Saturday, November 30, 2013

Weekend Roundup

  • Over at the Faculty Lounge, Ann Tweedy write about "Thanksgiving and the Madison County v. Oneida Indian Nation Case" ("Thanksgiving is always a good time for non-Natives to reflect on the colonial history of the United States and particularly the lands that have been granted by tribes in some cases and, in others, taken forcibly or through patently unfair negotiations.").
  • From In Custodia Legis: An introduction to the canon law materials at the Law Library of Congress and an exciting announcement  about the addition of "428 Native American documents containing constitutions, charters, and acts from the years 1830 to 1960" to the LOC website.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, November 29, 2013

Ngai to Lecture on Chinese Gold Miners in Settler Colonies

On Monday, December 2, at 4 pm, Columbia University’s Mae Ngai will present “Yellow and Gold: Chinese Gold Miners and the 'Chinese Question' in Pacific-World Settler Colonies, 1848-1910” in the Washington History Seminar sponsored by the National History Center and the Woodrow Wilson International Center for Scholars:
In this talk, Mae Ngai will address two transpacific circulations in the late-19th century -- the movement of Chinese to the gold rushes of the Pacific world, including the forms of work and social organization that they brought with them from southern China and southeast Asia and their local adaptations; and the circulation and evolution of anti-Chinese racial politics from North America to Australia to South Africa, which led to restrictive and exclusionary measures. The research is comparative and transnational and empirical as well as discursive.
The seminar will take place in the Woodrow Wilson Center’s 6th Floor Moynihan Boardroom in the Ronald Reagan Building, Federal Triangle Metro Stop.  Reservations requested because of limited seating: or 202-450-3209.  Photo ID required for admittance to the building.

New Release: May, "Soapbox Rebellion"

New from the University of Alabama Press: Soapbox Rebellion: The Hobo Orator Union and the Free Speech Fights of the Industrial Workers of the World, 1909-1916, by Matthew S. May (North Carolina State University). The Press describes the book as follows:
Soapbox Rebellion, a new critical history of the free speech fights of the Industrial Workers of the World (IWW), illustrates how the lively and colorful soapbox culture of the “Wobblies” generated novel forms of class struggle.
From 1909 to 1916, thousands of IWW members engaged in dozens of fights for freedom of speech throughout the American West. The volatile spread and circulation of hobo agitation during these fights amounted to nothing less than a soapbox rebellion in which public speech became the principal site of the struggle of the few to exploit the many. While the fights were not always successful, they did produce a novel form of fluid union organization that offers historians, labor activists, and social movement scholars a window into an alternative approach to what it means to belong to a union. Matthew May coins the phrase “Hobo Orator Union” to characterize these collectives.
Soapbox Rebellion highlights the methodological obstacles to recovering a workers’ history of public address; closely analyzes the impact of hobo oratorical performances; and discusses the implications of the Wobblies’ free speech fights for understanding grassroots resistance and class struggle today—in an era of the decline of the institutional business union model and workplace contractualism.

Thursday, November 28, 2013

Giving thanks for our professional community

Thanksgiving is about gratitude. I'm thankful every day that I get to make my living as a legal historian and be part of this terrific professional community. Here are some other legal history-related items on my list:
I'm grateful to my co-blogger Dan Ernst for sharing with me the joy of the archives and for reminding me that people in this field recognize good, thorough research.

I'm grateful to Mary Dudziak for teaching me what it means to be a professional, and, of course (as I've written here), for inviting me to be a part of this blog.

I'm grateful to the ASLH for doing so much in recent years to welcome graduate students and support junior scholars.

I'm grateful to Barbara Welke for modeling empathy, both in how she writes about historical actors and in her everyday dealings with other scholars. (And I'm grateful to the Hurst Institute for allowing me and so many others to get to know her.)

I'm grateful to the other legal historians in my professional "cohort" for not treating our enterprise as a zero-sum game, but instead helping each other succeed and grow.

I'm grateful to Bill Nelson for building community within the field and for tirelessly supporting junior scholars on the job market.

I'm grateful to Richard B. Bernstein for caring about the craft of writing and insisting that others do the same (witness the line edits he gives to every scholar who presents at the NYU legal history colloquium).

I'm grateful to the institutions around the country that support legal and constitutional history workshops and for the people who run them.

Last but not least, I'm grateful to Sally Gordon (LHB's own occasional advice columnist, "Ms. Peppercorn") for teaching me the meaning of the word "mentor" and for inspiring me to pay her generosity forward every chance I get.
The list could go on and on, but I hope that the spirit of the post is clear. LHB readers, what are you grateful for?

Wednesday, November 27, 2013

LSA Essay Competition on Future of Socio-Legal Studies

The Law and Society Association has posted the following announcement:
We invite junior scholars around the world with new and innovative ideas to submit them to the LSA Project on the 2nd Half Century. The winning submissions will be posted on the LSA website and authors invited to present their ideas at the 50th Anniversary Meeting in Minneapolis MN May 29-June 1 2014. Winning authors will receive a substantial subsidy to cover the cost of participation and a year’s free membership to the Law and Society Association.
The competition is organized by the LSA Project on the 2nd Half-Century, which was created on the eve of LSA’s 50th Anniversary to stimulate discussion about the future role of the Association. We invite junior scholars to submit short essays on the following theme:
What is the future of socio-legal studies, what new possibilities exist, and what innovations should the Law and Society Association consider as it enters the 2nd Half-Century?
Essays must be in English. They cannot exceed 2000 words. They could consider use of new technologies, new ways to build scholarly networks, new training initiatives, and other innovations. Successful essays may include assessment of present LSA activities as well as proposals for innovation.
More information is available here.

New Release: Lawson, "Smugglers, Bootleggers, and Scofflaws"

New from SUNY Press: Smugglers, Bootleggers, and Scofflaws: Prohibition and New York City, by Ellen NicKenzie Lawson. The Press explains:
With the passage of the Eighteenth Amendment, “drying up” New York City promised to be the greatest triumph of the proponents of Prohibition. Instead, the city remained the nation’s greatest liquor market. Smugglers, Bootleggers, and Scofflaws focuses on liquor smuggling to tell the story of Prohibition in New York City. Using previously unstudied Coast Guard records from 1920 to 1933 for New York City and environs, Ellen NicKenzie Lawson examines the development of Rum Row and smuggling via the coasts of Long Island, the Long Island Sound, the Jersey shore, and along the Hudson and East Rivers. Lawson demonstrates how smuggling syndicates on the Lower East Side, the West Side, and Little Italy contributed to the emergence of the Broadway Mob. She also explores New York City’s scofflaw population—patrons of thirty thousand speakeasies and five hundred nightclubs—as well as how politicians Fiorello La Guardia, James “Jimmy” Walker, Nicholas Murray Butler, Pauline Morton Sabin, and Al Smith articulated their views on Prohibition to the nation. Lawson argues that in their assertion of the freedom to drink alcohol for enjoyment, New York’s smugglers, bootleggers, and scofflaws belong in the American tradition of defending liberty. The result was the historically unprecedented step of repeal of a constitutional amendment with passage of the Twenty-first Amendment in 1933.

Legal History in the Dec. 2013 JAH

The December 2013 issue of the Journal of American History is out, and it includes several items of interest:
Navigating Segregated Life in America’s Racial Borderhoods, 1910s–1950s

Albert M. Camarillo, Stanford University - OAH President (2012-2013). In his presidential address to the 2013 Organization of American Historians annual meeting, Albert M. Camarillo takes a comparative approach to understanding how African Americans, Mexican Americans, and Asian Americans dealt with urban residential segregation. Pointing to both similarities and differences in these groups’ experiences, Camarillo focuses in particular on the system of segregation of African Americans outside of the South and of Mexican Americans in the Southwest, which he terms James Crow and Jaime Crow. As he demonstrates, in cities across the North and West, African Americans, Mexican Americans, and Asian Americans negotiated barriers by crossing, passing, and sidestepping color lines amid formal and informal attempts to enforce those color lines.

“Our Very Pronounced Theory of Equal Rights to All”: Race, Citizenship, and Populism in the South Texas Borderlands 

Gregg Cantrell explores Populism from a seldom-studied perspective, examining the People’s party’s efforts to win votes among the ethnic Mexicans of the south Texas borderlands. Populists there strove to build interethnic coalitions, only to run headlong into massive voter fraud perpetrated by Democratic bosses--a practice abetted by the legality of alien suffrage in Texas. This situation led one San Antonio Populist, T. J. McMinn, to spearhead an effort to end alien suffrage by challenging the right of Mexicanos to become U.S. citizens. The resulting federal court case, In re Rodriguez, laid bare the stark choices that Populists in the region faced: alienate Mexicanos by trying to eliminate fraud or stand by and watch elections be stolen by Democratic manipulation of immigrant votes.
 “Modern America Desperately Needs to Listen”: The Emerging Indian in an Age of Environmental Crisis
Paul C. Rosier examines American Indians’ perspectives on the “environmental crisis” that shook American society in the 1960s and 1970s. Indian activists, politicians, and intellectuals promoted ecological issues tied to political and legal questions of sovereignty commonly associated with Indians’ “red power” movement, while collaborating with non-Indians on environmental problems to find political support and common ground. His essay addresses the neglect of American Indians in coverage of the 1960s and modern environmental activism and underscores the relationship between political sovereignty and environment, the interplay of symbolic space and real place, and the roots and range of the environmental justice movement. He also offers an example of how Indians’ ideas and actions can be integrated into the broader narratives of modern American history.
The complete TOC, including book reviews, is available here. Full content is available to subscribers only, unfortunately.

Tuesday, November 26, 2013

What Is the Future of Scholarly Books in the Digital Age?

Many of us entered graduate school imagining that the milestones of our career would consist mainly of the books we would write -- each book a tangible object, printed by a university press, that would enter the discourse when pulled off a shelf at a library or academic bookstore or arriving in a cardboard box from Amazon.  But it now seems that new scholarly books will enter the discourse primarily by digital means.  In this post, I will discuss the mechanics -- and the intellectual significance -- of this transition.  (Please note that my discussion pertains to "scholarly books" in the sense of monographs aimed at audiences of faculty and students.  It’s of course true that academics may write trade books aimed at a broader audience, but here I’m not focusing on those.) 
Digital access to recently-published scholarly books involves three kinds of players: (1) university presses, which produce the books, (2) university and college libraries, which seek to make the books accessible to their faculty members and students, and (3) digital interfaces between the presses and the libraries.  The digital interfaces include Project MUSE, Books at JSTOR, University Press Scholarship Online (UPSO), University Publishing Online, EBSCO eBooks, Ebrary, and ACLS Humanities E-Book.  Some of these interfaces have been around for a while, but several (as noted below) have launched in just the last one or two years. 

Deadline Approaching for LSA J. Willard Hurst and Herbert Jacob Prizes

The deadline is approaching for the Law & Society Association's J. Willard Hurst Prize and Herbert Jacob Book Prize.

About the J. Willard Hurst Prize:
In the spirit of Willard Hurst's own work, the Hurst Prize is given to the best work (in English) in socio-legal history published in the previous year, and self-nominations are accepted. The field of socio-legal history is broadly defined to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics.

Textbooks, casebooks, and edited collections are not eligible for the award, but monographs will be considered. The Association seeks studies in legal history that explore the relationship between law and society or illuminate the use, function, and cultural meaning of law and society. The Association discourages submission of purely doctrinal studies in the evolution of appellate case law.
Recent winners include John Witt, Daniel Sharfstein, Amy Chazkel, Inga Markovits, Christopher Tomlins, and Peggy Pascoe. The full list is here.

About the Herbert Jacob Book Prize:
Established in 1996 as the LSA Book Award, and re-named in memory of Herbert Jacob, past President of LSA, the competition is open to books from all fields of, and approaches to, law and society scholarship—excluding only works of socio-legal history, which are considered for the Hurst award—published in the prior year, and self-nominations are accepted.
Herbert Jacob was the founder of the first internet book review in the field, Law and Politics Book Review, a creative, energetic scholar who took on a wide variety of questions and issues, and a warm human being whose own work has been a major contribution to the field of law and society. The award is intended to recognize new, outstanding work in law and society scholarship.
Nominations are accepted from all aspects of the field and any country of origin and may include first books of young scholars to books that are capstones of long careers in law and society research and publication. 
Recent winners include Mariana Valverdem, Kaaryn S. Gustafson, Joshua Pag, Yves Dezalay, and Bryant Garth.

Deadline: December 15, 2013. More information is available here.

Republics at War

Palgrave Macmillan has published the collection of essays Republics at War, 1776-1840: Revolutions, Conflicts, and Geopolitics in Europe and the Atlantic World, which was edited by Pierre Serna (Université de Paris I Panthéon Sorbonne and Director of the Institut d'Histoire de la Révolution Française), Antonino De Francesco (University of Milan, Italy), and Judith A. Miller (Emory University).  The press explains:
This book places itself at the intersection of two fields of study—military history and political ideologies—in order to investigate the troubling links between warfare and republicanism during the Revolutionary era. This international team of historians probes the dynamics of nations born of revolutions, and the violent confrontations that erupted as republicans carried their principles beyond their borders. The collection presents fresh work, including articles by scholars who have not previously published in English. Their wide-ranging inquiries highlight the impact of war on slave emancipation in the Caribbean and the United States, as well as the attempts to impose republicanism through warfare in Ireland, Italy and Spain. They trace debates in theaters, diplomatic communiqués, and conscription strategies to understand the meaning of war in the name of a republic. Together, the contributions reveal the profound, often damaging, and sometimes liberating consequences of those combined military and political undertakings.
Table of contents after the jump:

Monday, November 25, 2013

A New York Perspective on the Solicitor Generalship

[We're moving this up, as we've just learned, via @NYLegal_History that a recording of this event will be broadcast on CSPAN at 1:15 on December 7.]

The Supreme Court Historical Society and The Historical Society of the New York Courts
present Learned in the Law: The Role of the U.S. Solicitor General...a New York Point of View, Friday, October 25, 2013, at the New York City Bar Association, 42 West 44th Street.  Reception starts at 5; the program runs from 6:00-8:00 PM.  Opening remarks an introductions will be from the Hon. Jonathan Lippman, Chief Judge of the State of New York and the Hon. Judith S. Kaye, Former Chief Judge of the State of New York. 

John Q. Barrett, Professor of Law, St. John's University & Elizabeth S. Lenna Fellow, Robert H. Jackson Center, will then deliver the lecture "The History of the Office of the Solicitor General: The New York Influence.”  A panel discussion will follow moderated by Jeffrey P. Minear, Counselor to the Chief Justice of the United States.  The panelists will be Justice Elena Kagan, Supreme Court of the United States and 45th Solicitor General of the United States (2009-2010), Drew S. Days, III, 40th Solicitor General of the United States (1993-1996), and Paul D. Clement, 43rd Solicitor General of the United States (2004-2008).

Journal of Legal History 34:3

While I’m at it, here are the contents of the Journal of Legal History, 34:3 (2013):


‘The ould fields’: Law and History in the Prefaces to Sir Edward Coke's Reports
George Garnett,

Reforming Equity: New Zealand 1843–56
Shaunnagh Dorsett

The Doctrine of Presumptive Fraud in Scots Law
Dot Reid

Book Reviews

The Changing Legal Regulation of Cohabitation: From Fornicators to Family, 1600–2010

Rosemary Auchmuty

Law's History: American Legal Thought and the Transatlantic Turn to History
Raymond Cocks

Dorsett on the Reform of Equity in New Zealand

We usually don’t post on articles that are in gated journals, but as a former Fulbrighter and recent member of a panel in which Amalia Kessler presented a paper addressing the reform of equity procedure in the antebellum United States, I’m making an exception.  Shaunnagh Dorsett, University of Technology Sydney, Faculty of Law, has posted the following abstract for the article Reforming Equity: New Zealand 1843-1856, which appears in The Journal of Legal History 34 (2013): 285:
This article considers the significant modifications made to English Chancery procedure by the first rules of court of the Supreme Court of New Zealand (1843/44). In the first part of the nineteenth century, across the empire, colonial judges used their power to draft their own rules to modify English practice and procedure, often implementing changes ahead of those of the English reform movement. The first rules of court in New Zealand were particularly innovative: they introduced new, simplified and uniform rules for actions and suits, as well as achieving a level of administrative 'fusion' well before the reforms either of the New York Field Code 1849 or the English Judicature Act 1873.

Carle's "Defining the Struggle"

Just out from Oxford University Press is Defining the Struggle: National Organizing for Racial Justice, 1880-1915, by Susan D. Carle, Washington College of Law, American University.  Professor Carle will be blogging on the book and related issues next month.  Her Facebook page on the book is here.

OUP explains:
Much of the struggle for racial justice in the United States has taken place in the courts, from the Civil Rights Cases of 1883 to Brown v. Board of Education to recent cases on affirmative action and voter suppression. But the legal aspects of this struggle involve far more than Supreme Court precedents. Defining the Struggle is a ground-breaking and important exploration of how late nineteenth and early twentieth century national organizations-including the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement-developed myriad strategies for law-related racial justice organizing. It tells the story of these organizations and their leaders and motivations, the initiatives they undertook, and the ideas about law and racial justice activism they developed and passed on to future generations. While it is well known that the racial justice struggle was arduous in the mid-twentieth century, this struggle was dramatically more difficult in the period before that, making the story of these individuals and the organizations they led all the more remarkable.

Law professor Susan D. Carle traces the fascinating, sometimes fractious campaigns for voting rights, anti-lynching laws, civil rights equality, social welfare policy, and economic advancement. She shows how these early national organizations transmitted their ideas and experiences to two flagship national racial justice organizations of the early twentieth century, the NAACP and National Urban League. In so doing Carle sheds new light on how these early origins helped set the path for twentieth century legal civil rights activism in the United States. With unparalleled scholarly depth and a vivid, compelling narrative, Defining the Struggle explores the forerunner organizations and individuals whose contributions have largely been forgotten today.
Here are two blurbs:

"Susan Carle writes a clear and convincing history of the first generation of civil rights organizers and advocates-the movement that started the Movement. We all stand on their shoulders. Let us remember their names and know their stories."-Benjamin Todd Jealous, President and CEO, NAACP

"Susan Carle's study of nineteenth-century social and legal activism is ground breaking. By shedding new light on the historical roots of the Second Reconstruction and mapping the intellectual links between modern civil rights groups and long-forgotten visionaries, Carle has made a remarkable contribution."-Tomiko Brown-Nagin, author of the Bancroft-Prize winning Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement

TOC after the jump.

Sunday, November 24, 2013

Sunday Book Roundup

Lincoln Caplan reviews Reason and Imagination: The Selected Correspondence of Learned Hand: 1897–1961 (Oxford) edited by Constance Jordan, with a preface by Ronald Dworkin, in the New York Review of Books.
"Constance Jordan, a professor of English and Comparative Literature Emerita at Claremont Graduate University in California, explains in a well-informed introduction to Reason and Imagination: The Selected Correspondence of Learned Hand—she is Hand’s granddaughter and edited this sympathetic, dense, and finely annotated array of letters by and to him—Judge Hand’s self-doubt matched his philosophical skepticism. He rejected the idea that life is governed by some absolute truth, favoring what he called the “craftsman spirit.”"
Other reviews this week include the Washington Post's review of Churchill's Bomb: How the United States Overtook Britain in the First Nuclear Arms Race (Basic) by Graham Farmelo, and a review of David Graeber's Debt: The First 5000 Years (Melville House) on Books and Ideas.

Now available to non-subscribers, there is a review of Eric Hobsbawm's last book Fractured Times: Culture and Society in the Twentieth Century (New Press) in The Nation.
"Hobsbawm’s best-known books focused on the material side of human life, or on what Marxists term “the forces and relations of production”—namely, technological trends, wealth creation, class formation and class struggle. But on the evidence of Fractured Times, inside this materialist there was an aesthete waiting to come out. The collection is a fascinating and intensely observed history of the cultural twentieth century, and a worthy complement to Hobsbawm’s economic, political and social histories."
Lastly, H-Net adds a review of Klaus Bachmann, Peter Lambertz, and Thomas Sparrow-Botero's When Justice Meets Politics: Independence and Autonomy of Ad Hoc International Criminal Tribunals (Peter Lang International Academic Publishers).
"This book offers a valuable reading and an important empirical test of optimistic expectations of Tribunals’ independence and contribution in transitional justice. It reveals a novel insight into the several aspects of contested relation of justice vs. politics in global arena and sets new approaches in dealing with the subject."

Legal History at SSHA: Day 4

It's the final day of the annual meeting of the Social Science History Association, and there are a few more panels of interest to note:

Credit, courts, and conflict
Peter Meyer -- Network Rep, Creator, Organizer
Mark Geiger -- Network Rep, Discussant
Brandon Dupont -- Chair
  • Qian Lu and John Joseph Wallis, From Partisan Banking to Open Access
  • Paul McLean and Neha Gonda, Household-to-Company Networks and Consumer Credit in Renaissance Florence
  • Metin Cosgel and Bogac Ergene, The Selection Bias in Historical Records: Settlement and Trial in Eighteenth Century Ottoman Kastamonu
  • Camilo Leslie. Toward a sociology of trustworthiness: A study of U.S. and Venezuelan investment in the Stanford Financial Group fraud

Histories of Policing and the Policing of History
Brendan McQuade -- Creator, Organizer, Chair, Author
Alfred McCoy -- Discussant
  • Kelvin Santiago, Domestic Law-Enforcement Armies and Global Military Cops: Theorizing and Historicizing Such Convergences
  • Brendan McQuade, The Homeland Security Era: Insurgency, Austerity and the Politics of Policing
  • Josef Teboho Ansorge, Data-Mining the Foe
  • Kristene Unsworth, Law Enforcement and Social Media

Book Session: The Second Red Scare and the Unmaking of the New Deal Left by Landon Storrs
Thomas Dublin  -- Discussant
Dolores Janiewski -- Creator, Chair, Discussant
Nancy MacLean -- Discussant
Landon R. Y. Storrs -- Discussant, Author

Saturday, November 23, 2013

Legal History at SSHA: Day 3

It's Day 3 of the annual meeting of the Social Science History Association. Today at 10:15 I'm participating in an author-meets-reader panel on Michele Landis Dauber's The Sympathetic State. (Spoiler alert: I'm a big fan, as I've written here.) The other discussants are Alice O'Connor, Brian Balogh, and Joanna Grisinger; William Novak is chairing.  

Here are some other panels on today's schedule that caught my eye: 

Bodies and the Law 
Tamara Myers -- Network Rep, Creator, Organizer, Author
Cary Federman -- Chair, Discussant
  • Donald Fyson, Punishing the Body: Penal Justice and State Violence in Quebec City and Montreal, 1760-1960
  • Bradley Miller, The Low Law of Nations: State Power and Police Abductions in the Canadian-American Border Zone, 1819-1914
  • Tamara Myers, Children, Death, and Urban Policing in Mid-20th Century North America
  • Mary Anne Poutanen, “‘Due Attention Has Been Paid to all Rules’: Regulating Alcohol Consumption and Bodies in Montreal, 1840-1860”
Author Meets Critics: Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic
Hiroshi Motomura -- Discussant
Allison Tirres -- Discussant
Adam Goodman -- Creator, Chair, Organizer
Dorothee Schneider -- Discussant
Patrick Weil -- Author

The Chicago School: Economics, Law and Power in the US, Chile & New Zealand
Richard Meagher -- Chair, Discussant
  • Dolores Janiewski, New Zealand Enrolls in the Chicago School, 1984-2012
  • Margaret Power, Yes, here it is. . From Chicago to Santiago: The Formation and Impact of the ‘Chicago Boys and Girls’
  • Robert Van Horn, "Corporate Funders, Edward Levi, and the Rise of Chicago Law and Economics in the 1950s"
  • Paul V. Kershaw, Organizing the Neoliberal State in the US, 1971-1976
Public Sector Unions and the State
Barry Eidlin -- Network Rep, Creator, Organizer
Joseph Slater -- Discussant, Chair
  • Alexis Walker, Solidarity’s Wedge: How the Federalized Nature of American Labor Law Divides Public and Private Sector Unions
  • Nicholas Juravich, A Union of Paraprofessionals?: Paraprofessional Organizing in Education, 1968-1978
  • Matthew Kearney, What's So Bad About the Budget Repair Bill?
  • Julia Gunn, Business as Usual: Organized Labor, Business Activism, and the Passage of North Carolina’s Ban Against Public Employee Collective Bargaining
Race in Health Care and the Legal System
Elizabeth Onasch -- Network Rep, Creator, Organizer
Karolina Follis -- Chair
Brian Jolet -- Discussant
  • henrice altink, White Plague and Black Resistance: tuberculosis and the challenge to Crown Colony government in Jamaica 
  • Gabriel Mendes, “‘An Experiment in the Social Basis of Psychotherapy’: The Modest Radicalism of the Lafargue Mental Hygiene Clinic in Cold War Era New York City”
  • Shaun Ossei-Owusu, Zealous Romantics: The Progressive Era and the Naivete of Legal Aid Reformers
  • Adrea Hernandez, Twice Criminalized: Incarcerable Latinos in Massachusetts, 1970 to the Present

Weekend Roundup

  • An interesting conversation has been taking place over at the Chronicle of Higher Education about approaches to classroom management (should we be "hard to get along with" or not?). The latest contribution, by David Evans, is worth reading ("Do You Really Want to Be the Rules Sergeant?").
  •  Retraction Watch, of the Patriot and Union on the Gettysburg Address.  Hat tip: Ross Davies
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, November 22, 2013

Paterson on the Last Law Lords and the Supreme Court

Alan Paterson, Professor of Law and Director of the Centre for Professional Legal Studies at the Strathclyde University Law School, has published Final Judgment: The Last Law Lords and the Supreme Court with Hart Publishing Ltd.
The House of Lords, for over 300 years the UK's highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivalled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including more than 40 with Law Lords and Justices, and uniquely, some of their judicial notebooks, this is a landmark study of appellate judging 'from the inside' by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years.

The book demonstrates that appellate decision-making in the UK's final court remains a social and collective process, primarily because of the dialogues which take place between the judges and the key groups with which they interact when reaching their decisions. As the book shows, the forms of dialogue are now more varied, yet the most significant dialogues continue to be with their fellow Law Lords and Justices, and with counsel. To these, new dialogues have been added, namely those with foreign courts (especially Strasbourg) and with judicial assistants, which have subtly altered the tenor and import of their other dialogues. 

The research reveals that, unlike the English Court of Appeal, the House of Lords in its last decade was only intermittently collegial since Lord Bingham's philosophy of appellate judging left opinion writing, concurrences and dissents largely to individual preference. In the Supreme Court, however, there has been a marked shift to team working and collective decision-making bringing with it challenges and occasional tensions not seen in the final years of the House of Lords. The work shows that effectiveness in group-decision making in the final court turns in part on the stages when dialogues occur, in part on the geography of the court and in part on the task leadership and social leadership skills of the judges involved in particular cases. 

The passing of the Human Rights Act and the expansion in judicial review over the last 30 years have dramatically altered the two remaining dialogues - those with Parliament and with the Executive. With the former, the dialogue has grown more distant, with the latter, more problematic, than was the case 40 years ago. The last chapter rehearses where the changing dialogues have left the UK's final court. Ironically, despite the oft applauded commitment of the new Court to public visibility, the book concludes that even greater transparency in the dialogue with the public may be required.
From the foreword by Lord Hope of Craighead KT:

The way appellate judges at the highest level behave to each other, to counsel, with other branches of government and with other courts is brought under closer scrutiny in this book than ever before…The remarkable width and depth of his examination…has resulted in a work of real scholarship, which all those who are interested in how appellate courts work all over the common law world will find especially valuable.

LPBR Reviews 4 Supreme Court Histories

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

  • Frank J. Colucci (Purdue University Calumet) reviews THE REHNQUIST COURT AND CRIMINAL JUSTICE (Lexington Books), by Christopher E. Smith, Christina DeJong, and Michael A. McCall. 
  • Artemus Ward (Northern Illinois University) reviews SAME-SEX MARRIAGE IN THE UNITED STATES: THE ROAD TO THE SUPREME COURT (Rowman & Littlefield), by Jason Pierceson.
  • Benjamin O. Arah (Bowie State University) reviews FLAGRANT CONDUCT: THE STORY OF LAWRENCE v. TEXAS (W. W. Norton & Company), by Dale Carpenter.
  • Ronald Kahn (Oberlin College) reviews A STORM OVER THIS COURT: LAW POLITICS, AND SUPREME COURT DECISION-MAKING IN BROWN v. BOARD of EDUCATION (University of Virginia Press), by Jeffrey D. Hockett.

Legal History at SSHA: Day 2

Greetings from the annual meeting of the Social Science History Association, where there is lots of legal history to be found. Here are some of today's offerings (if I've missed anything, please use the comments section below to alert our readers):

Unfamiliar narratives of undocumented immigration: New perspectives on belonging and exclusion
Dorothee Schneider -- Chair, Discussant
  • Grace Delgado, The Sexual Self: Morals Policing at North American Borders, 1875-1910
  • Libby Garland, Naturalization Fraud in the Era of U.S. Immigration Quotas
  • Amalia Pallares, Undocumented Activism, Immigrant “worthiness” and access to citizenship
Book session: Eileen Boris and Jennifer Klein, Caring for America: A Conversation on Home Care Workers, Race, Gender, and the Welfare State
Leon Fink  -- Chair
Kimberly Morgan -- Discussant
Nancy MacLean -- Discussant
Cynthia Cranford -- Discussant
Karen Flynn -- Discussant
Eileen Boris -- Author
Jennifer Klein  -- Author

Negotiating Anew National Legislation and School Reform in the Mid-Twentieth Century
Michelle Purdy -- Organizer, Author
Samuel Byndom -- Chair
Hilary Moss -- Discussant
  • Erika Kitzmiller, Youth for Hire: Accelerated High School Programs, 1941-1946 
  • Michelle Purdy, National Legislation, Liberalism, and Independent Schools in the 1960s
  • Gail Wolfe, From Informal Exclusion to Formal Inclusion: Grappling with the “Old Bugaboo about Unwed Mothers in the Classroom” in Chicago in the Era of Ordway v. Hargraves and Title IX 
 Book Session: Doctors and Demonstrators: How Political Institutions Shape Abortion Law in the United States, Britain and Canada, by Drew Halfmann  
Ziad Munson -- Discussant
Zakiya Luna -- Discussant
Drew Halfmann -- Creator, Organizer, Author
Isaac Martin -- Chair, Discussant
Drew Halfmann  -- Author
Southern Law  
Tamara Myers -- Network Rep, Creator, Organizer
Barry Godfrey -- Chair, Discussant
  • Megan Francis, The Strange Fruit of the Solid South 
  • Brent Campney, "'I Am Not Going to Tolerate the Slightest Foolishness': Police Resistance to Lynch Mobs and the Police as an Instrument of Violent White Supremacy
  • Amy Kate Bailey and Stewart Tolnay, Characteristics of Female and White Male Southern Lynch Victims: 1882 - 1929
  • Christopher Muller, Land, Labor Mobility, and Racial Inequality in Convict Leasing in the Postbellum U.S. South

Siegel, "Equality Divided"

Reva B. Siegel (Yale Law School) authored this year's Foreword to the Harvard Law Review's Supreme Court issue. The full text of her essay is now available online (Hat tip: Legal Theory Blog). Here's a taste:
Reva Siegel (credit)
Equal protection cases appeal to Brown v. Board of Education and the special harms that racial classifications inflict to justify this divided framework of review. These appeals to Brown function much like appeals to Martin Luther King; they imbue claims about civil rights with foundational authority. But the divided equal protection framework that today governs claims of discrimination was not “in” Brown or Loving v. Virginia. It was forged in decades of conflict over the civil rights project, as judges invoked precedents of the civil rights era, first, to justify new forms of judicial deference in reviewing minority claims of discrimination and, then, to justify new forms of judicial scrutiny in reviewing claims of discrimination brought by whites.

This Foreword demonstrates how a body of constitutional law that began in the aspiration to protect “discrete and insular minorities” has been profoundly transformed by the conflict that enforcing equal protection provokes. It shows that modern discriminatory purpose and strict scrutiny law emerged, not in the era of Brown, but decades later, in the desegregation and affirmative action debates of the late twentieth century, as the Court changed constitutional law in response to resistance the civil rights project aroused. As importantly, I show how these changes divided equal protection into two branches of doctrine: one branch of equal protection ignores citizens’ experience of law and the other is deeply concerned about it. . . . 
Read on here.

Thursday, November 21, 2013

Schmidt wins AALS Scholarly Paper Competition

Chris Schmidt (credit)
Congratulations to Christopher Schmidt (Chicago Kent College of Law, Illinois Institute of Technology/American Bar Foundation), the winner of the 2014 Association of American Law Schools Scholarly Paper award!

A panel of distinguished legal scholars selected his paper
Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement from a pool of 60 submissions. According to the AALS press release, the competition "was launched in 1986 to highlight the excellent work of junior faculty." Schmidt will present his paper at the AALS Annual Meeting in January.

Peevers on Justifying Suez 1956 and Iraq 2003

Dr, Charlotte Peevers, a Lecturer in the Faculty of Law at the University of Technology, Sydney has recently published The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law with the Oxford University Press:
When governments go to war, they justify their use of force. This justification is often premised on international law. What significance is to be attached to the fact of legal justification? What kind of politics emerges out of these legal justifications? Some have argued that this ‘politics of justification’ constrains government action and, ultimately, can reduce the incidence of military conflict.

The politics of justification, on this account, can be seen as a progressive practice, through which international law can become embedded in domestic societies. The discursive spaces opened up by the politics of justification will socialise states towards compliance with their international legal obligations. Yet, in order to determine how the politics of justification works, we first need a map to navigate the processes involved, the actors engaged in this discourse, and the institutional contexts within which legal justification is articulated, interpreted, and contested. This book seeks to provide such a map, by tracing the politics of justification in two case studies. The book provides a rich and detailed account of British discourse during the Suez Crisis of 1956 and the lead up to the Iraq War of 2003, making extensive use of archival material, media reporting, Parliamentary debates, polling data, personal memoirs, and the evidence from several Public Inquiries.  This ‘thick’ description calls into question some of the assumptions that lie behind existing accounts of the politics of justifying force.

By charting the distinction between private and public discourses, and by highlighting the role of media in navigating justificatory claims, the study suggests a far more complex set of processes and outcomes. These processes and outcomes may indeed constrain government action. Yet at the same time, like any set of discursive practices, they may also facilitate government action. The mapping of this politics, and of the legal justifications which drive it, calls into question mainstream assumptions about the role of international law in domestic politics and, particularly, in the formulation of public policy. The book will be illuminating reading for scholars and students of international law, history and international relations.
 TOC after the jump.

Legal History at SSHA: Day 1

Today I head off to the Annual Meeting of the Social Science History Association. I'll try to post panels of interest from each day of the conference. Here are some from today's schedule that caught my eye (I'm sure I've missed some, so feel free to post other items of interest in the comments section):

Legislation and Lives: Factors moulding the fate of the disabled in the 19th and 20th centuries
Marie Clark Nelson -- Creator, Organizer, Author
Sasha Mullally -- Network Rep, Chaiar
Geoffrey Hudson -- Discussant
  • Helena Haage and Lotta Vikstrom, Disabled and Excluded? Marital Chances among Individuals with Disabilities in 19th Century Sweden.
  • Sofie De Veirman, Breaking the silence. On social networks and institutionalization of the hearing impaired. A case study of East-Flanders, Belgium, 1750-1950.
  • Dustin Galer, Through My Parents’ Eyes: Family Advocacy and the Pursuit of Disability Rights in Canada, 1960-1980 
  • Gareth Millward, ‘Not the Official Survey’ – disability organisations’ attempts to inform policy makers, 1965-2013 
  • Marie Clark Nelson, Tuberculosis and Disability: Legislating Invisibility

Comparative studies of tax policy regimes
Ajay Mehrotra  -- Network Rep, Creator, Organizer
Philip Thai -- Chair, Discussant
  • M. Antonio Guzman, Tariffs and Land Taxes: Revenue Extraction by American and Japanese Empires in their Sugar Colonies, 1890s-1930s 
  • Antonia Strachey, The Political Economy of Famine in World War Two India: Fiscal Policy

Family crises related to changes in legislation
Antoinette Fauve-Chamoux -- Organizer, Chair
Mary Louise Nagata -- Discussant
  • Beatrice Moring, Women, law and property transmission in the Nordic countries (16th-20th centuries) 
  • Gerard Béaur, The French Revolutionary crisis and gender relations of powers in countryside families 
  • Marius Eppel, The crisis of confessionally mixed families in Transylvania as linked to the provisions of the ecclesiastic legislation (19th-20th centuries) 

Legacies and Predecessors of the Civil Rights Movement
Melissa F. Weiner -- Network Rep, Creator, Organizer
Christopher Hayes -- Discussant
Matthew Nichter -- Chair
  • Robert Jefferson, 'The Veterans' Angle': Vasco Hale, Disability, and the NAACP's Struggle for Fair Housing in Hartford, Connecticut, 1951-1955"
  • Herbert G. Ruffin II, Brothers Taking Action: African American Soldier Activism from Fort Hood 43 to People’s Justice Committee, 1966-1971
  • Umeme Sababu, Radical Redemption of Dr. King's Legacy: From 1963 to 1968
  • Judith J. Friedmm, Civil Rights Activity did not start in ther 1960s: Civil Rights in an Ohio City, 1920-1960s

Collective Action and the Law
Michael Fortner  -- Network Rep, Organizer
Shaun Ossei-Owusu -- Discussant, Chair
  • Sarah Lakhani, Immigrant Screening on the Legal Frontlines: Lawyers’ Case Selection in Non-Profit Settings
  • Paul Knepper, Interwar studies of trafficking in women and the dark figure of international crime
  • Gwen Jordan, Radical Women and the Development of Legal Aid Societies in Chicago and Los Angeles, 1886-1914
  • Gregoire Mallard, Conjuring Horror in Nuclear Treaties: The Place for Catastrophic Events in International Legal Narratives

A Legal History of Market Manipulation

Jerry W. Markham has published Law Enforcement and the History of Financial Market Manipulation with M. E. Sharpe.  Here is the press’s description:
Price manipulation techniques are intentionally difficult to understand, detect, and prove, and the rise of high-frequency trading has further complicated the task. This book maps the issues and traces the U.S. government's efforts to properly regulate, monitor, and prevent financial speculation and price manipulation in various markets. The coverage begins with the period from the late nineteenth century to the first congressional efforts at regulation in the 1930s and continues on to the present, with a full chapter on the legal and financial aspects of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

All the U.S. financial institutions involved with such regulation--the most prominent of which are the Securities and Exchange Commission created in 1934 and the Commodity Futures Trading Commission created in 1974--are discussed here in detail. Also covered are major financial imbroglios such as the Enron scandal and the ill-timed speculation in natural gas prices that brought down the Amaranth Advisors hedge fund. The last chapter discusses the difficulty of initiating successful prosecutions of financial fraud and price manipulation and proposes a new approach to preventing manipulative practices.
TOC after the jump.

Stern on Law & Literature & Criminal Law

Simon Stern, University of Toronto Faculty of Law, has posted Law & Literature (As an Approach to Criminal Law), which is forthcoming in The Oxford Handbook of Criminal Law (2014), edited by Markus Dubber and Tatjana Hörnle.  Here is the abstract:    
This book chapter discusses the use of literary material as a means of studying criminal law. The chapter provides an overview on various methods of combining legal and literary materials (law in literature, literature in law, law as literature, legal aesthetics) and offers two case studies (Susan Glaspell's "A Jury of Her Peers" and Robert Louis Stevenson's The Strange Case of Dr. Jekyll and Mr. Hyde) to show how literature can open up questions both about substantive criminal law doctrines and also about the grounds on which those doctrines are applied. Along the way, the discussion shows how various scholars of criminal law, such as Nicola Lacey and Anne Coughlin, have raised questions that have also provoked the interest of literary scholars such as Dorrit Cohn and Blakey Vermeule.

The chapter also serves as a bibliography for scholars seeking further resources that examine criminal law through the lens of literature. These resources include bibliographies of primary texts (such as crime-based fiction, "dying confessions" circulated at executions, and movies), secondary texts (discussing law and criminal behavior in relation to fiction, drama, and poetry), and web-based resources (such as the Old Bailey Sessions Papers Online). In that spirit, the chapter also discusses some research that is often overlooked in discussions of criminal law and literature – such as Todd Herzog’s research on Weimar-era true-crime narratives that were created from actual case files; Jonathan Eburne’s research on crime in the work of the French surrealists; Lorna Hutson’s research on civic plots of detection in renaissance drama and their relation to the development of evidence law; and Lisa Rodensky’s work on narrative modes in Victorian fiction and their relation to the treatment of mens rea in contemporaneous legal thought.

Wednesday, November 20, 2013

Commerce and Obligation in the Islamic World, c. 1850-1919

[We are grateful to Nurfadzilah Yahaya, Mark Steinberg Weil Early Career Fellow, in Jewish, Islamic & Near Eastern Languages & Cultures at the Washington University in St. Louis, for this excellent report of a session at the recently concluded annual meeting of the American Society for Legal History.]

"Commerce and Obligation in the Islamic World, c. 1850-1919"

All three papers in this panel reflect on the remarkable resilience of debt often outlasting individual life spans of creditors and debtors. From the perspective of law reports, merchants' papers and debt-related deeds and contracts, these three papers effectively demonstrate that legal sites were definitely not neutral since some sections of society were more able to gain access to these legal arenas which enabled them to develop effective legal strategies in the long run. The three papers also suggest that levels of trust and reputation of legal actors within their own particular societies affected legal tactics, outcomes in courts and socio-economic mobility to a significant degree.

In his paper, Fahad Bishara (College of William and Mary) examined the relationship between debt, personhood and political economy in the cosmopolitan world of the Western Indian Ocean where one's socio-legal position was determined by one's genealogy. As a result, paper documents or 'waraqas' ended up incorporating non-Arabs such as Indians and Africans, including non-Muslims, into an Arab-Islamic genealogy. A recognizable genealogy, instead of wealth and property, was what enabled one to incur obligations. Although Muslim jurists concurred that only human beings could enjoy legal personhood and therefore could bear rights and duties associated with contracting, legal practitioners and merchants in the Indian Ocean had to incorporate a wide array of legal actors such as Hindu family firms that had to be transmuted into a legal 'person.' To fit the rules of contracting, the waraqas had to reflect high flexibility in order to create an equal contractual playing field for merchants. In addition, Bishara argues that merchants on the coast of East Africa tended to claim Arab patrilineal genealogies not only for mercantile prowess but also political prestige. Finally, Bishara implies that the waraqa resembled bills of exchange in the Indian Ocean in that they could change hands from one merchant to another except that the obligations of the original debtor remain fixed though these could be transferred to a willing party (including descendants). In effect, the waraqa functioned as the fundamental currency that configured both economic and political relations.

Will Hanley's (Florida State University) paper "Egypt’s Petty Moneylenders as Makers of International Law" argues that the implementation of international law tended to privilege foreigners at the expense of locals in Egypt towards the end of the nineteenth century. At the same time, he demonstrates how law was a necessary auxiliary tool for Egypt’s petty traders and moneylenders as part of his larger project to globalize the history of international law by describing a specifically Egyptian genealogy for its subaltern practice. In this way, Hanley demonstrates how nature of law is best understood through widespread practice, rather than origins. Focusing on Filippo Calleja, a Maltese moneylender of Alexandria, Hanley traces how these moneylenders used courts to conveniently establish installment repayment schemes. Rather than highlighting the smooth facility of common legal practices however, he highlights how the fluent use of the law led to the rise of a new class of foreigners that ultimately concentrated more wealth into their own hands unlike previous moneylenders in Egypt who were more obviously embedded in local societies.

Omar Cheta's (Bard College) paper “Legal Reform and Commercial Debt in Nineteenth-Century Egypt” explores debt litigation in nineteenth-century Egypt. Although the court was a way for creditors to claim debts, they might abstain for two reasons. First, their chances of getting back the full debt via litigation were slim. Also, litigation jeopardizes future relationships with the debtors. Hence, for the creditor, going to court was a deliberate escalatory move and not a neutral tactic to simply claim debts. Nonetheless, courts were still an attractive forum for providing standardized procedure for debt dispute resolutions. Worse comes to worse, the court was after all able to oversee the process through which the debtor forfeit control over his possession and liquidate his assets in order to pay part of his debts at least. Courts were however limited by insolvent debtors without assets who of course could not be immediately compelled to pay their creditors although the promise of future payment was still enforced by courts.  Cheta reveals that the status of the insolvent debtor is a unique one since he was separated from other prisoners both in terms of classification and spatially since they were incarcerated in different prisons from other criminals, Cheta's paper highlights the sophisticated efficiency of the court on two counts. First, courts appointed wakils, or representatives from among creditors to run negotiations more systematically. Secondly, courts ensured that they were not financially responsible for supporting imprisoned debtors by devising a scheme with the wakils to provide an allowance for debtors derived from their own sequestered possessions.

The discussant and chair, Intisar Rabb (New York University) urged the presenters to explore the legal consciousness of agents, moneylenders and merchants. She emphasized that law both enabled and constricted the power and ability of all actors. Barriers to entry into legal arenas include dishonesty and fraud. In response to Bishara, she questions whether genealogy ran with inheritance, especially since according to Islamic law, the estate takes first priority rather than the individual. According to to this logic, descendants do not have to clear their ancestors' debts. Touching upon Hanley's paper, Rabb asks how local moneylenders fared, compared to foreign moneylenders. Were there routinized institutions that catered to them specifically?

The Politics of Dependency from the Progressive Era to the Civil Rights Revolution

[We are quite grateful to Shane Landrum, a Ph.D. Candidate in American History at Brandeis University and an Instructor in the Department of History at Florida International University, for this excellent account of a panel at the recently concluded annual meeting of the American Society for Legal History.]

"Entitling Marriage, Contesting the Family: The Politics of Dependency from the Progressive Era to the Civil Rights Revolution"

A very well-attended session at the recent annual meeting of the American Society for Legal History was "Entitling Marriage, Contesting the Family: The Politics of Dependency from the Progressive Era to the Civil Rights Revolution," which brought together interesting new work on United States women's activism, family law, and the state.

Rebecca Rix, Princeton University
, gave a paper titled "'Every citizen a Sentinel: Every home a sentry box!': Revolutionary Men, Home Protection, and the Popularization of Modern Conservative Thought in the 1920s." She opened with an account of the 1924 Massachusetts referendum on the federal child labor amendment. Despite the well-known progressive tendencies of Massachusetts, voters defeated the child labor amendment by a 3-to-1 margin. This success, Rix argued, marked a sea change in the ability of conservatives to oppose progressive legislation. Elite women who had been active in the fight against woman suffrage used the tools of direct democracy and grassroots organizing. The Sentinels of the Republic, led by a number of prominent industrialists, mobilized Americans against child-labor reform by arguing that increased federal power threatened parents' authority over their own children. Likewise, they reframed their opposition to child welfare programs as a constitutional objection to plenary taxation by Congress, invoking the image of Samuel Adams at the Boston Tea Party.

The Sentinels also took advantage of recent court cases to bring Catholics around to their anti-taxation, limited-government positions. At a time when the Ku Klux Klan was active against Massachusetts Catholics and Oregon courts were challenging the legality of Catholic parochial schools, working-class Catholics felt significant threats. As a result, Catholics were convinced to vote against a child-labor law which, from a modern perspective, we might expect that they would have supported. The 1924 referendum, Rix concluded, was a moment where Brahmins and Knickerbockers successfully turned the tide of progressive reforms by using a rhetoric of protecting families against state power.

Kristin Collins, Boston University
, spoke on "Entitling Marriage: A History of Marriage, Public Money, and the Law." This paper was an excerpt from her current book project, which focuses on how marriage in the United States became a tool for allocating social goods, including citizenship. Asking why marriage has been such a stubborn feature of American entitlements programs and of citizenship, she explored the 1977 Supreme Court case Fiallo v. Bell. In Fiallo, a group of unwed US-citizen fathers sought special immigration status for their out-of-wedlock children under the Immigration and Nationality Act of 1952. The Fiallo plaintiffs claimed that they were the victims of an unfair sex distinction in federal law, but the court used the doctrine of plenary power to defer to Congressional judgment.

In the summer of 1976, while Fiallo was pending, ERA-supporter Elizabeth Holtzman (House, D-NY) seized on the idea of judicial deference to Congress. She drafted legislation which would have treated children of unwed citizen fathers and unwed citizen mothers equally for immigration purposes, but the legislation died once Holtzman lost a re-election attempt. In 1981, as the Reagan administration took office, they interpreted Fiallo as the Supreme Court's blessing of congressionally-approved sex-specific legislation. Thus, Collins argued, any understanding of the persistence of marriage as a tool for social provision has to include the role of institutional dynamics in limiting change.

Serena Mayeri, University of Pennsylvania
, spoke on "What's Wrong with Illegitimacy (Penalties)? Non-Marital Childbearing in Court, 1966-1979." In general, most federal sex equality cases during the 1970s confirmed the legal fungibility of husbands and wives, even as they also confirmed "marital supremacy." Between 1968 and 1972, a series of Supreme Court decisions struck down illegitimacy penalties, building on arguments made by University of Illinois professor Harry Krause. Krause used two major lines of argument. First, in the wake of the Moynihan Report, he claimed that illegitimacy penalties had a disproportionate effect on African-American children and further weakened African-American communities. Secondly, just as children had no control over their skin color, they had no control over their parents' marital status and should not be subject to legal disadvantages as a result.

Krause's arguments succeeded before the Supreme Court. However, as Mayeri pointed out, feminists had an alternate, and in some ways more compelling, set of arguments against illegitimacy penalties. Feminists Aleta Wallach and Patricia Tenoso argued that these penalties, especially in the workplace, injured unmarried women who were financially responsible for their own children. In 1973, Katie Mae Andrews successfully sued a Mississippi school district for its policy of not hiring unwed mothers. In the wake of King v. Smith (1968), feminists argued against illegitimacy penalties on the basis of a woman's right to privacy. Further, some feminists argued that illegitimacy penalties limited unmarried women's ability to choose childbearing (and financial support for their nonmarital children) rather than abortion. However, these feminist arguments largely did not make it into court. Mayeri offered two reasons for this. The first was timing; by the early 1970s, the Supreme Court had already embraced the child-centered logic presented by Harry Krause, providing a good foundation for incremental litigation strategies. Secondly, as American politics shifted to the right, feminist litigators gave up on dismantling the legal centrality of marriage, worrying that such strategies would play into the hands of influential conservatives like Phyllis Schlafly. Instead, they focused their attention on dismantling male supremacy, leaving the legacy of marital supremacy intact.

In her comment, Linda Kerber, University of Iowa, highlighted how all three papers pointed to the centrality of coverture in American law and policy. Second-wave feminists, she said, absolutely were overturning the assumptions that men and women made about their lives and their relationships. Memorably, she asserted, "Phyllis Schlafly was not wrong." She highlighted the extent to which mid-20th-century feminism was an intellectual revolution and that these papers were not only social, political and legal histories but also intellectual histories. After offering brief comments on each paper, Kerber observed that historians face challenges in teaching students about the fierce, bitter struggles of feminists in the 1970s, and she encouraged those present to find ways to teach these topics more effectively.

Christopher Tomlins, University of California-Irvine, chaired the session and guided the room through a thought-provoking sequence of questions and answers.

Tyler-McGraw and Pitcaithley on The Lemmon Slave Case

The latest issue of Common-place includes "The Lemmon Slave Case: Courtroom Drama, Constitutional Crisis and the Southern Quest to Nationalize Slavery," an essay by Marie Tyler-McGraw (independent public historian) and Dwight T. Pitcaithley (New Mexico State University). Here's an excerpt:
[During the 1850s] proslavery and antislavery partisans labored steadily and creatively to shape constitutional law and public opinion, the two components of slavery's future. The "Lemmon Case," as the subsequent slave rescue and legal case was called, pursued both. The escape of Levi and James was one of many popular slave narratives that featured thrilling escapes and ruptured black families. The Lemmon (or Lemon) case offered an expanding nineteenth-century American reading public, fond of melodrama on stage and in print, a vast cast of characters, amazing coincidences, betrayals, reversals of fortune, family reunions, courage, and legal ironies. To call the events in the Lemmon case melodrama is not to diminish their contemporary power, but to enhance it. In its many aspects, the case offered spectators and readers courtroom drama and legal dueling, as well as a black family saga second to none in the literature of the 1850s. It also brought in a wide range of regional types, from Wall Street traders to Southern politicians, escaping slaves, and a middling mountain South family far out of its comfort zone.
Read on here.

Lasch on "Rendition Resistance"

Christopher N. Lasch (University of Denver Sturm College of Law) has posted "Rendition Resistance," which is forthcoming in Volume 92 of the North Carolina Law Review (2013). Here's the abstract:
With the number of immigrant deportations setting new records, attention has focused largely on states like Arizona and Alabama, which seem to be competing to pass the harshest anti-immigrant state law provisions. Yet laws like those at issue in Arizona v. United States, seeking to augment or supplement federal immigration enforcement efforts, represent only one side of the state and local response to the issue. Recent years have also witnessed a spate of jurisdictions opting out of immigration enforcement by passing measures restricting local law enforcement from honoring federal immigration detainers.

This Article assesses this wave of rendition resistance in the context of the history of interstate rendition in the United States of fugitive slaves and “fugitives from justice” (criminal fugitives). This history is relevant because, like immigration rendition, slave rendition and criminal rendition concern a paradigmatic transaction — the claim, by a person or government, of a right to have a second government deliver up the body of a person into the custody of the claimant. The history explored here is one of the legal mechanisms for delivering bodies back across borders.

Our rendition history reveals a robust tradition of rendition resistance stemming from a concern for civil rights. This history supplies a body of precedent supporting those localities that have chosen to resist immigration detainers. Across two centuries of our history, it was widely accepted that the federal government could not compel local officials to comply with rendition demands. During this period, a historical practice of state and local authorities resisting demands for rendition in the name of civil rights persisted. Immigration rendition resistance follows this tradition.

Comparing immigrant rendition to fugitive slave rendition and criminal rendition lays bare the nearly complete absence of procedural protections afforded persons in immigration rendition proceedings. Additionally, appreciating the connections between immigrant rendition and slave and criminal rendition allows us to look beyond legal formalism and perceive the underlying values being served by immigration rendition. Against this historical context, immigration rendition becomes visible as a legal system akin to slave and criminal rendition, established to counter the free migration of laborers of color by delivering them back across borders. The exercise of local authority against rendition efforts, as it has been used in the slave and criminal contexts, can be seen as an expression of disapproval of those underlying values.
Read on here.

Hat tip: Legal Theory Blog

Tuesday, November 19, 2013

Edwards on Hartog, "Someday All This Will Be Yours"

Over at JOTWELL, Laura Edwards (Duke University) has posted some thoughts on Hendrik Hartog's Someday All This Will Be Yours: A History of Inheritance and Old Age (2012). Here's the first paragraph:
As the title suggests, Someday All This Will Be Yours is a legal history about inheritance and old age. The legal conflicts that form the core of the book make for compelling reading. Even so, the title does not capture the book’s most compelling elements, which challenge conventional assumptions about legal history and the place of law in the past.
Read on here.

Snowden on Mortgage Banking in the United States, 1870-1940

Kenneth Snowden, University of North Carolina at Greensboro, has posted a substantial monograph, Mortgage Banking in the United States, 1870-1940.  Here is the abstract:    
Taken in concert with two previously written volumes on the mortgage industry that highlight the immediate post-World War II era and the 1963-1972 period, this study accounts for nearly a century of mortgage banking progress and activity in America. What emerges is a picture of a highly differentiated industry in the 1920s that began to focus more narrowly on federally sponsored mortgage products and a single funding channel during the 1930s and in the immediate post-World War II period, and then transitioned yet again to a more diverse business model by the mid-1960s.

During their early pre-federal intervention periods, farm and urban mortgage bankers focused on three similar elements:
•The use of informal guarantees or explicit mortgage insurance to protect and attract investors in the markets for whole mortgage loans;
•The development of correspondent relationships with life insurance companies; and
•A failed experimentation with European-style mortgage banking structures.
The Federal Farm Loan Bank system and the FHA mortgage insurance programs that restructured both the farm and urban mortgage banking sectors shared three common features:
•They each encouraged the widespread adoption of long-term, amortized mortgage loans;
•They each created mechanisms to stimulate the inter-regional transfer of mortgage credit and the convergence of mortgage rates and lending terms across regions; and
•They each established federal chartering systems for privately financed European-style mortgage banks to create active secondary markets for long-term, amortized loans.

New Release: Sartore, "Outlawry, Governance, and Law in Medieval England"

New from Peter Lang International Academic Publishers: Outlawry, Governance, and Law in Medieval England, by Melissa Sartore (West Virginia University Institute of Technology). The Press describes the book as follows:
Outlawry, Governance, and Law in Medieval England evaluates the role of exclusionary practices, namely outlawry, in law and governance in England from the tenth through the thirteenth centuries. Traditional historical narratives dismiss exile, outlawry, and banishment as ineffective and weak methods of maintaining social order. More specifically, the pres¬ent volume reassesses these forms of exclusion in matters of politics, law, and society, as well as their influence on increased use of imprisonment in later medieval England. Outlawry, Governance, and Law in Medieval England is essential reading for scholars working in this field but is also highly recommended as a text for courses that assess medieval law and the practice of outlawry as well as the development of English Common Law. 
Follow the link for the TOC and an excerpt.

(Hat tip: Karl Shoemaker)

A Symposium on the History of EU Law

We've already noted the appearance of one symposium issue of Contemporary European History on the history of the European Law.  Another symposium is the 28:5 (2013) of the American University International Law Review.  We've previously some contributions to the AU symposium.  Here it is, with links, in its entirety:

Critical Legal Histories in EU Law
Fernanda G. Nicola

Rewriting the History of European Public Law: The New Contribution of Historians
Morten Rasmussen

Toward a New History in European Law: New Wine in Old Bottles?
Michelle Egan

The New EU Legal History: What's New, What's Missing?
Mark A. Pollack

Rethinking the Legal Foundations of the European Constitutional Order: The Lessons of the New Historical Research
Francesca Bignami

Why EU Legal History Matters--A Historian's Response
Bill Davies

Monday, November 18, 2013

UMD Seeks Assistant Director, Justice & Legal Thought in Law and Society Program

Via H-Law, we have word that the University of Maryland is accepting applications for the position of Assistant Director, Justice & Legal Thought in Law and Society Program:
• Help students identify practical experiences that support their academic program, e.g, internships and research opportunities
• Advise students regarding their scholars program requirements (working with their personal transcripts)
• Represent Law and Society and/or participate in College Park Scholars program-wide activities, such as admission and recruitment, summer orientation, Service Day, Citation review, and monthly meetings
• Participate in teaching of the colloquia of Justice and Legal Thought (CPJT) as well as 3-credit MLAW courses.
• Administrative responsibilities ranging from program administration, preparing reports,and supervising employees, to helping with website
Knowledge, Skills, Abilities
• Knowledge of contemporary legal thought with evidence of research interests in the history or philosophy of the law, practice of the law, or other disciplines related to justice and legal thought
• Demonstrated commitment to undergraduate education
• Skill as an effective mentor and innovative teacher, with demonstrated interest in out-of-classroom experiences, multidisciplinary pedagogies, and in the value of a liberal arts education
• Excellent writing, oral presentation and computer skills
• Proficiency in program budgeting
• Excellent interpersonal skills, e.g., ability to work with graduate students, undergraduates, professors as well as staff and community partners in diverse classroom and out-of-class settings
For more information, follow the link.

Cushman on the Court-Packing Plan and Gridlock

Barry Cushman, Notre Dame Law School, has posted The Court-Packing Plan as Symptom, Casualty, and Cause of Gridlock, which appeared in the Notre Dame Law Review 88 (2013).  Here is the abstract:    
This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually encoding gridlock into the amendment process. The Court-packing bill was thus a response to that interbranch gridlock. Second, the bill was itself a casualty of gridlock within Congress owing to two institutional features of that body: the committee system, and the Senate filibuster. Third, the Court-packing fight helped to cement a bi-partisan anti-New Deal coalition in Congress that mobilized to frustrate much of the President's second-term agenda, resulting in gridlock between the President and Congress. The Court-packing controversy thus managed, in a single, high-profile episode, to present in sharp relief and in a variety of configurations the gridlock-related implications of several features of our political and constitutional system.

NeJaime on "The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage"

Douglas NeJaime (University of California, Irvine School of Law) has posted "Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage," which is forthcoming in Volume 102 of the California Law Review (2014). This article came to our attention via JOTWELL, where Carlos Ball (Rutgers School of Law-Newark) has posted his appreciation for it. Here is the abstract:
In the wake of the celebration of the U.S. Supreme Court’s decision in United States v. Windsor, it seems obvious that the LGBT movement is intent on securing marriage. But the relationship between LGBT advocacy and marriage was not always so clear. In fact, before the movement began to make explicit claims to marriage in the 1990s, leading advocates engaged in a vigorous debate about whether to pursue marriage. This debate went beyond mere strategic disagreement and instead focused on ideological differences regarding the role of marriage and its relationship to LGBT rights, family diversity, and sexual expression. Those opposing the turn to marriage urged the movement to continue pursuing nonmarital rights and recognition, including domestic partnership, as a way to decenter marriage for everyone. Critics of today’s marriage equality advocacy point to this history as a lost alternative past worthy of reclamation. Today’s marriage-centered movement, they argue, channels relationships into traditional forms and marginalizes those who fail to fit the marital mold. Instead of continuing down this road, these critics contend, movement advocates should recover their earlier roots and embrace pluralistic models of family and intimacy outside of marriage.

This Article challenges the assumptions that structure today’s debate over the role of marriage in LGBT advocacy. It does so by uncovering the centrality of marriage even during the time when LGBT advocates worked entirely outside of marriage and built nonmarital regimes. Through a case study of domestic partnership advocacy in California in the 1980s and 1990s, this Article shows that the relationship between nonmarital advocacy and marriage was dialogical. Marriage shaped LGBT advocacy for nonmarital recognition, and that advocacy in turn shaped marriage. To gain support for nonmarital rights and benefits, advocates cast same-sex relationships as marriage-like and built domestic partnership in reference to marriage, thus reinscribing — rather than resisting — the centrality of marriage. Yet, at the same time, this nonmarital advocacy contributed to an ascendant model of marriage characterized by adult romantic affiliation, mutual emotional support, and economic interdependence — a model of marriage capable of including same-sex couples.

Revisiting this earlier time in LGBT advocacy sheds light on the current marriage-centered moment. By uncovering how marriage anchored advocacy on nonmarital recognition, the case study demonstrates the difficulty in escaping marriage’s regulatory pull and thereby challenges normative and prescriptive claims pushing away from marriage in LGBT advocacy. And by showing how advocates shaped marriage’s meaning in the space outside marriage, it reveals how nonmarital advocacy built the foundation for today’s marriage equality jurisprudence.
The full article is available here.

Sunday, November 17, 2013

Sunday Book Roundup

A new issue of the Federal Lawyer is out with several new reviews, including reviews of Stephen Harper's The Lawyer Bubble: A Profession in Crisis (Basic Books), Stuart Banner's American
Property: A History of How, Why, and What We Own (Harvard), and William Cooper's We Have the War Upon Us: The Onset of the Civil War, November 1960-April 1961 (Knopf). (All reviews can be found here.) Also in this issue, Henry Cohen reviews Freedom National: The Destruction of Slavery in the United States 1861-1865 (Norton) by James Oakes. Cohen writes,
"Freedom National is distinctive not only for its thesis that restoration of the union and the abolition of slavery were inseparable from the start, but for Oakes’ descriptions of how, as a practical matter, slavery collapsed. He examines, for instance, the upheavals in the four border states, where slaves fled to Union lines in large numbers and were not returned to their owners, despite the fact that these states were not subject to the Confiscation Acts or the Emancipation Proclamation. He discusses the “self-emancipation” of slaves who stayed behind when their owners fled their plantations upon the arrival of Union troops. He reports how, in 1862, “[a]fter decades of reluctance the Americans finally signed a slave-trade treaty that would allow the British to search American ships suspected of engaging in the illegal transatlantic slave trade.” He discusses how, after Congress abolished slavery in the District of Columbia in 1862, thousands of Maryland slaves fled to the District. He discusses how slaveholders moved their slaves to plantations farther inland in order to distance them from Union lines to which they could flee, and how the Union established “contraband camps” to accommodate the large number of slaves who did flee. He discusses how Union officers dealt with slave mothers who fled to Union lines with their children but could not be put to work as the men were." 
H-Net adds a review of Lisa G. Materson's For the Freedom of Her Race: Black Women and Electoral Politics in Illinois, 1877-1932 (University of North Carolina Press).