's the press book description:

We all hope that we will be cared for as we age. But the details of that care, for caretaker and recipient alike, raise some of life’s most vexing questions. From the mid-nineteenth to the mid-twentieth century, as an explosive economy and shifting social opportunities drew the young away from home, the elderly used promises of inheritance to keep children at their side. Hendrik Hartog tells the riveting, heartbreaking stories of how families fought over the work of care and its compensation.

Someday All This Will Be Yours narrates the legal and emotional strategies mobilized by older people, and explores the ambivalences of family members as they struggled with expectations of love and duty. Court cases offer an extraordinary glimpse of the mundane, painful, and intimate predicaments of family life. They reveal what it meant to be old without the pensions, Social Security, and nursing homes that now do much of the work of serving the elderly. From demented grandparents to fickle fathers, from litigious sons to grateful daughters, Hartog guides us into a world of disputed promises and broken hearts, and helps us feel the terrible tangle of love and commitments and money.

From one of the bedrocks of the human condition—the tension between the infirmities of the elderly and the longings of the young—emerges a pioneering work of exploration into the darker recesses of family life. Ultimately, Hartog forces us to reflect on what we owe and are owed as members of a family.

And the endorsements:

In this gem of a book, Hartog reveals the human drama of growing old and dependent, and the enduring dilemma in mixing love and economic need.
--Martha Minow, Dean, Harvard Law School

Hartog brilliantly illuminates the central role that law has played in shaping Americans' ideas about getting old. Poignant, funny, and analytically razor-sharp, this is a groundbreaking book.
--Dylan Penningroth, author of The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South

With empathy and captivating style, Hartog, a superb historian, offers a memorable analysis of changing family struggles over inheritance and care.
--Viviana A. Zelizer, author of Economic Lives: How Culture Shapes the Economy

This is a disturbing book, in the best sense--a transformative book. With unique sensitivity and ingenuity, Hartog tells a profound story about the meaning of inheritance and what one owes and is owed as a member of a family, making brilliant history of seemingly eternal human predicaments.
--Amy Dru Stanley, author of From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation

Felicia Kornbluh posted her thoughts and Dirk's, about the book and his body of work, here. Naomi Cahn, George Washington Law School, reviews the book on Concurring Opinions.

Just released: War Time: An Idea, Its History, Its Consequences

2012-01-11T21:38:00.002-05:00

I hope you will indulge this little announcement: My new book, War Time: An Idea, Its History, Its Consequences, has just been released by Oxford University Press. You have had a preview, of course, since I've occasionally talked about it here. In the acknowledgments is a thank you to everyone who sent an email and posted a blog comment (a group thank you, since of course I couldn't list everyone). I could not address all the great suggestions I received, but I greatly benefited from your engagement.

Here's the press book description:

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.

The endorsements and more info are here and here. The table of contents and introduction are on SSRN. Book news, information about public events, and discussion of related works, can be found here. And you can read the whole book right now on Kindle and Nook.

Blogging the AHA: Mumford on Honores, "Lupakas and the Law"

2012-01-11T12:00:00.000-05:00

More coverage from the annual meeting of the American Historical Association! The following guest post comes from Jeremy Mumford (Brown University). He attended the panel "South Andean 'Altiplano' Communities and Colonial 'Cacique' Networks, Mid-Sixteenth to Early Nineteenth Centuries."

Renzo Honores (image credit)
In his paper on the final day of the conference, “Lupakas and the Law: Interethnic Legal Dialogues in the Colonial Andes,” Renzo Honores [High Point University] added new insights to the social and political history of the law in Spanish America. His paper showed how members of the indigenous nobility (called kurakas) in the Viceroyalty of Peru pursued their interests within the 16^th- and 17^th-century Spanish legal system, appropriating the tools of litigation and direct written communication to the king.

In the question and answer session, an audience member challenged Honores on his use of the word “appropriation,” given that the Andean lords were playing the recognized role of provincial elites under the Castilian crown. Honores accepted the point, but noted that many Spanish officials and colonists strove to deny this role to the kurakas. His research showed that litigation among Spanish colonists was as widespread as among indigenous subjects, yet Spanish criticism of the colonial litigation explosion were focused mainly on the latter.

Honores also reported that the efforts of viceroy Francisco de Toledo (1569-84) to curtail indigenous litigation by channeling it through crown-appointed “Protectors of the Indians” actually increased litigation. And he suggested that the Andean chronicle of Felipe Guaman Poma de Ayala (c. 1615), “El primer nueva corónica y buen gobierno,” fell within the quasi-legal genre of arbitrio, a formal proposal for reform to the crown.

Chris Bonastia's Southern Stalemate

2012-01-11T07:49:00.000-05:00

Southern Stalemate: Five Years Without Public Education in Prince Edward County, Virginia, by Chris Bonastia (Lehman College, CUNY--sociology), was released by the University of Chicago Press this month. Bonastia is the author of Knocking on the Door: The Federal Government’s Attempt to Desegregate the Suburbs, an important book on housing policy, a vital but under-researched area. His new book, Southern Stalemate, covers one of the single most important incidents in American education during the civil rights era.

Here is the publisher's description of the book.

In 1959, Virginia’s Prince Edward County closed its public schools rather than obey a court order to desegregate. For five years, black children were left to fend for themselves while the courts decided if the county could continue to deny its citizens public education. Investigating this remarkable and nearly forgotten story of local, state, and federal political confrontation, Christopher Bonastia recounts the test of wills that pitted resolute African Americans against equally steadfast white segregationists in a battle over the future of public education in America.

Beginning in 1951 when black high school students protested unequal facilities and continuing through the return of whites to public schools in the 1970s and 1980s, Bonastia describes the struggle over education during the civil rights era and the human suffering that came with it, as well as the inspiring determination of black residents to see justice served. Artfully exploring the lessons of the Prince Edward saga, Southern Stalemate unearths new insights about the evolution of modern conservatism and the politics of race in America.

Also see these endorsements:

“What happened in Prince Edward County in the late 1950s and early 1960s was nothing less than an American tragedy. Yet it’s long lingered on the margins of civil rights history, a footnote to the standard story of struggle and triumph. With Christopher Bonastia’s careful, enlightening, and sympathetic new study, it finally has the book it deserves.”—Kevin Boyle, author of Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age

“A fine book that captures the intensity of the struggle among the white segregationists, the NAACP, and the black community during the years of the school closing, Southern Stalemate sheds new light on the civil rights movement and this important case. It represents an important step in the quest to better understand race, social movement, and legal scholarship.”—Aldon Morris, Northwestern University

“In this absorbing and meticulously researched narrative, Christopher Bonastia brings us into a forgotten yet vitally important moment in the civil rights movement, when a Virginia county abandoned its public schools rather than integrate them. Southern Stalemate is a grand addition to the literature on the civil rights struggle.”—Alex Kotlowitz, author of There Are No Children Here: The Story of Two Boys Growing Up in the Other America

Sachs on Conflict Resolution at a Medieval English Fair

2012-01-10T21:17:00.000-05:00

Stephen E. Sachs, Duke University School of Law, has a new essay: Conflict Resolution at a Medieval English Fair. It appears in LA RÉSOLUTION DES CONFLITS EN MATIÈRE DE COMMERCE TERRESTRE ET MARITIME (LA RÉSOLUTION DES CONFLITS: JUSTICE PUBLIQUE ET JUSTICE PRIVÉE: UNE FRONTIÈRE MOUVANTE, Albrecht Cordes, ed., 2012. Only the abstract is posted:

Recent studies of commercial conflict resolution have emphasized the role of informal norms and extralegal incentives as compared to the formal legal system. Yet the merchants who frequented medieval English fairs, whose example has been invoked as a precedent for modern dispute resolution, may not have fit this model. These merchants frequently litigated before the courts of the fairs, local tribunals of general jurisdiction that retained formal procedures and traditional methods of proof. Why did these traders rely on existing authorities rather than their own private institutions? And why did they appear before local tribunals, rather than alternative fora such as the English royal courts?

This essay examines the records of the fair court of St. Ives, one of England’s largest and best-documented fairs in the late thirteenth and early fourteenth centuries. It argues that the fair court managed to attract litigants in the face of jurisdictional competition through an effective alignment of legal and extralegal incentives. The court offered not only reputational sanctions, but also the coercive process necessary to govern a heterogeneous trading community. Although it lacked the reach and authority of a royal court, it offered merchants greater speed and flexibility in the application of specific customs, relying on community knowledge rather than official fact-gathering. The fair court of St. Ives provides an illuminating example of the interaction of law and society, demonstrating how fragile legal systems can succeed by making use of, and coordinating with, extralegal norms and incentives to accomplish official ends.

2011 Cliopatria Awards Announced

2012-01-10T15:00:00.000-05:00

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The History News Network has announced the winners of the 2011 Cliopatria Awards for history blogging:

Best Individual Blog: The Chirurgeon's Apprentice

Best Group Blog: Wonders and Marvels

Best New Blog: Demography and the Imperial Public Sphere Before Victoria 

Best Post: Karen Abbott's "If There's a Man Among Ye: The Tale of Pirate Queens Anne Bonny and Mary Read," Past Imperfect, 9 August 2011.

Best Series of Posts: Erik Loomis, "This Day in Labor History," Lawyers, Guns & Money

Best Writer: Corey Robin 

Best Twitter Feed: @KatrinaGulliver

Best Podcast Episode: Marshall Poe's New Books In History episode from 14 January 2011: "Nell Irvin Painter, The History of White People, W.W. Norton & Company, 2010"

Read more here.

This year's judges were Manan Ahmed, Kelly Baker, Jonathan Dresner, Mary Dudziak, Katrina Gulliver, Andrew Hartman, Brett Holman, Sharon Howard, Shane Landrum, Randall Stephens, Karen Tani, and David Weinfeld.

OHA Annual Meeting Preregistration Open

2012-01-10T07:00:00.000-05:00

The preregistration window is now open for the 104th annual meeting of the Organization of American Historians, a joint meeting with the National Council on Public History (NCPH). The OAH meeting will take place in Milwaukee, Wisconsin, from April 18 to 21, 2012 and will feature special sessions on the Civil War and digital history. For more information, visit the OAH's website and the annual meeting blog.

Symposium on the League of Nations

2012-01-10T04:00:00.000-05:00

The latest issue of the Leiden Journal of International Law features a symposium on "The League of Nations and the Construction of the Periphery." Articles include:

The 1937 International Sugar Agreement: Neo-Colonial Cuba and Economic Aspects of the League of Nations, by Michael Fakhri

To many in the West, the League of Nations was to establish political peace between nations. To the Cuban sugar-producing elite of the 1920s and 1930s, however, the League was an important socioeconomic institution used to augment many of Cuba's first modern state institutions. This article explores how and why Cuban delegates were the principals behind the 1937 International Sugar Agreement – one of the League's few operational economic treaties. This treaty sheds light onto how actors from the so-called industrial core and agricultural periphery used international law, institutions, and practice to negotiate and renegotiate their relationship with each other.

Empire des Nègres Blancs: The Hybridity of International Personality and the Abyssinia Crisis of 1935–36, by Rose Parfitt

The ‘Abyssinia Crisis’ of 1935–36 – in which one League of Nations member (imperial Ethiopia) was annexed by another (Fascist Italy) – presents one of the clearest twentieth-century illustrations of international law's ‘progress narrative’. International lawyers are encouraged to draw a salutary lesson from the crisis: namely that Ethiopia's sovereignty – and, indeed, the peace of the entire world – might have survived the 1930s if only international law had been properly enforced. Yet, the assumption upon which this lesson depends – to the effect that Ethiopia's only discursive contribution to the crisis was passively to regurgitate the relevant clauses of the Covenant – is profoundly ideological. For this assumption effects a double suppression: erasing Ethiopia's strategic construction of a hybrid, partially Abyssinian international law from the discipline's memory; and concealing from scholarly view the possibility that Ethiopia's annexation might have resulted from actions that were in accordance with, rather than in violation of, interwar international legal norms regarding sovereignty and the use of force.

Studies in the History of Tax Law

2012-01-10T00:30:00.000-05:00

Studies in the History of Tax Law, volume 5, is now out from Hart Publishing. A pdf of the Table of Contents is here. Here is a description of the work:

These are the papers from the 2010 Tax Law History Conference. The papers reflect an even wider range of topics, including problems in defining and taxing Companies from 1799 to 1965, the Window tax from a Public Health perspective, the development of the tax profession, Montesquieu and ERA Seligman, taxing charities in Australia, Charitable Purposes Exemption from Income Tax: Pitt to Pemsel 1798 – 1891 and Australian perspectives on avoiding evasion. Turning to international tax there are essays on the history of the international taxation of income from enterprise services, the Negotiation and Drafting of the 1967 United Kingdom Australia Taxation Treaty and on art 7 (3) of the OECD Model Treaty.

Hat Tip: Legal Theory Blog

Pruning

2012-01-09T16:00:00.001-05:00

This will sound heretical to the snowbound out there, but in Southern California, this is the season to prune the garden.

It’s easy to forget to cut back a garden. You live around it, and don’t always notice the overgrowth. It is only when you’ve been away, and return after a season, that the garden seems to cry out for the pruning shears. It has become shaggy and lost its shape. Neighboring plants are crowding each other out. And some things have not survived the fall.

And so, after returning to California after a semester away, I got out the clippers last weekend. Before long, the yard was full of debris. Now that it is cleared away, the basic architecture of the garden has reemerged. New plants are settling in. The birds are finding their way back.

It is the same for me with intellectual work. I spend months burrowing into a project. There doesn’t seem to be time to step back. It is only after a project is finally put to rest, when the words are on the page so firmly that I can no longer alter them, that I can finally see the horizon again.

And a time like that is always a good time to reconnect. So, dear readers, I am glad to be back.

Does the South still practice vote denial and dilution based on issues of race and ethnicity? Part I: Race/Ethnicity and the redistricting dilemma

2012-01-09T12:00:00.000-05:00

In my last blog, I ended by asking: does the South stillpracticed vote denial and dilution based on issues of race and ethnicity? In other words, do the fact- andhistorical-based justifications adopted by the Supreme Court in 1966 upholdingthe Voting Rights Act of 1965 still apply today?

The short answer is yes. Race and ethnicity still play major roles in who votes in America and inshaping the impact of those votes. And wedo find some of the most extreme cases of this effect in those territoriescovered by Section Five of the VRA. Thelong answer that explains the short answer gets very complicated very quickly,however.

Blogging the AHA: Kornbluh on Welke, "Telling Stories"

2012-01-09T03:00:00.000-05:00

The following is a guest post from Felicia Kornbluh, who kindly responded to our request for guest posts on last week's annual meeting of the American Historical Association:

Barbara Welke (image credit)
At a morning talk for the Committee on Women Historians titled "Telling Stories: A Meditation on Love, Loss, History, and Who We Are," legal historian Barbara Young Welke issued a profound challenge to scholars. As I heard it, the talk, which was structured around a series of letters Welke wrote from the depths of her grief to her 18-year-old daughter, Frances, who died a year and a half ago, called on us to stop pretending that our lives don't matter in our work. Welke wants us to be less objective in this sense, more normatively engaged. When we write about horrible things that happened to people in the past (as in the case of Welke's own work on the disabling and other effects of flammable fabrics, or mine on poor people facing benefit denials and cuts), we need to keep the rich, even tear-jerking details in view, rather than draining them out (as I've certainly tried to do) to get at legal principle, or historiographic intervention. Not that the history of legal doctrine or practice stops mattering. But it is also ok-- even urgent--to let people know that the horrible, rich details were part of what drew us to the material on the first place. I cried at the NY Municipal Archives the first time I read welfare recipients' letters to Mayor Wagner, begging for (or demanding) help. I later thought through their strategic and legally structured rhetorical strategies, the role of their urban citizenship claims in the recent literature on citizenship, etc. Can we bring all of these levels of meaning into our work? Can we be sympathetic, or enraged, or reminded of our own families, financial challenges, struggles with bureaucracy without losing professional credibility???? Let's think about it!

One more note: this was an especially challenging conversation to have in a room full of women historians (and male buddies). Can we afford to display the mother's milk of human kindness??

Read more highlights from the AHA here, at the History News Network.

The Making and Remaking of Conservatism: This Week in the Book Pages

2012-01-08T15:17:00.000-05:00

Conservatism is the theme in this week's book pages. The New Republic: The Book covers Buckley: William F. Buckley Jr. and the Rise of American Conservatism (Bloomsbury Publishing), by Carl T. Bogus. "According to Bogus," reviewer Michael Kimmage writes, "Buckley transformed American conservatism from a sleepy traditionalism, at the edge of American political culture in the 1950s, into a dynamic, almost revolutionary force. When this force remade the Republican Party, with Goldwater’s presidential run in 1964 and then with the election of Ronald Reagan in 1980, it was the American polity that was transformed."

The latest issue of the New York Review of Books weighs in on Corey Robin's The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin (here).

And in the New York Times, you'll find a review of two more books on conservatism, both from Oxford University Press: Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party: From Eisenhower to the Tea Party, by Geoffrey Kabaservice, and The Tea Party and the Remaking of Republican Conservatism, by Theda Skocpol and Vanessa Williamson. Both receive high praise from reviewer Timothy Noah. Here's a taste of the substance:

On some level, then, the Tea Party is a product of the very welfare-statism that the hard right sought to smother in 1964 and that so many Tea Partiers profess to loathe today. . . . Government supplies the leisure that makes possible fervid and angry opposition to government. The Democrats built this Rube Goldberg structure, but they couldn’t have done it without help from “modern Republicans.” In at least that narrow sense, their legacy lives on.

Also in the NYT, reviews of: The Tender Hour of Twilight: Paris in the ’50s, New York in the ’60s: A Memoir of Publishing’s Golden Age (Farrar, Straus & Giroux), by Richard Seaver, edited by Jeannette Seaver (here); two new books on Hitler's henchmen (here); and A More Perfect Heaven: How Copernicus Revolutionized the Cosmos (Walker & Company), by Dava Sobel (here).
Read more »

Weekend Round-up

2012-01-07T04:00:00.000-05:00

We are saddened to learn of the death of University of Wisconsin Law Professor Jane Larson. Larson wrote and taught in the areas of women's legal history, feminist legal theory, and property. The University of Wisconsin has posted a nice tribute to her, here.

Rest in peace, Gordon Hirabayashi, a leading figure in the legal battle against the federal government's internment of Japanese immigrants and Japanese Americans during World War II. Read more here and here.

The Chronicle of Higher Ed reports the latest on Jobs for New Ph.D.'s. in History.

Are you at the American Historical Association meeting? We'd love coverage of legal history-themed panels or other events. Email the blog if you're interested.

Mary recently wrote a post (here) on New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press, by Kermit Hall and Mel Urofsky. H-Law has now posted a review (here), by James Aucoin (University of South Alabama).

The Weekend Round-Up is a weekly feature compiled by all the Legal History bloggers.

"The Mauthausen Trial" Reviewed

2012-01-06T01:00:00.000-05:00

Ronald W. Meister, a lawyer and chairman of the board of the National Institute of Military Justice, reviews Tomaz Jardim’s The Mauthausen Trial: American Military Justice in Germany (Haravard University Press), in this week’s Washington Independent Review of Books. Meister’s review commences:

Over the course of two days in May 1947, at a rate of one execution every seven minutes, the United States Army hanged 48 men on the grounds of Landsberg Prison outside Munich. The hangings were the culmination of a swift seven-week trial in which a military court deliberated for a mere hour before finding all 61 defendants guilty of mistreating and killing prisoners at the Mauthausen concentration camp in Austria, and then sentencing 58 of them to death. Although the sentences of several defendants were commuted to life imprisonment, the Mauthausen proceedings were the largest mass execution ever conducted by the United States.

New Release: Lo Statuto di Montebuono in Sabina del 1437

2012-01-06T00:00:00.000-05:00

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Readers may be interested in the following announcement, from the Yale Law Library Rare Books Blog:

Our 15th-century manuscript of the statutes of Montebuono, Italy, is now available in a full-color facsimile edition, along with a full transcription and three scholarly studies. Lo Statuto di Montebuono in Sabina del 1437 (Rome: Viella Libreria Editrice, 2011) is available for purchase from the publisher's website. It includes an introductory essay by Mario Ascheri, the leading scholar of Italian statuti, as well as a history of medieval Montebuono by Tersilio Leggio, and a detailed study of the Montebuono statutes by legal historian Sandro Notari. In addition, Alda Spotti of the Biblioteca Nazionale Centrale di Roma provided a transcript of the Latin manuscript.

Read on here.

The More Things Change . . . A Look Back at South Carolina v. Katzenbach

2012-01-05T12:00:00.007-05:00

There is a certain symmetry to the Department of Justice’s decision to challenge the recent wave of new restrictive voter ID rules (under Section Five of the Voting Rights Act of 1965), beginning with South Carolina’s Voter ID law. If (or more likely, when) this matter comes before the Supreme Court, it will be the second time that South Carolina has been the battleground for a substantive challenge to the constitutionality of the Voting Rights Act of 1965, or VRA. The first was in South Carolina v. Katzenbach (1966). A look back at this case illuminates the issues likely to arise in the current controversy.

Let’s begin by sketching in the background.

Raoul Berger-Mark DeWolfe Howe Legal History Fellowship

2012-01-05T01:00:00.000-05:00

[We have the following announcement via H-Law.]

Harvard Law School is seeking fellows who have a J.D. degree, who have completed the required coursework for their doctorate degree, or who have recently been awarded the doctorate degree. A J.D. is preferred, but not required. We will also consider applicants who are beginning a teaching career in either law or history. The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period.

Fellows are expected to spend the majority of their time on their own research. They are also asked to help coordinate the Harvard Law School Legal History Colloquium, which meets five or six times each semester. Fellows are invited to present their own work. Fellows will be required to be in residence at law school during the academic year (September through May).

Applicants for the fellowship for 2012-13 should address a letter to Professor Bruce H. Mann at the Harvard Law School, Cambridge, MA 02318.

Applications should outline briefly the fellow's proposed project (no more than five typewritten pages) and should contain a writing sample and a curriculum vitae that gives the applicant's educational background, publications, works in progress, and other relevant experience, accompanied by official transcripts of all academic work done in college or at the graduate level. The applicant should arrange for two academic references to be sent. Applications by e-mail are preferred (the transcripts may be sent by regular mail): criley@law.harvard.edu

The deadline for applications is February 15, 2012, and announcement of the award will be made by March 15, 2012.

Additional information is here.

Legal Histories of the British Empire Conference

2012-01-04T16:00:00.000-05:00

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Law, Spaces, Cultures & Empire: Engagements & Legacies is the name of the first Legal Histories of the British Empire Conference, sponsored by National University of Singapore Faculty of Law and the University of Victoria's Faculty of Law and Centre for Asia-Pacific Initiatives, which will be held 5-7 July, 2012 Singapore. We have previously posted a call for papers. The program is now closed; no more proposals will be accepted; but registration is now open on the conference website. The program will be posted shortly.

The conference’s organizers explain:

In recent decades there has been an impressive growth of research and writing on the legal history of various former British colonies. These include settler colonies, such as those that became Australia, Canada, New Zealand and the United States, and multi-cultural territories such as those in the Caribbean, Southern and South East Asia and Africa. The result is a developing body of scholarship on a variety of legal historical topics, embodying cultural, institutional, substantive, procedural, theoretical and biographical themes, that provides a strong basis for comparative scholarship within the Empire, and so, imperial legal histories....

The Conference is designed with three purposes in mind:

As a vehicle for a wide ranging sample of current scholarship on imperial and colonial legal history - cultural, institutional, social, biographical, doctrinal, and theoretical. The Conference will bring together scholars at various stages in their careers who are working in the fields of imperial and comparative colonial legal history, to share the work that is already underway, and to encourage those with an incipient interest in these fields and others to join in scholarly endeavour and expand the field.
To produce a scholarly publication in the form of a book of essays developed from papers selected from amongst those delivered at the conference. The book will be published through a major university press, and will represent an original and innovative contribution to scholarship.
To create a permanent network of scholars in the field of imperial and comparative colonial legal history that will ensure a lasting interest in this field, provide the basis for further collaboration in the future and constitute a platform for links with scholars examining the legal dimensions of imperial and colonial rule by states other than Great Britain. This will be the enduring legacy of the Conference.

I'm told that the keynote speaker is Professor Catherine Hall of University College London and the plenary speaker is the Honorable Justice Andrew Phang of the Singapore Court of Appeal. A "Blue Ribbon Panel" consists of Professor Martin Wiener (Rice University), Professor John Weaver (McMaster University) and Professor Bridget Brereton (University of the West Indies).

In Memoriam: Honorable Robert L. Carter

2012-01-04T07:51:00.000-05:00

The Honorable Robert L. Carter, a brilliant lawyer best known as an intellectual architect of Brown v. Board of Education, an esteemed federal judge, and a mentor to generations of lawyers and law professors, has died. The New York Times obituary is here.

Barbara Babcock on Her Clara Foltz Book Tour

2012-01-04T07:00:00.000-05:00

Barbara Babcock (Stanford--Law, Emerita) has written an essay for blog readers about how she constructed a book tour to promote Woman Lawyer: The Trials of Clara Foltz (Stanford, 2011). For more information on Babcock's book about the first woman admitted to the California bar, see the Women's Legal History website

and the articles cited here. Babcock's post, entitled the "The Year of Saying “Yes,” follows.

courtesy Stanford Law School

For the last year I have been on a self-designed tour-tear all over the country selling Woman Lawyer: the Trials of Clara Foltz.

It is the story of a brilliant and courageous woman who invented the public defender, raised five children on her own, tried cases when juries were all-male and was a well-paid political orator before females could vote. This is only a sampling of her achievements, but even a compendious list would not convey the actual reach of her ambition. Foltz wanted to be a famous lawyer and law reformer, an influential thinker, a rousing movement leader, and a glamorous and socially prominent lady—while also being a good mother and striking it rich. In short, she wanted more than any nineteenth century woman could achieve.

After my year on the road, I realize that Clara Foltz was not the only one who wanted too much. I dreamed of a cross-over book—serious scholarly work accessible to everyone who reads, and I thought the combination of a compelling story and my contacts from years of teaching and practicing and joining and speaking could get her the kind of attention I sought. Not only sales, but reviews in national media, interviews on NPR, prizes and awards, negotiating the film rights and consulting on the casting were all in the cards I imagined.

None of these things has happened (yet). But I have made over 50 appearances from January 2011 when I first held the slightly hefty but still beautiful hardback book to this moment at the end of December. I have said yes to everyone who asked me to come and talk about Clara and sell books. After years of trying to learn to say no, or at least to weigh the costs and benefits, I’ve found it strangely liberating to say yes—yes to the Rotarians, the women lawyers, the history buffs, the civic associations, the public defenders and other government agencies, the law firms, schools, and faculties.

Keitner on the Forgotten History of Foreign Official Immunity

2012-01-04T00:30:00.000-05:00

Chimène I. Keitner, University of California, Hastings College of the Law, has posted The Forgotten History of Foreign Official Immunity, which is forthcoming in New York University Law Review 87 (2012). Professor Keitner presented the paper at the recent annual meeting of the American Society for Legal History on a panel chaired by David Bederman shortly before his death. She has dedicated the paper to his memory. A draft received received Honorable Mention in the 2012 AALS Scholarly Papers Competition. Here is the abstract:

The immunity of foreign officials from legal proceedings in U.S. courts has drawn significant attention from scholars, advocates, and judges in the wake of the Supreme Court’s decision in Samantar v. Yousuf, 130 S.Ct. 2278 (2010), which held that foreign official immunity is governed by the common law rather than the Foreign Sovereign Immunities Act (FSIA). The common law of foreign official immunity, which the Samantar Court did not define, operates at the intersection of international law and domestic law, and it implicates the constitutional separation of powers between the executive and judicial branches. Conflicting visions of the substance and process of common law immunity have already emerged in the wake of the Samantar opinion, and will continue to compete until the Supreme Court revisits this issue in a future case. At stake is not only the ability of suits to proceed against foreign officials, but also the relationship between the executive branch and the judiciary in matters affecting foreign affairs.

The original research presented in this Article yields two striking observations. First, a claim that the defendant acted in his official capacity did not operate as an automatic barrier to adjudication on the merits; foreign officials who were neither diplomatic officials nor heads of state were “on the same footing” as any other foreigner with respect to their “suability.” Second, the Executive believed that it did not have constitutional authority to instruct a court to dismiss a private suit on immunity grounds. Although twenty-first century advocates might make policy arguments for blanket immunity or absolute Executive discretion, such choices are not consistent with — let alone compelled by — the eighteenth-century practices and understandings recovered here.

I’m Shocked, Shocked That There Is Voter Suppression In This State

2012-01-03T16:01:00.004-05:00

Today, January 3, 2012, a Washington Post editorial noted how Virginia’s arcane, stringent and cumbersome laws governing ballot access for candidates worked to limit voter choice. That same day, the Nashville Tennessean reported, “Civil rights attorneys in Nashville and Washington, D.C., appear to be laying the groundwork for legal challenges to Tennessee's new voter identification law. . . .” “There are multiple problems with our state law," the Tennesseean quotes Nashville lawyer Gerard Stranch as saying. "It's not just that it would have a disparate effect on minorities. It's setting up a poll tax." On December 27, 2011, a New York Times editorial charged that “many Republican state lawmakers are doing everything they can . . . to prevent students from voting in the 2012 presidential election.” Meanwhile, a December 31 article from the McClatchy Newspapers reported Newt Gingrich’s charges that the “Obama administration seeks to steal elections with voter ID ruling.”

The list of mainstream media reporting or editorializing about how new election laws – passed mostly by Republican-controlled legislatures -- have the potential (and many argue, the intent) of causing wide-spread voter suppression targeting minority, elderly, poor, and young voters could go on and on. So too for Republican charges that Democrats are allowing (or, in some reports, actively promoting) voter fraud to undermine the sanctity of the vote. Rick Hasen’s Election Law Blog (an invaluable resource , for anyone interested in election law or voting rights matters) has been regularly filled with such reporting for the last couple of years. Suddenly we are awakening to the real dangers posed by what I call administrative gerrymandering: the manipulation for partisan political gain of the administrative rules, procedures, and practices by which we organize and run our elections.

As recent events show, the authority to change the ways that we administer our electoral process gives state and local officials a substantial power to shape an election’s outcome by in effect shaving or adding a few points (that is, voters) at the margins – and to do so without breaking the law. Selective voter purges, unequal distribution of voting machines based on class or party criteria, voter ID laws, and partisan administrative rulings from state election officials are but a few of many perfectly legal methods available to those controlling a state’s electoral machinery to shape the outcome of voting by dictating which of us can vote, when we vote, where we vote, and how we vote. Although such changes are largely irrelevant when victory margins are large, in close elections these votes (or non-votes) can and do define the difference between who wins and who loses.

We should have seen it coming. We had our warnings. In fact, the whole 2000 post-election crisis was one big warning of the dangers posed by partisan administration of electoral rules. The subtitle to my book on Bush v Gore – “exposing the hidden crisis of American democracy” – referenced not the un-democratic choosing of a President by five Supreme Court justices, but rather the dangers posed by administrative gerrymandering as “exposed” by these events. In a very real sense, the 2000 postelection crisis was, to use Thomas Jefferson’s famous description of the 1820 controversy over slavery, “a fire-bell in the night” – a warning of the potential for electoral manipulation by those whom we trust to run our elections – and who, I stress again, can do so without ever breaking the law.

Democracy is not a simple act. Rather, it is a complex process -- one shaped by the actions and inactions of those whom we trust to organize, run, and tally our elections. As George Washington University law professor and elections expert Spencer Overton explains in his book Stealing Democracy: The New Politics of Voter Suppression (2006):

[C]ontrary to conventional perception, American democracy is not an organic, grassroots phenomenon that mirrors society’s preferences. In reality, the will of the people is channeled by a predetermined matrix of thousands of election regulations and practices that most people accept as natural: the location of election-district boundaries, voter-registration deadlines, and the number of voting machines at a busy polling place. This structure of election rules, practices and decisions filter out certain citizens from voting and organizes the electorate. There is no “right” to vote outside of terms, conditions, hurdles and boundaries set out by [this] matrix. (pp. 13-14)

How we establish and administer this matrix of rules and procedures shapes who can vote, how they vote, and even who wins and loses. Control this matrix and you control American democratic processes. And, as Overton makes clear, although there may be no “grand conspiracy” distorting the shape and scope of our electoral matrix, as long as partisan government officials are allowed to shape its form without accountability or oversight, the result will be a circumscribed electorate and manipulated electoral procedures.

Unfortunately, once the Supreme Court issued its ruling in Bush v. Gore and called the 2000 presidential election on account of time, we ignored this “fire-bell in the night” and went back to business as usual. True, congressional committees proposed reforms that eventually became the Help America Vote Act of 2002, but on the whole, when provided the opportunity to fix what was really broken, American political leaders chose not to act. Calls for deeper and more substantive reforms were ignored, modified into irrelevancy, or trapped in a bureaucratic tangle never to see the light of day. The American political system responded with a partisan, politics-as-usual approach to the electoral crisis, generating as many new problems as the old problems they sought to fix.

Sadly, it seems that the only ones who really took the lessons of 2000 to heart were those who saw in them the opportunity for partisan political gain – and our current discovery of the evils of administrative gerrymandering is the result.

Two New Seminars from the Institute for Constitutional History

2012-01-03T02:00:00.000-05:00

The Institute for Constitutional History has announced two Robert H. Smith seminars for advanced graduate students and junior faculty. The first is “The Revolutionary Origins of American Constitutionalism.” According to the ICH:

This seminar will explore the origins of American constitutionalism and law in the Anglo-American past and the arguments and achievements of the revolutionary period (roughly 1764-1789). Its six sessions will examine the ideology and organizational forms of the resistance to Britain, look closely at the first state constitutions (the world’s first written constitutions) and the issues they raised and to some extent resolved, then turn to the Articles of Confederation, the Federal Convention, the Constitution, state ratification debates, and the contributions of the First Federal Congress in fleshing out the new constitutional system. Although the assigned readings will include prominent secondary works, the seminar will focus on critical documents of the time including the resolutions of the Sons of Liberty (1766), state non-importation associations (1767-70), and the first and second Continental Congresses (especially between 1774 and 1776); Thomas Paine’s Common Sense and John Adams’s “Thoughts on Government” (1776); the first state constitutions, including those of Virginia, Pennsylvania, New York, and Massachusetts; the Articles of Confederation; Madison’s “Notes of Debates” in the Federal Convention; the Constitution of the United States; selections from the state ratification debates; the Judiciary Act of 1789, and the twelve amendments to the Constitution that Congress recommended in September 1789 (of which ten were enacted and eventually became known as the “Bill of Rights”).

Instructors are Pauline Maier, the William Rand Kenan, Jr., Professor of American History at the Massachusetts Institute of Technology, and R. B. Bernstein, Distinguished Adjunct Professor of Law New York Law School.

The seminar will meet on Friday afternoons, 3:00–5:00 p.m., February 17 and 24, March 2, 9, 16 and 23, at the New-York Historical Society, 170 Central Park West, New York City.

The second Smith Seminar is "Equal Justice Under Law: The Enduring Legacy of The Warren Court, 1953-1969.” The ICH explains:

Library of Congress

This seminar will examine the Warren Court of the 1950s and 1960s, stressing politics, doctrine, and the strong judicial personalities of the period. Topics covered will include the Court’s transformative role in civil rights and civil liberties, the rights of the accused, the electoral process and access to the courts. The seminar will explore both the politics of the Warren Court and the Warren Court’s impact on the politics of the nation.

The instructor is Stephen Wermiel, a Fellow in Law and Government at American University Washington College of Law. “An expert on the Supreme Court, he is co-author of the critically acclaimed biography, Justice Brennan: Liberal Champion and has written numerous articles about the Court. Before launching a twenty-year career teaching constitutional law and seminars on the Supreme Court, Professor Wermiel was the Supreme Court reporter for the Wall Street Journal for twelve years.”

The seminar will meet Thursday evenings, 6:00–8:00 p.m., February 9 and 23, March 1, 8, 22, and 29 in Room 415 of Burns Hall at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

The application for both seminars is as follows:

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until January 15, 2012. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

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

Update: Syllabi for previous seminars appear on the ICH's page on the NYHS's website, more particularly, here.

York Church Court Records Online

2012-01-03T00:30:00.000-05:00

According to BBC News, the York Cause Papers, which “record the proceedings of the ecclesiastical courts of York from 1300 to 1858,” have now been digitized and are available on line. “The papers give detailed accounts of arguments ranging from church taxes on liquorice, roses and pigeon dung to rows over marriage, wills and inheritance.”

Klarman on Pauline Meier's Ratification: The People Debate the Constitution

2012-01-02T05:00:00.000-05:00

A review of Pauline Maier's book, Ratification (Simon & Schuster, 2010) by Michael J. Klarman (Harvard-Law) is available here. The review appears in the December, 2011 issue of the Harvard Law Review. Here's an excerpt:

Pauline Maier’s Ratification is one of the best books ever written about the American Founding. The publication of twenty-one volumes of the Documentary History of the Ratification of the American Constitution has enabled her to tell the story of ratification in greater detail than one might have thought possible, and Maier is a masterful storyteller.

courtesy of MIT

You'll find an earlier post noting Professor Maier's (MIT--history) discussion of her work on C-Span's BookTV here. Professor Maier will receive the 2012 Littleton-Griswold Prize in American Law and Society for Ratification at the 126th annual meeting of American Historical Association in Chicago later this week (according to a November, 2011 announcement).

Looking at the History of Voting Rights and Election Laws

2012-01-01T18:44:00.003-05:00

I’d like to thank Mary, Karen, Dan, and Tomiko for the opportunity to guest-blog this month. When Mary first asked me if I wanted to guest-blog, I thought about possible topics that I might talk about. Events in the last few weeks have made my choice an easy one. When the Department of Justice refused to pre-clear South Carolina’s voter ID law, it capped months of significant legal and political change in the realm of voting rights and election law matters. (Under Section Five of the Voting Rights Act of 1965, South Carolina is one of a number of states that have to submit ANY changes in voting laws, rules or procedures for certification, whether by the Justice Department or by a three-judge panel of the U.S. District Court for the District of Columbia, that the legal change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” More on this in a future blog.)

From the Texas Redistricting case on SCOTUS’s January 9 docket to Florida’s ongoing litigation over its election law “reforms” to the Montana Supreme Court’s rejection of Citizen United’s holding last Friday that independent spending by corporations do NOT corrupt the electoral process (the Montana court’s response is that, as a factual matter, such spending has been corrupting in the past), election law and voting rights matters are in the news. These examples are but the tip of a very large iceberg – and one that I have written about extensively during the last decade.

One recurring theme in my writing on election law and voting rights is the dysfunction of the American electoral system. There are structural flaws in the mechanics of how we organize, regulate, and run elections in this country – flaws that undermine the democratic process. Representative democracy demands that the will of the people be communicated to those who run our government, or we don’t have real democracy. For better or worse, voting is the method that we have chosen for determining this will. When the voting process breaks down, democracy itself is at risk.

Our electoral system is broken. It has been broken for a long time. Congress, the President, and the Supreme Court have been working at correcting these flaws for decades – in fact, for most of the twentieth century and all of the twenty-first century to date. Yet despite these efforts (and, sometimes, because of these efforts) serious problems remain. In fact, as recent events show, in many ways things have been getting worse over time.

So my goal this month is to do the historian’s job and try to give context to these current debates over election rules, procedures, and laws, and the right to vote.

Welcome, Charles Zelden!

2012-01-01T12:00:00.000-05:00

image credit

We are excited to welcome Charles Zelden to the blog for the month of January. Professor Zelden teaches legal and constitutional history at Nova Southeastern University. His research focuses on civil rights, election law, and the American South. He is the author, most recently, of The Supreme Court and Elections (2009). He has also contributed two volumes to the University Press of Kansas Landmark Law Cases and American Society series, one on Bush v. Gore and the other on the Battle for the Black Ballot. And, of course, he is much beloved for his dedicated service to H-Law. Welcome, Charles Zelden!

This Week in the Book Pages

2012-01-01T01:29:00.003-05:00

Elisabeth Young-Bruehl (image credit)

A highlight from this week's book pages is the Chronicle of Higher Ed's review of Childism: Confronting Prejudice Against Children, by the late Elisabeth Young-Bruehl. The book will be published posthumously by Yale University Press. Here's a taste, from reviewer Peter Monaghan:

More than a study of child abuse, it excavates the psychological foundations of destructive attitudes toward children. Scholars are praising its erudition, reach, and impassioned but carefully reasoned advocacy for change.

Young-Bruehl assails the idea "that children are dangerous and burdensome and that childhood is a time when discipline is the paramount adult responsibility." She calls for an end to antichild policies and behaviors, from the monumental to the mundane—child imprisonment, inadequate school financing, tolerance of corporal punishment within families—that assume adults have "absolute" authority over children's physical, emotional, and psychological well-being.

Follow the link for more on the book and the remarkable author.

This week in the New York Times: A review of Haiti: The Aftershocks of History (Metropolitan Books/Henry Holt & Company), by Laurent Dubois. Here's a taste:

For a gripping narrative of [the Haitian Revolution], there are few better places to turn than “Avengers of the New World: The Story of the Haitian Revolution,” by Laurent Dubois, a Duke University scholar of the French Caribbean. Now Dubois has brought Haiti’s story up to the present in an equally well-written new book, “Haiti: The Aftershocks of History,” which is enriched by his careful attention to what Haitian intellectuals have had to say about their country over the last two centuries.

The Times also covers, here, the dramatically titled Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty (Viking), by John M. Barry. Historian Joyce E. Chaplin reviews.

Besides offering another take on Roger Williams (here), the Wall Street Journal covers two new biographies: Saladin (Harvard University Press), by Anne-Marie Eddé (a portrait of the famous twelfth century Muslim ruler) (here), and Leon Trotsky: A Revolutionary's Life (Yale University Press), by Joshua Rubenstein (here).

"In the spirit of the holidays," the New Republic: The Book has re-run a selection of reviews from earlier this year, including the amusing "Macho Pointy-Head," a review of Theodore Roosevelt's History of the United States: His Own Words.

Happy New Year!

Thanks to Felicia Kornbluh

2011-12-31T23:30:00.000-05:00

We are so grateful to Felicia Kornbluh for joining us for the month of December, and sorry to see her go. She has commented on the stature of Feminist Legal History (here and here), pondered the legacies of "legal history from below," reflected on teaching college students about the War on Terror (here and here), and kept us abreast of the "politics of kale." Thank you, Felicia!

Protesters & Police Powers

2011-12-31T23:01:00.000-05:00

The editors of Time chose to celebrate "the protester" as the magazine's "Person of the Year" for 2011. The editors explained their unconventional choice (last year Time named Facebook's Mark Zuckerberg Person of the Year) this way:

No one could have known that when a Tunisian fruit vendor set himself on fire in a public square, it would incite protests that would topple dictators and start a global wave of dissent. In 2011, protesters didn't just voice their complaints; they changed the world.

Read more about Time's selection here. One can find similar year-end reminiscences celebrating the global protest movements in numerous other news magazines and newspapers.

Consider how those pieces compare to the much less sanguine and much more substantive analysis of the recent protest movements offered by Alasdair Roberts (Suffolk--Law & Public Policy) in the Boston Review. Roberts argues that Occupy Wall Street has been "contained" through use of the police power. He also analyzes American protest movements' encounters with local police forces from a historical perspective. Here's an excerpt:

Throughout Europe, this is the season of protest. There are massive, angry demonstrations—tens of thousands in the streets of a dozen capitals laying siege to finance ministries and parliaments, shutting down roads and rail, and seizing public spaces. ...

Americans have reasons to be outraged too. But American protests have been muted by comparison. ... After decades of increasingly sophisticated policing and changing notions about the boundaries of legitimate protest, public demonstration in the United States today is not only tamer than in Europe, but perhaps also tamer than at any time in the nation’s history.

For a challenge to the view that local police have "shut down" OWS, see this Wash. Post opinion piece by Gina Glantz. OWS in fact has proliferated, the author argues, notwithstanding its supposed "containment" by police under color of health, safety and welfare laws.

History in the News

2011-12-29T07:00:00.000-05:00

Here's a roundup and a bit of commentary about recent history-related stories in the news.

Archivists are busy documenting the rise and evolution of Occupy Wall Street. According to the Wash. Post, over "a half-dozen major museums and organizations from the Smithsonian Institution to the New York Historical Society" are engaged in a "collecting frenzy" of anything Occupy-related, including tweets. Perhaps it should come as no surprise that in this fraught political environment, the archiving effort has precipitated controversy. Members of OWS object to the presumption that mainstream organizations such as the Smithsonian and the National Museum of American History can and should interpret Occupy's history. OWS members want to tell their own story; in an effort to "own the OWS narrative" members have begun their own archival collection. A different controversy emanates from critics who claim that the rush to document OWS by mainstream organizations--particularly the Smithsonian--reflects a liberal bias. "It looks like taxpayer-funded hoarding, as opposed to rigorous historical collecting," argues Tom Fitton of Judicial Watch. In response to such criticism, Smithsonian officials point out that archivists there also have collected materials related to conservative causes, most notably, the Tea Party Movement. This response may not appease critics on the Right. It's not clear that the Smithsonian's collection of Tea Party-related material occurred as speedily as its OWS collection, or that there was as much interest in the Tea Party as apparently exists in OWS. Read all about the archiving efforts and the controversies surrounding them here, here, here, and here.

Politics, idiosyncratic subject matter interests, and resource limitations all can influence whose history is preserved, remembered, and disseminated. It's worth noting, however, that soon after its advent in March of 2010, the Tea Party Movement proved of great interest to prominent scholars and researchers. For instance, the movement is the subject of a book published in September of 2010 by the distinguished historian, Jill Lepore. In The Whites of Their Eyes: The Tea Party's Revolution and the Battle Over American History, Lepore interrogates the movement's historical claims about the Founding and finds much of the party's rhetoric inaccurate or oversimplified. Another take on the Tea Party is offered by political scientists Theda Skocpol and Vanessa Williamson in The Tea Party and the Remaking of American Conservatism, to be published in January of 2012. This work reveals tensions between Tea Party members' professed anti-government ideology and their support for popular governmental programs such as Social Security and Medicare. These books, among other recently-published scholarship noted on this blog here (Corey Robin's Reactionary Mind), here (JAH Roundtable on Conservatism), and here (Mark Tushnet's Review of Teles, Rise of the Conservative Legal Movement), just to cite a few examples, suggest that conservative causes are popular subjects of scholarly inquiry and of immense interest to the literate public. Knowledgeable archivists at the Smithsonian and elsewhere presumably will, of necessity, and certainly should give these social and legal movements adequate attention.

The November, 2011 edition of Outlook, the newsletter of the Organization of American Historians, reported on the Executive Board's response to a call from the Office of Human Research Protections, a division of the U.S. Department of Health and Human Services, for comments on the "Common Rule," which mandates Institutional Review Board oversight of research by recipients of federal funding. The Board unanimously recommended that "the work of historians, especially oral historians, should be exempt from the purview of institutional review boards." Find the OAH statement here.

The postwar civil rights movement continues to produce newsworthy items. One recent story concerned civil rights-era cold cases. One such case involves the mysterious deaths of Florida NAACP official Harry T. Moore and his wife, Harriette Moore. Harry Moore's investigations of lynchings and his outspoken criticism of local law enforcement made him a target of white supremacists. Moore was murdered on Christmas day in 1951-- [n]early 12 years before Medgar Evers was fatally shot, 14 years before Malcolm X was slain and 17 years before Martin Luther King Jr. was assassinated. Read about the case and one of the nation's earliest martyrs for the cause of civil rights here; also see this related photo gallery.

The story of Harry Moore's activism and brutal murder is told by Ben Green in Before His Time: The Untold Story of Harry T. Moore, America's First Civil Rights Martyr. For more on Florida's history of violent white resistance to civil rights activism, see Emancipation Betrayed: The Hidden History of Black Organizing and White Violence in Florida from Reconstruction to the Bloody Election of 1920 by Paul Ortiz.

In an opinion that the N.Y. Times' Adam Liptak called "an extraordinary about-face," the U.S. Court of Appeals for the Eleventh Circuit reversed course in an employment discrimination case in which several veterans of the civil rights movement submitted an amicus curiae brief. The most arresting facts in the case turned on a single word: "boy." On several occasions, black male plaintiffs alleged, the white manager of a Tyson Foods operation in Gadsen, Alabama called black male employees "boy," indicating racial animus. A jury agreed with plaintiffs' view of the case, but the appeals court overruled the jury's verdict. In a 2005 opinion the Eleventh Circuit explained that the use of "boy" without a modifier (e.g. black boy) did not constitute evidence of discrimination. The U.S. Supreme Court reversed the appeals court in a unanimous 2006 opinion. "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign," wrote the Court in a per curiam opinion. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage."

This past month, after years of additional litigation, the Eleventh Circuit finally issued an opinion consistent with the Supreme Court's 2006 decision. The about-face followed "unflattering news coverage," the possibility that the full Eleventh Circuit would "rebuke" the panel, and the filing of the amicus brief by prominent civil rights leaders, including Hon. Andrew Young and Rev. Fred Shuttlesworth. The brief argued that history, custom, social context and precedent all indicate that the word "boy," when directed by whites to black men, presumptively is racially derogatory. It cited works of history and literature as well as ephemera from the civil rights era, most notably the famous "I Am A Man" posters donned by many civil rights protesters. For more on the cultural significance of these posters, see Steve Estes's book, "I am a Man: Race, Manhood, and the Civil Rights Movement."

Peter Birkenhead's critique of Southern plantation tours, "Why We Still Can't Talk about Slavery," published on Salon.com, is well worth a read. On the tours, he claims, "Civil War culture is presented as 'authentic.' They just leave out the slavery part." Here's an excerpt:

Our guide, in a tone equal parts admiring and envious, devoted 90 minutes to the armoires, linens and chamber pots of the home, but almost no time to the people who built, creased and cleaned them. The words “slave” and “slavery” were never mentioned.

Birkenhead's provocative article poses big and important questions about how citizens choose to remember a painful past that still is relevant. His wide-ranging commentary moves from a discussion of slavery to a consideration of the novel and motion picture, The Help, the Holocaust, and the Tea Party, among other matters.

Mulberry Row, courtesy of Thomas Jefferson Foundation

Birkenhead's trenchant commentary brings to mind an important project underway at Monticello: the restoration of Mulberry Row, location of some of the slave quarters on President Thomas Jefferson's plantation. The restoration will make the experiences of slaves more prominent in visitors' tours of Monticello. Susan Stein, Senior Curator & Vice President for Museum Programs at Monticello, explains in a recent article: “We don’t shy away from slavery, we talk about slavery because we know that it’s fundamentally important to understanding Jefferson and understanding America.” For more on the vast restoration project, see "Bringing Back Mulberry Row," a blog post by Stein.

Heen on Engendering Life Insurance

2011-12-29T01:30:00.000-05:00

Mary L. Heen, University of Richmond School of Law, has posted From Coverture to Contract: Engendering Insurance on Lives, which appeared in the Yale Journal of Law & Feminism 23 (2011):335. Here is the abstract:

In the 1840s, state legislatures began modifying the law of marital status to ease the economic distress of widows and children at the family breadwinner's death. Insurance-related exceptions to the common law doctrine of "marital unity" under coverture permitted married women to enter into insurance contracts and protected life insurance proceeds from their husbands' creditors.

These early insurance-related statutory exceptions to coverture introduced an important theoretical question that persisted for the rest of the nineteenth century - and into the next - as broader legal and social reforms took hold. How could equality of contract for married women be reconciled with the traditional dependencies of the home? Equality of contract also introduced the practical economic problem of how the lives of women could be valued apart from their husbands when the law otherwise enforced their economic dependency.

The theoretical and practical issues were resolved for life insurance and annuity contracts, the Article argues, by an increased emphasis on "natural" differences between men and women when those differences comported with traditional gender status hierarchies and dependencies. Gender-distinct mortality tables and higher rates for coverage of women first appeared in annuity contracts used to fund lifetime financial support independent of or as a substitute for marital rights. Gender-merged tables and unisex rates generally prevailed, however, in life insurance contracts used to protect wives and children from the family breadwinner's death, a more traditional pattern of household dependency. Gender-distinct rates thus tempered, in both symbolic and practical/economic terms, the equality of contract recognized by the statutory exceptions to coverture. The selective adoption of gender-distinct insurance rates during the first wave of woman's rights activism illustrates the role played by marketplace contracts in reinforcing the traditional status relationships and dependencies of the home.

Fleszar reviews Abruzzo, "Polemical Pain"

2011-12-28T05:00:00.000-05:00

Via H-Law, we have a review of Polemical Pain: Slavery, Cruelty, and the Rise of Humanitarianism (Johns Hopkins University Press), by Margaret Abruzzo (University of Alabama). According to reviewer Mark J. Fleszar (Georgia State University), the book "recasts the otherwise familiar antebellum debates over slavery as part of a dialectic struggle to define the very meaning of humaneness itself in an era searching for 'moral clarity.'" Unlike the "many recent studies that focus on either proslavery or antislavery in isolation," Fleszar notes, "the present work focuses on national rhetoric and demonstrates the ways in which 'new ideas about humaneness and cruelty pressed Americans to rethink the institution of slavery.'"

After providing useful chapter summaries, Fleszar concludes that "[r]eaders will find much to ponder, and perhaps much to quarrel with, throughout Abruzzo's text." Possible points of controversy include Abruzzo's "conception of the sectional controversy" and her "surprising lack of discussion about the law regarding humaneness." Overall, however, the book is "well researched and impressively argued." In Fleszar's view, it "greatly advances our knowledge about the national quarrel about slavery through the language of humanitarianism."

The full review is here.

Dinan reviews Zimmerman, Horizontal Federalism

2011-12-27T09:00:00.000-05:00

Our friends at H-Law have posted a review of Joseph Francis Zimmerman, Horizontal Federalism: Interstate Relations (Albany State University of New York Press). According to reviewer John Dinan (Department of Political Science, Wake Forest University), the book provides a "comprehensive and detailed analysis of a relatively neglected aspect of the field of intergovernmental relations." Some "chapters examin[e] specific constitutional clauses," such as the interstate compact clause and the privileges and immunities clause. Others focus on "particular problems of governance" -- e.g., "interstate trade barriers, economic competition, and tax revenue competition."

Dinan finds the book especially useful for "situating . . . key Supreme Court rulings in historical and analytical context, examining many other less familiar rulings, and exploring the many instances of interstate conflict and cooperation that have not generated judicial rulings but have nevertheless figured prominently in the resolution of policy questions throughout American history." Read on here.