Friday, May 31, 2013

Ruskola on "The Invention of American Imperial Sovereignty"

Teemu Ruskola, Emory University School of Law, has posted Canton is Not Boston: The Invention of American Imperial Sovereignty, which originally appeared in the American Quarterly: 57 (September 2005): 859-84.  Here is the abstract:
Although the United States began its international legal career in 1776 as an outlaw, a rebel against the European legal order, it soon established itself as a juridical equal among the so-called Family of Nations, consisting of “civilized” European states. Yet it is a remarkable historical fact that when the British launched the Opium War in 1839 to coerce China to participate in free trade (freedom of trade not including the right not to buy opium), most Americans sided with the Chinese, against the British. With confiscated British opium being flushed into the Canton harbor, the events echoed the still not-so-distant Boston Tea Party — two heroic acts of struggle against British imperial interventions in trade, in China and America, respectively. However, after China was indeed successfully opened for “free trade” at the end of the Opium War, in 1844 President Tyler sent the first American minister to China to negotiate a trade treaty that would create a framework for American participation in the that trade as well as the basis of the United States’ political and legal relations with China until 1943. Tyler’s plenipotentiary Caleb Cushing — a New England lawyer as well as future U.S. Attorney General — ended up exceeding his instructions and (with the backing of gunboats), negotiating an extraordinary Treaty of Peace, Trade, and Amity which ultimately placed China in a semi-colonial relationship vis-à-vis the United States. Most notably, the Treaty of Wanghia of 1844 gave Americans the privilege of extraterritoriality: even while on sovereign Chinese territory, American citizens would not be subject to “despotic” Chinese law, until such time that the Chinese had created a “civilized” (i.e., modern liberal) legal regime. This article tells the little-known story of the beginnings of Sino-American legal relations and of the foundation it laid for the emergence of an extraterritorial empire of U.S. law in the Asia Pacific, ultimately ranging from China to Japan, Korea to Siam, Borneo to Tonga, and beyond. Long before the United States came to practice European-style territorial imperialism at the conclusion of the Spanish-American War 1898, the United States became a global leader in the institutionalization of a kind of legal imperialism in the Orient. In addition to analyzing the history of U.S. extraterritorial jurisdiction in Asia, this article outlines the changing global claims to sovereignty among Europe, the United States, and China over the course of the nineteenth century.

Magness and Page on Guelzo on Lincoln and Colonization

Phillip W. Magness, George Mason University School of Public Policy, and Sebastian N. Page, Rothermere American Institute, University of Oxford, have posted Lincoln, Colonization, and Evidentiary Standards: A Response to Allen C. Guelzo.  Here is the abstract:
This article is offered in response to historian Allen C. Guelzo, who recently called into question the authenticity of a body of evidence utilized by the authors to trace and interpret the policies of black colonization enacted during the administration of Abraham Lincoln.

For the better part of his presidency, Lincoln pursued the voluntary colonization or resettlement of freed slaves in multiple tropical locales under the authority of a series of statutes adopted in 1862. Subsequent assessments of this policy; including the criticism to which we respond; have called into question the sincerity of Lincoln's actions; despite a body of evidence to support Lincoln's attachment to the colonization idea in matters of statute, international relations, and personal philosophy.

In answering Guelzo, we conclusively demonstrate the provenance of the historical documents he has called into question, and offer a series of further research challenges to the conventional assessments found in the colonization and emancipation literature of the past 50 years.

Reid on Scotland's First Banknotes

Kenneth Reid, University of Edinburgh School of Law, has posted Banknotes and Their Vindication in Eighteenth-Century Scotland, which is forthcoming in Money in the Western Legal Tradition, ed. David Fox and Wolfgang Ernst (Oxford University Press, 2014).  Here is the abstract:    
The first banknotes in Scotland were issued in 1695 following the incorporation of the Bank of Scotland. In a country critically short of coin and vulnerable to changes in its value, they were an almost immediate success. A century later no fewer than 21 banks, mainly private, issued notes, and Scotland was awash with paper money. This proliferation of paper would hardly have been possible without a stable legal framework. In 1749 the case of Crawfurd v The Royal Bank considered, and settled, one of the key legal issues: whether the holder of a banknote took free from infirmities of title which affected those from whom it had been acquired. In the litigation Mr Crawfurd sought to vindicate a £20 Bank of Scotland note which had gone missing in the post and turned up some time later in the hands of the Royal Bank of Scotland. The printed arguments of counsel which have survived provide a fascinating glimpse into a collision between orthodox property law on the one hand and the needs of commerce and the future of the banking system on the other. According to the former, Mr Crawfurd’s victory was assured because no one can acquire title through a thief; according to the latter, the Royal Bank must prevail, for any other result ‘would be to render the Notes absolutely useless, and consequently would in a great Measure deprive the Nation of the Benefit of the Banks, which could hardly subsist without the Circulation of their Notes’. In this battle of doctrine against policy, Roman law was used as a proxy, with both sides calling on Digest texts and on the account of vindication in Voet’s Commentarius ad Pandectas. Victory for the Royal Bank was obtained only by re-characterising a rule of bona fide consumption, by spending, as one of bona fide acquisition; and so with this flimsiest of doctrinal veneers, the free circulation of banknotes was assured.

Richardson on Private Acts of Parliament

Ivor Richardson, Victoria University of Wellington Law, has posted "Private Acts of Parliament,” which originally appeared in Victoria University of Wellington Law Review 41 (2010): 653.  Here is the abstract:
The article explains the role that Private Acts of Parliament have played and still play. It does so by recounting their historical development and then discussing some 70 Bills and their progress through the Parliamentary processes. The narrative follows a broad subject-matter classification of Private Bills which are promoted by private individuals, local institutions, companies, particular charities, associations and other corporate bodies for their own benefit, whereas Public Bills and Local Bills are directed to the functioning of Central Government and Local Government respectively.

Thursday, May 30, 2013

Conk, "People's Electric: Engaged Legal Education at Rutgers-Newark Law School in the 1960's and 1970's"

Readers interested in the history of legal education and the activist lawyering of the 1960s and 70s may be interested in the following article: "People's Electric: Engaged Legal Education at Rutgers-Newark Law School in the 1960's and 1970's," by George W. Conk (Fordham Law School). It appeared in Volume 40, no. 503 of the Fordham Urban Law Journal (201). Here's the abstract:
Rutgers-Newark Law School was the most innovative, exciting, and effective law school in the 1960's and 1970's. Civil rights and liberties, 'poverty law', women's rights, employment discrimination, open housing, and public education were the foci of legal education at Rutgers - Which is the State University of New Jersey. In those two decades Rutgers-Newark - which we affectionately called People's Electric - developed a model of engaged legal education that was and is unique.

No other law school of its era - and perhaps since - to my knowledge has been so thoroughly characterized by a broad progressive social agenda. Affirmative action, racial justice, women’s rights, public education, open housing, and civil liberties were the focus of the frequently landmark litigation which originated or was substantially aided by students and faculty from Rutgers Newark.

The unique activism of Rutgers-Newark - a small public law school in an afflicted city - had a huge impact in the development of the law. The activist faculty and the clinics engaged law students deeply in innovative and intense litigation regarding the most important and controversial issues of the day. Students at People’s Electric learned first-hand the law-making function of the courts. They often helped make that law. No other law school in the country can begin to match its record in the 1970's. This was accomplished without endowment, without a base of high ranking or wealthy alumni, without a tradition of such activism at the school, a public law school whose tuition was nominal. Students learned from extraordinarily talented lawyers who they assisted. Their successes showed students how to succeed by really trying. We left Rutgers confident that we knew how to and could change the law, confident that we could make a difference.

Graduates continued the mission in many ways. One outstanding example is the cadre who joined the Office of the Public Defender - a statewide agency - which led or participated in the defense of over two hundred capital trials from 1982-2007 when the death penalty was repealed and replaced with life without parole. There were no executions.
The full article is available here, at SSRN. 

Erman to USC Law

Congratulations to Sam Erman and USC Law for the latter’s recent hiring of the former.  Erman holds the J.D. and the Ph.D. in American Culture from the University of Michigan.  He clerked for Judge Merrick P. Garland of the United States Court of Appeals for the District of Columbia Circuit and justices John Paul Stevens and Anthony M. Kennedy of the United States Supreme Court. He was the Berger-Howe Legal History Fellow at the Harvard Law School in 2011-12 and the Latino Studies Fellow at the Smithsonian Institution in 2012-13.  He is at work on a dissertation-based book, “Puerto Rico and the Constitution: Struggles around Status and Governance in a New Empire, 1898-1925.”  SSRN papers are here and here.

Wednesday, May 29, 2013

AJLH 53:2

The April 2013 issue of the American Journal of Legal History is out.  Here are the two articles:

Slavery, Executive Power and International Law:
The Haitian Revolution and American Constitutionalism . . . Robert J. Reinstein

The Marketing of Legal Services in the United States, 1855-1912:
A Case Study of Guggenheimer, Untermyer & Marshall
of New York City and the Predecessor Partnerships . . . . .  Richard A. Hawkins

Rabban on the Historical School of American Jurisprudence

[Here is the latest in a series of posts by David Rabban, Texas Law.]

In my last two posts about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I focused on the original scholarship on the history of English law by five late nineteenth-century Americans: Henry Adams, Melville Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer. Their internationally respected work provided a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland. In this post, I emphasize that the turn to history in late nineteenth-century American legal scholarship was not limited to the relatively few who became legal historians. During this period, American legal scholars generally viewed history as the key to legal analysis. They often identified their historical approach to law as a distinctive jurisprudential school. Among the most eminent of these scholars were James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, John Norton Pomeroy, Christopher G. Tiedeman, and Francis Wharton. Demonstrating the existence and analyzing the characteristics of this “historical school of American jurisprudence” are major goals of my book.

Baskind on a Right to Silence at the Old Bailey

Stephen L. Baskind of the firm Kleiman Lawrence Baskind Fitzgerald LLP, will present "No Man is Bound to Accuse Himself: Establishing a Right of Silence at the Old Bailey" on Tuesday, June 18, 2013, from Noon to 1:00 PM, to the Legal History Discussion Group of the Dallas Bar Association.  It will take place at the Bar's headquarters, the Belo Mansion, 2101 Ross Ave., in downtown Dallas, Texas.  Attendees will receive one hour of CLE credit at no charge.  Lunch is available for a fee beginning at 11:30 AM.

See You at Law and Society!

Legal History Blog will be at the annual meeting of the Law & Society Association in Boston this weekend.

Clara Altman will be presenting "Disciplining Development: American Tort Law and the Emergence of a 'Philippine Common Law'" as part of the panel "The Legal Histories of U.S. Empire: The Philippines and Puerto Rico," on Saturday from 2:30 to 4:15.
The papers on this panel consider the histories of legal change in Puerto Rico and the Philippines from the onset of U.S. rule in 1898 to after World War II. By shifting the lens on U.S. legal history from the metropole to the edges of empire, they suggest the diverse ways that local legal change constituted U.S. empire. These histories of law and colonialism point to new ways of understanding the relationship between constitutional law and U.S. global power, offer new insights about the makers and shapers of legal development in the U.S., the Philippines, and Puerto Rico, and they challenge existing frameworks for the doctrinal and jurisdictional boundaries of American law. Local actors harnessed the counter-hegemonic potential of law to shape, direct, and contest the American state. Networks of legal knowledge, culture, and personnel moved in various and unanticipated directions. The histories of law in the Philippines and Puerto Rico in the twentieth century show that as American law facilitated U.S. imperial power, local legal change in the colonies remade American law.
Dan Ernst will be presenting "Lawyers and State Autonomy in the New Deal" as part of the panel "Lawyers as Statebuilders in the United States, 1870-1970," on Friday from 8:15 to 10:00:
This panel presents four case studies at the boundary of the history of the legal profession and of political institutions that reveals how American lawyers constructed a state that respected and magnified their professional authority. Shugerman shows that the founding of the Department of Justice was, in important respects, a professional project in the same spirit as the new bar associations of the 1870s. Coates shows how the creation of international law as a legal discipline at the turn of the twentieth century decisively influenced the history of American diplomacy. Ernst reveals how New Deal lawyers failed and then succeeded at making themselves gatekeepers between civil society and the regulatory state. Grisinger recounts a failed attempt by civil rights lawyers to disrupt the cozy understandings of agency lawyers and the members of Washington law firms in the 1960s.
Karen Tani will be presenting "Administering Citizenship: The 'Indian Problem' in the Age of the Federal Grant" as part of the panel "State v. Nation: Historical Approaches to Federalism," on Thursday, from 4:30-6:15:
These historical case studies each highlight conflicts between state and federal law in context and, taken together, explore the contentious history and development of federalism in the United States. Allison Tirres examines how state limitations on immigrants’ property and liberty rights have fared under the Fourteenth Amendment, and demonstrates how states’ involvement in alien rights raises practical concerns about the relationship between federal and state power. Karen Tani explores the complicated nature of local, state, and federal authority over welfare beginning in the New Deal; these relationships were particularly and contested in the context of Indian law and policy. State officials in the West who relied on federal grants but refused to comply with the federal mandates that accompanied the funds found themselves involved in lawsuits that Tani argues formed key precedents for the “new federalism.” Finally, Logan Sawyer examines the return of constitutional federalism in the late twentieth century through a study of the political and intellectual developments that increasingly questioned the “political safeguards” theory of federalism, called for renewed judicial intervention, and gave rise to the Supreme Court’s decision in National League of Cities (1976).
Karen will also participate on the roundtable “The Poverty State” on Friday, from 8:15-10:00.
In recent years scholars have created a wealth of literature on how the mechanisms of the state impact poor communities and have described the means by which these mechanisms serve to monitor, criminalize and regulate the lives of those who live in poverty. These regulatory structures impact poor communities of color in vastly disproportionate numbers and are often justified through the use of racialized tropes. At the same time scholars across disciplines are attempting to formulate more responsive visions of the State, and legal scholars are seeking to reconceptualize rights claims that might lend more strength to poor communities. This roundtable will bring together scholars focused on these issues and will pose the question of how to conceptualize a more positive vision of the state that incorporates these realities and how rights and legal structures might be mobilized to address the means by which poor communities are regulated by the State.
In general, legal history is well represented on the program., including author-meets-reader sessions on Eileen Boris and Jennifer Klein’s Caring for America, Michelle Landis Dauber’s Sympathetic State, Hendrik Hartog’s “Someday This Will All Be Yours,Kenneth Mack’s Representing the Race, and Victoria Saker Woeste’s Henry Ford’s War on the Jews and the Legal Battle against Hate Speech.  (Search the program here.)

Tsoukala reviews Kang'ara, "Beyond Bed and Bread"

Over at JOTWELL, Philomila Tsoukala (Georgetown University Law Center) has posted a review that may be of interest. She covers Sylvia Wairimu Kang'ara, "Beyond Bed and Bread: Making the African State through Marriage Law Reform -- Constitutive and Transformative Influences of Anglo-American Legal Thought." The article appeared in Volume 9 of the Hastings Race & Poverty Law Journal (2012) and is available online at Comparative L. Rev. Here's an excerpt from Tsoukala's review:
The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model.  Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition.  Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building.
In this way, Kang’ara shows that, far from being an act with merely moral significance, “defining marriage was an important act of conquest and a corner stone of the market oriented state” that emerged via colonialism. . . .
Read on here.

Tuesday, May 28, 2013

Harris Reviews Banner's "American Property"

Douglas C. Harris, University of British Columbia, Faculty of Law, reviews American Property: A History of How, Why, and What We Own, by Stuart Banner, in Osgoode Hall Law Journal 50 (2012):. 465-469.  Here is the abstract:    
Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to things. The institution of property law — the rules that define this subset of human relationships — arises in the context of scarcity. When things are scarce and accordingly hold exchange value, humans construct ideas of ownership. We have been doing so for millennia, or at least long enough that the subject of property law has acquired a reputation as antiquarian. Certainly in the common law tradition, many property law courses appear lost in the mist of English legal history. This need not be so. Property law deals with the allocation of scarce resources and therefore is also about the allocation of power. Understood this way, property law can be a lens through which to understand many of the most pressing social issues of the day. Similarly, the history of property law need not be dull. At least ten centuries of social change, economic transformation, technological innovation, and human drama can be seen in the customs and conventions, judicial decisions, and statutes that comprise the law of property in common law jurisdictions. In American Property: A History of How, Why and What We Own, Stuart Banner, the prolific legal historian and property law scholar, sets out to describe contestation and change in ideas about property over several centuries in the United States. The result is a beautifully and accessibly written book, stunning in scope, elegant in structure, and remarkably revealing in its detail about the debates over and the uses of property law doctrine and of the broader ideas that support the divergent interests and claims.

Baude on Rethinking the Federal Eminent Domain Power

William Baude, a  lecturer in law at the Stanford Law School, has posted Rethinking the Federal Eminent Domain Power, which will appear in volume 122 of the Yale Law Journal.  Here is the abstract:
It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories — but not within states. Politicians and judges (including in two Supreme Court decisions) repeatedly denied the existence of such a power, and when the federal government did need to take land, it relied on state cooperation to do so. People during this period refused to infer a federal eminent domain power from Congress’s enumerated powers or the Necessary and Proper Clause because they viewed it as a "great power" — one that was too important to be left to implication. And they refused to infer it from the Takings Clause either, because the Clause was not intended to expand Congress's power beyond the District and territories.

Eminent domain aside, the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. While his application of the theory is questionable, there are many other areas of law — such as commandeering, sovereign immunity, conscription, and the freedom of the press — where the great powers idea may rightfully have more bearing.

AALS Workshop on Poverty, Immigration, and Property

The Association of American Law Schools has announced a workshop on Poverty, Immigration and Property, to be held June 10-12 in San Diego. From the AALS:
Why Attend? The recent Arizona SB 1070 decision, the pending Hazleton litigation, and the state bar licensing cases for undocumented applicants all implicate property rights. Since the infamous alien land laws, most immigration scholars have not addressed this historical issue. Related issues are surfacing again that affect property rights of non-citizens. These developments present a challenge to immigration scholars to examine the intersection between immigration and property. This new lens also can provide us with new insight on other issues of concern to immigrants and immigration policy, such as access to justice. The workshop brings together two communities of scholars: immigration and property. For immigration scholars, the workshop presents a special opportunity to interact with property law scholars around these intersections. For example, State v. Shack, 277 A.2d 369 (N.J. 1971), a forty-year old case, is enjoying a renaissance and spike in scholarly attention among property scholars. In Shack, perhaps the most progressive decision found in the property law canon, the New Jersey Supreme Court recognized the right of migrant workers to receive visitors over the objections of the property owner. The court’s expansive opinion declared, “Property rights serve human values. They are recognized to that end and are limited by it.” Though narrowly the holding in Shack relates to property owners’ right-to-exclude, the case invites consideration of the nature of property, the rights of immigrant/vulnerable workers, and how seemingly neutral legal principals impact the poor. In addition to exploring emerging themes in property law scholarship, this workshop offers an opportunity to interact with leading immigrant law scholars.
Legal historian Allison Brownell Tirres (DePaul) will be speaking at the opening plenary, entitled "What Lies at the Intersection of Poverty, Immigration and Property." The title of her talk is "Immigrants and Property Rights: Taking the Long View."

For more information, follow the link. You may register online here.

Monday, May 27, 2013

Memorial Day Roundup

  • Scott Douglas Gerber, Ohio Northern University Law, discusses his plans for his second book, which will take up "British American colonies and Comparative Subnational Constitutionalism," on I-CONnect.
  • "Not Dick Whitney!"  Thus spake FDR upon learning of the defalcations of the haughty Wall Street financier and fellow Grotonian, news of which which delivered the New York Stock Exchanges into the hands of William O. Douglas's SEC.  Whitney now has a biography: Malcom MacKay's Impeccable Connections.  To see what the shouting was about, consult, via the website of the SEC Historical Society, newsreels of Whitney riding high and low.
  • Earlier we noted the publication of Edward Cavanagh’s Settler Colonialism and Land Rights in South Africa. We now learn that it will have a launch at The Space, 139 Bank Street, Ottawa, on the evening of Thursday, June 6.
  • From the Caribbean Journal: “How did English colonial law develop into the legal system of Jamaica today, and what has that meant for Jamaica’s development? A new book by attorney and law professor David P. Rowe attempts to answer these questions, examining the history of Jamaica’s constitutional jurisprudence and its relation to the country’s maturation over the decades.  Aspects of Jamaican Constitutional History, co-authored by Rowe and University of Miami School of Law graduates Niyala Harrison and Jason Frederick Emert, takes a look at the history of Jamaica’s political economy through the lens of the constitution." 

Michigan Law's Program in Race, Law and History

Under the Michigan Law has founded a Program in Race, Law & History:
We are an interdisciplinary program dedicated to research and teaching at the intersection of these three lines of intellectual inquiry. Through new scholarship, the training of students in law and history, and collaborations with colleagues and institutions at Michigan and beyond, the Program provides a unique historical perspective on the ongoing salience of race in our world. Our work is grounded in scholarship that has established race as at the core of interpreting the history of the Americas. Race here is a set of ideas that rely upon understandings of religion, culture, labor, biology, and politics, and have both rationalized profound inequality and galvanized movements for social justice. Scholars have charted the connections between legal culture and slavery and its abolition, the emergence of democratic states, imperialism, social welfare policy, and movements for civil and human rights. Our work is linked to the broad trends in social and cultural history, exploring how race and law have come together to shape ideas about home, family, marriage, gender, and sexuality.
You may follow the program on Twitter.

Sunday, May 26, 2013

FDR and the New Deal, FDR and the "Jewish Question," and More: This Week in the Book Pages

At David E. Bernstein (George Mason School of Law) reviews Ira Katznelson's Fear Itself:  The New Deal and the Origins of Our Time (Liveright).  Bernstein notes two themes:
One is that, to an extent previously either ignored or underemphasized, politicians from the Jim Crow South controlled key committees in both houses of Congress, and therefore exerted a huge influence on the course of the New Deal. That part is true. Katznelson also indicates that the New Deal would have been more “progressive” but for the Southern Democrats. That part is more dubious.
Read on, here.

For more on FDR, in the Washington Post James McAuley reviews FDR and the Jews (Harvard) by Richard Breitman and Allan Lichtman.  According to McAuley, "[a]t long last, two historians have sought to provide an analysis of Roosevelt’s stance on the “Jewish question” that avoids the tempting urge to judge the past through the lenses of the present."  And, also on the Holocaust and the United States, the LA Times has a review of Hollywood and Hitler, 1933-1939 (Columbia) by Thomas Doherty.

Three two take up books on the Civil War: In the Washington Post Tony Horwitz reviews Peter Carlson's Junius and Albert's Adventures in the Confederacy: A Civil War Odyssey (PublicAffairs).  The Wall Street Journal has a review of Thomas Fleming's A Disease in the Public Mind: A New Understanding of Why We Fought the Civil War (De Capo). 

The New York Times this has a piece on  Mary Louise Roberts's What Soldiers Do: Sex and the American G.I. in World War II France:
“What Soldiers Do,” to be officially published next month by the University of Chicago Press, arrives just as sexual misbehavior inside the military is high on the national agenda, thanks to a recent Pentagon report estimating that some 26,000 service members had been sexually assaulted in 2012, more than a one-third increase since 2010. 
Other reviews of interest this week:

Saturday, May 25, 2013

Weekend Roundup

  • We've previously noted the publication of Mrs. Shipley's Ghost, by Jeffrey Kahn. A (gated) review in the Chronicle of Higher Education is here.
  • Via the Poverty Law Blog: "In honor of the 50th Anniversary of the “War on Poverty,” the AALS sections on Poverty Law and Clinical Legal Education will sponsor a joint program at the AALS Annual Meeting, entitled 50 Years After the “War on Poverty": Evaluating Past Enactments and Innovative Approaches for Addressing Poverty in the 21st Century." More info here.  
  • John Q. Barrett, St. John's Law, introduced Chief Justice John G. Roberts, Jr., at the Robert H. Jackson Center earlier this month.  Barrett's remarks touched upon, among other things, "some Jackson-like and Jackson-connected aspects of Chief Justice Roberts’ life and career; including his birth and early boyhood in western New York State, his service as a law clerk to former Jackson law clerk Justice William H. Rehnquist, and his private law practice with former Jackson law clerk E. Barrett Prettyman, Jr."
    The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

    Friday, May 24, 2013

    Pfander and Nazemi Revise Frankfurter on the Anti-Injuncton Act of 1789

    We have previously noted the posting by James E. Pfander and Nassim Nazemi, Northwestern University School of Law, of Morris v. Allen and the Lost History of the Anti-Injunction Act of 1793.  They now return with The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap, which is forthcoming in the Texas Law Review.  Here is the abstract:
    Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account.

    In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification.

    We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.

    The Founders' Twitter Feed

    Consource invites "citizens of all walks of life" to tweet the constitutional debates of 1787.  
    To date, we have recruited a talented group of historians, lawyers, stand-up comics, and even gifted students to take on the role of a particular Framer for the duration of the months long Constitutional Convention debates. Each citizen who agrees to participate will adapt each day of the debates to the ever-so-popular and easily consumed 140 character tweet and make our constitutional history something that people want to share. . . .
    With your participation, Tweet the Debates will inspire American citizens to reconnect with their shared past, and work together toward a common goal for the sake of our glorious nation. Visit and follow @tweetthedebates to find out how you can lend your voice to the Constitutional Convention! The debates kick off on May 25, just as they did in 1787 . . .

    Signposts for an Alternative History of Human Rights

    Recently published is the collection of essays, Human Rights from a Third World Perspective:Critique, History and International Law, ed. José-Manuel Barreto (Cambridge Scholars Publishing, 2013).  Part II, “Signposts for an Alternative History of Human Rights,” consists of the following essays:

    "Imperialism and Decolonization as Scenarios of Human Rights History," by José-Manuel Barreto

    "Las Casas, Vitoria and Suárez, 1514-1617," by Enrique Dussel

    "The Dual Haitian Revolution and the Making of Freedom in Modernity," by Anthony Bogues

    "Love, Justice and Natural Law: On Martin Luther King, Jr., and Human Rights," by Vincent W. Lloyd

    "Human Rights, Southern Voices: Yash Ghai and Upendra Baxi," by William Twining

    Lamb and Nye on the FHA's Resistance to Truman's Race Policy

    Charles M. Lamb and Adam W. Nye, SUNY at Buffalo, Political Science, have posted Do Presidents Control Bureaucracy? The Federal Housing Administration During the Truman-Eisenhower Era, which appears in Political Science Quarterly 127 (2012): 445-467.  Here is the abstract:    
    Charles M. Lamb and Adam W. Nye show how the Federal Housing Administration continued to permit racial segregation in its mortgage insurance program for years after the Truman administration indicated that it must alter that policy. They argue that this case study once again illustrates that presidential control has its limits as bureaucracy successfully defied presidential preferences and continued on a policy trajectory opposed by the president.

    Thursday, May 23, 2013

    LaChance to Emory

    Congratulations to Daniel LaChance, who joins the Emory University Department of History this fall as an Assistant Professor. From the History Department website:
    Daniel LaChance joins the Department of History in the Fall of 2013. His work examines the sources, meaning, and effects of the “punitive turn” in the United States, the ratcheting up of incarceration and other forms of harsh punishment in the late 20th century. Articles he has written on this topic have been appeared in the journals Law and Social Inquiry and Punishment and Society. In 2011, his dissertation, “Condemned to Be Free: The Cultural Life of Capital Punishment in the United States, 1945-Present” won the University of Minnesota’s Best Dissertation Award in the Arts and Humanities and was one of two finalists for the Distinguished Dissertation Award given by the National Council of Graduate Schools. The work, currently being revised for publication as a book by the University of Chicago Press, examines the decline of the American death penalty in the years following World War II, its revival in the 1970s, and its subsequent use over the past thirty years. In it, he argues that shifting ideas about freedom are embedded in the way that Americans have talked about and used capital punishment. 
    Dr. LaChance earned his B.A. in English from Carleton College and his Ph.D. in American Studies from the University of Minnesota, Twin Cities. Prior to his appointment to Emory, he was an Assistant Professor of Legal Studies at the University of Massachusetts at Amherst.
    Professor LaChance will be on leave in 2013-14. He will be the Law and Humanities Fellow in the Law and Public Affairs Program at Princeton University. While at Princeton, he will be revising his book manuscript and embarking on a new project: a legal, cultural, and intellectual history of the deinstitutionalization of those classified as mentally disabled and mentally ill in the United States.

    Reid on CJ White and the Selective Service Cases

    Charles J. Reid Jr., University of St. Thomas School of Law (Minnesota), has posted A Louisiana Civilian in the Supreme Court: The Selective Service Cases Revisited.  It will appear in Honos alit artes: Etudes pour le soixante-dixieme anniversaire de Mario Ascheri, ed. Paola Maffei and Gian Maria Varanini (University of Florence Press, 2014).  Here is the abstract:
    Edward Douglass White (credit)
    Edward Douglass White, who served both as an Associate Justice and as Chief Justice of the United States during his long tenure on the Supreme Court (1894-1921) is notable for being the only civilly-trained Louisianan to serve on the Court. In the course of his judicial career, he relied on civilian sources in a number of his opinions. This Article explores one such example. The Selective Draft Law Cases of 1918 represents a consolidation of several lower-court challenges to the constitutionality of the conscription regime adopted by Congress at the time of America's entry into World War I. White's opinion is notable, among other reasons, for his use of Emmerich Vattel's (1714-1767) treatise Le droit des gens as a major source for his constitutional theorizing on the inherent powers of the state. After evaluating White's use of Vattel as a legal source, the final section of the Article situates White's use of Continental materials in the historical jurisprudence of that time. Law, in that school of thought, represented an admixture of human reason and historical experience. White, by looking to Continental sources, sought to expand the usual range of materials employed by historical jurisprudes and found a fit vehicle for this purpose in Vattel's theory of the state in a time of war.

    Wednesday, May 22, 2013

    White on the "Strangely Insignificant Role" of the Supreme Court in the Civil War

    At least since the publication of Peter Irons’s The New Deal Lawyers (1982), constitutional historians of the twentieth-century United States have understood the role Franklin D. Roosevelt’s lawyers played in shaping the legislation and litigation that produced the constitutional landmarks of the 1930s.  Now, in a (gated) article in the Journal of the Civil War Era 3 (June 2013): 211-38, Jonathan W. White, an Assistant Professor of American Studies at Christopher Newport University, has investigated the role legal strategy played in producing “The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War.”  Professor White identifies three main factors:

    Roger B. Taney (credit)
    "First, the Lincoln administration worked strategically to reduce the amount of litigation involving federal war measures. For example, the Union military often released or moved political prisoners before they could petition for writs of habeas corpus. Similarly, Lincoln carefully crafted the Emancipation Proclamation to make it difficult for slave owners to sue in the federal courts. Second, the Lincoln administration ignored lower court decisions that struck down federal war measures rather than appeal them to the U.S. Supreme Court. Third, and most importantly, the Judiciary Act of 1789–the law that first created and organized the federal judicial system–gave the government a distinct advantage in litigation involving controversial war measures because it limited the route of appeal to the nation’s highest tribunal."

    Bessie Margolin (1909-1996)

    [My exam in American Legal History usually includes a biographical essay.  The 2012 exam, for example, had one on Marion Harron; the 2011 exam had one on Bernice Lotwin Bernstein, and the 2010 exam profiled Ida Klaus.  For this year's question, I drew heavily upon Marlene Trestman, “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin (1909-1996)," Journal of Supreme Court History 37 (2012): 42–74, as well as my own research.  See also Karen's essay, Portia's Deal, and her post on the Frankfurter quote below.]

    Bessie Margolin (credit)
    Bessie Margolin (1909-1996) was born in Brooklyn to Russian Jewish immigrants.  When she was two, the family moved to Memphis, where, when Bessie was four, her mother died in childbirth.  Her father felt incapable of carrying for his children, so Bessie and a brother were sent to live at the Jewish Children’s Home in New Orleans.  There she received an excellent education and was deemed “a very splendid girl, far above average in every way.”  At sixteen she left the Home and enrolled in a women’s affiliate of Tulane University.  After two years she enrolled in Tulane itself to complete her bachelor’s degree and a law degree.  She was the only woman in the Tulane Law School when she started.  She became Civil Law Editor of the Tulane Law Review.  In 1930, at the age of twenty one, she graduated second in her law school class of twenty three, “a fraction” behind the top student.

    Margolin impressed Tulane’s dean with her “unusual professional ability,” her “unusually charming personality,” and her “unusually broad, balanced, and progressive social outlook.”  She also impressed the Yale law professor Ernest Lorenzen, who published an article in her volume of the law review and hired her as his research assistant.  She would spend the next three years in New Haven, the last on a prestigious fellowship as a doctoral candidate in law.  Her thesis, directed by William O. Douglas, was on the French law of corporate reorganizations.  Douglas called it meticulous and “of the highest caliber,” with “an air of realism about it.”

    While at Yale, Margolin also wrote a comment on pending legislation on corporate reorganizations.  After the Yale Law Journal, edited that year by Abe Fortas, published it over her initials, partners of eminent law firms inquired after its author.  Their interest in a potential hire vanished when they learned that “B.M.” was a woman.  After receiving her legal doctorate in 1933, she took a temporary job at the Inter-American Commission of Women in Washington, where she researched the legal status of women in Latin America.  Then the creation of the Tennessee Valley Authority (TVA) presented her with a better alternative.  Lorenzen assured TVA’s personnel director that Margolin “is intent upon a legal career or professional career as a primary objective from which she will not be deflected by marriage.”

    In the late summer of 1933, Margolin started as a research attorney in TVA’s Knoxville office at a salary of only $2,000.  About that time, a TVA lawyer described her telegraphically: “Tulane, Yale, TVA.  One of the Washington ‘prima donnas.’  Excellent on research.  A good kid.  Sadly underpaid and a bit sore on things.”  He predicted that she “will be all right” under the newly appointed general counsel James Lawrence Fly, and in fact Fly promoted her to Associate Attorney and raised her salary to $3,600.

    The TVA’s legal division, one of Margolin’s coworkers recalled, was “an extraordinary able, brilliant group of relatively young lawyers, who had outstanding academic records and law school achievements.”  Fly considered his legal division TVA’s central policymaker.  He let it be known, a lawyer recalled, that “the legal division was going to be the key to the works.”

    Fly set Margolin to work organizing evidence, researching legal issues, and writing substantial portions of the briefs in two challenges to TVA that went to the U.S. Supreme Court.  Although she can be seen sitting, hatless, behind TVA’s lead counsel John Lord O’Brian, in a photograph of one trial, she never argued in any branch of the cases.  Although Fly promoted her to Senior Attorney and raised her salary to $4600, she only tried a few condemnation cases “of lesser importance.”

    In 1939 Margolin moved to the legal staff of the recently created Wage and Hour Division of the Labor Department, charged with implementing the Fair Labor Standards Act (FLSA).  She asked for $5600, even though she knew that the general counsel might “think this an awful lot ‘for a girl’”; she was pleased when she received $5000.  Save for six months in 1946, when she was in Germany helping organize trials of Nazis, she remained at Wage & Hour until retiring in 1972.   From the start, she appeared in court.  Her argument of motions in federal district court in New Orleans was extensively covered by the local press.  Margolin is “a brunette, with flashing black eyes and a stunning figure,” a newspaperman reported.  “When you see a face like Miss Margolin’s you almost immediately wonder what that ‘Miss’ is tacked on before for.”  At first, she declined to discuss her marital status.  “I’m interested in labor and I’m a New Dealer,” she said.  “Incidentally, I’m not a radical.”  When pressed, she finally responded that she “hadn’t had time for love.”
    A few months with time cards and payroll records in damp New England warehouses convinced Margolin that trial work was a “deadly bore,” so she transferred to Wage & Hour’s appellate division.  She would ultimately argue 150 cases before the U.S. Circuit Courts (winning 114) and 28 before the U.S. Supreme Court (winning 23).  Frankfurter, who sparred with her in oral argument, described her as “a very good girl & a good advocate but not a lawyer of unsettling brilliance apart from the deft use of her feminine charms.”  She was promoted to Assistant Solicitor of the Department of Labor, but she never became Solicitor or a federal judge, posts she coveted.  Instead, she remained an imposing presence in the Department of Labor.  One Solicitor described his selection process as having three stages: “I had to be nominated by the President, confirmed by the Senate, and interviewed by Bessie.”

    Regular visits to the Elizabeth Arden Salon, during which she sometimes edited briefs, kept her impeccably coiffed.  When she entered a courthouse, “she walked with absolute assurance that a door would be opened before she got to it.”  After the Equal Pay Amendment to the FLSA was passed in 1963, she became its greatest defender within the Department of Labor.

    [As you can see, the essay does not mention Margolin's affair with Fly, a married father of two, which commenced at TVA and continued after he became chairman of the Federal Communications Commission in September 1939.  Because I had not discussed sexuality and the legal profession in class, I thought the issue too challenging for students to tackle for the first time in the exam room.  FCC Commissioner Clifford Durr described the affair as "one of these things that was known but wasn’t known."  The chairman of an ad hoc investigation of the FCC threatened to make it public until House Speaker Sam Rayburn (like Fly, a Texan) instructed him not to.]

    New Release: Murkens, "From Empire to Union: Conceptions of German Constitutional Law since 1871"

    Oxford University Press has released From Empire to Union: Conceptions of German Constitutional Law since 1871, by Jo Eric Khushal Murkens (London School of Economics and Political Science). Here's a description from the Press:
    Germany has long been at the centre of European debates surrounding the modern role of national constitutional law and its relationship with EU law. In 2009 the German constitutional court voted to uphold the constitutionality of the Lisbon Treaty, but its critical, restrictive decision sent shockwaves through the European legal community who saw potential threats to further European integration.

    What explains Germany's uneasy relationship with the project of European legal integration? How have the concepts of sovereignty, state, people, and democracy come to dominate the Constitutional Court's thinking, despite not being defined in the Constitution itself? Despite its importance to the whole enterprise of the European Union, German constitutional thought has been poorly understood in the wider European literature. This book presents a historical account of German conceptions of constitutional law, providing the understanding necessary to see what is at stake in contemporary debates surrounding the constitution and the European Union.

    Examining the modern development of German constitutional thought, this volume traces the key public law concepts of state, constitution, sovereignty, and democracy from their modern emergence in the 19th century through to the present day. It analyses the constitutional relationship between Germany and the EU from a sociological and historical perspective, looking at how German constitutional law has conflicted and compromised with EU law, and the difficulties this has raised.

    Filling a significant gap in comparative constitutional law literature, this book provides an account of the major schools of German constitutional thought and their development. Against this backdrop it offers a fascinating insight into Germany's relationship with the European Union.
    The Table of Contents:
    Part I: Constitutional Law as a Discipline
    1. The Emergence of Constitutional Law as a Positive Discipline
    2. The Rejection of Constitutional Law as a Positive Discipline
    Part II: Constitutional Law as a Method
    3. Staatsrecht and Verfassungsrecht
    4. External Application to the European Union
    Part III: Constitutional Law as Political Jurisprudence
    5. Sovereignty and Continuity
    6. The Interpretation of the Basic Law by the Federal Constitutional Court
    7. The Structure of the Federal Constitutional Court's Decisions in Maastricht and Lisbon
    Appendix: Excerpts from the Basic Law for the Federal Republic of Germany
    More information is available here.

    Tuesday, May 21, 2013

    CFP: NYU/Tamiment Cold War History Seminar

     [We have, via H-Law, 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 15th to Zuzanna Kobrzynski at

    CFP: “Revisiting Charles Beard's An Economic Interpretation of the Constitution: An Interdisciplinary Symposium”

    From the University of Virginia, we have the following Call for Papers:
    “Revisiting Charles Beard's An Economic Interpretation of the Constitution: An Interdisciplinary Symposium”

    University of Virginia

    October 24, 2013

    The University of Virginia School of Law, in conjunction with the Miller Center, invites proposals for a day-long symposium to honor the one hundredth anniversary of the publication of Charles Beard’s An Economic Interpretation of the Constitution of the United States. In 1913, Charles Beard famously upended traditional scholarship on the Constitution when he proposed that this founding document should be understood not as a sacred text or one expounding upon important principles, but rather as the product of the economic interests of the men who framed it. In the decades that followed, even as scholars disputed its tenents, Beard’s work remained foundational – even a necessary prerequisite – to modern histories of the Constitution, and, more broadly, to discussions of political and legal behavior.

    On October 24, 2013, the University of Virginia School of Law, in cooperation with the Miller Center, will host a day-long symposium celebrating the anniversary of Beard’s seminal work, and reflecting on its relevance and legacy one hundred years after its publication. Papers might address An Economic Interpretation as a historical work, its significance for modern studies of the Constitution and American politics, or the general idea of constitutional veneration. Comparative projects are welcome. Our goal is a vigorous, provocative, and interdisciplinary discussion, in a roundtable atmosphere. In this spirit we encourage submission of papers that are speculative or in an early stage of development, and from various areas of study, including history, law, and political science.

    One-page proposals and a short CV should be submitted to Jessica Lowe ( and Mark Graber ( by July 10, 2013.   

    The U.S. Legal History Survey Revisited: III -- Methods of Evaluation

    This is another installment of my series of posts on teaching the U.S. Legal History survey. (Earlier posts are here and here.) Having just finished grading, the question of how to evaluate student learning is on my mind. I decided to give my students a choice: they could either complete a ten-hour, essay-style take-home exam or they could write a 20-25 page historiographical essay on a professor-approved topic of their choice.

    For the exam: I gave the students three essay questions and asked them to choose two. I placed a 5000-word limit on their answers. I encouraged the students to engage with material from across the semester and to include examples from at least three distinct historical periods.

    Here is one of the essay questions I used:
    A prominent U.S. historian recently made the following observation: “The language of the Declaration of Independence and the preamble to the U.S. Constitution expressed a powerful vision of the fundamental right to freedom, liberty, and equality.” One way to understand U.S. legal and constitutional history is in terms of that vision’s “incremental[] transform[ation],” over the span of many decades, “into a lived reality for a broader and broader number of Americans.” Do you find this interpretation persuasive? Why or why not?   
    [The quotes are pulled from Barbara Welke's Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge University Press, 2010), although, for the record, these snippets do not represent the argument of her book.] This particular question gave the students lots of interpretive space, lent itself to clear thesis statements, and produced a range of answers, some quite sophisticated. From a grading perspective, the question resulted in a nice curve. I'm also pretty sure that for students, it was not overly intimidating.

    Here's a question that gave the students a harder time:
    Notions of the boundaries of government authority over individuals and groups have been central to all of U.S. history. Explore the ways in which these boundaries have shifted or been re-imagined and suggest an explanation for this change over time.  
    In retrospect, I still think it was a fair question, but it produced some weak answers -- perhaps because I did not build into this prompt an interpretation for the students to argue for or against.
    Answering the question required original thought. Curiously, some students also assumed that the word "government" meant "federal government" and wrote answers that were essentially about federalism.

    For those of you who use essay questions to evaluate your students: What do you think about when you are designing your questions? What types of prompts tend to work well for you? Which are less successful? Do you try to make your questions straightforward, like my first example, or do you try to make your students think harder about what the question is after?

    Next up: thoughts on the historiographical essay assignment.

    Monday, May 20, 2013

    Kornhauser, "The Consistency of Conservative Tax Policy"

    Marjorie E. Kornhauser (Tulane University School of Law) has posted "The Consistency of Conservative Tax Policy." It is forthcoming in the Northwestern University Law Review. Here's the abstract:
    Modern American tax policy is in a state of disarray. Although conservatives are not solely to blame, their anti-tax campaigns bear a heavy responsibility for this situation. It is not that they fail to discuss issues; to the contrary they, raise important questions, such as the proper distribution of tax burdens, the relationship of taxation to economic growth, and especially the connection between taxing and spending — an issue that liberals often ignore. Rather, the problem is they consistently wrap their arguments in the American flag. Americans are especially susceptible to this technique given the country’s long history of anti-tax sentiment that dates back to the founding of the nation. Consequently, conservatives’ century-long campaign linking seemingly objective economic arguments for low (or no) taxation to American democracy have forced tax debates into a highly emotional, patriotic framework that impedes coherent debate and limits the range of politically feasible options.

    My paper illustrates the consistency of conservative tax arguments — substance, style, and method — by examining conservative campaigns between 1924 and 1936 that linked opposition to a soldiers’ bonus to a reduction in taxes. These campaigns are especially interesting to examine because the time period in which they occurred bears several important similarities to present times. The economic conditions during the Depression present obvious similarities to current times, but other important similarities make this a useful period of comparison. Like today, the growth of government, especially at the federal level, during this period strengthened conservative fears of unconstitutional expansion of the central government and the consequent weakening of American democracy and the sapping of American character. Like today, conservatives saw taxation as a key factor in this crisis. Since taxes funded expanded government functions, cutting taxes would help shrink government.

    Finally, although lobbying is co-existent with government, modern, media-driven sell-the-candidate (or policy) campaigns first matured in this era. In both eras the development of new mass media invigorated the marketplace of ideas even as the increased knowledge about human behavior enhanced opportunities to manipulate public opinion. This is especially true for grassroots organizations that frequently present themselves to the public as broadly-supported civic groups providing neutral educational information whereas, in fact, it is a small (often wealthy) number of individuals and/or companies trying to influence the public to adopt their self-interested viewpoint.
    The full article is available here, at SSRN.

    New Release: Beever, "Forgotten Justice"

    New from Oxford University Press: Allan Beever, Forgotten Justice: Forms of Justice in the History of Legal and Political Theory (2013). Here's a description from the Press:
    Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.

    In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.

    A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.
    The Table of Contents:
    1. The Modern Conception of Political Philosophy and Law
    Part I: Discovery
    2. Plato: A Beginning
    3. Plato: A New Beginning
    4. Aristotle
    5. Cicero
    Part II: Establishment
    6. Aquinas
    7. Pufendorf
    8. Kant
    Part III: Forgetting
    9. Hobbes
    10. Locke
    11. The Utilitarians
    Part IV: Implications
    12. Legal Analysis
    13. Political Philosophy
    14. Conclusion
    For more information, follow the link.

    Sunday, May 19, 2013

    The Roberts Court, Reinventing Government, and More: This Week in the Book Pages

    In the Washington Post Jeffrey Rosen reviews The Roberts Court: The Struggle for the Constitution (Simon and Schuster).  According to Rosen:
    The great strength of Coyle’s book is the depth and balance of her reporting. She interviewed several justices on background and one, Antonin Scalia, on the record. She also interviewed the lawyers and litigants on both sides of the four highest-profile cases of the Roberts era — involving affirmative action in public schools, gun rights, campaign finance and health care. By allowing all the participants to speak in their own voices, she gives us a nuanced sense of how conservative and libertarian lawyers strategically litigated these cases and transformed the law.
    The Washington Post also has a review of Simpler: The Future of Government (Simon and Schuster) by Cass Sunstein and Citizenville: How to Take the Town Square Digital and Reinvent Government (Penguin) by Gavin Newsom.  Of the two books, Carlos Lozada writes that they "perfectly capture the twin cultural and social-science obsessions of the early 21st century: the networking power of social media and the explanatory power of behavioral economics."

    In the New York Times, you'll find a review of John Taliaferro's All the Great Prizes: The Life of John Hay, from Lincoln to Roosevelt (Simon and Schuster), and a review by Scott Turow of Thomas Dyja's The Third Coast: When Chicago Built the American Dream (Penguin), "a wide-angled cultural history of Chicago in the middle of the 20th century."

    The Wall Street journal has reviews of two biographies of WWII figures.  Carl Rollyson reviews Ray Monk's Robert Oppenheimer: His Life and Mind (Doubleday).  "[T]he author's approach," he writes "demonstrates why previous biographers," namely Kai Bird and Martin Sherwin whose American Prometheus contained a "staggering amount of research," did not "both with detailed descriptions of Oppenheimer's scientific papers."  And Caroline Moorehead reviews Olivia Manning: A Woman at War (Oxford) by Deirdre David.