Tuesday, September 30, 2014

Descheemaeker on the Law of Amende Honorable

Eric Descheemaeker, University of Edinburgh School of Law, has posted Old and New Learning in the Law of Amende Honorable.  Here is the abstract:
One remarkable feature of the South African law of defamation or iniuria is how it has retained a historical form of redress still known under its French name as amende honorable. After a long period of eclipse, the remedy has recently been revived (albeit to an extent which remains uncertain), at least in part under the influence of ideas of restorative justice and ubuntu. In that new context, it has been suggested that the remedy – a form of retraction of the offending words coupled with an apology for their utterance – could redress injuries to reputation, dignity or feelings better than money damages would, and also help mend relationships between the parties.

This paper offers a sceptical note on those various counts. Tracing the history of amende honorable in Roman-Dutch law and beyond, it argues that the gist of the action, both historically and doctrinally, lies in a now largely overlooked dimension, namely, the public humiliation of the offender. It is this dimension, unpalatable though it might be to us, which accounts for the potency of the remedy; if we lose sight of it, we find ourselves left with a Court-imposed retraction and apology which is incapable of meeting any of the hopes placed by the moderns in the revival of the ancient remedy.

Rueck, "Commons, Enclosure, and Resistance in Kahnawá:ke Mohawk Territory, 1850-1900"

Via the Canadian Legal History Blog, we have word of an article of interest in the September 2014 issue of the Canadian Historical Review: "Commons, Enclosure, and Resistance in Kahnawá:ke Mohawk Territory, 1850-1900," by Daniel Rueck (McGill University). Here's the abstract:
Historical communities that have held lands in common have, without exception, had strict regulations for using those lands. This was true also in Kahnawá:ke, a Mohawk community near Montreal, where community leaders articulated and enforced customary land laws until the last decades of the nineteenth century. Although a few Mohawks contested these laws in the nineteenth century, the Canadian government undermined, dismantled, and replaced customary land law in the 1870s and 1880s. This article reveals the way the Canadian Department of Indian Affairs exacerbated resource and land shortages in its attempts to undermine Kahnawá:ke leaders, gain control of the land, and ultimately to disperse the community. It describes a chaotic transition from regulated common property to a form of private property under the Indian Act and argues that this transformation was part of a global enclosure movement that continues to this day. Nevertheless, the Canadian government was unable to bring its project to completion, in large part the result of effective resistance offered by Kahnawá:ke Mohawks. The article draws attention to the extraordinary nature of this successful Indigenous resistance to the Canadian state in the late nineteenth century. 
The full text is here.

Call for Applications: ABF Doctoral/Post-Doctoral Fellowship

The American Bar Foundation invites applications for the ABF Doctoral/Post-Doctoral Fellowship Program in Law and Social Science:
The American Bar Foundation is committed to developing the next generation of scholars in the field of law and social science.  The purpose of the fellowships is to encourage original and significant research on law, the legal profession, and legal institutions.

For the Doctoral/Post-Doctoral Fellowships, applications are invited from outstanding students who are candidates for Ph.D. degrees in the social sciences.  Applicants must have completed all doctoral requirements except the dissertation by September 1, 2015.  Applicants who will have completed the dissertation prior to September 1, 2015 are also welcome to apply.  Doctoral and proposed research must be in the general area of sociolegal studies or in social scientific approaches to law, the legal profession, or legal institutions. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and legal process.  Minority students are especially encouraged to apply. Applicants are also eligible to apply for the American Bar Foundation and Law and Society Association’s Law and Social Science Dissertation Fellowship & Mentoring Program.

Fellows receive a stipend of $30,000 for 12 months.  Fellows also may request up to $1,500 to reimburse expenses associated with research, travel to meet with advisors, or travel to conferences at which papers are presented.  Relocation expenses up to $2,500 may be reimbursed on application.
More information is available here.

Monday, September 29, 2014

Areen on the Reformation Roots of American Marriage and Divorce Law

Judith Areen, formerly dean of the Georgetown University Law Center, from which she is now on leave, serving as Executive Director of the Association of American Law Schools, has posted
Uncovering the Reformation Roots of American Marriage and Divorce Law, which appears in the Yale Journal of Law & Feminism 26 (2014): 29-85.  Here is the abstract:    
The roots of American family law were planted nearly four centuries ago when New England Puritans embraced civil marriage and divorce. In England, by contrast, marriage was overseen by the ecclesiastical courts until the mid-eighteenth century, and courts did not grant divorces until well into the nineteenth century. This article identifies and analyses the non-English sources of American family law. The theological case made by Martin Luther in the early sixteenth century for preferring marriage (and divorce) to celibacy laid the conceptual foundation for both civil marriage and fault-based divorce. The Zurich Ordinance of 1525 was not only the first modern marriage and divorce law, it contained no-fault as well as fault grounds for divorce. The reform marriage and divorce practices the Puritans brought with them to New England not only were not English, they were strikingly similar to those of Reformation Europe.

Secular control of marriage was adopted by the colonies outside of New England as well, not because of sectarian disputes, but because the Church of England was not able to establish ecclesiastical courts that could oversee marriage as they did in England. Thus a complex mix of sectarian differences and the absence of ecclesiastical courts explains the paradox of why the United States, despite the religious fervor of many of its original colonists, nonetheless was a pioneer in adopting secular marriage and divorce law.

Call for Applications: Law and Social Science Dissertation Fellowship & Mentoring Program

Attention graduate students: From the Law & Society Association and the American Bar Foundation, we have a call for applications for the Law and Social Science Dissertation Fellowship & Mentoring Program:
The Law and Society Association, in collaboration with the American Bar Foundation and the National Science Foundation, seeks applications for the Law and Social Science Dissertation Fellowship and Mentoring Program (LSS Fellowship).

Fellowships are held in residence at the American Bar Foundation in Chicago, IL, where Fellows are expected to participate in the intellectual life of the ABF, including participation in a weekly seminar series. LSS Fellows will receive a stipend of $30,000 per year beginning Fall 2015. Fellows will attend LSA annual meetings in both years of the fellowship and the Graduate Student Workshop in the first year of the fellowship.  Fellows will receive up to $1,500 for research and travel expenses each year.  Relocation expenses up to $2,500 may be reimbursed one time.

Third-, fourth-, and fifth-year graduate students who specialize in the field of law and social science and whose research interests include law and inequality are invited to apply.  Fellowship applicants should be students in a Ph.D. program in a social science department or an interdisciplinary program.  Humanities students pursuing empirically-based social science dissertations are welcome to apply.  Applicants are also eligible to apply for the American Bar Foundation’s Doctoral Fellowship Program in Law and Social ScienceOnly U.S. citizens and permanent residents are eligible to apply.
Read on here.

BU's Clark Legal History Series

[It is always an honor for me to post the schedule for the Elizabeth Battelle Clark Legal History Series at the Boston University School of Law, as I also revere the memory of Betsy Clark, who was my senior in Princeton’s graduate history program and predecessor as a legal history fellow at Wisconsin Law.  If you’ve never read her "'The Sacred Rights of the Weak’: Pain, Sympathy, and the Culture of Individual Rights in Antebellum America,” Journal of American History 82 (1995): 463-93, you really should.

[In Fall 2014, the series is directed by Professor Anna di Robilant.  It usually meets Wednesdays, 4:20-6:20.]

(Friday), September 26th, William E. Forbath, Lloyd M. Bentsen Chair in Law,  University of Texas, Austin School of Law,  "The Anti-Oligarchy Constitution".

October 1st, Josh Chafetz, Professor of Law, Cornell University School of Law, "The Personnel Power".

October 15th, Christopher L. Tomlins, Professor of Law, University of California Berkeley, Boalt Hall School of Law, "Revulsions of Capital. The Politics of Law and Slavery in the Age of the Turner Rebellion, Virginia 1829-1832".

October 29th, Tamar Herzog, Monroe Gutman Professor of Latin American Affairs and Radcliffe Alumnae Professor, Harvard University, "Defining Imperial Spaces: How South America became a Contested Territory."

November 12th, Lauren A. Benton, Professor of History and Silver Professor, New York University, "Protection, the Imperial Constitution, and the British Global Order, 1790-1850".

November 19th, James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law, Yale Law School, "Presumption of Innocence/Presumption against Punishment: Two Western Modes of Justice."

Sunday, September 28, 2014

Sunday Book Roundup

This week The New York Review of Books has made available a review by Christopher Jencks, "On America's Front Lines" that reviews Alice Goffman's On the Run: Fugitive Life in an American City (University of Chicago Press) and The Growth of Incarceration in the United States: Exploring Causes and Consequences, a National Research Council report edited by Jeremy Travis, Bruce Western, and Steve Redburn (National Academies Press).

Also no longer behind paywall is Jeremy Waldron's "It's All for Your Own Good," a review of two Cass Sunstein books: Why Nudge? The Politics of Libertarian Paternalism (Yale University Press) and Conspiracy Theories and Other Dangerous Ideas (Simon & Schuster).

Not enough Cass Sunstein? He reviews Richard J. Evan's Altered Pasts: Counterfactuals in History (Brandeis University Press) for the New Republic.
"To those who enjoy such speculation, Evans will seem a bit of a killjoy, and he seems to be fascinated, perhaps in spite of himself, by the subject. His exploration of counterfactual history is in part a history of the topic. In his account, one of the noteworthy early publications was Louis Geoffrey’s Napoleon and the Conquest of the World, in 1836, which offers a narrative in which Napoleon ultimately conquers China, Japan, and the United States, and is deemed “Ruler of the World.” Geoffrey much admired Napoleon, and as the example suggests, much writing in this vein tends to reflect wishful thinking (and to be self-consciously whimsical)."
The Los Angeles Review of Books takes a look at Erwin Chemerinsky's The Case Against the Supreme Court (Viking).

Law & Politics Book Review has released September's Book Notices, a "brief summary of the contents of recent reference works, anthologies of previously published materials, textbooks and collected readings designed for students, casebooks designed for undergraduate and law school use, later editions of books previously reviewed in this journal, and other specialized publications."

The New Books Network has several interesting author interviews this weekend. The first is an interview on New Books in American Studies with Lauren Araiza about her new book To March for Others: The United Farm Workers and the Black Freedom Movement (University of Pennsylvania Press).

New Books in Law adds an interview with Guy Chet about his work, The Ocean is a Wilderness: Atlantic Piracy and the Limits of State Authority (University of Massachusetts Press).

And, New Books in History has an interview with Todd Henry who discusses Assimilating Seoul: Japanese Rule and the Politics of Public Spaces in Colonial Korea (University of California Press).

The Washington Post reviews Landslide: LBJ and Ronald Reagan at the Dawn of a New America by Jonathan Darman (Random House).

H-Net also has several new reviews of note--especially in the fields of gender and sexuality. The first is Karsonya Wise Whitehead's Notes from a Colored Girl: The Civil War Pocket Diaries of Emilie Frances Davis (University of South Carolina Press).
"Karsonya Wise Whitehead provides readers with a transcription of and a history about the diaries of Emilie Frances Davis, a free woman of color who lived and worked in Philadelphia, Pennsylvania. Whitehead relates the fascinating way she went about reading and understanding Davis’s diaries. Readers of Whitehead’s volume will be pleased with the text; moreover, scholars will be inspired to pursue new research projects thanks to Whitehead’s excellent transcription, outstanding contextualization, and generous observations."
There is also a review of an edited volume, Sex and Disability (Duke University Press), edited by Robert McRuer and Anna Mollow.
"Sex has, sometimes, been a topic of disability activists and scholars who challenged the notion of the desexualized disabled subject. While disability has, to a much lesser extent, been discussed in queer studies, scholars of disability studies and especially disability theory have increasingly pointed to the intersections or analogies of sex and disability, of queer theory and disability theory,  and of compulsory heterosexuality and able-bodiedness. With Sex and Disability, Robert McRuer and Anna Mollow present an anthology that takes up these strands."
And lastly, H-Net as a review of Mira Lloyd Dock and the Progressive Era Conservation Movement (Penn State University Press) by Susan Rimby.

Saturday, September 27, 2014

Cole, Mack, Wilkins, Holder et al.

My Georgetown colleague David Cole mentions Harvard Law's Kenneth Mack's speech about the civil rights forbears of DC Circuit Judge Robert Wilkins at Judge Wilkins's investiture in this post on the New Yorker's blog.

Legal Theory and Legal History: The Reader

[We're moving this post up, as the work in question is now published.]

Forthcoming in October, but available for pre-order from Ashgate now, is Legal Theory and Legal History, edited by Maksymilian Del Mar, Queen Mary University of London, and Michael Lobban, London School of Economics.  This volume is part a larger series from Ashgate, The Library of Essays in Contemporary Legal Theory (Second Series).  Saith the press:
What can legal theorists learn from legal historians? What guidance can historians take from theorists? What theoretical questions underlie legal historical investigations? These are the questions explored and answered by the articles selected in this volume. Taken together, these papers show that the future of historical jurisprudence is a bright one. This is a jurisprudence that can yield insights about how to conceptualise legal change, how to give voice to those operating outside of legal officialdom, and how to understand the relationship between law and politics. The papers selected range from the challenge to legal positivism from the perspective of the history of the common law, to the latest methodological debates in socio-historical jurisprudence. The volume contains a substantive introduction and a detailed bibliography.
Contents after the jump.

Weekend Roundup

  • The Historical Society for the DC Circuit announces that Robert S. Mueller III, Former Director of the Federal Bureau of Investigation, will deliver the Sixth Annual Judge Thomas A. Flannery Lecture on Thursday, October 23, 2014 in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse at 5 p.m.
  • From the Journal of American History's podcast: a conversation with Barbara Welke (University of Minnesota) on her recent article "The Cowboy Suit Tragedy." For more on this terrific article, check out my recent review on JOTWELL, here. (KMT)
  • From Environment, Law, and History: a guest post by Leona Skelton (University of Bristol) on what can be learned from the Tyne’s River Court Books, 1644-1834.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 26, 2014

Allen on Law and Artifice in Blackstone's Commentaries

Jessie Allen, University of Pittsburgh School of Law, has posted Law and Artifice in Blackstone's Commentaries, which appears in the Journal of Law: A Periodical Laboratory of Legal Scholarship 4 (Summer 2014).  Here is the abstract:    
William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

Davies on Modest Melville Fuller

Ross E. Davies, George Mason University School of Law, has posted Fixing Fuller's Record: The Green Bag and the U.S. Reports, which appears in Green Bag 2d,, 17 (Summer 2014): 451-64.  Here is the abstract:    
CJ Melville Fuller (LC)
Melville Fuller, Chief Justice of the United States from 1888 to 1910, had a notably "self-effacing nature." Perhaps that is why he did not always push hard to correct errors about himself that appeared in published reports. In retrospect, this seems admirably modest in some contexts and disturbingly irresponsible in others. This article deals first with an example Fuller’s admirable modesty, which it overcomes for the benefit of modern readers. Second, this article examines an instance of Fuller’s converse irresponsibility, and suggests that the Supreme Court can and should officially correct Fuller’s error.

CFP: Annual Meeting of the Law and Society Association

The Law and Society Association has issued a Call for Papers for its 2015 conference, to be held May 28-31, 2015, in Seattle, Washington. The deadline is October 15, 2014.
Law’s Promise and Law's Pathos
in the
Global North and Global South
What has law accomplished in the Global North and Global South? Its champions have promised much—the spread of human rights and the rule of law, the elimination of discrimination and the protection of the vulnerable, the lure of economic development and the fostering of global trade, endowments of human dignity and restraints on economic rapacity. Its critics observe law as an instrument for repression, hegemonic control and infringements on privacy and intrusive surveillance (in the context of a never-ending and ubiquitous ‘war against terror’), as a weapon against free speech or political opposition, as a tool of economic exploitation and domination, and as a retreat from politics. The 2015 LSA annual meeting will engage law’s promises and law’s pathos in domestic and transnational contexts, through plenaries addressing the roles of law in the war on terror, in climate change, in emancipation and protection of the world’s most vulnerable populations, and in law’s relationships with religions. 
More information is available here.

"The New Doctrinalism" at Penn Law

We have word of a symposium sponsored by the University of Pennsylvania Law Review, entitled The New Doctrinalism from the morning of Friday, October 24, through the afternoon of Saturday, October 25.  As the organizers explain, the “symposium will examine the role that legal doctrine continues to play in different areas of American law, despite the continuing influence of American Legal Realism.”  They elaborate:
Since the 1930s, American Legal Realism has argued that law is not an autonomous discipline and that traditional legal materials—legislation, regulation and judicial precedent—are not, themselves, sufficient to determine the outcome of the most interesting legal disputes. How that gap is filled, with moral philosophy, industry practice, the idiosyncratic preferences of the judges, economics, etc., has been debated ever since. Yet legal practice and legal discourse remain stubbornly doctrinal. What explains this? It is this puzzle that the symposium hopes to uncover. We will host a wide group of prominent academics working in twelve different areas of the law, and ask them to reflect on this reality. Each scholar will focus on how and why his or her particular area of law has retained its "doctrinalism" in the face of the growing influence of interdisciplinary ideas.
I’m sure it will be a terrific conference, and not simply because my Georgetown colleague Anne Fleming will provide a historian’s perspective at one session.  Still, I think the organizing premise of opposition between legal realism and doctrinalism in “legal practice and legal discourse” is overstated.  To be sure, in one field of legal discourse, legal scholarship, we can find “The Singular Case of Underhill Moore" (in the estimation of John Henry Schlegel): a brilliant doctrinalist who, it was said (erroneously, Schlegel believes), threw out a “life’s work” of doctrinal research as “all wrong,” who tried to begin again as a behavioralist, and who ended up ridiculed by even his fellow realists.  Also, the legal realists wrote devastating reviews of the Restatements of the “American Law Prostitute,” on which see Laura Kalman’s Legal Realism at Yale.  (That reminds me: I’m surprised the organizers couldn’t find time for a wreath-laying ceremony at the tomb of William Draper Lewis.)  Finally, there was Jerome Frank’s famous claim that, in most cases, if a legal realist “starts with his conclusion, he can find satisfactory premises.  There are, so to speak, plenty of vacant premises, or at any rate, premises which can be sufficiently repaired or remodeled.” 

Still, I think few realists thought that doctrine was just the dog’s tail.  After all, Charles Clark and others showed up and fought fiercely at the drafting sessions for the Restatements; one wonders why they bothered if they thought that blackletter law was epiphenomenal.  When Karl Llewellyn asked when judges thought title passed in sales or Walter Wheeler Cook wondered when they did or did not enforce covenants not to compete they did so not because doctrine did not matter but to make salient and critique the factual assumptions that led judges to make it as they did.

Jerome Frank certainly thought that the work of occupying, repairing, and remodeling premises was consequential.  In particular, it affirmed the power of the profession and discipline that maintained custody of the premises, strengthening the legal profession’s hand in its quarrels with political and professional rivals.  Quentin Skinner on Bolingbroke is some help here, but so is the experience of the legal realists themselves.  When Jerome Frank butted heads with the economist Leon Henderson at the Securities and Exchange Commission and William O. Douglas's protégé David Ginsburg quarreled with John Kenneth Galbraith at the Office of Price Administration, both realized (with Alvy Singer) that to prevail they “needed the eggs"–a priori arguments from "traditional legal materials."  They and other legal realists had no desire to kill the chicken that laid them.

Did I mention that CLE credit is available for attendees?

Thursday, September 25, 2014

Sachs on Originalism as a Theory of Legal Change

Stephen E. Sachs, Duke University School of Law, has posted Originalism as a Theory of Legal Change, which is forthcoming in the Harvard Journal of Law and Public Policy.  Here is the abstract:    
Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change them, under the rules as they stood at the time. We require claims of constitutional change to provide this kind of historical accounting; and a wide variety of approaches -- "conservative" and "liberal," from precedent to post-Founding practice -- are and could be defended as products of the Founders' law. These practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders' law, plus any lawful changes.

If this account is right, then what's important about the Constitution isn't what its text said, but what its enactment did--what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law--the law that was added by the enactment of each provision, under the legal rules governing interpretation at the time. This "original-law originalism" helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about today's law, while different schools of originalists ought to disagree about the law of the past.

The claim that we still take the Founders' law as our own, as lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it's the best reason to be an originalist -- and, if it's false, the best reason not to.

Wednesday, September 24, 2014

David's Jurisprudence and Theology in Late Ancient and Medieval Jewish Thought

Out from Springer is Jurisprudence and Theology in Late Ancient and Medieval Jewish Thought by Joseph E. David.
The book provides in depth studies of two epistemological aspects of Jewish Law (Halakhah) as the ‘Word of God’ – the question of legal reasoning and the problem of knowing and remembering.

•    How different are the epistemological concerns of religious-law in comparison to other legal systems?
•    In what ways are jurisprudential attitudes prescribed and dependent on theological presumptions?
•    What specifies legal reasoning and legal knowledge in a religious framework?

The author outlines the rabbinic jurisprudential thought rooted in Talmudic literature which underwent systemization and enhancement by the Babylonian Geonim and the Andalusian Rabbis up until the twelfth century. The book develops a synoptic view on the growth of rabbinic legal thought against the background of Christian theological motifs on the one hand, and Karaite and Islamic systemized jurisprudence on the other hand. It advances a perspective of legal-theology that combines analysis of jurisprudential reflections and theological views within a broad historical and intellectual framework.
The book advocates two approaches to the study of the legal history of the Halakhah: comparative jurisprudence and legal-theology, based on the understanding that jurisprudence and theology are indispensable and inseparable pillars of legal praxis.
The TOC is here.

Sirico on the Federal Convention as Prognosticator

Louis J. Sirico, Jr., Villanova University School of Law, has posted The Constitutional Convention: Drafting to Charter Future History, which appears in the Georgetown Journal of Law & Public Policy 12 (2014): 157. Here is the abstract:
Just as counterfactual historians ask how past events shape future history, we ask how successful can historical actors be in trying to chart the course of future history. Specifically, the article examines particular decisions that the deputies to the Constitutional Convention made in drafting provisions of the Constitution. With these drafting decisions, the deputies attempted to permit or prevent certain future histories from occurring.

For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate, Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.

This article offers detailed narratives to illustrate four goals that the Convention’s deputies pursued in making various constitutional drafting decisions: to safeguard against lawlessness, to leave open the door for desirable change, to plan for the growth of an empire, and to conceptualize the nature of the new nation

Examples include the ban on ex post facto laws, the authority to define international law, the Constitution’s accommodations with slavery, the decision to permit the western territories eventually to become states, and the decision not to include the word “national” in the Constitution. The article provides a detailed narrative of the deliberations on each topic at the Constitutional Convention.

The article concludes by offering some insight on the central issue: to what extent can the careful drafting of a constitution enable the drafters to charter the future? It suggests five lessons that derive from the discussion.

Romano's "Racial Reckoning"

Out next month, from the Harvard University Press, is Racial Reckoning: Prosecuting America's Civil Rights Murders, by Renee C. Romano, Professor of History, Comparative American Studies, and Africana Studies at Oberlin College.
Few whites who violently resisted the civil rights struggle were charged with crimes in the 1950s and 1960s. But the tide of a long-deferred justice began to change in 1994, when a Mississippi jury convicted Byron De La Beckwith for the 1963 murder of Medgar Evers. Since then, more than one hundred murder cases have been reopened, resulting in more than a dozen trials. But how much did these public trials contribute to a public reckoning with America’s racist past? Racial Reckoning investigates that question, along with the political pressures and cultural forces that compelled the legal system to revisit these decades-old crimes.

Renee C. Romano brings readers into the courthouse for the trials of the civil rights era’s most infamous killings, including the Birmingham church bombing and the triple murder of Andrew Goodman, James Chaney, and Mickey Schwerner. The activists who succeeded in reopening these cases hoped that bringing those responsible to justice would serve to highlight the state-sanctioned racism that had condoned the killings and the lingering effects of racial violence. Courtroom procedures, however, worked against a deeper exploration of the state’s complicity in murder or a full accounting of racial injustices, past or present. Yet the media and a new generation of white southerners—a different breed from the dying Klansmen on trial—saw the convictions as proof of the politically rehabilitated South and stamped “case closed” on America’s legacy of violent racism. Romano shows why addressing the nation’s troubled racial past will require more than legal justice.
HUP has posted a Q&A with Professor Romano about the book on its blog.

Tuesday, September 23, 2014

Iriye to Lecture on International Affairs and Transnational Relations

The Washington History Seminar of the National History Center and the Woodrow Wilson School of International Studies announce the next in a series of lectures, International Affairs and Transnational Relations, by Akira Iriye, Harvard University.  It will take place on Monday, September 29, 2014, from 4:00pm - 5:30pm, at the Woodrow Wilson Center, 6th Floor Moynihan Boardroom.  To attend, register here.
Acclaimed Harvard historian Akira Iriye will reflect on the study of history today, examining recent historiographic trends and phenomena like "motion," "interconnectedness," and "hybridity" in an effort to move away from a Euro-centric approach. Iriye will explore the fascination with non-national entities and transnational relations, rather than with more conventional international affairs understood in the geopolitical framework (world hegemony, regional order, balance of power, etc.). The increased importance of transnational relations places non-state actors and non-geopolitical themes, such as economic globalization, cultural exchanges, environmental issues, and human rights, at the forefront of the contemporary study of history. Iriye will argue this has created a more hybrid world, moving away from a geopolitically defined world order and toward a mixture of geopolitics and non-geopolitical phenomena.

Cushman's "Doctrinal Synergies and Liberal Dilemmas"

If you'd like to see where Barry Cushman’s Rethinking the New Deal Court began, you now can, as he has posted Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract as it appeared in the Supreme Court Review 1992 (1993): 235-93.  Here is the abstract:
The three decades spanning the years 1908 to 1937 saw a remarkable transformation of the Supreme Court's jurisprudence concerning the rights of workers to organize. In 1908, the Court held that a federal law prohibiting employers from discharging an employee because of his membership in a labor union violated the liberty of contract secured to the employer by the Fifth Amendment. In 1915, the Court similarly declared a state statute prohibiting the use of "yellow-dog" contracts unconstitutional. In 1937, by contrast, the Court upheld provisions of the Wagner Act prohibiting both discharges for union membership and the use of yellow-dog contracts. Thus, the doctrine of "liberty of contract" no longer operated as a bar to legislation protecting the rights of workers to organize for purposes of collective bargaining.

The tale of the yellow-dog contract is naturally of interest because of its centrality to the development of American labor law and the decline of substantive due process. Beyond this, however, the story can be seen as a critical chapter in the development of American liberal legalism. The yellow-dog contract provoked something of a crisis in liberal discourse, because it brought into conflict two time-honored liberal values: liberty of contract and freedom of association. Recent scholarship has shown how "liberty of contract" was forged from such diverse liberal resources as Adam Smith's liberal political economy, Jacksonian liberalism, and the Northern "free labor" ideology that animated the abolitionist movement. Freedom of association enjoyed no less venerable liberal pedigree. Its protection against government infringement enshrined in the First Amendment, the freedom to affiliate with the lawful organizations of one's choice had been a widely embraced feature of American culture since well before the Civil War. Indeed, the passion of the American people for voluntary associations had attracted the fascination of Alexis de Tocqueville during his journey to the United States in the 1830s.

The yellow-dog contract exposed a tension between these two values of American liberalism. Opponents of the yellow-dog contract contended that the employer was using his constitutionally protected liberty of contract as a means to inhibit his employee's freedom to associate with his fellow workingmen. In characteristically liberal terms, the answer to this charge would turn on whether the employee was seen as having surrendered his freedom of association voluntarily, or as a product of coercion. The answer to this question would in turn depend upon assumptions about the structure of the labor market, and these assumptions would change over time. Beneath this discourse, I believe, lay concerns about whether labor unions were properly analogized to the other sorts of voluntary associations celebrated by American liberalism. As those concerns became increasingly allayed over time, labor's advocates could more successfully appropriate the liberal rhetoric of associational freedom.

Yet the story of the demise of the yellow dog contract cannot be adequately understood by looking at cultural context alone. In order to understand the voting patterns of the various Justices and the views they expressed in their opinions, one must pay close attention to the development of doctrine. A study of the doctrine pertaining to the yellow-dog contract reveals to us the difficulties with the notion that substantive due process and constitutional federalism were merely convenient weapons in the arsenal of a reactionary Court devoted to the maintenance of financial and industrial elites. Instead, we may see the weblike, interconnected structure of "laissez-faire constitutionalism." The doctrinal manifestations of Commerce Clause and due process jurisprudence were not simply free-floating rules that could be changed or abandoned without consequences extending beyond the particular doctrine involved. These areas of doctrine were developmentally intra- and interdependent. Modifications of one substantive due process doctrine entailed changes in another; developments in due process and Commerce Clause doctrine produced mutual, synergistic ramifications. In short, doctrinal commitments made by Justices in one area of doctrine entailed corresponding commitments in other doctrinal domains. In order to follow the trail of the yellow dog contract, we must trace these ripple effects across structurally related areas of doctrine.

Exhibit: Student Life at Harvard Law

Via H-Law, we have word of a new exhibit at the Harvard Law School Library, Life Beyond the Law: Exploring Student Life Outside the Harvard Law School Classroom.
Over the years, students have found respite from their studies in activities both solitary and social, on campus and off. Life Beyond the Law: Exploring Student Life Outside the Harvard Law School Classroom examines the experiences of Harvard Law School students from the mid-1840s to the present. It focuses on life outside the classroom along the themes of off-campus activities, leisure and the arts, and athletics. Largely told in their own words, this exhibit gives a glimpse into the lives of individual students whose experiences are captured in letters to friends and family, personal diaries, student publications, and photographs.

Curated by Jane Kelly and Lesley Schoenfeld, "Life Beyond the Law" will be on view in the Caspersen Room, Langdell Hall fourth floor, 9:00 AM to 5:00 PM through December 12, 2014.

Triangle Legal History Seminar

Here is the schedule for 2014-2015 for the Triangle Legal History Seminar.  All meetings from 4-6 at the National Humanities Center, unless otherwise noted.

September 12: John Wertheimer, Professor of History, Davidson College
“Before Femicide: Domestic Abuse and the Law in Mid-Twentieth-Century Guatemala”

 October 10: Kunal Parker, Professor of Law, University of Miami
"How Law Should Avoid Mistakes: Alexander Bickel's Jurisprudence of Mood."

November 14: Julie Mell, Assistant Professor of History, North Carolina State University
“The Legal Construction of the Jewish Usurer in Medieval Europe”

December 5: Richard Paschal, George Mason University Law School
“Jim Crow Laws in North Carolina” (presented at UNC-Law)

January 16: Taisu Zhang, Assistant Professor of Law, Duke University
“The Limited Reach of Limited Liability in Qing and Republican China”

February 13: Timur Kuran, Professor of Economics and Political Science, Duke University
“The Financial Power of the Politically Powerless: Credit Markets and the Rule of Law in Ottoman Istanbul”

February 27: Holly Brewer, Professor of History, University of Maryland
“Slavery and Sedition” (TLHS cosponsoring this meeting of the Triangle Early American History Seminar)

March 20: Amanda Hughett, Doctoral Candidate, Duke University Department of History
“Silencing the Cell Block: Prison Litigation, Federal Courts, and the Creation of North Carolina's Inmate Grievance Commission”

April 10: Emily Margolis, Doctoral Candidate, Duke University Department of History
“’Demon in the Shape of a Woman’: The Project of Disciplining Property-holding Married Women in the Antebellum American South”

Monday, September 22, 2014

Scott Discusses "Reining in the State" at the National Archives

At the National Archives in Room G-25, Research Center (Penn. Ave. Entrance), on Thursday, September 25, at noon, the National Archives will host Katherine Scott, Assistant Historian in the Senate Historical Office, as she discusses her book, Reining in the State: Civil Society and Congress in the Vietnam and Watergate Era (2013). An H-Net review is here.

Exhibit: The Sam Sheppard Case at BAY Arts

This is your last week to see A Strange Holiday: An Aesthetic Examination of the Sam Sheppard Case at BAY Arts, in Bay Village, Ohio.
In the early morning hours of July 4, 1954, Marilyn Sheppard was brutally murdered in her Bay Village home.  Twenty six days later, her husband, Dr. Sam Sheppard was arrested on the porch of his parents house and charged with her murder.  The house where Sam Sheppard was arrested is now part of the BAYarts campus, known as the Fuller House.  It is also home to the Sullivan Gallery which will host this exhibition.  Sam Sheppard denied any involvement in his wife's murder, describing his own struggle with a bushy-haired assailant.  The sensationalized trial became international news, with ramifications that still reverberate in the media, pop culture and the U.S. Supreme Court.
Update: More.

Mayeux on Ineffective Assistance of Counsel before Powell

Sara Mayeux, a Sharswood Fellow at the University of Pennsylvania Law School, has posted Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel, which appears in the Iowa Law Review 99 (2014): 2161-84.  Here is the abstract:    
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

Brown at 60 (at IU Bloomington)

Indiana University-Bloomington Maurer School of Law announces Brown at 60 a series of “lectures, workshops, and film screenings commemorating the 60th anniversary of the Supreme Court's landmark decision.”

Thurs., Sept. 25, Noon
Moot Court Room    
Jerome Hall Lecture: "Parents Involved and the Struggle for Historical Memory"
Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School.  More on Professor Tushnet's lecture is here.

Weds., Oct. 15, Noon
Moot Court Room    
Harris Lecture: "The Broken Promise of Brown"
Julian Bond, Chairman Emeritus, NAACP; Professor Emeritus, University of Virginia

Thurs., Oct 16, 7 p.m.
IU Cinema    
Screening of portions of Eyes on the Prize
Introduced by Julian Bond

Thurs., Oct. 30, 4 p.m.
Room t/b/a    
The Last War: The End of Racial Equality in Three Moves
Guy-Uriel Charles, Charles S. Rhyne Professor of Law, Duke University School of Law

Law and Society Workshop
Thurs., Nov. 13, 4 p.m.    
The Unspoken Harms of Racial Segregation and Discrimination: What Brown Failed to Say
Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law, University of Iowa College of Law

Law and Society Workshop
Weds., Dec. 3, Noon
Moot Court Room    
School Desegregation in the Heart of Dixie: Mississippi Then and Now
John Dittmer, Emeritus Professor of History, DePauw University

Mon., Dec. 8, 7 p.m.
IU Cinema    
Screening of American Promise
Introduced by Indiana University faculty

Sunday, September 21, 2014

Sunday Book Roundup

This week The Daily Beast marks the 40th anniversary of The Power Broker: Robert Moses and the Fall of New York (Vintage) by Robert Caro by discussing the book, its history, and its author. In case you're wondering...
"In his Manhattan office on 57th Street, Caro’s desk is largely uncluttered—a lamp, some legal pads, his Smith Corona 210 electric typewriter. “This is a 210, but the 220 is basically the same,” Caro said, “so I use the Smith Corona 210 or 220. They stopped making these like 25 years ago, so if a part breaks you have to cannibalize.” There is no computer in his office; he barely ever uses one and doesn’t have an email address."
New Books in American Studies interviews Richard Starr about his new book, Equal as Citizens: The Tumultuous and Troubled History of a Great Canadian Idea (Formac).

In Salon there is a review of Donald B. Kraybill's Renegade Amish: Beard Cutting, Hate Crimes and the Trial of the Bergholz Barbers (John Hopkins University Press).
"The beard-cutting attacks on the Amish elders were later portrayed by the defendants and their counsel as along the same line: “compassionate” interventions meant to force the victims to repent their sins — sins that largely consisted of not agreeing with Mullet. Neither the jury nor the judge bought that argument. The trial, which involved 16 defendants, nine victims, five separate attacks and a total of 90 different charges, presented many puzzles. Does forcibly cutting someone’s beard, however much it might mean to them spiritually, constitute “disfigurement”? It would have to if the attacks were going to qualify under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009."
H-Net posted a review of another book at the intersection of religion and law, Christine Talbot's A Foreign Kingdom: Mormons and Polygamy in American Political Culture, 1852-1890 (University of Illinois Press).

Books & Ideas has a new review (written in English) of Antoine Coppolani's biography (written in French) of Richard Nixon (Fayard).

The LA Review of Books takes a look at the value of the humanities in a multi-book review including Hillary Jewett and Peter Brooks's The Humanities in Public Life (Fordham University Press).

In The Washington Post, Robert Darnton's Censors at Work: How States Shaped Literature (Norton) is reviewed.
"In this provocative study of censorship as it was practiced in three different places at three different times, the distinguished scholar Robert Darnton argues that it can be a considerably subtler and more nuanced undertaking than it is generally assumed to be. He has not written a defense of censorship — far from it — but he emphasizes that when the state sets itself up as arbiter of what goes into books and what does not, the results are not always predictable, but are sometimes surprising and even — occasionally — beneficial to authors and their publishers."
Erwin Chermerinsky's latest book, The Case Against the Supreme Court (Viking), is reviewed in the LA Times this week.
"Beyond the proposed reforms, Chemerinsky says he yearns for more honest and candid talk about the court. He smacks Chief Justice Roberts and Justice Sonia Sotomayor for telling the Senate they would simply follow the law, or "call the balls and strikes," as Roberts put it.
"It is time to get past the façade of the marble columns and the mystique of justices who appear in robes from beyond heavy curtains," he writes. The justices do not "find" the law hidden deep in the text, he says. Rather, they decide the law and do so based on their own values and understandings. "If we see the Court in this way, we can begin to hold it accountable for its own decisions," he concludes."
Last, but not least, The Federal Lawyer's latest issue is out with several new reviews--all available here. Books reviewed include Patrick Weil's The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press) and In This Timeless Time: Living and Dying on Death Row in America (University of North Carolina Press) by Bruce Jackson and Diane Christian.

Saturday, September 20, 2014

Weekend Roundup

  • New from Quid Pro Books is a republication of Marc Galanter’s Why the Haves Come Out Ahead: The Classic Essay and New Observations, on the occasion of the fortieth anniversary of Galanter's “canonical, much-cited article.”  The book includes almost 90 pages of new commentary and applications by Galanter, Robert W. Gordon (Stanford), and Shauhin Talesh (UC Irvine).
  • We learned today that Patti Minter, longtime chair of the ASLH's Membership Committee, has fought the good fight long enough and will not be seeking another term as faculty member on the Board of Regents of Western Kentucky University.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Lowe Asks, What if Great Britain Had Let the American Colonies Leave with Just a Vote?

[Here's a guest post from Jessica K. Lowe, University of Virginia School of Law, "What if Great Britain Had Let the American Colonies Leave with Just a Vote?"]

Yesterday’s vote in Scotland has me thinking about counterfactuals:  what if, in 1776, the thirteen mainland American colonies had been able to sever their ties with Great Britain by a vote, instead of war?  Yes, I realize that is an unlikely hypothetical, but humor me for a moment: how might a bloodless revolution at the ballot box have changed the course of American history?  

The vote, of course, would have come from only a small portion of the real population, since the political franchise was typically limited to white male property owners.  And it would have probably had to come from the thirteen state assemblies – unless, of course, the government in London had decided to recognize the Continental Congress and let them vote on the question, and simply accepted their Declaration of Independence as the final word.      

Nonetheless, what if the question had ended there – and, with the issuing of the Declaration, King George had waved goodbye to his colonies and the many royal governors had peacefully embarked on the long voyage home?  Here are a few thoughts.

First: social mobility and democratization.  While the Continental Army drew from the ranks of the colonial elite for its officers – not just George Washington, but also many others – it in a sense replicated previously existing social status.  But, at the same time, the Army also opened up avenues for advancement for highly able men of less exalted backgrounds – General Daniel Morgan, hero of the Battle of Cowpens, is an example.  A backwoods wagon driver from western Virginia, by the end of the war Morgan, known for his “sharpshooter” troops from Virginia’s frontier, was a Brigadier General.  Officers from various parts of the country also formed bonds with each other, bonds which they worked to maintain after the war by organizations like the Society of the Cincinnati.  And historians like Gordon Wood and Allan Kulikoff have argued that over the course of the war America moved towards a more democratic, egalitarian society, through political ideas and through violence.  Plus, the war itself expelled a number of Loyalists.  With no war, then, there would have been none of the associated upheaval or forging of cross-country connections.  So no war might have meant an (even less) democratic America – a condition that would have perhaps had long term consequences for the character of the nation.

Second:  debt.  On the other hand, war brought debt – lots of it.  State governments and the Continental Congress issued various types of paper (certificates, bonds, etc.) to pay soldiers, pay for supplies, and more.  After the war, desperate holders of this paper sold it for a fraction of its value to speculators, who then, ultimately, began to receive payments once the various governments began to buckle under pressure to pay their debts.  As historian Woody Holton has argued, the pressure to pay those debts and the taxes associated with it led to an economic climate that was very hard on the (resentful) farmers and artisans.  This led, in large part, to some of the tumult of the 1780s, when state legislatures sought to relieve their burdened populace through measures like paper money; there was then a backlash against the legislatures, which is linked to the move to establish a stronger federal government.  Without war, there would be no debt; without debt, would there be a Constitution?  Would there have been other demand for a strong central government? Or would the weak central government of the Articles of Confederation have limped on?

Third:  a bigger country.  Would other colonies have joined up, if freedom meant a vote instead of a bloody battle?  Bermuda at least made noises about supporting the rebellious colonies, so there might have been at least one more.  And who doesn’t want an extra island? 

Fourth: slavery.  This is hard.  As historians have shown, during the Revolutionary War some American slaves sought to win their freedom by escaping to the British.  How this worked – and the British response – is complicated, but war opened up a door to seek freedom, one that was quickly shut afterwards.  Some historians have also talked about the influence of revolutionary rhetoric on struggles for black liberation in the U.S. and Caribbean.  At the same time, the post-war period saw what we historians call the first emancipation – the move to emancipation in the new nation, mostly in more northern states, although some noises were made in the border states (to use an anachronistic term) as well.  My hunch is that, without the war, slavery would have remained even more entrenched, although that would depend on how one sees the causes of emancipation (political, or more economic), which is something else scholars have argued about.
As with any counterfactual, of course, this paints with a broad brush and doesn’t begin to scratch the surface.  But it does seem to me that, even apart from independence itself, the Revolutionary War was good for America.  What do you think?