Saturday, June 29, 2013

Weekend Roundup

  • Although it sounds more in Property than Legal History, but Rick Hills's penetrating post on the Supreme Court's recent exaction decision explains a great deal about the Supreme Court's attempt to police local land use decision since the 1980s (with a look back to the early twentieth century).
  • On the merits of browsing the stacks: in the Chronicle of Higher Education, Julio Alves (Smith College) makes the case for "a greater awareness of what we are losing in overprivileging digital tools, and a better balance of digital practices and traditional ones." 
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 28, 2013

O'Connor, "Taking, Tort, or Crown Right?"

Sean M. O'Connor, University of Washington School of Law, has posted Taking, Tort, or Crown Right? The Confused Early History of Government Patent Policy, which appeared in the John Marshall Review of Intellectual Property Law 12 (2012): 145-204.  Here is the abstract:    
From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British "Crown Rights" rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And the third involved inventions by federal contractors and their employees arising under federal funding. While these three scenarios seem quite distinct today, nineteenth and early twentieth century courts often treated them as overlapping. The confusion was not resolved until the mid-twentieth century when a combination of executive branch and Congressional legislation set the roots of current government patent policy. This Article reviews the history in detail and illuminates current government patent policy debate occurring through such seemingly diverse cases as Stanford v. Roche and Zoltek Corp. v. United States.

Labor and Working-Class History Seminar at Hunter

[We have the following call for papers.]

The Labor and Working-Class History Seminar at Roosevelt House, Hunter College, City University of New York seeks proposals for seminar papers that explore the rich and diverse spectrum of labor history and lived experiences; class dynamics as informed by other social categories and identities; changes in political economy and their policies promoting economic security and other forms of social welfare; and other related topics.

The Labor and Working-Class History Seminar will be an on-going colloquium for a broad academic audience, including graduate students, faculty members, and independent scholars. . . . [A]t the meeting, an invited presenter will offer an overview of a scholarly work, pre-circulated electronically to all participants, and a commentator will provide constructive feedback. The exchange between the presenter and commentator will be followed by a discussion among all seminar attendees.

The Labor and Working-Class History seminar, while focused on history, welcomes scholars from a wide range of disciplines, including human rights studies, public policy studies, sociology, anthropology, literature, law, and environmental studies. We encourage cross-disciplinary discussion, and invite proposals from diverse subject areas and approaches.

Interested scholars who would like to present a portion of their current research on labor and/or class should submit a one page abstract and a brief cv to: Donna Haverty-Stacke and Eduardo Contreras at by August 1, 2013.  Decisions will be communicated by September 1, 2013 to all those who have submitted abstracts.

We have a limited fund to support regional travel but are unable to provide funding for long-distance travel or lodging. If you would like to be placed on the email list to receive announcements of upcoming presentations, please write to:

Thursday, June 27, 2013

Dorn on "In Custodia Legis"

We have just missed until now a terrific series of posts by the Law Library of Congress’s Curator of Rare Books, Nathan Dorn, on In Custodia Legis.  This year’s posts include:

How Robin Hood Defied King John and Brought Magna Carta to Sherwood Forest

The True Portraiture of Judge Littleton

The World’s Legal Heritage in Great Subterranean Halls, or… A Collection Big with Babylonian Perspective

John Lilburne, Oaths and the Cruel Trilemma

Law Librarians and Immortal Glory

Doodling Away the Middle Ages

Signatures, Subscription Lists and Printing for the First U.S. Congress

From Magna Carta on Trial to the Holy Experiment

Pomp, Ceremony and the Simplicity Befitting a Republic

On Despising English Liberties and Other Wisdom from the Founders

Freyfogle on Aldo Leopold's Last Talk

A Sand County Almanac was a big book for me as an adolescent, so I’m especially happy to note that Eric T. Freyfogle, University of Illinois College of Law, has posted Leopold's Last Talk, which appears in the Washington Journal of Environmental law and Politics 2 (2012); 236.  Here is the abstract:    
Aldo Leopold (credit)
During the last decade of his life, Aldo Leopold (1887-1948) delivered more than 100 conservation talks to various popular, professional, and student audiences. In them, he set forth plainly the central elements of his conservation thought. By studying the extensive archival records of these talks one sees clearly the core elements of Leopold’s mature thinking, which centered not on specific land-use practices (good or bad), but instead on what he saw as deep flaws in American culture. Leopold’s sharp cultural criticism — more clear in these talks than in his lyrical, muted classic, A Sand County Almanac — called into question not just liberal individualism but central elements of Enlightenment-era thought. This essay distills the messages that Leopold repeatedly presented during his final years. It clarifies the messages by situating Leopold’s thought within long-running philosophic discussions on the nature of life, the limits on human knowledge, standards of truth, and the origins of value. For Leopold, conservation could succeed only if it challenged prevailing cultural understandings and pressed for specific, radical change. The now-stymied environmental movement has never taken that advice to heart.

Wednesday, June 26, 2013

Historians Weigh in on the Marriage Equality Decisions

George Chauncey has an op-ed in the New York Times (hat tip: H-Law)

Mary Dudziak comments at Balkinization.

Readers may also be interested in these articles from the History News Network:

Historians Weigh in on the VRA Decision

Eric Foner, Clayborne Carson, and H. W. Brands comment on HNN.  See also Mark Graber on Balkinization.

Marier and Piper on Canadian Medical Patent Law

Virginie Marier and Tina Piper, McGill University, have posted Early Twentieth-Century Canadian Medical Patent Law in Practice: JB Collip and the Discovery of Emmenin, which originally appeared in the University of Toronto Law Journal 60 (2010): 855-891.  Here is the abstract:    
In the 1930s, James Bertram Collip (1892-1965) purified, standardized, and then commercialized the hormone Emmenin at McGill University. This focused history of Collip’s development of Emmenin considers how Collip used (and avoided) the legal tools of intellectual property to his advantage, given his complicated place as a scientist/business person/academic/physician inventor in the inter-war era. Collip’s story is significant as a case study as it lends nuance to the picture of the Canadian inventor, shows the daring foresight of early Canadian commercialization business models, and explores the influences that eventually led to the development of university technology transfer offices in Canada. It also highlights germinal moments in the negotiation of standardized agreements and university-industry partnerships. Ultimately, this paper contributes to the task of filling out the history of the development of legal norms regarding intellectual property in Canada by exploring sources outside of case law and legislation to tell a rich story of invention, ownership, and profit.

Tuesday, June 25, 2013

Blokhuis to Lecture on Students Rights at the Kluge Center

On Thursday, June 27, at 12 p.m., Kluge Fellow J.C. Blokhuis discusses “Student Rights and the ‘Special Characteristic of the School Environment’ from a Jurisprudential Perspective” in the Woodrow Wilson Room (LJ-113), Thomas Jefferson Building, Library of Congress. 10 First St. S.E., Washington, D.C.
Until 1966, constitutional rights were not for children. Minors and other legally incompetent persons had custodial interests, not liberty interests. Public educational authority in general and compulsory schooling laws in particular had been predicated on an expansive conception of the duty of the State as parens patriae to safeguard and promote the custodial interests of children.

The Supreme Court wrestled with the custodial implications until 1995, when the ‘special characteristics of the school environment’ were defined in a manner that explained why the constitutional rights of pupils could not be coextensive with those of adults. Professor Blokhuis addresses the difficulties associated with unqualified ascriptions of constitutional rights to minors, particularly in contexts designed to be custodial in the present and liberating in the future.
Webcasts of Kluge lectures go up approximately two months after the date of the program, here.

Ruskola's "Legal Orientalism"

Teemu Ruskola, Emory Law, has just published Legal Orientalism: China, the United States, and Modern Law, with the Harvard University Press:
Since the Cold War ended, China has become a global symbol of disregard for human rights, while the United States has positioned itself as the world’s chief exporter of the rule of law. How did lawlessness become an axiom about Chineseness rather than a fact needing to be verified empirically, and how did the United States assume the mantle of law’s universal appeal? In a series of wide-ranging inquiries, Teemu Ruskola investigates the history of “legal Orientalism”: a set of globally circulating narratives about what law is and who has it. For example, why is China said not to have a history of corporate law, as a way of explaining its “failure” to develop capitalism on its own? Ruskola shows how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day.

The first Sino–U.S. treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated U.S. territorial colonialism after the Spanish–American War in 1898, and found its fullest expression in an American district court’s jurisdiction over the “District of China.” With urgent contemporary implications, legal Orientalism lives on in the enduring damage wrought on the U.S. Constitution by late-nineteenth-century anti-Chinese immigration laws, and in the self-Orientalizing reforms of Chinese law today. In the global politics of trade and human rights, legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways.
TOC here; blurbs after the jump.

New Release: Shapiro, "Trying Biology: The Scopes Trial, Textbooks, and the Antievolution Movement in American Schools"

New from the University of Chicago Press, Adam R. Shapiro, Trying Biology: The Scopes Trial, Textbooks, and the Antievolution Movement in American Schools (2013). Here's a description from the Press:
In Trying Biology, Adam R. Shapiro convincingly dispels many conventional assumptions about the 1925 Scopes “monkey” trial. Most view it as an event driven primarily by a conflict between science and religion. Countering this, Shapiro shows the importance of timing: the Scopes trial occurred at a crucial moment in the history of biology textbook publishing, education reform in Tennessee, and progressive school reform across the country. He places the trial in this broad context—alongside American Protestant antievolution sentiment—and in doing so sheds new light on the trial and the historical relationship of science and religion in America.

For the first time we see how religious objections to evolution became a prevailing concern to the American textbook industry even before the Scopes trial began. Shapiro explores both the development of biology textbooks leading up to the trial and the ways in which the textbook industry created new books and presented them as “responses” to the trial. Today, the controversy continues over textbook warning labels, making Shapiro’s study—particularly as it plays out in one of America’s most famous trials—an original contribution to a timely discussion.
More information is available here.

Monday, June 24, 2013

Kathryn T. Preyer Award: Application Process for 2013

[We're moving this post up one more time, as a reminder that the June 30 deadline is fast approaching.]

The American Society for Legal History welcomes applications for the Kathryn T. Preyer Scholar Award.

About the award:
Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer's friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society's Kathryn T. Preyer Memorial Committee.
Application Process for 2013:
Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable state, are eligible to apply. Papers already submitted to the ASLH Program Committee--whether or not accepted for an existing panel--and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

CFP: Washington Area Early American Seminar

[We have the following call for papers.]

The Washington Area Early American Seminar, hosted by the University of Maryland, College Park, invites proposals from scholars wishing to present work in progress in the next academic year.

The seminar meets on Fridays (monthly during term-time) and our regular members include faculty and graduate students from a variety of DC-area institutions. Papers are pre-circulated and our afternoon (4-6pm) seminars are followed by a dinner at a local restaurant.

To propose a paper, please send a brief cv and a tentative title along with a 300 word description of the topic and its connection to your publishing plans to Rick Bell ( and Holly Brewer ( We especially welcome proposals from scholars farther afield who will be visiting the DC area for research this coming year. For consideration for the 2013-14 academic year, please send proposals before 1 July 2013.

Altman Accepts Amherst VAP

Congratulations to Clara Altman, Legal History Blogger and Facebook Coordinator, for landing a position as Visiting Assistant Professor of Law, Jurisprudence, and Social Thought, which she will shortly take up at Amherst College.  Clara is completing her dissertation, “Courtroom Colonialism: Philippine Law and U.S. Rule, 1898-1935,” at Brandeis University.  She has just completed a year as a fellow in the Miller Center for Public Affairs at the University of Virginia.  All of us Legal History Bloggers are grateful to Clara for her faithful and imaginative work as Facebook Coordinator and regular creator of our Sunday book review post.

First issue of Comparative Legal History

We recently announced the launch of Comparative Legal History, the journal of the European Society for Comparative Legal History. The first issue is now out. Full access is limited to subscribers, but here's a glimpse of the table of contents:
Editorial Articles

The Challenges of Comparative Legal History
David Ibbetson

American Responses to German Legal Scholarship: From the Civil War to World War I
David M Rabban

The Political Offence and the Safeguarding of the Nation State: Constitutional Ideals, French Legal Standards and Belgian Legal Practice (1830-1870)
Bram Delbecke

Sex, Crime and the Law: Russian and European Early Modern Legal Thought on Sex Crimes
Marianna Muravyeva  

Review Article

Comparative and Economic Approaches to Law: A Tale of Wilful Misunderstanding?
Jaakko Husa

Book Reviews

Manlio Bellomo, Inediti della giurisprudenza medievale
Reviewed by Emanuele Conte

Alejandro Guzmán-Brito, Codificación del Derecho Civil e Interpretación de las Leyes: Las normas sobre interpretación de las leyes en los principales Códigos civiles europeo-occidentales y americanos emitidos hasta fines del siglo XIX
Reviewed by MC Mirow

Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire and China
Reviewed by Zülâl Muslu

Mia Korpiola (ed), Regional Variations in Matrimonial Law and Custom in Europe, 1150-1600
Reviewed by Richard Mc Mahon

 MC Mirow, Florida's First Constitution, the Constitution of Cádiz: Introduction, Translation, and Text
Reviewed by Peter L Reich

 Anthony Musson and Chantal Stebbings (eds), Making Legal History: Approaches and Methodologies
Reviewed by Adelyn LM Wilson

Sunday, June 23, 2013

Book Review Roundup

  • From History News Network: a review of Richard Breitman and Allan Lichtman's FDR and the Jews (Belknap, 2013)
  • The NYT also covers two books on higher education: Is College Worth It? A Former United States Secretary of Education and a Liberal Arts Graduate Expose the Broken Promise of Higher Education (Thomas Nelson), by William J. Bennett and David Wilezol, and College (Un)bound: The Future of Higher Education and What It Means for Students (New Harvest/Houghton Mifflin Harcourt), by Jeffrey J. Selingo.
The Book Review Roundup is a weekly feature compiled by all the Legal History bloggers.

Saturday, June 22, 2013

Weekend Roundup

  • If you've never perused the website of the Historical Society of the New York Courts it is worth a look. 
  • Over at H-Law, Kenneth J. Hirsh, Cincinnati Law, plugs the Louis Marshall Papers at the Jacob Rader Marcus Center of the American Jewish Archives at the Cincinnati campus of Hebrew Union College.
  • Lori Clune, an assistant professor of history at California State University, Fresno, makes the case for sparing the Rosenbergs at HNN.
  • The American Academy in Berlin invites applications for its residential fellowships for 2014-2015, as well as early applications for the academic years 2015-2016 and 2016-2017. The deadline is Monday, September 2, 2013 (12 pm EST or 6 pm CET).  More.
  • The University of Pennsylvania Law Review is looking for contributors to “its online companion, Heightened Scrutiny. Essays selected for HS go through the full editorial process and are published to the major databases, in addition to being perpetually available on our website. We typically run shorter pieces with an eye towards more timely commentary on current events in the law.”
  • It's still June, so there's still hope for our summer writing agenda.  If you're feeling the need to be sternly talked to on the subject, try Rachel Toor in the Chronicle of Higher Education: I Don't Write Enough Because ...  Hat tip: Linda Przybyszewski.
The Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 21, 2013

Solicitors General: The New York Influence

Charles Evans Hughes, Jr.
We note with interest the panel, Solicitors General and the Supreme Court: The New York Influence.  Elena Kagan, Associate Justice, U.S. Supreme Court, will participate.  John Q. Barrett, St. John's Law, will present on "Robert H. Jackson as Solicitor General."  The session will include a “Conversation with Solicitors General,” moderated by Jeffrey P. Minear, Counsel to the Chief Justice of the United States.  The event will be held on the evening of October 25, 2013, at the The New York City Bar, 42 West 44th Street, New York, NY.

Dutch New York and the Law

Just out from SUNY Press is the collection of essays, Opening Statements: Law, Jurisprudence, and the Legacy of Dutch New York, edited by Albert M. and Julia C. Rosenblatt.
No society can function without laws, that set of established practices and expectations that guide the way people get along with one another and relate to ruling authorities. Although much has been written about the English roots of American law and jurisprudence, little attention has been paid until recently to the legacy left by the Dutch. In Opening Statements, a broad spectrum of eminent scholars examine the legal heritage that New Netherland bequeathed to New York in the seventeenth century. Even after the transfer of the colony to England placed New York under English Common Law rather than Dutch Roman Law, the Dutch system of jurisprudence continued to influence evolving American concepts of governance, liberty, women’s rights, and religious freedom in ways that still resonate in today’s legal culture.
The TOC after the jump.

Thursday, June 20, 2013

Goluboff on "Lawyers, Law and the New Civil Rights History"

Risa Goluboff (UVA--Law and History) has published "Lawyers, Law and the New Civil Rights History" in 126 Harvard Law Review 2312 (June 2013).  The piece is a review of Representing the Race: The Creation of the Civil Rights Lawyer by Ken Mack  (Harvard Law). Goluboff's review takes the form of a very useful historiographic essay.  Mack replies with "Civil Rights History Old and New."

Update: I just want to second Tomiko on the importance of this exchange.  It strikes me as the likely point of departure for the legal historiography of the civil rights movement for the foreseeable future.  Further, analogous issues arise in the histories of other fields of law.  DRE

CFP: Law, Peace, and Violence

The symposium "Law, Peace, and Violence: Jurisprudence and the Possibilities of Peace" will be held at Seattle University School of Law on March 14, 2014.  It is organized by Professor Yxta Murray of Loyola Law School and hosted by the Seattle Journal of Social Justice.
Can the law help forge a more peaceful world? In this symposium, legal scholars will study law’s potential to increase domestic and international peace. We will also focus on the problems that peace rhetoric creates for rights developments, particularly in the ways that it is used to marginalize outsiders’ direct action efforts.

Another Report on the Taussig Collection

. . . from the National Law Journal.  Our earlier post on this acquisition by the Yale Law School is here.

Dubrow Wins Mellon New Directions Fellowship

According to the North Adams Transcript, "Sara Dubow, associate professor of history at Williams College, has been awarded a New Directions Fellowship from the Andrew W. Mellon Foundation to develop research projects that focus on the legal history of reproductive and sexual politics."  More.

Wednesday, June 19, 2013

Constitutional History and the Defense of Humanities and Social Science

Today’s Washington Post reports on the American Academy of Arts and Sciences’ attempt to STEM the flight from humanities.  Here’s a report of a similar intervention that combines constitutional history and classical notions of citizenship.

Cromwell Research Fellowships: Deadline July 15

[And, while we are at it, here is a reminder that the deadline for the Cromwell Research Fellowship is less than a month away.]

Note the July 15, 2013 deadline for the Cromwell Research Fellowships in American Legal History. These are annual awards of up to $5000 made to dissertators and scholars in the early stages of their careers to support research and writing. Applicants should submit a description of their proposed project (double-spaced, maximum 6 pages, with working title), a budget, a timeline, and a short c.v. (no longer than 3 pages.  Two letters of recommendation from academic referees should be sent directly to the committee chair via email attachment. Applications must be submitted electronically (preferably in one .pdf file) to the committee chair, Cornelia H. Dayton.  Notification of the awards occurs in early November. More information is here.

The Paul Murphy Award: Deadline June 30

[The deadline for the Murphy Award (June 30) is fast approaching, so we are moving this post up.]

The American Society for Legal History announces the Paul Murphy Award to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. This is a two-year award only, and this is the second and final year award will be given. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.  The 2012 Murphy Award is announced here:

The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent's Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation's leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); and Historic Background of the Bill of Rights, Vol. 1 (1990). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy's commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.

To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book's contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (  The proposal should indicate how the award will assist you in completing your book.  Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put "Murphy Award" in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, Emory School of Law, 1301 Clifton Rd NE Atlanta Georgia 30322. The deadline for receipt of proposals for this year's award is June 30, 2013.

Members of the Murphy Award Committee are:
Mary L. Dudziak, Chair, Emory University
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas

Irving on Constitutional Interpretation and the Discipline of History

Helen Irving, University of Sydney Law, has posted Constitutional Interpretation and the Discipline of History, Federal Law Review 41 (2013).  Here is the abstract:
The use of history in constitutional interpretation is widespread. It is defended by scholars and practiced by judges, both in Australia and, in particular, the United States; it also attracts many critics. Originalism, (as this practice has come to be known), comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. What originalists and critics alike rarely consider is whether, and if so, how it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: If history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?

This paper explores what conventional historians do, (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism, but concludes that history should be used in constitutional interpretation only with great care and only rarely.
Hat tip: Legal Theory Blog

Luff, "Commonsense Anticommunism: Labor and Civil Liberties Between the World Wars"

Via Historically Speaking, we've learned that the June 2013 issue of the Journal of the Historical Society features a forum on Commonsense Anticommunism: Labor and Civil Liberties between the World Wars (University of North Carolina Press, 2012), by Jennifer Luff (Kalmanovitz Initiative for Labor and the Working Poor, Georgetown University). Here's the Press's description of the book:
Between the Great War and Pearl Harbor, conservative labor leaders declared themselves America's "first line of defense" against Communism. In this surprising account, Jennifer Luff shows how the American Federation of Labor fanned popular anticommunism but defended Communists' civil liberties in the aftermath of the 1919 Red Scare. The AFL's "commonsense anticommunism," she argues, steered a middle course between the American Legion and the ACLU, helping to check campaigns for federal sedition laws. But in the 1930s, frustration with the New Deal
order led labor conservatives to redbait the Roosevelt administration and liberal unionists and abandon their reluctant civil libertarianism for red scare politics. That frustration contributed to the legal architecture of federal anticommunism that culminated with the McCarthyist fervor of the 1950s.
Relying on untapped archival sources, Luff reveals how labor conservatives and the emerging civil liberties movement debated the proper role of the state in policing radicals and grappled with the challenges to the existing political order posed by Communist organizers. Surprising conclusions about familiar figures, like J. Edgar Hoover, and unfamiliar episodes, like a German plot to disrupt American munitions manufacture, make Luff's story a fresh retelling of the interwar years.
A few blurbs:
"Truly an original piece of scholarship that makes a substantial contribution to the history of communism, anticommunism, labor, and American political history. This well-written and provocative book is evenhanded in its approach to controversial issues--readers will learn a great deal from it."
--Eric Arnesen, George Washington University

"A learned, nuanced, and comprehensive exploration of the role labor conservatives played in constructing the postwar Red Scare. This much needed and painstakingly researched book will be required reading of anyone looking to understand the origins and scope of the Red Scare."
--Ellen Schrecker, Yeshiva University
Here's a sneak peak of what you'll find in the Journal of the Historical Society forum. Luff writes:
I tried to follow the clues that the testimony of John Frey and J. Edgar Hoover gave me. In the end, I came up with Commonsense Anticommunism. The book argues that conservative officials of the American Federation of Labor were the vanguard of American anticommunism in the interwar years. The AFL's antisocialism and ingrained suspicion of state power produced an organic and reflexive opposition to Soviet Communism that pervaded the AFL from the first days of the Bolshevik Revolution. Yet AFL leaders played a paradoxical role, evangelizing against Communism while opposing statutory restrictions on Communist activity, and often clandestinely collaborating with federal repression of Communists while rejecting formal authority for federal repression. In keeping with their longstanding ethos, AFL leaders advocated a voluntarist approach to contain Communism, which relied on private citizens and organizations to identify and repudiate reds in their midst. AFL leaders viewed Communism as an obnoxious but legitimate political movement, not a cultural tendency or a catch-all for all sorts of radicalism, which put them at odds with many other antiradical and patriotic groups in the interwar years. I call their approach “commonsense anticommunism,” and I argue that labor anticommunists were a crucial backstop protecting civil liberties in the 1920s and early 1930s.
 More information about the book is available here.

Tuesday, June 18, 2013

Yale Law Acquires the Taussig Collection

In case you missed the story in yesterday's New York Times:
A pocket-size 14th-century handwritten copy of Magna Carta, the first book on the legal rights of women published in England, letters from the 18th-century jurist William Blackstone and papers belonging to a real-life London lawyer praised by Charles Dickens’s fictional yes-man Uriah Heep are among the highlights of a rich trove of rare legal books and manuscripts just acquired by Yale University.

Rethinking the History of American Legal Thought

[Here is the last in a series of post by David Rabban on his book Law's History: American Legal Thought and the Transatlantic Turn to History.  The series begins here.  All of here at LHB thank David for contributing them.]

In prior posts about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I emphasized the dominance of the "historical school of American jurisprudence" during the late nineteenth-century.  In this final post, I discuss the implications of this historical school for modern understandings of the history of American legal thought.  In brief, the historical school's analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, views that refute the conventional twentieth-century attributions of formalism and conservatism to late nineteenth-century legal thought.

During most of the time that I worked on my book, I did not intend to devote much of it to these implications.  Even as I increasingly realized that my findings challenged conventional wisdom, I worried about deflecting attention from my primary focus on recovering the intellectual world of the historical school.  Yet helped by discussions with many colleagues as I worked on and gave presentations about my work in progress, I ultimately concluded that these implications were too significant to ignore or to minimize.  I decided to address them directly while hoping that doing so would not overshadow the nineteenth-century scholars themselves.  I added two long chapters at the end of the book on twentieth-century interpretations of late nineteenth-century American legal thought.  One chapter is on Roscoe Pound, who in the decade before World War I formulated much of the critique of legal formalism.  The other chapter is on the scholars who followed Pound, from the legal realists Felix Cohen and Karl Llewellyn through important late twentieth-century commentators, especially Robert Gordon, Thomas Grey, Morton Horwitz, Duncan Kennedy, and Stephen Siegel.

Roscoe Pound was the key figure both in ending the dominance of historical explanation in American legal scholarship and in creating the influential, though often inaccurate, interpretation of late nineteenth-century legal thought that persisted throughout the twentieth century.  Pound's crucial role in these major intellectual developments has been obscured by subsequent scholars, who have mostly concentrated on his nasty debate with Karl Llewellyn about legal realism in the 1930s.  That debate, whose intellectual significance did not approach its emotional venom, occurred during the long twilight of Pound's career.

Pound's critique of his late nineteenth-century American predecessors derived largely from his strong personal belief that the traditional individualism of American society had become dysfunctional.  In articles that made him a leading American legal scholar, Pound maintained that the social problems of twentieth-century industrial society could only be solved by recognizing collective interests.  He stressed that prior jurisprudential schools, including what he called the school of "historical jurisprudence" that had prevailed in the United States since roughly 1870, both reflected and provided legal support for the excessive individualism that stood in the way of needed social reform.  Throughout his critique of historical jurisprudence, Pound linked individualism with deductive formalism.  Subsequent American legal scholars have largely followed Pound's criticisms of his nineteenth-century predecessors while losing sight of his emphasis on the centrality of history in their thought.

As Pound himself emphasized, his call for a collectively oriented and pragmatic sociological jurisprudence to supersede the individualism and deductive formalism of historical jurisprudence was part of a transatlantic intellectual trend.  Both in Europe and in the United States, many maintained that collectivism should replace the individualism of the past in order to achieve necessary social and economic changes.  Just as the general turn to history in many Western countries and scholarly disciplines affected American legal thought during the late nineteenth century, the movement from individualistic to collective perspectives across countries and disciplines affected it in the early twentieth century, especially through Pound's influential work.

Pound's criticism of historical jurisprudence focused on Savigny.  In founding historical jurisprudence, Pound claimed, Savigny was as individualistic and as committed to formal deduction as the previous school of philosophical jurisprudence.  Savigny simply substituted historical research for philosophical analysis as the method for identifying the legal principles from which to deduce a timeless legal structure.  Just as philosophical jurisprudence derived individualistic legal principles from theories of natural rights, historical jurisprudence derived them from historical sources.  It portrayed legal history as an unconscious and inevitable process that revealed the gradual unfolding of the idea of individual freedom and left no room for human will.  It thereby produced a "juristic pessimism" incompatible with reform and oblivious to justice, which allowed the perpetuation of laws that did not serve current needs.  Throughout his work, Pound made clear that he borrowed substantially from Jhering's earlier critique of historical jurisprudence in Germany in analyzing what he treated as an inferior, derivative version in the United States, to which he devoted substantially less attention.

In my chapter on "Pound's Successors," I observe that beginning with Duncan Kennedy's pioneering work in the 1970s on the structure of "classical legal thought," some commentators have treated their late nineteenth-century predecessors more respectfully and in greater detail than had Pound and the legal realists.  Especially since 1990, when Stephen Siegel published his groundbreaking article on "Historism in Late Nineteenth-Century Constitutional Thought," legal historians have redirected attention to the importance of history in late nineteenth-century legal thought while providing more extensive and nuanced explorations of its content.  Yet much of this excellent recent work perpetuates Pound's claims about the deductive formalism and resulting conservatism of his predecessors.

As previous posts have indicated, my book reveals that the widely held consensus about late nineteenth-century American legal scholarship is largely inaccurate.  It prompts suspicion that this consensus derives more from the progressive intellectual and political agenda of twentieth-century scholars than from a close reading of their nineteenth-century predecessors.  Evolutionary understandings of law, not unchanging deductive formalism, pervaded the legal thought of late nineteenth-century American legal scholars.  As part of their rejection of "mere theory," they emphasized that their reliance on the empirical evidence of history made law an inductive science, in contrast to the deductive science of mathematics.  Legal scholars often invoked history to reform rather than to justify existing law, identifying dysfunctional survivals from the past that should be eliminated.  As some recent revisionist work has observed, in their personal politics they were more likely to be Mugwump reformers or Jacksonian democrats than conservative apologists for laissez-faire capitalism.  They frequently spoke out against the increasing materialism of American society and denounced the excesses and inequalities produced by the growth of corporate capitalism.  Some participated actively in public affairs, from opposition to slavery before the Civil War to postwar efforts combating municipal and corporate corruption, promoting civil service reform, and urging better treatment of American Indians.  Yet unlike Pound and many twentieth-century progressives, they did not see American society in a state of crisis or view law as a pragmatic means to address contemporary social problems that required immediate attention.
In writing about the late nineteenth-century American legal scholars, my primary goal has been to understand them on their own terms.  Immersed in the evolutionary social thought that dominated nineteenth-century Western intellectual life, the first professional legal scholars in the United States had confidence in the power of the past to explain, and potentially to reform, the present.  Subsequent generations have lost this confidence, perhaps historians most of all.  My attempt to recover the intellectual world and professional achievements of the late nineteenth-century American legal scholars, freed from the frequent misrepresentations and condescension of their successors, is a very different kind of history, reflecting very different assumptions and goals, from their own.  I hope it provides insights into the intellectual history of American legal thought and adds to the healthy diversity of methodological approaches among modern legal historians.

I close this final post by thanking Dan Ernst for inviting me to contribute to the Legal History Blog.  I have enjoyed hearing from some readers of these blogs, and I welcome additional comments.

Monday, June 17, 2013

Book Chat: George Washington and the Presidency

Over at New Books in History, Marshall Poe interviews Logan Beirne, an Olin Scholar at Yale Law, on Blood of Tyrants: George Washington and the Forging of the Presidency (Encounter Books, 2013):
You sometimes see bumper stickers that say “What would Jesus do?”  It’s a good question, at least for Christians. You don’t see bumper stickers that say “What would Washington do?”  But that, Logan Beirne says, is a question Americans should be asking. In Blood of Tyrants: George Washington & the Forging of the Presidency (Encounter Books, 2013), Beirne shows that the American presidency was born as much out of the personality of one man–George Washington–as it was out of the political philosophies of the founding fathers. After all, the framers had never seen a presidency before–almost all previous states were led by monarchs, and that was not an option for the new American Republic. So they looked at Washington, what he had done during the Revolutionary War, and modeled the presidency after him. Not surprisingly since Washington was a military man, they got a presidency that was, well, rather martial. Listen in and find out why.