Chazkel and Sharfstein Win Hurst Prize

[I've added the citations to this post and so am moving it up.]

This year’s cowinners of the Law and Society’s Association’s James Willard Hurst Prize in Socio-Legal in Socio-Legal History are Amy Chazkel, City University of New York, for Laws of Chance: Brazil’s Clandestine Lottery and the Making of Urban Public Life ( Duke University Press), and Daniel J. Sharfstein, Vanderbilt Law, for The Invisible Line:  Three American Families and the Secret Journey From Black to White (Penguin Press).  Congratulations!

Amy Chazkel, Laws of Chance: Brazil’s Clandestine Lottery and the Making of Urban Public Life

Amy Chazkel tackles a fascinating subject, the illegal lottery in Rio de Janeiro that begun in the 1890s and was knows as the jogo do bicho (or “animal game”). In Laws of Chance: Brazil’s Clandestine Lottery and the Making of Urban Public Life (Duke University Press), she poses interesting and provocative questions and brings to bear unique sources on law and society in early 20th century Brazil. The state prosecuted people for holding lottery tickets, but they continued to play the game and defy the law even as the lottery was driven underground. Chazkel explores how the persistence of the jogo do bicho helps to explain the phenomenon of informal markets in Latin America; moreover, widespread popular attitudes about the lottery’s acceptability forced changes in formal law and legal enforcement practices. Ultimately the state was obliged to accommodate public acceptance of the lottery, and judicial and police enforcement practices recognized the game’s legitimacy in the eyes of the citizenry. The committee was deeply impressed by the book’s broad accomplishment; this is no mere variation on the common these of public corruption in Latin American post-colonial history. Rather, in Chazkel’s nuanced handling, this story reveals subtle shifts in the meaning of legality and authority in the formation of the modern Brazilian state.

Daniel J. Sharfstein, The Invisible Line: Three American Families and the Secret Journey from Black to White

Daniel Sharfstein’s book, The Invisible Line: Three American Families and the Secret Journey From Black to White (Penguin Press), is an elegantly written, beautifully researched reconstruction of the lives of three families who crossed the color barrier. The book’s lovely, elegant prose and exhaustive research caught the committee’s attention and stood out in a field that contained some particularly strong and worthy submissions. By meticulously tracing generations of Americans for more than 150 years, Shartstein stunningly documents the fluid nature of racial identity in the United States since the Civil War. The committee was particularly struck by Sharfstein’s literary touch; legal ideas recur as motifs throughout the narrative, lending an especially graceful tone to the book. Sharfstein’s subjects come alive through his adept recruitment of primary sources, and his willingness to let them speak for themselves as much as the records permit pairs wonderfully with his novelistic style.

"6 Things Your Dissertation Director Wishes You Knew"

The Chronicle of Higher Ed always keeps it real. This week Brainstorm blogger Gina Barreca (University of Connecticut) tells graduate students "6 Things Your Dissertation Director Wishes You Knew."

As a not-too-distant grad student, I can say that some of these might sting:

4. We do not feel the same away about all of our students. Just because we took our last advisee to dinner, does not necessarily mean that we are going to dine with you once a month. . . .

But others I think all graduate students need to hear :

6. The reason we’re working with you is that we want you to succeed. If we stopped believing there was a possibility that you’d finish, we’d have one of those long hard talks over a cup of coffee. . . .

All you dissertation directors out there: other "wish you knews"?

Friedlan's "Seeing Justice Done"

The “New Books in History” interview with Paul Friedland concerning his Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford University Press, 2012) is here.  And, while I’m at it, here is OUP’s description:

From the early Middle Ages to the twentieth century, capital punishment in France, as in many other countries, was staged before large crowds of spectators. Paul Friedland traces the theory and practice of public executions over time, both from the perspective of those who staged these punishments as well as from the vantage point of the many thousands who came to "see justice done". While penal theorists often stressed that the fundamental purpose of public punishment was to strike fear in the hearts of spectators, the eagerness with which crowds flocked to executions and the extent to which spectators actually enjoyed the spectacle of suffering suggests that there was a wide gulf between theoretical intentions and actual experiences. Moreover, public executions of animals, effigies, and corpses point to an enduring ritual function that had little to do with exemplary deterrence. In the eighteenth century, when a revolution in sensibilities made it unseemly for individuals to take pleasure in or even witness the suffering of others, capital punishment became the target of reformers. From the invention of the guillotine, which reduced the moment of death to the blink of an eye, to the 1939 decree which moved executions behind prison walls, capital punishment in France was systematically stripped of its spectacular elements.

Partly a history of penal theory, partly an anthropologically-inspired study of the penal ritual, Seeing Justice Done traces the historical roots of modern capital punishment, and sheds light on the fundamental "disconnect" between the theory and practice of punishment which endures to this day, not only in France but in the Western penal tradition more generally.

AJLH 52:3 (July 2012)

Volume 52, Issue 3, of the American Journal of Legal History (July 2012) is or will soon be in the mail.  Here is the table of contents:

Academic SAILERS: The Ford Foundation and the Efforts to Shape Legal Education in Africa, 1957-1997, by  Jayanth K. Krishnan

Individualization of Punishment and the Rule of Law: Reshaping the Legality in the United States and Europe between the 19th and the 20th Century, by Michele Pifferi                                 

Book Reviews

Judy E. Gaughan. Murder was Not a Crime: Homicide and Power in the Roman Republic, by Kevin Walker

Glenda Elizabeth Gilmore.  Defying Dixie: The Radical Roots of Civil Rights, 1919-1950, by Darrell A. H. Miller

Ethan Greenberg. Dred Scott and the Dangers of a Political Court, by Gerry Leonard                     

Peter Charles Hoffer.  A Nation of Laws: America’s Imperfect Pursuit of Justice, by William G. Merkel

Philip K. Howard.  Life Without Lawyers: Restoring Responsibility in America, by Andrew Jay McClurg

Vicki Hsueh. Hybrid Constitutions: Challenging Legacies of Law, Privilege, and Culture in Colonial America, by Lauren Benton

Calvin H. Johnson. Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution, by Douglas G. Smith

Bernie D. Jones. Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South, by Kevin Noble Maillard

J. M. Kaye.  Medieval English Conveyances, by Robert C. Palmer

Bruce A. Kimball. The Inception of Modern Professional Education, by Steve Sheppard               

Christine L. Krueger. Reading for the Law: British Literary History and Gender Advocacy, by Teresa Godwin Phelps

Roberta Rosenthal Kwall.  The Soul of Creativity: Forging a Moral Rights Law for the United States, by Robert C. Bird

Alison L. LaCroix. The Ideological Origins of American Federalism, by David J. Bederman

Mona Lynch. Sunbelt Justice: Arizona and the Transformation of American Punishment, by Marie L. Griffin

Earl M. Maltz. Slavery and the Supreme Court, 1825-1861, by  Jason A. Gillmer

Edward F. Mannino. Shaping America: The Supreme Court and American Society, by Hunter R. Clark

Mark C. Miller. The View of the Courts from the Hill: Interactions Between Congress and the Federal Judiciary, by Bruce Peabody

Francis J. Mootz III (ed.). On Philosophy in American Law, by James R. Beattie, Jr. 

Slavery, Zombies, Famous Mustachioed Men: This Week in the Book Pages

The big one this week is Eric Foner's review, for the Nation, of More Than Freedom: Fighting for Black Citizenship in a White Republic, 1829–1889 (Penguin Press), by Stephen Kantrowitz. In addition to characterizing historians as "professional killjoys," Foner discusses the historiography of emancipation. Then he gets into the book, which "chronicl[es] the struggles of Boston’s black activists over the course of the nineteenth century." Here's a bit more:

Kantrowitz argues convincingly that the familiar story of sectional crisis, civil war and emancipation takes on a different cast when viewed from the perspective of these black activists. The slavery controversy unleashed a complex, far-reaching debate about the role that racial difference should play in defining such core American values as freedom, equality and citizenship. Boston’s black leaders inserted themselves into this debate, using every means at their disposal—petitions, speeches, pamphlets, lawsuits and direct action—in pursuit of their goals. In so doing, they directly challenged the prevailing assumption that “public life was for whites only.” Kantrowitz insists, moreover, that the familiar label “black abolitionists” is a misnomer, since their goals extended well beyond ending slavery.

Read on here.

Also in the Nation: William Julius Wilson reviews (here) The Great Divergence, by Timothy Noah, and Coming Apart, by Charles Murray. We've mentioned both these books before, but WJW's comments on inequality are worth a read.

I've been waiting, just waiting, for the chance to mention Abraham Lincoln: Vampire Hunter. Given his target of opportunity, Jonathan Shapiro is admirably restrained: I counted a single, oblique reference in his review (for the Tribune newspapers) of The Impeachment of Abraham Lincoln (Alfred A. Knopf), the latest novel by Yale Law professor Stephen L. Carter.

Bill Wasik and Monica Murphy are more direct: They cite the vampire-slayer-turned-president in their intro to "The Plague Behind the Zombies" (here, in the Wall Street Journal). The article offers a preview of their book Rabid: A Cultural History of the World's Most Diabolical Virus (Viking), which comes out next week.

Also reviewed in the WSJ:

• Mark Twain and the Colonel: Samuel L. Clemens, Theodore Roosevelt, and the Arrival of a New Century (Rowman & Littlefield). According to the review (here), author Philip McFarland "delights in spotlighting the secret vitriol between these two mustachioed men."

• Jean Hélion's "cult-classic" They Shall Not Have Me: The Capture, Forced Labor, and Escape of a French Prisoner in World War II (Arcade), reissued with a new introduction and afterword (here).

• A Labyrinth of Kingdoms: 10,000 Miles through Islamic Africa (Norton), by Steve Kemper (here).  

For more on Islam, turn to the New Republic: The Book, where you'll find a review of Islamism and Islam (Yale University Press), by Bassam Tibi. Reviewer Samuel Helfont sees the book as a response to those  on the right and the left who believe "Islam and Islamism to be indistinguishable."

Bernard Bailyn (image credit)

What five books on the history of the Atlantic empire does Bernard Bailyn want you to read? Find out here, at the Browser. 

This week the New York Times covers The Elizabethans (Farrar, Straus & Giroux), by A. N. Wilson (here). Also Darwin's Ghosts: The Secret History of Evolution (Spiegel & Grau), by Rebecca Stott.

"Red or dead." The New Statesman reviews (here) Memoirs of a Revolutionary (New York Review of Books Classics), by Victor Serge.

Hackney's "Legal Intellectuals in Conversation"

James R. Hackney, Jr., Northeastern Law, has put up an SSRN post heralding the publication next month of Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory by NYU Press.  Here is Hackney's SSRN abstract:

In this book the author examines the trajectory of American legal theory in the late 20th century by way of interviewing ten leading theorists. The interviews conducted with Bruce Ackerman, Jules Coleman, Drucilla Cornell, Charles Fried, Morton Horwitz, Duncan Kennedy, Catharine MacKinnon, Richard Posner, Austin Sarat, and Patricia Williams cover a wide breadth of contemporary legal theory — including law and economics, critical legal studies, rights theory, law and philosophy, critical race theory, critical legal history, feminist theory, postmodern theory, and law and society. The topics raised in the conversations include the early lives of interviewees as thinkers and scholars, their contributions to American legal theory, and their thoughts regarding some fundamental questions in legal academe.

Here is the press's version:

In this unique volume, James Hackney invites readers to enter the minds of 10 legal experts that in the late 20th century changed the way we understand and use theory in law today. True to the title of the book, Hackney spent hours in conversation with legal intellectuals, interviewing them about their early lives as thinkers and scholars, their contributions to American legal theory, and their thoughts regarding some fundamental theoretical questions in legal academe, particularly the law/politics debate. Legal Intellectuals in Conversation is a veritable “Who’s Who” of legal thought, presented in a sophisticated yet intimate manner.

Moyn to Lecture on "Imperialism, Self-Determination and the Rise of Human Rughts

Samuel Moyn, a Professor of History at Columbia University and the author of The Last Utopia: Human Rights in History (Harvard, 2010), delivers the lecture "Imperialism, Self-Determination, and the Rise of Human Rights" at 4:00 on Tuesday, July 17, 2012, in the Library of Congress’s Jefferson Building, Rm. LJ119.  Mark Philip Bradley, Professor of History at the University of Chicago, will comment.  The event is organized by the National History Center of the American Historical Association, hosted by the John W. Kluge Center of the Library of Congress, and funded by the Andrew W. Mellon Foundation.  Here is a synopsis.

Decolonization was a human rights victory.  But did its prime movers and ideologues conceive of it in terms of the "human rights" the United Nations declared, and eventually canonized in the Universal Declaration of Human Rights in 1948?  Was self-determination a human right in those early years -- and if not, when did it become one?  This lecture investigates and answers these questions, arguing that human rights history is more interesting and accurate when it is viewed alongside decolonization, which had to conclude as a process and falter as an ideal for the contemporary enthusiasm for international human rights to explode.

More information is here.

Maggs on the Records of the State Ratifying Conventions

Gregory E. Maggs, George Washington University Law School, has posted an article on SSRN originally published in 2009 as A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457.  His abstract explains that it “is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution, 81 Geo. Wash. L. Rev. (forthcoming 2012); and Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007).  Here is the bulk of the abstract:

Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates and discussions about the proposed Constitution. Accordingly, writers often cite these records as evidence of the original meaning of the Constitution.

Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. This Article offers a concise guide to these records, providing the basic information that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the records of the state ratifying conventions. It explains theories of how the records might help to prove the original intent of the Framers, the original understanding of the ratifiers, and the original objective meaning of the Constitution's text. The Article also considers eight possible grounds for impeaching assertions made about the original meaning, recommending that anyone making or evaluating a claim about the original meaning take these eight arguments into account and that anyone using these arguments to impeach claims about the original meaning consider the possible counterarguments.

When Did Jaywalking Become a Crime?

One of the biggest changes I noticed when I moved from Philadelphia to Berkeley last year was the legal relationship between drivers and pedestrians. Under California law, drivers must stop "for any pedestrian crossing at corners or other crosswalks, even if the crosswalk is in the middle of the block, at corners with or without traffic lights, whether or not the crosswalks are marked by painted lines." More important (since I'm sure Pennsylvania has something similar), Bay Area drivers adhere rigorously to the letter of the law and, when in doubt, defer to pedestrians. Pedestrians, secure in their rights, go on their way without looking up. A colleague illuminated this for me shortly after I moved. Seeing me hovering on a curb, waiting for a chance to dart across a busy street, she laughed and said, "This is California. Watch." I did, as she confidently walked in front of an oncoming car.

All this is by way of introducing a book review in the Atlantic that I recently stumbled upon and enjoyed. Titled "The Invention of Jaywalking," the review covers Fighting Traffic: The Dawn of the Motor Age in the American City (MIT Press), by Peter Norton (University of Virginia).

Here's a taste:

[Norton] has done extensive research into how our view of streets was systematically and deliberately shifted by the automobile industry, as was the law itself.

“If you ask people today what a street is for, they will say cars,” says Norton. “That’s practically the opposite of what they would have said 100 years ago.”

And a bit more:

“If a child is struck and killed by a car in 2012, it is treated as a private loss, to be grieved privately by the family,” Norton says. “Before, this stuff was treated as a public loss – much like the death of soldiers.” Mayors dedicated monuments to the victims of traffic crimes, accompanied by marching bands and children dressed in white, carrying flowers.

“We’re talking less about laws than we are about norms,” says Norton. He cites a 1923 editorial from the St. Louis Post-Dispatch – a solidly mainstream institution, as he points out. The paper opined that even in the case of a child darting out into traffic, a driver who disclaimed responsibility was committing “the perjury of a murderer.”

The argument reminds me a bit of Barbara Welke's work on "owning hazard" (growing out of her research on the cowboy suit tragedies of the 1940s and 50s).

Read on here.

Hat tip: Bookforum

Madness or Badness: Duran and the Evolution of the Insanity Defense

We have the following word that the video of Madness or Badness: Duran and the Evolution of the Insanity Defense in the D.C. Circuit, a discussion of and reenactment of the argument in the trial of Francisco Duran for attempted assassination of the President, which was held earlier this year.]

Describing the insanity defense as giving legal life to the moral values of fairness and responsibility that the Supreme Court should uphold as a constitutional right, University of Pennsylvania professor Stephen J. Morse nonetheless expressed approval of changes in the law which Congress imposed in 1984 that excluded consideration of whether the defendant could control himself and prohibited experts from providing a conclusion on the ultimate issue. He voiced concern about the provision shifting the burden to the defendant, especially at the clear and convincing level, but said the question of "whether we get tough or tender" was a political and moral one, and not within the realm of science. Morse, Professor of Law and Professor of Psychology and Law in Psychiatry, was a principal speaker at the Historical Society's April 11 program, "Madness or Badness: Duran and the Evolution of the Insanity Defense in the D.C. Circuit."

Reprising their closing arguments in the 1995 trial of attempted Presidential assassin Francisco Duran, A.J. Kramer who defended Duran, and Eric Dubelier who prosecuted him, debated Duran's plea of insanity. Kramer argued that Duran's delusions that he had to shoot at evil forces hovering over the White House were the product of "a very sick mind." Dubelier responded that Duran's "personality problems" didn't make him insane and that he was faking his illness to escape responsibility. Duran was found guilty and sentenced to 40 years in prison under the revised standards.

In a discussion that followed, Dr. Patrick Canavan, Chief Executive Officer of St. Elizabeths Hospital, said the flow of defendants found not guilty by reason of insanity had dropped to a trickle since the changes Congress enacted after the insanity acquittal of John Hinckley.

John Frank Says He’d Rather Not

Over at the Historical Society of the District of Columbia Circuit, there is a post (dated June 29) on an interesting exchange between the noted, liberal advocate John P. Frank, and Judge Skelly Wright from 1977, in which Frank explains why he resisted his Senator’s urging to be considered for the U.S. Court of Appeals out in Arizona and Wright asks him to reconsider and also try for the D.C. Circuit.  The post includes links to scans of the two letters, reproduced from Skelly Wright’s Papers at the Library of Congress.

The Boorn Legacy?

"On Friday, July 13, 2012 at 2pm at the Manchester Court House," announces a press release, "the Vermont Judicial History Society will put on a mock trial where Stephen Boorn will seek damages from the State of Vermont for the wrongful imprisonment that he suffered."  The release elaborates:

The case of State v. Boorn (1819) is the most notorious trial in Vermont judicial history. Following a sensational murder trial, the victim, Russell Colvin, walked back into town exactly one month before Defendant Stephen Boorn was scheduled to be hung for killing him. Colvin’s reappearance sent shock waves through the legal community, and left the Vermont judiciary with a black eye, as commentators criticized the Vermont Supreme Court for allowing the conviction in spite of the lack of a dead body, the admission of coerced confessions, and what the public came to believe was a prosecution that depended on dreams as evidence and public hysteria as a trigger for judicial action.

Northwestern Law's Center on Wrongful Convictions refers to Boorn's trial as America's First Wrongful Murder Conviction.  See also Leonard Sargeant's Trial, Confessions and Conviction of Jesse and Stephen Boorn for the Murder of Russell Colvin: And the Return of the Man Supposed to Have Been Murdered (1873) or buy a copy here!

A Belated Independence Day Post

This past weekend, I engaged in my annual Independence Day ritual of rewatching 1776.  For those  unfamiliar with the film, it is an adaptation of a 1969 musical on the improbable topic of the Declaration of Independence.  It manages to simultaneously combine irreverent depictions of the Founding Fathers singing some rather absurd lyrics with more substantial historical content, including dialogue lifted directly from founding-era documents and serious consideration of slavery and the politics of the Revolution.  I know I'm not alone in my enthusiasm: when I was an undergraduate, the professor of my American Revolution lecture jokingly told us that she--and, she suspected, many of her colleagues--had become Founding-era historians as a result of this movie.

The movie has, of course, inaccuracies and flaws, but I'm always impressed at how effectively it managed to incorporate the academic currents of the era into a piece of entertainment.  It could almost serve grad students preparing for exams as a primer on the historiography of early America in the late '60s and early '70s, capturing the focus on the Founding's paradoxical coexistence of slavery and freedom (and the acknowledgment that slavery implicated the North as well as the South), the renewed interest in women's history, and the desire to retell the stories of ordinary people involved in historical events.  (I also recently learned that the movie is a document of early '70s political history as well: Richard Nixon apparently quashed one of the songs from the musical because he objected to it.)

I find it hard to think of recent film of pre-twentieth century American history that has proven similarly successful at integrating historiographical trends.  Possible candidates might in my view include Amistad, with its emphasis on the agency of enslaved Africans, and the Canadian film Black Robe, which reflected some of complexity stressed by recent scholarship on Native-European encounter.  Still, these are exceptions to the general tendency toward epics painted in broad moral strokes (such as The Patriot or Dances With Wolves) or period pieces whose self-seriousness leads, in my view, to distortion (I would place the John Adams miniseries and Terrence Malick's New World in this category).

While I do not mean to suggest we have fallen from some '60s and '70s golden age (it was, after all, also the era of John Wayne's The Alamo), I do wonder whether academic history has since changed in ways that render it more difficult to package for a broad film audience.  The demand for conventional historical narratives, like that presented in 1776, seems undiminished, but academic history focuses on less familiar, previously unappreciated accounts.  Arguably, the increased specialization and diversity of the field has made it harder for outsiders to identify a central thrust of historical scholarship.  On the other hand, the prominence of microhistories of the lives of fascinating individuals, combined with the rise of transnational history, seem ready-made for a Hollywood producer eager to produce a slick international adventure story.

I would love to hear the views of others on historical films and their relationship to academic history.  In particular, as the post above reflects, I've sought out films that overlap with my focus on early American history, but I would be eager to hear from those who study different times and places.

Marquis Reviews Freyer & Campbell, eds., Freedom's Condition ...

Here's another new one from the Law & Politics Book Review: Greg Marquis (University of New Brunswick Saint John) reviews FREEDOM’S CONDITION IN THE U.S.-CANADA BORDERLANDS IN THE AGE OF EMANCIPATION (Carolina Academic Press), edited by Tony Freyer and Lyndsay Campbell. Here's a taste:

This volume of original research essays, which began to germinate when legal history scholars met at a conference in 2008, is a useful addition to a growing list of studies on North American borderlands in general and, more specifically, the borderlands of law, legal thinking and legal institutions. It takes its title in part from the recurring theme of how borders and borderlands affected the condition of freedom for black people. Editors Freyer and Campbell, American and Canadian legal history specialists respectively, contributed not only a co-written introduction and conclusion, but also research chapters. Three of the remaining chapters focus on Canada (specifically Upper Canada or Canada West-Ontario prior to 1867) and three are case studies of U.S. states or regions. The disciplines represented include history, African American Studies and law. The focus is on how the status of free and emancipated persons of African descent was controlled and contested on three levels: the international borderlands shared by the United States and British North America; the borderlands between free and slave territory within the antebellum United States and within free state regions such as the Northwest Territory and New England. The sources used, in addition to secondary literature in several disciplines, include legal decisions, constitutional and legal treatises, legislation, newspapers, narratives of 19th century slaves and immigrants, census records, petitions and official correspondence. As with any topic involving African Americans and African Canadians, especially in the first half of the 19th century, researchers are challenged to find useful sources, especially those produced by members of minority cultures in a white-dominated legal and political system.

Marquis commends the collection "for bringing legal history perspectives to the complicated issues of the racial identity, racial control and African American resistance and agency in the U.S.-Canada borderlands in the 19th century."

Read on here.

Preserving Judicial Papers: The View in 2009

The Historical Society of the D.C. Circuit has posted, here, a transcript of a session on the importance of preserving judicial papers that was held at the Judicial Conference for the District of Columbia Circuit in 2009.  The participants were Maeva Marcus, Polly Price, Bruce Ragsdale, and Daun van Ee, with Sidley Austin's George W. Jones, Jr., moderating.  To quote the Historical Society's website:

The panelists urged the judges to preserve their personal papers in part because:

• History is best told through the eyes of the participants -- the judges of the Courts of the D.C. Circuit make history every day in ways large and small.

• Judges should not want the history of their cases written from the perspective of those who disagree with them.

• The questions scholars or historians will ask in the future are unknowable; no one today can predict with any confidence what will be relevant and useful tomorrow.

• Cases that do not warrant national headlines today may well assume far greater significance in light of subsequent events.

"What Is Applied Legal History?"

Al Brophy (UNC) asked this question yesterday, over at the Faculty Lounge (here), and offered some preliminary thoughts. The idea of "applied legal history" fits well with our recent posts (here, here, here, and here) on historians' participation in contemporary legal and political conversations.

What think ye? Is "applied legal history" a useful term? Is it a nice way of saying "law office history"? Is applied legal history to legal history perhaps what public history is to history, or does it have greater ambitions?

I confess that I sometimes worry about the demand for legal history with explicit applications to public policy or Supreme Court decisionmaking, in part because it feeds the belief that legal history without these trimmings is purely descriptive rather than "normative" (rarely the case).

Gardner Reviews Greve, "The Upside-Down Constitution"

The Upside-Down Constitution (Harvard University Press), by Michael S. Greve, is the subject of an entertaining new review in the Law & Politics Book Review. "Perhaps you, like Keanu Reeves in the film The Matrix, sit at your desk each day with the vague impression that something about the world is deeply wrong," begins reviewer James A. Gardner (SUNY Buffalo), "but you cannot quite put your finger on the problem."

Gardner continues:

Michael Greve, the John Searle Scholar at the American Enterprise Institute, would like to be your Morpheus. In this sprawling, idiosyncratic, and often frustrating book, Greve reveals The Truth: the problem, at least in the United States, is federalism, which has not merely run off the rails, but has become literally inverted, promoting what it was designed to prevent, and preventing what it was designed to promote. In a book that aspires to be simultaneously a work of political economy, constitutional history, and doctrinal critique, and that along the way also attempts a biting, corrective intervention into contemporary conservative constitutional theory, Greve explains how true federalism’s demise, and its replacement with an imposter, has caused such misery.

Greve’s basic claim is that, over the course of the twentieth century, the Constitution was “revolutionized.” By this he means much more than the conventional, and undeniable, proposition that the meaning of important provisions of the Constitution, such as the Commerce Clause, changed over time. Instead, he means something much bolder and more specific: the most significant structural provisions of the Constitution, he argues, “have come to assume the opposite of their reasonable meaning” (p.2).

Read on here. The book's TOC is available here.

Tirres Reviews Brilliant, "The Color of America Has Changed"

Writing for JOTWELL, Alison Tirres (DePaul University) has reviewed The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978 (Oxford University), by Mark Brilliant (University of California, Berkeley). The review is titled "Is Alabama the New California? Civil Rights History Through a Multiracial Lens." Here's the start:

Recently, thousands of people participated in the forty-seventh anniversary of the historic 1965 marches from Selma to Montgomery.  Now, as in 1965, voting rights were front and center: marchers protested against the recent passage of restrictive voting laws in many states, arguing that such provisions disproportionately disenfranchise voters of color.  This was familiar ground for civil rights organizers in the South.  This year, however, there was a new theme: immigrant rights.  Those marching joined in opposition to Alabama’s H.B. 56, which targets undocumented immigrants in the state.  The tone, as recounted by Trymaine Lee for the Huffington Post, was one of solidarity: marchers commented on the shared struggle and shared aims of those of African, Asian and Latin American descent, of citizens and non-citizens.

Alabama is in a new phase of its own civil rights history, but this multiracial rights frontier itself is not new.  The deep South now grapples with issues of inter-group coalition building that were at the forefront in California more than a half-century ago.  In his impressive new book, The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978, Mark Brilliant demonstrates that California experienced the challenges and rewards of “multiracial civil rights making” starting in the 1940s. (p. 12.)

Read on here.

Regular readers will recall that we mentioned the book (here) last fall, when it won the annual book prize from the William Nelson Cromwell Foundation.

Stern on Intellectual Property in "The Adventures of David Simple"

Credit

Simon Stern, University of Toronto Law, University of Toronto, has posted Speech and Property in David Simple, which is forthcoming in ELH: English Literary History 79 (2012): 623-54.  Here is the abstract:    

Throughout Sarah Fielding's 1744 novel David Simple, conflicts over the citation, attribution, and withholding of others’ words are associated with property disputes and with acts of impersonation. The novel’s villains, driven by anxieties about scarcity, repeatedly seek to appropriate their victims’ material and verbal resources, reflexively categorizing them as a kind of property. These manipulative tactics—and the novel’s ambivalent attitude towards direct quotation—point to concerns implicit in contemporaneous thought about literary property, involving the problems associated with converting words into property and the difficulty of controlling what happens to them as a result.

Girard on the State of Canadian Legal History, Circa 2007

Philip Girard, Dalhousie University Schulich School of Law, has recently posted Who's Afraid of Canadian Legal History? an article that first appeared in University of Toronto Law Review 57 (2007): 727-53.  Here is the abstract:

The ‘new legal history’ has flourished in Canada over the last three decades, ever since Andre Morel and John Brierley began their pioneering work in the history of Quebec law in the 1960s and R.C.B. Risk published his ‘Prospectus for the Study of Canadian Legal History’ in 1973. A recent survey of the field describes this body of scholarship as "striking in its diversity in substance, theoretical context and methodology, ...a far cry from the concerns of traditional English history focused primarily, as it was, on the evolution of the common law, the Royal courts, and the cast of characters who administered them and made decisions or practiced in them... [T]he focus of contemporary legal historical scholarship in Canada...extend[s] well beyond the courts and their denizens to law and legal culture in all its complexity."

Legal history in Canada is a thriving branch of ‘law and society' scholarship, one that has the power to enrich contemporary legal scholarship and legal education, to inform research in Canadian studies, and to provide a new dimension to the writing of Canadian history.

More Historians on the NYT Op-Ed Page: Goodheart Introduces Series on History and Politics

Apparently the growing swell of campaign coverage has historians thinking about politics and history. Hot on the heels of William Forbath's Friday op-ed (which Karen described here), the New York Times has published a piece by Adam Goodheart and Peter Manseau entitled "History Hits the Campaign Trail" that critiques the candidates' use of history. Goodheart & Manseau point out that Obama's recent invocation of the transcontinental railroad and the Hoover Dam ignores the reality that these "epic achievements . . . were often the products more of bitter partisan struggles than of national togetherness." They also note the curious amnesia of a Romney speech asserting that the United States was unique as a nation that "has been willing to lay down the lives of hundreds of thousands of sons and daughters and take no land in return." The speech, Goodheart and Manseau observe, was given in San Diego, on land taken from Mexico in the Mexican-American War.

Goodheart's article is the introduction to a series that "will examine a statement about history made in the course of the campaign and offer commentary from a range of experts, along with primary and secondary sources." This first installment includes thoughts from a variety of historians of diverse political views, including Ted Widmer, Richard White, Anthea Butler, Michael Hiltzik, and Richard Brookhiser. So we'll have something to look forward to in the long slog of campaign coverage to come.

Read the full piece here.

Economic History, Church-State Doctrine, the Pursuit of Al Qaeda: This Week in the Book Pages

Stepping into the discussion of Michael Lind’s Land of Promise: An Economic History of theUnited States (Harper) (it was reviewed once in the New York Times and noted in a David Brooks column), Jack Rakove, writing in TNR: The Book reminds us that “the notion that Hamiltonian and Jeffersonian values have repeatedly struggled against each other in ordering our discussions of economic policy is a well-established theme in American history.”  Rakove warns those wondering what a real Hamiltonian or Jeffersonian would think about contemporary economic policy to “proceed with a great deal of caution,” and is critical of Lind’s “juxtaposition of Hamiltonian and Jeffersonian themes.”  The complete review is here.

More on the economy in TNR: The Book: Eric Posner reviews Edward Conard’s Unintended Consequences:Why Everything You’ve Been Told About the Economy is Wrong (Portfolio Hardcover).  "Conard presents himself as a critic of the move back toward regulation, exemplified by the Dodd-Frank Act, and as a defender of free market principles," explains Posner.  The book, in his appraisal, is a  "hodgepodge of the good and the bad."

Marc O. DeGirolami reviews Steven K. Green’s The Bible, The School, and the Constitution:The Clash that Shaped Modern Church-State Doctrine (Oxford University Press), which as Karen noted here was also reviewed recently in the Law and Politics Book Review.  "In his fine book" DeGirolami writes "Steven Green does his part to rectify [the] misapprehension" that debate over church-state matters began in 1947 by showing "that many of the disagreements about the school question which we believe are contemporary culture-war phenomena had antecedents in nineteenth-century debates and exchanges."  Read on here. 

In the New York Times this week Jonathan Mahler reviews two books on the pursuit of Al Qaeda: Terry McDermott and Josh Meyer, The Hunt forKSM: Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed (Brown & Company), and Seth G. Jones, Hunting in the Shadows: The Pursuit of Al Qa’ida Since 9/11 (Norton & Company).

The New York Times also has reviews of David B. Frisk’s If Not Us, Who?: William Rusher, National Review, and the Conservative Movement (ISI Books) (here) and Chris Matthews reviews Douglas Brinkley’s Cronkite (Harper), which he describes as an “exceptional biography” (here).

In the Wall Street Journal "The Indomitable de Gaulle" is a review by Frederic Raphael of two books: Jonathan Fenby's The General: Charles de Gaulle and the France He Saved (Skyhorse) and Sudhir Hazareesingh's In the Shadow of the General: Modern France and the Myth of De Gaulle (Oxford). 

Happy reading!

Update 
Shawn Francis Peters’s The Catonsville Nine: A Story of Faith and Resistance in the Vietnam Era (Oxford University Press, 2012) is reviewed in the Boston Globe and the Wall Street Journal.  DRE.

Weekend Round-Up

• “Challenging Punishment: The War on Drugs, Race, and Public Health” is the subject of a Call for Papers from Donna Murch (Rutgers University) and Samuel Roberts (Columbia University; Mailman School of Public Health). More here. (hat tip: H-law)

• The American Academy in Berlin invites applications for its residential fellowships for 2013-13. Follow the link for more information.

•  The Georgetown University Law Library announces, here, a recent acquisition, Matthew Hale's annotated copy of Matthew Parsis's Monachi Albanensis Angli Historia Major. 

•  No Foundations: Journal of Extreme Legal Positivism has "relaunched" as No Foundations: An Interdisciplinary Journal of Law and Justice. Check out the current issue here. (hat tip: H-Law)

• The Socio-Legal Review, a student-edited, peer-reviewed journal, published by the Law and Society Committee, National Law School of India University, Bangalore, invites submissions.

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

"Making Legal History": Papers from the Nineteenth British Legal History Conference

Recently published by Cambridge University Press is Making Legal History: Approaches and Methodologies, edited by Anthony Musson and Chantal Stebbings, both of the University of Exeter.

From Musson and Stebbings’s introduction:

On a balmy summer evening in July 2009, delegates from over twenty countries met over a glass of Pimm’s in the arboretum of the University of Exeter, an event heralding the opening of the Nineteenth British Legal History Conference – three days devoted to intellectual exploration of the Making of Legal History.  The approaches to and methodology of the writing of legal history was for the first time the subject of a major conference with lawyers and historians from common law jurisdictions of the world joining with their civil law compatriots to address the fundamental mechanics of their trade.  A stimulating programme of some seventy presentations transcending period and subject specificity – some addressing the theme by means of a case-study, others espousing a particular approach – revealed the diversity and breadth of individual scholars’ approaches to legal historiography.  Its Catholic nature was underlined by the delegates attending: members of the legal profession, independent scholars, university teachers, archivists, librarians, doctoral students – representatives of every facet of the world of legal history research.

This volume reflects something of the eclecticism of the conference.

Here are the contents:

Foreword: reflections on 'doing' legal history.  Sir John Baker

1.    Editing law reports and doing legal history: compatible or incompatible projects.  Paul Brand
2.    The indispensability of manuscript case notes to eighteenth-century barristers and judges.  James Oldham
3.    Judging the judges: the reputations of nineteenth century judges and their sources.  Patrick Polden
4.    Benefits and barriers: the making of Victorian legal history.  Chantal Stebbings
5.    The historical turn in late nineteenth-century American legal thought.  David M. Rabban
6.    The methodological debates in German speaking Europe (1960–1990).  Marcel Senn
7.    Exploring the minds of lawyers: the duty of the legal historian to write the books of non-written law.  Dirk Heirbaut
8.    Comparative legal history: a methodology.  David Ibbetson
9.    'They put to the torture all the ancient monuments': reflections on making eighteenth-century Irish legal history.  Sean Donlan
10.    The politics of historiography and the taxonomies of the colonial past: law, history and the tribes.  Paul McHugh
11.    Lay legal history.  Wilf Prest
12.    Antiquarianism and legal history.  Michael Stuckey
13.    Re-examining King John and Magna Carta: reflections on reasons, methodology and methods.  Jane Frecknall-Hughes
14.    Visual sources: mirror of justice or 'through a glass darkly'?  Anthony Musson
15.     Sanctity, superstition and the death of Sarah Jacob.  Richard Ireland.

Legal Historians in the Op-ed Pages: Forbath on the "Workingman's Constitution"

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Continuing our coverage of historians' responses to the Supreme Court's Affordable Care Act decision (and related to Greg's recent musings on historians and advocacy), here's a link to a New York Times op-ed by William Forbath (University of Texas, Austin).

"[I]n much the same way that the conservative court of the 1930s forced Franklin D. Roosevelt and his allies to construct the constitutional foundations of the New Deal state," Forbath writes, "today’s court challenges the White House, the Democrats and the liberal legal community to reassert a constitutional vision of a national government empowered 'to promote the general Welfare' and — in Justice Ruth Bader Ginsburg’s terse formula — 'to regulate the national economy in the interest of those who labor to sustain it.'"

They won't have to look far, Forbath argues. "[T]here is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation."

Read on here, at the NYT's "Campaign Stops" blog.

Hat tip: RBB

Ramsey on the Talbot Murder Case

Carolyn B. Ramsey, University of Colorado Law School, has posted A Diva Defends Herself: Gender and Domestic Violence in an Early Twentieth-Century Headline Trial, which appeared in the St. Louis University Law Journal 55 (2011): 1347.  Here is the abstract:

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend that press coverage of Mae Talbot’s trial and others like it served an important social function. It helped to make intimate-partner violence a public issue and to define men’s brutality toward their wives as improper and unmanly. However, the newspapers did not always get the story right. Despite reporters’ speculation that Mae would plead insanity, her defense team centered its case on the alternative theories of justifiable homicide and accident. The jury instructions given in the case and filed with the Washoe County Court tell an even more interesting story of a judge who supplemented black-letter self-defense law with commentary on gender roles and the decline of men’s right to beat their wives. The newspapers, the defense lawyers, and ultimately the trial judge all seemed to see the case as one in which the deceased’s wrongful behavior — that is, his brutality toward the defendant — played a central role. Mae was acquitted because she killed a man widely perceived to have violated his duties toward her as a husband. Although she was a glamorous entertainer, her case resonated with the acquittal of many ordinary women accused of murdering their batterers in the late 1800s and early 1900s.

New Issue of "History": Book Reviews and More

The July 2012 issue of History, the journal of the Historical Association, is out.

Book reviews of interest include:

• Levi Roach on Linda Tollerton, Wills and Will-Making in Anglo-Saxon England (Boydell, for York Medieval Press) (here).

• Catherine Rider on P. G. Maxwell-Stuart, Witch Beliefs and Witch Trials in the Middle Ages: Documents and Readings (Continuum) (here).

• Paul Brand on Karl Shoemaker, Sanctuary and Crime in the Middle Ages, 400–1500 (Fordham University Press) (here).

The issue also features an article by Levi Roach on "Submission and Homage: Feudo-Vassalic Bonds and the Settlement of Disputes in Ottonian Germany."

Griffin's "Bibliography of Executive Branch War Powers Opinions"

Stephen M. Griffin, Tulane University Law School, has posted A Bibliography of Executive Branch War Powers Opinions Since 1950.  Here is the abstract:

Intended as an aid to future scholarship, this is a bibliography of executive branch legal opinions on war powers since 1950, after the beginning of the Korean War. They are listed in chronological order. Most have been published as public documents, although some were confidential at the time they were written and are available only from presidential libraries. This is not a comprehensive bibliography, as it is limited to opinions that are related to the initiation of war, including interpretation of the 1973 War Powers Resolution, rather than the exercise of presidential power during war. I provide brief comments on the various items in the bibliography at the end.

Ziegler on the Antiabortion Origins of Grassroots Originalism

Mary Ziegler, St. Louis University School of Law, has posted Grassroots Originalism: Rethinking the Politics of Judicial Philosophy, which is forthcoming in the University of Louisville Law Review. Here is the abstract::

How has originalism become so politically successful? Whether its appeal is intrinsic or depends on the political outcomes it promises, leading studies a gree that the popularization of originalism came from the top down: elite actors persuaded grassroots activists to endorse originalism. By focusing on arguments about the backlash against Roe v. Wade, this Article argues that current studies of originalism as a political practice are fundamentally incomplete. First-generation originalists like Antonin Scalia, Robert Bork, and Lino Graglia defend originalism in part by pointing to the negative political and social consequences of any alternative approach. Roe has been the most powerful example used in consequentialist arguments for originalism. By failing to adhere exclusively to constitutional text or history, as Scalia has argued, the Roe Court forced lay people to question the Court’s legitimacy and, in so doing, helped to create the antiabortion movement.

However, these consequentialist contentions of originalism and against Roe emerged not in the academy or in the courts but within the grassroots Right. In 1980-81, antiabortion activists began arguing that Roe should be overruled because of the consequences of the Court’s activism: the creation of the antiabortion movement, the polarization of debate, and the effective preclusion of any meaningful legislative compromise. These activists were not simply attracted to originalism because of its inherent worth or because of the results it produced. Instead, members of the grassroots Right pioneered justifications that later featured in the work of first-generation originalist scholars. As the Article shows, the politics of originalism have been conducted from the bottom up as well as from the top down.

There is a good deal at stake in understanding the role of the grassroots Right in creating consequence-based justifications for originalism. First, by assuming that academics, politicians, and judges have dominated the politics of originalism, we have misunderstood important popular arguments for originalism or judicial restraint. Grassroots claims about originalism have a distinctive language, and their purpose and rhetoric differ considerably from the arguments articulated by politicians and professors. A second implication concerns the legal academy. The materials assembled here suggest that the battle for the future of constitutional interpretation will not be won by whoever has the best theory. The politics of judicial philosophy have involved an unpredictable and highly contingent give-and-take between grassroots activists and the political and judicial elites. This will likely to continue to be the case in the future.

A Defense Lawyer's View of the Tokyo War Crimes Tribunal

Brannon's Defense Team at IMTFE

In an earlier post, Karen Tani referred to the Georgetown University Law Center’s posting of some documents from its recent acquisition, the letters John G. Brannon, a defense attorney at the  International Military Tribunal for the Far East, convened in Tokyo in April 1946, wrote to his brother.  The main body of his papers, including legal documents, correspondence, photographs, printed materials, and memorabilia relating to his work in Tokyo, went to the Harry S Truman Library in 2010.  Georgetown’s holding of his letters to his brother, which I recently had occasion to review, are not without their interest.

In a December 17, 1946 letter, for example, Brannon reported that although he seemed “calm and cool” in court, his pulse was “doing acrobatics” and that the chief prosecutor’s whispered instructions to his associate to “get up and object to that” tipped off that the prosecution was “a bit rattled” by his defense.

Further, Brannon’s papers reveal some of the burdens under which the defense team labored.  One member, “an old man,” proved to be “worse than useless to us” and had to be sent home over infractions apparently committed because he was “half screwy over young Japanese girls.”  Brannon complained that he could not access the materials needed to show how the United States’ maneuvers in the Pacific in 1935 threatened the Japanese Navy.  Transportation to and from their quarters also was a problem.  “Sedans have been taken away from us except in the evening,” Brannon reported, because the colonel in charge of his section “hates us and all defense lawyers. . . .  If I have to quit because of him and the tightening of facilities I’ll make it heard from top to bottom.”

Still more valuable are the insights the letters provide into Brannon's calculations of self-interest and perception of national duty, which brought him to a position somewhat short of the ideal of zealous advocacy.  He is pleased with the praise he won in the Japanese press for his defense of a Japanese admiral and exults, “I’m in like Flynn.”  He knows that if he gets his client off with a life sentence “it would be a legal feather in my cap.”  Still, in examining an American admiral, he decided to pull “punch after punch,” rather than reveal him to be “asinine and silly beyond belief,” because he “did not want an American high ranking officer disgraced before this court of British, Russian, Chinese etc. personnel.”  To state the obvious, Brannon’s thoughts about how to proceed with “the scrawny old neck of [Admiral Osami] Nagano . . . resting in my hands” raises issues of professional ethics that are bound to engage any scholar or student who encounters them.

Karen’s original post noted that Georgetown has the papers of another defense lawyer, George Yamaoka.  Georgetown’s other recent acquisitions addressing the rule of law in international affairs include the papers Edward J. Murphy Papers, George Finch Papers; and Quincy Wright.  Murphy handled appeals from the Tokyo and the Nuremberg war crimes tribunals.  Finch, I’m told, was the constant confidant and assistant of the great international law expert James Brown Scott and, in his own right, an important builder of the Carnegie Endowment for International Peace, the American Society of International Law, and the Hague Academy of International Law.  He has a series of correspondence files on the Bricker Amendment.  Wright was a political scientist at the University of Chicago who wrote extensively on international relations.  The Murphy and Finch papers are open to researchers now; the Wright papers are expected to be accessioned next spring.

New in the AHR, Continued

Continuing our coverage of latest issues of the American Historical Review --

In the April 2012 issue, you'll find an article by Alison Frank on "The Children of the Desert and the Laws of the Sea: Austria, Great Britain, the Ottoman Empire, and the Mediterranean Slave Trade in the Nineteenth Century." Book reviews include:

• Gary P. Leupp on Philip C. Brown, Cultivating Commons: Joint Ownership of Arable Land in Early Modern Japan (University of Hawaii Press).

• Stephen Robertson on Susan J. Pearson, The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America (University of Chicago Press).

•  John Dinan on Gerard N. Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press).

• Charles L. Zelden on Brian D. Behnken, Fighting Their Own Battles: Mexican Americans, African Americans, and the Struggle for Civil Rights in Texas (University of North Carolina Press).

•  Philip F. Rubio on David Hamilton Golland, Constructing Affirmative Action: The Struggle for Equal Employment Opportunity (University Press of Kentucky).

• Lisi Oliver on Karl Shoemaker, Sanctuary and Crime in the Middle Ages, 400–1500 (Fordham University Press).

•  Thomas Max Safley on Joel F. Harrington, The Unwanted Child: The Fate of Foundlings, Orphans, and Juvenile Criminals in Early Modern Germany (University of Chicago Press).

• Stefan Winter on Max Weiss, In the Shadow of Sectarianism: Law, Shiˁism, and the Making of Modern Lebanon (Harvard University Press).

New in the AHR: "Turns" in Critical Perspective and More

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The latest issues of the American Historical Review contain material worth spotlighting here (full content is for subscribers only).

The June 2012 issue features a forum on "Historiographic 'Turns' in Critical Perspective."

Book reviews include:

• Miles Ogborn on Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (Cambridge University Press).

• Nandini Chatterjee on Mithi Mukherjee, ed., India in the Shadows of Empire: A Legal and Political History 1774–1950 (Oxford University Press).

• Amy Dru Stanley on Tracy A. Thomas and Tracey Jean Boisseau, eds., Feminist Legal History: Essays on Women and Law (NYU Press).

• Michael G. Carew on James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (Oxford University Press).

• Mawil IzziDien on Norman Calder, Islamic Jurisprudence in the Classical Era (Cambridge University Press).

Next up: A look back at the April 2012 issue.

Dissents and Concurrences: Historians on the ACA Decision

[Bumping to the top to call attention to a few updates - KMT]

I'd be happy to post and update a roundup of other legal and constitutional historians' commentaries on the ACA case, if brought to my attention. For starters, here are ones by Gerard N. Magliocca, Indiana University-Indianapolis Law, and Stephen Presser, Northwestern Law.

UPDATE: Over at Balkinization, John Witt (Yale Law) has contributed a guest post titled "The Secret History of the Chief Justice’s Obamacare Decision." [KMT]

Under the auspices of the American Historical Association, the historians David T. Beito, Alan Brinkley, and Beatrix Hoffman weigh in on the case here.

Here's an ACA-related post from Ken Kersch (Boston College) at Balkinization: "Research Note: The Postwar Right’s Constitutionalist Anti-Tax Movement." [KMT]

My Georgetown colleague John Mikhail notes historical precursors to Justice Ginsburg's notion of an implied federal power to promote the general welfare, including an address Theodore Roosevelt delivered in 1906.

Some Thoughts on Historians and Advocacy

I'm excited to join the conversation on Legal History Blog this month.  In particular, I hope to offer a grad student perspective in some of my future posts.

Today, though, I wanted to address an entirely different topic--namely, the role of legal historians as advocates, an issue raised for me by Justice Scalia's dissent in the recent decision in Arizona v. U.S.  The dissent attracted attention (at least until Thursday) for its critique of the Obama administration's immigration policy, but I was struck by its heavy reliance on historical argument, even for an originalist like Scalia.  Parts invoked strange counterfactuals, like Scalia's assertion that the delegates to the convention would have run to the exits when confronted with the prospect of an exclusive federal power to limit immigration (an unlikely fear when states were anxious to attract, not exclude, immigrants).  But it also rested on more solid ground, in particular drawing heavily from Gerald Neumann's article on the "Lost Century of Immigration Law." (My sense is that Neumann's account of antebellum immigration policy is respected and influential; my adviser steered me to it to crib for a lecture on the history of immigration in a legal history survey.)

My point is not to critique Justice Scalia's historical claim about state authority, nor to evaluate the argumentative leap from the descriptive conclusion that states regulated aspects of immigration in antebellum America to the normative conclusion that their continued exercise of this authority does not conflict with federal policy.  What struck me was that Scalia's historical argument went unchallenged, either by the majority or by an amicus brief by legal historians. (I haven't read all the amici, so it's possible others made a historical argument; the United States did not in its brief, apart from a couple citiations to the Federalist).  Scalia lost, so it wasn't necessary to rebut him; still, his reliance on states' antebellum regulation efforts, which Neumann and others have recognized were heavily intertwined with race and slavery, and the omission of any mention of the Reconstruction amendments, left his claims open to an easy line of criticism.

Many legal academics I've talked to are sometimes frustrated by historians' unwillingness to give them what they want--namely, a useable past that can be used in advocacy, and, particularly for those of a liberal bent, to challenge the arguments advanced by conservative originalists.  And my coclerk asked me why historians criticize decisions after the fact, rather than try to influence them during deliberation. 

These criticisms are somewhat unfair, since historians do file amicus briefs, particularly in prominent cases: for instance, in Heller, in Lawrence, and this term, in Kiobel (among others).  And there are good reasons for historians to abstain from advocacy in certain cases.  Besides the general concern about the distorting effect of advocacy on scholarship, briefs rarely capture the complexity that good history depicts.  Historically oriented cases also attract briefs by historians on both sides, in a sort of arms race that may end--at least in the mind of a non-historically-trained outsider--as a wash.  Finally, it may not be effective: much compelling historical scholarship on legal issues has had little effect on the direction of jurisprudence.

Despite these caveats, I feel that legal historians have an obligation to speak up during some of these debates.  Since we have a foot in both methodologies, we are especially well-positioned to craft legally convincing historical arguments, in a field where history matters.  And there is no shortage of ideologues of all stripes who will peddle pseudo-scholarship and much-maligned "law office history" to achieve their desired results.  As someone who studies the history of Indian law--where history plays such an important role and yet is often poorly understood--I feel this responsibility particularly keenly.

I would love to hear the views of readers on this topic in the comments, particularly if (unlike myself) they have experience in employing their scholarship in public debates.