Sunday, January 31, 2010

Einhorn reviews Wood, Empire of Liberty, and Posner reviews Pascoe and Lombardo

Robin Einhorn reviews Gordon Wood, Empire of Liberty, in The Nation. This match-up is significant, for Einhorn's work was treated harshly by Gordon Wood in 2007 (she responded here). Einhorn writes:

The big story of the early American Republic was the advent of a society dominated by "middling" men on the make. Discarding relics of aristocratic privilege, taste and duty that had survived the Revolution, these confident and shamelessly self-interested go-getters embraced a commercialized world of economic growth, technological progress and continuous social and cultural change. The triumph of these middling strivers in the early years of the nineteenth century, decades before Alexis de Tocqueville observed and immortalized them in the 1830s, ennobled the American Revolution by making good on its democratic promise. By 1815 the outcome was "a land of enterprising, optimistic, innovative, and equality-loving Americans."

Heartwarming, isn't it? This is the picture Gordon Wood presents in Empire of Liberty, his entry into Oxford University Press's justly prestigious series on the history of the United States....Wood...seems to realize that the happy story he tells about the rise of equality-loving go-getters--a process he calls the "republicanization" of American society--had a dark side....Even so, Wood thinks the history of the United States in the era from the adoption of the Constitution to the conclusion of the War of 1812 should be mobilized to instill pride rather than provoke sorrow, to highlight triumphs instead of tragedies....[He] has been very explicit about the proper role for a historian of the early United States: to empathize with the good intentions and well-meaning gestures of the Founders with a capital F.
Continue reading here (subscription required).

Also this week, Richard Posner reviews What Comes Naturally: Miscegenation Law and the Making of Race in America by Peggy Pascoe, and Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell by Paul A. Lombardo, in The Book (New Republic).

Saturday, January 30, 2010

Graduate Fellowships in Law and Judaic Studies

The Yeshiva University Center for Jewish Law and Contemporary Civilization at Cardozo Law School is now accepting applications for its 2010-2012 Graduate Fellowship, which it describes as
a two-year forum for the interdisciplinary exchange of ideas between Legal Academia and Judaic Studies. Eight fellowships will be awarded, each consisting of $10,000 to be distributed over the 2010-2011 and 2011-2012 academic years. The CJL Graduate Fellowship aims to bring legal theory into the disciplines of Jewish history and Jewish law.

Casner, Leach, and "the Area of Responsibility of the Legal Profession"

The perils of practicing history within the gravitational pull of a powerful profession are well-known. In law, many thoughtful scholars have surveyed the boundary between advocacy and objectivity with critiques of the "law office history" of appellate briefs and the “history lite” of legal scholarship. But I’ve also found, as a historian teaching in a law school, that the professional frame can produce unexpected historical insights. This happens to me most often when, as this semester, I teach my first-year property course and my survey on American Legal History. For example, on successive days in the week ahead I’ll be teaching Lon Fuller’s “Form and Limits of Adjudication," first in analyzing Justice Brandeis’s dissent in the Associated Press case in my property course and then in taking up the birth of the juvenile court in the legal history course. Both topics show progressives countering claims of individual legal right (the Associated Press’s claim of a property right in the news; the rights of parents and children to due process) with a “social” understanding of law and justice that Fuller also shared. In both courses, I expect my that students will be quick to see the appeal of the socialization of law but also its dangers, even without the help of Michael Willrich’s fine study of Chicago’s municipal court.

This semester the dialogue between history and law in the two courses promises to be more sustained. A few weeks ago I stood up before first-years for the first time since the effects of the Great Recession on the law firm hiring market had become acute. Although I’m no student of very recent trends in the profession, I have the benefit of reports from Georgetown’s Center for the Study of the Legal Profession, headed by my colleague Milton Reagan, which suggest that the layoffs are no momentary reversal but a phase of a fundamental restructuring of the market for legal services that has reduced the longstanding autonomy of law-firm-based lawyers, for good or ill (or both), depending on your perspective.

A first-year law class, whatever its ostensible subject matter, is predominantly a vehicle for the socialization of law students into the legal profession. Over the years, I have shaped my Property course to fit some plausible assumptions about my students’ likely professional futures. As the start of this semester approached, I became concerned that my usual assumptions about what my students would find in their careers (or sojourns) in the law firms would no longer hold up. To make matters worse, the new professional reality they’ll be facing is too inchoate to suggest an alternative approach.

Then I remembered that I was a historian and that one thing historians do, when living through the end of a historical epoch, is to study its origins for clues to its demise and the likely shape of a successor. The relevant epoch for my immediate predicament was an era in which elite lawyers understood themselves to be the principal font and reservoir of the social intelligence the United States needed to function smoothly. The cohort of lawyers who entered the New Deal, organized the war effort and analyzed military intelligence during World War II, and created the modern regulatory practice in the late 1940s and 1950s understood, without having to read Alexis de Tocqueville or Talcott Parsons, that they occupied “a sort of privileged body in the scale of intelligence” and that they were obligated, in the social bargain that gave them prestige, power and wealth, to confront their clients with “the hard facts of their situation” and to persuade them to adjust their conduct so as to maintain a desirable social equilibrium. It took a generation of commentary by New Left and Critical Legal Studies scholars on the hubristic, self-serving, and conservative nature of these beliefs to create an opening in the elite bar’s ideological armor. Economics, in various guises, has since administered a coup de grâce.

It happens that the rise and maturation of this epoch in the legal profession is a big part of my legal history course. As the semester proceeds, I expect that the ways in which lawyers did or did not live up to their side of the social bargain will emerge as a major theme in the property course. A challenge, though, as the semester started, was to make sure that my property students will come along on the ride, as it were. To do this, they’d need a sense of how mid- to late-twentieth-century elite lawyers understood their social role, but without using up time that should be devoted to the legal analysis and skills a property course usually imparts.

I thought about assigning some of Willard Hurst’s writings on lawyers as “law makers” or a book chapter of mine on how Hurst acted on his beliefs at the Board of Economic Warfare but decided that either might strike students as too distant from the work at hand. Then I remembered A. James Casner and W. Barton Leach’s Cases and Text on Property (Little, Brown, 1950), the dominant property casebook for at least twenty years after its appearance. Both authors were analysts of military intelligence during World War II. Like Hurst, Casner (right) and Leach had an “opportunity to see wartime Washington from the inside of a wartime bureaucracy” and “came away with an enhanced feeling of pride” in what lawyers could do. They sought to instill this pride in the postwar generation of lawyers in an introductory chapter, entitled “The Legal Profession, Lawyers, and the Study of Property Law,” and, in particular, a section entitled, “The Area of Responsibility of the Legal Profession”:
You and others who are being trained as lawyers must be prepared to perform two tasks during the productive years of your professional lives.

1. To assume direction of all phases of the areas of personal conflict inherent in a complex society and economy. You will be advisers, negotiators, advocates, judges, arbitrators - and frequently administrators and executives having a large amount of quasi-legislative power. This scope of activity would have seemed revolutionary and presumptuous to an eighteenth-century solicitor, but it has become traditional lawyers' work in our time. The number and complexity of the conflict areas increase, and pari passu the need increases for lawyers who can farsightedly advise their clients, ably represent their clients' causes, and wisely administer the organizations and wield the powers of decision through which government exercises its authority. There are a lot of big words in this paragraph, but we do not want to be understood to limit these remarks to the stratosphere of human controversy. The small issues between people who never make the headlines - the action for a broker's commission, the boundary dispute between neighbors, the personal-injury claim, the troubles of a partnership in a garage business - these are a primary responsibility of our profession, serving also as a training ground in which lawyers by doing smaller tasks well can learn to perform greater tasks when they come.

2. To provide a very large proportion of national leadership at all levels of authority. Naturally, this field of activity has a tendency to overlap that of the previous paragraph; the distinction we draw lies between those tasks in which membership in the bar is a prerequisite and those in which a journalist, a stockbroker, or a haberdasher is equally eligible. It is an observable fact that through some combination of chromosomes and professional training lawyers tend to come to the top of the barrel in the shaking and jolting of competition for authority. Most of us who were engaged in the war effort, military or civilian, came away with a feeling of pride in our profession. Speaking of ourselves, we came back to law-teaching in 1946 with a sense of renewed dedication derived from a fairly consistent experience of finding lawyers doing new and exacting jobs well and imaginatively - not only the jobs that were in the public eye, but such things as a civilian directing the organization which handled the Japanese code intelligence, a captain establishing a jungle rescue service in Burma, a lieutenant (j.g.) untangling an air-transport mess in New Caledonia, a lieutenant-colonel exercising key logistical authority in the preparations for the Normandy invasion.

Friday, January 29, 2010

Joo on Theories and Models of Corporate Governance

Theories and Models of Corporate Governance is a new essay by Thomas Wuil Joo, University of California - Davis Law School. It is forthcoming in CORPORATE GOVERNANCE: A SYNTHESIS OF THEORY, RESEARCH, AND PRACTICE, H. Kent Baker, Ronald Anderson, eds., (John Wiley & Sons, 2010). Here's the abstract:
This essay is a brief historical survey of the leading models of the corporation in American legal theory, with emphasis on the contemporary theory of contractarianism. "Corporate governance" is often said to chiefly concern the "internal" governance of corporations: that is, the relationship among the participants in the corporate enterprise. "Internal" governance is sometimes distinguished from "external" regulation of the nominally "private" business corporation by the state. But the internal and external relationships are intertwined and not mutually exclusive. Thus, even as the contemporary legal discourse on corporate governance purports to focus on internal matters, it advances arguments regarding the extent to which internal relationships are, and should be, structured by private claimants, and the extent to which they are, or should be, structured externally by the state.
These issues are often framed in terms of a debate over the "nature" or "essence" of the corporation. Recurring questions include who "owns" the corporation, whether a corporation is an "artificial" phenomenon created by state fiat or a "natural" byproduct of human interaction, whether the corporation is an entity separate from its constituent individuals, and why decision-making authority is concentrated in professional managers. The shifting answers to these questions are presented as justifications for, or critiques of, the existing corporate governance regime, but can also be seen as shorthand for unspoken normative assumptions about the respective roles of the group, the state, and the individual.

Federal Government History: An Update

We’ve previously noted that the Society for History in the Federal Government annually awards a James Madison Prize for excellence in an article or essay that deals with any aspect of the federal government’s history. This year’s recipient is Fabio Arcila, Jr., Touro Law, for The Framers’ Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, 50 B.C. L. Rev. 363 (2009). The award will be presented at the Society’s annual conference on Thursday, March 25, 2010 at the National Archives II facility in College Park, Maryland.

The Society also publishes, annually, an on-line journal, Federal History:
The journal promotes scholarship on all aspects of the history and workings of the federal government, and of critical historical interactions between American society and the U.S. government, including the U.S. military, 1776 to the present. It also publishes articles investigating contemporary issues and challenges in federal history work, including the fields of history, archival science, historic preservation, public history, museum studies, web–based history, memory studies, and other related areas. The journal highlights studies by historians working in or for federal agencies as well as independent scholars, many of which originate as presentations at the Society’s annual conference in the Washington, D.C. area.
The January 2010 issue is here.

Telfer on the History of Canadian Bankruptcy Law, 1867-1880

Ideas, Interests, Institutions and the History of Canadian Bankruptcy Law 1867-1880 has just been posted by Thomas G.W. Telfer, University of Western Ontario. It is forthcoming in the University of Toronto Law Journal (2010). Here's the abstract:
Professor Michael Trebilcock’s scholarship has long recognized the importance of ideas, interests and institutions in shaping policy. Michael Trebilcock and Ninette Kelley make economic interests, contested ideas, and institutions the focus of The Making of the Mosaic: A History of Canadian Immigration Policy. Taking the same analytical approach that Michael Trebilcock and Ninette Kelley use in their ground-breaking book on the history of Canadian immigration, the paper examines the Canadian historical experience to gain an understanding of the ideas, interests, and institutions that have been influential in shaping the evolution of Canadian bankruptcy law. The paper addresses the rise of Canadian bankruptcy legislation in the early post Confederation period and its ultimate repeal in 1880. Bankruptcy law represented both a conflict of ideas over the morality of the bankruptcy discharge and a distinct divergence of interests between local and distant creditors over the advantages and disadvantages of a pro rata distribution. Institutional factors such as federalism, courts, and the emerging regulatory state also had an independent effect.

New Blog: Settler Colonial Studies

A new blog, Settler Colonial Studies, has just been launched by Edward Cavanagh. Here's a description:
Settlers are more than just colonisers. They are founders of political orders and exclusivist economic regimes. Settler colonialism is ubiquitous, as much a thing of the past as a thing of the present. This blog seeks to advance a critical appraisal of settler colonialism as a distinct and separate form. It follows scholarly developments that contribute to a greater historical awareness of this phenomenon within the disciplines of history and law, indigenous and colonial/postcolonial studies, as well as economics, politics, sociology and philosophy. Historical awareness, however, should always be accompanied by an awareness of the present. Therefore contemporary developments are also important to recognise.

Scholars are invited to submit information on upcoming conferences and calls for papers; information about their publications; reflections on the implications of their own work and the environment in which it will feature; and short reviews and opinions of conferences, monographs, edited collections, journal articles and features, legal developments and contemporary struggles.

Edward Cavanagh
Melbourne, Australia.
Visit the website at

Thursday, January 28, 2010

Mayeri on The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse

The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse has just been posted by Serena Mayeri, University of Pennsylvania Law School. It was published in the Yale Journal of Law and the Humanities (2006). Here's the abstract:
This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools as posing a constitutional sex discrimination problem; the only question judges asked was whether the sex separation schemes were motivated by “racial discrimination” or by “legitimate educational purposes.” Legitimate educational purposes included bolstering boys’ opportunities for leadership at girls’ expense, providing sex-specific curricula for boys and girls, and avoiding the “needless duplication” of athletic, vocational, and other facilities. During the 1970s, the women’s rights revolution transformed the legal discourse surrounding these “Jane Crow” cases. Advocates began to frame sex segregation as imposing a stigma and sense of inferiority on girls in a manner analogous to the effects of Jim Crow on African American children. This analogy-based sex discrimination paradigm became the principal framework for analyzing sex segregation, but it failed to capture what was at stake for white and black communities in the struggle over Jane Crow. The Jane Crow cases provide an alternative to the dominant Supreme Court narrative of sex segregation, shedding light on the complex historical relationship between race and sex inequality and on the consequences of framing constitutional equality harms in particular ways.

Preyer Award Announcement

[We have the following announcement via H-Law:]

The Kathryn T. Preyer Memorial Committee of the ASLH invites submissions for the Kathryn T. Preyer Scholars Competition.

The competition is named in honor of the late Professor Kitty Preyer, a distinguished historian of early America and beloved member of the Society. The two winners of the competition will be named Kathryn T. Preyer Scholars. Each will present the paper that s/he submitted to the competition at the Society's annual meeting in Philadelphia on November 18-21, 2010.

Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals.

Submissions are welcome on any legal, institutional and/or constitutional aspect of American history and the history of the Atlantic World. Graduate students, law students, and other early-career scholars who have presented no more than two papers at a national conference are eligible to apply. Papers already submitted to the ASLH Program Committee--whether or not accepted for an existing panel--and papers never previously submitted are equally eligible.

Submissions should include a curriculum vitae of the author, contact information, and a complete draft of the paper to be presented. The draft may be longer than could be presented in the time available at the meeting (twenty minutes) and should contain supporting documentation, but one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2010. The Preyer Scholars will be named by August 1.

Please send electronic submissions to the chair of the Preyer Committee, Aviam Soifer at: He will forward them to the other committee members.

Wednesday, January 27, 2010

And I thought he was an umpire...

Green Bag announces a new feature: "Supreme Court Sluggers" trading cards. Like baseball trading cards, each card will feature the image of a justice, with statistics and other details on the back. Through this project, Green Bag hopes to:
(a) to develop and share comparable measurements of the work of every member of the Supreme Court since 1789;
(b) to gradually expand and refine those measurements with an eye to making them as useful and interesting as possible;
(c) to create informative, entertaining, and unorthodox yet respectful portraits of the Justices by first-rate artists; and
(d) to present all of this material in a way that will be enjoyable for the producers, consumers, and subjects of the “Sluggers” cards.
The first card features Chief Justice John Roberts as a pitcher, even though in his confirmation hearings, he described the role of a judge as that of an umpire. This card includes an umpire, but he is in the background, eclipsed by the more prominent image of Roberts. Perhaps Roberts as pitcher explains his role in Citizens United v. FEC?

The Cohen Student Essay Competition

The Legal History and Rare Books Section (LH&RB) of the American Association of Law Libraries, in cooperation with Gale Cengage Learning, announces the second annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, Professor Emeritus of Law at Yale Law School (below left). Professor Cohen's scholarly work is in the fields of legal research, rare books, and historical bibliography. The purpose of the competition is to encourage scholarship in the areas of legal history, rare law books, and legal archives, and to acquaint students with the American Association of Law Libraries (AALL) and law librarianship.

Students currently enrolled in accredited graduate programs in library science, law, history, or related fields are eligible to enter the competition. Both full- and part-time students are eligible. Membership in AALL is not required.

Essays may be on any topic related to legal history, rare law books, or legal archives.

The entry form and instructions are available here.

Entries must be submitted by midnight, April 15, 2010. The winner will be announced by May 15.

The winner will receive a $500.00 prize from Gale Cengage Learning and up to $1,000 for expenses associated with attendance at the AALL Annual Meeting.The runner-up will have the opportunity to publish the second-place essay in LH&RB's online scholarly journal Unbound: An Annual Review of Legal History and Rare Books.

Please direct questions to Jennie Meade, Jacob Burns Law Library, George Washington University:

Hat tip: H-Law

Peerenboom on The Social Foundations of China's Living Constition

The Social Foundations of China's Living Constitution has just been posted by Randall Peerenboom, Law Trobe University and Oxford University Centre for Socio-Legal Studies. Here's the abstract:
The article examines the social foundations of constitutionalism in China, focusing on constitutions as a historical response to particular events. The goal is to move beyond an analysis of the constitution as a formal text to shed light on the de facto constitutional order in China, on China’s living constitution and its social, historical, cultural, economic, political and legal foundations. Part I begins with a brief historical overview of China’s constitutions. Parts II discusses the current constitution, passed in 1982, and its four subsequent amendments. Part III explores the main functions of the constitution in China today and how the constitutional order actually operates. Part IV discusses China’s living constitution. Part V concludes with some thoughts about the future of constitutionalism in China, and the possibility of a party-state alternative to liberal democratic constitutionalism.
Image credit.

Tuesday, January 26, 2010

Fiscal Sociology: The Second SSHA Workshop

[We've previously noted the first "Workshop on Comparative Historical Approaches to Fiscal Sociology," held in conjunction with the annual meeting of the Social Science History Association. Here is the announcement of the second convening of the workshop.]

In recent years, scholars from a variety of disciplines have embarked on an innovative wave of multidisciplinary research on the social and historical sources and consequences of taxation. We invite interested graduate students from history, law, and the social sciences to participate in a one-day workshop on this “new fiscal sociology.” Students will read and discuss classic and contemporary essays that trace fundamental connections between tax institutions and macro-historical phenomena – wars, racial boundaries, religious traditions, gender regimes, labor systems, and more. Workshop participants will also have the option to present and discuss their own dissertation or pre-dissertation research.

The workshop will be held on Wednesday, November 17, 2010, in Chicago, Illinois, in conjunction with the annual meetings of the Social Science History Association (SSHA). Interested students will also have a chance to present their own work on Thursday, November 18, as part of the SSHA conference. Space is limited. Small housing and travel stipends will be provided for a limited number of applicants under a grant from the National Science Foundation. Applicants should submit a CV and a paragraph explaining their interest in this workshop, and (if applicable) a draft of a research paper that they would be willing to present at the SSHA. Preference will be given to students who also submit conference papers, but we encourage applications from all students interested in the workshop, including those at early stages of their graduate career. Submit materials via e-mail to Monica Prasad, Department of Sociology, Northwestern University This e-mail address is being protected from spambots. You need JavaScript enabled to view it); Ajay Mehrotra, Maurer School of Law, Indiana University – Bloomington ( (This e-mail address is being protected from spambots. You need JavaScript enabled to view it); and Isaac Martin, Department of Sociology, University of California – San Diego (This e-mail address is being protected from spambots. You need JavaScript enabled to view it), no later than February 15, 2010.

Biber and Dalton on Making Art from Evidence: Secret Sex and Police Surveillance in the Tearoom

Making Art from Evidence: Secret Sex and Police Surveillance in the Tearoom has just been posted by Katherine Biber, University of Technology, Sydney - Faculty of Law, and Derek Dalton, Flinders University. It appeared in Crime Media Culture, Vol 5, No 3, December 2009 . Here's the abstract:
In 1962, police officers concealed themselves for two weeks in a men’s public toilet in Mansfield, Ohio, and filmed men performing illicit homosexual sex acts. The film footage was used to secure convictions for sodomy, and inaugurated a new form of police surveillance of homosexual public sex. In 2008, the visual artist William E. Jones screened the police footage in art galleries around the world, to both critical acclaim and public objection. This article examines the film, both as a prosecutorial artifact and an artwork, to explore what it says about public sex, police surveillance, the criminalization of homosexual practices, visual evidence, and contemporary art. It considers the validity of the public/private distinction as it applies to anonymous sex, it evaluates the probative value of images, the changing nature of surveillance, and the meanings of silence in both criminal procedure and artistic practice. This article argues that the act of transforming traumatic evidence into visual art requires deep ethical examination. Whatever artistic, political or historical contribution may be claimed for this work must be measured against the harm that it does to the film’s silent subjects.

This Semester in the Harvard Legal History Workshop

[We have the following from the organizers of the Harvard Legal History Workshop, which "meets on Mondays, 5-6:30, in Lewis 302 (except for Thursday, Feb. 11)."]

Monday, Feb. 1, Pauline Maier, MIT, "Playing the After Game" from her forthcoming book After Philadelphia: the People debate the Constitution, 1787-1788

Thursday, Feb. 11, Rebecca Scott, University of Michigan, “Paper Thin: Freedom, Re-enslavement, and the ‘Distinctions of Persons Which are Established by Law’” (POUND 107)

Monday, Feb. 22, Deborah Dinner, Berger Legal History Fellow, Harvard Law, "The Campaign Against Mandatory Maternity Leaves”

Monday, March 8, Richard Ross, Illinois, “‘Filtering’ Legal Traditions in Early America and Early Modern Europe: The Judicial Laws of Moses and Natural Law”

Monday, March 22: Dan Smail, Harvard History, “Violence and Predation in Medieval Mediterranean Europe”

Monday, April 12: David Sugarman, Lancaster University (U.K.), “England’s Twentieth Century Ancien Regime. The Belated Modernisation of Legal Education, Legal Scholarship and Legal Culture”

Please contact Rose Dawes ( if you would like to read the paper.

Monday, January 25, 2010

Ariela Gross wins OAH-JAAS Japan Fellowship

Ariela Gross of USC Gould School of Law is one of the winners of this year's Organization of American Historians--Japanese Association for American Studies fellowship for short-term residence in Japan. Ariela is the author most recently of the prizewinning book What Blood Won’t Tell: A History of Race on Trial in America (Harvard University Press, 2008). She will spend two weeks this June at Kyoto University teaching and lecturing on the history of race and racial ideology.

This fellowship -- awarded to two or three U.S. historians every year -- is a great opportunity. Other legal historians who have participated in this program are Davison Douglas, William and Mary, who visited Tohoku University, Sendai in 2002, and yours truly. I taught and lectured about U.S. constitutional history at Hokkaido University, Sapporo, in the summer of 2000.

This is a competitive fellowship, but easy to apply for. Expect an October deadline for next year.

Hovenkamp on Post-Sale Restraints and Competitive Harm

Herbert J. Hovenkamp, University of Iowa College of Law, has (another) new paper, Post-Sale Restraints and Competitive Harm, which sets this contemporary issue in its historical context. Here's the abstract:
A post-sale restraint is a condition or contract provision that operates after a good has been sold. In antitrust law these restraints are roughly divided into two classifications, “intrabrand” and “interbrand.” An intrabrand restraint limits the way a firm can distribute the restricted property. For example, resale price maintenance controls the price at which goods can be resold. Intrabrand nonprice restraints place other types of limits, such as the places from which goods can be sold, the uses for which they can be sold, and the identity of buyers. By contrast, an interbrand restraint limits a purchaser’s right to deal in the goods of rivals. “Exclusive dealing” involves a buyer’s promise not to purchase competing goods from anyone else, and “tying” refers to a buyer’s promise to take a second product from this seller as well.
Intellectual property policy also has rules that limit post-sale restraints. Many of these are addressed under the rubric of intellectual property “misuse,” whose substance is similar but not identical to antitrust rules. A third rule, the IP “exhaustion” or “first sale” requirement, applies to these same restraints as well. Unlike both antitrust doctrine and misuse doctrine, the first sale rule refuses to enforce post-sale restraints without querying into anticompetitive effects, economic benefits or impact on innovation. Whatever policy justifications it may have were not made apparent in the Supreme Court’s 2008 Quanta decision, its first application of patent law’s first sale doctrine in sixty years.
Quanta ended a trend in both the Supreme Court and Federal Circuit of using the law of post-sale restraints to prohibit unreasonable limitations on competition or innovation, while permitting the market to govern their use otherwise. Instead the Court reverted to a per se rule that refuses to enforce post-sale restraints without regard to economic consequences. While rationales exist for the first sale doctrine, these pertain to whether breach of contract suits or infringement actions are better devices for downstream enforcement of IP restraints and the extent of notice communicated to downstream infringers. But these considerations were also irrelevant to the per se rule that the Supreme Court adopted.
This paper critiques this per se approach to first sale doctrine, concluding that it lacks a defensible policy justification and that it is inconsistent with a decades long trend toward increasing sophistication in the analysis of vertical restraints involving intellectual property rights.

Welcome to the Prison Law Blog

Welcome to the blogosphere to Sara Mayeux and the Prison Law Blog! Sara is a JD/PhD student at Stanford. Her new blog will focus principally on jail and prison reform efforts, but she plans to incorporate history as well.

Ågren's "Domestic Secrets"

Recently published in Studies in Legal History by the University of North Carolina Press is Domestic Secrets: Women and Property in Sweden, 1600-1857, by Maria Ågren, a professor of history at Uppsala University. The press describes the book thus:
Between the seventeenth and nineteenth centuries, women's role in the Swedish economy was renegotiated and reconceptualized. Maria Ågren chronicles changes in married women's property rights, revealing the story of Swedish women's property as not just a simple narrative of the erosion of legal rights, but a more complex tale of unintended consequences.

A public sphere of influence--including the wife's family and the local community--held sway over spousal property rights throughout most of the seventeenth century, Ågren argues. Around 1700, a campaign to codify spousal property rights as an arcanum domesticum, or domestic secret, aimed to increase efficiency in legal decision making. New regulatory changes indeed reduced familial interference, but they also made families less likely to give land to women.

The advent of the print medium ushered property issues back into the public sphere, this time on a national scale, Ågren explains. Mass politicization increased sympathy for women, and public debate popularized more progressive ideas about the economic contributions of women to marriage, leading to mid-nineteenth-century legal reforms that were more favorable to women. Ågren's work enhances our understanding of how societies have conceived of women's contributions to the fundamental institutions of marriage and the family, using as an example a country with far-reaching influence during and after the Enlightenment.
Blurbs Hendrik Hartog, Princeton University: “Ågren covers an immense time period with an adept eye for the illuminating case record, and she tells her local and particular stories well. This is an important book, a model for how the social histories of family law and inheritance should be written.”

Sunday, January 24, 2010

Anthony Lewis on Urofsky's Brandies, Wills and Yoo on Presidential Power, and more in the book reviews.

Anthony Lewis reviews Louis D. Brandeis: A Life by Melvin I. Urofsky in the New York Review of Books. Of Brandeis, Lewis writes:
We see him now as a great mind, perhaps the most brilliant of all Supreme Court justices; as a crusader against oversized institutions; and as a luminously eloquent exponent of free speech and privacy—"the right to be let alone." But he was much more complicated: more conflicted, more interesting.
Urofsky "gives us a book that is utterly fascinating."
The life of Brandeis, as explored in Urofsky's remarkable book, had innumerable passages that amaze....Professor Urofsky captures the sweep and the details of that life with what has to be called devotion. More than half the book is about Brandeis's pre-Court years—after all, he was fifty-nine when he was nominated—and one's fascination may flag during discussions of the New Haven Railroad or savings bank life insurance. But Urofsky aimed for completeness, and his achievement is remarkable.
The full review is here (subscription required).

CRISIS AND COMMAND: The History of Executive Power From George Washington to George W. Bush by John Yoo and BOMB POWER: The Modern Presidency and the National Security State by Garry Wills are reviewed by Walter Isaacson in the New York Times. Yoo argues that "War acts on executive power as an accelerant...causing it to burn hotter, brighter and swifter," and Wills "argues much the same thing, adding that the advent of atomic weapons has made this concentration of power in the White House even greater." Isaacson writes: "Where the two authors disagree is on whether this trend should be celebrated or denounced." The reviewer thinks of both as "'advocacy history,' in which scholarly analysis and narrative are marshaled into the service of a political argument." Read the rest here.

Also reviewed in the NY Times is The Struggle to Create Post-Cold War Europe by Mary Elise Sarotte. The Conservative Turn: Lionel Trilling, Whittaker Chambers, and the Lessons of Anti-Communism by Michael Kimmage is taken up at the New Republic Book Blog.

THE DEAD HAND: The Untold Story of The Cold War Arms Race and Its Dangerous Legacy by David E. Hoffman is reviewed in the Washington Post.

Saturday, January 23, 2010

National Book Critics Circle finalists

The National Book Critics Circle announced finalists for its 2009 awards today. Among them are:

Nonfiction Finalists:

Wendy Doniger, "The Hindus: An Alternative History" (Penguin Press)
Greg Grandin, "Fordlandia: The Rise and Fall of Henry Ford's Forgotten Jungle City" (Metropolitan Books)
Richard Holmes, "The Age of Wonder: How the Romantic Generation Discovered the Beauty and Terror of Science" (Pantheon)
Tracy Kidder, "Strength in What Remains" (Random House)
William T. Vollmann, "Imperial" (Viking)

Biography Finalists:
Blake Bailey, "Cheever: A Life" (Knopf)
Brad Gooch, "Flannery: A Life of Flannery O'Connor" (Little, Brown)
Benjamin Moser, "Why This World: A Biography of Clarice Lispector" (Oxford University Press)
Stanislao G. Pugliese, "Bitter Spring: A Life of Ignazio Silone" (Farrar, Straus and Giroux)
Martha A. Sandweiss, "Passing Strange: A Gilded Age Tale of Love and Deception Across the Color Line" (Penguin Press)

Citizens United v. FEC round-up

For our non-law prof readers, or anyone looking for helpful sources on this week's major Supreme Court case, Citizens United v. Federal Election Commission, here are some useful links:

Donovan on French Juries and Justice

Reynolds's Before Eminent Domain was only one of three books of European legal history out this year in Studies in Legal History, published by the University of North Carolina Press. A second was James M. Donovan's Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries. (Donovan is an associate professor of history at Pennsylvania State University at Mont Alto.) Here is the press's description:
James Donovan takes a comprehensive approach to the history of the jury in modern France by investigating the legal, political, sociocultural, and intellectual aspects of jury trial from the Revolution through the twentieth century. He demonstrates that these juries, through their decisions, helped shape reform of the nation's criminal justice system.

From their introduction in 1791 as an expression of the sovereignty of the people through the early 1900s, argues Donovan, juries often acted against the wishes of the political and judicial authorities, despite repeated governmental attempts to manipulate their composition. High acquittal rates for both political and nonpolitical crimes were in part due to juror resistance to the harsh and rigid punishments imposed by the Napoleonic Penal Code, Donovan explains.

In response, legislators gradually enacted laws to lower penalties for certain crimes and to give jurors legal means to offer nuanced verdicts and to ameliorate punishments. Faced with persistently high acquittal rates, however, governments eventually took powers away from juries by withdrawing many cases from their purview and ultimately destroying the panels' independence in 1941.
The blurbs:
"This book is the product of wide reading and analytic ingenuity. It is a model study in the complex relationship between criminal procedure, substantive criminal law, and politics, and it deserves the attention of French historians and scholars of criminal law alike."
--James Q. Whitman, Yale University

"Donovan makes a new and important contribution to the study of criminal justice in Europe by placing the institution of the jury in its broader judicial, political, and intellectual context. He demonstrates that as an independent force closely attuned to the views of the French laity, the trial jury played a crucial role in adapting criminal law to meet the needs of the broader society. An excellent book."
--Robert Allen, Stephen F. Austin State University

Rosser on History, Resources and the Navajo Nation

Ezra Rosser, Washington College of Law, American University, has posted Ahistorical Indians and Reservation Resources, which is forthcoming in Environmental Law 40 (2010). Here’s the abstract:
This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.
Image credit.

Friday, January 22, 2010

Gordley on Roman Sales Contracts

Over at the University of Chicago Law Faculty Blog is an account by the student blogger Rohit Nafday of the presentation to Chicago's Public Law and Legal Theory Workshop on The Origins of Sale: Some Lessons from the Romans by James Gordley, Tulane University. According to Mr. Nafday,
As early as the second century BC, the Romans are thought to have recognized a contract of sale—likely the first civilization to have done so. In both his paper and at the workshop, Professor Gordley focused on two mysteries that surround this great achievement: how did they do it, and why did they stop at sales? The first has puzzled historians for years: what is the link between the previous legal devices that existed prior to the recognition of a sales contract and the contract of sale as it was first formulated by the Romans? Some historians have posited a transitional stage in which partial performances were enforced, while others have suggested that early Romans accomplished sales through conditional one-way binding promises (known as stipulationes). Professor Gordley, however, thinks differently: instead of "inventing" the contract of sale, Roman jurists simply adopted and incorporated practices already in place into the law.

Legal History at Indiana-Bloomington Law

The Spring 2010 schedule for the Center for Law, Society, and Culture Workshop Series at the Maurer School of Law, Indiana University—Bloomington is here. Sessions of special interest to legal historians include:

Thursday, Jan. 28
Henry Ford's War: Law, Antisemitism, and Speech in the Tribal 1920s, Chapter 5
Vicky Woeste, American Bar Foundation

Thursday, March 25
The Racial Limits of Habitual Offender Laws in the Age of FDR
Khalil Muhammad, Indiana University Department of History

Thursday, April 15
DWB, or Driving While Broke: Auto Insurance and the Wealth Gap Since the 1980s
Devin Fergus, Vanderbilt University Department of History and Woodrow Wilson Center

Papers relating to legal history from the fall 2009 workshop include:

An Interpretive History of the Voting Rights Act
Luis Fuentes-Rohwer, Maurer School of Law, Indiana University—Bloomington

The NAACP, Mob Violence, and the Unexpected Breakthrough in Constitutional Law

Megan Francis, Jerome Hall Post-Doctoral Fellow, Indiana University—Bloomington

Red Activists and Black Freedom

On Tuesday, January 26th, at 6:30pm, the Tamiment Library will host a lecture and discussion of the recently published Red Activists and Black Freedom: James and Esther Jackson and the Long Civil Rights Revolution (Routledge, 2009), by its editors, David Levering Lewis, Michael H. Nash, Daniel J. Leab. The volume originated as a special issue of American Communist History. According to Routledge:
This book deals with the forgotten history of the civil rights movement. The American Left played a significant part in the origins of that movement, whose history has traditionally been focused on the later 1940's and early 1950's. This approach needs serious re-thinking in light of what took place in the later 1930's with the organization and activity of groups like the Southern Negro Youth Congress that brought both African-American and white workers and students together in the fight for economic and social justice. Thanks to the post-World War II Red Scare such groups as well as Left African-American leaders like Esther and James Jackson have been overlooked or excised from an exciting, controversial, and important story. With all due credit to the churches which played such a pivotal role in finally winning Blacks their civil rights, the early history involving the Left, workers of both races, and the labor unions must be assimilated into America's memory, for there were important continuities between what they did and the later church-based struggle.
The talk will be at the Tamiment Library located at 70 Washington Square South (between Mercer and Greene) on the 10th floor of Bobst Library. For more information about contact Zuzanna Kobrzynski at

Hat tip: H-Law.

Thursday, January 21, 2010

Steilen on the History of Parental Rights and State Regulation of Religious Schools

Parental Rights and the State Regulation of Religious Schools is a recent article by Matthew Steilen, which brings history of education scholarship into U.S. legal history. It appears in the Brigham Young University Education & Law Journal (2009). Steilen wrote it for the Stanford Legal Studies Workshop while working on his Stanford J.D. Here's the abstract:
In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents’ decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been written about this scholarship in legal journals. This article attempts to remedy this deficiency. It isolates and explores three key periods in the development of state administered public schools, paying special attention to early public funding of religious schools, the Protestant character of the common schools, and Catholic resistance to the use of the King James Bible in common schools. In so doing, this article argues for a “republican” interpretation of early educational practices. Drawing on that interpretation, the article joins a debate between Noah Feldman, Martha Nussbaum, and others about the nature of American religious liberties, and argues that their views are not able to fully acknowledge the history of Protestant evangelizing in public schools.

How to write an effective FOIA request

Unredacted, the fabulous blog of the National Security Archive, has a great series of posts on how to craft effective Freedom of Information Act requests.

Start with Writing a Good FOIA Request Part I, and then Writing a Good FOIA Request, Part II. Check out The FOIA Process in a Nutshell. And then search through the blog for other helpful FOIA tips.

Reynolds, Before Eminent Domain

Just out in Studies in Legal History, published by the University of North Carolina Press, is Before Eminent Domain: Toward a History of Expropriation of Land for the Common Good, by Susan Reynolds, a fellow of the Institute of Historical Research and emeritus fellow at Lady Margaret Hall, Oxford. Here’s the press’s description:
In this concise history of expropriation of land for the common good in Europe and North America from medieval times to 1800, Susan Reynolds contextualizes the history of an important legal doctrine regarding the relationship between government and the institution of private property.

Before Eminent Domain concentrates on western Europe and the English colonies in America. As Reynolds argues, expropriation was a common legal practice in many societies in which individuals had rights to land. It was generally accepted that land could be taken from them, with compensation, when the community, however defined, needed it. She cites examples of the practice since the early Middle Ages in England, France, Germany, Italy, and Spain, and from the seventeenth century in America.

Reynolds concludes with a discussion of past and present ideas and assumptions about community, individual rights, and individual property that underlie the practice of expropriation but have been largely ignored by historians of both political and legal thought.
Here are two reviews:
"This is a fascinating book. Reynolds demonstrates that before the seventeenth century, expropriation of land was quite common and relatively uncontroversial so long as it was done for what was perceived to be the common or public utility and so long as compensation was paid. Reynolds advances the state of current literature by conducting a European-wide survey of the practice of expropriation from the ninth through the eighteenth centuries. No one, so far as I know, has ever done that before."
--Charles Donahue Jr., Harvard Law School

"This is the first serious study of the origins of land expropriation for the common good in the western world. The standard story is that the practice began with Grotius, but Reynolds pushes the date back significantly and shows that the origin of the practice is much more complex than is usually understood. This is a bold, original argument, and Reynolds has the evidence to back it up. She tells a long-neglected story and does so with great clarity and care."
--Gregory S. Alexander, Cornell Law School

Wednesday, January 20, 2010

Barnett on the Aboltionist Origins of the Fourteenth Amendment

New from my colleague Randy E. Barnett, Georgetown University Law Center, is the paper Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment. Here’s the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek (left), Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.

Hat tip: Legal Theory Blog
Image credit

Hovenkamp on Coase, Institutionalism, and the Origins of Law and Economics

Coase, Institutionalism, and the Origins of Law and Economics has just been posted by Herbert J. Hovenkamp, University of Iowa College of Law. Here's the abstract:
Ronald Coase merged two traditions in economics, marginalism and institutionalism. Neoclassical economics in the 1930s was characterized by an abstract conception of marginalism and frictionless resource movement. Marginal analysis did not seek to uncover the source of individual human preference, but accepted preference as given. It treated the business firm in the same way, focusing on how firms make market choices, but saying little about their internal workings.

“Institutionalism” historically refers to a group of economists who wrote mainly in the 1920s and 1930s. Their place in economic theory is outside the mainstream, but they have found new energy with the rise of behavioral economics and socio-economics. The institutionalists emphasized the importance of human created institutions that allocate resources and power, institutional rules of social control, and the effect of institutions on the economy. The institutionalists severely qualified marginalist analysis as well as the emergent neoclassical creed that the study of naked individual preference is the exclusive methodology of economic science. By contrast, most institutionalists defended the study of the biological and behaviorist sources of preference. Finally, unlike mainstream neoclassicists, most institutionalists believed that market exchange is only one of many institutions that move resources through the economy.

Coase’s work merged neoclassicism with institutionalism by incorporating marginalist analysis into the study of institutions. As the neoclassicists, he was not concerned about the source of preferences but only with the mechanisms by which they are asserted. More explicitly, by recognizing individual preference orderings and market exchange as the only efficient movers of resources, he reduced the problem of resource movement to one of “transaction costs.” The result was a new brand of institutionalism that was far more palatable to neoclassicists but largely unacceptable to traditional institutionalists.

This revised institutionalism became an important source of theory for modern law and economics. First, it recognized marginalism and the conception of the rational actor as central to economic analysis of legal institutions. Second, it preserved the Pigouvian, fundamentally institutionalist concern that economics consider the costs of moving resources from one spot to another. Third, its market-oriented marginalism led Coase to assume that the only relevant costs of resource movement are the internal value maximizing decisions of individual economic agents, captured by Coase’s 1937 essay on The Nature of the Firm; and the costs of bargaining, reflected in his 1959 and 1960 articles on social cost.
Photo credit.

Documenting the Uniform Code of Military Justice

Over at Et Seq., the Harvard Law School Library Blog, is a notice of a new digital collection, based on the seven bound volumes HLS professor Edmund Morgan compiled as chairman of the Committee on a Uniform Code of Military Justice, a body convened by Secretary of Defense James Forrestal in 1948 to produce a single uniform code to replace the separate codes that existed for the Army and Navy and also to apply to the Air Force, Coast Guard and Marines. According to Ed Moloy, Curator of Modern Manuscripts and Archives at HLS, "the volumes are a rich source of material reflecting the work of the committee and include correspondence, notes, drafts, reports, agendas, hearings and research material – much of which is unpublished. This material should be of great interest to researchers studying military law." The Et Seq. post is here. The collection (via HLS) is here; (via the Military Legal Resources site of the Library of Congress) here.

Tuesday, January 19, 2010

Carle on A Social Movement History of Title VII Disparate Impact Analysis

A Social Movement History of Title VII Disparate Impact Analysis is a new paper by Susan Carle, American University Washington College of Law. Only this abstract is posted:
The U.S. Supreme Court’s recent opinion in Ricci v. DeStefano suggests trouble ahead for disparate impact analysis under Title VII of the Civil Rights Acts of 1964 and 1991. Commentators, too, have begun to question the policy bases for this doctrine. Part of the current tenuousness surrounding disparate impact analysis, which the Court first approved in its 1971 opinion in Griggs v. Duke Power Company, stems from assumptions that the EEOC pursued this theory as a last-minute, ill-conceived afterthought that was not in keeping with Congress’s intent when it passed Title VII in 1964. In this Article I use the methodology of social movements theory to cast a different light on the history of disparate impact analysis.
Disparate impact analysis asks employers to evaluate whether their employment practices pose barriers to the employment opportunities of traditionally excluded outsiders and, if so, to replace such practices with alternative effective practices with less exclusionary effect. Disparate impact analysis thus augments federal employment anti-discrimination law by introducing a structural approach alongside an intent-based standard that focuses exclusively on detecting invidious motives buried in individual decision-makers’ hearts.
In this Article I trace concerns about tackling structural race discrimination in employment to the early history of civil rights activism. I locate the origins of disparate impact analysis in civil rights activists’ long-held understandings about the structural nature of racial employment subordination. Throughout a long historical period, employment subordination based on race was pervasive and unremitting, enforced by a complex of institutions including law, tradition, and white violence insisting on a “whites only” rule for desirable jobs. These forces imposed a tight structural block on the employment advancement of persons of color, and civil rights activists therefore aimed their efforts at achieving broad-scale reform of these institutional barriers.
Law also shaped the strategies of these early civil rights activists. In the late nineteenth and early twentieth centuries, the relevant legal question had nothing to do with the intent versus effects tests so heatedly debated today. Instead, two lines of the Court’s jurisprudence were important: its Post Reconstruction civil rights jurisprudence, which limited the reach of anti-discrimination law to state actors; and its Lochner Era employment law jurisprudence, which recognized a natural law “freedom of contract” right barring most forms of state regulation of the employment relationship. These two lines of caselaw defined the sphere of private employment as largely unreachable through federal or state law. Activists accordingly concentrated their efforts on inducing employers to voluntarily reform their workplace hiring and promotion practices.
The end of the Lochner Era paved the way for New York State’s passage of the first employment anti-discrimination statute to reach the private sector. State agency officials charged with the statute’s enforcement, some recruited from the ranks of the activists responsible for the statute’s enactment, continued to experiment with methods of inducing employers – now with the background threat of legal action to encourage compliance – to make broad-scale institutional change by examining traditional employment practices to find ways to eliminate barriers to racial inclusiveness.
By the time Congress began to debate Title VII’s passage, at least several prototypical disparate impact cases had emerged from state fair employment agencies. After the legislation’s enactment, the EEOC followed in the footsteps of state fair employment agencies by focusing its efforts on promoting broad-scale institutional reform. The EEOC encouraged employers in targeted industries to engage in self study to identify employment practices, such as testing and other selection devices, that could be reformed to increase employment opportunities for racial minorities. At the same time, the NAACP and others successfully litigated a number of disparate impact cases in the lower courts.
At all these stages, civil rights activists and those charged with implementing statutes enacted as a result of these activists’ efforts developed and passed on ideas now embedded in the current statutory articulation of the disparate impact doctrine. Disparate impact analysis thus was not a last-minute afterthought, unwittingly endorsed by the U.S. Supreme Court, but the product of a sustained social movement effort over decades of theorizing and experimentation.
In sum, my account adds important historical context to the current debate about the continued viability of Title VII disparate impact analysis and also illustrates the potential substantive payoff of a social movement focus on the development of public law.

Historical Perspectives on Re-Regulation

The Randolph W. Thrower Symposium is part of an endowed lecture series sponsored by the family of Mr. Thrower (an eminent tax lawyer who had an admirable career of public service, pictured at right) and hosted by the Emory Law Journal and Emory University School of Law. This year’s symposium, “The New New Deal: From De-Regulation to Re-Regulation,” will be held February 11, 2010. It includes the panel “Re-Regulation and Government Expansion: A Historical Perspective,” moderated by Victoria Nourse (Emory Law), and otherwise consisting of Barry Cushman (Virginia Law), William Forbath (Texas Law), William J. Novak (Michigan Law), Polly J. Price (Emory Law), and me. Michelle Landis Dauber is also on the program.

The full program is here; registration, here.

Monday, January 18, 2010

Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865

Chris Tomlins, University of California, Irvine, has a new book forthcoming: Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865. Here's the book description:

Freedom Bound is about the origins of modern America – a history of colonizing, work, and civic identity from the beginnings of English presence on the mainland until the Civil War. It is a history of migrants and migrations, of colonizers and colonized, of households and servitude and slavery, and of the freedom all craved and some found. Above all it is a history of the law that framed the entire process. Freedom Bound tells how colonies were planted in occupied territories, how they were populated with migrants – free and unfree – to do the work of colonizing, and how the newcomers secured possession. It tells of the new civic lives that seemed possible in new commonwealths, and of the constraints that kept many from enjoying them. It follows the story long past the end of the eighteenth century until the American Civil War, when – just for a moment – it seemed that freedom might finally be unbound.


Prologue. Beginning: “as much freedome in reason as may be”;

Part I. Manning, Planting, Keeping: 1. Manning: “setteynge many on worke”; 2. Planting: “directed and conducted thither”; 3. Keeping (i): discourses of intrusion; 4. Keeping (ii): English desires, designs;

Part II. Poly-Olbion; or The Inside Narrative: 5. Packing: new inhabitants; 6. Unpacking: received wisdoms; 7. Changing: localities, legalities;

Part III. “What, then, is the American, this new man?”: 8. Modernizing: polity, economy, patriarchy; 9. Enslaving: facies hippocratica; 10. Ending: “strange order of things!”.

More details will be available closer to the publication date.

Dane on Conflict of Laws

Conflict of Laws has just been posted by Perry Dane, Rutgers School of Law - Camden. It appears in BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, Dennis Patterson, ed., (2010). Here's the abstract:
This essay on choice of law (private international law) appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of an entry on the same topic in the first edition of the book. The essay focuses on the epic battle over the course of the last century between two very different traditions - classical choice of law, articulated most completely by Joseph Beale in the 1930s, and modernist choice of law, which inspired a massive and still controversial revolution in choice of law thinking. The essay isolates eight distinct jurisprudentially significant premises of classicism, including territorialism, a commitment to a regime of rules, and a conception of law and legal rights that I have called “vestedness.” It then discusses the modernist challenges to most, but significantly not all, of those premises. It also emphasize, however, the degree to which the eight pillars of the classical tradition are actually conceptually independent, and could, at least in principle, be mixed and matched in various combinations and in the service of very different account of choice of law enterprise. Finally, the essay turns to other debates, both within the classical and modernist traditions separately and transcending the differences between them.

Sunday, January 17, 2010

Rakove's and Lipsky's Constitutional annotations, Menand on the University, and more in the book reviews

THE CITIZEN’S CONSTITUTION: An Annotated Guide by Seth Lipsky and THE ANNOTATED U.S. CONSTITUTION AND DECLARATION OF INDEPENDENCE, edited by Jack N. Rakove were reviewed together last week by Adam Liptak in the New York Times. It is a good comparison of the two books, quite useful if you are looking for a gift for your favorite law student. Liptak writes:
Lipsky has a lighter touch throughout...But as he finishes with the Constitution’s first two articles, he loses some steam....

Rakove, on the other hand, gains momentum as his book progresses. His writing becomes slyer, shedding some of its textbook quality. He also becomes more judgmental, a quality mostly missing in Lipsky.

Lipsky rarely makes ideological points and does not promote interpretive theories, whereas Rakove occasionally pushes back against originalism, the theory that the meaning of the Constitution was fixed at the time of its adoption.
Read the rest here.
The Marketplace of Ideas: Reform and Resistance in the American University by Louis Menand is reviewed by Wesleyan University President Michael S. Roth in the Los Angeles Times. Menand
describes the evolution in this country of a model in which the college years have been kept separate from anything that resembles vocational or professional training. Defenders of either the "books everyone should have read" POV or of the "skills everyone should have acquired" have usually been stymied by "a superstition: that the practical is the enemy of the true." Menand's message here: It doesn't have to be this way.
Continue reading here.

GAME CHANGE: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime by John Heilemann and Mark Halperin is reviewed in the New York Times and the Washington Post.

And in blog news, a Military History Carnival is up at Edge of the American West. (A carnival is a round-up/synthesis of many related blog posts.) And Claire Potter has begun the incredibly helpful Sunday Radical Round-up at Tenured Radical.