Walker on ASLH panel: Lost Intersections: Labor, Civil Rights, and Feminism in 20th Century U.S. Legal Advocacy

Our first guest post about this year's American Society for Legal History conference comes from Anders Walker, St. Louis University School of Law.  His panel description follows:

Lost Intersections: Labor, Civil Rights, and Feminism in Twentieth Century U.S. Legal Advocacy

This panel focused on intersections between labor, civil rights, and feminism, both broadening and challenging prevailing narratives. 

Tomiko Brown-Nagin (University of Virginia) presented “‘The Only Woman in the Courtroom’: Constance Baker Motley and Twentieth-Century Struggles for Equality,” a paper drawn from a new project using Motley to de-center traditional narratives of civil rights lawyering and feminism.  Raised in poverty, Motley worked at the NAACP Legal Defense Fund for 20 years, confronting hostility in southern courtrooms both because she was black but also because she was female. Yet, the biggest “valley” in Motley’s career occurred in 1961 when Thurgood Marshall passed her over for LDF director, appointing Jack Greenberg instead.  Suspecting gender-bias, Motley became a champion for sex equality for the remainder of her career.  As a district court judge, she fought male efforts to remove her from gender discrimination claims, successfully pressured Sullivan & Cromwell to support affirmative action, and opened the New York Yankees’ locker room to women.  As public outrage ensued, Motley defiantly responded “let them wear towels.” 

Sophia Z. Lee (University of Pennsylvania) presented a paper entitled “More than a Hamburger: The Labor Roots of the Sit-In Cases,” showing how claims to lunch counters resonated with earlier workplace demonstrations both involving constitutional assaults on a business’s private status and concomitant efforts to expand the notion of state action.  Central to this story was Archibald Cox, solicitor general at the time who helped shape the outcome of the cases by arguing for conservative readings of the state action doctrine.  Animating Cox’s approach, however, was not simply a traditional interest in property rights, but a more intriguing concern for labor’s rights.  A firm believer in collective bargaining, Cox feared that an over-expansion of the state action doctrine might lead to over-regulation of unions. 

Serena Mayeri (University of Pennsylvania) presented a paper entitled “Rethinking Legal Feminism, Race, and Civil Rights in the 1970s,”  showing how sex equality claims often began as combined gender/race claims, only to have race fall out as cases wound their way through the appellate process.  To illustrate, Mayeri focused on Andrews v. Drew School District, a 1976 case brought by Katie Mae Andrews, a black unwed mother who had been denied a teachers’ aid position in Drew, Mississippi.  While the Drew School District called known segregationists to testify against Andrews, lawyers for the plaintiff called Kenneth B. Clark and Fannie Lou Hamer, both icons of civil rights.  Hamer charged that the school superintendent was repressing blacks by denying employment to unwed mothers.  Clark emphasized the sexual subordination of women, calling Drew’s policy part of a long history of gender discrimination.  Though the Supreme Court dismissed the case, the litigation story nevertheless underscores that many of the plaintiffs in sex equality cases were blacks suffering coded forms of discrimination, yet the racial roots of such cases became obscured as litigators and courts shifted the nexus of the claims away from race and towards sex. 

Nancy McLean (Northwestern University) provided commentary, noting that Motley’s story illustrates how the “threatened loss of new possibility (in this case Marshall’s choice of Greenberg) can be “a radicalizing force,” that Cox’s support for collective bargaining (a defeat for labor) indicated limited sympathy for labor’s rights, and that we cannot draw conclusions of advocates convictions from the judges’ rulings on their cases, a lesson illustrated clearly by Andrews v. Drew.

Curott and Stringham on the Rise of Government Law Enforcement

Nicholas Adam Curott, George Mason University, and Edward Peter Stringham, Fayetteville State University School of Business and Economics, have posted The Rise of Government Law Enforcement in England, which is forthcoming in The Pursuit of Justice: Law and Economics of Legal Institutions, ed. Edward J. Lopez, ed. (Independent Institute, 2010). Here is the abstract:

Nearly one thousand years ago, before the existence of centralized government police and courts in England, disputes were settled in a decentralized and in many ways voluntary manner. When disputes occurred, private groups would ask the wrongdoer to pay restitution to the victim, and if the wrongdoer refused he would be viewed as an outlaw. Over time, however, the kings saw the court system as a potential source of revenue. Rather than having the full restitution go to the victim, they declared that fines must be paid to themselves for more and more offenses because they violated the King’s Peace. After the Norman conquest of England in 1066 A.D., restitution was completely replaced by a system of fines and punishments. The history of medieval England demonstrates, contrary to common belief, that law and order can be provided in a decentralized manner. It also demonstrates that government law enforcement in England was not created for public interest reasons, but to raise revenue for the kings.

Cromwell Fellowship Awards to Holdren, Pashman, Rao, Tani

Another announcement at this year's meeting of the American Society for Legal History was the winners of the fellowships awarded annually by the William Nelson Cromwell Foundation. In recent years, the Foundation has awarded three to five fellowships, in amounts up to $5,000, to support research and writing in American legal history, with preference for early-career scholars. The Society's Committee on Research Fellowships and Awards reviews applications and makes recommendations to the Foundation.

Howard Pashman and Karen Tani

This year fellowships went to:

• Nate Holdren, Ph.D. candidate (History), University of Minnesota, to support a project titled “‘The Compensation Law Put Us Out of Work’: Workplace Injury Law, Medical Examinations, and Disability in the Early Twentieth Century United States.”

• Howard Pashman, J.D./Ph.D. candidate (History), Northwestern University, to support a project titled “Enforcing the Revolution: Law and Politics in New York, 1776-1783.”
  

• Gautham Rao, assistant professor, Rutgers-Newark/New Jersey Institute of Technology Federated Department of History, for a project titled “At the Water’s Edge: Politics and Governance in Revolutionary America.”

• Karen Tani, Ph.D. candidate (History), University of Pennsylvania, Samuel I. Golieb Fellow, New York University School of Law, to support a project titled "Welfare Rights Before the Movement: Public Assistance Administration and the Rule of Law, 1938-1961."
  

* Language comes from the ASLH website.

Cromwell Book Prize to Margot Canaday

The American Society for Legal History is fortunate to announce every year the winner of the William Nelson Cromwell Foundation Cromwell Book Prize ("$5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar"*). This year's award went to Margot Canaday (Princeton University) for The Straight State: Sexuality and Citizenship in Twentieth Century America (Princeton University Press, 2009).

The ASLH Cromwell Prize Advisory Committee, which reviews books and makes recommendations to the Foundation, issued the following citation:

Canaday’s book will surely become a standard source for anyone who wants to understand the regulation of sexual orientation during the twentieth century. Her description of the symbiotic relationship between the rise of the bureaucratic state and the growth of the law on sexual status, as revealed through an exhaustive examination of military, immigration, and welfare policy, is compelling, original and illuminating.

* Language comes from the ASLH website

Cromwell Dissertation Prize to Anna Leah Fidelis T. Castaneda

Another big announcement at this year's meeting of the American Society for Legal History was the winner of the Cromwell Dissertation/Article Prize. This is one of several awards given annually by the William Nelson Cromwell Foundation ("established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States."*)

The award of $2500 is "for dissertations accepted in the previous calendar year or for articles of comparable aspiration published in the previous calendar year in the general field of American legal history (broadly conceived), with some preference for those in the area of early America or the colonial period."* The Society's Cromwell Prize Advisory Committee reviews materials and offers recommendations to the Foundation, which makes the final decision.

This year's award went to Anna Leah Fidelis T. Castaneda, for "Creating Exceptional Empire: American Liberal Constitutionalism and the Construction of the Constitutional Order of the Philippine Islands, 1898-1935."

The Committee's citation reads:

This dissertation is a groundbreaking study of the foundational period of the modern Philippine state. Drawing on an extraordinary range of American and Philippine sources, Castañeda shows how the introduction of liberal and progressive constitutional institutions to a colonial context–separated powers, expanded administrative discretion, even democratic principles of governance--actually facilitated authoritarian rule, reinforcing local patterns of class domination while also smoothing the path for powerful foreign economic interests to control development. Imagined and executed on a large scale, this study makes an original and extraordinary contribution both to Filipino legal history and to the study of the legal machinery of colonialism and empire more generally.

* Language is from the ASLH website.

Image credit

White on the Law in American History

G. Edward White, University of Virginia School of Law, has posted a full draft of the first volume of his forthcoming book Law in American History. (This volume is subtitled From the Colonial Years through the Civil War.) Here is the abstract:

The book’s purpose is to explore the relationship of law to some central themes of American history from the initial colonial settlements through the conclusion of the Civil War. The themes singled out in the book include the displacement of Amerindian tribes from land they occupied on the North American continent; the emergence of agricultural householding as the principal form of family life in colonial British America; the detachment of the American colonies from the British Empire and the theories of sovereignty and grievance that accompanied that development; the evolution of American forms of government from the Articles of Confederation to the Constitution; the emergence of the Supreme Court of the United States as a major institution of American grievance; the westward movement of enterprise and population in the decades between the 1830’s and the 1850’s; the central role of slavery and westward expansion and the gradual dissolution of the Union during these decades; and the role of the Civil War as a culmination of the central themes of early American history and as a force in transforming the subsequent course of that history.

Introduction

Chapter 1
The Colonial Years

Chapter 2
Law and the Conditions of Agricultural Household Life, 1750-1800

Chapter 3
Law and the Founding of the American Republic I: Toward Independence and Republican Government

Chapter 4
Law and the Founding of the American Republic II: From the Articles of Confederation to the Constitution

Chapter 5
The Supreme Court Emerges

Chapter 6
Law and Entrepreneurship, 1800-1850

Chapter 7
Law and the Dissolution of the Union I: The Political Parties, Congress, and Slavery

Chapter 8
Law and the Dissolution of the Union II: Slavery, the Constitution, and the Supreme Court

Chapter 9
The Civil War: Setting the Stage

Chapter 10
The Civil War: Legal Issues

Sutherland Prize to Emily Kadens

This year's ASLH Sutherland Prize went to Emily Kadens, University of Texas Law School, for "The Puzzle of Judicial Education: The Case of Justice William De Gray," 75 Brooklyn Law Review 143 (2009). The Sutherland Prize is named in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually to the person or persons who wrote the best article on English legal history published in the previous year. Here's the Sutherland Committee's prize citation:

In this article Professor Kadens presents a cogent analysis of how an excellent but little-known judge, William de Grey, equipped himself to perform his office. De Grey was appointed Chief Justice of the Court of Common Pleas in January 1771, a position he held for ten years. Having had little experience in Common Pleas during his years in practice, de Grey promptly began to buy reference books. Using de Grey’s accounts, held by the Norfolk Record Office, Professor Kadens reconstructs de Grey’s book purchases and shows how he used his expanding library to shape the first stage of his judicial education. She then explains in careful detail how de Grey creted a two-volume encyclopedic bench book by interleaving pages of his own notes with the pages of the 1772 edition of Francis Buller’s Introduction to the Law Relative to Trials at Nisi Prius. The Norfolk archives have only one volume of de Grey’s bench book, but Professor Kadens constructs a persuasive description of the full two-volume compilation and of de Grey’s extensive annotations. The marginalia, she states, “show that de Grey sought to have at his fingertips the various types of information that would help him decide questions of law, give explanations to juries, and engage with counsel.”

Professor Kadens’ article is based upon meticulous documentary research and is a splendid example of the enhanced historical understanding that can be gained through the patient archival work of the legal historian.

Random Roundup

A few items of interest from around the web:

• Patrick S. O'Donnell, Department of Philosophy, Santa Barbara City College, has posted an extensive bibliography, "The World of Work & Labor Law," here. It includes an very substantial historical section.
• Timothy S. Huebner, Rhodes College, has posted the Fall 2010 edition of his New Books in U.S. Constitutional/Legal History for H-Law here.
• Harvard Law School has posted a videorecording of a book launch for Noah Feldman's Scorpions, in which the NPR correspondent Christopher Lydon interviews the author. (Washingtonians can catch the author at the Politics and Prose bookstore on November 29.)
• Inside Higher Ed has posted a short interview with the three editors of Contesting Archives: Finding Women in the Archives, a recent release from the University of Illinois Press. You can read the interview here.
• The program for the recent Conference on Empirical Legal Studies has (as the Legal Scholarship blog noted) a nice montage of Yale's legal realists. How many can you name without scrolling down?
  

Reid Prize to Catherine Fisk for Working Knowledge

At the ASLH meeting in Philadelphia, Catherine Fisk, University of California, Irvine, was awarded the John Phillip Reid Book Award for Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930 (Chapel Hill: University of North Carolina Press, 2010).  The award is for the best monograph that is not the author’s first book, published in English in any of the fields defined broadly as Anglo-American legal history.  Working Knowledge appeared in the ASLH's book series, Studies in Legal History.

Here's the prize citation:

Catherine Fisk’s Working Knowledge is a book of many different virtues.  It takes on a novel question—when, how, and why did corporations come pervasively to own and control the intellectual property created by their employees?—and it brings to bear prodigious primary research, not just in case law but in corporate archives as well.  By combining these two types of sources, among others, Fisk delivers a compelling story of doctrinal development—especially in the areas of patent, copyright, and trade secrets--but also grounds that story in a textured history of the internal practices and cultures of DuPont, Eastman Kodak, and other companies known for innovation in the early 20^th century.  Moreover, Fisk brings together a range of literatures that do not always make contact with each other: the literatures of legal history, of business history, of labor history, and of cultural history, among others.  Adroitly deploying all of this research, she delivers a highly readable narrative that exposes the mutability of historical perspectives on identity and creativity.  She offers us both a big, satisfying narrative arc and a collection of smaller arguments and speculations.  The big story takes us from an early republic in which creativity and intellectual property rights were presumed to lie in the independent man that was idealized by free labor ideology (even when that independent man was an employee for the moment) to a 20^th-century America where the ideals of secure corporate employment and consumer satisfaction encouraged identification of employees’ innovations—and thus the copyrights and patents that went with them--with the corporation itself.  Fisk’s many subordinate narratives and arguments enrich the story further, leading the reader finally to lament the absence of Catherine Fisk’s name from the book’s copyright notice, where only that of the publisher appears.

Surrency Prize to Dan Ernst

The ASLH Surrency Prize for the best article from the previous year in the Law and History Review has been awarded to Daniel Ernst for “The Politics of Administrative Law: New York’s Anti-Bureaucracy Clause and the O’Brian-Wagner Campaign of 1938.” Here's the Surrency Committee's prize citation:

President Franklin D. Roosevelt's response to the Great Depression-- the New Deal-- ushered in a new era in American law. As happens when any profound social transformation is put in motion, individuals and groups within American society quickly saw themselves as either potential winners or losers in the emerging new world. Those who considered themselves powerful enough to take actions to support the transformation-- or stop it-- mobilized. In vivid prose, and with great clarity and intelligence, Daniel R. Ernst's “The Politics of Administrative Law: New York’s Anti-Bureaucracy Clause and the O’Brian-Wagner Campaign of 1938” describes and analyzes how this process unfolded in the Empire State during the late 1930’s. Ernst identifies “two institutions, the political party and the legal profession” as having played leading roles in shaping the “peculiar way which administrative agencies were incorporated into the American polity.” He complicates the traditional narrative about reactions to the creation of modern administrative law, a narrative that casts the raging battles as a straight forward “clash of interests or ideas”. In Ernst’s able hands we see instead that the “emergence of the administrative state” caused sharp divisions within political parties and the legal profession, cleaving both institutions into factions that were often led into alliances that, on the surface, appear anomalous.  Thus, the New Dealer par excellence, Felix Frankfurter, worked assiduously (and successfully) with John Foster Dulles, a vociferous opponent of the New Deal, to defeat the Anti-Bureaucracy Clause, a measure designed the curb the power of administrative agencies. And John Lord O’Brian, who ran against the great New Dealer Robert Wagner, could vigorously support the very powerful Tennessee Valley Authority while railing against the National Labor Relations Board as the prime culprit in the erosion of “due process in the midst of a growing administrative state.”  Although O’Brien lost, his critique of the NLRB resonated with voters, suggesting that political actors focused on a relatively technical question of administrative law could involve members of the public in important constitutional matters and that citizens would respond with their votes. Presenting a nuanced definition of “interests” and a thorough description of the “ideas” in play, Ernst helps us to see how these early battles resulted in the “judicialization of administrative procedure” that we know today.  Extensively and creatively researched, “The Politics of Administrative Law” tells us much that we need to know about a fascinating moment in American history.

Dan had this to say about the article in an LHB post:

I wrote the paper for a conference in honor of Stanley N. Katz (my dissertation adviser) held at Woodrow Wilson School at Princeton University in February 2007. Because of the occasion, I thought of the first thing of his I ever read, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” Perspectives in American History 5 (1971): 485–518, which John Langbein put in my hands as I was trying to decide where to do graduate work in history after completing my J.D. I recall being impressed by the article, as well as by Katz's Newcastle’s New York (1968), and off I went.

In the years since, I never forgot the essay....

Dan continues here.  

ASLH Election Results

Election results for the Board of Directors and Nominating Committee were announced at the American Society for Legal History annual meeting. Winners are:

Board of Directors
Tomiko Brown-Nagin
Lyndsey Campbell
David Lieberman
Charles Zelden

Graduate Student member of the Board of Directors
Greg Ablavsky


Nominating Committee
James Oldham
Richard Ross

Congratulations to all!

Rape & Civil Rights History, the original Tea Party, TR, and more in the book pages

AT THE DARK END OF THE STREET: Black Women, Rape, and Resistance: A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power by Danielle L. McGuire is "a story of courage," writes Sheri Parks in the Washington Post.  "In the segregated American South, a white man could rape a black woman with little fear of legal or social recourse, and black women lived in a persistent state of apprehension. Rape was used as a weapon of terror in the subjugation of black women, their families and whole communities."  Although rape victims were threatened if they reported these crimes,

The women did tell, again and again. Many went to police before they went to the hospital and were supported by families and friends who corroborated their stories, at great risk. White control of the justice system meant that relatively few men were ever arrested and many fewer were ever convicted. McGuire reports that between 1940 and 1965, only 10 Mississippi white men were convicted of raping black women and girls. Although rape was a capital offense in many Southern states, no white man was ever executed for raping a black woman.

Yet black women's resistance grew into a social movement. Years before the Montgomery bus boycott, a coalition of poor and middle-class black women raised money; formed organizations; wrote, mimeographed and distributed fliers; attended trials; and boycotted the businesses of rapists. These actions created the strategies and alliances that the same women would use later to extend their rights. In fact, the civil rights movement was a continuation of the anti-rape movement; the early college sit-ins, largely by women, came in response to sexual violence, and Rosa Parks was a central figure well before she refused to give up her seat on the bus.

Continue reading here.  I just read the prologue of this book on Amazon.com, and it is so terrifying, well written and important that this is the one of those books that, once you pick it up, you won't be able to stop reading.


DEFIANCE OF THE PATRIOTS: The Boston Tea Party & the Making of America by Benjamin L. Carp is reviewed in the Boston Globe.  Michael Kenney writes:

No question that the Boston Tea Party was a trigger for the Revolution, writes Benjamin L. Carp in his sterling account of the event. But, argues Carp, a professor of history at Tufts University, it was not the spontaneous citizen uprising of historic myth. After the success of the Revolution, it vanished from public memory until well into the 19th century.

Carp’s account of how the crisis unfolded is particularly good at illustrating the politics that pitted the “friends of government,’’ led by Governor Thomas Hutchinson, against the Sons of Liberty, including Samuel Adams and Joseph Warren. His account details the efforts Boston’s patriot leaders made to defuse the looming crisis over the British imposition of a tax on tea, a crisis that would heighten with the arrival of cargoes of tea.

Read the rest here.

Colonel Roosevelt by Edmund Morris is taken up on the Los Angeles Times.  Nicholas Basbanes writes:

TR was so secure in what he had accomplished...that he eschewed the honorific "Mr. President" in retirement, preferring instead that everyone address him as "Colonel Roosevelt," the rank he had earned as commander of a volunteer cavalry regiment during the Spanish American War — and the title that Edmund Morris uses for the third and concluding volume of an exemplary biography begun more than three decades ago with "The Rise of Theodore Roosevelt," winner in 1980 of a Pulitzer Prize; "Theodore Rex," the 2001 installment, focused on his tenure as 26th president of the United States.

But as the cascading events of a world in tumult played out, the final 10 years of Roosevelt's life were anything but anticlimactic, certainly as interesting as those that preceded them, and almost as consequential.

For Basbanes, Morris's "masterful" trilogy "can rightfully take its place among the truly outstanding biographies of the American presidency."  More here.

Also reviewed this week: WHEN THEY COME FOR US, WE'LL BE GONE: The Epic Struggle to Save Soviet Jewry by Gal Beckerman in the Washington Post;  UNBROKEN: A World War II Story of Survival, Resilience, and Redemption by Laura Hillenbrand in the New York Times; and ALL THE DEVILS ARE HERE: The Hidden History of the Financial Crisis by Bethany McLean and Joe Nocera, also in the NY Times.

Call for ASLH Bloggers

Guest posts on panels at the upcoming meeting of the American Society for Legal History would be most welcome.  If you would like to "claim" a panel to blog about, please do so by leaving a comment.

Excellent posts from last year are here, here, here, here, and here.

Update:    If you're thinking about contributing, here are a few details:

• no tech abilities needed:  you send us the post, and we put it up for you.
• ideal length:  under 1000 words.  But if you have more to say, we can accommodate longer posts.
• while posts on panels are most common, ASLH posts on other topics are also welcome (e.g. a post from a first-timer about what the meeting is like).
• for timing:  there's no firm deadline, but it's best to send your post as soon as you can, and certainly within a week.

Graduate student networking at ASLH

Over on the blog's facebook page, Clara Altman has started a discussion thread for graduate students attending the ASLH. Take a peek if you're new to the conference and are looking for tips, or if you're a repeat attendee looking to reconnect with friends or acquaintances.

Magliocca on the Gold Clause Cases

Gerard N. Magliocca, Indiana University School of Law-Indianapolis, has posted The Gold Clause Cases and Constitutional Necessity. Here is the abstract:

This Article presents a case study of how constitutional actors respond when the rule of law and necessity are sharply at odds.

In 1935, the Supreme Court heard constitutional challenge to the abrogation of "gold clauses" in contracts and Treasury bonds. Gold clauses guaranteed that creditors would receive payment in gold dollars as valued at the time a contract was made. Due to the deflation that followed the Great Depression, this meant that debtors were being forced to pay back much more than they owed originally. To stop a looming wave of bankruptcies, Congress passed a Joint Resolution declaring all gold clauses null and void.

Following oral argument, President Franklin D. Roosevelt was concerned that the Court would invalidate the Joint Resolution. He concluded that he could not accept this result, and thus drafted a Fireside Chat announcing that he would not comply such a decision. This unprecedented statement, which invoked the New Testament and necessity as the grounds for rejecting the Court's decision, has never been closely analyzed until now.

In the end, the Court did not hold that the gold clauses must be enforced. With respect to Treasury Bonds, however, a plurality of the Justices concluded that the Joint Resolution was unconstitutional but that the bondholders were not entitled to relief. This slippery reasoning (in Perry v. United States) harkened back to Chief Justice Marshall's approach in Marbury v. Madison--another case in which the Court was confronted with presidential defiance.

By recounting how President Roosevelt and Chief Justice Hughes--the author of Perry--sought to defuse (or, in some cases, exacerbate) the gold crisis, the dark arts of constitutional will be exposed.

Yoo on George Washington and Executive Power

George Washington

George Washington and Executive Power is a new paper by John Yoo, University of California at Berkeley School of Law.  The paper is from Yoo's new book, Crisis and Command: Executive Power from George Washington to George W. Bush (2010).  Here's the abstract:

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered.

Washington filled these gaps with a number of foundational decisions - several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so that there would be no confusion about his responsibility and accountability. He took the initiative in enforcing the law and followed his own interpretation of the Constitution. He managed diplomatic relations with other countries and set the nation’s foreign policy. At the end of his two terms, the Presidency looked much like the one described in The Federalist Papers.

None of this was foreordained. Washington could have chosen to mimic a parliamentary system or a balanced government with executive branch officials drawn from an aristocratic social class. He could have considered the Presidency as Congress’s clerk, committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states. But instead he read his constitutional powers broadly to lead the nation through its first growing pains; restore the country’s finances; keep the nation out of a dangerous European war; open the West to American expansion; and see the Constitution through the appearance of the first political parties.

Kwall on Creativity and Cultural Influence in Early Jewish Law

Creativity and Cultural Influence in Early Jewish Law has just been posted by Roberta Rosenthal Kwall, DePaul University - College of Law.  It is forthcoming in the Notre Dame Law Review.  Here's the abstract:

Human creativity thus lies at the heart of Judaism, both from a theological and a legal standpoint. Therefore, there is much scholars who are interested in the creative process from a secular standpoint can learn from the Jewish tradition. On the secular side, legal scholars currently are turning their attention to analyzing law within cultural terms because political “culture” struggles are being waged increasingly on legal turf. This pairing of law and culture requires clear articulations of what culture means and what the relationship between law and culture should look like. This approach enables us to transcend the standard inquiries of what the law is, and what we want it to be, by asking instead what the law makes us. Among those scholars who invoke cultural analysis, there is a general sense that law and culture should not be viewed as two distinct entities but rather as embodiments of one another. When law is seen as culture and culture as law, it becomes logical to discuss how to interpret law in cultural terms.

Jewish religious law, known as halakhah, has been influenced by cultural developments both within the Jewish community and outside of it. Cultural analysis reminds us that cultures are not hermetically sealed but continuously interact with the world around them. This reality is especially true with respect to Jewish law given that the history of the Jewish people is such that they have been living in foreign cultures in the Diaspora for thousands of years. This Article illustrates how these cultures, generally and particularly with respect to Hellenism, have exerted an enormous influence on the development and application of Jewish law in its formative period. It adopts a cultural analysis perspective, thus positing that Jewish culture and Jewish law are inextricably intertwined. Further, it argues that from an early stage in the development of Jewish law, its inherent creativity derives from its confrontation with outside cultural influences.

Part I of this Article examines the analytical relationship between law and cultural analysis, and establishes the important symbiotic relationship between law and culture. Part II initially explores the fundamental tenets of the Jewish legal system in the law’s formative years. It then investigates the influence of the surrounding cultures, particularly the Hellenistic influence, on the development of early Jewish law. Throughout this Part, the Article develops the argument that the need for adaptation to the surrounding environment insured the inherent creativity of the law’s development and application. Part III contrasts the situation involving American Jewry in the twenty-first century with earlier times. It posits that the familiar and successful pattern of acculturation that historically insured a creative Jewish legal system is no longer viable in the sociological milieu in which most American Jews live.

Phillips-Fein on "the roots of the conservative grievance industry"

Over at Bookforum, historian Kim Phillips-Fein (New York University) offers her take on four recent books that, in different ways, attempt to capture the modern conservative movement: David Courtwright's No Right Turn: Conservative Politics in a Liberal America; Dominic Sandbrook's Mad as Hell: The Crisis of the 1970s and the Rise of the Populist Right; Michael Reagan's The New Reagan Revolution: How Ronald Reagan's Principles Can Restore America's Greatness; and J. R. Dunn's Death by Liberalism: The Fatal Outcome of Well-Meaning Liberal Policies. Courtwright and Sandbrook are historians; Reagan is President Ronald Reagan's adopted son; Dunn is a novelist, editor, political commentator, and, to use Phillips-Fein's words, "intellectual descendant of Friedrich von Hayek."

Phillips-Fein opens the essay with a provocative question: Has anyone come closer than Hofstadter did at mid-century to nailing down modern conservatism?

The late Richard Hofstadter famously described "pseudo-conservatives" as dwellers in an unreal world, practitioners of a "paranoid style" of politics. They were, he argued, downwardly mobile lost souls, at sea in the mass-consumption economy of midcentury America, who turned their economic rage into an irrational attack on the intellectuals and liberals they believed responsible for their problems. They were victims of the American dream who did not know "who they are or what they are or what they belong to or what belongs to them." Out of their desperate search for status came a striking penchant for a Manichaean politics of good and evil, which scripted the elitists of Washington as the insatiable persecutors of virtuous small-town America. Ever since Hofstadter wrote his essays, historians have been criticizing his dismissive tone and his interpretation of conservatism as something akin to mental illness; in retrospect, Hofstadter's detractors have argued, he erred badly by making the right seem a declining force in American life at the very moment it was poised to sweep into power. But for all the obvious condescension in Hofstadter's argument, he captured, as few others have, the sheer strangeness of the conservative movement, and the way its rage manages to concoct a shadow America always on the brink of revolution or worse. Have modern scholars been able to do much better?

Phillips-Fein ends on another provocative note -- by suggesting that no historical account has explained adequately the trajectory and tenor of today's conservative movement, a movement that, in her view, is both more "mainstream" and more extreme than its predecessors: "To get a sense of how today's conservative movement has transformed the fringe vision of a rapacious, violent state that Hofstadter chronicled at midcentury into a mainstream political refrain, it's not enough to read about the right," Phillips-Fein concludes, "you've got to go straight to the source.

You can read the entire review here.

Image credits: Hofstadter; No Right Turn.

Walker reviews Tsai's "Eloquence and Reason"

H-Law recently circulated a review of Robert Tsai's Eloquence and Reason: Creating a First Amendment Culture (New Haven: Yale University Press, 2008). The reviewer, Anders Walker (St. Louis University School of Law), describes the book as a "nuanced, novel, and compelling" interpretation of First Amendment jurisprudence, and "[p]erhaps the only study of American constitutional law to adopt an explicitly Geertzian approach."

Here's an excerpt of the review:

More than presenting simply a history of litigation strategy or Supreme Court politics, Tsai focuses on language, positing that freedom of speech is “a distinctive way of life” and “a sophisticated system of devotional practices,” not unlike the “webs of signification” that Clifford Geertz associated with culture (pp. 1, 6n13). Animating free speech culture, argues Tsai, are certain inspired rules of rhetoric, or what sixteenth-century political theorist Thomas Wilson called “precepts of eloquence.” Such precepts, continues Tsai, not only “set fire to reason” as Oliver Wendell Holmes famously noted, but also elevate constitutional discourse from mere assertions of brute power to discursive constructs that simultaneously define Americans even as they bind them, ruler and ruled alike (pp. 12-13).

You can read the rest here.

As a side note, how many of you now create websites for your books? In researching this post, I noticed that Tsai chronicles his book's "life" here.

Legal History at Iowa Law

The Iowa Advocate, the alumni magazine of the University of Iowa College of Law, recently posted on-line a notice of the launching of a Program in Law and History at the school. The announcement commences:

The University of Iowa has a proud tradition of scholarship and teaching in the field of legal history. Among the many legal historians who have taught at the University of Iowa are Professors Percy Bordwell (d. 1970), Donald Sutherland (d. 1986), and Henry Horwitz (emeritus 2004). Building on this tradition, the College of Law has founded the Program in Law and History, with the aim of bringing together faculty and students to foster research and teaching at the intersection of law and history. Four faculty with sustained scholarship in legal history are at the center of the new Program. In alphabetical order, they are: Thomas P. Gallanis, recently hired as the N. William Hines Chair in Law; Herbert Hovenkamp, the Ben and Dorothy Willie Chair in Law; Linda Kerber, the May Brodbeck Professor in Liberal Arts and Sciences; and Lea VanderVelde, the Josephine Witte Chair in Law. Gallanis and Hovenkamp have secondary appointments in the Department of History, and Kerber has a secondary appointment in the College of Law.

More

Latinos and the Law: Recent Review Essays

In my work, I've looked at how Mexican Americans living along the U.S.-Mexico border in the nineteenth century interacted with the newly-imposed American legal system. Since I began that inquiry in graduate school, scholarship in the area of Latino legal history has expanded quite dramatically. Current issues of the Journal of American History and the Journal of Legal Education attest to that expansion. Both have special content dedicated to recent work in Latino history, including some discussion of legal history. In a section of the September 2010 issue of the JAH entitled "Latino History: An Interchange on Present Realities and Future Prospects," ten scholars of Latino history discuss the state of the field. The issue also contains reviews of ten recent books in this area. Of particular interest to legal historians will be the reviews by Grace Peña-Delgado of Patrick Ettinger's Imaginary Lines: Border Enforcement and the Origins of Undocumented Immigration, 1882—1930, and one by Eduardo Obregón Pagán of Cynthia E. Orozco's No Mexicans, Women, or Dogs Allowed: The Rise of the Mexican American Civil Rights Movement.

Orozco's book is also reviewed, along with three others, in an essay by Michael A. Olivas in the November issue of the Journal of Legal Education. In "The Arc of Triumph and the Agony of Defeat: Mexican Americans and the Law," Olivas looks at what he calls "an understudied and fascinating topic: the litigation for Mexican American educational and civil rights following WWI and WWII." He examines Orozco's work as well as Richard R. Valencia's Chicano Students and the Courts: The Mexican American Legal Struggle for Educational Equality; Philippa Strum's Mendez v. Westminster: School Desegregation and Mexican-American Rights; and Ignacio M. Garcia's White But Not Equal: Mexican Americans, Jury Discrimination, and the Supreme Court. (The link to the table of contents of the issue is here; the full text of the essay is here.)

Triger on Golda Meir and the Beginnings of the Pre-State Women's Movement

Golda Meir

'I Have Never Joined the Women's Liberation Movement': Golda Meir and the Beginnings of Pre-State Women's Movement is a new essay by Zvi H. Triger, The College of Management Academic Studies (COMAS) School of Law.  The essay will appear in ONE CONSTITUTION AND ONE LAW FOR MAN AND WOMAN: WOMEN, RIGHTS AND LAW IN MANDATORY PALESTINE, Eyal Katvan, ed., Bar Ilan University Press, 2010.  While the topic is fascinating, the abstract is just a sentence, and the essay itself is in Hebrew.  Here's the abstract:

This article examines Golda Meir's complex relationship with the Jewish Women's Liberation Movement in Mandatory Palestine.

Note: Downloadable document is in Hebrew.

Boyer on Prest on Blackstone

Allen D. Boyer has just published Law's Architect: William Blackstone: Law and Letters in the Eighteenth Century, a review essay of Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth Century. It appears in 22 Yale Journal of Law & the Humanities 127 (2010). Here's the abstract:

This fine biography of Sir William Blackstone displays both Wilfrid Prest's command of English legal history and his ability to tell the dancer from the dance. For more than two centuries now, Blackstone the jurisprudent has been obscured by Blackstone the law-book. Behind the lucidity and balance of Blackstone's Commentaries, Prest reveals the pompous, energetic man who penned them: an orphan, a scholar, a forceful academic politician, a shrewd estate manager, and, finally, when his ship came in, a thoughtful and progressive judge. Prest has also overcome the temptation to dwell on his subject's times rather than his life. To our continuing discussion of Blackstone, this book restores the human element. The William Blackstone who appears in these pages is a man to be taken on his own forceful terms.

Pfander and Hunt on Private Bills and Govermental Accountability

James E. Pfander, Northwestern University School of Law and Jonathan L. Hunt, Mayer, Brown & Platt, have posted Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic. It is forthcoming in the New York University Law Review and may usefully be read alongside Jerry Mashaw's articles on the "lost century" of administrative law, here, here, here, and here which I recently had the pleasure of reviewing for a conference on the forthcoming book manuscript hosted by Timothy Lytton at the Albany Law School. Here is the abstract for Pfander's and Hunt's paper:

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued this avenue of indemnification successfully. As a result, the ultimate loss associated with that officer’s good faith effort to enforce federal law fell on the government rather than on the officer himself.

This paper fills out the picture of government accountability in the early nineteenth century by clarifying the practice of congressional indemnification. After identifying cases in which officers sought indemnity from Congress through a petition for private relief, we examine the way official liability, as administered by the courts, interacted with private legislation, as administered by Congress, to shape the incentives of government officers to comply with the law. We find that a practice of relatively routine indemnification took the sting out of sovereign immunity, a doctrine that key players – including James Madison and John Marshall – treated as thinly formalistic. We also find that Congress assumed responsibility for deciding when federal officers were entitled to indemnity for acts taken in the scope of employment.

The antebellum system thus contrasts sharply with modern government accountability law. Jurists today tend to regard sovereign immunity as a barrier to relief, rather than a principle of forum allocation that preserves legislative primacy in the adoption of money bills. Moreover, courts today often refrain from deciding the question of formal legality in an effort to strike a proper balance between the victim’s interest in accountability and the official’s interest in immunity. Whatever the wisdom of the resulting body of qualified immunity law, the doctrine reflects judicial control of matters that the early republic had assigned to the legislative branch.

Bush, Decision Points, and more in the book pages

Updated
"The first great American autobiographies both appeared in the 19th century, were born of conflict and written by public men — "The Life and Times of Frederick Douglass" and "The Personal Memoirs of Ulysses S. Grant," writes Tim Rutten in the Los Angeles Times.  "Since then, what we might call the publishing-industrial complex has turned the reminiscences of our public men and women into a never-ending stream."  Decision Points by George W. Bush is the latest addition to this genre.  "Where does Bush's account of his astonishingly eventful eight years rank in such company? Probably far higher than many of his detractors expected," Rutten writes.

Writing in the Washington Post, Jonathan Yardley finds the book "competent, readable and flat. The voice in which it is written is occasionally recognizable as that of George W. Bush -- informal, homespun, jokey -- but more often it's the voice of a state paper, impersonal and dutiful."

Not so fast, writes Anis Shivani in Huffington Post: 

Reviews in the Los Angeles Times, Washington Post, and New York Times treat Bush respectfully -- much as a Machiavellian prince would desire to be treated after going into retirement; too often reviewers play Bush's game by humanizing him, or treating him with humor, or safely relegating him to history. But Bush truly was a transformative president, among the rare few, and we deceive ourselves -- as many in the commentariat continue to do, as with Maureen Dowd's light-hearted mockery of him -- if we consider him an anomaly, a rare eruption of a virus that won't repeat itself. This book's ideas will have resonance with a large segment of the population, and a notable number among the elites; we need to study Decision Points (Crown, Nov. 9) seriously, as onerous a task as it may be, if we are to make sense of the perpetual aura of crisis that has enveloped America, and why we seem to be stuck on a self-destructive path.

Continue reading here.

DRIVEN WEST:  Andrew Jackson and the Trail of Tears to the Civil War by A. J. Langguth is reviewed by Jon Meacham for the New York Times.  According to Meacham, the author argues that

the passage of the Indian Removal Act of 1830, Jackson’s breaking of Indian treaties and his support of the Southern states, especially Georgia, in resisting a Supreme Court’s ruling in favor of the Cherokees were “salvos . . . fired in the nation’s first civil war” — a war that gave us the next, more cataclysmic one three decades later. But the horrors of the Trail of Tears did not take America from the 1830s to the horrors of the Civil War.

The author "rightly identifies the struggle between central and state power as the defining American drama, and the battle over Indian removal is a much neglected story that he brings to interesting life." However "the narrative itself does little to advance or even articulate in any sustained way the argument implied in the subtitle: that Jackson’s removal policy led to the Civil War."  Continue reading here.

Also reviewed in the New York Times is THE KILLING OF CRAZY HORSE by Thomas Powers.  Other books reviewed this week: Cleopatra: A Life by Stacy Schiff in the Los Angeles Times; FACTS ARE SUBVERSIVE: Political Writing From a Decade Without a Name by Timothy Garton Ash in the New York Times; THE CIVIL WAR OF 1812: American Citizens, British Subjects, Irish Rebels, & Indian Allies by Alan Taylor is in the Boston Globe.

Now On-Line: A Rare Jamaican Case Report

Et Seq., the blog of the Harvard Law School Library, announces the availability of a digitized version of its exceedingly rare copy of Notes of cases adjudged in Jamaica, May 1774 to Dec. 1787 (Edinburgh: Printed by Adam Neill and company, 1794). According to the blog post:

As the volume’s prefatory ‘Advertisment’ on pages iii-iv explains, these reports of high court cases are based on “the very full notes of every case that came before” John Grant, a native of Inverness-shire (Scotland), and chief justice of Jamaica’s Supreme Court from 1783-1790. Colleagues had encouraged Grant to publish his notes for their use at court, and after retiring to Edinburgh, Grant began to revise his notebook with that goal in mind. Grant died on March 29, 1793, leaving three quarters of his notes unprinted. The task was picked up and continued by friends and colleagues who saw the work through the press; the volume was published in 1794.

Update: via H-Law we have the following from Linda Sturtz, Professor of History, Beloit College:

There are at least two other copies of John Grant's Notes on Cases: I consulted one at the National Library of Jamaica (Kingston) though they now issue readers with the photocopy version and another at the Inns of Court. In addition, there is a useful article by Mindie Lazarus-Black on this volume of cases. "John Grant's Jamaica: Notes Towards a Reassessment of Courts in the Slave Era," Journal of Caribbean History 27(2) (1993): 144-159.

OAH and LSA awards - deadlines approaching

Every year the Organization of American Historians sponsors or co-sponsors a substantial number of prizes, awards, fellowships and grants. Deadlines for some of the big ones (the Lerner-Scott dissertation prize, the Frederick Jackson Turner Award) have already passed, but others have a December 1 deadline. These will be of particular interest to graduate students

• The Huggins-Quarles Award, given to "one or two graduate students of color to assist them with expenses related to travel to research collections for the completion of the Ph.D. dissertation."

• The Louis Pelzer Memorial Award, for the best essay submitted by a graduate degree candidate. "Essays may deal with any period or topic in the history of the United States. The winning essay will be published in the Journal of American History."

The Law & Society Association also offers a series of prizes and awards every year, and some of the deadlines are fast approaching. Ones that may be of interest include --

• The J. Willard Hurst prize, given annually "for the best work (in English) in sociolegal history published in the previous year." The LSA defines the field of sociolegal history "to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics." Nominations are due December 15, 2010.

• The John Hope Franklin Prize, established in 2010 "to recognize exceptional scholarship in the field of Race, Racism and the Law." Articles published in the two calendar years prior to the award year are eligible. Nominations are due February 1, 2011.

• The Dissertation Prize, awarded "to the dissertation that best represents outstanding law and society scholarship." Nominations are due December 15, 2010.

There are several others, so consult the full list if you have something in mind.

Masur reviews Egerton, Foner, and "Discovering the Civil War"

In the Chronicle of Higher Education, Louis Masur (Trinity College) writes about the spate of books and exhibits commemorating the sesquicentennial of the Civil War. He focuses on Douglas R. Egerton's Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election That Brought on the Civil War (Bloomsbury Press); Eric Foner's The Fiery Trial: Abraham Lincoln and American Slavery (W.W. Norton); and "Discovering the Civil War," a two-part public exhibition at the National Archives and Records Administration. Masur predicts that over the next four years "we will be inundated with reflections and publications."

Why so much interest? Masur believes that the Civil War, perhaps more than any other event in American history, "invite[s] . . . speculation about whether it could have been avoided, or turned out differently." It raises "nettlesome" questions about causation and contingency.

Americans also continue to view the Civil War as transformational. And they are right to do so, Masur suggests. He ends his essay on this note:

In 1873, Mark Twain and Charles Dudley Warner observed that the Civil War had "uprooted institutions that were centuries old, changed the politics of a people, transformed the social life of half the country, and wrought so profoundly upon the entire national character that the influence cannot be measured short of two or three generations." The sesquicentennial will provide a continuing opportunity to try to fathom those changes and to understand how the nation is still challenged by forces unleashed in those uncompromising years.

The piece also includes a useful list of other recent and forthcoming sesquicentennial studies: Donald Stoker, The Grand Design: Strategy and the U.S. Civil War (Oxford University Press); George C. Rable, God's Almost Chosen Peoples: A Religious History of the American Civil War (University of North Carolina Press, forthcoming); David Goldfield, America Aflame: How the Civil War Created a Nation (Bloomsbury Press, forthcoming); and Gary W. Gallagher, The Union War (Harvard University Press, forthcoming).

Hat tip: bookforum
Image credit

Pfander and Birk on Artilce II and the Scottish Enlightenment

James E. Pfander and Daniel D. Birk, Northwestern University School of Law have posted Article III and the Scottish Enlightenment, which is forthcoming in the Harvard Law Review. Here is the abstract:

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

The Struggle for Land in Comparative Early Modern Europe and the Americas

Center for Renaissance Studies of the Newberry Library announces its Symposium on Comparative Early Modern Legal History for 2011, “The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas.” It will be held from 9:00 a.m.–5:00 p.m. on Friday, April 8, 2011. The announcement states:

The Symposium on Comparative Early Modern Legal History gathers under the auspices of the Center for Renaissance Studies at the Newberry Library in Chicago to discuss the comparative legal history of the Atlantic world in the period c. 1492 to 1815. The one-day conference brings together law professors, historians, and social scientists to explore a particular topic in comparative legal history, broadly understood.***

The struggle to possess and control land, both as property and as jurisdictional territory, was central to the formation of early modern European societies as well as their colonial domains. This conference will look at how Europeans and indigenous peoples defined the right to land. We will examine how so-called European expansion influenced the conceptualization of property and territorial jurisdiction and the relationship between them. Conference participants may explore how notions of property and territoriality changed over time; and how colonial needs and the encounter with new cultures reshaped these notions. In what ways did “international competition” and the emergence of an “international law” (to use an anachronism) modify property and jurisdiction? How did economic, social, and political developments influence new ideas and experiences regarding the land? In what ways did these ideas and experiences shape practical strategies for claiming land and asserting rights to govern it and profit from it? We are particularly eager to know whether these encounters encouraged, consciously or not, borrowing between different European legal systems as well as between settlers and indigenous peoples. How was the movement and refashioning of legal knowledge bound up with the movement of peoples and refashioning of modes of control over land? We would like to encourage an interdisciplinary conversation among lawyers, historians, sociologists, geographers, and literary scholars.

A list of speakers and more information are here.

Vermeule reviews Eskridge & Ferejohn on Superstatutes

For some time now, William Eskridge, Jr. (Yale Law School) and John Ferejohn (New York University School of Law) have been writing about "superstatutes." These are laws or series of laws that, according to Eskridge's faculty profile,

(1) seek to introduce or consolidate a norm or principle as fundamental in our polity, (2) over time do “stick” in the public culture even as the norm evolves through a series of debates and even conflicts about its elaboration or specification, (3) such that the super-statute and its normative principle have a broad effect on the law—including effects beyond the four corners of the statute.

Eskridge and Ferejohn's new book, A Republic of Statutes: The New American Constitution (Yale University Press, 2010), expands on and elaborates their theory. The book is the subject of a recent review, by Adrien Vermeule (Harvard Law School), in The New Republic. Here's an excerpt:

William Eskridge and John Ferejohn . . . claim that the United States is a republic of “superstatutes,” which in some sense possess constitutional importance. Eskridge and Ferejohn know a great deal about America’s major statutes, and have put it all between two covers. The book’s ambition is clear, but in many respects it leaves the subject of constitutional statutes murkier than it was before.

Eskridge and Ferejohn start with the indisputable observation that the large-c Constitution of 1789, which can be seen under glass in the National Archives, is only a part—and arguably not a large part—of America’s “working constitution.” The small-c constitution includes a large class of statutes that, they claim, are best understood as constitutional superstatutes. They describe the superstatutory constitution in nine overstuffed chapters, each of which studies statutes, judicial precedents, and history in a given area of public policy. Their list is heterogeneous. It encompasses the “constitution of equality,” exemplified not only by the Civil Rights Act, but also by the Pregnancy Discrimination Act and the Family and Medical Leave Act; the “democratic constitution,” exemplified by the Voting Rights Act; the “constitution of the market,” exemplified by the antitrust rules courts and agencies have elaborated under cover of the Sherman Act; the “constitution of the family,” exemplified by a hodgepodge of state laws regulating marriage, sex and property; the “green constitution,” exemplified by the Endangered Species Act and the Clean Water Act; the “monetary constitution,” exemplified by the Federal Reserve Act and other statutes establishing the federal system of financial and monetary policy; the “antihomosexual constitution,” now partially dismantled but shored up by the Defense of Marriage Act; and the “national security constitution,” transformed in important ways after 9/11.

The entire review is worth reading, but to cut to the chase, here is Vermeule's final assessment:

Eskridge’s and Ferejohn’s treatment of the statutory constitution is so capacious, the boundaries of their enterprise so ill-defined, that it threatens to swallow up all of ordinary politics. In many of their chapters, Eskridge and Ferejohn basically describe the give-and-take struggle of lawmaking and regulation on more or less humdrum subjects—family and medical leave, antitrust, clean water laws—and then attach the label “constitutional” to the results. But if everything is constitutional, nothing is. The nagging merit of the book is that there is, clearly, some category of superstatutes with more than ordinary force and stature; but after reading the book, the nature and boundaries of that category are all the more opaque.

Pascoe Remembered

Estelle Freedman has published an obituary of Peggy Pascoe, the Beekman Professor of Northwest and Pacific History and professor of ethnic studies at the University of Oregon, in the AHA Perspectives. Freedman observes that Professor Pascoe "leaves behind an exceptional professional legacy, not only in her prize-winning scholarship on women and multicultural relations in the West, but also through the careers of the students and colleagues she mentored over the decades." More.

Image credit: Ellen Herman

Update: Historiann's posting of Freedman's obituary has occasioned some appreciative comments, here.