Thursday, July 31, 2008

Megret on Slave Resistance

Commemorating the Bicentenary of the Abolition of 1807: Revolt, Opposition and Resistance to Slavery by Slaves Themselves (A l'occasion du Bicentenaire de l'abolition de 1807: revolte, contestation et resistance a l'esclavage par les esclaves eux-memes) is a new paper by Frederic Megret, McGill University Faculty of Law. The paper itself is in French. Here's the abstract:
The recent focus on the Slave Trade Abolition Bill as a key step towards the eventual total abolition of slavery can obscure the extent to which slavery was not brought about by international law alone. Although the Bill had a significant impact, it was decades before its domestic practice was entirely eradicated. This paper seeks to argue how the abolition of slavery can only be fully understood by incorporating an analysis of the role that the slaves themselves played in their emancipation. It distinguishes between different types of struggle which slaves became involved in, with a particular emphasis on the interplay of those struggles with the Law. Religious reformism, the Enlightenment and liberalism all created a potential to challenge slavery, but the routes taken by slaves were varied, including rebellion (which operates outside the law), and legalist challenges to the law (whose ambition was limited to reform). The paper suggests and analyzes a third way to challenge slavery which it describes as "resistance". Slave societies were under the influence of many contradictory intellectual influences. Among them were ideas of "resistance to oppression" which had been successfully used in the decolonizing struggles, and which were heard by some slaves as having profoundly emancipatory potential. Resistance is a means of struggle that is both against, within and for the Law, and which foreshadows theories of civil disobedience. The paper suggests that the struggle of slaves for their own emancipation can help us better imagine an international law made real "from below", rather than simply dictated by the international community "from above".

Champ on the History of the National Banking System

The National Banking System: A Brief History is a recent paper by Bruce A. Champ, Federal Reserve Bank of Cleveland. Here's the abstract:
During the period of the National Banking System (1863-1913), national banks could issue bank notes backed by holdings of eligible U.S. government securities. This paper presents an overview of the legal and financial history of this period. It begins with the reasons the National Banking System was created. It also examines the rules of operation for national banks as established by the National Banking Act and its subsequent revisions. Furthermore, the paper serves as a brief financial history of the period, examining the various forces that shaped the environment in which national banks operated. This paper represents a preliminary chapter from a forthcoming monograph on the period of the National Banking System. Other chapters of the monograph will appear in the Federal Reserve Bank of Cleveland's working paper series.

Hurst Prize to Goluboff and Lewis

The Law and Society Association has announced that the 2008 James Willard Hurst, Jr. Prize has been awarded to Risa L. Goluboff for her book, The Lost Promise of Civil Rights (Harvard University Press), and to Mary Dewhurst Lewis for her book, The Boundaries of the Republic: Migrant Rights and the Limits of Universalism in France, 1918-1940 (Stanford University Press). The 2008 Hurst Prize Committee included: David Thomis Konig, chair (Washington University), Margot Canaday (Princeton University), Jennifer L. Mnookin (University of California, Los Angeles), Harry N. Scheiber (University of California, Berkeley), Blanca G. Silvestrini (University of Connecticut), and Mark Tushnet (Harvard University).
In presenting the award, the committee stated:

Prof. Goluboff’s book, The Lost Promise of Civil Rights, inaugurates a new generation of studies in civil rights history. Bringing together labor history and civil rights history, it provides a new historical context for interpreting the Constitutional law of civil rights. Its retrieval of the possibility of constructing economic rights as civil rights, and its explanation of that position in the legal terms available in the 1940s, is especially illuminating. Its examination of lawyering opens many possibilities for new research in the history of civil rights by historically questioning the meaning of the concept itself and linking it in fundamental ways to a “practice” of civil rights law beyond the conventional parameters. Its conceptualization will have lasting impact by pointing the way to understand the complexity of the civil rights movement as it relates to other minority groups that were pushing the terms into social and economic action.

Prof. Lewis’s book, The Boundaries of the Republic: Migrant Rights and the Limits of Universalism in France, 1918 1940, is a major contribution to the robust and growing field of sociolegal studies beyond the American context. Its many strengths provide conceptual models for future scholars. It eminently fulfills the goals of sociolegal scholarship promoted by the Prize in its integration of formal policy with everyday legal experience, especially by testing the application of policy in two different French cities. Its richly researched archival materials offer a framework that is both locally focused and comparative, moving beyond studies of one place or one immigrant group. By examining governance from the bottom up, it also demonstrates that the state is not monolithic but operates on several different registers simultaneously.
This Hurst prize is for the best work in sociolegal history published in the previous calendar year. Now annual, the prize was biennial from inception in 1982 through 2002. In the spirit of Willard Hurst's own work, the field of sociolegal history is broadly defined to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics. The Association seeks studies in legal history that explore the relationship between law and society or which illuminate the use, functions, and cultural meaning of law in society. Preference is normally given to books, but articles and monographs of exceptional quality may also be submitted. The Association discourages submissions of purely doctrinal studies in the evolution of appellate case law. Textbooks, case books and edited collections are not eligible for the prize.

Wednesday, July 30, 2008

Rubin: Should Law Schools Support Faculty Research?

Should Law Schools Support Faculty Research? is a provocative new article by Dean Edward L. Rubin, Vanderbilt University School of Law. It appears in the Journal of Contemporary Legal Issues(2008). Hat tip to Lawrence Solum. Here's the abstract:
Law schools are predominantly financed by student tuition payments, yet a significant proportion of their expenditures do not directly benefit students, but rather support faculty research. Moreover, faculty research increasingly tends to be remote from law schools' pedagogic role. Thus that great bete noir of economists the cross-subsidy seems to be operating in force - students are paying for something that does not benefit them, and they are being compelled to do so by means of an intra-institutional transfer that they cannot control. This would appear to correspond to most people's notion of unfairness.
This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possible justification or correction. It turns out that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. There is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.

What does this mean for legal historians? Rubin's curricular reform ideas might, at first glance, seem in tension with scholarship that doesn't have an immediate, practical pay-off. But this is not the case.

For Rubin, in spite of 20th century innovations in legal thought,
the Langdellian curriculum has staggered on...despite ongoing criticism, like a figure, whether hero or villain, from an action movie who keeps fighting on after absorbing an inconceivable number of apparently mortal injuries. As a result, scholarship and teaching have increasingly diverged.

The solution is not to steer researchers toward traditional common law subjects, but instead to "change in the curriculum so that it corresponds more closely to the up-to-date, intellectually stimulating research that faculty members are pursuing." While much curricular reform focuses on the first year, Rubin would instead focus on the third year, recommending an innovation that I think many legal historians would find compelling. He reimagines the third year, when many students have become bored with law school, as legal education's

pinnacle or capstone, the peak experience toward which the first two years of the program are directed. In the case of law school, this means that the third year at a research oriented institution should engage the students in research. Each student should be enrolled in a course that is organized around, or at least inspired by, the research program of the faculty member who is teaching the course. They should carry out their own research program as part of their participation in this course. To begin with, this would bring students into contact with some contemporary developments in law and legal practice. While such courses would necessarily be limited to a relatively narrow subject, the student would at least be given a sense of current developments in the field. Second, and probably more important, courses of this sort would provide students with active learning opportunities. Rather than sitting in large lecture halls, or even around a seminar table, for one more year, students would be conceiving, organizing, and carrying out a sustained project under the supervision of the faculty member and within the ambit of the faculty member’s own research agenda.

This may sound self-indulgent for faculty, but Rubin argues that it would provide students with a more "engaged, interactive educational experience" than traditional large courses. Further,
there is a vast range of other skills that a good lawyer must possess and that cannot be taught in a lecture format. Lawyers need to be able to gather facts, to organize large bodies of material, and to analyze this material in accordance with some theme or purpose. They need to be able to present the material, and their analysis of it, to their colleagues in an effective manner. They need to be able to critique a colleague’s work in a searching, rigorous manner, while remaining on good terms with that colleague. These are all skills that can be taught in a seminar format where students do a serious research project and present it in the class.

This is a reform agenda that legal historians and other interdisciplinary scholars need not be afraid of. Instead, Rubin aims to bring to legal education just the intensive sort of educational experience we enjoyed in our Ph.D. programs.

More details are in the article, which can be downloaded here.

Welcome to the Blogosphere: Bernadette Meyler's Findandreplace!

Bernadette Meyler, law and humanities scholar at Cornell Law School, has launched a great new blog, Findandreplace. For a sample, here's a recent post on Boumedienne v. Bush (2008) and approaches to the role of history in constitutional interpretation:

Among its many important pronouncements, Justice Kennedy's opinion in Boumediene took a significant step towards adopting a more historically nuanced approach to the common law backdrop of the Constitution than most of the justices--aside from Justice Souter--have previously espoused. While acknowledging "the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ" (p. 15), Justice Kennedy nevertheless focused some attention on "the common-law writ as it existed in 1789," which constitutes "the absolute minimum" of what the Suspension Clause protects (p. 16).

The Court's methodological innovations in this analysis were two-fold. First, Justice Kennedy explained that rather than placing absolute priority upon the formal articulation of a rule in England, one must examine "why common-law courts lacked . . . power" to issue the writ in certain contexts (p. 19). In responding to this question, he insisted that, in some instances, prudential concerns dictated the outcome of decisions at common law denying issuance of the writ.

Second, and even more importantly, Justice Kennedy maintained that the historical indeterminacy of the answer to the question of whether alien prisoners detained abroad were permitted access to the writ at common law did not prevent the Court from concluding that such individuals might be entitled to the writ. As he explained, "Both [the Government's and the petitioners'] arguments are premised . . . upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. . . . We decline, therefore, to infer too much, one way or another, from the lack of historical evidence on point" (p. 22). Justice Scalia, critiquing the majority's deployment of history in his dissent, instead argued that a lack of definitive evidence should lead to the assumption that no right of access to
the writ existed (pp. 7-8).

The majority's treatment of the status of the common law at the time of the Founding may mean that it is finally acknowledging the relevance to constitutional interpretation of something other than what John Reid has aptly named "forensic legal history." As Justice Kennedy wrote, citing to Paul Halliday and G.E. White's The Suspension Clause (pp. 12-15), "Recent scholarship points to the inherent shortcomings in the historical record." These shortcomings are inevitable when history is treated in all its complexity. At the same time, as I argued in Towards a Common Law Originalism, historical indeterminacy should not simply cause the Court to give up in despair; instead, it can valuably investigate the historical record to ascertain the reasons and arguments for the particular positions that this record might support before arriving at its own conclusions. By considering the pragmatic considerations that led English courts to deny the writ in various instances, Justice Kennedy did just that.

More posts are here.

Muller on Judging Thomas Ruffin and the Hindsight Defense

Eric L. Muller, University of North Carolina, Chapel Hill, has posted a new article, Judging Thomas Ruffin and the Hindsight Defense. It is forthcoming in the North Carolina Law Review. Here's the abstract:
Judge Thomas Ruffin of the antebellum North Carolina Supreme Court enjoys the reputation as one of the great judges of the nineteenth century; some rank him among the greats of all American history. This reputation has been little tarnished by his authorship of State v. Mann, an opinion that has become one of the central texts of the American law of slavery due to its savage endorsement of the right of the temporary hirer of a slave to shoot her in the back without risking criminal sanction.
Scholars have hesitated to condemn Judge Ruffin for his Mann opinion. To some extent, this is because Ruffin professed great personal anguish in that opinion at the harshness of its outcome. In addition, the archival record seemed to contain few clues (beyond the Mann opinion itself) about Ruffin's attitudes toward slavery and his own slaves. Finally, and relatedly, scholars have wished to honor what the article calls the "hindsight defense" of historical actors - the claim that present observers cannot fairly assess the behavior of figures from the past because they will inevitably ignore the culture and morals of that earlier time.
This article reviews a great deal of newly discovered archival evidence that places Judge Ruffin and his Mann opinion in a much more troublesome light. The evidence reveals Ruffin to have been a batterer of slaves, a speculating slave-trader at a time when that trade had become disreputable, and a serial breaker of slave families. These new disclosures not only force a reconsideration of Judge Ruffin and his Mann opinion, but also suggest that the "hindsight defense" of historical actors is often excessively simplistic and reductionist.

Tuesday, July 29, 2008

Recommendations needed: 100 legal history books for ACLS e-book project

The American Society for Legal History has created a committee to pick 100 books in legal history for the American Council of Learned Society's humanities e-book project. The committee is interested in your recommendations for what books should be available on-line. A majority of the list will be American legal history, but it will include the rest of the world, too.

To recommend books for the ACLS e-book project, please comment on this blog and/or email Jed Shugerman at Committee members are: Bruce Mann, chair; Charles Donahue, William Wiecek, Richard Bernstein and Jed Shugerman.

Here's the ACLS description of the e-book project:
Humanities E-Book is a digital collection of over 1,700 full-text titles offered by the ACLS in collaboration with twelve learned societies, nearly 95 contributing publishers, and librarians at the University of Michigan’s Scholarly Publishing Office. The result is an online, fully searchable collection of high-quality books in the Humanities, recommended and reviewed by scholars and featuring unlimited multi-user access and free, downloadable MARC records.
I expected that the books archived on-line would principally be classic older works that are out of print. If newer books were included, I assumed that they were unlikely to be commercially viable, since availability on-line might cut down on print sales. Both assumptions turned out to be wrong. Older works are certainly included, such as White Supremacy: a comparative study in American and South African history, by George Fredrickson (published in 1981, but still in print), but so are recent works. Race and reunion: the Civil War in American memory by David W. Blight is on the site. This book won several prizes and continues to sell well in print. The site has a great diversity of works.

Some works in legal history are already part of the ACLS project, including Devising liberty: preserving and creating freedom in the new American Republic by David Konig; Rethinking the new deal court: the structure of a constitutional revolution by Barry Cushman; Lawyers against labor: from individual rights to corporate liberalism by Daniel Ernst; The county courts of medieval England, 1150-1350 by Robert Palmer; Enterprise and American law, 1836-1937 by Herbert Hovenkamp; Abe Fortas: a biography by Laura Kalman; The Fourteenth Amendment: from political principle to judicial doctrine by William Nelson; Man and wife in America: a history by Hendrik Hartog, and more! Information on how to access these e-books is here.

Justice Accused: Antislavery and the Judicial Process by Robert M. Cover is not on the list, so I'll kick off the LHB recommendations with this one.

Coping with "gender devaluation" in the academy

In the June 2008 issue of Perspectives on Politics (hat tip to Elisabeth J. Wood), Kristen Monroe, Saba Oztury, Ted Wrigley, and Amy Alexander's "Gender Inequality in Academia: Bad News from the Trenches, and Some Possible Solutions" identifies "gender devaluation" as a primary barrier to women achieving equality with men in academic ranks.

The authors present job and salary statistics to reveal gender differentials: Only 29 percent of lawyers are women; tenured professors are four times more likely to be male; the average salary of female faculty is 80 percent of male faculty's average salary (216-17). Then they turn to their key source: in-depth interviews with 80 women faculty who taught at the University of California at Irvine between 2002 and 2006 (which they term "the largest systematic set of interview data on this topic", 230).

They conclude that women faculty members see a "subtle process by which women's work is devalued or minimized, so that work or positions once deemed powerful and conferring high status frequently become devalued as women increasingly take on these roles" (230). Women's response to this "gender devaluation" is not legal (women who tried that route "found it produced very little", 231), but informal collective action and indirect challenges, both of which are less likely to provoke the reprisals often triggered by overt action. The authors recommendations include redefining "the concept of professional success" so that "it allows for alternative models" that permit less linear progress (to allow men and women to meet family needs) and improving policies with respect to family leave, longer tracks to tenure, partner-hiring, and mentoring (231).

I was especially struck by one interviewee's insight:

"Q: Does the system need a change in terms of its rewarding structure, valuing service and other administrative, managerial work as much as research, for example?

Janina: But how do you build that into a review file? How do you say Faculty X did a great job keeping the faculty from being at each other's throats after a difficult personnel decision? No, what she did was, she went into the hall. She talked to everybody. She made them feel good. That's an invaluable contribution and yet we don't value it. There is no question that the system values research and publication over service. I think there are three ways to talk about this. Where are the moments in which we reveal our values?

(1) When we hire people. We never hire people who are good citizens; we hire those who have published, and published in the right places and published frequently enough. Then we look at their research and teaching. I can tell you, nobody is being hired in the University of California system for being a good teacher or being a good citizen.

(2) We can look at how people get promoted. . . . Imagine if teaching really mattered, what would our promotion cases look like? We would write that section as vigorously and in the same detail as the research section. . . .

(3) Service? Even less decisive than the teaching. I was actually called a chump for becoming a department chair. Why? It is a waste of time that could be spent on research and publication. It is not rewarded . . . " (229).

Dobija on the history of corporate governance and the East India Company, 1600-1612

Emergence of Corporate Contract Set, Governance and Accountability: Standing Orders of the East India Company, 1600 - 1621 is new paper by Dorota Dobija, Kozminski Business School (Poland). Here's the abstract:
Corporate governance has become an attractive topic for academic research, especially after several cases of corporate scandals at the beginning of the 21st century. Since then, much effort has been put into improving existing and inventing new corporate governance mechanisms as well as increasing accountability of managers to their stakeholders. However, this debate is not embedded in the contemporary world. Since their beginnings, companies have tried to design structures that would reduce, if not eliminate, the inherited problem of conflicts of interest among various participants. Business historians have documented that the development of various organizational forms was a result of the constant struggle to write more and more efficient contracts between firms' participants.
The East India Company (EIC) was a precursor of the modern corporation working in a globalized world. As in any other organization, a group of investors combined their efforts to carry out a common purpose - trading to the East - and the members elected officers to carry out day-to-day management. This paper seeks a historical perspective on the emergence and development of various governance mechanisms in the EIC. The period of the analysis relates to the first twenty-one years of the EIC, from the first rules written in the Charter of Incorporation to the time when the Standing Orders of the EIC were published.

Monday, July 28, 2008

History with children

I live with four children (and three adults; my partner and our two daughters share a two-family household). Since being a parent has changed the way I think about writing and research (well, it’s changed everything, but I can’t possibly blog about that), I thought I’d write about the process of being scholarly and maternal at the same time. (Disclaimer: Mary actually asked me to share “tips,” but since I have so few of those, I’ll stick to a few comments and leave you to figure out the take-away).

There is nothing like having children of your own to make you realize that the present will soon be the past– which makes understanding that past even more important to me. I have often wondered (and will always wonder, I’m afraid) if I should be doing something more immediate to make the world a place in which I want my kids to live. But I also believe that reckoning with what’s come before is a powerful way to nudge the future in a better direction.

I’m not very good, however, at explaining what I do, and why it matters, to my kids. They are young (four and five years old), which is part of the challenge. But only part; it’s easy for non-academics to comprehend the work of teaching, but the research, and the institutional work (faculties do help make universities run, even as committee work is among the most disdained activities in the profession), are much harder to translate to outsiders. I’m still looking for clearer ways to explain the value created by producing good scholarship and building good law schools.

Parenting takes so much time and energy it’s an easy target when looking for excuses about not writing enough. But I think the forced slow-down can be beneficial, too, in finding the right topic, argument, sources, ideas. As Emily Dickinson wrote, “Your thoughts don’t have words every day” (1452).

Having children has also forced me to see multiple perspectives and to be precise with language. Perhaps most important to me as a teacher, it has made me appreciate anew the unruliness of learning.

The other day, my housemates and I had straightened out the playroom, imposing order on a sea of stuffed animals, dress-up clothes, books, blocks, and plastic. Between dinner and bedtime that evening, that fleeting order was entirely undone: there were toys scattered everywhere, across the carpet, on couches, under tables. It was worse than the usual chaos; things had literally been turned upside down. Irritated, I asked the girls, “What were you doing up there?” They said (as they always do in response to that unhelpful question), “We were playing.” “What were you playing?!” I asked, intent on getting an answer. “Tornado!” they exclaimed happily.

As I cleaned up again (and failed, alas, to post the blog entry I had been contemplating that day), I thought about how they’ve learned –in less than a year of being Californians –how close we live to disaster and how to we try to prepare for it (part of “Tornado” was packing food and shoes for the road). They didn’t learn because we told them about it, but because it's where we live.

Ernst on Willard Hurst at the Board of Economic Welfare

The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare is an essay by Daniel R. Ernst, Georgetown University Law Center. It appears in the book Ernst co-edited with Victor Jew, TOTAL WAR AND THE LAW: THE AMERICAN HOME FRONT IN WORLD WAR II (2002). Here's the abstract:

Unlike other proteges of Felix Frankfurter in the 1930s, James Willard Hurst left his clerkship with Supreme Court Justice Louis Brandeis in 1937 not for law job in Washington but to teach at the University of Wisconsin Law School. Together with his dean Lloyd K. Garrison, Hurst developed "Law in Society," a New Dealer's first course in law, centered not on courts but administrative agencies. When the war came, Hurst had the chance to test out his notions of law and administration as a lawyer at the Board of Economic Warfare. Headed by Vice President Henry A. Wallace, the BEW was a bastion of New Dealism in an increasingly business-oriented war effort. Among other things, it was charged with developing and procuring new overseas supplies of war materiel to replace sources that had fallen into enemy hands. Hurst contributed one of the BEW's most controversial measures, a provision in procurement contracts obliging employers to observe minimum labor standards. This attempt to fight "a New Deal war" by improving the lives of African and Latin American workers failed not long after Hurst's departure for the U.S. Navy. Still, the affair elucidates much of Hurst's pioneering scholarship on legal history and the legal profession in the postwar period.

Jane Mayer, American ideals, and military lawyers

Jane Mayer’s The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) is making a big splash this summer. It’s landed on the New York Times bestseller list and sent its author to countless interviews, including appearances last week with Bill Moyers and David Letterman.

Despite its grim title, Mayer’s book does more than call out villains (a fairly despicable David Addington stars as Public Enemy No. 1, but many others lurk alongside). In both her book (its dedication professes her “love of American history and admiration for those who have fought to fulfill the promise of the country’s ideals”) and interviews (on Letterman she said that there are “many good guys in the military, and in the FBI”), Mayer is careful to give credit to those who resisted “the dark side”.

Among those who come out best in her account are uniformed military lawyers. Mayer documents how the JAG corps was bypassed, ignored, and isolated while key decisions were made about military commissions, the laws of war, and the rules regarding the treatment of prisoners. This is not a new interpretation; Mayer’s narrative echoes charges made repeatedly in press coverage (including her own work in The New Yorker) of the White House’s frequent dismissal of military legal expertise. For example, in the drafting of the military commission order, the services’ top lawyers were “marginalized,” in the words of Rear Admiral Donald J. Guter (88) (Guter is now dean of Duquesne Law School), and ultimately blind-sided by the rash proposal to authorize a new version of military commissions. The infamous “torture memos” triggered shock and outrage from many military lawyers: “The memos from uniformed lawyers to the politically appointed general counsel were brimming with barely concealed disbelief at the direction the Justice Department was proposing for soldiers to take “ (232).

Mayer draws on interviews, government reports, legal analyses, and an already extensive body of scholarship to build a damning critique of post 9/11 legal conclusions and political actions. But not yet answered is the central historical question: why did the U.S. adopt legal and military practices so wrongful in the face of such powerful opposition? Judge advocates and other officials who realized, in real time, that grave mistakes were being made could not stop the Bush administration despite what Mayer casts as truly valiant efforts.

The hubris of a few misguided individuals may be enough explanation for now. But eventually, we have to reconcile the impotence of Mayer’s “good guys” with her faith in American ideals-- and her hope for the future.

Friday, July 25, 2008

Frank at Fuld Hall

As I pack up after a great year at the Institute for Advanced Study, it seems like a good time to pass on a tip that you won't find in the usual informational materials.

The Institute for Advanced Study in Princeton is surely the best residential fellowship for your dog. Not only do dogs love the trails in the woods, but there is a dog-friendly environment on campus, so that Frank regularly accompanies me to the office. If you have more than one pet, however, you will have a dilemma. In Member housing, there is a one-pet rule. For that one pet, it can be heavenly.

Please excuse sparse posting from me until Monday.

A Conference in Honor of Morton Horwitz

Harvard Law School
The Harvard Civil Rights-Civil Liberties Law Review
The Illinois Legal History Program

Are pleased to announce:
A Conference in Honor of Professor Morton Horwitz
Harvard Law School
September 26 & 27, 2008

Friday, September 26

9:00 a.m.
Dean Elena Kagan – Welcome
9:15 - 11:00 a.m.
Roundtable I: The Constitution, the Courts and American Legal Thought
Frank Michelman - The Constitution of Change
Terry Fisher - The Transformation of Morton Horwitz
Robert Gordon - Horwitz on Lawyers’ and Judges’ Uses of History
Dalia Tsuk - Transformations: Pluralism, Individualism, and Democracy
William Forbath - Courting the State
Ed Purcell – Horwitzian Themes in the History of the Federal Courts
Martha Minow - After Brown: Law and Social Science
Duncan Kennedy - Morton Horwitz and Critical Legal History
Moderator: Daniel W. Hamilton

11:15 a.m. - 1:00 p.m.
Roundtable II: Contract, the Market and Technology in Law and Legal Theory
Barbara Black –Some Contract History
Lewis Grossman - The Benefits and Evils of Competition: James Coolidge Carter’s Supreme Court Advocacy
Yochai Benkler - Transformations in the Digitally Networked Environment: The Second Time As Farce?
Greg Mark - On Limited Liability: A Speculative Essay on Evolution and Justification
Katherine Stone - John R. Commons and the Origins of Legal Realism; Or, The Other Tragedy of the Commons
Oren Bracha - Geniuses and Owners: The Construction of Inventors and the Emergence of American Intellectual Property
Steven Wilf - The Moral Lives of Intellectual Properties
Moderator: Alfred Brophy

1:00 - 2:10 p.m.
Stan Katz and Dirk Hartog - Our First Encounters with Morty: Notes toward the Historiography of American Legal History after the Coming of Morty
Ted White The Origins of Modern American Legal History

2:15 - 4:00 p.m.
Roundtable III: Colonial Law, the Revolution and the Early Republic
Daniel Hulsebosch - Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution
Alison LaCroix - Drawing and Redrawing the Line: The Pre-Revolutionary Origins of Federal Ideas of Sovereignty
Mary Bilder - Colonial Constitutionalism and Constitutional Law
Sally Hadden - DeSaussure and Ford: A Charleston Law Firm of the 1790s
Christine Desan - Contract and the Coming of Capitalism
Rob Steinfeld - Conflicting Visions of Constitutional Order and Judicial Review in the Early Republic
Fred Konefsky - Boston Culture and the Social Meaning and Construction of the Charles River Bridge Case
Moderator: Jed Shugerman
4:15 - 6:00 p.m.
Roundtable IV: New Legal Perspectives on the Long Nineteenth Century
Polly J. Price - Stability and Change in Antebellum Property Law
Daniel W. Hamilton – Emancipation and the Common Law: Litigating Human Property after the Civil War
Alfred Brophy – Progress and Law in Antebellum Literary Addresses
David Barron - War Powers in Historical Perspective
Sandy Kedar - The Transformation of the Israeli Land Regime
Constance Backhouse - Anti-Semitism and the Law in Québec City: The Plamondon Case, 1910-1915
Elizabeth Blackmar - Historical Materialism and the Languages of Law, Ideology, and Common Sense
Chris Tomlins - One More Time: Marxism and the History of Law
Moderator: Ariela Dubler

6:00 -7:00 p.m.

Saturday, September 27
9:00 - 10:45 a.m.
Roundtable V: The Warren Court, Rights and Democracy
Owen Fiss - The Warren Court and the Pursuit of Justice
Mark Tushnet - The Warren Court and the Limits of Justice
Chris Schmidt - Hugo Black's Civil Rights Movement
Tony Freyer - The Warren Court As History
Stephen A. Siegel - The Death and Rebirth of the Clear and Present Danger Test
William Simon - Morton Horwitz, Critical Legal Studies, and the Warren Court
Thomas Green - Freedom, Responsibility and the Criminal Trial Jury in American Legal Thought
Lawrence Friedman - Fundamental Rights in Historical Perspective
Moderator: Kenneth Mack
11:00 - 12:45 p.m.
Roundtable VI: The History and Historiography of Legal History
Charles Donahue, Jr. – Whither Legal History?
Sanford Levinson and Jack Balkin - Morton Horwitz and The Rule of Law
Laura Kalman - Transformations
Bill Nelson – Who Should Judge Legal History: Lawyers or Historians?
Assaf Likhovski - Two Horwitzian Journeys
James Hackney - Professor Horwitz’s Post-Modern Transformation
William Michael Treanor - Morton Horwitz: Legal Historian as Lawyer and Historian
David Sugarman – The Influence of Morton Horwitz in the English-Speaking World Beyond the USA
Moderator: Bruce Mann

12:45 p.m.
Mort Horwitz - Remarks
Introduction: Pnina Lahav

For more information, contact:
Professor Daniel W. Hamilton
University of Illinois College of Law

Thursday, July 24, 2008

Call for Papers: Justice and Public Space(s) in the Western World, from Antiquity to the Present

Call for Papers:
An international conference organized by the Centre interuniversitaire d’études québécoises (CIEQ) and the Centre d’histoire des régulations sociales (CHRS)
Montreal, May 7 and 8, 2009

Due date for proposals: September 15, 2008

This conference seeks to stimulate reflections on the multiple, historically constructed relationships between justice and public space in the Western world from Antiquity to the present. In light of recent discussions and criticisms of the Habermasian conception of the public
sphere, the intent is to situate judicial history within a broader perspective which takes into account the different forms and functions of public space across time. While all approaches are of interest, four themes seem especially promising in this regard.
  • Justice has long been a key concern in public opinion. But the notion of justice as constructed by the public deserves critical scrutiny. With regards to changes in the justice system, some studies of legal culture have attributed a very real transformative power to public opinion, whereas others have emphasized the predominant role of legal specialists. Regardless of its relationship with such specialized interest groups, public opinion can nevertheless certainly be seen as a force which has helped shape the evolution of judicial institutions.
  • Conversely, it is also useful to examine the role of justice in the construction or the control of public opinion. The judicial sphere has above all been a locus of speech and of writing through which information has circulated, from public rumour to the everyday practices brought to light by legal practitioners. It has also been a space for discussions and debates publicized by the press and by judicial publications. Justice has moreover long been a spectacle, whether within the courts or in public, and has thereby contributed to the construction of popular representations of and attitudes towards authority. Finally, the courts have also been regulators of public opinion : magistrates, as guardians of public liberty, have contributed directly to the vitality of the democratic public sphere, but have also acted as censors to limit or even repress speech and writing.
  • The phenomenon of the judicialization of politics also suggests other avenues that merit study. Current news provides frequent examples of the intrusion of the judicial into spheres where the democratic will and public debate should in theory reign supreme. Considered from a historical perspective, this phenomenon allows for reflections on the role of justice in the construction of the public sphere, for example through examinations of such long-standing issues as judicial independence or the political uses of the courts.
  • Finally, there is the growing importance of state justice as a locus for the resolution of conflicts related to broader social issues. Since at least the end of the nineteenth century, the justice system has in effect become a central part of the development of new forms of state intervention in areas such as labour, health or childhood. To what extent and in what manner was this a form of judicialization of social problems, whereby areas previously considered private became objects of state intervention ?
Proposals from all disciplines within the social sciences and humanities will be considered, insofar as they include a significant historical dimension. Proposals should include the presenter’s academic title, institutional affiliation and complete contact information (email address, postal address, telephone number) along with the paper title, a 250-word abstract and a short CV. Papers may be presented in French or in English.

Proposals should be sent to : More information is here. Hat tip: H-Law.

Wednesday, July 23, 2008

Reviewed: Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals

THE DARK SIDE: The Inside Story of How the War on Terror Turned Into a War on American Ideals by Jane Mayer (Doubleday) is reviewed by Jennifer Schuessler in the New York Times. Hat tip to Ralph Luker. Schuessler begins:

“The Dark Side,” Jane Mayer’s gripping new account of the war on terror, is really the story of two wars: the far-flung battle against Islamic radicalism, and the bitter, closed-doors domestic struggle over whether the president should have limitless power to wage it. The euphemistically named but often grisly particulars of the fight against Al Qaeda — the “extraordinary renditions” by hooded agents in unmarked planes, the secret “black site” prisons across the globe, the “enhanced” interrogation techniques, the “reverse rendition” of detainees lucky enough to be found innocent and dumped blindfolded at remote borders — are harrowingly recounted here, complete with fresh revelations. But in Ms. Mayer’s hands the story of bureaucratic jockeying in well-upholstered offices and in the fine print of legal documents makes for an equally absorbing and disturbing story. It’s a cage match between the Constitution and a cabal of ideological extremists, and the Constitution goes down.
Continue reading here.

Tuesday, July 22, 2008

Mullins reviews Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law

Joseph R. Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law (Fordham University Press, 2007) is reviewed for H-Law by Greg A. Mullins, Comparative Literature, The Evergreen State College. Mullins writes:
The title of Joseph Slaughter's masterful new book Human Rights, Inc. accurately suggests that the author offers a critical view of contemporary human rights work as too closely allied with corporations and the market logics that late capitalism so assiduously promotes. But rather than analyzing the political economy of human rights, Slaughter takes the question of human rights"incorporation" in an entirely new--and urgently needed--direction. Liberal ideology and neoliberal economic practices may well provide one context for understanding the rapid diffusion of human rights discourse over the past six decades, but Slaughter asks us to consider how human rights have come to make sense--in his phrase, to make common sense--to billions of people from heterogeneous social, philosophical, and theological backgrounds. His answer: that the conceptual framework of rights has been incorporated not only intonational constitutions and international covenants but also into modern human subjectivity. Most startlingly, he argues that a great deal of this incorporative work has been accomplished by a particular genre of novel: the Bildungsroman.
This is an argument that will especially appeal to literary historians, for Slaughter has infused renewed vitality into the critical history of the novel.Readers outside literature departments may wish to read his second chapter especially carefully in order to appreciate what the Bildungsroman is, and what it has to do with human rights. Essentially, Slaughter builds on the work of Georg Lukács and other historians and theorists of the novel who have argued that novels of "Bildung" (or the maturation and self-formation of a youthful protagonist, typically through a journey and a series of challenges) enact as a cultural practice the emergence of the modern, bourgeois, liberal subject of rights. Slaughter brings to this long-standing appreciation of the ideological dimensions of the Bildungsroman the critical practices of postcolonial theory,and he closely analyzes a handful of expertly selected novels from Europe,Latin America, Africa, and the South Asian diaspora.
What emerges from his sustained scrutiny of the "world novel's" engagement with Bildung through the lens of political, literary, and cultural theory is the bracing argument that narrative fiction acts "as a cultural surrogate for the missing warrant and executive sanction of human rights law, supplying (in both content and form) a culturally symbolic legitimacy for the authority of human rights law and the imagination of an international human rights order" (p. 85). Put another way, novels perform the work of incorporating, naturalizing, and normalizing human rights in diverse societies--so that people around the world today believe in human rights even though states flagrantly violate them, and even though international enforcement of human rights is at best highly constrained.

Continue reading here.

Military commission underway

Today the first trial under the Bush administration's awkward new military commission rules began at Guantanamo Bay with Salim Ahmed Hamdan facing a commission of 6 U.S. officers. The presiding military judge started with a mixed set of rulings on the admissibility of evidence obtained through coercive means; so far, the judge, Navy Captain Keith J. Allred, has rejected information elicited while Hamdan was interrogated in Afghanistan but admitted data collected in American-run prisons.

The DefenseLink military commission site maintains an extensive collection of filings and scheduling information on the Hamdan trial and the commissions in general. Reviewing the documents posted there suggests how daunting it is to create, sui generis, a brand-new criminal justice system. Dozens of motions and hundreds of exhibits (most heavily redacted) demonstrate the struggle facing prosecutors, defense counsel, judges, and commission members as they try to fit the familiar practice of courts-martial and federal criminal trials into the byzantine rules of the military commissions. Uncertainty persists at every turn, from bureaucratic detail to animating concepts: Were counsel appropriately detailed or inappropriately replaced? Whither expert witnesses? What constitutes "armed conflict"? And of course, the most remarked-upon feature of the trials, the battle over the potential admissibility of evidence obtained via torture. In the World War II Nazi saboteur case, the most frequently cited historical predecessor to the new commissions, there were but a handful of military lawyers and officers who worked for but a few weeks; today, there have already been hundreds of attorneys and military officers involved during the nearly seven years since the President's first military order regarding the trial of detainees.

Monday, July 21, 2008

How to get an NEH Grant

Humanities, the magazine of the National Endowment for the Humanities, has an article by Meredith Hindley on How to Get a Grant from NEH. Hat tip. The essay begins:
In 2007, NEH received 4,498 applications for projects ranging from documentary filmmaking to the preservation of artifacts to institutes for schoolteachers to scholarly research. Most of these applications were turned down. Is it so hard to get a grant from NEH? In a word, yes. We can fund only a small portion of the applications we receive, and the competition is stiff.

Given the odds, some applicants have wondered if there is a secret to getting a grant. A magic formula or maybe a special handshake? Well, actually, no.

One of the tips:

Does my project have a strong humanities component? That’s the first question you should ask yourself if you’re thinking about applying for an NEH grant. We hate to belabor the obvious, but if a major portion of your project is not devoted to some area or topic in the humanities, it won’t be funded.

Read the rest here. Many of the suggestions are good advice when applying for funding from any source.

Sunday, July 20, 2008

Weekend Booknotes: constitutional design, Rorty, animal protection, and more

Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic (Princeton University Press) by Cindy Skach is noted in Lawrence Solum's Legal Theory Bookworm. Sandy Levinson has this to say on the book jacket:

Cindy Skach's book on Weimar Germany and the French Fifth Republic is a treasure trove of insights not only about the politics of these two countries, but also about the more general significance of constitutional design for the effective functioning of a political system. It brings to the fore the particular political system of 'semi-presidentialism' and offers cautionary analyses for those tempted to believe that it is the perfect 'third way' between parliamentarianism and presidentialism. It deserves wide readership among historians, political scientists, and legal academics.
Breach of Peace: Portraits of the 1961 Mississippi Freedom Riders (Atlas & Co.) by Eric Etheridge was reviewed earlier this month in the Los Angeles Times.

Empires of the Atlantic World: Britain and Spain in America, 1492–1830 by J.H. Elliott (Yale University Press) is reviewed by Linda Colley in the New York Review of Books (subscription required).

Richard Rorty: The Making of an American Philosopher by Neil Gross (University of Chicago Press) gets an unhappy review from the President of Wesleyan University, Michael S. Roth, in the San Francisco Chronicle. But Publishers Weekly suggested that "a specialized sociological study of the academy, this book will appeal to all those concerned with the state of research in higher education."

In the Washington Post today is a review of FOR THE LOVE OF ANIMALS: The Rise of the Animal Protection Movement (Henry Holt & Co.) by Katherine Shevelow, which Jonathan Yardley calls an "exceptionally interesting history of the animal protection movement in 18th and 19th century England."

Saturday, July 19, 2008

Huang on Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law

Enacting the 'Incomprehensible China': Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law is a new article by Cheng-Yi Huang, JSD candidate, University of Chicago. It is forthcoming in Law & Social Inquiry. Here's the abstract:
The great ambition of Japanese colonialism, from the time of its debut at the end of the nineteenth century, was the reformulation of Chinese law and politics. One of the most extraordinary examples of this ambition is The Administrative Law of the Qing Empire, a monumental enterprise undertaken by the Japanese colonial government in Taiwan intended not only to facilitate Japanese colonial administration of Taiwan but also to reorder the entire politico-juridical order of China along the lines of modern rational law. This article examines the legal analysis embraced in The Administrative Law of the Qing Empire and recounts its attempt to reconstruct the Qing's "political law" by a strange, ambiguous, and hybrid resort to "authenticity." The strangeness of this Japanese colonial production comes from Japan's dual position as both colonizer of Taiwan and simultaneously itself colonized by "modern European jurisprudence". In uncovering the effects of modern European jurisprudence on the Japanese enterprise, we will discover Japan's pursuit of its own cultural subjectivity embedded in The Administrative Law of the Qing Empire, epitomizing the campaign of national identities observable in the process of East Asian legal modernization.

Mehrotra on Mergers, Taxes, and Historical Materialism

Mergers, Taxes, and Historical Materialism is a new paper by Ajay K. Mehrotra, Indiana University School of Law-Bloomington. It appears in the Indiana Law Journal, (2008). Here's the abstract:
In the last few years, corporate mergers and acquisitions witnessed explosive growth. Although more recent market conditions have halted the latest merger movement, scholars and commentators have used the earlier rise in merger activity to reevaluate the preferential tax treatment granted to those mergers and acquisitions that fall under the U.S. tax law's definition of a corporate "reorganization." Under the current Internal Revenue Code, neither shareholders nor corporations recognize gain or loss on the exchange of stock or securities in transactions that qualify as a "corporate reorganization." The significance of this tax rule raises a central question: why does this tax preference exist? Since its statutory inception in 1919, numerous scholars have debated the theoretical justifications for this tax law. Few, however, have sought to move beyond intellectual and conceptual origins to address the more pertinent question of institutional development: how and why has this tax benefit become a deeply entrenched part of American corporate tax law?
This Article mainly addresses this second question. It contends that historically constituted political and economic interests have gradually transformed this law from its beginnings as a limited statutory exception into a modern version of voluntary corporate welfare. This transformation can be explained less by resort to timeless economic logic or legal doctrine than by reference to the institutional dynamics and the unfolding of concrete economic, political, and social processes.
In chronicling the early phases of this gradual transformation, this Article has two interrelated objectives. First, it seeks to historicize the prehistory, the statutory origins, and the early liberalization of this corporate tax law. Second, this Article highlights the chronological and contingent development of the reorganization provisions. In examining the historical processes and conditions that led to the early expansion and entrenchment of this tax law, this Article illustrates the contested and provisional nature of the creation, expansion, and maintenance of this corporate tax benefit. This Article mainly investigates two pivotal periods - the 1920s when this rule was gradually liberalized, and the early 1930s when this tax law faced near elimination - to underscore how material context and historical sequence determined the possibilities of legal change.
This historical story about the reorganization tax preference, in the end, is not simply a tale about the evolution of an important and enduring corporate tax law. This narrative is also a case study of the broader legislative process. It shows how a typical legal regime is molded by the interactions of democratic institutions; how the lawmaking process is shaped by the negotiations among citizens, Congress, the courts, and executive agencies. Accordingly, this historical story illustrates the continuing dynamic that exists between law and society, revealing how the legal process of fortifying and routinizing laws can unwittingly create special interests - interests that often reshape and help maintain the laws that have created them.

Friday, July 18, 2008

Fernandez on Copying and Copyright Issues at the Litchfield Law School

Copying and Copyright Issues at the Litchfield Law School is a new article by Angela Fernandez, University of Toronto Faculty of Law. It is adapted from a chapter of her Yale JSD thesis, Spreading the Word: From the Litchfield Notebooks to the Harvard Case Method, and it is forthcoming in Connecticut History (2008). Here's the abstract:
The notebook method of legal education used at the famous Litchfield Law School (1774-1833) has long been a subject of intense interest among Connecticut historians, legal historians, and those interested in legal education and the legal profession. The present article, "Copying and Copyright Issues at the Litchfield Law School," forthcoming in the fall 2008 volume of Connecticut History, sets the notebook method used at the School in its copying context. More specifically, it explains how the copying of lectures used to create these notebooks gave rise to the problem of rampant unauthorized reproduction, a serious threat to an institution the raison d'ýtre of which was the production of a set of these notebooks. The article reports on and reproduces excerpts from an 1826 letter evidencing just how dire the situation had become and the lengths to which the School's surviving proprietor, James Gould, was willing to go in order to protect the lectures, as against the sense of the students that they were ripe for reproduction. Gould registered the lectures for copyright protection in and the question is, given how strongly he felt about the matter, why he did not do it sooner. It would seem that, like the students, Gould took some time to see these notes as a proper object of copyright protection.

Thursday, July 17, 2008

Grechenig and Gelter compare Law and Economics in Germany and the United States

The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism is a new article by Kristoffel R. Grechenig, University of St. Gallen Department of Law and Vienna University of Economics and Business Administration, and Martin Gelter, Vienna University of Economics and Business Administration and Harvard Law School European Corporate Governance Institute. It appears in the Hastings International and Comparative Law Review (2008). Here's the abstract:
Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors: First, American legal realism enjoyed great success, whereas the German free-law movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, and assigns only a limited role to external elements. Second, the different philosophical roots and attitude towards and utilitarianism and consequentionalist thinking in general can explain why law and economics takes a prominent position in the US legal academia.

Wednesday, July 16, 2008

Marriage in California

Today the California Supreme Court unanimously denied a petition for extraordinary relief that would have removed the anti-same-sex marriage initiative from the November 2008 ballot (here is the Court's marriage cases site).

The National Center for Lesbian Rights (NCLR) argued in its petition that the initiative, which would strip same-sex couples of the right to marry, is such a significant change in the California Constitution that it constitutes a revision, not a mere amendment, to the Constitution and therefore requires a more deliberative democratic process before being presented to voters. If passed, the measure would strip a fundamental right from a specified minority – which is just the sort of majoritarian action that courts, not electorates, are best positioned to reckon with. Donna Ryu, a clinical professor of law at Hastings, wrote an amicus letter in support of the NCLR that garnered the signatures of many California law professors (including me – and my host, Mary Dudziak). Unfortunately, the Court did not address the merits of the petition.

For me, having recently moved into the democratic chaos of California, this issue has more resonance than most. First, the extended oral argument triggered media coverage and lengthy commentary (Hastings ran a live feed of the hours of argument in a room open to the public, followed by a panel of professors analyzing the case). Then the release of the momentous decision brought dozens of ecstatic phone calls and celebratory emails from family-law professors and friends who support same-sex marriage rights. On the first day of same-sex weddings, City Hall in San Francisco was as tranquil and joyful a place as I’ve ever seen.

But it’s being part of a California lesbian family that makes me feel as if history –and marriage—have been thrust upon me, like it or not. Everyone has asked, “so, are you getting married now?!” Yes, I think we are, but I can’t help but be startled by the question. Perhaps I should have spent more time preparing for this moment of liberation; instead, I was figuring out how to build a relationship in spite of legal and political obstacles--and developing a healthy skepticism about marriage as an institution. From Harriet Jacobs, Incidents in the Life of a Slave Girl (302): “Reader, my story ends with freedom; not in the usual way, with marriage.”

Kornhauser on Hidden Taxes and the 1936 Election

Remembering the "Forgotten Man" (and Woman): Hidden Taxes and the 1936 Election is a new article by Marjorie E. Kornhauser, Arizona State University College of Law. It is forthcoming in Studies in the History of Tax Law, John Tiley, ed. Here's the abstract:
Hidden (indirect) taxes were a major theme in the Republican Party's attempt to defeat Roosevelt in the 1936 presidential election. Republicans argued that New Deal programs were not free, but rather, were funded by the very people they were supposed to help - the common or "forgotten" men and women--who paid in the form of increasingly heavy hidden taxes on everything from bread to electricity. By stressing the issue of hidden taxes, Republicans hoped to reveal Roosevelt's hypocrisy, raise the average voter's "tax consciousness," and thereby undermine support for Roosevelt. Once sensitized to taxes, the masses would - Republicans believed - vote for Landon because he would provide the necessary relief and economic stimulants in a less costly manner and would reform the tax system to rely more on direct taxes such as the income tax.
Experts versed in public relations - including advertising professionals and journalists - ran the campaign using modern advertising techniques and media to sell Landon to the public, just as they would sell any product. Although the hidden tax campaign was aimed at all the forgotten people, women were both major targets and active participants in their traditional private roles as wives and mothers and in their public roles as voters, workers, and investors.
Despite its ultimate failure to defeat Roosevelt or to initiate the tax reform which many contemporaries hoped would follow the exposure of hidden taxes, the hidden tax campaign did successfully gain media attention and engage many voters in political action. Its tactics remain in use today. Modern anti-tax campaigns, using populist rhetoric and exploiting modern media, are remarkably similar to those used in the 1936 campaign: partisan attacks that confuse more than they illuminate (estate tax effects and burdens), catchy phrases (the death tax), attention getting gimmicks (reenacting the Boston Tea Party), and the same strident rhetoric about soaking the rich and burdening the forgotten (middle class) taxpayer. The end results also appear to be the same today as they were in 1936. The masses do not achieve any better understanding of the true tax burdens and establishing the foundations of a better tax system through tax reform remains a dream.

Tuesday, July 15, 2008

Civilians and war casualties

Hugo Slim, Killing Civilians: Method, Madness, and Morality in War (Columbia University Press, 2008) is a fascinating and far-ranging study of civilian suffering during war. The publisher's description explains: "Slim analyzes the anti-civilian ideologies that encourage and perpetuate suffering and exposes the exploitation of moral ambiguity that is used to sanction extreme hostility. At what point does killing civilians become part of winning a war? Why are some methods of killing used while others are avoided? Bolstering his claims with hard fact, Slim argues that civilian casualties are not only morally reprehensible but also bad military science. His book is a clarion call for action and a passionate defense of civil immunity, a concept that is more urgent and necessary today than ever before."

Much like Drew Faust's recent book on the dead of the Civil War, The Republic of Suffering: Death and the American Civil War (Knopf, 2008), Slim's book (if less elegantly, with the fervor of a humanitarian activist rather than the authority of a master historian) helps to strip away the veneer of civility that we routinely impose on the brutality of modern warfare.

Slim identifies common military strategies as blatantly "anti-civilian" and suggests (hopefully) that "pro-civilian thinking and behavior" (7) can alter the violent balance of war and shift conflict toward the protection of civilians. He writes that "[a]bove all, this is a book about intention and suffering, identity and ambiguity, tolerance and compassion" (7). He seeks to complicate our understanding not simply of "citizen" or "soldier" but of "civilian" itself (8).

Slim's effort to sort out the essence and liabilities of the "civilian" label is especially intriguing;
he points out that civilians are often regarded with suspicion and as lacking integrity by soldiers, and that the sacrificial rhetoric of war accepts, and even promotes, not only military but also civilian casualties as a necessary prerequisite to positive change. Death and suffering can become their own justification in the face of a need to give meaning to tremendous and otherwise inexplicable loss -- a reckoning that Faust finds in the mourning for and celebration of the Civil War dead (her preface is entitled "The Work of Death"). She writes that Oliver Wendell Holmes Jr.'s 1895 Memorial Day Speech "became emblematic of the elegiac view of the war that hailed death as an end in itself" (The Republic of Suffering, 270).

For a military historian's perspective on Slim's volume and other aspects of war, past and present, see Mark Grimsley's blog. Grimsley is a historian at Ohio State who is now the Harold K. Johnson Professor of Military History at the U.S. Army War College.

Grossman on the categories of "food" and "drug" in legal history

Food, Drugs, and Droods: A Historical Consideration of Definitions and Categories in American Food and Drug Law is a new article by Lewis A. Grossman, American University, Washington College of Law. It has been published in the Cornell Law Review (2008). Here's the abstract:
This article explores the development and interaction of the legal and cultural categories food and drug from the late nineteenth century to the present. It is based not only on legal and historical research, but also on theories of category formation from the fields of linguistics and psychology.
The scope of the Food and Drug Administration's power is defined primarily by the list of product categories over which it has jurisdiction. The statutory definitions of these categories (food, drug, cosmetic, device, and human biological product) thus delineate the outer boundaries of the arena within which the agency operates. The definitions are also important because the FDA has different degrees of power over different categories of products. The category to which the FDA assigns a product thus largely controls the shape of the regulatory regime the agency will impose on it.
The statutory definitions of these product categories are, for the most part, ambiguous and plastic, providing the agency with great regulatory flexibility. But while Congress and the courts have granted the FDA wide discretion, it does not follow that the agency is free to interpret the definitions however it chooses. The effective power of lawmakers to establish legal categories is significantly constrained by preexisting cultural understandings of these categories. Food and drug, the categories whose development and interaction I explore in this article, are not only the oldest defined product classes in federal food and drug law, but also fundamental cultural concepts. I demonstrate that FDA, as well as Congress and the courts, have operated within a constraining cultural matrix that has limited their freedom to impose their preferred understandings of these categories on American society.
Nonetheless, my research also provides ample evidence that lawmakers have had substantial power to mold the legal categories of food and drug so as to advance their desired policies. One explanation for this regulatory flexibility in the face of deep-seated cultural conceptions is the indeterminate nature of extralegal notions of food and drug. The terms, as commonly understood, embrace nebulous, overlapping, and constantly evolving realms. Moreover, the relationship between culture and law has not been a one-way street with respect to these categories. Although the regulatory apparatus has always had to take into account the extralegal understandings of food and drug, the law in turn has exerted significant influence over their meaning in broader culture.

Hovenkamp on The Neoclassical Crisis in U.S. Competition Policy, 1890-1955

The Neoclassical Crisis In U.S. Competition Policy, 1890-1955 is a new paper by Herbert J. Hovenkamp, University of Iowa College of Law. Here's the abstract:
The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition theory. Given an industrial structure with sufficient fixed costs, competition always became "ruinous," forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall were not able to solve this problem, and as a result many economists were hostile toward the antitrust laws in the early decades of the twentieth century. The ruinous competition debate came to an abrupt end in the early 1930's, when Joan Robinson and particularly Edward Chamberlin developed models that took product differentiation into account. The emergent theory of monopolistic competition came with its own problems, however - namely, "excessive" product variety and advertising, chronic excess capacity, and prices above short-run marginal cost. In sharp contrast to the ruinous competition model, the monopolistic competition model called for aggressive antitrust enforcement. This change of model largely explains the Roosevelt administration's abrupt shift in antitrust policy between the First and Second New Deals. Only with John Maurice Clark's theory of workable competition in 1940 and the Mason-Bain structure-conduct-performance paradigm developed in the 1950s did neoclassical competition theory begin to reach a new equilibrium which attempted to calibrate the amount and kind of competition policy necessary to produce satisfactory results in diverse markets. The subsequent debate between Harvard structuralism and the emergent Chicago School occurred largely within this paradigm.

Monday, July 14, 2008

Lim on The Great Power Balance, the United Nations, and What the Framers Intended

The Great Power Balance, the United Nations and What the Framers Intended: In Partial Response to Hans Köchler is an article by C.L. Lim, University of Hong Kong. It appears in the Chinese Journal of International Law (2007). Here's the abstract:
This article is partly a reply to Professor Hans Köchler, who argues that the total absence of a balance of power has become the fundamental predicament of the United Nations Organization in the 21st century. He locates that problem in the veto power of the permanent five members, saying that it creates an irreconcilable normative contradiction with the doctrine of sovereign equality. On the contrary, this article takes a historical view and argues that the Framers of the United Nations (UN) Charter clearly saw the greater opportunity which greater power brings to oil the wheels of the machinery which they built. Choosing between a Security Council that could act unchecked and therefore decisively and one which evinces a separation of powers in its design, the Framers opted for the latter. The veto separates power. Finally, Professor Köchler argues that the UN has been marginalized in recent events. This article argues that his underlying assumption, that the shift in the global power balance of 1945 to the current unipolar imbalance of power automatically controverts the power balance envisioned in the Charter, is not wholly borne out. The Charter was not simply meant to reflect the actual patterns of global power outside the organization but was intended to foster an enduring understanding of the need to maintain a specific power balance. By putting the veto in several hands, the Framers have required the permanent five members to continuously negotiate and seek agreement among themselves. It is this which, in large part, explains observable attempts by even would-be transgressors today to bring their action within the framework of Charter legality.

Sunday, July 13, 2008

Moore on Sir Thomas More's Final Years: Silence, Silencing and Constitutional Change

Sir Thomas More's Final Years: Silence, Silencing, and Constitutional Change is a new article by Oliver Moore, Faculty of Law, McGill University, Canada. It appears in Law and Humanities (2008). Here's the abstract:

Through an examination of Sir Thomas More's final years, culminating with his trial on charges of treason, and with particular attention to the theme of silence, this article studies the profound constitutional amendment which attended the English Reformation. More is remarkable not only for having opposed Henry VIII's procurement of this amendment, but particularly for having expressed his dissidence through a principled silence, thereby refusing to express either support for, or censure of, the king. The author begins by arguing that this silence expressed a precise anti-Reformation argument of constitutional law. The author then turns to More's trial and, holding that it constituted the forum within which the new, post-Reformation, English constitution was founded, argues that the precise mode of the new constitution's founding was the silencing of the old legal order by the new.

Saturday, July 12, 2008

80 Essential History Blogs

Cliopatria's History Blogroll is the central repository for history blogs of all kinds. It has now grown to over 1000 blogs, and whatever your topic, you are likely to find someone blogging about it there.

If you're wondering where to get started, today Ralph Luker posts a list of just eighty. "There is a group of history blogs that seem to me to be central to history blogging," he writes.

I don't presume to say that they are The Top 100 Liberal Arts Professor Blogs. Nor do I even suggest that they are better than other history blogs that are not on the list. I do mean to say that, without them, history education on the internet would be seriously impoverished. Below the fold are 80 history blogs that I recommend. You'll recognize some of them. Others, you may not yet have discovered:

Thanks to Ralph, and happy reading, everyone!