Wednesday, January 31, 2007

New Web Resource: Documents from Medieval and Early Modern England from the National Archives in London, now On-line

The University of Houston Law Center is announcing a promising new web resource: The Anglo-American Legal Traditions project. The Law Center's announcement follows. Thanks to Al Brophy for passing this on.
The O’Quinn Law Library at the University of Houston Law Center is proud to announce the inauguration of the extraordinary new website, the Anglo-American Legal Tradition – AALT.
The AALT is the result of over fifteen years of negotiation with the National Archives of the United Kingdom by Robert C. Palmer, Cullen Professor of History and Law at the University of Houston. The license with the National Archives permits the free, non-commercial, public display and use of the images captured by Professor Palmer’s ongoing project to acquire images of the main categories of court records over almost four centuries (c.1272 – 1650); at this point, some 450,000 images have been acquired. Access to these documents was previously possible only through use of the original documents at the National Archives itself.
The AALT will be a great boon to the far-flung scholars of Anglo-American legal history. In order to facilitate use of these ancient documents Professor Palmer has supplied guides to paleography and overviews of English legal history, as well as links to other websites of interest to legal historians. The AALT will continue to add images from the National Archives, as well as collections of historical documents from other court systems in the Anglo-American legal world. If others wish to contribute to the general endeavor at other archives and lack only the resources to run a website, the intention of this website is to be available to host such materials, as long as they are legally oriented and meet the general standards for image quality and public availability. The AALT site has the financial resources to continue as a public resource and to grow as materials are offered.
Please visit the AALT website, here, and join us in welcoming this valuable resource.

The site is still new and materials are being added, so initial users may need to spend a little time working with it. From a quick look, it seems best to begin with the explanatory materials at links on the right side of this page, after entering the site. Ultimately, you get to sources like this, under "Palaeography Assistance: English."

Post-Doc at Penn: Democracy, Citizenship and Constitutionalism


2007-2008 Academic Year
Application Deadline: March 15, 2007
The Penn Program on Democracy, Citizenship, and Constitutionalism (DCC) invites applications for a one-year DCC Postdoctoral Fellow in any discipline whose research is pertinent to the Program’s 2007-2008 theme, “Citizenship, Borders, and Human Needs.” The Program welcomes both empirical and normative scholarship, focused globally or on particular nations, regions, or communities, that explores the economic, political, security or cultural needs that are and are not met by institutions dividing the world into civic communities with relatively closed borders.
The Democracy, Citizenship, and Constitutionalism program is an interdisciplinary initiative, funded by the Mellon Foundation, which includes a faculty seminar series and annual conference on themes chosen by the Program’s Faculty Advisory Council; a graduate workshop series; and undergraduate research grants. The DCC Postdoctoral Fellow is expected to participate in the faculty seminar series, teach a Freshman Seminar on a related topic, and joint monthly meetings to discuss the progress of undergraduates receiving research grants. The Fellow also has the opportunity to pursue the Fellow’s research and study and participate generally in the intellectual life of the Penn community. Stipend is $52,000, plus health insurance.
Eligibility is limited to applicants who will have received their Ph.D. within five years prior to the time they begin their fellowship at Penn (i.e. May 2002 or later). Application deadline: March 15, 2007.
For guidelines and applications, see the School of Arts and Sciences website or write Office of the Dean, School of Arts and Sciences, University of Pennsylvania, 116 College Hall, Philadelphia, PA 19104-6377. For more information on the Penn Program on Democracy, Citizenship, and Constitutionalism, contact DCC Program Chair Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science,

The University of Pennsylvania is an equal opportunity/affirmative action employer.

Miccio: Invoking the History of the Battered Women's Movement to Critique the Present

G. Kristian Miccio, Univ. of Denver, has posted an abstract for an article that appeared recently in the Houston Law Review, A House Divided: Mandatory Arrest, Domestic Violence, and the Conservatization of the Battered Women's Movement. The article begins with a section on the battered women's movement of the 1970's and 80's, "Remembering Our Roots," and then critiques the movement's later development. Here's the abstract:
Using the prism of mandatory arrest in domestic violence cases, Professor Miccio engages an interdisciplinary approach in analyzing of a shift in the modern battered women's movement which embraces a conservative ideology on the issue of women's resistance and survival. Drawing from history, political, philosophical and legal theory, Miccio makes a compelling case as to how the right wing of the movement, which she terms the Protagonists - have distorted the ideological basis for mandatory arrest - in crafting conceptions of individual and collective responsibility. Miccio draws from the Holocaust philosophers in arguing that battered women are moral agents even when refusing to leave an abusive relationship or in refusing to align with mandatory arrest. This article provides an exacting historical analysis which reconnects mandatory arrest with its historical moorings while raising critical theoretical and moral questions about the power of the state over the individual.

Uviller and Merkel on Konig and the Right to Bear Arms

H. Richard Uviller, Columbia and William G. Merkel, Washburn, have a short abstract to lead you to an article, Scottish Factors and the Origins of the Second Amendment: Some Reflections on David Thomas Konig's Rediscovery of the Caledonian Background to the American Right to Arms. The article appeared in the Law and History Review. Here's the abstract:
Engages Konig's thesis that knowledge of the Scottish militia's suspension after the Act of Union in 1707 shaped American understanding of the constitutional right to arms, and suggests that English and domestic North American perspectives remained the dominant influences on constitutional discourse in the United States when the Second Amendment was drafted and ratified.
While checking out this posting, I discovered this would have been one of the last of the late Professor Uviller's publications. A memorial note about Professor Uviller from the Columbia Law School webpage is here.

U.S. Judges get their History from...Wikipedia

While I was on the road...

The New York Times reported that U.S. judges often turn to Wikipedia as a source cited in their opinions. Yikes! Here's the Times:
A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.

More than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal, one step below the Supreme Court. (The Supreme Court thus far has never cited Wikipedia.)

Even Judge Richard Posner likes it, and has cited to it in an opinion, even though there was a mistake in his own listing, with Ann Coulter, who he had never met, listed as a former law clerk. “Wikipedia is a terrific resource,” Posner told the NY Times. He noted, however, that “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.” Good call.

Another Wikipedia lover is none other than the venerable Cass Sunstein of the Univ. of Chicago Law School, now visiting at Harvard. He seems to think there is a time and place for it, however. "I don’t think it is yet time to cite it in judicial decisions.” He also told the Times that "he feared that 'if judges use Wikipedia you might introduce opportunistic editing' to create articles that could influence the outcome of cases."

The embrace of Wikipedia in legal circles is happening at a time when it is being banned as a cite-able source in some undergraduate settings. Inside Higher Education recently reported the Middlebury College History Department's decision to bar students from citing to web sources, and other efforts to restrict use of Wikipedia. According to the article "'As educators, we are in the business of reducing the dissemination of misinformation,' said Don Wyatt, chair of the department. 'Even though Wikipedia may have some value, particularly from the value of leading students to citable sources, it is not itself an appropriate source for citation,' he said."

Inside Higher Ed also talked to the guru of history on the web, Roy Rozenswieg, director of the Center for History and New Media at George Mason University. After analyzing Wikipedia for the Journal of American History,
he found that in many entries, Wikipedia was as accurate or more accurate than more traditional encyclopedias. He said that the quality of material was inconsistent, and that biographical entries were generally well done, while more thematic entries were much less so....He said the real problem is one of college students using encyclopedias when they should be using more advanced sources.

"College students shouldn’t be citing encyclopedias in their papers," he said. "That’s not what college is about. They either should be using primary sources or serious secondary sources."

(Rozenswieg's essay with Daniel J. Cohen, "Web of Lies? Historical Knowledge on the Internet," embracing the relationship between history and the internet with open eyes, is here, on First Monday.)

And judges? In writing opinions? Perhaps we should hold them to standards no lower than Rozenswieg's history undergraduates.

Tuesday, January 30, 2007

Arcila on Rethinking Probable Cause and the 4th Amendment in the Framers' Era

Fabio Arcila Jr., Touro College, has posted an abstract for new paper, Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One. The paper itself is not posted. For that, readers are asked to contact the author. His contact info is here.
This article, the first of a two-part series, argues that during the Framers' era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment's restrictions. Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake to presume that the law was necessarily implemented in accordance with this elite guidance. This is because justices of the peace, the non-elite judges who actually issued search warrants, had reason to believe that judicial sentryship of probable cause was often optional. Evidence supporting this conclusion can be found in treatises, as well as manuals for justices of the peace, legal forms, civil search statutes, and case law, as well as the extended development of probable cause sentryship jurisprudence, which continued well past 1950. American justice of the peace manuals and legal forms play a particularly important role in this story, as it is likely they had a profound influence on search warrant procedure given the laxity in legal education and judicial training, as well as the limitations on legal research, during the Framers' era. Please contact the author for a copy of the draft manuscript.

Glashausser on the Global Legal History of the New York Yankees

Alex Glashausser, Washburn, has posted a paper, A Global Enterprise (in Courting the Yankees). The essay is a chapter in Ettie Ward, ed., Courting the Yankees: Legal Essays on the Bronx Bombers (Carolina Academic Press, 2003). (Here's hoping the author will update his listing to include full book citation info with his paper). The collection includes many essays on the Yankees in legal history, including Ward's own chapter on "The Catcher Who Fell to Earth." Here's Glashausser's abstract:

The New York Yankees may be, with apologies to the Atlanta Braves, “America's Team.” But from Babe Ruth's barnstorming tour of Cuba in 1920 through the recruitment of current stars such as Hideki Matsui, the baseball team has operated internationally. Along the way, it has encountered various legal obstacles. This chapter details the Yankees' involvement in a wide variety of international legal issues both serious and frivolous, ranging from the fabled defection of Orlando Hernandez from Cuba to the criminal and civil litigation that embroiled Dave Winfield in Canada after he beaned a seagull.

Park on Chinese Environmental Regulation since 1949

DaeYoung Park, Ghent University, has posted the abstract for a new paper, Revisiting the Chinese Legal System and Environmental Regulations from 1949 to 2005. The paper itself is not posted, but Professor Park's contact information is available. Click on the paper title. Here's the abstract:
This paper explains the gap between the conception (or expectation) of foreign investors and reality of Chinese regulations on the environmental issues. Two decades of the sustained economic growth in China might be enough for foreign investors to expect increased clarity, transparency and systematic approaches in environmental regulatory system. This paper traced the Chinese legal system back to 1949 as from 2005 so as to explain this gap between expectation and reality by employing historical and statistical analysis of regulatory developments. In the paper, for example, we will see the first official statement on environmental protection, i.e. Huanjingbaohuguihuayoadianhezhuyaocuoshi, which was issued by the State Council on 15 December 1974, and impacts of the Cultural Revolution (Wenhuadageming) of 1966-1976 on legislative activities in China. These will explain why Chinese environmental regulations may not meet expectation of foreign investors. At the same, the paper recommends where the Chinese legislators may have to close the gap for its sustained and sustainable economic growth.

Council on Foreign Relations: Records at Princeton, Finding Aid now On-line

This news release comes from Seeley G. Mudd Manuscript Library, Princeton University, via H-Diplo:

Finding aid for Council on Foreign Relations records at Princeton University now available online

The records of the Council on Foreign Relations, the influential American foreign policy organization, have been fully arranged and described, and an electronic version of the finding aid is available on the website of Princeton University's Seeley G. Mudd Manuscript Library. (The direct link is here. If you have trouble with the link, go here, and search for "Council on Foreign Relations.")
The majority of the council's records were transferred to the Mudd Manuscript Library for research in 1998, and a gift agreement was completed between the council and Princeton University in 2003. Additional, noncurrent records of the council are deposited at Mudd Library annually. Currently, the collection totals nearly 400 linear feet -- 800 boxes -- and includes records related to the inner workings of the council as well as the minutes of off-the-record meetings and study groups.
The Council on Foreign Relations was founded in 1921 by businessmen, bankers and lawyers determined to keep the United States engaged in the world. Today, the council is composed of men and women from all walks of international life and from all parts of America, dedicated to the belief that the nation's peace and prosperity are firmly linked to that of the rest of the world. From this flows the council's mission: to foster America's understanding of other nations -- their peoples, cultures, histories, hopes, quarrels and ambitions -- and thus to serve our nation through study and debate, private and public. Its widely respected and influential research staff -- with backgrounds in government and scholarship in almost every international subject -- regularly meets with council members and other leaders and thinkers. These exclusive sessions, known as study groups or roundtables, form the council's intellectual core. The aim is to provide insights into international affairs and to develop new ideas for U.S. foreign policy, particularly national security and foreign economic policy. Council fellows produce books, articles, manuscripts and op-ed pieces and regularly contribute expert commentary on television and radio. The council also publishes Foreign Affairs, the leading periodical in the field, which has printed some of the most important articles about world affairs....
The finding aid describes each series of the collection and includes historical notes, scope and content notes and arrangement information, as well as a full folder listing. In addition to the folder lists, indices are extant for the early records (circa 1920-1973) of three of the council's departments: Studies Department, Meetings and Conferences. The index to the Conferences has already been incorporated into the online folder list. The Meetings index will be available electronically shortly, and plans are being made to digitize the Studies Department index as well. The council's records currently include two temporary series that hold the most recent acquisitions, from May 2005 and June 2006; these series are described briefly and a full folder list is available for their materials. Most of the records within these series, and portions of records in the other 13 series, remain closed under the council's rule that records are closed for an initial 25-year period and then open only under the council's nonattribution rule.
The Mudd Manuscript Library recently has begun a digital audio transfer project that will make recordings of selected council meetings dating back to 1953 available online in digital format. Funding for this project was provided by over 20 members of the council and the John Foster and Janet Avery Dulles Fund.

Merkel on Jefferson's Response to Gabriel's Uprising

William G. Merkel, Washburn, has posted an article on SSRN, To See Oneself as a Target of a Justified Revolution: Thomas Jefferson and Gabriel's Uprising. It appeared in American Nineteenth Century History. Here's the abstract:
Examines Jefferson's response to Gabriel's Uprising and argues that Jefferson employed the language of criminal theory in urging Virginia Governor James Monroe to spare the lives of convicted conspirators for the sake of justice and the state's image before the enlightened world. Jefferson's analysis of the slave rebels' acts and intentions makes clear that – at least in abstract, philosophical terms – Jefferson saw the slave uprising as justified, while he viewed white Virginia's resort to deadly force to counter the revolt as at best excusable.

Monday, January 29, 2007

Inside Advice: Submitting your ASLH Proposal (by Feb. 1!)

This comes from Risa Goluboff, Co-Chair of the Program Committee, 2007 American Society for Legal History Conference.

This is a reminder that proposals for the 2007 annual meeting of the American Society for Legal History are due this Thursday, February 1. The meeting will be held in Tempe, Arizona, October 25-28, 2007. For those of you considering submitting a paper or a panel proposal, here are some things to think about:

If you’re submitting a paper: You want to submit a CV, an abstract of the paper, and, if you have one, a draft of the paper. The draft does two things: it gives the program committee a better sense of what your paper is about than a one-paragraph abstract; and it shows that you actually have a paper, as opposed to some speculation about a paper you might have next October. If you don’t have a paper, however, don’t despair. Most submissions just contain a CV and an abstract. In your abstract, you should definitely include a description of the topic and the thesis of the paper, as well as pertinent historiographical background. In addition, any clues you can give about broader themes or methodological approaches would be beneficial. This is not to say you should submit a long list of all of the possible panels your paper could join. But as the program committee puts panels together, it is helpful to have a sense of where your paper fits into larger thematic and methodological contexts.

Although not all "orphan" papers can be accommodated, good panels are often created from single paper submissions. So don't be dissuaded from submitting a proposal if you don't have a full panel.

If you’re submitting a panel: When submitting a panel, in addition to the CVs, abstracts, and (if available) paper drafts of the individual papers, you should submit a short description of the panel. When putting together your panel, think about the common themes—be they substantive or methodological—as well as points of temporal, geographic, or historiographical convergence among the papers. Ideally, the individual papers on the panel will have enough in common to make a conversation about them fruitful, but not so much in common that such a conversation will be boring. In the panel description, be sure to point out what holds the panel together and what discussion it is likely to provoke. It is an added bonus when a panel contains contributors at different points in their careers, whether as presenters, chairs, or commentators.

For the Call for Papers and links, click here. For details about the conference location, click here.

Remembering Robert Drinan

Robert F. Drinan, Catholic priest, former Member of Congress, and law professor at Georgetown, who died Sunday at the age of 86, is being remembered for his anti-war and human rights activism.

The Carnegie Council hosted a book talk by Drinan on his book The Mobilization of Shame: A World View of Human Rights, in November 2002. He was introduced by Joanne Myers this way:
Father Drinan is an ordained Jesuit priest. He is probably best known to many of you for the prominent role he has played in the human rights movement. He has been President of Americans for Democratic Action, a member of the National Governing Board of Common Cause and the Board of Directors of People for the American Way, the Lawyers’ Committee for Human Rights, a member of the National Interreligious Task Force on Soviet Jewry, and a founding member of the Lawyers’ Alliance for Nuclear Arms Control. In addition, he has been a member of the Board of the American Civil Liberties Union and the NAACP Legal Defense Fund. Even though this is just a sampling of his c.v., you must agree it reads like a Who’s Who of human rights organizations.

And although his voice is most often heard as a defender of human rights, others may remember him as one of the most outspoken critics of the Vietnam War when he was elected to Congress from Massachusetts, serving from 1971 to 1981.

Drinan concluded his own remarks with this statement:
It was said by Solon, the ancient Athenian jurist, 2,000 years before Christ: “Justice will not come until those who are not hurt feel just as indignant as those who are hurt.”
For the rest of his remarks, click here. For a bio of Drinan, click here. For a bibliography of his works, click here.

Call for Papers: Historical Society Conference on Migration, Diaspora, Ethnicity & Nationalism in History

Call for Papers
The Historical Society’s 2008 Conference
The relentless thrust of globalization and the unexpected termination of the Cold War have increased rather than reduced global tensions. These developments force us to reconsider some themes once thought to be exhausted. Migrations, the formation of Diaspora communities, and the resurgence of ethnicities, both old and new, have transformed nationalisms and conventional conceptions of the nation-state. The 2008 conference will consider the above themes.
With such considerations in mind, the Historical Society is pleased to announce that the organizing theme for 6th conference, scheduled for early June 2008, will be "Migration, Diaspora, Ethnicity, and Nationalism in History." The conference will be held in Baltimore, Maryland. We envision a meeting in which historians across fields come together to deepen and enrich the state of knowledge about these vital concerns.

Franklin W. Knight will chair the 2008 conference program committee.
Please send 6 copies of your proposal—no more than 2 pages—accompanied by a brief curriculum vitae to:

2008 Conference
The Historical Society
656 Beacon Street, Mezzanine
Boston, MA 02215

Proposals will not be accepted via e-mail. The deadline for proposals is March 1, 2007.
Questions? Email us at or call (617) 358-0260. For the Historical Society website, including descriptions of past conferences, click here.

Witt: Finding American Nationhood in "Hidden Histories of American Law"

John Fabian Witt, Columbia, has posted an abstract on SSRN for his creative and engaging new book, Patriots and Cosmopolitans: Hidden Histories of American Law, just out from Harvard University Press. You can't download the book from SSRN, of course, but hopefully it's in your local bookstore, and if not, click on the title. Here's the abstract:
Ranging widely from the founding era to Reconstruction, from the making of the modern state to its post-New Deal limits, Patriots and Cosmopolitans illuminates the legal and constitutional foundations of American nationhood through the little-known stories of five patriots and critics. He shows how law and constitutionalism have powerfully shaped and been shaped by the experience of nationhood at key moments in American history.
Founding Father James Wilson's star-crossed life is testament to the capacity of American nationhood to capture the imagination of those who have lived within its orbit. For South Carolina freedman Elias Hill, the nineteenth-century saga of black citizenship in the United States gave way to a quest for a black nationhood of his own on the West African coast. Greenwich Village radical Crystal Eastman became one of the most articulate critics of American nationhood, advocating world federation and other forms of supranational government and establishing the modern American civil liberties movement. By contrast, the self-conscious patriotism of Dean Roscoe Pound of Harvard Law School and trial lawyer Melvin Belli aimed to stave off what Pound and Belli saw as the dangerous growth of a foreign administrative state.
In their own way, each of these individuals came up against the power of American national institutions to shape and constrain the directions of legal change. Yet their engagements with American nationhood remade the institutions and ideals of the United States even as the national tradition shaped and constrained the course of their lives.

Sunday, January 28, 2007

Lee on Local Law and the U.S. Court for China

Tahira Lee, Florida State University, has just posted an article on SSRN, The United States Court for China: A Triumph of Local Law, which appeared in the Buffalo Law Review. Here's the abstract:
A description of the court's jurisdiction, procedure, and application of substantive law is used to illustrate the thesis that local law exerts an inexorable force upon trial courts. The operation of the court and the cases it decided for the most part show, I argue, that those with the greatest familiarity with a problem have the most impact on the courts that are faced with that problem. This was the case at the United States Court for China despite the United States' efforts to maintain control over it and exclude local law from impact upon it. My aim is to invite a rethinking of the conventional position taken in scholarship on American legal history and scholarship on Chinese legal history that national law was superior, in many senses, to local law.

Hayward on Gordon Wood's Republicanism

Stephen Hayward has an essay, "The Liberal Republicanism of Gordon Wood," in the Winter 2006 issue of the Claremont Review of Books. He begins:
Gordon Wood is the favorite historian of America's liberal establishment. His essays appear regularly in the New York Review of Books and the New Republic, and liberalism's leading intellectuals—from Michael Sandel to Morton Horwitz to Bruce Ackerman to Cass Sunstein—regularly cite him with approbation. What virtues do they see in his work? In Wood's books, particularly his Creation of the American Republic, 1776-1787, they see a hammer with which to bash American individualism and capitalism, and to support an ever-growing administrative state.

Wood says that the American Revolution was a "republican" revolution. By that he means that it had intellectual roots ranging from ancient Greece and Rome to the English Commonwealth, and that it was more communal than capitalistic. "Ideally," he writes, "republicanism obliterated the individual." ...

For the rest, click here.

Thanks to Cliopatria for the tip.

Recent Books and Dissertations in American Legal and Constitutional History

The Journal of American History list of Recent Scholarship for March 2007 includes the dissertations and books below in its Legal and Constitutional History category. For articles, click here. For the full list of recent scholarship, click here.


Millar, Ronald B., “Coalition Networks and Policy Learning: Interest Groups on the Losing Side of Legal Change” (Virginia Polytechnic Institute and State University, 2005). Order No. DA3207020.

Szmer, John Joseph, “Unequal Justice Under Law? The Effects of Party and Attorney Capability on United States Supreme Court Decision Making” (University of South Carolina, 2005). Order No. DA3201367.


Funke, Thomas Gerrith, Die Religionsfreiheit im Verfassungsrecht der usa: Historische Entwicklung und Stand der Verfassungsrechtsprechung (Religious freedom in the constitutional law of the United States: Historical development and the state of constitutional jurisdiction). (Berlin: Duncker & Humblot, 2006. 183 pp. €68,80, isbn 3-428-11379-9.) In German.

Haynes, John Earl, and Harvey Klehr, Early Cold War Spies: The Espionage Trials That Shaped American Politics. (New York: Cambridge University Press, 2006. xii, 251 pp. Cloth, $55.00, isbn 978-0-521-85738-3. Paper, $19.99, isbn 978-0-521-67407-2.)

Janus, Eric S., Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State. (Ithaca: Cornell University Press, 2006. xii, 184 pp. $35.00, isbn 978-0-8014-4378-7.)

McAfee, Thomas B., Jay S. Bybee, and A. Christopher Bryant, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments—A Reference Guide to the United States Constitution. (Westport: Praeger, 2006. xvi, 290 pp. $144.95, isbn 0-313-31372-5.)

Orth, John V., How Many Judges Does It Take to Make a Supreme Court? And Other Essays on Law and the Constitution. (Lawrence: University Press of Kansas, 2006. xviii, 134 pp. Cloth, $25.00, isbn 0-7006-1478-8. Paper, $12.95, isbn 0-7006-1479-6.)

Simon, James F., Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers. (New York: Simon & Schuster, 2006. 324 pp. $27.00, isbn 978-0-7432-5032-0.)

Sracic, Paul A., San Antonio v. Rodriguez and the Pursuit of Equal Education: The Debate over Discrimination and School Funding. (Lawrence: University Press of Kansas, 2006. xii, 169 pp. Cloth, $29.95, isbn 0-7006-1483-4. Paper, $15.95, isbn 0-7006-1484-2.)

Steiner, Mark E., An Honest Calling: The Law Practice of Abraham Lincoln. (DeKalb: Northern Illinois University Press, 2006. x, 272 pp. $42.00, isbn 978-0-87580-358-6.)

Tamanaha, Brian Z., Law as a Means to an End: Threat to the Rule of Law. (New York: Cambridge University Press, 2006. xii, 254 pp. Cloth, $75.00, isbn 978-0-521-86952-2. Paper, $29.99, isbn 978-0-521-68967-0.)

Cooper reviews Zinn, A Power Governments Cannot Supress

Marc Cooper reviews Howard Zinn, A Power Governments Cannot Suppress, in today's L.A. Times Book Review Section. The book has strong, positive blurbs from Kurt Vonnegut, Jonathan Kozol, Michael Moore and others. Cooper finds vintage Zinn in the collection, but ultimately finds it wanting.
The publisher, City Lights Press, includes a short passage on its website in which Zinn explains his approach to history:
Zinn opens the book with an essay titled “If History is to be Creative,” a reflection on the role and responsibility of the engaged historian. “To think that history-writing must aim simply to recapitulate the failures that dominate the past,” writes Zinn, “is to make historians collaborators in an endless cycle of defeat.” “If history is to be creative, to anticipate a possible future without denying the past, it should, I believe, emphasize new possibilities by disclosing those hidden episodes of the past when, even if in brief flashes, people showed their ability to resist, to join together, and occasionally win. I am supposing, or perhaps only hoping, that our future may be found in the past’s fugitive moments of compassion rather than in its solid centuries of warfare.”
For more from City Lights, click here. Marc Cooper focuses instead on Zinn's role within the academy. Here's an excerpt:
Zinn's posture as the self-appointed scourge of American jingoism will come as no surprise to the two generations of college students who have devoured his denunciatory "A People's History of the United States." First published in 1980 and with more than a million copies in circulation, "A People's History" has been a consistent bestseller, a textbook staple and what Zinn himself has called a "counterforce" to the "mountain of history books ... so tremblingly respectful of states and statesmen and so disrespectful, by inattention, to people's movements."

The ethos of confrontation percolates throughout this new collection of Zinn's work. Maybe too much. To the degree that the book works at all to explain our recent past, it works only — and narrowly — as a partisan counterpoint to more conventional histories. Zinn's essays should be read in conjunction with more nuanced, intellectually complex and even opposing accounts. On their own, they're both a moving testament to his rather romantic, undeniably compassionate humanism and an exposé of his egregious blind spots.
For the full review, click here. For the publisher, City Lights Press, page, click here.

Saturday, January 27, 2007

Schultz on the History and Future of Sexual Harassment Law

Vicki Schultz, Yale, has posted a new article, published in the Thomas Jefferson Law Review, Understanding Sexual Harassment Law in Action: What Has Gone Wrong and What We Can Do About It. Here's the abstract:

This article, given as the Fourth Annual Ruth Bader Ginsburg Lecture, analyzes the historical development of sexual harassment law as it has played out in U. S. courts and companies over the past thirty years. I document the simultaneous overinclusiveness and underinclusiveness of the traditional approach, which defines sexual harassment as unwelcome sexual advances. I argue for a more expansive definition of harassment which turns the focus away from sexuality and places it on the broader work structures and social relations through which gender inequality is produced. I explore the implications for legal reform and scholarship.

Recent Articles in American Legal and Constitutional History

The Journal of American History has posted its list of recently published scholarship, to accompany the March 2007 issue of the journal. Below are the articles listed in the Legal and Constitutional History category. Books and dissertations will follow in a later post.

To see the full Legal and Constitutional History list, click here. For the full list of all recent scholarship, click here. (No subscription required.)
Ackerman, Bruce, “Interpreting the Women’s Movement,” California Law Review, 94 (Jan. 2006), 1421–37.

Allen, Jody, “Recovering a ‘Lost’ Story Using Oral History: The United States Supreme Court’s Historic Green v. New Kent County, Virginia, Decision,” Oral History Review, 33 (Summer–Fall 2006), 25–44.

Berkey, Curtis G., “Rethinking the Role of the Federal Trust Responsibility in Protecting Indian Land and Resources,” Denver University Law Review, 83 (no. 4, 2006), 1069–81.

Boyd, J. Barron, “Parchment Barriers Revisited: The U.S. and South African Bills of Rights,” Safundi (no. 22, April 2006)

Carpenter, Kristen A., “Old Ground and New Directions at Sacred Sites on the Western Landscape,” Denver University Law Review, 83 (no. 4, 2006), 981–1002.

Cheever, Federico, “Confronting Our Shared Legacy of Incongruous Land Ownership: Notes for a Research Agenda,” Denver University Law Review, 83 (no. 4, 2006), 1039–56.

Farber, Daniel A., “Completing the Work of the Framers: Lincoln’s Constitutional Legacy,” Journal of the Abraham Lincoln Association, 27 (Winter 2006), 1–12.

Funk Miles, Maria, “The Value of a Woman: A Comparison of the Laws and the Traditions of Divorce in Medieval Europe and Modern America,” UCLA Women’s Law Journal, 15 (Fall 2006), 139–69.

Heath, Milton S., Jr., and Alex S. Hess III, “The Governors’ Leadership Role in Developing Modern North Carolina Environmental Law: 1967–1983,” North Carolina Law Review, 84 (Sept. 2006), 2031–65.

Hughes, Justin, “Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson,” Southern California Law Review, 79 (July 2006), 993–1084.

Kamalu, Johnson A., “From Bakke to Grutter: The Supreme Court and the Struggle over Affirmative Action in the Era of Globalization,” Western Journal of Black Studies, 28 (Winter 2004), 489–500.

Peak, Kenneth J., and Jason W. Peak, “Liquor Wars and the Law,” Kansas History, 29 (Summer 2006), 84–99.

Ragsdale, John W., Jr., “The Chiricahua Apaches and the Assimilation Movement, 1865–1886: A Historical Examination,” American Indian Law Review, 30 (no. 2, 2005–2006), 291–363.

Siegel, Reva B., “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the De Facto era,” California Law Review, 94 (Jan. 2006), 1323–1419.

Silverman, Joel, “Krieger v. Mittelman and Jewish Perceptions of the Refugee in the Early Cold War,” Judaism, 55 (Summer–Fall 2006), 40–54.

Tsesis, Alexander, “A Civil Rights Approach: Achieving Revolutionary Abolitionism through the Thirteenth Amendment,” U.C. Davis Law Review, 39 (June 2006), 1773–1849.

Wilkinson, Charles, “Listening to All the Voices, Old and New: The Evolution of Land Ownership in the Modern West,” Denver University Law Review, 83 (no. 4, 2006), 945–61.

Cole on the Nixon Precedent and Contemporary Executive Power

In contemporary scholarship on executive power, invoking Richard Nixon seems to be the equivalent of invocations of Lochner in arguments about judicial review. David Cole, Georgetown, makes this move in a new article, just posted on SSRN, Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror. It has been published in the Washington and Lee Journal of Civil Rights and Social Justice. Here's the abstract:
“When the President does it, that means that it is not illegal. So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when FBI Director J. Edgar Hoover, of all people, objected to it. Nixon's approval of the program was listed in the articles of impeachment, and ultimately he was forced to resign. Nixon learned the hard way that presidents are not above the law.
In defending the NSA spying program, at least until the recent about-face, as well as in its views on enemy combatants and torture, the Bush administration has essentially revived the Nixon doctrine. This essay argues that the Bush administration's defense of the NSA spying program (and of unchecked presidential authority over enemy combatants and interrogation techniques) is fundamentally flawed, both as a matter of law and as a matter of national security policy. The argument that Congress authorized the program defies the most basic principles of statutory construction. The claim that the Commander in Chief has uncheckable authority with respect to “the means and methods of engaging the enemy” is contrary to the text of the Constitution, the structure of checks and balances, and a long line of Supreme Court precedent. And no Fourth Amendment precedent supports the notion that the president may wiretap Americans without probable cause or a warrant.

NEH Fellowships Announced

The National Endowment for the Humanities has announced its Fellowships for 2007-08. Below are the awards that seem to be the most legal history-related, but it is not always easy to tell from titles. Some additional projects may also have legal history components. For a full list of individual fellowships, click here. For the full list of recent awards, including awards to institutions, click here.

If you would like to apply for an NEH Fellowship, keep in mind that the deadline is NOT in the fall, as most other fellowship deadlines are. The deadline for the next round is MAY 1, 2007. For details, deadlines for other programs, and links, click here.

Davis Jr, Donald R.
University of Wisconsin, Madison
The Spirit of Hindu Law

Foley, Neil
University of Texas, Austin
Black and Latino Civil Rights Strategies in World War II Texas and the Southwest, 1940-1965

Gibson, Alan R.
California State University, Chico
Extending the Sphere: On the Significance and Meaning of Madison's Argument in Federalist No. 10

Hoffman, Katherine E.
Northwestern University
Language, Islam, and Law in French Berber Policy of Morocco (1912-1956)

Hoxie, Frederick E.
University of Illinois, Urbana
Challenging the State: American Indians and the "Empire of Liberty," 1800-2000

Lemire, Elise V.
SUNY Research Foundation, College at Purchase
Slavery and Freedom in Concord, Massachusetts, 1740-1822

Maier, Pauline R.
Massachusetts Institute of Technology
A Narrative History of the Ratification of the Federal Constitution, 1787-1790

Masur, Kate
Northwestern University
Black Rights and the Failure of Democracy in Civil War Era Washington

McDowell, Gary L.
University of Richmond
"The Most Sacred Rule of Interpretation": The Language of Law and the Moral Foundations of Originalism

Werth, Paul W.
University of Nevada, Las Vegas
Religious Toleration and the Civil Order in Imperial Russia, 1772-1914

Friday, January 26, 2007

Fort on the Origins of Equity Defenses and Indian Law Claims

Kathryn Fort, Michigan State, has posted a paper, The (In)Equities of Federal Indian Law, forthcoming in The Federal Lawyer. Here's the abstract:
In 2005, the Supreme Court used the equitable defenses of laches, acquiescence and impossibility to dismiss the Oneida Indian Nation's request to remove its land from city tax roles. Later cases have extended the use of these defenses into other New York land claims. This article traces the historical origins of these three defenses, the origins of equity in England and the United States and provides some suggestions to Indian law practitioners bringing either land claims or treaty rights cases.

Ownby reviews Tuck, Beyond Atlanta: The Struggle for Racial Equality in Georgia

Ted Ownby, Univ. of Mississippi, has just posted a review on H-Law of Stephen Tuck, Beyond Atlanta: The Struggle for Racial Equality in Georgia, 1940-1980 (University of Georgia Press, 2003). Ownby begins:
Stephen Tuck's book does a superior job detailing the various movements that coalesced or coincided as part of the civil rights movement in Georgia. Following the lead of many scholars who have called for local approaches to the movement, Tuck studies numerous Georgia communities, individuals, and movements to chart the nature and direction, goals and strategies, personalities and challenges, of the various struggles. The book emphasizes multiplicity.Different places had different types of movements, and those movements went indifferent directions.
The book shows the author has taken note of the various emphases popular in recent scholarship about the civil rights movement. Tuck studies both African Americans and whites, considers economics and the national context, studies religious groups, women, students, and urban leaders without suggesting that any group dominated the movement, pays more attention to the NAACP than many scholars and, above all, emphasizes variety in local contexts, leadership,strategies, and goals.
At the heart of the book are comparisons between the movement in Atlanta and the rest of Georgia....

The principal question raised in the review is about civil rights historiography. Ownby writes:

The primary concern about this book relates to its approach, which studies the civil rights movement at the local level. Is it possible that multiplicity and complexity have taken over our forms of analysis, and that scholars no longer seek main themes and broad explanations? Saying that things were complex is almost always true. Saying that things had different histories in different places is usually true as well. Tuck's book is far better than this oversimplification implies, and the author, to be fair, recognizes the potential problem. He writes early in the book that "the danger of a state study is that it produces a multiplicity of micro-histories and a proliferation of detail" (p. 5). But the broad point seems accurate--this book is best at telling numerous stories and noting how they differed from other stories. In doing so, it rejects any broad conclusions as too simple.

For the full review, click here.

Kumari on the History of the Death Penalty Debate

Areti Krishna Kumari, ICFAI University (India), has posted a new paper, Capital Punishment - The Never Ending Debate, which sees the debate on capital punishment as having deep historic roots. Here's the abstract:
The history of Capital Punishment is as old as that of mankind. In the Western world the first instance seems to be The Law of Moses, inflicting death for blasphemy. By 1179 B.C. murder was a capital crime among Egyptians and Greeks. In the beginning, offences against religion and morality attracted Capital Punishment. However, the primitive societies soon grew up into kingdoms and consequently criminal law also changed quickly. Whether it was West or East, offences against the King were considered as more serious. Thus, the political offences were also added to the religious and moral offences and Capital Punishment was prescribed for such offences also. With the advent of industrialization and advancement of civilization, Capital Punishment was prescribed for offences against the property and human body. Now, in the modern world, capital offences further covered drug-trafficking, hijacking the airplanes, bribery etc. Some Muslim countries like Saudi Arabia even want to add artificial insemination also to the list of capital offences.
Retentionists of Capital Punishment argue that Capital Punishment is necessary to maintain peace in the world since it acts as a deterrent to potential offenders. In the beginning, public opinion was also in favor of Capital Punishment in preference to life imprisonment. On the other hand abolitionists argue that Capital Punishment failed as a deterrent and no major work of any researcher ever proved its efficacy. Further they maintain that it is an inhuman punishment arbitrarily imposed on the poor, the minority, the uneducated and the downtrodden. The conflict of opinion between the abolitionists and retentionists over Capital Punishment generated a debate throughout the world about the utility of Capital Punishment in the modern world, where great importance is attached to basic human freedoms.

Greenburg on the Rehnquist Court: Interview, Excerpt, Review

Jan Crawford Greenburg's beautifully written new book on the Rehnquist Court, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, is getting a lot of press. Here's the publisher's book description:

Over the past decade, the central front of America's bitter culture wars has been the titanic battle over the composition and direction of the United States Supreme Court. During that period, no journalist has been closer to the action on the ground-the ideas, the politics, the personalities, the gamesmanship-than ABC News correspondent Jan Crawford Greenburg. Now, in Supreme Conflict, Greenburg draws on all of her formidable reportorial resources to give a brilliant, vivid, astonishingly unvarnished account of the struggle for the soul of the highest court in the land.

Greenburg picks up the plot with the Rehnquist Court, which, despite having seven Republican nominees, proved deeply disappointing to conservatives hoping to reverse decades of progressive rulings on key social issues. She reveals for the first time the real story behind a series of failed Republican nominations that enraged the American conservative movement and left it seething with frustration and resolve not to squander future opportunities. Enter: George W. Bush and the setting of the stage for a full-blown conservative counterrevolution. Supreme Conflict contains entirely fresh perspectives across the entire sweep of its story, from the conservative movement's early fumbles with the nominations of justices Anthony Kennedy and David Souter to its crowning successes with the appointments of justices Roberts and Alito. The book breaks news in its revelations about the effect of Chief Justice Rehnquist's illness on the process; on the truth behind Harriet Miers's disastrous nomination and how it was really scuttled; and on how decades of bruising battles led to the triumph of the conservative agenda with the appointment of two of its leading judicial exponents. Through the entire dramatic story, rich in character and conflict, Greenburg never loses sight of the gargantuan stakes in this struggle, the opposing ideological agendas at play.

To find a short excerpt and link to an NPR interview on Fresh Air, click here.

David Garrow's very strong review of the book begins:

YOU know the name "Woodward," as in Bob Woodward, whose insider-based accounts of Washington decision-making have been runaway bestsellers since Richard Nixon's downfall. Well, now you should remember the name Greenburg because ABC News reporter Jan Crawford Greenburg's account of what's been happening at the U.S. Supreme Court in recent years is the richest and most impressive journalistic look at the panel since Woodward co-wrote "The Brethren"
in 1979.
To see the rest, click here.

For Court-Packing Anniversary: FDR Cartoons

With the 70th anniversary coming up of Franklin Delano Roosevelt proposing his court-packing plan on Feb. 6, 1936, Alasdair S. Roberts, Maxwell School, Syracuse University, has posted a great set of political cartoons about the plan on his website. To see them, click here, and use arrows to navigate through. Citations indicating where the cartoons were published appear at the end.

Note: the collection is called "The Dictatorship Plan," and the cartoons tend to be on this theme, which was a prominent critique of the plan, and helps situate court packing politics in the context of world affairs in the late '30s. (For more on that, see David Bixby's outstanding student article in the Yale Law Journal, "The Roosevelt Court, Democratic Ideology, and Minority Rights: Another Look at United States v. Classic," 90 YALE L.J. 741 (1981).) Even though opinion ran against the plan, it was not uniform, and some sensible people supported it (e.g. Wiley Rutledge -- although surely with hopes of a Supreme Court tap). It would be interesting to see cartoons that favored the plan. I'll post cartoons or links if a reader has a useful link or file to send.

Today's post comes w/ thanks to Cliopatria and Volokh Conspiracy, who posted it first.

Thursday, January 25, 2007

Webcast: 50 years of Women's Emancipation in Tunisia

The Library of Congress has posted on its website the webcast of a symposium, Tunisia: Celebrating Fifty Years of Women's Emancipation.

The symposium was sponsored jointly by the Library's African and Middle Eastern Division and the Embassy of Tunisia. Former Supreme Court Justice Sandra Day O'Connor made a special presentation. The other speakers included Alifa Chaabane Farouk, the Ombudsman of Tunisia and a member of the Executive Board of Tunisia's ruling party, the Democratic Constitutional Rally; Hayet Laouni, an entrepreneur and founder of the shipping company Maersk-Tunisia and the international trade company EXECO; and Mounira Charrad, a professor of sociology at the University of Texas at Austin and the author of "States and Women's Rights: The Making of Postcolonial Tunisia, Algeria and Morocco."

To view the webcast, click here.

Deadline Extension: Hurst Summer Institute Applications Accepted until February 1

The deadline has been extended for this year's Hurst Summer Institute in Legal History at the University of Wisconsin. The new deadline is next Thursday, February 1.

For the previous post on this program, with links, click here.

Penn/Chicago Symposium on Law and Political Development in Modern America

Law and Political Development in Modern America

The Penn Legal History Consortium, in conjunction with University of Chicago History Department, proudly invites you to a conference on Friday, February 23, 2007 to examine some of the best new work in American law and Political development. This cutting edge field has produced some of the most innovative scholarship in American history and forged new and important connections between legal and historical research and analysis.

The conference will include major new work by younger as well as senior scholars in the field, including Risa Goluboff(University of Virginia), Serena Mayeri (Penn Law), Felicia Kornbluh(Duke), Jane Dailey (Johns Hopkins), Martha Jones (Michigan), and Erika Lee (Minnesota). The conference, which will be held at the beautiful new McNeil Center For Early American Studies (across the street from Penn Law School), is designed to be intimate and highly substantive. Among the topics the papers will examine are: the intersection of race and gender in 20th century domestic law and policy, the relationship of law to modern social movements, and questions of citizenship and American law from a transnational perspective. Keynoting the conference will be William Novak of the University of Chicago.

For further information including hotel and travel planning, please contact Anna Gavin,

Turner, "The Gay Rights State," on Wisconsin Gay Rights History

William B. Turner, Emory, has a new paper: 'The Gay Rights State': Wisconsin's Pioneering Legislation to Prohibit Discrimination Based on Sexual Orientation. Here's the abstract:
This article describes the enactment of Wisconsin's statute prohibiting sexual-orientation discrimination, the nation's first such statute. In addition to providing details of the statute itself and the process of its enactment, the article focuses on the controversy within the Wisconsin legislature on the possibility that the statute would require affirmative action for lesbians and gay men. Wisconsin statutes already contained robust affirmative action requirements for women and racial/ethnic minorities. The lead sponsor of the bill wrote in language expressly abjuring affirmative action based on sexual orientation in order to get the law passed. The article explores how the Wisconsin statute is an indication of the difficulty of making the analogy from civil rights protections based on race and sex to civil rights protections based on sexual orientation. It notes the important ways in which the Wisconsin statute is similar to, and different from, subsequent statutes that have the same purpose. It also describes the issues that arose with the implementation of the Wisconsin statute, which were relatively minor.

Call for Papers: Connecticut Constitutional History


University of Connecticut Law School, Hartford

The Association for the Study of Connecticut History (ASCH), the Connecticut Supreme Court Historical Society, and the University of Connecticut Law School are holding a one-day conference on Connecticut constitutional history to focus both on the State’s first modern constitution of 1818 and on constitutional and legal history from the seventeenth to the twentieth centuries. The meeting will feature concurrent sessions by speakers from different backgrounds on a variety of subjects.

In 2007, significant works edited by Douglas Arnold and Richard Buel, Jr. on the debates concerning and events surrounding Connecticut’s 1818 Constitution are being published. These books form the centerpiece for discussion of the significance of the 1818 Constitution in the constitutional history of Connecticut and constitutional and legal issues relating to this document and not anticipated by it.

Researchers are invited to submit proposals addressing specific aspects Connecticut’s constitutional and legal history from the time of the Fundamental Orders and Charter of 1662 to the Constitution of 1965, including but not limited to issues like government under the Fundamental Orders and Charter, the reasons for a new constitution in 1818, disestablishment, amendments to the Constitution of 1818, the work of the Connecticut Supreme Court and other courts, voting rights and representation, and the social impact of constitutional and legal developments in 19th and 20th century Connecticut.

Those interested in participating should submit a title for the paper, an abstract of its contents, and a short c.v. to Bruce P. Stark, Connecticut State Library, 231 Capitol Avenue, Hartford, CT 06106 or e-mailed (in MSWord format) to:
Application deadline is May 15, 2007.

Wednesday, January 24, 2007

Malone reviews Ball, Justice in Mississippi

Christopher Malone, Department of Political Science, Pace University, has a recent review in the Law and Politics Book Review of JUSTICE IN MISSISSIPPI: THE MURDER TRIAL OF EDGAR RAY KILLEN, by Howard Ball (University Press of Kansas, 2006). Malone begins:
The story of the deaths of Michael Schwerner, James Chaney, and Andrew Goodman were well known before the summer of 2005 when, after forty-one years, a Neshoba County jury found Edgar Ray Killen guilty on three counts of manslaughter in their deaths. What happened in between the night of their untimely murders and Killen’s conviction is the subject of Howard Ball’s engaging if somewhat repetitive new book, JUSTICE IN MISSISSIPPI. Ball, a professor of law at Vermont Law School, taught at Mississippi State University in the 1970s and 1980s. It is clear from his recitation of the “Preacher” Killen story that Ball is intimately familiar with the state as well as the players involved. In fact, this is the second time he has written about it – and JUSTICE IN MISSISSIPPI should be seen as an important follow up to his MURDER IN MISSISSIPPI.
Ball’s story begins long ago in what many might describe as a land foreign to the Mississippi in which the 80 year-old Killen was convicted on June 21st, 2005. Three civil rights workers –Schwerner and Goodman white, Chaney black – were brutally murdered exactly forty-one years earlier in the dark quiet of a dirty back road in Neshoba County, Mississippi. They came against the backdrop of an extraordinary, and extraordinarily turbulent, period in American history. Within that year alone stretching back to the summer of 1963, Martin Luther King had given his “I Have a Dream” speech at the March on Washington, John F. Kennedy had been assassinated, and Lyndon Johnson was about to sign the most important piece of civil rights legislation in the nation’s history outside of the Fourteenth Amendment. The country was already roiling, and the senseless murders of these three brave young men – who had descended upon Neshoba County simply to try to register blacks to vote – only exacerbated the conflict over civil rights in the heart of the Old Confederacy.
Their story became the rallying cry for the civil rights movement, and in 1967, after three years of investigation by the FBI, the federal government indicted eighteen Mississippi Klansmen for conspiracy to commit murder. Seven were convicted. But not surprisingly, no one was ever brought to trial at the state level for the deaths of Schwerner, Chaney and Goodman. National attention waned; the civil rights movement ran out of steam, and soon the deaths of the three civil rights workers were put in the “cold case” file.

For the rest of the story, and review, click here.

Gerber: Two Thumbs Up on PBS Supreme Court Documentary, Episode 1

Scott Gerber, Ohio Northern Univ., reviewed the first episode of the documentary The Supreme Court very positively in the December issue of the Journal of American History. At the time he wrote the review, the first episode was the only one available.

Clearly a different take than David Garrow, although Garrow seems to like episode one the best, and focused his criticism on the 20th century coverage. I'll be curious about where readers come down once the documentary airs.

Here's Gerber's closing (can't post the rest for copyright reasons):
In Seriatim: The Supreme Court Before John Marshall (NYU Press, 1998), I attempted in a collection of essays written by leading authorities of the pre-Marshall Court justices to debunk the idea that the Supreme Court did nothing of importance prior to Marshall's appointment. The strong reviews the book received suggest that the book accomplished its objective. However, it is important to remember that books and films are distinctive art forms. Film-makers must simplify their presentations, and their examinations of a historical subject cannot be comprehensive. Film-makers, in short, are telling a different type of story--one that both moves and informs--than that told in an academic book. "The Supreme Court" is an unqualified success, and I highly recommend it for both personal and classroom use.

For the rest, click here (requires subscription -- ask your library).

Barrett revisits the "Federalism Five's" Confirmation Hearings

John Q. Barrett, St. Johns, has posted a new paper on SSRN, The "Federalism Five" As Supreme Court Nominees, 1971-1991. Here's the abstract:
This article looks back at the Senate confirmation hearing testimonies of the Supreme Court nominees who became Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas. As justices, they generally voted together in path-breaking federalism cases. As nominees testifying, however, they did not announce or for the most part even much hint at what came to be their consequential judicial views of national power and state sovereignty, although they did wrestle with “federalism” as much as they were asked and required to do.

Tuesday, January 23, 2007

Garrow Reviews PBS, The Supreme Court, and Rosen companion book

David Garrow, Univ. of Cambridge, has a review coming out in American History, on both the upcoming PBS documentary, The Supreme Court, and a companion book, Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries that Defined America. He likes the book, and raises questions about the widely touted documentary. The review will be available on-line at, but isn't there yet. The print issue will be on newsstands February 6.

Update: Just found out it's ok to post the entire review. I'm doing that because it's not available elsewhere.

Here's Garrow:

ANY TELEVISION documentary that features Chief Justice of the United States John G. Roberts Jr. as one of its many “talking heads” is certainly a rare opportunity for viewers to get a personal sense of the man who now leads the U.S. Supreme Court. In the four-part PBS series The Supreme Court, Chief Justice Roberts addresses subjects ranging from John Marshall, his most illustrious predecessor, who in the early 1800s institutionalized the court’s power to interpret the U.S. Constitution, to William H. Rehnquist, whom Roberts once served as a law clerk and whose 2005 death led to Roberts’ elevation.

Throughout the series, the producers make use of a veritable army of talking heads. Some interviewees, such as David G. Post of Temple University, R. Kent Newmyer of the University of Connecticut and Lucas A. Powe Jr. of the University of Texas, are superbly well-spoken historians who bring energy and meaning to the narrative. Other academics, however, seem pompous or slightly goofy, and the producers should have reduced their oversized roster to the
most compelling speakers.

The first hour focuses largely on Marshall and the story of how he outfoxed President Thomas Jefferson, his political rival, in Marbury v. Madison, the 1803 decision in which the court bestowed on itself the power of judicial review. Illustrating a television account of a prenewsreel era requires heavy reliance on static old prints and paintings, but the producers try to enliven the program with reenacted dramatizations of scenes like Jefferson’s inauguration, where Marshall administered the presidential oath of office.

The second hour traces the court’s history from the aftermath of the Civil War to Franklin Roosevelt’s New Deal in the 1930s. Three justices—John Marshall Harlan, Stephen J. Field and Oliver Wendell Holmes Jr.—serve as focal figures. The profusion of academics describing the justices’ jurisprudence, however, makes the show feel like undergraduate constitutional history as taught by a tag team of 15 different professors, none of whom speaks for longer than 90 seconds at a time. The program also features extensive footage of what’s presented as Holmes’ home library, including a memorable shot of what are depicted as his blood-stained Civil War uniforms. Many viewers might watch this segment and wonder where Holmes’ house is and what its visiting hours are. But this too is only a recreated dramatization. At the location of Holmes’ house, 1720 I St., N.W., in Washington, D.C., now stands only a bland office

The final two hours suffer from far more substantive shortcomings. The first, covering the 1940s through the 1960s, is disproportionately focused on Justice Hugo L. Black, a former Ku Klux Klansman and Alabama senator, who became one of the court’s most outspoken liberals in the 1950s. Chief Justice Earl Warren is portrayed as a decidedly secondary figure, and the Warren Court’s most widely praised jurist, John Marshall Harlan II—the grandson of the late 19th-century justice—is never even mentioned.

The late Chief Justice Rehnquist anchors the last hour. Some additional interviewees, including retired Justice Sandra Day O’Connor, USA Today reporter Joan Biskupic and A.E. Dick Howard of the University of Virginia, add verve, but this show too is occasionally troublesome. Misleading narration falsely suggests that Justice Harry A. Blackmun was undecided about his vote in Roe v.Wade until he received advice from his wife and daughters. Justice William J. Brennan Jr., whose role as Earl Warren’s most influential colleague is mentioned just once in the third hour, is featured as Rehnquist’s ideological opposite. The producers, however, allow a conservative former Reagan administration Justice Department official, Charles J. Cooper, to assert that Brennan as a single justice exerted “greater influence on domestic social policy than any president had had.” Biographers of Lyndon B. Johnson would surely challenge the accuracy of that description.

Cooper’s characterization of Brennan is mirrored by a closing comment from Larry D. Kramer of Stanford University, who calls the Supreme Court “a huge institution at the center of American politics.” That theme serves the producers’ grandiose aspirations, but more careful and measured scholars refrain from such easy exaggerations. In a landmark article in the Harvard Law Review this past November, Frederick Schauer of Harvard makes a powerfully persuasive argument that the Supreme Court is actually far less involved in the political issues that most concern Americans than critics of the court regularly claim.

Anyone who chooses to watch these shows must do so skeptically, and the four hours would be far better spent reading Jeffrey Rosen’s superbly well-written companion volume, likewise titled The Supreme Court. Rosen, a law professor at George Washington University who writes regularly for The New Republic, The Atlantic and The New York Times, is a far more trustworthy guide to the court than the TV documentarians. Rosen too focuses first on Marshall and Jefferson, then on Holmes and the elder Harlan, but he balances his treatment of the Warren Court justices far better than the TV program.

The most valuable parts of Rosen’s book concern the Rehnquist and Roberts courts. Rehnquist exemplified what Rosen identifies as the most desirable traits for a Supreme Court justice: “A pragmatic disposition, a degree of humility and common sense, and the ability to interact well in groups—these have proved over time to be more important qualities than academic brilliance or rigid philosophical consistency in determining a justice’s long-term influence.”

In stark contrast, Rosen identifies Justice Antonin Scalia as a present-day exemplar of undesirable judicial traits. When he joined the court in 1986, Scalia told C-SPAN that “judges ought to make an effort to avoid becoming public figures, because it’s not their personalities or their particular viewpoints that they are supposed to be promoting.” As Rosen highlights, Scalia has “ignored his own advice” and has repeatedly proven “unable to restrain himself from broadcasting his views on topics unrelated to his judicial duties. By repeatedly inserting his own
personality into public debate, he called his impartiality into question.”

Rosen also obtained an interview with Chief Justice Roberts. Asked about his 17 predecessors, Roberts answered that “certainly a solid majority of them have to be characterized as failures.” Roberts strongly criticized the issuance of fractured decisions, remarking that the court “over the past thirty years has been eroding, to some extent, the capital that Marshall built up” with unanimous rulings two centuries ago.

Roberts told Rosen that the court needs to “refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” Those are exceptionally strong public words from a sitting chief justice, but Roberts went on to speak of what he called “the failure in Bush v. Gore,” the controversial court ruling that decided the 2000 presidential election. “It’s a high priority to keep any kind of partisan divide out of the judiciary,” he said, and only time will tell whether Roberts’ own votes will live up to that standard.

Rosen observes that Roberts exhibits “a temperament that suggests he has many of the personal gifts and talents of the most successful justices” in the court’s history. Rosen may well be right, and his book is a wonderfully informative guide to the Supreme Court both past and present.

Women and Civil War Military Justice: Review of Lowry, Confederate Heroines

From HCivWar via H-Net, a review of Thomas P. Lowry, Confederate Heroines: 120 Southern Women Convicted by Union Military Justice, which brings together the history of military justice during the Civil War, and women's history. The reviewer, Ethan S. Rafuse, Department of Military History, U.S. Army Command and General Staff College, finds some disappointments with the book, and also we might wonder how the story would look different if broadened to include other women (e.g. Union sympathizing women, free or slave, white or black, caught by the Confederacy, smuggling contraband across lines like some of the Confederate women in this book). But gender and military justice is an interesting topic, as Elizabeth Hillman shows in her book, Defending America: Military Culture and the Cold War Court-Martial. And in spite of the limitations of Lowry, he provides the interesting story in one chapter of a woman thought by the Union to be "unsexed" by her bold actions in support of the Confederacy. Here's part of the review:
During the last decade and a half, Thomas P. Lowry, M.D., has carved out a distinctive place for himself among Civil War historians. He has done this by seeking out and uncovering previously unknown or relatively obscure sources and using them to produce informative studies on topics that have yet to receive much attention from historians. Included among these works are studies of military court-martials, an overview of sex during the Civil War, and an examination of how Abraham Lincoln dealt with cases from the military justice system that came to his attention.[1] In Confederate Heroines, Lowry applies his fine research and writing skills to the task of uncovering and chronicling over one hundred cases in which southern women were arrested and tried by Federal military courts for various crimes during the war.
Lowry has produced an interesting and informative book. He sets up his study with a preface and an introduction that briefly discuss nineteenth-century ideas regarding women's roles in Northern and Southern society, how scholarship has been distinguished by an increase in interest recently in the various roles women played in the Civil War, and how the stories of the women in his book in particular "can be seen as evidence of the tectonic, if temporary shifts in the dynamic between men and women" that occurred in the Civil War (p. ix). These are followed by a chapter on cases from Missouri, Maryland, and Tennessee in which readers are introduced to individuals such as Zeidee Bagwell of St. Louis; when her letter, expressing devotion to the Confederacy, happened to come into the possession of Union authorities in the city, she was sentenced to confinement in her home, directed to take an oath of allegiance to the Union, and forced to post a $1000.00 bond.

For the rest, click here.

PBS Series on the Supreme Court Premiers Next Week

The PBS Series The Supreme Court premiers next week, on Wednesday, January 31. According to the PBS website, it will air at 9 pm Eastern. The remaining episodes will air at the same time on February 7. Check times and dates on your local public television, however. Some stations will repeat the broadcast. Go here to search for broadcast times in your area.

For more info, see a previous post on the series, here, or visit the PBS website on the series, here.

Cavallaro on Detective Fiction and Legal Culture

"The detective novel, as a literary genre, has traditionally presupposed a legal culture in which the guilty can be identified and their crimes satisfyingly punished, in which the central question is “whodunnit?” Yet, over its history, the detective novel has had a dialogic relationship to the legal culture it depicts, undergoing transformations that reflect as well as affect those observed in the law." So begins Rosanna Cavallaro's (Suffolk) new paper, Solution to Dissolution: Detective Fiction from Wilkie Collins to Gabriel Garcia Marquez. She continues, "The degree to which the detective narrative is framed by a shared faith in a solution has diminished, and skepticism about both the factual and procedural aspects of detection and punishment has taken hold. This paper seeks to explore the congruence between these fictional moves and the corresponding transformation of cultural attitudes about law and legal institutions." The paper has just been published in the Texas Journal of Women and the Law. The abstract is here:
In this paper, I describe the transformation of legal culture over the hundred year period framed by two works of detective fiction, Wilkie Collins' THE LAW AND THE LADY, and Gabriel Garcia Marquez's CHRONICLE OF A DEATH FORETOLD. I contend that Collins's novel represents legal culture as constructed on perceptions of factual and legal objectivity and rigid gender castes, while Garcia Marquez deconstructs these same aspects of the genre in order to represent law as without authority, facts as ambiguous, and gender roles as misleading.

Monday, January 22, 2007

Call for Papers: History of the Legal Profession in Canada (Symposium)

Symposium on the History of the Legal Profession (in Canada)
In celebration of the 175th anniversary of the official opening of Toronto's Osgoode Hall, the home of the Law Society of Upper Canada, there will be a one-day symposium on "The History of the Legal Profession" at historic Osgoode Hall. The symposium will start with a dinner on 11 October 2007, and conclude with the presentation of papers and a final reception on 12 October 2007.
Funding for costs of travel, conference fees, and accommodation for those who present papers will be provided by the Law Society of Upper Canada.
We would like to hear from individuals able to offer papers on any aspect of the history of the profession in Canada including, for example, studies of legal education, the aesthetics and architectures of law, professional regulation, professional discipline, legal practice, professional independence, and the cultures of professionalism.

Potential presenters are asked to submit:
1.a working title,
2.a 250 word summary of the paper,
3.a one page curriculum vitae
Please provide this information by 28 February 2007 by email to Professor Constance Backhouse: All proposals will be considered by the conference organizing committee.
Symposium Organisers: Constance Backhouse, University of Ottawa and Heritage Committee, Law Society of Upper Canada, Jim Phillips, University of Toronto and Osgoode Society for Canadian Legal History, W. Wesley Pue, Nemetz Professor of Legal History, University of British Columbia.

Forbath on Politics, State Building and the Courts

William Forbath's (Texas) interesting chapter of the forthcoming Cambridge History of American Law has just been posted on SSRN. The title is Politics, State Building, and The Courts, 1870-1920. 1920 would seem to be an odd place to bring a history of courts and state building in the U.S. to a close, but that's the cut-off for the second volume of the Cambridge series. Here's Forbath's abstract:
This is the synthetic, capstone chapter of Volume II of the Cambridge History of Law in America. It examines the role of courts and legal elites in the making of the modern American state. By 1920, the foundations of the modern regulatory and welfare state had been laid. Yet, courts were more powerful than ever. For the first century of the republic the elites of bar and bench were the American equivalent of Europe's state elites. During the decades bracketing the turn of the century, courts yielded a significant measure of power to the administrative agencies they deemed worthy and responsible but remained the nation's authoritative political economists and final arbiters of the substantive and procedural boundaries of state power, striking the balance between old (classical, individualist) and new (social, collectivist) liberal values and continuing to define and redefine the rules and standards governing much of social and economic life. In the process, many areas of twentieth-century social policy and social provision other nations were assigning to public bureaucracies came to rest in the hands of common law judges, attorneys and private bureaucratic institutions, like employers and insurance companies.
Congress did not fail to address the leading problems of the day: the trusts, the railroads, the pervasive conflict between labor and capital. However, the clash of increasingly well-organized, competing interests combined with the newness of national legislation in these areas to yield studiously ambiguous and common law-laden statutes, leaving the hard, deeply contested questions in the judiciary's hands. Judicial authority also found a boost from popular attachment to a decentralized constitutional order and popular distrust of bold central-state-building visions like Theodore Roosevelt's.
Meanwhile, under the varied leadership of conservatives, moderates and Progressives, the elite bench and bar magnified [their] office, building up and centralizing the judiciary itself, expanding the courts' own regulatory powers and capacities, and infusing new administrative agencies with court-like, adversarial processes. They produced a modernized judiciary and a judicialized, lawyer- and common-law dominated administrative state that, for better and worse, remains with us today.
Many important developments in administrative state building and judicial governance unfolded outside the liberal dialectic of new state authority and new legal limits on state authority. Equal rights and liberty were not for everyone; not everyone had the minimum moral and mental capacities for self-rule, the human stuff on which liberal legal regimes had to rest. The immigrant races arriving from Asia and from Southern and Eastern Europe to form a new industrial proletariat, the new colonial subjects in the Philippines, along with the old racial others, Native and African Americans: all these races were arrayed on an evolutionary scale, and, in vary degrees, all fell short of old stock white Americans; none were thought fully equipped for living under liberal legal rule. It came easily to fashion and uphold illiberal laws for pre-liberal peoples. Trade unionists (like African-American and women's rights advocates) invoked classical liberal rights and legal equality to challenge pre-liberal, quasi-feudal forms of subordination inscribed in common law doctrines of master and servant. But the judiciary built up government by injunction around such doctrines. Also unfettered by liberal legal restraints were the major experiments in administrative state building prompted by mass immigration, Westward expansion, and imperial adventures abroad. These experiments raised fundamental questions about the scope and power of the American state and the bestowal of membership in the community constituted by the U.S. Constitution. The answers that Congress and the Executive gave were bluntly racist and illiberal, but the courts responded by cutting swathes of governance and regulation free from any significant liberal-legal-constitutional control, creating constitutional black holes that also remain in the twenty-first century American state.

Buying Favorable Reviews on Amazon

According to a story on , you can not only pay to get a book self-published at, but, amazingly, you can also pay for a review "by a New York Times Bestselling Author"!

The Amazon BookSurge site says: "A book recommendation from a trusted and respected source is a powerful marketing tool that can make the difference between a buyer placing your book in their shopping cart or moving along to the next item." No kidding. How do you get something like this? Maybe by writing a good book? Nope. Pay $399 to "Give your book instant credibility and attention with a book review by New York Times bestselling author, Ellen Tanner Marsh."

For the Slate story, Raves for Sale, click here.

Oguamanam and Pue on Lawyers and Independence in Nigeria

Chidi Oguamanam, Dalhousie University, and W. Wesley Pue, University of British Columbia, have a new paper, Lawyers' Professionalism, Colonialism, State Formation and National Life in Nigeria, 1900-1960: 'The Fighting Brigade of the People'. The abstract does not do justice to the very interesting paper, which sets a short history of the legal profession in Nigeria in the context of an analysis of the role of lawyers in independence movements and state formation. On that topic, in the U.S. context, an interesting contrast is the first chapter of John Witt's new book, Patriots and Cosmopolitans: Hidden Histories of American Law, just out from Harvard Univ. Press. And to continue the Africa story, it's interesting to look at later generations of lawyers after independence, which comes through in Jennifer Widner's work on Chief Justice Nyalai and the courts in Tanzania, Building the Rule of Law. But here's today's abstract -- and if it doesn't grab you, try the paper anyway. The paper also has helpful cites to other related works:
This paper surveys developments in the history of the Nigerian legal profession from the perspectives of cultural history approaches to the study of legal professions, with particular emphasis on relationships of colonialism within the British Empire. Nigeria provides strong contrasts with patterns of development in British settler colonies (such as Canada and Australia) whilst nonetheless confirming the centrality of matters related to legal professionalism to the cultural and political projects of imperialism.