Weekend Roundup

• What do you think is the best history book of 2012? History News Network wants to hear from you!

•  The Junto is a new group blog on Early American Legal History. We welcome it to the blogosphere! (hat tip: H-Law)

• The Daniel R. Coquillette Rare Book Room, located in the Boston College Law Library, announces its acquisition of "a 1693 edition--the first in Latin--of A Book of Entries, from Richard Brownlow (1553-1638), chief protonotary of the court of common pleas." Read more here.

• Registration is now open for the 2013 meeting of the Organization of American Historians. Register early for discounted rates.

• Not a lot of legal history in the University of Chicago law faculty's list of "the last good book" they read, although Mary Ann Case named Hendrik Hartog's "Someday All This Will Be Yours."

• Paul Caron tells us that according to the "quarterly traffic rankings (page views and visitors) of the Top 35 blogs edited by law professors with publicly available SiteMeters for the most recent 12-month period (October 1, 2011 - September 30, 2012)" LHB is ranked 25th, with a bullet.  Thanks for your readership!

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

Rechtskulturen: A Legal History Postdoc in Berlin

[We have the following announcement for an interesting postdoctoral program in Berlin.]

The Berlin-based Postdoctoral Program Rechtskulturen: Confrontations beyond Comparison invites scholars to apply for seven postdoctoral fellowships for the academic year 2013/2014.

Rechtskulturen (‘legal cultures’) is a Berlin-based postdoctoral research program which is designed to explore the law in new and innovative ways.  We intend to create a space of reflection and communication where fundamental and salient questions of the law and its context(s) can be re-negotiated from a variety of disciplinary and regional perspectives, and re-connected with jurisprudence and legal methodology.

As a central element of the Berlin research network Recht im Kontext (‘law in context’) based at the Wissenschaftskolleg zu Berlin, Rechtskulturen aims at re-contextualizing established understandings of law by transcending the scope of comparative legal studies and international law. It is designed to enhance a re-location of law among its neighboring disciplines—the humanities, the cultural and social sciences—, and can thus allow affiliated scholars, fellows and faculty to develop innovative research agendas in transregional constellations beyond a European or Anglo-American focus. The program addresses scholars from a variety of disciplinary backgrounds, regional contexts and academic fields of discourse. In Berlin, the postdoctoral fellows will work on projects of their own choice. The program’s scholarly environment is designed to enable and to encourage both fellows and the wider community to explore and create new orientations in their transdisciplinary research on law.

The program Rechtskulturen is directed by Susanne Baer (Bundesverfassungsgericht/Humboldt-Universität), Christoph Möllers (Humboldt-Universität/Wissenschaftskolleg zu Berlin) and Alexandra Kemmerer (Wissenschaftskolleg zu Berlin), and is supported by an international group of scholars.

Applicants should be at the postdoctoral level and should have obtained their doctorate within the last five years before their application to the program. We welcome candidates with various disciplinary backgrounds, such as the field of legal studies, sociology, political science, philosophy, history, anthropology, theology, and area studies, representing a broad range of diverse approaches to the law, including gender studies, comparative research, law & literature, critical legal studies, administrative sciences, transitional justice, postcolonial theory, and legal philosophy and theory. In particular, we encourage applicants with a firm disciplinary background in law to engage in reflexive and transdisciplinary research.

For the academic year 2013/2014, we welcome in particular applicants interested in the law’s place in systems of knowledge and knowledge production (e.g. its relation to science, theology, philosophy, philology), in legal methodologies, in the law as a professional field, and in law in professional practices. We strongly encourage applications from scholars analyzing the law in various cultural contexts, engaging with confrontations beyond comparison.

Candidates should demonstrate their strong interest and innovative approaches to engage with the law. Rechtskulturen fellows are expected to participate in the regular Rechtskulturen Colloquium series, as well as in workshops, conferences and seminars organized by the program and the overarching project Recht im Kontext. The program seeks to create a context of intellectual synergy, where scholars from various disciplinary and regional backgrounds can work together comparatively (and confrontational) and develop a common language necessary for intra- and transdisciplinary exchanges and for an engagement with fundamental questions of the law and its cultural and political entanglements.

We encourage and welcome applications from all regions of the world.  Especially candidates from Latin America, the Middle East, Africa and Asia are strongly encouraged to apply.  Fellows are given the opportunity to pursue their individual research projects within a transdisciplinary and transregional context. During the fellowship in Berlin, they will be associated with the Faculty of Law at Humboldt-Universitat. In the overall context of the program Rechtskulturen and the framework of the Forum Transregionale Studien, they will be part of a vibrant discursive environment.

To apply, please make use of our web-based electronic application procedure that will be open for applications from 10 January 2013 to 24 January 2013 (24:00 CET).

More information here.

Roe, Women's Rights, and Population Control

As abortion opponents held different goals for movement incrementalism, before and after Roe, abortion-rights supporters had strikingly different identities and priorities. One issue, particularly explosive in contemporary historiography, involves the role of population-control politics in the pre- and post-Roe movement. As I have shown, population-control arguments played an important part in the pre-Roe rhetorical strategy of the movement (see Mary Ziegler, The Framing of a Right to Choose: Roe v. Wade and The Changing Debate on Abortion Law, 27 Law and History Review 272 (2009)). Abortion-rights pamphlets from the 1970s often highlight the benefits of legalizing abortion: the reduction of welfare costs, illegitimacy rates, and overall population growth. Movement leaders like Larry Lader and Richard Bowers worked within the population control movement. Others, like Judy Senderowitz, the feminist leader of Zero Population Growth, combined commitments to curbing population growth and legalizing abortion.

The meaning of the abortion-movement’s relationship to demands for population control was anything but straightforward, however. In the 1970s, population controllers themselves were diverse. Reva Siegel and Linda Greenhouse describe the commitment to sexual freedom evident in the work of organizations like Zero Population Growth, Inc. Donald Critchlow and Matthew Connelly have traced the movement’s ties to past demands for eugenic legal reform and government control of reproduction. Throughout the 1970s, different constituencies contested the identity and values of their movement. Some rifts tended to be generational. Older leaders more often had ties to earlier eugenic organizations or shared concerns about the relationship between population growth in the Third World and cold war politics. College students, by contrast, viewed the population control movement as a rallying cry for environmental stewardship, sexual freedom, and responsible childbearing within the white middle class.

Struggle about the meaning of the population control cause bled into battles within the abortion-rights movement. Were arguments for abortion based on population control merely politically expedient, or did these claims instead reflect the substantive beliefs of members of the abortion-rights movement? Were population arguments inherently incompatible with claims that abortion was a fundamental right for women? Gradually, feminists took positions of leadership and downplayed claims based on population control, at times, denying that related arguments had ever played a part in abortion rights advocacy. Significantly, the abortion-rights movement began rewriting its own history and the history of the population-control movement. Population control, in this account, involved government control over reproduction, something that a feminist abortion-rights movement had never endorsed. Perhaps the most controversial issue in this new narrative involved race and abortion, a subject I will take up next.

Medema on the Coase Theorem and the Legal Academe

Steven G. Medema, Department of Economics, University of Colorado-Denver, has posted Debating Law's Irrelevance: Legal Scholarship and the Coase Theorem in the 1960s.  Here is the abstract: 

This paper examines the diffusion of Coase’s negotiation result -- now better known as the 'Coase theorem'--in the legal literature during the 1960s, with particular attention paid to the challenge that this result posed for received legal thinking, how the it related to far older attempts to bring economic thinking to bear on the law, how legal scholars utilized it in their analysis, and how the treatment of this result by legal scholars compares to that accorded it by economists during this formative stage in the Coase theorem’s history. What will emerge, in the end, is an enhanced understanding of how the Coase theorem came to have a place in legal scholarship, as well as some additional insight into this neglected epoch in the history of the economic analysis of law.

 Medema has also posted Juris Prudence: Calabresi's Uneasy Relationship with the Coase Theorem.

Dressler on Dudley and Stephens, Again

Joshua Dressler, Ohio State Law, has posted Reflections on Dudley and Stephens and Killing the Innocent: Taking a Wrong Conceptual Path, which will appear in The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams, ed. Dennis J. Baker and Jeremy Horder (Cambridge University Press, 2013),  Here is the abstract:  

In this chapter I argue that the famous "lifeboat" case of Dudley and Stephens was wrongly decided because Lord Coleridge failed to distinguish between the criminal law defense concepts of justification and excuse; and Professor Glanville Williams, in his critique of the case, also failed to focus on this important distinction.

New Release: Weil, "The Sovereign Citizen"

New from Penn Press: Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic. It is part of the Democracy, Citizenship, and Constitutionalism Series, edited by Rogers M. Smith and Mary Dudziak.

Here's a description, cribbed from the Press's website:

Present-day Americans feel secure in their citizenship: they are free to speak up for any cause, oppose their government, marry a person of any background, and live where they choose—at home or abroad. Denaturalization and denationalization are more often associated with twentieth-century authoritarian regimes. But there was a time when American-born and naturalized foreign-born individuals in the United States could be deprived of their citizenship and its associated rights. Patrick Weil examines the twentieth-century legal procedures, causes, and enforcement of denaturalization to illuminate an important but neglected dimension of Americans' understanding of sovereignty and federal authority: a citizen is defined, in part, by the parameters that could be used to revoke that same citizenship.

The Sovereign Citizen begins with the Naturalization Act of 1906, which was intended to prevent realization of citizenship through fraudulent or illegal means. Denaturalization—a process provided for by one clause of the act—became the main instrument for the transfer of naturalization authority from states and local courts to the federal government. Alongside the federalization of naturalization, a conditionality of citizenship emerged: for the first half of the twentieth century, naturalized individuals could be stripped of their citizenship not only for fraud but also for affiliations with activities or organizations that were perceived as un-American. (Emma Goldman's case was the first and perhaps best-known denaturalization on political grounds, in 1909.) By midcentury the Supreme Court was fiercely debating cases and challenged the constitutionality of denaturalization and denationalization. This internal battle lasted almost thirty years. The Warren Court's eventual decision to uphold the sovereignty of the citizen—not the state—secures our national order to this day. Weil's account of this transformation, and the political battles fought by its advocates and critics, reshapes our understanding of American citizenship.

And a few blurbs:

"One of the world's leading experts on nationality brilliantly explores past campaigns to strip Americans of their citizenship. Patrick Weil reveals how both bureaucratic rigor and national security zeal threatened citizenship rights, and points to important lessons for twenty-first century debates."—Gerald Neuman

"In this masterful and timely book, Patrick Weil plunges deep into rarely used archives to write a new history of the shaping of American identity in the twentieth century, all the more important as we now debate the reform of immigration law. This story of belonging and exile has its heroes —defenders of civil liberties who deserve to be better known—and its scoundrels. Unlike many histories, it has a heartening conclusion." —Linda K. Kerber

The TOC is available here. 

H.L.A. Hart in Conversation with David Sugarman

[We have the following announcement of a fascinating oral history of H.L.A. Hart.]

Oxford University Press has digitalised the audio version of David Sugarman's (Lancaster University Law School, UK) interview with H.L.A. Hart of 1988 and posted it on the Web as part of the 50th anniversary celebrations marking the publication of Hart's Concept of Law and a new (third, 2012) edition.  

The interview delineates the particulars of Hart's life and work: his background, early education, and undergraduate studies; learning law, practising at the Bar, and journalism; working in military intelligence; the early years as a philosophy don and the principal philosophical influences that shaped his work; and the state of Oxford jurisprudence in the 1940s and 1950s. It then addresses Hart's work and ideas between 1945 and the 1980's: his appointment to the Chair of Jurisprudence at Oxford; the Hart-Fuller Debate and his year at Harvard; the writing of Causation in the Law and The Concept of Law; the 1950's, the Cold War, and the 1960's; "The Hart-Devlin Debate"; and what Hart called, "the Thatcher world". The interview also illuminates Hart's work beyond legal and political philosophy - the seminars to Labour Party groups on closing loopholes in the tax law; and the duties he undertook for the Monopolies Commission (1967-73) and the Oxford University Committee on Staff-Student Relations (the "Hart Report", 1968-69). The interview includes Hart's assessment of Bentham, Nozick and Dworkin, a general discussion of the virtues and limitations of sociology, sociological jurisprudence and analytical jurisprudence, of legal education, and the relationship between university legal education and the legal profession. A succinct summary of Hart's contribution to legal philosophy brings the interview to a close. 

An edited version of the interview was published as: "Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman", (2005) 32 Journal of Law and Society pp. 267-293.  The audio version of the interview, and a blog about the interview, can be accessed here.

The Rise of Pro-Life Incrementalism

As Roe’s fortieth anniversary approaches, scholars have offered new perspectives on the efficacy of pro-life incrementalism. As framed by the movement, incrementalism involves a focus on small victories—legislation restricting but not banning abortion. Incrementalists themselves claim to be making significant headway, pointing to the proliferation of restrictions on abortion in the states, several of which the Supreme Court has upheld. By contrast, in a forthcoming piece, by contrast, Caitlin Borgmann argues that incrementalism has failed to deliver on its promise to change hearts and minds.

Whether incrementalism is succeeding, of course, depends on what its proponents have set out to achieve. In my current project, I explore the roots and rise of antiabortion incrementalism as an overarching strategy in the 1970s. Early incremental efforts came primarily in the courts, as organizations like Americans United for Life argued that new restrictions on abortion did not violate the right set out in Roe. In the late 1970s, activists like James Bopp, Jr. and Sandra Faucher saw great potential in an incremental approach. Bopp, a Catholic attorney from Indiana, told me about his instinctual aversion to abortion as an overarching philosophy for the movement. Faucher, a liberal Democrat from Maine, described her natural discomfort with Phyllis Schlafly. In spite of their differences, the two played an important part in making incrementalism a philosophy, a strategy, and a battle cry. Small victories could energize a movement disillusioned by the continuing failure of the human life amendment and could dramatically limit access to abortion. As importantly, incrementalism could make Roe hollow and incoherent—protecting an abortion right that guaranteed little access to abortion. Between 1973 and 1983, the antiabortion movement had worked to create a right to live that would reach beyond the abortion context. Incrementalism defined a much more modest goal—the overruling of Roe.

Measuring the efficacy of incrementalism is a delicate business, for even in the 1970s, proponents disagreed about what the incrementalist project entailed. Incrementalists adopted different substantive aims and rhetorical strategies. Even as an overarching strategy, incrementalism sent conflicting messages. Its proponents often adopted the rhetoric of new movement allies in the Religious Right and New Right while urging movement members to focus primarily on compromise solutions that would limit abortion without banning it entirely. The complexity of incrementalism points out some of the challenges in measuring whether there was indeed a backlash to Roe and whether reaction to the decision was particularly costly to the abortion-rights movement. Those incrementalists from whom I took oral histories never tired of reminding me of how they defied easy categorization, and they were right.

ASLH Calls for Nominations: Honorary Fellows

Via H-Law, we have the following announcement from the American Society for Legal History:

Call for nominations - Honorary Fellows of the American Society for Legal History

The ASLH Honors Committee invites members of the society to submit the names of persons whom they consider appropriate for election as Honorary Fellows of the society.  Names should be accompanied by brief (200 word) statements of support. Member nominations should be submitted confidentially to the Chair of the Honors Committee, Chris Tomlins.  They must be received no later than March 31st 2013.

Following the close of nominations the Honors Committee will consider all member nominees, along with nominations proffered by members of the Honors Committee itself.  Following the close of deliberations the Committee will proceed to prepare and submit up to three fully documented recommendations for approval by the Board of Directors during the summer months.  Elected fellows will be inducted at the Society's annual meeting.

Honorary Fellows are elected by the ASLH Board of Directors on the recommendation of the Society's Honors Committee.  The Honors Committee considers as eligible nominees all those scholars who should be honored for their scholarship and contribution to the field of legal history whatever their affiliation and wherever situated world-wide.  The only limitation is that no more than three Honorary Fellows may be elected in any given year.

Further information about the Society's Honorary Fellows can be found on the ASLH web page.

Wagner reviews two books on Alberico Gentili's Theory of International Law

In the latest issue of the European Journal of International Law, Andreas Wagner (University of Hamburg) reviews Alberico Gentili, The Wars of the Romans. A Critical Edition and Translation of De Armis Romanis (edited by B. Kingsbury and B. Straumann: translated by D. Lupher) and B. Kingsbury and B. Straumann (eds), The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire. Here's the abstract:

This review discusses two recent publications – a critical edition of a primary source and a collection of essays – around the Theory of International Law of Alberico Gentili (1552–1608). On the one hand it examines Gentili’s interest in ancient Rome and how he used it as a paradigmatic case of imperial order. But on the other, it questions our own interest in Gentili’s work. In line with Gentili’s own focus on questions of justice, it not only shows that Gentili presents us with his own complex blend of political responsibility and natural law, but highlights structural features and possible blind spots of his ‘natural/private law’ paradigm that might apply also to current suggestions of how to organize international law.

The full text is available here.

Hat tip: bookforum

Ringhand on Frankfurter's Confirmation Hearing

Lori A. Ringhand, University of Georgia School of Law, has posted Aliens on the Bench: Lessons in Identity, Race and Politics from the First 'Modern' Supreme Court, which originally appeared in Michigan State Law Review 2010: 795-835.  Here is the abstract:    

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator's vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? Obviously, who sits on the Court matters, but why is the hearing itself important? The premise of this Article is that the confirmation process-or, more precisely the confirmation process of nominees perceived as racial outsiders-matters in part because such confirmations provide a high profile arena in which we as Americans fight to constitute our national identity. While all Supreme Court confirmations provide a platform for our ongoing debates about constitutional values, confirmations of racial outsiders do more. They provide a forum in which a more fundamental, and certainly more visceral, question arises: just who are "we the people"? I open my examination of these issues by looking at the confirmation of Felix Frankfurter. Frankfurter's was our first truly modem confirmation hearing: it was the first at which both the nominee and the witnesses provided unrestricted testimony, in an open session, exposed to the full glare of a highly-interested media. It also, perhaps not coincidentally, involved a nominee who was perceived at the time as a racial outsider.

Pro-Lifers, Legal History, and Judicial Activism

Election seasons tend to prompt discussion not just about party realignment but also what would happen if Roe v. Wade were overruled. The central role played by Roe in federal judicial nominations has attracted more than its fair share of criticism, and the likely outcome of Roe’s overruling seems predictable enough. The Guttmacher Institute recently put out an explanation of what state abortion policy would dictate in the absence of Roe. All of this, however, tends to ignore what would happen if abortion opponents actually won, since the movement has long endorsed more than the overruling of Roe. As I explore in my current project, antiabortion constitutionalism in the decade after Roe was far more ambitious, proposing the recognition of a right to live rooted in natural law, in the Declaration of Independence, in international human rights principles, and even in pre-Roe substantive due process cases.

Now, we tend to associate antiabortion constitutionalism with the judicial politics of the Right—with commitments to originalism and judicial activism. In the aftermath of Roe, abortion opponents remained skeptical about the idea of originalism (as late as 1977, activist and Fordham Professor Robert Byrn explained that the movement did not need to take a position on the question of judicial activism). Antiabortion attorneys themselves were diverse. Some, like Kenneth Vanderhoef, a Seattle attorney who had represented a local Catholic diocese, believed their religious and professional obligations to be inextricably connected. Others defined themselves as liberals, Reform Jews, or human rights attorneys.

In spite of this diversity, movement members agreed on the broad outline of constitutional change that was strikingly similar to the one promoted by abortion-rights activists in the lead-up to Roe (see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California, 1998)). Both constitutional agendas urged the courts to protect an unenumerated right from popular interference and contended that this right represented a logical extension of existing substantive due process law. Something changed, of course, with the advent of the Reagan Administration and the revival of attacks on judicial activism in the early 1980s. Largely for strategic reasons, abortion opponents began framing their own objections as concerns about judicial overreaching, but this shift came for strategic rather than for substantive reasons. Whether abortion opponents changed their ultimate goal or merely adopted a different approach in it, by 1980, incrementalism, a subject that I hope to address in a future post, was already on the rise.

I ka ʻōlelo nō ke ola: In speech there is life

“Hawaiʻi has perhaps the largest indigenous language archive in the U.S and the Pacific.”

     Aloha mai kākou. Thank you to Karen Tani, Dan Ernst and Clara Altman for inviting me to guest blog on the LHB. My current project looks at transformations in Hawaiian governance and law during the period of early encounter and foreign settlement in Hawaiʻi, from the late 1790s through the 1830s. Raising questions about early regimes of law in the proto-Hawaiian kingdom (the first constitution was promulgated in 1840), my project argues that Hawaiian aliʻi (chiefs) were not dependent upon foreigners to establish law as a means to introduce order into Hawaiian society; instead kānāwai (published laws) were introduced in the Hawaiian context in order to extend the rule of the aliʻi over an increasingly cosmopolitan mix of transient and settler foreigners. In my research I found that kapu (oral pronouncement, restriction, law) was not abolished, as many historians argue in 1819. Instead, examples of kapu persist, continuing to shape the behavior and morality of Hawaiian subjects, since this form of law applied foremost to Hawaiian subjects in the Hawaiian language, and many kapu were eventually enshrined in kānāwai during the Kingdom period. While my project reveals heretofore overlooked nuances in Hawaiian governance and rule, it also reveals the extent to which the creation of law emerged from the increasing interaction between Hawaiian people and foreigners on Hawaiian soil.

I ka ‘ōlelo nō ke ola

     Today this phrase is employed and understood in Hawaiʻi to relate to the importance of Hawaiian language to the perpetuation of Hawaiian culture and the health of ka lāhui Hawaiʻi, the Hawaiian people. It has been taken up as a motto by the Hawaiian language immersion schools to promote the project of preserving Hawaiian language through the education of Hawaiʻi’s youth. Although many immersion schools struggle day to day for continued support, it is now possible to obtain an education in Hawaiian language from preschool through the Ph.D. This is an important development for my work, since the infrastructure now exists to create scholars fluent in Hawaiian language who are capable of conducting research and begin the important work of interpreting the vast archive of Hawaiian language source material available to historians and legal scholars interested in pre-contact and nineteenth century Hawaiʻi and the U.S.

Ka palapala

     Hawaiʻi has perhaps the largest indigenous language archive in the United States and the Pacific, and yet, most of the histories written about Hawaiʻi have left out these incredible resources. The American missionaries who arrived in the archipelago in 1819 from the American Board of Commissioners for Foreign Missions brought printing presses with them, and the important mandate to give the Bible to Hawaiians in their own language. Hawaiians immediately took to learning the palapala (reading and writing) and began to write and publish in the Hawaiian language, a literary production that persisted well into the middle of the twentieth century. It is because of the introduction of New England print culture and the avid pursuit of publishing and writing among Hawaiians that this huge archive exists today.The information available through Hawaiian language publications and manuscript sources will assist scholars in radically rewriting the legal and political history of the Hawaiian Kingdom and its political, diplomatic, and legal relations with the United States and the world. Hawaiʻi can serve as an example of the kinds of histories that can be written when scholars approach indigenous language sources as authoritative and on par with those written in English or other languages of prestige in the academy.

     In the weeks that follow I hope to introduce interesting developments in legal history that make use of Hawaiian language source material. In the meantime, I hope that you enjoy this link to an important ongoing project which makes Hawaiian language newspapers available online.

http://nupepa.org/

Once you navigate to this page, you may click the upper right hand arrow for site instructions in English.

Me ke aloha,

Noelani Arista

American Military Power, the Crises of the Civil War Era, and Journeys Around the Globe: This Week in the Book Pages

 In the New York Times this week Max Boot reviews The Generals: American Military Command From War World II to Today (Penguin) by Thomas E. Ricks.  Boot writes: "How did the Army change so dramatically in the past 60-plus years and what are the consequences for the future of American military power?  Those are the questions that Ricks sets out to answer."  His "combination of conviction and erudition allows him to deliver an entertaining and enlightening jeremiad that should-- but, alas, most likely won't-- cause a rethinking of existing personnel policies."  Read the rest of the review here.

Also in the New York Times this week: a review of Sasha and Emma: The Anarchist Odyssey of Alexander Berkman and Emma Goldman (Belknap/Harvard) by Paul Avrich and Karen Avrich, a book that shows the "intense connection and intertwined lives" of Berkman and Goldman.  Joseph Ellis reviews 1775: A Good Year for a Revolution (Viking) by Kevin Phillips (Jack Rakove's review of the book from TNR: The Book last week is here), and Jonathan Mirsky reviews Yang Jisheng's Tombstone: The Great Chinese Famine, 1958-1962 (Farrar, Straus & Giroux).

And, on the New York Times "The 10 Best Books of 2012": Robert A. Caro's The Passage of Power: The Years of Lyndon Johnson (Knopf), Davad Nasaw's The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy (Penguin), and Katherine Boo's Behind the Beautiful Forevers: Life, Death, and Hope in a Mumbai Undercity (Random House).

In the LA Times, Scott Martelle reviews 38 Nooses: Lincoln, Little Crow, and the Beginning of the Frontier's End (Pantheon) by Scott W. Berg.  Martelle writes:

While the recent "Lincoln" movie has pulled the American Civil War into one of its periodic moments in the contemporary spotlight, historian Scott W. Berg reminds us in his splendid new book, "38 Nooses: Lincoln, Little Crow, and the Beginning of the Frontier's End," that the Civil War was only part of the nation's crises in that era.

Read on here.

And in The Wall Street Journal David S. Reynolds reviews The Tribunal: Responses to John Brown and the Harper's Ferry Raid (Harvard) edited by John Stauffer and Zoe Trodd, a book that according to Reynolds "allows us to experience firsthand the debate that Brown generated during his lifetime."

Also in the LA Times this week, you'll find a review of Joyce Chaplin's Round About the Earth: Circumnavigation From Magellan to Orbit (Simon & Schuster), a book inspired, in part, by Chaplin's own trip on a 140-foot sailboat.

The Washington Post has Jeff Shesol's review of The Partisan: The Life of William Rehnquist (PublicAffairs) by John A. Jenkins, and a review of Martin Duberman's Howard Zinn: A Life on the Left (New Press).

Over at TNR: The Book, Henry Wiencek reviews Thomas Jefferson: The Art of Power (Random House) by Jon Meacham, and Rachel Sagner Buurma reviews The Art of the Epigraph: How Great Books Begin (Atria) edited by Rosemary Ahern.

Weekend Roundup

• A Virginia Law press release describes UVA's Legal History Workshop, with a particular focus on JD-MA students.  It includes a sidebar on a new Legal History Writers Group at UVA, organized by Jessica Lowe.

• Yesterday was the anniversary of the attack on Pearl Harbor. Mary's 2010 post on "How to Remember Pearl Harbor," available here, is as relevant as ever.  

• New York University’s Tamiment Library announces the Center for the United States and the Cold War Fellowships and travel grants for 2013-2014. (hat tip: H-Law)

• Over at Rorotoko, a new cover interview features Carl Wennerlind (Barnard College), on his book Casualties of Credit: The English Financial Revolution, 1620-1720 (Harvard University Press, 2011). Check it out here.

•  The Georgetown Law Library announces the acquisition of two legal dictionaries, the Vocabularius Utriusque Iuris (1481) and a first edition of Pardoux Duprat’s Lexicon Juris Civilis et canonici (1567).  And for the most recent acquisitions at the Burns Library at George Washington Law, which include Decretales Gregorii IX (1475), check out its blog, The Burns Brief.

• A recording of a radio interview of Scott Gerber, Ohio Northern Law, on John Adams and the origins of the independent judiciary is here.

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

LaCroix on the Lawyer's Library in the Early American Republic

Alison L. LaCroix, University of Chicago Law School, has posted The Lawyer's Library in the Early American Republic, which will appear in the forthcoming Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries, ed. Martha C. Nussbaum and Alison L. LaCroix (Oxford University Press, 2013).   Here is the abstract:

The essay explores the role that fiction played in the early republican project of building American nationhood. Many eighteenth- and nineteenth-century American statesmen and jurists – including such prominent thinkers as John Adams, Thomas Jefferson, John Marshall, and Joseph Story – were avid readers of fiction. The vast majority of the novels they read were written by English authors; moreover, many of those authors were women. For example, among Marshall’s surviving papers is a letter in which he chided Story for not including Jane Austen among the great novelists that Story listed in an 1826 address to Harvard’s Phi Beta Kappa chapter. Story had, however, cited Maria Edgeworth, Fanny Burney, and Ann Radcliffe in his address, and his son later recalled that his father had enjoyed Austen’s novels. “This is emphatically the age of reading,” Story told his Phi Beta Kappa audience. And, he added, “[m]an no longer aspires to an exclusive dominion in authorship.” For founding-era thinkers such as Adams and Jefferson, novel-reading provided a way for Americans to participate in transatlantic culture and to hone a republican moral sensibility. For the early-nineteenth-century jurists Marshall and Story, fiction offered an opportunity to engage with emotions such as sympathy and to participate in a public sphere that brought men and women together, as both authors and readers, in a conversation that connected politics, law, and literary culture. These producers of legal theory were also consumers of fiction, gentlemen of letters who immersed themselves in female novelists’ work not as a means of escape, but because those novels offered insights into what they regarded as crucial political questions of individual sentiment and national character.

Robinson reviews Verkemaa, "Conrad Summenhart's Theory of Individual Rights"

New from the Medieval Review: Jonathan Robinson (Catholic University of America) reviews Jussi Varkemaa, Conrad Summenhart's Theory of Individual Rights (BRILL, 2011). Here's a description of the book, from the publisher's website:

In recent decades scholars have shown considerable and steadily increasing interest in medieval discussions of rights. This book aims to make a significant contribution to scholarship by providing a detailed and systematic account of Conrad Summenhart’s (c.1458-1502) language of individual rights. Starting from the view that Summenhart’s Opus septipartitum contains a carefully constructed and comprehensive theory of individual rights, this study analyses Summenhart’s theory in its historical context, treating it as a culmination of late medieval discourse on individual rights. This study is particularly useful to scholars interested in the origin of human rights language and modern political individualism, as well as to all those who work in the field of late medieval and early modern political and moral philosophy.

And here's a snippet of the review:

This book helps fill a large gap in our knowledge about the history of theories and theorizing about rights. Interest in "human" rights has grown steadily over the last sixty years or so, and it has been matched by a corresponding interest in the pre-modern (early-modern) history of 'natural' rights. Jussi Varkemaa's book on Conrad Summenhart (ca. 1458-1502) can be seen as another example of this trend. Its main value lies in the close reading of the first part of Summenhart's massive Septipertitum opus de contractibus pro foro conscientie atque theologico, which opens with a detailed analysis of ius and dominium. Varkemaa's bibliography is proof that not many scholars have tried to work their way through the Septipertitum opus, and the rest of his book is proof that Summenhart's views are well worth studying, both on his own terms and because of his influence on the School of Salamanca. We should hope for more books like this if we hope to press the case that medieval intellectuals played an important role in later thinking about rights. [footnotes omitted]

Read on here.

The Medieval Review also recently covered Fiona Edmonds, and Paul Russell, eds., Tome: Studies in Medieval Celtic History and Law, in Honour of Thomas Charles-Edwards (Woodbridge: The Boydell Press, 2011). Check it out here.

Opposition to Abortion and the Political Right

Pro-life feminism is back in the news, as I mentioned in a recent post. Writing about the history of those activists proved to be a complicated endeavor. As I argue in a forthcoming article, in the decade after Roe, pro-life feminism had been a vibrant, diverse, and influential movement, lobbying for laws protecting women again pregnancy discrimination, allowing women to take credit in their own names, or funding childcare or contraception. In the later 1970s, these feminists found themselves marginalized, as the antiabortion movement formed an alliance with the New Right and Religious Right. I did not realize how invisible these advocates were until the leaders of an organization called All Our Lives contacted me. Recently founded, the organization opposes abortion but favors contraception, GLBQT rights, and sex education. My experience again raised the question of why left-leaning abortion opponents tend to attract so little political attention.

The Second Edition of Reva Siegel and Linda Greenhouse’s Before Roe: Voices That Shaped Abortion Debate Before the Supreme Court Ruling (New Haven: Yale Law Library, 2012) may offer part of an answer to this question. Siegel and Greenhouse show that before Roe, the abortion-rights movement worked particularly closely with Republicans, from Governor Nelson Rockefeller to Senators Jacob Javits and Edward Brooke. Nixon’s Southern Strategy—an effort to lure Catholic voters away from the Democratic Party—began to redraw party positions about abortion.

Political party realignment continued after Roe, as the 1980 Republican Party platform became the first to endorse a fetal-rights amendment to the Constitution. This realignment had significant consequences for the identity and priorities of the antiabortion movement. Some movement members had long identified themselves as conservative Republicans (Anthony Lauinger, a leading activist in Oklahoma since the 1970s, told me that he had worked to unite the movement and the Republican Party since the mid-1970s). With the mobilization of religious conservatives and the gradual emergence of the Republican Party as “the party of life,” however, the movement had new and compelling political reasons to move to the right. In the 1970s, antiabortion organizations struggled to raise money or establish a clearly defined place in party politics. Over the objection of many members, the movement shifted to the right as a matter of political necessity.

It is worth asking whether the partnership between conservatives and abortion opponents today is a marriage of convenience. In the 1970s, the apparent conservatism of the antiabortion movement at least partly reflected changing political opportunities rather than any deeper normative commitment. Is something similar true today?

Marvin Miller: A Brief Legal History

Marvin Miller, who led the Major League Baseball Players Association from 1966 until 1982, died last week.  Miller is best known for his role in orchestrating the downfall of baseball’s century-old reserve clause system, under which owners basically dictated where players played and for how much.  More than any other individual, Miller thrust baseball into the modern era—an era characterized by players regularly moving between teams in search of new multi-million dollar contracts and collective bargaining as a primary policy-making mechanism for the game.  Under his leadership, the Players Association went from something of a joke (the players “didn’t know what a union was, but they knew they didn’t want one,” Miller later recalled) to arguably the most powerful union in America.  Miller has been rightly celebrated as one of the handful of the most consequential figures in the history of baseball.

Miller’s achievements can be traced to various factors, but one that stands out for me was his skill at tapping into the rhetoric of legal rights.  Miller was not a lawyer (he was an economist by training), and, from the perspective of the courts, his provocative legal claims generally were nonstarters.  In nonjudicial settings, however, these same claims did considerable work.  Miller drew upon the language of the law—and specifically the language of individual rights—to reframe complex issues of competing interests into matters of right and wrong, of exploitation and justice. 

Two examples illustrate the point, one drawn from his great achievement in transforming labor policy in major league baseball, the other from his role in delaying implementation of player drug testing, the most conspicuous black mark on Miller’s legacy.

Miller always insisted that the reserve system violated the players’ most basic freedoms.  It was a question, he said, of their constitutional rights.  “I talked about how the reserve clause made them pieces of property,” Miller said about his meetings with players after he took charge of the union.  “It took away all their dignity as human beings.”  When, in 1969, star St. Louis Cardinals centerfielder Curt Flood refused to accept a trade, Miller helped him draft a now-famous letter to baseball’s commissioner in which he explained, “I do not feel I am a piece of property to be bought and sold irrespective of my wishes.  I believe that any system which produces that result violates my basic rights as a citizen ….”

These kinds of arguments sound like legal claims, but they were not the kind that fared well in court.  Most obviously, as private actors, the owners were not constrained by most of the rights protections provided in the U.S. Constitution.  One exception is the Thirteenth Amendment’s prohibition on slavery and involuntary servitude, which is not limited to “state actors.”  And in fact there is a long history in baseball of critics of the reserve system, including the occasional judge, denouncing the practice as analogous to chattel slavery.  But no one seriously considered taking a Thirteenth Amendment claim against the reserve clause to court—no one, that is, until Flood.  With Miller’s encouragement and support, and with ex-Supreme Court Justice Arthur J. Goldberg representing him, Flood challenged the reserve clause all the way to the Supreme Court.  Flood’s Thirteenth Amendment claim went exactly nowhere—neither in the court of law nor in the court of public opinion, where Flood was ridiculed as a “slave” who pulled in $100,000 a year for playing baseball.  By the time the case got to the Supreme Court, Flood’s lawyers had abandoned their Thirteenth Amendment claim and focused their challenge squarely on the question of whether baseball’s labor practices violated federal antitrust law.  Flood still lost.  [See Brad Snyder’s excellent book, A Well Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports (2006).  While I'm on the topic of my favorite baseball history books, be on the lookout for Stuart Banner's, The Baseball Trust: A History of Baseball's Antitrust Exemption, due out in April.]

Nonetheless, Miller’s insistence that the core of the issue was about dignity and individual rights did eventually gain traction.  Players gradually began to fall in behind Miller and his speeches about their dignity and rights.  By the mid-1970s, the tide of public opinion—and, as importantly, the attitudes of the sporting press—had shifted, and idea that the reserve clause implicated fundamental questions about individual freedom and dignity was beginning to take hold.  The reserve clause finally met its end via a 1975 grievance arbitration decision.  For Peter Seitz, the arbitrator whose ruling brought Miller his great triumph, the union leader was “the Moses who had led Baseball’s children of Israel out of the land of bondage.”  As a result of Miller’s efforts, “ballplayers for the first time attained dignity from owners,” was the assessment of Hall-of-Fame pitcher Robin Roberts, one of the ballplayers who had recruited Miller back in 1966.  What was far-fetched hyperbole when Miller first started pressing this kind of argument had become a standard narrative for describing this episode in baseball history.

"The Politics of Hate"

Robert L. Tsai, American University Washington College of Law, has posted the entire special issue, The Politics of Hate, which is volume 10 (2012) of the Journal of Hate Studies.  Here is the abstract

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling of lynching in the U.S.; the challenges of drafting hate crimes legislation; and combating anti-democratic values such as Aryanism through youth literature.

Macias reviews Pearson, "Remaking Custom"

The latest issue of the Journal of Legal Education includes a review of Ellen Holmes Pearson, Remaking Custom: Law and Identity in the Early American Republic (University of Virginia Press, 2011). Reviewer Steven J. Macias (Southern Illinois University) offers this introduction:

Ellen Holmes Pearson makes the case that early republican legal scholars—those writing to circa 1830—were central to defining national identity and to creating an American culture. In a sense, these scholars, whom Pearson terms “legists,” were the progenitors of the modern-day law professor. Remaking Custom, therefore, should be of interest to all those concerned not only with the history of legal scholars but also with these legists’ potential for actively shaping the legal system. Pearson’s work is perhaps even more important at a time when the value of professors’ legal scholarship is so hostilely questioned by the bench, bar and public more generally.

Read on here.

Decock's "Theologians and Contract Law"

Just out from Brill is Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500-1650), by Wim Decock, Max-Planck-Institute for Legal History, Frankfurt.  Here is the publisher’s description:

The Roman legal tradition is the ancestor of modern contract law but there is no agreement as to how and when a general law of contract emerged. Wim Decock’s thesis is that an important step in this evolution was taken by theologians in the sixteenth and seventeenth centuries. They transformed the Roman legal tradition (ius commune) by insisting on the moral foundations of contract law. Theologians emphasized that the enforceability of contracts is based on voluntary consent and that a contract should not enrich one party at another's expense. While their main concern was the salvation of souls, theologians played a key role in the development of a systematic contract law in which the founding principles were freedom and fairness.

Ho on "Confucian Jurisprudence in Practice"

Norman P. Ho (Netherlands China Law Centre) has posted "Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments)," which is forthcoming in Volume 22, no. 1 of the Pacific Rim Law and Policy Journal (January 2013). Here's the abstract:

Most scholarship on Chinese legal philosophy has neglected the study of Confucian jurisprudence in practice. As a result of this incomplete portrayal, scholars predominantly view the premodern Chinese Confucian legal tradition as lacking a rule of law system, which has led to blaming Confucianism for much of China’s modern and historical rule of law problems. This article seeks to complicate this view by examining Confucian jurisprudence in practice: specifically, the development of pre-Tang dynasty panwen (written legal judgments). Through analysis of specific panwen from various Chinese primary sources — many of which have never been translated into English — this article will show that even in Chinese antiquity the legal system was not solely marked by codification or the lack of the rule of law, but was far more complex and diverse than most scholars have portrayed. For example, elements of case law played an important role in Chinese legal history. Indeed, it is an especially good time to build our understanding of the use of cases and the role of panwen, in China’s legal past given the Supreme People’s Court’s recent emphasis on the role of case law in contemporary Chinese jurisprudence.

The full paper is available here, at SSRN.

Remaking Roe as a Women's-Rights Decision

Between 1973 and 1975, Mildred Jefferson often spoke to the press about how little Roe v. Wade did for women. Jefferson was the first African-American woman to graduate from Harvard Medical School, and she was something of a media darling, described by the press as charismatic and accomplished. In discussing Roe, Jefferson argued that abortion rights at most gave women a false sense of autonomy. The true power, she suggested, belonged to the doctor.

Along with most activists on either side of the abortion issue, Jefferson later adopted a different account of abortion rights, linking them to second-wave feminism and condemning both. Jefferson’s recent passing gave me reason to think about why we came to associate abortion so much with abortion rights. Reva Siegel, Leslie Reagan, and David Garrow are among those to trace the arguments about physicians, women, privacy, and equality that set the terms of the debate before Roe. Jefferson’s story, though, shows us something important about how the meaning of Roe itself might have changed. Jefferson’s reasons for describing the holding of Roe or the meaning of abortion rights differently were strategic. Talking about Roe in a different way made sense as a means of raising money or winning new recruits.                              

Those on both sides made arguments for similar reasons. Jefferson’s movement realized in the mid-1970s that it needed to do more to recruit and reassure women. Describing Roe as a decision about physicians worked well for a movement seeking to show women that abortion rights did nothing for them. Mainstream abortion-rights organizations initially addressed medical rights arguments. While not believing that Roe had resolved conflict about abortion, major abortion-rights groups still saw the debate about the meaning of Roe as counterproductive. Talking further about abortion rights would suggest that the question was still open and would call into question an otherwise respectable rationale for abortion.

When women’s-rights arguments gained currency in the later 1970s, strategic reasoning again played a role. The abortion-rights movement had to respond to the successes of abortion opponents in recruiting women. Abortion opponents took the same position as part of an effort to cement a new alliance with the New Right and Religious Right.  The newly reconfigured antiabortion movement criticized second wave feminism as much as did abortion and closely connected the two.

It seems that we owe our understanding of Roe only partly to the Supreme Court. Activists like Jefferson also played an important part in the change. Why we still think of Roe as a decision about women’s rights is a separate question, especially at a time when pro-life feminism is back in the news. Phyllis Schlafly fondly remembers Mildred Jefferson as an ally and effective orator at antifeminist rallies. Today, Lila Rose and leading abortion opponents proclaim themselves to be feminist. Now that activists on both sides again claim to speak for feminism, popular understandings of Roe may well change again. 

Wheeler's "How Sex Became a Civil Liberty"

Out this month from the Oxford University Press is How Sex Became a Civil Liberty by Leigh Ann Wheeler, an Associate Professor of History at Binghamton University.  According to the Press:

How Sex Became a Civil Liberty is the first book to show how and why we have come to see sexual expression, sexual practice, and sexual privacy as fundamental rights. Using rich archival sources and oral interviews, historian Leigh Ann Wheeler shows how the private lives of women and men in the American Civil Liberties Union shaped their understanding of sexual rights as they built the constitutional foundation for the twentieth-century's sexual revolutions.

Wheeler introduces readers to a number of fascinating figures, including ACLU founders Crystal Eastman and Roger Baldwin; nudists, victims of involuntary sterilization, and others who appealed to the organization for help; as well as attorneys like Dorothy Kenyon, Harriet Pilpel, and Melvin Wulf, who pushed the ACLU to tackle such controversial issues as abortion and homosexuality. It demonstrates how their work with the American Birth Control League, Planned Parenthood Federation, Kinsey Institute, Playboy magazine, and other organizations influenced the ACLU's agenda.

Wheeler explores the ACLU's prominent role in nearly every major court decision related to sexuality while examining how the ACLU also promoted its agenda through grassroots activism, political action, and public education. She shows how the ACLU helped to collapse distinctions between public and private in ways that privileged access to sexual expression over protection from it. Thanks largely to the organization's work, abortion and birth control are legal, coerced sterilization is rare, sexually explicit material is readily available, and gay rights are becoming a reality. But this book does not simply applaud the creation of a sex-saturated culture and the arming of citizens with sexual rights; it shows how hard-won rights for some often impinged upon freedoms held dear by others.

Wheeler's lecture, "Why Women's History Matters," is here.

Blurbs after the jump.

Mooreville on the Bradford's Opinion on the Alien Tort Statute

Ishai Mooreville, of Baker & Miller PLLC, has posted A Question of Sovereignty: The History behind Attorney General Bradford's 1795 Opinion on the Alien Tort Statute, which is forthcoming in Syracuse Journal of International Law & Commerce.  Here is the abstract:

William Bradford (credit)

This article uses historical primary sources to analyze the 1794 attack on Sierra Leone which provided the basis for Attorney General William Bradford’s 1795 Opinion on the scope of the Alien Tort Statute (“ATS”). The article first provides a detailed historical overview of the 1794 attack based on first-hand contemporaneous accounts. The underlying historical facts are then applied in order to shed light on appropriate interpretations of Bradford’s Opinion.

The article then addresses three distinct questions: 1) whether Bradford believed a cause of action under the ATS was available only for acts on the high seas or also for acts on foreign territory; 2) which parties were responsible for the attack, and 3) whether Sierra Leone was in fact British sovereign territory in 1794.

On the first question, review of the 1794 Memorial filed by Zachary Macaulay and John Tilley in its proper historical context indicates that Bradford probably believed that a cause of action was only available for the acts which occurred on the high seas. On the second question, the article compiles evidence showing that American, French and British citizens all played a role in planning and executing the attack. On the third question, the article demonstrates that much contemporaneous evidence suggests Sierra Leone was not British sovereign territory at the time of the 1794 attack, and therefore the Bradford Opinion cannot be used to support the application of the ATS in foreign sovereign territory, as the Supreme Court is currently considering in the pending Kiobel v. Royal Dutch Petroleum case.

Barbas on the Emergence of "Image Torts"

Samantha Barbas, SUNY at Buffalo Law School, has posted The Laws of Image, which is forthcoming in the New England Law Review and which she presented, quite brilliantly, at the ASLH meeting in St. Louis last month.  Here is the abstract:    

We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others.

The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution of an area of law that I describe as the tort law of personal image. By the 1950s, a body of tort law – principally the privacy, publicity, and emotional distress torts, and a modernized defamation tort – had developed to protect a right to control one’s image and to be compensated for emotional and dignitary harms caused by interference with one’s public image. This law of image produced the phenomenon of the personal image lawsuit, in which individuals sued to vindicate or redress their images. The rise of personal image litigation over the course of the 20th century was driven by Americans’ increasing sense of protectiveness and possessiveness towards their public images and reputations.

This article offers an overview of the development of the image torts and personal image litigation in the United States. It offers a novel, alternative account of the history of tort law by linking it to developments in American culture. It explains how the law became a stage for, and participant in, the modern preoccupation with personal image, and how legal models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.

Revisiting Reactions to Roe

It’s a pleasure to be blogging on Legal History Blog-- thanks to Dan and Karen for the invitation. With the fortieth anniversary of Roe coming up, my current book project has got me thinking about the stories we often tell about the historical impact of Roe. As part of the project, I have done over a hundred oral history interviews with activists who participated in the struggle in the 1970s. If there is a recurring theme, it is that Roe was not as important as we law professors like to think. In upcoming posts, I hope to take these activists’ concerns seriously. How might the history of abortion law and politics look different if Roe were no longer the sole or primary focal point of our analysis?

One particular activist, Warren Schaller, got me thinking about the Court’s current approach to informed consent restrictions. As Reva Siegel, Ronald Turner and other have shown, the Court increasingly resolves abortion cases by making assertions of scientific fact or deferring to similar pronouncements by Congress. The Court’s analysis of informed consent, in Planned Parenthood v. Casey quite literally asks judges to decide whether normatively charged statements about abortion are true.

Right after Roe, Schaller also advised the antiabortion movement to make scientific arguments. The Executive Director of the National Right to Life Committee in the period, Schaller was a minister, a supporter of the Equal Rights Amendment, and a self-described progressive--by any measure, a strange choice for the architect of antiabortion strategy. His strategy was to fight fire with fire. If the Roe Court had relied on the views of physicians and on medical evidence, so too could abortion opponents. Medical claims, as Schaller had suggested, were designed to make the movement look more secular, legitimate, and respectable. Relying on the “facts of life” would further allow policymakers to chip away at abortion rights without admitting they were doing so.

It seems now that, given the Court’s current approach, Warren Schaller was a smart man. In the 1970s, though, the strategy made little headway. In the Supreme Court and in Congress, commentators insisted that medical decisions about abortion properly belonged to physicians—a view echoed by some in the antiabortion movement. Since Schaller’s time, of course, this kind of strategy may work better partly because the status of physicians has changed dramatically in the abortion debate, both inside and outside the movement community. After all, we do not talk any longer about a physician’s right to choose abortion. How we got from Roe to a woman’s right to choose is itself an important question that I hope to address in a future post.

More Notable Books in Law and History, "A Pivotal Year," and a "Restless Empire": This Week in the Book Pages

The New York Times released its list of the 100 Notable Books of 2012.  Among them, John Fabian Witt's Lincoln's Code: The Laws of War in American History (Free Press).  You can find Gary Bass's NY Times review of Lincoln's Code here (" “Every generation,” Witt writes, “has its law-of-war crisis.” This monumental book, resting on colossal archival research and packed with memorable stories and arguments, is a major contribution to making sense of ours.").  Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans (Norton), also made the list.

At TNR: The Book, Jack Rakove reviews 1775: A Good Year for Revolution (Viking) by Kevin Phillips.  Rakove writes, "Phillips deals with political loyalties more fundamental than the mere matter of party allegiance.  His broader purpose is to write a sketch of American nationalism at the revolutionary moment when that concept first cohered."  But, Rakove argues, "[h]is insistence on the primacy of 1775 as "the pivotal year" creates more problems than it solves."  Read on here.

Also at TNR: The Book, a review of Speaking of Race and Class: The Student Experience at an Elite College (Temple) by Elizabeth Aries and Richard Berman.

In the Washington Post this week, Michael Dirda reviews J.H. Elliott's History in the Making (Yale).  "[T]his distinguished scholar," Dirda writes "looks back on his career as a Hispanist and reflects on the developments in historiography over the past 60 years."  John Pomfret reviews Odd Arne Westad's Restless Empire: China and the World Since 1750 (Basic Books): "'Restless Empire' tells the story of the foreigners who helped China become what it is today, from China's first interactions with the West to the current era.  In doing so, Westad upends, but ever so politely, a slew of misconceptions about China that have been concocted by his academic predecessors both in the West and in Asia."

In the LA Times this week, you'll find recommended nonfiction in the Holiday Gift Guide including Jill Lepore's The Story of America: Essays on Origins (Princeton), Jeffrey Toobin's The Oath: The Obama White House and the Supreme Court (Doubleday), and Timothy Egan's Short Nights of the Shadow Catcher: The Epic Life and Immortal Photographs of Edward Curtis (Houghton Mifflin).  See the complete list here.

Peller at DC's "Busboys and Poets"

We've previously noted the publication of my Georgetown colleague Gary Peller's historically informed Critical Race Consciousness: Reconsidering American Ideologies of Racial Justice.  He will be discussing the book tomorrow (Sunday, December 2) from 5-7 at the 14th and V location of Busboys and Poets, as part of A.C.T.O.R. (A Continuing Talk on Race), which is said to be an "open discussion series is produced and hosted by Busboys and Poets as a community service." 

Welcome, Mary Ziegler!

image credit

We are excited to announce that Mary Ziegler will be joining us for the month of December.  She is an assistant professor at Saint Louis University School of Law, where she teaches constitutional law, family law, and torts. Prior to joining the faculty at SLU, she clerked for John A. Dooley of the Vermont Supreme Court and held a Ruebhausen Fellowship at Yale Law School.

Professor Ziegler's research focuses on constitutional, reproductive-health, and family-law issues. Recent articles include "The Incomplete Revolution: Reexamining the Law, History, and Politics of Marital Property," which is forthcoming in the Michigan Journal of Law and Gender; "Women's Rights on the Right: The History and Stakes of Modern Pro-life Feminism, 1968 to Present," forthcoming in the Berkeley Journal of Law, Gender, and Justice; and "Sexing Harris: The Law and Politics of Defunding Planned Parenthood," Buffalo Law Review, Vol. 60, no. 3 (2012). Her research has also appeared in the Law and History Review, the Harvard Journal of Law and Gender, the Cardozo Journal of Law and Gender, the Brigham Young University Law Review, the Marquette Law Review, the Florida State University Law Review, the Chicago-Kent Law Review, and the Texas Journal of Women and the Law.

Welcome, Mary Ziegler!