Friday, October 31, 2014

Law and Social Science Dissertation Fellowship & Mentoring Program, 2015-2017

[And here is the second announcement.]

Law and Social Science Dissertation Fellowship & Mentoring Program, 2015-2017

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 Science. Only U.S. citizens and permanent residents are eligible to apply.

Application Materials Required
Applicants should submit:  (1) a 1-2 page letter of application; (2) a 2-3 page description of a research project or interest that relates to law and inequality (broadly defined) with a statement of how the applicant became interested in the research topic; (3) a resume or curriculum vitae; (4) a writing sample (a paper written for a graduate-level course or dissertation prospectus); and (5) three letters of recommendation from faculty members (including one from the faculty member who will serve as the departmental liaison – typically the applicant’s advisor).  If you are also applying for the American Bar Foundation Doctoral Fellowship, please indicate so in your cover letter.

Applications for this fellowship must be received no later than December 1, 2014.

Please submit your complete application for the LSS Fellowship online.  Direct all questions or concerns relating to your application submission to Amanda Ehrhardt, (312) 988-6517,

ABF Doctoral/Post-Doctoral Fellowship Program in Law and Social Science

[Here is the first of two announcements of fellowships at the American Bar Foundation.]

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.

Fellowships are awarded for 12 months, beginning, September 1, 2015.

Fellowships are held in residence at the American Bar Foundation.  Appointments to fellowships are full time.  Fellows are expected to participate fully in the academic life of the ABF so that they may develop close collegial ties with other scholars in residence.

Application Process
Applications must include:  (1) a dissertation abstract or proposal with an outline of the substance and methods of the research; (2) two letters of reference, one of which must be from a supervisor of the dissertation; and (3) a curriculum vitae.  In addition, at the applicant’s option, a short sample of written work may be submitted.

Applications for this fellowship must be received no later than December 15, 2014.

Please apply online. Direct all application questions or concerns to Amanda Ehrhardt, Administrative Associate for Academic Affairs and Research Administration, American Bar Foundation, (312) 988-6517,

Sheley on Adultery and Sovereignty in Great Britain

Erin L. Sheley, George Washington University Law School, has posted Adultery, Criminality, and the Myth of English Sovereignty, forthcoming in Law, Culture and the Humanities 11 (2015).  Here is the abstract:
This article argues that in Britain over the course of the eighteenth and nineteenth centuries, the understanding of adultery as a tort was complicated by an accompanying discourse of what I will call “quasi-criminality.” Specifically — while formally trivialized — adultery remained linked to a threat to British kingship. The tension between the weight of relevant monarchical history and the absence of contemporary criminal enforcement created a new cultural narrative about adultery which attempted, itself, to serve a penal function. Examining the development of this discourse alongside the relevant law illuminates the complex social process through which public and private wrongs become distinguished — or conflated.
Hat tip: Legal Theory Blog

Ernst, Cherba & Sprengelmeyer's "Wadena Rock Festival"

I note the publication of The Wadena Rock Festival: From Courtrooms to Cornfields, by Daniel P. Ernst, Constance R. Cherba, and Victor V. Sprengelmeyer.  The Daniel Ernst in question is my father, a lawyer who practiced primarily in Dubuque, Iowa. Constance Cherba is a talented writer; Victor Sprengelmeyer was my father’s law partner.  (None of them is related to the current Republican candidate for Iowa’s US Senate seat, so please don’t ask them or their offspring.) 

In 1970, the year after Woodstock, promoters planned a rock festival near a small town in northwestern Illinois.  The ad copy continues:
The excitement began when the state of Illinois blocked a rock festival in Galena. The promoters crossed the Mississippi and scoured northeast Iowa for a suitable site, finally buying a farm near the tiny town of Wadena. Meanwhile, attorneys took up the cause in the courtrooms when Iowa tried to stop the festival. Tension built as some 40,000 members of the long-haired generation descended on the farm. Would the festival go on as scheduled? That became the million dollar question.
The book consists of (1) Sprengelmeyer’s account of how he came to represent the organizers and the hectic maneuvering to put on the concert; (2) a very readable narrative stitched together from the interviews of various participants; (3) illustrations; and (4) capsule descriptions of the bands that performed and some that didn’t.  Among the illustrations is the poster below right, designed for the original venue.  A copy of it graced my big sister’s bedroom door long after the event.

In keeping with the adage “If you can remember the Sixties, you weren’t there,” none of the interviewees has a very clear memory of the performances, which are not really described in the book.  The musicians’ recollections are particularly hazy, although Corky Siegel ventures that his band probably asked to go on early “so we could avoid the traffic.”  (I cannot really imagine myself as a rock musician, but if I could, I imagine I’d be one very much like Mr. Siegel.) 

More vivid, for me at least, is the view of a small-town bar and its first encounter with the greening of America.  We hear, surely in an echo of war stories told at a favorite lunch spot, lawyers sizing each other up.  The state attorney general was a blusterer with more political aspirations than legal ability; Michael A. Stapleton, another of my father’s partners and a Georgetown law alumnus, was a quick-witted, pugnacious advocate, happy to “call bullshit” when the opportunity arose.  We also see the lawyers looking on in fascination as a younger generation effortlessly sloughed off social conventions their elders thought permanent.  I don’t recall that any of the lawyers “got greened.”  Even in the Seventies, Dubuque was no place for a William Kunstler.  What I do recall is a certain equanimity about social and cultural change.  After accurately predicting that western civilization would survive the gathering of thousands of drug-addled youths on a cornfield in northeastern Iowa, my father and his partners were inclined to take in stride whatever else a younger generation brought their way.

Thursday, October 30, 2014

Legal Discourse in Vichy France and Nazi Germany

Today!!   Hat Tip: H-Law

Hackney on Calabresi and Contemporary American Legal Theory

James R. Hackney, Jr., Northeastern University School of Law, has posted Guido Calabresi and the Construction of Contemporary American Legal Theory, which appears in Law and Contemporary Problems 77 (2014): 45-64.  Here is the abstract:    
This article was written as a contribution to a symposium honoring Judge Guido Calabresi on
Judge Guido Calabresi (Credit)
the occasion of his 80th birthday, and recognizing his contributions to law and economics. It situates Judge Calabresi’s academic writings, starting with his initial contributions to law and neoclassical economics, against the broader backdrop of American legal theory. The article begins with a brief biographical sketch highlighting the author’s personal connection with Judge Calabresi. It then lays out the historical relationship between legal realism and law and neoclassical economics (commonly referred to as law and economics). This provides the background for Judge Calabresi’s initial major intervention—in the form of his historic book, The Costs of Accidents—into the discourse of American legal theory. The article then discusses what the author argues is a fundamental axis around which debates concerning the meaning of law revolve: the science-politics divide. This sets the groundwork for articulating the ways in which the three dominant strands of legal theory in the 1980s—law and economics, critical legal studies, and liberal-rights theory—were centered on the issue of whether law (and legal theory) was fundamentally a political or scientific enterprise. The article ends with an extended discussion of the ways in which Judge Calabresi’s post-The Costs of Accidents writings, too often overlooked, respond to the science-politics debate in a philosophically pragmatic way that reflects (and has paved the way for) the current state of American legal theory.

Tirres on Collins, "Illegitimate Borders"

Over at JOTWELL, Allison Tirres (DePaul University College of Law) has posted an appreciative review of Kristin A. Collins, "Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation." The article appeared in Volume 123 of the Yale Law Journal (2014). Here's an excerpt from Tirres's essay:
In her article “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Kristin Collins looks in depth at the origins, interpretations, and practices of derivative citizenship over the course of the nineteenth and twentieth centuries. In doing so, she not only systematically destroys the simplistic argument provided by the INS in the Nguyen case, but also reveals the deeply racialized nature of jus sanguinis. She demonstrates that throughout much of our history, derivative citizenship was moored in intertwined visions of women’s subordinate place in the family and of nonwhite persons’ subordinate place in the polity. Courts, agencies, administrators and consular officials across decades found ways to interpret and apply the law of derivative citizenship to favor white children over nonwhite children. Sometimes these efforts were explicit but other times they were hidden. It takes a skilled and capable historian like Collins to be able to dig beneath the surface of decades of government documents and court records and put the pieces of the jus sanguinis puzzle together.
Read on here.

Wednesday, October 29, 2014

Parks on the Mississippi Legislative History Project

About a year ago, Nick Parrillo put up a guest post here that commenced, “The biggest obstacle to writing American legal history, in my view, is the dearth and inaccessibility of records of state legislative deliberations.”  Now comes Stephen Parks, Mississippi College School of Law, and his SSRN paper Bringing Mississippi's Government into the Homes of its Citizens: The Mississippi College Law Library's Legislative History Project, which appeared in Mississippi Libraries 76 (2013).  Here is the abstract:    
In an effort to promote and describe the Legislative History Project, this short article is divided into three sections. The first section will discuss the lack of legislative history materials in the state of Mississippi. The second section will discuss the recent history of live webcasting of the Mississippi Legislature. Lastly, the third section will introduce and describe in great detail the Legislative History Project and its usefulness to not only the legal profession in Mississippi but also to the ordinary citizen interested in the workings of state leaders.

The Bonfield Fellowship at Iowa Law

[We have the following announcement.]

The Law Library welcomes applications for its newly-created Bonfield Fellowship for a visiting researcher.

The aim of the Bonfield Fellowship is to bring a faculty member at another institution to the University of Iowa, to spend a brief time in residence conducting research in the Law Library’s world-class collections. The fellowship is named in honor of Professor Arthur Bonfield, who directed the Law Library from 1985 to 2014.

The University of Iowa Law Library is among the three largest law school libraries in the United States. As of June 30, 2014, the Law Library had nearly 1.2 million hardcopy, microform, and electronic titles, and nearly 1.4 million hardcopy volumes and microform volume equivalents.

The Law Library’s holdings on the law of the United States and all of its states and territories, Great Britain, and the present and former members of the British Commonwealth are exceptionally strong, as is its collection of EU, UN, and WTO materials. It also has one of the most comprehensive collections in the U.S. of international and comparative law materials, and excellent collections from many non-English-speaking countries, including Argentina, Brazil, China, France, Germany, India, Mexico, and Russia. The Rare Books Collection includes the Hammond Collection of 1,200 English and Civil law materials and the Leist Collection of 3,000 volumes of German, Greek, Roman, Byzantine, and Canon law. The Law Library also has strength in Islamic and Jewish law.

The Bonfield Fellowship will provide:
  • Round-trip economy airfare for the Fellow between the Fellow’s home city and the Cedar Rapids/Iowa City airport;
  • Hotel accommodation for the Fellow in Iowa City for up to one week;
  • A student research assistant during the Fellow’s period of residence; and
  • A lockable faculty carrel in the Law Library equipped with a desktop computer.
While in residence, the Bonfield Fellow will be expected to:
  • Conduct scholarly research using the Law Library’s world-class collections;
  • Participate regularly at the Law Faculty lunch table;
  • Present a work in progress at an Iowa Legal Studies Workshop; and
  • Participate in a curricular or extracurricular law student event.
Candidates for the Bonfield Fellowship may be self-nominated or may be nominated by a member of the University of Iowa Law Faculty. A nomination consists of the candidate’s CV, a statement of the candidate’s expected research while in residence, and a general indication of the candidate’s proposed dates of residence. The Fellow’s period of residence should be within the academic year. In 2015-16, the academic year begins on August 25 and ends on April 22.

We anticipate that one or two Bonfield Fellow(s) will be in residence in 2015-16. Nominations must be received by February 1, 2015, and should be sent by e-mail to:

Prof. Thomas Gallanis
Associate Dean for Research (Director of the Law Library)

New Release: Bartoloni-Tuazon on "George Washington and the Presidential Title Controversy of 1789"

New from Cornell University Press: For Fear of an Elective King: George Washington and the Presidential Title Controversy of 1789 (2014), by Kathleen Bartoloni-Tuazon (First Federal Congress Project). A description from the Press:
For Fear of an Elective King is Kathleen Bartoloni-Tuazon's rich account of the title controversy and its meanings.
In the spring of 1789, within weeks of the establishment of the new federal government based on the U.S. Constitution, the Senate and House of Representatives fell into dispute regarding how to address the president. Congress, the press, and individuals debated more than thirty titles, many of which had royal associations and some of which were clearly monarchical.
The short, intense legislative phase and the prolonged, equally intense public phase animated and shaped the new nation's broadening political community. Rather than simply reflecting an obsession with etiquette, the question challenged Americans to find an acceptable balance between power and the people’s sovereignty while assuring the country’s place in the Atlantic world. Bartoloni-Tuazon argues that the resolution of the controversy in favor of the modest title of "President" established the importance of recognition of the people's views by the president and evidence of modesty in the presidency, an approach to leadership that fledged the presidency’s power by not flaunting it.
How the country titled the president reflected the views of everyday people, as well as the recognition by social and political elites of the irony that authority rested with acquiescence to egalitarian principles. The controversy’s outcome affirmed the republican character of the country’s new president and government, even as the conflict was the opening volley in increasingly partisan struggles over executive power. As such, the dispute is as relevant today as in 1789.
A few blurbs:
"For Fear of an Elective King is a tightly focused and impressively researched book about the controversy over what to call the president during the opening days of the first Washington administration. Kathleen Bartoloni-Tuazon has examined an extraordinary array of materials on the question of titles more generally as well as on the debate itself in its legislative and public phases."—Peter S. Onuf

"Kathleen Bartoloni-Tuazon demonstrates that the debate over the proper title for the nation's new national executive wasn't trivial. For Fear of an Elective King suggests a variety of ways in which the debate touched on broader questions about the fundamental nature of the new nation's new republican government."—Joanne Freeman
More information is available here.

Tuesday, October 28, 2014

Axtell Reviews Johnson's "River of Dark Dreams"

Matthew Axtell, Judicial Fellow, US Supreme Court, has posted a review essay of Walter Johnson’s River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (2013).  It’s entitled Towards a New Legal History of Capitalism and Unfree Labor: Law, Slavery, and Emancipation in the American Marketplace, and it is forthcoming in Law & Social Inquiry 40 (Winter 2015).  Here is the abstract:    
New work on the "history of capitalism" reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson’s book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (2013) makes this argument with force, utilizing the concept of "slave racial capitalism" to suggest how race-based slavery constituted a necessary component of early American economic expansion. Using Johnson’s framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely "slave racial capitalist" regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.

Whitman on Penal Modernism

The latest issue of the online journal Critical Analysis of Law includes a symposium on The Case for Penal Modernism: Beyond Utility and Desert, by James Q. Whitman, Yale Law School.  The symposium includes comments by Darryl K. Brown and Lindsay Farmer, with a response by Professor Whitman. Here is the abstract:
Our literature uniformly describes American criminal law as the product of a great clash between utility and desert. In the mid-twentieth century, the literature explains, utilitarianism dominated in American criminal law, in the form of what is sometimes called penal modernism, which emphasized incapacitation and rehabilitation. Beginning in the 1970s, however, America witnessed a revolt against penal modernism, as retributivists demanded a criminal law that respected the central importance of blame.

That account of American criminal law is repeated so often and so confidently that it may seem obviously true. Yet this article argues that it is wrong, in ways that have led to deep misconceptions about criminal law. The clash between retributivism and penal modernism is not in fact a clash between utility and desert, but a clash between two different understandings of the place of blame in criminal law. Penal modernists were the great advocates of individualization: they argued, not that blame has no place in criminal law, but that we must blame offenders not offenses. Correctly understood, penal modernist individualization represents a serious challenge to retributivist approaches, and offers the foundation for a different and healthier moral attitude toward the criminal law.

AHA Littleton-Griswold Prize to Dauber, "The Sympathetic State"

The American Historical Association has announced the winner of the 2014 Littleton-Griswold Prize (given annually to "the best book in any subject on the history of American law and society, broadly defined"):  The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (University of Chicago Press, 2013), by Michele Landis Dauber (Stanford Law School). (We've mentioned the book previously, here.)

For a full list of the 2014 prize winners, follow the link.

Monday, October 27, 2014

Making Money by Chris Desan

Oxford University Press announces the publication of Making Money: Coin, Currency, and the Coming of Capitalism by Chris Desan (Harvard Law; co-founder, Program on the Study of Capitalism). Here is the publisher's abstract
of the book:
Money travels the modern world in disguise. It looks like a convention of human exchange - a commodity like gold or a medium like language. But its history reveals that money is a very different matter. It is an institution engineered by political communities to mark and mobilize resources. As societies change the way they create money, they change the market itself - along with the rules that structure it, the politics and ideas that shape it, and the benefits that flow from it.  One particularly dramatic transformation in money's design brought capitalism to England. For centuries, the English government monopolized money's creation. The Crown sold people coin for a fee in exchange for silver and gold. 'Commodity money' was a fragile and difficult medium; the first half of the book considers the kinds of exchange and credit it invited, as well as the politics it engendered. Capitalism arrived when the English reinvented money at the end of the 17th century. When it established the Bank of England, the government shared its monopoly over money creation for the first time with private investors, institutionalizing their self-interest as the pump that would produce the money supply. The second half of the book considers the monetary revolution that brought unprecedented possibilities and problems. The invention of circulating public debt, the breakdown of commodity money, the rise of commercial bank currency, and the coalescence of ideological commitments that came to be identified with the Gold Standard - all contributed to the abundant and unstable medium that is modern money. All flowed as well from a collision between the individual incentives and public claims at the heart of the system. The drama had constitutional dimension: money, as its history reveals, is a mode of governance in a material world. That character undermines claims in economics about money's neutrality. The monetary design innovated in England would later spread, producing the global architecture of modern money.
The book's Table of Contents is here.  Making Money is available for pre-order now; it will ship in mid-November upon its official release date.  

Gerhardt and Stein on the Politics of Federal Judicial Selection, 1789-1861

Michael J. Gerhardt, University of North Carolina at Chapel Hill School of Law, and Michael Ashley Stein, William & Mary Law School, have posted The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861, which is forthcoming in the Iowa Law Review.  Here is the abstract:
Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.

This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.

Sunday, October 26, 2014

Sunday Book Roundup

  • From The New Republic: The Book --
  • From the Washington Post

Saturday, October 25, 2014

Call for Applications: Princeton LAPA fellowship - NOV. 3 DEADLINE

Via H-Law, we the following announcement:
Princeton University’s Program in Law and Public Affairs (LAPA) invites outstanding faculty members, independent scholars, lawyers, and judges to apply for appointments as resident Fellows for the academic year 2015-2016. We anticipate naming up to six fellows who are engaged in substantial research on topics broadly related to law and public affairs or law and normative inquiry, including one early career scholar working at the intersection of law and humanistic inquiry. Successful candidates will devote an academic year in residence at Princeton to research, discussion, and scholarly collaboration.  Applicants must have a doctorate, J.D. or an equivalent professional postgraduate degree.  Further information and the electronic application can be found at
As we've mentioned previously, the LAPA program has been very supportive of legal historical work. Previous LAPA fellows include Michelle McKinley (Oregon Law School), James Whitman (Yale Law School), Daniel LaChance (Emory University), David Lieberman (UC Berkeley School of Law), Camille Robcis (Cornell University), Steven Wilf (University of Connecticut), Christopher Beauchamp (Brooklyn Law), Susanna Blumenthal (University of Minnesota), David Sugarman (Lancaster University), Linda Przybyszewski (Notre Dame), and Sarah Barringer Gordon (University of Pennsylvania).

Weekend Roundup

  • Over at the website of the Library of Law and Liberty, Herman Belz (University of Maryland) has posted an essay "discussing papers presented at a conference on Beard held at the University of Virginia School of Law (published in the Summer 2014 issue of Constitutional Commentary) and a symposium on Beard in the Fall 2013 issue of American Political Thought." (Hat tip: Saul Cornell)
  •  From the New York Times Opinionator section: Timothy S. Huebner (Rhodes College) on "The Death of Taney."
  •  From Inside Higher Ed: a series of posts on a being a parent in graduate school. The first post is here.
  •  Devotees of the Green Bag will know that its annual Almanac and Reader includes “entertaining tidbits relating to some theme” that the editors hope readers will enjoy.  The theme for the next Almanac is the Sherlock Holmes story, The Adventure of the Norwood Builder.  Those interested in joining in the collective annotation of the story should consult the call for “Sherlockians” here.
  • Today's New York Times reports that files recently opened at the United Kingdom's National Archives reveal that for many years MI5 opened the mail, bugged the phones, and monitored the associates of the historians Eric Hobsbawm and Christopher Hill.  The associates included A. J. P. Taylor.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 24, 2014

Epps on the Fourteenth Amendment as a Second Founding

Garrett Epps, University of Baltimore School of Law, has posted Second Founding: The Story of the Fourteenth Amendment, which appeared in the Oregon Law Review 85 (2006): 895-912.  Here is the abstract:    
Settle back and let me tell you a brief version of the story I tell in my new book, Democracy Reborn - the story of the Fourteenth Amendment and its vital role in making our Constitution truly democratic.

The National Constitution Center in Philadelphia, which opened in 2003, is a magnificent shrine to our Constitution - part museum, part library, part meeting hall. After leaving the theater, if a visitor looks carefully, he or she may find a small placard that indicates that the Constitution was
ever-so-slightly changed during and after the Civil War. All three of the so-called Civil War Amendments are summarized on this one placard, and here is the entire discussion of the Fourteenth Amendment:

"The 14th defines U.S. citizenship, and includes all black Americans."

This summary represents the meaning of only twenty-eight of the Amendment's four hundred-plus words. And, at that, it does not summarize them correctly, as the Citizenship Clause, the first sentence of Section 1, contains no racial language. It includes not only black Americans, but any person born on American soil and subject to American jurisdiction. The Fourteenth Amendment goes on to specify a number of rights belonging to citizens and noncitizens, and the placard simply ignores this. The Fourteenth Amendment is the longest amendment ever placed in the Constitution, and, I will argue, the most important. But it is, alas, unsurprising that even those entrusted with celebrating our Constitution should be unclear about its text and its importance. Fourteenth Amendment amnesia is a national disease.

Americans know that they have constitutional rights. The Bill of Rights, the first ten amendments to the Constitution, is a source of national pride. Written by James Madison and enacted by Congress when George Washington was president, these amendments are our national legacy and an example to the world.

But relatively few Americans understand that, without the Fourteenth Amendment, the Bill of Rights would be no help to them in most of their dealings with government. That is because, as written by Congress and interpreted by the federal courts, the Bill of Rights originally applied only to the federal government. The first ten amendments barred "Congress" from abridging free speech, setting up a national religion, abridging "the right to bear arms," or requiring self-incrimination, but they left state governments perfectly free to do all those things, which many of them enthusiastically did. For most of us today, just as in the years before the Civil War, our dealings with government power are mostly with state police, prosecutors, regulators, and courts. "For most of us," an old legal saying points out, "the Constitution is the cop on the corner"-and that cop usually draws a state paycheck.

Fleming and McClain on Liberty

James E. Fleming and Linda C. McClain, Boston University School of Law, have posted Liberty, a forthcoming entry in the Oxford Handbook of the United States Constitution, ed. Mark Tushnet, Mark Graber, and Sanford Levinson.  Here is the abstract:
Credit: LC
"To secure the blessings of liberty," the Preamble to the US Constitution proclaims, "We the People . . . ordain and establish this Constitution." The Constitution is said to secure liberty through three principal strategies: the design of the Constitution as a whole; structural arrangements, most notably separation of powers and federalism; and protection of rights. This chapter focuses on this third strategy of protecting liberty, in particular, through the Fifth and Fourteenth Amendments. We first examine the several approaches taken to the "Incorporation" of certain basic liberties "enumerated" in the Bill of Rights to apply to the state governments. We then examine the protection of "unenumerated" substantive fundamental rights or liberties against encroachment by the state governments or the federal government. We distinguish three phases in judicial protection of fundamental rights or liberties: (1) from 1887 to 1937; (2) from 1937 to 1973; and (3) from 1973 to the present. We discuss the substantive liberties that the Court has recognized under the categories of privacy, autonomy, or substantive due process. On one view, this list is a subjective, lawless product of judicial fiat and the whole enterprise is indefensibly indeterminate and irredeemably undemocratic. The other view, which we defend, is that the list represents a "rational continuum" of basic liberties stemming from "the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny." Tracing the due process inquiry from Roe (1973) to Lawrence v. Texas (2003) reveals how the Court and individual justices have waged a contentious battle among three available conceptions of what constitutes a tradition: abstract aspirational principles, concrete historical practices, and a "rational continuum" or evolving consensus. Lawrence signaled a return to a conception of tradition as a rational continuum or evolving consensus of aspirational principles and, in 2013, the Court drew upon Lawrence’s understanding of liberty together with Romer v. Evans’s understanding of equality in United States v. Windsor, striking down Section 3 of the Defense of Marriage Act. This chapter also discusses the so-called double standard concerning judicial protection of economic liberties as distinguished from personal liberties, sketching several theories’ views regarding Lochner v. New York in relation to Roe. Another issue is the stringency of the protection of liberties under the Due Process Clauses. Rather than two rigidly-policed tiers of scrutiny, with strict scrutiny automatically invalidating laws and deferential rational basis scrutiny automatically upholding them. the leading due process cases protecting liberty and autonomy – from Meyer (1923) through Lawrence (2003) – map onto a continuum of ordered liberty, with several intermediate levels of review. The chapter concludes by addressing substantive and institutional criticisms of constitutional protection of liberty.

Casto on Robert H. Jackson and the FBI Suicide Squad

William R. Casto, Texas Tech University School of Law, has posted Advising Government Clients: Robert H. Jackson and the FBI Suicide Squad, which appears in The Public Lawyer 22 (2014).  Here is the abstract:    
In 1941, Attorney General Robert H. Jackson learned that President Franklin D. Roosevelt had given an informal green light to the creation of an FBI "suicide squad" that would act outside the law to ferret out foreign agents who were fomenting work slow-downs in the defense industry. Jackson immediately wrote this President a memorandum advising against the project. Although he noted in passing that the project was illegal, his advice was predominately based upon policy. He doubted the wisdom of the project. Jackson's advice to his President epitomizes the occasional duty of an attorney adviser to go beyond the law and provide policy advice to a government client.

Walker on Lewis Powell on Civil Disobedience

Anders Walker, Saint Louis University School of Law, has posted A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution, which is forthcoming in the University of Colorado Law Review.  Here is the abstract:
Lewis F. Powell, Jr. (LC)
This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell’s reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.

Thursday, October 23, 2014

Fleckner on Roman Business Associations

Andreas M. Fleckner, Max Planck Institute for Comparative and International Private Law, has posted Roman Business Associations, which is forthcoming in Roman Law and Economics, ed. Giuseppe Dari-Mattiacci.  Here is the abstract:
Roman businessmen could choose between three legal forms for joint business ventures: the societas, the societas publicanorum, and the peculium of a commonly held slave. None of these forms led to larger firms with publicly traded shares. The high level of instability is one of the key explanations: it was difficult under Roman law to commit capital in the long term and finance capital-intensive enterprises. The societas was inevitably liquidated following numerous dissolution events. Members could withdraw their money at any time; their private creditors were not barred from seizing common assets. The peculium was even more unstable: in addition to the dissolution events of the societas, the joint venture came to an end and all peculium items reverted back to the masters if the commonly held slave died. The societas publicanorum developed into a more stable institution over time. During the same period, however, its business almost disappeared. Why did Roman law fail to provide organizational forms that allowed businessmen to form large associations and commit capital in the long term? A closer analysis of Roman society suggests that reservations in the social and political setting rather than economic factors or oddities of Roman legal doctrine caused business associations to remain small and unstable. This is an important lesson from history, both for the theory of the firm and for the role that law plays in it.

Bonilla on Liberalism and Property in Colombia

Daniel Bonilla, Universidad de los Andes School of Law, has posted Liberalism and Property in Colombia: Property as a Right and Property as a Social Function, which appeared in the Fordham Law Review 80 (2011): 1135-70.  Here is the abstract:    
Liberalism has determined the structure of the property law regime in Colombia. A genealogical analysis of the legal forms of the recent past that define and regulate property provides evidence of three key periods in the creation and consolidation of the right to property in the country. These three moments revolve around different forms of interpreting and balancing three fundamental values in the liberal canon: autonomy, equality, and solidarity.

George C. Lamb Jr. Visiting Fellows in Regulatory Governance

[We have the following announcement.]

Rethinking Regulation at the Kenan Institute for Ethics at Duke University, in collaboration with Duke’s Trinity College of Arts and Sciences and the Fuqua School of Business, invites outstanding scholars of regulatory governance to apply for 1-2 residential George C. Lamb, Jr. Fellowships for the 2015-16 academic year. The Rethinking Regulation program is a multi-disciplinary community comprised of faculty members and graduate/professional students from many academic departments and professional schools at Duke, UNC-Chapel Hill, and North Carolina State University. The group’s members study and assess “regulation in action” – the evolving politics, operations, and culture of regulatory institutions, their interactions with regulated businesses and other interest groups, and normative frameworks for the evaluation of regulatory policy. Find out more [here].

In addition to pursuing their own research, Lamb Fellows will be expected to participate in Rethinking Regulation seminars and workshops, as well as Kenan Institute for Ethics workshops and seminars. They will also help shape a significant collaborative research project along with other members of the Rethinking regulation community. As part of that collaboration, Fellows will undertake some teaching responsibilities in Duke University’s Trinity College of Arts and Sciences and/or Fuqua School of Business – most likely co-teaching an advanced research seminar focused on subject matter of the collaborative research project, though other arrangements are possible. Fellows can come from any relevant academic discipline, including political science, public policy/administration, history, economics, sociology, cognitive psychology, anthropology, business management, law, environmental studies, risk analysis, and engineering.

Thematic Preferences for 2015-16

We especially welcome proposals from scholars with expertise or a strong emerging interest in one of the following two areas:

·         Retrospective review – assessment of regulatory rules, programs, strategies and agencies, examining what distinguishes successful from unsuccessful regulatory governance.

·         Adaptive regulation – strategies of regulatory governance that can appropriately cope with changing conditions and rapid processes of technological or organizational innovation, in contexts such as financial regulation, the oversight of advanced techniques of extracting fossil fuels (fracking, deep-sea drilling), nanotechnology, etc.

Fellowship Terms

We prefer proposals for the full academic year, but will consider applications for a single semester fellowship. All applicants should: possess a doctorate, J.D., or equivalent professional degree; be at least two years beyond their graduate training; and be based outside the Research Triangle area of North Carolina. All scholarly ranks are eligible. Residence in Durham is expected during the tenure of the fellowship. Lamb Fellows will receive office space at the Kenan Institute for Ethics, full Duke Library privileges, and a modest research account. Primary financial support, in the form of a fellowship grant, will vary according to individual circumstances. We anticipate offering grants equal to one-half of yearly or semester salaries, up to an annually set maximum amount, which may be less than half-salary for professors at the higher end of the compensation spectrum.

Application Process

Applicants should submit all of the following to Amber Díaz Pearson ( by
January 9, 2015:

  • A letter of application that describes the candidate's research areas and experience, ongoing projects, interest in collaborative research and teaching, and rationale for desiring a sustained period of engagement with Rethinking Regulation
  • A 2-3 page research proposal that details the individual work to be pursued during the term of the fellowship
  • A curriculum vitae
  • Two to four references - these should be individuals who can speak to the candidate's research expertise, experience in multi-disciplinary contexts, and capacity for/interest in collaborative academic work.
Selection Criteria

The Selection Committee, made up of scholars active in the Rethinking Regulation program, will
assess applications on the basis of:
  • The quality of their research and other achievement
  • The promise of their current research, especially in bridging disciplinary divides and informing ongoing regulatory policy debates
  • Their capacity for/interest in collaborative research, teaching, and writing
  • The fit between their expertise and the research priorities identified by Rethinking Regulation.
 An affirmative action and equal-opportunity employer, Duke University is committed to increasing the cultural and intellectual diversity of its academic community

Hovenkamp on Progressive Legal Thought

Herbert J. Hovenkamp, University of Iowa College of Law, has posted Progressive Legal Thought.  Here is the abstract:
A widely accepted model of American legal history is that "classical" legal thought, which dominated much of the nineteenth century, was displaced by "progressive" legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

We generally identify classical legal thought with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not only simplification and arrangement, but also "formalism," in the sense that it presented the law as a complete system. At the risk of some caricature, the "data" of this system were legal decisions -- a model that reflected not only the penchant for classification but also devotion to the idea that law is essentially judge made and that it evolves over long historical development. Historicism became an important attribute of legal classicism. The authors held up as exemplars are people like Gilded Age Harvard Law Dean Christopher Columbus Langdell and Francis Wharton, the Episcopal priest and prolific legal writer who produced commentaries on many legal subjects. While classical legal thought was generally anti-statist on economic matters, it was not libertarian. In fact, it advocated heavy state regulation of morals even as it supported liberty of contract without state interference as a general matter. The anti-legislative bias of legal classicism readily accommodated doctrines such as economic Substantive Due Process, which originated mainly in the state courts and was an important part of Supreme Court doctrine during the first four decades of the twentieth century.

The classical-to-progressive model of historical explanation is far too narrow to account for the profound changes in American law that occurred during the decades straddling 1900. These changes were embraced by a wide spectrum of jurists and legal thinkers, not merely by the subgroup that styled themselves "progressive." Classical legal thought would have collapsed even if progressives had never showed up.

This historical model persists, however, mainly because it serves the interests of both the defenders and opponents of the institutions we have come to associate with progressive legal thought -- namely, the welfare state, increasing public involvement in economic development, the rise of regulatory agencies with broad quasi-judicial and quasi-legislative powers, deferential judicial review of economic legislation, and aggressive judicial review of government actions injuring underrepresented minorities.
A conference on Professor Hovenkamp's nonhistorical scholarship begins today at the University of Iwa.  Hat tip: Legal Scholarship Blog.

Wednesday, October 22, 2014

Now Out in Paper: Fisk's "Working Knowledge"

We're pleased to learn that the University of North Carolina Press is bringing out a paperback edition of Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930, by Catherine L. Fisk, University of California Irvine Law.  The book, which appeared in "Studies in Legal History" (the American Society for Legal History’s book series), won both the Littleton-Griswold Prize of the American Historical Association and the ASLH’s John Phillip Reid Book Award in 2010:
Skilled workers of the early nineteenth century enjoyed a degree of professional independence because workplace knowledge and technical skill were their "property," or at least their attribute. In most sectors of today's economy, however, it is a foundational and widely accepted truth that businesses retain legal ownership of employee-generated intellectual property.

In Working Knowledge, Catherine Fisk chronicles the legal and social transformations that led to the transfer of ownership of employee innovation from labor to management. This deeply contested development was won at the expense of workers' entrepreneurial independence and ultimately, Fisk argues, economic democracy.

By reviewing judicial decisions and legal scholarship on all aspects of employee-generated intellectual property and combing the archives of major nineteenth-century intellectual property-producing companies--including DuPont, Rand McNally, and the American Tobacco Company--Fisk makes a highly technical area of law accessible to general readers while also addressing scholarly deficiencies in the histories of labor, intellectual property, and the business of technology.

Parrillo Wins ABA Administrative Law Prize for "Against the Profit Motive"

We were pleased to learn that the ABA Section on Administrative Law has awarded Nicholas R. Parrillo, Yale Law School, its Annual Scholarship Award for the year's best book or article on administrative law, namely Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (New Haven, CT: Yale University Press, 2013).  We quote from the citation:
Professor Parrillo's book provides an important and comprehensive historical background on the use of commissions and fees to compensate persons executing core administrative functions (in both federal and state government agencies). The committee was tremendously impressed with the depth and scope of professor Parrillo's historical research into a topic of considerable importance. Plainly, the incentives we provide to those who staff administrative agencies will prefigure how - and whether -they exercise administrative discretion. A civil service working in the public interest is plainly more consistent with core democratic values of fair play, equal treatment, and due process than a system that relies on bounties and commissions to compensate civil servants.

Against the Profit Motive
is well written, comprehensively researched, and provides important insights into once-common administrative practices and structures that have been wisely abandoned. At a time when local, state, and even the federal government are considering whether to privatize public functions, Professor Parrillo's book provides an important cautionary note on the potential risks associated with embracing the profit motive as an organizing principle in the administrative state. As he observes in the book, "the history suggests that you can recognize the value of nonprofit government even if you are indifferent or even hostile to bureaucracy-building more generally." (p. 361).

The committee believes that the lessons of history that Against the Profit Motive presents will be of considerable interest to legislators, lawyers, and legal academics alike -as well as to our many section members who work in federal, state, and local agencies. We are pleased to recognize Professor Parrillo's excellent book "against the profit motive" as the best work published in the field of administrative law in 2013.

Parisi et al. on Deterrence in Ancient Law

Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli have posted Deterrence of Wrongdoing in Ancient Law.  Here is the abstract:
Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.

CFP: Law & Humanities Junior Scholar Workshop

Via H-Law, we have the following Call for Papers:
Law & Humanities Junior Scholar Workshop
Columbia Law School, the University of Southern California Center for Law,
History & Culture, UCLA School of Law, and Georgetown University Law
School invite submissions for the eleventh meeting of the Law & Humanities
Junior Scholar Workshop to be held at Columbia Law School Law in New York
City on June 8 & 9, 2015.

The paper competition is open to untenured professors, advanced graduate
students, and post-doctoral scholars in law and the humanities; in addition t0drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel and hotel expenses of authors whose papers are selected for presentation.

Submissions (in Word, no pdf files) will be accepted until January 5, 2015, and should be sent by e-mail to: Center for the Study of Law and Culture, be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information.

For more information contact Cindy Gao, 212.854.0167 or, and to see past winners go to:

Katherine Franke
Sarah Barringer Gordon
Ariela Gross
Naomi Mezey
Hilary Schor
Norman Spaulding
Clyde Spillenger
Nomi Stolzenberg

Tuesday, October 21, 2014

Davies on Pennypacking the Waite Court

Ross E. Davies, George Mason University School of Law, has posted Breakfast with the Justices: Networking in the Nineteenth Century, which appears in the 2014 Green Bag Almanac & Reader 109.  Here is the abstract:
On Thursday, September 15, 1887, the Philadelphia bar hosted a lavish “Breakfast to the Justices of the Supreme Court of the United States” in that city’s American Academy of Music building. It was the first of a series of events — parades, ceremonies, speeches, and so on — celebrating the centennial of the Constitution of the United States. Some, like the “Breakfast to the Justices,” were by invitation only. Others were open to the public and attracted large crowds — the biggest were probably the “Civic and Industrial Procession” on September 15 and the “Memorial Day Ceremonies in Independence Square” on September 17. All those big events, both the private and the public, surely were exciting at the time and merit further study today. But the focus of this little essay is elsewhere — on a pair of small but instructive (and perhaps also amusing) aspects of the inner workings of the “Breakfast to the Justices.”

Metzger on Administrative Law, Public Administration and ACUS

Gillian E. Metzger, Columbia University Law School, has posted Administrative Law, Public Administration, and the Administrative Conference of the United States, which is forthcoming in the George Washington Law Review.  The article includes a section arguing that “the current divide between administrative law and public administration is not a new phenomenon, but dates back to when both fields were being born as areas of academic study and practice at the beginning of the twentieth century.”  Here is the abstract:
From its birth administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. In particular, as many have noted, administrative law ignores key administrative dimensions, such as planning, assessment, oversight mechanisms and managerial methods, budgeting, personnel practices, reliance on private contractors, and the like. The causes of administrative law’s disconnect from public administration are complex and the divide is now longstanding, going back to the birth of each as distinct fields. But it is also a growing source of concern, and internal administration is increasingly becoming the linchpin for ensuring accountable government. Enter the Administrative Conference of the United States (ACUS). ACUS represents one of the rare instances in which administrative law and public administration have been linked and is ideally situated to study administrative law’s effects on internal agency operations and assess whether — as well as how — administrative law might be used to improve public administration.

Olken on New Deal Constitutionalism

Samuel R. Olken, John Marshall Law School, has posted The Decline of Legal Classicism and the Evolution of New Deal Constittutionalism, which appears in the Notre Dame Law Review 89 (2014).  Here is the abstract:
Insofar as historians and constitutional scholars have focused upon the question whether external or internal changes precipitated the jurisprudential transformation that occurred in constitutional law during the 1930sand 1940s, they have characterized the change as revolutionary. Accordingly, they have described Legal Classicism (also referred to as Classical Legal thought), the bundle of jurisprudential tenets at the core of Lochner era police powers jurisprudence, in pejorative terms. Moreover, they have assumed that by the end of the 1930s, the Hughes Court’s adoption of constitutional adaptivity in its jurisprudence of economic liberty marked a relatively clear rejection of classical legal principles of legal formalism, factional aversion, laissez faire constitutionalism dual federalism. As Chief Justice Hughes himself noted in the seminal cases of Home Building and Loan Ass’n v. Blaisdell (1934) and West Coast Hotel Co. v. Parrish (1937), it was important for the Court to recognize the public interest in private contracts and the necessity to adapt the constitution to changing economic circumstances. And in Commerce Clause cases such as Jones & Laughlin Steel Corp. v. NLRB (1937), the Court employed a more flexible approach towards assessing the relationship between intrastate activities and interstate commerce, heralding a more realistic conception of commerce and a willingness to accord more deference to Congress than they had at the height of the Lochner era.

Notwithstanding this significant doctrinal transformation, relatively little attention has been given to the manner in which Legal Classicism itself may have actually contributed to the so-called constitutional revolution of the 1930s. This article will discuss how the ascension within the Hughes Court of Legal Realism and its notion of constitutional adaptation evolved from some of the very principles of classical legal thought that Chief Justice Hughes, and the other more progressive members of his court, such as Justices Stone, Brandeis and Cardozo earlier decried. Eventually, the underlying principles of Legal Classicism crumbled, and its assumptions about the relationship between the individual and government, as well as its presumed dichotomy between public power and private rights, proved untenable as the Supreme Court sought to interpret and apply the Constitution to the problems spawned by the Depression.

Monday, October 20, 2014

Turner, "Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South"

The September 2014 issue of the Journal of the Civil War Era includes an article of interest: "Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South," by Felicity Turner (Armstrong State University). Here's a summary from the author of the article's primary contribution:
Building on recent scholarship in gender history and African-American history, “Rights and the Ambiguities of Law” argues for a rethinking of the utility of narratives about the inexorable march toward expanded rights in U.S. history and memory.  Turner suggests that constitutional scholars and legal historians have traditionally emphasized the valuable expansion of civil and political rights to African Americans inaugurated at the federal level during Reconstruction.  The federal legislation and constitutional amendments prompted change at the state level, primarily in the South, which—in turn—prompted legal change at the local level, the consequences of which have been largely unexamined.  Turner's argument combines the traditional emphases of legal and political history with the more recent scholarship from historians of women and African-Americans.  Drawing from these combined strands of scholarship, Turner demonstrates the limitations inherent in narratives focusing primarily on the politico-legal changes that occurred at both the federal and state level during Reconstruction.  Using infanticide cases from antebellum and Reconstruction North Carolina to examine the operation of the legal process within local communities, "Rights and the Ambiguities of the Law" illuminates the complexities and ambiguities of legal change over time. 
A brief excerpt is available here, at Project Muse. Full content is limited to subscribers.