Tuesday, November 30, 2010

Thank you to Chris Tomlins and Allison Brownell Tirres

Thank you to Christopher Tomlins and Allison Brownell Tirres, our guest bloggers for November.  It has been a busy month for legal historians, and we're grateful for the time Chris and Allison have had to spend with up.  Allison posted about new work in Latino history and inquired about whether Justice John Marshall was a bad historian (and whether that matters).  Chris took up the state of legal history in U.S. law schools here and here.

Thanks to Chris and Allison!

Del Duca on Introduction of Judicial Review in Italy, 1948-1956

Introduction of Judicial Review in Italy - Transition from Decentralized to Centralized Review (1948-1956) - A Successful Transplant Case Study has been posted on SSRN by Louis F. Del Duca,The Pennsylvania State University.  It appears in the Penn State International Law Review (2010).  Here's the abstract:
Along with other European countries following the end of World War II, Italy adopted a new constitution. Its drafters intended that it safeguard against the abuses of power and the horrors that had occurred. One of the innovations of the new constitution was the introduction of the concept of judicial review of the constitutionality of laws into the Italian legal system. The Italian Constitutional Court contemplated by the 1948 Constitution was established in 1956. This work lays out the politically challenging cases that arose during the 1948-1956 transition period from efforts to use the justice system to resolve charges of misconduct and collaboration with the fascist regime during the period of the war. As the Italian courts experimented with their approach to the constitutionally-granted new power of judicial review, they demonstrated sensitivity to either upholding or countermanding acts of the non-elected transitional government on constitutional grounds, preferring in key instances to rely on other tools of statutory interpretation to resolve the cases presented to them. The launch of the Constitutional Court in 1956 overcame any diffidence of Italian courts to judicial review of the constitutionality of laws and was the moment in which the innovative principles established by the 1948 constitution received full endorsement and application. From its very first decision in 1956, the Italian Constitutional Court, as a freshly established institution directly legitimated by the constitution, determined the “peremptory” status of the civil rights’ provisions of the constitution and their direct applicability without further implementation, rejecting the view that they had a merely “programmatic” nature. It thereby began its continuing and flourishing role as a voice, without ambiguity, of the central position of constitutional review of laws in the Italian legal system.

Walker, Blackboard Jungle: Delinquency, Desegregation, and the Cultural Politics of Brown

Anders Walker, St. Louis University School of Law, has just published an essay, BLACKBOARD JUNGLE: DELINQUENCY, DESEGREGATION, AND THE CULTURAL POLITICS OF BROWN, in the Columbia Law Review.  Here's the abstract:

In 1955, Metro-Goldwyn-Mayer released a controversial film about juvenile delinquency entitled Blackboard Jungle. Georgia Governor Ernest Vandiver subsequently used the film as a metaphor for what would happen to southern schools were Brown v. Board of Education enforced, marking the beginnings of a much larger campaign to articulate southern resistance to integration in racially neutral, cultural terms. Taking Blackboard Jungle as a starting point, this Essay recounts the intersection between discourses of delinquency and desegregation at mid-century, showing how both civil rights groups and segregationists alike drew from popular culture and developmental psychology to advance their constitutional agendas.


Newberry Library Fellowships in the Humanities

The Newberry Library, a Chicago-based independent research library, has announced a series of fellowships in the humanities for 2011-12. The Library aims to facilitate use of its extensive collections. Here is the relevant information, taken from the Library's website

About the collections:
The Library's holdings span the history and culture of western Europe from the Middle Ages to the mid-twentieth century and the Americas from the time of first contact between Europeans and Native Americans. Its strengths include: European discovery, exploration, and settlement of the Americas; the American West; local history, family history, and genealogy; literature and history of the Midwest, especially the Chicago Renaissance; Native American history and literature; the Renaissance; the French Revolution; Portuguese and Brazilian history; British literature and history; the history of cartography; the history and theory of music; the history of printing; and early philology and linguistics. The collections number 1,500,000 printed titles, five million manuscript pages, and 500,000 historic maps.
Long-term fellowships:

Long-term fellowships are available to post-doctoral scholars for periods of six to eleven months. Applicants for post-doctoral awards must hold the Ph.D. at the time of application. These grants support individual research and promote serious intellectual exchange through active participation in the Library's scholarly activities, including a biweekly fellows' seminar. The stipends for these fellowships range from $25,200 to $50,400. Applicants may combine these fellowship awards with sabbatical or other stipendiary support. Scholars may apply for any of the long-term fellowships using the same application. Each fellowship has specific eligibility requirements. Please read the individual descriptions carefully to determine if you are eligible. If you do not meet the eligibility requirements for at least one of these awards, your application will not be considered.

Consult the website for more information about deadlines. Most long-term applications are due on January 10, 2011, but a few have different due dates.

Short-term fellowships:
Short-term fellowships are generally restricted to post-doctoral scholars, Ph.D. candidates, or holders of other terminal degrees from outside of the Chicago area who have a specific need for Newberry collections. Some fellowships, however, are open to other categories of applicants and Chicago residents. Please read the following descriptions carefully for the eligibility restrictions on particular fellowships. The tenure of short-term fellowships varies from one to two months, unless otherwise noted under the award description. Unless otherwise noted, the amount of the award is $1600 per month.
Consult the website for additional details. The application deadline for short-term fellowships is February 10, 2011.

Special awards and fellowships: A number of additional awards and fellowships are also available, including
  • The Newberry Library/École Nationale des Chartes Exchange Fellowship (deadline: January 10, 2011)
  • The Newberry Library/British Academy Fellowship for Study in Great Britain (deadline: January 10, 2011)
  • The Lawrence Lipking Fellowship at the Newberry Library (deadline: Friday April 16, 2010)
  • The Herzog August Bibliothek Wolfenbüttel Fellowship (deadline: January 10, 2011 for linked long-term fellowship; March 1, 2010 for linked short-term fellowship)
  • The Frances C. Allen Fellowships (deadline: February 10, 2011)
  • The Arthur and Lila Weinberg Fellowship for Independent Scholars (deadline: February 10, 2011)
You can find the Library's responses to frequently asked questions about the fellowships here.

A list of last year's fellowship winners is here.

Monday, November 29, 2010

Call for Papers: Conference on Race, Law and History in the Americas

Note:  this call is for proposals from early career scholars and grad students only:

“We Must First Take Account”: A Conference on Race, Law, and History in the Americas

University of Michigan Law School
Ann Arbor, Michigan
Friday and Saturday, April 1 – 2, 2011

Call for Papers

“To get beyond racism, we must first take account of race,” is the well-remembered phrase from Justice Harry Blackmun’s opinion in the 1978 Bakke decision. Blackmun’s view may remain controversial in debates about constitutional jurisprudence. But for historians of law it is axiomatic.  In the generation since Bakke, scholars have indeed taken account, mining legal culture’s archives to explain the origins and endurance of race.  Today race is at the core of interpreting the history of law in the Americas. Understood as a set of ideas that rely upon religion, culture, labor, biology, and politics, race has organized profound inequality and galvanized movements for social justice. Race has been linked to slavery and its abolition, immigration and exclusion, and the status of indigenous peoples, shaping the emergence of democratic states, imperialism, labor relations, social welfare policy, and movements for civil and human rights. Legal historians have debated the relationship of law to these transformations while exploring how race and law have shaped home, family, marriage, gender, and sexuality.

 “We Must First Take Account” will explore new scholarship in race, law and history. We solicit proposals from early career scholars and graduate students that address the above themes and inter-related questions from the field: How have ideas about race shaped the evolution of legal culture? How has law produced ideas about race? How has legal scholarship incorporated race into its analysis? How has law been allied with or an obstacle to movements for social change? What strategies can be used to carry out comparative studies of race, law, and history? We encourage research that rethinks earlier frameworks, particularly that of the nation-state. Histories of race and law in transnational and comparative perspectives are welcome, and we invite work across the Americas including North America, the Caribbean, Latin America, and Brazil. Senior scholars will be invited to provide discussion and commentary.

Proposals should include a 300-word abstract and a short c.v. and be submitted no later than January 17, 2011. Please send proposals via email  with “Legal History Conference” in the subject line.

For those selected to present, final papers of no more than 9,000 words are due by March 14, 2011.  All papers will be pre-circulated to conference participants. Support for presenters’ travel and lodging expenses will be available.

“We Must First Take Account” is sponsored by the University of Michigan Law School and the Legal History Consortium (University of Illinois College of Law, University of Michigan Law School, University of Minnesota Law School, and University of Pennsylvania Law School,) with generous support from the American Society for Legal History.

Call for Papers: ASLH 2011

Call for Papers: 2011 Meeting of the American Society for Legal History

The 2011 meeting of the American Society for Legal History will be in Atlanta, Georgia, November 10-13, 2011. The ASLH invites proposals on any facet or period of legal history, anywhere in the world. In selecting presenters, the Program Committee will give preference to those who did not present at last year’s meeting. Among the people selected to present, limited financial assistance will be available for those in need—with special priority given to graduate students and post-docs,
as well as scholars traveling from abroad.

Proposals for both panels and individual papers are welcome. As concerns panels, the Program
Committee encourages the submission of a variety of different types of proposals, including:

• classical 3-paper panels (with a separate commentator and chair)
• incomplete 2-paper panels (with a separate commentator and chair), which the Committee
will complete with at least 1 more paper
• panels of 4 or more papers (with a separate commentator and chair)
• author-meets-reader panels
• roundtable discussions

Panel proposals should include the following:

• A 300-word description of the panel
• A c.v. for each presenter (including complete contact info)
• In the case of paper-based panels only, a 300-word abstract of each paper (as well as a draft
of the paper, if possible)

Individual paper proposals should include:

• A c.v. for each presenter (including complete contact info)
• A 300-word abstract of each paper (as well as a draft of the paper, if possible)

The deadline for submitting proposals is February 28, 2011. Proposals should be sent as email
attachments to Amalia Kessler.

Those unable to send proposals as email attachments may mail hard copies to:
2011 ASLH Program Committee
c/o Amalia Kessler
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610

The Library of Congress archives ... us

In an odd, predator-becomes-prey sort of moment, we have learned that our musings on historical scholarship and archival finds are themselves being "archived."

Check out the following post, from In Custodia Legis, the blog of the Law Librarians of Congress:

Over the last five years, legal blogs (or “blawgs” = law + blogs) have increasingly become vehicles for legal scholars, practitioners, and observers from across the globe to share information on developments in various areas of law, as well as opinions as to how good or bad those developments are. Intellectual property law enthusiasts, for instance, routinely follow blawgs such as Patently-O and Blog@IPJUR.com, while those interested in business/corporate law may find The Conglomerate and The Becker-Posner Blog to be must-view websites. There are even blawgs following particular courts, such the ECJBlog for the European Court of Justice and SCOTUSblog for the Supreme Court of the United States; as well as blawgs that track the thoughts of some of the world’s most respected law school professors, such as The Faculty Lounge and The Volokh Conspiracy.

The Law Library of Congress has been working since 2007 to archive monthly entries for blawgs such as these, so that the legal events addressed in the blawgs of today may be studied many years from now. This collection is called the Legal Blawg Archive, and a link to it may be found on the Law Library’s homepage.

Our humble blog made the cut -- which means that you may leave messages to future historians in the comments.

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Sunday, November 28, 2010

Rakove on 'Founders Chic,' Wood on Washington bios, Appiah on Kloppenberg, and more in the book reviews

First Family: Abigail and John by Joseph J. Ellis has been reviewed by Jack Rakove in The New Republic.  Rakove writes: 
Beginning with Founding Brothers, and in other books including this one, Ellis has with great success applied the formula that has made him the great academic beneficiary of what we might call Founders Chic. His rules are clear. He likes to limit his books’ number of chapters (five to seven) and overall length. Each chapter has a clear theme, framed within neat chronological limits. Ellis is a natural storyteller, a conversational historian in the ease with which he addresses readers. He generally avoids the distractions and complications that other historians feel driven to work out. He projects a great deal of confidence in his own judgments, which smack of genuine scholarly insight. Turning out four books of this kind in roughly a dozen years is certainly an accomplishment, which I admire not least because I spent the better part of the past decade producing my own contribution to the genre.

If a lay reader has to choose among these three books for a quick, easy, and engaging introduction to the subject of the Adamses, First Family is ideal. Ellis makes superb use of the wonderful letters between Abigail and John—particularly in the period between 1774 and 1784, when they saw each other for a bare twenty-one months—to carry us along; and really, any writer who allows the family to speak for itself starts out with powerful literary advantages. The problem is that Ellis demands unconscionably little of his readers, and this may help to explain the book’s weakness. Next to the recent work by Holton and Gelles, First Family seems thin, more a quick romp than a sustained study—Founders Chic made into Founders Lite.
Continue reading here.

Gordon Wood discusses George Washington’s America: A Biography Through His Mapsby Barnet Schecter and Washington: A Life by Ron Chernow in the New York Review of Books.  Also in NYRB, Kwame Anthony Appiah takes up A Brief Inquiry into the Meaning of Sin and Faith, with “On My Religion” by John Rawls, edied by Thomas Nagel, and Reading Obama: Dreams, Hopes and the American Political Tradition by James T. Kloppenberg.

THE FIERY TRIAL: Abraham Lincoln and American Slavery by Eric Foner has been reviewed by James McPherson in the New York Review of Books, and by Fred Kaplan in the Washington Post.

In the New York Times this weekend are reviews of BLOODLANDS: Europe Between Hitler and Stalin by Timothy Snyder, AND THE SHOW WENT ON:  Cultural Life in Nazi-Occupied Paris by Alan Riding, COLONEL ROOSEVELT by Edmund Morris, and APOLLO’S ANGELS:  A History of Ballet by Jennifer Homans.

Saturday, November 27, 2010

Happy Birthday to Us!

The Legal History Blog first went on-line four years ago today.

image source
 Thanks for visiting!

Friday, November 26, 2010

Stein on ASLH panel: Slavery, Law, Religion, and Power in the Early Modern Atlantic

Our next guest post about this year's meeting of the American Society for Legal History comes from Joshua Stein, who is a fellow of Pierson College and a Lecturer at Yale University. Here's his report on "Slavery, Law, Religion, and Power in the Early Modern Atlantic":
Chair: Holly Brewer, North Carolina State University

Panelists: Michelle A. McKinley, University of Oregon, “The Unbearable Lightness of Being (Black): Legal and Cultural Constructions of Race and Nation in Colonial Latin America”; Rebecca Goetz, Rice University, “‘An Act Against Carnall Copullation between Christian & Heathen’: Race, Religion, and the Law in the English Atlantic”

Chaired by Holly Brewer, this panel promised to tackle four extremely broad themes “Slavery, Law, Religion and Power” over the first centuries of the European colonization of the Americas. The boldness and breadth of the panel’s proposed reach could have been problematic. But Rebecca Goetz and Michelle McKinley treated the scholars in attendance to two wonderful papers, works that were given a predictably thorough and incisive analysis by Christopher Tomlins. Though they delivered new insights into the panel’s larger, vital subjects, both historians did so with case studies, putting the macro under a microscope with exciting results. McKinley told the story of Margarita, a slave in seventeenth century Lima, Peru who sued four sisters, her owners, for keeping her enslaved in defiance of the deathbed manumission given to her by her longtime mistress. Margarita’s decade-long struggle for freedom was a soap-operatic adventure, full of legal and personal intrigue. Despite a denouement which resulted in her being returned to the sisters, her story puts the spotlight on the instruments of legal resistance a slave in colonial Latin America had available, including even access to public legal representation. Agency is a pillar of the historical study of slavery; McKinley’s paper shows how the law can be the most rewarding angle in the study of slave resistance and adaptation.

Goetz’s work, like McKinley’s, offers a smaller scale study that results in super-sized revelations. Offering no less than the earliest legal mention of race in the British colonization of the Americas, the statute under examination in Goetz’s paper is a truly remarkable discovery. Even though by 1644 the island of Antigua had not yet begun importing considerable numbers of African slaves, English colonists nevertheless began to act on their “inchoate fears” of racial mixing. The colonial legislation against “Carnall Copulatation between Christian and Heathen” specifically singled out the whiteness of colonists in contraposition to the island’s nonwhite inhabitants, both indigenous and imported. Goetz argues that this first legal mention of “White” in English self-description is a landmark. Given the rich and contentious historiography on the origins of racism that Goetz ably and succinctly addresses, it is hard to argue with her. To be sure, practical concerns drove most of the legislation aimed at regulating slavery, but this preemptive act spoke of a much deeper, more atavistic form of racism than historians who believe race to be a post-slavery construct generally concede existed.

Tomlins directed his most notable observations at Goetz’s conclusions on race. He invoked Shakespeare’s Titus Andonicus – “A joyless, dismal, black, and sorrowful issue / Here is the babe, as loathsome as a toad / Amongst the fairest breeders of our clime. IV, ii, 71-73” – to show that even in the sixteenth century the English saw themselves as racially superior to those they intended to subdue, conquer and exploit. In his assessment of the cultural underpinnings of racism, Tomlins seemed to suggest that Goetz should go even deeper in her study of racism’s genesis by exploring the cultural roots of racism in the law. It was yet another reminder that the law is an extension of our humanity – at its best and worst.

Jaffe reviews Kolsky on Colonial Justice in British India

Our friends at H-Law have posted a review of Colonial Justice in British India: White Violence and the Rule of Law (Cambridge University Press, 2009), by Elizabeth Kolsky (Villanova).

Reviewer James Jaffe (University of Wisconsin-Whitewater) begins by identifying the book's goals and situating it in the historiography.
Elizabeth Kolsky's new book seeks to redefine and expand our understanding of the violence inherent both to colonial rule and the colonial system of justice. As this work makes clear, especially to those who recently may have neglected some of the violent realities of imperialism, beyond and beneath the brutality of war and conquest, beyond and beneath the hyperreality of colonial discourse, and beyond and beneath the imaginaries of empire, there lay the quotidian violence that often characterized the relationship between rulers and subjects, masters and servants, whites and blacks, Britons and Indians.

Perhaps it would be best to locate this work within the context of the social history of British imperial law. That is, like some of the best practitioners in this field, such as Douglas Hay or Christopher Tomlins, the author attempts here to combine a history of law as legislation with a history of law as practice. Thus, this book also shares much in common with the goals and objectives of the academic traditions of legal realism and law-and-society studies, although, it must be said, the large body of work done in these fields does not appear to have directly informed this study.
You can read the full review here.

Jaffe concludes that the book "has much to offer": "It opens a new window into the nature and complexity of British imperial rule"; it "excavat[es] . . . the problems posed by the 'non-official' white community in India"; and it "adds to our understanding of the extent of violence inherent to white rule in India and contributes to a broader understanding of crime and justice under the British raj."

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Thursday, November 25, 2010

Giving Thanks

At the Legal History Blog, we're thankful for:
  • our tireless Facebook coordinator, Clara Altman
  • our guest bloggers over the past year:  William E. Forbath, Thomas Gallanis, Ariela Gross, Stephen Vladeck, Mark Tushnet, and Karen Tani, and current guests Allison Brownell Tirres and Chris Tomlins
  • the newest on-going member of our team, Karen Tani
  • our 77 blog followers
  • the 263 people who like us on Facebook
  • the 408 (and counting) people who read us on Twitter
  • and especially to our 240,282 readers over the past year.  We do this for you.
Happy Thanksgiving!

Image source.

Wednesday, November 24, 2010

Walker on ASLH panel: Lost Intersections: Labor, Civil Rights, and Feminism in 20th Century U.S. Legal Advocacy

Our first guest post about this year's American Society for Legal History conference comes from Anders Walker, St. Louis University School of Law.  His panel description follows:

Lost Intersections: Labor, Civil Rights, and Feminism in Twentieth Century U.S. Legal Advocacy

This panel focused on intersections between labor, civil rights, and feminism, both broadening and challenging prevailing narratives. 

Tomiko Brown-Nagin (University of Virginia) presented “‘The Only Woman in the Courtroom’: Constance Baker Motley and Twentieth-Century Struggles for Equality,” a paper drawn from a new project using Motley to de-center traditional narratives of civil rights lawyering and feminism.  Raised in poverty, Motley worked at the NAACP Legal Defense Fund for 20 years, confronting hostility in southern courtrooms both because she was black but also because she was female. Yet, the biggest “valley” in Motley’s career occurred in 1961 when Thurgood Marshall passed her over for LDF director, appointing Jack Greenberg instead.  Suspecting gender-bias, Motley became a champion for sex equality for the remainder of her career.  As a district court judge, she fought male efforts to remove her from gender discrimination claims, successfully pressured Sullivan & Cromwell to support affirmative action, and opened the New York Yankees’ locker room to women.  As public outrage ensued, Motley defiantly responded “let them wear towels.” 

Sophia Z. Lee (University of Pennsylvania) presented a paper entitled “More than a Hamburger: The Labor Roots of the Sit-In Cases,” showing how claims to lunch counters resonated with earlier workplace demonstrations both involving constitutional assaults on a business’s private status and concomitant efforts to expand the notion of state action.  Central to this story was Archibald Cox, solicitor general at the time who helped shape the outcome of the cases by arguing for conservative readings of the state action doctrine.  Animating Cox’s approach, however, was not simply a traditional interest in property rights, but a more intriguing concern for labor’s rights.  A firm believer in collective bargaining, Cox feared that an over-expansion of the state action doctrine might lead to over-regulation of unions. 

Serena Mayeri (University of Pennsylvania) presented a paper entitled “Rethinking Legal Feminism, Race, and Civil Rights in the 1970s,”  showing how sex equality claims often began as combined gender/race claims, only to have race fall out as cases wound their way through the appellate process.  To illustrate, Mayeri focused on Andrews v. Drew School District, a 1976 case brought by Katie Mae Andrews, a black unwed mother who had been denied a teachers’ aid position in Drew, Mississippi.  While the Drew School District called known segregationists to testify against Andrews, lawyers for the plaintiff called Kenneth B. Clark and Fannie Lou Hamer, both icons of civil rights.  Hamer charged that the school superintendent was repressing blacks by denying employment to unwed mothers.  Clark emphasized the sexual subordination of women, calling Drew’s policy part of a long history of gender discrimination.  Though the Supreme Court dismissed the case, the litigation story nevertheless underscores that many of the plaintiffs in sex equality cases were blacks suffering coded forms of discrimination, yet the racial roots of such cases became obscured as litigators and courts shifted the nexus of the claims away from race and towards sex. 

Nancy McLean (Northwestern University) provided commentary, noting that Motley’s story illustrates how the “threatened loss of new possibility (in this case Marshall’s choice of Greenberg) can be “a radicalizing force,” that Cox’s support for collective bargaining (a defeat for labor) indicated limited sympathy for labor’s rights, and that we cannot draw conclusions of advocates convictions from the judges’ rulings on their cases, a lesson illustrated clearly by Andrews v. Drew.

Curott and Stringham on the Rise of Government Law Enforcement

Nicholas Adam Curott, George Mason University, and Edward Peter Stringham, Fayetteville State University School of Business and Economics, have posted The Rise of Government Law Enforcement in England, which is forthcoming in The Pursuit of Justice: Law and Economics of Legal Institutions, ed. Edward J. Lopez, ed. (Independent Institute, 2010). Here is the abstract:
Nearly one thousand years ago, before the existence of centralized government police and courts in England, disputes were settled in a decentralized and in many ways voluntary manner. When disputes occurred, private groups would ask the wrongdoer to pay restitution to the victim, and if the wrongdoer refused he would be viewed as an outlaw. Over time, however, the kings saw the court system as a potential source of revenue. Rather than having the full restitution go to the victim, they declared that fines must be paid to themselves for more and more offenses because they violated the King’s Peace. After the Norman conquest of England in 1066 A.D., restitution was completely replaced by a system of fines and punishments. The history of medieval England demonstrates, contrary to common belief, that law and order can be provided in a decentralized manner. It also demonstrates that government law enforcement in England was not created for public interest reasons, but to raise revenue for the kings.

Tuesday, November 23, 2010

Cromwell Fellowship Awards to Holdren, Pashman, Rao, Tani

Another announcement at this year's meeting of the American Society for Legal History was the winners of the fellowships awarded annually by the William Nelson Cromwell Foundation. In recent years, the Foundation has awarded three to five fellowships, in amounts up to $5,000, to support research and writing in American legal history, with preference for early-career scholars. The Society's Committee on Research Fellowships and Awards reviews applications and makes recommendations to the Foundation.

Howard Pashman and Karen Tani
This year fellowships went to:
  • Nate Holdren, Ph.D. candidate (History), University of Minnesota, to support a project titled “‘The Compensation Law Put Us Out of Work’: Workplace Injury Law, Medical Examinations, and Disability in the Early Twentieth Century United States.”
  • Howard Pashman, J.D./Ph.D. candidate (History), Northwestern University, to support a project titled “Enforcing the Revolution: Law and Politics in New York, 1776-1783.”
  • Gautham Rao, assistant professor, Rutgers-Newark/New Jersey Institute of Technology Federated Department of History, for a project titled “At the Water’s Edge: Politics and Governance in Revolutionary America.”
  • Karen Tani, Ph.D. candidate (History), University of Pennsylvania, Samuel I. Golieb Fellow, New York University School of Law, to support a project titled "Welfare Rights Before the Movement: Public Assistance Administration and the Rule of Law, 1938-1961."
* Language comes from the ASLH website.

Cromwell Book Prize to Margot Canaday

The American Society for Legal History is fortunate to announce every year the winner of the William Nelson Cromwell Foundation Cromwell Book Prize ("$5000 book prize for excellence in scholarship in the field of American Legal History by a junior scholar"*). This year's award went to Margot Canaday (Princeton University) for The Straight State: Sexuality and Citizenship in Twentieth Century America (Princeton University Press, 2009).

The ASLH Cromwell Prize Advisory Committee, which reviews books and makes recommendations to the Foundation, issued the following citation:
Canaday’s book will surely become a standard source for anyone who wants to understand the regulation of sexual orientation during the twentieth century. Her description of the symbiotic relationship between the rise of the bureaucratic state and the growth of the law on sexual status, as revealed through an exhaustive examination of military, immigration, and welfare policy, is compelling, original and illuminating.
* Language comes from the ASLH website

Cromwell Dissertation Prize to Anna Leah Fidelis T. Castaneda

Another big announcement at this year's meeting of the American Society for Legal History was the winner of the Cromwell Dissertation/Article Prize. This is one of several awards given annually by the William Nelson Cromwell Foundation ("established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States."*)

The award of $2500 is "for dissertations accepted in the previous calendar year or for articles of comparable aspiration published in the previous calendar year in the general field of American legal history (broadly conceived), with some preference for those in the area of early America or the colonial period."* The Society's Cromwell Prize Advisory Committee reviews materials and offers recommendations to the Foundation, which makes the final decision.

This year's award went to Anna Leah Fidelis T. Castaneda, for "Creating Exceptional Empire: American Liberal Constitutionalism and the Construction of the Constitutional Order of the Philippine Islands, 1898-1935."

The Committee's citation reads:

This dissertation is a groundbreaking study of the foundational period of the modern Philippine state. Drawing on an extraordinary range of American and Philippine sources, Castañeda shows how the introduction of liberal and progressive constitutional institutions to a colonial context–separated powers, expanded administrative discretion, even democratic principles of governance--actually facilitated authoritarian rule, reinforcing local patterns of class domination while also smoothing the path for powerful foreign economic interests to control development. Imagined and executed on a large scale, this study makes an original and extraordinary contribution both to Filipino legal history and to the study of the legal machinery of colonialism and empire more generally.
* Language is from the ASLH website.

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White on the Law in American History

G. Edward White, University of Virginia School of Law, has posted a full draft of the first volume of his forthcoming book Law in American History. (This volume is subtitled From the Colonial Years through the Civil War.) Here is the abstract:
The book’s purpose is to explore the relationship of law to some central themes of American history from the initial colonial settlements through the conclusion of the Civil War. The themes singled out in the book include the displacement of Amerindian tribes from land they occupied on the North American continent; the emergence of agricultural householding as the principal form of family life in colonial British America; the detachment of the American colonies from the British Empire and the theories of sovereignty and grievance that accompanied that development; the evolution of American forms of government from the Articles of Confederation to the Constitution; the emergence of the Supreme Court of the United States as a major institution of American grievance; the westward movement of enterprise and population in the decades between the 1830’s and the 1850’s; the central role of slavery and westward expansion and the gradual dissolution of the Union during these decades; and the role of the Civil War as a culmination of the central themes of early American history and as a force in transforming the subsequent course of that history.

Chapter 1
The Colonial Years

Chapter 2
Law and the Conditions of Agricultural Household Life, 1750-1800

Chapter 3

Law and the Founding of the American Republic I: Toward Independence and Republican Government

Chapter 4

Law and the Founding of the American Republic II: From the Articles of Confederation to the Constitution

Chapter 5
The Supreme Court Emerges

Chapter 6

Law and Entrepreneurship, 1800-1850

Chapter 7
Law and the Dissolution of the Union I: The Political Parties, Congress, and Slavery

Chapter 8
Law and the Dissolution of the Union II: Slavery, the Constitution, and the Supreme Court

Chapter 9
The Civil War: Setting the Stage

Chapter 10
The Civil War: Legal Issues

Monday, November 22, 2010

Sutherland Prize to Emily Kadens

This year's ASLH Sutherland Prize went to Emily Kadens, University of Texas Law School, for "The Puzzle of Judicial Education: The Case of Justice William De Gray," 75 Brooklyn Law Review 143 (2009). The Sutherland Prize is named in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually to the person or persons who wrote the best article on English legal history published in the previous year. Here's the Sutherland Committee's prize citation:
In this article Professor Kadens presents a cogent analysis of how an excellent but little-known judge, William de Grey, equipped himself to perform his office. De Grey was appointed Chief Justice of the Court of Common Pleas in January 1771, a position he held for ten years. Having had little experience in Common Pleas during his years in practice, de Grey promptly began to buy reference books. Using de Grey’s accounts, held by the Norfolk Record Office, Professor Kadens reconstructs de Grey’s book purchases and shows how he used his expanding library to shape the first stage of his judicial education. She then explains in careful detail how de Grey creted a two-volume encyclopedic bench book by interleaving pages of his own notes with the pages of the 1772 edition of Francis Buller’s Introduction to the Law Relative to Trials at Nisi Prius. The Norfolk archives have only one volume of de Grey’s bench book, but Professor Kadens constructs a persuasive description of the full two-volume compilation and of de Grey’s extensive annotations. The marginalia, she states, “show that de Grey sought to have at his fingertips the various types of information that would help him decide questions of law, give explanations to juries, and engage with counsel.”

Professor Kadens’ article is based upon meticulous documentary research and is a splendid example of the enhanced historical understanding that can be gained through the patient archival work of the legal historian.

Random Roundup

A few items of interest from around the web:

  • Patrick S. O'Donnell, Department of Philosophy, Santa Barbara City College, has posted an extensive bibliography, "The World of Work & Labor Law," here. It includes an very substantial historical section.
  • Timothy S. Huebner, Rhodes College, has posted the Fall 2010 edition of his New Books in U.S. Constitutional/Legal History for H-Law here.
  • Harvard Law School has posted a videorecording of a book launch for Noah Feldman's Scorpions, in which the NPR correspondent Christopher Lydon interviews the author. (Washingtonians can catch the author at the Politics and Prose bookstore on November 29.)
  • Inside Higher Ed has posted a short interview with the three editors of Contesting Archives: Finding Women in the Archives, a recent release from the University of Illinois Press. You can read the interview here.
  • The program for the recent Conference on Empirical Legal Studies has (as the Legal Scholarship blog noted) a nice montage of Yale's legal realists. How many can you name without scrolling down?

Reid Prize to Catherine Fisk for Working Knowledge

At the ASLH meeting in Philadelphia, Catherine Fisk, University of California, Irvine, was awarded the John Phillip Reid Book Award for Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930 (Chapel Hill: University of North Carolina Press, 2010).  The award is for the best monograph that is not the author’s first book, published in English in any of the fields defined broadly as Anglo-American legal history.  Working Knowledge appeared in the ASLH's book series, Studies in Legal History.

Here's the prize citation:

Catherine Fisk’s Working Knowledge is a book of many different virtues.  It takes on a novel question—when, how, and why did corporations come pervasively to own and control the intellectual property created by their employees?—and it brings to bear prodigious primary research, not just in case law but in corporate archives as well.  By combining these two types of sources, among others, Fisk delivers a compelling story of doctrinal development—especially in the areas of patent, copyright, and trade secrets--but also grounds that story in a textured history of the internal practices and cultures of DuPont, Eastman Kodak, and other companies known for innovation in the early 20th century.  Moreover, Fisk brings together a range of literatures that do not always make contact with each other: the literatures of legal history, of business history, of labor history, and of cultural history, among others.  Adroitly deploying all of this research, she delivers a highly readable narrative that exposes the mutability of historical perspectives on identity and creativity.  She offers us both a big, satisfying narrative arc and a collection of smaller arguments and speculations.  The big story takes us from an early republic in which creativity and intellectual property rights were presumed to lie in the independent man that was idealized by free labor ideology (even when that independent man was an employee for the moment) to a 20th-century America where the ideals of secure corporate employment and consumer satisfaction encouraged identification of employees’ innovations—and thus the copyrights and patents that went with them--with the corporation itself.  Fisk’s many subordinate narratives and arguments enrich the story further, leading the reader finally to lament the absence of Catherine Fisk’s name from the book’s copyright notice, where only that of the publisher appears.

Surrency Prize to Dan Ernst

The ASLH Surrency Prize for the best article from the previous year in the Law and History Review has been awarded to Daniel Ernst for “The Politics of Administrative Law: New York’s Anti-Bureaucracy Clause and the O’Brian-Wagner Campaign of 1938.” Here's the Surrency Committee's prize citation:
President Franklin D. Roosevelt's response to the Great Depression-- the New Deal-- ushered in a new era in American law. As happens when any profound social transformation is put in motion, individuals and groups within American society quickly saw themselves as either potential winners or losers in the emerging new world. Those who considered themselves powerful enough to take actions to support the transformation-- or stop it-- mobilized. In vivid prose, and with great clarity and intelligence, Daniel R. Ernst's “The Politics of Administrative Law: New York’s Anti-Bureaucracy Clause and the O’Brian-Wagner Campaign of 1938” describes and analyzes how this process unfolded in the Empire State during the late 1930’s. Ernst identifies “two institutions, the political party and the legal profession” as having played leading roles in shaping the “peculiar way which administrative agencies were incorporated into the American polity.” He complicates the traditional narrative about reactions to the creation of modern administrative law, a narrative that casts the raging battles as a straight forward “clash of interests or ideas”. In Ernst’s able hands we see instead that the “emergence of the administrative state” caused sharp divisions within political parties and the legal profession, cleaving both institutions into factions that were often led into alliances that, on the surface, appear anomalous.  Thus, the New Dealer par excellence, Felix Frankfurter, worked assiduously (and successfully) with John Foster Dulles, a vociferous opponent of the New Deal, to defeat the Anti-Bureaucracy Clause, a measure designed the curb the power of administrative agencies. And John Lord O’Brian, who ran against the great New Dealer Robert Wagner, could vigorously support the very powerful Tennessee Valley Authority while railing against the National Labor Relations Board as the prime culprit in the erosion of “due process in the midst of a growing administrative state.”  Although O’Brien lost, his critique of the NLRB resonated with voters, suggesting that political actors focused on a relatively technical question of administrative law could involve members of the public in important constitutional matters and that citizens would respond with their votes. Presenting a nuanced definition of “interests” and a thorough description of the “ideas” in play, Ernst helps us to see how these early battles resulted in the “judicialization of administrative procedure” that we know today.  Extensively and creatively researched, “The Politics of Administrative Law” tells us much that we need to know about a fascinating moment in American history.
Dan had this to say about the article in an LHB post:
I wrote the paper for a conference in honor of Stanley N. Katz (my dissertation adviser) held at Woodrow Wilson School at Princeton University in February 2007. Because of the occasion, I thought of the first thing of his I ever read, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” Perspectives in American History 5 (1971): 485–518, which John Langbein put in my hands as I was trying to decide where to do graduate work in history after completing my J.D. I recall being impressed by the article, as well as by Katz's Newcastle’s New York (1968), and off I went.

In the years since, I never forgot the essay....
Dan continues here.  

Sunday, November 21, 2010

ASLH Election Results

Election results for the Board of Directors and Nominating Committee were announced at the American Society for Legal History annual meeting. Winners are:

Board of Directors
Tomiko Brown-Nagin
Lyndsey Campbell
David Lieberman
Charles Zelden

Graduate Student member of the Board of Directors
Greg Ablavsky

Nominating Committee
James Oldham
Richard Ross

Congratulations to all!

Rape & Civil Rights History, the original Tea Party, TR, and more in the book pages

AT THE DARK END OF THE STREET: Black Women, Rape, and Resistance: A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power by Danielle L. McGuire is "a story of courage," writes Sheri Parks in the Washington Post.  "In the segregated American South, a white man could rape a black woman with little fear of legal or social recourse, and black women lived in a persistent state of apprehension. Rape was used as a weapon of terror in the subjugation of black women, their families and whole communities."  Although rape victims were threatened if they reported these crimes,
The women did tell, again and again. Many went to police before they went to the hospital and were supported by families and friends who corroborated their stories, at great risk. White control of the justice system meant that relatively few men were ever arrested and many fewer were ever convicted. McGuire reports that between 1940 and 1965, only 10 Mississippi white men were convicted of raping black women and girls. Although rape was a capital offense in many Southern states, no white man was ever executed for raping a black woman.

Yet black women's resistance grew into a social movement. Years before the Montgomery bus boycott, a coalition of poor and middle-class black women raised money; formed organizations; wrote, mimeographed and distributed fliers; attended trials; and boycotted the businesses of rapists. These actions created the strategies and alliances that the same women would use later to extend their rights. In fact, the civil rights movement was a continuation of the anti-rape movement; the early college sit-ins, largely by women, came in response to sexual violence, and Rosa Parks was a central figure well before she refused to give up her seat on the bus.
Continue reading here.  I just read the prologue of this book on Amazon.com, and it is so terrifying, well written and important that this is the one of those books that, once you pick it up, you won't be able to stop reading.

DEFIANCE OF THE PATRIOTS: The Boston Tea Party & the Making of America by Benjamin L. Carp is reviewed in the Boston Globe.  Michael Kenney writes:
No question that the Boston Tea Party was a trigger for the Revolution, writes Benjamin L. Carp in his sterling account of the event. But, argues Carp, a professor of history at Tufts University, it was not the spontaneous citizen uprising of historic myth. After the success of the Revolution, it vanished from public memory until well into the 19th century.

Carp’s account of how the crisis unfolded is particularly good at illustrating the politics that pitted the “friends of government,’’ led by Governor Thomas Hutchinson, against the Sons of Liberty, including Samuel Adams and Joseph Warren. His account details the efforts Boston’s patriot leaders made to defuse the looming crisis over the British imposition of a tax on tea, a crisis that would heighten with the arrival of cargoes of tea.
Read the rest here.

Colonel Roosevelt by Edmund Morris is taken up on the Los Angeles Times.  Nicholas Basbanes writes:
TR was so secure in what he had accomplished...that he eschewed the honorific "Mr. President" in retirement, preferring instead that everyone address him as "Colonel Roosevelt," the rank he had earned as commander of a volunteer cavalry regiment during the Spanish American War — and the title that Edmund Morris uses for the third and concluding volume of an exemplary biography begun more than three decades ago with "The Rise of Theodore Roosevelt," winner in 1980 of a Pulitzer Prize; "Theodore Rex," the 2001 installment, focused on his tenure as 26th president of the United States.

But as the cascading events of a world in tumult played out, the final 10 years of Roosevelt's life were anything but anticlimactic, certainly as interesting as those that preceded them, and almost as consequential.
For Basbanes, Morris's "masterful" trilogy "can rightfully take its place among the truly outstanding biographies of the American presidency."  More here.

Also reviewed this week: WHEN THEY COME FOR US, WE'LL BE GONE: The Epic Struggle to Save Soviet Jewry by Gal Beckerman in the Washington Post;  UNBROKEN: A World War II Story of Survival, Resilience, and Redemption by Laura Hillenbrand in the New York Times; and ALL THE DEVILS ARE HERE: The Hidden History of the Financial Crisis by Bethany McLean and Joe Nocera, also in the NY Times.

Friday, November 19, 2010

Call for ASLH Bloggers

Guest posts on panels at the upcoming meeting of the American Society for Legal History would be most welcome.  If you would like to "claim" a panel to blog about, please do so by leaving a comment.

Excellent posts from last year are here, here, here, here, and here.

Update:    If you're thinking about contributing, here are a few details:
  • no tech abilities needed:  you send us the post, and we put it up for you.
  • ideal length:  under 1000 words.  But if you have more to say, we can accommodate longer posts.
  • while posts on panels are most common, ASLH posts on other topics are also welcome (e.g. a post from a first-timer about what the meeting is like).
  • for timing:  there's no firm deadline, but it's best to send your post as soon as you can, and certainly within a week.

Thursday, November 18, 2010

Graduate student networking at ASLH

Over on the blog's facebook page, Clara Altman has started a discussion thread for graduate students attending the ASLH. Take a peek if you're new to the conference and are looking for tips, or if you're a repeat attendee looking to reconnect with friends or acquaintances.

Magliocca on the Gold Clause Cases

Gerard N. Magliocca, Indiana University School of Law-Indianapolis, has posted The Gold Clause Cases and Constitutional Necessity. Here is the abstract:
This Article presents a case study of how constitutional actors respond when the rule of law and necessity are sharply at odds.

In 1935, the Supreme Court heard constitutional challenge to the abrogation of "gold clauses" in contracts and Treasury bonds. Gold clauses guaranteed that creditors would receive payment in gold dollars as valued at the time a contract was made. Due to the deflation that followed the Great Depression, this meant that debtors were being forced to pay back much more than they owed originally. To stop a looming wave of bankruptcies, Congress passed a Joint Resolution declaring all gold clauses null and void.

Following oral argument, President Franklin D. Roosevelt was concerned that the Court would invalidate the Joint Resolution. He concluded that he could not accept this result, and thus drafted a Fireside Chat announcing that he would not comply such a decision. This unprecedented statement, which invoked the New Testament and necessity as the grounds for rejecting the Court's decision, has never been closely analyzed until now.

In the end, the Court did not hold that the gold clauses must be enforced. With respect to Treasury Bonds, however, a plurality of the Justices concluded that the Joint Resolution was unconstitutional but that the bondholders were not entitled to relief. This slippery reasoning (in Perry v. United States) harkened back to Chief Justice Marshall's approach in Marbury v. Madison--another case in which the Court was confronted with presidential defiance.

By recounting how President Roosevelt and Chief Justice Hughes--the author of Perry--sought to defuse (or, in some cases, exacerbate) the gold crisis, the dark arts of constitutional will be exposed.