Friday, January 31, 2014

"How Tax Law Made America Modern": Schmidt on Mehrotra

Over at JOTWELL, Christopher Schmidt (IIT Chicago Kent College of Law) writes in praise of Ajay Mehrotra's new book, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (2013). (We've noted the book here, and you'll be hearing more about it in March, when Professor Mehrotra joins us a guest blogger.) Here's the first paragraph Schmidt's short review essay:
Ajay Mehrotra’s new book, Making the Modern American Fiscal State, describes how the United States in the late nineteenth and early twentieth centuries transformed the way it taxed its citizens and thereby laid the foundation for new forms of governance and new sensibilities about the network of civic obligations that bound the nation together. This is a truly impressive work of legal historical scholarship—thoroughly researched, well written, and powerfully argued. Mehrotra also offers a masterful demonstration of scholarly synthesis, artfully weaving together an intricate tapestry of economics, politics, law, and social history.
Read on here.

Two from Kadens on Custom

Emily Kadens, Northwestern University School of Law (and a former Guest Blogger), has posted two articles on custom.  The first is Custom's Two Bodies, which appears in Center and Periphery: Studies on Power in the Medieval World in Honor of William Chester Jordan, edited by Katherine L. Jansen, G. Geltner and Anne E. Lester (Brill 2013) It “introduces a theory of custom as a duality composed of behavior on the one hand and stated legal rules on the other. A behavior-custom is binding law even before it gets articulated as a rule-custom, yet behavior-custom has very different characteristics from custom stated as an express legal rule.”  The second is Introduction: Lessons from the History of Custom, from the Texas International Law Journal 38 (2013).  It “discusses the writings of the medieval and early modern jurists on custom to demonstrate that they could teach us a great deal about understanding how custom really works.”

Symposium on the Federal Trade Commission: "100 Years of Antitrust and Competition Policy."

On Thursday, February 13, 2014, the George Mason Law Review will host the 17th Annual Antitrust Symposium. The topic is "The FTC: 100 Years of Antitrust and Competition Policy." Here's a description:
In commemoration of the Federal Trade Commission's centennial, the symposium will focus of the FTC's unique contributions to the development of antitrust policy. The Symposium will feature an opening keynote address by FTC Chairwoman Edith Ramirez and a keynote lunch panel featuring several former FTC Chairs including Jon Leibowitz; Timothy J. Muris, Professor of Law at George Mason University School of Law; James C. Miller III and Deborah P. Majoras. The remainder of the day will consist of panel discussions on the Commission's rule in several developing areas of antitrust and will feature The Honorable Douglas H. Ginsburg, Professor of Law at George Mason University School of Law; FTC Commissioner Julie Brill; FTC Commissioner Maureen K. Ohlhausen and FTC Commissioner Joshua D. Wright, Professor of Law (on leave) at George Mason University School of Law.
More information is available here.

Hat tip: Legal Scholarship Blog

Thursday, January 30, 2014

Seidman on the History of Constitutional Skepticism

My Georgetown Law colleague Louis Michael Seidman has posted Constitutional Skepticism: A Recovery and Preliminary Evaluation, a work of history suggested by his recent contribution to constitutional law scholarship, On Constitutional Disobedience (Oxford, 2013).  Here is the abstract:    
The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that the various strands share a common core. At base, all forms of constitutional skepticism rest on doubts about whether moral and political disagreement can be bridged by a legal text. Those doubts, in turn, are grounded on a rejection of global moral skepticism and on deep strands of American thought that emphasize the possibility of moral knowledge. In Part III, I very briefly suggest some preliminary conclusions about how we should view constitutional skepticism. I argue that there are reasons to think that a dose constitutional skepticism might mitigate some of our current political dysfunction.

Research Fellowships from the John Carter Brown Library and the Center for the Study of Slavery and Justice at Brown University

Via H-Law, we have the following announcement:
The John Carter Brown Library (JCB) and The Center for the Study of Slavery and Justice (CSSJ) at Brown University invite applications for a joint JCB/CSSJ residential research fellowship for the academic year 2014-2015.
The fellowship is open to those who have recently completed their PhDs*, assistant professors, as well as independent scholars who are working on any topic to do with the history of slavery and abolition that might benefit from extended access to the collections of the JCB, in particular, and from other collections on Brown's campus, including that of the John Hay Library.

The JCB/CSSJ Fellow would be expected to be a regular participant in the activities sponsored by both host organizations, and would be eligible for  housing in the JCB's fellows' residence, Fiering House, located just four blocks from the Library and five blocks from the CSSJ. The JCB/CSSJ Fellow will have the opportunity to teach a course in a department at Brown that would align with the fellow's research interests, using materials from the JCB collections.

The stipend for the fellowship is $45,000, with residency required from Sept. 1, 2014 through May 31, 2015.

Deadline for submission of all materials is February 15, 2014.

For more about the John Carter Brown Library and its collections, please visit
Application Instructions are available here.

CFP: "Legal Bodies: Corpus / Persona / Communitas"

Via H-Law, we have the following Call for Papers:
Legal Bodies: Corpus / Persona / Communitas
15-16-17 May 2014

On May 15-16-17 2014, LUCAS (the Leiden University Centre for the Arts in Society) will host a three-day conference on the various ways in which literary and artistic texts have represented, interrogated or challenged juridical notions of ‘personhood’. The guiding assumption behind our conference is that ‘personhood’ is not a (biologically) given, stable property of human beings (which precedes their interaction with the law), but that ‘personhood’ is assigned to selected (and historically varying) ‘bodies’ by discursive regimes, such as those of law, medicine, politics, religion, and education. During the conference we will study how literature, art and culture form domains in which the implications and scope of legal, political or medical conceptualizations of personhood can be dramatized and thought through, and in which alternative understandings of personhood can be proposed and disseminated.

The symposium broaches the question of personhood on three different levels: those of the body, the individual and the community. Questions to be addressed include (but are not limited to), firstly: From which discourses did notions of bodily integrity historically emerge? Which social, political and medical developments are currently challenging these notions? How do artistic, cultural and socio-political phenomena (such as bio-art, body horror, the right-to-die movement, etc.) invite us to rethink our notion of the human body? Second, what literary and rhetorical figures made it possible to think of legal personhood in antiquity, the middle ages and the modern era? What is the legal status of ‘not-quite persons,’ such as children, illegal immigrants, the mentally disabled, the unborn and the undead? What could ‘animal personhood’ entail? Finally: how do collective bodies acquire personhood? How did art and literature represent legal entities such as the medieval city, the seventeenth century trade company or the nineteenth century corporation? Or what is the legally defined status of sects, networks, conspiracies, and resistance movements?
400-word proposals for 20-minute papers can be send to Frans-Willem Korsten, Nanne Timmer and Yasco Horsman (LUCAS, Leiden) at

Deadline: 14 February 2014
For more information, follow the link.

Wednesday, January 29, 2014

Girard on Extrajudical Contacts and the Patriation Reference

Philip Girard, Dalhousie University Schulich School of Law, has posted A Tempest in a Transatlantic Teapot: A Legal Historian's Critical Analysis of Frédéric Bastien's La Bataille De Londres, which is forthcoming in the Osgoode Hall Law Journal 51:2.  Here is the abstract:    
This review discussed the allegations in Frederic Bastien's book La Bataille de Londres, to the effect that two Supreme Court of Canada judges had improper communications with British and Canadian authorities before and after the hearing of the Patriation Reference. It analyzes in detail the five incidents upon which the allegations are based, and finds that the author's interpretation cannot be supported in four of them because of faulty interpretation of the evidence or incomplete research. The fifth incident, in which Chief Justice Laskin met with the English attorney general, is found to have been arguably inappropriate judicial behaviour, but to have no effect in law on the ultimate decision in the Patriation Reference. In addition, more recent evidence tends to confirm that no "leaks" to the Canadian government occurred while the Court was writing its decision.

Chowkwanyun and Tani, "Training Historians and the Dual Degree"

The Chronicle of Higher Education has just posted an op-ed on "Training Historians and the Dual Degree." My friend and colleague Merlin Chowkwanyun approached me about writing this piece together after many conversations about the value of our dual degrees (my other degree, of course, is a JD; his is a Masters in Public Health). Like many historians, we have also eagerly followed recent debates about the health of our discipline and the prospects for history PhD students, and we have been surprised by the lack of attention to the dual degree. Here's an excerpt from the introduction to the piece:
When historians gathered for their annual meeting in January, the future of the discipline itself was on the agenda. Amid the talk about the relevance of historical scholarship and the precarious employment prospects for history Ph.D.’s were promising proposals aimed at broadening the graduate curriculum and rewarding nonacademic career paths. But one potential solution seemed to be largely overlooked: the dual-degree program.
 . . . .
Some readers may instinctively recoil from any proposal that involves “more school,” but at their best, dual-degree programs can offer a solution to two key problems now confronting the history profession: relevancy and employment prospects.
The rest is here.

Dyer, Kenney, Fisher Reviewed in the LPBR

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

Helena Silverstein (Government and Law, Lafayette College) reviews SLAVERY, ABORTION, AND THE POLITICS OF CONSTITUTIONAL MEANING (Cambridge University Press, 2013), by Justin Buckley Dyer.
Susan M. Sterett (Department of Political Science, University of Denver) reviews GENDER AND JUSTICE: WHY WOMEN IN THE JUDICIARY REALLY MATTER (Routledge, 2013) by Sally J. Kenney.
James Daniel Fisher (Department of Political Science and Criminal Justice, Edinboro University of Pennsylvania) reviews THE STREET POLITICS OF ABORTION: SPEECH, VIOLENCE, AND AMERICA’S CULTURE WARS (Stanford University Press, 2013), by Joshua C. Wilson.
The LPBR also recently published author responses to two recent reviews (on Tushnet's In the Balance, here; on Mandery's A Wild Justice, here).

CFP: "Translating a Liberal Codex: The Cadiz Constitution of 1812"

Via H-Law, we have the following Call for Papers:
This Call for Papers is for the opening session of the conference ‘Roots of restlessness? Translations in Times of Disruption’ organized by the Oxford University Research Network TRANSLATIONS IN TRANSNATIONAL CONTEXTS (10 May 2014, Merton College) supported by The Oxford Research Centre in the Humanities (TORCH) and the Modern European History Research Centre (MEHRC).
The Political Constitution of the Spanish Monarchy, commonly known as the Constitution of Cádiz, was once famously described by the historian Raymond Carr as the ‘Liberal Codex’ of the nineteenth century. It was drafted by representatives from Iberian Spain, Spanish America and the Philippines gathered in Cádiz (hence, its common name) during much of the Napoleonic wars. It was promulgated there on 19 March 1812. As a Western symbol of political freedoms and rights, this text was studied – through its various translations - by Thomas Jefferson, Jeremy Bentham, and Karl Marx, among others. The political content of the Constitution has been analysed from numerous perspectives. Our research focuses rather on the outcomes arising from the process of its transfer and translation to other political cultures.
This session will be opened by Prof. Horst Dippel (University of Kassel), editor in chief of the renowned series 'Constitutions of the World from the late 18th Century to the Middle of the 19th Century' and 'Constitutions of the World 1850 to the Present'. He will be addressing the challenges of translating constitutions in general to then focus on German versions of the Cádiz text. This will be followed by contributions by Prof. David Hook (Modern Languages, Oxford) and Dr. Graciela Iglesias Rogers (History, Oxford) on Italian and English (British) translations respectively. We are, therefore, particularly interested in proposals that will cover other European and non-European languages, including those on which it is known that versions were produced [e.g English (American), French and Russian] and others on which there have been mere references, yet it is possible that versions may exist, such as in Danish, Dutch and/or Flemish, Gaelic, the indigenous languages of Mexico and the Philippines, Arab, Bengali, Mandarin, etc.
We are also interested in translations into visual and oral media. The network welcomes proposals from scholars at all stages of their academic careers and particularly those that cross disciplinary boundaries in the Humanities and Social Sciences. Innovative formats of research communication (including 10-minute presentations) are welcome along with traditional 20-minute papers. Please send your 250 word proposal including name, affiliation, and contact details to the following email address.
For more information contact any of the coordinators: Dr. Graciela Iglesias Rogers ( and/or Professor David Hook ( and/or Dr. Jonathan Thacker ( Or visit our blog.

Tuesday, January 28, 2014

Sneak Peaks of Tsai's "America's Forgotten Constitutions"

Robert L. Tsai (credit)
This April, Harvard University Press is scheduled to publish America’s Forgotten Constitutions: Defiant Visions of Power and Community, by Robert Tsai (American University). Attendees of the DC Legal History Roundtable have seen an early chapter; this week, folks in the Spokane area can get a taste as well. 
On Thursday, January 30, Tsai will speak at a Gonzaga University School of Law faculty roundtable on the topic of “The Republic of New Afrika: Popular Constitutionalism and International Law.” Later that evening, Tsai will give a public lecture on the modern Aryan movement in the Pacific Northwest, titled “The Northwest American Republic: Dreams of White Forefathers.” The lecture is part of the Human Solidarity and Security Speaker Series.

More information about the book, including the TOC, is available here. We'll schedule a fuller post in April, when the book is officially released.

Law & Social Inquiry Graduate Student Paper Competition

An announcement for LHB readers who are in graduate school or work with graduate students:
Law & Social Inquiry a quarterly, peer-reviewed journal published by Wiley-Blackwell and sponsored by the American Bar Foundation that publishes empirical and theoretical studies of socio-legal processes from a variety of disciplinary perspectives.  It is currently sponsoring its 2014 Graduate Student Paper Competition, inviting graduate and law students to submit article-length papers that engage socio-legal studies for consideration to be selected as the contest’s winner.  The winner will receive a $500 prize and have his/her article published in a 2014 volume of Law & Social Inquiry (LSI). Submissions are now being accepted and are due to by March 1, 2014.
For more information about the contest and the submission process, follow the link.

Christman's Brief History of UK Environmental Law

Ben Christman, Queen's University Belfast School of Law, has posted A Brief History of Environmental Law in the UK, which appeared in Environmental Scientist 22 (2013): 4-8.  According to the abstract, “This article examines the trends from four key ages of UK environmental law (industrialisation, post-WWII, late 20th century and 21st century) and concludes with a forecast for the future of environmental law in the UK.”

More from the Alexander Backlist (on the History of Copyright Law)

Last week we mentioned Isabella Alexander's "artifactual approach" to copyright law, as discussed in a recent essay. Alexander (University of Technology, Sydney) also recently posted a few other items of interest from her backlist:

"All Change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century" appeared in Volume 25 of the Berkeley Technology Law Journal (2010). Here's the abstract:
This article argues that, contrary to contemporary assertions that today's debates over copyright are the product of outdated business models being threatened by innovators, this struggle between competing economic interests and different business models has existed since before the Statute of Anne was passed in 1710. Examining features of the eighteenth century book trade, and some of the early litigation that arose under the Statute of Anne, the paper draws out a number of features of continuity between the eighteenth century and modern times, as well as emphasizing points of difference. It looks at the way that early interpretations of the legislation sought to mediate between different interests in the operation of copyright law, as well as the ongoing role played by so-called 'copyright industries' in shaping that law.
"'Neither Bolt Nor Chain, Iron Safe, Nor Private Watchman, Can Prevent the Theft of Words': The Birth of the Performing Right in Britain" appeared in Ronan Deazley, Martin Kretschmer, and Lionel Bently, eds., Privilege and Property: Essays on the History of Copyright (Open Book Publishers, 2010). According to the abstract, the chapter
examines the history of dramatic copyright in Britain. It look at the enactment of the Dramatic Copyright Act and describes the role played by the dramatists of the day as well as the key role played by Edward Bulwer Lytton. It then goes on to consider how the new rights were managed in practice, through the establishment of the first British collecting society, the Dramatic Authors' Society. The chapter looks at the ways that the rights were subsequently interpreted by the courts in the latter part of the 19th century, and the career of Harry Wall, who was possibly the first 'copyright troll'.
Alexander has also posted an abstract for her book, Copyright Law and the Public Interest in the Nineteenth Century (Hart Publishing, 2010 ):
Copyright law is commonly described as carrying out a balancing act between the interests of authors or owners and those of the public. While much academic work, both historical and contemporary, has been done on the authorship side of the equation, this book examines the notion of public interest, and that way that concepts of public interest and the rhetoric surrounding it have been involved in shaping the law of copyright. While many histories of copyright focus on the eighteenth century, this book's main concern is with the period after 1774. The nineteenth century was the period during which the boundaries of copyright, as we know it today, were drawn and ideas of 'public interest' were integral to this process, but in different, and complex, ways. The book engages with this complexity by moving beyond debates about the appropriate duration of copyright, and considers the development of other important features of copyright law, such as the requirement of legal deposit, the principle that some works will not be subject to copyright protection on the grounds of public interest, and the law of infringement. While the focus of the book is on literary copyright, it also traces the expansion of copyright to cover other subject matters, such as music, dramatic works and lectures. The book concludes by examining the making of the 1911 Imperial Copyright Act -- the statute upon which the law of copyright in Britain, and in all former British colonies, is based. The history traced in this book has considerable relevance to debates over the scope of copyright law in the present day; it emphasizes the contingency and complexity of copyright law's development and current shape, as well as encouraging a critical approach to the justifications for copyright law.

Monday, January 27, 2014

Littleton-Griswold Research Grant

[We have H-Law to thank again for notice of another fellowship of interest to legal historians.  It is the Littleton-Griswold Research Grant for Research in US Legal History.]

The American Historical Association offers the Littleton-Griswold Research Grant for research in US legal history and in the general field of law and society, broadly defined. The funds for this program come from the earnings of the Littleton-Griswold Fund. These modest annual grants are intended to further research in progress and may be used for travel to a library or archive, for microfilms, photographs, or photocopying—a list of purposes that is meant to be merely illustrative, not exhaustive (other expenses, such as child care, can be included). Individual grants up to $1,000 will be awarded.

Only members of the Association are eligible to apply for AHA research grants. Preference will be given to those with specific research needs, such as the completion of a project or completion of a discrete segment thereof. Preference will be given to advanced doctoral students, non-tenured faculty, and unaffiliated scholars.

Please note: Within a five-year period, no individual is eligible to receive more than a combined total of $1,000 from all AHA research grants.

The AHA has partnered with Interfolio to manage our research grant application process. Application instructions for members are available here.  (You must be logged in to access this page.) Applications must be submitted  through Interfolio by February 15 each year. There is no fee to apply. Mailed, e-mailed, or faxed applications will not be accepted. 

Applications must include:
CV (three to five pages maximum)
statement of no more than 750 words describing your project
one-page bibliography
project budget worksheet
A selection committee reviews applications each spring, and applicants will be notified of the committee’s decision by e-mail in mid-May. Awards are distributed each June. Please, no phone calls.

Successful applicants will be expected to complete a survey outlining how the funds were used and how they furthered the grantee’s research. Survey responses will be due in August of the year following the grant award. AHA financial support should be acknowledged in any publication resulting from this research.

For questions, please contact the Research Grant Administrator .

Fellowships in Islamic Legal Studies at HLS

Via H-Law, we have the following announcement from the Islamic Legal Studies Program at Harvard Law School:
Visiting Fellowship Program for 2014–2015

The Islamic Legal Studies Program at Harvard Law School is now accepting applications for ILSP Visiting Fellowships for the academic year 2014–2015. The program has been newly revised to include opportunities to work on scholarly projects relating to one of the year's three research streams: Islamic Law and Legal History, Islamic Law and Society, and Islamic Law Themes in Digital Humanities.

For more information and to apply, visit, the program web site. For questions or additional information, please contact

The deadline for applications is February 1, 2014. Applications received after this date will not be considered.

Most and Least Readable Justices on the Hughes and Roberts Courts

Stephen M. Johnson, Mercer University Law School, has posted The Changing Discourse of the Supreme Court, which appears in University of New Hampshire Law Review 12 (2013): 29.  Here is the abstract:
Academics, judges and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most Americans. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices.
In response to the criticisms, a few academics have conducted empirical research to determine whether certain opinions of the Supreme Court are more readable than other opinions. The authors of those studies have also attempted to identify factors that might influence the readability of an opinion, including (1) whether the opinion is a majority or dissenting opinion; (2) the number of Justices joining the opinion; (3) the ideology of the Justice authoring the opinion; and (4) the subject matter of the underlying dispute.

None of the studies, however, have examined whether the Court’s opinions have, in general, become less readable over time, as many critics assert. The attached article compares the readability of the opinions issued by the Supreme Court in the 1931, 1932, and 1933 terms to the opinions issued by the Court in the 2009, 2010, and 2011 terms. Since some commentators have suggested that the obfuscation of Supreme Court opinions is related to the increasing complexity of issues that the Court is addressing, it seemed logical to compare the readability of the Court’s opinions from the 1930's, at a time before the “staturification” of law, and the expansion of federal administrative programs during the New Deal, to the modern opinions. In addition to exploring whether the Court’s opinions have become less readable, this article also examines whether factors identified in other studies, such as the opinion type or the subject matter in dispute, correlate to the readability of the Court’s opinions, either in the 1930's or today, and whether that has changed over time. Finally, the article examines which Justices, in the 1930s and today, wrote the most readable and least readable opinions.

The data reviewed confirm that the Court’s opinions today are significantly longer and less readable than the opinions from the 1930s, but it is not necessarily related to the “statutorification” of law or the expansion of federal administrative programs. It may, however, be related to a change in the culture of the Court that began in the 1940s, the proliferation of concurring and dissenting opinions. The data confirmed the findings of earlier studies that opinions addressing criminal law are generally the most readable, although they are significantly less readable today than they were in the 1930s. Opinions addressing administrative law and statutory law issues were the least readable in the 1930s and today. With respect to individual Justices, Justices Kagan and Cardozo wrote the most readable opinions for their respective time periods, while Justices Sotomayor and Stone wrote the least readable opinions.
Harlan Fiske Stone (Library of Congress)
A brief additional note.  In 1965, a Stone clerk from the 1930s reminded another that “As any of his law clerks can testify, Stone’s own natural literary style was at the opposite pole from the style which he admired and wished to achieve.  He wanted to write like Hemingway, but naturally wrote like E. D. White. The initial draft, whether of an opinion or speech, always required extensive rewriting, almost translation, on which Stone and the law clerk collaborated.”

And, to avoid a possible misreading: note that the clerk referred to E. D. White, a master of obfuscation, not E. B. White, a master of clarity and concision.

Sloss on "The Forgotten History of Nineteenth Century Public Law Litigation"

David L. Sloss (Santa Clara University - School of Law) has posted "Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation." Here's the abstract:
Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.

Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the concept of “polymorphous public law litigation.” Under the polymorphous model, instead of fixating on constitutional law as the dominant public law discourse, courts apply international law, statutes, and common law — and occasionally constitutional law — to decide public law controversies. The article demonstrates that nineteenth century federal courts applied a polymorphous model of public law litigation.

During the twentieth century, the polymorphous model was supplanted by a constitutionalized model of public law litigation, wherein courts rely primarily on constitutional law to decide public law cases. The process of constitutionalization exacerbated the tension between judicial review and popular sovereignty. When the Supreme Court applies constitutional law to decide a case, the Court does not merely decide the case; it also creates or modifies a legal rule that is not subject to revision by legislative majorities. In contrast, when the Court applies other types of law, Congress or state legislatures retain the power to modify the controlling legal rule. Hence, revival of a polymorphous model would help mitigate the tension between judicial review and popular sovereignty.
Read on here.

Flume, "Law and Commerce – The Evolution of Codified Business Law in Europe"

Johannes W. Flume (University of Tuebingen - Faculty of Law) has posted "Law and Commerce – The Evolution of Codified Business Law in Europe." It is forthcoming in Comparative Legal History (2014). Here's the abstract:
This paper tracks the evolution of the codification of commercial law and company law, also known as business law. While the literature on codification in general is vast, little attention has been dedicated to the importance of business law in this context although the first major moves towards codification were achieved in this field. A comparative and historical survey of the codification of business law in France, England and Germany illustrates how the European legal landscape has been affected by the process of casting the law into statutory form. Indeed, despite the commonly held misconception that there is “a” commercial code, the legislative responses to the needs of commerce have varied widely from country to country, for while company law was always in focus, the rest of the corpus differs substantially. The code de commerce of 1807 was primarily of procedural nature, while the German commercial code of 1863 created its own “private law cosmos” and the late English codes adopted yet another, very selective, strategy. The aim of this comparative study is to understand the foundations of the legal institutions of the 19th century which still form the basis of our current statutes. This in turn allows to make some predictions for likely future developments.

You may download the full paper here, at SSRN.

Sunday, January 26, 2014

Sunday Book Roundup

There's only a few book reviews this week dedicated to Martin Luther King, Jr. Day. The LA Times has collected some readings on MLK's mentor, Bayard Rustin. Salon has posted an excerpt about the holiday's creation from David L. Chappell's Waking From the Dream: The Struggle for Civil Rights in the Shadow of Martin Luther King, Jr. (Random House). Here's a peak:
"McDonald piled on. He cited specific black people who had criticized King. He added that Harry Truman had called King a rabble-rouser. He thought it “racist” to reserve a holiday for black Americans: Why not an Indian American holiday? “I happen to be part Cherokee,” he said. “Why not a Chinese American? Why not an Hispanic? . . . [W]e are supposed to be e pluribus unum.” He returned again to his hope that, “in the spirit of openhandedness,” Congress would ―open up the surveillance records . . . so that we would . . . have an opportunity to see if there is something there that a future time would prove to be greatly embarrassing.”"
The Washington Post has three reviews that might be of interest today. The first is a review of Ping Pong Diplomacy: The Secret History Behind the Game that Changed the World (Scribner) by Nicholas Griffin. David Garrow reviews Betty Medsger's The Burglary: The Discovery of J. Edgar Hoover's Secret FBI (Knopf). And, Jonathan Yardley reviews Will Swift's Pat and Dick: The Nixons, and Intimate Portrait of a Marriage (Threshold).

In addition to his Washington Post piece, David Garrow has also posted on SSRN "Toward a Definitive History of Griggs v. Dukes Power Co." published in Vanderbilt Law Review. In it he discusses Robert Belton's The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story (University Press of Kansas) edited by Stephen Wasby.

The Washington Independent Review of Books reviews Thomas W. Lippman's America's Great Game: The CIA's Secret Arabists and the Shaping of the Modern Middle East (Basic Books).

H-Net adds a brief review of Chaim M. Rosenberg's Child Labor in America: A History (McFarland), a "sweeping account of children who toiled as canners, messengers, sellers, shiners, cleaners, pickers, sowers, bellhops, cutters, and spinners in English, colonial, and American history. While much of what he describes will be familiar to historians of U.S. labor or the Gilded Age and Progressive Era, the book is a worthwhile reminder of the breadth of our nations’ past (and even continued) reliance on the low wages, long days, and physical ordeals of working children."

Also on H-Net is a review of Exit Strategies and State Building edited by Richard Caplan. There's also a review of David Bodenhamer's The Revolutionary Constitution (Oxford).
"David J. Bodenhamer has written a lucid and informative topical history of American constitutional law and constitutionalism in The Revolutionary Constitution. Bodenhamer, a professor of history, adjunct professor of informatics, and founder and executive director of the Polis Center at Indiana University-Purdue University Indianapolis, has provided a constitutional history that embraces a very modern understanding of constitutionalism. Arranging the book in ten topical chapters, Bodenhamer addresses each topic in isolation, covering the full American historical period for the respective topic. The result is a series of essays about important themes of American constitutional history, such as the origins of constitutionalism in America, federalism, equality, rights, and--Bodenhamer’s overarching intended theme--the history of “power and liberty.” But there is another theme, sometimes expressed, often implied: that of pragmatism."

Saturday, January 25, 2014

Weekend Roundup

  • Allen Rostron and Nancy Levit (both from University of Missouri at Kansas City - School of Law) have posted an updated version of their popular resource, "Information for Submitting Articles to Law Reviews & Journals." (Hat tip: Legal Theory Blog)
  • Via the Canadian Legal History Blog, we have word of a Graduate Student Essay Prize in socio-legal studies for students at Canadian universities. 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 24, 2014

Law and the American Revolution at the MHS

Via H-Law, we have news of a first-rate session of the Boston Area Early American History Seminar, to take place at the Massachusetts Historical Society on Tuesday, 4 February 2014, at 5:15 p.m.  It is a panel discussion, Law and the American Revolution.  Discussants are Mary Sarah Bilder, Boston College Law School, T. H. Breen, University of Vermont and Huntington Library, Bruce Mann, Harvard Law School, and Kent Newmyer, University of Connecticut.  Alan Rogers, Boston College, will moderate.

The conveners explain:
As we approach the 250th anniversary of the Stamp Act, scholarship on the American Revolution is poised to accelerate and move in innovative directions. Join us to consider the state of the field as it relates to legal history. There is no pre-circulated essay for this seminar, but colleagues are asked to read chapter 2 of Grant Gilmore's The Ages of American Law (New Haven: Yale University Press, 1977) if they have not already done so, in preparation for this program.
The conveners ask for RSVPs "so we know how many will attend," via email to or by calling 617-646-0568.  In case of inclement weather, phone 617-536-1608 for information.  The seminar is free and open to the public.  Afterwards the Society will provide a light buffet supper.

Kessler to Columbia Law

Columbia Law School has announced that legal historian Jeremy K. Kessler will join the faculty in July, 2015. Here's the Columbia press release:
New York, January 21, 2014—Jeremy K. Kessler, a legal historian whose scholarship focuses on First Amendment law, administrative law, and constitutional law generally, will join the Columbia Law School faculty July 1, 2015.

Kessler also has research interests in national security law, international human rights law, law and religion, and American political development. His current Ph.D. dissertation research traces how the rise and fall of the American draft transformed the relationship between civil liberties law and the administrative state. Combining legal history, political history, and constitutional theory, Kessler argues that civil liberties law rose to prominence in the early 20th century as part of a larger state-building project, and that leading civil libertarians initially saw administrative agencies as the primary enforcers of individual rights. 
Kessler’s article, “The Administrative Origins of Modern Civil Liberties Law” (forthcoming from Columbia Law Review), unearths the improbable beginnings of modern civil liberties law in Woodrow Wilson’s War Department, where Felix Frankfurter, Harlan Fiske Stone, and a cadre of progressive administrators constructed a novel approach to conscientious objection. Kessler also writes about law and history for a wide range of non-academic publications, including The New Republic, n+1, and The Los Angeles Review of Books.

Kessler joins Columbia Law School from the Tikvah Center for Law & Jewish Civilization at New York University, where he served as the David Berg Foundation Fellow. Previously, he was a graduate fellow at Cardozo School of Law and a Middleton Fellow in Presidential Studies at the Lyndon B. Johnson Presidential Library in Austin, Texas.

He is a summa cum laude graduate of Yale College and a Gates Cambridge Scholar who received an M.Phil. with distinction in the history and philosophy of science from the University of Cambridge. Kessler earned a J.D. from Yale Law School, where he was a Legal History Fellow and executive editor of the Yale Journal of Law and the Humanities.

Kessler will clerk for Judge Pierre N. Leval of the U.S. Court of Appeals for the 2nd Circuit in 2014–2015.
Congratulations to Jeremy Kessler!

Thursday, January 23, 2014

SHEAR Dissertation Prize Announced

[We have the following announcement via H-Law.]

The Society for Historians of the Early American Republic invite submissions for the SHEAR Dissertation Prize for 2014. The Prize will be awarded to an exceptional dissertation pertaining to the history of North America from 1776 to 1861. Within that period, the dissertation may treat virtually any aspect of history, including political, economic, social, or cultural history.

Dissertations successfully defended in calendar years 2012 and 2013 are eligible.

To submit a dissertation for consideration, please first send a one-page letter of inquiry accompanied by a brief prospectus (including chapter summaries), sample chapter, and current CV to: Robert Lockhart, History Editor, University of Pennsylvania Press, 3905 Spruce Street, Philadelphia, PA 19104.  The deadline for submission of preliminary materials is March 1, 2014. The prize committee will then invite finalists to send complete dissertations for consideration, and the winner will be announced at SHEAR's annual conference in July, where a workshop with the prize committee will also be held. The author will receive a publishing contract, and the manuscript will be published as a volume in the book series Early American Studies, cosponsored by the McNeil Center for Early American Studies and the University of Pennsylvania Press.

"Nothing Good": Jim Crow-Era South Carolina and the George Stinney, Jr. Case

In the past, the LHB has reported on Jim-Crow-era cold cases and efforts in Alabama and other places to rectify injustices from the era of segregation. Add the George J. Stinney, Jr. case to the list.  In 1944, the state of South Carolina executed George J. Stinney, Jr. a fourteen-year-old black boy, for the murder of two white girls, ages seven and eleven.  A jury had convicted Stinney after a short trial in Clarenden County (of Brown v. Board fame) that turned on the boy's reputed confession. A child psychologist now calls that confession "compliant, coerced, and false."
Courtesy of the (SC) State
George Stinney, Jr. and Sister (left)
Chip Finney, 3rd Cir. (SC) Solicitor (right) 
Mere months after the crime, South Carolina electrocuted Stinney, making the fourteen-year-old the youngest person executed in the twentieth century United States. Seventy years later, Stinney's family is seeking a new trial or a voided verdict to clear his name. The history of the state of South Carolina during the era of segregation and how prevailing social attitudes may have influenced the central actors in the case--including Stinney, prosecutors, and police officers--are vital to the legal drama now unfolding in the courtroom. One of Stinney's sisters succinctly captured a slice of the black experience when asked "what she recalled of her life" then. Her response: "nothing good."  The Stinney family left the Deep South for Newark after her brother's death "shattered her parents."  The effort of the Stinney family to clear George, Jr.'s name is opposed by the state, which is represented by Chip Finney, pictured above right, the Third Circuit Solicitor; the state argues that the evidence is too speculative to unsettle the verdict. In addition, the niece of one of the victims argues that the boy's confession and conviction are valid under the laws of 1944.

Coverage of the Stinney saga can be found in The State (SC) and in the N.Y. Times. The case also has spawned an award-winning, true-crime novel, Carolina Skeletons, by David Stout, formerly of the N.Y. Times. For a thoughtful, multi-part retrospective about his discovery of Stinney and the local context in which the crime, investigation, and execution occurred, see Stout's discussions here, here, here, and here. Here is an excerpt from Part 1 of the series:

As a journalist, I’d always been drawn to criminal justice issues, especially capital punishment. ... I’ve always favored the death penalty for truly horrible crimes. But should the state put a killer to death if he isn’t old enough to live on his own, or vote, or buy a beer?  ...  
Quickly, probably too quickly, I formed an opinion. Since George Stinney was black, and the little girls were white, he was doomed from the start. He was lucky to have died from the electric current rather than strangling at the end of a rope thrown over a tree limb by a lynch mob in the bigoted, rebel-haunted South Carolina of 1944.

New Release: Daniels, "Saving the Soul of Georgia: Donald L. Hollowell and the Struggle for Civil Rights"

New from the University of Georgia Press: Saving the Soul of Georgia: Donald L. Hollowell and the Struggle for Civil Rights, by Maurice C. Daniels (University of Georgia), with a Foreword by Vernon E. Jordan Jr.

The Press describes the book as follows:

Donald L. Hollowell was Georgia’s chief civil rights attorney during the 1950s and 1960s. In this role he defended African American men accused or convicted of capital crimes in a racially hostile legal system, represented movement activists arrested for their civil rights work, and fought to undermine the laws that maintained state-sanctioned racial discrimination. In Saving the Soul of Georgia, Maurice C. Daniels tells the story of this behind-the-scenes yet highly influential civil rights lawyer who defended the rights of blacks and advanced the cause of social justice in the United States.
Hollowell grew up in Kansas somewhat insulated from the harsh conditions imposed by Jim Crow laws throughout the South. As a young man he served as a Buffalo Soldier in the legendary Tenth Cavalry, but it wasn’t until after he fought in World War II that he determined to become a civil rights attorney. The war was an eye-opener, as Hollowell experienced the cruel discrimination of racist segregationist policies. The irony of defending freedom abroad for the sake of preserving Jim Crow laws at home steeled his resolve to fight for civil rights upon returning from war. 
From his legal work in the case of Hamilton E. Holmes and Charlayne Hunter that desegregated the University of Georgia to his defense of Dr. Martin Luther King Jr. to his collaboration with Thurgood Marshall and his service as the NAACP’s chief counsel in Georgia, Saving the Soul of Georgia explores the intersections of Hollowell’s work with the larger civil rights movement.
A blurb from our very own Tomiko Brown-Nagin: “Donald Hollowell—a brilliant and courageous lawyer known as Georgia’s ‘Mr. Civil Rights’—has long deserved a biography to match his talents. In Saving the Soul of Georgia, this lion of the civil rights movement finally receives what he has so richly deserved. Daniels’s book is a magnificent contribution to the literature on the black freedom struggle and the local lawyers who helped sustain it.”

More information is available here.

Update: Polly J. Price, Emory Law, writes in her JAH review: "In Daniels's hands, court proceedings come to life with a narrative accessible to lawyers and nonlawyers alike."

Wednesday, January 22, 2014

CFP: Law and the Visual

[Via H-Law, we have this CFP for the conference Law and the Visual: Transitions and Transformations, sponsored by the Humanities Research Centre, Australian National University and scheduled for July 7-8, 2014.]

The Humanities Research Centre at the Australian National University is one of the world’s oldest and best-known research centres in interdisciplinary humanities. As part of its 2014 Annual Theme, "Now Showing: Cultures, Judgements, and Research on the Digital Screen," we are calling for papers on themes of visual representations of law in history and the contemporary world, focusing in particular on moments of transition and transformation.

Over the long journey of modernity, technologies of law and technologies of the visual have been marked by their volatility and inventiveness. On the one hand, changing technologies of law – the emergence of the text, the development of legislation, the might of sovereignty, structures of colonialism, mechanisms of human rights, new modes of regulation, governance, and discipline – have continually transformed our understanding of and relationship to legality. On the other hand, changing technologies of visual representation – the development of perspective, the triumph of printing, photography, film, and video games to name a few – have equally transformed our understanding of and relationship to images. In what ways can each shed light on the other?
  • How have technologies of visual representation reflected, illuminated, and constituted ideologies of law and legality – particularly at moments of significant transition or transformation?
  • In what way do visual representations of law throughout the pre-modern, modern and contemporary periods illuminate and challenge our understanding of the changing relationship between law, aesthetics, and power?
  • In what ways do contemporary media allow new opportunities for a cross-cultural conversation around key legal issues and conflicts?
  • How does the aesthetics and technology of the digital screen transform the representation of legal concepts such as the rule of law, sovereignty, justice, or human rights?
Only a limited number of papers can be accepted for this symposium. It provides a rare opportunity to join an outstanding cast of international scholars in legal history, legal theory, and legal aesthetics to discuss and present exciting new work on the intersection of law and the visual.

Negotiations are currently underway with possible partners for the publication of selected papers. Confirmed participants include:
Alison Young (University of Melbourne), criminologist; author of Judging the Image (2005), and Street Art, Public City (2014)

Peter Goodrich (Cardozo School of Law), legal historian; author of Oedipus Lex (1996), and Legal Emblems (2013)

Richard Sherwin (New York Law School), director of the Visual Persuasion Project; author of Visualizing Law (2011)

Desmond Manderson (Australian National University), founding director, Institute for the Public Life of Art and Ideas; author of Kangaroo Courts & the Rule of Law (2011)
Abstracts of no more than 250 words should be directed to the Convenor:  Professor Desmond Manderson,

Please include a 75 word bio note, institutional affiliation, and contact details, and put TRANSITIONS AND TRANSFORMATIONS in the subject line.  Closing date for submissions is 31 March.  On-line registration will be available from the end of April.

Copyright in Eighteenth-Century England: An Artifactual Approach

Credit: Cramer
Isabella Alexander, University of Technology Sydney, Faculty of Law, has posted A Map, a Poem and Two Copyright Statutes, which has also been disseminated as [2013] ANZLH E-Journal, Refereed Paper No. 5.  Here is the abstract:    
This paper forms part of a forum made up of papers delivered at the 'Law, History, Culture: Reading Sources' workshop, held at the UTS Faculty of Law on 26 July 2013. The paper examines three sources: a map of John Seller, a poem by Jonathan Swift, and two copyright statutes of the eighteenth century and considers what light the non-legal sources throw upon the legal sources and what they can tell us about the early development of copyright law.

New Release: Charles, "Historicism, Originalism and the Constitution"

This spring McFarland & Company will release Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence by Patrick J. Charles (U.S. Air Force). In the meantime, the book's preface is available on SSRN. Here's the abstract:
The use of history in law is a time honored tradition. Over the years the practice has assumed many forms, including historicism, intentionalism, interpretivist history, law office history, historical narrative, originalism, etc. This book picks up where past commentators have left off in this time honored debate. The different historically based approaches to adjudicating constitutional questions are weighed and considered, particularly originalism, and asserts that history in law is only legitimate if it leads to accurate results.

The book then proposes an approach to accomplish the objectives of historical accuracy and objectivity, and therefore legitimacy. Known as the historical guidepost approach, it respects historical methodologies, places text and events in their historical context, is honest about what the evidentiary record does and does not provide, mitigates judicial mythmaking, and applies history as more of a guide to legal reasoning than a strict outcome-determinative tool.
Hat tip: Legal Theory Blog

Tuesday, January 21, 2014

The Past and Future of FRUS

The National History Center of the American Historical Association and the Woodrow Wilson International Center for Scholars, announce the latest in a series of meetings of the Washington History Seminar on the theme “Historical Perspectives on International and National Affairs.”  It is  "The Past and Future of the Foreign Relations Series,” by Stephen P. Randolph,  Historian, U.S. Department of State. Richard Immerman (Temple University) and Warren Kimball (Rutgers University) will comment.  The session will take place on Monday, January 27, 2014, at 4:00 p.m., in the Woodrow Wilson Center, 6th Floor Moynihan Boardroom, Ronald Reagan Building, Federal Triangle Metro Stop.  Reservations are requested because of limited seating: or 202-450-3209,
In more than 450 volumes produced since its inception in 1861, the U.S. Department of State's Foreign Relations of the United States series presents the official documentary historical record of major U.S. foreign policy decisions and significant diplomatic activity. FRUS, as it is known, is widely and rightly regarded as exemplary. In recent decades the topics and themes have become increasingly intricate and complex, involving numerous actors outside the State Department and documents originally created in a growing variety of media. Stephen P. Randolph will discuss the series' past as well as the many challenges facing it today, not least technological developments that threaten the future of the bound volumes familiar to generations of diplomats and historians. What adjustments might be necessary to uphold the tradition of a thorough, accurate, and reliable record?

Stephen  Randolph has been head of the Office of the Historian of the Department of State — with the official title The Historian — since 2012. Warren Kimball is a past chairman of the Advisory Committee on Historical Diplomatic Documentation, which reviews and makes recommendations on the Foreign Relations series. Richard Immerman is the present chairman of the committee.

1968: International Year of Human Rights

[We have word of the following session of Georgetown University's International History Seminar, which meets in Georgetown's Mortara Center, at the corner of N and 36th streets, NW, Washington, DC.]

Please join the International History Seminar on Tuesday, January 28, 6:00-7:30 P.M. at the Mortara Center, for Professor Sarah Snyder of American University, who will be presenting on "1968 as International Year of Human Rights." A 15-20 minute contextualization of the paper by Professor Snyder will be followed by extensive Q&A. We look forward to your participation.

For a copy of Professor Snyder's paper and/or the full 2013-14 IHS schedule, please contact Professor Aviel Roshwald at roshwaav [at] georgetown [period] edu. The paper will be provided with the understanding that it is a draft and not to be cited or quoted from without the author's permission.

The remaining sessions in the International History Seminar are:

February 4: Tara Zahra (University of Chicago), "Intra-European and Trans-Atlantic Migration during the Cold War"

March 4: Dane Kennedy (George Washington University), "A Short History of Decolonization"

April 8: Susan Brewer (University of Wisconsin-Stevens Point), "Support the Troops: Domestic Propaganda in Wartime America since World War I"

Resnik and Curtis on the Marble Palace

Judith Resnik and Dennis E. Curtis, Yale Law School, have posted Inventing Democratic Courts: A New and Iconic Supreme Court, which appeared in the Journal of Supreme Court History 38 (2013): 207.  Here is the abstract:
Credit: Carol Highsmith/LC
The Supreme Court’s building was designed to look old – as if it had been in place since the country’s founding, rather than opening in 1935. The work of judges – deciding disputes – also appears as if it were a continuous practice from ancient times. But the point of this Lecture, which builds on our book, Representing Justice: Invention, Controversy and Rights in City-States and Democratic Courtrooms, is to show that important aspects of adjudication which today seem intrinsic are, like this building, artifacts of the twentieth century.

Simply put, in ancient times, judges were loyal servants of the state; audience members were passive spectators watching rituals of power, and only certain persons were eligible to participate as disputants, witnesses, or decision makers. In contrast, today, judges are independent actors in complex and critical relationships with the government and the public. Moreover, everyone – women and men of all colors – are entitled to be in every seat in this courtroom, including the bench.

Democratic norms changed adjudication by recognizing all persons as juridical actors who could sue and be sued, and by requiring judges to welcome them all as equally entitled to dignified treatment. Likewise, disputants must treat each other as equals, as reflected in practices, such as the contemporary obligations to exchange information (discovery and disclosure) to facilitate participatory parity. The constitutional mandate that courts operate openly demonstrates to the public the capacity to have civil and disciplined exchanges despite deep disagreements. Open courts also endow the audience with the ability to learn and the authority of critique. Court judgments at both trial and appellate levels apply and develop norms and regularly spark debate, sometimes prompting new lawmaking by elected officials.

The map of the development of democratic adjudicatory practices could be drawn through discussing many of the Supreme Court’s decisions – insisting on the independence of judges, the equality of all persons, public access to courts, and fair decision making. We add to that analysis by inviting consideration of how the designers of the Supreme Court’s building – and others before them – used imagery to inculcate norms about what judges should do. By decoding what carvings adorn the courtroom and by placing the history of this building in the context of the changing contours of both constitutional law and the federal court system, much can be learned about the political and social transformations that produced – indeed invented – courts as we know them today.

Those innovations are what make the Court’s building iconic. When the courthouse opened in 1935, some critics complained that its Grecian portals were out of sync with twentieth-century modernism. We suggest instead that the building be read as Janus-faced. The courthouse architecture and imagery looked back to enlist the authority of lawmakers long gone. Yet, the building’s interior also marked the Court’s new legal authority to control its own docket, the Chief Justice’s ascendancy over the federal judicial system, and the special role that for media would come to play in shaping understandings of the judiciary. The grand entry with its imposing façade forecast the Court’s role thereafter – as a national icon – of the country’s commitment to “equal justice under law,” words inscribed above the doorway in 1935, but whose meaning derives from the Supreme Court’s work in the decades that have followed.

Monday, January 20, 2014

LaCroix on the Shadow Powers of Article I

Alison L. LaCroix, University of Chicago Law School, has posted The Shadow Powers of Article I, which is forthcoming in the Yale Law Journal 123 (2014).  Here is the abstract:    
This Essay, part of a symposium titled “Federalism as the New Nationalism,” argues that the interpretive struggle over the meaning of American federalism has recently shifted to two textually peripheral but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. For nearly a decade, these quieter, more structurally ambiguous federal powers – the “shadow powers,” as I term them – have steadily increased in prominence. Beginning with Gonzales v. Raich (2005) and continuing through and beyond NFIB v. Sebelius (2012), the Supreme Court’s federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress’s commerce power, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. My claim is that the prominence of shadow powers analysis in the Court’s recent decisions is both doctrinally unprecedented and unhelpful because it fails to set meaningful standards for how federalism should work in practice. The novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such the necessary and proper power. The invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving baseline of a narrow commerce power. This maneuvering might be productive if it were carried out explicitly, with some discussion by the Court of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center. But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map – to shroud genuine (and perhaps salutary) doctrinal changes within a fog of constitutional text, insufficiently overruled precedents, and acontextual readings of foundational cases.

New Release: McConville, "Irish Political Prisoners 1920-1962: Pilgrimage of Desolation"

New from Routledge: Irish Political Prisoners 1920-1962: Pilgrimage of Desolation (November 2013), by Seán McConville (Queen Mary, University of London). Here's a description from the Press:
Irish Political Prisoners presents a detailed and gripping overview of political imprisonment from 1920-1962. Seán McConville examines the years from the formation of the Northern Ireland state to the release of the last border campaign prisoners in 1962.

Drawing extensively and, in many cases, uniquely on archives and special collections in the three jurisdictions, and interviews with survivors from the period, McConville demonstrates how punishment came to embody and shape the nationalist consciousness. Irish Political Prisoners 1920-1962 commences with the legacy of the Anglo Irish and Irish Civil Wars - militancy, division and bitterness. The book travels from the embedding of Northern Ireland’s security agenda in the 1920’s, and the IRA’s search for a role in the 1930’s (including the 1939 bombing campaign against Britain) to the decisive use of internment during the war and the border campaign years. This volume will be an essential resource for students of Irish history and is a major contribution to the study of imprisonment. 
To hear an interview with Professor McConville about the book, which is the second of a trilogy, follow the link.

Call for Applications: Congressional Research Grants

The Dirksen Congressional Center invites applications for Congressional Research Grants:
NOTE: The next deadline for applications is March 1 of the current year. Grants will be announced in April.
The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress.  The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational organization devoted to the study of Congress.  Since 1978, the Congressional Research Grants program has invested more than $915,136 to support over 425 projects. Applications are accepted at any time, but the deadline is March 1 for the annual selections, which are announced in April.

The amount of funding available varies from year to year. In 2013, for example, The Center budgeted $35,000 for the grants with individual awards capped at $3,500.
Who is qualified to apply? 
The competition is open to individuals with a serious interest in studying Congress.  Political scientists, historians, biographers, scholars of public administration or American studies, and journalists are among those eligible.  The Center encourages graduate students who have successfully defended their dissertation prospectus to apply and awards a significant portion of the funds for dissertation research.  Applicants must be U.S. citizens who reside in the United States.

The grants program does not fund undergraduate or pre-Ph.D. study.  Organizations are not eligible.  Research teams of two or more individuals are eligible.  No institutional overhead or indirect costs may be claimed against a Congressional Research Grant.  
What kind of research projects are eligible for consideration? 
The Center’s first interest is to fund the study of the leadership in the Congress, both House and Senate.  Topics could include external factors shaping the exercise of congressional leadership, institutional conditions affecting it, resources and techniques used by leaders, or the prospects for change or continuity in the patterns of leadership.  In addition, The Center invites proposals about congressional procedures, such as committee operation or mechanisms for institutional change, and Congress and the electoral process. 

The Center also encourages proposals that link Congress and congressional leadership with the creation, implementation, and oversight of public policy.  Proposals must demonstrate that Congress, not the specific policy, is the central research interest. 

The Center does NOT require grant recipients to use historical materials in its collections.  For persons interested in such research, however, please visit for information about our holdings.

The research for which assistance is sought must be original, culminating in new findings or new interpretation, or both.  The grants program was developed to support work intended for publication in some form or for application in a teaching or policy-making setting.  Research produced by previous grant recipients has resulted in books, papers, articles, course lectures, videotapes, and computer software. 
What could a Congressional Research Grant pay for? 
Generally speaking, a grant can cover almost any aspect of a qualified research project, such as travel to conduct research, duplication of research material, purchase of data sets, and costs of clerical, secretarial, research, or transcription assistance.  This list is merely illustrative. Specifically excluded from funding are the purchase of equipment, tuition support, salary support for the principal investigator(s), indirect costs or institutional overhead, travel to professional meetings, and publication subsidies.

Grants range from a few hundred dollars to $3,500.  Stipends will be awarded to individuals (not organizations) on a competitive basis. Grants will normally extend for one year.  In some circumstances, the Center will make more than one grant to a single individual in consecutive years, but not more than three grants to the same person in a five-year period. 
For more information about how to apply, follow the link.

Sunday, January 19, 2014

Sunday Book Roundup

But even amid today’s colorful political climate — which seems to constantly remind us that we should expect the unexpected — the 1946 “slap heard round the world” stands as particularly peculiar. The incident is the takeoff point for Eric Jaffe’s “A Curious Madness,” a richly layered exploration of the thin line between wellness and madness and the extent to which our understanding of those states is sometimes a matter of perception. The slap happened at the end of World War II at a military tribunal in Japan that was similar to the Nuremberg Trials. Twenty-eight Japanese men, including generals, admirals and cabinet members, filed into a courtroom to face a panel of international judges. Just one of the defendants, a philosopher named Okawa Shumei, was a civilian.
The New York Review of Books tackles six books on World War I in a piece titled, "The Greatest Catastrophe the World Has Seen."

H-Net adds four reviews for readers this week: a work of political science, Pamela C. Corley, Amy Steigerwalt, and Artemus Ward's The Puzzle of Unanimity: Consensus on the United States Supreme Court (Stanford University Press) is reviewed here.  There is also a review of David Spinoza Tanenhaus's The Constitutional Rights of Children: In re Gault and Juvenile Justice (University Press of Kansas).
Is a child's basic right that of liberty or custody? In 1967, Justice William Brennan posed this question during oral arguments in In re Gault. Nearly fifty years later, David S. Tanenhaus's elegant analysis of this interesting case demonstrates the legal and historical complexities underlying Justice Brennan's deceptively simple question.
Two other H-Net reviews include two edited volumes: one review of Restoring Justice: The Speeches of Attorney General Edward H. Levi (University of Chicago Press) edited by Jack Fuller, and another of Re-Imagining Democracy in the Age of Revolutions: America, France, Britain, Ireland, 1750-1850 (Oxford University Press).

The New Republic posts a review of Melissa Schwartzberg's Counting the Many: The Origins and Limits of Supermajority Rule (Cambridge University Press).

Both the LA Times (here) and the LA Review of Books (here) take a look at Greg Grandin's The Empire of Necessity: Slavery, Freedom, and Deception in the New World (Metropolitan Books). The LA Review of Books observes
Castigated and eventually ignored in his own lifetime, Melville would have to be amazed and thrilled that, in the second decade of the 21st century, one of America’s most distinguished historians would be using his 1855 novella Benito Cereno as the main vehicle to explore the history of slavery and the waves of revolution sweeping through the Western Hemisphere in the early 19th century. Grandin even takes the title of his book from Melville’s epigraph to “The Bell-Tower,” published two months before Benito Cereno and foreshadowing the novella’s bleak prophecy for the US slave republic.
The Washington Independent Review of Books reviews Heir to the Empire City: New York and the Making of Theodore Roosevelt (Basic Books) by Edward P. Kohn.