The Legacy of John Hope Franklin

The National Archives of the United States is sponsoring the event, From Slavery to Freedom and the Legacy of John Hope Franklin, to be held Thursday, February 18, at 7 p.m. in the Archives’ William G. McGowan Theater, 700 Pennsylvania Ave. NW, Washington, DC. According to the announcement:

The ninth edition of From Slavery to Freedom by John Hope Franklin and Evelyn Higginbotham has been revised to reflect the most current scholarship on African American history. Tonight we present a program on the legacy of John Hope Franklin and this award-winning work. Joining the discussion will be Evelyn Brooks Higginbotham, co-author of From Slavery to Freedom; Archivist of the United States David S. Ferriero; and John Franklin, son of John Hope Franklin. A book signing will follow the program.

Image credit.

Comparative Copyright History: Canada and Mandate Palestine

As it happens, two papers were recently posted, each of which taking a comparative approach tot he history of copyright, although centered on different countries. The first is A Canadian Copyright Narrative, by Daniel J. Gervais, Vanderbilt University School of Law. It also appears in Intellectual Property Journal, 21 (2009). Here is the abstract:

Copyright policy, like other major areas of public policy, requires a solid anchoring in fundamental principles. That anchor can only be found through a clear understanding of the purpose of copyright.

One could rely on public choice theory and posit that by allowing various stakeholders to push their issues the end-result will be balanced. From a pragmatist’s perspective, the theory rests on three key assumptions. First, that all interested parties are represented by (equally) well equipped experts. Second, that these experts have correctly analyzed not only the current state of play but also the predictable future and correctly devised measures (including, but not limited to, legislative amendments) that will adequately align the regulatory framework with their objectives. Third, the end result of blending the various “adequate” and well-formulated proposals in a single politically acceptable package will maintain the (correct) analysis of each (equally well equipped) lobby and not produce unintended or negative consequences. If one accepts that these assumptions are well founded, then by all means the government and Parliament should limit themselves to a clearinghouse function whose main objective is to keep everyone equally happy (or as minimally unhappy as possible).

One may also disagree with one or more of the above assumptions. I will declare myself to be one of those skeptics, one who believes that proper policy is made when the policy objective is identified from a national interest perspective, not just by mosaicing sectoral interest groups, and then an objective analysis of the measures designed to implement the objective is made that takes into account possible unintended consequences. I suggest that the first step is to develop a coherent discourse, a narrative. This is what I suggest is needed in the copyright domain. The power of a narrative is at least three-fold: it guides policy-making; it assists courts in interpreting copyright laws; and, with proper education, it increases understanding and, hopefully, internalization of copyright norms.

To develop a copyright narrative, one probably should begin by looking at the roots of the current system. One of the problems of copyright policy in North American is that it is a house built on someone else’s foundations, though at times we are not exactly sure whose foundations. This is nothing new. After all., Canada and, in a different way of course, the United States have “imported” the Common Law, the French Civil Code (Louisiana, Quebec) and several other parts of their legal edifice, state, provincial and federal, from other countries. There are differences, however, between copyright and, for example, the common law. The volume of contract, property and tort cases, as well as doctrinal debate, restatements etc. – interspersed with numerous statutory interventions of course – have allowed us both to understand the origins of common law rules and to transform, and adapt, many of the underlying common law concepts. Can the same be said of copyright? Seventeenth century debates in Brittan, and elsewhere in Europe from which the first copyright statutes emerged, had the great merit of forcing the courts in those jurisdictions to examine the whys and wherefores of copyright law with much greater depth than was the case in North America, until recently.

The perceived need to anchor copyright debates in a solid policy context and, hence, to develop a coherent (and hopefully convincing) narrative has been the subject of excellent contemporary research. We are indebted to a number of scholars for their work in this area. The attempt to find normative applications from a historically derived model for copyright is not new either. However, the research thus far tends to provide a blurred picture, by espousing justificatory theories based on one or many of the following: commercial and personal interests of authors, understood as property and/or liability rules; commercial interests of publishers and other “rights holders” and/or the social costs of overprotection and the related economic-driven search for an optimal point of protection.

In Part II of this paper, I will look at the Canadian narrative and try to present a faithful picture of its current state of evolution. To do so, however, a detour via England is required, because that is whence the soil from which the Canadian narrative comes. This historical detour will be the focus of Part I. Part III will suggest a path for the next stages of the Canadian narrative that is both consistent with international norms and hopefully useful in moving the debate forward. That part ends with a brief look at the impact that the linkage with trade rules may have on copyright.

The second paper is Hebrew Authors and English Copyright Law in Mandate Palestine, by Michael Birnhack, Buchmann Faculty of Law, Tel Aviv University. It is forthcoming in Theoretical Inquiries in Law 12 (2011). Here is the abstract:

This article (re)tells the as yet-untold story of copyright in Mandate Palestine. It is a story about the introduction of copyright law in one region, beginning a century ago: the Ottoman province that became Palestine under the British rule (1917-1922) and a Mandate (1922-1948), and then Israel (1948). The account provides an early case of legal globalization through colonialism (although Palestine was a Mandate, not a colony). The imposition of copyright law in Palestine enables us to observe the difficulties of applying an uninvited legal transplant and to trace its dynamics.

The discussion queries the fate of copyright law in Mandate Palestine from two perspectives. First, the Colonial-Imperial point of view: I will ask "why that then", i.e., why did the British government impose copyright law in the newly administered territory only a month after the establishment of the civil administration in the summer of 1920 and then replaced it in 1924. The answers are to be found in the general imperial agenda, its Palestine agenda, as well as the nature of copyright and additional reasons. Second, from the local point of view, I will trace the first steps of copyright law within the Hebrew community and especially within the literary circle in the 1920s.

The discussion is located within several frameworks. The first is that of globalization and legal transplants. Copyright law today is at the forefront of the battle on globalization. Copyright features high on the agenda of those nations that push for stronger legal protection and for more enforcement measures in the name of free trade, private property as well as harmonization and unification. The new global copyright regime imposes foreign concepts on countries which are not always interested in these legal formulas. While copyright law was first introduced in the region by the Ottoman Empire in 1910, it was the 1911 (British) Imperial Copyright Act, applied to Palestine in 1924 (with a precursor in 1920), alongside a Copyright Ordinance that left their mark in the long run. Here, I focus on the non-Orthodox Jewish Zionist Hebrew community, known as the Yishuv. The article examines the literary field.

A second framework of the discussion is the interaction between law and social norms. This framework is a subset of the previous, globalization one, as copyright law was foreign and the social norms were local. It took a while for copyright law to be absorbed in the region and for the notion of a legal protection for intangible creative works to resonate within the local community. One main goal of the article is to point out this slow absorption and seek for explanations. This does not mean that there were no local copyright-related needs. There were such needs. The legal issues that bothered the literary field concerned the author-publisher relationship, attribution, the integrity of the work and international transactions. However, the answers to these problems were not found in the law but rather in private ordering, namely contracts and social norms.

Scalia, Charles Hamilton Houston, and more in the book reviews

"Scalia has fused the cerebral and the atavistic strains of conservatism in a manner that leaves one wondering if they were ever distinct at all," writes Michael O'Donnell in The Nation, reviewing a new book and a not-so-new one: American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia by Joan Biskupic, and The Rise of the Conservative Legal Movement: The Battle for Control of the Law by Steven M. Teles.

For decades Scalia has beguiled conservative law students with his abhorrence of compromise and the colorful, take-no-prisoners style of his opinions. More than any other contemporary jurist, he claims to abide by a host of scrupulous legal principles: strict fidelity to a statute's text, adherence to the Constitution's original meaning, respect for the nation's federal structure of government. But notwithstanding these "neutral" principles and his habit of adorning his defense of them with intellectual flourishes, Scalia writes his opinions in boiling ink, mixing prodigious citations and vast learning with callous disregard for others and bursts of derision bordering on bigotry.

Continue reading here.

ROOT AND BRANCH: Charles Hamilton Houston, Thurgood Marshall, and the Struggle to End Segregation by Rawn James, Jr. is taken up by Kevin Boyle in the Washington Post. "The NAACP's crusade has no shortage of historians," Boyle writes.

Richard Kluger's brilliant book on Brown, "Simple Justice," appeared 35 years ago; Mark Tushnet has written a monumental two-volume biography of Marshall; and late last year Patricia Sullivan published a marvelous new history of the NAACP, with Houston and Marshall among its central figures. In "Root and Branch," Rawn James, Jr. isn't trying to add to that imposing scholarship as much as he's trying to give it a popular spin. A Washington lawyer, he moves nimbly through the complex legal issues Houston and his team raised. To add a poignant touch, he interweaves Houston's and Marshall's powerful personal stories. And he gives their campaign a stirringly triumphal arc, the story of a whole nation being forced -- by the fierce will of two learned men -- to overcome.

That approach comes at a cost.

Read the rest here.

THE SCIENCE OF LIBERTY: Democracy, Reason, and the Laws of Nature by Timothy Ferris is reviewed by Gary Rosen in the New York Times. For Ferris, "the standard account of the history textbooks — with the Renaissance giving rise to the Scientific Revolution and thus preparing the way for the Enlightenment — fails to identify the primary causal relationship. Democratic governance and individual rights did not emerge from some amorphous 'brew of humanistic and scientific thinking,' he argues, but were 'sparked' by science itself — the crucial 'innovative ingredient' that 'continues to foster political freedom today.'"

Judicial Review of Agency Rulemaking in the DC Circuit: A Retrospective

The Historical Society of the District of Columbia Circuit has announced a retrospective panel, "Review of Agency Rules in the D.C. Circuit: Back to the Future?" on Wednesday, March 31, 2010 at 4:30 p.m. in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse, Washington, D.C. Admission is free. A reception will follow the program.

The scheduled panelists are:

Michael Fitzpatrick, Deputy Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget

Howard Fox, Counsel, Earthjustice

Honorable Brett Kavanaugh, U.S. Court of Appeals for the District of Columbia Circuit

Paul Verkuil, Nominee for Chair of the Administrative Conference of the United States and Professor of Law, Benjamin N. Cardozo Law School

The panel will be moderated by Jeffrey Lubbers, Professor of Practice in Administrative Law, Washington College of Law, American University.

For further information, please contact the Historical Society at 202-216-7346.

Ross on Justices Who Wanted to Be Presidents

William G. Ross, Cumberland School of Law, Samford University, has posted The Presidential Aspirations of U.S. Supreme Court Justices: A History and a Cautionary Warning. Here is the abstract:

A remarkably large number of U.S. Supreme Court justices have had presidential aspirations while serving on the Court. Several have conducted covert presidential campaigns, and a few nineteenth century justices even campaigned openly from the bench. [That would include Salmon P. Chase, left.] In at least three quarters of the elections between 1832 and 1956, one or more justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as potential candidates.

During the past half century, no Supreme Court justice appears to have have entertained serious presidential ambitions, probably because no justice who has been appointed during the past fifty years has held any significant elected office before taking his or her seat on the Court.

This article surveys the history of presidential ambitions by Supreme Court justices and argues that the tendency of modern presidents to appoint justices who have not held public office has helped to enhance public confidence in the integrity and independence of the Court. Presidential ambitions could influence the votes of justices and the manner in which they write their opinions and it can create discord among the justices.

Although the Court can benefit from the experience of justices who have served in elected office, presidents should be very careful about nominating to the Court any person who might harbor presidential ambition.

Image Credit: Salmon P. Chase, William O. Douglas, Prints and Photographs Division, Library of Congress

Cohen on "Undead" Wartime Cases: Stare Decisis and the Lessons of History

'Undead' Wartime Cases: Stare Decisis and the Lessons of History is a new article by Harlan Grant Cohen, University of Georgia School of Law. It is forthcoming in the Tulane Law Review (2010). Here's the abstract:

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really mean to invoke the lessons of history? Is it merely a rhetorical device or should it have some role in determining the stare decisis effect of these old wartime cases? The fact that each of the four cases cited by the Bush Administration has since been set aside by the Supreme Court raises questions about whether stare decisis ever applied to them at all. Can the lessons of history answer those questions?

This Article explores the potential legal meanings of the “lessons of history.” It distinguishes and weighs a number of possible models for how history might be used: (1) history as facts complicating or undermining prior decisions; (2) history as precedent-replacement, with the judgments of Congress, the Executive, or others taking the place of that of judges; and (3) history as a vehicle for constitutional principles, like a fear of Executive aggrandizement in wartime or a belief that “the Constitution is not a suicide pact.” Using the four key cases here as examples - Quirin, Eisentrager, Yamashita, and Hirota - the Article examines the benefits and pitfalls of allowing courts to engage in each of these types of analysis. The result is a clearer understanding not only of how history should affect the fate of old wartime cases, but of the roles history can play more generally.

Saito on Colonial Presumptions: The War on Terror and the Roots of American Exceptionalism

Colonial Presumptions: The War on Terror and the Roots of American Exceptionalism has just been posted by Natsu Taylor Saito, Georgia State University College of Law. It is appears in the Georgetown Journal of Law and Modern Critical Race Perspectives (2009). Here's the abstract:

The United States' current "war on terror" has been framed as a struggle for "civilization"; one which requires a "new paradigm of international law." The rationale for the United States' selective self-exemption from otherwise applicable international law in conducting this war has been that new and imminent threats require the re-shaping of legal doctrines. This essay considers this rationale against the backdrop of three centures of American visions and policies, and the legal justifications put forth to justify Euroamerican expansion. It concludes that the justifications for American exceptionalism have been remarkably consistent throughout its history and that, as a result, contemporary exceptionalist policies can only be effectively countered if the presumptions of the underlying paradigm are confronted directly.

Kurlander on Hilger on the Rechtsstaat in the Third Reich

The Law of the Jungle is the title of a review by Eric Kurlander, Stetson University, of Christian Hilger's Rechtsstaatsbegriffe im Dritten Reich: Eine Strukturanalyse (Tübingen: Mohr Siebeck, 2003), commissioned by H-German. It commences:

In the nearly two centuries since its formulation by the legal philosopher Robert von Mohl, the concept of the German Rechtsstaat has meant different things to different people. The putative father of German conservatism, Friedrich Julius Stahl, believed the principles of the Rechtsstaat could be reconciled with a corporate, monarchical state. Two generations later Hugo Preuß, author of the Weimar constitution, argued to the contrary that rechtsstaatlich principles of justice, individual liberty, and equality before the law could only be realized in a democracy. While the relative prerogatives of the state vis-à-vis the individual may have changed over the years, however, most legal historians accept that there was a consistent respect for equality before the law, the rights of the individual, and the impartial administration of justice running from Freiherr vom Stein's Prussia, through the Kaiserreich, and into the Weimar Republic. At its most abstract, this tradition affirmed that neither the government nor the administration might infringe upon the liberty of individual citizens unless so prescribed by law and deemed constitutional by independent judicial oversight. No matter how powerful the state might become, its monopoly on violence was ostensibly restrained by an overwhelming respect for law (Gesetz) and justice (Recht). In this traditional narrative, Germany's long tradition of Rechtsstaatlichkeit was only interrupted by the Third Reich, in which individual rights were subordinated to the interests of the collective and where citizens enjoyed varied legal status based on "subjective" attributes such as race and political affiliation.

According to Christian Hilger, however, legal historians have failed to differentiate sufficiently among the varied legal-philosophical approaches extant in the Third Reich. Even National Socialist legal theorists had trouble escaping the long shadow of the Rechtsstaat.

More.

Hat tip: H-Law

Schmitt on Robert Kennedy and the Politics of Poverty

President of the Other America: Robert Kennedy and the Politics of Poverty by Edward R. Schmitt has just been published by the University of Massachusetts Press. Hat tip to Ralph Luker. From the press:

Robert Kennedy’s abbreviated run for the presidency in 1968 has assumed almost mythical proportions in American memory. His campaign has been romanticized because of its tragic end, but also because of the foreign and domestic crises that surrounded it. Yet while most media coverage initially focused on Kennedy’s opposition to the Vietnam War as the catalyst of his candidacy, another issue commanded just as much of his attention. That issue was poverty. Stumping across the country, he repeated the same anti-poverty themes before college students in Kansas and Indiana, loggers and women factory workers in Oregon, farmers in Nebraska, and business groups in New York. Although his calls to action sometimes met with apathy, he refused to modify his message. “If they don’t care,” he told one aide, “the hell with them.”

As Edward R. Schmitt demonstrates, Kennedy’s concern with the problem of poverty was not new. Although critics at the time accused him of opportunistically veering left in order to outflank an unpopular president, a closer look at the historical record reveals a steady evolution rather than a dramatic shift in his politics. From the critical West Virginia primary in his brother’s 1960 presidential campaign through the public debate triggered by the publication of Michael Harrington’s The Other America to his embrace of LBJ’s war on poverty, Kennedy became increasingly engaged with the plight of the poor and disenfranchised in America.

According to Schmitt, Kennedy’s approach to the problem, although fueled by moral outrage, was primarily political. First as attorney general and later as senator from New York, he reached out not only to those on the margins of American society, but also to business leaders and political elites who recognized the threat poverty posed to the nation’s long-term stability. Guided by a communitarian vision of government, he believed that a coalition of the powerful and the powerless could strengthen local communities and link them in to a new form of American federalism. Even though that vision was never realized, President of the Other America provides a revealing glimpse of the kind of president Robert Kennedy might have been.

“Schmitt offers an inside view of the problem of poverty, a look at how Robert Kennedy organized various political, social, and business elites around programs and special initiatives that he endorsed or, with help, originated. His carefully drawn and resourceful reconstruction of RFK’s intellectual and emotional journey makes an important contribution, as does his notion that Kennedy’s strategic vision placed him firmly in the camp of communitarian thinkers.”

James W. Hilty, author of Robert Kennedy: Brother Protecto

de la Fuente and Gross on Law, Slavery and Race in the Americas

Alejandro de la Fuente, University of Pittsburgh, and Ariela J. Gross, University of Southern California Law School, have posted Comparative Studies of Law, Slavery and Race in the Americas, which also appears in Annual Review of Law and Social Science 6 (2010 ). Here’s the abstract:

This critical essay surveys the historical research comparing U.S. and Latin American law and slavery. An earlier generation of comparative work on race and slavery, by Frank Tannenbaum [right] and others, drew heavily on law to draw sharp contrasts between U.S. and Latin American slavery, emphasizing the relative harshness of U.S. slave law. Revisionist social historians criticized Tannenbaum for providing a misleading top-down history based on metropolitan codes, and pointed to demographic and economic factors to explain variations in slavery regimes. More recently, legal historians have begun to explore law “from the bottom up” – slaves’ claims in court, trial-level adjudications, and interactions among ordinary people and low-level government officials. While most studies stay within one national context, some scholars have begun to look at slavery and freedom in the transnational context of the Atlantic world, and others have attempted comparisons of manumission in localities across legal regimes.

Image credit.

Update: The paper is also available from bepress.

Holt and Tarter on The Apparent Political Selection of Federal Grand Juries in Virginia, 1789-1809

The Apparent Political Selection of Federal Grand Juries in Virginia, 1789-1809 has just been posted by Wythe Holt, University of Alabama School of Law and Brent Tarter. It appeared in the American Journal of Legal History, Vol. 49, p. 257, 2007. Here's the abstract:

Many charges were made in the early decades of Virginia's adherence to the federal union that membership on the state's federal court grand juries was often granted for overt political reasons. By exploring three notorious instances - the 1797 grand jury presentment of Jeffersonian Congressman Samuel J. Cabell, the 1800 indictment of Jeffersonian propagandist James Thompson Callendar, and the 1807 indictment of former Jeffersonian Vice President Aaron Burr - it is shown that the charges were very likely true. The article also provides background information on the importance of petit and grand juries in the early Republic.

Image: Aaron Burr.

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Partnoy on the Match King and Us

Frank Partnoy, University of San Diego School of Law, has posted Historical Perspectives on the Financial Crisis: Ivar Kreuger, the Credit-Rating Agencies, and Two Theories About the Function, and Dysfunction, of Markets. Partnoy is the author of a recent book on Kreuger, The Match King (pictured below). Here is the abstract of the SSRN paper:

This Essay discusses two historical parallels between the current financial crisis and the financial crisis of the late 1920s and 1930s. First, financial innovation was at the core of both crises. In particular, the machinations of Ivar Kreuger illuminate how financial innovation tends to outstrip the ability, and perhaps the willingness, of investors and intermediaries to process information. Second, reliance on credit ratings began as a response to the 1929 crash and became a primary cause of the recent crisis. During the 1930s, regulators developed rules based on credit ratings; those rules are the ancestors of today’s widespread regulatory reliance on ratings. Without financial innovation and overreliance on credit ratings, the recent crisis likely would not have occurred, and certainly would not have been as deep.

Huebner Reviews Edwards' "People and Their Peace"

“Focusing on the Local” is the title of the review, recently posted on H-SAWH, by Timothy S. Huebner, Rhodes College, of Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, N.C.: University of North Carolina Press, 2009). The review commences:

In this ambitious work, Laura F. Edwards attempts to reshape historians' understanding of early nineteenth-century southern legal culture. The dominant narrative of southern legal history, Edwards explains, focuses on state lawmaking and legal institutions--on appellate courts, judges, and judicial decisions, as well as statutes, legal treatises, and the writings of political elites. All of these sources emphasize how the law underwent "reform" during the early nineteenth century, when law became codified and centralized at the state level. Historians, Edwards claims, have eagerly and uncritically repeated the themes evident in these state-focused legal documents. The conventional narrative, Edwards thus warns, contains "strong Whiggish undertones of inevitability," for the sources imply that "law and government simply assumed the form they were always intended to have" (p. 5).

Edwards offers a counterpoint to this view. Attempting to "excavate localized law" from beneath the existing historiography, she focuses on legal development at the grass roots between 1787 and 1840 (p. 26). Relying on thousands of court records from six jurisdictions (three counties in North Carolina and three districts in South Carolina), Edwards provides a richly textured portrait of a legal culture in which women, African Americans, and the poor played an important part. Even as professionals attempted to standardize and centralize the law during the 1820s and 1830s, Edwards demonstrates, localized legal practice showed a degree of persistence.

More and hat tip: H-Law

Schlag on Formalism and Realism in Ruins

The formalist-realist debate, taken up earlier here and here, is discussed by Pierre Schag, University of Colorado, in a new article in the Iowa Law Review, Formalism and Realism in Ruins (Mapping the Logics of Collapse). Here's the abstract:

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented—that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law’s empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see versions of the disputes, for instance, in the stylized disagreements over the desired form of judicial doctrines (rules vs. standards); or the best rendition of key political values like equality (formal vs. substantive); or the proper mode of judicial interpretation (textual vs. purposive). Here too, the arguments that comprise the localized variants of the dispute remain inconclusive. The Article concludes by mapping “the logics of collapse”—specifically, some critical moves that undermine the rhetorical and intellectual force of the formalism vs. realism disputes and their localized variants. The aims here are several. First, the ability to deploy the critical moves helps with analysis. The critical moves help show how the arguments are constructed in the first place and how they are rhetorically and intellectually compromised. Second, and relatedly, the critical moves allow us to avoid being taken in by the formalism vs. realism arguments and their localized variants. Third, the aim is to show how our formalist and realist argumentation has already been surpassed by a legal “logic” that undermines the cogency of that argumentation.

Jerusalem Legal History and Comparative Law Workshop -- Spring Schedule

The Jerusalem Legal History and Comparative Law Workshop of the Faculty of Law at Hebrew University in Jerusalem, moderated by Adam Hofri-Winogradow, has announced its Spring 2010 schedule.

March 8 -- Yoram Shachar, IDC Law Faculty
Early Drafts of the Israeli Declaration of Independence

March 15 -- Steven Wilf, University of Connecticut
Legal Text and Intertext in Revolutionary America

March 22 -- Yair Sagy, Haifa University
On the Origin of Regulation: Charles Francis Adams, Herbert Spencer, and the Railroad Problem

April 12 -- David Schorr, Tel-Aviv University
Prolonged Recessional: The Continuing Influence of British Rule on Israeli Environmental Law

April 26 -- Amichai Radzyner, Bar Ilan University
Bigamy Wars: the Making of the Prohibition on Jewish Bigamy in Mandatory Palestine

May 3 -- Avi Rubin, Ben-Gurion University
The State Prosecution and Court System in the Late Nineteenth-Century Ottoman Empire

May 10 -- Michael Birnhack, Tel-Aviv University
Hebrew Authors and English Copyright Law in Mandate Palestine

May 17 -- Nathan Brun, Hebrew University
Jaffa, 1912: Rabbi Kook, the 'Six Aldermen', and a Jerusalem Sexual Harassment Case

May 24 -- Alexandre (Sandy) Kedar, Haifa University
TBA

May 31 -- Yossi Katz, Bar Ilan University
Present-Day Uses of Modern Legal History: Recent Examples

June 7 -- Moussa Abou-Ramadan, Carmel Academic Centre and Ashraf Abou-Zarka
Muslim Ulama and Land-Ownership in Non-Muslim States (9th to 19th Centuries)

June 16 -- Joshua Getzler, Oxford University
Fiduciary Investment in the Shadow of Financial Crisis: Warnings and Solutions from Legal and Economic History

Lauriat on Royal Commissions in British Legal History

'The Examination of Everything' - Royal Commissions in British Legal History has just been posted by Barbara Lauriat, University of Oxford. It is forthcoming in the Statute Law Review. Here's the abstract:

Walter Bagehot asserted the necessity for British government to investigate as well as act: ‘[t]he great maxim of modern thought is not only the toleration of everything but the examination of everything’. Royal commissions have done just that: examining subjects ranging from spontaneous combustion of coal in ships, to copyright law, to the condition of framework knitters, to the practice of vivisection. This article suggests that the examiners also warrant examining; a thorough inquiry into a royal commission can be a valuable contribution to legal historical scholarship. Royal commission reports are known to be a rich resource for historians but are not often themselves the subject of study, individually or collectively. Yet, their presence and impact on the political and legal landscape has been profound. In the nineteenth century, law reformers with the goal of codification found royal commissions particularly well-suited to their objectives, initiating inquiries into criminal, property, and evidence laws, among others. Direct legislation, however, may not always be the benchmark of a successful royal commission. This article provides background on the nature and history of royal commissions generally as a quasi-governmental institution and dispels some common misconceptions. It then considers some of the challenges to examination of royal commissions and analyses previous studies. Finally, it proposes evaluative criteria and methodologies for the study of such commissions, calling for close study of individual royal commissions as a means of gauging their effectiveness and influence on subsequent legal development.

Kramer Lectures for Schoolteachers on U.S. Constitutional History

The Gilder Lehrman Institute of American History has been posting a series of lectures by Larry Kramer, Stanford Law, which he delivered during a week-long course for school teachers sponsored by the Institute in July 2009. The Institute got up to the seventh lecture before I noticed. Presumably the rest are forthcoming.

The seventh lecture, Changes to Supreme Court Doctrine in the 1930s, is downloadable by anyone, at least temporarily. The earlier ones are available to those who register on the Gilder Lehrman's website. Registration is free.

The lectures, and Gilder Lehrman's descriptions of them, are as follows:

1. “American Legal History: Colonial Era to 1800”

How was the idea of Judicial Review developed? How were governmental checks and balances maintained before the Revolutionary War? Larry Kramer, Dean at Stanford Law School, walks his audience through this history.

2. “Madison and the Constitution”

What was Madison's background? How did he feel about the idea of democracy? What ideas did he contribute to the drafting of the Constitution?

3. “Supreme Court Controversies Throughout History”

Supreme Court decisions have often stirred controversy, from the days of Marbury v. Madison to the present. How have the two other branches of government, as well as the public, reacted to these rulings? Larry Kramer, Dean at Stanford Law School, walks his audience through this complex history.

4. “Dred Scott and the Constitutionality of Slavery”

Did the Constitution, as originally written, support slavery? Larry Kramer, Dean at Stanford Law School, discusses the various Constitutional clauses that touch upon the issue slavery, and the Supreme Court decisions, including Dred Scott, that led up to the Civil War.

5. “The Slaughterhouse Cases”

The first major post-Civil-War Supreme Court decision, popularly know as the Slaughterhouse Cases, resulted in a pivotal interpretation of the relatively new Fourteenth Amendment. Larry Kramer, Dean at Stanford Law School, discusses why this decision remains relevant today.

6. “Lochner v. New York”

Lochner v. New York was one of the most controversial decisions in the Supreme Court's history. Larry Kramer, Dean at Stanford Law School, walks his audience step-by-step through the knotty legal details underlying this significant case.

7. “Changes to Supreme Court Doctrine in the 1930s”

Larry Kramer, Dean at Stanford Law School, outlines the philosophical shift that occurred in the Supreme Court at the beginning of the Great Depression. Due to the economic crisis, the court moved towards allowing state and federal governments to play a more active regulatory role in people's lives.

Update: A report of Dean Kramer's delivery of “The Interest of the Man: James Madison and the Problem of Constitutional Enforcement," the Philip Pro Lecture in Legal History for 2010 at the University of Nevada Las Vegas's law school, is here.

Anti-Semitism, 1492, the University, African American Women & Religion, and the Nature of Time in the book reviews

A Lethal Obsession: Anti-Semitism from Antiquity to the Global Jihad by Robert S. Wistrich is a "vast and important book," writes Jeffrey Herf in the New Repubic's The Book. It is "the most comprehensive account in print of the history of anti-Semitism since 1945 in Europe, the Middle East, and Iran."

1492: The Year Our World Began by Felipe FernándezArmesto is a "convincing history," writes Peter Ackroyd in the London Times. In this book, "History is in some sense the sum of human error. This book is also a record of chance and mishap, in which 'some undetectably random event is responsible for initiating big change'. There is no question of 'progress' or 'development' but rather of an infinite number of contingencies perpetually present, with what FernándezArmesto describes as 'random convulsions' seeming only for a moment to create significant patterns."

Economist Claudia Goldin takes up THE GREAT AMERICAN UNIVERSITY: Its Rise to Preeminence, Its Indispensable National Role, Why It Must Be Protected by Columbia University Provost Jonathan R. Cole; and Richard Thompson Ford reviews JESUS, JOBS, AND JUSTICE: African American Women and Religion by Bettye Collier-Thomas, both in the New York Times.

And finally, two very different books related to the nature of time. FROM ETERNITY TO HERE: The Quest for the Ultimate Theory of Time by physicist Sean Carroll is taken up in the Washington Post. A book excerpt can be found on Carroll's blog. And Don DeLillo "is mesmerized by the 'radically altered plane of time'" in his new novel POINT OMEGA, discussed in the New York Times.

Originalism at San Diego

Ongoing today, far from snowbound Washington, D.C., is an Originalism Works-in-Progress Conference, held at the Joan B. Kroc Institute for Peace (right) of the University of San Diego. The line-up for the conference, organized by USD Law's Center for the Study of Constitutional Originalism, is:

Jack Balkin (Yale University), "Why Original Meaning?"
Commentator: Thomas Merrill (Columbia University and Yale University)
Moderator: Yale Kamisar (University of San Diego)

Randy Barnett (Georgetown University), "Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment"
Commentator: Michael Kent Curtis (Wake Forest University)
Moderator: Miranda McGowan (University of San Diego)

Garrett Epps (University of Baltimore), "The Citizenship Clause: A Legislative History"
Commentator: Michael Ramsey (University of San Diego)
Moderator: Steve Smith (University of San Diego)

Jim Fleming (Boston University), "Are We All Originalists Now? I Hope Not!"
Commentator: Keith Whittington (Princeton University)
Moderator: Michael Rappaport (University of San Diego)

Kurt Lash (Loyola Law School and University of Illinois), "The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art"
Commentator: John Harrison (University of Virginia)
Moderator: Donald Dripps (University of San Diego)

Thomas H. Lee (Fordham University), "Originalism and the Foreign Affairs Constitution"
Commentator: Jack Rakove (Stanford University)
Moderator: Maimon Schwarzschild (University of San Diego)

Lawrence B. Solum (University of Illinois), "The Interpretation – Construction Distinction"
Commentator: Larry Alexander (University of San Diego)
Moderator: Laurence Claus (University of San Diego)

The Center's mission statement is as follows:

Originalism is the view that the Constitution has a fixed and knowable meaning established at the time of its enactment. The Center for the Study of Constitutional Originalism at the University of San Diego School of Law has as its mission the study of all aspects of originalism. In particular, the Center studies arguments for and against the originalist theory of interpretation, the variety of specific originalist interpretive methods, and the original meaning of particular constitutional provisions.

Hat tip: Legal Theory Blog
Image credit

Legal History "with a Dutch View"

A belated welcome to the blogosphere to Rechtsgeschiedenis Blog, which offers "Legal History with a Dutch View." It is the creation of Otto Vervaart of Utrecht, The Netherlands. It includes a quick orientation to Dutch legal history and a recent post on Rechtshistorisch Nieuws, a digital newsletter (in Dutch) on legal history, which is published monthly by the legal historians of Ghent University.

Black History Month at SCOTUS Blog

Scotus Blog has a special series on Race and The Supreme Court for Black History Month. Posts this week have included Ken Mack on The Supreme Court as a Racially Representative Institution and Michael Klarman on Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?

My essay on The Global Impact of Brown v. Board of Education will appear during the week of February 15 (and will be cross-posted here). Contributors include Heather Gerken, David Bernstein, Pamela Karlan, David Stras, my USC colleague Kareem Crayton, and others. The full line-up is here.

IP History at the London Legal History Seminar

The London Legal History Seminar of the British Society for the History of Science announces a symposium on the history of intellectual property, to be held on February 26, commencing at the Institute of Advanced Legal Studies, Russell Square, London 2:00. The speakers are:

Ronan Deazley (Glasgow University):
‘Three Hundred Years of Copyright: Six Observations in Search of an Act'

Graeme Gooday (Leeds University):
‘Property, Protection or Monopoly? Rival Discourses of Patent Law Reform in the Long Nineteenth Century'

Isabella Alexander (Cambridge University):
‘All Change for the Digital Economy? Copyright and Business Models in the Eighteenth Century'

According tot he announcement, “all are welcome to attend.”

Suk on The Story of State v. Rusk and Rape Reform

'The Look in His Eyes': The Story of State v. Rusk and Rape Reform has just been posted by Jeannie Suk, Harvard Law School. It is forthcoming in CRIMINAL LAW STORIES, Robert Weisberg, Donna Coker, eds., 2010. Here's the abstract:

This chapter for Criminal Law Stories (Robert Weisberg & Donna Coker eds., 2010), tells the story of State v. Rusk through the lens of rape law reform. Beginning in the 1970s, under the influence of feminism, some prevailing attitudes and expectations about sex between men and women started to change. Edward Rusk was like many guys who didn’t think he just had to stop because a girl who seemed interested said she didn’t want to have sex. He was convicted of rape at the cusp of legal transformation, when sexual behavior that had been socially commonplace was rapidly in the midst of being recast as criminal. Drawing on many interviews with lawyers, judges, and other people involved in the case, I tell the story of when and how a set of social norms of sex and dating became unacceptable. This is a story of the legal role and consequences of that social change.

Lindsay on Eugenics and the Law of Marriage

Matthew J. Lindsay, University of Baltimore School of Law, has posted Reproducing a Fit Citizenry: Dependency, Eugenics, and the Law of Marriage in the United States, 1860-1920, which originally appeared in Law & Social Inquiry 23 (Summer 1998): 541-585. Here's the abstract:

Between the Gilded Age and the Progressive Era, American state legislatures enacted a series of new laws that delineated a class of citizens who were deemed ineligible to participate in the institution of marriage. Scholars have characterized this development as evidence that lawmakers had lost faith in a laissez-faire approach to nuptial governance, and thus transformed marriage into an object of public regulation. This essay argues that behind the ostensible nuptial privatism of the mid-nineteenth century lay a self-conscious policy of judicial governance. Judges invoked the language of nuptial privacy and the common law of contract strategically to advance their vision of moral and economic discipline. The new marital prohibitions thus represented, the essay argues, not the expansion of the state's police power into the previously private realm of domestic relations, but rather a critical transformation in how nuptial reformers and lawmakers understood the relationship between marriage and the well-being of the polity.

Fueled by growing concerns about pauperism, the racial character of the urban proletariat, and the collapse of the economically independent single-male-breadwinner household, the changing form of nuptial governance signaled a thoroughgoing intellectual and strategic reorientation from an understanding of marriage as forming economically and morally viable households-the fundamental units of society-to an understanding of marriage as a largely procreative institution, as the literal source of the citizenry. This reconceptualization of marriage underwrote a strategy of nuptial governance that mobilized marriage as a strategy in the state's regulation of social reproduction.

"Law as . . . " at UC Irvine

[We have, via H-Law, the following announcement for the conference, "'Law as ...': Theory and Method in Legal History," to take place at for the University of California-Irvine School of Law on April 16-17, 2010.]

In the last fifty years, legal history has moved from the fringes of history and law to a position of vibrant energy and intellectual influence. For much of this period, legal historians have taken their theoretical and methodological cues from the problematic of "law and..." Grounded on Roscoe Pound's turn-of-the-twentieth-century distinction between "books" and "action," enlivened by legal realism, and popularized by the law and society movement, "law and" explains law through its relations to cognate but distinct domains of action - society, polity, economy - by parsing the relations among them.

The "law and" problematic has been highly productive. The question nevertheless arises whether we have arrived at an intellectual moment in which, a century after its invention, "law and" has run its course. If so, what might be the implications for legal history?

"Law and" relies on empirical context to situate law as a determinate domain of activity. The result is a causally functional and empirical account of law. Beginning in the late 1970s, however, critical theory produced a trenchant critique of that functional and empirical account such that, whatever realm of action in relation to which law was situated, the outcome could be shown to be the same - indeterminacy marked by complexity and contingency. Regrettably, critical theory produced no replacement for the problematic it had undermined. Hence "law and" survives by default.

Suppose we dispense with the conjunctive metaphors of "law and," and instead reach for different metaphors. What might they be? One possibility is optical metaphors - that is, metaphors of appearance, or image, or resemblance. Instead of parsing relations between distinct domains of activity, between law and what lies "outside" it, the objective of legal historical research might be to imagine them as the same domain: what do we get if we imagine law and economy as the same phenomenon - that is, law as economy (or economy as law)? What of law as art, as science, as war, as peace? What new method or theory might be the result?

The optical is but one example of how one might go about gaining new imaginative leverage to enliven the practice of legal history. Other metaphors may be equally, or more productive. To encourage the discussion of possibilities, UC-Irvine's School of Law has organized a conference, "Law As ..." to take place the 16th and 17th of April, 2010. Sixteen of the finest legal and critical scholars in North America and from further afield will present commissioned papers organized into four deliberately general areas of study, complete with structured commentary and an abundance of time for general exchange, discussion and argument. We invite the attendance and participation of all interested scholars and students of history and law in what promises to be an event of significance in the further development of legal history.

Interested in attending? Contact Christopher Tomlins ctomlins@law.uci.edu to be placed on the conference advance information list. Full details, including location and directions, will be made available well in advance of the event. Attendees will be asked to register in advance to receive complete conference materials. Registration will be free.

Program

April 16th

Welcome and Introduction: Catherine Fisk (Law, UC Irvine)

Session 1: Interactions - Law, Text, History

Chair Dirk Hartog (History, Princeton)

Speakers:

Steven Wilf (Law, Connecticut), "Law/Text/Past"; Norman Spaulding (Law, Stanford), "On the Interdependence of Law, History and Memory"; Kunal Parker (Law, Miami), "Common Law Thought and the Problem of History"; Marianne Constable (Rhetoric, Berkeley), "'In the Name of the Law': Law as Claim to Justice"; Commentator: Christopher Tomlins (Law, UC Irvine)

Session 2: Intersections - Law, History, Culture

Chair Ariela Gross (Law, USC)

Speakers:

Peter Goodrich (Law, Cardozo), "Specters of Law: Why the History of the Legal Spectacle has not been Written"; Shai Lavi (Law, Tel Aviv), "Law as World: Secular History and Jewish Ritual in Nineteenth Century Germany"; Assaf Likhovski (Law, UCLA and Tel Aviv), "Chasing Ghosts: On Writing Cultural History of Tax Law"; Roger Berkowitz (Political Studies & Human Rights, Bard College), "History and the Noble Art of Lying"; Commentator: John Comaroff (Anthropology, Chicago)

April 17th

Session 3: Interpretations - Law, Polity, Economy

Chair: Risa Goluboff (Law, Virginia)

Speakers:

Ritu Birla (History, Toronto), "Law as Economy: Convention, Corporation, Currency"; Roy Kreitner (Radcliffe Institute and Law, Tel Aviv), "Money in the 1890s: The Circulation of Law, Politics, and Economics"; Christopher Schmidt (Law, Chicago-Kent), "Conceptions of Law in the Civil Rights Movement"; Barbara Welke (History & Law, Minnesota), "Owning Hazard in the Modern American Consumer Marketplace"; Commentator: Morton Horwitz (Law, Harvard)

Session 4: Instantiations - Law, Sovereignty, Justice

Chair Laura Kalman (History, Santa Barbara)

Speakers:

Laura Edwards (History, Duke), "The Peace: The Meaning and Production of Law in the Post-Revolutionary U.S."; John Witt (Law, Yale), "Escape and Engagement: The Laws of War in the Early American Republic"; Paul Frymer (Politics, Princeton), "Building an American Empire: Territorial Expansion and Indian Removal, 1787-1850"; Mariana Valverde (Criminology Centre, Toronto) "'The honour of the Crown is at stake': Aboriginal Land Claims Litigation in Canada and the Epistemology of Sovereignty"; Commentator: Robert W. Gordon (Law, Yale)

Hat tip.

Can Regulatory Agencies Protect the Consumer?

New on the website of the Securities Exchange Commission Historical Society is the video "Can Regulatory Agencies Protect the Consumer?" produced by the American Enterprise Institute in 1971. It records an exchange between Manuel F. Cohen, a former SEC Chairman, and George J. Stigler, the noted University of Chicago economist. As the SEC Historical Society's website explains:

Mr. Cohen (right) and Dr. Stigler (left) debate the Federal government's role in the free enterprise system, the power of regulatory agencies, and the effect of regulatory agencies on consumers. Questions are presented by Louis Dombrowski, Chicago Tribune; Chester Earle, American University; Roger Cramton, Administrative Conference of the United States; Walter Wingo, U.S. News and World Report; and Joost Polak, Newhouse Newspapers.

Image credits: Cohen; Stigler

Is Wartime a time to end Don't Ask, Don't Tell?

As the Obama Administration moves (slowly) toward repeal of Don’t Ask Don’t Tell, one argument in opposition is that the nation is at war, and significant changes in the military should not take place during wartime. One response to that point is that all hands are needed during heightened military deployments, and it harms American national security to dismiss trained soldiers. But there is a more fundamental reason that the argument against change during wartime doesn’t work: there is no end in sight to the war on terror. And endless war cannot be a reason for permanent stasis in military policy.

The no-change-during-wartime argument is an example of conventional thinking about war and American society. “Wartime” is imagined to be a temporary condition. It is a special kind of time. Wartime, by definition, is preceded and followed by “peacetime.” American history is thought to consist of the movement from peacetime to wartime and back again. In this conceptualization, wartimes always comes to an end.

This idea that wartime is by definition a temporary time is an essential ingredient of the argument that social change shouldn’t happen in wartime. This is presented as an argument that does not challenge change itself, but simply asks advocates of change to be patient. Change can come after the war is over.

But what if there is no end to war?

United States military deployment has been on-going, at least since World War II. There is a disconnect between persistent American military engagement and the idea that “peacetimes” continue to exist, reflected in an awkward literature on war in “postwar” America. David Halberstam, for example, gave his book about war during the first Bush and the Clinton administrations the ironic title War in a Time of Peace.

Desegregation of the armed services is an example of social change during a time of military engagement, not during “peacetime.” Although V-E and V-J days had long passed by the time President Truman issued an executive order calling for military desegregation in 1948, World War II itself had not formally come to a close. The U.S. occupied Germany, Japan and other nations, and the Supreme Court continued to uphold exercises of Congress’s war power. World War II slid into the Cold War, which included the use of the Air Force during the 1948 Berlin Airlift. And as has been widely noted, desegregation was accomplished in the Army in the context of the need for ground troops in the Korean War.

Even if we could find ways to bound previous wars in time, the “war on terror” has been defined in a way that confounds the idea of an end point. It is not a war against a nation-state but against an ideology, suggesting that this state of war might only end when we reach an end of ideas themselves.

The Supreme Court has acknowledged the difficulty of our current war era’s temporality. Guantánamo detainees might be held for the duration of the conflict. But as Justice Kennedy suggested in Boumediene v. Bush, the present conflict “if measured from September 11, 2001, to the present, is already among the longest wars in American history.”

In the context of endless war, an argument that change must wait for peacetime is not an argument for patience. It should be understood for what it is: an argument to keep discrimination against gays and lesbians in the military in place. Scholars have often argued, however, that wartime has been the context for the expansion of equality rights. In that sense, expanding equality for gays and lesbians during wartime would not be an aberration, but instead would be in keeping with American tradition.

Cross-posted from Balkinization.

"If you really want to hear about it..."

"If you really want to hear about it, the first thing you’ll probably want to know is how the Arawak men and women, naked, tawny, and full of wonder, emerged from their villages onto the island’s beaches and swam out to get a closer look and that kind of crap, but I don’t feel like going into it, if you want to know the truth."

So begins Rob McDougall's brilliant tribute to both J.D. Salinger and Howard Zinn, Holden's History of the United States. Hat tip: Ralph Luker.

This Semester at the Yigal Arnon Law & History Workshop

The Yigal Arnon Law & History Workshop of the Buchmann Faculty of Law at Tel Aviv University has announced its Spring 2010 schedule. All sessions meet Mondays 15.00 - 16.30, in the Minkoff Building, Room 17. The Workshop's moderators are Professor Leora Bilsky, Professor Ron Harris, and Dr. David Schorr.

March 8 Betsy Mendelsohn, University of Maryland Department of History
From Nature to Environment: The Rise of Science in U.S. Environmental Law

March 15 Mitra Sharafi, University of Wisconsin Law School
Minority Legal Consciousness & Culture: the Zoroastrians of Colonial India

March 22 Devin Pendas, Boston College History Department
Transitional Justice or Just Transitions? Germany, 1945-1955

April 12 Omri Paz, Tel Aviv University School of History
Who Killed Bağçevan Panayot: The Use of Illegal Torture and the Rule of Evidence in Mid-Nineteenth Century Anatolia

May 3 Jose Brunner, Minverva Inst. for German History & Faculty of Law, TAU
"Could Such a Deed Have Happened to Gentile Women As Well?" - Treatment of Victims of National-Socialist Sexual Violence in Israeli Case Law (Hebrew, with Lydia Rabinowitz)

May 17 Noga Morag-Levine, Michigan State University College of Law
Fatigue, Efficiency and the Burden of Proof: Revisiting the Brandeis Brief

May 24 Doreen Lustig, New York University School of Law
The Unusual Suspects - American Attitudes to Business Responsibility in International Law: the Story of the Industrialists Cases at Nuremberg

May 31 Angela Fernandez, University of Toronto Faculty of Law
The Hunt for the Fox, Pierson v. Post, A Case in Context

June 7 Lawrence Friedman, Stanford Law School
Privacy and Human Rights

Tsai on John Brown's Constitution

JOHN BROWN’S CONSTITUTION by former guest blogger Robert L. Tsai has just been published in the Boston College Law Review. Here's the abstract:

It will surprise many Americans to learn that before John Brown and his men briefly captured Harpers Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These writings, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained committed to basic notions of democratic self rule. Rather than call Brown simply a terrorist or a common criminal, it is more accurate to understand him as a practitioner of “fringe constitutionalism,” in which a patriot turns to unconventional, even violent tactics, on behalf of deep governing principles. Brown straddles traditional cultural and legal categories, taking advantage of such complexities in the name of constitutional transformation.

Image credit.

AALS Legal History Panel on Habeas Corpus: a report

The Legal History program at this year's Association of American Law Schools conference focused on new research on habeas corpus, with presentations by Eric M. Freedman, Hofstra University School of Law, and Stephen I. Vladeck, American University Washington College of Law, and with a comment from Robert J. Cottrol, The George Washington University Law School. Eric Freedman provides this report:

I.

Previewing an extended forthcoming scholarly work tentatively entitled “Habeas Corpus in Three Dimensions” resulting from a recent research leave in New Hampshire, Professor Freedman outlined each of his three dimensions.

1. “Habeas Corpus as a Common Law Writ.’”

Professor Freedman began by recounting four New England cases of the seventeenth and eighteenth centuries in which wrongfully imprisoned plaintiffs were released by courts although their filings had not sought writs of habeas corpus. Presenting parallel cases of prisoners who were released through that writ, he argued that for many scholarly purposes to restrict research to writs explicitly labeled “habeas” is too narrow. He suggested that there is often little point in pursuing distinctions among writs in this context both because of the informality of colonial legal practice, and because the question was one on which nothing particularly turned when the issue was a potentially wrongful imprisonment – an issue which led the courts to cut through whatever technicalities they might otherwise have been inclined to enforce.

Citing a variety of case examples, he suggested that, regardless of writ, false imprisonment cases shared at least two characteristics:

A. An allegedly false imprisonment was an emergency. The judicial system activated itself to investigate the matter forthwith; and
B. The focus was on the direct pragmatic and speedy resolution of the specific case at hand. The impulse is not to rule on global issues of law but rather to work things out so that the prisoner could be released immediately if warranted.

2. “Habeas Corpus as a Legal Remedy for Government Misconduct”

In this section, which spanned the colonial and early national periods, Professor Freedman pointed out that habeas was only one of wide array of remedies available for alleged abuses committed by government officials. These included public and private actions for contempt, public and private criminal prosecutions, and a variety of private damages actions against both executive and judicial officers. He illustrated these with the saga of Isaac Hodsdon, a U.S. Army captain who detained alleged enemy operatives during the War of 1812 and wound up being subject to most of these actions. The narrative thread of the account was that the authority previously concentrated in the jury was gradually dispersed to other organs of government as the system of separation of powers crystallized in the United States in the first third of the nineteenth century.

3. “Habeas Corpus and Separation of Powers”

Bringing the story forward to modern times, Professor Freedman returned to his first themes. Describing the saga of the Boumediene case involving the Guantanamo detainees (in which he assisted the legal team), he suggested that one lesson was that habeas corpus could effectively serve its newly-invigorated role as an enforcer of separation of powers by re-invigorating the basic approach that common law judges took to false imprisonment actions.

II.

Professor Vladeck entitled his presentation “‘History” and Contemporary Debates Over the Suspension Clause.”

He began by pointing out the importance of recovering the scope of common law habeas corpus in light of its legislative constriction well before 9/11 in such contexts as immigration and post-conviction cases. He then noted that although the Constitution protects “at a minimum” habeas corpus as it existed at common law, the Court has never suggested that it does not protect more.

Indeed, a series of Court cases from the 1930's and 1940's expressly sanctioned the use of common law judicial powers even when a statute existed. Although there were few occasions to repeat the point after the codification of the federal statutes in 1948, the Court implicitly did so at least twice, in 1952 and 1977. In both cases, which upheld statutory substitutes for common law habeas, the implication was that if the statutory remedy were inadequate to test the validity of the detention the legislation would not only be invalid under the Suspension Clause but the courts would affirmatively exercise their dormant common law habeas powers.

Parsing the Supreme Court’s 2008 Boumediene opinion he noted its repeated emphasis on habeas as a device for enforcing separation of powers and drew from this the conclusion that the Constitution protects the power of the courts to act even – if not especially – in the absence of legislation.

He joined Professor Freedman in hearty disapprobation of the dictum in opinion in Ex Parte Bollma, 8 U.S. (4 Cranch) 75 (1807) to the effect that the judiciary could only grant habeas corpus if the legislature gave it that power. A variety of historical work, most recently that in the just-published Paul D.Halliday, Habeas Corpus: From England to Empire (Harvard University Press, 2010) – which both speakers praised – shows that habeas corpus at the time of the founding was characterized by sweeping judicial power and a very limited judicial role.

Professor Vladeck observed that although the judges of the District Court in Washington hearing the Guantanamo cases after Boumediene had disagreed on various points, they had in the overwhelmingly number of cases ruled in favor of the prisoners regardless of the legal standards they adopted. He urged that, contrary to recent suggestions from various quarters that it was inappropriate to work out such still unanswered questions as the geographical scope of the writ and the nature of the remedies to be ordered through a process of case-by-case incrementalism (the critique being that Congress should do the job), this historically-tested methodology was in fact precisely what gave the judiciary its strength and effectiveness within the
governmental structure.

III.

Professor Cottrol in his comments raised the issue of whether an English court’s common law authority to issue the writ was defined by (a) the legal status of the territory to which it was sent (the speakers, relying on Halliday’s work responded “no”), (b) the question of whether the prisoner was “within the King’s peace” (maybe, said the panelists, but out of many hundreds of cases surveyed by Halliday only an issue in one or two factually extreme instances), or (c) the amenability of the jailer to judicial authority (which both speakers agreed was the functional test actually applied).

Boston College Legal History Roundtable, spring 2010

Boston College Legal History Roundtable
Spring Schedule

For the 2009-2010 academic year, Professor Mary Sarah Bilder, Professor Daniel R. Coquillette, Professor Frank Herrmann and Professor James S.Rogers are conveners.

The Roundtable usually meets on a Thursday afternoon at 4:30 in the Rare Book Room of the Boston College Law School Library. Refreshments are available beginning at 4:15 pm.

Copies of the papers are available for download and instructions will be sent to you. Parking on the Boston College Law School campus requires a visitor's permit. Please let Professor Bilder know in advance by calling the administrative assistants' office at (617) 552-4125.Please contact Prof. Mary Bilder for further questions (617-552-0648; bilder@bc.edu).

Spring 2010:

Thursday, January 28, 2010

Dr. Michael von der Linn, Antiquarian Book Department, Law Book Exchange "Harvard Law School's Advertising Campaign, 1829-1845: A Record of the Ideals and Anxieties of the Story Era"

Tuesday, March 9, 2010 (4:45 pm, Fulton 511, Boston College MAIN CAMPUS)

Professor Bernard Bailyn, Harvard University (co-sponsored with the Clough Center) "How Historians Get it Wrong: The American Constitution, for Example"

Thursday, April 29, 2010

Professor Kristin Collins, Boston University Law School "Mercenary Motives": Marriage and Redistribution in American Law and Policy.