Garrett on TVA v. Hill

Elizabeth Garrett, USC Law School, has posted on bepress The Story of TVA v. Hill: Congress Has the Last Word, which is forthcoming in Eskridge, Frickey & Garrett, eds., Statutory Interpretation Stories (Foundation Press, 2010). Here’s the abstract:

TVA v. Hill, often noted for its importance in shaping environmental law, is also a key case in statutory interpretation law. The case involves the conflict between finishing the Tellico Dam and Reservoir, a project of the Tennessee Valley Authority that many characterized as pork barrel spending, and protecting the habitat of the rare snail darter fish. Although the Supreme Court’s decision halted construction of the nearly finished dam, Congress subsequently passed legislation ordering completion of the reservoir project. Drawing on key legislative materials and judicial documents, Professor Garrett shows how this case illuminates the interactions among the three branches of government on a question of statutory interpretation. Participants in all branches of government were keenly aware of the involvement of the other governmental actors and made their decisions in light of expected reactions by others. This chapter traces the Tennessee Valley Authority’s decision to build the Tellico Dam and the years of congressional attention to the project through the annual appropriations process; details the litigation brought to stop the dam by a law professor and his students; and analyzes legislative reactions to the Supreme Court decision interpreting the Endangered Species Act to protect the snail darter’s habitat. The story of TVA v. Hill illustrates that, despite internal rules discouraging appropriations riders and the judicial canon disfavoring such provisions, Congress can achieve its purposes by passing a clearly worded provision within the text of annual appropriations bills.

Image credit.

CFP: Grad Student Conference on Biopolitics Across Borders

The Department of History
COLUMBIA UNIVERSITY
Biopolitics Across Borders: Ideas and Practices
A Graduate Student Conference
April 9, 2010

Proposal deadline: January 18, 2010

Graduate students are invited to submit paper proposals for the annual graduate student conference in international and global history at the Columbia University Department of History, to take place in New York City on April 9th, 2010.

What happens when human life itself becomes an international problem? The questions of defining and regulating biological life have confronted every society — and with the rapid growth of biomedical technologies and techniques of ecological and environmental intervention, they are especially urgent today. What, then, have been the ideas and practices of transnational biopolitics, and how can we periodize them? How have the challenges of managing and optimizing human life contributed to international conflict and cooperation? How have challenges to transnational biopolitics registered at an individual and community level?

Possible paper topics include but are not limited to:
- colonial and anti-colonial biopolitics
- gender in biopolitics
- biopolitical constructions of race and racism
- eugenic doctrines and practices
- international health
- international scientific communities
- transnational population movement and management
- effects of biopolitical ideas on international relations
- human rights ideas and law
- biopolitics and the human environment
- impact of religious and moral thought on biopolitics
- human and non-human actors in transnational biopolitics
- contested concepts of the human

Specialists from Columbia University will provide commentary.

We welcome submissions from all time periods - ancient, medieval, early modern, and modern - and geographic regions. We encourage interdisciplinary research, and although proposals with a historical perspective are particularly welcome, we will also consider contributions from fields including anthropology, economics, literary studies, philosophy, political science and sociology.

Limited funding for travel and assistance in arranging accommodation may be available.

Graduate students interested in participating should submit a paper abstract of no more than 300 words and a recent CV as email attachments (word or PDF format preferred) by January 18, 2010 to Trey Straussberger, at the following address: jfs2129@columbia.edu.

Isabel Gabel
Organizing Committee, Graduate Student Conference in International History Columbia University

Hat tip: H-Diplo.

Devins on How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars

How 'Planned Parenthood v. Casey' (Pretty Much) Settled the Abortion Wars is a new article by Neal Devins, William & Mary Law School. It appears in the Yale Law Journal, Vol. 118, p. 1318, 2009. Here's the abstract:

More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this essay, I will debunk those claims. First, I will explain how Casey’s approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey - either by restoring the trimester test or by overruling Roe altogether. Third (and most important), I will explain how it is that Casey stabilized state abortion politics. The national consensus favoring limited abortion rights remains intact. Correspondingly, the template of laws approved by the Supreme Court in Casey were politically popular at the time of Casey and remain politically popular today. Indeed, since Pennsylvania has always been one of the most restrictive states when it comes to abortion regulation, very few states are interested in pushing the boundaries of what Casey allows. And while a
handful of outlier states have pushed the boundaries of what Casey allows, these states (which account for a quite small percentage of abortions) have largely worked within parameters set by the Court in Casey. Perhaps most telling, neither the confirmation of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation has significantly impacted state antiabortion efforts. For all these reasons, pro-choice and pro-life interests would be better served shifting their energies away from legalistic fights over abortion regulation and toward shaping the hearts and minds of the women who may seek abortions and the doctors and clinics that may provide abortion services.

Tamanaha's "Beyond the Formalist-Realist Divide"

Brian Z. Tamanaha, Washington University School of Law, has just published Beyond the Formalist-Realist Divide: The Role of Politics in Judging, with the Princeton University Press. We’ve noted several essays advancing the arguments developed in the book here and here and here. The Press's description is as follows:

According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

Blurbs Larry Solum:

Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!

And Sanford V. Levinson writes:

Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative.

Cooper's Wilson: The Wilson Center Book Launch

The United States Studies Program of the Woodrow Wilson International Center for Scholars announces a book launch for Woodrow Wilson: A Biography, with the author, John Milton Cooper, Jr., History, University of Wisconsin and the commentators David S. Patterson, the former Chief Editor of the Foreign Relations of the United States Series, and Leo P. Ribuffo, History, George Washington University. The launch will take place on Tuesday, November 10, from 3-5 p.m., with a reception to follow. It will be held in the 5th Floor Conference Room, Woodrow Wilson Center, 1300 Pennsylvania Avenue N.W., Washington, DC. It is a free public event, but acceptances are required to usstudies@wilsoncenter.org.

Larson on Rethinking the Right of Publicity Through the Leopold Case

Murder Will Out: Rethinking the Right of Publicity Through One Classic Case has just been posted by Edward Larson, Pepperdine University School of Law. It is forthcoming in the Rutgers Law Review (2009). Here's the abstract:

In this forthcoming article, the author uses the protracted legal battles over the right of publicity stemming from the lasting celebrity created by the so-called “crime of the century” to propose a legal test for applying the right of publicity generally. These legal battles were fought during the 1960s over the right of celebrity slayer Nathan Leopold to control the use of his name and personality in a novel, movie, and stage play. After conflicting lower court decisions that had a chilling effect on writers and publishers, the case was eventually decided against Leopold. The author agrees with this result but argues that, because there has been a tendency to decide such disputes on a case-by-case basis, similar uncertainty continues to arise in analogous cases. He proposes a clear test, easily understood by both creators and users of celebrity personality, which would balance the interests of the parties and bring added predictability to this area of the law.

Image: Nathan F. Leopold, Jr.

Kellogg on Holmes on Judicial Restraint

Frederic R. Kellogg, University of Edinburgh Law School, has posted Holmes, Common Law Theory and Judicial Restraint, which originally appeared in John Marshall Law Review 36 (2003): 457. Here is the abstract:

Judicial restraint is a subject properly bound with the interpretation, and hence the definition, of law. The nature and contours of what judges interpret dictate what is appropriate for them to do. Supreme Court Justice Oliver Wendell Holmes, Jr., who was a scholar and a philosopher before a judge, espoused a pronounced form of judicial restraint in constitutional law. In form and explanation, Holmes' judicial self-restraint is unlike versions found in recent literature. Rooted in a theory of the common law and associated with insights common among early American pragmatic philosophers, its most remarkable aspect is a radical form of nonintervention, not mere moderation. To be properly understood, it must be examined in light of a distinctive concept of law.

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Weekend book notes

Borrowing from Ralph Luker this weekend:

Carlin Romano, "Perspectives on the fall of the Berlin Wall," LA Times, 8 November, reviews Stephen Kotkin's Uncivil Society: 1989 and the Implosion of the Communist Establishment, Michael Meyer's The Year That Changed the World: The Untold Story Behind the Fall of the Berlin Wall, Constantine Pleshakov's There Is No Freedom Without Bread!: 1989 and the Civil War That Brought Down Communism, and Jeffrey A. Engel, ed., The Fall of the Berlin Wall: The Revolutionary Legacy of 1989.

Ted Widmer, "Electoral excitement, all over again," Washington Post, 8 November, reviews Dan Balz's and Haynes Johnson's The Battle for America: The Story of an Extraordinary Election.

Gregory Cowles, "Stray Questions for: Woody Holton," Paper Cuts, 6 November, interviews the University of Richmond historian, whose new book on Abigail Adams appeared this week.

Jenna Weissman Joselit, "Founding Father," Tablet, 5 November, reviews Bruce Feiler's America's Prophet: Moses and the American Story.

Melanie Kirkpatrick, "China's Mystery Lady," WSJ, 3 November, reviews Hannah Pakula's The Last Empress: Madame Chiang Kai-shek and the Birth of Modern China.

Tariq Ali, "The life and death of Trotsky," Guardian, 31 October, reviews Bertrand M. Patenaude's Stalin's Nemesis: The Exile and Murder of Leon Trotsky and Robert Service's Trotsky: A Biography.

Harold Bloom, "The Critic's Critic," NYT, 5 November, reviews David Nokes's Samuel Johnson: A Life.

Wefing on Richard J. Hughes

Just published by the Rutgers University Press is The Life and Times of Richard J. Hughes, by John B. Wefing, Seton Hall University School of Law. According to the Press, the book

explores the influential public service of this two-term New Jersey governor. He was the only person in New Jersey history to serve as both governor and chief justice of the New Jersey Supreme Court.

This biography illuminates the governor’s accomplishments between 1962 and 1970, including the creation of the Hackensack Meadowlands Commission, formation of the county college system, establishment of stringent antipollution laws, design of the public defender system, and the adoption of a New Jersey sales tax, as well as his pivotal role during the Newark riots. As chief justice, Hughes faced difficult issues—school funding, low and moderate income housing needs, freedom of speech, and his decision in the right-to-die case involving Karen Ann Quinlan. With a career characterized by liberal activism, Hughes also contributed nationally and internationally, from serving as host of the 1964 Democratic National Convention to monitoring elections in South Vietnam.

John B. Wefing’s research includes interviews with prominent politicians and leaders who worked with Hughes at various points in his career. The result is a rich story of a public servant who possessed a true ability to work with members of both political parties and played a significant role in shaping modern New Jersey.

Robert Williams, Distinguished Professor of Law, Rutgers University School of Law, Camden, blurbs, "This is a must for those interested in New Jersey. It is not just about Hughes, but also about New Jersey politics and society in a very important period."

Hat tip: Ron Collins

Goodfriend on Baer, Trial of Frederick Eberle

H-SHEAR has published Ethnicity and Language in the Early Republic, a review by Joyce Goodfriend, University of Denver, of Friederike Baer, The Trial of Frederick Eberle: Language, Patriotism and Citizenship in Philadelphia's German Community, 1790 to 1830 (New York University Press, 2008). The review commences:

This small book tackles a very large subject, nothing less than what it meant to be an American in the early Republic. It does so through a minute examination of a language dispute in Philadelphia’s German Lutheran Church that spilled over into the courtroom. If initially one has doubts whether such an obscure congregational matter could lend itself to an exploration of the crucial question of national identity, Friederike Baer’s incisive analysis of the episode and its larger significance sets them to rest. Thoroughly in command of the details of the escalating conflict that embroiled the local German community for several decades, she marshals a surprisingly rich cache of evidence to elucidate the social composition and political leanings of the competing parties; differentiate the positions of clergy, lay leaders, and rank-and-file church members; and craft illuminating biographies of key figures in the drama.

More.

Hat tip: H-Law

Brandeis at the National Archives

The National Archives, in conjunction with the Freedom Forum’s First Amendment Center, will be hosting a panel, Supreme Court Justice Louis D. Brandeis, the Law and the 21st Century, to be held at the Archives’s William G. McGowan Theater, 7th Street and Constitution Avenue, N.W., Washington, D.C., on Thursday, November 19, at 7 p.m.

According to the announcement:

As a Supreme Court justice (1916–1939), Louis D. Brandeis developed the modern jurisprudence of free speech and laid the basis for a constitutionally protected right to privacy. He helped draft the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission (FTC). Melvin Urofsky, author of Louis D. Brandeis: A Life, and a distinguished panel discuss Brandeis’s story and his continuing effect on American society. Adam Liptak, Supreme Court correspondent for the New York Times, will moderate. Panelists include Jon Leibowitz, chairman of the FTC; Thomas L. Ambro, third circuit judge, U.S. Court of Appeals; and Maeva Marcus, director of the Graduate Institute for Constitutional History.

A book signing of Louis D. Brandeis: A Life will follow the program.

Hirtle, et al., on Copyright and Cultural Institutions

Peter B. Hirtle, Cornell University Library, Emily Hudson University of Melbourne Law School, and Andrew T. Kenyon, University of Melbourne Law School have posted Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums ( Cornell University Library Press) on SSRN and here. Here is the abstract:

Digital communications technologies have led to fundamental changes in the ways that cultural institutions fulfil their public missions of access, preservation, research, and education. Institutions are developing publicly-accessible websites in which users can visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. "Copyright and Digitization" aims to assist understanding and compliance with copyright law across libraries, archives, and museums. It discusses the exclusive rights of the copyright owner, the major exemptions used by cultural heritage institutions, and stresses the importance of "risk assessment" when conducting any digitization project. It also includes two cases studies, examining digitizing oral histories and student work.

Hat tip: Legal Theory Blog

The Law Are an Ass

Minor Myers, Brooklyn Law School, has posted Supreme Court Usage and the Making of an 'Is' It originally appeared in the Green Bag, 2d ser. 11 (Summer 2008): 457. Here's the abstract:

This survey examines use of the phrases “United States is” and “United States are” in opinions of the United States Supreme Court from 1790 to 1919. The familiar claim, popularized by Shelby Foote in the Ken Burns Civil War documentary, is that the Civil War marked a shift in usage from plural to singular. This survey demonstrates that in the Supreme Court this account of the timing of the change is not accurate. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely.

Here are some responses by well-informed Green Bag readers.

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Morag-Levine 's Long View on Agency Statutory Interpretation

Noga Morag-Levine, Michigan State University College of Law, has posted Agency Statutory Interpretation and the Rule of Common Law, which is forthcoming in Michigan State Law Review (2009). Here is the abstract:

American administrative theory and law have long treated as an axiom the notion that agencies are subordinate to the statutes that govern their mandates, and that statutory interpretation is central to the implementation of these mandates. And yet, as recent discussions among administrative law scholars have made evident, statutory interpretation is frequently a poor descriptor of administrative practices that more closely resemble direct policy making. This article argues that the explanation for this dissonance is to be found in the process through which British and later American administrative law came to construct the mandate of agencies through the language of statutory interpretation. Central to this process were long-standing divisions in England over the compatibility of continental-styled royal law-making prerogative with British constitutional principles. The victory of Parliament and the common lawyers at the end of the 17th century formally deprived the executive of prerogative authority in domestic matters, subordinating instead the scope of executive regulatory authority to the terms of statutory mandates. But this formula soon served to disguise unresolved disagreements on whether and when administrators were entitled to make, rather than strictly interpret law. Following England’s lead, the American administrative state evolved over the course of the 19th century through protracted conflict over the legitimacy of continental administrative paradigms and the supremacy of common law principles. I argue that as was the case in England, the view of agencies as interpreters of statutory mandates offered a workable compromise between those who viewed administrative power as incompatible with common law constitutionalism and those who argued for the necessity and legitimacy of agency autonomy in the modern administrative state. The compromise proved resilient largely due to the ambiguous scope of the pertinent interpretive mandate and the broad range of administrative activities that could arguably fit under its expansive umbrella. In the process, longstanding divisions over executive lawmaking were recast as administrative law debates over the degree of deference to be accorded to agency interpretation. The relevance of the historical conflict over prerogative lawmaking to contemporary controversies regarding the nature of administrative power has largely receded from view. On occasion, however, unresolved tensions at the core of the compromise resurface, as in the recent disagreement between Professor Mashaw and Pierce over the existence of a distinct agency policymaking authority. The core values at stake in current discussions of agency statutory interpretation become easier to recognize when viewed in the context of deep-seated historical disagreement over the legitimacy of executive law making within the common law world.

Image credit: A.V. Dicey

SHFG Prizes

[Here's an announcement from the Society for History in the Federal Government:]

The Society for History in the Federal Government awards two prizes each year for outstanding scholarship in a published article or essay related to the history of the federal government. We are inviting submissions for the 2010 prizes, for articles or essays published during calendar year 2009. (The deadline for submissions is December 1, 2009.)

1. The James Madison This annual award is given for excellence in an article or essay that deals with any aspect of the federal government's history.

2. The Charles Thomson Prize is awarded for the best article or essay on a topic in federal history. The nominated article or essay must have been prepared by a federal historian or for a federal history program, including history offices in the federal agencies and history- related programs in other federal entities.

An entry for either prize should consist of a copy of the published article and a letter indicating the significance and merits of the article (a cover letter from the journal's editor is preferred, although a letter from the author is acceptable). For articles published late in the year, the Committee will accept photocopies of the galleys in lieu of the final published article. A copy of the submission should be sent separately to each of three members of the Prize Committee:

Larry DeWitt, Social Security Administration Historian's Office, Rm. 1532 OPS, Baltimore, MD. 21235. (larry.dewitt@ssa.gov)

Michele Lyons, 875 Hunting Lake Drive, Huntingtown, MD 20639 (lyonsm@mail.nih.gov)

Darrell Lemke, 9207 Chanute Drive, Bethesda, MD, 20814 lemke trautman@rcn.com)

The Madison Prize commemorates the nation's fourth President and the principal author of The Federalist Papers. The Thomson prize commemorates the nation's first federal archivist. Both prizes are awarded at the Society's annual conference in February.

Confronting/Imagining Legal Justice & Injustice: at Harvard tomorrow

Tomorrow at Harvard:

Confronting Legal Injustice/Imagining Legal Justice Friday, November 06, 2009

9:30 AM

Ames Courtroom, Austin Hall

Harvard Law School

Cambridge, MA 02138

This day-long conference will bring together authors from two recent books co-edited by Professors Charles Ogletree and Austin Sarat. Please join us as we discuss the various ways we confront the law’s failures as well as imagine a nation without capital punishment.

9:30 AM - Welcome and Opening Remarks
Professor Austin Sarat, Amherst College
Professor Charles Ogletree, Harvard Law School

10:00 AM - When Law Fails: Making Sense of Miscarriages of Justice
Professor Douglas Berman, Ohio State University, Moritz College of Law
Professor Mary Dudziak, University of Southern California
Professor Linda Meyer, Quinnipiac University School of Law
Discussant: Professor Charles Ogletree, Harvard Law School

12:00 - 1:30 PM - Lunch and Keynote
Stephen Bright, President and Senior Counsel, Southern Center for Human Rights

1:45 PM - The Road to Abolition?: The Future of Capital Punishment
Professor Simon Cole, University of California at Irvine
Professor Deborah Denno, Fordham University School of Law
Professor Bernard Harcourt, University of Chicago
Professor Robin Wagner-Pacifici, Swarthmore College
Discussant: Professor Randall Kennedy, Harvard Law School

3:45 - 4:00 PM - Closing Discussion: Austin Sarat and Charles Ogletree

Co-sponsored by: Charles Hamilton Houston Institute for Race and Justice, Amherst College’s Charles Hamilton Houston Forum on Law and Social Justice, NYU Press.

(I will be in town only long enough for my panel, so apologies to readers and Boston-area friends -- there will be no time for anything else.)

November at the Miller Center

The Governing American in a Global Era Colloquium of the Miller Center of Public Affairs at the University of Virginia has a number of interesting sessions this month. Further about webcasts and attending in person is here.

Friday, November 6
Cell Blocks and Red Ink: Mass Incarceration, the Economic Crisis, and Penal Reform
Marie Gottschalk, Political Science, University of Pennsylvania

Friday, November 13
The Conservative Insurgency and Presidential Power
Stephen Skowronek, Political Science, Yale University

Friday, November 20, 2009
Rethinking the Kitchen Debate: U.S. Supermarkets and the Cold War Farms Race
Shane Hamilton, History, University of Georgia.

Johns on Julius Stone

Fleur E. Johns, Sydney Law School, has posted The Gift of Realism: Julius Stone and the International Legal Academy in Australia, which is forthcoming in Julius Stone: A Study of Influence, eds. H. Irving, J. Mowbray & K. Walton (Sydney: Federation Press). Here is the abstract:

This chapter contributes to a series of studies seeking to gauge what has been made of the work of international lawyer and legal theorist Julius Stone. Among Stone’s possible intellectual progeny, this chapter focuses on an obstreperous and, at times, ungrateful brood: scholars and teachers of international law in Australia. Focusing on a forty year period from the 1954 publication of Stone’s first book-length work in international law, Legal Controls of International Conflict, this chapter begins an assessment of the influences - direct and indirect - of Stone’s work upon international legal scholarship in Australia. In so doing, this chapter uses Stone’s role and impact in international legal scholarship in Australia as a way of reflecting on two, broader sets of questions. First, to what extent or in what ways might the Australian legal academy be understood to have ‘received’ American legal realism? If, as Neil Duxbury would have it, American legal realism was more a ‘mood’ than a coherent movement, how has that mood featured in the affective, performative and constative repertoire of legal scholarship in Australia? Second, what might the life or lifelessness of American legal realism in the Australian academy (traced through a single capillary: the impact of Julius Stone’s version in international law), suggest about the vagaries and the stakes of legal transfer in the scholarly domain? What questions might this account pose for students of legal transfer working with the rubrics of ‘transplant’ (Watson), or ‘palace wars’ (Dezalay and Garth)?

Allan C. Hutchinson’s contribution to the volume, on Stone’s essay “The Province of
Jurisprudence Redetermined” (1944), is here.

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Historians & others on Obama

From Ralph Luker:

A year after his election, historians assess President Obama: Walter Isaacson, Michael Kazin, Rick Perlstein, Ted Widmer, and Garry Wills, Daily Beast, 2 November; and Doris Kearns Goodwin, Huffington Post, 3 November.

And in the New York Times, reporters assess the Obama presidency.

Fudge and Tucker on Picketing Before the British Columbia Court of Appeals

'Everybody Knows What a Picket Line Means': Picketing Before the British Columbia Court of Appeal has just been posted by Judy Fudge, University of Victoria Faculty of Law and Eric Tucker, York University Osgoode Hall Law School. It appeared in BC Studies, No. 162, pp. 53-79, Summer 2009. Here's the abstract:

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a procedural mechanism for acquiring collective bargaining rights and imposed a duty on employers to recognize and bargain in good faith with certified unions. At the end of the war, all provinces, including British Columbia, enacted collective bargaining legislation based on this model. The law, however, did not alter the judicially created common law rules governing collective action. As a result, important questions about the interaction between the statutory regime and the common law were unresolved. As trade union membership grew and labour militancy increased, the British Columbia Court of Appeal was soon given the opportunity to address these issues and in a series of decisions handed down through the 1950s and 1960s it narrowly limited the ambit for lawful workers’ collective action. The Social Credit government largely supported the court’s approach but when the first NDP government in British Columbia was elected in 1972 it stripped the court of its power to regulate picketing and transferred it to an administrative board. This chapter will examine the court’s work during this period and investigate the reasons for the court’s approach, taking into account the economic, social and political context of British Columbia as well as considering the backgrounds and attitudes of the members of the court during this period.

Mashaw on Administrative Law in the Gilded Age

Jerry Mashaw, Yale Law School, has posted the latest installment in his history of administrative law avant la lettre, Federal Administration and Administrative Law in the Gilded Age. Here is the abstract:

This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.

In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow [right], I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops.

This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power.

The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review by mandamus or injunction was extremely limited and statutes providing for appeals to federal courts from administrative decisions were virtually non-existent. On the other hand, officers sued as individuals for damages were in effect subjected to de novo review for any error of law or fact. In the post-Bellum world this structure began to weaken, but it would take many years to morph into the almost directly contradictory structure that we know today

Finally, the article depicts the processes and structures of managerial or bureaucratic accountability. This is where 19th century administrative law mostly developed. In many ways the second half of the nineteenth century might be called an age of administrative adjudication. While we now think of mass administrative adjudication as an artifact of the mid-twentieth century welfare state, these practices in fact have a much longer history. Tens of thousands of claims were adjudicated, not just by the Court of Claims in suits against the United States, but also by the United States Patent Office, the Revenue and Accounting Officers in the Treasury’s Division of the Controller, the district and general land offices of the Department of the Interior and the Bureau of Pensions. Notwithstanding the relatively casual attention to administrative procedure in both Congress and the courts, those charged with adjudicating these claims developed highly structured and often quite formal processes of decisionmaking. As we shall see, these processes were not entirely free from congressional or judicial oversight, but important substantive, and virtually all procedural, norms for administrative adjudication were constructed by the agencies themselves.

Moreover, the normative structure of that law, unlike the late 19th century external law of judicial review, is deeply familiar to contemporary administrative lawyers. With scant direction from Congress, and none from the courts, agencies built systems of adjudication that featured transparent procedures and precedents, internal separation of functions, professionalization of adjudicatory personnel, safeguards against personal and political bias and robust opportunities for documentary or oral hearings. From this perspective we might understand the so-called “rights revolution” of the 1960s and 1970s, in part, as a consolidation in constitutional doctrine of administrative practices that represent a continuous, but seldom acknowledged, administrative law tradition.

Image credit.

Jackson and Resnik's Federal Courts Stories

One doesn't generally expect to find first-rate scholarship in works intended as supplements to law school casebooks. This is true even for the intelligently conceived "Law Stories" series, published by Foundation Press, which "tell the stories behind the leading cases in important areas of law." Its thirty or so volumes have performed the pedagogically useful function of making accessible information that would otherwise remain buried in a case's unpublished record or severely compressed in a casebook note. Although I certainly can't speak to the whole series, my guess is that Ajay Mehrotra's verdict on Tax Stories, published in the Journal of Legal Education, might well apply more broadly. That volume did a better job at using the "vividness of storytelling to attract student interest in some of the landmark Supreme Court cases at the center of the introductory tax course," Mehrotra wrote, than in capturing "the interpretive power of historical analysis," that is, showing how the past matters in any rich understanding of today's doctrines and institutions of taxation.

On the chance that other historians have had a similar reaction, I write to encourage readers to take a fresh look at the just published Federal Courts Stories, edited by Vicki C. Jackson, Georgetown University Law Center, and Judith Resnik, Yale Law School. The editors introduce the volume with a capacious and succinct account of the history of federal courts as a law school course and scholarly field. Leading teachers and scholars of Federal Jurisdiction contribute, including Daniel Meltzer (on Ex parte McCardle) James Pfander (on Bivens), Lauren Robel (on Railroad Commission of Texas v. Pullman Co.), David Shapiro (on Lincoln Mills), and Carlos Vázquez (on Ex parte Quirin). Especially striking is the presence of first-rate constitutional and legal historians among the contributors, including Barry Friedman (on Ex parte Young), Edward A. Purcell, Jr. (on Michigan v. Long), William Michael Treanor (on Marbury, previously noted here), and Ann Woolhandler (on Tarble's Case, with her coauthor Michael Collins, previously noted here).

Because political historians might miss it in a collection of essays on federal courts, I especially want to single out Mark Tushnet's essay "The Story of Crowell: Grounding the Administrative State." I've struggled a bit myself with Crowell v. Benson (1932), in which Charles Evans Hughes, near the start of his chief justiceship, warned federal administrators not to stray beyond the jurisdictional limits set for them by Congress and the Constitution. Tushnet's essay is revealing on the underlying facts, illuminating and penetrating on the doctrinal issues, and thought-provoking on the case's significance for legal "progressives." The essay is essential reading for historians of administrative law and the administrative state.

Image credit: Jasper Johns, "Map"

Shawhan on Lyman Trumbell on Birthright Citizenship

Mark Shawhan, Yale Law School, has posted Domicile and Birthright Citizenship, which is a student comment forthcoming in the Yale Law Journal. Here is the abstract:

This Comment argues that the contemporary debate on the meaning of the Citizenship Clause of the Fourteenth Amendment has overlooked a significant piece of historical evidence. Scholars such as Peter Schuck, Rogers Smith, and John Eastman have argued that the “subject to the jurisdiction” requirement of the Clause should, as a historical matter be read broadly, to, for example, exclude children born here of illegal immigrant parents from constitutional birthright citizenship. In doing so they lean significantly on the statements of Sen. Lyman Trumbull, who drafted the precursor citizenship language of the Civil Rights Act of 1866 and was an influential player in the debates over the Fourteenth Amendment.

Yet Trumbull actually held quite different views. In a previously-unconsidered 1866 letter he wrote to President Andrew Johnson summarizing the Civil Rights Act, Trumbull said that birthright citizenship for children born in the United States turned on whether the parents of those were living permanently, “domiciled,” here. In emphasizing domicile, which at that time turned merely on whether an individual was living permanently in a particular place, Trumbull rejected the consensualist position that a child’s citizenship depended on the political status of that child’s parents within the state, and the presence of a mutual consensual relationship between the parents and the sovereign. This Comment thus suggests that it is no longer tenable for consensualist scholars to rely on Sen. Trumbull’s statements as evidence for their views on the contours of birthright citizenship.

Image credit: Lyman Trumbull

Nackenoff and Sullivan on Women Lawyers and Progressive-Era Governance

Carol Nackenoff, Swarthmore College, and Kathleen Sullivan, Ohio University, have posted Women Lawyers and Governance in the Progressive Era, which they presented at the Annual Meeting of the American Political Science Association in September. Here’s the abstract:

Progressive Era court reform led to creation of new courts that had both formal and informal positions, some of which were filled by women lawyers and representatives of women's organizations. The Juvenile Court in Chicago, the Chicago Morals Court, and the New York Night Court (subsequently Women's Court) differed in the network of activists promoting their creation, and therefore also differed in the amount of influence organized women and women lawyers wielded in these institutions.

Right: Judge Mary Bartelme, Chicago Juvenile Court

Gudridge on Lash's Ninth Amendment in Jotwell

Other Rights, is a summary and appreciation of Kurt Lash's recent Stanford Law Review article on the Ninth Amendment, contributed by Patrick Gudridge, University of Miami School of Law, to the new on-line journal Jotwell. Gudgridge concludes, "It is the great virtue of Lash’s analysis that it is provocative not only in its immediate conclusions, but in the glimpse it affords of its variants – it is itself irreducibly multiple."

Moore on the Osgoode Society at 30

A report by Christopher Moore, "a Toronto-based writer, blogger and commentator," on Friday's conference of the Osgoode Society for Canadian Legal History is here.

Image credit: William Osgoode

The Newberry Seminar on Early Modern Legal History

This year's Symposium on Comparative Early Modern Legal History at the Newberry Library in Chicago (left), with funding by the University of Illinois College of Law, is "New Perspectives on Legal Pluralism." Organized by Lauren Benton, New York University, and Richard Ross, University of Illinois at Urbana-Champaign, it will be held from 9:00 a.m. to 5:00 p.m. Friday, April 23, 2010, at the Newberry.

Colonialism enhanced legal pluralism. European, African, Asian, and American polities relied on layered and multi-centric systems of law, and their encounters generated new and often repeating patterns of jurisdictional politics. This widespread legal pluralism at times contributed to regional integration by making substantively different legal systems intelligible to travelers and merchants. It also posed challenges to imperial administration as subordinate authorities sought to establish, expand, or protect prerogatives to act independently of metropolitan sovereigns and courts. With recent scholarship establishing clearly the benefits of framing colonial law as jurisdictionally complex and unstable, opportunities are now in sight to push this perspective further in a number of directions.

One interesting set of problems involves questions about how conflicts over the prerogatives of delegated legal authorities to discipline and control subordinate or dependent populations related to the changing contours of imperial constitutions or ideologies of rule. Conference participants may explore the ways in which such figures as garrison commanders, plantation owners, ship captains, Company officials, missionaries, and others with some measure of legal authority positioned themselves in relation to both metropolitan and colonial law. Did they make innovative legal claims or exert influence on regional patterns? We invite investigations of the conditions under which such actors deferred to imperial authority, the sources they drew upon to defend their legal prerogatives, and the nature of their interactions with various courts. Other studies might consider the degree to which the politics of making and defending claims to semi-autonomous legal authority informed broader, even regional, political processes. As we bring such connections into sight, it may be possible to refine comparisons of the politics of legal pluralism in different parts of a colonial regime, or between the Atlantic, Mediterranean, and Indian Ocean worlds.

A related theme focuses on the legal strategies of subordinate groups. Taking into account a framework of legal pluralism, scholars can move beyond the study of “resistance” to ask questions about the legal participation of formally subordinate groups—even some that were seemingly powerless before the law. Forum shopping, petitions for mercy, violence against magistrates, new genres of legal writing, maneuvers to escape indebtedness—these and other strategies had immediate and sometimes far-reaching institutional effects. In addition to tracing such connections, we might probe the formative influences on legal strategies. How did knowledge about law circulate? To what extent did information or stories about of the effectiveness of particular legal strategies carry across social strata, imperial divides, and oceans? How did legal actors imagine and describe plural legal orders? With attention to these and other, related topics, the conference seeks to open the study of legal pluralism to new approaches and insights.

More information, including presenters and commentators, here.

Image credit. Hat tip.

"You were always on my mind..."

We are always thinking of you, dear reader, even when your faithful bloggers are spending too much time in various airports, attempting to meet too many deadlines, or are otherwise occupied.

Apologies for sparse blogging over the next week. And if you're out of legal history links, perhaps you'll find some solace here.

Sunday Book Round-up

Ayn Rand and the World She Made by Anne C. Heller is taken up today in the New York Times and the San Francisco Chronicle.

Also in the NY Times, James McPherson reviews THE AMERICAN CIVIL WAR: A Military History by John Keegan.

An interview with Mark Mazower, author of No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, appears in the Boston Globe.

Children of Armenia: A Forgotten Genocide and the Century-Long Struggle for Justice by Michael Bobelian is reviewed in the Washington Post.

Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity by Daniel Jonah Goldhagen is reviewed in the San Francisco Chronicle.

1688: The First Modern Revolution by Steve Pincus is discussed by Bernard Bailyn in the New York Review of Books.

Also in the New York Review, Double Exile: Migrations of Jewish-Hungarian Professionals Through Germany to the United States, 1919–1945 by Tibor Frank and Enemies of the People: My Family's Journey to America by Kati Marton are taken up by István Deák.

Johathan Rabban discusses Dorothea Lange: A Life Beyond Limits by Linda Gordon and Daring to Look: Dorothea Lange's Photographs and Reports from the Field by Anne Whiston Spirn in the New York Review of Books, and David Cole discusses American prisons.

H1N1 Halloween

In case you are having an H1N1 Halloween, I thought this reprisal of Frank's Halloween 2007 might be, um, well not comforting, but somehow fitting....

Happy Halloween from the Legal History Blog.

Henry Friendly Chooses Private Practice

Like Jerold Auerbach and perhaps others, I have long quoted an off-the-cuff remark of Judge Henry Jacob Friendly (1903-1986) at the 150th anniversary of the founding of the Harvard Law School, as a window into the calculations of soon-to-be graduates at the nation’s elite law schools in the 1920s. “Practically everyone thought there was only one career that was worth pursuing, namely private practice,” recalled Friendly, a member of the Class of 1927. Government work was for those who “didn’t have quite the grades to get the jobs they wanted in private firms, and thought they might do better later.” The well-informed among Friendly’s auditors would have assumed he spoke autobiographically. They would have known that he had been President of the Review, graduated with an astonishingly high grade point average, clerked for Justice Louis D. Brandeis, and had spent his career on Wall Street, first at Root, Clark, Buckner, Howland and Ballantine and then at Cleary, Friendly, Gottlieb & Steen, until his appointment to the Second Circuit in 1959.

I still think Friendly’s remark captures the received wisdom among elite law graduates in the 1920s. The research of Auerbach and his coauthor Eugene Bardach, published in the American Journal of Legal History in 1973, leaves no room for doubt. What is possibly misleading about the remark is the implication that Friendly never seriously considered a career in government service. In fact he did.

In April 1928, Friendly was contemplating the end of his service as Brandeis’s legal secretary. James Landis, who had returned to Cambridge when his own clerkship with Brandeis ended in 1926,had recently written Friendly about his experiences on the Harvard law faculty and about their mutual mentor, Felix Frankfurter. Friendly replied:

What you say about teaching makes me doubly glad that I’ve decided to get a touch of practice. I always had much the feeling that you seem to have now; namely, that if it weren’t for F.F. the Law School would be a pretty deadening place. What I wonder is whether it is wise to be so dependent on any single individual as I fear I’d become if I returned there. Sometimes I’ve thought seriously about the I.C.C. I’ve met one or two of the better examiners, and they seem to be highly competent men who have the joy of making important decisions. Of course, the pay is small, but if one gets fed up with it, a Railroad will generally pay more. However, I’m going to dutifully to Root, Clark, and a year from now I’ll be a wiser and, I hope, not a sadder man.

Three years later Friendly was convinced he made the right choice and passed up the chance to join Landis on the Harvard faculty. “My life, as you know, has always been a pretty soft and easy one,” he explained. “It’s only been since my coming to New York that I’ve had to battle people, to fight, sometimes to win and sometimes to lose. I think the experience has been a developing one and that I should be doing myself an injustice if I cut it too short.”

Even so, Friendly seems to have anguished over an offer, extended in February 1932, to join the legal division of the new Reconstruction Finance Corporation. Brandeis and Frankfurter strongly urged him to take the job, but their arguments were countered by those of, in Brandeis’s sarcastic phrase, “the wise men” of Root, Clark. Although Friendly claimed to have been “dreaming” of the job and was eager to come, he ultimately decided to stay at the firm. Brandeis reported to Frankfurter that, in an explanatory letter, Friendly had shown “more emotion than he had ever disclosed to me.”

After Friendly declined, the job went to another, quite different Frankfurter protégé, Thomas G. Corcoran. One wonders how the history of law and liberalism might have been different had Friendly, rather than Corcoran, been Felix Frankfurter’s man in Washington at the dawn of the New Deal.

Update: The two letters by Friendly I've quoted are in box 5 of the Landis Papers at the Library of Congress.

Dale on a Chinese Constitutional Movement

Elizabeth Dale, University of Florida College of Law, has posted Constitutional Movements: An Example from China, 1894-1924. Here is the abstract:

From 1894 to 1949 Chinese reformers, radicals, political theorists and party leaders [including Liang Qichao, left] pushed for the creation of a constitutional order in China. To that end, they borrowed (and often modified) constitutional principles, doctrines, and even history from other countries, using those tools first to craft different models of constitutions and then to persuade others to support their goals. The result was a complex, and international, exchange, one that involved the development of ideas and the deployment of social movements. My current research explores that history with the intent of tracing out the intellectual and social exchanges that occurred while the Chinese around the world debated their constitutional order. As I unpack China's rich constitutional history, I hope to add to our general understanding of how constitutional movements arise and function. This paper is an initial sketch of the project and my methodology.

Image credit

Pether on Constitutional Solipsism and the Article III Duties of Federal Courts

Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional has been posted by Penelope Pether, Villanova University School of Law. Professor Pether's body of related work recasts the history of late 20th century/early 21st c. U.S. courts. This piece appears in the William & Mary Bill of Rights Journal (2009). Here's the abstract:

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the
delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.

The Straight State at the Wilson Center

The United States Studies Program of the Woodrow Wilson International Center for Scholars announces a discussion of The Straight State: Sexuality and Citizenship in Twentieth-Century America, with the author, Margot Canaday, Department of History, Princeton University. Thomas Sugrue, Department of History, University of Pennsylvania, and Siobhan Somersville, Department of English, University of Illinois at Urbana-Champaign, will comment.

According to the Wilson Center’s announcement:

The federal government has not always targeted homosexual identity explicitly. Yet, as Margot Canaday shows in this pathbreaking book, throughout the twentieth century, the government used its laws and regulations to identify and extend control over gay men and lesbians in three policy domains: immigration, the military, and welfare. Join us for an enlightening discussion of how the U.S. built "a straight state."

The discussion will take place on Thursday, November 5, from 3-5 p.m., in the Moynihan Board Room, 6th floor, Woodrow Wilson Center, 1300 Pennsylvania Avenue N.W., Washington, DC. A reception will follow. This is a free public event, but attendees are requested to contact usstudies@wilsoncenter.org.

A review of the book in The Nation, previously noted on LHB, is here.

Miller on The Corporate Law Background of the Necessary and Proper Clause

The Corporate Law Background of the Necessary and Proper Clause has just been posted by Geoffrey P. Miller, New York University School of Law. Here's the abstract:

This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.

Historical Society of the D.C. Circuit Newsletter

I'm a big fan of the Historical Society of the District of Columbia Circuit and a former interviewer in its excellent oral history program. It has just published the first issue of an on-line newsletter, available here.

Truth and Reconciliation in History

The October issue of the American Historical Review features a forum on Truth and Reconciliation in History. From the AHA Blog:

The forum “Truth and Reconciliation in History” deals with a global experience that both calls history into question and calls upon the participation of historians. Especially since the creation of the Truth and Reconciliation Commission in South Africa in 1995, after the ending of apartheid, several nations and groups have attempted to confront and possibly come to terms with their fractious and traumatic pasts. This forum offers three examples of how historians have played a role in these attempts. Elazar Barkan introduces the forum with his essay, “Historians and Historical Reconciliation,” in which he surveys the role historians have played “to promote reconciliation through collaborative work to produce a shared history.” The following three articles offer case studies of this process at work. The Polish-Jewish experience during World War II is examined by David Engel, in “On Reconciling the Histories of Two Chosen Peoples.” In “Truth in Telling: Reconciling Realities in the Genocide of the Ottoman Armenians,” Ronald Grigor Suny delves into initiatives by Turkish, Armenian and other scholars to reach some common understanding of the ethnic conflicts in the early part of the 20th century. And Charles Ingrao’s “Confronting Yugoslav Controversies: The Scholars Initiative” gives an account of the ongoing efforts of a whole range of scholars, both from the Balkans and outside that region, to fashion a single narrative of the crimes and misdeeds committed in the former Yugoslavia. The comment is by James Campbell whose essay, “Settling Accounts? An Americanist Perspective on Historical Reconciliation,” not only reflects on these three cases but also offers a commentary on the reconciliation process from the perspective of someone with experience in American attempts to deal with its own problematic past. As Barkan notes in his introductory essay, the participation of historians in these kinds of projects is one example of how scholarship, often assumed to be irrelevant to social problems, relegated to the ivory tower, can play a crucial role on the public stage.

Whittington to Lead the ICH's Spring Seminar

The Institute for Constitutional History announces a seminar for Spring 2010, "Politics and History of Judicial Review in the United States." According to the ICH:

"This seminar will focus on the history of judicial review in the United States from the founding period to the present. The course will give particular attention to the U.S. Supreme Court and federal law, but will also take note of federal review of state statutes and judicial review by state courts. We will explore how courts have used and justified the power of judicial review over time, how the practice of judicial review has changed, and how "activist" courts have been. We will examine the growth in the significance of the power of judicial review over time and the supports for, and opposition to, judicial review in the political sphere. The seminar will make use of both primary and secondary readings."

The instructor is Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. The seminar will meet Thursday evenings, 6:00-8:00 p.m., February 25, March 4, 11, 18, 25, and April, 1, 2010, at The George Washington University Law School, 2000 H Street NW, Washington, DC.

The announcement explains:

It 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 December 15, 2009. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or e-mail icsgw@law.gwu.edu.

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

Hoosier Suffragism for CLE Credit!

The Indiana Supreme Court will hold a free CLE event, My Place is in the Voting Booth: Hoosier Suffragette Helen M. Gougar, on Tuesday, November 3, 2009 from 3:00 - 4:30 pm.

The event is sponsored by the Indiana Supreme Court Legal History Lecture Series with support from the Indiana Commission for Continuing Legal Education. The lecture will highlight the work of Helen M. (Jackson) Gougar of Lafayette, Indiana. In 1897, Gougar became one of the first women to argue in front of the Indiana Supreme Court. The case, Gougar v. Timberlake, focused on the failure of the Tippecanoe County election board to allow Gougar to vote in an 1894 local election. In January 1895, Gougar was admitted to the bar in Tippecanoe County (the first woman to do so) and represented herself that same afternoon.

Seating is limited to the first 150 reservations. Email: shachey@courts.state.in.us

Conference this weekend: Law and Justice in the Middle Ages

Later this week in Cambridge, Massachusetts, Harvard University, Wellesley College, and Lesley University are sponsoring a conference: "Law and Justice in the Middle Ages" (The New England Medieval Conference). Here are the details:

Law and Justice in the Middle Ages
October 30-November 1, 2009
Harvard University
Cambridge, Massachusetts

Registration info is here.

The speakers are all on Saturday. Here's the schedule:

8:30-9:30: Registration, Barker Center

9:30-11:00 Anglo-Saxon England
Allen Frantzen, Loyola University: “Food Ways and the Law: Diet and Discipline in Anglo-Saxon England”
Kathleen Davis, University of Rhode Island: “‘Laws and Times’: Questions of Precedent and History in Old English Texts”

11:00-11:30 Coffee Break

11:30-1:00 Fourteenth-Century England
Kathryn Lynch, Wellesley College: “Law and Economic Justice in Chaucer’s Man of Law’s Tale”
Charles Donahue, Harvard University: “Did the Law Achieve Justice in Fourteenth-Century England? There Were Those Who Had Their Doubts”

1:00-2:00 Lunch, Barker Center

2:00-4:00 The High Middle Ages
Peter Fergusson, Wellesley College: “Canterbury Cathedral Priory: Forming a Sculpture and an Architecture for the Law”
Paul Hyams, Cornell University: “Orality and Literacy in the Age of the Angevin Law Reforms”
Matilda Bruckner, Boston College: “Violence, Peace and Justice in the Roman de Troie: Antique Romance Meets Feudal Practice”

4:00-4:30 Coffee break

4:30-6:00 The Later Middle Ages
Hugo van der Velden, Harvard University: “Gerard David’s ‘Judgment of Cambyses’”
Daniel Smail, Harvard University: “Violence and Predation in Late Medieval Europe”

6:00-7:00 Reception, Barker Center

Red Owl Redux: Scott Responds to Whitford and Macaulay

This summer we noted that William C. Whitford and Stewart Macaulay, University of Wisconsin Law School, had posted Hoffman v. Red Owl Stores: The Rest of The Story, on the landmark promissory estoppel decision. Now Robert E. Scott, Columbia Law School has responded with Hoffman v. Red Owl Stores and the Limits of the Legal Method. Here is the abstract:

According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a “clear and unambiguous promise” on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann’s equity contribution to the franchise. After locating and interviewing Hoffmann, Whitford and Macaulay tell a different story. They view as insignificant the misunderstanding about the nature of Hoffmann’s equity contribution. Rather, they focus attention on additional statements urging Hoffmann to sell his bakery business and store. In these later statements, ignored by the Wisconsin Supreme Court, they find the “missing promise” that they challenged all of us to look for years ago. While I credit their account, I remain as unconvinced by their story as they are of mine. Thus, the important question is how scholars could draw such different inferences from the same basic facts. In this Essay, I speculate that the different stories are a product of our respective methodological commitments: their commitment to a law and society approach to legal issues and mine to law and economics modes of analysis. Those diverse approaches illustrate the tension between “context” and “theory” and the inherent paradox of legal analysis: without context no legal rule can be applied, but with nothing but context no legal rule can be found. For this reason, I conclude, it is important for legal academics of every stripe to appreciate the biases inherent in their methodology of choice and work to correct for them.

Image credit.

Studies in Legal History

The following announcement is just out on H-Law:

The American Society for Legal History invites scholars in American, English, British, and Continental European legal history to apply to succeed Thomas A. Green and Daniel R. Ernst as co-editors of Studies in Legal History–the book series published by University of North Carolina Press for the Society. Tom and Dan are stepping down after many years of exceptional–and exceptionally successful–service on behalf of all of us in legal history. Indeed, their success has been such that the Society recognizes that three or four co-editors may be necessary to maintain the breadth of the series.

The co-editorships offer no reward other than the opportunity to help shape the wide field of legal history through the books they bring to publication. Interested scholars are asked to contact the chair of the ASLH Publications Committee, Bruce H. Mann, at mann@law.harvard.edu for further information.

I'll add that another satisfaction of the job, particularly for a law-school-based professor who doesn't supervise doctoral candidates, is the chance to help junior scholars envision their dissertations as books.

Hat tip: H-Law

The Coase Centennial, with Coase!

The University of Chicago Law School will host the conference Markets, Firms and Property Rights: A Celebration of the Research of Ronald H. Coase on December 4 and 5, 2009, at the Law School. The event is open to the public; to attend, contact Marjorie Holme at mholme@uchicago.edu.

According to the announcement:

This event will bring together a group of scholars to honor the life and research of Ronald Coase. 2009 marks the 50th anniversary of the publication of Coase’s seminal paper on the Federal Communications Commission. 2010 marks the 50th anniversary of the publication of his paper on “The Problem of Social Cost,” and his 100th birthday.

Founders On-Line: The Rotunda Project

The National Historical Publications and Records Commission (NHPRC), the grant-making arm of the U.S. National Archives, in partnership with Documents Compass at the Virginia Foundation for the Humanities has issued a press release announcing that "5,000 previously unpublished documents from our nation's founders are now online through Rotunda, the digital imprint of The University of Virginia Press." The release continues:

The ROTUNDA Founders Early Access project makes available for the first time letters and other papers penned by important figures such as James Madison, John Adams, and Thomas Jefferson. The Founders Early Access portion of the site allows users to read, search, and browse the newly transcribed documents, and is available at no cost to users,

In 2008, Congress urged the National Archives to investigate ways to make the Founders Papers more readily available to historians, scholars, and the general public at no cost to researchers. As long-time funders of the print editions of the Founding Fathers documentary projects, the NHPRC worked with the editorial teams and supported a pilot demonstration project through Documents Compass, a nonprofit organization designed to assist in the digital production of historical documentary editions.

Over the past ten months, the pilot has transcribed and completed basic transcription verification for roughly 5,000 documents. These transcriptions will be fully verified, and the editorial teams will provide explanatory annotation as they proceed with their work. Each completed volume of a documentary edition contains roughly 500 documents and provides notations that identify historical figures and events to shed light on the papers' meaning and significance.***

"There is much to discover here," said Penelope Kaiserlian, director of the Press. "Take a look, for example, at Thomas Jefferson's letter to James Madison on August 30, 1823, when the elderly Jefferson contests the memory of 88-year-old John Adams regarding the creation of the Declaration of Independence. Historians will already know this letter, but now anyone can easily find this readable version."

Hat tip: H-Law
Image credit

Report: Rankings pressure drives up law school costs, affects diversity

From today's Chronicle of Higher Education:

Critics have sometimes blamed the accreditation standards of the American Bar Association for driving up the cost of law school and making it more difficult for students of color to be admitted to those programs.

But a report released on Monday by the Government Accountability Office says that most law schools surveyed instead blamed competition for better rankings and a more hands-on approach to educating students for the increased price of a law degree. In addition, the federal watchdog agency reported that, over all, minorities are making up a larger share of law-school enrollments than in the past, although the percentage of African-American students in those programs is shrinking. The GAO attributed that decrease to lower undergraduate grade-point averages and scores on law-school admissions tests.

Continue reading here.

Update: Paul Caron has more on this.

Universal Disturber

[Because this documentary on William Kunstler will begin its theatrical run with openings in fourteen cities next month, I'm moving this post up from this summer.]

Since about 1960, I have spent a portion of every summer in the Grand Traverse Bay region of Northern Michigan. To the usual fare of beaches and cherry products was added five years ago an annual film festival, founded and still propelled quite vigorously along by the documentarian Michael Moore. “William Kunstler: Disturbing the Universe,” will not, I’m afraid, be my most memorable moment from this year’s festival. That honor will doubtless go to yesterday’s midnight screening of “Dead Snow.” (Official motto: “If You’re Going to See Only One Norwegian Nazi-Zombie Movie This Year, Why Not Make It ‘Dead Snow’?”) Still, the documentary of one of America’s most famous radical lawyers, directed by Sarah and Emily Kunstler, his two daughters from his second marriage, is well worth seeing during its theatrical release this fall or on PBS’s “POV” next year. For anyone like me, who has only seen iconic, shaggy haired images of the man, the home movies of a close-cropped Kunstler, clowning for the camera like any other suburban Dad, is worth the price of admission. I suspect even those who followed his career more closely would find revelations in the footage from inside Attica, the dramatically abrupt conclusion of one of his jury summations, or his dispassionate analysis of the ideological power of the word “legal,” from one of his public addresses.

For all the film’s strengths, it left me with more questions than answers about Kunstler’s radicalization. After the showing, Emily Kunstler spoke of radicalization, with reference to two lesser figures in the film, a juror from Chicago Seven trial and a prison guard grievously wounded at Attica, as a discrete and almost inelastic event: the undeniable reality of an injustice suddenly confronts a person at rest, who then careens in a radical direction. My recollection of the film–I attended without intent to blog and did not take notes–was that the film made much the same claim for Kunstler himself, with the moment of impact being the binding and gagging of Bobbie Seale in the Chicago Seven trial. I don’t doubt that Kunstler experienced it as a visceral revelation of the potential and the danger of treating the criminal justice system as political theatre and that his lawyering changed accordingly. But Kunstler himself elsewhere described his transformation “from a liberal into a radical” as a more extended process from the 1960s into the 1970s. What’s more, the film presents tantalizing suggestions that the young Kunstler had an emotional preexisting condition that would make radicalism, as practiced by the student left, irresistible. His love of poetry and a war story related in the film suggest a person who could not abide a prosaic life. The youth movement’s shattering of social conventions must have attracted him at least as much as the legal claims the activists generated. The Kunstler sisters do not hide this side of their father: to the contrary, they share with us their father’s awkward attempt to impress the woman who would become their mother by boasting of a quite unimpressive countercultural exploit. Admittedly, it’s difficult terrain for offspring to negotiate, but a fuller view of the emotional roots of Kunstler’s “greening” would help convey to a new generation why he was such a compelling--and disturbing--figure in American legal history.

Collins on Holmes -- Father of the Modern First Amendment

Prologue: Justice Holmes - Father of the Modern First Amendment is an essay by Ronald K. L. Collins, First Amendment Center. The prologue introduces 'The Fundamental Holmes: A Free Speech Chronicle & Reader' - Selections from the Opinions, Books, Articles, Speeches, Letters & Other Writings by & About Justice Oliver Wendell Holmes, Jr. (Cambridge University Press, 2010).

Collins' abstract consists only of the citation to the book, so here are the first two paragraphs:

Holmes’s footprint on the American law of free speech is gigantic. Like Atlas, he is a titan in that world. No one else quite casts a shadow so long. While James Madison is the grand pater of the historical First Amendment, its modern father figure is surely Justice Oliver Wendell Holmes, Jr. (1841-1935). His thought can be found in bold relief in many Supreme Court opinions on freedom of expression, in every contemporary history of the subject, in every casebook and textbook used in law schools and in colleges, and in every serious scholarly treatment of the matter. This is so because “Holmes laid the foundations . . . for the expansive modern view of free speech . . . .” Having done so, he then “left a profound imprint on the law of free speech." Without exaggeration, then, it would be impossible to have any serious discussion of modern free speech theory or law without some consideration of his views.

But from what well does Holmes’s fame spring? Does it derive mainly from three opinions – Schenck v. United States, Abrams v. United States, and Gitlow v. New York – issued late in the long-life span of this great jurist and scholar? If so, did the ideas for those landmark opinions jet out of his psyche with a singular thrust of insight, or were there some seeds that had been stirring in the soil of his mind for years or even decades before? As with so many other great figures in law, the answer is a combination of both, and yet other things, too.

Image credit.

Landsberg on the Kennedy Justice Department's Enforcement of Civil Rights

The Kennedy Justice Department’s Enforcement of Civil Rights: A View from the Trenches is a new paper by Brian K. Landsberg, University of the Pacific, McGeorge School of Law. Just the abstract is posted:

The Kennedy Justice Department faced challenges with no modern precedent: the Southern defiance of the Supreme Court’s decision in Brown v. Board of Education, the rise of non-violent protests on a massive scale, and the Administration’s desire to break a racial caste system that it did not fully understand. Reconstruction provided a precedent for federal action, but the President was, to some extent, a captive of the myth that federal intervention had been a colossal failure, leading only to misrule and racial division.

Much has been written about President Kennedy’s mixed record on civil rights - his philosophical commitment to equality, his ambiguous votes on civil rights bills as a Senator, his letter regarding Dr. Martin Luther King, Jr.’s prison term in Georgia, his decision not to make civil rights a priority at the beginning of his presidency, his appointment of racist federal judges in the South, his proposal of comprehensive civil rights legislation after two and a half years as President, and so on. In the 1960's and 1970's, several books and articles focused critically on the work of the Kennedy Department of Justice relating to civil rights.

Photo: President John F. Kennedy and Attorney General Robert Kennedy.

Gordon on Dorothea Lange, and more in the book reviews

DOROTHEA LANGE: A Life Beyond Limits by Linda Gordon is reviewed in the New York Times. David Oshinsky finds it "an absorbing, exhaustively researched and highly political biography of a transformative figure in the rise of modern photojournalism." I heard Gordon speak on this book as she was writing it, and have been waiting since then for a chance to read it. Highly recommended.

Oshinsky continues:

Gordon expertly analyzes the political culture of Depression-era California, where the enormous power of big agriculture kept tens of thousands of landless workers in peonage and despair. She portrays Lange as an ambivalent radical, deeply sympathetic to the plight of the migrants yet uncomfortable with the chaos that social conflict inevitably produced. Early in the Depression, Lange had tried but failed to photograph the labor protests that shook San Francisco....

A portrait photographer at heart, Lange stressed the inner emotions of those facing injustice and deprivation. “Her documentary photography was portrait photography,” Gordon says. “What made it different was its subjects, and thereby its politics.” An individualist at heart, Lange provided an alternative to the photography of wretchedness, which centered on the misery of beaten-down victims, as well as to the Popular Front mythology, which showed earnest, well-muscled men and women laboring together in fields and factories to produce a Soviet-style paradise on earth. Lange saw America as a worthy work in progress, incomplete and capable of better. By portraying her subjects as nobler than their current conditions, she emphasized the strength and optimism of our national character. She became, in Gordon’s words, “America’s pre-eminent photographer of democracy.”

Linda Gordon delivered a lecture on the book at U.C. Berkeley, posted here.

Also reviewed in the New York Times is THE TYRANNY OF E-MAIL: The Four-Thousand-Year Journey to Your Inbox by John Freeman and THE FOURTH STAR: Four Generals and the Epic Struggle for the Future of the United States Army by David Cloud and Greg Jaffe.

Moral Panics and the Copyright Wars by William Patry is taken up in the Los Angeles Times; The Big Burn: Teddy Roosevelt and the Fire That Saved America by Timothy Egan is reviewed in the Philadelphia Inquirer.

Sherrilyn A. Ifill, Woman of Valor, Women's Review of Books, reviews Mia Bay, To Tell the Truth Freely: The Life of Ida B. Wells and Paula Giddings, Ida: A Sword Among Lions: Ida B. Wells and the Campaign against Lynching. Hat tip.

An Empirical Look at the "Switch in Time"

Among the papers to be presented at the Fourth Annual Conference on Empirical Legal Studies on November 20-21 is Did a Switch in Time Save Nine? by Daniel E. Ho, Stanford Law School, and Kevin M. Quinn, UC Berkeley School of Law. Here’s the abstract:

Franklin Delano Roosevelt's court-packing plan of 1937 and the "switch in time that saved nine" animate central questions of law, politics, and history. Did Supreme Court Justice Roberts [pictured at left, from 1924] abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts's transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from 1931-1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts's transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The shift appears sudden and temporary. The duration of Roberts's shift, however, is in many ways irrelevant, as the long-term transformation of the Court is overwhelmingly attributable to Roosevelt's appointees.

Image credit.