Monday, April 30, 2012

Provenance Detectives at HLS

[Here's an intriguing announcement, which reached us via H-Law.]

The Harvard Law School Library's Historical & Special Collections department is pleased to announce the opening of a new exhibit, Provenance Detectives: Revealing the History of Six Library Artifacts.

This exhibit highlights artifacts chosen for their fascinating and sometimes mysterious provenance, as well as their ability to illustrate the different paths provenance research takes. Artifacts include: a fourteenth-century Magna Carta; furniture used by Justice Oliver Wendell Holmes, Jr.; and a painting of Justice John Marshall by eminent portrait artist Chester Harding.

The centerpiece of the exhibit is an early printed volume of English statutes once owned by photography pioneer William Henry Fox Talbot (1800-1877). Included with the volume, on display for the first time since its provenance was discovered, is a leaf from the same volume that Talbot used to make a "photogenic drawing" of the text in 1839 - the year photography was born. Long thought lost by historians of photography, the volume was (re)discovered in 2004 by our HLS Library colleague Mary Person.

This exhibit was curated by HLS Library staff members Mary Person, Lesley Schoenfeld, and Carli Spina. It will be on view through August 12, 2012, in the Law Library's Caspersen Room in Langdell Hall. The Caspersen Room is open Monday-Friday from 9am to 5pm. If you can't join us in person, please visit the exhibit online

Max Planck Institute Announces Legal History Post-Doc

image credit
The Max Planck Institute for the History of Science, Berlin, Max Planck Research Group (Sabine Arnaud), has announced one Postdoctoral Fellowship for a scholar in legal history or history of technology. The Institute invites "outstanding junior scholars" to apply. The position lasts for 10 renewable months, starting October 15, 2012 (with the possibility of starting earlier). The fellowship is awarded in conjunction with the research project, “The Writing of Deaf-Muteness and the Construction of Norms.”

Congress’s Authority To Enact the Violence Against Women Act: Reasoning from Race & History by Lawrence Sager

Read Lawrence Sager's (Texas-Law) take on the relationship between Jones v. Mayer (1968), the important civil rights-era race discrimination precedent, and the Violence Against Women Act, the subject of a re-authorization debate, in 121 Yale Journal Online 629 (2012). Sager summarizes his argument as follows:

My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of state-sponsored discrimination against women, and Congress has the authority under Section 5 of the Fourteenth Amendment to take steps to repair that unhappy legacy.

Law & History Rev. (May 2012): Weinrib, Steedman, Stein, and more

The May 2012 issue of the Law & History Review is out. Here are the articles (full access is limited to subscribers):
Laura Weinrib (University of Chicago), "The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech."
Carolyn Steedman (University of Warwick), "At Every Bloody Level: A Magistrate, a Framework-Knitter, and the Law."

Joshua Stein (UCLA, PhD, Yale Law School, JD candidate), "Privatizing Violence: A Transformation in the Jurisprudence of Assault."

David G. Barrie (University of Western Australia), "Anglicization and Autonomy: Scottish Policing, Governance and the State, 1833 to 1885."

Jeffrey S. Adler (University of Florida), "'The Killer Behind the Badge': Race and Police Homicide In New Orleans, 1925–1945."

Stefan Slater (independent scholar), "Lady Astor and the Ladies of the Night: The Home Office, the Metropolitan Police and the Politics of the Street Offences Committee, 1927–28."

Ian C. Pilarczyk (Boston University), "'So Foul A Deed': Infanticide in Montreal, 1825–1850."  (Pilarczyk's article is here.)
Stay tuned for coverage of this issue's book reviews.

Sunday, April 29, 2012

The Great Outdoors: This Week in the Book Pages

"In 1823 a trapper along the Missouri River named Hugh Glass was horribly mauled by a grizzly bear and left for dead by his hunting party. But he didn't die." So begins the Wall Street Journal review of Here Lies Hugh Glass: A Mountain Man, a Bear, and the Rise of the American Nation (Hill & Wang), by Jon T. Coleman. Legend has it that
[Glass] crawled for miles, eating bugs and carrion, and kept himself alive with rage until he had recovered enough to hike 200 miles to the nearest fort. Later, he tracked down some of the men who had left him for dead—but instead of exacting revenge, as he had set out to do, he merely told them off.
Coleman (Notre Dame) "uses the Glass saga as the jumping off point for a vigorously written meditation on 19th-century America's encounter with the wilderness." Ultimately, Coleman advances a claim about "the meaning of the West to America's identity."

Also in the WSJ: reviews of A Disposition to Be Rich: How a Small-Town Pastor's Son Ruined an American President, Brought on a Wall Street Crash, and Made Himself the Best-Hated Man in the United States (Knopf), by Geoffrey C. Ward (here), and The Years of Lyndon Johnson: The Passage of Power (Knopf), by Robert Caro (here).

The Los Angeles Times covers (here) American Canopy: Trees, Forests and the Making of a Nation (Scribner), Eric Rutkow. The book analyzes "how North American virgin forest gave rise to a new nation, and how the U.S. has reduced that resource from close to a billion acres of ancient woodland to what is now more like 750 million acres of often young trees." Reviewer Emily Green wishes that there was more evidence of actual interaction with the forests ("one can't be sure if [Rutkow] knows a cedar from a pine") and criticizes the book's lack of attention to Native American forestry practices.

The Browser has an interview with legal historian Ken Mack (Harvard Law School), on his new book Representing the Race (Harvard University Press). Here's a snippet:
Q: What did you learn about the relationship between race and the law by writing it? 
A: By looking at the civil rights struggle through the lives of black civil rights lawyers we learn about the contested nature of racial identity, even in an era where segregation was supposed to make race into something fixed, not fluid.
Mack also recommends five books on the construction of race in America.

The New Republic: The Book spotlights (here) Kiev 1941: Hitler's Battle for Supremacy in the East (Cambridge University Press), by David Stahel. Reviewer Richard J. Evans praises Stahel's "realism," which "refreshingly prevents him from following traditional military historians’ often overly positive and simplistic descriptions of 'great' generals and 'decisive' battles."

Also in TNR: Eric Posner reviews (here) Uncontrolled: The Surprising Payoff of Trial-and-Error for Business, Politics, and Society (Basic Books), by Jim Manzi. It is a plea for policymakers to utilize empirical research -- specifically, randomized field trials -- in their decisionmaking. Paul Starr covers (here) two books on compromise: Avishai Margalit's On Compromise and Rotten Compromises and Amy Gutmann and Dennis Thompson's The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It, both from Princeton University Press.

A few other book-related tidbits from around the web:
  • In the book pages of the New York Times, Madeleine Albright discusses (here) the books she loves, those that "try [her] patience," and the one she would require the president to read. Her new memoir is forthcoming.

Saturday, April 28, 2012

On the LHB Facebook Page: International Law

If you missed it on the Facebook page this past week, here are some of our suggested readings on courts and judges: Dan Ernst on James F. Simon’s FDR and Chief Justice Hughes, and more on Justice Hughes here.  Plus, some Constitutional history classics from Barry Cushman and transcriptions of Harlan's lectures on Constitutional Law.

This week on the blog, we noted some interesting new work on international law including a really great AHR forum on "Liberal Empire and International Law."   On the Facebook page, we'll have more suggested readings and sources on international law this week starting with Jenny Martinez's, The Slave Trade and the Origins of International Human Rights Law recently published by Oxford University Press.

Chafetz on the House of Commons in Late-Tudor England

Josh Chafetz, Cornell Law School, has posted 'In the Time of a Woman, Which Sex Was Not Capable of Mature Deliberation': Late-Tudor Parliamentary Relations and Their Early-Stuart Discontents.  It is forthcoming in the Yale Journal of Law and the Humanities (volume 25).  Here is the abstract:
The English Civil War is one of the seminal events in Anglo-American constitutional history. Oceans of ink have been spilled in debating its causes, and historians have pointed to a number of salient cleavages along economic, social, political, and religious lines. But a related, and equally important, question has gone largely ignored: what allowed the House of Commons, for the first time in English history, to play the lead role in opposing the Crown? How did the lower house of Parliament develop the constitutional self-confidence that would allow it to organize the rebellion against Charles I?

This Article argues that developments in parliamentary procedure beginning in the late-Tudor period — a period in which the House of Commons has traditionally been seen as completely subservient to the Crown — allowed the House to develop the language and conceptual categories that it would later use to oppose the early Stuart monarchs. By asserting exclusive jurisdiction over its own composition and over contempts committed against itself, the House of Commons in the late-Tudor period asserted a new constitutional role. No longer content to act as the servant of the Crown, the House began to see itself as an independent power in the state, capable of protecting itself and acting on its own behalf. The first two Stuart kings pushed back against the House’s newfound role, attempting to reassert its older role as an element of royal governance. But the House now had the tools and the language to resist this attempt at retrenchment. Ultimately, when Charles would not back down, those same tools were used to bring him down.

This parliamentary mobilization had significant and lasting constitutional consequences, both for England and for the new constitutional order drafted by rebellious former colonies across the Atlantic.

Friday, April 27, 2012

Dudziak to Emory!

Congratulations to Emory University School of Law, where, as announced in passing here, the new dean Robert Schapiro has brought our own Mary Dudziak to the faculty.  More details to follow as they become public!

IntLawGrrls explains that Mary "will take up a chaired professorship and serve as inaugural Director of the Project on War and Security in Law, Culture and Society."  More

And now we have Mary's own explanation on Balkanization and Emory Law's press release.

2012 Hiring Update: Lovelace to Indiana

Tim Lovelace (image credit)
Congratulations to Herbert Timothy Lovelace, Jr. (JD/PhD, University of Virginia), who will join the Indiana University-Bloomington Maurer School of Law this fall as an Associate Professor! He will teach courses in American legal history, race and law, and constitutional law.

Lovelace has just completed his dissertation, titled "International Legal History from Below: The Civil Rights Movement and the U.S. Origins of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1960-1965," which "explores how civil rights activists in the U.S. South informed the development of ICERD, the United Nations’ most comprehensive treaty on race." Here's more:
The dissertation demonstrates that at times, it is difficult, if not impossible, to understand the how the Convention developed without also understanding U.S. racial politics in the early to mid-1960s. Morris Abram, the U.S. expert on the United Nations Sub-Commission for Prevention of Discrimination, and Clyde Ferguson, the U.S. alternate to the Sub-Commission, served as the primary drafters of the Convention, and when presented with the opportunity to draft an international treaty on race, they attempted to create a treaty largely in the image of the Civil Rights Act of 1964. Furthermore, the dissertation seeks to contribute to the transnational turn in civil rights studies by detailing the relationship between local activism and international lawmaking.
You can get a glimpse of the larger argument in Lovelace's forthcoming article in the Law and History Review.

Lovelace also has a second book project in the works, on the National Association for the Advancement of Colored People (NAACP). In Lovelace's words:
[T]he book will chronicle the law practices and civil rights activities of a network of attorneys affiliated with the Virginia State Conference of the NAACP. The Virginia chapter was arguably the most successful and best organized, state chapter of the NAACP during the civil rights movement, and African-American lawyers were central to the chapter’s success. While the extant scholarship on civil rights lawyering in Virginia has largely focused on the fallout from the state’s school equalization and desegregation battles, the book will consider the efforts of Virginia NAACP attorneys in a host of often overlooked facets of the freedom struggle—issues such as environmental racism, public health, and human rights advocacy. The book will also explore how the NAACP’s federated structure allowed Virginia’s star-studded, legal team, for better or worse, to play a central role in creating an enduring model for civil rights practice.
Congratulations to Tim Lovelace!

de la Rasilla del Moral on Spanish International Law

Ignacio de la Rasilla del Moral, European University Institute; New York University (NYU) - Florence, has posted The Fascist Mimesis of Spanish International Law and its Vitorian Aftermath, which also appears in Journal of the History of International Law 4 (2012).  Here is the abstract:
The figure and works of Francisco de Vitoria, the father of international law, have fascinated generations of non Spanish international legal scholars - past and present. These range from classic figures as diverse as the founder of the American Society of International Law, James Brown Scott, or the Crown Jurist of the Third Reich, Carl Schmitt, to the recent post-colonial approaches to international law proposed by Antony Anghie or the most recent inquiries of Martti Koskenniemi on the private law underpinnings that for the universal ordering of international relations were contained in the work of the Spanish Scholastics of the sixteenth century. In this work, which is part of an on-going series, I examine how a climate of severe intellectual repression and organically nationalist-directed scientific work in Spain and the nationalist reaffirmation of a culture grounded in Catholic conservatism and traditionalism fostered the adoption of a marked thematic orientation towards natural law and the reinstatement of the Siglo de Oro's Salamanca School among Spanish international lawyers after the Fascist Mimesis of Spanish International Law.

CFP: The Cold War Seminar at NYU

[We have the following call for papers.]

New York University's Center for the United States and the Cold War invites New York metropolitan area based scholars to submit proposals to present at the Center's seminar series. The Cold War seminar is a venue for work in progress. The seminar is interdisciplinary and
international in scope. All papers are pre-circulated.

We are interested in projects that explore the ways in which the ideological and geopolitical conflict between the Soviet Union and the United States affected politics, culture, and society throughout the world.  Proposals that focus on the impact of the Cold War on political economy, the national security state, civil rights, civil liberties, labor relations, and gender relations are welcomed, as are projects that that see the central issue as U.S., Soviet, and European response to revolutionary nationalism and decolonization.

The Center is a joint project of Faculty of Arts and Science and the Tamiment Library, a special collection at NYU documenting the history of Labor and the Left.

The Center will reimburse presenters' travel expenses. However, due to budget cutbacks we cannot offer hotel accommodations. We can offer a modest honorarium.

Please submit a one-page abstract and current CV by June 1st to Zuzanna Kobrzynski at

Thursday, April 26, 2012

Call for Papers: Teaching Legal History in U.S. Law Schools

[We have the following call for papers from the Advisory Board of the American Journal of Legal History.]

The American Journal of Legal History will publish a symposium issue on teaching legal history in its October 2013 issue. If you are teaching a legal history course in a United States law school, you are invited to contribute a piece by May 1, 2013. Here's what you need to know:

1) Essays cannot exceed 1,500 words and should describe how you teach the course and why you teach it as you do. The word length will be strictly enforced and footnotes, if any, should be kept to a minimum.

2) While we're open to a wide variety of styles and approaches, we really want practical (as opposed to theoretical) pieces. In other words, we want to know what people are really doing in their classrooms when they teach legal history.

3) Although we appreciate that many folks include a lot of legal history in their non-legal history courses (particularly if they teach, for example, constitutional law), this symposium is limited to actual legal history courses.

4) We've come up with a sample paper that shows what we're looking for. Please e-mail Bob Jarvis, the Journal's Advisory Board chair, for a copy by contacting him at

5) While we don't know the exact number of papers that we are going to publish, we are shooting for around 30 pieces, so if you contribute a piece there's a very good chance it will be accepted.

6) Lastly, the symposium will lead off with a piece that traces the evolution of legal history courses in U.S. law schools.

AJLH 52:2 (April 2012)

Here's the table of contents for the American Journal of Legal History, volume 52, issue 2 (April 2012):

Getting "Delisted": The Independent Socialist League's [Ultimately] Successful Challenge to the "Attorney General's List of Subversive Activities," 1948-1958, by Robert Justin Goldstein

The Origin of Privacy as a Legal Value: A Reflection on Roman and English Law, by Bernardo Periñán

Book Reviews

William P. Cahill and Robert M. Jarvis, Out of the Muck: A History of the Broward Sheriff's Office, 1915-2000, by Mitchel P. Roth

María M. Carrión, Subject Stages: Marriage, Theatre, and the Law in Early Modern Spain, by Taylor Simpson-Wood

Mark Cooney, Is Killing Wrong? A Study in Pure Sociology, by Samuel H. Pillsbury

Susan L. Crockin and Howard W. Jones, Jr., Legal Conceptions: The Evolving Law and Policy of
Assisted Reproductive Technologies, by Susan B. Apel

Leo Damrosch. Tocqueville's Discovery of America, by Martin Rogoff

Donald L. Drakeman, Church, State, and Original Intent, by C.M.A. McCauliff

Daniel L. Dreisbach, Mark David Hall, and Jeffrey H. Morrison (eds.), The Forgotten Founders on Religion and Public Life, by David K. DeWolf

Daniel L. Dreisbach and Mark David Hall (eds.), The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding, by Richard Collin Mangrum

John P. Enyeart, The Quest for "Just and Pure Law": Rocky Mountain Workers and American Social Democracy, 1870-1924, by  Harry F. Tepker, Jr.

Crystal N. Feimster, Southern Horrors: Women and the Politics of Rape and Lynching, by Michele Alexandre

Eric Foner (ed.), Our Lincoln: New Perspectives on Lincoln and His World, by Mark E. Steiner

Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, by Helena Silverstein

Martin H. Redish, Wholesale Justice: Constitutional Democracy and the Problem of the Class
Action Lawsuit by John Bronsteen

Mark Rifkin, Manifesting America: The Imperial Construction of U.S. National Space by Robert J. Miller

Christian G. Samito (ed.), Changing in Law and Society During the Civil War and Reconstruction: A Legal History Documentary Reader, by Tom Reed

Steve Sheppard, I Do Solemnly Swear: The Moral Obligations of Legal Officials, by Christopher J. Roederer

Thomas P. Slaughter, The Beautiful Soul of John Woolman, Apostle of Abolition, by Kristin A. Olbertson

Adriane Lentz-Smith, Freedom Struggles: African Americans and World War I, by Calvin L. Lewis

Robert J. Spitzer, Saving the Constitution From Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, by Cameron Stracher

Historical takes on Arizona v. United States

With Arizona v. United States argued in the Supreme Court this week, there has been helpful historical commentary relevant to the case.  At PrawfsBlawg, Jack Chin writes:
Not surprisingly, the United States and a number of amici in Arizona v. United States rely on the 1876 decision of Chy Lung v. Freeman, and it goes unmentioned in Arizona's brief. The Chy Lung Court unanimously invalidated California's efforts to suppress Chinese immigration, concluding that immigration was an area of exclusive federal authority: “the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.” A companion case, Henderson v. New York, invalidated a similar New York law allegedly justified by the police power, explaining that "no definition of [the police power], and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution."

I wish one of the amici had mentioned that Congress agreed.
Continue reading here.

Meanwhile, historian Paul Kramer has a narrative account of Chy Lung in Slate.  And Jack Chin has a roundup of recent academic commentary on U.S. v. Arizona.  There is more on SCOTUSblog.

Wednesday, April 25, 2012

Hicks, "Talk with You Like a Woman"

A recent H-Law review reminded me to spotlight Cheryl Hicks's prize-winning book Talk with You Like a Woman: African American Women, Justice, and Reform in New York, 1890-1935 (UNC Press, 2011). Hicks is an associate professor of history at the University of North Carolina, Charlotte. Here's an overview from the Press:
. . . Cheryl Hicks brings to light the voices and viewpoints of black working-class women, especially southern migrants, who were the subjects of urban and penal reform in early-twentieth-century New York. Hicks compares the ideals of racial uplift and reform programs of middle-class white and black activists to the experiences and perspectives of those whom they sought to protect and, often, control.
In need of support as they navigated the discriminatory labor and housing markets and contended with poverty, maternity, and domestic violence, black women instead found themselves subject to hostility from black leaders, urban reformers, and the police. Still, these black working-class women struggled to uphold their own standards of respectable womanhood. Through their actions as well as their words, they challenged prevailing views regarding black women and morality in urban America. Drawing on extensive archival research, Hicks explores the complexities of black working-class women's lives and illuminates the impact of racism and sexism on early-twentieth-century urban reform and criminal justice initiatives.
Cheryl D. Hicks (image credit)
And a blurb:
"This creative, cross-disciplinary book will make significant contributions to African American and women's history, as well as sociology and legal studies. Hicks brings a fresh perspective to under-researched topics and much-needed revision to long-held assumptions about the dynamics of class and moral reform issues among African Americans."
--Tera Hunter
Here's a snippet of the H-Law review, by Lisa Dorr:
Hicks uses the records of reformers and the criminal justice system to make her case, inviting criticism that the women she analyzes, because of their presence in reform institutions, are not representative of the experiences of the majority of African Americans in New York at the time. She counters this challenge by suggesting that the experiences of these women reflect the common dilemmas that working-class women faced. While winding up in prison might not have been the most common result, the details in the case files nonetheless put the lives of working-class black women under the microscope, giving us the fuller picture of the struggles, strategies, and strivings of these women.
Read on here.

Am. Hist. Rev. Forum: “Liberal Empire and International Law”

The most recent issue of the American Historical Review (Feb. 2012) includes a forum that may be of interest to many readers. The forum's contents are described below; the journal issue containing the forum is available free online to subscribers (and to others for a fee) here.
The history of empires and imperialism has long been a prominent theme in history of all periods, but with the advent of transnational history, its centrality is greater than ever. For the most part, however, the emphasis has been on the dynamics of conquest, colonization, exploitation, and the modalities of imperial rule. And yet, despite the fact that coercion fundamentally characterized the relations between the agents of imperial power and subject peoples, Western nations with imperial ambitions were also committed to the rule of law, or at least were sensitive to the contradiction between lawless conquest and constitutional rule.

This AHR Forum, “Liberal Empire and International Law,” confronts aspects of that contradiction from three perspectives. In “The Liberal Traditions in the Americas: Rights, Sovereignty, and the Origins of Liberal Multilateralism,” Greg Grandin (NYU--history) begins by suggesting that one aspect of the much-celebrated “exceptionalism” of the United States is rarely noted: its unique relationship to Latin America. Other world powers, such as France, Holland, and Great Britain, ruled over culturally, racially, and religiously distinct peoples, whom, moreover, they regarded as such. The settlers who colonized North America, by contrast, looked to Iberian America not as fundamentally “other” but as a competitor in a struggle to define a set of nominally shared—and also contested—values and political concepts: Christianity, republicanism, liberalism, democracy, sovereignty, rights, and, above all, the very idea of “America.” After the republican revolutions of the late eighteenth and early nineteenth centuries, the relationship between the U.S. and the new nations of Spanish America was characterized by both contention and intimacy—a rivalry over a shared republican legacy. To be sure, England's rule over its “Celtic fringe,” especially Ireland and Scotland, produced a somewhat similar relationship, which ultimately generated the legal basis for the latter British Empire. But in the Americas, the relationship between the U.S. and Latin American nations was played out over a longer period of time and across much vaster spaces, yielding a unique and complex history. Grandin's essay compares and contrasts the two sides of this rivalry, focusing especially on the contested notions of rights and sovereignty.

In “Empire and Legal Universalisms in the Eighteenth Century,” Jennifer Pitts (Univ. Chicago--political science) looks at various figures who commented critically from a legal perspective on European imperialism. She notes that throughout the modern period, the law of nations has been both distinctively European and universal in its aspirations. Its possible or practical universality, however, has been a vexed issue, with significant moral and political implications. Over the course of the nineteenth century, the consensus among all but a few Western European jurists was that international law, though exclusively European in origin, was authoritative for all: Europeans could and should dictate the terms of legal interaction to so-called backward peoples. For a brief period in the eighteenth century, however, there flourished largely forgotten critical approaches to the question of the scope of the European law of nations and the nature of legal relations between European and non-European states and peoples. These approaches regarded a global legal order, or a network of orders, as a constraint on the exercise and abuse of European states' power. Pitts focuses on the writings and interventions of a range of European figures, including Edmund Burke, the French orientalist Abraham Hyacinthe Anquetil-Duperron, and the influential Admiralty Court judge William Scott, Lord Stowell.

In “Liberalism and Empire in Nineteenth-Century International Law,” Andrew Fitzmaurice (Univ. Sydney--history) continues along the lines of demonstrating the critical possibilities of liberalism and law in relationship to imperialism. For the most part, he notes, international law was employed to justify the domination of European states over the rest of the world. And it is assumed that the liberal apology for empire reached its apotheosis in the nineteenth century to carve up the globe. His article examines the debates over the justice of empire in international law and diplomacy in just this period. The debates focused on the Berlin Conference of 1884–1885 over the partition of Africa in general and the colonization of the Congo in particular. In this context, liberal international lawyers developed a new legal vocabulary to justify the expansion of empire. But some also opposed empire, giving rise to an opposition that only strengthened as the race for empire gathered pace. The opposition was based not on humanitarian sentiment (which, in fact, often served as an apology for imperial rule), but rather on self-interested concerns about the security of liberal reforms and revolutionary changes within Europe. Evoking the concerns about empire and imperialism in the present, Fitzmaurice concludes by reminding us that while the liberal tradition has often justified expansionism, it also contains the resources to oppose it.

In his Forum comment, “Empire and Its Anxieties,” Anthony Pagden (UCLA--political science & history) provides a learned survey of the history of imperial rule and empires with an emphasis, in keeping with the theme of this forum, on both the law of nations and international law. He plays on the distinction, brought out in Pitts's and Fitzmaurice's articles, between European empires before the nineteenth century, where cosmopolitan attitudes, moral concerns, migration from the metropole, and the potential for mutuality characterized overseas settlements; and those of the later period, where international law legitimizing the right to occupy and colonize prevailed over all other considerations. The key to this difference, he argues, is to be found in the liberal revolutions of the late eighteenth and early nineteenth centuries, which joined rights with citizenship in the nation-state, for it was sovereignty that conferred the legal status by which non-European peoples were found lacking and thereby were subject to conquest. As products of those revolutions, the new nations of the Americas had even less claim to empire than their European counterparts. Nevertheless, they still were confronted with peoples and lands that had to be incorporated into the nation-state, although not through the kind of imperial conquest that would have entailed shared sovereignty. Instead, the U.S., at least, has either relied upon de facto justifications for intervention or foreign occupation, or “fallen back on robustly Roman declarations of political and cultural superiority in defense of supposedly universal political values.” The result, Pagden concludes, has led us to the present, where “the old anxieties about the consequences for the metropolis of what its citizens do in its name beyond its frontiers have become even more acute today than they were for Edmund Burke.”

Tuesday, April 24, 2012

Stern on the 18th-Century Copyright Debate

Simon Stern, Faculty of Law, University of Toronto, has posted 'Room for One More': The Metaphorics of Physical Space in the Eighteenth-Century Copyright Debate, which will also appear in Law and Literature 24 (Summer 2012).  Here is the abstract:    
This article focuses on literary texts and writings by copyright polemicists – those arguing for and against stronger copyright protection during the eighteenth century. The metaphor of the text as a tract of land has been cited by other commentators on copyright history, but has not been examined closely. Working through a series of writings on imitation and derivative use, the article shows how the metaphor seemed initially to provide an ideal basis for demanding stronger copyright protection and for policing piracy and derivative uses more aggressively, but turned out, in some writers’ hands, to offer yet another means of portraying the literary marketplace as endlessly expansive. Henry Fielding, in his literary journalism, insisted that there was always “room for one more” even in a crowded marketplace, and he invoked a series of legal doctrines to defend the practice of intercommoning and even poaching on a “neighbour” writer’s land. Far from dictating a particular view of the law, the metaphors of copyright are always capable of being revised and reinterpreted to support the writer’s own perspective.

Dorsen on Friendly: The CNN Interview

Tomiko Brown-Nagin has already posted LHB's notice of David M. Dorsen's  Henry Friendly, Greatest Judge of His Era. by David M. Dorsen. The transcript of a recent CNN interview with Dorsen is here; my own post on Friendly's choice of private practice over public service early in his career is here.

Peller's "Critical Race Consciousness"

My Georgetown Law colleague Gary Peller has published an account of Critical Race Theory with a strong historical dimension.  It is Critical Race Consciousness: Reconsidering American Ideologies of Racial Justice (Paradigm Press).  Here’s the press’s squib:
Despite the apparent racial progress reflected in Obama’s election, the African American community in the United States is in a deep crisis on many fronts—economic, intellectual, cultural, and spiritual. This book sets out to trace the ideological roots of this crisis. Challenging the conventional historical narrative of race in America, Peller contends that the structure of contemporary racial discourse was set in the confrontation between liberal integrationism and black nationalism during the 1960s and 1970s. Arguing that the ideology of integrationism that emerged was highly conservative, apologetic, and harmful to the African American community, this book is sure to provide a new lens for studying—and learning from—American race relations in the twentieth century.
Georgetown's press release is here.  It reproduces blurbs from Cornel West ("a profound inquiry into the prevailing frameworks through which we understand race in America"), Kimberlé Crenshaw ("a must-read for anyone interested in understanding the link between critical race theory and radical social thought more generally"), and Duncan Kennedy ("Peller's brilliant critique of color blindness and his case for race consciousness are more important and valuable than ever”).

Monday, April 23, 2012

Hull's "The Woman Who Dared to Vote"

A Rutgers press release has drawn my attention to the publication of The Woman Who Dared to Vote: The Trial of Susan B. Anthony, by N.E.H. Hull, Rutgers-Camden [now and forever] Law.  The book is the latest in the University Press of Kansas's series, "Landmark Law Cases and American Society."
Just as the polls opened on November 5, 1872, Susan B. Anthony arrived and filled out her "ticket" for the various candidates. But before it could be placed in the ballot box, a poll watcher objected, claiming her action violated the laws of New York and the state constitution. Anthony vehemently protested that as a citizen of the United States and the state of New York she was entitled to vote under the Fourteenth Amendment. The poll watchers gave in and allowed Anthony to deposit her ballots. Anthony was arrested, charged with a federal crime, and tried in court.

Primarily represented within document collections and broader accounts of the fight for woman suffrage, Anthony's controversial trial-as a landmark narrative in the annals of American law-remains a relatively neglected subject. N. E. H. Hull provides the first book-length engagement with the legal dimensions of that narrative and in the process illuminates the laws, politics, and personalities at the heart of the trial and its outcome.

Hull summarizes the woman suffrage movement in the post-Civil War era, reveals its betrayal by former allies in the abolitionist movement, and describes its fall into disarray. She then chronicles Anthony's vote, arrest, and preliminary hearings, as well as the legal and public relations maneuvering in the run-up to the trial. She captures the drama created by Anthony, her attorneys, the politically ambitious prosecutor, and presiding judge-and Supreme Court justice-Ward Hunt, who argued emphatically against Anthony's interpretation of the Reconstruction Amendments as the source of her voting rights. She then tracks further relevant developments in the trial's aftermath-including Minor v. Happersett, another key case for the voting rights of women-and follows the major players through the eventual passage of the Nineteenth (or "Susan B. Anthony") Amendment.

Hull's concise and readable guide reveals a story of courage and despair, of sisterhood and rivalry, of high purpose and low politics. It also underscores for all of us how Anthony's act of civil disobedience remains essential to our understanding of both constitutional and women's history-and why it all matters.
The blurbs:
    "A truly refreshing, invigorating, and spirited story! Hull's close legal study of the charges against Anthony breaks new ground and significantly enlarges our understanding of her trial, its degeneration into a theater of the absurd, and its setback for U.S. women's rights and recognition as citizens. A must read for students of women's history and law alike."-Kathleen Barry, author of Susan B. Anthony: A Biography of a Singular Feminist

    "Anthony's trial comes to life in this readable and absorbing account. Hull provides not just new information, but context and setting as well. . . . A significant contribution."-Jean H. Baker, author of Sisters: The Lives of America's Suffragists
In the Rutgers press release, Professor Hull explains that the "book had been one of those bucket list projects I'd always wanted to do. The woman suffrage issue was critical to the women's movement in the 19th century and Susan B. Anthony had not yet become the face of woman suffrage. She was well known, but sometimes stood in the shadows of other women. It was this trial that pushed her to the forefront of the movement."

Kadens on "The Myth of the Customary Law Merchant"

Emily Kadens, University of Texas at Austin School of Law, who guest blogged here in February 2009, has posted The Myth of the Customary Law Merchant, which will also appear in the Texas Law Review 90 (2012).  Here is the abstract:
Legal scholars from many disciplines - including law and economics, commercial law, and cyber law - have for decades clung to the story of the so-called law merchant as unassailable proof that private ordering can work. According to this story, medieval merchants created a perfect private legal system out of commercial customs. As this customary law was uniformly and universally adopted across Europe, it facilitated international trade. The law merchant myth is false on many levels, but this Article takes aim at two of its fundamental principles: that uniform and universal customary merchant law could have existed and that merchants needed it to exist. The Article argues that the most widespread aspects of commercial law arose from contract and statute rather than custom. What custom the merchants applied often did not become uniform and universal because custom usually could not be transplanted and remain the same from place to place. Yet, the use of local custom did not hamper international trade because intermediaries such as brokers ensured that medieval merchants had no need for a transnational law.

Can Students Learn Law "Without Knowing One Whit of History"?

Last fall, the editors of the Fordham Urban Law Journal invited me to participate in the launch of their online component, City Square, with a response to one of the journal's most thought-provoking recent articles, Amy Wax's "Musical Chairs and Tall Buildings: Teaching Poverty Law in the 21st Century." I welcomed the opportunity to think carefully about my own approach to the course, particularly my commitment to a historically informed understanding of the design and operation of contemporary social welfare law. Wax's recently published reply, titled "The Limited Utility of History in Poverty Law Education," reminded me that my conclusion is far from obvious to other legal academics. Here's an overview of the conversation, which illustrates differences of opinion that extend beyond this particular course and merit legal historians' consideration.

The Fraas/CRL Report on Legal History Databases

Mitch Fraas, Judith and William Bollinger Fellow in Library Innovation, University of Pennsylvania Libraries, has drawn our attention to the Center for Research Libraries' posting of a “broad-brush summary of the world of legal history databases” it commissioned him to write.  The report provides a comparative analysis of what is held in different databases (including an appendix with coverage areas in U.S. law) as well as some suggestions for future work.”  At CRL’s request, he has also written two more detailed reviews of LLMC-Digital and HeinOnline.  Fraas writes that “CRL would love feedback from anyone in the field with comments or examples of how particular electronic resources are changing their work or have suggestions about strengths and weaknesses in the world of digitized primary sources for legal history research.”  He may be reached at fraas at

See the Rechtsgeschiedenis Blog for The Wealth of Sources: Comparing Legal History Databases, a thoughtful essay on commercial databases for legal history.

Sunday, April 22, 2012

OAH Prizes to Brown-Nagin, Mayeri, Willrich, and others

It has been a banner year for legal history at the Organization of American Historians annual meeting, with 2012 book, article and dissertation prizes going to legal history luminaries Tomiko Brown-Nagin, Serena Mayeri, Michael Willrich, and others. Hat tip to HNN.  Here are the prizes.

Liberty Legacy Foundation Award: Tomiko Brown-Nagin, University of Virginia. Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement

Lawrence W. Levine Award: Michael Willrich, Brandeis University. Pox: An American History

Darlene Clark Hine Award: Serena Mayeri, University of Pennsylvania Law School. Reasoning from Race: Feminism, Law, and the Civil Rights Revolution

Merle Curti Award: Susan J. Pearson, Northwestern University. The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America

Richard W. Leopold Prize: William A. Dobak, U.S. Army Center of Military History (retired). Freedom by the Sword: The U.S. Colored Troops, 1862-1877

Lerner-Scott Prize: Katherine Turk, University of Chicago. "Equality on Trial: Women and Work in the Age of Title VII" (best doctoral dissertation in U.S. women's history)

Louis Pelzer Memorial Award: Hidetaka Hirota, Boston College. "The Moment of Transition: State Officials, the Federal Government, and the Formation of American Immigration Policy." (Scheduled to appear in the March 2013 Journal of American History)

Binkley-Stephenson Award: Kevin J. Mumford, University of Iowa. "The Trouble with Gay Rights: Race and the Politics of Sexual Orientation in Philadelphia, 1969-1982 (best article in Journal of American history)

The full list of awards given out at this year's annual meeting is here. Warm congratulations to all!

War, Faith, Immortality, and More: This Week in the Book Pages

Diplomatic history dominates this week's book pages. Michael Kimmage, writing for The New Republic: The Book, reviews Sword of the Spirit, Shield of Faith: Religion in American War and Diplomacy (Knopf), by Andrew Preston. Here's a taste:
Preston charts the scope and the centrality of religion in American politics, from the seventeenth century to the present. This book merges American history with the history of Christianity, and in doing so it qualifies the story of Christian empire. Unlike the Christian empires of the past, America has never had an established church. Nor did the American Revolution result in empire. The animating spirit behind much of Preston’s narrative is Christian republicanism, and no Christian republic has ever had the territory or the influence or the power that the United States would come to possess.          
One of the book's central questions is why “U.S. foreign policy has often acquired the tenor of a moral crusade.” Read on here.

The Nation covers (here) three books on "the Soviet experience in Afghanistan," including A Long Goodbye: The Soviet Withdrawal from Afghanistan (Harvard University Press), by Artemy Kalinovsky.

In the New York Times, recent Pulitzer prize winner John Lewis Gaddis reviews Eisenhower in War and Peace (Random House), by Jean Edward Smith. Here's Gaddis's takeaway:
Eisenhower’s greatest accomplishment may well have been to make his presidency look bland and boring: in this sense, he was very different from the flamboyant Roosevelt, and that’s why historians at first underestimated him. Jean Edward Smith is among the many who no longer do. The greatest virtue of his biography is to show how well Eisenhower’s military training prepared him for this task: like Grant, he made what he did seem easy. It never was, though, and Smith stresses the toll it took on Eisenhower’s health, on his marriage and ultimately in the loneliness he could never escape.
Also reviewed in the NYT: The Presidents Club: Inside the World’s Most Exclusive Fraternity (Simon & Schuster), by Nancy Gibbs and Michael Duffy (here).

China on the eve of World War Two is the setting of an "engrossing true-life murder mystery" reviewed this week in the Wall Street Journal, here. In Midnight in Peking (Penguin), independent scholar Paul French recounts the circumstances surrounding the 1937 murder of the daughter of a retired British consul.

The New York Review of Books, by contrast, looks inward, toward the most important domestic conflicts of the day. The lead article in the May 10 issue is "Why the Mandate is Constitutional," by Ronald Dworkin.

Also not to be missed: Andrew Hacker's essay on "The White Plight," which reviews Charles Murray's Coming Apart and Timothy Noah's The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It (Bloomsbury).

Finally, a few book-related gems from around the web:

"Will it be possible to live forever?" In an interview with The Browser, Stephen Crane discusses his new book, Immortality: The Quest to Live Forever and How It Drives Civilization, and recommends five other books on the topic.

In the Wall Street Journal, Anna Quindlen discusses "the agony of writing." I love this nugget: "[H]ow you start each day depends on how you finished the day before. . . . I always stop in mid-sentence. Starting a new chapter or a new paragraph first thing in the morning might be too much to bear. But I can always manage to finish a sentence. And one sentence has a way of following another if everything else around me is routine enough."

The Historical Society has a nice post on the ongoing conversation between Ross Douthat, author of the new release Bad Religion: How We Became a Nation of Heretics (Free Press), and David Chappell, author of A Stone of Hope: Prophetic Religion and the Death of Jim Crow (University of North Carolina Press, 2003).

Do you believe in discovering, correcting, and publicly airing factual errors? The New Yorker does, too. Enjoy some of the magazine's greatest hits, here. (hat tip: bookforum)

Saturday, April 21, 2012

Weekend Roundup

  • Around the ColloquiaJohn Comaroff, Chicago Anthropology, presented “Divine Detection: Crime and the Metaphysics of Disorder,” in the workshop of USC’s Center for Law, History and Culture.  Hat tip: Legal Scholarship Blog.  [Update.  My mistake: Professor Comaroff's talk will take place next year. See Mary's comment. DRE.]
  • Cambridge University Press is running a sale on its law books, including a number of legal history titles (through May 31, 2012).
  • An HNN interview of Heather Ann Thompson treating a panel at the OAH Annual Meeting entitled "From the War on Poverty to the War on Crime: The Rise of Punitive Policy at the Federal, State, and Local Levels" is here.
  •  Lone Star Law by Michael Ariens has been awarded the Texas State Historical Association’s Coral Horton Tullis Memorial Prize for best nonfiction book for 2011. It has also been  awarded the 2012 Ray and Pat Browne Award for the Best Reference/Primary Source Work  published in 2011 by the Popular Culture/American Culture Association. Finally, it is one of three finalist for the Texas Institute of Letters Carr P. Collins Award for best nonfiction book of 2011.
  • An H-Diplo review by Joseph Margulies (Northwestern University) of Mary Dudziak's Wartime has been cross-posted on H-Law. 
  •  John Conyers Jr., a 24-term Congressman from Michigan, has agreed to donate his papers to the Damon J. Keith Law Collection of African American Legal History at Wayne State University Law School, from which he graduated in 1958. 
  • Michael Zuckert, political science professor at the University of Notre Dame, presents "Brown vs. the Board of Education - 55 years later" on Monday [April 23] at 7 p.m. in the McGlinn Conference Center, . . . at Alvernia University" in Reading, Pennsylvania.  Hat tip: Reading Eagle.
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, April 20, 2012

On the LHB Facebook Page: Courts and Judges

This week on the LHB Facebook Page, we’ll have suggested readings and sources on courts and judges including this post by guest blogger Jed Shugerman on his new book, The People’s Courts: Pursuing Judicial Independence in America.    

If you missed our picks on corporations this past week, check out the sources at  the SEC Historical Society Archives and some vintage Hovenkamp on the Classical Corporation in American Legal Thought.

And if you haven't joined us on Facebook yet, click here to get all the LHB posts in your newsfeed.

DC Area Legal History Roundtable at CUA

This semester's meeting of the DC Area Legal History Roundtable was hosted by the Catholic University of America.  A press release explains:
As is true with many subjects, delve a little deeper into the history of the law and one is sure to unearth the unexpected, the controversial, the little-known, and the theoretically fascinating.
All of these facets of legal history were on display on April 13 as the Columbus School of Law hosted the annual  “D.C. Legal History Round Table,” an informal gathering of legal historians from around the country.
Organized by Catholic University law professors Geoff Watson, Ken Pennington, Cara Drinan, Megan LaBelle, and Sarah Duggin, the event drew about 25 participants and featured four presentations. In past years, most of the presenters have been local academics. This year, the D.C. Roundtable seemed to evolve into  more of a nationwide attraction.

Melish and Konefsky on Jackson's 1946 Reflections on Nuremberg

Tara J. Melish and Alfred S. Konefsky, both of SUNY Buffalo Law School, have posted Justice Jackson's 1946 Nuremberg Reflections at Buffalo: An Introduction, which will also appear in Buffalo Law Review 60 (April 2012 ).  Here is the abstract:
This Essay introduces the 2011 James McCormick Mitchell Lecture, “From Nuremberg to Buffalo: Justice Jackson’s Enduring Lessons of Morality and Law in a World at War,” a commemoration of Jackson’s 1946 centennial convocation speech at the University of Buffalo. It discusses Jackson’s speech, breaks down its thematic components, and situates the distinguished Mitchell Lecturers’ responses to it in context. Unlike Justice Jackson’s commanding and historic opening and closing statements as U.S. chief prosecutor at Nuremberg, Jackson’s 1946 speech, delivered just days after his return from Germany where he heard the Nuremberg Tribunal deliver its final judgment and verdicts, has largely been lost to historical memory. The Mitchell Lecture symposium — held on October 4, 2011, 65 years to the day from Jackson’s speech — was an attempt to restore that memory, providing an opportunity to assess Nuremberg through the eyes of Justice Jackson immediately after the event, while the images and experiences were still fresh in his consciousness. Long lost to history, the speech and its lessons deserve renewed attention today.
We've previously noted Mary Dudziak's contribution to this symposium.

Thursday, April 19, 2012

Hovenkamp on Morals Regulation and the Classical American State

Herbert J. Hovenkamp, University of Iowa College of Law, has posted The Classical American State and the Regulation of Morals.  Here is the abstract:
The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. Only a small portion of regulations were actually struck down by the courts on substantive due process grounds. But looking at sheer numbers hardly tells the story. The provisions that were struck down went to the heart of emerging class conflicts, particularly capitalist-employee relationships, including laws that established minimum wages or regulated working conditions. In general, if the courts saw a regulation as legitimately addressing a subject of “health, safety or morals” they let it stand. However, if they viewed it as an attempt to alter the balance between social classes, they were much more likely to strike it down.

The ideology of regulation’s critics shifted 180 degrees over the course of the nineteenth century. In the 1820s and 1830s the principal beneficiaries of regulation were thought to be the established classes who stood to gain from regulation that protected their investment. The loose affiliation of diverse outsiders that constituted Jacksonian democracy largely saw freedom from economic regulation as a device for opening up markets. By contrast, regulation of health, safety and morals remained relatively uncontroversial. Increasingly after the Gilded Age the rhetoric of regulation began to point at American business as the culprit in need of regulation, and laborers and to a lesser extent consumers as its beneficiaries. As a result the task of defending greater regulation fell to the Progressive coalition, while the more propertied classes tended to oppose it. Once again, however, Progressives as a group remained quite willing and even enthusiastic to regulate health, safety, and morals.

The great legal treatise writers of the Gilded Age – Thomas M. Cooley, John Dillon, Christopher Tiedeman, and later Ernst Freund – perpetuated these views. While they favored severe restrictions on government control of the economy generally, they consistently made exceptions for economic regulations that legitimately supported the state’s oversight of health, safety and morals. For example, they approved of decisions that permitted distilleries that were lawful when erected to be shut down without compensation, the regulation to oblivion of lotteries that were lawful when created, or laws that reduced the hours of labor by forcing businesses to close on Sunday even as the courts were striking down more general ten hours laws. In their famous “Brandeis Brief” in Muller v. Oregon (1908), which upheld a ten-hour law for women, Louis Brandeis and Josephine Goldmark were able to take advantage of this bifurcation by organizing their brief’s concerns around the classical exceptions for health, safety and morals.

CFP: British Legal History Conference

The Twenty-First British Legal History Conference
"Law and Authority"
University of Glasgow, 10-13 July 2013.

Proposals for papers (up to 500 words) are invited, to reach the organisers by 31 August 2012 via the conference email address at

A draft programme and details of registration and accommodation will be circulated early in 2013.

The conference theme of "law and authority" relates to how sources of law and frameworks for their application have related to underlying conceptions of authority, or to the authority of other institutions, processes or actors within the legal order.

The conference will address the ways law has been shaped historically by different forms and ideas of authority, and by assumptions, arguments and debates about the relationship between law and authority. The theme embraces the authority of lawyers, judges and jurists; law courts, legislatures and other institutions of governance; judicial decisions, legislation and codes; texts such as legal opinions, law reports and juristic treatises; records such as charters, court decrees and verdicts; rules, principles and precedents; forms of argument, interpretation and doctrinal categories; custom, social practice and myth; ideology, equity and wider traditions in intellectual history, legal and political thought.

Papers concerning all jurisdictions, branches of the law and historical periods are welcome. Ideally, papers should reflect the conference theme.

More details are here.

Kar on the Early Eastern Origins of Western Law and Western Civilization

Robin Bradley Kar, University of Illinois College of Law, has posted on SSRN a three-part study:  On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Legal and Cultural Origins.   Here's the abstract:
Western law and Western civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East” and explains many of their special capacities and characteristics. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western civilization finds its origins in ancient Greek, Roman, and Hebrew culture is, however, so familiar and so pervasive that it has rarely — until recently — been questioned in the West.

This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. If we are genuinely interested in understanding our origins in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western law and Western civilization are not just the outgrowths of three particularly creative cultures, which straddled the transition from human prehistory into human history and developed in either Southeastern Europe or the Near East. Rather, the West appears to be descended from a much deeper cultural tradition, which extends all the way back to some of our first human forays out of hunter-gatherer modes of subsistence and into settled agricultural living. The tradition in question began not in Greece, Rome, or Israel, however, but rather in and around the Indus Valley — which is a region that spans the Northwestern portions of the Indian subcontinent.

From approximately 4500 BC until approximately 1900 BC — and hence long before the rise of ancient Greece, Rome or Israel — the Indus Valley region gave rise to one of the very first large scale civilizations in our natural history as a species: the so-called “Harappan” Civilization. This civilization was also part of a much larger and highly integrated social complex, with strong ties to ancient Bactria and the eastern parts of modern day Iran. (Because this region does not correspond to contemporary political boundaries, I call it the "Eastern-Iran-Bactria-Indus-Valley" Region.) In this Article, I argue that this ancient socio-cultural complex is most likely the actual source of a range of important Western traditions. Through an unbroken chain of cultural transmission that has operated through an immense number of generations, we have likely inherited an important set of traditions from this ancient socio-cultural complex, which have specially equipped us to produce and sustain large-scale civilizations with the rule of law. If this is true, then our failure to understand our deep genealogical relationship to this ancient socio-cultural complex has limited our self-understanding in critical respects. It has also prevented us from realizing useful aspects of our traditions — including, in some cases, those aspects that make our current traditions in the West so capable of supporting large-scale human civilizations with the rule of law.

We live in an era in which it is, moreover, especially important to decipher the deepest origins of Western law and civilization. Scholars within the emerging “legal origins” tradition (e.g., Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny) have now produced an impressive body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates.

The present Article argues that this literature may nevertheless be working with legal origin variables that fail to track our deepest and most genuine lines of relevant descent. After developing a special methodology to discern the relevant genealogical facts, I use this methodology to propose a new (and fundamentally changed) account of the most plausible phylogenetic structure of the Indo-European legal family (including the socio-cultural traditions needed to support legal systems, along with the special psychological attitudes that animate these traditions). This novel account traces many of the most important developments of this family of traditions deep into human prehistory. A proper understanding of this new family tree should have important empirical implications: this work can, for example, be used to help explain why certain exportations of Western-style legal institutions have worked so well while others have not. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward westernization that are being felt around the globe.

The origins story that I develop in this Article should, however, also have broader implications for a much wider range of cognate fields, which have typically presumed a primarily Greco-Roman or Judeo-Christian origin for key developments in the West. The revised origins story that I will be telling should therefore be of more general human concern. 

You can download part 1, part 2, and part 3

Wednesday, April 18, 2012

Loyola-Chicago Con Law Colloquium

[From Legal Theory Blog we have the following announcement of a Chicago-area colloquium on Constitutional Law that invites submissions from historians.]

Loyola University Chicago School of Law is organizing the Third Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 2 and end midday on Saturday, November 3, 2012.

This is the third annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Unless we are overwhelmed, we hope to be able to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.

The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching at the university, law school, and graduate levels on matters of constitutional law. We welcome applications from full-time, part-time, and adjunct faculty members, as well as post-doctoral fellows from academic discipline related to the study of constitutional issues (anthropology, history, law, literary criticism, philosophy political science, sociology, etc.).

Application Procedure: The registration and abstract submission deadline is May 31, 2012. Conference organizers will select abstracts on a rolling basis.

The Smith Postdoctoral Fellowship at Ohio University

The George Washington Forum on American Ideas, Politics and Institutions at Ohio University invites applications for a one-year postdoctoral fellowship in U.S. legal and constitutional history, which is funded by a gift from the Thomas W. Smith Foundation. The fellowship pays a salary of $41,000 and includes standard health insurance and retirement benefits. The successful applicant will have a home in the History Department and will be expected to teach a two-course survey of American constitutional history and one other courses in his or her field. Ph.D. required by August 27, 2012.

The Ph.D. is required by August 27, 2012.  "We seek a candidate with a commitment to working effectively with students, faculty, and staff from diverse backgrounds."

Applicants are to apply on-line and should be "prepared to attach required documents as directed."  They are to send a letter of application, c.v., and three letters of recommendation to Dr. Robert G. Ingram, Director, The George Washington Forum on American Ideas, Politics and Institutions, Department of History, Bentley Annex 415, Ohio University, Athens, OH 45701-2979.

To be considered fully, applicants ought to apply by May 14, 2012.

Mike Wallace Interview of Thurgood Marshall

Gilbert King's website for Devil in the Grove includes a wonderful photo array and a must-see video: a Mike Wallace interview of Thurgood Marshall. Marshall is terrific: he's the charismatic interlocutor--"Mr. Civil Rights!"

Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of A New America by Gilbert Ware

Harper Collins recently released Gilbert King's Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America. The publisher's description and blurbs follow. 
Arguably the most important American lawyer of the twentieth century, Thurgood Marshall was on the verge of bringing the landmark suit Brown v. Board of Education before the U.S. Supreme Court when he became embroiled in an explosive and deadly case that threatened to change the course of the civil rights movement and cost him his life.
In 1949, Florida’s orange industry was booming, and citrus barons got rich on the backs of cheap Jim Crow labor. To maintain order and profits, they turned to Willis V. McCall, a violent sheriff who ruled Lake County with murderous resolve. When a white seventeen-year-old Groveland girl cried rape, McCall was fast on the trail of four young blacks who dared to envision a future for themselves beyond the citrus groves. By day’s end, the Ku Klux Klan had rolled into town, burning the homes of blacks to the ground and chasing hundreds into the swamps, hell-bent on lynching the young men who came to be known as “the Groveland Boys.”
And so began the chain of events that would bring Thurgood Marshall, the man known as “Mr. Civil Rights,” into the deadly fray. Associates thought it was suicidal for him to wade into the “Florida Terror” at a time when he was irreplaceable to the burgeoning civil rights movement, but the lawyer would not shrink from the fight—not after the Klan had murdered one of Marshall’s NAACP associates involved with the case and Marshall had endured continual threats that he would be next.
Drawing on a wealth of never-before-published material, including the FBI’s unredacted Groveland case files, as well as unprecedented access to the NAACP’s Legal Defense Fund files, King shines new light on this remarkable civil rights crusader, setting his rich and driving narrative against the heroic backdrop of a case that U.S. Supreme Court justice Robert Jackson decried as “one of the best examples of one of the worst menaces to American justice.”
“A powerful and well-told drama of Southern injustice.” (Chicago Tribune)
"Suspenseful and historically meticulous." (Christian Science Monitor)
"Deliver(s) the shock of a crime thriller." (Associated Press)
"A taut, intensely readable narrative." (Boston Globe)
“Gilbert King's Devil in the Grove recreates an important yet overlooked moment in American history with a chilling, atmospheric narrative that reads more like a Southern Gothic novel than a work of history.” (Salon)

“(An) excellent telling of one of the most difficult cases Thurgood Marshall ever argued...An important, and hopefully never forgotten, chapter of American history.” (The Seattle Times)
“King traces the pernicious tentacles of bigotry and expertly depicts the role of the press, the cast of characters and the entire contextual story of civil-rights law and the NAACP. Deeply researched and superbly composed.” (Kirkus, Starred Review)

"Very few books combine the depth of research and narrative power about a subject of such pivotal significance.” (Ira Katznelson, author of When Affirmative Action Was White)
"In the terrifying story of the Groveland boys Gilbert King recreates an extraordinary moment in America's long, hard struggle for racial justice. Devil in the Grove is a harrowing, haunting, utterly mesmerizing book." (Kevin Boyle, author of Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age) 
"The tragic Groveland saga -- with its Faulknerian echoes of racial injustice spinning around an accusation of rape -- comes astonishingly alive in Gilbert King's narrative. It is both heartbreaking and unforgettable." (Wil Haygood, author of King of the Cats: The Life and Times of Adam Clayton Powell Jr.)