Kent on The New Originalism and the Foreign Affairs Constitution

Andrew Kent, Fordham University School of Law, has posted The New Originalism and the Foreign Affairs Constitution, which is forthcoming in volume 82 of the Fordham Law Review.  Here is the abstract:    

This symposium essay addresses how the new originalism – focused on the objective semantic meaning that the Constitution’s text would have had to hypothetical members of the adopting generation – grapples with particular interpretive issues raised in the constitutional foreign affairs area. I first suggest that new originalism struggles with background norms of the common law or the law of nations which were understood by some members of the Founding generation to implicitly qualify or restrict parts of the constitutional text. This issue is omnipresent in foreign affairs law because courts, executive officials, and other interpreters must decide whether the boundaries of the Constitution’s broadly written protections for life, liberty, and property extend to domains such as wartime or extraterritorial activity by the U.S. government, or to persons beyond the paradigm case of U.S. citizens within the United States. The Constitution’s meaning is significantly altered depending on whether unwritten general law is allowed to undercut textually broad rights. Second, I suggest that the exacting textualism practiced by many new originalists might only imperfectly understand certain aspects of the foreign affairs Constitution. This is because some of it was drafted hastily and poorly, certain important topics were not addressed at all, and some Founding-era interpreters understood the foreign affairs portions of the Constitution in a holistic manner focused on purpose and structure, instead of parsing text in the manner of new originalism. This potentially large gap between results reached by new originalism and the expectations and practices of the Founders problematizes new originalism’s claim to be based on the public meaning of the text to the adopting generation.

Quebec Secession at the Clough Center

The next public event at Boston College’s Clough Center for the Study of Constitutional Democracy is the panel Quebec Secession: Constitutional, Comparative, and Historical Perspectives. It will take place Wednesday, October 23, 2013, at 12:00 p.m. in the Barat House, Boston College Law School.  The panelists are Frank Iacobucci, a former Justice of the Supreme Court of Canada; Robert A. Burt, the Alexander M. Bickel Professor of Law at Yale University; and Jamie Cameron, a professor at the Osgoode Hall Law School.  Space is limited. Lunch will be served.  RSVP to clough.center@bc.edu by 10/18.

Martin's "Rich People's Movements"

Tax resisters have had their historians, including Carolyn Jones, who contributed a chapter on Viven Kellems to a book I edited with Victor Jew.  Now comes Isaac William Martin’s Rich People’s Movements: Grassroots Campaigns to Untax the One Percent (Oxford University Press).  Here’s the description:

On tax day, April 15, 2010, hundreds of thousands of Americans took to the streets with signs demanding lower taxes on the richest one percent. But why? Rich people have plenty of political influence. Why would they need to publicly demonstrate for lower taxes-and why would anyone who wasn't rich join the protest on their behalf?

Isaac William Martin shows that such protests long predate the Tea Party of our own time. Ever since the Sixteenth Amendment introduced a Federal income tax in 1913, rich Americans have protested new public policies that they thought would threaten their wealth. But while historians have taught us much about the conservative social movements that reshaped the Republican Party in the late 20th century, the story of protest movements explicitly designed to benefit the wealthy is still little known. Rich People's Movements is the first book to tell that story, tracking a series of protest movements that arose to challenge an expanding welfare state and progressive taxation. Drawing from a mix of anti-progressive ideas, the leaders of these movements organized scattered local constituencies into effective campaigns in the 1920s, 1950s, 1980s, and our own era. Martin shows how protesters on behalf of the rich appropriated the tactics used by the Left-from the Populists and Progressives of the early twentieth century to the feminists and anti-war activists of the 1950s and 1960s. He explores why the wealthy sometimes cut secret back-room deals and at other times protest in the public square. He also explains why people who are not rich have so often rallied to their cause.

For anyone wanting to understand the anti-tax activists of today, including notable defenders of wealth inequality like the Koch brothers, the historical account in Rich People's Movements is an essential guide.

Here’s the TOC:

Introduction: The Riddle of Rich People's Movements
Chapter One: The Revolution of 1913
Chapter Two: Populism against the Income Tax
Chapter Three: The Sixteenth Amendment Repealers
Chapter Four: The Most Sinister Lobby
Chapter Five: The Power of Women
Chapter Six: The Radical Rich
Chapter Seven: Strange Bedfellows
Chapter Eight: The Temporary Triumph of Estate Tax Repeal
Conclusion: The Century of Rich People's Movements

Morrison, "Membership Crime and the First Amendment"

Steven R. Morrison (University of North Dakota School of Law) has posted "Membership Crime and the First Amendment." Here's the abstract:

This Article provides a new history of the substantive birth of the First Amendment in 1919. Through this new history, the Article presents a doctrinal argument. As to the historical part, this Article explores two aspects of the history that have, until now, gone largely unnoticed. The first aspect is the application of criminal conspiracy charges against dissidents in federal and state courts. The second aspect is the use of criminal syndicalism laws at the state level, also against dissidents. These laws were, essentially, statutory conspiracy laws.

As to the doctrinal part, this Article argues that the accepted history of the First Amendment’s substantive birth is fundamentally incomplete. That accepted history is that the four seminal 1919 cases — Schenck v. United States, Frohwerk v. United States, Debs v. United States, and Abrams v. United States — comprised a sharp break from prior First Amendment jurisprudence that would result in the robust free speech rights we now enjoy. The new history that this Article sets forth shows two things. First, the 1919 cases were predictable products of their World War I-era time, which the Article sets as 1918-1927. Second, anti-dissident cases in this era were conspiracy or membership crime cases (including three of the 1919 headliners), and so assembly should have been the preferred First Amendment right, not speech.

“Sovereignties” at Vanderbilt

[Here, somewhat belatedly, is the announcement of "Sovereignties," the Vanderbilt History Seminar this academic year.]

The theme of “sovereignties” offers [the Vanderbilt History Seminar] an opportunity to examine forms of power over a vast temporal and geographic terrain, from the most ancient kingdoms and empires to the modern nation-state. From this perspective, this theme will allow us to engage with fresh and exciting work in political, intellectual, and social history, much of it stimulated by living through an era of global history in which the borders and powers of nation-states have become deeply unsettled.  This unsettling has prompted interest in other kinds of polities across history—empires, city states, confederacies, and tribes—and how they have exercised control over their territory and peoples. It has also generated interested in the deployment of power by groups living “in between” territorially demarcated polities, both on land and at sea. We intend to explore the meanings of sovereignty and power in these borderlands and international maritime zones. And we will be keen to connect our interest in sovereignty to recent work on the break up of colonial empires, the formation of post-colonial and post-independence states, and the religious, ethnic, and racial identities that flourished in these political spaces.

Issues of sovereignty raise intellectual and social questions as well as political ones. We are interested in how different societies and legal regimes have defined sovereignty over time. We will chart how medieval polities began to distinguish the rights of rulers and subjects, and of “superior” and “inferior” groups, in varying parts of a domain, and how such distinctions congealed over time into early modern discourses about “sovereignty.” We will explore the ideologies and practices of “popular sovereignty” launched by the Atlantic Revolutions of the late eighteenth and early nineteenth centuries. And we will inquire into attempts made by rulers, from absolute monarchs to ordinary heads of families, across a broad array of state and non-state polities, to exercise sovereign power over the persons and, in many cases, the actual bodies of those who comprised their households.  Thinking about “household sovereignty” will make gender and reproduction key categories of our historical exploration.

Sovereignty raises questions, finally, not just about political power and patriarchal rule but also about mastery over the self. Self-rule, virtue, and a capacity for independence have been foundational elements of republicanism wherever it has appeared (ancient Greece and Rome, early modern Italian city states, eighteenth-century France, British America and Spanish America); on the other hand, a wide variety of discourses across history, from the theological to the medical and psychological, have challenged this vision of the autonomous, knowing, and disciplined self.  We will use the opportunity afforded by the sovereignty theme to explore varying conceptions of personhood across time and space.

[Participants and papers after the jump.]

New Release: Edited Collection on Substantive Law and Procedure in English Legal History

New from Cambridge University Press: Law and Legal Process: Substantive Law and Procedure in English Legal History, edited by Matthew Dyson (University of Cambridge) and David Ibbetson (University of Cambridge).

The Press explains:

This collection of papers from the Twentieth British Legal History Conference explores the relationship between substantive law and the way in which it actually worked. Instead of looking at what the courts said they were doing, it is concerned more with the reality of what was happening. To that end, the authors use a wide range of sources, from court records to merchants' diaries and lawyers' letters. The way in which the sources are used reflects the possibilities of legal historical research which are opening up in the twenty-first century, as large databases and digitised images – and even online auction sites – make it a practical possibility to do work at a level which was almost unthinkable only a short time ago.

TOC after the jump.

Ms. Peppercorn Considers: "How to Survive the Conference"

As we mentioned last month, guest blogger Sarah Barringer Gordon is helping us launch a new, reader-driven feature here on the blog:

Readers have responded so enthusiastically to [Gordon's] posts that we have invited her to stay on as a sort of advice columnist in residence -- someone to respond to questions about everything from applying to graduate school to publishing a third or fourth book.

She is doing this for nothing -- a peppercorn consideration, as they say in contract law -- and offers her advice with the proverbial grain of salt. With a nod to advice columnists past ("Dear Abby," "Dorothy Dix"), we will title these occasional posts "Ms. Peppercorn Considers."

Today Ms. Peppercorn considers how to survive the academic conference:

DEAR MS PEPPERCORN: I am planning to attend the ASLH meeting for the first time.  I am a graduate student in history, and I have been to the AHA, where nobody talked to me other than a couple of equally lonely grad students.  I have heard that nobody at ASLH goes to any panels, and that the conference is full of people who all know each other. Like many academics, I’m kind of geeky, so I’m really excited to meet some fellow legal history geeks but terrified at the prospect of 72 hours of social awkwardness. Should I cancel my registration and come back when I am a more established scholar?

JOYLESS IN CHICAGO

DEAR JOYLESS:  you have raised a fundamental question about “how to survive the conference.”  One could write a treatise on the subject.  For certain, the AHA is its own beast, and Peppercorn has nothing to say about that.  The ASLH, however, has distinct qualities, some of which are virtues, and others are tolerable.  First, the panels.  Very very substantive, and full of strong new work.  Yes, you are right, there is a coterie of those who spend their time drinking coffee, and doing things like laughing and gossiping.  Believe me, when you get to that point, you have arrived!  You may well be the next in line for president of the society.

CFP: Cadavers and Proofs in Early Modern European Forensic Medicine

[We have the following CFP for the conference, "The Corpse of Evidence: Cadavers and Proofs in Early Modern European Forensic Medicine."]

We invite scholars to submit abstracts for a proposed volume on the history of early modern European forensic medicine. At the center of the volume is the cadaver, observed, dissected and manipulated to provide answers to the questions of doctors, lawyers, theologians. How did the practices of interrogation of the dead body evolve in the different European countries and how did the concept of proof change?

Proposals are encouraged which, while based on specific case studies, can provide ample stimulus for reflection and allow for comparisons between countries with different cultural, and particularly scientific, traditions.

We welcome submissions on the following subjects:

- Medical-legal Literature
- Dissection practices and narratives
- Resistance to dissection
- Postmortem phenomena
- The corpse in the history of mentalités
- Comparative analyses between the various European legal systems
- Comparisons of doctors, lawyers and theologians
- Pathological anatomy and teratology
- Processes of beatification and sanctification in the Catholic Church

Those interested should submit a 300 word abstract describing the essay they propose to write. Authors should include a short cv, affiliation and contact information with their abstracts, which should be sent electronically to Dr. Francesco Paolo de Ceglia: francescopaolo.deceglia@uniba.it

The deadline for submission is November 1, 2013.."]

We invite scholars to submit abstracts for a proposed volume on the history of early modern European forensic medicine. At the center of the volume is the cadaver, observed, dissected and manipulated to provide answers to the questions of doctors, lawyers, theologians. How did the practices of interrogation of the dead body evolve in the different European countries and how did the concept of proof change?

Proposals are encouraged which, while based on specific case studies, can provide ample stimulus for reflection and allow for comparisons between countries with different cultural, and particularly scientific, traditions.

We welcome submissions on the following subjects:
- Medical-legal Literature
- Dissection practices and narratives
- Resistance to dissection
- Postmortem phenomena
- The corpse in the history of mentalités
- Comparative analyses between the various European legal systems
- Comparisons of doctors, lawyers and theologians
- Pathological anatomy and teratology
- Processes of beatification and sanctification in the Catholic Church

Those interested should submit a 300 word abstract describing the essay they propose to write. Authors should include a short cv, affiliation and contact information with their abstracts, which should be sent electronically to Dr. Francesco Paolo de Ceglia: francescopaolo.deceglia@uniba.it

The deadline for submission is November 1, 2013.

Teaching Legal History: A CFP for the Book

[We gave the following "Call for Papers from Those Teaching Legal History Courses in U.S. Law Schools."]

The October 2013 issue of the American Journal of Legal History contains a symposium on teaching legal history in U.S. law schools. As a follow-up, the symposium’s essays are going to be republished in a book entitled “Teaching Legal History: Comparative Perspectives.” The book’s publisher is the esteemed London firm of Wildy, Simmonds & Hill.  Because the space available in the book is greater than what was available in the Journal, we are seeking additional contributions that follow the style of the existing essays. Accordingly, we would be pleased to receive your submission. The operational details are as follows:

Completed essays are due by February 15, 2014 and should be e-mailed, preferably in Word, to Professor Bob Jarvis, Nova Southeastern University, at jarvisb@nova.edu. This deadline is firm and extensions will not be possible. Acceptance/declination decisions will be made as soon after the deadline as possible.

Essays cannot exceed 1,500 words and should describe how you teach the course and why you teach it as you do. The word length will be strictly enforced and footnotes, if any, should be kept to a minimum.

While we’re open to a wide variety of styles and approaches, we really want practical (as opposed to theoretical) pieces. In other words, we want to know what people are really doing in their classrooms when they teach legal history.

Although we appreciate that many folks include a lot of legal history in their non-legal history courses (particularly if they teach, for example, constitutional law), this book, like the symposium, is limited to actual legal history courses taught in U.S. law schools.

Lastly, if you do not have access to a copy of the Journal, please e-mail Bob Jarvis for a sample essay.

CFP: ASLH-ESCLH Panel on Traditions and Change

[Via H-Law, we have the followng CFP sent out by Christopher Tomlins, the Chancellor's Professor of Law, at the School of Law, University of California, Irvine,]

Proposals are invited from ASLH members interested in joining an ASLH-sponsored panel at the European Society for Comparative Legal History's biennial meeting, to be held 8-9 July 2014 in Macerata, Italy, at the University of Macerata.  (Conference proceedings will be in English.)

As part of its policy of international outreach, the ASLH has entered into an agreement with the ESCLH by which each association will sponsor a panel to take part in the other association's meeting on a biennial basis.  In 2013 the ASLH will host an ESCLH panel at its Miami meeting.  In turn, the ESCLH will host an ASLH panel at its Macerata meeting.

The theme of the ESCLH meeting is "Traditions and Changes."  The meeting organizers elaborate on the theme [here], where  additional information is available).  Here is a compressed version of the conference call:

"The conference encourages scholars to use comparative-historical approaches for working on the complex concepts of 'tradition' and 'change', both separately and in correlation.  What do we think tradition is? How is it made up, 'built' or 'invented'?  How does it relate to concepts like recollection, historical store-room, juridical experience, legal culture, and/or legal system?  What purpose does a tradition serve? Why and how is it used to promote or reject change and transformation?  Is tradition a synonym of 'past,' and change a synonym of 'future.' or does a dialectic prevail which can, at times, unite or separate tradition and change?  What role do jurists and doctrine carry in this field?  We encourage reflection not only on 'tradition' and 'change' as categories, but also on how they are used.  It is clear that power in general and public or private institutions in particular seek legitimacy though recourse to 'tradition,' or alternatively 'rationalization.'  Note also the growing use of polyvalent categories like 'western legal tradition' (both in the singular and the plural) or 'common constitutional traditions.'"

Papers for the ASLH panel will be selected with the following criteria in mind: appropriateness to the conference theme; historiographical/substantive originality; thematic unity for a single panel; and capacity to engage with the host society's scholarly audience.  Proposals on any area of comparative legal history that relates to the general theme of "Traditions and Changes" are welcome. Paper proposals submitted for the ASLH panel but not selected will be forwarded to the conference organizers for their consideration.

Participants in the ASLH panel are expected to seek funding support from their home institutions to meet the costs of conference attendance in the first instance.  "Top-up" support (maximum $5000 for the panel as a whole) will be available from the ASLH for participants whose home institutions will not meet their full expenses.  Proposals should consist of (1) a 250 word synopsis of the proposed paper, and (2) a US$ estimate of the prospective participant's expenses accompanied by a reliable estimate of the US$ funds available to the prospective participant to meet those expenses.

Proposals should be sent by email attachment to ctomlins@law.uci.edu.  Deadline for receipt of proposals is 15 December 2013.

Vinel's Political History of "The Employee"

Jean-Christian Vinel, who teaches American history at Université Paris-Diderot, has recently published The Employee: A Political History, with the University of Pennsylvania Press.  The book appears in the series Politics and Culture in Modern America, edited by Margot Canaday, Glenda Gilmore, Michael Kazin, and Thomas J. Sugrue.

Explains the press:

In the present age of temp work, telecommuting, and outsourcing, millions of workers in the United States find themselves excluded from the category of "employee"—a crucial distinction that would otherwise permit unionization and collective bargaining. Tracing the history of the term since its entry into the public lexicon in the nineteenth century, Jean-Christian Vinel demonstrates that the legal definition of "employee" has always been politically contested and deeply affected by competing claims on the part of business and labor. Unique in the Western world, American labor law is premised on the notion that "no man can serve two masters"—workers owe loyalty to their employer, which in many cases is incompatible with union membership.

The Employee: A Political History historicizes this American exception to international standards of rights and liberties at work, revealing a little known part of the business struggle against the New Deal. Early on, progressives and liberals developed a labor regime that, intending to restore amicable relations between employer and employee, sought to include as many workers as possible in the latter category. But in the 1940s this language of social harmony met with increasing resistance from businessmen, who pressed their interests in Congress and the federal courts, pushing for an ever-narrower definition of "employee" that excluded groups such as foremen, supervisors, and knowledge workers. A cultural and political history of American business and law, The Employee sheds historical light on contemporary struggles for economic democracy and political power in the workplace.

TOC and blurbs from Joseph McCartin, Nelson Lichtenstein, and Craig Becker after the jump.

Sunday Book Roundup

The Nation reviews Without Copyrights: Piracy, Publishing and the Public Domain (Oxford Univ. Press) by Robert Spoo.

"Sometimes, in the absence of copyright, publishers have paid authors and have abstained from reprinting the books of authors they haven’t paid. Ulysses, by James Joyce, considered by some the greatest novel of the twentieth century, lost its copyright protection in America on a technicality soon after it was published. But from the 1930s to the ’90s, Joyce and his estate were paid royalties from its publication in America anyway, thanks to exactly this kind of happy anarchy. In his new scholarly book Without Copyrights, the legal and literary historian Robert Spoo tells the remarkable tale, which Spoo doesn’t necessarily deem a pretty one. Spoo rather sympathizes, in fact, with the character many observers would consider the villain."

Salon publishes an excerpt of Thomas Jefferson's Qur'an: Islam and the Founders (Knopf) by Denise A Spellberg, and NPR reviews Jill Lepore's book about a Founding Father's sister, Book of Ages: The Life and Opinions of Jane Franklin (Knopf).

H-Net adds several works this week, including one of Wolfgang Knobl and Hans Joas's War in Social Thought: Hobbes to the Present (Princeton University Press), another of Robert Cassanello's To Render Invisible: Jim Crow and Public Life in New South Jacksonville (University Press of Florida) (audio interview in last week's post), a third of Nancy Kollmann's Crime and Punishment in Early Modern Russia (Cambridge), and a fourth of Judy Tzu-Chun Wu's Radicals on the Road: Internationalism, Orientalism, and Feminism during the Vietnam Era (Cornell University Press).

"As its title suggests, Radicals on the Road uses the transpacific journeys of anti-Vietnam War activists as a window into radical American and Vietnamese politics and culture in the 1960s. Its principal claim is as multipronged as its intended audience and intervention: in the 1960s American and Vietnamese antiwar activists created a transnational political community, beyond the confines of any nation-state or locality, based on a sustained critique of U.S. policy in Asia."

Weekend Roundup

• In an op-ed in the New York Times, historian Sean Wilentz (Princeton University) argues that by refusing to raise the debt limit, Congressional Republicans run afoul of the Fourteenth Amendment. The piece inspired comment from Jack Balkin (Yale Law School), here.

• From History News Network: "A Brief History of the Federal Debt Limit." 

• The Yale Law Library Rare Books Blog introduces “Built by Association: Books Once Owned by Notable Judges and Lawyers, from Bryan A. Garner’s Collection.” The exhibition, curated by Bryan A. Garner with Mike Widener, is on display until December 16, 2013, at the Lillian Goldman Law Library. 

• From the Baltimore Afro-American: "Baltimore-Born Woman Joins Harvard Law Faculty as Islamic Law Scholar"

• Jeffrey Rosen interviews Gerard N. Magliocca on his biography of John Bingham, American Founding Son, for the National Constitution Center.

• Via H-Law: "FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for a fellowship that uses the conduct of lawyers and judges in Nazi Germany as a launching point for an intensive two-week early summer program about contemporary legal ethics." More information here.

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

CFP: Cuius Regio, Eius Religio

[We have the following CFP, from Gabriela Grochola, "Leader of the Section of State and Law History, Students Learned Society," Jagiellonian University.]

Jagiellonian University. Collegium Maius. Assembly Hall.  Credit

I am writing to give you information on an international conference Cuius regio, eius religio – history of relationship between Church and State, 14-15th December, 2013. The event is organized by employers, PhD students and members of the Student Learned Society of the Faculty of Law and Administration at the Jagiellonian University.  We would like to invite young researchers of law and the history of law: graduate students, PhD students and PhD graduates. Applications for the conference should be received until the 17th November 2013 on an application form and should include a short summary of main theses (maximum 300 words; methodology, bibliography). The applications will be verified and subsequently a response will be send. What is essential, the positive decision is required to make a payment. A presentation cannot take longer than 20 minutes and texts for publishing cannot exceed the length of 20000 characters. Two languages will be used during the conference: Polish and English. An edited book, composed of verified texts, is expected to be published, likewise antecedent events.

We provide participants with one meal during the conference.  A conference fee is fixed at 70 zlotys (PLN)/18 (euro). Accommodation is not included, nevertheless help with finding hotel or hostel will be provided. Bank account number will be attached to the response to your application.  For more information please contact us via e-mail: konferencjakrakow@gmail.com.  We strongly invite you to come to Krakow.

Folgelson's "Great Rent Wars"

We’ll be posting notices of a few legal history related books published this year that only recently have come to our attention.  The first is Robert M. Fogelson’s The Great Rent Wars: New York, 1917-1929 (New Haven: Yale University Press, 2013).  Here’s the publisher’s squib:

Written by one of the country’s foremost urban historians, The Great Rent Wars tells the fascinating but little-known story of the battles between landlords and tenants in the nation’s largest city from 1917 through 1929. These conflicts were triggered by the post-war housing shortage, which prompted landlords to raise rents, drove tenants to go on rent strikes, and spurred the state legislature, a conservative body dominated by upstate Republicans, to impose rent control in New York, a radical and unprecedented step that transformed landlord-tenant relations.

The Great Rent Wars traces the tumultuous history of rent control in New York from its inception to its expiration as it unfolded in New York, Albany, and Washington, D.C. At the heart of this story are such memorable figures as Al Smith, Fiorello H. La Guardia, and Oliver Wendell Holmes, as well as a host of tenants, landlords, judges, and politicians who have long been forgotten. Fogelson also explores the heated debates over landlord-tenant law, housing policy, and other issues that are as controversial today as they were a century ago.

Writes Elizabeth Blackmar, Columbia University, author of Manhattan for Rent, 1785–1850: "A powerful history of a remarkable contest over the governance of the housing market in New York City from World War I to the eve of the Great Depression. A highly original contribution to our understanding of American urban politics."

The contents and a preview are here.

Pfander reviews Ewald on James Wilson and the Committee of Detail

Over at JOTWELL, James E. Pfander (Northwestern University) is urging readers to check out "The Committee of Detail," a recent article by William Ewald (University of Pennsylvania). The article appeared in Volume 28, no. 2, of Constitutional Commentary (2012). Here are the first two paragraphs of Pfander's review:

We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court.  Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison.  That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman.  Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.

One interesting chapter of that biography has just appeared in article form.  It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail.  Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point.  Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution.  We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record.

Read on here. The Ewald article is available here.

Teaching Legal History: AJLH 53:4 (2013)

AMERICAN JOURNAL OF LEGAL HISTORY

Volume 53, Issue 4 (October 2013)

“TEACHING LEGAL HISTORY IN U.S. LAW SCHOOLS:  A SYMPOSIUM”

Editor’s Note

INTRODUCTION

A History of Legal History Courses Offered in American Law Schools, Joan Sidney Howland

I.  OBJECTIVES

Teaching Legal History in the First Year Curriculum, Christian G. Fritz

Teaching American Legal History in a Law School,  Peter D. Garlock

Teaching Legal History at a Small Law School, Carlton F.W. Larson

What I Do When I Teach Legal History, Stephen B. Presser

Legal History in Context, Logan Everett Sawyer III

A Legal History Course for a Christian Legal Education, Craig A. Stern

II.  TECHNIQUES

Teaching American Legal History Through Storytelling, Michael Ariens

Teaching the Legal History You Write About, Scott Douglas Gerber

Art and Legal History, Timothy J. Innes

Using Videos to Teach American Legal History, Catherine J. Lanctot

Legal History Through Digital Sources, Ryan Rowberry

The Fun of Teaching American Legal History, Geoffrey R. Watson

III.  DOMESTIC SUBJECT MATTERS

Conceptualizing the Evolution of Corporate Law, Amitai Aviram

An Antebellum Slave Law Colloquium,  Bryan Camp

Teaching America’s Antitrust Laws and Their Enforcement, Thomas J. Horton

Designing a Course in Judicial Biography, Mae Kuykendall

The Search for National Identity, Sheldon M. Novick

Legal History Seminar: Leading Maryland Cases, Edward C. Papenfuse and Garrett Power

IV.  FOREIGN SUBJECT MATTERS

On Teaching the History of International Law, William E. Butler

Hawaii: Pacific Crucible of American Legal History, Williamson B.C. Chang

Reading, Writing, and Questions in Advance: Teaching English Legal History, Daniel Klerman

The Multidimensional Teaching of Legal History, Peter L. Reich

Imagination and Creativity:  My History of Marriage Seminar, Charles J. Reid, Jr.

Becoming a Legal History Teacher, Jonathan Rose

V.  LAWYERING SKILLS

Teaching Legal History in the Age of Practical Legal Education, Douglas E. Abrams

Teaching Legal History Through Legal Skills,  Howard Bromberg

Using History to Teach Students How to be Lawyers, Gregory F. Jacob

Legal History:  Teaching Skills Practicing Lawyers Need, Robert M. Jarvis

The History of Contemporary Law and Policy, Molly Selvin

What the Actions of Abe Lincoln Continue to Teach Us Today, Michael J. Slinger

Shelfer, "Special Juries in the Supreme Court"

Lochlan Shelfer, a recent Yale Law School graduate, has posted "Special Juries in the Supreme Court," which is scheduled to appear in Volume 123 of the Yale Law Journal (2013). Here's the abstract:

This Note presents the first detailed analysis of the Supreme Court’s only published jury trial, Georgia v. Brailsford (1794). It examines the case’s hitherto unstudied oral arguments and list of potential jurors, and argues that the "special jury" the Court employed was a Mansfieldian special jury of merchants. Brailsford has fascinated scholars both for the intriguing prospect of the Supreme Court presiding over a jury trial, and for the case’s provocative language on the power of juries to find the law. But for all of this interest, the case remains ill-understood. This Note’s conclusion that the Supreme Court used a special jury of merchants offers insights into both of these puzzles.

The full article is available here, at SSRN.

Hanford on Lord Campbell and the Fatal Accidents Act

Credit

Peter Handford, University of Western Australia Faculty of Law, has posted Lord Campbell and the Fatal Accidents Act, which appears in Law Quarterly Review 129 (21013): 420.  Here is the abstract:    

The object of this article is to examine the events that led to the creation of the Fatal Accidents Act and Lord Campbell’s part in them. It will therefore first briefly review his life and career, and then look in more detail at the old law, its replacement by the new law contained in the Fatal Accidents Act, and the extent of the reform.

"Saving the Neigborhood": A Conference at Arizona

We have an announcement of a conference on Richard Brooks and Carol M. Rose’s Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms, to be held at the University of Arizona College of Law, in Tucson, Arizona, on January 31, 2014.  Moderators are Robert Glennon and Brent White.  Featured panelists include Robert Gordon, Lani Guinier, Gabriel "Jack" Chin, Risa Goluboff. Gerald Torres, and Price Fishback.  Space is limited; register here.

Jones on "Narrating Slavery, Freedom, and the Haitian Revolution in Baltimore City"

Martha S. Jones (University of Michigan) has posted "The Case of Jean Baptiste, un Créole De Saint-Domingue: Narrating Slavery, Freedom, and the Haitian Revolution in Baltimore City," which was published in The American South and the Atlantic World (University Press of Florida, May 2013), edited by Brian Ward, Martin Bone, and William A. Link. Here's the abstract:

The story of the widow Volunbrun and her slaves might be told through differing analytic frames: empire, constitution making, anti-slavery constitution making, antislavery movements, political economy, high court pronouncements pronouncements, and biography.8 In this essay the answers lie in the intimate dynamics of a household and the lived experience of the enslaved people in it. Can we understand what the problem of slavery and freedom looked like for those enslaved people whose life itineraries were shaped by the meta-forces of commercial, political, and military conflict and exchange? Being enslaved in 1796 Port-au-Prince differed from being enslaved in 1801 New York City or 1818 Baltimore. Along this Atlantic itinerary, the Volunbrun slaves confronted new rules, rituals, and structures of power. Straining to adopt their perspective, we see the lived dimensions of slavery and law. We learn how enslaved people quietly navigated a complex matrix of courts, attorneys, and reformers. We will also see how the claims of Saint-Domingue's slaves in Maryland, making their lives at the intersection of the Haitian Revolution and an emerging domestic slave trade, shaped the parameters of Southern southern legal culture.

The full chapter is available here.

Penn Law's Legal History Consortium

We’ve just noticed a posting of two presentations this semester in Penn Law’s Legal History Consortium.  On Thursday, October 10, Mitra Sharafi, an Assistant Professor of Law at the University of Wisconsin Law School, will present a chapter from her forthcoming book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press, 2014).  On Thursday, October 31, Intisar A. Rabb, an Associate Professor of Middle Eastern and Islamic Studies and Law at New York University School of Law, will be presenting her paper "Toward a Portrait of Courts in Early Islamic Law."  All workshops take place in the Penn Law Faculty Lounge, Silverman 144, from 12:00-1:15 pm.

The Law and the Child in Historical Perspective

[We have the following announcement for the conference "The Law and the Child in Historical Perspective, 1400-2000," to be held June 1-2, 2014, at the University of Minnesota Law School, 229 19th Ave. South, Minneapolis, MN 55455.]

The study of the history of children, youth and childhood has grown dramatically in the last two decades, making age a new category of historical analysis.  The Law and the Child will focus on law's central role in changing understandings of childhood and children's experiences, considering among other things selfhood, family, market relations, society, and state.  Our hope is for a broad reach geographically and chronologically, from the Medieval World to the Twenty-First Century, and for papers that consider the multiple sources that intersect in the legal construction of childhood and in children's lived legal experiences.  These include race, class, gender, disability, sexuality, ethnicity, psychology, dependency, agency, citizenship, and (il)legitimacy.  We also hope papers will address topics in both civil and criminal law.  The conference, one of a series begun in 2007, is intended to showcase the work of junior scholars working the field of legal history and to bring them into conversation with senior scholars.  It is co-sponsored by the University of Minnesota Law School and History Department, the Childhood and Youth Studies Across the Disciplines IAS Research Collaborative at the University of Minnesota, the Indiana University School of Law, the University of Pennsylvania Law School and History Department, the University of Illinois College of Law, the University of Michigan Law School, and the University of Chicago Department of History.

Interested participants should submit a proposal of no more than 300 words, in Word format, accompanied by a cv of no more than 3 pages to Barbara Welke at welke004@umn.edu.  All proposals are due by 20 December 2013.  Applicants will be notified by email no later than 17 February 2014 whether their proposals have been accepted for presentation.  No previously published work will be accepted, as the conference is designed to provide a forum for productive and supportive discussion of works in progress.

Accepted participants will be required to submit a full paper, in Word format, of no more than 10,000 words by 1 May 2014.  All papers will be pre-circulated on a password-protected website, and read by all participants.  A modest travel and accommodations budget will be provided for all presenters.

Barrett at the Naming of the Robert H. Jackson US Courthouse

Credit

John Q. Barrett, St. John's University School of Law and the Robert H. Jackson Center, has posted his remarks at the naming ceremony for the Robert H. Jackson United States Courthouse, Buffalo, New York, on September 30, 2013.  Here is the abstract:

The text describes Robert Jackson’s life path, including his two years (1917-1918) living and practicing law in Buffalo near what is today the Jackson Courthouse site in the heart of downtown Niagara Square; his late 1918 confidence that leaving Buffalo, one of the nation’s great cities, to live and practice law in much smaller Jamestown, New York, would work out for the best; his legacy today in special places and buildings, including courthouses throughout the U.S. and internationally, including in Nuremberg, Germany; and his high regard, expressed in 1937 to a friend who was a new Judge of the United States District Court for the Western District of New York, for the significant work of U.S. District Judges.

This file includes photographs of Jackson’s former office and apartment buildings in Buffalo, him with his son and WDNY Judge Harold P. Burke, and the new Jackson Courthouse.

Something Else to Remember When Reading a Holmes Opinion

Credit: Wikimedia Commons

Long after the death of Oliver Wendell Holmes Jr., W. Barton Leach collected the reminiscences of the justice's legal secretaries.  George Leslie Harrison, who served Holmes in 1913-14, recalled an occasion when, after reading the draft of an opinion, he could not see how Holmes had addressed a point in contention.  When he said as much to Holmes, the justice replied that perhaps he should reread the opinion.  After doing so, Harrison still could not see that it addressed the point and returned to the justice.  Holmes pointed to a word in the opinion.  As Leach had it, “Harrison looked it up in the dictionary and found a secondary meaning which made it possible to construe the sentence in such a way as to dispose of the contention.”  The law clerk returned to Holmes and said, “All right, Mr. Justice, but I still think that there isn’t one man in a thousand who would understand the sentence that way.”  To which Holmes replied: “I write for that man.”

Routel, "Minnesota Bounties on Dakota Men During the US-Dakota War"

Colette Routel (William Mitchell College of Law) has posted "Minnesota Bounties on Dakota Men During the US-Dakota War." Here's the abstract:

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove westward.

While dozens of books and articles have been written about these events, scholars have largely ignored an important legal development that occurred in Minnesota during the following summer. The Minnesota Adjutant General, at the direction of Minnesota Governors Alexander Ramsey and Henry Swift, issued a series of orders offering rewards for the killing of Dakota men found within the State. The first order authorized the creation of a corps of volunteer scouts that would scour the "Big Woods" in search of Dakota men. They were to be paid not only a daily wage, but an additional $25 for each scalp they were able to provide the Adjutant General's Office. Subsequent orders permitted individual citizens who were not part of the volunteer corps to claim up to $200 for proof that they had killed a Dakota. These bounty orders remained in effect until at least 1868, when their constitutionality was finally questioned by the Minnesota Supreme Court in State v. Gut.

Minnesota was not the only state that placed a bounty on their Indian inhabitants. Around the same time, a bounty system was enacted by the Territory of Arizona, and one was also implemented by private citizens and local governments within the State of California. Like the bounty system in Minnesota, these programs were creatures of state and territorial law, but they were implicitly and explicitly approved by the federal government. In fact, they could be viewed as part of a much broader extermination program that was at the heart of federal Indian policy during this time period.

This article uses primary historical sources to describe the events leading up to the enactment of a bounty system in Minnesota, its creation, and subsequent on-the-ground implementation. In an attempt to avoid the pitfalls of "presentism," the legality of this bounty system is analyzed according to the laws in effect in 1863, when it was created. This article concludes that the Minnesota bounty system was illegal from its inception, as it was contrary not only the international law of war, but also the Lieber Code, which was issued by the U.S. Secretary of War in April 1863, and used to govern the conduct of Union soldiers during the ongoing Civil War.

The full article is available here.

Hat tip: Turtle Talk

Bernabe on the Theoretical Foundation and Historical Origin of the Tort Remedy for Invasion of Privacy

Alberto Bernabe (John Marshall Law School) has posted "Giving Credit Where Credit Is Due: A Comment on the Theoretical Foundation and Historical Origin of the Tort Remedy for Invasion of Privacy," which was published in 2012 in the John Marshall Journal of Computer & Information Law. Here's the abstract:

In 1890 Samuel Warren and Louis Brandeis published The Right to Privacy, which is considered by many to be the most influential law review article in the history of American tort law. Years later, in another famous and influential law review article, William Prosser attempted to complete the work of Warren and Brandeis. His proposal for a new understanding of the right to privacy, however, contradicted Warren and Brandeis’ understanding of it and, in fact, altered the character of the concept. Nevertheless, it was later adopted in the Restatement of the Law Second. Thus the traditional view of the origin of the concept of a privacy tort is that it was created by Warren and Brandeis and refined by Prosser. Although partially correct, this explanation tells only a small part of a more complex and interesting story. A more careful reading of the story shows that the article by Warren and Brandeis has been given more credit than it deserves and that Prosser’s attempt to organize the notion of a privacy torts into a small number of categories was, at best, counterproductive. The real origin of the concept of privacy as an interest that deserves protection in tort law was the common law of torts itself, best exemplified by a decision of the Michigan Supreme Court published nine years before Warren and Brandeis’ article. The right to privacy was not born in a law review article. It was born the day an uninvited stranger happened to be present when a woman was having a baby at home. It is important to give credit where credit is due; not to Prosser, not to Warren & Brandeis but to Chief Justice Marston who, in DeMay v. Roberts, was the real precursor to what we now refer to as the right to privacy.

The full article is available here.

Sunday Book Review Roundup

This week on H-Net, John Sbardellati's J. Edgar Hoover Goes to the Movies: The FBI and the Origins of Hollywood's Cold War (Cornell University Press) is reviewed.

"In J. Edgar Hoover Goes to the Movies, Sbardellati analyzes the FBI’s scrutiny of the film industry from the days of the first Red Scare after World War I through the second Red Scare of the late 1940s. In Sbardellati’s estimation, Hoover’s “sincerely held, if ill-founded” belief that Communist agents had infiltrated the industry and used the screen to spread pro-Communist propaganda to gullible, unsuspecting audiences motivated the investigations (p. 3)."

History Today takes a look at Soldier, Sailor, Beggarman, Thief: Crime and the British Armed Services Since 1914 (Oxford University Press) by Clive Emsley (here) and Your Country Needs You: The Secret History of the Propaganda Poster (Scaraband) by James Taylor (here).

LHB readers can also listen to a recent interview with author Robert Cassanello about his book, To Render Invisible: Jim Crow and Public Life in New South Jacksonville (University Press of Florida) in the New Books in History Podcast.

For those who read John Paul Stevens's review of Gary May's Bending Toward Justice (Basic Books) included in a July Book Roundup post, Professor Kevin Hoover of Duke replies to Stevens's use of "slave bonus" here in the New York Review of Books. Hoover argues

"John Paul Stevens [“The Court & the Right to Vote: A Dissent,” NYR, August 15] is confused about the history, the arithmetic, and, surprisingly, the constitutional status of the provision counting slaves as three fifths of a person for purposes of the apportionment of the House of Representatives."

The Washington Post reviews America's Obsessives: The Compulsive Energy that Built a Nation (Grand Central) by Joshua Kendall. Reviewer Megan McDonough writes,

"Control freak. Neurotic listmaker. Successful American icon. Which one of these is not like the others?
None — they all go together, according to Joshua Kendall. In his new book, “America’s Obsessives,” he profiles seven American super-achievers: political visionary Thomas Jefferson, renowned librarian Melvil Dewey, condiment titan Henry Heinz, prominent sexologist Alfred Kinsey, celebrated aviator Charles Lindbergh, cosmetic giant Estée Lauder and baseball legend Ted Williams. Kendall attributes their success to an unexpectedly powerful force: obsessive-compulsive personality disorder."

Also on the Post is a review of The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide (Knopf) by Gary J. Bass, as well as a review of America 1933: The Great Depression, Lorena Hickok, Eleanor Roosevelt, and the Shaping of the New Deal (Free Press) by Michael Golay.

Salon has published an excerpt from E. Fuller Torrey's American Psychosis: How the Federal Government Destroyed the Mental Illness Treatment System (Oxford University Press).

And finally, a review accessible to subscribers of the Wall Street Journal: American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (NYU Press) by Gerard N. Magliocca.