CFP: Religion and Law in America

The Florida State University Department of Religion will convene a Conference on Religion and Law in America, March 15-16, 2013, in Tallahassee, Florida. Here's the announcement, via H-Law:

Professor Sullivan (credit)

Dr. Winnifred Sullivan, Chair of the Department of Religious Studies at Indiana University and distinguished scholar of religion and law, will deliver the keynote address.

The emerging field of religion and law in America and American history remains an underexplored yet promising area of study for scholars.  This conference will address the evolving relationship between religion and law in American history from various academic disciplines.

Professors, attorneys, independent scholars, and graduate students who are interested in the academic study of religion and law are encouraged to submit proposals for individual papers and panels.

Participants may explore a diverse array of topics spanning American history from the colonial era to the present, including but not limited to:

·        First Amendment issues

·        Constitutional originalism

·        Judicial definitions of “religion”

·        Faith-based initiatives (vouchers, healthcare, etc.)

·        Religion, race, and law

·        Religion and prison reform

·        Theory and method in the study of religion and law

Presentations should be approximately 15 to 20 minutes in length and will receive peer responses.

Proposals including an abstract of approximately 300 words and a brief CV should be submitted by *November 15, 2012* for review.  Final papers must be submitted by January 31, 2012.  Please send proposals [here].

For additional information, please contact Brad Stoddard.

Maggs's Concise Guide to the Records of the Federal Convention

Gregory E. Maggs, George Washington University Law School, has posted A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution, which is forthcoming in the George Washington Law Review.  Here is the abstract:    

Library of Congress

The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or counter arguments. The essay, accordingly, recommends that anyone making or evaluating claims about the original meaning of the Constitution should proceed with caution, carefully taking into account both the possible grounds for impeaching claims and the arguments against these grounds. Appendices to this essay include an annotated bibliography and a table of the deputies who participated at the Constitutional Convention.

This article is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, "A Concise Guide to The Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution," 2009 U. Ill. L. Rev. 457; and Gregory E. Maggs, "A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution," 87 B.U. L. Rev. 801 (2007).

Hunt reviews Nussdorfer on Notaries in Early Modern Rome

Via H-Law, we have word of the following review, commissioned by H-Italy: Laurie Nussdorfer, Brokers of Public Trust: Notaries in Early Modern Rome (Johns Hopkins University Press, 2009), reviewed by John Hunt (Utah Valley University). Here's the first paragraph of the review:

Early modern Rome saw a hubbub of social and economic activity that required legal documentation and verification in the hands of a body of professionally trained notaries.  Scholars have mined the acts of the notaries--housed in the Archivio di Stato di Roma--to understand the social, economic, and religious life of early modern Rome.  But few scholars have sought to study the profession itself or the lives of the notaries who staffed the various offices of the city.  In this ambitious longue durée study of the notarial profession, Laurie Nussdorfer highlights the changing political and legal milieu in which notaries lived and worked from 1350 to 1650.  

Read on here.

Ziegler on Roe's Race

Mary Ziegler, Saint Louis University School of Law, has posted Roe’s Race: The Supreme Court, Population Control, and Reproductive Justice.  Here is the abstract:

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This article closes this gap in the abortion discussion by focusing on the racial politics of abortion in the 1970s. In the 1970s, some population controllers did have ties to the eugenic legal reform movement or a particular interest in limiting the growth of poor, non-white populations. Those groups most closely involved with the abortion-rights movement, however, primarily focused on family planning for white, middle-class families, emphasizing the importance of environmental stewardship and sexual liberation. Arguments treating the abortion-rights, population control, and eugenics movements as indistinguishable from one another are flawed.

At the same time, by reinterpreting Roe, feminists created new opportunities to reshape the racial politics of abortion. By defending their own understanding of the opinion against antiabortion attack, feminists were able to redefine abortion as a right that belonged to women irrespective of its political consequences.

The article shows that, by grounding the discussion in proper historical context, discussion of race and abortion will be more principled and productive. Abortion opponents can fairly discuss the history of the family planning movement, but blurring any distinction between the abortion-rights movement and its predecessors is problematic and misleading. In turn, abortion-rights activists should address the past relevance of population-based claims, acknowledging the contributions of those who worked to redefine abortion as a woman’s right.

Ewald Reviews Brandwein, "Rethinking the Judicial Settlement"

Another new one from the Law & Politics Book Review: a review of Pamela Brandwein, RETHINKING THE JUDICIAL SETTLEMENT OF RECONSTRUCTION (Cambridge University Press, 2011). Here's an excerpt from the beginning of the review, by Alec Ewald (University of Vermont):

In Rethinking the Judicial Settlement of Reconstruction, Pamela Brandwein argues that in fact the Supreme Court did not “settle” Reconstruction at all, and that some of the Court decisions most commonly held up as overtly hostile to black rights were quite the opposite. This is a bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history.

Brandwein’s main target is the “state action doctrine” as it developed in the decades immediately following the Civil War – that is, our understanding of that doctrine, which she argues is woefully incomplete. The state-action decisions, particularly the Civil Rights Cases of 1883, are commonly depicted as a judicial consolidation of the political abandonment of African Americans in the south (pp.10, 228). That’s wrong, for two reasons. First, she argues, the definitive abandonment of southern blacks by the Republican Party simply hadn’t happened yet: it took place only after 1891. Second, and central to the book, the “state action” decisions actually “provided the federal government with broad possibilities for rights enforcement” (p.12). Those possibilities rested on two forgotten strands of state-action jurisprudence: what Brandwein calls, respectively, “state neglect” and the “Fifteenth Amendment exception.”

Read on here.

Snyder on Holmes and the "House of Truth"

Brad Snyder, University of Wisconsin Law School, has posted The House that Built Holmes, which, as we have noted, is out in Law and History Review 30 (August 2012): 661-720.  Here is the abstract:

Library of Congress

Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the House of the Truth. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.

A Litigious Copyright Lawyer, Obama and the Supreme Court, and More: This Week in the Book Pages

In the Wall Street Journal, Ken Emerson reviews Gary A. Rosen's Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein (Oxford).  Emerson writes:

Much of "Unfair to Genius" chronicles the battles royal over rights between songwriters, publishers and the new technologies of records, radio and film. Lyricist Lorenz Hart sneered that Ascap's archrival, BMI (Broadcast Music, Inc.), stood for "Bad Music Instead." In the late 1950s, crooner Rudy Vallée castigated Judge Learned Hand and his 1940 ruling in favor of radio broadcasters for spawning rock 'n' roll and "the cacophony that floods the air waves." Today the devastation of the music industry by the equally if not even more disruptive technology of the Internet makes these battles of more than merely historical interest.

Read on here.

Several reviews this week take up books on American presidents: The Wall Street Journal also has a review of Charles R. Kesler's I am the Change: Barack Obama and the Crisis of Liberalism (Broadside).  As Fred Siegel explains: "Mr. Kesler traces Progressive thought to its first flowering, with Woodrow Wilson as its emblematic proponent, and then forward to its second and third "waves," in FDR's New Deal of the 1930s and LBJ's Great Society of the 1960s. Mr. Obama, in this outline of history, is the leader of Progressivism's 'fourth wave.'"

And in the Washington Post, you'll find Jeffrey Rosen's review of Jeffrey Toobin's The Oath: The Obama White House and the Supreme Court (Doubleday) 

The WSJ also has Michael Burlingame's review of Walter Stahr's Seward: Lincoln's Indispensable Man (Simon & Schuster) about Lincoln's secretary of state.  Burlingame writes:

Many shared Seward's belief that the Republicans should have nominated him rather than Lincoln for president in 1860. Seward (1801-72) had been a leading senator for over a decade and a fearless champion of the anti-slavery cause. If the delegates to the 1860 convention had wished to reward the man who had done the most for the party, they would have picked Seward. But they were more eager to choose a winner than to express gratitude, so they nominated Lincoln.

In TNR: The Book Michael Signer reviews Robert W. Merry's Where they Stand: The American Presidents in the Eyes of Voters and Historians (Simon & Schuster).  

On gender this week: The New York Times (here), the Washington Post (here), and NPR (here) all have reviews of Hanna Rosin's The End of Men and the Rise of Women (Riverhead Books).  In the LA Times, Carolyn Kellogg takes up Rosin's book along with Naomi Wolf's Vagina: A New Biography (Ecco), which is also reviewed in The New York Times and is the subject of an essay by Ariel Levy in The New Yorker (for subscribers)   

Other reviews of interest this week: You'll find reviews of Dave Tomar's The Shadow Scholar: How I Made a Living Helping College Kids Cheat (Bloomsbury) in TNR: The Book (here) and the Washington Post (here).  WSJ also has a review of Robert D. Kaplan's The Revenge of Geography: What the Map Tells use About Coming Conflicts and the Battle Against Fate (Random House), and a review of Melanie Kirkpatrick's Escape from North Korea: The Untold Story of Asia's Underground Railroad (Encounter), and a review of Mark Beech's When Saturday Mattered Most: The Last Golden Season of Army Football (St. Marten's) and Joe Drape's Soldiers First: Duty, Honor, Country, and Football at West Point (Times Books).

Happy reading!

Weekend Roundup

• Walter F. Pratt's review of Scott Douglas Gerber's A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 for the Journal of American History is here.

image credit

• The latest issue of Common-place is out. Among the treasures is a review, by Alison Games (Georgetown University), of Elaine Forman Crane, Witches, Wife Beaters, & Whores: Common Law and Common Folk in Early America (Cornell University Press, 2011).

• "Hate & Political Discourse," a symposium sponsored by the Journal of Hate Studies, will take place on Thursday, September 27, 2012, at the Washington College of Law, American University, Washington, DC. Mari Matsuda, Hawai’i Law, will deliver the keynote, "Is Peacemaking Un-American?  On Violence and Ideology."  Other participants include Rebecca Barrett-Fox, Damon T. Berry, Rachel Dean-Ruzicka, Daniel Kato, Willa Michener, Jennifer Schweppe, Marla Stone (History, Occidental College), Robert L. Tsai, (American Law) and John Shuford, (Gonzaga Law and Philosophy).  More information here or at hatestudies "at" gonzaga "dot" edu or secle "at" wcl "dot" american "dot" edu.

• H-Law has published a review, by Eliga Gould, of Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge University Press, 2009). 

•  Josh Blackman, South Texas College of Law, has continued his research into Carolene Products, noted in an earlier Weekend Roundup.  His most recent post, including FDR's pardon of the defendant, is here.

• David Bernstein stands with historians against theorists on the meaning of Lochner in a recent post over at Volohk Conspiracy.

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

The Survey: Sample Syllabus & See you in St. Louis!

My time is about up on Legal History Blog, thanks to Dan and Karen for the invite!   I look forward to my colleague Mary Ziegler's upcoming posts, and to seeing many of you in St. Louis for ASLH this November.  David Konig has done an outstanding job of organizing the event, and there are some truly spectacular venues on the schedule.  For anyone interested in the survey, I've posted a copy of last Spring's syllabus on SSRN here: American Legal History Survey: Syllabus.  Here's the intro:

This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

Kawar reviews Saada, "Empire's Children"

New from the Law & Politics Book Review: a review of Emmanuelle Saada, EMPIRE'S CHILDREN: RACE, FILIATION, AND CITIZENSHIP IN THE FRENCH COLONIES (University of Chicago Press, 2012) (Arthur Goldhammer, trans.). Here's a snippet of the review, by Leila Kawar (Bowling Green State University):

The photograph of forlorn-looking Franco-Vietnamese children on the cover of Emmanuelle Saada's recently translated book, Empire's Children tells a different story about what it meant to be "métis" in France and its colonial territories during the first half of the twentieth century. In colonial Indochina, where the "métis question" attracted particular attention, the category was reserved for children who had not been formally recognized by their French fathers, meaning that they had no easy access to French citizenship – given by right to those whose fathers had formally recognized them – and were relegated to the inferior status of colonial subjects. The starting point for Saada's research was her discovery of a 1928 administrative decree that provided a path to French citizenship for those in this category, provided that they could legally establish that they were the child of a French father. As Saada emphasizes, in the colonial setting, "the métis" posed a limit case for French citizenship, creating tensions between the principled universalism of the Civil Code and the reality of France's racialized colonial regime.

Saada uses the métis question as an analytical window for a sophisticated and insightful discussion of French colonial law, its origins, and its effects. The efforts of judges, administrators, and social reformers to grapple with these hard cases reveal the contours of the colonial social hierarchy as well as the power of law. . . .

Read on here.

Tsesis on Gender and the Thirteenth Amendment

Alexander Tsesis, Loyola University Chicago School of Law, has posted Gender Discrimination and the Thirteenth Amendment, which appears in Columbia Law Review 112 (2012).  Here is the abstract:    

Although the Thirteenth Amendment was ratified more than a century and a half ago, courts have yet to delve into its relevance to gender discrimination. This oversight is unfortunate given the extent to which jurisprudence about another Reconstruction Amendment, the Fourteenth Amendment, has evolved beyond its original racial confines to include gender, disability, sexual orientation, and other forms of group-specific inequalities. A progressive interpretation of the Thirteenth Amendment should likewise expand congressional enforcement authority beyond race.  As was the case with its Fourteenth Amendment counterpart, the Thirteenth Amendment was initially ratified to prevent racial discrimination, but its antisubordination principles are also relevant to policies for abolishing gender discrimination. This underexplored area of law offers tremendous potential for providing redress against a variety private, state, and institutional forms of gender discrimination that are not actionable under current civil rights statutes.

This Essay demonstrates how broad concepts of liberty, which abolitionists, feminists and Congress developed before and after the ratification of the Thirteenth Amendment, seamlessly lend themselves to the enforcement of gender equality norms. Over the last forty years, the Supreme Court has recognized the existence of federal authority to prevent state gender discrimination. The Thirteenth Amendment is a source of legislative authority that can be used to address private acts of discrimination.

A Trilingual Journal of European and Comparative Legal History

Thanks to the ESCLH Blog, we have word of a new trilingual journal, Rechtskultur, subtitled Zeitschrift für Europäische Rechtsgeschichte/European Journal of Legal History/Journal européen d'histoire du droit.

The theme of the first issue takes up a topic of Legal Culture: "Justizgeschichte des Bürgerlichen Zeitalters - Legal History of the Bourgeois Era - Histoire de la justice à l'époque Bourgeoise".

Contents:

Ulrike Müßig (Passau): Der Kampf um die gerichtliche Selbstverwaltung in der Entstehungsgeschichte des GVG

Matthias Kradolfer (Zürich): Die „Freiherren von Regensberg“: Eine Komödie über Justiz und Politik

Bruno Debaenst (Gent): Laborers in the courtroom: from a rock to a hard place?

Christian Thomas Huber (Neustadt): Der Schutz feindstaatangehöriger Zivilisten durch deutsche Militärgerichte 1939 - 1945

Jørn Øyrehagen Sunde (Bergen): Dissenting votes in the Norwegian Supreme Court 1965-2009: A legal cultural analysis

Katharina Theobaldy/Fabian Meyer (Regensburg): Überwachen und Strafen in einem bayerischen Zuchthaus des 19. Jahrhunderts

Sánchez de Andrés (Michuacan): Die Beratungsorgane der spanischen Kolonialverwaltung 1863-1899

Jan Dirk Harke (Würzburg): Rapport de synthèse

Marcel Senn (Zürich): Debatte/debat/debate: Wozu sind Juristen auszubilden?

Gilmer on the Emancipated Slave as Devisee

Jason Gillmer, Gonzaga University School of Law, has posted Lawyers and Slaves: A Remarkable Case of Representation from the Antebellum South, which appeared in University of Miami Race & Social Justice Law Review 1 (2011): 47.  Here is the abstract:

This essay examines the unexplored topic of lawyers who represented slaves in the antebellum era. Drawing on a single case study, the paper recreates the story surrounding a legal dispute that arose when David Webster of Galveston, Texas, freed a slave woman named Betsy and left her all of his property in his will. The case was controversial; not only did it expose the existence of an interracial relationship but it also raised the troubling question of whether a black woman, on the eve of the Civil War, should be entitled to her freedom and to the considerable wealth that was left to her, including the home in which they had lived. In exploring these issues, the paper draws out the attorneys who represented Betsy, examining their efforts as well as their motivations to offer valuable insight into a world in which local experience and intimate matters upends some of our fundamental assumptions about race, law, and life during slavery times.

 On this topic, consult Yvonne M. Pitts, "'Imposing Their Wills: Inheritance Practices, Family, and Capacity in Nineteenth Century Kentucky" (Ph.D. diss., University of Iowa, 2006). Order No. DA3248047.

Legal Theory and Legal History: A Neglected Dialogue?

[Because the deadline of October 1 is approaching, we are moving up this previously posted call for papers.]

The Legal Theory and Legal History Research Group at the Department of Law, Queen Mary, University of London, announces a conference, Legal Theory and Legal History: A Neglected Dialogue? to be held April 12-13, 2013.  Some quite interesting sessions are already scheduled, such as Quentin Skinner’s keynote, "The Concept of the State in Legal History and Theory."  Other sessions are open; the organizers invite the submission of one-page abstracts.

The organizers explain:

Apart from some notable exceptions, much of contemporary legal theory is uninformed by history, including legal history. This is deeply regrettable, for legal theories may be vastly improved by being informed, and perhaps more importantly, challenged by historical contexts. Theories of law, one might say, are better if they are forged at the coal-face of historical research. Similarly, one could argue that legal histories are better when they draw on, and themselves contribute to, the conceptual resources of legal theory.

Somewhat more radically, if one agrees law does not have a nature, but a culture, then one must account for how the culture of law changes, and has changed, over time. This, by necessity, demands a historically-informed methodology. Similarly, the problem of change is an unavoidable one in legal theory, whether that be change in legal regimes or changes in certain areas of the law – here, again, the resources of history, including the philosophy of history, are invaluable. Putting things a little more colourfully, one could say that legal ideas cannot but be understood historically.

Further, legal theory has, of course, its own history: legal theories are not disconnected islands, but rather interventions in a long series of dialogues and polylogues amongst theorists. As many have observed, and described, legal theory’s history needs to be informed not only by such dialogues and polylogues amongst theorists, but also by awareness of the theorist’s immersion in political, economic and other conditions of his or her time and place – there, once more, a serious engagement with history is important.

This conference - the annual conference of the UK Branch of the IVR - is designed to bring together legal theorists and legal historians (including historians of legal theory and political thought) in an attempt to facilitate and encourage dialogue between the two disciplines.

Peggy Olson, Cohabitor

            The writers of “Mad Men,” finally got it wrong—way wrong. They know a sexual revolution when they see it, but sixties openness had its limits. Adult women who had mothers opposed cohabitation did not tell them they planned to live with their boyfriends—they lied.

              Lots of college students were living with their boyfriends. But Helen Gurley Brown was editing Cosmopolitan for women from working-class families who had gone to secretarial school, and had not graduated from college. Brown thought those women should have a place of their own, not share it with a boyfriend.  

              “At the Codfish Ball” is set in 1965 at Peggy’s New York City apartment. Katherine Olsen, Peggy’s mother, brings a cake to dinner with Peggy and her Jewish boyfriend, Abe.  Everyone is dressed up, as if a big announcement is about to happen. Peggy, in a nice modest print dress and pearl earrings, tells her mother that she and Abe are planning to “move in together.” Shocked, Katherine Olsen immediately rises from the table to head home. She tells Peggy bitterly, “If you’re lonely, get a cat.”  Jabbing her finger at Peggy, she says to her, “this boy, he will use you for practice until he decides to get married and have a family.”

           Yes, a Catholic mother would not have thought it was scandalous for her daughter to cohabit; she would have thought it sinful. But because a young woman knew her mother thought she was sinful, a nice Catholic girl would not have told her mother the truth.  She would have known that her mother would condemn her. A real Peggy Olsen would not have told her mother she was planning on living with her boyfriend, and she would not have invited her mother to a nice dinner to inform her of her plans. Catholic young people, men as well as women, often lied to their parents; they had separate phones installed that a boyfriend could never answer or made the boyfriend move out when mother came to visit. Girls who informed their parents were genuinely nonbelievers, liberal Protestants, or reform Jews. The writer of this episode did not understand how stigmatized cohabitation was in 1965.

ASLH Elections 2012

image credit

ASLH members: It's time to cast your vote for the Board of Directors and the Nominating Committee. Here's the information, pulled from the ASLH website:

Five positions on the Board are open and two on the Nominating Committee. For a list and descriptions of the candidates and instructions as to how to cast your ballot, click here (PDF). Polls close at midnight on October 7.

More on the candidates after the jump.

An Update on Accommodations at the ASLH

Via H-Law, we have the following update on accommodations for the upcoming annual meeting of the ASLH:

The 2012 ASLH Annual Meeting in St Louis is proving very popular.  A record number of members have already booked their attendance at the meeting.  Both the Four Seasons Hotel and the Lumiere Hotel (the Society’s back-up hotel) are nearly sold out.  There is also a major convention in St Louis during the time of our meeting.  Two hotels have been identified that have availability, and are within walking distance of the Four Seasons Hotel.  They are the Millennium Hotel St Louis and the Hyatt Regency St Louis at the Arch.  If you have not yet booked your air transportation to St Louis, we recommend that you do so soon.

Wells on Corporation Law in the Mid-Twentieth-Century

Harwell Wells, Temple University Beasley School of Law, has posted "Corporation Law is Dead": Heroic Managerialism, the Cold War, and the Puzzle of Corporation Law at the Height of the American Century, which will appear in the University of Pennsylvania Journal of Business Law 15 (2013).  Here is the abstract:    

In 1962, the corporation law scholar Bayless Manning famously wrote that “[C]orporation law, as a field of intellectual effort, is dead in the United States.” Looking back, most scholars have agreed, concluding that corporation law from the 1940s to the 1970s was stagnant, only rescued from its doldrums by the triumph of modern finance and the theory of the firm in the 1980s. What a strange time, though, for corporation law to be “dead” — the same decades that the American corporation had seized the commanding heights of the world economy, and gripped the imagination of social and political theorists. This paper takes a new look at mid-century corporation law, situating it within larger economic and political developments, in order to explain the distinctive features of corporate law in the “long 1950s,” why the field appeared vibrant at the time, and how later changes in the American political economy led most to eventually agree with Manning’s diagnosis. In the process, it aims not merely to restore a lost episode to the history of American law but to tell readers something about the nature of corporate law and how it changes from era to era.

Harvard Legal History Colloquium

The Legal History Colloquium at Harvard Law School announces its lineup for academic year 2012-13. The presenters and topics are as follows:

Feb. 7    Sabeel Rahman, Reginald Lewis Fellow, Harvard Law School, “Democracy, Markets, and Expertise: Financial Regulation in Historical Perspective"

Feb. 28  Willy Forbath, University of Texas School of Law, “Jews, Law and Identity Politics”

Mar. 7  Sophia Lee, University of Pennsylvania School of Law, “We Were Not Antagonistic to Collective Bargaining: Forging a Liberal Workplace Constitution in the Courts”

Apr. 4    Peter Pihos, Raoul Berger Legal History Fellow, Harvard Law School, "The New Federalism from Below: Criminal Justice in 1970s Chicago"

Apr. 11  Mary Bilder, Boston College School of Law, “Madison’s Hand: Revising the Constitutional Convention”

Woeste to Lecture at Syracuse Law

On Thursday, September 13,Victoria Saker Woeste, American Bar Foundation, will be deliver the Constitution Day lecture at Syracuse University Law School.  She will be speaking on her recently published book, Henry Ford's War on Jews and the Legal Battle Against Hate Speech, as well as recent developments in this area of First Amendment jurisprudence, including Synder v. Phelps (2010), the Westboro Baptist Church case.

Presidential History and More at the Miller Center This Fall

The Miller Center for Public Affairs is out with its Fall 2012 schedule of events, some of which are of special interest to legal historians.  These include a meeting of the Governing America in a Global Era Colloquium by Sophia Lee, Penn Law, on Friday, December 7, from 12:30-2:00 p.m.   (I’m assuming that, as in previous years, the GAGE Collquium will be webcast live.)  Lee's paper, A "Commitment to Strict Construction" addresses “how the conservative workplace Constitution divides the New Right coalition.”

Of even more interest is what looks to be a world-class state-of-the-field conference on presidential history, Recasting Presidential History, to be held October 26-27, 2012:

“Recasting Presidential History” seeks to jump start a new generation of scholarship about the presidency that capitalizes on key insights of leading scholars, many of whom have not concentrated on the presidency. Path breaking work in subdisciplines ranging from cultural to social history have created new frameworks that can inform and enrich work on the presidency. It has already begun to do so in the case of senior scholars who have ventured into presidential history after making a name for themselves in fields as disparate as intellectual and social history.

This conference seeks to galvanize interest in the presidency and extend it from presidential historians and senior scholars to a broader range of historians just embarking on their careers. By pointing to the rich opportunities for a conversation between political history that features the history of presidents and some of the most fruitful trends in historical scholarship over the past generation, and by engaging some of the leading social scientists who concentrate on the presidency as well as public intellectuals who have crafted highly successful accounts of presidents, we hope to foster a new generation of scholars to pursue of variety of analytical approaches to studying the American presidency.

This particular initiative comes at a time that political history, in general, is experiencing a renewal and at a historical moment when the influence of the contemporary presidency has made a deep impression on the current generation of scholars. In short, this is a propitious time for historians of all stripes to “bring the president back in.” We are pleased that the panel focused on the Presidency and the World will be this year’s Ambassador William C. Battle Symposium on American Diplomacy. The conference is sponsored by the Miller Center, with support from the American Political History Institute at Boston University.

[Program after the jump.]

DOMA

I am one of a number of historians of U.S. family history who are signatories to briefs challenging the constitutionality of DOMA, the Defense of Marriage Act.  Passed in 1996, amidst furor over the prospect of same-sex marriage, Section 3 of DOMA defined marriage as “a legal union between one man and one woman as husband and wife.” The web page of GLAD includes the brief we filed in Gill vs. Office of Personnel Management (2011), the first of several challenges of the law.  Our main argument, as you can see below, is that DOMA is “historically unprecedented” in U.S. history and that “the federal government consistently deferred to state determinations of marital status.”

             This fall the Supreme Court has scheduled one of several DOMA challenges for conference to decide whether they will review it. In 2011 President Obama declared that he would not ask the Justice Department to defend the constitutionality of DOMA in the courts. The group defending it is BLAG, the Bipartisan Legal Advisory Group. It is a bipartisan group of the House, led by Speaker John Boehner, who has hired outside lawyers at government expense to defend DOMA. Democrats, ostensibly part of BLAG (Hoyer and Pelosi), declined to support the legal challenge. Thus far, it appears that the defense of DOMA Boehner authorized has cost $1.5 million in taxpayer dollars.

              For proponents of same-sex marriage, the various court challenges to DOMA reveal discrimination against sex-sex married couples. As a historian of cohabitation, what I have found interesting is examining the same list from the point of view of the privileges of legal marriage. The list includes not only the long-standing government entitlement programs such as Social Security or federal tax policy but also the new family benefits of family medical leave or ERISA.  These policies and programs are not simply at the federal level, but also at the state level in the retirement and survivor benefits in state government defined pension programs. There are probably more marriage promotion policies in the military than in any other federal program. The military benefits make clear that recognition of legal marriage is not simply a benefit but a form of etiquette or dignity reserved for the legally married. Thus, only the legally married could be named as primary next-of-kin for notification at death or be included in family support programs for families of the deployed.

Hoyos, "The Role of Legal History in Legal Scholarship"

Over at JOTWELL, Roman Hoyos (Southwestern Law School) reviews Tabatha Abu El-Haj, "Changing the People: Legal Regulation and American Democracy," Vol. 86, New York University Law Review (2011). In doing so, he comments on "the role of legal history in legal scholarship." Here's a taste:

What struck me immediately about the article was how Abu El-Haj framed it.  In a seven-page introduction she spends two paragraphs on legal historiography; her main target is law and democracy scholarship.  Consciously or not, Abu El-Haj has offered an example of how to smooth the ground between historian and legal scholar.  Translating between disciplines, Elizabeth Mertz has told us, is a project fraught with misunderstanding.  But, perhaps because of her training in a law and society program, Abu El-Haj appears to have both the fluency and willingness to attempt an effective translation.  In this article, for example, she uses “the repertoire of democratic political practices” in the past to expose and undermine two major assumptions of modern law and democracy scholarship.

Read on here.

LHR 30:3

Law and History Review 30:3 (August 2012) is out.  Here are the articles and either the opening paragraph or abstracts:

The House that Built Holmes, by Brad Snyder

Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the House of the Truth. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.

From Slave to Litigant: African Americans in Court in the Postwar South, 1865–1920, by Melissa Milewski

This article draws on more than 600 higher court cases in eight southern states to show that African Americans succeeded in litigating certain kinds of civil cases against white southerners in southern appellate courts between 1865 and 1920.  While historians have often concentrated on cases involving issues of race, the much more common, seemingly prosaic civil suits African Americans litigated against whites over transactions, wills, and property also had important implications for race relations.  Through these suits, black southerners continued to successfully assert the legal rights they gained during Reconstruction long after Reconstruction had ended.  Moreover, I found that black litigants won the majority of civil cases litigated against white southerners in higher state courts - not only during Reconstruction, but, astonishingly, during the post-Reconstruction and Jim Crow eras as well.  I examine how the legal system itself, and the varied actions of participants in the legal system, allowed African Americans to litigate, and win, such cases.  This article has important implications for our understanding of the judicial system's relationship with politics and race and for its insights into the role of the courts in African Americans' centuries-long struggle for rights.

Judging Empire: Courts And Culture in Rome's Eastern Provinces, by Ari Z. Bryen

This paper contributes to the recent debate on the interrelationship between law and imperialism by presenting a new model for understanding courtroom interactions. Specifically, I argue that courtroom interactions should be understood as ritualized spaces in which the realities of day-to-day power-relations in empires are temporarily suspended and potentially renegotiated. The adoption of legal vocabularies by provincial populations is neither assimilation nor resistance, but rather an attempt to engage in a dialogue with imperial powers on terms that favor the provincials themselves. Drawing on papyri, monumental inscriptions, and literary texts, I argue that in Rome’s eastern provinces the government had no monopoly over legal texts or knowledge, a condition which provincials exploited through a process of selectively invoking and monumentalizing select legal texts, and forgetting others. Through a case study of how provincial populations generate and adopt ideas of the rule of law and how they deploy these concepts to influence and control Roman governors, this paper concludes that an approach to law as a ritual practice opens up new avenues for understanding the power dynamics of empires.

 Zionist Settlers and the English Private Trust in Mandate Palestine, by Adam S. Hofri-Winogradow

This essay is the first sustained description, based on archival materials, of the use Zionist settlers in British Mandate-era Palestine made of the English private trust and trust company, and Mandate authorities' reactions to that use. An early, ill-fated attempt to create a family trust of land in the English style produced an ambiguous decision by the Supreme Court of Palestine, which could be construed to mean that the private trust was no part of Palestinian law. I show how in the shadow of that decision, the Zionist settler population of Palestine made significant use of the trust for a variety of purposes. The story thus provides a particularly sharp example of a colonial population adopting more of the colonizer's own law than that colonizer was willing to have it use. Still more use was made of the trust company; it was a key instrument in encouraging Jewish immigration to, settlement of and investment in Palestine. Thanks to a particularly sophisticated international trust structure set up in 1933, more than 50,000 German Jews escaped the Nazi noose with at least some of their property intact. Their arrival in Palestine largely created its Jewish middle class. The essay thus contributes to the socio-legal history of British colonial law, that of Mandate Palestine, and that of the worldwide dissemination and uses of the trust and trust company during the early 20th Century.

“Let Them Make Him Duke to Rule that People”: The Law of the Bavarians and Regime Change in Early Medieval Europe, by Jonathan Couser

This article examines the eighth-century Law of the Bavarians.  It argues that this text was compiled, not within Bavaria itself between 744 and 748, as current scholarly consensus holds, but in the neighboring principality of Alemannia between 736 and 738.  The new dating and location of composition allows a reinterpretation of the text’s significance; rather than being a passive reflection of early medieval legal custom, it is actually a highly political production, designed to support a regime change – the imposition of a new duke from outside – with a minimum of compulsion.  Three parties within Bavarian society were granted new privileges in order to secure their support for the new regime of Duke Odilo (736-748): the Church, servants of the ducal court itself, and a select set of aristocratic kin-groups called genealogiae in the document.  In fact, this innovative device appears to have been remarkably successful.  Odilo was able to establish himself as duke in 736, and to survive a coup in 741, without any recorded military intervention.  A generation later, when Charlemagne took the duchy over in 788, he was careful to do so in ways that made use of the Bavarian Law’s political vision rather than suppressing it.  

The Digest of Laws of the Russian Empire: The Phenomenon of Autocratic Legality, by Tatiana Borisova

Researchers of the history of late imperial Russia quite often base their studies on the texts of laws as recorded in the official edition: the Complete Collection of the Laws of the Russian Empire (Polnoe Sobranie zakonov Rossiiskoi imperii). The laws were published there in chronological order for purposes of conducting inquiries; it was specifically the Complete Collection in which the original text of a decree approved by the emperor could generally be found.

[ Book reviews after the jump.]