DC Legal History Roundtable Podcast

A podcast of the D.C. Legal History Roundtable from October 8 is now available here. The line-up was:

The Republic of Indian Stream: Frontier Constitutionalism
Robert Tsai, Professor of Law, American University Washington College of Law
Comment: James Henretta, Professor of History, University of Maryland

One Court's Freedom Fighter Is Another Court's Terrorist: Extradition, Asylum, and Political Crimes, 1885-1915
Katherine Unterman, Ph.D. Candidate, Yale University
Comment: Dan Ernst, Georgetown University Law Center

Biological Weapons, Pandemic Disease, and Quarantine Law in the United States
Laura K. Donohue, Associate Professor of Law, Georgetown University Law Center
Comment: Stephen Vladeck, American University, Washington College of Law

Civil Liberties and Civil Rights in the Hughes Court
Mark V. Tushnet, Nelson Cromwell Professor of Law, Harvard Law School
Comment: David Bernstein, Foundation Professor, George Mason University School of Law

Perlin on The Impeachment of Samuel Chase

The Impeachment of Samuel Chase: Redefining Judicial Independence is a new article by Adam A. Perlin.  It appears in the Rutgers Law Review (2010).  Here's the abstract:

This article hopes to make the following contributions to the existing academic scholarship:

First, some legal scholars have ignored how the impeachment contributed to the modern apolitical judiciary or have construed its contribution too narrowly. This article provides a fuller explanation of the impeachment’s contributions to our modern understanding of judicial independence and what properly constitutes an impeachable offense.

Second, the article touches upon the contribution the debates over Chase’s impeachment made to more peripheral subjects, such as the debates over jury nullification and judicial review.

Third, this article fills a void in the academic literature, as there are almost no articles fully addressing the “story” of Chase’s impeachment and even fewer which analyze the importance of the debates in the House of Representatives and the examination of the trial witnesses.

Given the increasing attention devoted to judicial activism and persistent calls for the impeachment of federal judges, the lessons of the Chase impeachment are perhaps more relevant today than ever before. By addressing the issues mentioned above, this article endeavors to draw greater attention to a major event in American legal history and to give a turning point in the history of impeachment and the judicial branch the attention it deserves.

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Davies on Religious Intolerance in U.S. History

Sharon Davies, Ohio State University Law School, takes up religious intolerance in a recent Op-Ed in the Los Angeles Times.  Davies is the author of Rising Road: A True Tale of Love, Race and Religion in America. She begins:

The mind-set is all too familiar: A radical religious group, lurking inside the country, owing loyalty to a foreign power, threatens America. No one denies that its members have a right to worship as they please, but good Americans, patriots, feel compelled to call for curbs against the menace they present. Because of the number of Americans sharing these fears, calls for restrictions on the religion are voiced openly and unapologetically, even proudly.

Today this description may bring to mind the flap over the proposed Islamic cultural center near ground zero in New York, or recent calls for greater restrictions on Muslims in America, like banning their service on the Supreme Court or in the Oval Office. But in fact, it describes the year 1920, when the reviled group was Roman Catholics, not Muslims. As Mark Twain once quipped, history may not repeat itself, but it does rhyme.

In the early 1900s, many Americans were genuinely frightened by the perceived religious threat of the Roman Catholic Church and the suspected imperialistic intentions of its leader, the pope. He was plotting the overthrow of the United States, warned the fearful, to "make America Catholic." His foot soldiers, tens of thousands of Catholic men who called themselves the Knights of Columbus, were busily stockpiling arms and ammunition in the basements of their churches, all in preparation for the day when their papist leader would give the signal for the violent insurrection to begin.

The holders of such beliefs were not just some fringe crazies safely outnumbered by their clear-eyed, religiously tolerant neighbors.

Continue reading here.

Solum reviews Friedman, The Will of the People

Via the Legal Theory Blog:  Lawrence B. Solum, University of Illinois College of Law, has posted Narrative, Normativity, and Causation, a review essay on Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.  The review is forthcoming in the Michigan State Law Review. Here's the abstract:

This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. In his book, Friedman provides a grand narrative of American constitutional history that emphasizes the role of public opinion in the development of American constitutional law. That narrative involves both implicit and explicit claims about the causal forces that shape constitutional doctrine and about normative constitutional theory. The aim of this essay is to identify those claims, excavate their theoretical assumptions, and to determine whether the narrative offered by Friedman vindicates these causal and normative claims, theories, and assumptions.

The Will of the People is what can be called a “causally committed historical narrative.” It makes implicit and explicit causal claims. These claims are problematic in three ways. First, historical narratives can suffer from a selection bias problem. For example the story of American constitutional law could be told in terms of the causal effects of considerations internal to legal doctrine or in terms of the effects of elite group opinion. On the surface, these stories might appear as plausible as the story that Friedman tells. Selective narratives cannot themselves establish causal claims. Second, The Will of the People implicitly relies on claims about counterfactuals. Friedman’s story assumes that if public opinion had been different at crucial junctions in the history of American constitutional law, the narrative would have been substantially altered. But narrative itself only establishes what actually happened; it does not provide direct evidence for counterfactual claims. Third, Friedman does not offer a systemic account of the mechanisms by which popular opinion might determine constitutional doctrine. The Will of the People does include a limited discussion of the political science literature on this question, but the sources that Friedman cites do not provide support for his assertions about causal mechanisms.

The Will of the People is “normatively charged”; Friedman makes both explicit and implicit normative claims. One of these claims concerns the relationship between constitutional law and democratic legitimacy, but Friedman does not offer a theory or account of democratic legitimacy to ground this claim and it is not clear whether he will be able to do so. A theory of democratic legitimacy might be grounded in either in a theory of democratic equality or a theory of deliberative democracy, but neither theory would justify the kind of influence that public opinion has on constitutional law in the narrative Friedman offers. Another normative claim in The Will of the People implicates the debate between living constitutionalists and originalists. Friedman’s narrative offers a delegitimating story about the development originalist constitutional theory, but the evidence offered by Friedman rests on an implausible interpretation of originalist writings.

Despite the difficulties with the causal and normative claims made in The Will of the People, there is much to admire in its grand and synthetic historical narrative. It offers the best historical account we have of the relationship between popular opinion and the constitutional decisions of the United States Supreme Court.

Robertson on the Passport in America

As is probably clear from my other posts, I like thinking about the interests that Charles Reich famously labeled "new property": old-age pensions, public housing, welfare benefits, occupational licenses, and other forms of government largess. The passport, according to lore, was one of the first forms of "new property" to capture Reich's interest. (As editor-in-chief of the Yale Law Journal, he worked on a comment about the practice of conditioning passports on acceptable political beliefs.) Thanks to Craig Robertson (Northeastern University), we now have a book-length history of the passport. Although The Passport in America is probably not for the casual reader, it may be valuable to those working on citizenship, immigration, national security and surveillance, and the administrative state.

Here is part of the publisher's description of the book:

In the first history of the passport in the United States, Craig Robertson offers an illuminating account of how this document, above all others, came to be considered a reliable answer to the question: who are you? Historically, the passport originated as an official letter of introduction addressed to foreign governments on behalf of American travelers, but as Robertson shows, it became entangled in contemporary negotiations over citizenship and other forms of identity documentation. Prior to World War I, passports were not required to cross American borders, and while some people struggled to understand how a passport could accurately identify a person, others took advantage of this new document to advance claims for citizenship. From the strategic use of passport applications by freed slaves and a campaign to allow married women to get passports in their maiden names, to the "passport nuisance" of the 1920s and the contested addition of photographs and other identification technologies on the passport, Robertson sheds new light on issues of individual and national identity in modern U.S. history.

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Historians have Woodrow Wilson's Back

Historians respond to Glenn Beck's attacks on President Woodrow Wilson in today's New York Times.  Mark Attwood, Univ. of Texas begins:

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At first blush, conservative attacks on Woodrow Wilson seem bizarre. For most Americans, the 28th president of the United States is a half-remembered name from the distant past, hardly the stuff of TV talk shows or blogosphere diatribes.

But Wilson’s obscurity may be precisely the reason why Glenn Beck, Jonah Goldberg and other conservatives have dusted him off and offered him up as the embodiment of the liberalism allegedly ruining the United States by dangerously expanding the federal government.

More here.  Other contributors include:

Jill Lepore, Harvard historian
John Milton Cooper, historian and biographer
George H. Nash, historian and biographer
Michael Lind, New America Foundation
Thomas G. West, politics professor, University of Dallas

Tamanaha on Ehrlich

Brian Z. Tamanaha, Washington University School of Law in St. Louis, has posted A Vision of Social-Legal Change: Rescuing Ehrlich from "Living Law,” which is forthcoming in Law and Social Inquiry. Here’s the abstract:

Prominent American jurists in the early twentieth century immediately recognized the genius of Eugen Ehrlich. Oliver Wendell Holmes told English jurist Frederick Pollock that he considered Ehrlich’s Fundamental Principles “the best book on legal subjects by any living continental jurist.” Roscoe Pound wrote in 1915 to John Chipman Gray, “I think it is the best thing that has been written lately.” Karl Llewellyn lamented that when he found Ehrlich, he was “somewhat crushed in spirit, because [Ehrlich] had seen so much.” Llewellyn identified Ehrlich as an early realist in law.

Following this initial burst of enthusiasm, Ehrlich was soon forgotten in America. He is rarely mentioned in legal theory circles today. Legal sociologists frequently give Ehrlich an honorific nod as a pioneer in their field, but his work is seldom engaged. After a long period of neglect, signs of a revival of interest in Ehrlich have begun to appear, especially among European theorists of legal pluralism.

This essay explains why US jurists were excited about Ehrlich, and also why he quickly faded. His famous notion of “living law” has a conceptual flaw that cannot be overcome. Legal pluralists who resort to Ehrlich for their concept of law will come up against the same flaw. Ehrlich's more enduring contribution lies not in the notion of “living law” but in his vivid account of social-legal change. Ehrlich wrote in a period of rapid economic, political, social and technological change. He describes how law responds to alterations in society — especially through the daily work of lawyers and the decisions of judges. He shows how law is alive and constantly moving. This vision is what attracted US jurists to Ehrlich then, and it is why he is relevant today, for society is again undergoing sweeping transformations.

We seem to be experiencing an Ehrlich revival.

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Podcast on the "Green Book"

Catching up on my podcasts this weekend, I came across a Talk of the Nation conversation about the "Green Book," a Jim Crow-era guide for the "Negro motorist." It informed readers which lodgings, eateries, barbershops, and nightclubs they could patronize safely, and which would instead expose them to indignities (or worse).

The Green Book is in the news thanks to a number of activists, curators, academics, and artists. In recent months, the publication has been the focus of a children's book, a play, and a traveling exhibition.

A little research revealed one extensive scholarly treatment: Cotton Seiler (Dickinson College) has written about the Green Book as evidence of "the multifaceted, often contradictory rhetoric of communal racial uplift and liberal individualism" that "figured around the practice of driving" in the period of its publication (1937-1959). I've also seen discussion of the Green Book in Tom Sugrue's Sweet Land of Liberty. It is a fascinating example of how (some) African Americans claimed their right to travel before Congress and the courts caught up.

You can view a complete copy of the 1949 edition of the Green Book here.

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Nussbaum reviews Stansell on Feminism, Lithwick reviews Stern & Wermiel on Brennan, Fontana reviews Breyer, and more in the book pages

The Feminist Promise: 1792 to the Present by Christine Stansell is reviewed by Martha C. Nussbaum in The Nation.  Nussbaum begins:

For much of its existence, the feminist movement in the United States has looked like a loosely knit coalition of upstarts and insurgents making common cause around an evolving list of issues: suffrage, access to divorce, property rights, contraception, antidiscrimination law, sexual harassment, domestic violence, rape law and abortion rights, to name a few. In turn, feminism has apparently struck many historians as being both too topical and too diffuse to have a history. At least such a view offers the most likely explanation for an enduring deficiency. Although American historians have written incisive histories of marriage with attention to women's concerns (Nancy Cott's Public Vows: A History of Marriage and the Nation, Hendrik Hartog's Man and Wife in America: A History) and landmark biographies of feminist pioneers (Ellen Chesler on Margaret Sanger, Elizabeth Griffith on Elizabeth Cady Stanton, Nell Irvin Painter on Sojourner Truth), they have not given us any comparably authoritative history of the feminist movement in the United States. But now we have one.

Christine Stansell's magisterial The Feminist Promise traces the movement from its eighteenth-century inception to the present day, sorting out its crosscurrents and offering a useful narrative framework within which to situate its varied struggles....Though dense and impeccably documented, The Feminist Promise is lucid, accessible and well organized. It will be a benchmark for some time to come—although, as we shall see, it has a significant shortcoming.

For Nussbaum, the shortcoming is that "Stansell is indifferent to the role that ideas, particularly philosophical and economic ideas, have played in feminism's history."

Continue reading here.

JUSTICE BRENNAN:  Liberal Champion by Seth Stern and Stephen Wermiel is reviewed by Dahlia Lithwick for the New York Times.  "'Justice Brennan' provides the most comprehensive and well-organized look at the legendary liberal jurist to date," Lithwick writes.

Stern and Wermiel dig below the popular cliché of Bill Brennan as the Constitution’s Gene Kelly — all twinkling eyes and glad-to-see-ya Irish charm — to reveal the complicated (and quite conservative) man beneath. But the book is weakened by the long delay from conception to completion. With the release in recent years of, among other things, Lewis Powell’s, Harry Blackmun’s and some of Ruth Bader Ginsburg’s papers, plus the access granted Jim Newton to some of Brennan’s case histories for his 2006 book on the Warren court, “Justice Brennan” is very late to the party. There is a sense, at times, that Brennan has slipped away.

Read the rest here.

MAKING OUR DEMOCRACY WORK: A Judge's View by Stephen Breyer is taken up by David Fontana in the Washington Post.  Fontana finds the book to be "perhaps the most honest discussion of what a judge should do that you will ever find, all the more remarkable because it is written by a sitting Supreme Court justice. But it is also an example of the complexity that makes progressive approaches to the Constitution so challenging to sell to wider audiences."

Also in the NY Times, Sam Roberts reviews FINAL VERDICT: What Really Happened in the Rosenberg Case by Walter Schneir and THE INVISIBLE HARRY GOLD:  The Man Who Gave the Soviets the Atom Bomb by Allen M. Hornblum.

Afghanistan: A Cultural and Political History by Thomas Barfield is reviewed by Christopher de Bellaigue in the New York Review of Books.  Also in the NYRB,The Civil War of 1812: American Citizens, British Subjects, Irish Rebels, and Indian Allies by Alan Taylor is reviewed by Gordon S. Wood, The Unspoken Alliance: Israel’s Secret Relationship with Apartheid South Africa by Sasha Polakow-Suransky is reviewed by Joseph Lelyveld, and White House Diary by Jimmy Carter is reviewed by Garry Wills.

Washington: A Life by Ron Chernow is reviewed by Douglas Brinkley in the Los Angeles Times.  Also taken up in the LA Times is The Conservative Assault on the Constitution by Erwin Chemerinsky.  Jack Rakove, Revolutionaries is reviewed in The Nation by Robin Einhorn  (subscription required).

Finally, both the San Francisco Chronicle and the New York Times discuss Tea Party books, including THE WHITES OF THEIR EYES: The Tea Party’s Revolution and the Battle Over American History by Jill Lepore.

Clark on The Eleventh Amendment and the Nature of the Union

The Eleventh Amendment and the Nature of the Union is a new article by Bradford R. Clark, George Washington University Law School.  It appears in the Harvard Law Review (2010).  Here's the abstract:

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing "any suit" against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention, and the ratifiers, ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III — authorizing suits "between" states and out-of-state citizens — could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting “any suit” against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment.

Crime and Punishment in New Brunswick

A belated welcome to the blogosphere to Crime and Punishment in New Brunswick, created by the Professors G. Marquis and M. Boudreau, who approach the topic from history and criminology. Their filmed introduction to the website is here.

Image credit: Dorchester Penitentiary

Legal History Manuscripts at Georgetown Law

From the Georgetown Law Library Blog we have the following:

Georgetown Law Library's Special Collections holds several legal history manuscript collections including the Lord Eldon Collection (Lord Eldon was Chancellor of Great Britain from 1801-1827), the Francis Caleb Brown Collection of bound manuscript English law reports from the 17th century and American Justice of the Peace writs from the late 18th and early 19th centuries, and the 13th & 14th Century English Land Grants Collection of vellum land transfer documents from the time of Edward I, as well as many other collections of documents and personal papers.

More.

Legal Historians of Insurance, Take Note!

[This prize competition is not limited to historians of property and casualty insurance, much less legal historians, but if any are out there, here's your chance.]

Boston College Law School is soliciting papers for the 2010-2011 Liberty Mutual Prize, awarded each year for an exceptional article written during the submission season on the law of property and casualty insurance, its regulation and corporate governance.

Prize: Liberty Mutual Insurance Group created this competition to encourage and recognize legal scholarship in the area of property and casualty insurance law. The winning entrant will receive $5,000. If not already committed to another journal, the prize winning paper will also receive an offer of publication from the Boston College Law Review. (Receipt of the prize does not obligate the author to publish with the Review, however.)

Eligibility: Authors should possess a J.D. degree or its overseas equivalent. Papers must concern the law related to property and casualty insurance, its regulation and corporate governance. The prize is not intended to advance scholarship in areas such as life, health, employment or employee benefits insurance law.

Judging: Each entry will be judged by a panel of professors and attorneys having particular expertise in the insurance law field, including the eventual holder of the Liberty Mutual Professorship at Boston College Law School. The panel will evaluate submissions on the basis of quality of analysis, originality, thoroughness of research, creativity, and clarity of thought and expression.

Format: Submissions should be no more than 25,000 words in length (the equivalent of 50 law review pages) including text and footnotes, and contain an abstract of roughly 350 words. The article should conform to the Bluebook: A Uniform System of Citation (19th ed. 2010). Electronic submissions are preferred (in Word or PDF format, by direct email or through a distribution system such as ExpressO), but hard copies by mail are acceptable.

For electronic submissions:
(Preferred)

LibertyMutualPrize@bc.edu For mailed submissions:
Boston College Law Review
Attn: Liberty Mutual Competition
885 Centre Street
Newton Centre, MA 02459

Deadline: Papers may be submitted throughout the year, but by no later than February 1, 2011. If an outstanding submission meets the foregoing conditions, the judges will announce a winning entry by March 1, 2011.

Presentation: The author of the selected paper will be invited to present it at a special program held at Boston College Law School, at which time a representative of Liberty Mutual will present the prize money.

Inquiries: Contact John Gordon: gordonjo@bc.edu or 617-552-8557.

Law in the Bush Administration -- now on SSRN

My essay A Sword and a Shield: The Uses of Law in the Bush Administration can now be downloaded from SSRN.  Only the abstract was posted previously.  The essay appears in THE PRESIDENCY OF GEORGE W. BUSH: A FIRST HISTORICAL ASSESSMENT, Julian Zelizer, ed., Princeton University Press, 2010, which has just been published.  The full volume includes essays by Gary Gerstle, David Greenberg, Meg Jacobs, Michael Kazin, Kevin M. Kruse, Nelson Lichtenstein, Fredrik Logevall, Timothy Naftali, James T. Patterson, and Julian E. Zelizer.  I couldn't post mine online until the book was out.

Here's my abstract, and then I'll follow with more book info:

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy.

Here are the book description and blurbs for The Presidency of George W. Bush:

The Presidency of George W. Bush brings together some of today's top American historians to offer the first in-depth look at one of the most controversial U.S. presidencies. Emotions surrounding the Bush presidency continue to run high--conservatives steadfastly defend its achievements, liberals call it a disgrace. This book examines the successes as well as the failures, covering every major aspect of Bush's two terms in office. It puts issues in broad historical context to reveal the forces that shaped and constrained Bush's presidency--and the ways his presidency reshaped the nation.

The Presidency of George W. Bush features contributions by Mary L. Dudziak, Gary Gerstle, David Greenberg, Meg Jacobs, Michael Kazin, Kevin M. Kruse, Nelson Lichtenstein, Fredrik Logevall, Timothy Naftali, James T. Patterson, and the book's editor, Julian E. Zelizer. Each chapter tackles some important aspect of Bush's administration--such as presidential power, law, the war on terror, the Iraq invasion, economic policy, and religion--and helps readers understand why Bush made the decisions he did. Taking readers behind the headlines of momentous events, the contributors show how the quandaries of the Bush presidency were essentially those of conservatism itself, which was confronted by the hard realities of governance. They demonstrate how in fact Bush frequently disappointed the Right, and how Barack Obama's 2008 election victory cast the very tenets of conservatism in doubt.

History will be the ultimate judge of Bush's legacy, and the assessment begins with this book.

Endorsements:

"An all-star cast of historians examines the perplexing presidency of George W. Bush--the 'compassionate conservative' who frequently ended up allied with the hard right, the 'uniter' who presided over one of the nation's most divisive political eras, the advocate of 'humility' on the world stage who fiercely championed unilateral presidential powers. After the journalists and pundits have had their say, the historians are here to put Bush's tumultuous tenure in historical perspective. An essential resource for anyone seeking to understand contemporary American politics."--Jacob S. Hacker, coauthor of Winner-Take-All Politics and Off Center

"With clarity and precision, some of America's most prominent historians of politics, law, and international relations examine the controversial presidency of George W. Bush. Their assessments of Bush's administration are sober, rigorous, and eye-opening. Together these essays will provide a foundation for the next generation of scholarship on early twenty-first-century America."--Thomas J. Sugrue, author of Not Even Past: Barack Obama and the Burden of Race

"George W. Bush once stated that 'we'll all be dead' by the time history casts its judgment on his presidency. Instead, in this engaging and timely portrait of the Bush era, eleven leading scholars assess the 'war on terror,' the resurrection of the imperial presidency, the effects of tax cuts and corporate deregulation, and other foreign and domestic policies promoted by big-government conservatism. While acknowledging the administration's political accomplishments, the contributors to this volume emphasize the ultimate failures of the Bush presidency and the conservative movement's strategies of governance."--Matthew D. Lassiter, University of Michigan

The table of contents is here, and an excerpt here.

Bernstein reviews Prest on Blackstone

R. B. Bernstein, New York Law School, reviews WILLIAM BLACKSTONE: LAW AND LETTERS IN THE EIGHTEENTH CENTURY, by Wilfrid Prest (Oxford University Press, 2008), and BLACKSTONE AND HIS COMMENTARIES: BIOGRAPHY, LAW, HISTORY, edited by Wilfrid Prest (Hart Publishing, 2009) for the Law and Politics Book Review.  Bernstein begins:

Sir William Blackstone (1723-1780) is best known as author of the COMMENTARIES ON THE LAWS OF ENGLAND. The COMMENTARIES became a classic of legal literature virtually on publication and remain so to this day; indeed, they rival Edward Gibbon’s HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE as the most influential work of scholarship in English produced during the Age of Enlightenment.

By contrast with the DECLINE AND FALL, which is pervaded by Gibbon’s personality as well as his scholarship, the COMMENTARIES have long overshadowed their author. Sadly, the conventional modern understanding of Blackstone as a thinker and historical figure owes far more to his foes than to his own writings. Caricatures penned by such of his intellectual foes as Jeremy Bentham and Thomas Jefferson skewer Blackstone as a complacent apologist for the established order (with all its failings intact) and as a failed barrister who embodies the old quip, “Those who can’t do, teach.” Even Blackstone’s would-be eulogist, his brother-in-law James Clitherow, did not help matters by swathing him in conventional pieties and blandly and tersely sketching his antecedents, character, and personality. In his only passages casting light on Blackstone’s character, Clitherow reluctantly acknowledged Blackstone’s short temper and his forbidding manner, then sought to explain these traits away....

Few previous biographers chronicled Blackstone’s life, owing principally to the lack of primary sources. There is no great cache of Blackstone diaries, correspondence, or private papers from which to construct a biography. Indeed, it is a cliché that Blackstone was either unknowable or (at best) a dull man whose life is best approached through his outstanding achievement. For generations scholars concluded that a true biography of Blackstone – one setting his life and thought in the historical, social, legal, literary, and cultural contexts that shaped him and his work – would be impossible. And yet, thanks to the tireless labor, skillful historical detective work, and literary craftsmanship of Wilfred Prest, we now have that book.

A professor emeritus of history and law at the University of Adelaide, Prest is best known for his studies of English history in the seventeenth and eighteenth centuries, stressing the history of law and the legal profession; this expertise undergirds his decision to write a life of Blackstone. William Blackstone: LAW AND LETTERS IN THE EIGHTEENTH CENTURY presents a persuasive, nuanced portrait of its subject grounded on admirably thorough research. Prest has examined virtually every surviving scrap of paper having to do with Blackstone’s life, professional activities, legal practice, judicial service, and intellectual labors; even more impressive than his industry, he has distilled the fruits of his research in a learned, accessible, and rigorously-argued biography. Prest’s book illuminates not only Blackstone’s life and significance but also the intellectual history of eighteenth-century England, maintaining with justice that we can best understand Blackstone as a distinguished English exemplar of the Age of Enlightenment. As Prest demonstrates, Blackstone’s evolution as a lawyer and jurist exemplified the qualities of thought and creativity associated with the English Enlightenment, with these qualities finding their ultimate expression in the COMMENTARIES.

Continue reading here.

Hurst and Law & Society Fellowships at Wisconsin

[The University of Wisconsin-Madison Law School announces two fellowships of interest to legal historians.]

Hurst Summer Institute in Legal History at Wisconsin
Next biennial session will take place in June 2011; apply by 1/15/11. Complete information and application instructions can be found here

Synopsis: The Hurst Summer Institute in Legal History is a biennial event sponsored by the Institute for Legal Studies at the University of Wisconsin Law School in conjunction with the American Society for Legal History (ASLH). A committee appointed by the ASLH reviews applications from early-career faculty members, doctoral students with completed or nearly completed dissertations, and recent J.D. graduates demonstrating interest in an academic career with a focus on legal history, and selects 12 promising scholars as Institute Fellows. The Fellows come to Madison for two weeks in June to participate in daily seminars, meet other legal historians, and analyze and discuss each other’s work. Each biennial Institute is organized and chaired by senior legal historians and includes visiting scholars who lead specialized sessions.

Intellectual Rationale: The purpose of the Hurst Summer Institute is to advance the approach to legal scholarship fostered by J. Willard Hurst in his teaching, mentoring, and scholarship. The Hurst Summer Institute assists scholars from law, history, and other disciplines in pursuing research in legal history. It also develops teaching skills by deepening the understanding of legal history and developing methods for incorporating it into the law school and undergraduate history curriculum. More importantly, it provides junior faculty a unique opportunity to work closely over an extended period of time with distinguished senior faculty and thus continue the tradition of excellence in research, teaching, and mentoring others. Finally, the Hurst Institute establishes relationships and cultivates a network of scholars for mutual support throughout their careers.

Law and Society Post-Doctoral Fellowship at Wisconsin

One-year fellowship for early-career scholars who work in the "law and society" tradition and who will be competing for university-level teaching jobs in the U.S. market. [The announcement adds, "Eligibility is limited to humanities or social science scholars who work in the law and society tradition, for example, anthropologists, economists, historians, political scientists, and sociologists."] Application period ends each year in January. For 2011-12 academic year, apply by 1/7/11. Complete information can be found here.

The Brooker Collection Digitized

Boston College's law library houses a very cool collection of Early American legal and land use documents (the Robert E. Brooker Collection). Via the Daniel R. Coquillette Rare Book Room blog, we've learned that the collection is being digitized.

A recent update announced that over 1,000 documents are now available online.

Here's a taste of what you might find:

The collection, which Mr. Brooker painstakingly acquired over many years, features approximately 2,500 documents and manuscripts. Focused primarily on Boston and the New England area and spanning two centuries, the Brooker Collection provides abundant opportunity for the study of early American land use and transfers, law and legal systems, town governance, family matters and daily life.

Documents include deeds of land and other property, contracts for goods and services, legal documents such as complaints, deposition testimony and wills, business papers such as invoices and receipts, and evidence of everyday life as glimpsed in letters and estate inventories. The exhibit features items from all of these categories and is loosely organized by themes: The Land, The Law, Commerce and Contracts, The Community, Living and Dying, and Odds and Ends.

Happy digging!

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Lawrence Friedman Delivers the Childress Lecture

St. Louis University Law's press release, Legal Scholars Attend Richard J. Childress Memorial Lecture, reports on Lawrence Friedman's address, "Front Page: Notes on the Nature of the Headline Trial."

The Saint Louis University School of Law welcomed former SLU LAW professors back to campus and several other distinguished legal scholars as part of the annual Richard J. Childress Memorial Lecture held Friday, Sept. 24. The annual lecture aims to contribute to the discussion of pressing public law issues at the law school by bringing world-renowned scholars to SLU LAW.

This year, the lecture focused on a celebration of legal history with the keynote presentation provided by Stanford University Marion Kirkwood Rice Professor of Law Lawrence M. Friedman, a distinguished legal historian and former SLU LAW professor.

Friedman is a pioneer in the field of legal history, which fosters the study of the law from a historical perspective and the understanding of social history through the legal system.

Friedman presented his address entitled "Front Page: Notes on the Nature of the Headline Trial," to a standing-room-only crowd in the School of Law Courtroom which included students, faculty, alumni and other legal professionals. The lecture explored historic criminal trials that have aroused great public interest and examined the reasons why the trials attracted such wide interest.

The press release aptly observes that St. Louis University was the first job for many American legal historians.

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Indiana Legal History Grants

Indiana's lawyers and judges have been unusually active in promoting the legal history of their state. (See here and here.) The state bar's journal has recently posted the following notice of a grants program by the state supreme court and humanities council:

If you’ve wanted to print walking-tour brochures or create an oral history of your county’s courthouse, there’s now a grant that can help you achieve that goal.

The Indiana Humanities Council and the Indiana Supreme Court have collaborated on a new grant that will support research, documentation, and educational projects related to the state’s legal history.

Projects such as written and oral histories of courthouses, individuals, cases, guides to courthouses, and research related to court documents are a few examples of eligible projects. Projects can request Indiana Legal History Grants of up to $2,000.

The deadline to apply is Nov. 1. More information and applications is here.

Huq reviews Pfander, One Supreme Court: Superiority, Inferiority and the Judicial Power of the United States

Aziz Huq, University of Chicago, recently reviewed James E. Pfander's "One Supreme Court: Superiority, Inferiority and the Judicial Power of the United States" (Oxford, 2009) on History News Network.  Huq begins:

Constitutional histories of the United States have tended to focus on two of the three branches established by the Constitution at the expense of the third. Congress and the Presidency have received ample historical attention while the federal courts have secured less of the spotlight. There are sound reasons for this. Article III of the Constitution creates only “one supreme Court,” and leaves it to Congress to fashion “such inferior Courts” as it desires. The high court exercises separate “original jurisdiction”—power to hear cases lodged in the first instance before the justices—and also “appellate jurisdiction” over other courts. But the latter is subject to “such Exceptions, and under such Regulations” as the political branches see fit.

As Northwestern Law School professor James Pfander rightly underscores, this is not the outer reach of political control over adjudication in the 1787 federal system: a separate, under-studied clause of Article I, Section 8—the provision enumerating the new Congress’s specific authorities—also gives allows legislative creation of “Tribunals inferior to the supreme Court.” At a minimum, this includes territorial courts such as those created by the Northwest Ordinance of 1787, finalized by the Continental Congress while the Philadelphia Convention was debating,

What does this network of congressional options—which on its face gives ample scope for political control of the judiciary via expansion or contraction in the number and jurisdiction of federal courts—suggest about the role of courts in American political development? What does it entail for rule-of-law values and the distribution of constitutional rights? The latter question, as Pfander notes, is sharply presented not merely by failed efforts to choke federal jurisdiction over abortion, establishment clause, and gay marriage issues, but also and more acutely by the successful efforts in 2005 and 2006 to extinguish, or at a minimum vastly constrain, the federal courts’ supervisory powers over the Guantánamo Bay detentions.

Federal jurisdiction, indeed, has seemingly played a pivotal role in transitions between what Stephen Skowronek has called “regimes.” At the threshold of the current constitutional era, my colleague Alison LaCroix has recently explained how the federal courts were understood as the site for elaborating the new federal-state relationship....

So what function do the federal courts play? And what stops Congress from leveraging its textual authority over the courts to transient political ends at odds with other substantive goals endorsed elsewhere in the constitutional text?

James Pfander’s articles and the book that summarizes and reframes those articles for an incrementally more general audience begin to answer that question.

Continue reading here.

The GW Symposium on Hamburger and Friedman

The current issue of George Washington University Law Review publishes two closely related symposia, one on Philip Hamburger's Law and Judicial Duty and the other on Barry Friedman's The Will of the People. Here are the abstracts and links to the on-line edition.

Ann Althouse, The Historical Ordinariness of Judicial Review

The delightful thing about Philip Hamburger’s Law and Judicial Duty is the acting out—in 600-plus pages—of the surprise that is ordinariness.

We may think that it’s exciting to picture the heroic judge, Chief Justice John Marshall, creating judicial review in Marbury v. Madison. It’s thrilling to imagine the Framers forging a brilliant new system with the judiciary as an independent, coequal branch of government and to extrapolate the powers that ought to be found there to realize that political vision. We feel bold defending the judiciary from naysaying challengers like Alexander Bickel who fret about the “counter-majoritarian difficulty.” We puff ourselves up devising elegant theories about the role of judges in preserving or expanding constitutional rights.

But Professor Hamburger is here to deflate all that grandiosity, to replace it with the grandeur of the ordinary: the judicial role is what it has long been, a matter of duty, fidelity to law, and the recognition that there is a hierarchy in the various sources of law. When we see it this way, judicial review is nothing more than one manifestation of what judges and legal scholars have perceived since medieval times, that within a hierarchy of kinds of law, inferior law in conflict with higher law is a nullity.

Mary Sarah Bilder, Expounding the Law

(We've already noted Professor Bilder's comment here.)

G. Edward White The Lost Origins of American Judicial Review

Philip Hamburger’s Law and Judicial Duty is a considerable achievement. This Essay later undertakes some criticism of it, but this should be understood as engagement with a provocative and substantial piece of work. Hamburger’s research in American archives has been dogged and ingenious; the book, notwithstanding its reliance on arcane sources, is accessible to generalists and well written; and Hamburger’s central thesis is revisionist of conventional wisdom. Although this Essay points out some difficulties with the way in which Hamburger frames issues and the way in which he reads historical sources, those remarks should be understood in the context of my very favorable general reaction.

This Essay begins by situating Law and Judicial Duty in a line of counter-Progressive historical work, which is nearing the status of orthodoxy in American legal history. It then sketches the relationship of Hamburger’s approach to the history of judicial review in America to other influential work on that subject. Finally, it seeks to extract the particularistic vision of the relationship between English and American constitutionalism that informs Hamburger’s conclusions in Law and Judicial Duty, as well as the normative premises embedded in that vision.

Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is “judicial review.” From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called “judicial review” is merely an aspect of the more general duty of judges in all of their decisions.

The difference between these paradigms has contemporary implications. If one assumes the judicial review paradigm, it is difficult to find constitutional authority for constitutional decisions, and it therefore seems that early American judges in the 1780s, and especially after 1789, must have created their own most significant power—as if they lifted themselves up by their bootstraps to achieve a power their constitutions apparently did not give them. The judicial review paradigm thereby implies that constitutional decisions have only a rather contingent authority and that the judges have a remarkable degree of power, including a discretionary power of their own rule.

The other paradigm, in contrast, envisions the judicial role in terms of duty. As traditionally understood by common lawyers, judges have an office of judgment rather than of will—an office, moreover, in which they must decide in accord with the law of the land. From this perspective, judges have no distinct power over the constitutionality of government acts, but rather must make decisions on such matters because it is part of their office or duty.

The implications of this vision are thus diametrically opposite to those of the judicial review paradigm. For example, when considered as a matter of duty, constitutional decisions have the deep, even profound authority of an ordinary exercise of judicial office. At the same time, judges have no power beyond their duty, and they therefore have to make constitutional decisions in the same way as their other decisions, merely in accord with the law of the land.

Which paradigm is to be believed? Well, at least for historical inquiry, the answer must rest on the evidence. This Essay, therefore, evaluates each of the two paradigms in relation to the evidence.

Jenna Bednar, The Dialogic Theory of Judicial Review: A New Social Science Research Agenda

For an institution designed to resolve disagreement, the United States Supreme Court is remarkably good at stirring the pot. Some look to the Court as the rampart that makes democracy’s airy construction possible; it is the essential resistance to majoritarian policy turned oppressive, the bulwark of liberty for minorities. Others point out the consequences of the Court’s countermajoritarian tendency; it will either reject progress like a dowdy schoolmarm, or the opposite, when it legislates from the bench, pushing its unpopular policies on a befuddled and increasingly resentful public.

We have grown so used to this debate about judicial review that we fail to ask the obvious question: what if both sides are wrong? In his remarkable, original book, The Will of the People, Barry Friedman turns the debate inside out. For either side of the conventional debate to be right, the Court would need to defy the popular majority. But as Friedman shows through a careful examination of the Supreme Court’s full history, the Court hews closely to public will, rarely straying from the public’s side and never doing so for long. The Court bounds along, pulling and resisting, but generally it accepts the people’s alpha status. Golly! The Court is the people’s puppy, and the people hold it firmly by the leash.

For us to believe that the people have the Court by a leash, a dialogic theory of judicial review must address three critical details: (1) how the public leashes the Court; (2) how the Court knows the length of its leash (which is necessary for the incentive to have force); and (3) how this behavior and knowledge shape the constitution (small “c”), i.e., the document’s meaning.

None of these three parts makes for an easy argument. This Essay examines each of these components, describing what challenges each pose for social science theory.

William E. Forbath, The Will of the People? Pollsters, Elites, and Other Difficulties

Barry Friedman has written a wonderful book. Brilliant in its narrative detail, The Will of the People ranks among the best one-volume histories of the Supreme Court in United States politics. It recounts two centuries of a complex saga in a way that is sprightly and learned, readable and deep. It rests on formidable primary research and distills and synthesizes a great deal of important work in several fields: American political and constitutional history, constitutional theory, and political science. The Will of the People also sets out its own important and provocative theses, about which this Essay offers a few critical reflections.

The overarching story is one of a happy marriage. After some stormy, troubled years, the Court and the People work out a modus vivendi, a “relatively quiet equilibrium.” The Court provokes the People to focus on constitutional issues; the People do so, and when their considered views clash with the Court’s doctrines, the Court gets the message and alters its doctrines to reflect the People’s will. Over time, the Court became less provocative and less inclined to stray far from mainstream public opinion. Thus, over the course of the nineteenth century, the Court engaged in epic battles against powerful elements in the polity and broadly supported public policies.

By comparison, the New Deal contest, for all its sound and fury, was a milder fray. But the New Deal taught the Court a lesson about holding out too long. The Court’s backing and filling in respect of Roe v. Wade illustrates how well the Court learned that New Deal lesson. By now, Friedman writes, “[t]he [J]ustices . . . can sense trouble and avoid it . . . . [I]f [the People] simply raise a finger, the Court seems to get the message.” It tailors doctrines and adjusts outcomes to fit the outlook of median voters, or at least to avoid their ire. And rightly so, Friedman affirms, if the Justices care about their institutional power and legitimacy.

Whether this is an accurate descriptive account of relations between Court and polity or Court and citizenry, and whether, as Friedman suggests, it also offers an attractive prescriptive model, are questions to which we will return. But in view of the narrative arc he has drawn, Friedman’s conclusion follows: “[W]hen it comes to the Constitution, [the People] are the highest court in the land.” Friedman, in other words, concurs with (and draws generously from) the political scientists who have mapped the modern Court’s relationship to public opinion polls; by their lights, the Court generally is attuned to the will of political majorities, and it molds constitutional law accordingly. Thus, Friedman concludes, the countermajoritarian difficulty that so troubled generations of constitutional scholars is a nonissue.

Richard Primus, Public Consensus as Constitutional Authority

Barry Friedman’s new book The Will of the People attempts to dissolve constitutional law’s countermajoritarian difficulty by showing that, in practice, the Supreme Court does only what the public will tolerate. His account succeeds if “the countermajoritarian difficulty” refers to the threat that courts will run the country in ways that contravene majority preference, but not if the “the countermajoritarian difficulty” refers to the need to explain the legitimate sources of judicial authority in cases where decisions do contravene majority preference. Friedman’s book does not pursue the second possibility, and may suggest that doing so is unimportant, in part because of the limited latitude that public opinion gives the Court and in part because of skepticism about the enterprise of constitutional interpretation. This Essay argues that Supreme Court decisionmaking is important despite being constrained by public opinion and that the constraint of public opinion should sometimes be understood as an aspect of constitutional interpretation rather than as an alternative to it. Public opinion that approaches consensus is better understood as a contributing factor in the calculus of arriving at correct constitutional outcomes than as a force demonstrating the limits (or impossibility) of authentic constitutional interpretation.

Barry Friedman, The Will of the People and the Process of Constitutional Change

Professors Jenna Bednar, William Forbath, and Richard Primus have been more than generous in their comments on The Will of the People. Not simply because their kind words far exceeded the requirements of ordinary politeness when reviewing a book, but because they take much of the argument of The Will of the People as established and then move beyond it to a set of inquiries that really do deserve attention.

Collectively, their comments raise important questions regarding a subject that rests at the heart of The Will of the People: the process of constitutional change. My goal here is to acknowledge and offer some response to those questions. It will be clear that there is much to know and much yet to understand. As Professor Bednar correctly observes, the concluding chapter of The Will of the People raises as many issues as it resolves. The Will of the People was written to change the conversation about judicial review, to shift the focus of the academy. I intended it effectively to set out a research agenda for further inquiry about judicial review.

Update. A post by Marc DeGirolami, St. John's Law, on the exchange between Professors White and Hamburger is here.

Symposium on Rabban's Law's History

The Legal History Forum at the Hebrew University of Jerusalem has organized a symposium on David Rabban’s forthcoming book, Law’s History: Late Nineteenth-Century American Legal Scholarship and the Transatlantic Turn to History, with comments by Adam S. Hofri-Winogradow, Hebrew University of Jerusalem, Faculty of Law, and Ron Harris, Assaf Likhovski, and Roy Kreitner of the Tel Aviv University Buchmann Faculty of Law, with a response by Professor Rabban. It appears in the Jerusalem Review of Legal Studies 1 (2010): 72-106 and is also on SSRN, which is to say, here.

Gordon-Reed on the Hemingses of Monticello

The Gilder-Lehrman Institute has posted, here, a downloadable podcast of Annette Gordon-Reed's discussion of her Hemingses of Monticello, from August 16, 2010, at Columbia University.

Sehat on The Myth of American Religious Freedom

Over at the Intellectual History Blog, David Sehat (Georgia State) is posting a series of essays on “The Myth of American Religious Freedom: Religion, Morality, and Law.” They are based on material from his forthcoming book.

Here are the opening paragraphs of Sehat's first essay:

Social conservatives have been in the news in recent days, calling upon the Republican Party not to forget social issues as they put together their new election platform for November. The reemergence of social conservatism strikes a discordant note in the widespread media claim that the 2008 election signaled the end of the Religious Right. After that election, pundits and journalists rolled out numerous stories with the assertion that George W. Bush, a man brought into power through the activities of social conservatives, had so discredited the connection of faith and politics that social conservatism was, for all intensive purposes, at a political end.

Yet the continued presence of the Religious Right in the news suggests that the predicted demise of the Christian Right as a political force was premature. I, for one, am not surprised that they have not gone away, and don’t believe that they will do so any time soon. The Religious Right taps into an old tension within the United States political community over the degree to which the laws of the U.S. government and the various states rely upon a religious foundation.

You can find the next essay in the series here.

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Civil Rights and the Supreme Court: An On-Line Archive

David Achtenberg, University of Missouri-Kansas City School of Law has announced the "roll out" of his Petition to Decision website. It is "a comprehensive digital archive of all the available papers of the Supreme Court justices relating to selected civil rights cases. It may be interesting to those who study the internal workings of the Court as well as to those with a particular interest in civil rights litigation."

According to Professor Achtenberg, the website

presents an interactive timeline of the various cases, identifying every step in the justices' decision-making process and linking each step to digital copies the relevant internal papers. A typical case file includes the pool memoranda regarding certiorari (together with annotations by the various justices and their clerks), notes prior to and during the cert conference, various notes and memoranda prior to oral argument, justices' oral argument notes, justices' records of what took place at the merits conference, miscellaneous memoranda to and from the justices discussing the case, and annotated drafts of the various opinions. . . . The timelines make it possible to study the Court's handling of the cases from the filing of the petition for certiorari until announcement of the final decision.

For those who prefer to review the papers without interpretation, the website also makes it possible to view the documents in archive order, i.e., arranged into digital boxes and folders that correspond to the ones in which the original hard copies are stored. These "Archive Pages" may be particularly useful for teachers who want to give their students a feel for what it is like to do archival legal history research.

Additional features of the website include transcriptions of important but hard-to-decipher handwritten documents, short descriptions of the legal significance and background story of each case, and links to more readily publicly available documents such as briefs, appendices, oral arguments.

The website focuses on decisions in which the Supreme Court interpreted 42 U.S.C. §1983, the principal statutory vehicle used to sue state and local officials for violations of constitutional rights. The long range plan is for Petition to Decision to include a wide range of §1983 cases dealing with issues such as municipal liability, official immunity, color of law, etc. The current, pilot version of the website is limited to cases dealing with municipal liability issues. Additional case files and features will be added on a regular basis.

Documents of State Constitutional History

The July 2010 issue of Common-Place carries a brief notice by Arthur Rolston on The NBER/Maryland State Constitutions Project, which Rolston describes as "a much needed source providing in a single database the text of virtually every version of, and amendment to, every state constitution from 1776 through roughly 2000. The National Bureau of Economic Research, the National Science Foundation, and the University of Maryland support the project, with research undertaken under the direction of John Wallis, professor of economics at the University of Maryland."

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Journal of Supreme Court History

[We have the following call for submissions from the Journal of Supreme Court History.]

The Journal of Supreme Court History, a publication of the Supreme Court Historical Society, invites submissions of articles on a continual basis. The Journal welcomes articles on any topic relating to the history of the Supreme Court and its members, although pieces that are purely doctrinal or statistical tend not to be accepted. Submissions are reviewed by members of the Board of Editors, and authors are usually notified within five weeks as to whether their submission has been accepted for publication. Authors are not restricted from submitting to other journals simultaneously.

There is no particular length requirement. The Journal uses endnotes instead of footnotes and discourages the use of prose in endnotes. A variety of note styles is acceptable as long as there is consistency within the article. Because each article features 5 to 10 illustrations, we encourage authors to submit a wish list of illustration ideas, and, if possible, photocopies of any illustrations they specifically require. Illustrations research and permissions are handled by the Journal staff.
For over thirty years the Journal of Supreme Court History has been serving the legal profession, historians, and the public. When launched in 1976 as an annual publication it was titled Yearbook 1976 Supreme Court Historical Society. It changed its name to the Journal of Supreme Court History in 1990 and became a biannual publication in 1996. The Journal became a trimester publication in 1999 and appears in March, July, and November.

Articles may be submitted to any of the following:

Melvin I. Urofksy,
Editor
Email: urofsky@comcast.net

Timothy S. Huebner
Associate Editor
Email: huebner@rhodes.edu

Clare Cushman, Managing Editor
Email: chcush@aol.com

Hat tip: H-Law

Happy to be back!

Greetings! I’m so pleased to be joining the blog as a "regular." Like Mary and Dan, I’ll be posting about scholarship, professional opportunities, and, occasionally, my own research. I also hope to bring to the blog my perspective as a junior legal historian, grappling with questions that many early career scholars encounter. Look for future posts on when it is appropriate to “let go” of an unpublished manuscript or article, whether to post work on SSRN, and what to expect at academic conferences. I’m by no means on expert, but I’d also like to initiate conversations about the elements of a good introduction, the purpose of a dissertation (a first draft of the book, or something else?), and the value of workshops. Other ideas? Please feel free to leave a comment below.

ASLH Members: Please Vote

We have the following, via H-Law, from professor Sally Hadden, the Secretary of the American Society for Legal History:

The ASLH elections for board of directors and the nominating committee are now in progress. We'd like to encourage as many members to participate as possible. The candidate mini-biographies and official ballot are to be found here or here. Ballots need to be postmarked by November 7 to be counted.

Rigertas on the Bar's War on the Unauthorized Practice of Law

Laurel Rigertas, Northern Illinois University, has posted Lobbying and Litigating Against “Legal Bootleggers: The Role of the Organized Bar in the Expansion of the Courts' Inherent Powers in the Early Twentieth Century. It appeared in the California Western Law Review 46 (Fall 2009). Here’s the abstract:

This article examines the historical origins of the judiciary’s inherent power to define the practice of law and argues that the origins of the doctrine might be more grounded in the economic concerns of the legal profession than in the separation of powers doctrine. The organized bar first focused on curbing unauthorized practice in the 1920s. At that time, its main strategy was to lobby state legislatures to define the practice of law. These efforts were largely unsuccessful and by the mid-1920s legislative reform efforts waned. The organized bar renewed its efforts to curb the unauthorized practice of law after the start of the Great Depression in the 1930s. Rather than lobbying legislatures to define the practice of law as it did in the 1920s, however, it changed its strategy and began litigating the issue. In its shift in strategy, the organized bar suddenly contended that trying to define the practice of law would be unwise. Furthermore, citing the separation of powers delineated in the state constitutions, the bar shifted course and now argued that it would be unconstitutional for legislatures to define the practice of law because that was an exclusive power of the judicial branch. The new strategy succeeded and resulted in case law that expanded the inherent powers of the state judiciaries to include the power to define the practice of law.

Evidence suggests the organized bar did not abandon its legislative reform efforts because of concerns about the separation of powers. Instead, the bar might have shifted strategy out of concern that other interest groups, such as realtors, could successfully counter their legislative lobbying efforts, undermining the organized bar’s effort to gain a definition of the practice of law favorable to its economic interests. The shift in the organized bar’s strategy, and the timing of the shift, raises the question of whether the courts’ inherent power to define the practice of law has a solid mandate from the state constitutions and the separation of powers doctrine, or whether the power developed to serve protectionist interests of a private trade group - the bar - which had the cooperation of the judiciary due to their shared membership in the legal profession.

Where to go for book news

deep in the heart of Texas

For the Sunday book reviews this week, since I am on the road, please visit Ralph Luker at Cliopatria.  Or you can try my usual source:  Arts & Letters Daily.

Welcome back to Karen Tani

I'm happy to announce that Karen Tani is joining the Legal History Blog as our third "regular" on-going blogger.  Readers will remember Karen from her stint as a guest blogger earlier this year, and her guest posts on ASLH panels.

Karen Tani

Karen is a Ph.D. candidate at the University of Pennsylvania, where she also earned her J.D.  This year she is a Samuel I. Golieb Fellow in legal history at New York University School of Law.  She is interested in twentieth-century legal history, with a focus on social welfare programs, welfare rights, and the rise of the administrative state. Her Ph.D. dissertation is "Securing a Right to Welfare: Public Assistance Administration and the Rule of Law, 1938-1960." Her publications include Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of "New Property," which appeared in the Law and History Review.

Karen is a Member of the Board of the American Society for Legal History. At Penn, she received a Dean's Scholar award from the School of Arts and Sciences in recognition of her academic performance and intellectual promise.

Welcome back to Karen!