Tuesday, June 30, 2009

H-Net to offer blogs and social networking

H-Net, the host for many history listservs including H-Law, is working to offer more social-networking to its services. Jeffrey R. Young writes in the Chronicle of Higher Education, "Last year the H-Net leadership voted to add blogs and other services to its mix, and a pilot version of new services is expected in the next six months or so."

Young interviewed H-Net executive director Peter Knupfer for an article on the future of listservs. While some have suggested that listservs are on their way out, Knupfer notes that the number of subscribers on H-Net listservs is up, although the number of messages has declined annually since 2000. "Rumors of our impending demise...are therefore a bit premature."

Young writes,

the way the lists are used has changed, explaining the dip in message traffic. Some lists now have less discussion and instead focus on notices of upcoming conferences, job ads, or other announcements....

The H-Net service's most valuable items are its book reviews, written by volunteers on each list. Mr. Knupfer says more than 1,000 new reviews are posted to the lists — and simultaneously to the H-Net Web site — each year.
Looking to the future, H-Net's new services "will enhance the service's Web site, which already offers searchable archives of the lists and links to related Web resources. The hope is to let users create their own profiles and post files to their H-Net accounts to share with other scholars."

Sounds promising! The full story is here.

Law & Society Review seeks Book Review Editor

Book Review Editor
Nominations Due: Friday, July 10, 2009
Email nominations to: boyle014@umn.edu

The Law & Society Association is seeking nominations for a new Book Review Editor for the Law & Society Review. The new editor will begin as soon as possible, completing the last two issues of the upcoming (2010) volume (44:3 and 44:4), and an additional three volumes (45 to 47; years 2010-2012).

Ideally, the LSA Book Review Editor will have a keen eye for significant law and society work, an appreciation of the theoretical and methodological breadth of law and society scholarship, a willingness to tap into networks of conscientious folks who would write interesting reviews from a variety of perspectives, a creative approach to conceptualizing and generating reviews, the ability to meet deadlines, and the interest in and availability to devote time to this important task.

If these characteristics describe you or one of your colleagues, please consider applying or making a nomination. The committee will contact nominees directly to make sure that they are willing to serve. The position is open to all members of LSA. Names received by Friday, July 10 will receive full consideration by the Nominations Committee. Nominations should include the following information:

Candidate's name and contact information
Present professional position
A statement of the candidate's qualifications for the position
Optional: any other information in support of the nomination, for example, a CV.

Members of the Nominations Committee include Elizabeth Boyle (Chair), Jonathan Simon, and Mariana Valverde. Please email all nominations to the Elizabeth Boyle at boyle014@umn.edu.

In mid-August, the Nomination Committee will make a recommendation to fill the position to the LSA Board of Trustees, who must approve the appointment. The Book Review Editor will serve as an ex-officio member of the Board of Trustees. The committee is willing to consider nominees who are available for only a portion of the term, although nominees who can fill the full three-and-one-half (3.5) year term are preferred.

Religious History most prominent among members of American Historical Association

Following the recent debate about whether new areas of historical scholarship have edged out "traditional" fields, it is interesting to see the new membership data from the American Historical Association, the largest U.S.-based organization representing historians. A post on AHA Today is titled: AHA Membership Grows Modestly, as History of Religion Surpasses Culture. Robert Townsend writes: "Despite the hardships in the economy, membership in the AHA actually increased slightly over the past year. In our annual membership snapshot (taken on March 31 of each year), membership rose to over 15,000 members for the first time in 35 years." The increase was "modest" -- only 152 new members. The data show, however,

a troubling loss in the number of members in many of the higher dues-paying categories, as many faculty members and professional historians felt the effects of the economy. These losses were only offset by significant gains in the number of student members (whose memberships are subsidized by senior members). Students now comprise 28.2 percent of the membership—the highest proportion since 1996, when they accounted for 32.0 percent of the membership.
Yet "the most notable change in the profile of our membership is the continuing rise of specialists in religious history." Townsend continues:

More members selected the history of religion as field of specialization (7.7 percent in all) than any other thematic category. Religion surpassed cultural history (selected by 7.5 percent of the membership), which has been the most popular subject category among members for more than 15 years. (Cultural history eclipsed social history as the field of choice in the mid-1990s.)

Members specializing in the history of religion were working in most of the geographic categories, but the highest proportions seemed to be studying early European or recent U.S. history.
According to the accompanying graph (reproduced here), since 2004 hiring in most subfields is down. Besides religion, hiring was slightly increased in the areas of African American, Gender, Military, and Political history. It was flat in Diplomatic/International history. Legal history is not included in the graph.

More details are here.

Pope on the Role of Direct Popular Power in the American Constitutional Order

Many legal scholars have been using their summers to update their SSRN pages, posting earlier scholarship. One recent posting is Republican Moments: the Role of Direct Popular Power in the American Constitutional Order by James Gray Pope, Rutgers Law School, Newark. It appeared in the University of Pennsylvania Law Review (1990). (On republicanism, an important intervention in the late 20th century debate came from Joyce Appleby.) Here's Pope's abstract:
Republican moments occur during periods when large numbers of normally quiescent citizens enter the public arena to struggle over long-term issues of principle. Constituencies that are under-represented in interest-group bargaining use mass protest and other forms of direct popular power to place their concerns on the public agenda. Aroused citizens disrupt cozy relationships among politicians, administrators, and interest group lobbyists. Examples include the Revolutionary era, the Jacksonian period, the Civil War and Reconstruction, the Populist era, the New Deal, and the 1960s. Most of the great rights we celebrate today were products of the unruly and passionate politics of republican moments. The Constitution, of course, erects a system of representative - not direct - democracy. Its most effective proponents sought to temper special interest politics with deliberations among an elite of virtuous representatives, not with pulses of direct popular power. The Bill of Rights, however, added a potentially subversive supplement to the representative scheme. Read in historical context, the First Amendment carves out the constitutional space for direct popular power. In the political theory and practice of the founding generation, the right of the people peaceably to assemble encompassed not only the right to meet, but also to exercise extra-institutional forms of power, ranging from nonviolent rallies and boycotts to the displacement of representative government by popular assemblies. Direct power was seen as a necessary corrective to the natural tendency of government to degenerate into corruption and tyranny. Here, as elsewhere, the framers deliberately built a conflict into the constitutional scheme, this one between representative government and direct popular power. The theory of republican moments has two major implications for legal doctrine. First, it provides arguments for expanding the protection of direct popular power under the first amendment. Understanding the long-run functions of direct power may help to forge the kind of civic courage that can sustain a commitment to free speech and assembly in the midst of popular tumult. Second, the theory suggests that courts and administrative agencies should give a broad construction to the statutory and constitutional products of republican moments. For brief periods of time, at a considerable cost to business-as-normal, direct popular power offsets the worst flaws of interest group bargaining. These times should be seen as precious - albeit unsettling - moments of effective democracy. When the level of participation subsides, courts and administrative agencies should serve as agents of the republican moment, preserving the thrust of republican laws against the relative lethargy and corruption of interest group bargaining. Failure to do so can only reflect, as Frederick Douglass lamented when the Supreme Court invalidated the Civil Rights Act of 1875, a failure of historical memory.

Monday, June 29, 2009

Curran reviews Jurists Uprooted: German-speaking Emigre Lawyers in Twentieth-century Britain

Voices Saved from Vanishing by Vivian Grosswald Curran, University of Pittsburgh School of Law is a review essay on Jurists Uprooted: German-speaking Emigre Lawyers in Twentieth-century Britain, Jack Beatson & Reinhard Zimmennann eds. (Oxford University Press, 2004). It appears in the University of Pittsburgh Law Review (2009). The abstract is too short, so here's an excerpt from the introduction:

Jurists Uprooted examines the lives of eighteen emigre lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law….Jurists Uprooted is a work of many stories, not least of which is the heroism of Oxford University Press (OUP). Through the efforts of Kenneth Sisam, OUP came to the rescue of many legal scholars during the 1930s by providing them with financial support. And when OUP was unable to do so, Sisam took it upon himself to try to arrange for universities to bring them to England. OUP's and Sisam's generosity helped to ensure the refugees' safety, and ultimately enabled them to pursue livelihoods which permitted them to make invaluable contributions to law and scholarship.

Curry Reviews Two Books on Eugenics and Law

Lynne Curry, Eastern Illinois University, has just published on H-Law her review of two books on the legal history of eugenics:

Victoria F. Nourse. In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics. New York: W. W. Norton, 2008. 240 pp. $24.95 (cloth), ISBN 978-0-393-06529-9.

Paul A. Lombardo. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns Hopkins University Press, 2008. Photographs. xiv + 365 pp. $29.95 (cloth), ISBN 978-0-8018-9010-9.

Curry's review, entitled "Intellectual Seduction: The Promise and Perils of Eugenics," commences:
In the first half of the twentieth century, a right to control one’s own body did not exist in the same sense that we take rather for granted today. The state enjoyed broad powers to infringe on individual rights in the name of protecting the public’s health and safety. While this application of the state’s “police powers” has a very long history in law, at the turn of the twentieth century changing medical understandings of the etiology of contagious diseases inspired new confidence that law could be employed in the service of preventing deadly epidemics, such as smallpox and diphtheria. In 1905, the U.S. Supreme Court ruled in Jacobson v. Massachusetts that states can require individuals to be vaccinated, thereby establishing a crucial precedent for public health law and policy. It was within this context that eugenics, a pseudo-scientific movement advocating social control over human reproduction, took root and thrived. “Eugenics” is an umbrella term that covers a wide range of ideas, policies, and programs, within which varying weights were assigned to the relative influences of nature and nurture. Some eugenicists, analogizing from the germ theory of disease, argued that the United States faced an extreme risk of degeneracy due to the unchecked breeding of the physically, mentally, and morally unfit whose defective “germ plasm” threatened to undermine the health and welfare of future generations. Such fears were translated into state laws, founded on the Jacobson precedent, that mandated the sexual sterilization of the reproductively unworthy, with or without their consent--and often without their knowledge. In 1907, Indiana became the first state to mandate sterilization; by 1940, thirty states had enacted laws aimed at preventing criminals and the mentally “defective” from procreating. Legal challenges resulted in two landmark Supreme Court cases, Buck v. Bell (1927) and Skinner v. Oklahoma (1942). Both opinions remain well known and, for differing reasons, controversial today. Given the contemporary resurgence of scientific and popular interest in genetic explanations for a range of physical ailments and human behavior, both rulings are highly relevant as well. It is therefore most fortunate that two excellent and engaging books have arrived bringing renewed attention to these cases.

Sunday, June 28, 2009

I have the greatest co-blogger

Just a note of appreciation to my co-blogger, Dan Ernst, for keeping the blog running seamlessly when I was unexpectedly out of internet access during the past week. Dan, pictured here in his weekend wear, is a man of many talents. The Legal History Blog is very lucky to have him.
(And thanks to Bill for technical assistance with this post.)

Six essential books on Iran

Not much history in the Sunday book pages today, but on the New Yorker book blog, Laura Secor recommends six essential books on Iran. Ranging from history to memoir to fiction, they are:
Secor's details about these interesting books are here.

Henry Friendly Papers Now Open

David Warrington, Special Collections Librarian at the Harvard Law School Library announces, via the law library's blog, the opening of the papers of the great federal judge, Henry J. Friendly. The inventory is here. According to the announcement,
Henry Friendly (HLS ’27) served on the United States Court of Appeals for the Second Circuit from 1959-1974, serving as Chief Judge from 1971-1973. He clerked for Louis Brandeis in 1927-1928 and then entered private practice where he worked for the next 31 years before his appointment to the Second Circuit by President Eisenhower.

The majority of the materials found in the Henry J. Friendly Papers reflect his career as a federal judge on the Second Circuit Court of Appeals. Judge Friendly’s case files constitute the bulk of the collection. Also of interest are his bench books which contain hand-written notes on the cases he heard from 1959 to 1985. The collection also holds a small amount of Judge Friendly’s professional and personal correspondence, some of which dates back to his time as a student at Harvard University.

I'll just add that although of course it's terrific to have Friendly's case files open, what I'd really love to have access to are the files at Cleary Gottlieb that would show him to be one of the great regulatory lawyers of the twentieth century. His very brief interview at the Columbia Oral History Office could only hint at his work for Pan Am.

(Friendly appears above in the group picture of the editorial board of the Harvard Law Review for 1925-26, which you may click on to enlarge. He stands in the back, immediately behind David Cavers, who is seated at the very center of the photograph. Note two other legal professorial worthies: Wilber Katz, the University of Chicago law dean, to Cavers's immediate left, and Yale's Harry Shulman, seated, second from the bottom, on the lower left, in the dark jacket with his arms crossed.)

[Photo credit: Harvard Law School Library. Harvard Law Review photograph collection.]

Saturday, June 27, 2009

Finkelman on the Emancipation Proclamation

Paul Finkleman, Albany Law School, has posted Lincoln, Emancipation, and the Limits of Constitutional Change, is just out in the latest issue of the Supreme Court Review (2008). Here is the abstract:
This article examines the policy behind President Lincoln’s Emancipation Proclamation. Lincoln wrote the Emancipation Proclamation with the assumption that it would be challenged legally, while this never happened because its legality became moot after the ratification of the Thirteenth Amendment, Lincoln aimed to keep the proclamation as narrowly focused and constitutionally solid as possible. The article explores constitutional limitations on emancipation, the conditions leading up to emancipation, and the lasting effects of the emancipation during and following the Civil War.

Glickman on Consumer Activism

Here is a new entry in the history of consumerism, a book by Lawrence B. Glickman, University of South Carolina, Buying Power: A History of Consumer Activism in America. According to the folks at the University of Chicago Press,
Far from ephemeral consumer trends, buying green and avoiding sweatshop-made clothing represent the most recent points on a centuries-long continuum of American consumer activism. A sweeping and definitive history of this political tradition, Buying Power traces its lineage back to our nation’s founding, revealing that Americans used purchasing power to support causes and punish enemies long before the word boycott even entered our lexicon.

Taking the Boston Tea Party as his starting point, Lawrence Glickman argues that the rejection of British imports by revolutionary patriots inaugurated a continuous series of consumer boycotts, campaigns for safe and ethical consumption, and efforts to make goods more broadly accessible. He explores abolitionist-led efforts to eschew slave-made goods, African American consumer campaigns against Jim Crow, a 1930s refusal of silk from fascist Japan, a range of contemporary boycotts, and emerging movements like fair trade and slow food. Uncovering previously unknown episodes and analyzing famous events from a fresh perspective, Glickman emphasizes both change and continuity in the long tradition of consumer activism. In the process, he illuminates moments when its multifaceted trajectory intersected with fights for political and civil rights. He also sheds new light on activists’ relationship with the consumer movement, which gave rise to lobbies like the National Consumers League and Consumers Union as well as ill-fated legislation to create a federal Consumer Protection Agency.

A powerful corrective to the notion that a consumer society degrades and diminishes its citizenry, Buying Power provides a new lens through which to view the history of the United States.
Glickman discusses the book and its contemporary implications with the History News Network here.

Woolhander and Collins on Two Federal Courts Landmarks

Ann Woolhandler and Michael Collins, University of Virginia Law School, have posted on bepress two articles on the history of federal courts in the United States. The first is The Story of Tarble’s Case: State Habeas and Federal Detention:
This essay addresses the background to and significance of Tarble's Case (1872), in which the Supreme Court concluded that state courts lack the power to issue habeas corpus to challenge the lawfulness of detention by federal officials.
The second is Federal Question Jurisdiction and Justice Holmes:
Smith v. Kansas City Title (1921), and other cases in which a federal ingredient is part of the plaintiff’s well-pleaded state law complaint, are treated as second class citizens for original federal question jurisdiction under §1331. This second class status is partly due to Justice Holmes’s pronouncement that, “A suit arises under the law that creates the cause of action.” This article suggests, however, that cases along the model of Smith were quite familiar to the federal courts historically and may even have been the primary focus of the 1875 federal question statute. Indeed, Holmes’s dissent in Smith was itself something of a novelty, not the majority’s opinion. Holmes’s view may have been the product of his jurisprudential attempts to dispense with the concept of “primary rights.” What is more, Holmes’s own test for jurisdiction may not have represented the simple rule it is now thought to embody.

Friday, June 26, 2009

White Revisits the Ideas of the Founding

G. Edward White, University of Virginia School of Law, has posted Revisiting the Ideas of the Founding, which is based on his 2008 Taft Lecture at the University of Cincinnati College of Law. It will appear in the June 2009 issue of the University of Cincinnati Law Review. Here’s the abstract:
When the ideas of the founding period of the American republic have been studied by legal scholars, they have tended to approach that inquiry from a particular perspective. They have begun by positing a set of ideas as central to the interpretation of the United States Constitution over the course of its history, and have then proceeded to examine the status of those ideas in the founding period against the backdrop of their subsequent development over more than two centuries. This posture toward the ideas of the framing, I will be arguing, has produced two distorting effects on their recovery. The first effect has been to overstate the significance of some constitutional ideas with which later generations of Americans have been preoccupied; the second has been to understate the special importance attached to other ideas of the founders.
Image Credit: William Howard Taft's Official Portrait

Bender on American Exceptionalism

The Gilder Lehrman Institute of American History has posted a downloadable lecture by the historian Thomas Bender, New York University, who, a few years back, wrote a terrific antiexceptionalist history of America (pictured below). Bender originally delivered the lecture, entitled "American History: Views from Abroad," on June 23, 2008. Here is the Institute's description:
Has the idea of American exceptionalism hobbled the study of American history? NYU University Professor of the Humanities Thomas Bender argues that it has. A study of American history taking into account world events and viewpoints, he argues, would result in a more contextualized and cosmopolitan discipline, helping historians to better understand what happened in American history and why, but also what it means. Bender traces the study of history from the “men of letters” historians of the nineteenth century to historians of the Cold War and the present day, explaining how calls for a more worldly American history curriculum have been rebuffed.

Paschal on Wiecek on the Stone Court

Richard A. Paschal, George Mason University Law School, has posted Constitutional Birth Pains, a review of William M. Wiecek's contribution to the Oliver Wendell Holmes Devise History of the United States Supreme Court, The Birth of the Modern Constitution: The United States Supreme Court, 1941-1953 Although the review essay is a bit old--it originally appeared in the Green Bag 2d, 10 (2006)--I realized the other day that some followers of the blog are unfamiliar with the saga of the Holmes Devise. If you're in that category, the first few pages of the Paschal's review will get you started, but you should then follow the trail through his footnotes, especially to this essay.

Thursday, June 25, 2009

Legal History (and CLE) Go to the Movies

[We normally don't post about commercial events, but when one comes along that provides an excuse to put up illustrations like this, I'll bite.]

The West Legal Edcenter announces Dillinger's Moll: The Trial of Evelyn "Billie" Frechette, a webcasted Continuing Legal Education conference. According to the announcement,
In 1934, John Dillinger’s girlfriend, Evelyn “Billie” Frechette [pictured below], was put on trial in room 317 of the St. Paul Federal Building, now Landmark Center. Frechette was accused of having knowledge of a federal warrant for Dillinger and harboring a criminal. Coinciding with the Hollywood release of the movie “Public Enemies” starring Johnny Depp as John Dillinger [Depp is the one on the left], Landmark Center will present a trial reenactment featuring top Minnesota attorneys and a Minnesota Supreme Court justice, on July 14 from 7-9 p.m. A discussion panel will immediately follow the reenactment, which--together with the reenactment--will fulfill 2 CLE credits.
The reenactors are:

Honorable Paul H. Anderson
Minnesota Supreme Court

James Patrick Barone
Minnesota Assistant Attorney General

Jennifer J. Hasbargen
Minnesota Assistant Attorney General

Doug Heidenreich
Professor, William Mitchell College of Law

Patrick Ostergren
Lind Jensen Sullivann Peterson, PA

Anthony Palumbo
Anoka County Attorneys Office

Mark Priore
Priore Law Office

Richard Stebbins
Stebbins and Hegranes, LLC

Lisa Veith
St. Paul Assistant City Attorney

Frank Mabley
Greenstein Mabley & Wall LLC

Image credit

Update: Every time I see one of these lawyerly re-enactments of a historical or fictional event, often involving Lincoln or Shakespeare (as here and here and here), I wish some subtle practitioner of cultural studies with an interest in law would view a whole parcel of them and tell us all what the heck is going on. If it's just antiquarianism, I suppose the phenomenon is uninteresting, but I suspect there's more to it than that.

Image credit: Malvolio's Revenge, a mock trial by the Lawyers Committee of the Shakespeare Theatre Company of Washington

Zietlow on the Promise of Goluboff's "Lost Promise"

Rebecca E. Zietlow, University of Toledo College of Law, has posted Belonging and Empowerment: A New 'Civil Rights' Paradigm Based on Lessons from the Past, which appears in Constitutional Commentary 25 (2009). Here is the abstract:
Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism has been used as a means to further the economic exploitation of workers. Thus, a robust vision of rights of belonging must incorporate economic rights. In THE LOST PROMISE OF CIVIL RIGHTS, Professor Risa Goluboff details the development of civil rights law in the years leading up to Brown v. Board of Education. Goluboff reminds us of an alternative approach to civil rights, based in economic empowerment and the Thirteenth Amendment, which government lawyers pursued during and directly after the New Deal Era. Destined to be a classic of constitutional theory, THE LOST PROMISE challenges constitutional scholars to re-think our paradigm of civil rights. Based on Goluboff’s history, this review explores rights of belonging as an alternative way of looking at civil rights, which incorporates the economic rights of workers along with the quest to end race discrimination. The paradigm of belonging and empowerment will help to bring about substantive equality rooted in the principle of anti-subordination.
Hat tip.

Wednesday, June 24, 2009

Executive Power: The Lincolnian Legacy

The Government Law Center of the Albany Law School is co-sponsoring a symposium on "Lincoln's Legacy: Enduring Lessons of Executive Power," to be held at the law school on September 30-October 1, 2009. The announcement explains:

This will be a particularly timely look at Abraham Lincoln's exercise of presidential power while exploring its modern relevance. The symposium corresponds with a year-long national celebration of the Bicentennial of the birth of our sixteenth president.

The program opens at 6 p.m. on Wednesday, September 30, will a presentation by Lewis Lehrman of the Lehrman Institute on "Abraham Lincoln as an American Leader," followed by a reception at 7 p.m.

Other confirmed speakers to date are Prof. Angela Alexander; Ms. Emily Brennan, Brennan Center, NYU; Prof. Ray Brescia, Albany Law School; Prof. Paul Finkelman, Albany Law School; Dr. Louis Fisher, Library of Congress; Dr. Mark Graber, University of Maryland School of Law; Dr. Timothy Huebner, Rhodes College; Prof. Neil Kinkopf, Georgia State School of Law; Dr. Thomas C. Mackey, University of Louisville; Prof. Christian Sundquist, Albany Law School; Prof. Renee Redman, University of Connecticut School of Law; Dr. Abraham Wagner, Columbia SIPA; Dr. Jenny Wahl, Carleton College; and Hon. Frank Williams of the Lincoln Bicentennial Commission.

For more information, contact Ali Chaudhry at 518-472-5863, achaudhry@albanylaw.edu.

A Landmark in Habeas Corpus and Criminal Contempt

In case you missed it, the June issue of the American Bar Association Journal ran a lengthy story by Mark Curriden , "'A Supreme Case of Contempt," which treats a landmark in federal habeas corpus law and produced a criminal trial in the U.S. Supreme Court, United States v. Shipp (1909). The article commences:

The case was United States v. Shipp. There were nine defendants, all charged with contempt of court—contempt of the Supreme Court, that is. The U.S. attorney general had filed the charges against them directly with the court, thus giving it original jurisdiction in the matter. The petition alleged that the defendants and other people engaged in actions “with the intent to show their contempt and disregard for the orders of this honorable court ... and for the purpose of preventing Ed Johnson from exercising and enjoying a right secured to him by the Constitution and laws of the United States.”

It was a full-blown trial. There were special prosecutors, dozens of witnesses and a special mas­ter assigned to take the evidence. The trial rec­ord exceeded 2,200 pages. Each side was given a full day of oral argument before the justices.

Chief Justice Melville W. Fuller, who normally encouraged his colleagues to write the court’s opin­ions, decided that the importance of this case demanded that he take on the responsibility. Before reading the opinion that accompanied their verdict, Fuller—in his typically soft, almost inaudible voice —noted to a packed courtroom that the Supreme Court had entered new territory for which there was no precedent.

A hundred years later, United States v. Shipp has faded into the haze of precedent and history, but le­gal historians say its impact remains undiminished. Shipp has been cited as the genesis of federal ha­be­as corpus actions in state criminal cases. The case also was a pivotal turning point in asserting the importance of the rule of law and the need for an independent judiciary.


Update: I might have mentioned that Curriden, with his co-author Leroy Phillips Jr., published a book about the case a decade ago, Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism (1999).

Tuesday, June 23, 2009

Academic Publishing: Two Views

Any legal historian out there at work on his or her first book manuscript might want to check in on two recent views of the academic publishing. The first is a report from the recent meeting of the Association of American University Presses; the second is Stanley Katz’s speculations about what might be down the road. When it comes to books written for academic audiences in the humanities or social sciences, Katz writes, “I have no doubt that we are rapidly moving into an environment of tiny initial print runs (if there is any print run at all) followed by print-on-demand, combined with some form of electronic delivery.”

Image credit

Genealogies: Excavating Legal Modernity, call for papers

Critical Legal Conference 2009
"Genealogies: Excavating Legal Modernity"
September 11-13, 2009
Leicester, UK

Keynote Speaker: Marcela Iacub (EHESS/CNRS).
Plenary Panellists: Peter Fitzpatrick (Birkbeck), Colin Gordon (Royal Brompton & Harefield NHS Trust) and Véronique Voruz (Leicester).

Final Call for Papers

The Critical Legal Conference 2009 will be held in Leicester, UK. The main theme of the conference, "Genealogies: Excavating Legal Modernity", seeks to assess and review the significance of the work of Michel Foucault for the study of law, especially in light of the ongoing publication of his lectures at the Collège de France.

Proposed papers may address (1) the main theme of the conference, (2) an individual stream theme (see below), or (3) a theme otherwise significant in relation to critical legal scholarship. PLEASE NOTE THAT ALL DEADLINES FOR PAPER PROPOSALS HAVE BEEN EXTENDED TO FRIDAY, 28 AUGUST 2009.

(1) Proposals for papers addressing the main theme of the conference "Genealogies: Excavating Legal Modernity" should be sent by email directly to the conference organisers (clc2009@le.ac.uk) no later than Friday, 28 August 2009. Potential presenters are invited to interpret the main theme in the broadest possible sense.

(2) Individual paper proposals for streams should be sent directly to stream coordinators no later than Friday, 28 August 2009. The streams are:

* Revolutions in Natural Law
* Critical Property Theory: The Powers of Property
* Labour, Work and Equality
* Tragic Jurisprudence
* Laws of Empire
* Virtual Worlds, Virtual Law?
* Mapping the Terrain of WTO Law
* Genealogy of Human Rights from a Third-World Perspective
* Subject and Law between Immanence and Transcendence

(3) Proposals addressing a theme otherwise significant in relation to critical legal scholarship should be sent by email directly to the conference organisers (clc2009@le.ac.uk) no later than Friday, 28 August 2009.

The organisers are also pleased to offer five bursaries/fee waivers to research students presenting papers at the conference offered on a competitive basis and made available with the generous sponsorship of Social & Legal Studies: An International Journal.

Further information on the themes, how to submit proposals including abstracts, how to register, research student bursaries, travel and accommodation is available on the conference website. Please also note that an additional late registration fee of £45 applies to registrations completed after 1 August 2009.

Hackney on Horwitz's Transformation 1 and 2

James R. Hackney, Jr., Northeastern University School of Law, has posted his contribution to last year's conference in honor of Morton J. Horwitz. The essay, entitled Morton Horwitz's Methodological Transformation: Some Musings on Transformations I and II, will appear in volume 2 of the festschrift Transformations in American Legal History, ed. Daniel W. Hamilton and Alfred L. Brophy, forthcoming in 2010. (Volume 1, I believe, is available now.) Here is the abstract:
This essay places Morton Horwitz's two classic texts, The Transformation of American Law, 1780-1860 (1973) ("Transformation I") and The Transformation of American Law, 1870-1960 (1992) ("Transformation II") in historical and theoretical relief. The analysis is done on three levels. There is a discussion that draws upon Horwitz's biography as conveyed in an interview of Horwitz conducted by the author. There is also an examination of the two texts and their relationship to changes in legal academia. The discussion of the legal academy leads to a broader historical analysis framing Transformation I and Transformation II within the contours of intellectual trends beyond the legal academy.

Monday, June 22, 2009

Hurst Goes Digital!

As you may have gathered from previous posts, I'm a great admirer of the legal historian Willard Hurst, to whose early career I've devoted an article and book chapter. It is thrilling, then, to be able to post the University of Wisconsin Law Library's announcement of its on-line J. Willard Hurst Collection:
The J. Willard Hurst Collection details the career of the man commonly identified as the father of modern American legal history. The collection primarily spans the years 1932 through Hurst’s death in 1997. The bulk of material dates between 1946 and 1980 when Hurst was a professor at the University of Wisconsin Law School, where he developed the field of American legal economic history through his scholarship and teaching. The collection provides insight into the evolution of Hurst’s view of legal history and his role in developing a community for legal historians.

The collection includes Hurst’s personal outlines and notes; course texts; publications; publication reviews; research notes; correspondence (incoming and carbon copies of outgoing letters); personnel records; photographs; audio recordings; and typewriter. Correspondence, topical outlines and notes, and audio recordings compose a bulk of the collection.
Here's a chance to get to know a modern master at first hand. I especially recommend the forty downloadable lectures from the legal history course he taught in 1978. These are informed by his distinction between "law" (organized intelligence) and "markets" (short-sighted pragmatism), which he developed at length in his Curti lectures. Just in time for the new regime of financial regulation!

Hat tip.

Update: I've just come across my notes on Hurst's legal history lectures. Here's a taste, from the seventeenth lecture, I believe:
It’s in the nineteenth century, particularly in the last half of it, for example, that you get the common rise of the phrase that you hear a little less of today, but was one of the great shibboleths of late nineteenth century America, the worship given to what was called “the self-made man,” which is certainly one of the most vain characterizations of human nature anybody ever succeeded in inventing, as if any individual could be “self made”--[as] if any individual did not owe an immense heritage for which he hadn’t paid a cent in personal energy or money to the society into which he is born, for its language, its sustaining traditions, its accumulated knowledge, as to how to live and get along. And yet the nineteenth century worshiped something called the "self-made man," and that was simply the cultural counterpart of the tremendous value which nineteenth-century public policy attached to the concept called freedom of contract.

Policy History Conference: Call for Papers

The Institute for Political History and the Journal of Policy History are hosting a Conference on Policy History at the Hyatt on Capitol Square in Columbus, Ohio from June 3 to June 6, 2010. Program chairs are Paula Baker, Amy Bridges, and David Robertson, who announce that "we are currently accepting panel and paper proposals on all topics regarding American political and policy history, American political development, and comparative historical analysis. Complete sessions are encouraged, but individual paper proposals are welcome." The deadline for submission is December 30, 2009.

For questions regarding conference content or program information, please contact David Robertson at daverobertson@umsl.edu, Amy Bridges at abridges@ucsd.edu, or Paula Baker at baker.973@osu.edu. Please direct general inquiries to the conference coordinator, Cynthia Stachecki, at policyhistoryconference@gmail.com after consulting the conference website.

Wuerth on The Captures Clause

Ingrid B. Wuerth, Vanderbilt University Law School, has posted a new article, The Captures Clause. It is forthcoming in the University of Chicago Law Review. Here's the abstract:
The Captures Clause of the United States Constitution gives Congress the power to “make Rules concerning Captures on Land and Water.” A variety of courts, scholars, politicians and others have recently cited the Clause to support conflicting arguments about the scope of Congress’s power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress’s power broadly understand the Captures Clause as giving Congress the power to determine what (or whom) may be seized both as method of initiating conflict and as measure of war prosecution. Others maintain that the Clause only gives Congress power over the adjudication and division of property seized by armed private vessels. Virtually all of these accounts rely on original history, yet none examines the Captures Clause in any detail.
This Article does so, tracing the meaning of captures through British and Colonial Admiralty documents, prominent works of international law, the Revolutionary War and Articles of Confederation, and the drafting and ratification of the Constitution. The result is that the eventual language in the Constitution could have been plausibly understood in a variety of ways prior to the Revolutionary War, but it probably did not include the power to determine what or whom could be taken. The Continental Congress used the word “captures” in a significantly different way – to authorize what goods (but not what people) could be taken by both public and private vessels. This is also the best reading of the Constitution’s text.
The Captures Clause illuminates a small but significant area of constitutional history, for captures were extremely important throughout the eighteenth century. And the Captures Clause sheds important light on the meaning of the Letters of Marque and Reprisal, Declare War, and the Commander-in-Chief Clauses. Contrary to the views of almost everyone writing on these topics, the first gave Congress only the power to license private vessels to make captures – it was the Captures Clause that gave Congress the power to determine what property was subject to capture by both public and private forces. This, in turn, supports at least a relatively broad reading of the Declare War Clause, because it gives Congress a power closely tied to the initiation of war. It also means that at least some questions of combat strategy were lodged with Congress, narrowing the possible scope of the Commander in Chief Power. Finally, however, a careful look at the Captures Clause also illustrates gaps and overlaps in the Constitution’s allocation of war powers.

Sunday, June 21, 2009

Tsai on Langston Hughes: The Ethics of Melancholy Citizenship

Robert Tsai, American University Washington College of Law, has posted a new paper, Langston Hughes: The Ethics of Melancholy Citizenship. Here's the abstract:
As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics point the way toward democratic renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.
Photo credit.

Reviewed: books on Clarence Darrow, Guantanamo, and the nation after King's assassination

THE LAST TRIALS OF CLARENCE DARROW by Donald McRae is reviewed in the Washington Post. According to Jonathan Yardley, often McRae's "narrative moves along nicely," but in light of recent works highlighting Darrow's role in important cases, he strains "mightily (and for the most part unsuccessfully) to put a new twist on Darrow's story."

Also reviewed in the Washington Post is THE LEAST WORST PLACE: Guantanamo's First 100 Days by Karen Greenberg. Peter Finn writes that the author "burrows beneath layers of toxic history to excavate a brief and largely forgotten period when the military detention facility at Guantanamo Bay was not yet notorious....Greenberg has written an important and compelling work that others will turn to fruitfully in writing the full history of Guantanamo."

Clay Risen, A NATION ON FIRE: America in the Wake of the King Assassination, a book taking up the dramatic events in American cities following King's killing, is reviewed in the Washington Post by Ian Shapira. "Despite Risen's use of newly declassified documents, much of the interesting material comes from coverage by The Washington Post that was compiled in the book 'Ten Blocks from the White House.' Nonetheless, Risen's city-by-city reconstruction of the riots, tucked into his larger analysis about the Civil Rights era, offers a useful evocation of those times.

Gold on Ohio's General Assembly

David M. Gold, Ohio Legislative Service Commission, has published Democracy in Session: A History of the Ohio General Assembly. The press describes the book as "a lavishly illustrated history of the Ohio General Assembly, the state's most important political institution, and one that is now more than two centuries old. Through a lively mix of law, politics, biography, and Ohio history, David Gold traces the transformation of the General Assembly from a part-time body of citizen lawmakers to a full-time professional legislature and provides the reader with a sense of how the General Assembly looked, sounded, and functioned at various points along the way.

Says Andrew Clayton, Miami University:
David Gold has written as close to a definitive history of the General Assembly--the most consequential and least understood political institution in the history of Ohio--as we are ever likely to have. With a host of colorful characters and anecdotes, Gold expertly details the contested development of procedures, customs, membership, and legislation, all the while showing how changes in the General Assembly have reflected changes in Ohio itself.
E. Gordon Gee, the president of Ohio State University, adds:
How wonderful that we now have a comprehensive, scholarly, and readable history of such an important institution as the General Assembly. David Gold’s book is more than a history of the legislature's work. Democracy in Session also tells the story of how a modern, professional body of lawmakers developed over the past two centuries.

Saturday, June 20, 2009

Oral Advocacy and the Teapot Dome Trials

The Historical Society of the District of Columbia Circuit and the Litigation Section of the District of Columbia Bar announce "Timeless Elements of a Great Closing Argument: Lessons from the Teapot Dome Trials." The announcement explains:
The District of Columbia courts tried criminal cases between 1926 and 1930 against President Harding's Secretary of the Interior and others arising from the "Teapot Dome" scandal. That affair included allegations of giving and receiving bribes for the leasing of U.S. oil reserves to private oil companies. Several of those trials pitted defense counsel Frank Hogan (founding partner of Hogan & Hartson, pictured in the lighter-colored overcoat with his client Edward Doheney at right) against Special Prosecutor (and future Supreme Court Justice) Owen Roberts. This program will feature mock closing arguments drawn directly from transcripts of Hogan's and Roberts's arguments in two of the D.C. trials, United States v. Albert Fall and United States v. Edward Doheny. A panel discussion on the essential elements of an effective closing argument will follow.
David C. Frederick will introduce the session and moderate. Mock closing arguments will be provided by two eminent Washington lawyers, Roger M. Adelman and William D. Nussbaum. The panel consists of two judges of the U.S. District Court for the District of Columbia (the Hons. Ellen Segal Huvelle and Hon. Emmett G. Sullivan) and two lawyers (Timothy G. Lynch and Jacob A. Stein). Admission is free, although attendees are invited to contribute to or become dues-paying members of the Society. A reception will follow the program. No reservations are required. For additional information call 202-216-7346 or consult the website of the Historical Society of the D.C. Circuit.

Image Credits: Juggernaut; Doheney and Hogan, outside the federal courthouse

Friedman on Ex Parte Young

Barry Friedman, New York University School of Law, has posted The Story of Ex Parte Young: Once Controversial, Now Canon, which is forthcoming in Federal Courts Stories, ed. Vicki Jackson & Judith Resnik. Here’s the abstract:
Ex parte Young is a central part of the federal courts canon, yet the underlying historical details are little known or understood. This is unfortunate. Many cases in the canon are contested by advocates of greater or lesser federal court intervention. Ex parte Young, however, is bedrock, almost universally admired across the ideological spectrum. At the time, though, this decision opening the doors to federal court was widely condemned by progressives who disdained judicial involvement in economic legislation. The Story of Ex Parte Young tells of the cases' origins in Reconstruction and the Gilded Age, shedding light on how we should understand this now widely-accepted decision.
Image credit: Rufus Peckham

Friday, June 19, 2009

Lawyers in Canadian History

Recently published is The Promise and Perils of Law: Lawyers in Canadian History, a collection of essays edited by Constance Backhouse, University of Ottawa, and W. Wesley Pue, University of British Columbia. According to the publisher,
The papers that make up this volume were produced on the occasion of the 175th anniversary of the opening of Osgoode Hall, one of Toronto’s landmark buildings. This event presented a unique opportunity for reflection on the legal profession and its role in Canadian history. The “legal profession” is simultaneously a trade organization, a corporate ideology, an important cultural actor, and an aggregation of individuals known both for their zealous pursuit of their clients’ interests and for their assertive individualism. This book offers essays that seek to add to the understanding of Canada’s legal profession and to provide a background to inform conversation concerning its past, present, and future.
Here is the summary table of contents:

1. Introduction. W. Wesley Pue

2. An Introduction to Osgoode Hall on the Occasion of its 175th Anniversary: More than Bricks and Mortar. Deidré Rowe-Brown

3. “Slamming the Door on Brains”: Narrowing Opportunity at Two Canadian Law Schools, 1880s–1920s. David G. Bell

4. “Good government, without him, is well-nigh impossible”: Training Future (Male) Lawyers for Politics in Ontario, Quebec, and Nova Scotia, 1920–1960. Mélanie Brunet

5. Dealing with Adversity: The Halifax Bar, 1900–1950. Philip Girard and Jeffrey Haycock

6. Megafirm History: Past and Present of the Large Law Firm in Canada. Christopher Moore

7. Civil Law, Legal Practitioners, and Everyday Justice in the Decades Following the Quebec Act. Jean-Philippe Garneau

8. The Legal Profession and Penal Justice in Quebec City, 1856–1965: From Modernity to Anti-Modernity. Donald Fyson

9. The Court and the Legal Profession: Loyalist Lawyers and the Nova Scotia Supreme Court, 1785–1790. Jim Phillips

10. “Guardians of Liberty”: R.M.W. Chitty, Lawyers, and the Second World War. Eric M. Adams

11. Reconstructing the Lives and Careers of Lawyers: Ethelbert Lionel Cross, Toronto’s First Black Lawyer. Susan Lewthwaite

12. If Your Life is a Leaf: Arthur Eugene O’Meara’s Campaign for Aboriginal Justice. Hamar Foster

13. “In the rough of things”: Women Lawyers in British Columbia, 1912–1930. Dorothy E. Chunn and Joan Brockman

14. “A Revolution in Numbers”: The Formative Years for Ontario Feminist Lawyers, 1970–1990. Constance Backhouse

Update: A newspaper column drawing upon Professor Backhouse's chapter is here.

McGuiness on Missouri v. Holland

Margaret E. McGuinness, University of Missouri School of Law, has posted her forward to the symposium "Return to Missouri v. Holland." Her forward appears in the Missouri Law Review 73 (2008): 921-37. Here is the abstract:
This essay introduces the 2008 Missouri Law Review symposium, “Return to Missouri v. Holland: Federalism and International Law.” The foreword places the theme of the symposium in historical and theoretical context and introduces the articles by Professors Carlos Vázquez, Michael Ramsey, Edward Swaine, Peter Spiro, Paul Stephan, Julian Ku, Duncan Hollis, Paul Schiff Berman, Robert Ahdieh, and Ilya Somin, along with the keynote lecture, “The Internationalism of American Federalism, Missouri and Holland,” by Professor Judith Resnik.

Image credit: Martha, the last passenger pigeon

Thursday, June 18, 2009

ASLH Program and Conference Info Now Online

The preliminary program for this fall's American Society for Legal History conference, November 12-14, in Dallas, Texas, is now on-line, and it looks spectacular. You can download the program in either Word or PDF formats from this page. You'll come first to a schedule with two days packed with panels. Following the schedule, you'll find the details about each panel, including paper titles and contact information for panelists.
The conference hotel is The Fairmont Dallas. You can register with conference rates here. Alternative, less expensive accommodations are here. A great guide to Dallas, with everything from transportation and dining options to a short history of Dallas, is here.

For preparing this intellectual feast for the rest of us, we have to thank this year's Program Committee:

Stuart Banner, Co-Chair, University of California, Los Angeles
Victoria List, Co-Chair, Washington & Jefferson College
Kif Augustine-Adams, Brigham Young University
Daniel Ernst, Georgetown University
Daniel Hamilton, University of Illinois
Adriaan Lanni, Harvard University
Kenneth F. Ledford, Case Western Reserve University
Tahirah Lee, Florida State University
Janet Loengard, Moravian University
Mitra Sharafi, University of Wisconsin
Peter Winship, Southern Methodist University

Many thanks as well to the Local Arrangements Committee for the helpful advance info and all the rest of the hard work they will be putting in between now and November!

Joshua Tate, Co-Chair, Southern Methodist University
Josiah Daniel, Co-Chair, Vinson & Elkins
Elisabeth Cawthon, University of Texas at Arlington
Jason Gillmer, Texas Wesleyan University
Joseph McKnight, Southern Methodist University
Peter Winship, Southern Methodist University
Rebekah Bell, Southern Methodist University
Image credit.

Korzec on Justice Brennan's Gender Jurisprudence

Justice Brennan's Gender Jurisprudence has just been posted by Rebecca Korzec, University of Baltimore School of Law. It appeared in the Akron Law Review (1991). Here's the abstract:

During his thirty-four year tenure on the Supreme Court, Justice William Joseph Brennan, Jr. demonstrated unparalleled sensitivity to the protection of individual rights. Justice Brennan's landmark opinions included Baker v. Carr, Goldberg v. Kelly, and New York Times Co. v. Sullivan. before Brennan, Supreme Court jurisprudence exalted judicial passivity by employing techniques for avoiding constitutional issues, such as abstention, comity, exhaustion of remedies and the political question doctrine.Against this background, Brennan became an active judicial voice in a series of innovative landmark cases, including decisions requiring federal officials to pay damages for violation of citizens' constitutional rights; authorizing federal courts to issue injunctions forbidding state court prosecutions under laws violating the First Amendment; and permitting congressional employees to sue members of Congress for discriminatory treatment.However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.
Photo credit.

Enyeart on Rocky Mountain Workers' Quest for Labor Legislation

Recently published by Stanford University Press is John P. Enyeart's The Quest for “Just and Pure Law”: Rocky Mountain Workers and American Social Democracy, 1870–1924. Here's the press's summary:
Focusing on the political culture forged by Rocky Mountain workers from the 1870s through the 1920s, this book shows how the unique working-class politics of the region led to remarkable successes in securing progressive labor legislation. These successes—especially in improving workers' hours, wages, and safety—in turn played a central role in transforming the nation's attitudes toward workers' rights.

Examining political culture in the everyday lives of workers (from shop floors to union halls to recreation), the author uncovers a labor movement based as much on pragmatism as on ideology, and he traces how its members productively focused their efforts on political action at the local and state levels. In the process, they developed a genuinely social-democratic political culture.
And here are some strong blurbs:
"John Enyeart's The Quest for 'Just and Pure Law' marks not only a welcome resurgence of labor history, but also an important new interpretation of working class political culture in the West. It is a book that will surprise many historians and force a rethinking of what we thought we knew about working people in the developing West." —Richard White, Stanford University

"Enyeart does a fine job of redrawing the political landscape of the Rocky Mountain West in the late nineteenth and early twentieth centuries. He uncovers and documents a rich vein of pragmatic, union-centered politics that was remarkably durable and influential at local, state and regional levels. He challenges standard histories of trade union political activism, western working-class syndicalism, and political socialism in the West and gives such important figures as Joe Buchanan and Alex Fairgrieve the more complex rendering they deserve. This work will set in motion a whole series of debates about working-class politics that deserve the close attention of historians and others." —Shelton Stromquist, University of Iowa

Wednesday, June 17, 2009

ASLH seeks Webmaster

The American Society for Legal History is looking for a webmaster. This is a volunteer position, and a great way to get involved in the most important legal history organization in the United States. Here are the details, circulated on H-Law:

As keeping the website up to date will be an even more critical job than it has been in the past, the president will appoint a webmaster,whose responsibility it will be to post all information to the website and to keep the website current. The webmaster will work under the supervision of the president-elect of the society.
While qualifications are not listed, I expect that the ASLH is looking for a tech-savvy legal historian who is a member of the organization. More details are here. Those interested should contact ASLH President Maeva Marcus.