Monday, August 31, 2009

'Victoria & Frederick for President' at NY Int'l Fringe Festival

"Victoria & Frederick for President" was one of the plays showing in the New York International Fringe Festival (hosted by the New School for Drama) earlier this month. A local reviewer (here) called the show "informative if slightly uneven," but for legal historians and those who love them (I'm in the latter category), it was a show worth seeing.

One of the first books I ever read about Victoria Woodhull was Emanie Sachs' 1928 book, The Terrible Siren. Woodhull herself had a flair for the dramatic -- she declared herself a candidate for President of the United States in 1872, with Frederick Douglass as her running mate. The problem, of course, was that she didn't ask Douglass' permission ahead of time, and Douglass supported incumbent Ulysses S. Grant. Details...details....

This show wasn't the best piece of theater I've seen in a while, but it was very entertaining.

Image credit: Library of Congress. Thomas Nast, 1872. "Get thee behind me, (Mrs.) Satan!" Wife burdened by children and husband repudiates Victoria Woodhull's "free love" philosophy.

Ribstein on The Rise of the Uncorporation

Larry E. Ribstein, University of Illinois College of Law has posted the Introduction of his forthcoming book, THE RISE OF THE UNCORPORATION (Oxford University Press, 2009). Here's the abstract:
The analysis of business associations largely has been limited to corporations. Yet unincorporated firms, including general and limited partnerships and limited liability companies, comprise about a third of the firms in the US, and even larger percentages elsewhere in the world. The Rise of the Uncorporation covers the history, law, and finance of unincorporated firms. These “uncorporations” are now the dominant business form for non-publicly-traded firms. Moreover, through private equity, hedge funds, and publicly traded partnerships, uncorporations have emerged as a significant force in the governance of a wide range of large firms. The Rise of the Uncorporation is the first general theoretical and practical overview of the alternatives to incorporation. The book seeks to bring uncorporations into popular and academic debates that have previously focused only on corporations. This book also covers the ancillary concepts connected with the evolution of these uncorporations, and analyzes likely future trends in business organization.

Penningroth on Claims of Slaves and Ex-Slaves to Family and Property: A Transatlantic History

The Claims of Slaves and Ex-Slaves to Family and Property: A Transatlantic Comparison is an article by Dylan C. Penningroth, American Bar Foundation and Northwestern University. I appeared in the American Historical Review (2007). Here's the abstract:
Slavery was a core fact of life in both Africa and the U.S. during the nineteenth century, profoundly shaping law, politics, society, and ideology. Yet they are rarely compared side by side, a gap that is symptomatic of a larger scholarly disconnection between Africanist and U.S. historians. Drawing on records of court cases and other legal documents, this article compares the southern United States and southern Gold Coast. This limited comparison reveals that claims about key institutions - family and property - were rooted in a complex history of change in the two regions, including internal mass migrations of slaves, the rise of large new slave-based economies, and an intensified focus on kinship as a key component of the masters' ideology of slavery. Masters and slaves struggled over claims to resources - including claims to people - and the social identities that underpinned them. In significant ways, the histories of both regions were shaped by debates about the claims that slaves and their descendants made to kinship and to the products of their labor. Those debates drew substance from - and in turn helped influence - the meanings of property, slavery, and social membership for all people, not just slaves.

Saturday, August 29, 2009

Science and Popular Legal Memory in Iceland

If you wish to gaze into the future and see one of the paths public memory of medieval law and society in Iceland will take in coming years, you could do worse than to share a morning cup of coffee—or, this being Iceland, two cups of coffee—with Adolf Fri∂rickson, Chair of the Institute of Archeology in Reykjavík.  I did so on a drizzly Wednesday morning about three weeks ago, two days after my wife and I touched down at Keflavík Airport.

We met in a shiny, modern coffee shop at the heart of downtown, within close view of some of the oldest, most quaint buildings in the city and a major construction site.  I had called Fri∂rickson because in preparing for my stint as a Fulbrighter, I had read his call to arms Sagas and Popular Antiquarianism in Icelandic Archeology.  The book contains a chapter on administrative and legal sites, such as the assembly sites my wife and I hoped to visit on our trip, and when I contacted Fri∂rickson and indicated I was a Fulbright fellow interested in his work, he immediately agreed to get together. 

Fri∂rickson argues that archeology here has yet to overcome the ideological tinge of its birth during the age of nineteenth-century nationalism, even though archeologists have long been critical of their intellectual forebears in the Archeological Society—especially their willingness to view the sagas more as transparent documentary records of settlement-era history than achievements of the literary imagination.  Fri∂rickson believes one important cure for archeology’s ills lies in the deployment of new scientific methods, such as the study of archeological phenomena across sites rather than the more traditional examination of whole sites individually.  Should archeologists fail to advance methodologically, he asserts, they will continue to echo Icelanders’ own highly active folk knowledge about medieval historic sites, their “popular antiquarianism.”  This folk memory often implicitly guides archeological work, most notably by tempting archeologists to use common place names as a record of a site’s historical significance.  Without new scientific methods, Icelandic archeologists will remain in the grip of a popular knowledge which, like nineteenth-century nationalist science, is itself deeply rooted in a thirteenth-century saga literature that reveals as much about the thirteenth century as the Viking age it depicts. 

Fri∂rickson is every inch the skeptical scientist (one of his most common replies to my questions was “we don’t yet have enough evidence to say”), and one story he told about his own self-questioning struck me as revealing of the substantive change a scientific approach can bring to historical knowledge—in this case, knowledge about how land in medieval Iceland was settled and divided.  There is a popular view of the settlement of Iceland as a rather neat, orderly process.  That view is drawn from the thirteenth-century Landámabók (The Book of Settlements), which describes in extraordinary detail who the original settlers of Iceland were and where on the island they made their homes.  The depiction of the settlement as a rational process of immigration and land-claiming served the interests of powerful thirteenth-century chieftains who sought to legitimate their rule through warped history, and the myth they created stuck—and it stuck not simply regarding which specific land claims were made during the settlement, but more generally in the view of the settlement as almost deliberative in nature.  Fri∂rickson called my attention to an image he thought put this view into pictorial form:  the cover of an edition of Landámabók which depicts a happy Viking nuclear family in a ship, smiling merrily on their way to a new land.

Fri∂rickson admitted that, unwittingly, he had once been in the grip of a misconception rooted in this very myth.  In his case, the misconception concerned settlement-era burial sites.  At present, Icelandic archeologists have uncovered about 330 burial sites in about 160 separate places (about 40 of these sites were previously undisturbed, “closed finds”).  The majority of these burials are located a good distance away from settlement-era farmsteads, at the edge of ancient property lines between farms and near well-worn medieval paths.  Individuals in these graves are bigger than those in the other graves archeologists have found on the island, and the graves include more women and children.  Then there are graves of a somewhat different type, a minority of the finds.  Individuals in these graves are poorer and, most notably, the graves are located quite near the main farm activity areas and away from ancient paths.  Why the difference?

When Fri∂rickson first decided to study the graves comparatively, he believed he would find that the more distant burials, those along property-line boundaries, were older.  He reasoned that when a family settles in a new place they bury their kin at the border of the property they have claimed, in part to assert their ownership of the land.  Graves would serve as markers of possession.  “You might think you would put your parents and grandparents at the edge of what you consider to be yours,” he explained, sipping his coffee.  But what he found was contrary to his hypothesis: the distant graves were younger.  And this fact about burial sites pointed to a very different view of the settlement:  not the “neat” process depicted both in Landámabók and in popular culture, but rather something potentially “savage.”  Picture not a smiling Viking family on a boat making its new home, but instead a group of hard men living in deep anxiety, huddled near their farmsteads, not wishing to venture far beyond the immediate area where they had settled.  Imagine the settling of land as guided by force, uncertainty, and fear.  This was a place, after all, where every social institution had to be restablished.  Only later, once property was secure, could graves be put at its margins.

A similar process surely took place not only regarding property but regarding law more generally.  This is a remote place, and what authority applies here has been a persistent question in Icelandic history.  What was law?  Whatever it was, it wasn’t initially created in rational, deliberative conditions (though it later may have been codified under them). 

In any case, what interests me about Fri∂rickson’s approach to archeology is how it promises to overturn folkloric conceptions of the meaning of the land—including the meaning of the assembly sites we visited on our trip.  In Fri∂rickson’s view, popular antiquarianism is a continuation of the way Icelanders have “done” history for centuries:  by telling stories about the landscape they so intimately inhabit (a landscape in which, because of the harsh environment, there are almost no historic man-made structures to be seen and to verify historical facts).  When a farmer or a community knows that a particular hill has long been called “Willard Hurst Hill,” for example, some historical event may well have taken place there, but it’s equally possible that the hill bears absolutely no relation to Hurst the Wise of saga fame.  It’s also possible that no historical event took place there at all.  Under scrutiny, much vernacular understanding of the landscape will be shown to be but an echo of some thirteenth-century need as voiced through nineteenth-century nationalist history.  Science historicizes with a hammer. 

In time, that hammer will fundamentally transform the landscape of legal memory here, perhaps severing many of the bands of vernacular legal remembrance which for generations have linked Icelanders to their environment.  The landscape of Iceland will be emptied of ancient legal memories, to be replaced by facts ascertained by specialists.  Icelanders’ relation to their land will be mediated by the knowledge of an international class of academic historians and social scientists.  There is no need to be nostalgic for the world of popular legal history that will vanish.  But it will be important in the distant future to remember that it has.  It also will be important to understand that science is not acting in an intellectual vacuum.  Just as today we view the work of the nineteenth-century Archeological Society within the context of an Icelandic nationalism that partook of a larger European moment, so too the transformation of popular legal memory in Iceland is but one component of the engine of economic and political integration of contemporary Europe.  The idea that blood can still be seen on the execution-block stone near an ancient assembly site, as described in my previous post, will disappear in the face of the cultural and intellectual forces that ground the new constitutional entity Iceland doubtless will shortly join.  Academic science will demystify the cultural basis of the nationalism which Europe seeks to overcome politically through its Kantian aspirations, at the same time that the popular memory of law will change as a consequence of the new legal order being created here through the slow force of political will. 

Or at least that’s part of the future story.  Because there are other futures of the landscape of legal memory in Iceland—futures of a rather different kind, at least in relation to the question of nationalism (after all, it takes but an hour watching the European Football Championship to make a person radically skeptical of the universalist claims of European bureaucrats and civil servants).  But these thoughts will have to wait for another time.  Right now, it’s time for my wife and I to read Journey to the Center of the Earth out loud and enjoy a Friday night in our new home.

Dervan on Herman Talmadge, the Georgia Supreme Court and the Gubernatorial Election of 1946

Three Governors: Herman Talmadge, the Georgia Supreme Court and the Gubernatorial Election of 1946 has just been posted by Lucian E. Dervan, Southern Illinois University School of Law. It appeared in the Georgia Bar Journal (December 2002). Here's the abstract, which is more of a teaser:
Herman Talmadge, who died March 21, 2002, was a governor, senator, and Georgia icon who controlled state politics for much of the last half of the 20th century. While many events in Talmadge’s life deserve attention, one event in particular stands out amongst the trials and tribulations, victories and scandals in this long American political life. In 1946, the Georgia gubernatorial election brought a state government to its knees, a state Supreme Court to the height of its power and Talmadge into the national spotlight as a revolver toting aspiring governor.

Friday, August 28, 2009

Hendley on The Role of Contracts in Russian Industry During the Transition to the Market

Coping with Uncertainty: The Role of Contracts in Russian Industry During the Transition to the Market is a new paper by Kathryn Hendley, University of Wisconsin-Madison Law School. Here's the abstract:
Russia's transition to the market was tortuous. The literature presents the 1990s as a period when contracts were largely irrelevant due to the inadequacies of the substantive law and the inability of courts to protect property rights. This article explores how contracts were, in fact, used by Russian industrial firms through a series of in-depth case studies. At all of the case study firms, management had developed standard form contracts. Their willingness to rely on them when problems arose was dictated primarily by the nature of their relationships with their trading partners, not by a lack of faith in the legal system. Where the relationships were grounded in personal trust, managers were reluctant to invoke their rights under the contract. Where relationships were grounded in calculative trust (mutual need intertwined with mutual suspicion), managers did not shy away from legalistic remedies. Enterprises that relied on in-kind exchanges had little need to rely on written contracts due to the ephemeral character of these transactions. The lack of reliable information about the credit-worthiness of prospective customers combined with the lack of reputational sanctions for contractual violations made life difficult for all of the case study firms.

Wells on The Fight over Executive Compensation in 1930s America

'No Man Can Be Worth $1,000,000 a Year:' The Fight Over Executive Compensation in 1930s America is a new paper by Harwell Wells, Temple University Beasley School of Law. Here's the abstract:

Challenges to executive compensation occupy today’s headlines, but as this Article shows fights over executive compensation have a long history. Executive compensation first took the national stage in the 1930s, when revelations of corporate chieftains’ million-dollar-a-year pay packages sparked outrage and campaigns to cap executive compensation through measures including new requirements for pay disclosure, litigation against boards of directors, punitive taxation, and direct government limits on pay. These campaigns forced lawmakers and courts to wrestle not only with angry voters and shareholders but also with fundamental questions: how, in an era when ownership and control had been separated, could the managers of the modern corporation be controlled? How much did executives, or anyone, deserve to be paid? And, who would decide? The fights revealed deep tensions between some legislators’ and courts’ desire to subject executive pay to a level of scrutiny and control not seen before or since, and their reluctance to become to entangled with the internal workings of corporations. The story told here is, in part, of the rise and fall of ambitious proposals to curb executive compensation and the success of more modest innovations. This Article, the first legal history of this overlooked episode, not only recounts the 1930s struggles but draws a contrast between the wide-ranging battles over compensation of seventy years ago and the today’s more narrow debates.
Image credit.

The New Fiscal Sociology

The New Fiscal Sociology: Taxation in Comparative and Historical Perspective, is a collection of essays edited by Isaac William Martin, University of California, San Diego; Ajay K. Mehrotra, Indiana University, Bloomington; and Monica Prasad, Northwestern University. Their introduction, entitled "The Thunder of History: The Origins and Development of the New Fiscal Sociology," is now available via SSRN. Here is the abstract:
Scholars have long recognized the importance of taxation to the study of modern society. In recent decades, a new and innovative wave of multidisciplinary scholarship on the sources and consequences of taxation has begun to emerge. In this introductory chapter, we chronicle the historical roots, recent developments, and future promise of this emerging field, which we call the new fiscal sociology. More specifically, in our introduction we crystallize the developments in this recent scholarship. We argue that new comparative and historical perspectives provide several innovative insights about taxation. First, that economic development does not inevitably lead to a particular form of taxation, but rather that institutional context, political conflicts, and contingent events lead to a diversity of tax states in the modern world. Second, that taxpayer consent is best explained not as coercion, predation, or illusion, but as a collective bargain in which taxpayers give up resources in exchange for collective goods that amplify the society’s productive capacities. And, third, because taxation is central not only to the state’s capacity in war, but in fact to all of social life, the different forms of the tax state explain many of the political and social differences between countries. The essays in this collection, written by leading scholars from a variety of disciplines, showcase the new fiscal sociology. The contributors explore the many ways in which the relations of taxation are pervasive, dynamic, and central to modernity. The specific chapters address the social and historical sources of tax policy, the problem of taxpayer consent, and the social and cultural consequences of taxation. They trace fundamental connections between tax institutions and macro-historical phenomena – wars, shifting racial boundaries, religious traditions, gender regimes, labor systems, and more.
The essays include:

W. Elliot Brownlee, "The Shoup Mission to Japan: Two Political Economies Intersect"

Robin L. Einhorn, "Liberty, Democracy, and Capacity: Lessons from the Early American Tax Regimes"

Joseph J. Thorndike, “'The Unfair Advantage of the Few': The New Deal Origins of 'Soak the Rich' Taxation"

Charles Tilly, "Extraction and Democracy"

Thursday, August 27, 2009

Inazu on The Forgotten Freedom of Assembly

The Forgotten Freedom of Assembly is a new article by John D. Inazu, Duke University School of Law. It is forthcoming in the Tulane Law Review. Here's the abstract:
The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s’ McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution.' In 1939, the popular press heralded it as one of the 'four freedoms' at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the 'basic liberties.' But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.

Cushman on the Constitutional Consultation and Hughes Court

Barry Cushman, University of Virginia School of Law, has posted The Hughes Court and Constitutional Consultation. It was published as "The Hughes Court and Constitutional Consultation," 1998 J. Sup. Ct. Hist. 79 (1998). Here is the abstract:
This lecture, delivered to the Supreme Court Historical Society, details the ways in which justices of the Hughes Court provided guidance to members of the political branches in formulating constitutional solutions to the economic crisis of the 1930s. Among the policy areas considered are farm debt relief, energy policy, agricultural policy, civilian relief and public works, retirement pensions, and unemployment compensation.
Here's a taste:
Franklin Delano Roosevelt was the greatest politician of his age. But he was not the greatest constitutional lawyer. For example, he had rather unorthodox views on questions of the separation of powers. Early in his first term, the President approached Chief Justice Hughes and suggested that the two of them form a sort of consultative relationship. As one contemporary account has it, Roosevelt "intimated that he would like to talk over with the Chief Justice all his important plans concerning the general welfare, to get the Court's slant on them before acting." Article III, Section 2 of the Constitution provides that the judicial power of the United States shall extend only to certain specified cases and controversies; and the Supreme Court had first declined a presidential request for an advisory opinion in Washington's first term, when the first president had sought counsel on specific questions of international law. Hughes similarly demurred to Roosevelt's overtures, informing the president that "'the Supreme Court is an independent branch of government.'" As one account puts it, "he turned the President down flat." Roosevelt related this story while defending his Court-packing plan to a doubtful Senator. "You see," the President sighed, "he wouldn't co-operate."
Image Credit: Library of Congress

Wednesday, August 26, 2009

A Museum for "My Professional Family"

A story in the Vacaville Reporter by Brian Hamlin describes an attempt by a retired superior court judge to create a legal museum in a refurbished courthouse in Solano County, in northern California. The story commences:

"Beyond all the dusty law books, crowded hallways and sometimes spirited courtroom debate, Solano County's legal community has a rich and colorful history -- one that has been largely forgotten in the torrent of day-to-day cases that flood the courts in Fairfield and Vallejo.

"Retired Solano County Superior Court Judge R. Michael Smith wants to put that history in the spotlight with a legal museum he hopes to set up in the historic -- and currently vacant -- county courthouse building on Texas Street in downtown Fairfield.

"Plans are underway for a multimillion-dollar renovation of the 1911 granite structure and possible placement of civil courtrooms there. Due to the state of the economy, however, it's not certain when that restoration will begin.

"When it's complete and open to the public again, though, Smith hopes a portion of the courthouse can be devoted to a Solano County legal museum, where visitors can learn about how the legal system evolved in the county, as well as highlighting the lives of the attorneys and judges who made it happen.

"Smith, who's still active as an assigned judge throughout Northern California, began researching Solano County's legal history in the mid-1980s, when he was a deputy district attorney based in the Hall of Justice in Fairfield.

"He began digging through old case log books in the DA's Office and soon was hooked on the research project.

"'I've always been a kind of family historian, and this isn't too different from doing a family history,' Smith said. 'The legal community is my professional family.'"


Image credits: Joel Rosenbaum; Judicial Council of California

Hoyos on the Taming of Constitutional Conventions

Roman J. Hoyos, a Visiting Assistant Professor of Law and History at Duke University Law School and a Ph.D. Candidate in History) at the University of Chicago, has posted From an "Offspring of Revolution” to an “Offspring of Law”: The Invention of a Law of Constitutional Conventions and the Transformation of American Democracy. Here’s the abstract:
In 1867, John A. Jameson published the first legal treatise on constitutional conventions ever written. His primary objective was to bring the constitutional convention within law’s domain, challenging earlier constructions of the convention as sovereign or extra-constitutional. By the 20th century, the reexamination of convention authority sparked by Jameson’s treatise was largely successful. Conventions were no longer seen as sovereign, but merely as another branch of government with a specific delegated task: constitution-drafting. In the process, however, Jameson fundamentally reconceptualized American notions of popular sovereignty. By embodying "the people" the convention had given them the capacity to both act and reason. By reading the people out of the convention, the very institution that had made popular sovereignty viable, Jameson stripped them of the capacity to reason, vesting it instead in the courts. Constitutionalism would no longer be centrally concerned with constitution-making, with enacting; now it would be centered around interpretation. No longer a popular endeavor, it was now the domain of courts.
Image credit

Tuesday, August 25, 2009

Weiner on Central Authority in Iceland

August 23, 2009

It’s now our second week in Iceland, and our exercise in legal history tourism is rapidly drawing to a close.  Tomorrow we arrive in Akureyri, where we’ll settle into our apartment and I’ll eventually teach a course on U.S. constitutional law to Icelandic law students.  Stephanie and I will be glad to give our heroic car a rest and to be in one place for a while.  It’s been very exciting to get to know this fascinating country in the intensive way we have—our cultural modus operandi has been not simply to burn the candle at both ends, but to grasp the candle and thwack it relentlessly on the pavement—but if we eat one more lunch of salami and gouda on rye crackers while huddling by the side of a gravel road we may reach some kind of psychological tipping point.  In any case, before writing about the mechanics of applying for a Fulbright and what fellowship opportunities exist for legal historians, I wanted to begin to wrap up the line of thought I’ve been developing about public legal history by turning attention back to three sites we visited toward the start of our journey: Thingvellir, Skálholt, and Reykholt—the site of the national chieftain assembly, the historic seat of Icelandic Catholicism, and the home of the great chieftain and historian Snorri Sturluson.

There are two ways one might understand the relation between these key places in Icelandic legal development.  One is for the story they tell about central authority—a story still ongoing today as Icelanders contemplate joining the European Union, an especially attractive possibility in the face of the financial crisis.  The story begins at Thingvellir, the meeting ground of the Althing during the Commonwealth Era (ca. 930-1262).  The Althing often is described as a “national parliament” or, still more misleadingly, as an early democratic government, but as an assembly of 39 powerful chieftains, or go∂i, it probably bears closer relation to the various tribal jirgas or the loya jirga of Pashtun Afghanistan (which, like medieval Iceland, is a remote, ethnically homogeneous culture with a proud warrior tradition regulated by a strict code of honor and shame).  It was a gathering of leading men and their followers.  What’s exceptional about law and government in medieval Iceland is that the Althing boasted a sophisticated legislative and judicial apparatus, but it entirely lacked a central executive office—there was no king.  Without this central mechanism for enforcing legal judgments or settlements, the resolution of disputes in Iceland always threatened to break down and become overwhelmed by the cultural logic of feud.  Many of the great medieval sagas depict the gory end result when Icelanders “bargained in the shadow of the law” in the absence of a strong executive.  Thingvellir represents the fragile social stability this settler society managed to achieve through its highly unusual legal structure.

The historic site of Skálholt points toward the next crucial episode in the story of Icelandic central authority.  As I discussed in my previous post, Icelanders collectively adopted Christianity as part of an extraordinary legal arbitration at Thingvellir in 999/1000.  Without a common religious basis for the legal order, it was clear to many that the society would descend into chaos.  “It will prove true that if we tear apart the law,” announced the pagan lawspeaker Thorgeir, “it will also tear apart the peace.”  The path toward conversion which Thorgeir announced in his momentous decision, described here and in Njal’s Saga, resolved this constitutional crisis by uniting Icelandic society under a single faith—one which, notably, was opposed to the pagan Germanic culture of honor and fate that underlay the blood feud.  Here is a diorama of the Althing housed in the Saga Center in Hvolsvöllur that suggests just how deeply linked religious and legal unity remain in contemporary national iconography:

As the first bishopric in Iceland, Skáholt was the administrative center of the common faith Thorgeir declared—and for centuries, it was the very heart of Icelandic intellectual and cultural activity.  Here is what it looks like today:

At Skálholt: with apologies, an image of a legal historian in action ...

But like Thingvellir, Skálholt, embodies centrifugal as much as centripetal forces in Icelandic law and society.  Most important, it seems that as the church acquired ever greater amounts of land, it increased the competitive pressures between the chieftains—who still lacked a central authority to prevent themselves from fighting—thereby furthering a tendency of the most ambitious, conniving leaders to accumulate power.

In time, from an original group of 39 chieftains, a group of six chieftain families came into dominance, leading to an era of political intrigue, feud and, ultimately, all-out civil war known as the Age of the Sturlungs (ca. 1220-1262).  One of the greatest chieftains involved in this bloody business, happily, was also a historian: Snorri Sturluson (1178/9-1241), from whose family this period of history derives its name.  Among Snorri’s historical works are Heimskringla, a history of Norwegian kingship, and the study of Germanic mythology known as The Prose Edda (without which, no Ring Cycle, much less The Lord of the Rings).  Snorri had his seat of power in Reykholt, where there is now a medieval studies research center and a historical museum run by the parish church.  According to Evy Tveter, the welcoming project manager of Snorrastofa, about 100,000 visitors come every summer to gaze upon Snorri’s bathing pool (or at least its reconstruction in a place nearish to where it might have been), and perhaps also to contemplate the fate of the Icelandic commonwealth in the wake of the bloody Sturlung era.

Snorri’s fate was telling of his times.  After intriguing with King Hákon of Norway, the tables turned on him when he returned to Iceland without the King’s permission.  Hákon called on another chieftain, Gissur, to kill Snorri, and though Snorri briefly eluded his assassins when Gissur broke into his home at Reykholt with a force of seventy men as Snorri was sleeping, he eventually was stabbed to death in his cellar.  By 1262, the Icelandic chieftains, tired to fighting, essentially gave over authority of the island to King Hákon, and Icelandic independence remained in abeyance until 1944.

So the story of Thingvellir, Skálholt, and Reykholt is a story of the fate of a Germanic nation which failed, in contrast to Anglo-Saxon England, to develop a strong, central authority—to make the transition from Beowulf to Alfred.  It’s a story that reveals that an otherwise sophisticated legal system cannot survive without an executive mechanism for containing the sort of centrifugal forces that ultimately tore medieval Iceland apart.  It’s the story of law in the shadow of the feud.  But there also is another way of seeing the connection between these sites, and that is for the challenge they pose to public historians.  And it’s a substantial challenge they pose, because at all three sites, few material artifacts from their medieval history survive.  What exists is only landscape and public remembrance.  How contemporary liberal societies choose to remember their particular legal history is an essential element of the cultural foundation of the rule of law, and thus how Iceland configures the relation between landscape and legal memory is something I believe will change substantially as the nation addresses the economic and constitutional issues of its present historical moment.  But as I’ve already taken your attention long enough, I’ll defer those thoughts, part of a materialist cultural history of legal memory, until next time.

Legal History at APSA

Readers who would not otherwise consult the program of next month's annual meeting of the American Political Science Association in Toronto might want to browse the panels organized by the "Politics and History" section. These include:

Standardizing the American State: Historical and Theoretical Perspectives (including Daniel Carpenter on Bioequivalence)

Experts in American Policy (including Jonathan Chausovsky on the Bureau of Corporations)

New Perspectives on Congress and History (including Eric Schickler on the Limits of New Deal Liberalism)

Shifting Modes of Governance: A Punitive Turn in American Social Policy?

Institutional Analysis of the Courts (including Shep Melnick on Adversarial Legalism in the Civil Rights State)

Economic Regulation in Historical and Comparative Perspectives
(including Gerald Berk on the National Recovery Administration)

Bringing Sexual Orientation Back In: Gay Citizenship and American Political Development (with Margot Canaday, et al.)

Social Movements and Their Tactics (including Julie Novkov on "Men's Rights")

Presidential Development in Historical Development (including Kevin McMahon on Nixon's Court and American Politics)

Rethinking the American State: Historians and Political Scientists Converse
(with James Sparrow, Jeremy Johnson, Desmond King, Brian Balogh, Eduardo Canedo, and Quinn Mulroy)

Race and American Political Development (including Daniel Kryder on law enforcement in Clarksdale, Mississippi, in the sixties).

Image credit: APSA. Hat tip: Clio: Newsletter of the Politics & History Section, APSA

Sawyer on the First Federal Child Labor Bill

Logan Sawyer is a University of Virginia-educated lawyer who has been dissertating in history there under Charles McCurdy. For the past year he has been a Future Law Scholar at Georgetown Law, where I've had the fun of kibbitzing as he works out for himself how to take seriously both constitutional doctrine and the political context in which it is asserted. An installment is now up on SSRN: The First Child Labor Bill and the Politics of Federalism in the Lochner Era. Here's the abstract:
By examining the defeat of the first federal child labor bill in 1907, the attached article challenges the long-standing explanation for the failure of federal child labor reform in the Lochner Era as well as the reductionist understanding of the relationship between law and politics it supports. That traditional explanation, often associated with Hammer v. Dagenhart, attributes the failure of federal child labor reform to the Supreme Court’s federalism doctrines and portrays those doctrines as crude camouflage for a desire to protect business interests.

This paper, in contrast, argues that the Republicans who controlled Congress did not reject the bill because they were simple shills for manufacturing interests or because they were laissez-faire ideologues. In fact, the same Republican controlled Congress that rejected the first child labor bill also passed some of the most important regulatory legislation of the Progressive Era. They rejected the bill because they feared the constitutional argument used to support it would destroy the coalition of labor and capital that was crucial to their political success, a conclusion they reached because they properly understood a surprising relationship between antitrust enforcement, liberty of contract, and commerce clause doctrine.

This paper thus provides a clear example of how politicians use constitutional arguments in their constant quest for political advantage. But it emphasizes how politicians can be constrained by the same political and legal structures that empower them.
Image credit: Albert J. Beveridge

Monday, August 24, 2009

Okay, Everybody, Back to Work!

In an attempt to be part of the solution, as well as part of the problem, I want to post links to two shareware programs that temporarily block access to web browsers and other virtual time-wasters, so that you can concentrate on what you should be doing instead of reading this blog. A good friend recommends Freedom, which runs only on Macs. I've been using Temptation Blocker, a comparable program for Windows, and I'm pleased with the results so far.

Image credit: BBC News

Templin on the Marriage Contract in Fine Art

Benjamin A. Templin, Thomas Jefferson School of Law, has posted The Marriage Contract in Fine Art, which is forthcoming in Northern Illinois University Law Review 30 (2009). Here is the abstract:
This paper studies the depiction of the marriage contract in Dutch, French and English genre paintings from the 14th to 18th centuries. Increasingly, scholars have recognized that visual imagery influences the development of legal norms and institutions. During the period studied several genre artists produced paintings that dealt with themes that were central to the issues surrounding the marriage laws, such as the rights of women or whether marriage is a sacrament or a contract. Interestingly, many of the themes depicted in the collective body of marriage contract art echoes and amplifies the issues surrounding the rights of women and the scope of the marriage contract in the writings of John Locke and Jean-Jacques Rousseau. Although it is impossible to measure the impact this collective body of work had on changing the law, the artistic and legal themes expressed in these paintings illustrates the “pre-formative” role of art in terms of signaling where change may occur in our legal norms and institutions. This analysis of the depiction of the formation of the marriage contract may also be of some interest to family law scholars given the renewed interest in the historical foundation of marriage law as a result of the debate over same-sex marriage. The analysis of visual representation of the marriage contract yields another data point for marriage scholars researching the history and origin of society’s conception of marriage as either a contract or a sacrament.

Image credit

Sunday, August 23, 2009

Adventures, disasters, and more in the book pages

Adventures, disasters, and other such tales dominate the book pages this weekend. FATAL JOURNEY: The Final Expedition of Henry Hudson -- A Tale of Mutiny and Murder in the Arctic by Peter C. Mancall, is reviewed in the Washington Post. Also in the Post, HOW ROME FELL: Death of a Superpower by Adrian Goldsworthy. And if you're not sufficiently depressed, "Marc Wortman offers military annihilation as Shakespearean tragedy," suggests Justin Moyer in his review of Wortman's THE BONFIRE: The Siege and Burning of Atlanta.
The LA Times suggests Katrina reads, with a review of The Year Before the Flood: A Story of New Orleans by Ned Sublette, and also five recommended books.

Saturday, August 22, 2009

Mossoff on Patents and the Orgins of the Administrative State

Adam Mossoff, George Mason University School of Law, has posted The Use and Abuse of IP at the Birth of the Administrative State, which is forthcoming in the University of Pennsylvania Law Review 157 (2009). Here is the abstract:
Courts and commentators have long maintained that intellectual property law and the administrative state developed as two separate legal regimes without any significant theoretical or practical contact between them, at least until recently. This standard historical story is mistaken. This article identifies a long-forgotten nexus between intellectual property law and the birth of the administrative state in the Progressive Era, and in doing so, offers at least two important insights. First, as a matter of intellectual history, it establishes that administrative law and modern intellectual property law share a common theoretical pedigree in legal realist scholarship about property in the Progressive Era. Second, and more important, this article exposes serious theoretical concerns about the success of this scholarship by Felix Cohen, Morris Cohen and others. In justifying the regulation of real property under the administrative state, the Cohens and others used intellectual property rights to advance a scathing conceptual and normative critique of the natural rights theory of property. This critique has now assumed the mantle of conventional wisdom in intellectual property law, as commentators and lawyers dismiss natural rights theory as theoretically incoherent and doctrinally indeterminate. But the legal realists’ attacked a strawman version of the natural rights theory of property, redefining its concept of “value” in unduly narrow economic terms such that it no longer resembled the same theory advanced by the natural rights philosophers or the American courts and commentators who applied their ideas in legal doctrine. This article explicates for the first time the actual premises of the legal realists’ critique of the natural rights theory of property, revealing how they failed to prove either the logical or normative incoherence of this longstanding conception of property. As such, this article exposes a fundamental lacuna in the theoretical foundations of the modern administrative state. Even more important, it challenges the misrepresentations and all-too-hasty dismissals of natural rights theory by intellectual property scholars today.

Klerman on Jurisdictional Competition and the Common Law

Daniel Klerman, USC School of Law, has posted, in connection with an upcoming presentation to Berkeley’s Law and Economics Workshop, the article Jurisdictional Competition and the Evolution of the Common Law, University of Chicago Law Review 74 (2007): 1179. Here’s the abstract:
This Article explores the role that jurisdictional competition played in the development of the common law. For most of English legal history, there were several courts with overlapping jurisdiction. In addition, judges received fees for each case. As a result, judges had an incentive to hear more cases. The central argument of this Article is that since plaintiffs chose the forum, judges and their courts competed by making the law more favorable to plaintiffs Courts expanded their jurisdictions to give plaintiffs more choices; they made their procedures cheaper, swifter, and more effective; and they developed legal doctrines that made it difficult for defendants to prevail. Of course, jurisdictional competition was not without constraining most importantly Parliament and Chancery. This Article tries to show how important features of the common law, including the structure of contract law, can be explained as the result of competition among courts and the constraints on that competition. Starting in 1799, statutes took fees away from the judges. The hypothesis that competition induced a pro-plaintiff bias is tested by quantitative analysis of judicial decisionmaking before and after those statutes.

Friday, August 21, 2009

Workshop Conveners: Bring Out Your Schedules!

Here's an open invitation to the conveners of legal history workshops, symposia, lecture series, and colloquia to send your schedules of speakers and topics for posting here. Feel free to contact me at

Image credit: Youth Change Workshops ©

Weiner in Iceland: on public history

From Mark Wiener, on a Fulbright in Iceland
August 15, 2009

In my previous post I noted that the relation between law and the sense of place in Iceland seems to pose a special challenge to public historians and curators. I’d like to elaborate on that challenge in this post, though the relation between legal history and the sense of place here doubtless will be a continuing theme for me as a guest blogger. And speaking of the sense of place, I should preface this post by indicating where I am. I’m writing from the small coastal town of Vopnafjör∂ur, in east Iceland, having driven today through some of the most desolate countryside we have ever encountered: acres upon acres of once-fertile farm country laid to waste by a volcanic eruption in 1875, leaving nothing but ash and pumice as far as the eye can see. Our hotel is down the street from a fishmeal processing plant, and the odor of fish on the main drag is so pungent that Stephanie and I had to shield our noses with our shirt sleeves as we entered the tourist information office. The wind is blowing wafts of the scent across my desk as I type, though it’s surprisingly pleasant from this distance. (Driving through Iceland one gains a visceral sense of just how dependent the country is upon the economically volatile fishing industry, much to its detriment given the colliding forces of the Nordic welfare state and intense consumer aspiration—about which more in a future post, as I believe the continuing clash of those forces will deeply influence how this country approaches its history.)

As I noted last time, the symbolic heart of Icelandic national identity, Thingvellir, is a landscape of legal memory. Thingvellir is a geographic concretization of legal historical consciousness. Much the same could be said about all the inhabited spaces of Iceland, where citizens come to know their nation’s legal past as an aspect of their physical environment. Indeed, this is a country in which popular legal historical consciousness is rooted in specific plots of land. As one tours the Icelandic countryside, one regularly passes sites mentioned in the sagas which have some specifically legal association and which, at the same time, are merely working farmsteads, as they often were during the saga age. Here is the farm of a great lawspeaker. There is an unusual rock formation where chieftains held court. No material artifacts remain of the ancient legal events that took place there, and in the seeming majority of cases, no signs or markers commemorate the history of the site. But what remains is a highly active folk memory of law, part of what archeologist Adolf Fri∂riksson calls popular antiquarianism. If one drives through Iceland looking merely for amazing scenery, one can find it; yet unless one works to gain a sense of what each individual place means to Icelanders, one is missing much of the point.

Here are three examples from our recent travels.

The national assembly plain at Thingvellir was not the only place where Icelanders gathered to discuss and administer their laws. The island was divided into districts, each of which had its own assembly with its own meeting site. The day before yesterday, we visited one of those sites just a few miles from the charming village of Stykkishólmur, on the western coast. The site also is called Thingvellir: the former regional assembly (thing) plain (vellir). We were especially interested in seeing a rock at the site said to be where criminals were beheaded: the Icelandic Road Atlas asserts that blood can still be seen on the stone! This Thingvellir is quite an important historical place, yet unlike the national assembly site it is not preserved or even signed for what it is—there is no historical marker there at all. It is simply a sheep farm. We found the place by driving down a long gravel road at the tip of a bucolic peninsula, finally coming upon a small, unassuming one-story house. Our knock at the door was cheerily answered by the owner’s granddaughter, who told us that she grew up with stories of what had happened at her grandmother’s home “in ancient times.” She gave us permission to wander about the farm, and she pointed out the execution stone in question, making sure that we didn’t confuse it with another rock which usually distracts the attention of visiting tourists. Here are some images of the place to give you a sense of its apparent remoteness (I say apparent, because these places may be physically remote, but they are not so in a cultural sense, though it would be easy as a foreign visitor to conflate the two):

More seemingly remote still is a site we visited today in the north of the country, on the spectacular peninsula of Vatnsnes. The place is called Brei∂abólssta∂ur, and it contains a horse farm, a small, beautiful church, and a parsonage. We found it by driving about twenty miles down a narrow gravel road and then following a long, even narrower gravel driveway about half a mile toward some imposing hills. The owner of the youth hostel in which we were spending the night, which also was a working farm, described Bre∂abólssta∂ur in respectful if not reverential tones as a pilgrimage site for Icelandic lawyers, who apparently regularly travel there to picnic and commune with the spirit of one of its former residents. That resident is Hafli∂i Másson, the great lawspeaker who played a central role in producing the first written collection of Icelandic law in 1117, known as the Grágás (a link to the excellent University of Manitoba series in which it appears in English translation can be found here). A stone pillar placed at the bottom of the driveway in 1974 indicates the existence of the site, but one could very easily overlook the marker, as we did the first time, and we were looking for the farm! Otherwise, the farm and church and parsonage seem to be merely what they are, without any further historical reference. Brei∂abólssta∂ur is just a part of the landscape—and yet it is a landscape whose legal historical importance people know well. Here are some pictures:

Finally, today we visited the imposing waterfalls of Go∂afoss, among the greatest waterfalls of the country. The historical significance of the falls lies plainly in their name, which means roughly “falls of the gods.” In 999/1000, Iceland peaceably converted to Christianity through a legal arbitration held at the Althing. The law of the country at the time was said to be splitting into two—in part, as suggested by Jón Jóhannesson’s great work Íslendiga Saga: A History of the Old Icelandic Commonwealth, because Christians and heathen chieftains refused to recognize the legitimacy of the investiture ceremonies of the other group, thereby creating a deep rift in the country’s legal apparatus. A compromise was reached through the leadership of the pagan lawspeaker Thorgeir, who determined that the people of the country would collectively convert to Christianity, though they could continue to engage in certain pagan practices in secret. I’ll be discussing this event more when I discuss the remains of the Bishopric of Skáholt, but for now it’s enough to say that this was a legal decision which lay the course for all of Iceland’s legal, political, and cultural history. After it was made, Thorgeir returned to his farm and threw the statutes of his pagan gods into the falls near his home—hence the name of this extraordinary natural feature. To think of an American parallel, one might return to my previous post and imagine that the Grand Canyon were named the Canyon of the Constitution or Independence Gorge.

How does the intimacy of the relation between landscape and legal memory in Iceland pose a challenge to public historians and curators? And how might the economic and political future of Iceland transform that relation? And how does the future of vernacular legal historical consciousness here implicate the future of the welfare state in a consumer society—not to mention fish and, still more, international banking? Those questions will have to wait for the next post. It’s been a long day of intense driving, with more to come tomorrow.

Brandeis and Harlan Watch

A belated welcome to the blogosphere to the Brandeis and Harlan Watch, "a current awareness tool dedicated to publicizing appearances of Louis D. Brandeis of John Marshall Harlan on the web and in the media," run by Scott Campbell, Archivist of the Brandeis and Harlan papers at the University of Louisville Law Library. Campbell has also posted on "finds" in his library's collections that aren't related to Brandeis or Harlan, such as a letter from Pierce Butler tucked away in a book.

Berk on Brandeis

Out earlier this summer from Cambridge University Press is Louis Brandeis and the Making of Regulated Competition, 1900-1932, by Gerald Berk, University of Oregon. Cambridge describes the book as
an innovative interpretation of industrialization and statebuilding in the United States. Whereas most scholars cast the politics of industrialization in the progressive era as a narrow choice between breaking up and regulating the large corporation, Berk reveals a third way: regulated competition. In this framework, the government steered economic development away from concentrated power by channeling competition from predation to improvements in products and production processes. Louis Brandeis conceptualized regulated competition and introduced it into public debate. Political entrepreneurs in Congress enacted many of Brandeis’s proposals into law. The Federal Trade Commission enlisted business and professional associations to make it workable. The commercial printing industry showed how it could succeed. And 30 percent of manufacturing industries used it to improve economic performance. In order to make sense of regulated competition, Berk provides a new theory of institutions he calls “creative syncretism,” which stresses the recombinability of institutional parts and the creativity of actors.

Some blurbs:

“Berk’s nuanced study of Brandeis is about the rejection of preordained categories and rigid formulas, by extraordinary policymakers and also by social scientists who seek to understand them. Ultimately, it is about the limitless possibility of politics to reorder familiar arrangements of state and economy in the interests of a differently-conceived world. Its publication could hardly be more timely.”
-Karen Orren, University of California, Los Angeles

“Berk recovers for us an improbably prescient Brandeis: an advocate and institutional architect who helps demonstrate the feasibility of a market order of ‘regulated competition’ that avoids the traditional, limited choice between antipathy to all business cooperation or regulated monopoly and, instead, encourages innovation while reducing the dangers of concentration (and we might hope today—the viral diffusion of catastrophic behaviors) through a Federally sponsored exchange of best practices and cost benchmarks within and across industry groups. This is history the way and when we need it.”
-Charles Sabel, Columbia Law School

Hat tip and image credit: Brandeis and Harlan Watch.

Thursday, August 20, 2009

Where to find me

Having been various places over the last few years, I get asked about where I am so often that I've started to think of myself as the Carmen Sandiego of American legal history. I am writing this from about 35,000 feet over Kansas, on the way from LA to Boston. If airline wifi availability expands, I may do a lot of my blogging from right about here.
I will be teaching legal history and constitutional law at USC this year, and will also be in Sharon, MA, where my husband is, and my dog Frank likes to kayak on Lake Massapaog. The time stamp for the blog will remain on Eastern time, so my early morning east coast blog posts will not seem so early from LA. There may be occasional travel-related gaps in posting. But my hope is that blog readers won't notice much of a difference.

For those of you who have not tried commuting, I can tell you that, at least so far, the LA/Boston route has its advantages over my Northeast corridor Amtrak commute to Princeton a couple of years ago. There was no TSA or security lines, but once on-board it was always so bumpy that writing of any kind was difficult. The train was better for internet access with mobile broadband. Airline wifi works well, but the most reliable source is Virgin Atlantic, where the seats are so close together that the reclined seat in front of you is right in your face, along with your laptop. This will seem old-fashioned to those who go for purple and pink mood lighting, but I will often be on American Airlines between coasts and various other places, where I can usually get an exit row seat and often uninterrupted time to read, write and catch up.

Lash on Privileges and Immunities

Kurt T. Lash, Loyola Law School Los Angeles, has posted The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art. Here is the abstract:
Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington's opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV. According to this view, Justice Miller [left] in the Slaughterhouse Cases failed to follow both framers' intent and obvious textual meaning when he distinguished Section One's privileges or immunities from Article IV's privileges and immunities.

A close analysis of antebellum law, however, suggests that Justice Miller's approach was faithful to long-standing legal doctrines regarding the meaning of Article IV and a distinct category of rights known as the "privileges and immunities of citizens of the United States." As of Reconstruction, Article IV's protection of "privileges and immunities of citizens in the several states" was broadly understood as providing sojourning citizens equal access to a limited set of state-conferred rights. The "privileges and immunities of citizens of the United States," on the other hand, was an accepted term of art which referred to those rights conferred upon United States citizens by the Constitution itself. Even as the country came apart over the issue of slavery, slave-state advocates and the proponents of abolition both expressly maintained the distinction between Article IV and national privileges and immunities. In the Thirty-Ninth Congress, John Bingham, the drafter of Section One, insisted that this distinction informed the meaning of the final draft of the Fourteenth Amendment. According to Bingham, the Privileges or Immunities Clause protected "other and different privileges and immunities" than those protected by Article IV. Understanding the roots of this distinction in antebellum law helps illuminate Bingham's explanation of Section One, and the likely reception of the Privileges or Immunities Clause by the public at large.

Paradine v. Jane, In Verse

Eugene Voloch, UCLA School of Law, has circulated, via the lawprof listserv, the following poetic version of the Contract law chestnut Paradine v. Jane (1648). It's from Sir William Reynell Anson, Ballads en Termes de la Ley (1914):

1. What the parties said.

Jane refuses his rent to pay.
'I have no kine, nor corn, nor hay;
Rupert the alien came my way,
Cared not a button
For rights of property. No, the thief
Carried my harvest every sheaf,
Turned my oxen into his beef,
Sheep into mutton.

'Fields are ravaged and homestead burned,
Out of my lands by the alien turned,
Nought can I pay where nought is earned,
So I go free.'
'No,' said Paradine, 'I'm afraid
I must ask you for rent unpaid:
No conditions in lease were made.
Hear Court's decree.'

2. What the Court said.

'This is no duty by law created,
Else had vis major the charge abated.
This is a contract. The terms are stated.
Nought do they say
Of risks excepted which loss prevent,
Nor yet of conditions subsequent.
Such should be mentioned if such were meant;
So Jane must pay.'

3. The rule and its exceptions.

Thus and well do the Courts decide.
Make conditions lest ill betide,
Else by your promise you must abide.
Yet I'll remind you,
Where the thing to be dealt with is destroyed,
Or Parliament makes your promise void,
Or illness shatters the skill employed,
Contract don't bind you.

With these exceptions, you can't be heard
To say that, from things which have since occurred,
It isn't convenient to keep your word.
Unto the letter.
And, with this knowledge, I may opine
That the case of Jane and of Paradine
Will never be either yours or mine;
No! we know better.

[For more of the same, including a versification of the Carbolic Smoke Ball case, try the link to Anson, above.]

Image credit: "Rupert the alien"