Shanks-Dumont on Godzilla and the Imaginal Legal History of Ecocide

Daimeon Shanks-Dumont, a Ph.D. Candidate in the Jurisprudence and Social Policy Program at the 
University of California, Berkeley, School of Law, has published Godzilla Cinema and the Imaginal Legal History of Ecocide in the Yale Journal of Law & the Humanities:

This Article develops a theory of imaginal legal history in the service of recovering aspects of social phenomena that are habitually suppressed in contemporary modes of legal history. It offers a retrospective account of the emerging international crime of ecocide through the use of unlikely source material: Godzilla cinema. Through the use of moving images, this history surfaces latent meaning within the concept of ecocide that has been concealed in traditional narratives, namely an anthropocentric grounding that is at odds with its self-professed environmentalism.

The Article is divided into two main Parts. The first lays out a speculative theory of imaginal history. It begins by critiquing the dominate modality of professional historiography, contextualism, and the reduction of narrative that is a result of the hegemony of the written word. It then considers how images operate in and through legal practices and materials as a general matter of symbolic ordering, before moving on to discuss what the concept of the imaginal offers legal-historical study. It then outlines a novel methodological paradigm—imaginal legal history—that promises a way out of the obsession with radical contingency that has arrested legal history since its encounter with Critical Legal Studies in the 1980s.

The second Part is an attempt to operationalize imaginal legal history with film—to create what Walter Benjamin called a “critical constellation”—to better appreciate current efforts to leverage international law to address the climate crisis. It begins by explaining why Godzilla cinema is an apt repository of moving images with which to engage the histories of international law, arguing that the genre’s global scope, international scale, and deep inventories of symbolic imagery and fantasy recommend it as a tool of imaginal legal history. It then analyzes a foundational moment of international environmental law’s history in the 1960s and 1970s—the invention of the concept of ecocide, the beginning of the modern environmental movement, and the articulation of environmental consciousness in American jurisprudence. Finally, the Article “reads” the 1971 film, Godzilla vs. Hedorah, and what its imagery, symbolism, and structure reveals of contemporaneous and current environmental and legal consciousness.

The dénouement comes in the Conclusion, which takes the montage of images brought forward in the Article, dissolved of their contexts, and through a critical interpretation integrates them in ecocide’s horizons of meaning. A short Coda to the text follows, meditating on a materialist reading of Godzilla vs. Hedorah, and the traces of the Real that survive in the interstices of the film.

--Dan Ernst 

Weekend Roundup

• The legal historian Tanya K. Hernández has been appointed to the Archibald R. Murray Professorship at Fordham Law.

• From our in-box: "Mr. Ville Erkkilä (MA) will defend his doctoral thesis, The Conceptual Change of Conscience: Franz Wieacker and German Legal Historiography 1933-1968, in a public examination on 13 October 2017 at 12 noon. The defence will take place at the Faculty of Law of the University of Helsinki, in lecture hall IV (Suomen Laki -sali, Porthania, Yliopistonkatu 3). The opponent will be Dr. Udi Greenberg (Dartmouth College). The defence is open to the public. The thesis is available [here.]

• Over at AHA Blog: a report on the National History Center's Congressional briefing on civilian control of the military.

• And the National History Center has announced another Congressional briefing, this one on the History of Civil War Monuments.  Monday, October 23, 2017, 9:30-10:30 am. Rayburn House Office Building, Room 2044.  With David W. Blight, Yale University; Karen L. Cox, University of North Carolina at Charlotte; Gaines M. Foster, Louisiana State University; and Moderator: James Grossman, American Historical Association.  More.

• Did you know about the new Thurgood Marshall movie?

• In the Baffler: Saul Cornell (Fordham University) on "Gun Anarchy and the Unfree State."

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Johnson on Cultural Representations of an Inuit Child Abandoment Case

Rebecca Johnson, University of Victoria Faculty of Law, has posted Justice and the Colonial Collision: Reflections on Stories of Intercultural Encounter in Law, Literature, Culture and Film, which appeared in No Foundations: an Interdisciplinary Journal of Law and Justice 9 (2012): 68-96:

In this paper, I explore the Canadian national imagination of Justice and Indigenous-Settler relations through an exploration of the case R v. Kikkik, a high profile trial from the 50s involving an Inuit woman accused of both murder and child abandonment. In particular, I ask what might be learned about both colonization and justice through exploring how this tale was told through 4 genres: the trial transcripts; a narrative account in a best-selling book; three Inuit sculptures; and a documentary film. Set alongside each other, these different texts make visible the many challenges for the legal imagination as it seeks to do justice at the encounter of settler and indigenous legal orders. Each genre of story, with its enabling and limiting conditions, provides us with a different field of vision. Taking inspiration from James Clifford’s work on juxtaposition (Clifford 1988, 10), the recasting and repositioning of those stories alongside each other can better help us understand how, in the space of intercultural encounter, we are both caught in and implicated in the stories of the other.

Geltzer's "Dirty Words and Filthy Pictures"

The University of Texas Press has published Dirty Words and Filthy Pictures: Film and the First Amendment, by Jeremy Geltzer, “an author and entertainment and intellectual property attorney.” Judge Alex Kozinski contributed a Foreword.

From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further.

Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.

Weekend Roundup

CJ Roger B. Taney (LC)

• According to the Frederick (MD) News-Post, Michael Powell, a professor of history at Frederick Community College and an adjunct instructor of history at Hood College, will speak at 7 p.m. this evening to the annual meeting of the Frederick County Landmarks Foundation on A Subtle and Seismic Shift: Taney, the Civil War and Memory.

• Magna Carta in Singapore.  In the Straits Times and an SSRN post, Simon Chesterman, Dean of the National University of Singapore’s Faculty of Law, takes on The Myth of Magna Carta.  How did a “misogynistic, anti-Semitic, failed peace treaty . . . . come to be regarded as the font of English liberty?”  “Lawyers,” Dean Chesterman answers, especially American ones.  Eugene Kheng Boon Tan and Jack Tsen-Ta Lee, Singapore Management University School of Law, followed with the SSRN post Magna Carta Then and Now: A Symbol of Freedom and Equal Rights for All, Today (2015): 16-17.  And, yes, as you probably surmised, "the rule of law doctrine has been the topic of considerable disagreement and debate” in Singapore.

• Over at the Faculty Lounge, Eric Muller, North Carolina Law, explains to the mayor of Roanoke, Virginia, why he should be embarrassed to have invoked the internment of Japanese America as a precedent for excluding Syrian refuges. In Slate, Dahlia Lithwick and Laurel Reiman Henneman observe that the mayor's statement shows how “fear makes us stupid and careless.”

• Here's a plea for storing court records in the cloud that invokes a fire that destroyed many Brooklyn court records. 

• Eric Rauchway on FDR, Keynes, and American and monetary policy on HNN.

• Over on his "Jackson List," John Q. Barrett, St. John's Law, has a very informative post on Jim Donovan, the hero of "Bridge of Spies."  Spoiler alert: although Donovan did handle insurance work, he had also been general counsel of the OSS.

• Fred Barbash in the Washington Post on How James Madison doctored the story of the Constitutional Convention of 1787, as per Mary Bilder’s Madison’s Hand. 

• On November 17, Ariela Gross, USC Law, spoke on Race Citizenship in the Constitution at Cal Poly campus in honor of Constitution Day–which the university could recognize then because it wasn’t yet in session on September 17.

• The Organization of American Historians has made available some of the lectures from its Distinguished Lecture series, including this one by Martha Jones (University of Michigan).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

The Trial of Henry Ford

Former LHB Guest Blogger Victoria Saker Woeste has alerted us to the trailer for the documentary The Trial of Henry Ford, which when completed, will take up the trial that figured prominently in her book Henry Ford's War on the Jews.  (Caution: among the disturbing images in the trailer is that of a lynching.)  The documentarian, Michael Rose, explains:

 This is the trailer for our film, currently gearing up for production, that's about one of the most important libel lawsuits in American history, Sapiro v. Ford. This case pitted the richest and most famous man in America, Henry Ford, against an idealistic young lawyer, Aaron Sapiro, who was making a name for himself organizing farmers into cooperative associations during the early 1920s. Ford saw Sapiro as the vanguard of an international Jewish conspiracy bent on taking over America. Ford used his newspaper, The Dearborn Independent, to conduct a smear campaign against him. After failing to convince Ford to retract his wild allegations, Sapiro sued him in Federal Court for libel. This set in motion a two year-long roller coaster ride of battles and skirmishes in the courts and in the press until Ford finally publicly apologized in 1927.

This film will chronicle the characters, the actions, the issues and the themes of the trial that are embedded in the twisted history of American race relations, ethnicity and class.

Weekend Roundup

• From the New York Review of Books: "'Selma' v. History." "By distorting an essential truth about the relationship between Lyndon Johnson and Dr. Martin Luther King over the Voting Rights Act of 1965," writes Elizabeth Drew, "Selma has opened a very large and overdue debate over whether and how much truth the movie industry owes to the public."  

• A memorial service for Gordon Bakken will be held on January 24 in the Ruby Gerontology Center on the CSU-Fullerton campus.  Hat tip.

• Here's news on a former LHB Guest Blogger: "The Canadian American Bar Association announced today that the John D. Lawson Award will be awarded to Bernard Hibbitts, Publisher and Editor in Chief of JURIST, the award-winning law student-powered legal news service that he created at the University of Pittsburgh School of Law where he has served as a Professor of Law since 1996. The Award recognizes Canadians who have excelled in the practice of law and/or made an outstanding contribution to the law or legal scholarship in the United States."  More.

• The latest issue of the newsletter of the Historical Society of the DC Circuit is here.   It includes word of a session, "Judging, Then and Now" to be held in the Ceremonial Courtroom of the Prettyman Court House on Wednesday, February 25.  It will be "a dialogue featuring Senior Judge Paul Friedman, who joined the U.S. District Court in 1994, and Judge Ketanji Brown Jackson, who joined the Court in 2013, moderated by Miguel Estrada. The judges will compare their experiences on the bench as they discuss changes in the confirmation process, the makeup of the Court, dockets, training, staffing, technology, and the impact of these and other changes on judging." 

• This report from Volodymyr Machuskyy, Associate Professor of Theory and History of State and Law at Kyiv National Economic University, identifies as one obstacle confronting the rule of law in Ukraine the diversity of Ukrainian legal culture, which draws upon “the legal cultures of Byzantium, the Grand Duchy of Lithuania, Poland, Sweden, the Crimean Khanate, Tsarist Russia and the Soviet Union.”
  

• The tables of contents for the two most recent issues of the Journal of Turkish Legal History are here and here.

• Via Balkinization: The University of Texas Law School will host a symposium on “Popular Sovereignty, Self-determination, and Secession” on January 22-24.  

• Over at the Faculty Lounge, Eric Muller (University of North Carolina School of Law) has a post on "Debating (and Finding) the Government's Misrepresentations in Korematsu and Hirabayashi. "It's prompted by the recent publication by the article “Solicitor General Charles Fahy and Honorable Defense of the Japanese–American Exclusion Cases,” published by Charles Shaheen (Fahy's grandson) in the latest issue of the American Journal of Legal History.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

"Blackstone Goes Hollywood": A Mark S. Weiner Production

Up on YouTube is former guest Legal History Blogger Mark S. Weiner’s video, Blackstone Goes Hollywood.  Mark explains that it is “a discussion of Blackstone's Commentaries with Wilfrid Prest of the University of Adelaide and Michael Widener, Rare Book Librarian at Yale Law School. How can Blackstone's life and legacy be understood not in strict chronological terms but rather in terms of plots drawn from standard Hollywood genres?”

Before viewing, you might ask yourself whom (living or dead) would you cast as Blackstone.  (Professor Prest gamely takes a stab at the question.)  Also, "Blackstone Goes Hollywood" for Twenty: Blackstone is like this movie starring Humphrey Bogart.  (Please state your answer in question form.)

Weekend Roundup

• The University of Pennsylvania has announced that legal historian Wendell E. Pritchett (currently the Chancellor of Rutgers University-Camden) will serve as interim dean of the Law School for academic year 2014-15. 

• From the Canadian Legal History Blog: a reminder of all the legal history offerings included in the Berkshire Conference on Women's History, scheduled to take place this year in Toronto.

• Something new under the sun, at least until it melts: "Tucked into a back corner of Victoria School of the Arts, a group of Grade 11 students are busy solidifying, in wax, the Court of Appeal of Alberta’s major legal decisions and history."  More. 

• Among the recipients of this year’s ACLS Fellowships is Brenna W. Greer, Assistant Professor of History, Wellesley College, for "Image Rights: Black Representation Politics and Civil Rights Work in the Postwar United States."  Hat tip: AHA Today.

• Over at Balkinization, Georgetown Law's John Mikhail launches a series of posts on the origins of the necessary and proper clause, drawing upon work for his new article.  In this post, Mikhail uses a 2010 article by Geoffrey Miller as a point of departure for a summary of research showing "that [James] Wilson and his circle of bankers, merchants, and corporate lawyers—Robert Morris, Thomas Willing, Thomas Fitzsimmons, Alexander Hamilton, and others—frequently used the phrase ‘necessary and proper’ or similar language in their articles of association and business correspondence.’”

• And over at Library of Congress Blog, Wendi A. Maloney, a writer-editor in the United States Copyright Office, has a post on using a copyright records to correct a misattribution of a noted 20th-century song.

• Complicit, a “docu-drama” focusing "on the story of the SS. St. Louis refugee ship, while exploring the impact of the WWII Jewish refugee crisis on the Roosevelt legacy through a mythical courtroom drama,” has its Washington premiere at the Georgetown University Law Center on Thursday, April 17th, 2014: 5:30 p.m.  The creator is Robert Krakow, a GULC alumnus.  After the screening, he and Andrew Schoenholtz, the director of Georgetown’s Human Rights Institute, will discuss the film and “the development of international refugee policy since the 1930s.”

• From Rechtsgeschiedenis Blog: "The dog, the cat and the mouse: animals and legal history." (Hat tip: Environment, Law, and History)

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• Richard J. Ross, University of Illinois College of Law, presented "The Beginnings of American Law: A Comparative History," at the University of Wisconsin Law School on March 31, 2014.  Hat tip: Legal Scholarship Blog

• Via Environment, Law, and History: Emory University's Trans-Atlantic Slave Trade database is very cool.  The blog Not Even Past agrees.

• Ethiopian Legal History: The Movie.  "A new documentary by Leyou Tameru, 'Chasing Modernity: A Reflection on Legal History,' will be screened on April 9th at Teachers College, Columbia University. The film highlights the evolution of Ethiopia’s legal system under three different authorities in the past five decades, paying particular attention to the Civil Code."  Hat tip: Tadias.
  

• Renée Lettow Lerner, George Washington University Law School, will speak on a panel on the topic The Jury Trial is Dying: Should We Mourn its Demise? at NYU Law on Wednesday, April 9, 12:25-1:50 p.m. in Vanderbilt Hall, Greenberg Lounge.  Partners from several law firms will join her in a session to be moderated by Arthur R. Miller.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Parent and Govern, "Florida and the Film Industry"

Mary Pergola Parent (University of Notre Dame, Dept. of Film, Television & Theatre) and
Kevin H. Govern (Ave Maria School of Law/California University of Pennsylvania/CUNY, John Jay College of Criminal Justice) have posted "Florida and the Film Industry: An Epic Tale of Talent, Landscape, and the Law." The article appears in Volume 38 of the Nova Law Review (2013). Here's an excerpt from the abstract:

This article chronicles the development of the Florida film and entertainment industry, from its inception to the present day, as a product of environment, opportunity, economics, law, and policy. The film and entertainment industry is one of the most significant contributors to Florida’s local, regional, and global image, through depiction of its people, cities, industry, and nature. As an ever-growing contributor to the state’s economy through job creation, service industry revenues, and tax collections, Florida’s relationship with the film and entertainment industry has gone from an ad hoc approach to a carefully strategized, multi-year effort, fueled by the Florida Film and Entertainment Industry Financial Incentive Program, to encourage the use of the state as a location for all facets of digital, film, and television production.

This article will address in Part I the earliest history of film in Florida from the late nineteenth century birth and flourishing through the 1917 transfer to California and revitalization during World War II. Part II considers the state’s economic, political, and legal enticements for the film industry to grow in the state and to match the public relations campaign to draw tourism to the Sunshine State. Part III outlines the essence of 1950s blockbuster hits that gave impetus to rules and laws to solidify the state’s relationship with the film industry. As commented upon in Part IV, Florida’s compelling call to the industry reached New York City and beyond, bringing rare talent that would further expand the industry’s reach and hold in Florida. Worthy of Part V’s particular focus, mesmerizing Miami reached international recognition as a thriving hub for both television and film from the 1950s onward, and industry contractual practices there set the standard for the entire film and television industry thenceforth. Part VI summarizes the background, legislative authority, and practical efforts of the Governor’s Office of Film and Entertainment, followed by the tax incentives under state and federal law which caused the film and television industry efforts in Florida to expand exponentially in the twenty-first century onward in Part VII; specifically with some of the most notable progeny of this effort and their value to state, regional, and the national economies showcased in Part VIII. Part IX highlights how past is prologue for Florida film and television, why current state and federal initiatives will prevent major production efforts from becoming runaway boons to other states and countries, and the demonstrable economic benefits those laws and policies have already produced for Florida in particular, and the United States in general. In conclusion, Part X predicts how faithfulness and fidelity to the film and television industry will continue to reap benefits in a multi-billion dollar relationship continuing into its second century, with over 120 films and television shows to its credit and counting.

The full text is available here.

Weekend Roundup

• In the wake of Nelson Mandela's death, the History News Network has run some thought-provoking commentary, including "The Black Hole of Apartheid History," "America Could Use Its Own Truth and Reconciliation Commission," and "Time to Bring Back the 'Great Man' Theory of History?"

• Over at Balkinization, Gerard Magliocca asks "Is it possible that the Government wanted to lose The Civil Rights Cases and thus intentionally wrote lackluster briefs?" (And if you're a Twitter follower, check out Jed Shugerman's feed for an interesting response, based on his research on the early history of the Department of Justice.)

• Via In Custodia Legis: "Napoleon Bonaparte and Mining Rights in France," and, on a lighter note, "Christmas Movies and the Law" (there's some legal history here, I promise -- see the discussion of the "Lion in Winter," "Miracle on 34th Street," and "Bachelor Mother").

• From Lapham's Quarterly: President Harry S. Truman appoints a Secretary of Semantics.

• Josh Blackman (South Texas College of Law) has been researching Charles Hauser, the defendant in the famous Carolene Products case. He blogs about his findings here.

• Via JOTWELL, Sean Coyle (Birmingham Law School) tells us why we should all go read John Finnis's, "Natural Law Theory: Its Past and Its Present," from Volume 57 of the American Journal of Jurisprudence (2012).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• From the Historical Society: "What Blogging, Twitter, and Texting Do for the Historian's Craft"

• Columbia University’s Center for American Studies recently hosted “Charles Beard at 100," a roundtable in honor of the centennial of Beard’s An Economic Interpretation of the Constitution of the United State. The Junto has posted a recap here.  

• From Joseph J. Thorndike and the folks at Tax Analysts, a short movie on the centennial of the Sixteenth Amendment.  We loved its opening: "Did you know it's the one hundred year anniversary of the federal income tax?  Neither did I."

• From the Wellesley Centers for Women "Women = Books" blog: Felicia Kornbluh argues that "the history of AIDS/ HIV is being mottled and shorn of its political meaning." 

• Further news on Paul Gillies’s Uncommon Law, Ancient Roads, and other Ruminations on Vermont Legal History.  Paul Lefebvre reviews it in the Barton (VT) Chronicle, and Tom Slayton published an appreciation in his column “In This State.”

• Seth Barrett Tillman, Why Professor Lessig's “Dependence Corruption” Is Not A Founding-Era Concept? National Constitution Center Constitutional Daily (Oct. 23, 2013).

• Welcome to the Blogosphere to SupremeBystander, “government, constitutional, and legal prose for the judiciously curious."

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

A Belated Independence Day Post

This past weekend, I engaged in my annual Independence Day ritual of rewatching 1776.  For those  unfamiliar with the film, it is an adaptation of a 1969 musical on the improbable topic of the Declaration of Independence.  It manages to simultaneously combine irreverent depictions of the Founding Fathers singing some rather absurd lyrics with more substantial historical content, including dialogue lifted directly from founding-era documents and serious consideration of slavery and the politics of the Revolution.  I know I'm not alone in my enthusiasm: when I was an undergraduate, the professor of my American Revolution lecture jokingly told us that she--and, she suspected, many of her colleagues--had become Founding-era historians as a result of this movie.

The movie has, of course, inaccuracies and flaws, but I'm always impressed at how effectively it managed to incorporate the academic currents of the era into a piece of entertainment.  It could almost serve grad students preparing for exams as a primer on the historiography of early America in the late '60s and early '70s, capturing the focus on the Founding's paradoxical coexistence of slavery and freedom (and the acknowledgment that slavery implicated the North as well as the South), the renewed interest in women's history, and the desire to retell the stories of ordinary people involved in historical events.  (I also recently learned that the movie is a document of early '70s political history as well: Richard Nixon apparently quashed one of the songs from the musical because he objected to it.)

I find it hard to think of recent film of pre-twentieth century American history that has proven similarly successful at integrating historiographical trends.  Possible candidates might in my view include Amistad, with its emphasis on the agency of enslaved Africans, and the Canadian film Black Robe, which reflected some of complexity stressed by recent scholarship on Native-European encounter.  Still, these are exceptions to the general tendency toward epics painted in broad moral strokes (such as The Patriot or Dances With Wolves) or period pieces whose self-seriousness leads, in my view, to distortion (I would place the John Adams miniseries and Terrence Malick's New World in this category).

While I do not mean to suggest we have fallen from some '60s and '70s golden age (it was, after all, also the era of John Wayne's The Alamo), I do wonder whether academic history has since changed in ways that render it more difficult to package for a broad film audience.  The demand for conventional historical narratives, like that presented in 1776, seems undiminished, but academic history focuses on less familiar, previously unappreciated accounts.  Arguably, the increased specialization and diversity of the field has made it harder for outsiders to identify a central thrust of historical scholarship.  On the other hand, the prominence of microhistories of the lives of fascinating individuals, combined with the rise of transnational history, seem ready-made for a Hollywood producer eager to produce a slick international adventure story.

I would love to hear the views of others on historical films and their relationship to academic history.  In particular, as the post above reflects, I've sought out films that overlap with my focus on early American history, but I would be eager to hear from those who study different times and places.

Barbas on How the Movies Became Speech

Samantha Barbas, University at Buffalo Law School, has posted How the Movies Became Speech, which is forthcoming in the Rutgers Law Review.  Here is the abstract:

 In its 1915 decision in Mutual Film v. Industrial Commission of Ohio, the Supreme Court held that motion pictures were, as a medium, unprotected by freedom of speech and press because they were mere "entertainment" and "spectacles" with a "capacity for evil." Mutual legitimated an extensive regime of film censorship that existed until the 1950s. It was not until 1952, in Burstyn v. Wilson, that the Court declared motion pictures to be, like the traditional press, an important medium for the communication of ideas protected by the First Amendment. By the middle of the next decade, film censorship in the U.S. had been almost entirely abolished.

Why did the Court go from regarding the cinema as an unprotected medium to part of the constitutionally-protected "press"? The standard explanation for this shift is that civil libertarian developments in free speech jurisprudence in the 1930s and 40s made the changed First Amendment status of the movies and the fall of film censorship inevitable. Challenging this account, I argue that the shift was also the result of a dynamic I describe as the social convergence of mass communications. Social convergence takes place when the functions, practices, and cultures associated with different media come to resemble each other. By the 1950s, movies occupied a role in American culture that increasingly resembled the traditional press. At the same time, print journalism took on styles and functions that were like those historically associated with the movies. The demise of film censorship reflected not only more capacious understandings of freedom of expression, but also convergent communications. The article focuses on the efforts of a nationwide anticensorship movement, between 1915 and the 1950s, to engineer the reversal of Mutual using an argument based on media convergence.

This significant, lost chapter in the history of modern free speech has much to tell us about the ongoing relationship between the First Amendment and new media. It illustrates how courts and the public in an earlier time dealt with a question that is still pressing today: should the medium of communication have significance for free speech law? Illuminating historical patterns of judicial responses to new media, the work offers insights into what we may predict about the regulation of mass media in our own era of media convergence.

Tyson's "Blood Done Sign My Name" on the Big Screen

High on my list of "beautiful books" is Timothy Tyson's Blood Done Sign My Name. I first encountered Tyson's work when I read Radio Free Dixie, a biography of Robert F. Williams and an incisive study of the roots of black power. Blood Done Sign My Name is a different type of book, both a memoir and a deeply researched account of the way a racially motivated murder shook up Tyson's small North Carolina town.

150 years earlier, the legal process might have "kept the peace," to borrow Laura Edwards' phrase, but this trial disturbed it. After an all-white jury acquitted the white defendants (one of whom was the father of Tyson's boyhood friend), some residents rioted and protested. Others clung more fiercely to segregation. Tyson's father, a Methodist pastor and self-proclaimed "Eleanor Roosevelt liberal," attempted to bridge racial divides (and was thereafter encouraged to relocate). Surprisingly to many readers, this all took place in 1970, after civil rights activists had fought and won many battles.

I recently learned that a film adaptation was released earlier this year. I haven't seen it yet, but I wanted to use the opportunity to recommend the book. Although we are living through a memoir boom, it is rare to see a professional historian -- particularly a relatively junior one -- taking on a project that mixes personal history and scholarly ambition. It is rarer still to see such an endeavor turn out well. (To paraphrase New York Times critic William Grimes, we all have a life; we needn't all write about it.)

You can find articles about the film here and here, and watch clips here. Reviews are here and here. Interviews with Tyson (left) are here, here, and here.

For those who like books that combine personal history and serious scholarship, I also recommend Kenji Yoshino's Covering: The Hidden Assault on Our Civil Rights. It's a slim book that blends anecdotes from Yoshino's life as a gay, Japanese-American legal scholar with arguments about how U.S. law could better address inequality.

images: Cover, Tyson

Legal Historians in the Media: Kornbluh, Mann, Pritchett

Ten years ago, in response to the Vermont Supreme Court’s decision in Baker v. State, then-Governor Howard Dean signed into law the state’s historic civil union bill. Vermont Public Radio invited legal historian Felicia Kornbluh, now the Director of Women’s and Gender Studies at the University of Vermont, to talk about the event and its significance for broader conversations about law and marriage equality. You can listen here.

Art lovers, property professors, and most Philadelphians probably know something of the Barnes Foundation. The eccentric inventor Albert C. Barnes created it to “promote the advancement of education and the appreciation of the fine arts,” using his world-renowned collection of Impressionist, Post-Impressionist, and early Modern paintings. Unfortunately, the exacting terms of the Barnes Trust have resulted in a series of legal challenges, most recently over whether the Foundation may relocate its Gallery to downtown Philadelphia. The Barnes saga is now the subject of a provocative new documentary, titled “The Art of the Steal.” Legal historian and trust expert Bruce Mann, who has long followed, taught, and written about the controversy, makes an appearance in the film. You can find reviews here and here.

The Philadelphia Inquirer just ran a profile piece on Wendell Pritchett, a legal historian who went from teaching property at the University of Pennsylvania to advising Mayor Michael Nutter on policy development. He is now the Chancellor of Rutgers-Camden, where he is using his knowledge of urban transformation, racial inequality, and government housing policy to try to revitalize Camden. You can read the article here.

image: Vermont statehouse, Albert C. Barnes

Universal Disturber

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

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

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

Orbach on Prizefighting and the Birth of Movie Censorship

Prizefighting and the Birth of Movie Censorship is a new paper by Barak Y. Orbach, University of Arizona. Here's the abstract:

This Article offers an important historical corrective to the history of movie censorship in the United States. Censorship scholars unanimously, but mistakenly treat a 1907 ordinance of the City of Chicago as the first act of censorship in the United States. In fact, however, movie censorship in the United States was born in March 1897 with prohibitions against a now-extinct genre: prizefight films that showed real and staged boxing fights. At the time, boxing was generally illegal, yet the sport was enormously popular and boxers enjoyed privileged social status. The first censorship initiatives constituted one element in a failed social regulation. The Article also shows that content self-regulation in the motion-picture industry started with Edison's 1894 veto of the use of his equipment for prizefight films, approximately thirteen years before the presently-believed-to-be the first forms of content self-regulation. This Article, therefore, begins to close a neglected gap in the literature on movie censorship. Its findings require a reexamination of content regulation in the motion picture industry, whose presumed twentieth century origins actually reveal legislatures and industries already experienced in censorship campaigns and laws. Despite the Article's historical reach, it provides important insights into modern-day social regulation. The failures of the nineteenth-century regulators to curtail popular activities like prizefighting can inform and shape current regulatory efforts, such as the design of anti-smoking policies.

Legal History at the Oscars

Thanks to Mary Dudziak and Dan Ernst for inviting to me to join in as a guest blogger this month. I look forward to offering some thoughts on the history of citizenship, immigration, and the military, as well as sharing with readers some exciting new work in modern Asian legal history. I also hope to encourage a discussion of issues facing the historical profession during our current economic downturn. But in the meantime, let’s talk about popular culture.

Last week, I noticed how much legal history was lurking behind some of the films honored at the Academy Awards. Viewers of Frost/Nixon might be particularly interested in the recollections of former White House Counsel John W. Dean.

Angelina Jolie (who, I think, has not yet been mentioned on the Legal History Blog) brought to life the legal drama surrounding Christine and Walter Collins in Los Angeles in 1928 and the so-called Wineville Chicken Coop Killings. National Public Radio provides some of the background on the case here. The film also reminded me of Paula Fass’s outstanding book Kidnapped: Child Abduction in America, a work that should be better known among legal historians.

Finally, among the film Milk’s many accomplishments has been restoring politics to the social movements of the 1970s, and reminding viewers that battles over sexual orientation referenda in 1977-1978 played a crucial role in the formation of LGBT political organizations. Interested historians might check out Fred Fejes, Gay Rights and Moral Panic: The Origins of America’s Debate on Homosexuality, an in-depth account from a media studies perspective.