Monday, March 31, 2014

Thank You, Ajay Mehrotra!

Thanks to Ajay Mehrotra, Indiana Law, for his series of thoughtful guest posts about becoming a legal historian and teaching legal history.

Thanks And One Last Post on Field Building

Progressive Taxation and Fiscal Citizenship

A Socio-Legal History of the Fiscal State

Transnational Legal Histories

The Legal Foundations of Modern American Capitalism

Teaching in Time

Thank you, Ajay!

Breger and Lynch on Albany Law's Feminist Tradition

Melissa L. Breger and Mary A. Lynch, Albany Law School, have posted From Kate Stoneman to Kate Stoneman Chair, Katheryn D. Katz: Feminist Waves and the First Domestic Violence Course at a United States Law School, which appears in the Albany Law Review 77 (2014).  Here is the abstract:

Credit: Town of Busti
Credit: Albany Law School
First-wave feminist, suffragette, and 1898 Albany Law School graduate, Katherine --Kate--Stoneman [left], pioneered the admission of women to the Bar of the State of New York. She led the charge against the statutory preclusion of women, overturning the statute in 1886 and winning legislative victory for non-discrimination in admission to the bar. Exactly one hundred years later, in 1986, second-wave feminist and Albany Law School graduate Katheryn D. Katz [right] pioneered the teaching of violence against women in law schools by teaching the first documented Domestic Violence seminar course in a United States law school. In 2007, Albany Law School named Professor Katz the first Kate Stoneman Chair in Law and Democracy. The impact these two women made continues to be felt far beyond Albany Law School and New York State. This article positions the role of Albany Law School and two of its graduates in the struggle for equality of women under the law and within law schools. It also documents Professor Katz‘s historical place as a second-wave feminist and the impact her activism has had on the study of domestic violence law, family law, reproductive rights, juvenile rights, and the advancement of issues concerning women and children nationwide.

History and the Meaning of the Constitution

Cleveland-Marshall College of Law announces this year's Cleveland State University Law Review Symposium, co-sponsored by school's the law review and Federalist Society.  The symposium, for which an application for CLE credit is pending, is entitled History and the Meaning of the Constitution.  It will take place on Friday, April 18, from  9:00am to 12:15pm, in the law school's Moot Court Room, 1801 Euclid Ave, Cleveland, Ohio 44115.  The speakers are:

Patrick Charles, "History as a Guidepost to Interpreting the Constitution"

Sheldon Gelman, "Court-packing and the 'Switch in Time': Recent Developments"

Scott Gerber, "Liberal Originalism: The Declaration of Independence and Constitutional Interpretation

Lee Strang, "Originalism's Promise and Limits"

Hilbink on Cause Lawyering in Freedom Summer and Beyond

Thomas M. Hilbink has posted has recently posted Constructing Cause Lawyering: Professionalism, Politics, & Social Change in 1960s America, the dissertation he completed in NYU's Law and Society Program in 2006, where his adviser was William Nelson.  Here is the abstract:

Prior to 1969 a mere fifteen legal organizations devoted themselves to serving the causes of civil rights, civil liberties, and the needs of poor people. By 1975 that number had jumped to more than eighty.This "explosion" of explicitly activist lawyering marked a significant change in the composition of the American legal profession. More importantly, these lawyers shaped American social movements and politics in the era. Though it has long been understood that lawyers played a role in the upheavals in American society of the 1960s, no study has attempted to bring the many pieces together and set it within the historiography of the era. This dissertation thus sets the role of lawyers in a broad historical context, showing the ways in which the 1960s both shaped and were shaped by "cause" lawyering. In uncovering this history, the dissertation argues that one cannot simply understand "cause" lawyering as a single category of professional action. Rather, part of the struggle within the profession centered on the question of what type of cause lawyering was acceptable. Thanks to a variety of forces, both internal and external to the profession -- including social movements, philanthropic foundations, and changes in political alignment and philosophy -- lawyering that featured elite-led, court-based strategies thrived and survived while lawyering that deemphasized the importance of lawyers and litigation withered. Individual chapters explore the Supreme Court case of NAACP v. Button, lawyering during the direct action phase of the southern civil rights movement, the growth and collapse of the federally-funded Legal Services Program, radical lawyering and the anti-war movement, and the development of "public interest" lawyering for environmental, consumer, and government accountability causes.
Hilbink has also posted a paper, based on an earlier, related work, entitled Filling the Void: The Lawyers Constitutional Defense Committee and the 1964 Freedom Summer.  Here is the abstract:
A history of the formation and work of the Lawyers Constitutional Defense Committee, an organization created to provide legal assistance to the Civil Rights Movement in 1964. The history relies heavily on interviews with those who formed the organization as well as volunteer lawyers who worked in Mississippi, Alabama, Louisiana, and Florida in 1964 and 1965.  The paper was a senior honors thesis in the Department of History at Columbia University, advised by Professor Alan Brinkley.

New Release: Compton, "The Evangelical Origins of the Living Constitution"

New from Harvard University Press: The Evangelical Origins of the Living Constitution (March 2014), by John W. Compton (Chapman University). From the Press:
The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.
Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.
In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.
The reviewers say:
John Compton’s superb book provides a fascinating account of the influence that evangelical attempts to stamp out drinking and lotteries had on American constitutional development. That, in itself, is worth the price of admission.—Mark Graber, University of Maryland Francis King Carey School of Law
The book’s clear, forcibly argued, and original thesis challenges some of the most influential scholarship in its field.—Ken I. Kersch, Boston College
As scholars and pundits debate whether the New Deal order is coming to an end, questions about its inception are particularly timely, and the author’s engagement with the question of how morals can influence constitutional politics is quite salient at this time.—Julie Novkov, University at Albany, State University of New York
More information is available here.

Sunday, March 30, 2014

Sunday Book Roundup

The New York Review of Books reviews three books and a film in "He Remade Our World," including George W. Bush's Decision Points (Broadway), Barton Gellman's Angler: The Cheney Vice Presidency (Penguin), Dick and Liz Cheney's In My Time: A Personal and Political Memoir (Threshold).

Ira Katznelson reviews Gavin Wright's Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (Harvard University Press) in the NYRB.  Also reviewed is Camilo Jose Vergara's Harlem: The Unmaking of a Ghetto (University of Chicago Press).

An older piece we missed in the NYRB from January is Robert Darton's review of Arlette Farge's The Allure of the Archives (Yale University Press) in a piece titled "The Good Way to Do History."

There are many reviews to highlight on H-Net this week, including a review of the edited volume Reaching a State of Hope: Refugees, Immigrants and the Swedish Welfare State, 1930-2000 (Nordic Academic Press). Another edited volume with a European focus is Thomas Maulucci and Detlef Junker's GIs in Germany: The Social, Economic, Cultural and Political History of the American Military Presence (Cambridge University Press) (reviewed here). And speaking of military history, H-Net also adds a review of Susan Brewer's Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq (Oxford University Press).

Still more reviews from H-Net include a three book review titled "Sammelrez: On the Uses of History in Contemporary American Foreign Policy Debates." Books include Zbigniew Brzezinski's Strategic Vision: American and the Crisis of Global Power (Basic), Robert Kagan's The World America Made (Knopf), and Charles Kupchan's No One's World: The West, the Rising Rest, and the Coming Global Turn (Oxford). There's also a review of Toyin Falola's The African Diaspora: Slavery, Modernity, and Globalization (Boydell & Brewer), here. Peo Hansen and Sandy Brian Hager's The Politics of European Citizenship: Deepening Contradictions in Social Rights and Migration Policy (Berghahn Books) is also reviewed on H-Net.

Saturday, March 29, 2014

Weekend Roundup

  • From the Chronicle of Higher Education: "Doctoral students at Brown University are testing a new model for interdisciplinary studies that allows them to pair advanced degrees in sometimes-disparate fields, with the goals of broadening their knowledge and improving their marketability." Read on here.
  • The University of Alabama School of Law and the ABA Journal invite submissions for the Harper Lee Prize for Legal Fiction ("given annually to a book-length work of fiction, published in the preceding year, that best illuminates the role of lawyers in society and their power to effect change"). (Hat tip: In Custodia Legis).
  • Gale Cengage announces new on-line resources: Indigenous Peoples: North America and the Associated Press's City Bureau Collection for Atlanta, Austin, Birmingham, Chicago, Dallas, Miami, New Orleans, Philadelphia, and Pittsburgh, dating from 1931 to 2004.  The Washington Bureau is due out in the spring and should be a valuable source on legal-political doings in the capital
  • Via the Historical Society: the latest issue of Historically Speaking is now available online.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, March 28, 2014

Dowd and Dobbin on Early US Railroading and Neo-Liberalism

Timothy J. Dowd, Emory University, and Frank Dobbin, Harvard University, have posted
Origins of the Myth of Neo-Liberalism: Regulation in the First Century of US Railroading, which appeared in The State, Regulation and the Economy: An Historical Perspective (Edward Elgar, 2001), 67-88.  Here is the abstract:
Neo-liberalism has two components. One is historical, and it revolves around the idea that advanced economies - particularly those of Britain and the US - developed under conditions that are best characterized as laissez-faire. The other is definitional, and it revolves around the idea that one group of industrial policies can be defined as 'non-interventionist.
Hat tip: Legal Theory Blog

Breen and Strang on the Forgotten Catholic Legal Response to Legal Realism

John M. Breen, Loyola University Chicago School of Law, and Lee J. Strang, University of Toledo College of Law, have posted The Forgotten Jurisprudential Debate: Catholic Legal Thought's Response to Legal Realism.  Here is the abstract:
Although countless journal articles and numerous books have described Legal Realism, The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism, is the first to describe the widespread and thoughtful critique of Realism by an organized jurisprudential movement of Catholic legal scholars during the 1930s-1940s.

In this Article, we accomplish three goals. First, we describe the standard historical narrative in which the contributions by Catholic legal scholars are ignored or marginalized. This gap is surprising because the critique offered by Catholic legal scholars constituted the single largest body of criticism aimed at Realists. This gap is doubly-surprising because the arguments offered by Catholic legal scholars were generally thoughtful and nuanced, in large measure because they built on the world-wide Neo-Scholastic revival then taking place.

Second, we detail the neglected Catholic legal scholars’ critique of Legal Realism. We describe the major Catholic legal scholars and how their movement drew upon, reflected, and facilitated the world-wide revival of Thomistic philosophy. Like other intellectual movements, Catholic legal scholars sought to institutionalize their movement in various ways.

Third, we explore the oddness of historians’ neglect and marginalization of Catholic legal scholar contributions. We end by suggesting causes for the poverty of extant historical accounts.
It's hard for me to think of the Catholic critique of Legal Realism as "forgotten."  When I attended the University of Chicago Law School in the early 1980s, Dennis Hutchinson assigned the relevant chapter in Edward Purcell's Crisis of Democratic Theory in his course on the legal realists.  One of my classmates, Michael A. Lindsay, now a longtime partner at Dorsey, wrote an excellent paper on the Catholic critique.  In addition, Purcell's chapter is taught every year in a required course in our alternate first-year section, and not simply because Georgetown is, as we sometimes acknowledge, a Catholic and Jesuit institution.  (Most of the teachers of the course are not Catholic, and none of them is a Jesuit.)  At Georgetown Law, too, our guest blogger Ajay Mehrotra was moved to write and publish a paper on Georgetown's Father Francis Lucey (right) in part because of his multiple encounters with Crisis, including in a jurisprudence course taught by my colleague Gary Peller.

Breen and Strang write that "Purcell fairly described the major Catholic legal scholars, their attempted institution-building, their connection to the then-flourishing worldwide Neo-Scholastic movement, and their core claims” but that when he evaluates the Catholic legal scholars' claims "he lapsed into simplistic caricature. . . . Unlike most—more mature, in Purcell’s eyes—American intellectuals, Purcell contended, 'the Catholics had never faced the crisis of democratic theory' because of their 'simple religious faith.'”

Professor Purcell can speak for himself, but I've always credited him with rescuing Father Lucey, Ben Palmer et al. from the obscurity to which America's secular law professors had consigned them, and I've assumed that his respect for his Jesuit teachers at Rockhurst College was at least one reason why he did.  Read in context, that reference to "simple religious faith" is not patronizing. "Because of the close union between their religious faith and their philosophical training," Purcell wrote, "they had a ready justification for democracy, just as they had a ready justification for an entire system of morality, based on theology, philosophy, and simple religious faith" (169).

In this sentence, "simple" doesn't mean "simple-minded."  Purcell uses the word to contrast religious faith with the Catholic jurists' theology and philosophy.  Presumably those were not simple in any sense.

I understand Purcell not to claim that “Catholic legal scholars’ arguments failed" absolutely but that they failed to convince the other legal intellectuals of their day, because the Catholic jurists did not experience the rise of scientific naturalism as creating a "crisis of democratic theory in the same way that other American intellectuals did" (Purcell, 169).  And they did not because their Thomist rationalism kept them from embracing the value-free version of social science that provoked the crisis in others. 

It has been years since I've read the dissertation and related work Father Lucey wrote while obtaining his (unaccredited) doctorate in sociology from Georgetown, but a quick review of the notes I took in his papers when writing a history of Georgetown Law is consistent with Purcell's interpretation.

None of this, of course, argues against the timeliness and importance of the Professors Breen and Strang's paper.

Halliday on Authority in the Archives and CAL 1:1

The first issue of Critical Analysis of Law: An International and Interdisciplinary Law Review has just gone on-line.  1:1 is devoted to “Critical Analysis of Law and the New Interdisciplinarity.”  It includes the article Authority in the Archives, by Paul Halliday, University of Virginia.  Here is the abstract:
Credit: LC
This article offers a critique of the sensory deprivation under which legal studies normally operate by exploring how material forms shape law’s substance. Archives and the objects in them used for storing precedents have a history that we must understand if we are to ascribe meaning and authority to the texts they contain. Thus the images here do not simply illustrate propositions; they raise and answer questions about how physical forms constrain what is knowable as law. We can see this by studying practices in the eighteenth-century English court of King’s Bench, and especially the manuscript precedent books made by that court’s clerks. Examining one case—of the liberal campaigner, John Wilkes—we can watch clerks shaping authority as they used indexing tools of their own making to find the crucial precedents. Those same clerks then turned the case into a precedent by storing the results in the archive over which they were masters.
The issue also includes Clifford Ando's Pluralism and Empire: From Rome to Robert Cover:
In his famous engagement with pluralism and sub-political associations, “Nomos and Narrative,” Robert Cover invokes empire as both an exemplar of statal power and an alternative to contemporary liberal democratic regimes.  This essay takes his reflections as a point of departure, in order to explore two themes.  First, Cover posits a dynamic relationship between jurispathic and jurisgenerative regimes.  This invites reflection on the stability of pluralist regimes in practice.  This essay takes up that challenge in the case of Rome where, it is argued, structural features of both politics and practice impelled a standardization of legal regimes in both procedural and positive law, despite a principled commitment on Rome’s part to the autonomy of alien communities within the empire.  Second, Cover seeks to elide the true object of his inquiry, the autonomy of religious groups, by assimilating them to voluntarist associations.  This brings certain advantages in respect to constitutional law and anticipates potential liberal and feminist critiques of religious law.  But it also raises problems of political theology, by surrendering the ontological priority vis-à-vis the state that in the self- understanding of religious groups normally justifies their claims to self-regulation.  One form such problems might take is illustrated by Hobbes, in his theory of sovereignty by acquisition, which draws on Roman theory.  That theory has been now been vindicated by Roman legal instruments, discovered in the 19th and 20th centuries and therefore unknown to Hobbes, in which conquered parties were ordered to continue their ancestral legal practice, on sufferance of Rome.
Forthcoming in Spring 2015 is the special issue New Historical Jurisprudence and Historical Analysis of Law:
The New Historical Jurisprudence issue seeks to highlight and to encourage a trend in recent legal scholarship, or rather scholarship on law, that--like the original historical jurisprudence- -pursues a historical analysis of law, as a form of critical analysis of law, rather than legal history, as applied historiography. Generated by theorists with a historical sensibility, and historians with theoretical curiosity, this emerging body of work exploits and challenges the intersection of history and jurisprudence in innovative and exciting ways.
The current list of confirmed contributors includes:

Mireille Hildebrandt (Erasmus University Rotterdam)
Shai Lavi/Galia Schneebaum (Tel Aviv University)
Peter Lindseth (University of Connecticut)
Arlie Loughnan (University of Sydney)
Heikki Pihlajamäki (University of Helsinki)
Karl Shoemaker (University of Wisconsin)
Norman Spaulding (Stanford University)
Robert Steinfeld (SUNY Buffalo)

New Release: van de Ven on "The Maritime Customs Service and the Global Origins of Modernity in China"

New from Columbia University Press: Breaking with the Past: The Maritime Customs Service and the Global Origins of Modernity in China (Feb. 2014), by Hans van de Ven (Cambridge University). The Press explains:

Between its founding in 1854 and its collapse in 1952, the Chinese Maritime Customs Service delivered one-third to one-half of all revenue collected by China’s central authorities. Much more than a tax collector, the institution managed China’s harbors, erected lighthouses, and surveyed the Chinese coast. It funded and oversaw the Translator’s College, which trained Chinese diplomats while its staff translated Chinese classics, novels, and poetry and wrote important studies on the Chinese economy, its financial system, its trade, its history, and its government. It organized contributions to international exhibitions, developed its own shadow diplomacy, pioneered China’s modern postal system, and even maintained its own armed force. After the 1911 Revolution, the agency became deeply involved in the management of China’s international loans and domestic bond issues.

In other words, the Customs Service was pivotal to China’s post-Taiping integration into the world of modern nation-states and twentieth-century trade and finance. If the Customs Service introduced the modern governance of trade to China, it also made Chinese legible to foreign audiences. Following the activities of the Inspectors General, who were virtual autocrats within the service and communicated regularly with senior Chinese officials and foreign diplomats, this history tracks the Customs Service as it transformed China and its relationship to the world. The Customs Service often kept China together when little else did. This book reveals the role of the agency in influencing the outcomes of the Sino-French War, the Boxer Rebellion, and the 1911 Revolution, as well as the rise of the Nationalists in the 1920s, and concludes with the Customs Service purges of the early 1950s, when the relentless logic of revolution dismantled the agency for good.

A few blurbs:
"This is the story of China’s economic internationalization in the century before the Communist conquest. The Maritime Customs Service was the most continuously important part of the modern Chinese state from the mid-nineteenth to the mid-twentieth centuries. It organized, promoted, and extracted revenues from China’s growing foreign trade and became (by far) the most reliable source of income for the Qing court and the Republican regimes that followed it. Serving the interests of both Chinese and foreign states, it mediated the development of Shanghai and other great coastal cities and was a pioneer in China’s modern financial sector. The eminent Cambridge historian, Hans van de Ven, has written this history in full for the first time, using an extraordinary array of Chinese and international sources. Today, as China looks to its pre-Communist past as a guide to its future, this is an important book." — William C. Kirby, Harvard University
"Far more than an institutional history of the Customs Service, this book is effectively a complete new history of China’s rocky entrance into the global political economy. There is no better book written at this level of historical research and archival detail on the subject of 'China and the West.'" — Timothy Brook, University of British Columbia
More information, including an excerpt, is available here.

Thursday, March 27, 2014

Blee on the Exoneration of Chief Leschi

Lisa Blee, an assistant professor of history at Wake Forest University, has published  Framing Chief Leschi: Narratives and the Politics of Historical Justice with the University of North Carolina Press.  Saith the press:
In 1855 in the South Puget Sound, war broke out between Washington settlers and Nisqually Indians. A party of militiamen traveling through Nisqually country was ambushed, and two men were shot from behind and fatally wounded. After the war, Chief Leschi, a Nisqually leader, was found guilty of murder by a jury of settlers and hanged in the territory's first judicial execution. But some 150 years later, in 2004, the Historical Court of Justice, a symbolic tribunal that convened in a Tacoma museum, reexamined Leschi's murder conviction and posthumously exonerated him. In Framing Chief Leschi, Lisa Blee uses this fascinating case to uncover the powerful, lasting implications of the United States' colonial past.

Though the Historical Court's verdict was celebrated by Nisqually people and many non-Indian citizens of Washington, Blee argues that the proceedings masked fundamental limits on justice for Indigenous people seeking self-determination. Underscoring critical questions about history and memory, Framing Chief Leschi challenges readers to consider whether liberal legal structures can accommodate competing narratives and account for the legacies of colonialism to promote social justice today.

New Release: Foxton, "The Life of Thomas E. Scrutton"

New from Cambridge University Press: The Life of Thomas E. Scrutton (Nov. 2013), by David Foxton (Essex Court Chambers, London). The Press explains:

Karl Llewellyn described Thomas Scrutton as 'the greatest English-speaking commercial judge of a century'. Scrutton played a key role in a number of politically sensitive court cases from the Great War to the 1930s. This biography draws on unpublished sources to evaluate his contribution as counsel, campaigner and judge in a number of areas: the development of a modern law of copyright; the checking of executive power in and after the Great War; and his attempt to develop English commercial law on a basis which reflected the practices and expectations of the commercial community. In addition to providing valuable insights into the nature of legal practice and advancement in the Victorian and Edwardian eras, the book examines Llewellyn's claim that Scrutton adopted a 'realist' approach to the development of commercial law, and uses the body of Scrutton's judgments to explore the limits of a 'realist' approach to jurisprudence.
The TOC and several excerpts are available here.

Wednesday, March 26, 2014

Teaching in Time

Following up on my previous post about teaching, I thought I’d revisit the question of how historical analysis can inform the teaching of more "traditional" or “doctrinal” law school courses.  As Al Brophy, Elizabeth Dale, and other bloggers have suggested, such teaching can be a form of “applied legal history.”  In my own experience teaching tax law, I’ve also found the concept of “thinking in time” as a useful form of applied history.

The title of this blog post is a variation of a book often used in public policy schools to show how history can enlighten important decision-making.  Written by Richard E. Neustadt and Ernest R. May, the book, Thinking in Time: The Uses of History for Decisions Makers (1988), uses a number of significant case studies to show how past policymakers have used and (more often) misused history.  The book is drawn from a class that the two authors regularly taught at the Kennedy School of Government.   Although the case studies they use are derived mainly from foreign policy contexts, the analytical lessons of Thinking in Time can apply to a whole host of decision-making situations, including legal decisions.

New Release: Tierney, "Liberty and Law: The Idea of Permissive Natural Law, 1100-1800"

New from the Catholic University of America Press: Liberty and Law: The Idea of Permissive Natural Law, 1100-1800 (2014), by Brian Tierney (Cornell University). A description from the Press:
Liberty and Law examines a previously underappreciated theme in legal history - the idea of permissive natural law. The idea is mentioned only peripherally, if at all, in modern histories of natural law. Yet it engaged the attention of jurists, philosophers, and theologians over a long period and formed an integral part of their teachings. This ensured that natural law was not conceived of as merely a set of commands and prohibitions that restricted human conduct, but also as affirming a realm of human freedom, understood as both freedom from subjection and freedom of choice. Freedom can be used in many ways, and throughout the whole period from 1100 to 1800 the idea of permissive natural law was deployed for various purposes in response to different problems that arose. It was frequently invoked to explain the origin of private property and the beginnings of civil government.
Several kinds of permissive natural law were identified. Permission could be positive or negative, depending on whether it was specifically conceded by a legislator or only tacitly allowed. It could free from sin or merely remit some temporal punishment that was due. It could commend some conduct without commanding it or permit some evil without condoning it. Medieval canonists used the concept of permissive natural law to harmonize the discordant texts that they found in their sources; William of Ockham found it a powerful tool in his defense of Franciscan poverty against papal criticisms; for Richard Hooker it justified both the constitutional structure and the ritual practices of the Anglican church; John Selden used it to uphold the inviolability of contracts, most importantly the contract of government; Hugo Grotius made it a central theme in his treatment of the conduct permissible in waging war; in the eighteenth century Jean Barbeyrac and Jean-Jacques Burlamaqui associated the idea with the emerging doctrine of natural rights. In Liberty and Law, Tierney has presented us with a magisterial and provocative way of interpreting legal history.
More information is available here.

Tuesday, March 25, 2014

Lauriat on the 1878 Royal Commission on Copyright

Barbara Lauriat, King's College London, has posted  Free Trade in Books—The 1878 Royal Commission on Copyright, which appears in the Journal of the Copyright Society of the USA.  Here is the abstract:
The doctrine of free trade dominated Victorian policy discussions for decades — including those about copyright law. But the application of free trade doctrine to copyright policy discussions was not at all straightforward. Professed free trade supporters disagreed profoundly on the question of copyright. Some saw it as an illegitimate restriction on trade, while others viewed it as a mode of enforcing a natural property right. Why did the application of free doctrine to copyright policy result in such widely divergent positions on the proper scope and purpose of copyright law? This article attempts to answer that question, focusing on the 1878 Royal Commission on Copyright as illustrative of the extent to which free trade doctrine failed to guide copyright policy consistently. The complex relationship between free trade and copyright is a powerful example of the extent to which political ideologies are not predictive of individual views on the optimal scope of copyright protection.

Dorsaneo on the History of Texas Civil Procedure

William V. Dorsaneo, III, Chief Justice John and Lena Hickman Distinguished Faculty Fellow and Professor of Law, Dedman School of Law, Southern Methodist University, has just published The History of Texas Civil Procedure, Baylor Law Review 65 (Fall 2013): 713-823.   Writes our correspondent Josiah Daniel, “A significant gap in Texas legal history has just been filled.”

New Release: Belton, "The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story"

New from the University Press of Kansas: The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story (March 2014), by the late Robert Belton (Vanderbilt University), edited by Stephen L. Wasby (University at Albany - State University of New York). The Press explains:
On March 8, 1971, the Supreme Court of the United States decided a case, Griggs v. Duke Power Co., brought by thirteen African American employees who worked as common laborers and janitors at one of Duke Power’s facilities. The decision, in plaintiffs’ favor, marked a profound and enduring challenge to the dominance of white males in the workplace. In this book, Robert Belton, who represented the plaintiffs for the NAACP Legal Defense Fund and argued the case in the lower courts, gives a firsthand account of legal history in the making—and a behind-the-scenes look at the highly complex process of putting civil rights law to work.

Title VII of the Civil Rights Act of 1964 eliminated much blatant discrimination, but after its enactment and before Griggs, businesses held the view that a commitment to equality required only eliminating policies and practices that were intentionally discriminatory—the “disparate treatment” test.
In Griggs v. Duke Power Co., the Supreme Court ruled that a “disparate impact” test could also apply—that the 1964 Civil Rights Act extended to practices with a discriminatory effect. In tracing the impact of the Griggs ruling on employment practices, this book documents the birth, maturation, death, and rebirth of the disparate impact theory, including its erosion by later Supreme Court decisions and its restoration by congressional action in the Civil Rights Act of 1991.
Belton conducts us through this historic case from the original lawsuit to the Supreme Court decision in Griggs and beyond as he traces the post-Griggs developments in the lower courts, the Supreme Court, and Congress; he provides informed insights into both litigators’ and judges’ perspectives and decision-making. His work situates the case in its legal, social, and historical contexts and explores the relationship between public and private enforcement of the law, with a focus on the Legal Defense Fund’s litigation campaign against employment discrimination. A detailed examination of the development of legal principles under Title VII, this book tells the story of this seminal decision on equal employment law and offers an unprecedented close-up view of personal conviction, legal strategy, and historical forces combining to effect dramatic social change.
Other authorities on the Griggs case praise the book. From Michael Meltsner:
This excellent book is not only an insider's story of the most important employment discrimination case ever decided by the Supreme Court but also a blow by blow account of a three decade effort to redress workplace inequality. Both tough-minded litigator and meticulous scholar, Robert Belton's excellent rendering of a series of epic courtroom battles is a must read for lawyers, historians and policy makers.

More information is available here.

Monday, March 24, 2014

Novak and Lamoreaux on "the real history of corporate rights in American constitutional thought"

If you've been following the Sebelius v. Hobby Lobby case currently before the Supreme Court, or if you're interested in "the real history of corporate rights in American constitutional thought," head over to Slate: Naomi Lamoreaux (Yale University) and William Novak (University of Michigan) have written a short piece titled "Getting the History Right," which pulls from an amicus brief that they submitted in the case. Here's a taste:
With so much at stake in the current debate over corporate rights, we should not be surprised to find enterprising advocates rewriting history to create a useable past. But we should demand more rigorous thinking from the court. The court itself, and especially Justices Antonin Scalia and Clarence Thomas, have been telling us for decades that American history deserves significant deference. So it seems reasonable that before altering the balance of power between corporations and the American people, the court should carefully consider recent scholarship in history.
Read on here. And stay tuned for more: Lamoreaux and Novak are working on a longer term research initiative with the Tobin Project on the Corporation and American Democracy.

Festa on Property and Republicanism in the Northwest Ordinance

Matthew J. Festa, South Texas College of Law, has posted Property and Republicanism in the Northwest Ordinance, which is to appear in the Arizona State Law Journal 45 (2014): 409.  Here is the abstract:
Property rights were central to the political ideology of the founding era. The Northwest Ordinance of 1787 shows how the concept of property was part of both the liberal and the republican narratives of the revolutionary and constitutional eras. Conventional wisdom holds that property rights were key to the liberal argument, but that they must yield to the common good in the civic republican view. This Article shows that property was a key concept to both the liberal and republican ideologies at the founding by analyzing a critically important, but relatively neglected, founding document: the Northwest Ordinance.

The Northwest Ordinance -- one of the four most important American founding documents -- established governance in the unorganized territories of the new nation, and provided the blueprint for admitting new states to the union. A close reading of the Ordinance shows that it is fundamentally concerned with property rights, but is also thoroughly republican in character. It provides numerous rules about property ownership, in terms of inheritance, transactions, and political participation. It contains individual-rights precursors to the Constitution’s property clauses, including direct historical links to the Contracts Clause and the Takings Clause. It also envisions the role of property in an expanding republic. The property rights provisions in the Northwest Ordinance reflect a concern for not only individual liberty, but also for the promotion of the common good, through a virtuous society of individual property owners. The Northwest Ordinance shows that both the liberal and the republican narrative of the founding era rely on a fundamental consideration for individual property rights.

Abrams, "Performative Citizenship in the Civil Rights and Immigrant Rights Movements"

My colleague Kathy Abrams (Berkeley Law) has posted "Performative Citizenship in the Civil Rights and Immigrant Rights Movements." Here's the abstract:
This paper examines the legacy of the Civil Rights Act, by revisiting the social movement that produced it and comparing that movement to a contemporary successor, the movement for immigrant rights. This movement has not simply used the storied tactics of the civil rights movement, it has modified them in ways that render them more performative: undocumented activists implement the familiar tactics in that enact – in daring and surprising ways – the public belonging to which they aspire. This performative dimension would seem to distinguish the immigrant rights movement, at the level of organizational strategy, from its civil rights counterpart, whose participants were constitutionally acknowledged as citizens. However, if we focus instead on the legal consciousness and self-conception of individual activists, we can glimpse greater similarities between participants in the two movements. As the individual narratives elicited by sociologists and historians of the civil rights movement demonstrate, participants in many civil rights campaigns were asserting a citizenship in which they did not feel secure, notwithstanding its formal legal status. In this respect, participants in both movements claimed rights which were emergent or precarious as a means of securing their formal recognition.
The full paper is available here
(Hat tip: Legal Theory Blog)