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A plea for proper cites to archival records...

While sifting through a few different collections of records this week, I wanted to be sure to track down a couple of sources mentioned in secondary works, and also to see what else might have been alongside those documents in the same files. One citation had the author and recipient of a letter, and its date. That's all. The bibliography disclosed the collections consulted, so I could narrow it down to a couple of possible collections. But the citations contained no box or file numbers. It should have been easy to find the letter, but it was not in any of the files I examined.

Citations sometimes get truncated in a different way. Readers of law review articles will be familiar with a citation practice unknown elsewhere: "on file with the xyz law review," or "on file with author." Twice I have tried to consult such sources, and contacted an author and a law review about them. Both times the sources could not be located.

I suspect that both sorts of citation practices are often used to save space. A press might ask an author to cut down the length 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.

So what's an author to do when faced with an editor's effort to trim your citations? For starters: just say no. And to back yourself up: most archives have guidelines for how to cite to their materials, like the guidelines from the National Archives of the U.S., and the Canadian Library and Archives.

Please. Your colleagues will love you for it.

Images 1 and 2.

Digitizing the Year Books: The Next Step

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]."

Hat tip: H-Law

FDR & FF, part II: The Justice gets Mothballed

There was much serious correspondence between Justice Felix Frankfurter and President Franklin Roosevelt during the early 1940s. But their letters were often personal and affectionate. Another round between the soldier and his Commander-in-Chief was set 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.”

“My dear ‘General’ Frankfurter,” Roosevelt replied.

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.

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.

And Frankfurter responded:

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,

Image credit: FF, FDR.

Gender and the New Zealand Bar, 1926

While I'm traveling, here's a research note I recently rediscovered from my Fulbright in New Zealand over a decade ago. I still think it's revealing of the masculinist assumptions of the early twentieth-century New Zealand bar, albeit acted upon back "home."

The note is summaries two letters among the papers of Sir Francis H.D. Bell at the Alexander Turnbull Library in Wellington, which is now part of New Zealand's National Library. Bell was New Zealand's leading lawyer in the early twentieth century, a very imposing figure who revered the bar and its traditions, not least of all as a proving ground of masculinity, which he tended to think of in athletic and fraternal terms, as one would expect from the president of the Wellington Rugby Football Union and the Wellington Cricket Association, and the Grandmaster of the Grand Lodge of Antient Free and Accepted Masons of New Zealand.

When Bell wrote these letters he had just finished a lengthy term as Attorney General under a Reform Prime Minister. He was in London and writing the current Attorney General (Francis Rolleston) and Solicitor General (Arthur Fair, who had served under Bell).

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."

Bell to Arthur Fair, May 28, 1926. "I have arranged with the young lady barrister to be a Junior without audience at a moderate fee and to get up the whole of the evidence. I sent her the print and she is doing the job exactly as I hoped, so that at any conference of Counsel or at the Hearing if any question of fact arises, she will be able to supply the answer. The solicitors will never do it and since Northcote's death we have never been able to get a Junior to master the facts when the evidence is voluminous."

For the New Zealand context, see Jock Phillips, A Man's Country, rev. ed. (Penguin, 1996) and Carol Brown, "Ethel Benjamin: New Zealand's First Woman Lawyer" (B.A. Hons. thesis, University of Otago, 1985). For the U.S., see Michael Grossberg, "Institutionalizing Masculinity: The Law as a Masculine Profession," in Meanings for Manhood, ed. Mark C. Carnes and Clyde Griffen (Chicago: University of Chicago Press, 1990).

Image credit.

Mashaw on Antebellum Federal Administration

Jerry Louis Mashaw, Yale Law School, has posted Center and Periphery in Antebellum Federal Administration: the Multiple Faces of Popular Control, which is forthcoming in University of Pennsylvania Journal of Constitutional Law. Here’s the abstract:

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.

Frankfurter, FDR, and "Inter leges arma silent"

Needing a break from another piece of my war project, I turned to archival research this week, and I stumbled upon an unlikely interchange. I was looking for records from Felix Frankfurter's service in the U.S. Army JAG Corps, as a window into his thinking on war and security. I found nothing on this in Frankfurter's World War I era War Department 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.

The interchange begins:

March 6, 1939

Dear C-i-C:

Inter leges arma silent was not a maxim of the hard-headed Romans. Nevertheless, under the circumstances, it is, I suppose, sensible for me to lay down my paper arms by resigning my commission as a Major in the Reserve Corps.

There is probably some official in the War Department to whom I might appropriately make this martial communication, but I should like to salute once more my Commander-in-Chief before Senator Nye takes away his constitutional powers!

With great respect, I am, Sir,

Faithfully yours,

Major, J.A.G.-Res.

The president responded:

March 14, 1939

My dear Major Frankfurter --

Your effort to retire from the United States Army at this time of crisis has been rejected.

If instead of consulting the words of Cicero (a mere talker) to find the motto "inter leges arma silent", you had consulted the famous phrase of Major General Ceasar (a doer), "leges impellent arma", i.e., laws make for war -- you would see that it is more essential than ever that you remain in the Army....

I regret that it is impossible at this moment to consider you for promotion to the rank of Lieutenant Colonel. I am informed that this will depend somewhat on your conduct during the next few years....

With great respect, I am, Sir.

(signed) Franklin D. Roosevelt

Commander-in-Chief

More to come!

Photo credits: Frankfurter, FDR.

Medieval Studies: Call for Papers

The International Congress on Medieval Studies has issued a call for papers for the conference "Law as Culture: Lordship, Profit, and Rationality," to be held at Western Michigan University, Kalamazoo, Mich., on May 13-16, 2010. The organizers are Alexander Volokh, Emory Law School, and Paul Hyams, Cornell University. The call follows; information on submissions is here.

Both 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?

Hat tip: H-Law

Histories of Legal Transplantations

The symposium issue of Theoretical Inquiries in Law, "Histories of Legal Transplantations," is now out.

Western Legal Imperialism: Thinking About the Deep Historical Roots
James Q. Whitman

The Concept of Law: A Western Transplant?
Jean-Louis Halpérin

Transplantation and Mutation in Anglo-American Trust Law
Joshua Getzler

Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery
Christopher Tomlins

Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication
Amalia D. Kessler

The Invention of Legal Primitivism
Steven Wilf

Race, Marriage, and Sovereignty in the New World Order
Jane Dailey

Constitutional Transplants
Morton J. Horwitz

Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine
Ron Harris and Michael Crystal

Jefferson Goes East: The American Origins of the Israeli Declaration of Independence
Yoram Shachar

Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling
Assaf Likhovski

American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?
Pnina Lahav

Foreign Law Between "Grand Hazard" and Great Irritation: The Bulgarian Experience After 1878
Jani Kirov

Legal Transplants and the Frontiers of Legal Knowledge
Michele Graziadei

Waldron on Natural Right in The Nineteenth Century

Jeremy J. Waldron, NYU Law School, has posted The Decline of Natural Right, which is forthcoming in The Cambridge History of Nineteenth Century Philosophy, ed. Allen Wood and Songsuk Susan Hahn (Cambridge University Press). Here is the abstract:

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?

Curry reviews Friedman on Judge John Minor Wisdom

Champion of Civil Rights: Judge John Minor Wisdom by Joel William Friedman was reviewed for the Law and Politics Book Review by Brett W. Curry, Department 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).

The full review is here.

Image: John Minor Wisdom.

Novkov reviews memoir of Betty Roberts, first woman justice on the Oregon Supreme Court

With Grit and by Grace: Breaking Trails in Law and Politics - A Memoir by Betty Roberts is reviewed for the Law and Politics Book Review by Julie Novkov. Novkov 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.

The full review is here. Justice Roberts' website is here.

Walker on "the Ghost of Jim Crow"

Just out from Oxford University Press is The Ghost of Jim Crow: How Southern Moderates Used Brown v. Board of Education to Stall Civil Rights, by Anders Walker, St. Louis University Law School. Here's the publisher's summary:

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.

Somin on Ober on Democracy and Knowledge in Classical Athens

Democracy and Political Knowledge in Ancient Athens is a short review essay 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.

Weiner honored at Rutgers

Legal historian Mark Weiner, has been named the 2009-2010 Chancellor’s Distinguished Research Scholar at Rutgers University, Newark. The award "honors professors who 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.

Weiner has also been named a Fulbright Scholar for fall 2009. He will travel to University of Akureyi, Iceland to teach "an intensive course on U.S. constitutional law and to conduct research for a new book about the destruction of clan identity as a prerequisite for the development of the rule of law and the contemporary historical consciousness of medieval kinship structures and legal institutions." Weiner was also selected by students as Professor of the Year in spring 2009.

Congratulations!

Goluboff on Fundamental Rights in the Justices' Papers

Risa Goluboff, University of Virginia School of Law and Department of History, has posted on bepress Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between them Reveal about the History of Fundamental Rights, which is forthcoming next year in the Stanford Law Review. Here is the abstract:

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.

Sunday Book Round-up: works on Marian Anderson, I.F. Stone, George Washington, Ellis Island, and WWI

THE SOUND OF FREEDOM: Marian Anderson, the Lincoln Memorial, and the Concert That Awakened America by Raymond Arsenault is reviewed in the Washington Post.

Jackson Lears reviews AMERICAN RADICAL: The Life and Times of I. F. Stone by D. D. Guttenplan for the New York Times.

The Boston Globe takes up AMERICAN PASSAGE: The History of Ellis Island by Vincent J. Cannato.

Also reviewed in the Washington Post is THE ASCENT OF GEORGE WASHINGTON: The Hidden Political Genius of an American Icon by John Ferling, and in the New York Times, WORLD WAR ONE by Norman Stone.

Pierson v. Post: The Appeal

[This is the fourth and final installment in a series of posts on the case of Pierson v. Post. The series begins here.]

The Appeal

If one puzzle was why litigants bothered to commence and appeal a suit when so little money was at stake, another is why the judges of the New York Supreme Court devoted so much attention and learning to the case. The judges had it before them for quite some time: the jury reached its verdict in Fordham’s court on December 30, 1802, and the New York Supreme Court did not announced its decision until September 10, 1805. It reversed the judgment of the justice’s court and awarded Pierson $121.37 (about $2,150 today) for his “costs and charges” in the appeal.

Fernandez puts the appeal in the context of a campaign by New York’s elite lawyers to raise the sophistication of New York’s bench and bar. Encouraging JPs to pay some attention to the official “law in the books” was one important goal. This could be accomplished by the publication in New York of a well-known legal genre, the JP manual, such as Samuel Brown, The Justice’s Directory, or, Points on Certiorari: Being a Digest of the Cases Reported by Johnson and Caines (1813). It could also be advanced through the aggressive review of the JPs’ judgments. Fernandez writes that by 1814 the New York Supreme Court was handling hearing nearly two hundred appeals from Justice’s Courts every year, even though many involved small monetary judgments. She posits that “a disciplinary process [was] at work.”

Another target of the campaign to create “learned law for New York” was the legal profession itself. A display of learning could up the ante for legal argument, exclude the socially undistinguished from remunerative litigation in a kind of intellectual arms race, and affirm the well-educated lawyer’s own sense of the bar as a learned profession. 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.”

Fernandez notes that in colonial New York, as elsewhere in the common-law world, elite lawyers tried to raise the level of learning in the legal profession with “moots,” arguments of hypothetical cases before a select audience, often of law students. New York’s judges, she speculates, may have had a similarly didactic aim in Pierson v. Post. Every learned lawyer ought to have devoted hours of their apprenticeship to reading the Justinian and the great natural law jurists of the European continent on the origins of property. When the case bobbed up from Fordham’s court, they seized it as an occasion to “create a more refined legal profession and a body of sophisticated law for New York State.”

For Pierson v. Post to serve the judges’ purpose, it would have to turn on fundamental principles of law rather than some failure to comply with a trivial provision of the Twenty-Five Dollars Act or the overlooking of a well-established rule of law. Fernandez’s discovery of the judgment roll has now revealed that the judges might have overturned the case on narrow grounds and instead chose to make the case turn on the acquisition of property.

We knew from Livingston’s dissent that Sanborn listed six errors in the proceedings before the JP and that he ultimately abandoned all except the third. The judgment roll preserves Sanborn’s original list. As Sanborn had it, his client suffered the “manifest error” of the JP court in the following ways:

1. Sanborn argued that Fordham’s order to the constable to summon Pierson was directed to either of the two constables of the town of Southampton when it should have named a single person;

2. Pierson was summoned on the same day as the trial, without the minimum six days’ notice required under the Twenty-Five Dollar Act.;

3. Post’s complaint was “not sufficient in law for the said Lodowick Post to have[,] maintain[,] or support his said action”;

4. The jury summons did not specify the reason for which the jurors were to appear;

5. Fordham “found” the court costs when the jury ought to have done it; and

6. “By the law of the land judgment ought to have been rendered and given” for Pierson, not Post.

Note two things about this list. First, the first, second, fourth, and fifth errors are all procedural. Of these, only the second seems very serious, and it is mitigated by Fernandez’s discovery of a partially illegible document suggesting that Pierson did in fact have notice of the suit, only that he received it orally rather than in writing. Fernandez writes of the fifth error that Fordham surely itemized and totaled up the court costs but that this was not inconsistent with the jury having “found” them once he did.

Even if the Supreme Court judges were not intent on a display of learning they might have rejected these arguments. As Donahue writes, they are “the kind of picky points that might well be dismissed on the ground of harmless error, or, to put it more colloquially, ‘we’ve got to cut the JP’s some slack.’” This attitude would also have been consistent with the position Samuel Brown took in his JP manual: “The sound rule of construction, in respect to the courts of justices of the peace, is to be liberal in reviewing their proceedings, as far as respects regularity and form.”

Second, neither the third error, upon which Sanborn ultimately took his stand, nor the sixth (which seemingly duplicates the third) identified the particular legal theory Post had advanced. As far as they go, they were consistent with either a tort or a property theory of the case. Even so, Fernandez thinks that the tort theory would have failed (because of the recreational nature of Post’s hunting) and it would have failed to advance the judges’ goal of making a convincing display of their legal learning (because it would only require the affirmation of a well-recognized principle of the common 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.

The authors of the majority and dissenting opinions were also well-trained; their disagreement may well have been a matter of “personal politics,” to use Bethany Berger’s phrase. Berger notes that Henry Brockholst Livingston and Daniel Tompkins were both members of New York’s political elite. Livingston had been elected to the state assembly in 1786 and was appointed to the U.S. Supreme Court in 1807. Tompkins served as governor of New York (1807-1817) and Vice President of the United States (1817-1825). Both opposed the Federalists and backed Thomas Jefferson in the fierce presidential election of 1800.

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.”

Finally, what about the dog that didn’t bark? If Kent was so invested in the campaign for a learned law, why did he not write an opinion? In 1805 he was chief justice, and on many other occasions he welcomed the chance to flaunt his erudition. 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.

Fernandez speculates that Kent, in effect, pushed his former student Tompkins to the front of the class and made him recite his lesson. “How else was the process of ‘upgrading’ the legal community going to proceed without providing more junior members of the bar and bench with such opportunities?” she writes. If this was Kent’s aim, Fernandez thinks he must have been disappointed in his pupil, for Tompkins “robotically” followed Sanborn’s argument and did not produce a fresh analysis of his own.

Final Judgment

The last word on Pierson v. Post must go to its first historian. “Through this case the actors yet live,” wrote Hedges in 1895. “They speak, although dead, with a record and a judgment that far outlasts all other monument to their memory. Pierson and Post, Peace to their Ashes!”

Image credits: Colden, Sanford, Kent, Livingston, Tompkins, Anti-Rent War

The working paper version of this series is here (bepress) or here (ssrn).

Thomas on Newspaper Reportage on the Fourteenth Amendment

George C. Thomas, III, Rutgers-Newark Law School, has posted Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1? which also appears in Journal of Contemporary Legal Issues 18 (2009). Here's the abstract:

For 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.

Image credit: Senator Jacob Howard

Rose on Medieval Law and Lawyers

Jonathan Rose, Arizona State University Law School, has posted on SSRN several items from his "backlist":

“Litigation and Political Conflict in Fifteenth-Century East Anglia: Conspiracy and Attaint Actions and Sir John Fastolf,” Journal of Legal History, 27 (April 2006): 53-80.

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.

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.

“Feodo de Compedibus Vocato le Sewet: The 15th Century Prison 'Oeconomy'"

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:

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.

“Memorandum Quod: John Fastolf and the Founding of Magdalen College,” Magdalen College Record (2003)

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.

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.

“The Ambidextrous Lawyer: Conflict of Interest and the Medieval Legal Profession,” University of Chicago Roundtable 7 (2000).

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.

Pierson v. Post: Proceedings in the Justice's Court

[This is the third in a series of posts on the case of Pierson v. Post. The series begins here.]

Proceedings in the Justice’s Court

The limited view of proceedings in the trial court from the published opinion has long frustrated teachers who like to have their first-year students consider how lawyers shape the raw facts of a dispute into a cause of action. Recently, Angela Fernandez of the University of Toronto Faculty of Law discovered the “judgment roll” in the case and posted her transcription on the website of the Law and History Review. You may peruse it there, view pictures of the original, and read her article interpreting the “Lost Record” and several scholarly comments.

Pierson and Post had their altercation on December 10, 1802. Before the month was out–on December 30, in fact–their dispute was before John N. Fordham, a Justice of the Peace. We now know that Post claimed an injury of up to $25, the maximum under the streamlined procedures of the Twenty-Five Dollar Act of 1801. Apparently Post did hire a lawyer to write his complaint, for, as Charles Donahue has observed, it was too well-framed to have come from a lay pen. At trial however, the litigants appeared “in their proper person”–that is, without representation by counsel.

The judgment roll contains nothing like a transcription of the proceedings, but it does reveal a few more nuggets about the trial. It states that Fordham convened his court in a private residence, “the house of Hugh Gelston,” which was located in Southamption in Suffolk County. In keeping with the Twenty-Five Dollar Act, the constable had summoned a panel of twelve veniremen, from which Fordham selected a jury of six by drawing names out of a box. Seven witnesses were summoned to testify.

Further, although we do not know exactly how Post made his case, we do know from his declaration that he alleged that Pierson acted “maliciously”--that is, for the purpose of harming Post, and not for some other reason, such as a desire to kill a verminous animal. The latter would seem to have been a good argument for Pierson, because “vermin” constitute a subcategory of animals ferae naturae that are always nuisances, and incapable of being owned by anyone. Moreover, as recently as 1791, Southampton had placed a temporary bounty on foxes, which were carrying off the chickens of the town.

This allegation, the writ Post obtained (trespass on the case), and the facts of the underlying dispute would seem to point to a theory of intentional tort. As Charles Donahue put it, “the point of Post's suit against Pierson is not that Pierson took Post's fox. The point is that Pierson interfered with the hunt.” Besides, if “the gist of the action were Post’s possession (and hence ownership) of the fox, the wrong form of action was used. It should have been trespass, not trespass on the case.”

It happens that under the common law Post would face a possible fatal obstacle if he framed his case as an intentional tort. If he had been hunting for commercial reasons–as the plaintiff did in the great case of Keeble v. Hickeringill (Q.B. 1707)–then he would have suffered a cognizable harm. But Post was hunting for recreational purposes, and the common law refused to protect “things of mere pleasure and delight” (such as recreation). If Fordham knew his law, Post might have lost his case.

Why wasn’t this obstacle fatal to Post’s suit? One very likely possibility was that in fact Fordham did not know his law. Although we know nothing about him, other than that he was a Southampton man, a legal commentator generally assumed that New York’s JPs were “plain people, unacquainted with legal learning.” We have no reason to think that Fordham was an exception. Thus, Fendandez suggests that he and the jurors might well have been “inclined to look at what happened, take a more common sense approach, and give Post a remedy without worrying too much about what category of law to attach it to.”

On whatever theory, the jury found for Post “seventy-five cents for his damages besides his costs.” Those costs Fordham set at $5 (about $100 today), which was the maximum under the Twenty-Five Dollar Act. Seventy-five cents in 1802 is roughly the equivalent of fifteen dollars today. A nice fox pelt was worth about $1.

More here.

McAffee on Treanor on Amar on the 9th Amendment

Taking History Seriously: Reflections on a Critique of Amar's Treatment of the Ninth Amendment in His Work on the Bill of Rights is a new paper by Thomas McAffee, William S. Boyd School of Law, UNLV. Here's the abstract:

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 Post Comments

Updated & moved to the top of the blog

New issue: If you would like to leave a comment, and you can't find the "comments" link at the bottom of a post, it is most likely because your cursor is hovering over the "share" widget. (The share widget enables readers to share a blog post through social networking sites.) To reveal the "comments" link, just move your cursor to another area on the blog. The share widget will revert to a small link, and the "comments" link will appear below it.

And a tip: If you'd like to compose a comment, and then copy and paste it to the blog, avoid using wordperfect for that (even though wordperfect is my favorite word processing program!). There seems to be an incompatibility, so that when I copy and paste from wordperfect for a draft post, the blog crashes. If you copy and paste from wordperfect and you can't get the comment to post, please paste it into (or compose it in) Word, and copy and paste from there.

Thank you for contributing. If you are new to blog commenting, it may take a little while to figure out the first time. After that, I promise, it will be simple. And then you'll be able to easily comment, not only on this blog, but many, many others.

If you keep running into trouble...

First, wait a while and come back, in case Blogger has been undergoing maintenance. Then, if you follow all the directions, and you are getting error messages or otherwise running into trouble: at that point it would be best to ask an IT person for help, or ask a blog-friendly acquaintance to walk you through it. Difficulties with access are infrequent, but can happen. It's hard for me to help you remotely, and I am not an IT specialist. Someone on-site with you can help you more effectively.

The original post follows:

Some readers have run into a little trouble trying to post comments on this blog. It should be easy, but needing an on-line I.D. can lead to confusion. So here's a trouble-shooting guide. (But you don't need to read this to figure out how to comment, unless you find this helpful. Instead you can simply follow the links after you click on "comment." Come back to this post if you run into trouble or have questions.)

About commenting:

• Comments are always welcome, and you can post them by clicking on the "comment" link below any post.


• Completely anonymous comments are not permitted, but you can create an alias so that you don't have to post a comment under your real name.


• Comments are moderated. This is unfortunate but necessary because when we had unmoderated comments, the blog received lots of spam comments. I approve all comments on the substance of the post. I reject spam comments and comments directing readers to third party commercial sites. Criticism of posts or of scholarship cited in posts is welcome, however ad hominem attacks are not welcome. Comments are usually approved very quickly. It takes longer when I am traveling and away from e-mail.

How to create an on-line ID so that you can comment:

• Some readers are deterred from commenting because you need to have an on-line ID. This is to prevent completely anonymous comments, which tend to attract trolls (i.e. mean people who degrade rather than contribute to the discussion). It is very easy to create an on-line ID, so I encourage you to try it.


• There are two options for an on-line ID: a Google Account ID or using Open ID. The quickest and easiest thing to do is to create a Google Account. Either way, it's free.


• To create a Google Account, you simply need to enter your e-mail address, enter a password, and enter a "Display Name." Your display name will appear in your comments. You get to decide whether to use your "real" name. Among regular commenters, Alfred Brophy uses his "real"/off-line name. "Shag from Brookline" uses an alias. I have no idea what Shag's off-line identity is. If you would like to comment without disclosing your identity to readers, that's how to do it.


• If you use Gmail, you already have a Google Account. Use your Gmail sign-in to post a comment. (If you don't use Gmail and don't want to, you don't need to have a Gmail account just because you create a Google Account.)

If you get a Google Account, will Google spam you?

• No. Entering your e-mail address to create a Google Account does not cause you to receive spam from Google. I was very worried about that. But in over 2 1/2 years since I created my Google Account, I have not received one message from Google.

An alternative: Open ID.

• Rather than a Google Account, you can sign in via OpenID. That service is described as eliminating "the need for multiple usernames across different websites, simplifying your online experience."


• When you click on "How do I get an OpenID," you get this answer on the website: "Surprise! You may already have one. If you use any of the following services, you already have your own OpenID." You can use your sign-in for AOL, Yahoo, Flickr, and other services to use OpenID. Follow the links from this page.

Image credit.

Pierson v. Post: The Protagonists

[This is the second in a series of posts on the case of Pierson v. Post. The series begins here.]

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.”

Readers have never known just how far to credit Hedges’s account. Our knowledge of the case improved significantly with the appearance of a spate of articles between 2002 and 2009. This note summarizes some of “the new learning.”

The Protagonists

Because of the youthfulness of the litigants and what must have been a great disparity between the expense of the litigation and the value of the fox, generations of property teachers have speculated whether animosity between the litigants’ fathers, who must have paid the bills, was behind the case. Property teachers dating at least from the great James Casner and Barton Leach have suspected that the dispute had an ethnic dimension. It was a squabble between a “stubborn affronted Dutchman” and an “English-descended violator of the fox-hunter’s code,” they speculated, seemingly on the supposition that “Lodowick” was a Dutch name. In an article published in 2006, the law professor Bethany Berger points out that the name was “as likely English or Scottish.” (One might add that if the Posts were Dutch, Hedges would have discovered the fact and woven it into his tale.) Now it appears that although a social conflict was at work, it was not ethnic but a clash between an established member of a traditional society and an ostentatious arriviste.

Jesse Pierson’s family had deep roots in his community, Southampton, New York. His father, David, fought in the Revolutionary War and, according to Hedges, was“of the best blood of England: so strong in Calvinist inclinations and proclivities that some called him a fatalist.” Berger adds that David was elected thirteen times as the town’s “fence viewer,” “charged with ensuring that individuals maintained their portion of fence against straying animals and did not fence in land that was not their own,” or as its commissioners of highways. His service confirms Hedges’s claims for his stature in Southampton society.

The Piersons probably regarded the Posts as vulgar upstarts, who, with their fox hunting, aped the English gentry and trampled upon social conventions. Nathan Post had become wealthy not through peaceable, virtuous agriculture but through war and commerce. Their appearances in local histories, Angela Fernandez reports, were “usually in association with a lucrative economic interest they were involved with such as whaling.” They lived in town, in what Hedges described as “a capacious dwelling,” with well-decorated walls, wainscoting, and other touches “in what was then thought superior style.” (It also had a whipping post for his slaves, which Hedges claimed to have seen.) Nathan had gained a financial stake as a privateer during the Revolutionary War and made still more money trading with the West Indies. A contemporary who tangled with him in a minor affair of town politics left a scathing description:

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.

In any event, and as Hedges wrote, “If a contest should arise between these sons, and if the fathers should each advocate the cause of his son, it would be no ordinary conflict.”

Image Credit: William Merritt Chase, The Pot Hunter (1894)

More here.

Kritzer on Early Empirical Research on Civil Justice

Early Empirical Research on Civil Justice has just been posted by Herbert M. Kritzer, University of Minnesota Law School. Here's the abstract:

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.

Bressman on Craig v. Boren and Brennan's 'Heightened Scrutiny' Test in Historical Perspective

A New Standard of Review: Craig V. Boren and Brennan's 'Heightened Scrutiny' Test in Historical Perspective is an article by Jeremy Owen Bressman. The abstract 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.

Image credit.

Pierson v. Post: The New Learning

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.

I assign the case every year in my own Property course and, in the summer, I use it to introduce foreign-trained lawyers to the common-law method. I suspect that in due course the casebook editors will update their notes to incorporate the findings of the recent articles, but I wanted something for next year's class, with an emphasis on the issues I find most interesting in this old chestnut. Over the next few days I'll be serializing the essay "Pierson v. Post: The New Learning." I'll post a link to a complete, footnoted version, suitable for classroom assignment, at the end of the series..

The works cited include:

Berger, Bethany. 2006. “It’s Not About the Fox: The Untold History of Pierson v. Post.” Duke Law Journal 55: 1089-1144.

Donahue Charles, Jr. 1986. “Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford, and Queen's County, N.Y.” In Studies in Roman Law: In Memory of A. Arthur Schiller, ed. Roger S. Bagnall and William V. Harris. Leiden: E. J. Brill.

-----. 2009. “Papyrology and 3 Caines 175.” Law and History Review 27: 179-84.

Fernandez, Angela. 2009a. “Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State.” Law and Social Inquiry 34: 301-36.

-----. 2009b. “The Lost Record of Pierson v. Post, The Famous Fox Case.” Law and History Review 27 (2009): 149-78.

Hedges, Henry Parsons. 1895. “Pierson vs. Post.” Sag Harbor Express. October 24. 1.

McDowell, Andrea. 2007. “Legal Fictions in Pierson v. Post.” Michigan Law Review 105 735-78.

Finally, I want to acknowledge the excellent research assistance of Fred Turner, a JD candidate here at Georgetown who is ABD in Brandeis's history department, where he is working with Michael Willrich.

Update: See also Josh Blackman, George Mason University School of Law, "Outfoxed Pierson v. Post and the Natural Law" and Dhammika Dharmapala and Rohan Pitchford, "An Economic Analysis of "Riding to Hounds": Pierson v. Post Revisited," Journal of Law, Economics and Organization 18 (2002): 39-66.

More here.

Schorr on Legal Transplantation in the Colonial Context

Questioning Harmonization: Legal Transplantation in the Colonial Context is a new essay by David Schorr, Tel Aviv University, Buchmann Faculty of Law. It appears in Theoretical Inquiries in Law Forum (2009). Here's the abstract:

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.

Reza on Search and Seizure in Islamic Doctrine and Muslim Practice

Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice, by Sadiq Reza, New York Law School, has just been posted on SSRN. It appears in the Georgetown Journal of International Law (2009). Here's the abstract:

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular — one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' — are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulated on the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof, in the historical record that such rules operated in criminal practice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam’s pertinent provisions with those of the Fourth Amendment. The Article concludes that authority for Fourth-Amendment-like protections certainly exists in Islamic law, but assertions that such protections do so exist, or have ever been routinely practiced before the modern period, are unsupported by the doctrinal and historical records. There is, in the end, no obstacle to articulating search and seizure protections in Islamic law that meet modern notions of criminal due process; in this is the possibility of common ground between those who seek a greater role for Islamic law in today’s Muslim world and those who seek a lesser one.

Crises and Consequences: A Call for Papers

The Hagley Library has issued the following call for papers for "Crisis and Consequence: A Conference at the Hagley Library, Wilmington, Delaware":

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.

H-Net to offer blogs and social networking

H-Net, the host for many history listservs including H-Law, is working to offer more social-networking to its services. Jeffrey R. Young writes in the Chronicle of Higher Education, "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."

Young interviewed H-Net executive director Peter Knupfer for an article on the future of listservs. While some have suggested that listservs are on their way out, Knupfer notes that the number of subscribers on H-Net listservs is up, although the number of messages has declined annually since 2000. "Rumors of our impending demise...are therefore a bit premature."

Young writes,

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.

Looking to the future, H-Net's new services "will enhance the service's Web site, which already offers searchable archives of the lists and links to related Web resources. The hope is to let users create their own profiles and post files to their H-Net accounts to share with other scholars."

Sounds promising! The full story is here.

Law & Society Review seeks Book Review Editor

LAW & SOCIETY REVIEW

Book Review Editor

Nominations Due: Friday, July 10, 2009

Email nominations to: boyle014@umn.edu

The Law & Society Association is seeking nominations for a new Book Review Editor for the Law & Society Review. The new editor will begin as soon as possible, completing the last two issues of the upcoming (2010) volume (44:3 and 44:4), and an additional three volumes (45 to 47; years 2010-2012).

Ideally, the LSA Book Review Editor will have a keen eye for significant law and society work, an appreciation of the theoretical and methodological breadth of law and society scholarship, a willingness to tap into networks of conscientious folks who would write interesting reviews from a variety of perspectives, a creative approach to conceptualizing and generating reviews, the ability to meet deadlines, and the interest in and availability to devote time to this important task.

If these characteristics describe you or one of your colleagues, please consider applying or making a nomination. The committee will contact nominees directly to make sure that they are willing to serve. The position is open to all members of LSA. Names received by Friday, July 10 will receive full consideration by the Nominations Committee. Nominations should include the following information:

Candidate's name and contact information
Present professional position
A statement of the candidate's qualifications for the position
Optional: any other information in support of the nomination, for example, a CV.

Members of the Nominations Committee include Elizabeth Boyle (Chair), Jonathan Simon, and Mariana Valverde. Please email all nominations to the Elizabeth Boyle at boyle014@umn.edu.

In mid-August, the Nomination Committee will make a recommendation to fill the position to the LSA Board of Trustees, who must approve the appointment. The Book Review Editor will serve as an ex-officio member of the Board of Trustees. The committee is willing to consider nominees who are available for only a portion of the term, although nominees who can fill the full three-and-one-half (3.5) year term are preferred.

Religious History most prominent among members of American Historical Association

Following the recent debate about whether new areas of historical scholarship have edged out "traditional" fields, it is interesting to see the new membership data from the American Historical Association, the largest U.S.-based organization representing historians. A post on AHA Today is titled: AHA Membership Grows Modestly, as History of Religion Surpasses Culture. Robert Townsend writes: "Despite the hardships in the economy, membership in the AHA actually increased slightly over the past year. In our annual membership snapshot (taken on March 31 of each year), membership rose to over 15,000 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.

Yet "the most notable change in the profile of our membership is the continuing rise of specialists in religious history." Townsend continues:

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.

According to the accompanying graph (reproduced here), since 2004 hiring in most subfields is down. Besides religion, hiring was slightly increased in the areas of African American, Gender, Military, and Political history. It was flat in Diplomatic/International history. Legal history is not included in the graph.

More details are here.

Pope on the Role of Direct Popular Power in the American Constitutional Order

Many legal scholars have been using their summers to update their SSRN pages, posting earlier scholarship. One recent posting is Republican Moments: the Role of Direct Popular Power in the American Constitutional Order by James Gray Pope, Rutgers Law School, Newark. It appeared in the University of Pennsylvania Law Review (1990). (On republicanism, an important intervention in the late 20th century debate came from Joyce Appleby.) Here's Pope's abstract:

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.

Curran reviews Jurists Uprooted: German-speaking Emigre Lawyers in Twentieth-century Britain

Voices Saved from Vanishing by Vivian Grosswald Curran, University of Pittsburgh School of Law is a review essay on Jurists Uprooted: German-speaking Emigre 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.

Curry Reviews Two Books on Eugenics and Law

Lynne Curry, Eastern Illinois University, has just published on H-Law her review of two books on the legal history of eugenics:

Victoria F. Nourse. In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics. New York: W. W. Norton, 2008. 240 pp. $24.95 (cloth), ISBN 978-0-393-06529-9.

Paul A. Lombardo. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns Hopkins University Press, 2008. Photographs. xiv + 365 pp. $29.95 (cloth), ISBN 978-0-8018-9010-9.

Curry's review, entitled "Intellectual Seduction: The Promise and Perils of Eugenics," commences:

In 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 undermine 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.

More

I have the greatest co-blogger

Just a note of appreciation to my co-blogger, Dan Ernst, for keeping the blog running seamlessly when I was unexpectedly out of internet access during the past week. Dan, pictured here in his weekend wear, is a man of many talents. The Legal History Blog is very lucky to have him.

(And thanks to Bill for technical assistance with this post.)

Six essential books on Iran

Not much history in the Sunday book pages today, but on the New Yorker book blog, Laura Secor recommends six essential books on Iran. Ranging from history to memoir to fiction, they are:

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

Secor's details about these interesting books are here.

Henry Friendly Papers Now Open

David Warrington, Special Collections Librarian at the Harvard Law School Library announces, via the law library's blog, the opening of the papers of the great federal judge, Henry J. Friendly. The inventory is here. According to the announcement,

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.

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.

(Friendly appears above in the group picture of the editorial board of the Harvard Law Review for 1925-26, which you may click on to enlarge. He stands in the back, immediately behind David Cavers, who is seated at the very center of the photograph. Note two other legal professorial worthies: Wilber Katz, the University of Chicago law dean, to Cavers's immediate left, and Yale's Harry Shulman, seated, second from the bottom, on the lower left, in the dark jacket with his arms crossed.)

[Photo credit: Harvard Law School Library. Harvard Law Review photograph collection.]

Finkelman on the Emancipation Proclamation

Paul Finkleman, Albany Law School, has posted Lincoln, Emancipation, and the Limits of Constitutional Change, is just out in the latest issue of the Supreme Court Review (2008). Here is the abstract:

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 on Consumer Activism

Here is a new entry in the history of consumerism, a book by Lawrence B. Glickman, University of South Carolina, Buying Power: A History of Consumer Activism in America. According to the folks at the University of Chicago Press,

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.

Glickman discusses the book and its contemporary implications with the History News Network here.

Woolhander and Collins on Two Federal Courts Landmarks

Ann Woolhandler and Michael Collins, University of Virginia Law School, have posted on bepress two articles on the history of federal courts in the United States. The first is The Story of Tarble’s Case: State Habeas and Federal Detention:

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.

White Revisits the Ideas of the Founding

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

Bender on American Exceptionalism

The Gilder Lehrman Institute of American History has posted a downloadable lecture by the historian Thomas Bender, New York University, who, a few years back, wrote a terrific antiexceptionalist history of America (pictured below). Bender originally delivered the lecture, entitled "American History: Views from Abroad," on June 23, 2008. Here is the Institute's description:

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.

Paschal on Wiecek on the Stone Court

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.

Legal History (and CLE) Go to the Movies

[We normally don't post about commercial events, but when one comes along that provides an excuse to put up illustrations like this, I'll bite.]

The West Legal Edcenter announces Dillinger's Moll: The Trial of Evelyn "Billie" Frechette, a webcasted Continuing Legal Education conference. According to the announcement,

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.

The reenactors are:

Honorable Paul H. Anderson
Minnesota Supreme Court

James Patrick Barone
Minnesota Assistant Attorney General

Jennifer J. Hasbargen
Minnesota Assistant Attorney General

Doug Heidenreich
Professor, William Mitchell College of Law

Patrick Ostergren
Lind Jensen Sullivann Peterson, PA

Anthony Palumbo
Anoka County Attorneys Office

Mark Priore
Priore Law Office

Richard Stebbins
Stebbins and Hegranes, LLC

Lisa Veith
St. Paul Assistant City Attorney

Frank Mabley
Greenstein Mabley & Wall LLC

Image credit

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.



Image credit: Malvolio's Revenge, a mock trial by the Lawyers Committee of the Shakespeare Theatre Company of Washington

Zietlow on the Promise of Goluboff's "Lost Promise"

Rebecca E. Zietlow, University of Toledo College of Law, has posted Belonging and Empowerment: A New 'Civil Rights' Paradigm Based on Lessons from the Past, which appears in Constitutional Commentary 25 (2009). Here is the abstract:

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.

Hat tip.

Executive Power: The Lincolnian Legacy

The Government Law Center of the Albany Law School is co-sponsoring a symposium on "Lincoln's Legacy: Enduring Lessons of Executive Power," to be held at the law school on September 30-October 1, 2009. The announcement explains:

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.

The program opens at 6 p.m. on Wednesday, September 30, will a presentation by Lewis Lehrman of the Lehrman Institute on "Abraham Lincoln as an American Leader," followed by a reception at 7 p.m.

Other confirmed speakers to date are Prof. Angela Alexander; Ms. Emily Brennan, Brennan Center, NYU; Prof. Ray Brescia, Albany Law School; Prof. Paul Finkelman, Albany Law School; Dr. Louis Fisher, Library of Congress; Dr. Mark Graber, University of Maryland School of Law; Dr. Timothy Huebner, Rhodes College; Prof. Neil Kinkopf, Georgia State School of Law; Dr. Thomas C. Mackey, University of Louisville; Prof. Christian Sundquist, Albany Law School; Prof. Renee Redman, University of Connecticut School of Law; Dr. Abraham Wagner, Columbia SIPA; Dr. Jenny Wahl, Carleton College; and Hon. Frank Williams of the Lincoln Bicentennial Commission.

For more information, contact Ali Chaudhry at 518-472-5863, achaudhry@albanylaw.edu.

A Landmark in Habeas Corpus and Criminal Contempt

In case you missed it, the June issue of the American Bar Association Journal ran a lengthy story by Mark Curriden , "'A Supreme Case of Contempt," which treats a landmark in federal habeas corpus law and produced a criminal trial in the U.S. Supreme Court, United States v. Shipp (1909). The article commences:

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.

More.

Update: I might have mentioned that Curriden, with his co-author Leroy Phillips Jr., published a book about the case a decade ago, Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism (1999).

Academic Publishing: Two Views

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.”

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