Inching cautiously into the 21st century... The Legal History Blog now feeds directly to twitter, so if you prefer to get your legal history updates that way, you can follow the blog here.
scholarship, news and new ideas in legal history
Inching cautiously into the 21st century... The Legal History Blog now feeds directly to twitter, so if you prefer to get your legal history updates that way, you can follow the blog here.
of endnotes. Fewer pages mean lower publishing costs, of course. Sometimes law review editors try to streamline cites, without realizing that those pesky record group numbers and unwieldy file names are a precise road map to the author's source material.
David J. Seipp, Boston University School of Law, announces that his index and paraphrase of printed Year Book reports is now complete in the sense that all reports in the chronological series from 1268 through 1535, with all Year Book material from 1399 through 1509 printed only in Abridgements, have been indexed and either fully paraphrased or summarized. This project is sponsored by the Ames Foundation, and will continue by reconstructing missing Year Books of 31 to 37 Edward III from the Abridgements. The database as now updated remains freely searchable [here]."
off by a letter Frankfurter received in September 1943. (The opening round is here.) Major General Myron C. Cramer wrote:Since you have passed the age of sixty, fixed by Congress for the retirement of officers of the Regular Army below the grade of general officer, you have, by direction of the President, been transferred, effective this date, to the Inactive Reserve.Frankfurter wrote to the president that he had been “placed on the martial shelf as a superannuated major.”
I regret that you have been retired. You should always remember, however, that General Napoleon Bonaparte was retired to Elba while still in his forties.And Frankfurter respond
I think there is an error in General Cramer’s statement to you that you have been transferred to the “Inactive Reserve”. I think he meant the “Inactive Preserve”. The status is somewhat akin to the process of pickling alcohol!
Always sincerely,
Franklin D. Roosevelt
C. in C.
ed:My dear C-in-C:
Allow me to say that your letter of even date is doubly gratifying, to wit:
1. That you should compare my case to that of General Napoleon Bonaparte again proves how deeply rooted your are in legal tradition. Even in your military administration in time of war you rely on precedent.
2. More heartening still, is your correction of General Cramer’s designation of my status. For you to assure me that I am transferred to the “Inactive Preserve”, which gives me a status “somewhat akin to the process of pickling in alcohol”, affords me justifiable grounds for assuming that I can rely on you for my good spirits in the future.
Respectfully and gratefully yours,
Bell to Francis Rolleston, May 28, 1926. "I am concerning myself with the matters of retaining Counsel for the Government in the Flour Milling Case, and I hope that I am not thereby infringing any of the privileges of your office. As you know, I argued the case when A.G. with the Solicitor-General and have had something to do with the direction of the preparation of the papers to go to England from New Zealand. I told [William Downie] Stewart [, Jr., Bell's immediate successor as AG] before I left that I meant to have as one of the Juniors a young lady lawyer because of the enormous mass of evidence and the necessity of getting somebody at a reasonable cost to master (or mistress) it for the Conferences of Counsel. And I have, after conference with the Government solicitors in London, sent preliminary papers, including the evidence, to Miss Clarkson who is a grand-daughter of Sir John Gorst and a daughter of a lady born in New Zealand. She will not, of course, be heard in the P.C., but she is already doing what I want in absolutely mastering the evidence. My difficulty in previous cases, which I have had to control in the P.C., has been to have the Counsel coached in the facts."Steven Calabresi and Christopher Yoo make a basic claim in their new book: all presidents are essentially unitarians. In one way or another they all seek to have exclusive control over the executive power and to direct the activities of those in the executive branch. The evidence for this claim is a broad survey of governmental practice from the earliest days of the Republic to the 21st century. At this level, the Calabrese-Yoo claim is not terribly controversial. A somewhat stronger claim, however, occasionally creeps into their discussion. That stronger claim might be stated as an argument for the normative force of practice. Because presidents have acted consistently as if they were the exclusive seat of executive power, that practice should govern our constitutional understandings of the allocation of power within the federal government.
This stronger claim is much more problematic. To make it out at least the following issues would need to be addressed: what is the normative force of practice. 'What practices count as having normative force.‘ 'And, how is practice to be interpreted‘ Other papers at this conference address these questions and I have addressed the interpretive issue in an earlier article. In this contribution I will leave those issues mostly to the side. However, the title of this panel, 'Presidential and Popular Control of Bureaucratic Elites,' suggests an obvious normative basis for linking presidential control of the bureaucracy with popular democracy. Presidents are popularly elected. Hence, whatever the other arguments for presidential control of bureaucratic elites, one is surely that it tends to implement popular control of the bureaucracy.
I’m sympathetic to the basic thrust of this claim. But my purpose here is different. I want to explore other meanings of popular control and, in keeping with the historical orientation of this conference, how those other meanings were operationalized in the organization of the early Republic. For unitarianism has no exclusive claim to democratic legitimacy. And, as we shall see, other ideas and mechanisms of popular control are competitive with the unitarian vision, both theoretically and as a matter of governmental operation. The recognition that popular control has other meanings and is operationalized through devices that compete with presidential direction can provide a more realistic assessment of both the normative power and the practical reach of unitarianism, whatever the aspirations of antebellum presidents, or their successors.
To some degree this description of practices in the early Republic is a retelling of the old story of the struggle between center and periphery in all substantial organizations, public or private. But my narrative is not entirely descriptive. Early practices were based upon normative considerations. Americans then and now have been committed to multiple forms of popular control of government. I will close therefore with some reflections on the degree to which these commitments, notwithstanding their competition with unitary presidential control, tend to increase popular control of governmental action, which, in some sense, is what democracy is all about.
t files. But then, in his correspondence with Franklin Delano Roosevelt, I came across Frankfurter's resignation from the Corps. Or, at least, his attempt. The letter was sent shortly after Frankfurter joined the Supreme Court.
Hat tip: H-LawBoth economic and legal argument draws deeply on notions of reason and logic. These are found among ordinary men and women far from the schools. As economic historians document, medieval people (prudent peasants, as McCloskey puts it) were perfectly capable of responding to economic incentives. Moreover, law played a crucial role in shaping those incentives. We welcome proposals for papers that explicitly link legal history with economic history in explaining the dynamics of
medieval life and culture.
Here are some examples of possible topics:
-- The canon law generated regulations concerning Usury, the Just price etc. during the "long" Twelfth Century. Meanwhile, secular laws sought to regulate markets (through laws on forestalling, regrating, engrossing, Assize of Bread and Ale etc.) and boosted those on coining offenses. This sustained attempt to restrain economic activity through law must be largely explicable from the context of economic change against which it was made. How might the Legal Revolution (the whole or any part) and the rising "Profit Economy" (Lester Little) be causally linked?
-- Why did England's Angevin reforms of land law precede by at least a generation the provision of common law remedies for defaults by economic agents (action of Account) and the alienation of capital assets by tenants for life (action of Waste)?
-- How far can economics (e.g., far fewer seigniorial demesnes) explain why the Capetians and other European rulers did not transform their land law in a similar way to the English?
-- Did the development of accounting practices (e.g., input-output, like the English Pipe Rolls, double-entry, profit-and-loss, etc.) advance the cause of rationality in commerce and law in any material way? The lexicography of "reason" and associated words would be interesting in this context. So might possible changes in the themes of literature such as fabliaux, such as the balance between sexual and financial trickery in the victories of women and other supposedly disempowered characters over their superiors.
-- What measure of economic analysis was possible before words like capital, interest, profit entered European languages in the generations surrounding 1200?
-- Were advances in numeracy as relevant to legal history as they patently are to the development of economic rationality?
Most generally, we welcome contributions along the following lines:
-- What economic phenomena can be better understood as driven, or at least influenced, by legal change?
-- What medieval social phenomena previously thought to be beyond the domain of economics can be explained as rational behavior by goal-oriented agents maximizing their utility subject to constraints?
-- Can the tools of modern economics such as game theory, contract theory, or behavioral economics enhance our understanding of medieval history?
-- To what extent can we explain legal change itself as the response of particular people in power to economic incentives?
What happened to the doctrine of natural right in the nineteenth century? We know that it flourished in the seventeenth and eighteenth centuries. We know that something like it - the doctrine of human rights and new forms of social contract theory - flourished again in the second half of the twentieth century and continues to flourish in the twenty-first. In between there was a period of decline and hibernation - uneven, to be sure, and never complete - but a period in which to invoke natural right was always to invite intellectual ridicule and accusations of political irresponsibility. This article asks: How far can the decline of natural right in the nineteenth century be attributed to the reaction against the revolution in France? How far it was the effect of independent streams of thought, like positivism and historicism? Why was radical thought so ambivalent about natural right throughout the nineteenth century, and why was socialist thought in particular inclined to turn its back on it? As a framework for thought, natural right suffered a radical decline in the social and political sciences. But things were not so clear in jurisprudence, and natural right lived on to a much riper old age in the writings of some prominent economists. So we have to ask: What is it about this theory that allowed it to survive in these environments, when so much of the rest of intellectual endeavor in the nineteenth century was toxic or inhospitable to it. Finally, I shall ask how far American thought represents an exception to all of this. Why and to what extent did the doctrine survive as a way of thinking in the United States, long after it had lost its credibility elsewhere?
t of Political Science, Georgia Southern University. Curry writes:In many ways, Judge John Minor Wisdom’s was a life of contradiction. Though he is known today as a pioneering appellate judge who contributed to numerous civil rights advances for African Americans, few would have expected the genteel Eisenhower Republican to follow such a path. Born in the segregated South to a socially prominent Louisiana family, his father was a cotton broker and a Democrat. Wisdom was also one of the rare sons of the Bible Belt to have little use for organized religion (p.10). Moreover, even as Judge Wisdom advanced the cause of civil rights as a member of the “Fifth Circuit Four,” breaking down racial barriers in opinion after opinion, he maintained memberships in racially restrictive clubs (p.xi). Ultimately, President Bill Clinton best summed up this tension when he awarded Judge Wisdom the Presidential Medal of Freedom in 1994: “He is a son of the Old South who became an architect of the new South” (p.374).
As one of the twentieth century’s most formidable jurists, John Minor Wisdom has not wanted for scholarly attention. Wisdom’s dedication to enforcing the promise of BROWN v. BOARD OF EDUCATION merited his inclusion as one of Jack Bass’ (1990) “Unlikely Heroes.” Peltason (1971) termed him one of the “Fifty-Eight Lonely Men” charged with carrying out school desegregation in the South. Despite the scholarly interest Wisdom has engendered, Joel William Friedman’s judicial biography paints a comprehensive portrait of the man, based on personal interviews, historical materials, and – most importantly – Wisdom’s judicial opinions themselves. In doing so, Friedman has produced a thoughtful, evenhanded appraisal of Wisdom’s life and work – topics surely deserving of a stand-alone biography....
Joel William Friedman’s CHAMPION OF CIVIL RIGHTS: JUDGE JOHN MINOR WISDOM provides an intimate picture of “one of the most progressive and influential federal judges of the twentieth century” (p.2). In particular, Friedman’s work effectively conveys three of Judge Wisdom’s most central characteristics – his eloquence, his emphasis on practicality, and his general belief in the limited role of the judge.
Wisdom was, above all, pragmatic (pp.115, 216). When U.S. Supreme Court Justice Stephen Breyer once asked Judge Wisdom “whether it was better for a judge to be theoretical or practical,” Wisdom chose the latter (p.285) – and he displayed that trademark practicality in opinion after opinion. Perhaps the best example of his pragmatism is contained in UNITED STATES v. JEFFERSON COUNTY BOARD OF EDUCATION where he succinctly noted, “The only school desegregation plan that meets constitutional standards is one that works” (p.211). Such statements, Justice William Brennan would later note, displayed Wisdom’s ability to “forthrightly ground [his opinions] in practical realities, rather than platitudinous theory” (p.212).
Friedman’s work also conveys Wisdom’s recognition of the limits on the judiciary. Wisdom never viewed his judicial role as “that of reformer” (p.191), and Friedman even notes that Wisdom believed “judicial micromanagement of school desegregation” to be “perilously close to the perimeter of the judicial function” (p.206). Finally, in an observation that echoes contemporary notions of “judicial minimalism” (Sunstein 1999), Friedman concludes that, “where a case could be decided on its specific facts, [Wisdom] felt no urgency to address far-reaching constitutional questions” (p.298).
v finds the book a "fascinating personal account" of Roberts' liberal feminist journey from a hardscrabble existence in Texas as a child to the Oregon Supreme Court. While Roberts is telling her own story, she narrates two other stories as well: one of a state and its sometimes tumultuous political development, and another of the path of professional American women from the era of the feminine mystique to an era of equal rights under the law. Roberts is justly proud of the progress she identifies in both of these narratives, but she is by no means complacent that feminism has completed its work. Overall, the book is a lively, arresting read in which Roberts establishes herself as a tireless worker and keen political strategist, but also speaks in a no-nonsense, lightly humorous, and quintessentially Oregonian voice....
Overall, the reader gains a sense of her as a relentless optimist, a woman who never allowed others’ negative attitudes or the adverse circumstances she faced to prevent her from moving forward. Her tone is deceptively conversational and down-to-earth, at times almost obscuring the extraordinary nature of her accomplishments: her repeated breaking of gender barriers with electoral successes in the state house and senate, her near capture of nominations for two state-wide offices, and her service as an appellate, and then supreme court judge. She achieved these milestones not just as a woman, but as a divorced woman with children in a time when both divorce and motherhood were seen as political millstones. While Roberts does not reflect extensively on why she was able to overcome these barriers, attributing it mostly to her persistence and good fortune, her narrative suggests that both elite Oregonians and Oregon voters appreciated her straightforward, matter-of-fact attitude.
Liberal feminism – the belief that women are inherently equal to men – has been a lifetime lodestone for Roberts. She writes frankly about her own path toward extending her personal liberal principles of equality to incorporate sexual orientation; she eventually performed Oregon’s first same-sex marriages in Multnomah County. She has less to say about race, but most of her active political career encompassed a period in Oregon’s politics when racial struggles tended to be more local and often occurred outside of formal political structures. The liberal feminist principle of choice also characterized Roberts’ active career, both in her decisions to run for various offices and her decision in 1985 to step back from active engagement in high-level law and politics. Some might frame her choice to follow her husband into retirement as an anti-feminist act, but Roberts clearly understands it as representing her own secure capacity to choose her life path with wisdom and sensitivity toward achieving an appropriate balance for herself and her family.
I recommend Roberts’ memoir as an engaging read for anyone interested in the real world of law and politics. In particular, it would make a great gift for a starting law student or for someone who has just completed the bar exam.
In "Letter from Birmingham Jail," Martin Luther King, Jr. asserted that "the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to 'order' than to justice." To date, our understanding of the Civil Rights era has been largely defined by high-profile public events such as the crisis at Little Rock high school, bus boycotts, and sit-ins-incidents that were met with massive resistance and brutality. The resistance of Southern moderates to racial integration was much less public and highly insidious, with far-reaching effects. The Ghost of Jim Crow draws long-overdue attention to the moderate tactics that stalled the progress of racial equality in the South.
Anders Walker explores how three moderate Southern governors formulated masked resistance in the wake of Brown v. Board of Education . J. P. Coleman in Mississippi, Luther Hodges in North Carolina, and LeRoy Collins in Florida each developed workable, lasting strategies to neutralize black political activists and control white extremists. Believing it possible to reinterpret Brown on their own terms, these governors drew on creative legal solutions that allowed them to perpetuate segregation without overtly defying the federal government. Hodges, Collins, and Coleman instituted seemingly neutral criteria--academic, economic, and moral--in place of racial classifications, thereby laying the foundations for a new way of rationalizing racial inequality. Rather than focus on legal repression, they endorsed cultural pluralism and uplift, claiming that black culture was unique and should be preserved, free from white interference. Meanwhile, they invalidated common law marriages and cut state benefits to unwed mothers, then judged black families for having low moral standards. They expanded the jurisdiction of state police and established agencies like the Mississippi Sovereignty Commission to control unrest. They hired black informants, bribed black leaders, and dramatically expanded the reach of the state into private life. Through these tactics, they hoped to avoid violent Civil Rights protests that would draw negative attention to their states and confirm national opinions of the South as backward. By crafting positive images of their states as tranquil and free of racial unrest, they hoped to attract investment and expand southern economic development. In reward for their work, John F. Kennedy and Lyndon Johnson appointed them to positions in the federal government, defying notions that Republicans were the only party to absorb southern segregationists and stall civil rights.
An eye-opening approach to law and politics in the Civil Rights era, The Ghost of Jim Crow looks beyond extremism to highlight some of the subversive tactics that prolonged racial inequality.
ay just posted by Ilya Somin, George Mason University School of Law. It appeared in Ethics (April 2009). Here's the abstract:In his excellent book Democracy and Knowledge: Innovation and Learning in Classical Athens Josiah Ober argues that ancient Athenian democracy surmounted the dangers of political ignorance and made effective use of dispersed citizen knowledge to forge good public policy. He effectively demonstrates that Athenian democracy was more successful than the oligarchic and tyrannical governments of rival Greek city-states. He also shows how Athenian institutions worked to reduce the dangers of political ignorance.
On the other hand, Ober is less successful in showing that the relatively impressive performance of Athenian democracy should lead us to be optimistic about today’s democratic states. Indeed, his account suggests that Athens’ success in overcoming political ignorance was in large part the result of two important ways in which it differed from modern democracies: the small size of its electorate and the very narrow range of functions performed by its government.
ho have done exceptional scholarly work on a subject of fundamental intellectual importance." A prolific scholar, Weiner's recent work, according to the announcement, "concerns clan relationships and chieftaincies in medieval law and society. Weiner’s latest work investigates how legal developments in the middle ages can shed light on efforts today to develop the rule of law in weak states and regions of the world which nurture international terrorism." Hat tip.This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O. Douglas, William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, and Harry Blackmun. In particular, I discuss (1) portions of an early draft of Justice Douglas’s opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda from Justices Brennan and Stewart about that opinion; and (3) memoranda between Justices Brennan and Douglas about Roe v. Wade. These documents—which I have reproduced in an appendix—shed new light on several apparently disparate issues in constitutional law: the Supreme Court’s use of void-for-vagueness doctrine; the social and constitutional history of vagrancy law; the possibility and contours of constitutional regulation of substantive criminal law; the relationship between Papachristou and Roe; and the development and conceptualization of substantive due process. These documents invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the constitution such rights would be located, and about what the contours of such rights would be.
THE SOUND OF FREEDOM: Marian Anderson, the Lincoln Memorial, and the Concert That Awakened America by Raymond Arsenault is reviewed in the Washington Post.
The campaign had a broader, social dimension as well. As New York democratized, a new breed of politicians denounced judge-made common-law as the last refuge of feudal privilege in republican America and demanded codification by the more popular legislature. The great paladin who marched out to face down this challenge was James Kent (1763-1847), who served as a justice (1798-1804) and chief justice of the New York Supreme Court (1804-1814) and as the state’s chancellor (1814-1823). Kent insisted that “a great proportion of the rules and maxims which constitute the immense code of the common law” was readily knowable from the reports. Further legal treatises, including his own Commentaries on American Law (1826-1830), were surer guides to legal principles than whatever the lesser breed of lawyer-legislators could enact in a code. In short, as the legal historian John H. Langbein writes, “Kent made his career stand for the learned law.”
If the judges were determined to have a learned discussion of “the classic issue of how one establishes possession and ownership of wild animals,” the two lawyers in the appeal were quite capable of playing their roles, for they were as able as any in the state. Nathan Sanford (pictured at left) was appointed a U.S. Commissioner of Bankruptcy in 1802. The following year he became U.S. Attorney for New York. He would hold that post until 1815 and serve in the U.S. Senate from 1815-1821 and from 1825-1831. He succeeded Kent as Chancellor, serving between his senatorial terms. Post’s lawyer, Cadwallader David Colden (pictured at right), was classically educated in New York and London and practiced law in New York City and Pough- keepsie. He became U.S. Attorney for New York in 1798 and mayor of New York City in 1819. He served in the U.S. House of Representatives from 1821 to 1823.
Yet the two men had different social origins, which might well have influenced how they regarded fox hunting or deference to local elites. Livingston was the scion of one of New York’s richest families, which owned 500,000 acres on which lived “thousands of tenant farmers in an American version of English manorial society.” This quasi-feudal arrangement persisted until the “Anti-Rent Wars” of the 1840s. Tompkins’s parents, in contrast, lived as tenants on a great manorial estate, and although they moved before Tompkins’s birth, his modest social origins were part of his political persona. During his gubernatorial campaign he described himself as “a ‘humble farm boy,” who had “‘not a drop of aristocratical or oligarchical blood’” in his veins.
No one has yet turned up any explanation by Livingston or Tompkins of their intentions in writing their opinions. Berger ventures, though, that Livingston (pictured at right) might have been speaking for his fellow aristocrats when he took up the perspective of the “gentleman” in an encounter with “a saucy intruder.” I would add that his “reasonable pursuit” standard would give a great deal of discretion to the landowning jurors of the JP courts. Berger also writes that although Tompkins's opinion was not as revealing of his class bias–he delivered no tirade against fox hunting as an aristocratic pastime–he evidently put vindicating the person who “actually got the job done” above defending “the norms of the leisure pursuits of the gentleman.”
One possibility is that Kent had not been present when the decision was argued or announced. Fernandez speculates–without, it must be said, much to back her up–that Kent had a special reason to leave the job to Tompkins. As a law student, Tompkins (pictured at left) heard Kent deliver a series of law lectures in New York in 1794-95, but he rarely emulated his master by writing lengthy opinions. In fact, he rarely wrote at all. Before Pierson v. Post, Fernandez writes, his opinions appear in reports of only eleven of 258 cases, and three of those “opinions” consisted of a single line announcing his agreement with his brethren. His opinion in Pierson v. Post was twice as long as any he had written before.Image credit: Senator Jacob HowardFor over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment "incorporated" the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed "privileges" and "immunities" gave no hint of a connection with the Bill of Rights.
Sir John Fastolf was a wealthy fifteenth-century knight and a successful military commander in the wars with France. During the last decade of his life, he was involved in a number of legal disputes with his East Anglian adversaries, the supporters of the Duke of Suffolk. This paper studies one of those disputes, which involved conspiracy and attaint actions between John Andrew, a Suffolk adherent, and Thomas Howes and John Porter, two Fastolf servants.“Feodo de Compedibus Vocato le Sewet: The 15th Century Prison 'Oeconomy'"
This dispute is interesting for two reasons. Most importantly, it shows that one cannot fully understand the operation of the fifteenth-century legal system without an awareness of the social and political context of litigation. Some contemporary litigation had a clear political nature and political considerations influenced the resolution of legal issues. All aspects of this litigation illustrates the interrelation between the operation of the legal and political systems. Often, legal actions and institutions were vehicles and arenas for political disputes.
This litigation also offers an opportunity to explore some fifteenth-century legal issues, especially those that arose in attaint actions. There is very little existing scholarship on actions of attaint. This paper, by studying an actual attaint in detail, provides further detail on this area of medieval English legal history. The paper is based on numerous primary sources in the plea rolls and Year Books.
In the Fastolf Papers in the Archives of Magdalen College, University of Oxford, is an account of payments and expenses of Sir John Fastolf made during ten years of litigation from 1449-1459, Fastolf Paper 42. One entry in this document is both puzzling and interesting. It reads:“Memorandum Quod: John Fastolf and the Founding of Magdalen College,” Magdalen College Record (2003)
Item paid by Thomas Howes . . . for the fee of shackles called the sewet (feodo de compedibus vocato le sewet) both for himself and for John Porter until the jurors impaneled in the attaint might appear before the justices of the King at Westminster
In this instance, the payment occurred in connection with an attaint brought by John Porter, a Fastolf servant, to overturn a jury verdict in a conspiracy case brought against him and another Fastolf servant, Thomas Howes by John Andrew, a Suffolk official and lawyer and a member of the East Anglian affinity of William de la Pole, the Duke of Suffolk.
This entry raises several interesting questions: what was the fee of shackles and why was it called the 'sewet'? The answer lies in the financial characteristics of the medieval century prison system, its 'Oeconomy.' Moreover, understanding the meaning of sewet does not answer the substantive question regarding the propriety of its imposition. The purpose of this paper is to explore these questions. In general, sewet was a payment of money or practice to make prison life less onerous.
The paper begins with an overview of the various fees charged prisoners by keepers in the medieval prisons, especially those in London, the Fleet, Newgate, Ludgate, the King's Bench Marshalsea and the sheriff's Counters. The charging of fees by keepers was a controversial practice. There were persistent complaints about these fees. From the 14th century through the 17th century, there were numerous regulations enacted detailing what fees were permissible and the amounts that could be charged.
The paper turns to use of irons, a controversial practice, both to determine what were considered the appropriate and inappropriate uses of irons and to understand the legitimacy of the fee for removing them, feodo de compedibus. A primary justification for the use of irons was to prevent prisoners from escaping. However, prisoners complained about the inappropriate use of irons and the imposition of fees to remove them. Again, over several centuries, numerous measures regulated such fees.
With this background, the paper then focuses on the meaning of sewet, a later spelling of suete, which was part of a term, suete de prisone. This term perplexed medieval scholars at the beginning of the 20th century. Although they correctly identified the core meaning, the primary investigation failed to understand that the various contexts in which it was used suggested that there were multiple meanings of the term. There was also contemporary confusion as to what Latin word was appropriate to use in official records. By the middle of the 20th century, Latham connected this Law French term with the Latin word, suavitas. Thus, sewet meant a payment of money for ameliorating prison conditions, making life there 'sweeter.' Although not disagreeing with this earlier scholarship, the paper argues for further refinement of the meaning, connecting the term also with the liability of keepers for the escape of prisoners. The paper reviews the multiple contexts and spellings of sewet and its equivalents to further explore its meaning and use. The paper asserts that the most common reason for paying sewet or suete de prisone was the removal the prisoner's irons. Removal of the irons increased the likelihood of escape and the potential for the keeper's liability for a fine or damages because of the escape as well liability for the debt of prisoner to the latter's creditor.
The paper then turns to an analysis of the propriety of charging sewet in the particular instance reflected in the entry in the Fastolf Paper 42. The use of irons was permissible in some instance and escape from the King's Bench Marshalsea was a recognized problem. However the use of irons was probably inappropriate in the case of Howes and Porter, given the reason for their imprisonment, their failure to pay a ransom to the king for their conviction in Andrew's conspiracy suit, and the low likelihood of their escape. While it is impossible to know the amount of the fee in this case, it may not be necessary as a 1445 statute appeared to prohibit the charging of sewet. Moreover, plea roll entries suggest that during the time of Howes and Porter were charged sewet, the statute was enforced strictly. In addition, Sir John Fastolf, who paid all these expenses, was a visible and easy target, for an abusive charge. Thus the paper concludes that charging of sewet to remove Howes' and Porter's irons was dubious and probably, although not clearly, inappropriate.
Magdalen College in Oxford was founded in 1458 by William Waynflete, Bishop of Winchester. This article discusses the role of Sir John Fastolf, a special benefactor of the college, in the founding. As this article explains, Fastolf’s property played a significant role in enabling Bishop Waynflete to establish Magdalen College.“Legal Profession in Medieval England: A History of Regulation,” Syracuse Law Review 48 (1998).
This article examines the history of the regulation of the English legal profession in medieval England. Two interrelated reasons make this a worthwhile endeavor: both the legal profession and its initial regulation emerged during this period. The primary objectives of this article are to identify and study the important legislation from the mid-thirteenth century to the end of the fifteenth century regulating the admission of lawyers to practice and the conduct of practicing lawyers. Critical regulations were adopted during this period. In addition, judges used their inherent power to control the admission of lawyers and sanction their misconduct. In studying this medieval regulation, this article discusses the problems and forces that led to the enactment of the various statutes and ordinances and identifies their objectives, analyzes the meaning and effect of these regulations, and attempts to appraise their historical and current significance. In addition to the historical interest in these matters, studying medieval regulation of the legal profession offers an important opportunity to discover the extent to which this initial regulation and the concerns that prompted it are similar to modern regulation and concerns regarding lawyers.“The Ambidextrous Lawyer: Conflict of Interest and the Medieval Legal Profession,” University of Chicago Roundtable 7 (2000).
Before turning to an examination of the medieval regulation, this article provides some historical background regarding the origins and emergence of the English legal profession and the general climate of opinion in the latter half of the thirteenth century.
In the medieval era, ambidexterity, the medieval term for conflict of interest, appeared in two primary contexts: lawyer discipline and the civil liability of lawyers to victims of their misconduct. This paper studies ambidexterity, a common form of medieval lawyer misconduct, in these two contexts. The paper examines the medieval regulation of ambidexterity by analyzing the different types of conflicts, the specific loyalty duties and their rationales, and the sanctions applied. Finally, the analysis identifies the ways in which medieval conflict of interest regulation is both similar to and dissimilar from its modern treatment. The paper identifies about 75 cases, arising primarily from 1278-1400, which were classified for discussion into five categories: switching sides in the same litigation (classic ambidexterity), adversity to a former client, adversity to a client on an unrelated matter, simultaneous representation of multiple plaintiffs or defendants, and conflicts with a lawyer's personal interest.
The paper concludes that these judicially developed loyalty norms were strongest and most commonly and strictly applied to classic ambidexterity, but that loyalty duties were also owed to former clients. In both categories, protection of confidentiality played an important role. Loyalty norms also arose with regard to adversity to client on an unrelated matter, but differently as it was created consensually through contractual retainers, not by judicial or regulatory fiat. Implementation of these norms occurred in lawyers' suits for arrearages in the annuities owed by clients. Potential conflicts of interest, simultaneous representation of multiple parties, were not treated as problematic and no loyalty norms arose in such cases. Nor were conflicts with a lawyer's personal interest considered a significant problem. Finally, although the medieval cases revealed interesting similarities with modern conflict of interest regulation, the differences were more pronounced. The medieval conduct was more egregious, the loyalty duties narrower, and the remedies more limited although more punitive. The paper then considers the civil liability of lawyers to victims of ambidexterity. This portion of the paper begins with a preliminary survey of the evolution of the civil liability of lawyers. The discussion then moves to an analysis of about 30 cases involving civil liability. The paper concludes, based on this subset of cases involving ambidexterity, that the civil liability of lawyers evolved apart from the development of negligence based liability and that the civil liability of lawyers was more limited in several respects than its modern counterpart. The paper concludes with some general conclusions regarding the medieval treatment of ambidexterity and by suggesting further areas of useful research.
Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers -- and hence the collective right of the people of the states to make decisions about government, including the extent to which rights were to be protected. The modern debate over the original meaning of the Ninth Amendment, moreover, reflects and embodies that the debate concerns the appropriate reading of a positivist Constitution.On Ninth Amendment history, check out the new book by Kurt Lash, The Lost History of the Ninth Amendment. More on that to come later.
How to create an on-line ID so that you can comment:
If you get a Google Account, will Google spam you?
An alternative: Open ID.
For a very long time, all that was known about Pierson v. Post, was what appeared in Caines’s Reports and a newspaper article published well after the fact, an account in the Sag Harbor Express of October 24, 1895, by the judge and local historian Henry Parsons Hedges (1817-1911). Hedges claimed to have met Jesse Pierson (1780-1840) and Lodowick Post (1777-1842). He judged them “specimens of physical power and high resolve that would have made them as champions formidable in modern or ancient times,” as well as “rich, resolute, [and] wilful.” According to Hedges, Jesse was walking home from his job as a schoolteacher “when he saw the fox fleeing from his pursuers and run into the hiding place,” which Hedges identified as “an old shoal well.” “ In a moment, with a broken rail, he was at the well’s mouth and killed the fox, threw it over his shoulder, and was taking it home when Lodowick, with his hounds and partisans, met him and demanded the fox.” Jesse demurred. “It may be you was going to kill him, but you did not kill him,” he retorted. “I was going to kill him and did kill him.”Capt. Post descended from parentage extremely low and poor; accordingly his education was rough and uncouth. Yet he possessed a strong desire to be thought a man of information and importance. This frequently led him to tell large, pompous stories, of which himself was ever the hero. He was a great swaggerer over those whom he found calculated to bear it; but to others he was supple, cringing, and mean.This contemporary was a quarrelsome man who invariably depicted his opponents in the worst possible terms. Perhaps Post’s gravestone was a more reliable guide to his character. “He was a respectable Magistrate, a kind relation, a good Patriot, and an honest man,” it proclaimed. Then again, perhaps even this testimony should be taken with a grain of salt. After all, de mortuis nil nisi bonum.
The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is a short bibliographic essay surveying the pre-war English-language empirical legal research focused on issues related to civil justice. The essay is arranged around the themes of general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, and civil juries. Accompanying the essay is a bibliography of early research articles, books, and reports related to civil justice.
bstract has just been posted on SSRN. It indicates that the article is forthcoming in the Journal of Supreme Court History, however the JSCH website lists it as appearing in the 2007 issue. In any case, here's the abstract:'To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, both reversed the decision of the district court below and — more importantly — redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying 'to any person within [their] jurisdiction the equal protection of the laws,' by creating what is now referred to as the 'heightened scrutiny' standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.
Pierson v. Post, 3 Caines 175 (N.Y. 1805) is one of the most commonly assigned cases in first-year Property courses. For many years our only information about the case, other than the report itself, has been a vivid but antiquarian account published in 1895. Recent years have seen a flurry of articles that provide a great deal more insight into the case and its context.This comment on an article by Ron Harris and Michael Crystal argues that on the theoretical as well as the historical level, there is no reason to assume that a legal system, like a sort of organism, wishes to replicate itself or propogate its genes, nor that it will typically do so, even in the supposedly hospitable environment of colonial relations. While legal transplantation in the British Empire was rampant, it was also multidirectional, with jurisdictions from around the world borrowing freely from each other, from the legal systems of other imperial territories as well as from outside the empire. More generally, the inherent complexity of legislating, even in the colonial context, makes harmonization an unlikely prospect in any empire.
Economic crises have been the midwife to dramatic social change throughout American history. For a conference on May 14, 2010, the Center for the History of Business, Technology, and Society at the Hagley Museum and Library in Wilmington, Delaware invites proposals for imaginative essays that explore the long-term consequences of panics, depression, financial contractions, and other episodes in which the American economy dramatically declined. Papers should suggest significant relationship between such episodes and societal change, including (but not limited to) migration, religion, consumption patterns, technological change, and business practices. We welcome proposals based on new research, as well as unpublished synthetic essays drawing on extensive secondary literature. Papers drawing attention to the little-known or little-appreciated impacts of crises would be especially compelling. Proposals of approximately 500 words summarizing the paper’s argument and sources accompanied by a c.v. of no more than 2 pages are due by November 1, 2009. Travel funds will be available for those presenting papers. Please direct proposals or queries to Carol Lockman, clockman@Hagley.org, or 302-658-2400.
ion, "Last year the H-Net leadership voted to add blogs and other services to its mix, and a pilot version of new services is expected in the next six months or so."the way the lists are used has changed, explaining the dip in message traffic. Some lists now have less discussion and instead focus on notices of upcoming conferences, job ads, or other announcements....
The H-Net service's most valuable items are its book reviews, written by volunteers on each list. Mr. Knupfer says more than 1,000 new reviews are posted to the lists — and simultaneously to the H-Net Web site — each year.
5,000 members for the first time in 35 years." The increase was "modest" -- only 152 new members. The data show, however, a troubling loss in the number of members in many of the higher dues-paying categories, as many faculty members and professional historians felt the effects of the economy. These losses were only offset by significant gains in the number of student members (whose memberships are subsidized by senior members). Students now comprise 28.2 percent of the membership—the highest proportion since 1996, when they accounted for 32.0 percent of the membership.
More members selected the history of religion as field of specialization (7.7 percent in all) than any other thematic category. Religion surpassed cultural history (selected by 7.5 percent of the membership), which has been the most popular subject category among members for more than 15 years. (Cultural history eclipsed social history as the field of choice in the mid-1990s.)
Members specializing in the history of religion were working in most of the geographic categories, but the highest proportions seemed to be studying early European or recent U.S. history.
Republican moments occur during periods when large numbers of normally quiescent citizens enter the public arena to struggle over long-term issues of principle. Constituencies that are under-represented in interest-group bargaining use mass protest and other forms of direct popular power to place their concerns on the public agenda. Aroused citizens disrupt cozy relationships among politicians, administrators, and interest group lobbyists. Examples include the Revolutionary era, the Jacksonian period, the Civil War and Reconstruction, the Populist era, the New Deal, and the 1960s. Most of the great rights we celebrate today were products of the unruly and passionate politics of republican moments. The Constitution, of course, erects a system of representative - not direct - democracy. Its most effective proponents sought to temper special interest politics with deliberations among an elite of virtuous representatives, not with pulses of direct popular power. The Bill of Rights, however, added a potentially subversive supplement to the representative scheme. Read in historical context, the First Amendment carves out the constitutional space for direct popular power. In the political theory and practice of the founding generation, the right of the people peaceably to assemble encompassed not only the right to meet, but also to exercise extra-institutional forms of power, ranging from nonviolent rallies and boycotts to the displacement of representative government by popular assemblies. Direct power was seen as a necessary corrective to the natural tendency of government to degenerate into corruption and tyranny. Here, as elsewhere, the framers deliberately built a conflict into the constitutional scheme, this one between representative government and direct popular power. The theory of republican moments has two major implications for legal doctrine. First, it provides arguments for expanding the protection of direct popular power under the first amendment. Understanding the long-run functions of direct power may help to forge the kind of civic courage that can sustain a commitment to free speech and assembly in the midst of popular tumult. Second, the theory suggests that courts and administrative agencies should give a broad construction to the statutory and constitutional products of republican moments. For brief periods of time, at a considerable cost to business-as-normal, direct popular power offsets the worst flaws of interest group bargaining. These times should be seen as precious - albeit unsettling - moments of effective democracy. When the level of participation subsides, courts and administrative agencies should serve as agents of the republican moment, preserving the thrust of republican laws against the relative lethargy and corruption of interest group bargaining. Failure to do so can only reflect, as Frederick Douglass lamented when the Supreme Court invalidated the Civil Rights Act of 1875, a failure of historical memory.
Lawyers in Twentieth-century Britain, Jack Beatson & Reinhard Zimmennann eds. (Oxford University Press, 2004). It appears in the University of Pittsburgh Law Review (2009). The abstract is too short, so here's an excerpt from the introduction: Jurists Uprooted examines the lives of eighteen emigre lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law….Jurists Uprooted is a work of many stories, not least of which is the heroism of Oxford University Press (OUP). Through the efforts of Kenneth Sisam, OUP came to the rescue of many legal scholars during the 1930s by providing them with financial support. And when OUP was unable to do so, Sisam took it upon himself to try to arrange for universities to bring them to England. OUP's and Sisam's generosity helped to ensure the refugees' safety, and ultimately enabled them to pursue livelihoods which permitted them to make invaluable contributions to law and scholarship.
MoreIn the first half of the twentieth century, a right to control one’s own body did not exist in the same sense that we take rather for granted today. The state enjoyed broad powers to infringe on individual rights in the name of protecting the public’s health and safety. While this application of the state’s “police powers” has a very long history in law, at the turn of the twentieth century changing medical understandings of the etiology of contagious diseases inspired new confidence that law could be employed in the service of preventing deadly epidemics, such as smallpox and diphtheria. In 1905, the U.S. Supreme Court ruled in Jacobson v. Massachusetts that states can require individuals to be vaccinated, thereby establishing a crucial precedent for public health law and policy. It was within this context that eugenics, a pseudo-scientific movement advocating social control over human reproduction, took root and thrived. “Eugenics” is an umbrella term that covers a wide range of ideas, policies, and programs, within which varying weights were assigned to the relative influences of nature and nurture. Some eugenicists, analogizing from the germ theory of disease, argued that the United States faced an extreme risk of degeneracy due to the unchecked breeding of the physically, mentally, and morally unfit whose defective “germ plasm” threatened to undermi
ne the health and welfare of future generations. Such fears were translated into state laws, founded on the Jacobson precedent, that mandated the sexual sterilization of the reproductively unworthy, with or without their consent--and often without their knowledge. In 1907, Indiana became the first state to mandate sterilization; by 1940, thirty states had enacted laws aimed at preventing criminals and the mentally “defective” from procreating. Legal challenges resulted in two landmark Supreme Court cases, Buck v. Bell (1927) and Skinner v. Oklahoma (1942). Both opinions remain well known and, for differing reasons, controversial today. Given the contemporary resurgence of scientific and popular interest in genetic explanations for a range of physical ailments and human behavior, both rulings are highly relevant as well. It is therefore most fortunate that two excellent and engaging books have arrived bringing renewed attention to these cases.
(And thanks to Bill for technical assistance with this post.)
Roy Mottahedeh, The Mantle of the Prophet: Religion and Politics in Iran
Ali Rahnema, An Islamic Utopian: A Political Biography of Ali Shari’ati
Ervand Abrahamian, Tortured Confessions: Prisons and Public Recantations in Modern Iran
Afshin Molavi, The Soul of Iran: A Nation’s Journey to Freedom
Shirin Ebadi, Iran Awakening: A Memoir of Revolution and Hope, co-written with Azadeh Moaveni
Dalia Sofer, The Septembers of Shiraz
I'll just add that although of course it's terrific to have Friendly's case files open, what I'd really love to have access to are the files at Cleary Gottlieb that would show him to be one of the great regulatory lawyers of the twentieth century. His very brief interview at the Columbia Oral History Office could only hint at his work for Pan Am.Henry Friendly (HLS ’27) served on the United States Court of Appeals for the Second Circuit from 1959-1974, serving as Chief Judge from 1971-1973. He clerked for Louis Brandeis in 1927-1928 and then entered private practice where he worked for the next 31 years before his appointment to the Second Circuit by President Eisenhower.
The majority of the materials found in the Henry J. Friendly Papers reflect his career as a federal judge on the Second Circuit Court of Appeals. Judge Friendly’s case files constitute the bulk of the collection. Also of interest are his bench books which contain hand-written notes on the cases he heard from 1959 to 1985. The collection also holds a small amount of Judge Friendly’s professional and personal correspondence, some of which dates back to his time as a student at Harvard University.
This article examines the policy behind President Lincoln’s Emancipation Proclamation. Lincoln wrote the Emancipation Proclamation with the assumption that it would be challenged legally, while this never happened because its legality became moot after the ratification of the Thirteenth Amendment, Lincoln aimed to keep the proclamation as narrowly focused and constitutionally solid as possible. The article explores constitutional limitations on emancipation, the conditions leading up to emancipation, and the lasting effects of the emancipation during and following the Civil War.
Glickman discusses the book and its contemporary implications with the History News Network here.Far from ephemeral consumer trends, buying green and avoiding sweatshop-made clothing represent the most recent points on a centuries-long continuum of American consumer activism. A sweeping and definitive history of this political tradition, Buying Power traces its lineage back to our nation’s founding, revealing that Americans used purchasing power to support causes and punish enemies long before the word boycott even entered our lexicon.
Taking the Boston Tea Party as his starting point, Lawrence Glickman argues that the rejection of British imports by revolutionary patriots inaugurated a continuous series of consumer boycotts, campaigns for safe and ethical consumption, and efforts to make goods more broadly accessible. He explores abolitionist-led efforts to eschew slave-made goods, African American consumer campaigns against Jim Crow, a 1930s refusal of silk from fascist Japan, a range of contemporary boycotts, and emerging movements like fair trade and slow food. Uncovering previously unknown episodes and analyzing famous events from a fresh perspective, Glickman emphasizes both change and continuity in the long tradition of consumer activism. In the process, he illuminates moments when its multifaceted trajectory intersected with fights for political and civil rights. He also sheds new light on activists’ relationship with the consumer movement, which gave rise to lobbies like the National Consumers League and Consumers Union as well as ill-fated legislation to create a federal Consumer Protection Agency.
A powerful corrective to the notion that a consumer society degrades and diminishes its citizenry, Buying Power provides a new lens through which to view the history of the United States.
This essay addresses the background to and significance of Tarble's Case (1872), in which the Supreme Court concluded that state courts lack the power to issue habeas corpus to challenge the lawfulness of detention by federal officials.The second is Federal Question Jurisdiction and Justice Holmes:
Smith v. Kansas City Title (1921), and other cases in which a federal ingredient is part of the plaintiff’s well-pleaded state law complaint, are treated as second class citizens for original federal question jurisdiction under §1331. This second class status is partly due to Justice Holmes’s pronouncement that, “A suit arises under the law that creates the cause of action.” This article suggests, however, that cases along the model of Smith were quite familiar to the federal courts historically and may even have been the primary focus of the 1875 federal question statute. Indeed, Holmes’s dissent in Smith was itself something of a novelty, not the majority’s opinion. Holmes’s view may have been the product of his jurisprudential attempts to dispense with the concept of “primary rights.” What is more, Holmes’s own test for jurisdiction may not have represented the simple rule it is now thought to embody.
G. Edward White, University of Virginia School of Law, has posted Revisiting the Ideas of the Founding, which is based on his 2008 Taft Lecture at the University of Cincinnati College of Law. It will appear in the June 2009 issue of the University of Cincinnati Law Review. Here’s the abstract:When the ideas of the founding period of the American republic have been studied by legal scholars, they have tended to approach that inquiry from a particular perspective. They have begun by positing a set of ideas as central to the interpretation of the United States Constitution over the course of its history, and have then proceeded to examine the status of those ideas in the founding period against the backdrop of their subsequent development over more than two centuries. This posture toward the ideas of the framing, I will be arguing, has produced two distorting effects on their recovery. The first effect has been to overstate the significance of some constitutional ideas with which later generations of Americans have been preoccupied; the second has been to understate the special importance attached to other ideas of the founders.Image Credit: William Howard Taft's Official Portrait
Has the idea of American exceptionalism hobbled the study of American history? NYU University Professor of the Humanities Thomas Bender argues that it has. A study of American history taking into account world events and viewpoints, he argues, would result in a more contextualized and cosmopolitan discipline, helping historians to better understand what happened in American history and why, but also what it means. Bender traces the study of history from the “men of letters” historians of the nineteenth century to historians of the Cold War and the present day, explaining how calls for a more worldly American history curriculum have been rebuffed.
Richard A. Paschal, George Mason University Law School, has posted Constitutional Birth Pains, a review of William M. Wiecek's contribution to the Oliver Wendell Holmes Devise History of the United States Supreme Court, The Birth of the Modern Constitution: The United States Supreme Court, 1941-1953 Although the review essay is a bit old--it originally appeared in the Green Bag 2d, 10 (2006)--I realized the other day that some followers of the blog are unfamiliar with the saga of the Holmes Devise. If you're in that category, the first few pages of the Paschal's review will get you started, but you should then follow the trail through his footnotes, especially to this essay.
The reenactors are:In 1934, John Dillinger’s girlfriend, Evelyn “Billie” Frechette [pictured below], was put on trial in room 317 of the St. Paul Federal Building, now Landmark Center. Frechette was accused of having knowledge of a federal warrant for Dillinger and harboring a criminal. Coinciding with the Hollywood release of the movie “Public Enemies” starring Johnny Depp as John Dillinger [Depp is the one on the left], Landmark Center will present a trial reenactment featuring top Minnesota attorneys and a Minnesota Supreme Court justice, on July 14 from 7-9 p.m. A discussion panel will immediately follow the reenactment, which--together with the reenactment--will fulfill 2 CLE credits.
Honorable Paul H. Anderson
Update: Every time I see one of these lawyerly re-enactments of a historical or fictional event, often involving Lincoln or Shakespeare (as here and here and here), I wish some subtle practitioner of cultural studies with an interest in law would view a whole parcel of them and tell us all what the heck is going on. If it's just antiquarianism, I suppose the phenomenon is uninteresting, but I suspect there's more to it than that.Hat tip.Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism has been used as a means to further the economic exploitation of workers. Thus, a robust vision of rights of belonging must incorporate economic rights. In THE LOST PROMISE OF CIVIL RIGHTS, Professor Risa Goluboff details the development of civil rights law in the years leading up to Brown v. Board of Education. Goluboff reminds us of an alternative approach to civil rights, based in economic empowerment and the Thirteenth Amendment, which government lawyers pursued during and directly after the New Deal Era. Destined to be a classic of constitutional theory, THE LOST PROMISE challenges constitutional scholars to re-think our paradigm of civil rights. Based on Goluboff’s history, this review explores rights of belonging as an alternative way of looking at civil rights, which incorporates the economic rights of workers along with the quest to end race discrimination. The paradigm of belonging and empowerment will help to bring about substantive equality rooted in the principle of anti-subordination.
This will be a particularly timely look at Abraham Lincoln's exercise of presidential power while exploring its modern relevance. The symposium corresponds with a year-long national celebration of the Bicentennial of the birth of our sixteenth president.More.
The case was United States v. Shipp. There were nine defendants, all charged with contempt of court—contempt of the Supreme Court, that is. The U.S. attorney general had filed the charges against them directly with the court, thus giving it original jurisdiction in the matter. The petition alleged that the defendants and other people engaged in actions “with the intent to show their contempt and disregard for the orders of this honorable court ... and for the purpose of preventing Ed Johnson from exercising and enjoying a right secured to him by the Constitution and laws of the United States.”
It was a full-blown trial. There were special prosecutors, dozens of witnesses and a special master assigned to take the evidence. The trial record exceeded 2,200 pages. Each side was given a full day of oral argument before the justices.
Chief Justice Melville W. Fuller, who normally encouraged his colleagues to write the court’s opinions, decided that the importance of this case demanded that he take on the responsibility. Before reading the opinion that accompanied their verdict, Fuller—in his typically soft, almost inaudible voice —noted to a packed courtroom that the Supreme Court had entered new territory for which there was no precedent.
A hundred years later, United States v. Shipp has faded into the haze of precedent and history, but legal historians say its impact remains undiminished. Shipp has been cited as the genesis of federal habeas corpus actions in state criminal cases. The case also was a pivotal turning point in asserting the importance of the rule of law and the need for an independent judiciary.
Any legal historian out there at work on his or her first book manuscript might want to check in on two recent views of the academic publishing. The first is a report from the recent meeting of the Association of American University Presses; the second is Stanley Katz’s speculations about what might be down the road. When it comes to books written for academic audiences in the humanities or social sciences, Katz writes, “I have no doubt that we are rapidly moving into an environment of tiny initial print runs (if there is any print run at all) followed by print-on-demand, combined with some form of electronic delivery.”