Monday, September 30, 2013

CFP: Law & Humanities Junior Scholar Workshop

[We have the following call for papers.]

The University of Southern California Center for Law, History & Culture, UCLA School of Law, Columbia Law School, and Georgetown University Law School invite submissions for the tenth meeting of the Law & Humanities Junior Scholar Workshop to be held at USC School of Law in Los Angeles, CA on June 8 & 9, 2014.


The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences.  Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop.  At the Workshop, two senior scholars will comment on each paper.  Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words.  A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity.  A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop.  The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment.  The Workshop will pay the travel and hotel expenses of authors whose papers are selected for presentation.

Submissions (in Word, no pdf files) will be accepted until January 6, 2014, and should be sent by e-mail to:? Center for the Study of Law and Culture,  Please be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information. 

For more information contact Cindy Gao, 212.854.0167 or  Past winners are here.

CFP for LSA: Colonial Law around the Indian Ocean

[We have the following CFP.]

We seek panelists for the 2014 Law and Society Association meeting in Minneapolis (May 29-June 1) for a panel entitled Colonial Law around the Indian Ocean. We are looking for scholars interested in colonial law around the Indian Ocean littoral, including East Africa, Persian Gulf, South Asia, and Southeast Asia. We are particularly interested in papers that probe legal classifications, different understandings of imperial and/or indigenous legal knowledge, and related topics. Our panel currently comprises one paper that would explore legal classification of Arabs in the Netherlands Indies and another that would focus on colonial versus metropolitan classifications of legal knowledge and legal conceptions of publicity in the French Indian Ocean colonies.

If you're interested in joining our panel, please contact both Laurie Wood at and Fadzilah Yahaya at before October 7.

Witt on Suffering in War

John Fabian Witt, Yale Law School, has posted Two Conceptions of Suffering in War, which is forthcoming in Knowing the Suffering of Others, ed. Austin Sarat (University of Alabama Press).  Here is the abstract:    
Since at least the middle of the nineteenth century, two competing conceptions of suffering in wartime have dominated western thought about the laws of armed conflict. One conception views suffering – and especially suffering in war – as an evil in itself. Those who take this view, like Henri Dunant, founder of the International Committee of the Red Cross and inspiration for the Geneva Convention of 1864, typically adopt the minimization of suffering as the principal goal for a law of war. Another conception of suffering in war, however, sees the experience of pain as an inevitable and sometimes even ennobling accompaniment to the hard work of bringing about just ends in the world. This latter view rejects the idea that one can evaluate suffering or its legal significance without knowing why the suffering exists. This approach has a long tradition, too, one that stretches back through Dunant’s contemporary the Prussian-American Francis Lieber, drafter of the Union’s rules of engagement in the American Civil War.

These two ways of making sense of human suffering (and the conflicts between them) have animated legal efforts to manage warfare ever since Dunant and Lieber launched the modern chapter of the laws of armed conflict a century and a half ago. And for good reason. Each of the two dominant conceptions of suffering contains inescapable limits and indispensable moral insights. The difficulty – our difficulty – is to capture their insights while containing their flaws.

Trials for International Crimes in Asia

We have an announcement for the conference, "Trials for International Crimes in Asia," hosted by the Centre for Asian Legal Studies at the Faculty of Law, National University of Singapore, on October, 17-18, 2013.  According to the announcement, the conference
will examine the legal issues arising from the tribunals convened in Asia to deal with crimes of international import - namely, aggression, war crimes, genocide, and crimes against humanity. It will consider both tribunals that have been established on the initiative of Asian governments and tribunals mounted in Asia at the behest of non-Asian governments or international organisations. In keeping with the legal theme, it will lay particular stress on the different modes of liability developed within these courts' respective jurisdictions - among them, joint criminal enterprise, command responsibility, complicity, and defences against them.

Over a seven-decade time-span, many tribunals have been convened in the region, from the earliest, established in Manila and Tokyo after the Second World War, to the latest, currently hearing cases in Phnom Penh and Dhaka. During the intervening years, lesser-known trials were also mounted by the colonial powers in Singapore, Hong Kong, Batavia, Saigon and elsewhere; by the Guomindang and People's Republic of China in the early Cold War period; and by the Vietnamese authorities after Khmer Rouge rule in the 1970s. Beyond the historical-political analysis, the conference aims to draw substantive conclusions about the legal legacy of these tribunals, and appraise the mechanisms evolving in Asia today, either at the 'hybrid' internationalised tribunals or within national systems.
Places are limited. For further details, please email:  The registration form is here.  The schedule appears after the jump.

Sunday, September 29, 2013

Richard Bernstein on Thomas Jefferson's Quran: How Islam Shaped the Founders

R.B. Bernstein (New York Law School) has published a review of Denise A. Spellberg’s Thomas Jefferson’s Qur’an: Islam and the Founders in the Daily Beast.  The book is "enlightening," Bernstein
concludes. The author shows that "leading figures as Thomas Jefferson, James Madison, and George Washington spurned exclusionary arguments, arguing that America should be open to Muslim citizens, office-holders, and even presidents."

Sunday Book Roundup

In the Chronicle of Higher Education there is a review of The Allure of the Archives (Lewis Walpole Series) in which "the historian Arlette Farge conveys how much life can burst from brittle old pages."

H-Net also has several reviews of interest, including a review of Andreas Wimmer's Waves of War: Nationalism, State Formation, and Ethnic Exclusion in the Modern World (Cambridge University Press) as well as a review of Jo Becker's Campaigning for Justice: Human Rights Advocacy in Practice (Stanford University Press). Andrew E. Busch's Truman's Triumphs: The 1948 Election and the Making of Postwar America (University Press of Kansas) has also been reviewed on H-Net.
"Busch’s purpose in Truman’s Triumphs is straightforward. His goal is to analyze the 1948 election, paying heightened attention to the nomination process, the congressional elections, and public opinion. Joining other scholars, Busch argues that the 1948 election was a validation of the domestic policy of the New Deal, of the foreign policy of containment, and of the federal policy advocating civil rights. Busch contributes the unique interpretation that the 1948 election demonstrated both the “resilience” and “vulnerability” of the New Deal coalition (p. 210). He points out that although Truman trailed in the polls and came from behind, he also had significant advantages such as the New Deal coalition. In addition, Busch proves that although the Democrats suffered from obvious schisms, the Republicans were less noticeably but no less critically divided."

Adrian Brettle takes a look at "The Past, Present, and Future of Confederate Nationalism" in a review of two books: Paul Quigley's Shifting Grounds: Nationalism and the American South, 1848-1865 (Oxford University Press), and Coleman Hutchison's Apples and Ashes: Literature, Nationalism, and the Confederate States of America, (University of Georgia Press).
"Although Hutchison and Quigley tackle the larger topic of Southern nationalism from the antebellum era to Reconstruction, they focus on the experience of the Civil War and Confederate nationalism and argue that such nationalism preceded the formation of the Confederacy. Quigley shows the emergence of Southern nationalism “as a variant” and “fringe” of American nationalism. But, by evolving into a mainstream belief, he notes, it was transformed into Confederate nationalism as it struggled to reconcile its two inherent contradictions: first, a slavery based creed needing to appeal to non-slaveholders; and second, a “nationalism that derived its legitimacy from the ostensibly anti-national principle of State rights” (p. 13). Hutchison, by way of using the Confederacy as a case study, seeks to contribute to a wider investigation of the role of various genres of literature in the emerging of political communities. At the same time, Hutchison also wishes to prove his case that literary nationalists helped produce the Confederacy and created a “literary nationalism that was not only internationally minded, but also more durable than its state apparatus” (p. 4)."
And, here's one we missed a few months back, a review of Rick Baldoz's The Third Asiatic Invasion: Empire and Migration in Filipino America, 1898-1946  (New York University Press), "an important work for historians seeking to bridge the fields of immigration and imperial studies."

The LA Review of Books reviews The Inconvenient Indian: A Curious Account of Native People in North America (University of Minnesota) by Thomas King.
"King’s tone is breezy and light, full of funny stories and self-deprecating jokes, but just below that geniality lies a deep reservoir of bitterness over the treatment of Indians in Canada and the United States that continues on to this day. White North Americans, he argues, prefer their Indians noble, primitive, and safely extinct, and actual, live Indians who stubbornly insist on their rights as an independent people they regard as at best a troublesome nuisance.

Salon again this week publishes an excerpt from a law and history related book, Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer by Margaret Klaw (Algonquin Books).

There are a few reviews this week of Year Zero: A History of 1945 (Penguin) by Ian Buruma, here in the New York Times and here in the New York Review of Books.

There's also two reviews of The Collaboration: Hollywood’s Pact with Hitler (Belknap Press) by Ben Urwand, one in the Washington Post, and a second in the Wall Street Journal.

Saturday, September 28, 2013

Weekend Roundup

  • The School of Historical Studies at the Institute for Advanced Study invites candidates to apply for a single term or full academic year. (Hat tip: H-Law)
  • Some legal works in Swann's auction of Printed and Manuscript Americana on October 10, including Henry St. George Tucker’s Commentaries on the Laws of Virginia (1836-37); Laws of the State of New-York, Comprising the Constitution, and the Acts of the Legislature since the Revolution (1789); and The Two Principal Arguments of William Wirt, Esquire, on the Trial of Aaron Burr, for High Treason (1803).
  • The Stanford Humanities Center invites applications for the 2014-15 fellowship term. (Hat tip: H-Law)
  • "The Program in Law and Public Affairs (LAPA) at Princeton University invites outstanding faculty members, independent scholars, lawyers, and judges to apply for visiting, residential appointments for the academic year 2014–2015." There is a long and proud tradition of legal historian LAPA fellows, so apply! More information is available here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 27, 2013

"Signposts," "Westward Bound," "Inside the Castle" Reviewed in the Law & Politics Book Review

The Law & Politics Book Review is out with a new batch of reviews. Items of interest include:

Walter F. Pratt, Jr. (University of South Carolina School of Law) reviews SIGNPOSTS: NEW DIRECTIONS IN SOUTHERN LEGAL HISTORY (University of Georgia Press, 2013), edited by Sally E. Hadden and Patricia Hagler Minter.

Zvi H. Triger (The Haim Striks School of Law, College of Management Academic Studies, Rishon LeZion, Israel) reviews INSIDE THE CASTLE: LAW AND THE FAMILY IN 20TH CENTURY AMERICA (Princeton University Press, 2011), by Joanna L. Grossman and Lawrence M. Friedman.

Michael Boudreau (Department of Criminology & Criminal Justice, St. Thomas University) reviews WESTWARD BOUND: SEX, VIOLENCE, THE LAW, AND THE MAKING OF A SETTLER SOCIETY (UBC Press, 2011), by Lesley Erickson.

Call for Applications: Jerome I. Braun Prize in Western Legal History

Via H-Law, we have the following announcement:
The Ninth Judicial Circuit Historical Society announces the 2013 Jerome I. Braun Prize for the best unpublished manuscript in the field of western legal history. This prize will be awarded for the best article-length manuscript on the legal history of the trans-Mississippi North American West. The Braun Prize carries a cash award of $1,000 for the winning essay and $500 for the first runner-up. The winning essays will be published in the NJCHS journal Western Legal History. Authors are encouraged to explore topics that illuminate the contributions of the law, lawyers, judges, and law-related organizations to the social, political, economic, and cultural history of the North American West. 
More information is available here.

Thursday, September 26, 2013

Tinker Talks!

Arabella Mansfield (credit)
River to River, a program of Iowa Public Radio devoted to the state’s “news, issues and events,” recently devoted a broadcast to Iowa Legal History.  The broadcast included an interview with Mary Beth Tinker, who, as a thirteen-year-old in 1965, “arrived at her Des Moines junior high wearing a black armband to protest the Vietnam War.”  The host, Ben Kieffer, discusses other “legal milestones,” including Arabella Mansfield (right), “the first female lawyer in the U.S.,” and In re the Matter of Ralph, “the very first case decided by the Iowa Supreme Court concerning a former slave who was captured by bounty hunters.”  Listen here.

July 2013 Issue of Journal of Supreme Court History

A new issue of the Journal of Supreme Court History is out. Here's the table of contents:
Melvin I. Urofsky 
Slouching Towards Roth: Obscenity and the Supreme Court, 1945-1957
Whitney Strub

Tom Clark under Fire:  The Consequences of Congressional Investigations of Supreme Court Justices
Craig Alan Smith

Tom Clark’s Transition from Attorney General to Supreme Court Justice
Alexander Wohl

October Term 1963: “The Second American Constitutional Convention”
L.A. Powe, Jr.

Inventing Democratic Courts: A New and Iconic Supreme Court
Judith Resnik and Dennis Curtis

Addenda to “Fair Labor:  The Remarkable Life and Legal Career of Bessie Margolin”:  A Discussion of Methodology on Tallying Margolin’s Supreme Court Argument Record as Well as Those of Other Pioneer Female Advocates Mabel W. Willebrandt, Helen R. Carloss and Beatrice Rosenberg
Marlene Trestman

The Judicial Bookshelf
Donald Grier Stephenson Jr.
Hat tip: H-Law

Knapp on "James Wilson and the Birth of American Jurisprudence"

Via the Legal Theory Blog, we have word of an article of interest: "Law's Revolutionary: James Wilson and the Birth of American Jurisprudence," by Aaron T. Knapp (Boston University). It is scheduled to appear in Volume 29 of the Journal of Law and Politics (Fall 2013). Here's the abstract:
This intellectual history of oft-forgotten founder James Wilson contends that as an outgrowth of his peculiar anti-Publian constitutionalism, Wilson’s post-ratification jurisprudence endeavored conceptually to reconcile American Law with the American Revolution in ways that even his ablest commentators have failed to appreciate but which boast a significance in the history of American legal thought that should command the attention of legal and constitutional historians alike. Spanning the period from 1774 to 1798, the Article’s historical analysis of Wilson’s ideas over time complicates prevailing literature on popular sovereignty’s origins and influence in post-Revolutionary America, revises influential scholarship interpreting pre-Marshallian Federalist jurisprudence in the 1790s, and sheds new light on the role of civic virtue in early American constitutional culture.
The full article is available here, at SSRN.

Wednesday, September 25, 2013

Freyer and Morris on the Making of Cayman

Tony A. Freyer and Andrew P. Morriss, University of Alabama School of Law, have posted Creating Cayman as an Offshore Financial Center: Structure & Strategy Since 1960, whih is forthcoming in the Arizona State Law Journal.  Here is the abstract:    
The Cayman Islands are one of the world’s leading offshore financial centers (OFCs). Their development from a barter economy in 1960 to a leading OFC for the location of hedge funds, captive insurance companies, yacht registrations, special purpose vehicles, and international banking today was the result of a collaborative policy making process that involved local leaders, expatriate professionals, and British officials. Over several decades, Cayman created a political system that enabled it to successfully compete in world financial markets for transactions, participate in major international efforts to control financial crimes, and avoid the political, economic, racial, and social problems that plague many of its Caribbean neighbors. Using archival sources, participant interviews, and a wide range of other materials, this Article describes how the collaborative policy making process developed over time and discusses the implications of Cayman’s success for financial reform efforts today.

Thank You, Sally Gordon! And Welcome, . . . Ms. Peppercorn?

We at LHB are so grateful to Sarah Barringer Gordon for joining us as a guest blogger these past weeks. She has responded to common queries about legal historical publishing, opened up a conversation about the entry-level hiring market, reminded us of the joys of reading outside of our subject areas, and much more!

Readers have responded so enthusiastically to her posts that we have invited her to stay on as a sort of advice columnist in residence -- someone to respond to questions about everything from applying to graduate school to publishing a third or fourth book.

She is doing this for nothing -- a peppercorn consideration, as they say in contract law -- and offers her advice with the proverbial grain of salt. With a nod to advice columnists past ("Dear Abby," "Dorothy Dix"), we will title these occasional posts "Ms. Peppercorn Considers."

If you have a question that you'd like to see addressed on the blog, send a message to the blog email address.

Dennis on "Blacks Informing during Slavery"

Andrea Dennis, University of Georgia Law School, has posted A Snitch in Time: An Historical Sketch of Black Informing During Slavery, which is forthcoming in the Marquette Law Review,  97 (2014).  Here is the abstract:    
This article sketches the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community’s response at that time. Despite potentially creating benefits such as crime control and sentence reduction, some Blacks today are convinced that cooperation with government investigations and prosecutions should be avoided. One factor contributing to this perspective is America’s reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely the Black community’s relationship with informing. Furthermore, even among this small group of works, noticeably absent are historical explorations of Black America’s experience with informing during slavery. Drawn using a variety of primary and secondary historical and legal sources, this article develops a snapshot of the past revealing many similarities between the Black experience with informing both while enslaved and in contemporary times. Consideration of these resemblances during present debate on the topic may help to facilitate nuanced conversation as to whether and how the modern Black community and government should approach using informants in current times.

Custom Now: A Symposium

I've recently learned of an interesting symposium on custom published in volume 48 of the Texas International Law Journal, which is  available on line:

 Introduction, by Emily Kadens

In the Name of Custom, Culture, and the Constitution: Korean Customary Law in Flux, by Marie Seong-Hak Kim

Legal Autonomy Versus Regulatory Law: Customary Law in Eastern Scandinavia, by Kjell Å. Modéer

Western Scandinavia: Exit “Bürgerliches Gesetzbuch” — The Resurrection of Customary Laws, by Peter Ørebech

False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany, by Pascale Fournier & Pascal McDougall

The Law and Economics of Norms, by Juliet P. Kostritsky

Custom in American Property Law: A Vanishing Act, by Henry E. Smith

The Jurisprudence of Custom, by Frederick Schauer

An excerpt from the introduction by Emily Kadens, Northwestern Law, after the jump.

Tuesday, September 24, 2013

Indiana University Seeks Human Rights Scholar

Via H-Law, we have the following job posting:
The Department of International Studies in the School of Global and International Studies, College of Arts and Sciences, Indiana University, invites applications for a senior position in human rights, to begin August 2014. Qualified full and advanced associate professors are encouraged to apply, particularly those working in the areas of philosophy, history, political theory, cultural anthropology, cultural studies, or critical and/or public interest approaches to law (Ph.D. required). Candidates should have an outstanding research record with commensurate undergraduate and graduate teaching and mentorship, along with a commitment to studying global imperatives, structures, and formations alongside regional, linguistic, historical, political, and cultural particularities.
For more information, follow the link.

McSweeney on Civil and Common Law in Medieval England

Thomas J. McSweeney, William & Mary Law School, has posted two articles.  The first is Property Before Property: Romanizing the English Law of Land, which appeared in the Buffalo Law Review 60 (2012):
We tend to treat the idea of property as if it is a neutral way to speak about the relationship between people and things. In comparative legal studies, it is easier to compare two different cultures’ approaches to people and things when we assume that both can usefully be spoken of in terms of property. But property has a history. Terms like proprietas and possessio, which give the modern common law a vocabulary for speaking about that relationship, arose in the context of the classical Roman law and were worked into a systematic language of property by medieval Roman law scholars. The early common law, however, did not use the language of property to describe the relationship between people and things.
Image Credit: BC Law Library
In this paper, I will examine the period when English justices first attempted to turn English norms and practices concerning landholding into a law of property. Between 1187 and 1258, several justices tried their hands at writing treatises in which they translated English court practices into a systematic property law on the Roman model. The justices of the twelfth and thirteenth centuries, particularly the justices who wrote the treatise known as Bracton, were heavily invested in the idea that English law was part of the Romano-canonical ius commune. They realized, however, that the practices of the English courts and the landholding norms of the Anglo-Norman landed elite could not be made to fit neatly into a Roman law mold. The authors of Bracton embarked upon what we might consider an early exercise in comparative law scholarship. They created several complicated and contradictory schemes to try to express English landholding in Roman law terms, but ultimately failed in their attempts to create a coherent English law of property. Their failure is useful to us, however, in that it shows us very clearly that the language of property is not natural or essential and in that it helps us to understand a way of talking and thinking about landholding that is alien to us today. We can use the ways the Bracton authors creatively misunderstood the Roman law of property to help us to understand the cultures of landholding they came from: those of the English courts and the Anglo-Norman landed elite of the twelfth and thirteenth centuries.
The second is English Judges and Roman Jurists: The Civilian Learning Behind England's First Case Law, which appeared in Temple Law Review 84 (2012):
This Article looks at a historical problem — the first use of case law by English royal justices in the thirteenth century — and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, the justices and clerks of the royal courts began to treat cases as if they were the opinions of great jurists, to apply the same types of dialectical reasoning that were used in civil law discourse to those cases, and to work them into systems of authority. They used cases, as the modern common law does; but they used cases to create systems of the kind we usually associate with civil law. In the second Part of the Article, I turn to the modern common law and, using the methods of medieval case law as a mirror, show that the differences between civil law and common law reasoning are more perceived than real. American lawyers tend to view common law as flexible and creative, whereas they view civil law as ossified and hierarchical. This largely stems from the fact that common lawyers focus on the judicial opinion as the place where legal reasoning takes place. By integrating other texts, like the student outline and the restatement — which seek to create a harmonious system out of judicial opinions — into the picture of common law reasoning, I show that common law reasoning shares quite a bit in common with civil law reasoning.

Alexander on the Passing of the Obscenity Defense in Copyright

Here's an article we missed earlier this year: "Evil Angel Eulogy: Reflections on the Passing of the Obscenity Defense in Copyright," by James R. Alexander (University of Pittsburgh at Johnstown). The article appeared in Volume 20 of the Journal of Intellectual Property Law (2013). Here's the abstract:
This article traces the historical development of the Clean Hands Doctrine (CHD), and its ancillary accepted affirmative (obscenity) defense in copyright infringement, and its residual application to pornographic works. As an equitable doctrine, the CHD was an entirely reasonable judicial response to the earliest statutory provision of copyright protection in the early 18th century in England as applied to different forms of literary property and in particular those suspected of having seditious, blasphemous and immoral tendencies. With no statutory guidance regarding substantive (or content) restrictions on extending copyright protection to literary property and generally reticent to rule on a completely discretionary basis, the Chancery court relied on established equitable maxims or principles as ratio for individual rulings, in the process developing an ersatz structure of procedural precedent. In the process, it sequestered content as a procedural issue deferred to law prior to any equitable consideration, leaving unresolved the more substantive issue of whether all works of literary property were eligible for copyright protection, or differentially when and in what forms could literary works be accorded protection.

The CHD, and more specifically the obscenity defense, was adopted wholesale and with little consideration into American jurisprudence in the 19th century, on occasion nuanced by historical debate over the meaning and intent of the Copyright Clause. Subsequent American statutory delineations for copyright protection, after a few nascent efforts to restrict eligibility to only those works that were original and informative, retreated to a marked absence of discussion of content, throwing judicial consideration of copyright protection almost entirely onto procedural issues, such as registration. By the latter part of the century, courts began to sporadically differentiate between the substantive and procedural elements of the CHD, the former spawning a transforming debate over doctrinal acceptance of the 1868 Hicklin test of obscene tendency and the latter focusing more narrowly the discretionary authority to the Register of Copyrights to reject works of certain content. I argue that this differentiation, and the subsequent obfuscation of obscenity standards resulting from a range of cases leading to and built upon Roth v. U.S. (1957), inevitably led to the appellate ruling in Mitchell Brothers v. Cinema Adult Theater (1979), now generally considered accepted doctrine, that the CHD does not support a substantive exclusion of selected content from copyright protection.
The full article is available here, at SSRN.

Monday, September 23, 2013

A Retrospective on the Church Committee

As the first session of a three-part discussion series, Surveillance and Foreign Intelligence Gathering in the United States: Past, Present, and Future, tomorrow Georgetown Law’s Center on National Security and the Law will be hosting a retrospective on the Church Committee.  Senator Patrick Leahy (D-Vermont), Chairman, Senate Judiciary Committee, will deliver the keynote.  Panelists are Former Vice President Walter Mondale, Church Committee Member; Former U.S. Senator Gary Hart, Church Committee Member; Former U.S. Ambassador William Miller, Church Committee Staff Director; and Dr. Loch Johnson, Former Special Assistant to Senator Frank Church.  My colleague Laura K. Donohue, Professor of Law and Director of the Center on National Security and the Law, Georgetown University Law Center, will moderate.

The organizers explain:
This is a crucially important time for the United States—a number of foreign intelligence gathering programs using new technologies have recently been unveiled, and the public, the media, and scholars are just beginning to address their implications. Part one of this three-part discussion series will focus on the 1975-76 Church Committee (formally known as the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities), which exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act. Following the keynote address by Senator Leahy, an esteemed panel of former Church Committee members and top staff will discuss this turning point in American history.
The keynote and panel will take place on Tuesday, September 24, 2013, from 9:45 a.m. to 12:00 p.m., in the Hart Auditorium, McDonough Hall, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, D.C. 20001.


Hartog's Mitchell Lecture

Hendrik Hartog’s James McCormick Mitchell Lecture at the University at Buffalo Law School in 2012, entitled, Two Stories about Two Currencies of Care, is available on-line from the Buffalo Law Review.  It is based on his book, Someday All This Will Be Yours: A History of Inheritance and Old Age (2012).

New Release: "Between Court and Confessional: The Politics of Spanish Inquisitors"

New from Cambridge University Press: Between Court and Confessional: The Politics of Spanish Inquisitors, by Kimberly Lynn. A description from the Press:
Between Court and Confessional explores the lives of Spanish inquisitors, closely examining the careers and writings of five sixteenth- and seventeenth-century inquisitors. Kimberly Lynn considers what shaped particular inquisitors, what kinds of official experience each accumulated, and to what ends each directed his acquired knowledge and experience. The case studies examine the complex interplay of careerism and ideological commitments evident in inquisitorial activities. Whereas many studies of the Spanish Inquisition tend to depict inquisitors as faceless and interchangeable, Lynn probes the lives of individual inquisitors to show how inquisitors' operations in their social, political, religious, and intellectual worlds set the Inquisition in motion. By focusing on specific individuals, this study explains how the theory and regulations of the Inquisition were rooted in local conditions, particular disputes, and individual experiences.
A few blurbs:
"The Inquisitor is a figure engulfed in myth, yet about whom very little is actually known. Kimberly Lynn sets the record straight in this thoroughly researched and well-written book. Showcasing individual portraits of five inquisitors from different parts of the early modern Hispanic empire, she offers a lively and convincing composite biography of a unique - and uniquely complex - figure poised between medieval theocracy and modern bureaucracy." -- James S. Amelang, Universidad Autónoma, Madrid

"This outstanding piece of scholarship demonstrates how little the Spanish inquisitors fit the conventional view of them as insular men in single-minded pursuit of heresy. In a series of exacting and illuminating portraits, Kimberly Lynn reveals them in the full range of their activities, engaged in turf battles, jostling for position at court, moving from post to post, suffering career setbacks and disappointments, and seeking patronage and bestowing patronage - that is, negotiating the complex power structures of early modern Spain like other members of the power elite." -- Miriam Bodian, the University of Texas at Austin 

Sunday, September 22, 2013

Sunday Book Roundup

Jotwell has posted a review of Eliga H. Gould's Among the Powers of the Earth: The American Revolution and the Making of a New World Empire (Harvard Univ. Press). In it Christina Duffy Ponsa writes "the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there."

The September issue of The Federal Lawyer is out and has reviewed several books of note: The Law of Armed Conflict: An Operational Approach (Wolters Kluwer Law & Business) by Geoffrey Corn, Victor Hansen, Chris Jenks, Richard Hackson, Eric Talbot Jenson, and Hames Schoettler Jr; Rebels at the Bar: The Fascinating, Forgotten Stories of America's First Women Lawyers (NYU Press) by Jill Norgren; Out of Order: Stores from the History of the Supreme Court (Random House) by Sandra Day O'Connor; as well as David O. Stewart's The Lincoln Deception (Kensington). Of the last book, reviewer JoAnn Baca provides an intriguing introduction:
"Lawyer and award-winning author David O. Stewart has written three nonfiction books—on Aaron Burr, Andrew Johnson’s impeachment, and the men who drafted the Constitution. But what happens when a historian comes across a story that cannot be proven by any fact he can uncover, yet it sparks his imagination? For Stewart, the answer is to leave his comfort zone and write a novel, allowing him to theorize and extrapolate, far from established facts, about a part of our history that fascinates many as much today as it did in 1865: the assassination of Abraham Lincoln. The Lincoln Deception is the result of Stewart’s need to explore to his own satisfaction a vague suggestion of duplicity as yet undiscovered in the assassination of the President."
H-Net has added many reviews of interest to this week's roundup readers including several books that extend beyond the American context, such as David Lemmings's Crime, Courtrooms, and the Public Sphere in Britain, 1700-1850 (Ashgate) here; and a review of two books including Adam Roberts and Timothy Garton Ash's Civil Resistance and Power Politics: The Experience of Non-violent Action from Gandhi to the Present (Oxford University Press) and Sean Scalmer's Gandhi in the West: The Mahatma and the Rise of Radical Protest (Cambridge University Press). Elizabeth F. Thompson's Justice Interrupted: The Struggle for Constitutional Government in the Middle East (Harvard University Press) is also reviewed. Seth Offenbach writes of Thompson's work:
"In the nearly three years since the Arab uprisings began, the expertise of Middle East historians has been in demand like almost never before, as observers attempt to understand the historical roots underlying the seemingly sudden popular challenges to long-standing authoritarian regimes. The result has been a surge in publications that are broad in their scope and appeal but limited in the depth of their analysis and historical insight. A strong exception to this trend is the recent work of historian Elizabeth F. Thompson, whose study on the rise of constitutionalism in the Middle East swiftly dispenses with the facile explanations of the Arab uprisings, instead offering readers a comprehensive yet nuanced look at the lasting impact of efforts to enshrine and institutionalize the language of justice across the region during the last two centuries. While the study is bookended by a discussion of the implications that these developments hold for the contemporary calls for universal rights, its substantive chapters provide a perceptive and deeply contextualized look at the common thread underlying a struggle that dates back to the premodern era."
For the Washington Post Johnathan Yardley reviews Ebony and Ivy: Race, Slavery, and the Troubled History of America’s Universities by Craig Steven Wilder. Also in the Post is a review of Gerald R. Ford: An Honorable Life (University of Michigan) by James Cannon.

The Guardian reviews Churchill's Bomb: How the United States Overtook Britain in the First Nuclear Arms Race (Faber & Faber) by Graham Farmelo.

Maya Jasanoff reviews River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Harvard University Press) by Walter Johnson in the New York Review of Books. She finds:
"The artistry of River of Dark Dreams lies in the close-up—in Johnson’s mesmerizing attention to the “material” in historical-geographical materialism. In the pointillist style so dexterously displayed in his reconstruction of the New Orleans slave market, Soul by Soul, Johnson zooms in on the “nested set of abstractions” that made the Cotton Kingdom run: money, markets, maps, labor. “If you looked more closely,” he observes, “you would see that each abstraction stood at odds with the physical properties of the object it sought to represent.”River of Dark Dreams delivers spectacularly on the long-standing mission to write “history from the bottom up”: from the soil tangy and pungent with manure, and the Petit Gulf cotton plants rooted into it, and the calloused fingers plucking its blooming, sharp-edged bolls. This is a history of how wilderness became plantations that became states, nations, and empires—of how an overseer’s lashes sliced into a slave’s back turned “into labor into bales into dollars” into visions of America’s future in the world."
This week readers can also listen to the New Books in History Podcast for a discussion with Tevi Troy, author of What Jefferson Read, Ike Watched, and Obama Tweeted: 200 Years of Popular Culture in the White House (Regnery History).

On HNN, reviewer Bernard von Bothmer finds that American Umpire (Harvard University Press) by Elizabeth Cobbs Hoffman "offers a sweeping, wide-ranging, and remarkably in-depth overview of the history of American foreign relations." HNN also reviews Thurston Clarke's JFK's Last Hundred Days (Penguin).

Salon has published an excerpt from Front Porch Politics: The Forgotten Heyday of American Activism in the 1970s and 1980s (Hill and Wang) by Michael Stewart Foley.

Saturday, September 21, 2013

Weekend Roundup

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 20, 2013

Novick on Holmes and the New Originalists

Sheldon Novick, Vermont Law School, has posted a new preface, entitled Honorable Justice at Twenty-Five, to his biography Honorable Justice: The Life of Oliver Wendell Holmes (1989).  Here is the abstract:
There have been three print editions since 1989 of Honorable Justice: The Life of Oliver Wendell Holmes by Sheldon Novick: the first hardcover edition from Little Brown, a trade paperback edition from Dell Publishing, and a collectible leather-bound edition from Legal Classics Library. The text of successive print editions was unchanged. A new ebook edition from Plunkett Lake Press has been revised and corrected, redesigned for digital readers, and a new preface has been added bringing the book up to date. This article includes the text of the preface.

In summary: Interest in Justice Holmes continues, especially with regard to his First Amendment jurisprudence. He has also become a major figure in debates over originalism. As portrayed in this biography, Holmes was a champion of the common law, particularly as common-law privileges were the basis of the Bill of Rights. He viewed the Supreme Court as a common-law court bound by its precedents, and engaged in the process of defining the principles "transplanted from foreign soil" found in those precedents The New Originalists argue that the original understanding of the text of the Constitution is authoritative in cases arising under the Constitution, and that fidelity to the original understanding trumps any precedents that depart from it. Holmes, the champion of an evolving common law, accordingly has become the target of originalist criticism, criticism that the author of this preface claims he stoutly withstands.

New Release: Enayat, "Law, State, and Society in Modern Iran"

Palgrave Macmillan has released Law, State, and Society in Modern Iran: Constitutionalism, Autocracy, and Legal Reform, 1906-1941, by Hadi Enayat. The publisher describes the book as follows:
Incorporating history, sociology, and rule of law studies, this book sheds light on an understudied but fascinating dimension of modernization in Iran, namely the emergence of a new legal system between the 1906 Constitutional Revolution and the end of Reza Shah's rule in 1941. While Iranian constitutionalism can be seen as part of a global trend of constitutional revolutions at the turn of the twentieth century, in Iran, an unusual institutional and historical background shaped a path to legal reform that was in many ways unique. Among other factors, the scholastic legalism of the Shi'i ulama and the considerable autonomy they enjoyed in administering the civil law in the nineteenth century made legal reform a particularly contested, difficult, and politically charged aspect of state building.
A few blurbs:
"Law, State, and Society in Modern Iran offers a perceptive examination of the impact of legal reforms on the process of state building and modernization in the first half of twentieth century in Iran. Its use of a wide range of primary source material will be particularly welcomed by historians of the period, and its broad analytical approach should make it indispensable for comparative studies of legal reforms in the wider context of the Middle East and current debates on constitutional development." -- Ali Gheissari
"Legal transformations of codes, institutions, and procedures constituted a crucial motor in the formation of political modernity and the modern state in Iran. This book contains lucid and original accounts and analyses of the events and processes in these transformations, rich in the details of political struggles and ideological contests, not only between the entrenched clerical hierarchy and the modernizing constitutionalists but also within and across both camps. This is key to understanding the subsequent fractured evolution of Iranian state, society, and revolution." -- Sami Zubaida

Thursday, September 19, 2013

Cushman on "Court-Packing and Compromise"

Senate Judiciary Committee Considers the Court-Packing Bill (Credit: LC)
Barry Cushman, Notre Dame Law School, has posted Court-Packing and Compromise, which appears in Constitutional Commentary 26 (2013).  Here is the abstract:
President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than six additional appointments in order to secure a liberal working majority on the Court. Those sources also help to clarify why the substitute Court bill introduced by Senate Majority Leader Joseph Robinson in July of 1937 took the form that it did, and why Robinson’s untimely death that month not only made passage of the bill impossible, but also made it unnecessary. Though Roosevelt’s refusal to compromise can be seen as more rational than is commonly thought, in retrospect one can see that his Court-packing proposal was an entirely unnecessary misadventure through which the President ultimately lost far more than he gained.
I can't resist the temptation to chime in with something I've just read in the archives.  On November 4, 1936, Charles E. Wyzanski, Jr., wrote his mother from the Solicitor General's office: “I do not like the size of the Roosevelt vote.  With a man of the President’s temperament such an endorsement may prove an irresistible temptation."  DRE.

New Release: "Constitutionalism in the Approach and Aftermath of the Civil War"

New from Fordham University Press: Constitutionalism in the Approach and Aftermath of the Civil War, edited by Paul D. Moreno (Hillsdale College) and Johnathan O'Neill (Georgia Southern University). The Press describes the book as follows:
The irreducibly constitutional nature of the Civil War’s prelude and legacy is the focus of this absorbing collection of nine essays by a diversity of political theorists and historians. The contributors examine key constitutional developments leading up to the war, the crucial role of Abraham Lincoln’s statesmanship, and how the constitutional aspects of the war and Reconstruction endured in the late nineteenth and early twentieth centuries. This thoughtful, informative volume covers a wide range of topics: from George Washington’s conception of the Union and his fears for its future to Martin Van Buren’s state-centered, anti-secessionist federalism; from Lincoln’s approach to citizenship for African Americans to Woodrow Wilson’s attempt to appropriate Lincoln for the goals of Progressivism. Each essay zeroes in on the constitutional causes or consequences of the war and emphasizes how constitutional principles shape political activity. Accordingly, important figures, disputes, and judicial decisions are placed within the broader context of the constitutional system to explain how ideas and institutions, independently and in dialogue with the courts, have oriented political action and shaped events over time.
More information is available here.

New Release: Flaherty, "Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan"

The Harvard University Asia Center has released Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan (2013), by Darryl E. Flaherty (University of Delaware). A description from the publisher:
Long ignored by historians and repudiated in their time, practitioners of private law opened the way toward Japan’s legal modernity. From the seventeenth to the turn of the twentieth century, lawyers and their predecessors changed society in ways that first samurai and then the state could not. During the Edo period (1600–1868), they worked from the shadows to bend the shogun’s law to suit the market needs of merchants and the justice concerns of peasants. Over the course of the nineteenth century, legal practitioners changed law from a tool for rule into a new epistemology and laid the foundation for parliamentary politics during the Meiji era (1868–1912).

This social and political history argues that legal modernity sprouted from indigenous roots and helped delineate a budding nation’s public and private spheres. Tracing the transition of law regimes from Edo to Meiji, Darryl E. Flaherty shows how the legal profession emerged as a force for change in modern Japan and highlights its lasting contributions in founding private universities, political parties, and a national association of lawyers that contributed to legal reform during the twentieth century.

Wednesday, September 18, 2013

Friedman's Introduction to "Law and the Modern Condition"

Lawrence Friedman, New England Law, has posted the Introduction to Law and the Modern Condition: Literary and Historical Perspectives, ed. Lawrence Friedman (Talbot Publishers, 2013).  Here is the abstract:
Using fiction as a lens through which to view particular developments in the law, each of the essays in the new book, Law and the Modern Condition: Literary and Historical Perspectives (Talbot Publishing, 2013), discusses a work of literary fiction — some classical (the tale of Ruth in the Bible, the fiction of Franz Kafka and Herman Melville, the plays of William Shakespeare) some modern (the post-September 11 fiction of William Gibson, Ken Kalfus, Claire Messud, Ian McEwan and Helen Schulman) — that concerns, directly or indirectly, the historical development of the law. This exploration of legal history through fiction pays particular attention to its relevance to our present circumstances and our growing concerns about terrorism and civil liberties. Each essay considers the legal lessons about the fictional event or events at its core, lessons that tell us something worth remembering as we continue to chart law’s evolution. These lessons, like those that may be found in all great literature, necessarily extend beyond the historical confines of the characters and plot and background of each story to embrace the modern condition — which, as these great stories suggest, is and always has been the only condition.

New Release: Poser, "Lord Mansfield: Justice in the Age of Reason"

New from McGill-Queen's University Press: Norman S. Poser, Lord Mansfield: Justice in the Age of Reason (2013). Poser is professor emeritus at Brooklyn Law School. A description from the publisher:
In the first modern biography of Lord Mansfield (1705-1793), Norman Poser details the turbulent political life of eighteenth-century Britain's most powerful judge, serving as chief justice for an unprecedented thirty-two years. His legal decisions launched England on the path to abolishing slavery and the slave trade, modernized commercial law in ways that helped establish Britain as the world's leading industrial and trading nation, and his vigorous opposition to the American colonists stoked Revolutionary fires. Although his father and brother were Jacobite rebels loyal to the deposed King James II, Mansfield was able to rise through English society to become a member of its ruling aristocracy and a confidential advisor to two kings. Poser sets Mansfield's rulings in historical context while delving into Mansfield's circle, which included poets (Alexander Pope described him as "his country's pride"), artists, actors, clergymen, noblemen and women, and politicians. Still celebrated for his application of common sense and moral values to the formal and complicated English common law system, Mansfield brought a practical and humanistic approach to the law. His decisions continue to influence the legal systems of Canada, Britain, and the United States to an extent unmatched by any judge of the past. An illuminating account of one of the greatest legal minds, Lord Mansfield presents a vibrant look at Britain's Age of Reason through one of its central figures.
A few blurbs:
"I read this book with much pleasure and instruction. It admirably fills a major gap in the body of legal historical literature - the absence of a comprehensive biography of arguably the most famous and influential Anglo-American judge of the modern era." -- Simon Devereaux

"A remarkable portrait of both a man and a legal age. I enjoyed the book tremendously, learned so much, and am deeply grateful. A master work." -- Kent Syverud

Rabb to Harvard Law School

Harvard Law School has announced that legal historian Intisar Rabb will join the faculty in 2014. From the HLS press release:
Intisar A. Rabb (credit)
Intisar A. Rabb, a leading expert on Islamic Law and legal history, will join the faculty of Harvard Law School beginning Spring 2014, with an appointment as a tenured Professor of Law.
Rabb is currently associate professor of Middle Eastern and Islamic Studies and Law at New York University School of Law, where she holds a joint appointment at the NYU Middle Eastern and Islamic Studies Department and the NYU School of Law. At HLS, she will be a faculty director of the Islamic Legal Studies Program.
Read on here.

Congratulations to Intisar Rabb and to Harvard Law School!

Policy History Plenaries Announced

The Institute for Political History and the Journal of Policy History are drumming up interest in next June’s Conference on Policy History by circulating news of three plenary sessions:

Wednesday June 4:  “Party Balance, Partisan Polarization, and Policy Conflict,” with Michael Holt, Daniel Walker Howe, Richard John, Gareth Davies, Sidney Milkis, Byron Shafer
Thursday June 5: “Can Social Activism Change Public Policy? If so, How? If not, Why Not?” with Mark Brilliant, Rhonda Williams, Nancy MacLean, Matthew Garcia
Friday, June 6: “New Perspectives on the Presidency and Party Politics,” with Jeffrey Pasley, Mark Summers, Irwin Gellman, Bruce Miroff, Daniel DiSalvo

The conference–the eighth biennial– will take place at the Sheraton Capitol Square Hotel in downtown Columbus, Ohio from June 4-7, 2014.  The organizers report:
We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s) are strongly encouraged. Individual paper proposals are welcome. Because the conference has grown in size, individual papers might have a more difficult time being placed on the program. In order to accommodate more participants, conference organizers have created a poster session which will allow younger scholars to display their research projects.  Participants may only appear once as a presenter in the program. 
 Proposals for posters, panels and papers must be submitted online here.  Deadline for submission is December 2, 2013.

Tuesday, September 17, 2013

An Author's Query

Mark J. Osiel, University of Iowa College of Law, asks:
I wonder whether anyone might be able to suggest examples of situations, in various countries, where the law is considerably more indulgent toward a given practice than prevailing views within society at large, because law-makers assume that conventional morality will dissuade people from “abusing” their legal rights, exercising them in what most people consider “irresponsible” ways.  For instance, U.S. law tolerates a great deal more in hate speech than any other Western society; but then we’ve never suffered the Third Reich.
Please respond directly to Professor Osiel.

A Constitution Day Talk with Michael Klarman

[From a press release of the Harvard Law School:]

To commemorate the signing of the U.S. Constitution, Harvard Law School Professor Michael Klarman, an expert on constitutional law and constitutional history, will give a lecture at Harvard Law School on Tuesday, Sept. 17 [at noon in Austin Hall East, Room 101].  His talk, titled “Not Written in Stone,” will focus on the reasons why he believes the U.S. Constitution should not be given undue reverence.


New Release: Smith, "Freedom's Frontier: California and the Struggle over Unfree Labor, Emancipation, and Reconstruction""

New from the University of North Carolina Press: Freedom's Frontier: California and the Struggle over Unfree Labor, Emancipation, and Reconstruction, by Stacey L. Smith (Oregon State University). A description from the Press: 
Most histories of the Civil War era portray the struggle over slavery as a conflict that exclusively pitted North against South, free labor against slave labor, and black against white. In Freedom's Frontier, Stacey L. Smith examines the battle over slavery as it unfolded on the multiracial Pacific Coast. Despite its antislavery constitution, California was home to a dizzying array of bound and semibound labor systems: African American slavery, American Indian indenture, Latino and Chinese contract labor, and a brutal sex traffic in bound Indian and Chinese women. Using untapped legislative and court records, Smith reconstructs the lives of California's unfree workers and documents the political and legal struggles over their destiny as the nation moved through the Civil War, emancipation, and Reconstruction.
Smith reveals that the state's anti-Chinese movement, forged in its struggle over unfree labor, reached eastward to transform federal Reconstruction policy and national race relations for decades to come. Throughout, she illuminates the startling ways in which the contest over slavery's fate included a western struggle that encompassed diverse labor systems and workers not easily classified as free or slave, black or white.
A few blurbs:
"A real winner: ambitious, thoughtful, and splendidly rendered. Smith peels back history to rework the labor landscapes of nineteenth-century California and reintroduce the state into dynamic, Reconstruction-era political and social debates."--William Deverell

"A brilliant and long overdue examination of late-nineteenth-century California's complicated race and labor history. By comparing the stories of bound Native American, African American, Chinese, Latino, and Hawaiian workers, Smith reveals the complexities of California's racial and labor histories and goes even further to demonstrate the larger implications for the California experience for understanding national stories of abolition, emancipation, Reconstruction, and immigration."--Michael Magliari
More information is available here.

Monday, September 16, 2013

Essays on the History and Interpretation of Interposition, Nullification, and Secession

Just out from the University of Akron Press’s is Union and States' Rights: A History and Interpretation of Interposition, Nullification, and Secession 150 Years After Sumter, edited by Neil H. Cogan.  It is the third book in the Press’s “&Law” series.  The Press explains:
The edited work is a collection of papers that tackles the issue of the power states have to object to and cancel Federal law. For eighty-one years, from the ratification of the Constitution to the end of the Civil War, state power was the central issue of governance. Currently, the issue is gaining more traction due in part of the Tea Party movement to limit Federal intervention in areas like education, health care, voting legislation, etc.
Contents after the jump.

Walker on Llewellyn and the Law School Crisis of the 1930s

Anders Walker, Saint Louis University School of Law, has posted Bramble Bush Revisited: Karl Llewellyn, the Great Depression, and the First Law School Crisis, 1929-1939.  Here is the abstract:   
This article recovers the plight of legal education during the Great Depression, showing how debates over practical training, theoretical research and the appropriate length of law school all emerged in the 1930s. Using Bramble Bush author Karl Llewellyn as a guide, it strives to make three points. One, Depression-era critics of law school called for increased attention to practical skills, like today, but also a more inter-disciplinary curriculum – something current reformers discount. Two, the push for theoretical, policy-oriented courses in the 1930s set the stage for claims that law graduates deserved more than a Bachelor of Laws degree, bolstering the move away from a two year LL.B. and towards a mandatory three year Juris Doctor, or J.D. The rise of the J.D. following World War II, this article concludes, heightened the role of inter-disciplinary work in the first three years, even as it substantially diminished the role of advanced, graduate-level research, a point worth recalling as law school reformers, the ABA and, even the President of the United States lobby for shorter, more-practice oriented programs. While such proposals may be prudent, they may also warrant a return to plural law degrees.

Murray on Carrie Mae Weems' Challenge to the Harvard Archive

Yxta Murray (Loyola Law School Los Angeles) has posted "From Here I Saw What Happened and I Cried: Carrie Mae Weems’ Challenge to the Harvard Archive," 8 Unbound: Harvard Journal of the Legal Left 1 (2013). Here's the abstract:
In the early 1990s, the artist Carrie Mae Weems appropriated daguerreotypes of enslaved people that are housed in Harvard University’s Peabody Museum of Archaeology and Ethnology. These incendiary images of Drana, Jack, Renty and Delia had been commissioned by Harvard Zoology Professor Louis Agassiz in the mid-1800s, supposedly in order to illustrate his theory of racial difference. However, Weems had signed a contract with the Peabody promising not to use the images without their permission, and she did not seek such approval before including the daguerreotypes in her now-famous series "From Here I Saw What Happened and I Cried." Harvard threatened to sue Weems on the grounds of copyright infringement and breach of contract, though when Weems invited Harvard to conduct what she understood to be a difficult conversation about law, history, and race "in the courts," Harvard demurred.

In this essay, I consider the copyright and contract claims that Harvard might have depended upon in its litigation. With respect to the copyright infringement claim, I query whether the fair use doctrine’s requirement that an appropriator "transform" borrowed images or text might have provided Weems with a defense. This question ushers me into an extended meditation on the meaning of transformation as it relates to art, history, law, seeing, and slavery. I also query whether Harvard actually owned these images at all; such property ownership proves the foundation for their contract claim. I conclude that Harvard did indeed own these daguerreotypes, but struggle against that determination, since this property was wrested from Drana, Jack, Renty and Delia through violence and atrocity. In the interests of peace, remembrance, and racial justice, I maintain that no valid property law should recognize such a chain of title. Borrowing from the Native American Graves Protection and Repatriation Act, I draft a proposed law that would recognize the relics of enslaved people as cultural property and require the federally funded museums that now own them to give them back to the descendants of America’s enslaved peoples.
The full essay is available here, at SSRN.

Sunday, September 15, 2013

Sunday Book Roundup

The Washington Post this week has a review of The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press) by Marvin Kalb. "In his timely book, “The Road to War,” veteran journalist and diplomatic correspondent Marvin Kalb explores the tangled history of the foreign policy commitments that modern presidents have made and the knots these leaders have turned themselves into trying to rationalize or escape their words."

The Post also notes the presence of Harvard Law's Kenneth Mack and others at the National Book Festival's History & Biography Pavilion this week.

Salon has published an excerpt from Karen Dunak's new book As Long as We Both Shall Love: The White Wedding in Postwar America (NYU Press) about "The secret history of gay marriage" and the "same-sex weddings [that] were happening in this country for decades before the Supreme Court permitted it."

"On October 10, 1987, nearly 7,000 people witnessed a wedding on the National Mall in Washington, DC. Men and women cheered and threw rice and confetti as family, friends, and community members took part in the largest mass wedding in American history. After the celebrants exchanged rings and were pronounced newlywed, guests released hundreds of balloons into the air. Brides and grooms, dressed in formal wedding attire, cried and embraced after an “emotional and festive” ceremony. Like so many brides and grooms, participants identified the wedding day as one of the happiest, most meaningful days of their lives. 
But this was no ordinary wedding. And these were not typical brides and grooms. This wedding held special significance for its participants. Beyond the “mass” nature of the celebration, something else was unique. The newlyweds that fall Saturday paired off as brides and brides, grooms and grooms. “The Wedding,” as it came to be known, marked the symbolic beginning of nearly 2,000 same-sex marriages."

This week H-Net has several new reviews in law and history: Keith Altavilla finds a "Printer, Democrat, and Soldier" in Robert Grandchamp' Colonel Edward E. Cross, New Hampshire Fighting Fifth: A Civil War Biography (McFarland & Company, Inc.), and Rachel T. Van reviews Emily Clark's The Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World (University of North Carolina Press). 

David Siemers also reviews for H-Net The Forgotten Presidents: Their Untold Constitutional Legacy (Oxford University Press) by Michael J. Gerhardt.
"Quick. What do William Howard Taft, Calvin Coolidge, and Jimmy Carter have in common? The answer, or one answer at least, is that they are the twentieth-century presidents placed alongside many of their nineteenth-century counterparts in Michael J. Gerhardt’s The Forgotten Presidency: Their Untold Constitutional Legacy. In this book, Gerhardt underscores that even the presidents we know least well had a major impact on governance and on the shape of their office. In this he is largely successful, with interesting tales told along the way. Scholars of the presidency will find that the book does not break substantial new ground, but lay readers interested in the presidency and wanting a broad tour of presidential history will profit from the book." 
More reviews after the jump...