Ball, "The First Amendment and LGBT Equality"

New from Harvard University Press: The First Amendment and LGBT Equality: A Contentious History, by Carlos A. Ball (Rutgers University). A description from the Press:

Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.

Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.

Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.

A few blurbs:

"Carlos Ball is a major figure in lesbian and gay rights. His book The Morality of Gay Rights is still the best treatment of gay rights and political theory in print. This project brings together both of his skill sets, examining the history in light of its theoretical implications. This is important work, and Ball is uniquely qualified to do it. There is no book quite like this on the market. Given the growing hostility toward First Amendment claims by some elements of the LGBT movement, this project is also very timely."—Andrew M. Koppelman

"Using lucid prose and a keen perception of historical trends, Carlos Ball contends that First Amendment law, which once worked to protect LGBT citizens, now mainly shields dissenting religious traditionalists. Ball also argues powerfully that settlements struck in previous eras of conflict between equality law and religious freedom should guide constitutional actors in our own time." —Nelson Tebbe

More information is available here.

Two by George on LGBT Rights

Marie-Amelie George, currently a fellow at Columbia Law School and soon to be the Berger-Howe fellow at Harvard Law School, has posted two articles.

"Bureaucratic Agency: Administering the Transformation of LGBT Rights" appears in Volume 36 of the Yale Law & Policy Review (2017). Here's the abstract:

In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit bathroom access for transgender students. The bureaucratic resistance this Article uncovers demonstrates the dynamism of the administrative state and how bureaucracy is important site of legal change.

Using this untold history of LGBT rights, this Article identifies when bureaucratic resistance is a permissible means of protecting minority rights. Resistance as a mechanism of legal change raises separation of powers and democratic legitimacy concerns, since administrative agencies are charged with executing enacted legislation. However, the very structure of administrative bureaucracies gives rise to this problem, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that same expertise. This Article argues that this type of bureaucratic resistance can be both permissible and desirable. It presents parameters for when bureaucrats may legitimately resist legislation based on their expertise so as to allow bureaucrats to introduce viewpoint diversifying scientific developments that promote minority rights, while mitigating the potential for harm.

The second article, "Expressive Ends: Understanding Conversion Therapy Bans," appears in Volume 68 of the Alabama Law Review (2017). Here's the abstract:

LGBT rights groups have recently made bans on conversion therapy, a practice intended to reduce or eliminate a person’s same-sex sexual attractions, a primary piece of their legislative agenda. However, the statutes only apply to licensed mental health professionals, even though most conversion therapy is practiced by religious counselors and lay ministers. Conversion therapy bans thus present a striking legal question: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers? Based on archival research and original interviews, this Article argues that the bans are significant because of their expressive function, rather than their prescriptive effects.

The laws’ proponents are using the statutes to create a social norm against conversion therapy writ large, thus broadening the bans’ reach to the religious practitioners the law cannot directly regulate. LGBT rights groups are also extending the bans’ expressive message to support the argument that sexual orientation is immutable and to reverse a historical narrative that cast gays and lesbians as dangerous to children. These related claims have been central to gay rights efforts for much of the twentieth century and continue to shape LGBT rights battles.

While the expressive effects of the bans are important, the laws and the campaign around them may have a negative effect. LGBT rights organizations working on the laws do not distinguish between conversion therapy efforts aimed at changing sexual orientation and those targeting behavior. This is troubling, not only because it fails to acknowledge the needs of same-sex attracted individuals who wish to live in accordance with their religious beliefs, but also because it reinforces a limited view of gay identity. Many within the LGBT movement contest the identity model that legal advocates have championed, and that conception of sexual orientation may in fact hinder the movement’s long-term goals. Differentiating between the various types of conversion therapy would help remedy this by emphasizing the law’s need to respect and protect sexual decisions and expressions, as well as create a platform from which to promote a more expansive vision of LGBT rights.

Full text is available on SSRN.

CFP: "Traffic in Women" and International Law

[We have the following call for articles on the“'Traffic in Women' and International Law."]

Six international conventions to combat the so-called “Mädchenhandel”, “white slavery”, “traffic in women” and “human trafficking” were adopted over the course of the 20th century. During the first half of the 20th century the issue received political and public attention to a degree as to make it possible to regulate it through international law. Five of the six international conventions were adopted between 1904 and 1949, while the last one was signed only in 2000. The phenomenon of the “trafficking in women” thus was one of the first fields for the regulation through international law along with more traditional issues, such as war and peace. A joint consideration of “trafficking” and international law thus offers a promising research topic.

Nevertheless, the international law dimension has only played a minor role in historical research on “trafficking”. So far, “trafficking” has been analysed with a view towards the multiple national as well as transnational civil society efforts and initiatives to combat „Mädchenhandel“, „white slavery“ or „traffic in women“. Some analyses have situated these efforts in the context of a “moral panic” and have, in some cases, questioned the existence of the underlying phenomenon. Studies focusing on the politics and implementation of anti-trafficking initiatives in national and local contexts, concentrated on certain regions. Research focusing on practices and implementation have pointed to an intricate connection between the politics of prostitution, migration and, more generally, sexual politics. A number of studies have analysed the raced, gendered and classed dimensions of discourses, representations and politics in this field.

All these studies have pointed to core issues connected to histories of “trafficking”, such as prostitution, sexuality, migration, police, law and order as well as social and political efforts of civil society and media representations. A more general view of the research on the histories on trafficking reveals, however, a rather fragmented field, in particular with regard to the dimensions of international law, which often do not go far beyond teleological success stories of an international struggle against this “evil”.

This edited volume seeks to integrate all these aspects by approaching the field through actors and institutions: A number of actors in the fields of social and security politics, including networks of legal experts, contributed to the development and expansion of institutions to regulate “trafficking”.

CFP: The Intimate State: Gender, Sexuality, and Governance in Modern U.S. History

We have the following Call for Proposals:

The Intimate State: Gender, Sexuality, and Governance in Modern U.S. History

Call for Proposals: Due April 10, 2017

Editors: Margot Canaday, Nancy Cott, & Robert Self

We are soliciting original history essays—archive-based research on specific topics,
as well as conceptual essays addressing more abstract questions—regarding gender, sexuality and the state for a new edited volume. We seek to bring twenty-five ears of scholarship on gender, sexuality, and the family to bear on the history of modern state authority in the United States (1865 to the present). While the volume will reach back to the Reconstruction era and value this history as such, we also hope to point toward a usable past in an uncertain present.

The historical study of state power (its accumulation at various scales, its structures, and its modes of operation) is a longstanding field while that of gender, sex, and sexuality is relatively young though very vibrant. For the most part, these two fields have produced their profoundest insights and advancements without substantial dialogue with one another. Yet contemporary developments and recent scholarship have made it plain that government action at the local, state and federal levels is entwined with incentives, obligations and punishments related to gender and sexuality, and that decisions imagined as personal and intimate choices are almost always already structured by state rules.

These collected essays will aim to demonstrate that the involvements of government authority in intimate life warrant greater historical analysis and theorization than they have generated to date. We envision a volume that encourages scholars whose primary intellectual commitment is to the history of gender and sexuality to leverage that scholarship in the service of new understandings of modern state power (whether at local, state, regional, national, or transnational scales) and that scholars of state authority will also be persuaded to attend more to the insights of gender and sexuality studies in their scholarship. How might the history of American state development—its periodization, its overall theorization—look different at every governmental level from the local to the federal when questions of gender and sexuality move to the center of the analytical frame? The volume invites intersectional approaches to that question, foregrounding the relationship of gender, sexuality, and state power to race, class, and other categories of analysis and experience, and also welcomes contributions that are transnational or comparative in their approach.

Possible topics might include gender/sexuality and:

--borders of the nation/immigration
--racism, racial violence
--political economy
--penal power and incarceration
--electoral/party politics
--citizenship
--militarization and war
--empire
--indigeneity
--national security

As well as state power/regulation and:

--forms of marriage, nonmarriage, marital dissolution
--commercialized sex/sex work
--sexual violence
--sexual science, eugenics
--pornography
--obscenity
--reproduction, contraception, abortion
--heterosexuality
--LGBT rights
--HIV/AIDS
--transgender lives and experiences

Please send an abstract of no more than 750 words, including references to major
sources for the research if archive-based, to Margot Canaday (mcanaday@princeton.edu), Nancy Cott (ncott@fas.harvard.edu), and Robert Self
(robert_self@brown.edu) by April 10, 2017, along with a one-page CV. Authors will
be notified by June 1, 2017, of their selection to participate in a conference to be held at Brown University in January of 2018. Essays (of no more than 10,000 words) to be circulated for the conference will be due December 15, 2017.

HLS Lectures on Diversity and U.S. Legal History

Harvard Today has posted a story on the lecture series, “Diversity and U.S. Legal History,” held at the Harvard Law School this semester.  HT reports that “the series was sponsored by Dean Martha Minow and organized by Professor Mark Tushnet, William Nelson Cromwell Professor of Law, who also designed a reading group to complement the lectures.”  The post includes links to lectures by Joseph Singer, Rachel Moran, Tomiko Brown-Nagin, Randall Kennedy, John S. W. Park, Annette Gordon-Reed, Michael Klarman, Kenneth Mack, Diana Eck, and Katherine Franke.

Murray and Tani on Gersen and Suk's "Sex Bureaucracy"

Melissa Murray and Karen M. Tani, University of California, Berkeley, have posted Something Old, Something New: Reflections on the Sex Bureaucracy, which appears in the California Law Review Online 7 (2016): 122-54:

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation”—one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent—and specifically, affirmative consent—has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.

Weekend Roundup

• Mark A. Graber, the Jacob A France Professor of Constitutionalism at the University of Maryland Francis King Carey School of Law, has been named a University System of Maryland Regents Professor. “Graber is one of just seven Regents Professors in the history of the University System of Maryland.”  More. 

• Judith Adkins, “These People Are Frightened to Death”: Congressional Investigations and the Lavender Scare, Prologue, 48 (Summer 2016), 6–20.

• Recent issues of the Louisiana Law Review have included some good legal history: Slavery Under the Thirteenth Amendment: Race and the Law of Crime and Punishment in the Post-Civil War South, by Virginia Tech’s Peter Wallenstein.  A Translator's Toolbox: The Law, Moreau-Lislet's Library, and the Presence of Multilingual Dictionaries in Nineteenth-Century Louisiana by Agustín Parise.  And On the Bicentenary of the Louisiana Supreme Court: Chronicle of the Creation of a Unique and Beautiful Legal Tradition by A. N. Yiannopoulos.
  

Walter Speck and His Mural (credit)

• "Wayne State's Walter P. Reuther Library of Labor and Urban Affairs will be the permanent home of Detroit-artist Walter Speck’s historic New-Deal era UAW mural. The mural depicts significant events in the UAW’s history, and for more than 75 years it was displayed at the Local 174’s union halls.”  It was unveiled yesterday during a ceremony during the 38th Annual North American Labor History Conference, which continues today at Wayne State.  More.

• ICYMI: Canadian legal history sessions at the ASLH meeting in Toronto, via Canadian Legal History Blog.  Laura Edwards’s appointment as the 2016-17 William H. Neukom Fellows Research Chair in Diversity and Law makes it to Bloomberg Law.  Seth Barrett Tillman on The Journals Clause.  "We're far removed from the Federalist Papers," laments Roger Pilon, after the third presidential debate.  We say: Sad!

• Do say hello to your LHB Bloggers if you see us at #ASLH2016.  We're always happy to hear from you!

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

Legal history meets the History of Science+

The Great Chicago Fire of 1871 (credit)

Are you working on the legal history of disasters, poisoning, animals, inventions, travel, hospitals, or forensic science? If so, your research probably sits at the intersection of legal history and the history of science, medicine, or technology.

This summer, we got in touch with scholars working in science-related historical fields that overlap with legal history. Our question was: what are your favorite websites in your own sub-field that could be of use to legal historians? Here's what people said--after the jump  

(* indicates special favorites).

Kang on Holmes's Martial Manliness

John M. Kang, St. Thomas University School of Law, has posted Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness, which will appear in the West Virginia Law Review 118 (2016): 1067-1129,

OWH in uniform, 1861 (wiki)

In order for constitutional democracy to endure, Americans must be tough, must be manly—and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War.

Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.

Weekend Roundup

• Two posts of interest from Notches: (1) "History from the Witness Stand": Rachel Hope Cleves (University of Victoria) interviews George Chauncey (Yale University). (2) "More Than Loving": blogger Jennifer Dominique Jones (University of Alabama) writes about "Race, Sexuality and Public Memory in the Movement for Marriage Equality."

• From Environment, Law, and History: word that the Environmental Law Institute "recently uploaded interviews with 24 people involved in creating the legal framework for modern environmental law in the US."

• DailyHistory.org brings us its American Legal History Top Ten Booklist. The list deliberately omits titles by Lawrence Friedman and Morton Horwitz, who already dominate most lists of classics.

• Annette Gordon-Reed, Harvard Law School, will deliver the keynote address at the ninth annual S-USIH Conference, to be held in Dallas October 26-29, 2017.  The conference’s theme is “Histories of Memory, Memories of History.”  H/t: L. D. Burnett

• Tracey Meares, Yale Law School, will will deliver the Chautauqua Institution’s twelth annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 11, 2016, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

• Via Balkinization: "Linguists at Brigham Young University are launching a 100 million word corpus of general Founding-era English." Lawrence Solan (Brooklyn Law School) offers some thoughts on the project. 

• An interview with Harvard’s Laurel Thatcher Ulrich, author of A Midwife's Tale.

• Itching to do some research in the archives of a Dutch castle? Look no further than Otto Vervaart's tour of manors, towers, and castles on Rechtsgeschiedenis Blog (scroll down to "A note on Dutch archival collections").

•  “On Thursday, June 30, 2016 ...  the Franklin D. Roosevelt Presidential Library and AT&T will formally announce [the digital transferal of] ten of FDR’s most important speeches from the original film stock to new state-of-the-art HD and 4K Ultra HD video. “ More.

• ICYMI: the Live Law New Orleans podcast is now up on Life of the Law.  And, over at H-Law, Nurfadzilah Yahaya posted on A Sixteenth-Century Fatwa Collection: Islamic Law in “Periphery."

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

Weekend Roundup

• At Labor Online, the blog of the Labor and Working-Class History Association, Katherine Turk (University of North Carolina, Chapel Hill) weighs in on HB2 and whether Title VII is a tenable route to justice.

• June 9 was International Archives Day! Highlights are on Twitter #International Archives Day. Here is the the Universal Declaration of Archives.

• The State Bar of Georgia has brought online the virtual version of its Museum of Law.  Designed by the bar’s  Law-Related Education Program, the Virtual Museum takes up civil rights, an independent judiciary, cruel and unusual punishment, and famous trials in Georgia and the United States.  H/t: Daily Report

The Vatican Library (credit)

• The Thomas Goode Jones School of Law at Faulkner University invites proposals for its Fifth Annual Law Review Symposium, “The Role of the Judge in the Anglo-American Tradition,” September 22-23, 2016. 

• Emeritus musings at Michigan Law

• ICYMI: Al Brophy on "Roots" over at the Faculty Lounge.

• In an op-ed for the New York Times, historian Estelle B. Freedman (Stanford University) places in historical context the efforts to recall Judge Aaron Persky (over the lenient sentence he issued in the recent Stanford sexual assault case).
• Now online is DigiVatLab, a remarkable online archive of some of the Vatican Library's most valuable manuscripts and incunables. Even if you don't read Latin, Greek, Hebrew, Arabic, Persian, Coptic, Syriac, Amharic, Aramaic or Armenian, you can still marvel at these treasures. Many are illuminated, and the bindings are also included. You can read more about the Vatican's digitization project here.

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

Weekend Roundup

• Annette Gordon-Reed, Harvard Law School, “spoke about her experiences combining legal analysis and historical research at a March 9 event hosted by the Class Marshals as part of” a series that “invites HLS professors to give a lecture as if addressing the graduating class for the last time.”  Watch it here. 

David M. Rabban (credit)

• Congratulations to David M. Rabban, Texas Law, for being named a John Simon Guggenheim Memorial Foundation Fellow for 2016

• Wait, you mean it wasn't an April Fool's joke?  It's for reals?  After this, we're still not entirely convinced.

• From Notches: Alison Lefkovits (New Jersey Institute of Technology) draws on her expertise on the history of divorce law to explore "The Clinton Sex Scandal as Queer History."

• The Future of the African American Past: a conference in Washington DC, May 19-21, 2016.  Sessions include the opening roundtable, “The Long Struggle for Civil Rights and Black Freedom.”

• Lawrence Solum, Georgetown Law, has updated the entry on Originalism in his Legal Theory Lexicon.  

• The latest issue of Ronald K. L. Collins’s First Amendment News (FAN 103) is up on Concurring Opinions.  It features a notice of Stephen Solomon’s forthcoming Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press).

• “The Franklin D. Roosevelt Presidential Library and Museum and the Mid-Hudson Antislavery History Project will present 'Slavery and the Church in New York' with Reverend Charles Kramer on Sunday, April 10, 2016. The program will begin at 2:00 p.m. in the Henry A. Wallace Visitor and Education Center. This event is free and open to the public.”  More.

• "Conflict Resolution in Historical Perspectives," at Cardiff University, September 14, 2016.  More, via H-Law.

• We're very sorry to have missed noting the conference Theodore Roosevelt and the Law in a timely fashion.  Better late than never, we hope. 

• From Rechtsgeschiedenis Blog: a post on "An age of lawyers and literature" (drawing in part on the "Age of Lawyers" exhibit at the Folger Shakespeare Library).

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

George, "Agency Nullification: Defying Bans on Gay and Lesbian Foster and Adoptive Parents"

Here's an article that we missed from this past fall: "Agency Nullification: Defying Bans on Gay and Lesbian Foster and Adoptive Parents," by Marie-Amelie George (Columbia University - Law School). The article appears in Volume 51, no. 2, of the Harvard Civil Rights-Civil Liberties Law Review. Here's the abstract:

Given the Supreme Court’s recent decision upholding marriage equality, LGBT advocates may believe that the future of gay rights is in the hands of the courts. As this Article shows, however, focusing advocacy efforts on the judicial branch is short-sighted and ignores a crucial avenue for legal change: executive agencies. This Article illuminates a new path for advocacy by uncovering the history of LGBT family law claims, which had its beginnings in the administrative state. In the mid-1980s and early 1990s, states began promulgating bans on gay and lesbian foster and adoptive parenting, which civil servants opposed, maintaining that the prohibitions did not serve the best interests of children. Instead of implementing the bans, bureaucrats nullified the laws, working to overturn the bans, limiting their application, or defying the rules in their entirety. Their actions not only helped dispel social prejudices of gays and lesbians as harmful to children, but also recast gay men and women as parents and community members, which promoted other LGBT rights. With gay and lesbian families becoming increasingly common, the need to protect the interests of children with same-sex parents became a powerful argument in favor of marriage equality. The discursive shift that agency nullification fostered was essential in the fight for marriage rights and demonstrates the power of bureaucrats to effectuate legal change. This Article argues that these past successes provide a blueprint for future advocacy efforts that LGBT advocates should follow.

Full text is available here.

Grossman on AIDS Activists, the FDA, and the "Drug Constitution"

Lewis A. Grossman, American University, Washington College of Law, has posted AIDS Activists, FDA Regulation, and the Amendment of America's Drug Constitution:

This Article explores how AIDS activists, desperate for access to potentially life-saving pharmaceuticals, permanently transformed America’s “drug constitution.” Their advocacy altered the FDA’s interpretation and application of the federal Food, Drug, and Cosmetic Act (FDCA) so as to expedite the availability of new, unproven drugs for critical illnesses, thus enhancing individual patients’ autonomy to make therapeutic choices without government interference.

The FDCA is more than simple set of instructions to a federal agency — it is a source of vitally important and deeply entrenched institutional and normative frameworks. Like major civil rights, antitrust, and environmental statutes, the FDCA should be viewed as a quasi-constitutional “superstatute.” Therefore, the AIDS activists’ FDA reform campaign of the late 1980s and early 1990s should be understood as a “constitutional” movement, even though it rarely invoked the United States Constitution and pursued its goals entirely outside of court. As a result of the AIDS movement’s efforts, federal drug regulation today reflects not only the FDCA’s original foundational principle of protecting consumers from hazardous protects, but also the (often contrary) fundamental goal of promoting the expeditious release of potentially effective treatments for severe illnesses. The AIDS activists’ successful advocacy regarding drug access permanently shifted decision-making power previously exercised by the FDA to individual patients and their physicians.

Sunday Book Roundup

Of Courtiers and Kings: More Stories of Supreme Court Law Clerks edited by Todd C. Peppers and Clare Cushman (UVA Press) is reviewed in The New Rambler.

"Nevertheless, some good stories make it through the encomiastic firewall; and some of the portraits are more than two-dimensional. One can’t help but empathize with such a character as Potter Stewart – the genuine humanity of the guy – when one learns, via his 1972- and 1973-term clerks, that he hated Warren Burger (his Chief Justice), was frightened of William Rehnquist, and had the habit of chewing the ends of his neckties.
And it tells you something about Rehnquist to read the story of him and his 1974 clerk, going to play ping-pong in an upstairs room, next to the Supreme Court gym. As they were entering the room, a janitor walked out, leaving the place reeking of marijuana. But Rehnquist never reported the matter, so the janitor kept his job. Someone should have told Potter Stewart that he really had nothing to fear from the old softie."

From H-Net comes a review of On the Edge of Freedom: The Fugitive Slave Issue in South Central Pennsylvania, 1820-1870 by David G. Smith (Fordham University Press).

New Statesman has a review of Joan Brady's America's Dreyfus: The Case Nixon Rigged (Skyscraper Publications).

"The one-sentence summary of this extraordinary book is that it is about the dirty tricks employed by Richard Nixon and his allies in the late 1940s and early 1950s to secure the conviction of Alger Hiss, a former government official, on a trumped-up charge of perjury. That leaves out many material facts. Joan Brady was only eight years old when a former Communist Party member, Whittaker Chambers, told the House Un-American Activities Committee (HUAC) that Hiss was a communist. She was not quite ten when Hiss was convicted in January 1950. But in 1960 she was living with Dexter Masters, whom she later married. Masters was an old friend of Hiss. Hiss came to dinner and remained friends with Brady until his death in 1996."

The Federal Lawyer has a new issue out with several reviews of note, all found here. One is of Harold H. Bruff's Untrodden Ground: How Presidents Interpret the Constitution (University of Chicago Press). There's also a review of Jilly Leovy's Ghettoside: A True Story of Murder in America (Spiegel & Grau), and a review of Shakespeare and the Law: A Conversation Among Disciplines and Professions edited by Bradin Cormack, Martha C. Nussbaum, and Richard Strier (University of Chicago Press).

In The Washington Post there is a review of Fergus M. Bordewich's The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster).

The Firebrand and the First Lady: Portrait of a Friendship: Pauli Murray, Eleanore Roosevelt, and the Struggle for Social Justice by Patricia Bell-Scott (Knopf) is reviewed in The New York Times.

"The February 1953 issue of Ebony included an article entitled “Some of My Best Friends Are Negroes.” The byline was Eleanor Roosevelt’s, though the headline, apparently, was not. “One of my finest young friends is a charming woman lawyer — Pauli Murray, who has been quite a firebrand at times but of whom I am very fond,” Roosevelt wrote. “She is a lovely person who has struggled and come through very well.” Indeed, nothing was ever easy for Murray, a black woman born in 1910, a woman attracted to women and also a poet, memoirist, lawyer, activist and Episcopal priest. But her tender friendship with Roosevelt, sustained over nearly a quarter-century and more than 300 cards and letters, helped. It is the rich earth Patricia Bell-Scott tills for “The Firebrand and the First Lady,” a tremendous book that has been 20 years in the making."

Also from The New York Times is a review of Mannish Sinha's The Slave's Cause: A History of Abolition (Yale University Press).

Colman on Samuel Warren's Gay Brother and the Right to Privacy

Charles E. Colman, an acting assistant professor at NYU Law who will be joining the University of Hawaiʻi’s  law faculty this summer, has posted About Ned, which is to appear in the Harvard Law Review 129 (2016): 128-52:

In this essay, I explore the possibility that the storied article "The Right to Privacy," 4 Harv. L. Rev. 193 (1890), might have come into existence in part because of lead author Sam Warren's powerful drive to protect his younger siblings -- and, in particular, his gay brother Ned. For reasons both obvious and less intuitive, Sam might have viewed the article as a promising vehicle for shielding Ned and the rest of the Warren family from potentially devastating journalistic and public scrutiny of Ned's sexuality.

Viewed in this light, the article acquires a special resonance in this, its one hundred twenty-fifth anniversary. Rhetoric central to the piece can be traced, link by link, case by case, to Supreme Court decisions that collectively established a multifaceted constitutional right to personal autonomy. The article can arguably be understood as a catalyst for the series of events culminating in the Supreme Court's 2015 recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage.

If "The Right to Privacy" is indeed about Ned, even in part, then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a fundamental right for gay people throughout the nation.

Interview with Mary Ziegler in NOTCHES

Students from Princeton University's Program in Gender and Sexuality Studies recently devoted three class sessions to After Roe: The Lost History of the Abortion Debate by former guest blogger, Mary Ziegler. As part of their coursework for "Reproductive Politics in the United States and Abroad," the students conducted an interview with Ziegler for NOTCHES, published this week.

Here's the final exchange of the interview--Mary's book recommendations!

Students: Can you recommend three books for those interested in learning more about the history of reproductive politics in the United States? 

MZ: It is always hard to pick just three, but here are several that immediately come to mind:
1) Sara Dubow, Ourselves Unborn: A History of the Fetus in Modern America (Oxford UP, 2010). This provocative book offers an important look at how attitudes toward the fetus have evolved, mirroring larger changes to American law and culture.
2) Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade (Oxford UP, 2015). This book offers the first meaningful study of the early anti-abortion movement. It is an indispensable read for those interested in the history of opposition to reproductive rights.
3) Linda Gordon, The Moral Property of Women: The History of Birth Control Politics in America (Illinois UP, 2002). Gordon’s classic study offers crucial context for the fight for legal abortion, mapping out the contributions of family planners, feminists, population controllers, and eugenic legal reformers.

Franke on the Perils of Marriage Equality

New from New York University Press: Wedlocked: The Perils of Marriage Equality (November 2015), by Katherine Franke (Columbia University). A description from the Press:

The staggering string of victories by the gay rights movement’s campaign for marriage equality raises questions not only about how gay people have been able to successfully deploy marriage to elevate their social and legal reputation, but also what kind of freedom and equality the ability to marry can mobilize.

Wedlocked turns to history to compare today’s same-sex marriage movement to the experiences of newly emancipated black people in the mid-nineteenth century, when they were able to legally marry for the first time.  Maintaining that the transition to greater freedom was both wondrous and perilous for newly emancipated people, Katherine Franke relates stories of former slaves’ involvements with marriage and draws lessons that serve as cautionary tales for today’s marriage rights movements.  While “be careful what you wish for” is a prominent theme, they also teach us how the rights-bearing subject is inevitably shaped by the very rights they bear, often in ways that reinforce racialized gender norms and stereotypes. Franke further illuminates how the racialization of same-sex marriage has redounded to the benefit of the gay rights movement while contributing to the ongoing subordination of people of color and the diminishing reproductive rights of women.

Like same-sex couples today, freed African-American men and women experienced a shift in status from outlaws to in-laws, from living outside the law to finding their private lives organized by law and state licensure. Their experiences teach us the potential and the perils of being subject to legal regulation: rights—and specifically the right to marriage—can both burden and set you free.

A few blurbs:

"Wedlocked is a brilliantly conceived cautionary tale of the risks of securing a ‘freedom to marry.’ Drawing upon original research into the complications that marriage rights carried for slaves freed in the 1860s, Katherine Franke warns that marriage rights are not the unalloyed triumph for gay people and same-sex couples that the Supreme Court and virtually all commentators have claimed. Anyone interested in gay marriage should read this book—but so should anyone concerned about the stubborn perseverance of racism in America. For those who appreciate irony, compare this fascinating book with Justice Thomas’s skeptical dissent in the recent marriage equality cases.”—William N. Eskridge Jr.

“A provocative intervention into legal and cultural debates concerning same-sex marriage. Plumbing the well-known analogy between race and sexual orientation in new ways, Wedlocked offers a clear-eyed meditation on the traps and tripwires that marriage, as a highly regulative and deeply gendered legal construct, imposes on non-normative communities. With compelling stories, the book takes on the tenets and truisms of same-sex marriage proponents in startling ways. A real conversation-starter.”

—Martha Umphrey

More information is available here.

Call for Applications: Penn DCC Postdoc

Another helpful job posting from H-Net, this one for a postdoctoral position in the Penn Program on Democracy, Citizenship, and Constitutionalism:

CALL FOR APPLICATIONS

2016-2017 Academic Year

Application Deadline: February 15, 2016

The Penn Program on Democracy, Citizenship, and Constitutionalism (DCC) invites applications for a one-year DCC Postdoctoral Fellow in any discipline whose research is pertinent to the Program’s 2016-2017 theme, “Citizenship on the Edge: Sex/Gender/Race.”  

Although the privileges and protections provided by the state are never entirely secure, there are those whose gender, sexual, and racial positioning give them an especially precarious hold on both the legal and symbolic rights of citizenship.  In its 2016-17 theme year, “Citizenship on the Edge: Sex/Gender/Race,” Penn DCC examines the struggles of vulnerable groups to gain or maintain their status as full citizens, recognizing at the same time that the edge they inhabit can be a cutting edge.  In the U.S., women and men of color confront police violence, high rates of incarceration, and attempts to roll back voting rights, while women of all backgrounds contend with the persistence of sexual violence, labor exploitation, and family disintegration.  And while 2015 saw great strides in LGBTQ rights with the achievement of marriage equality and growing public awareness of trans women and men, there is ongoing resistance to these developments.  Globally, anti-gay legislation and violence, state repression, ethnic conflict, and human trafficking for sex and forced labor have all affected the meaning, status and enactment of citizenship, as well as the strategies individuals and communities have publicly mobilized for the recognition of their personhood.

The DCC program welcomes applicants engaged in empirical or normative scholarship, focused comparatively or on particular nations, regions, or communities, that explores these questions and seeks to assess the complex impact of the radically evolving media landscape on democratic politics, as well as on the closely related issues of citizenship and constitutional government.

The Democracy, Citizenship, and Constitutionalism program is an interdisciplinary initiative, funded by the Mellon Foundation, which includes a faculty seminar series and annual conference on themes chosen by the Program’s Faculty Advisory Council; a graduate workshop series; and undergraduate research grants.  The DCC Postdoctoral Fellow is expected to participate in the faculty seminar series, teach an Undergraduate Seminar on a related topic, and join monthly meetings to discuss the progress of undergraduates receiving research grants.  The Fellow also has the opportunity to pursue the Fellow’s research and study and participate generally in the intellectual life of the Penn community. Stipend is $53,800, plus health insurance.

More information is available here.

Mayeri on Obergefell and the Lessons of Second-Wave Feminism

Serena Mayeri, University of Pennsylvania Law School, has posted Marriage (In)Equality and the Historical Legacies of Feminism, which appears in the California Law Review Circuit 6 (2015): 126-36t:    

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.