Kreitner on Contract as Cultural Negotiation in the Context of Social Change

Roy Kreitner, Tel Aviv University, has just posted an abstract about his recent book, Caclulating Promises: The Emergence of Modern American Contract Doctrine (Stanford University Press, 2006). Here's the description:

This book is a history of American contract law around the turn of the twentieth century. It details shifts in our conception of contract by juxtaposing scholarly accounts of contract with case-law, showing how the cases exhibit conflicts to which scholarship offered just one of many possible answers. It argues, against conventional wisdom, that our current conception of contract is not the outgrowth of gradual refinements of a centuries-old idea of contract. Rather, contract as we know it was shaped by a revolution in private law undertaken by legal scholars toward the end of the nineteenth century. The revolution in contract thinking is best understood in a frame of reference wider than the rules governing the formation and enforcement of contracts. That frame of reference is a cultural negotiation over the nature of the individual subject and the role of the individual in a society undergoing transformation. The lasting theoretical framework installed by late nineteenth century scholars brought to life the image of an autonomous calculating subject; the case law offered the site for a more complex cultural negotiation of subjectivities, the site of conflict over the shape of individuality. Areas of central concern include the enforceability of promises to make gifts; the relationship of contracts to speculation and gambling; and the problem of incomplete contracts.

For the book, click here.

Reviewed: Hartman, Lose your Mother, on the Atlantic Slave Trade

LOSE YOUR MOTHER: A Journey Along the Atlantic Slave Route (Straus & Giroux), by Saidiya Hartman is reviewed today in the New York Times. What emerges is a complex and personal trans-Atlantic history. Elizabeth Schmidt begins:

Saidiya Hartman’s story of retracing the routes of the Atlantic slave trade in Ghana is an original, thought-provoking meditation on the corrosive legacy of slavery from the 16th century to the present and a welcome illustration of the powers of innovative scholarship to help us better understand how history shapes identity. But the book is also — this must be stressed — splendidly written, driven by this writer’s prodigious narrative gifts. She combines a novelist’s eye for telling detail (“My appearance confirmed it: I was the proverbial outsider. Who else sported vinyl in the tropics?”) with the blunt, self-aware voice (“On the really bad days, I felt like a monster in a cage with a sign warning: ‘Danger, snarling Negro. Keep away’ ”) of those young writers who have revived the American coming-of-age story into something more engaging and empathetic than the tales of redemption or of the exemplary life well lived, patterned on Henry Adams, Benjamin Franklin and Frederick Douglass.

Hartman’s main focus...is shaking up our abstract, and therefore forgettable, appreciation for a tragedy wrought on countless nameless, faceless Africans.

For the rest, click here.

The Federalist Papers On-line

The Federalist Papers are now on-line and searchable, thanks to Edward O'Connor who explains his reasons for providing this great service, and details about the site, here. It's a great site. The search function seems to work very well. A search takes you to google (see search results for "executive power" here), but when you click on the links, it takes you back into the Federalist Papers site. And individual papers are beautifully formatted. Nice touch.

Thanks to Cliopatria for the tip.

Reviewed: Sokol on White Southerners in the Age of Civil Rights

THERE GOES MY ­EVERYTHING: White Southerners in the Age of Civil Rights, 1945–1975 (Knopf) by Jason Sokol is reviewed in the Wilson Quarterly by Roy Reed. This book might be read along with Kevin Kruse's recent White Flight: Atlanta and the Making of Modern Conservatism. Here's Reed on Sokol:

Negroes know their place and are happy with segregation.
They have no desire to vote or take part in political ­affairs.
Integrating schools and public accommodations will lead to mongrelization of the ­races.
The civil rights movement is a communist plot and a threat to the freedoms of white ­people.
God is a segregationist. He says so in the ­Bible.

If you were a white person living in the South before the world turned upside down in the 1960s, you probably believed every one of those statements. You probably believed them if you were a white Northerner, too, but that’s another story. Jason Sokol, a young historian at Cornell University, is concerned with white Southerners, and he is determined that we not forget how far the South had to go to expel the poison of ­racism.

For the rest, click here. For an excerpt, click here.

Patterson reviews Fairclough, A Class of Their Own: Black Teachers in the Segregated South

James Patterson reviews Adam Fairclough, A CLASS OF THEIR OWN: Black Teachers in The Segregated South in this Sunday's Washington Post. Patterson writes:

Although few histories devote much attention to black teachers in the South between 1865 and 1965, these men and women were in many ways the backbone of the black middle class. The educational infrastructure that they painstakingly erected did a great deal to discredit Jim Crow, and the accomplishments of these unheralded educators were just as dramatic and important as those of better known heroes of the civil rights movement.

Adam Fairclough, a British historian who has written widely about that movement, tells this story very well. A Class of Their Own is a judicious exploration of a largely unstudied subject; it belongs on any well-stocked shelf of scholarly works on the Jim Crow South.

For the rest, click here.

Reviewed: More 9/11-related Fiction

Another attempt to make sense of the 9/11-era American scene through fiction, Once in a Promised Land (Beacon) by Laila Halaby, is reviewed in the Chicago Tribune. Kathryn Masterson writes, in part:

In her second novel, "Once in a Promised Land," Jordanian-American author Laila Halaby takes readers back to that time when American flags fluttered from car antennas and people were either with us or against us. She places her protagonists, a well-off Arab couple living in Tucson, in that moment to explore the effect on their lives of hijackers' flying planes into buildings on the other side of the country....

However acclimated they are to American life, Jassim and Salwa are foreigners in a land now hostile to people who look like they do. As their American dream life is pulled out from under them, Salwa decides their adopted country is too crass and corrupt to live there anymore.

For the rest, click here.

Reviewed: Langguth on the War of 1812

UNION 1812: The Americans Who Fought the Second War of Independence by A. J. Langguth (Simon & Schuster) is reviewed in Sunday's New York Times Book Review section. Richard Brookhiser writes, in part,

The War of 1812 was a spin-off of a world war Britain and France had been fighting for most of two decades. The United States’ first four presidents spent much of their time trying to keep their small country out of it, but by the end of James Madison’s first term, in 1812, a younger generation of politicians was in a mood for national self-assertion. Representative Henry Clay of Kentucky spoke of a “new United States” that would include Canada, and the House of Representatives voted for war “trusting that the Lord of Hosts will go with us to battle in a righteous cause.”...

What was the War of 1812? An immoral war of choice, as angry New Englanders said? A defense of American rights, as its supporters claimed? The foundation of America’s own empire, as later historians have argued? One benefit of Henry Adams’s vast scale and modulated voice is that he manages to suggest all three. Langguth, more simply, presents the war as an American success story. Yet he ends on a dark note....Success can set the table for tragedy, if the victors aren’t careful.

For the rest, click here.

Straumann on the Roman Law Influence on Grotius

Benjamin Straumann, New York University, has posted a new paper, Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius' Early Works on Natural Law. Here's the abstract:

This paper argues that Hugo Grotius (1583-1645), a major protagonist in the history of individual natural rights, developed his highly influential rights doctrine by reference to ancient Roman legal remedies and Cicero's moral philosophy. The paper thus puts forward a fresh account of the historical background of modern thinking on rights, one that runs counter to the traditional liberal historical account, epitomized by Benjamin Constant, according to which modern liberty is distinct from ancient liberty precisely on account of the alleged lack of a concept of individual rights in classical antiquity. It is argued that Grotius, a humanist steeped in Roman law, had substantive reasons for using his Roman sources. Roman law had already developed a doctrine of the freedom of the high seas, based on the idea of the sea as having remained in a natural state. Furthermore, Roman law and Cicero's ethics provided a fair amount of commerce driven remedies in contract law, which were part of the so-called law of peoples (ius gentium), a body of law initially created to accommodate foreigners, especially merchants, and give them standing in Roman courts. Although this paper's focus is not on the Roman texts themselves, but on the use Grotius made of them in some of his early works, the paper does entail the claim that those texts contain a concept of subjective rights. Moreover, it is suggested that the paper's historical account can contribute not only to a better doctrinal understanding of Grotius' rights doctrine, but also to a better understanding of modern liberal doctrines of rights.

Historian to Lead Harvard, sources report

The Boston Globe and the Harvard Crimson are reporting today that Harvard will name civil war historian and Radcliffe Dean Drew Gilpin Faust as President on Sunday. Thanks to Cliopatria for the tip.

UPDATE: The New York Times has now picked up the story, noting that "Harvard will be the fourth of the eighth Ivy League universities to name a woman as its president."

Faust's books include: Mothers of Invention: Women of the Slaveholding South in the American Civil War, The Creation of Confederate Nationalism: Ideology and Identity in the Civil War South, Southern Stories: Slaveholders in Peace and War, and The Ideology of Slavery: Proslavery Thought in the Antebellum South, 1830-1860 (Faust, ed.).

The Historian is Still in the Cellar: Lawrence Friedman's Latest

"Get out of the light, Lawrence Friedman has told legions of legal historians, and go down to the cellar. Upstairs you'll find only the history of appellate law....But the law of society—the law as it’s lived—is not the law made by common law judges, or even elected lawmakers, who leave their tracks above ground. It is instead the shadow of that law, cast across the streets and shops and tenements of town. The stuff of the law, especially criminal law, concerns those dredged up from the bottom of society. And they leave their tracks in the cellar."

"So down he went."

So began George Fisher's marvelous essay, The Historian in the Cellar, on Lawrence Friedman and his work, in the Stanford Law Review, noted here.

Lawrence Friedman is still in the cellar, to all our benefit. This time he has taken two of his students, Christopher Walker and Ben Hernandez-Stern with him. "For the past several years," Walker told me, the three "have been searching through hundreds of probate records from San Bernardino, CA." The results are on their way into print in the Houston Law Review, and are posted on SSRN, under the title, The Inheritance Process in San Bernardino County, California, 1964: A Research Note. Here's the abstract:

Probate records are ubiquitous. Virtually every American county has records of estates of the dead. These records contain rich source material for any study of American legal and social history. They have a lot to tell us about family life, about the economy, about love and death and every aspect of life in America. Yet very few scholars have tried to tap these records. There are very few empirical studies that use as their main source probate records, probably no more than a dozen or so, and even fewer in California. This research note is a modest attempt to add to the stock of knowledge, and to document some basic facts about the probate system at work in one place and at one time (San Bernardino, California, 1964). We analyze 513 probate records - both intestate and testate proceedings - of decedents who died in 1964 and whose probate proceedings took place in San Bernardino County, California.

Part I of this article provides a brief historical background on San Bernardino County and the state of probate law in California in the 1960s. Part II then describes the research methodology: the sample, the data collection process, and the typical testate and intestate files. Part III outlines the findings of this research, both with respect to intestate and testate proceedings, followed by some concluding remarks.

Call for Papers: American Values and the Constitution

DEADLINE JUNE 1, 2007.
Call for Papers: American Values and the Constitution.

San Francisco State University will host its third conference exploring the U.S. Constitution and its history on Monday and Tuesday, September 17 and 18, 2007. The conference will meet on the campus of San Francisco State University. Our theme this year looks at the influence of American values on the Constitution and on the nation’s evolving understanding of its Constitution. For each paper, submit an abstract and a one-page c.v. Complete panels or individual paper proposals will be considered. We expect to notify those selected by mid-July.

Send your proposal to:

Dean Robert Cherny
Division of Undergraduate Studies
San Francisco State University
San Francisco, California 94132.

Alternatively, you can send your proposal as an e-mail attachment to cherny@sfsu.edu.

The deadline for submission of proposals is June 1, 2007.

"Archives Made Easy" Global Guide to Archival Research

The London School of Economics has a website, Archives Made Easy, designed to facilitate archival research around the world. Here's the website description:

Hosted by the International History department at the London School of Economics and Political Science, Archives Made Easy aims to empower historical researchers of all levels and make unrewarding research trips a thing of the past.

Archives Made Easy serves the global research community by providing transparency of the costs and processes involved in an archive visit – the kind of information researchers need to know beforehand in order to avoid costly mistakes and delays.

The site includes reviews of archives in many countries, including a review of South African archives that appeared in the journal Cold War History, and practical tips for research at the Polish Central Archives of Modern Records, among others. Many countries are not listed, but the site includes a link to the UNESCO Archives Portal, described as "an international gateway to information for archivists and archives users."

Having done it just last summer in Kenya, I can certainly say that it is daunting to do research in a new county without first-hand information about the archives, their condition, the rules and procedures, etc. Useful information can be gleaned from archive websites, which can be found via the UNESCO site, but the LSE website appears to be the next best thing to getting advice from a colleague who has already been there. Highly recommended.

Thanks to H-Diplo for the tip.

Rasbrand on the Capture Metaphor in 19th Century Public Land Law

James R. Rasband, Brigham Young University - J. Reuben Clark Law School, has posted an article, Questioning the Rule of Capture Metaphor for Nineteenth Century Public Land Law: A Look at R.S. 2477. It appeared in a symposium issue of Environmental Law. Here's the abstract:

The literature of public land and natural resources law has spawned a number of powerful metaphors to describe Euro-American settlement of the American West. This Symposium participates in that venerable tradition, using The Rule of Capture as a metaphor for nineteenth century public land law and inviting participants to investigate the rule's consequences. Public land and natural resources law in the nineteenth century, however, cannot fairly be circumscribed by the metaphor of capture. The settlement of the American West, and the public land laws designed to facilitate it, required more than simple resource capture. At least as often, ownership depended upon improvement.

The problem with the capture metaphor is that it both undervalues and overvalues the nature of resource ownership in the nineteenth century. The imagery of capture is of farmers, ranchers, miners, and other settlers acquiring ownership merely by possession, which subtly devalues their ownership claims and reliance interests. On the other hand, neglecting the improver requirements of various public land laws may inadvertently strengthen otherwise dubious claims of vested rights.

This article investigates the viability of the capture metaphor by considering a rather obscure section of the 1866 mining law known as R.S. 2477 which grants to state and local governments the right of way for the construction of highways over public lands, not reserved for public uses. Given the vast number of R.S. 2477 claims and that designation of wilderness generally requires an area to be roadless, the presence of an R.S. 2477 road can have significant consequences. The actual impact of the statute depends upon what sort of activities amount to construction under the statute. Whether R.S. 2477 is understood as an improvement rule requiring self-conscious, mechanical construction, as the environmental community suggests, or as a capture rule allowing construction to be accomplished by mere use, the so-called beaten path standard advocated by states and rural counties, depends in part on whether the capture metaphor is an accurate characterization of nineteenth century public land and natural resources law.

Pokorak on the History of Gendered Racism in Rape Prosecutions

Jeffrey J. Pokorak, Suffolk, has posted a new article, forthcoming in the Nevada Law Review, Rape as a Badge of Slavery: The Legal History of, and Remedies for, Prosecutorial Race-of-Victim Charging Disparities. Here's the abstract:

This article explores the continuing gendered racism in rape prosecutions: the undervaluation of all rape offenses against Black women and the concomitant overvaluation of rape crimes against White women, particularly when committed by a Black man. In this article I review the legal and extra-legal factors that have historically evidenced the gendered racism in rape prosecutions. I also explore the prosecutorial methods that contribute to maintaining these racial disparities. Finally, I propose remedial actions for prosecutors, legislatures, and courts.

For most of this nation's history, raping a Black woman was simply not a crime. First, laws prevented the prosecution of any offender for the rape of a slave woman. At the same time, the rape of a White woman by a Black man was treated with especial violence. The Thirteenth and Fourteenth Amendments were proposed and ratified as vehicles to ensure the equal protection of the laws. After their enactment, although the de jure prohibition on prosecuting the rape of Black women ended, de facto barriers to prosecution remained.

The potent rape meta-narrative of a stranger who is a Black man violently assaulting a White woman continues to infect prosecutorial decisions. This influence is in part the product of prosecutors relying on system outcome bias regarding assessments of convictability. Such down streaming is the practice of considering at charging what prejudices and biases hypothetical jurors will employ when judging whether a rape victim is credible.

In this article, I propose prosecutors adopt charging criteria and employ review committees to end system outcome bias. In addition, legislatures should require accurate recordkeeping regarding the race of victim and perpetrator in every rape case from initial report through case completion. Finally, in egregious cases of overt racial discrimination, victims should sue for their right to be protected by the laws as guaranteed by the Thirteenth and Fourteenth Amendments.

Foster on Burrage on Law, Lawyers and Revolution in England, France and the U.S.

James C. Foster, Political Science, Oregon State University-Cascades, has a review in the Law and Politics Book Review of Michael Burrage, REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION: ENGLAND, FRANCE, AND THE UNITED STATES (Oxford University Press, 2006).

Michael Burrage’s magisterial tome is a culmination resulting from a convergence of several important developments in one branch of legal sociology. Over the past two decades, students of the legal profession have sought to employ historical analysis, to bring politics back in, and to pursue both endeavors in a comparative vein. Burrage, who currently is a Research Fellow in Industrial Relations at the London School of Economics and Political Science, himself has been involved in advancing all three of these concerns. For instance, in 1990, Burrage and colleague Rolf Thorstendahl, edited two collections of essays that sought to rethink the study of professions along historical lines (Burrage and Thorstendahl 1990; Thorstendahl and Burrage 1990). Nine years later he contributed an essay to a Review Section Symposium of LAW & SOCIAL INQUIRY addressing Lawyers and Politics (Burrage 1999; cf. Halliday 1999 and Scheingold 1999.) The present work represents something of a scholarly “quantum leap” in which Burrage builds on these developments, pursuing all three lines of inquiry to offer Weberian “intelligible explanations” (p.593) of the distinguishing characteristics of the legal profession in England, France, and the United States. As such, REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION is a welcome addition to the Oxford University Press Socio-Legal Studies series.

Burrage’s book is about what he characterizes as “A Fateful Encounter” (Chap.1, emphasis added). The fateful encounter he plumbs at length is between revolution and lawyers’ professional formation. Burrage’s use of the singular noun – “encounter” – in his key first chapter is somewhat misleading. To begin with, underlying a fateful encounter between revolution and lawyers’ professional formation is another, more fundamental, clash between social ideals and social realities. Burrage begins his analysis of attacks on lawyers in association by reviewing various manifestations of the well known antipathy toward lawyers. Unsurprisingly, it appears that a central goal animating revolution in the West, as Burrage understands the phenomenon, is to be rid of lawyers. “[L]aw without lawyers,” he writes, “has been one of the more enduring and resilient ideals of western civilization, recurring in the works of authors of varied temperaments and philosophies, separated by vast distances of time and culture, and living under diverse social and political systems” (p.5). Given Burrage’s Shakespearean view of the revolutionary ideal to “kill all the lawyers,” one might say that his essential story is one of [*76] paradise lost, or how revolution shaped lawyering without eradicating the profession.

But Burrage’s “encounter” has further dimensions. Not only is he describing revolutionary “ideals that were frustrated or abandoned, and dreams that failed” (p.7), he also is telling the story of three distinct revolutionary encounters. Although revolutions in England, France, and the United States, respectively, may have failed to eliminate lawyers, still “there is reason to believe that the way in which these legal professions resisted or recovered from these revolutionary attacks, and later adjusted to, or were forced to adjust to, the institutionalized settlements of revolutionary ideals can help us to understand their peculiarities in the modern world” (p.7).

For the rest, click here.

Call for Faculty Visitors, American Bar Foundation

Call For Faculty Visitors
American Bar Foundation
2007-08

The American Bar Foundation invites scholars to join the intellectual community of the ABF for the 2007-2008 academic year (8/30/07 to 6/30/08). The ABF can offer an office and phone, and possibly a computer. We are not able to offer a stipend or expenses. Preference will be given to visitors whose scholarship coincides with the research agenda of the ABF and who will be in residence fulltime. Visitors will participate in the intellectual life of the ABF and are expected to attend weekly seminars.

If you have an interest in this opportunity, please send an email to Terry Halliday (Halliday@abfn.org, chair, Appointments Committee), which states (1) the topic on which you are working, (2) the preferred dates for residence, and (3) the days each week you would expect to be at the ABF. Please also attach a CV. Applications should be received by April 1, 2007, though later applications will be considered as space allows. Applications will be reviewed by the ABF Appointments Committee and prospective visitors will be notified in late April 2007.

The American Bar Foundation is a nonprofit, independent, national research institute committed to basic empirical research on law and legal institutions, with an annual operating budget of $5 million dollars. Its program of sociolegal research is conducted by an interdisciplinary staff of 22 Research Fellows and Faculty Fellows trained in such diverse fields as law, sociology, psychology, political science, economics, history, and anthropology. The Foundation's work is supported by the American Bar Endowment, The Fellows of the American Bar Foundation, and by grants for particular research projects and other Foundation programs from private foundations and government agencies.

Bernard Bailyn on how Historians Get the U.S. Constitution Wrong: speech in NYC Feb. 8

Bernard Bailyn leads off a new lecture series at the New York Historical Society tomorrow night:

How Historians Get It Wrong: The American Constitution, for Example

Richard Gilder Distinguished Lecturer Series

History is what happened, and also what historians make of what happened, and they have a nearly impossible task trying to get it right—not necessarily because of ignorance or bias or lack of objectivity, but because of systematic problems of historical reconstruction. Historians have been writing about the Constitution since it was written, but there are some things about it that are almost impossible to get right, and that leads to important misconceptions.

Event Details:
Time & Location
Date: 02/08/2007 06:30 PM

New-York Historical Society

170 Central Park West

New York, NY 10024

(77th St.)

Pricing
Full Price Ticket (Non-Members): $18.00
Member Cost: $10.00
Student/Senior/Educator Cost: $15.00

To order tickets, click here.

Bernard Bailyn is Adams University Professor Emeritus and director of the International Seminar on the History of the Atlantic World at Harvard University. He is the author and editor of numerous books, including Ideological Origins of the American Revolution, which won the Pulitzer and Bancroft prizes, and Voyagers to the West, which also won the Pulitzer Prize. His Ordeal of Thomas Hutchinson won the National Book Award. His most recent work is Atlantic History: Concept and Contours.

Future speakers in this series include James McPherson and John Lewis Gaddis. For information about upcoming programs, click here.

Tickets for this program are sold through SmartTix. To order online visit www.smarttix.com. To order by phone please call SmartTix at 212-868-4444. The SmartTix Call Center is open 9am-8pm Monday through Friday, 10am-8pm Saturday and 10am-6pm Sunday.

For more information on programs: Please call the N-YHS Public Programs Department at 212-485-9205.

Wolfinger reviews Countryman on Civil Rights and Black Power in Philadelphia

James Wolfinger, DePaul, reviews Matthew Countryman, Up South: Civil Rights and Black Power in Philadelphia (University of Pennsylvania Press, 2006) on H-Pol. Here's an excerpt:

In the last twenty years historians have examined race relations and the African American experience in Detroit, Chicago, New York City, and other American cities.[1] These studies have helped revolutionize our understanding of the black experience in the urban North in the post-World War II period. Despite this flourishing body of academic work, Philadelphia has remained a largely neglected site. Matthew Countryman's new book, Up South, helps fill this historiographical gap, but does much more. In his study of black politics in the city of brotherly love, Countryman demonstrates how African Americans moved from liberal politics in the late 1940s and '50s to black power in the late 1960s. In so doing, Countryman challenges scholars to rethink the roots and development of black power and to move Philadelphia and similar northern cities closer to the center of postwar African American history....

Increasingly disenchanted with liberal strategies, many African Americans turned to community-based activism that sought to use mass mobilization to obtain racial equality (p. 83). These new leaders had not abandoned the liberal belief in interracial activism, but by the late 1950s they turned from pursuing abstract legal rights through administrative means to using the power of organized ordinary black Philadelphians to obtain equal rights. It was a matter, Countryman argues, of shifting from "questions of equal opportunity to ones of socioeconomic equality" (p. 112). Leon Sullivan and other church leaders formed an organization called the 400 Ministers that led "selective patronage" campaigns (essentially boycotts) against discriminatory employers such as Tastykake, Gulf Oil, and others. Sullivan also formed the Opportunities Industrialization Center to give African Americans the training they needed for skilled work in the city's industries. This approach secured at least a handful of jobs, but much like the interracial liberal organizations before them, Sullivan and the 400 Ministers learned their strategies could not overcome the obstacles before black Philadelphia.

For the rest, click here.

Two studies in Fear and Violence in the Comparative Atlantic Slave Experience

On the American Studies Association web gateway to American studies journals worldwide are two articles with interesting takes on the role of fear in the comparative experience of slavery and its aftermath.

The first is Tobias Green, Fear and Atlantic History: Some observations derived from the Cape Verde Islands and the African Atlantic, in Atlantic Studies. Green writes:

The history of the Atlantic necessarily encompasses a permanent dialogue with fear, but analysis of this fear is often absent from many historical discussions. Historical documentation is difficult to cite in such an analysis, as human nature often prevents people from writing of their fears. Yet the slightest pause for reflection confirms the importance of grasping the role of fear if the historical changes that accompanied the Age of Discovery are to be fully understood. Concentrating on fifteenth-seventeenth centuries accounts of the Cape Verde islands and Senegambia, this paper elucidates how the role of fear can be discerned through documentation and physical remains. It shows how the modernization of consciousness required by the fifteenth-century voyages of discovery can be interpreted as a distancing mechanism provoked by fear. Studying the physical remains of the first European settlement in the tropics, Ribeira Grande, it suggests that urban architecture betrays the multiplicity of fears felt by its early settlers. In addition, analysing the conceptual framework of navigators and settlers, it shows how familiar categories from fifteenth-century Iberia were subsequently applied to the newly discovered geographical spaces. The paper argues that this web of interactions stimulates thought as to the role of fear in other places and during other times. The use of alien concepts in the Cape Verde islands and the African Atlantic was pivotal in the process of dehumanisation, which enabled the transatlantic slave trade to endure. Properly seen, fear created a conceptual stasis that allowed damaging and long-lasting stereotypes to develop-thereby securing for this elusive emotion a lasting place in the genesis of the contemporary Atlantic.


In the journal Safundi: The Journal of South African and American Studies, is R.L. Watson's article, Abolition, Violence, and RapeThoughts on the Post-Emancipation Experiencesof the United States and the Cape Colony. Here's the abstract:

While there are a number of similarities between the experiences of the United States and the Cape Colony immediately after the abolition of slavery, the levels of violence in the two societies present a vivid contrast. Nothing at the Cape remotely resembles the savagry of the U.S. experience. This article speculates about the reasons for the contrast and suggests that, among other things, the absence of a fear of ex-slave rapists contributed to the relatively peaceful Cape experience.

Study on Wikipedia accuracy in History

It might be best to let Steven Colbert have the last word on Wikipedia, but since others are talking about it (skeptics/critics Brian Leiter and Dan Solove; Michael Dorf, defending; Jeff Lipshaw occupying something of a middle ground), I have another offering from the history world. Roy Rozenswieg, history professor at George Mason and Director of the Center for History and New Media may not be a household name in the law world, but he is a historian who has devoted much of his career to bringing history, and historians, to the web. Not known as a Luddite, in other words. He evaluated Wikipedia for the Journal of American History, the premier American history journal, and the results are here.

Wikipedia has many advantages, but how does its accuracy hold up in the field of history? Here's Rozenswieg:

American historians might look first at the Wikipedia page headed “List of United States History Articles,” which includes twelve articles surveying American history in conventional time periods and another thirty or so articles on such key topics as immigration, diplomatic history, and women’s history. Unfortunately, the blind man reporting from those nether regions would return shaking his head in annoyance. He might start by complaining that the essay on the United States from 1918 to 1945 inaccurately describes the National Industrial Recovery Act of 1933 as in part a response to the “dissident challenges” of Huey Long and Father Charles Coughlin—a curious characterization of a law enacted when Coughlin was still an enthusiastic backer of Roosevelt and Long was an official (if increasingly critical) ally. But he would be much more distressed by the essay’s incomplete, almost capricious, coverage than by the minor errors. Dozens of standard topics—the Red Scare, the Ku Klux Klan, the Harlem Renaissance, woman suffrage, the rise of radio, the emergence of industrial unionism—go unmentioned. And he would grind his teeth over the awkward prose and slack analysis (“the mood of the nation rejected Wilson’s brand of internationalism”) and the sometimes confusing structure (the paragraph on legislation passed in 1935 appears in the section on Roosevelt’s second term).

Other entries in the United States history series are worse. The entry on women leaves out the Nineteenth Amendment but devotes a paragraph to splits in the National Organization for Women (now) over the defense of Valerie Solanas (who shot Andy Warhol).

He found that Wikipedia tended to be better in biographical entries, however. Compared to other on-line encyclopedias, "Wikipedia, then, beats Encarta but not American National Biography Online in coverage and roughly matches Encarta in accuracy."

And this ultimately leads to a point that has been obscured in some posts. Wikipedia, like other encyclopedias, has its place. But when should judges, law professors and students be citing to encyclopedias, on-line or otherwise? Rozenswieg quotes one academic as calling encyclopedias "the Reader’s Digest of deep knowledge."

How about this for a ground rule: if the authority you need in that footnote in your opinion or article is on the level of Reader's Digest, go ahead and cite to Wikipedia.

UPDATE: For a different take on the topic, Mike Madison focuses on Wikipedia governance, linking to a Harvard Business School case study based on Wikipedia.

Journal of Legal History Student Prize

The Journal of Legal History Student Prize 2007

The Journal of Legal History offers a prize of £500 for the best paper, publishable in the Journal, by a person who has not previously published in, or had work accepted by, a refereed journal or similar publication.

Those interested in entering for the Prize should communicate in writing with the Editor:

Dr Neil Jones
Magdalene College
Cambridge, CB3 OAG, UK
e-mail ngj10@cam.ac.uk

The deadline for receipt of submissions will be 1 December 2007.

The Journal of Legal History, founded in 1980, is the only British journal concerned solely with legal history. It publishes articles in English on the sources and development of the common law, both in the British Isles and overseas, on the history of the laws of Ireland, Scotland, and Wales, and on Roman Law and the European legal tradition. There is a section for shorter research notes, review-articles, and a wide-ranging section of reviews of recent literature. For more information, click here.

Ortiz reviews Mettler, Soldiers to Citizens: The G.I. Bill and the Making of the Greatest Generation

Suzanne Mettler's new book, Soldiers to Citizens: The G.I. Bill and the Making of the Greatest Generation (Oxford University Press, 2005) is reviewed on H-Pol by Stephen R. Ortiz, Department of History, East Stroudsburg University of Pennsylania. The review begins:

One of the most exciting developments in the recent study of U.S. political history has been the renewal of the dialogue between political scientists and historians. Over the past twenty years, as political historians have increasingly focused on policy formation and implementation rather than the electoral and legislative processes, a growing number of political scientists have emphasized the historical dimensions of institutional development, especially the importance of historical contingency. These trends have led to the growth of a rich body of literature that engages both historians and political scientists, and blurs the disciplinary boundaries almost beyond recognition. U.S. political history--that fusty old don of academia--is now a surprising model of cutting-edge interdisciplinarity. One prominent scholar associated with this phenomenon, Suzanne Mettler, Alumni Associate Professor of Political Science at Syracuse University's Maxwell School of Citizenship and Public Affairs, already has made an important contribution with her work on the gendered structures undergirding New Deal public policy. Luckily for scholars of U.S. social policy, veterans' issues, and post-World War II political culture, Mettler employs her considerable talents in an excellent new study of the of the Servicemen's Readjustment Act of 1944, more commonly known as the G.I. Bill.

In Soldiers to Citizens: The G.I. Bill and the Making of the Greatest Generation, Mettler analyzes the impact of the G.I. Bill both on the veteran population that utilized the legislation's generous social provisions, and on postwar American politics and society. By utilizing extensive archival research and data from a series of surveys and interviews of World War II veterans, she argues that the G.I. Bill made a tremendous difference in the economic and social status of benefit recipients, and more importantly, led to a marked increase in recipients' levels of civic engagement. Mettler maintains that the bill's provisions, and the manner in which they were implemented, left lasting imprints on a cohort of veterans who had not only won the "good war," but who would also have the highest twentieth-century rates of political involvement. She explains, "Those veterans who utilized the [G.I. Bill] provisions became more active citizens in public life in the postwar years than those who did not" (p. 9). In other words, federal policies helped create the "greatest generation," a generation long venerated for its level of civic engagement and political participation. With this interpretive salvo, Mettler explicitly links two subjects of enormous historical and contemporary relevance: the impact of social policy on citizen beneficiaries and the decline of participatory democracy.

For the rest, click here.

Capers on Rethinking Historic Cases by "Reading Black"

I. Bennett Capers, Hofstra, has posted a new article, Reading Back, Reading Black, which is forthcoming in the Hofstra Law Review. Here's the abstract:

This essay builds on post-colonial theory and black literary theory to pose a pair of questions. If the reading of Western literature can be enriched by examining the great canonical texts through the lens of race, can a similar enrichment obtain from using a similar reading practice to read the law? Stanley Fish has argued that we each belong to interpretive communities, and that members of these communities are guided in their readings of texts by a common "consciousness," which produces interpretive "strategies [that] exist prior to the act of reading and therefore determine the shape of what is read." If this is true, what does it mean for the study of law to have a community of black readers?

This essay engages these questions and attempts to describe a reading practice of reading black. To illustrate the reading practice, the essay examines two cases that do not appear to be engaged in "race work" at all, The Queen v. Dudley & Stephens, and Muller v. Oregon. The essay demonstrates that far from diminishing these opinions—these grand narratives, these master texts—reading black reveals other layers, other meanings, and in the process deepens and widens our understanding not only of the holdings of these opinions, but also the how and why of them.

Chafetz on Legislative Privilege in Britain and the United States

Josh Chafetz, Yale, has posted an abstract for his new book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale University Press, 2007). Chafetz writes:

This book is the first to compare the freedoms and protections of members of the United States Congress with those of Britain's Parliament. Placing legislative privilege in historical context, it explores how and why legislators in Britain and America have been granted special privileges in five areas: jurisdictional conflicts between the courts and the legislative houses, freedom of speech, freedom from civil arrest, resolution of disputed elections, and the disciplinary powers of the houses.

The book develops two models of parliamentary privilege in British history. The earlier, Blackstonian, model argues that privilege is historically rooted in the need to physically wall off the deliberations of Parliament from external influence. While Parliament was in its formative years, privilege functioned to help establish its relative power by absolutely protecting it from outside interference - primarily from the Crown and the courts, but also from private subjects. The promotion of democratic values necessitated insulating the power of the House at all costs. Over time, as Parliament established itself as an independent body and its position as a democratic institution solidified, privilege became increasingly porous, developing into the second, Millian, model. Privileges extended to the functions members performed outside of Parliament (e.g., interactions with constituents) and the courts increasingly were given jurisdiction to determine the scope of parliamentary privilege. This model was taken up in the New World and extended through American ideas of popular sovereignty, implying that privilege could never be used to shield members of Congress from their constituents. American congressional privilege must ensure that the legislators are kept subordinate to the sovereign people. Practically speaking, this means that other branches of government cannot be allowed to control the Houses of Congress in areas in which they are privileged, but Congress may not define the scope of its own privileges, either. This book highlights the struggle for power among government entities, leading from a self-defining, closely guarded privilege to one that is other-defining and transparent.

Legislative privilege is a crucial component of the relationship between a representative body and the other participants in government, including the people. In recounting and analyzing the remarkable story of how parliamentary government emerged and evolved in Britain and how it crossed the Atlantic, this book illuminates a variety of important constitutional issues, including the separation of powers, the nature of representation, and the difference between written and unwritten constitutionalism.

For a link to the book, click here.

Reviewed: Luce on the Rise of Modern India

Widely reviewed in newspapers today is Edward Luce, IN SPITE OF THE GODS: The Strange Rise of Modern India (Doubleday). Ben Macintyre writes in the New York Times:

“In Spite of the Gods,” is a series of acutely observed vignettes, held together by a single theme, and an overriding question: India will soon become a great power; what kind of great power will it be?

Luce is the best sort of foreign correspondent: amiable, courteous, curious and gently self-mocking. His admiration for India’s economic miracle and its entrepreneurial elite is as genuine as his dismay at the poverty of its villages and the corruption of its politicians. He finds a country steeped in religiosity with a lingering distrust of modernity, but one that is also changing and modernizing at an astonishing rate, not because of its rich spiritual heritage, but “in spite of the gods.”

For the rest, click here.

Reviewed: Raban on Surveillance in Seattle

Perhaps it is a fitting encapsulation of early 21st century American culture. We are no longer obsessed with being sleepless, and looking for love, in Seattle. We are under surveillance. That is the theme of a new novel, Surveillance, by Jonathan Raban, reviewed today in the Los Angeles Times. (The scene for the novel really is Seattle.) Richard Edler begins his review this way:

Cross Lincoln Steffens on the Russian Revolution ("I have seen the future and it works") with Pogo ("We have met the enemy and he is us"), and you pretty much come out at Jonathan Raban's new novel. "I have met the future and it's the enemy and it's us," in other words. This is the dystopian theme of "Surveillance," a current that does not so much run beneath the fiction as flood it. The compass virtually preempts the ship, eclipsing such features of an ocean trip as sunlight on cobalt waves, storm clouds on black ones, salt air, flying fish, seasickness and the onboard affair.

"Surveillance" is a kind of summum malum of contemporary American civilization: a scouring compendium of the evils, blindnesses and vulnerabilities behind the choices that fashioned its power and prosperity and that threaten their imminent collapse.

For the rest, click here. For the book, click here.

Photo credit: click here.

Reviewed: Fenby on the Cold War

"'Christ, I miss the cold war,' Judi Dench’s M memorably tells Bond in Casino Royale. We know what she means." So begins Brendan Simms' review of Jonathan Fenby, ALLIANCE: The Inside Story of How Roosevelt, Stalin and Churchill Won One War and Began Another (Simon & Schuster) in today's London Times. The review continues:

The standoff between the Soviet Union and the West was characterised by a certain stability and predictability. There were hotlines through which both sides could communicate in a hurry, and red lines that everybody knew or intuited should not be crossed. The cold war had its own painfully acquired language and rhythm. When the Wall came down, the world became a much better place, but also a far more unpredictable one.

Against this background, it is salutary to be reminded that the beginning of the cold war was defined by uncertainty. As Jonathan Fenby shows in his highly readable book, the protagonists, or at least some of them, were not even aware they were stumbling into a war at all. Roosevelt, for one, remained resolutely in denial about Soviet intentions until his sudden death shortly before the end of the second world war. Some of the American president’s entourage were far more obsessed with ending the British empire than containing Stalin’s expansionist plans in eastern Europe. Their attempts to put Stalin at ease and find a common language often morphed into abject ingratiation at British expense. Roosevelt’s repeated bypassing and humiliation of Churchill, sometimes accompanied by overt winks and nudges to the dictator, must have been particularly excruciating for the prime minister. These gambits were also pointless, as Fenby points out, because the Soviet leader automatically assumed that the Anglo-Americans were trying to stitch him up, and regarded any sign to the contrary as an elaborate deception.

For the rest, click here. Right now this book is only available on Amazon UK and from Canadian and UK booksellers. I suspect it is not yet released in the U.S., and will post an update later.

Reviewed: Armitage, The Declaration of Independence

The Boston Globe reviews David Armitage, The Declaration of Independence: A Global History (Harvard University Press, 2007). Michael Kenney writes:

In 1991, no fewer than 23 countries adopted declarations of independence in a flurry that followed the dismantling of the Soviet Union. In the 10 years between 1958 and 1968, there were 14 declarations after the breakup of colonial empires in Africa.


Another eight in Europe, after World War I, and, to go back further, 20 countries (several of them more than once) between 1810 and 1844, as Spain's colonial empire in South and Central America fragmented, issued declarations of independence.

An "outbreak of a contagion of sovereignty," a veritable "pandemic" even, writes David Armitage, a professor of history at Harvard, in "The Declaration of Independence," a provocative study of a subject about which one might have thought there was nothing new to report....

The thrust of these foreign declarations has been to make statements of independence and to place the new nations, of Eastern Europe, colonial Africa, or Latin America, among the nations of the world, Armitage writes, " rather than an enumeration of the rights of individuals against their governors."


For the rest, click here.

Peritz on Dr. Miles Medical Company and Antitrust History

Rudolph J.R. Peritz, New York Law School, has posted a new paper, 'Nervine' and Knavery: The Life and Times of Dr. Miles Medical Company. The author indicates that it is forthcoming from Foundation Press. I suspect it is a chapter in Daniel Crane and Eleanor Fox, Antitrust Stories, forthcoming from Foundation Press. Here's the abstract:

In the spring of 1911, the Supreme Court issued four opinions involving the Sherman Anti-Trust Act, all of them landmark decisions and each in its own way reflective of the era. One of them was Dr. Miles Medical Company v. John D. Park & Sons. Justice Charles Evans Hughes, writing for the Court, not only pronounced the doctrine that resale price maintenance was prohibited but set in motion the analytical dynamics of modern doctrine. Moreover, the underlying controversy offers a striking sight line into the era's swirling cultural and economic currents. Dr. Miles arose at the confluence of three federal statutes emblematic of Progressive Era responses to entrepreneurial excess. As every student of antitrust knows, the Sherman Act grounded Park's successful defense that the resale price provisions in Miles' form contracts were unenforceable. The context was also framed by the Trademark Act of 1905 and the Pure Food & Drug Act of 1906, both of which collided with the dominant marketing strategies of patent medicine firms. Because the costs of market entry and product imitation were low, supply tended to exceed demand, spurring intense brand competition. But the trademark statute's stronger protection of nationwide brands in the patent medicine industry, one of the first product markets driven by mass advertising, enabled large manufacturers to distance themselves from smaller firms and discourage upstarts. Moreover, the food and drug act's ingredient disclosure requirements and its ban on ill-founded therapeutic claims tended to benefit well-established firms as much as consumers.

The chapter's first section describes the era's patent medicine markets and pays close attention to the commercial importance of trademarks and advertising. In this light, the second section analyzes Dr. Miles through the prism of prior litigation in the industry, an analysis that uncovers the centrality of property rights to the Court's competition policy as well as the industry-wide use of standard form contracts, use that was organized by national trade associations. In the patent medicine industry and perhaps in other emerging mass markets, standard form contracts were no less effective in restraining competition and maintaining price levels than the more visible business strategies of merger and cartelization. The focus on branded competition and standard form contracts illuminates the era's competition policy. The policy is misunderstood today, particularly its underlying classical economics, which informed the twin common law competition doctrines of contracts in restraint of trade and restraints on alienation of property. The chapter concludes with an afterword about modern doctrine, its modern economic rhetoric and its common law underpinnings

E-mail Trouble

A note to e-mail correspondents: I discovered late Friday that for about a week some e-mail messages I sent out were never received, even though I received no error messages. I have no way of knowing whether incoming messages were similarly blocked. And right now my e-mail is completely down.

If you have e-mailed me in the past week or so and have not received a response, it may not be the usual problem (too much e-mail), but instead it may be that I've not received your message, or that I sent a reply, but it was blocked.

The way to get around whatever is blocking my e-mail seems to be to strip all links (for example from signatures) out of an e-mail. Attachments may also be a problem.

Apologies for this inconvenience.

Kelly on Haass on the Nature of Sovereignty

Michael J. Kelly, Creighton, has posted an article which appeared in the UCLA Journal of International and Foreign Affairs, Pulling at the Threads of Westphalia: Involuntary Sovereignty Waiver - Revolutionary International Legal Theory Or Return to Rule By the Great Powers? He begins the article this way:

Since the 1990’s, American presidents have been willing to unleash the massive military arsenal of the world’s last superpower into the territories of other states without the formal agreed consensus of the international community. But if sovereignty means anything at all, it means freedom from outside interference. The baseline rule enshrined in the Charter of the United Nations holds that states cannot intervene in one another’s affairs by force without authorization from the Security Council. However, the United States led one intervention in Kosovo to stop crimes against humanity and then another in Iraq to stop the spread of weapons of mass destruction, both without Security Council authorization. Is America amending the UN Charter through action? Perhaps, if the Charter can be altered by subsequent customary practice. So the question arises: whither sovereignty?

This is the question taken up in the article, explored through a consideration of historic ideas of sovereignty, and a critique of the idea that nations can involuntarily waive sovereignty, thereby justifying intervention, for example for humanitarian reasons, developed by Richard Haass. Here's the abstract:

This paper explores the nature of sovereignty, its 17th century fusion with the state as a new political entity, its evolution over time, and challenges to its systemic primacy in the 21st century by thinkers such as Dr. Richard Haass, President of the Council on Foreign Relations, whose involuntary sovereignty waiver theory is deconstructed as a viable alternative to U.N. Security Council military intervention preventing human rights abuses, terrorism, and proliferation of weapons of mass destruction. The article also explores Haass's recommendation that the world return to a Concert of Powers system modeled on that which developed from the 1815 Congress of Vienna, and evaluates use of the anticipatory self-defense doctrine as a method of executing involuntary sovereignty waiver theory. This paper also discusses the interplay between internationalist, realist, and neoconservative schools within the Bush foreign policy apparatus and evaluates the efficacy of Haass's theory being employed by each.

Klemme on Takings and Substantive Due Process

Howard Klemme, Colorado, has posted a book description and selected chapters on SSRN. The book is Takings, Substantive Due Process, and the Regulatory Roles of Government. Although the book appears to be completed, it is not on Amazon.com, and Klemme does not provide publisher information. For more information, contact the author via his SSRN page, here. Here's the abstract:

As described in the Author's Note, this recently completed book is an in-depth analysis of the law of what constitutes a compensable taking and how that law relates (along with its history and rhetoric) to the law of substantive due process. While that analysis focuses primarily on so-called “regulatory takings,” it also considers other forms of takings, for example, those that may occur when governmental employees cause injury to private property while engaging in tortious conduct.

The book is intended to serve as a comprehensive research tool for students, lawyers, judges, land use planners, and others who may be interested in the law of compensable takings, including those who may have a special interest in its history or rhetoric, such as political scientists, economists, historians and rhetoricians. Most takings and related substantive due process decisions of the United States Supreme Court are analyzed, as are many state court decisions, many of which prove to be of far more significance than most of the Supreme Court's decisions. Indeed, except for the law of takings as it relates to utility rate regulation and rent control, nearly all the present-day law of takings, including its confused and confusing substantive due process rhetoric, have been created (or invented) by state courts. Surprisingly little is the original work of the United States Supreme Court.

Of the book's ten chapters, only the book's foundation chapters, Chapters I, II, and V, accompany this abstract. Following the broad overview presented in Chapter I of the book's research, analyses, and principal conclusions, Chapter II describes in greater detail the three regulatory roles of government - prevention, redistribution, and that of encouraging the exchange or sharing of privately owned resources - that are most likely to be relevant when trying to decide whether a particular governmental regulation or its application, or any other form of governmental action or inaction constitutes a compensable taking.

In terms of legal analysis, the book's two most important chapters are Chapters IV and V. Though it does not accompany this abstract, Chapter IV expands the analysis presented in Chapters I and II and demonstrates from several different perspectives how, on a principled basis, it is possible to distinguish between governmental actions or inactions that constitute compensable takings and those that do not. In most instances, that process involves using the "involuntary Good Samaritan test" of takings (as I have denoted it) to identify which regulatory role (or roles) the government was exercising when it adopted or applied a particular regulation or undertook other regulatory action. The resulting conclusion answers the question of whether a compensable taking has occurred. The purpose of Chapter V, the book's single most important chapter, is to demonstrate and explain how, and why, that process and test reflect so well the underlying policies of the takings clause, its language and its history of nearly eight hundred years.

Strang on the Role of History in the Religion Clauses

Lee J. Strang, Ave Maria School of Law, has a new paper, published as the Introduction to a symposium issue of the Notre Dame Law Journal. The paper is The (Re)Turn to History in Religion Clause Law and Scholarship. Here's the abstract:

In this Introduction, I offer a brief review of and explanation for the role history has played in the Supreme Court's religion clause jurisprudence and scholarly efforts. History's role is powerful in the Establishment Clause context, which I will discuss first. In stark contrast, history played almost no role in the Free Exercise Clause context until 1990, in response to the (in)famous Employment Division v. Smith. Thereafter, I will discuss the contributions of the Symposium participants which better our understanding of the proper role of history in, and the historical background of, the religion clauses.

Summer Institute on Archival Research for Ph.D. Students

Call for Applications
Summer Institute on Conducting Archival Research (SICAR) at the George Washington University
June 11-15, 2007

Ph.D. students working on dissertations involving archival research (particularly in newly accessible archives) on topics related to modern history and international relations are invited to apply to the 5th annual Summer Institute on Conducting Archival Research (SICAR) at the
George Washington University in Washington, D.C. SICAR trains graduate students from multiple disciplines to maximize their research in archives and includes the following sessions:

• preparing to go to an archive and structuring time once there
• understanding how archival documents come to be written and deposited in archives
• tackling the challenges of interpreting archival documents, including issues of culture and foreign language

Applicants must submit the application form (found at www.ieres.org), a two-page proposal indicating how they would benefit from SICAR, a CV, and one letter of recommendation from a faculty member in their department. [NOTE: The announcement indicates that the form is at the above link, however at the time of this posting, I was not able to locate the form. Applicants should email the program at sicar@gwu.edu if the form is not on-line when you are applying.]

The deadline for applications is February 19, 2007 and decisions will be announced by March 1, 2007. Please send applications via e-mail to sicar@gwu.edu (letters of recommendation can be sent via regular mail to:
The Institute for European, Russian and Eurasian Studies; ATTN: SICAR; 1957 E St. N.W., Suite 412, Washington, DC 20052).

GWU will cover the costs of housing and meals, and accepted students can apply for help with travel costs. For more information: (202)994-6342 or sicar@gwu.edu. SICAR is funded by the Andrew W. Mellon Foundation.

Wikiality ABC's for Judges from Steven Colbert

Before citing Wikipedia in judicial opinions (see previous posts here and here), judges might benefit from a short course on the subject by Steven Colbert, on Comedy Central, January 30. Colbert loves Wikipedia, "the Encyclopedia where you can be an expert even if you don't know what the hell you're talking about."



His definition of "Wikiality" is: "When Wikipedia becomes our most trusted reference source, reality is just what the majority agrees upon." (Of course, when Colbert says it, it's funny.) For the rest, including Colbert on the commodification of reality, run the video above, or click here. Highly recommended.

Wikipedia is fine as a quick place to start, as long as researchers are aware of the way postings can be manipulated. But judges who cite to Wikipedia as authority in opinions undermine their own authority.

Many thanks to one of my students for passing this on.

Bradley on the 19th Century Effort to Amend the Constitution to Ban State Aid to Religious Schools

Gerard V. Bradley, Notre Dame, has a new paper, The Blaine Amendment of 1876: Harbinger of Secularism. Here's the abstract:

The Blaine Amendment of 1876 was a Congressional effort to add a sixteenth amendment to the Constitution. The leading feature and central aspiration of the proposal was to prohibit the states from giving financial aid to schools run by sects. Passed overwhelmingly by the House of Representatives, the Blaine Amendment narrowly failed to secure the necessary two-thirds vote in the Senate.

This paper examines the Blaine Amendment as a political phenomenon; that is, as a Republican attempt to exploit anti-Catholic prejudice in a presidential election year. It also looks at the Blaine Amendment constitutionally; that is, for the light it sheds upon the Reconstruction-era debate over church and state as well as upon the relationship between the First Amendment Religion Clauses (the language of which the Blaine initiative incorporated), and the recently ratified Fourteenth Amendment Due Process Clause. Finally and at the greatest length, this paper looks at the Blaine Amendment more broadly; that is, as a telling episode in the continuing American story about the government's proper role in shaping children's character as maturing citizens of the American polity.

Stanley Katz to be Honored by Princeton Law & Public Affairs Program

Princeton University
Program in Law and Public Affairs

Conference in Honor of Stanley N. Katz:
Teacher, Scholar, Citizen
February 23-24, 2007

Conference sponsored by the Princeton University Program in American Studies, Department of History, Program in Law and Public Affairs and the Woodrow Wilson School.

The conference is being planned by a committee of colleagues and former students of Stanley N. Katz. It will include a mix of formal and informal sessions on those themes that have been important in Stan’s professional life. Panels will explore topics in public policy, colonial history, American legal history, the history of nonprofits and philanthropy, the use of technology in teaching and scholarship, , and the public humanities; all areas where Stan's work has made important contributions. The papers will be presented by students of Stan or long-time friends and colleagues. The conference will end with Stan's presentation of an "Intellectual Autobiography". Each session is designed to allow a maximum of participation by the audience, almost all of whom will be students, friends, and colleagues of Stan.

For details, click here.

Stanley N. Katz is president emeritus of the American Council of Learned Societies. His recent research focuses upon the relationship of civil society and constitutionalism to democracy, and upon the relationship of the United States to the international human rights regime. He is also a commentator on higher education policy. Formerly Class of 1921 Bicentennial Professor of the History of American Law and Liberty at Princeton University, Katz is a scholar of American legal and constitutional history, and on philanthropy and non-profit institutions. He is the editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States and of the forthcoming Encyclopedia of Legal History (OUP, 2007). The author and editor of numerous books and articles, he has served as president of the Organization of American Historians and the American Society for Legal History and as vice president of the Research Division of the American Historical Association.

For a full bio and publication info, click here.

Volokh: Modeling and Medieval Property Rights

Alexander Volokh, Georgetown, has a new paper, Property Rights and Contract Form in Medieval Europe. Here's the abstract:

Throughout western Europe, beginning about 1200, leasing of feudal lords' estates became more common relative to direct management. In England, however, direct management increased beginning around the same time and until the fourteenth century, and leasing increased thereafter.

This article models the lord-peasant relationship as a game where contract form is chosen as the result of a tradeoff between incentives for high effort and excessive risk-bearing. Leasing increases as peasants' living standards improve. As for England, the increase in direct management can be explained by property law innovations that increased the security of freehold tenure, and the increase in leasing can be explained not only by improving living standards but also by increasing security of leasehold tenure. This model also explains why small landowners are more likely to manage their land directly, and why large landowners are more likely to lease their small estates than their large ones.

Barrett Remembers Bernard Meltzer, Holocaust Prosecutor

John Q. Barrett of St. Johns Law School and the Jackson Center circulated a post this week to his Jackson list, remembering Bernard Meltzer. Meltzer served on Robert Jackson's staff in the Nuremburg trials, and was the youngest U.S. prosecutor to address the tribunal. He joined the University of Chicago law faculty in 1946. Meltzer died January 4 at the age of 92, will be remembered at a memorial event at the University of Chicago Law School tomorrow. For details, click here.

Here's an excerpt from Barrett's post:

Bernie Meltzer’s “Nuremberg” began when he arrived in ondon on August 3, 1945, and joined Justice Jackson’s team. Within days, the four allied nations—the U.S., the United Kingdom, France and the Soviet Union—signed the London Agreement to create an international tribunal to adjudicate Nazi crimes against peace, war crimes and crimes against humanity. Bernie then worked on evidence gathering, on analyzing evidence against prospective defendants and on draft charges. In September he moved to Nuremberg, where he worked on the draft indictment, on prisoner interrogation and on the evidence, particularly on the “economic case” against Nazi finance and banking officials. Bernie was present in court when the trial began on November 20th and the next day when Justice Jackson delivered his opening statement. (For a 1:20 Jackson Center video clip of Bernie Meltzer discussing Jackson’s opening statement, click here.)

On January 11, 1946, Lt. Meltzer presented to the IMT the evidence against defendant Walther Funk, formerly Nazi Germany’s Minister of Economics and head of the Reichsbank. Funk was charged with conspiracy to seize power, establish a totalitarian regime and wage wars of aggression (Count One), with waging wars of aggression (Count Two), with war crimes (Count Three) and with crimes against humanity (Count Four). Meltzer’s presentation, available in transcript form through Yale’s Avalon Project (click here), was interrupted a number of times that morning by the impatient chief judge, Geoffrey Lawrence of the United Kingdom. Meltzer parried these interruptions quite well, at times explaining his purpose, at others adjusting his presentation to get to the point that interested Lawrence, and in one spot just pressing on, pretending not to understand Lawrence’s gripe and getting back to the evidentiary point that Meltzer, the prosecutor, wished to make. In the afternoon, Lord Lawrence receded, permitting Bernie to conclude his powerful presentation without substantive interruption. The IMT ultimately acquitted Funk of the conspiracy charge, convicted him of waging aggressive war, war crimes and crimes against humanity, and sentenced him to prison for life.

Barrett closed his post this way:

Bernie Meltzer was a phenomenal teacher, a great person and a very kind, generous friend. In his fall 2004 Albany Law Review article, he closed by quoting, and endorsing, a passage from Justice Jackson’s July 26, 1946, closing argument at Nuremberg. These words are, at least on the topic of Nuremberg, a well-deserved epitaph for both men:

It is possible that strife and suspicion will lead to new aggressions and that the nations are not yet ready to receive and abide by the Nuremberg law. But those who gave some of the best efforts of their lives to this trial are sustained by a confidence that in place of what might have been mere acts of vengeance we wrote a civilized legal precedent and one that will lie close to the foundations of that body of international law that will prevail when the world becomes sufficiently civilized.

For the full post, which appears on H-Law, click here. For a link to Barrett's Jackson post page, with selected posts on Justice Jackson and on Nuremburg, click here.

More on Wikipedia: Banned for Undergrads, but Cited by Judges

The Chronicle of Higher Education contributes to the discussion about using Wikipedia, and increasing efforts to restrict citations to the on-line encyclopedia by undergraduates, with an interview with Middlebury College History Dept. Chair, Don J. Wyatt, circulated in its on-line newsletter today.

Yesterday's Legal History Blog post about U.S. judges citing to Wikipedia in opinions is here. My bottom line: U.S. judges should be held to no lower standards than undergrads. It's one thing to begin your research with a Wikipedia entry. But citing to it as authority, rather than a peer-reviewed secondary source? In an opinion? Yikes!

Here's a little from the Wyatt interview:

Q. When did the history department decide it needed to codify an official policy against citing Wikipedia?

A. We'd been deliberating on Wikipedia for almost half a year, but what really tipped the balance was the fact that we found there were multiple instances of students citing Wikipedia for the same misinformation. Wikipedia is very seductive: We all are sort of enamored of the convenience and speed of the Web. From the standpoint of access, it's a marvelous thing. But from the standpoint of maintaining quality, it's much less so.

For the rest, click here (requires a subscription -- try your library).

Zietlow on the Warren Court's Judicial Restraint and the Role of Congress in Protecting Rights

Rebecca E. Zietlow, Toledo, has a new paper, with a different approach to rights and the Warren Court, The Judicial Restraint of the Warren Court (and Why it Matters). Prof. Zietlow also has an earlier, related paper on SSRN, published in the Rutgers Law Review, To Secure These Rights: Congress, Courts and the 1964 Civil Rights Act. Here's the abstract for the new paper:

In politics and in academia, the Warren Court is virtually synonymous with the term “judicial activism.” Yet this article points out another side of the Warren Court's jurisprudence – its restraint towards congressional power, especially when Congress used that power to protect the rights of minorities in our society. It consider the role of a particular set of rights - rights of belonging – those rights that that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community. Understanding the Warren Court's restraint provides an opportunity to reconsider the proper relationship between courts and legislatures with regard to rights of belonging. Historically, Congress has done considerably more to protect those rights, and I argue that Congress is institutionally better suited to do so. Moreover, prior to the Warren Court, supporters of rights of belonging, not their opponents, were the staunchest opponents of judicial activism.

My account goes against the conventional wisdom that courts, not legislatures, are best suited to protect rights of belonging. The Warren Court's activism in protecting individual rights is the basis for this conventional paradigm. Yet the Framers of the Fourteenth Amendment intended Congress, not federal courts, to be the primary protectors of those rights. The Warren Court understood this, and allowed Congress ample opportunity to do so. Starting in the early 1960s, Congress enacted numerous measures expanding the rights of minorities to belong in our civic society. Hence, the judicial restraint of the Warren Court, not its activism, has made the most positive impact on rights of belonging in this country.

Understanding the judicial restraint of the Warren Court also provides an opportunity to reconsider the proper role of moral values in our political debate. Conservatives often argue that legislatures, not courts, should determine matters of moral values. I agree, and argue that a healthy political debate over values not only will strengthen our civil society, but it will also result in expanding rights of belonging in our society.