The aim of this article is to provide an account of the history of death duties and gift duty in New Zealand. This is worth doing for two main reasons. First, the story of these taxes’ rise and demise constitutes a significant aspect of the country’s fiscal and political history. It might even be said that the story of New Zealand’s death duties is essentially the same story as the country’s political history, but cut at a novel angle. More particularly, whilst there currently seems to be very little enthusiasm for the reintroduction of death duties in New Zealand (except, perhaps, as a necessary accompaniment to a capital gains tax), these taxes for many years enjoyed broad political support. Indeed, it was widely regarded as obvious that a significant part – perhaps as much as 50 percent or so – of every large estate ought to go to the state. There seems, then, to have been a profound change in popular attitudes.
Secondly, the reform of the tax system is a process which, it seems safe to assume, will never be completed; even the system’s basic structure seems perennially up for debate. It seems obvious that the process of tax reform might benefit from an awareness of what has gone before; yet the literature on the history of New Zealand’s tax system remains incomplete. One of the aims of the article, therefore, is to make a contribution to the filling of one of the larger gaps in it. More particularly, there has been much discussion recently of the possibility that New Zealand should, like most of the rest of the developed world, introduce a tax on capital gains. If such a tax were to be introduced, it would be necessary, according to the view prevailing in most of the rest of the developed world, to support it with some form of death tax (or, at least, to structure the capital gains tax so as not to exempt inherited capital gains). But this aspect of the question seems to have received relatively little attention. If, however, there is to be a capital gains tax, and if it is to be accompanied by the reintroduction of a death tax, it might be useful to take into account the history of this form of taxation, as practised in this country.
Saturday, May 31, 2014
Friday, May 30, 2014
The National History Center of the American Historical Association will be presenting a Congressional briefing on the history of Congress’s relationship with the intelligence community. The briefing will be held on June 9, 2014, at 9:30 a.m. in Room 121 of the Cannon House Office Building. Professors Laura Donohue of Georgetown Law School [sic: Georgetown University Law Center] and Mark Lowenthal of The Intelligence & Security Academy and Johns Hopkins University will discuss the origins and consequences of the Church Committee and more. James Grossman, the Chairman of the National History Center’s Board and Executive Director of the American Historical Association, will moderate the discussion.
In a century-long battle revolving around courts, conservatives are defenders of the rule of law, while progressives are the champions of justice. This has created an asymmetry, with conservatives occupying the high rhetorical ground and progressives struggling to square their position with the judicial duty to apply the law. This essay explores why progressives find themselves hooked on this asymmetry and what they might do to extricate themselves from it.The paper is the product of a conference of the same name held at Yale last November.
The TOC is here. LHB readers may be particularly interested in Part II: "Historical Antecedents to the Modern State and Local Efforts to Regulate Immigration." The featured essay, by Tom I. Romero, II (University of Denver), is titled "'A War To Keep Alien Labor out of Colorado: The 'Mexican Menace' and the Historical Origins of Local and State Anti-Immigration Initiatives."
Strange Neighbors explores the complicated and complicating role of the states in immigration policy and enforcement, including voices from both sides of the debate. While many contributors point to the dangers inherent in state regulation of immigration policy, at least two support it, while others offer empirically-based examinations of state efforts to regulate immigration within their borders, pointing to wide, state-by-state disparities in locally-administered immigration policies and laws. Ultimately, the book offers an extremely timely, thorough, and spirited discussion on an issue that will continue to dominate state and federal legislatures for years to come.
I'll confess: After devoting much time and thought to assembling the components of Tocqueville's Nightmare into a book, I was disheartened when Oxford asked me to write abstracts for each chapter so that subscribers to Oxford Scholarship Online could decide which ones to purchase and which ones to leave unread in the cloud. The realization that I could use the abstracts to introduce blog posts on the book was some solace. Here's the abstract for "Freund and Frankfurter":
One of the few Americans who looked to the European continent not just for programs to address the social ills of capitalism but also to constrain administrators was the German-educated law professor Ernst Freund. A trusted advisor to Chicago's progressives, Freund believed that the America was a Rechtsstaat, in which bright-line rules distinguished legitimate from illegitimate administrative action. Most legal progressives, believed instead that administrative discretion was inevitable and desirable. Their leader, the Harvard law professor Felix Frankfurter, revealed their disagreement when he and Freund jointly directed legal studies of agencies financed by the Commonwealth Fund. One monograph, by Gerard Henderson on the Federal Trade Commission, influentially argued that an agency's authority turned on the quality of its findings of fact. By 1932 Frankfurter had prevailed. Henceforth reformers would look not to the Continent but to the common-law tradition for a rule of law better suited to American politics.
So Tocqueville’s Nightmare begins not with a big bang of statebuilding or the bustle of administrators in action or the stern reprimands of judges but with scholars theorizing about administration and angling for grant money. I know that sounds a lot less dramatic than FDR’s Hundred Days or Court-packing plan, but the chapter does have its drama, one suggested by recent historical scholarship in the “transnational” vein. In Atlantic Crossings (1998), Daniel T. Rodgers showed that American progressives thought of themselves as part of a transatlantic search for solutions to the problems of industrial society. As John Fabian Witt added for legal history, these “cosmopolitans” often found themselves challenged by “patriots,” convinced of the United States’ exceptional place in world history and dismissive of European ways. Rodgers documented the existence of hundreds of intermediaries intent on bringing reforms from the European Continent to the United States, but in so doing he raised two questions for legal historians. Did some transnational lawyer attempt the analogous feat of importing a continental approach to constraining official power? If so, how did he fare in a legal order that apotheosized the common law and its institutions?
Thursday, May 29, 2014
|William Nelson (credit)|
My contribution to this tribute places Bill Nelson's scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson's scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that they had learned as law students. Instead of process theory, Nelson and this upstart generation of scholars gravitated to
one of five competing theories: (1) Rights protectors; (2) Post-realism; (3) Law and economics; (4) Originalism; and (5) Judicial restraint holdouts. Nelson's scholarship about Weinfeld and White represents a case study about a scholar struggling to fit two judges whom he clerked for and greatly admired into one of these five schools of thought. Nelson tries hard to turn them into rights protectors, to draw similarities between their jurisprudence and Justice Brennan's jurisprudence that Nelson so obviously admires. Nelson also reframes Weinfeld's and White's judicial restraint so that it looks nothing like the pretentious process theory that Nelson had rejected at N.Y.U. Law School and at Harvard.
Justice Byron R White (LC)
The American Society for Legal History has issued the following call for applications:
Kathryn T. Preyer Scholars
Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.
Submissions are welcome on any topic in legal, institutional and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.
Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers. as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2014.
Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Denver, Colorado, on November 6-9, 2014. The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.
Please send submissions as Microsoft Word attachments by June 15, 2014, to the chair of the Preyer Committee, Gautham Rao <email>. He will forward them to the other committee members.
The 2014 Preyer Memorial Committee
Sam Erman, Assistant Professor of Law, University of Southern California
Serena Mayeri, Professor of Law and History, University of Pennsylvania
Gautham Rao, Assistant Professor of History, American University
Michael Schoeppner, Visiting Assistant Professor of History, University of Maine at Farmington
Karen Tani, Assistant Professor of Law, University of California, Berkeley
Wednesday, May 28, 2014
Before viewing, you might ask yourself whom (living or dead) would you cast as Blackstone. (Professor Prest gamely takes a stab at the question.) Also, "Blackstone Goes Hollywood" for Twenty: Blackstone is like this movie starring Humphrey Bogart. (Please state your answer in question form.)
The answer, I decided, was to give the New Deal lawyers’ givens their own book. Tocqueville’s Nightmare is the result. “Freund and Frankfurter” shows that, long before the New Deal, reformers opted for an Anglo-American rather than a Continental approach to constraining the state. Two chapters on Charles Evans Hughes describe how a great American jurist revised legal doctrine to accommodate an administrative state. “New York, 1938” shows that the solution Hughes developed ultimately addressed the fears of politicians and lawyers threatened by the new bureaucracies. Finally, “Pound and Frank” explains how Roscoe Pound, the greatest legal scholar of his generation, legitimated a transparently partisan assault on the New Deal and provoked a counterattack from Jerome Frank and other legal realists newly installed in the federal administrative state.
|Elihu Vedder, "Good Administration" (Carol Highsmith, LC)|
Second, Tocqueville’s Nightmare challenges the claim, common in recent public debate, that in the first decades of the twentieth century “progressives” or “liberals” who little regarded the freedom of the ostensible beneficiaries of their reforms sent the Constitution into exile. I found, instead, broad support for agencies that promised to replace a broken political order, clear-eyed appreciation of the dangers they posed, and the masterful revision of legal doctrine to permit the one and prevent the other. I’ll develop the book’s two contributions in future posts.
Tuesday, May 27, 2014
Cromwell Research Fellowships in U.S. Legal History
The Deadline is July 13, 2014!
In 2014, the William Nelson Cromwell Foundation will make available of a number of fellowship awards to support research and writing in American legal history. The number of awards to be made, and their amounts, is at the discretion of the Foundation. In the past several years, the trustees of the Foundation have made three to eight awards, in amounts up to $5,000. Preference is given to scholars at the early stages of their careers. The Committee for Research Fellowships and Awards of the American Society for Legal History (ASLH) reviews the applications and makes recommendations to the Foundation. (The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs.)
Applicants should submit a description of their proposed project (double-spaced, maximum 6 pages, with working title), a budget, a timeline, and a short c.v. (no longer than 3 pages). (There is no application form.) Two letters of recommendation from academic referees should be sent directly to the Committee Chair via email attachment. Applications must be submitted electronically (preferably in one .pdf file) no later than July 13, 2014.
Successful applicants will be notified after the annual meeting of the Cromwell Foundation, which normally takes place in the second week of November. An announcement of the awards will also be made at the annual meeting of the American Society of Legal History in Denver, CO, November 6-9, 2014.
To apply, please send all materials to the chair of the Committee:
This year, the ASLH’s committee on Research Fellowships and Awards consists of: Cornelia H. Dayton, University of Connecticut, chair; Michael Grossberg (ex officio, ASLH President), Indiana University; Victoria D. List, Washington and Jefferson College; Kunal Parker, University of Miami; Yvonne Pitts, Purdue University; Victoria Saker Woeste, American Bar Foundation; and one to be named.
Each year we solicit papers from senior graduate students and untenured faculty on topics in law and the humanities. The submissions are then juried by two outside senior readers, and based on those reviews the conveners selected seven papers and two alternates for inclusion in a conference held in June where the papers are workshopped by senior commentators in fields relevant to the papers.
Remaking Indians, Remaking Citizens: Peruvian and Mexican Perspectives on Criminal Law and National IntegrationCongratulations to all!
Lior Ben David
Department of History
Tel Aviv University
Judging Genocide in Rwanda: Lay Judges and Mass Prosecutions in Local Courts
Department of Political Science
University of South Carolina
What’s Mine: Involuntary Expressions and the Right to Privacy
Department of English
University of California, Berkeley
Executing Whiteness: Fictional and Nonfictional Accounts of Capital Punishment in the United States, 1915-1940
Department of History
Usable Traditions: Creating Sexual Autonomy in Post-Apartheid South Africa
African & African Diaspora Studies Department
University of Texas at Austin
Law and Fiction in Medieval Iceland: The Story in the Gragas Manuscripts
Thomas J. McSweeney
William & Mary Law School
The Tower of Babel: Human Rights and the Paradox of Language
Law and Internatinoal Security Fellow
Center for International Security an Cooperation
Leroy Pitzer: Citizen, Voter, Lunatic?
Georgetown University Law Center
A Pre-History of Performing Rights in Anglo-American Copyright Law
Department of English
Monday, May 26, 2014
This public lecture was given at the Royal Irish Academy on December 5, 2013, to keynote the 16th Irish European Law Forum on "Changing Sovereignty in Europe" at University College Dublin. In the context of the Eurozone crisis, few countries have experienced the changing nature of sovereignty more acutely than Ireland. But these acute transformations should not obscure for us how, in the context of European integration over the last half century, the transformation of sovereignty has also been a chronic phenomenon. This process began well before Ireland’s accession in 1973 and has certainly continued ever since. This lecture asserts that the changing nature of national sovereignty in relation to European integration is in fact a "new dimension to an old problem," albeit one with a peculiar, supranational dimension. That "old problem" is the legitimation of regulatory power as it diffuses and fragments away from more strongly-legitimated constitutional bodies of the nation-state – legislative, executive, and judicial – i.e., the privileged instrumentalities of sovereignty in modern liberal, representative democracies. This separation of regulatory power from the historically "constituted" bodies of the nation-state is the essence of modern administrative governance. In this sense, the changing nature of sovereignty in Europe is in fact part of a deeper historical transformation of modern governance tied not to integration per se, but rather to the emergence of the modern administrative state. One cannot understand this deeper transformation without an appreciation of the administrative state’s connection to – but also deep tension with – the constitutional consolidation of liberal, representative democracy as the presumptively legitimate form of "sovereign" self-government that took place over the course of the nineteenth and twentieth centuries.The full version is available here.
Sunday, May 25, 2014
"By painstakingly documenting each individual's story, Wise reveals how existing lunacy laws were interpreted and used (well, abused, actually) at the time to control moneyed individuals who also happened to be nonconformists -- those with strange behavioural quirks, unconventional religious beliefs, who dared marry "beneath their station" (or refused to marry at all), or women who bore illegitimate children -- anyone who inconveniently stood in the way of a relative's financial ambitions. In short, lunacy laws were often exploited to satisfy personal greed."The Washington Post reviews Machine Made: Tammany Hall and the Creation of Modern American Politics by Terry Golway (Liveright).
What Soldiers Do: Sex and the American GI in World War II France (University of Chicago Press). History Today calls the book fascinating, and the H-Net review concludes that the book "is a valuable contribution to World War II historiography and should open new avenues of historical research into the cultural engagement that accompanies America’s overseas military campaigns. Most important, it serves to showcase the possibilities for incorporating more cultural and gender analysis into military history. It may be controversial, but it deserves a wide audience." There is also a piece on the book and author in The New York Times, "The Dark Side of Liberation."
Two books on protest have been reviewed this week. The first is Hippies, Indians, and the Fight for Red Power by Sherry L. Smith (Oxford University Press) here on HNN. Also on HNN is a review of the memoir, Resister: A Story of Protest and Prison during the Vietnam War by Bruce Dancis (Cornell University Press).
Michael Waldman's The Second Amendment: A Biography (Simon & Schuster) is reviewed in the Los Angeles Times.
"What he's addressing is the Constitution as a living document, which we interpret not according to the intent of the Framers — he's no fan of originalism — but rather through the filter of the present day. "We would be uncomfortable," Waldman writes, "with the idea that states could fight wars against the U.S. Army," which was, of course, an early draw of the militias, that they might serve as a potential check on federal power. "We would recognize that the Founders expected people to have military weapons in their homes." And yet, this is the conundrum, isn't it, since "an assault weapon is precisely the kind of armament a modern-day Minute Man might want to use.""And for those who are enjoying barbecue and beer this Memorial Day weekend, there is a review of Capital Beer: A Heady History of Brewing in Washington, D.C. by Garrett Peck (History Press). Here's a taste of the review,
"But Prohibition, fruit of the long-running temperance movement, brought everything to a halt in 1916 (when Virginia went dry) and 1917 (when the District followed). Some breweries tried to make ends meet by shifting to sodas and beers with negligible alcohol, but for most, those ventures failed. Over 250 licensed bars and saloons closed in D.C., and although as many as three thousand speakeasies opened in their place, bootleggers made more money with whiskey and gin. Washingtonian tastes shifted towards cocktails.
That change in drinking fashion outlasted Prohibition, even though beer was the first alcoholic beverage legalized, following a campaign promise from Franklin Delano Roosevelt in 1932. Only two of Washington’s six pre-Prohibition breweries reopened, including Heurich’s massive facility in Foggy Bottom. (The man was, by that point, 91 years old, and he would live for more than another decade.) Over the coming years, local beer gave way to the massive national beer brands selling mass-produced light lager, and Heurich’s brewery was demolished in 1962 to make way for what would become the John F. Kennedy Center for the Performing Arts."
Saturday, May 24, 2014
- The exhibit Reefer Madness: The Legal History of the Loco Weed is on display at the Oregon University Law Library now through December. It is free and open to the public.
Friday, May 23, 2014
The U.S. District Court for the Northern District of Ohio, like many of its sister courts, was reluctantly drawn into the national debate over sex equality in the 1970s. The court’s response mirrored the greater social response, initially showing a hostility to claims of gender discrimination that was slowly displaced by recognition and endorsement of sex equality rights. Three of the district’s cases on women’s rights ended in the U.S. Supreme Court and helped navigate this shift toward gender equality. These cases are the focus of this book chapter written for a book collecting the "greatest hits" of Northern District court. The chapter provides the backstory, including oral narratives and original archival research, for the cases on mandatory maternity leave, LaFleur v. Cleveland School Board; informed consent abortion restrictions, Akron Center for Reproductive Health v. City of Akron; and minor abortion laws, Ohio v. Akron Center for Reproductive Health.
These three cases from Ohio together offer a snapshot of the larger societal change for women’s rights. The nascent women’s movement in the courts proceeded initially along dual fronts of employment and abortion. The Northern District cases show the tensions and commonalities between these approaches and exemplify the development of broad-scale gender litigation across the nation.
The Institute for Legal Studies is pleased to be hosting the 7th Midwest Law and Society Retreat to be held at the University of Wisconsin in Madison on October 24-25, 2014. This biennial interdisciplinary retreat brings together faculty and graduate students from the region’s diverse social science and law programs for a weekend of intellectual exchange and community building. The 2014 Retreat will offer opportunities for participants to receive feedback on works-in-progress, discuss research methods and professional issues, and develop future projects with regional colleagues. Participants are encouraged to submit proposals on these topics or to just come to the Retreat to join in the discussion. [More information and registration details here.]
Intellectual property in the last few years has taken an historical turn which has led to the emergence of a good deal of interesting work. More recently, there has been an interest in the comparative history of intellectual property law. This has emerged as a result of the shift from intellectual property as a metropolitan legal framework, varying considerably from one territory to another, to a form of virtual property that easily crosses global borders. The World Intellectual Property Organization (WIPO) spearheads a harmonization project that has prompted legal scholars to look towards history to understand the diversity of copyright, trademark, patent, and a variety of smaller regimes.
Two quite recent interesting comparative intellectual property law projects are:
- Rethinking Patent Cultures, a UK Arts & Research Council (AHRC) funded project, hosted by the Centre for History & Philosophy of Science at the University of Leeds and organized by Professor Graeme Gooday, hosted a conference as a first step towards understanding the comparative historical development of patent law.
- The WIPO (World Intellectual Property Organization) Journal just published its special fifth anniversary issue, edited by Peter Yu, focusing on the historical development of intellectual property norms in a global perspective. This issue (volume 5) is available [here].
Beginning with the advent of a pain relief economy after World War II in response to concerns about recovering soldiers, Wailoo explores the 1960s rise of an expansive liberal pain standard, along with the emerging conviction that subjective pain was real, disabling, and compensable. These concepts were attacked during the Reagan era of the 1980s, when a conservative political backlash led to decreasing disability aid and the growing role of the courts as arbiters in the politicized struggle to define pain.
Wailoo identifies how new fronts in pain politics opened in the 1990s in states like Oregon and Michigan, where advocates for death with dignity insisted that end-of-life pain warranted full relief. In the 2006 arrest of conservative talk show host Rush Limbaugh, Wailoo finds a cautionary tale about deregulation, which spawned an unmanageable market in pain relief products as well as gaps between the overmedicated and the undertreated. Today's debates over who is in pain, who feels another's pain, and what relief is deserved form new chapters in the ongoing story of liberal relief and conservative care.
People in chronic pain have always sought relief—and have always been judged—but who decides whether someone is truly in pain? The story of pain is more than political rhetoric; it is a story of ailing bodies, broken lives, illness, and disability that has vexed government agencies and politicians from World War II to the present.More information is available here.
Thursday, May 22, 2014
Vasanthakumar, "Treason, Expatriation and 'So-Called' Americans: Recovering the Role of Allegiance in Citizenship"
Allegiance is an essential element of citizenship, featuring in its statutory definition and invoked in its rituals. Most scholars have dismissed allegiance as a vestige from a feudal past. Certainly, the last several decades have witnessed a revolution in citizenship: access to citizenship has been liberalized, and citizenship is now widely recognized as a ‘right to have rights’ that states are loath to infringe upon. Allegiance would seem to have no place in this context. In this Article, I seek to recover the role of allegiance in citizenship and demonstrate its continued legal and normative relevance. I develop two illustrative conceptions of allegiance by analogy to political obligation and civic virtue. I then undertake a close reading of select Supreme Court decisions in treason and statutory expatriation — contexts in which the betrayal or transfer of allegiance is of moment. I draw upon these decisions to further illuminate the concept of allegiance as well as to identify its normative implications for citizenship. Through inchoate allusions to allegiance, states recently have deprived individuals of their citizenship and undermined the protections that status once afforded. Clarity about allegiance is necessary to avoid abuse; this Article begins a preliminary investigation.The full article is available here.
Hat tip: Legal Theory Blog
Scientific advances and economic forces have converged to create something unthinkable for much of human history: a robust market in human body products. Every year, countless Americans supply blood, sperm, and breast milk to “banks” that store these products for later use by strangers in routine medical procedures. These exchanges entail complicated questions. Which body products are donated and which sold? Who gives and who receives? And, in the end, who profits? In this eye-opening study, Kara Swanson traces the history of body banks from the nineteenth-century experiments that discovered therapeutic uses for body products to twenty-first-century websites that facilitate a thriving global exchange.
More than a metaphor, the “bank” has shaped ongoing controversies over body products as either marketable commodities or gifts donated to help others. A physician, Dr. Bernard Fantus, proposed a “bank” in 1937 to make blood available to all patients. Yet the bank metaphor labeled blood as something to be commercially bought and sold, not communally shared. As blood banks became a fixture of medicine after World War II, American doctors made them a frontline in their war against socialized medicine. The profit-making connotations of the “bank” reinforced a market-based understanding of supply and distribution, with unexpected consequences for all body products, from human eggs to kidneys.
A few blurbs:Ultimately, the bank metaphor straitjacketed legal codes and reinforced inequalities in medical care. By exploring its past, Banking on the Body charts the path to a more efficient and less exploitative distribution of the human body’s life-giving potential.
“Blood, milk, and sperm are often seen as embodying the essence of personhood. But in our time they have become the parts of the body most easily stored and exchanged. Banking on the Body uncovers the remarkable story of how body products have been envisioned as civic resources controlled by medical professionals as well as personal property which might be bought and sold by individuals. Original and deeply researched, this book has real significance for how we balance ever-increasing demands for body parts while still preserving our own human values.”—Steven WilfMore information, including the TOC, is available here. An interview with Swanson about the book is available here.
“Swanson presents a compelling examination of the process by which sperm, blood, and human milk came to be both ‘gifts’ and commercial products. Deeply researched and clearly argued, this medical history should be read by anyone concerned with the legal and social consequences of body banking.”—Janet Golden
Wednesday, May 21, 2014
With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent.Here are the blurbs:
With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
Ken I. Kersch, Boston College
“Is Administrative Law Unlawful? is a work of the very highest quality, a learned scholarly exegesis setting out the intellectual foundations—in medieval and early modern English constitutional thought—for the proposition that the contemporary American administrative state is profoundly unconstitutional and unlawful. Philip Hamburger’s argument is intricately wrought and forcefully expressed. Its indictment of modern administration in America doubles as a major statement on the virtues of a genuinely constitutional government.”
Gary S. Lawson, Boston University School of Law
"With characteristic erudition, Philip Hamburger shows how virtually every aspect of the modern administrative state undermines the Anglo-American legal tradition—or at least that part of the tradition that most informed the American founding. It is a provocative thesis, but one that is amply supported by extensive scholarly argument and fascinating historical study. Hamburger makes an impressive case that modern administrative law owes its lineage to claims of monarchical prerogative and civil law absolutism that were precisely the ideas that the American revolution was trying to reject. This is a tremendously important book."
In the 1830s, the French aristocrat Alexis de Tocqueville warned that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmare has come true. In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom.And here are the blurbs:
In Tocqueville's Nightmare, Daniel R. Ernst destroys this ahistorical and simplistic narrative. He shows that, in fact, the nation's best corporate lawyers were among the creators of "commission government" that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were built into the administrative state. Far from following "un-American" models, American state-builders rejected the leading European scheme for constraining government, the Rechtsstaat (a state of rules). Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions. Soon, however, even judges realized that strict judicial review shifted to courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process and fair play prevailed. This procedural notion of the rule of law not only solved the judges' puzzle of reconciling bureaucracy and freedom. It also assured lawyers that their expertise in the ways of the courts would remain valuable, and professional politicians that presidents would not use administratively distributed largess as an independent source of political power.
Tocqueville's nightmare has not come to pass. Instead, the American administrative state is a restrained and elegant solution to a thorny problem, and it remains in place to this day.
"Daniel Ernst provides a wonderfully rich and subtly revisionist account of one of the crucial eras in the development of American administrative law. The meat he puts on the bones of apparently arid doctrinal disputes both reveals why administrative law has been and remains a sharply contested battleground in American political development and gives us a brilliant account of what 'American exceptionalism' really entails." --Jerry L. Mashaw, Sterling Professor of Law, Yale University
"In this masterful study, Daniel Ernst shows how judges and lawyers in government and private practice constructed the modern American administrative state in the first decades of the twentieth century, reshaping the protean ideal of the rule of law so that law and government institutions supported each other in overcoming constitutional objections to the nightmare of a monstrous bureaucratic state. His account seamlessly integrates ideas, cases, and politics into a compelling explanation for the constitutional world the New Deal created." --Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
"The conventional narrative of the origins of administrative agencies and administrative law in early twentieth-century America has emphasized similarities between American and Western European agencies of the state and has associated the emergence of agencies with the triumph of collectivist ideologies of governance in the United States. Tocqueville's Nightmare demonstrates that the process was far more complicated. Building on recent revisionist work by early twentieth-century legal and constitutional historians, Daniel Ernst has put forth an account of the growth of the American administrative state that reveals the limitations of conventional wisdom and is likely to become authoritative." --G. Edward White, David and Mary Harrison Distinguished Professor of Law and University Professor, University of Virginia School of Law
Tuesday, May 20, 2014
Meanings of Justice in New World Empires: Settler and Indigenous Law as Counterpoints
Symposium on Comparative Early Modern Legal History
Friday, October 10, 2014, 9 am to 5 pm
Towner Fellows Lounge, Newberry Library
Organized by Brian Owensby, University of Virginia, and Richard J. Ross, University of Illinois at Urbana-Champaign.
Understandings of justice differed among New World empires and among the settlers, imperial officials, and Indigenous peoples within each one. This conference will focus on the array of meanings of justice, their emergence and transformation, and the implications of adopting one or another definition. Our emphasis is less on the long-studied problem of the ethics of conquest and dispossession than on the notions of justice animating workaday negotiations, lawsuits, and assertions of right. To this end, we are interested in the following sorts of questions: What about pre-contact legality and about European debates about law impelled empires to offer Indigenous people access to settlers’ courts and legal remedies? How did Indigenous notions of legality shape natives’ resort to settlers’ law? How and why did it occur to Indians that European law offered them a tactical opportunity? To what extent did Indigenous litigants and communities see law as a moral resource? In what ways did Indians misconstrue settler’s legality because of their own preconceptions about justice? How did Indigenous recourse to law shape colonial and imperial legal structures? These questions invite reflection on how settler law became intelligible—tactically, technically, and morally—to natives.
From the Europeans’ point of view, settlers thought about their own legal order by reference to highly stylized depictions of natives’ law. Sometimes Indigenous legality was treated as an example of primitivism, or savagery, or the work of the devil; sometimes as an honorable system appropriate to the social situation of Indians; sometimes as a precursor to imperial law; sometimes as reminiscent of legal systems in European antiquity or in other non-Western societies; and sometimes as an early stage in the Scottish Enlightenment’s four-stage theory of socio-legal development. How did Indigenous law serve as a contrast that helped settlers legitimate, critique, and understand their own legal system? Conversely, in what ways did the example of settler law occasion debates about the meaning of justice within native communities? The conference will bring together law professors, historians, and social scientists to explore how settler and Indigenous law acted as counterpoints within and across European New World empires.
Gregory Ablavsky, Law and History, University of Pennsylvania
Stuart Banner, Law, University of California, Los Angeles
Lauren Benton, History, New York University
Sherwin Byant, History, Northwestern University
Alcira Dueñas, History, Ohio State University
Marcela Echeverri, History, Yale University
Karen Graubart, History, Johns Hopkins University
Tamar Herzog, History, Harvard University
Fred Hoxie, History, University of Illinois at Urbana-Champaign
Emilio Kouri, History, University of Chicago
Karen Kupperman, History, New York University
Robert Morrissey, History, University of Illinois at Urbana-Champaign
Bianca Premo, History, Florida International University
Jenny Pulsipher, History, Brigham Young University
Dan Richter, History, University of Pennsylvania
Yanna Yannakakis, History, Emory University
Craig Yirush, History, University of California, Los Angeles
The stories of John Farrell and Gideon Washburn are less about the two old men than New England officials who, riding the rough waves of modernity, returned to the severity of their ancestors. The political upheaval of the Revolution and the new republic created new kinds of cultural experience—both exciting and frightening—at a moment when New England farmers and village elites were contesting long-standing assumptions about divine creation and the social order. Ben-Atar and Brown offer a rare and vivid perspective on anxieties about sexual and social deviance in the early republic.A few blurbs:
"Taming Lust performs a remarkable double feat of historical reconstruction. On the one hand, it uncovers the tangled roots of a pair of highly anomalous trials for bestiality in late eighteenth-century New England. On the other, it unfolds a broad panorama of the social, political, and sexual culture of an entire era. These paired objectives inform a writing that is strongly constructed, elegantly expressed, and larded with fascinating detail."—John DemosMore information is available here.
"Strange sexual perversities can provide a window into basic values of ordinary people at a particular time and place. Taming Lust does just that, offering a perceptive peek at New England near the end of the eighteenth century, and doing so in prose that almost sings."—Joseph J. Ellis
Monday, May 19, 2014
In November of 2014, the American Society for Legal History (ASLH) will host a Student Research Colloquium (SRC) in conjunction with its annual meeting. The colloquium will offer a small group of graduate and law students an opportunity to work intensively on in-progress research projects under the guidance of distinguished ASLH-affiliated scholars. The Colloquium will take place at the ASLH conference site in Denver, Colorado, on Wednesday, November 5, and Thursday, November 6. The SRC seeks applications from post-coursework graduate students, as well as law students interested in legal history. Preference will be given to students in the early stages of dissertation and other research. Each participating student will pre-circulate an in-progress paper of no more than fifteen pages, double-spaced, to the entire group. These papers will provide the foundation for discussion at the colloquium. Participants will receive stipends that will at least partially defray the travel, hotel, and registration costs associated with the annual meeting. A student can be on the annual program and participate in the SRC in the same year. Students working in all chronological and geographical fields are encouraged to apply. Applicants should submit the following materials:
- a cover letter
- a CV
- one letter of recommendation from a faculty mentor/adviser
- a two-page, single-spaced “research statement” describing an in-progress research project (e.g., a dissertation or a substantial law review article)
The application deadline is July 1, 2014. Organizers will notify all applicants of their decisions by August 15, 2014. Please direct questions and applications to John Wertheimer.
|Coquillette Rare Book Room (Credit)|
I'm pleased to announced that there is a new exhibit on display in the Boston College Law Library's Daniel R. Coquillette Rare Book Room, featuring exciting new additions to our collection over the past few years. Some of our most intriguing additions are documents that came directly out of legal practice in the colonies and early America, illuminating the real people practicing and affected by the law. Many would be the source of interesting research projects. Some of my favorites: a 1746 Hatfield, MA complaint against a man named Medad Negro, identified as a black manservant, for burning down a barn; a recognizance for a 14 year-old boy accused of murdering an American Indian woman; a 1819 partnership agreement between two Boston attorneys; a 1819 letter from Joseph Story asserting the need for new bankruptcy legislation; new additions to our fabulous Francis Bacon collection; and much, much more. The exhibit will be on display through mid-August, so please wander in as the semester wraps up or during the summer. Selected images, descriptions, and a brochure can be found [here].!
Anne Freeling was born in greater Boston in 1910 to two Jewish immigrants from the Ukraine. She graduated from high school but then went to a secretarial school rather than college. Thereafter, she worked as a secretary during the day and, at night, attended Northeastern's law school, where the instruction was by lectures, treatises and quizzes. As she later wrote in her diary, “I convinced myself all through law school that, unlike so many other girl graduates, l would do something with my law education.” But when she graduated in 1933, she continued working as a secretary–by this time, at the eminent Boston law firm Ropes & Gray.
One of the firm’s lawyers was Charles E. Wyzanski, Jr., a magna cum laude graduate of the Harvard Law School in 1930. Through his mentor Felix Frankfurter, Wyzanski became Solicitor of the Department of Labor in 1933. That summer he asked Freeling to serve as his secretary. Although she had voted for Herbert Hoover in 1932, after a few attempts she obtained the requisite endorsement from a Massachusetts Democrat and started in August.
Although Freeling passed the Massachusetts bar and Wyzanski had told her that “the job would amount to whatever I could make of it,” her duties were overwhelmingly secretarial and clerical. Her diary reveals that she had what today’s youths might term “feelings” for her boss, which added to the frustrations of the job. Once, for example, she wrote that after Wyzanski’s “usual procedure of ridiculing any suggestions coming from me,” he nonetheless “decided to follow them” anyway. [For Wyzanski's view of Freeling, see the update at the end of this post.]
In 1935, Wyzanski moved from the Labor to Justice, where he argued high-profile cases before the Supreme Court, including two in which the Supreme Court upheld the National Labor Relations Act (NLRA). The first public acknowledgment of Freeling’s legal work came in October 1936, when Wyzanski insisted that her name appear on the brief in Seminole Nation, a landmark of federal courts law; the next month, at his urging, she was admitted to the bar of the Supreme Court “so that there would be no question of my appearing on briefs.” Wysanski’s “compliments are the more appreciated because of the rarity,” she recorded in her diary.
Gratifying though this was, when her boss returned to Ropes & Gray in 1937, she chose not to follow him. Instead, she joined the review division of the National Labor Relations Board (NLRB) in September 1937. (Presumably, Nathan Witt, who hired her, was impressed by her knowledge of the findings needed to uphold the board's orders under the Commerce Clause, which she would have acquired in helping Wyzanski's write his briefs in the Wagner Act Cases.) “At long last I have achieved my ambition to be a lawyer,” she wrote in her diary. “[T]o start at the bottom as a lawyer required some sacrifice and difficulty,” but she was “sure I shall be happy in my choice–if only I can make the grade.”
The NLRA created “unfair labor practices,” the violation of which made employers liable for, say, the reinstatement of workers and back pay. One of Freeling’s cases is illustrative. In May 1937, the American Radiator Company abruptly closed one of its factories while an affiliate of the CIO was attempting to organize it. If the company did so for normal business reasons–such as insufficient demand for its products–it did not violate the NLRA. If it closed the plant to avoid negotiating with the union–that is, if it “locked out” its workers–the company did violate the act. An NLRB trial examiner conducted a lengthy hearing on this issue in the fall of 1937, after which he decided that American Radiator had not locked out its workers. He sent his intermediate report and a 2,500-page transcript of the hearing to NLRB headquarters in Washington, DC.
One might have thought the next stop for the file would be the three members who made up the board itself. So numerous and lengthy were the cases raining down upon the NLRB, however, that it had created a review division to handle them. Supervised by slightly more senior (and left-of-center) lawyers, review attorneys digested the records and present them orally to the board members, who did not read the records themselves. Employers could request oral argument before the board but were not present when review attorneys presented their cases. After reaching a decision, the board directed the review attorney to draft an opinion for its approval.
In time, the review division grew to 105 lawyers (91 male; 14 female), who had at most “a relatively limited amount of experience.” A journalist called the review attorneys “juvenile jurists” and thought them “lacking in the practical experience and the judicial temperament which customarily are believed to be essential to the painstaking analysis of evidence.” For example, Julius Schlezinger (1912-1999), with whom Freeling was paired in one of her first cases, was a 1935 graduate of the Ohio State University’s law school, where he had been a law review editor and helped found a legal aid clinic. His first legal job was in the Rural Electrification Administration, and he had come to the NLRB only a few months before Freeling.
In the American Radiator dispute, Freeling, like most review attorneys, felt unconstrained by the trial examiner’s report and reviewed the entire record herself. (She later said both that she took into account that the trial examiner had observed the witnesses’ demeanor and that she made up her own mind about witnesses’ credibility when it seemed “so clear to me [as] to be beyond question.”) She digested the testimony, reviewed it with her supervisor, and, in June 1938, presented it to the board, carefully stating evidence for and against a lockout. After examining a few exhibits but not the testimony, the board decided to accept the trial examiner’s finding and tasked Freeling with writing an opinion stating that no lockout had occurred. While she was doing so, word arrived that the company had reopened its plant but not rehired some of the employees who had tried to organize the union. The board reconsidered the case, decided that a lockout had occurred after all, and had Freeling write an opinion saying as much. Yet when the company challenged the board’s order in a federal circuit court that did not apply the substantial evidence standard deferentially, the NLRB settled rather than “get licked in toto” (as one of its lawyers put it).
Sunday, May 18, 2014
More reviews are out this week for John Paul Stevens's Six Amendments: How and Why We Should Change the Constitution (Little, Brown and Co.). There is one in the Los Angeles Review of Books that finds the book "supremely frustrating," and Cass Sunstein writes about the book in The New York Review of Books,
"It is noteworthy, though perhaps not surprising, that in every case, Stevens wants an amendment that will overturn what he sees as a wrongheaded decision by the Supreme Court. In each of these cases, Stevens was a dissenter. It is also noteworthy that Stevens’s broadest theme is the importance of democratic rule. His general goal is to promote self-government, which, as he sees it, has been badly compromised by recent Supreme Court rulings."
"This biography of Darcus Howe is undoubtedly a labour of love. Robin Bunce and Paul Field have made a creditable attempt to chart postwar black activism through one man’s life. And there can be no other person more appropriate to build the story around – because Darcus Howe is one of the standout activists and public intellectuals of his generation."The Los Angeles Review of Books has a review of The Bill of the Century: The Epic Battle for the Civil Rights Act by Clay Risen (Bloomsbury).
"Risen argues persuasively that those most responsible for the bill’s passage are given short shrift. ... The unsung heroes on which Risen focuses instead are Hubert Humphrey, the liberal Democratic Senator from Minnesota, who worked tirelessly to ensure the bill’s passage; the Republican Minority Leader Everett Dirksen, who helped secure crucial Republican votes for the bill in the Senate (the Democrats knew that opposition to the bill would be the strongest from the Southern wing of their own party, making passage impossible without significant Republican support); conservative pro-civil-rights House Republicans, such as Ohio’s William McCulloch, and liberal Northeastern Republicans such as New York’s John Lindsay; and mainstream, establishment civil rights activists such as Roy Wilkins and Clarence Mitchell of the NAACP and J. Irwin Miller of the National Council of Churches, who prodded, pressured, and persuaded members of Congress and the administration to support the bill."Still more on the Civil Rights Act and Risen's book is a review of Risen's Bill of the Century alongside An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 by Todd Purdum (Holt & Co.) in The New York Times.
The Nation looks at recent work on democracy in a multi-book review, "What Was Democracy?" Books under review include Alasdair Roberts's The Logic of Discipline: Global Capitalism and the Architecture of Government (Oxford University Press), Tony Judt's Ill Fares the Land (Penguin), Pierre Rosanvallon's The Society of Equals (translated by Arthur Goldhammer; Harvard University Press), Jurgen Habermas's The Crisis of the European Union: A Response (translated by Ciaran Cronin; Polity Press), and David Runciman's The Confidence Trap: A History of Democracy in Crisis from World War I to the Present (Princeton University Press).
"One of the ironies of the history of democracy is that its label has spread even as its meaning has become uncertain. As recently as the nineteenth century, countries we now call bourgeois democracies—the United States and the United Kingdom—had serious debates about whether democracy was desirable or feasible. Today, if asked to name the best type of government, an overwhelming majority of Americans would say, unsurprisingly, “democracy.” But so would the leaders of the Democratic People’s Republic of Korea. Everyone now carries a torch for the democratic myth."David Cole reviews Inferno: An Anatomy of American Punishment by Robert A. Ferguson (Harvard University Press) in the NYT. Of the book, Cole writes,
"“Inferno” ranges widely to offer a fascinating “anatomy of American punishment,” drawing on such diverse sources as Kant, Ursula K. Le Guin and Jack Henry Abbott, among many others. (In one of Le Guin’s stories, Ferguson writes, a utopian society “depends for its happiness on one innocent desperate child imprisoned in horribly cramped, filthy conditions at the center of its city.”) Ferguson surmises that people have a drive to punish, that we are generally unable to understand the pain and suffering of others, and that America’s traditions support an especially virulent “logic of severity.”"Lastly, The Washington Post reviews Randall Balmer's biography of Jimmy Carter, Redeemer (Basic Books).
Saturday, May 17, 2014
- The SEC Historical Society invites submissions for its 2015 writing award. (Hat tip: Legal Scholarship Blog)
- From History News Network: What Is the Future of the History Ph.D.?
- Lauren MacIvor Thompson’s report on a panel on disability history at the ASLH meeting in Miami last November, is just out in the newsletter of the Disability History Association.
- The Power of One: Roy Wilkins and the Civil Rights Movement. This post, on the blog of the Library of Congress, heralds the opening in of the exhibition, “The Civil Rights Act of 1964: The Long Struggle for Freedom,” on June 19 in the Library’s Thomas Jefferson Building.
Friday, May 16, 2014
The relationship of the APA to tax administration has been the subject of increasing scrutiny from scholars and courts. Some of this scrutiny has critiqued the long-held view of the Department of Treasury that tax regulations issued under the general grant of authority in I.R.C. §7805(a) are interpretative regulations within the meaning of the APA. Scholars and courts alike complain that "tax exceptionalism" has no place in the application of the APA. This Article reviews the almost 150-year history of tax administration before enactment of the APA to show the origins and basis for Treasury's long-held view. The Article also argues the very concept of "tax exceptionalism" rests on an erroneous premise. Rather than assuming that the APA provisions carry uniform meaning as applied to all federal agencies, this article submits that the general terms of the APA must be informed by the pre-APA history of tax regulation.
Editor Sought for Law & Society Review
The term of Editor of the Law & Society Review, Joachim Savelsberg and Tim Johnson, will end with the conclusion of Volume 50 (2016). The Editor Search Committee is eager to receive nominations, including self-nominations, for this important position in the law and society community.
The Editor's term is for three years (Vols. 51-53, 2017-2019) and includes an ex officio appointment to the Board of Trustees and Executive Committee of the Law and Society Association. Given the time needed for transition and the lead time to publication, the new editor should expect to begin receiving initial manuscript submissions beginning in February 2016; the current editors envision a period of overlapping responsibilities with the current editors handling submission of revised manuscripts and the new editor(s) handling initial submissions.
Persons interested in learning more about the Editor's position, expressing interest in the position, or making nominations should contact a member of the Editor Search Committee as soon as possible, and no later than Sept 1, 2014. (Please include nominees’ e-mail and mailing addresses.) Teams of co-editors are welcome.
All members of the Editor Search Committee will be attending the 2014 Annual Meeting of the Law and Society Association in Minneapolis, MN (May 29-June 1).If you will be attending the meeting and have thoughts or questions about the position or suggestions about nominees, we encourage you to speak with one of us on the Search Committee.
Committee members are:
Why do we punish, and why do we forgive? Are these learned behaviors, or is there something deeper going on? This book argues that there is indeed something deeper going on, and that our essential response to the killers, rapists, and other wrongdoers among us has been programmed into our brains by evolution. Using evidence and arguments from neuroscience and evolutionary psychology, Morris B. Hoffman traces the development of our innate drives to punish – and to forgive – throughout human history. He describes how, over time, these innate drives became codified into our present legal systems and how the responsibility and authority to punish and forgive was delegated to one person – the judge – or a subset of the group – the jury. Hoffman shows how these urges inform our most deeply held legal principles and how they might animate some legal reforms.
A few blurbs:
"Morris Hoffman’s fascinating exploration of the intersection of criminal law and biology will inform and provoke. It is a tour de force of speculative, interdisciplinary scholarship." -- Stephen J. MorseMore information is available here.
"The Punisher’s Brain is lucid, clever, and a delight to read. Judge Hoffman draws on evolutionary psychology, neuroscience, English legal history, and - often most engagingly - his own experiences on the bench to guide the reader on a compelling tour of our punishing instincts." -- Francis X. Shen