Sunday, November 30, 2014

Sunday Book Roundup

This week there's quite a few new additions on H-Net including a review of Tamara Venit Shelton's A Squatter's Republic: Land and the Politics of Monopoly in California, 1850-1900 (University of California Press).
"A Squatter’s Republic delivers a riveting history of legal strategizing, identity negotiation, economic transitions, and even some Old West violence. Tamara Venit Shelton assesses the early California squatters’ anti-land monopoly movement, tracing its maturation into a much broader antimonopoly movement linked with national and international thought. She argues that the early anti-land monopoly squatters saw themselves as righteous guards of the classical liberal American dream, but the onset of the Gilded Age would see many who supported the cause eventually warm to some kinds of government-controlled monopoly. The book’s engagement with historiography is brief in the introduction, though the footnotes are thorough. Throughout the work, Shelton interweaves ethnic, political, economic, and cultural histories, presenting an excellent example of history that breaks down the silos of more classical frameworks and moves beyond an analysis of elected leaders debating questions of land and monopoly."
Also on H-Net are reviews of Barry L. Strayer's Canada's Constitutional Revolution (University of Alberta Press) (here), Megan Bradley's Refugee Repatriation: Justice, Responsibility and Redress (Cambridge University Press) (here), and Sarah Kovner's Occupying Power: Sex Workers and Servicemen in Postwar Japan (Stanford University Press) (here).

New Books in History has an interview with Brian Purnell about his new book, Fighting Jim Crow in the County of Kings: The Congress of Racial Equality in Brooklyn (University Press of Kentucky).

There's also an interview with John Orth about his short story, "Self-Defense,"(14 Green Bag 2D 113) on New Books in Law.

An excerpt from Marc Solomon's Winning Marriage (ForeEdge) is available on Salon.

The Guardian has a review of Jad Adams's Women and the Vote: A World History (Oxford University Press).
"Jad Adams’s new global history of women’s enfranchisement claims to be the “first major post-feminist” treatment of its subject. I don’t know about “first” and “major”, but “post-feminist” is the mot juste. Women and the Vote is “post-feminist” in that while it is largely synthetic, drawing on two decades of feminist scholarship, the political commitments and fierce doctrinal quarrels that animated those works have been left behind. The book is also “post-feminist” in its arguments. Although Adams spends nearly 450 pages on women’s campaigns for the vote across two centuries and the entire globe, his dampening conclusions are, first, that all that activism wasn’t the main force behind enfranchisement, and, second, that women’s votes didn’t make much difference to politics anyway. That second argument, indeed, is brought back to reinforce the first. The female vote didn’t destabilise the political and social order, and once male politicians realised that, they were happy to concede it."
Thomas Maier's When Lions Roar: Churchills & Kennedys (Crown) is reviewed in The Washington Post.

Also in The Post is a review of Frances Larson's  Severed: A History of Heads Lost and Found (Liveright).

The New York Times reviews The Georgetown Set: Friends and Rivals in Cold War Washington by Gregg Herken (Knopf).

Saturday, November 29, 2014

Weekend Roundup

  • Over at Concurring Opinions, Ronald K. L. Collins has commenced a series of posts entitled "The Maverick: A Biographical Sketch of Judge Richard Posner."  The first installment includes links to several cases Judge Posner argued in 1966-567 while in the Solicitor General's office (including Von's Grocery).
  • From The Guardian: "A little-known medieval poem written almost 800 years ago by Scottish borders monks was revealed on Thursday as the earliest independent account of one of the single most important events in English history: the sealing of the Magna Carta."
"Drawing an imaginary bright line between the past and the present is a very problematic way to write history, especially recent history. . . . Historians at their best write in ways that are engaging to the educated public. In the era of hyper-specialization in the academy, fewer and fewer scholars have that capacity. But if you are able to do so, you should try to influence the public debate."
  • U.S. history graduate students: if you have a polished essay at hand, don't forget to apply for the Organization of American Historians Louis Pelzer Memorial Award. The deadline is December 1.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, November 28, 2014

Stinneford on Originalism and Cruel and Unusual Punishments

John F. Stinneford, University of Florida Levin College of Law, has posted Death, Desuetude, and Original Meaning, which appears in the William & Mary Law Review 56 (2014): 531-95.  Here is the abstract:    
One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

Call for Applications: UC Berkeley Seeks Director of Legal Studies

Via H-Net, we have the following job posting:
Director, Legal Studies
Location: Berkeley, CA
Salary: Commensurate with experience.
This is a three-year renewable contract position at 100% time.
Expected Start Date: July 1, 2015
Job Description:
The Legal Studies Program at the University of California, Berkeley School of Law seeks a full time academic coordinator and lecturer for the position of Director of Legal Studies. The Legal Studies Program was founded more than 35 years ago as one of the nation’s first interdisciplinary majors for undergraduates in law and legal studies. Along with the graduate program in Jurisprudence and Social Policy, the Legal Studies Program is committed to providing a substantive liberal arts curriculum on law and legal institutions, practices, and discourses. Legal Studies currently serves approximately 250 undergraduate students. Its teaching faculty consists of 19 scholars from a range of disciplines, including sociology, political science, history, economics, psychology, and law, supplemented by regular lecturers.
The Director of Legal Studies will be responsible for the day-to-day administration of the program as well as working with the Associate Dean for Jurisprudence and Social Policy to evaluate and revise the program. The Director of Legal Studies will be the chief faculty adviser to all Legal Studies undergraduate majors, organizing and overseeing our honors program and advising students writing honors theses. The Director of Legal Studies will select and hire graduate students to serve as Graduate Student Instructors, resolve student academic problems that arise, and supervise multiple staff persons who carry out advising and course scheduling for Legal Studies. In addition, the Director will work with the Associate Dean for Jurisprudence and Social Policy to carry out curricular and budgetary planning for the department; and manage staff shared by Legal Studies, Jurisprudence and Social Policy, and the Center for the Study of Law and Society. The Director will collaborate with the Associate Dean for Jurisprudence and Social Policy to develop and implement the International Program in Legal Studies. The Director will operate as our liaison to the College of Letters and Sciences, to faculty teaching Legal Studies-related curriculum across campus, and at national conferences on Legal Studies. The Director will also teach in the Legal Studies Program. Teaching responsibilities will constitute up to 50% of the position responsibilities and would normally include teaching the Legal Studies Honors Pro-seminar in the fall of each year in addition to courses in the
 More information is available here. The final deadline for applications is January 15, 2015.

Purcell on Ex parte Young

Edward A Purcell, New York Law School, has posted Ex Parte Young and the Transformation of the Federal Courts, 1890-1917, which originally appeared in the University of Toledo Law Review 40 (2009).  Here is the abstract:
Ex parte Young is generally recognized as one of the Supreme Court’s most far-reaching decisions, and from its announcement in 1908 to the present judges and commentators have divided over its doctrinal pedigree and even its very legitimacy. Few, however, have doubted its importance as a doctrine of federal judicial power. This article seeks to cast additional light on Young’s origins and significance by placing it in its historical context and by showing that, as a practical matter, it was consistent with a wide range of other doctrines -- from technical procedural and jurisdictional rules to broad principles of constitutional law -- that the Supreme Court reshaped or developed anew in the years between 1890 and 1917. Taken together, those diverse doctrines transformed the role, reach, and power of the federal courts in American government. The article argues that Young can be most fully understood not in terms of common-law history or any purported doctrinal pedigree but rather in terms of the Supreme Court’s concerted effort to exert broader and more effective control over Congress and especially over the states and to ensure that the federal judiciary would be able to exercise an effective supervisory power over both.

Thursday, November 27, 2014

Wester's "Land Divided by Law"

Here's something else to consume, along with turkey and tales of Pilgrims and Wampanoags, this Thanksgiving Day.  Just out, in multiple formats, from Quid Pro Books is Land Divided by Law: The Yakama Indian Nation as Environmental History, 1840-1933, by Barbara Leibhardt Wester:
Wester’s environmental history of Yakama and Euro-American cultural interactions during the 19th and early 20th century explores the role of law in both curtailing and promoting rights to subsistence resources within a market economy. Her study, using original source files, case histories, and contemporary writings, particularly describes how the struggle to assert treaty rights both sprang from and impacted the daily lives of the Yakama people.

The study is now widely available in this new paperback (and digital) edition, adding a 2014 foreword by Harry N. Scheiber, professor of law and history at Berkeley. This book, he writes, “is a masterful study of the complex, extended series of confrontations between the native Indian cultures of the Yakima region and the regime of the conquering white nation. Her analysis is based on a blending of materials from rich archival sources and from the literatures of legal history, administrative history, anthropology, ecology, and cultural theory. Most remarkably, the book makes important new contributions to all these fields of scholarship.”

“In her remarkable book Land Divided by Law, Barbara Leibhardt Wester eloquently portrays the Yakama Indians of the Columbia River Basin as actors defending a threatened, living landscape from encroachments by settlers. Using federal officials and the courts to advocate for their rights, they reasserted a spiritual heritage of the earth as body, heart, life, and breath. Anyone interested in Native peoples and their interactions with Euro-Americans will want to read this lively, engaging account.”
— Carolyn Merchant
Professor of Environmental History
University of California, Berkeley

“This is a remarkable work that brims with insight about the inter-relatedness of nature, work, law, and culture. Wester blends expertise in several different academic disciplines with a superb gift for narrative into her analysis of the Yakama people’s defense of their traditional way of life. The book is a testament not only to the skill and resilience of its subjects but also to the power of the author’s empathy and respect for them.”
— Arthur F. McEvoy
Associate Dean for Research, and Paul E. Treusch Professor of Law
Southwestern Law School

Wednesday, November 26, 2014

Avi-Yonah on the History of the Consumption Tax Debate

Reuven S. Avi-Yonah, University of Michigan Law School, has posted The Rise and Fall of the Consumption Tax: A Historical Perspective.  Here is the abstract:
William Andrews (HLS)
This article will survey the great consumption vs. income tax debate from a historical perspective. The focus here is not on which tax base is better, but rather on how this debate evolved over time inside and outside legal academia. As we shall see, there was one point in which the consumption tax came close to being adopted - in 2005, when it was one of two alternatives recommended by the Bush tax reform panel. But the moment passed, and it seems unlikely to return.

JSCH 39:3

Here are the contents of the Journal of Supreme Court History, 39:3 (November 2014)

Melvin I. Urofsky

“We always tell our children they are Americans”: Mendez v. Westminster and the beginning of the end of school segregation
Philippa Strum

Litigating racial justice at the grassroots: The Shelley family, black realtors, and Shelley v. Kraemer (1948)
Jeffrey D. Gonda

Civil disobedience, state action, and lawmaking outside the courts: Robert Bell's encounter with American law
Kenneth W. Mack

Mary Beth and John Tinker and Tinker v. Des Moines: Opening the schoolhouse gates to first amendment freedom
Kelly Shackelford

The clerks of the Four Horsemen (Part I)
Barry Cushman

How Griggs came to be
Robert Belton (as edited by Stephen L. Wasby)

The judicial bookshelf
Donald Grier Stephenson Jr.

Murder and Women in 19th-Century America: The YLS Exhibit

While we’re looking in on rare books at YLS, we might as well note the exhibit, Murder and Women in 19th-Century America: Trial Accounts in the Yale Law Library:
Murder trials have long been a subject of sensational treatment in popular culture, and murder trials involving women, as the accused or the victims, especially so.

The latest exhibit from the Yale Law Library’s Rare Book Collection features 19th-century illustrated pamphlets that document the public’s fascination with these trials. More

Celebrating the Taussig Collection at YLS

We’ve previously noted the opening of the Anthony Taussig Collection at the Yale Law School.  It was the subject of a symposium, Celebration of the Anthony Taussig Acquisition, at YLS on October 3.  Video recordings of the symposium are now on the Yale law library’s website, from which I take the following list of speakers:

Robert C. Post (Dean of the Yale Law School), “Welcoming Remarks.”
Anthony Taussig (Barrister, Lincoln’s Inn), “Building the Taussig Collection,” with an introduction by Blair Kauffman, Director of the Lillian Goldman Law Library. Taussig recorded his talk at the Institute for Advanced Legal Studies, University of London.. . .
Sir John H. Baker (Downing Professor Emeritus of the Laws of England, University of Cambridge), “Building the Taussig Collection,” with an introduction by Blair Kauffman, Director of the Lillian Goldman Law Library.
Anders Winroth (Forst Family Professor of History, Yale University), “Using the Taussig Collection for Teaching,” with an introduction by E.C. Schroeder, Director of the Beinecke Rare Book & Manuscript Library.
Andrew Brown (Ph.D. Candidate in English, Yale University), “Using the Taussig Collection for Research,” with an introduction by E.C. Schroeder, Director of the Beinecke Rare Book & Manuscript Library.

[Hat tip: Mike Widener]

Tuesday, November 25, 2014

Tate on the Problem of Perpetuities in Revolutionary North Carolina

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Perpetuities and the Genius of a Free State, which is forthcoming in the Vanderbilt Law Review 67 (2014): 101-12.  Here is the abstract:
The recent rise of perpetual trusts has brought new attention to previously obscure state constitutional prohibitions of perpetuities. This symposium commentary examines the historical origins of the first such prohibition, Clause 23 of the 1776 North Carolina Constitution and Declaration of Rights, which provided that "perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed." Although many good reasons can be offered for the provision, it is curiously absent from the constitutions of the twelve other original states. Why did this provision emerge only in North Carolina, and not in Virginia, Massachusetts, Pennsylvania, or any of the other "free states" that together rose up against their colonial masters?

This commentary suggests a possible answer to that question. Although the problems with perpetuities were well known to learned inhabitants of all the newly independent American states, those problems were particularly salient in North Carolina in 1776 due to that colony's unique history as a former proprietary colony. The decision by the heir of one of the original Lords Proprietors not to sell his share back to the British crown gave rise to specific grievances in North Carolina that did not exist in the other twelve former colonies. Moreover, North Carolina was unique in witnessing a violent confrontation between the colonial authorities and backcountry farmers that stemmed in part from those grievances. The peculiar case of the Earl Granville and assorted problems in his Granville District shifted the problem of perpetuities from the periphery to the center of North Carolina politics in the late

Women Trailblazers in the Law: An Oral History Series

We have only recently learned of an extraordinary oral history series, the Women Trailblazers in the Law Project, which was originated by the Commission on Women in the Profession and is now sponsored by the American Bar Association's Senior Lawyers Division (SLD) .  Brooksley E. Born, a retired partner of Arnold & Porter, chairs the SLD committee overseeing the project; Linda Ferren serves as Project Director.  The oral histories are available online and housed at the Library of Congress and Harvard's Schlesinger Library.  As the series's website explains:
The Project has sought out women who have made important contributions to the law and to women in the profession. Chosen primarily for their accomplishments and contributions, the senior women interviewed are from all areas of the legal profession: the judiciary, academia, law firms, government, corporations, and public interest organizations.  They are in cities and towns across the country.  Interviewing them are lawyer volunteers, selected and trained by the Project, who live in their communities.

The Women Trailblazers Project is unique.  While there are oral histories of women, including women attorneys, in libraries and archives scattered across the country, the Women Trailblazers Project is the only comprehensive nationwide project devoted exclusively to capturing, recording, and preserving the complete life histories of pioneering women lawyers as told by the women themselves.
Legal historians might want to start with the interview of Barbara Aronstein Black, a former president of the American Society for Legal History (not to mention a former dean of the Columbia Law School).  Here's the list: The Honorable Ruth I. Abrams, Loretta Collins Argrett, Barbara Allen Babcock, The Honorable Rosemary Barkett, The Honorable Carole Kamin Bellows, Jodie Z. Bernstein, Sheila L. Birnbaum, Barbara Aronstein Black, The Honorable Ruth C. Burg, Nancy Duff Campbell, LaDoris H. Cordell, The Honorable Ann K. Covington, Mary B. Cranston, Sara-Ann Determan, Carol E. Dinkins, The Honorable Bernice B. Donald, The Honorable Antoinette L. Dupont, The Honorable Christine M. Durham, The Honorable Betty Weinberg Ellerin, The Honorable Betty Binns Fletcher, Tamar Frankel, Maryann Saccomando Freedman, Joanne M. Garvey, Jamie S. Gorelick, Marcia Greenberger, Joan M. Hall, Gail Harmon, Antonia Hernández, Irma Herrera, Carla Anderson Hills, Zona F. Hostetler, The Honorable Shirley M. Hufstedler, Roberta S. Karmel, Cornelia G. Kennedy, The Honorable Catherine D. Kimball, The Honorable Carolyn Dineen King, Patricia A. King, The Honorable Joan Dempsey Klein, Elizabeth B. Lacy, Esther Lardent, Judith Lichtman, Karen J. Mathis, Barbara Mendel Mayden, Marygold S. Melli, Lizabeth A. Moody, Betty Southard Murphy, The Honorable Dorothy W. Nelson, Bettina B. Plevan, The Honorable Peggy A. Quince, Roberta Cooper Ramo, Janet Reno, The Honorable Betty Roberts, Barbara Paul Robinson, Florence Wagman Roisman, Catherine G. Roraback, The Honorable Ilana Diamond Rovner, Lynn Hecht Schafran, Grace Berg Schaible, Lois Schiffer, The Honorable Mary M. Schroeder, Patricia Schroeder, The Honorable Stephanie K. Seymour, The Honorable Norma L. Shapiro, Ada Shen-Jaffe, Shirley Adelson Siegel, Constance I. Slaughter-Harvey, The Honorable Dolores Korman Sloviter, The Honorable Fern Smith, Marna S. Tucker, Judith P. Vladeck, The Honorable Rosalie E. Wahl, Sylvia H. Walbolt, The Honorable Zita L. Weinshienk, Ann Marie Whittemore, Wendy W. Williams, Judith A. Winston, The Honorable Miriam E. Wolf.

New Release: Blanck on "Forging an American Law of Slavery in Revolutionary South Carolina and Massachusetts"

New from the University of Georgia Press: Tyrannicide: Forging an American Law of Slavery in Revolutionary South Carolina and Massachusetts, by Emily Blanck (Rowan University). The Press explains:

Tyrannicide uses a captivating narrative to unpack the experiences of slavery and slave law in South Carolina and Massachusetts during the Revolutionary Era. In 1779, during the midst of the American Revolution, thirtyfour South Carolina slaves escaped aboard a British privateer and survived several naval battles until the Massachusetts brig Tyrannicide led them to Massachusetts. Over the next four years, the slaves became the center of a legal dispute between the two states. The case affected slave law and highlighted the profound differences between how the “terrible institution” was practiced in the North and the South, in ways that would foreground issues eventually leading to the Civil War.
Emily Blanck uses the Tyrannicide affair and the slaves involved as a lens through which to view contrasting slaveholding cultures and ideas of African American democracy. Blanck’s examination of the debate analyzes crucial questions: How could the colonies unify when they viewed one of America’s foundational institutions in fundamentally different ways? How would fugitive slaves be handled legally and ethically? Blanck shows how the legal and political battles that resulted from the affair reveal much about revolutionary ideals and states’ rights at a time when notions of the New Republic—and philosophies about the unity of American states—were being created.
A review:
"Sixty years before the Amistad case forced a nation to confront the vast gulf between its pretensions to liberty and the harsh reality of human bondage, a now-forgotten affair strained the tenuous bonds that held the young republic together. When the brig Tyrannicide captured thirty-four Carolina slaves who had escaped to a British privateer, the ensuing case raised troubling issues of what freedom meant in the postcolonial world. Emily Blanck deftly combines high drama with exhaustive research in this rich and important study."
—Douglas R. Egerton
More information is available here.

Monday, November 24, 2014

Three by Ziegler

Mary Ziegler (credit)
Mary Ziegler, Florida State University College of Law, has posted three recent or forthcoming articles:

No Such Thing as Race: Exploring the Past and Future of Affirmative Action after Schuette
On the surface, Schuette v. Coalition for Affirmative Action leaves the constitutional law of affirmative action undisturbed. Michigan had amended its state constitution to prevent the use of racial preferences by any university system or school district. Rejecting a fourteenth-amendment challenge, the Court upheld Michigan’s law. The Schuette plurality went to considerable lengths to explain that Schuette in no way touched on the constitutionality or merits of race-based admissions. Just the same, understood in historical context, the Schuette majority lays bare profound new dangers confronting proponents of affirmative action. In addition to praising colorblindness, the Court cast doubt on the very definition of race.

This Article historicizes Schuette, revealing it to be a turning point in the law and politics of affirmative action. In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, anti-affirmative action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes.

As the new anti-affirmative action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law — and to “regarded as” liability — as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled — regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing fourteenth-amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.
The (Non-)Right to Sex, University of Miami Law Review, which is forthcoming in 2015
What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project — the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, the Article offers a new way into the debate. The marriage equality struggle figures centrally in a longer narrative about the omission of sex — rather than committed relationships or marriage — from the constitutional canon. By recapturing this narrative, we can identify powerful doctrinal constraints confronting the contemporary marriage equality movement. As importantly, the story of the non-right to sex provides a compelling historical parallel to the contemporary marriage equality movement. The mistakes of past decades illuminate the dangers inherent in contemporary marriage-equality tactics.

The Article begins the story of the non-right to sex in the 1960s and 1970s, when groups like the ACLU and NAACP confronted a backlash against a perceived increase in illegitimacy rates. Some attorneys and activists viewed the illegitimacy backlash as evidence of the intersectionality of race discrimination, sex discrimination, and the denial of sexual freedom. Often, however, feminists and civil rights attorneys presented themselves as defenders of conventional sexual morality, arguing that the reform of laws on illegitimacy, contraception, and abortion would strengthen or leave intact traditional sexual norms. These arguments helped progressives achieve incremental progress. At the same time, progressives inadvertantly reinforced the State’s ability to regulate sexual behavior.

For the marriage equality movement, this history offers a cautionary tale. Efforts to achieve incremental social and legal change have obvious advantages: these strategies appeal to cautious courts and reduce the odds of backlash. At the same time, as the materials considered here make plain, incremental strategies can strengthen the status quo. In the 1960s and 1970s, progressives paid lip service to the evils of illicit sex in an effort to chip away gradually at discrimination against minorities, sexual dissenters, and women. This tactic had unexpected consequences, since cause attorneys helped to entrench an existing intimate hierarchy. As this history counsels, incremental litigation strategies adopted by the marriage equality movement may have a profound cost of their own.
Abortion and the Constitutional Right (Not) to Procreate, University of Richmond Law Review 8 (2014): 1263
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.

This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.

Fohlin's "Brief History of Investment Banking"

Caroline Fohlin, Johns Hopkins University Economics, has posted A Brief History of Investment Banking from Medieval Times to the Present.  Here is the abstract:    
Investment banking taken generally to mean the financing of long-term capital needs, came into being with the merchants of medieval trade routes. In almost all developed economies of the world, even those developing late in the 19th century, investment bankers emerged from merchant roots. The provision of investment banking services has come from a variety of institutions over time and across countries. Products and services have evolved to include complex, often derivative, securities; and the legal regulation of investment banking has often changed abruptly, particularly in the last 100 years. Thus, even well-known investment banking names that have endured over the centuries bear little resemblance to their ancestors.

Jill Lepore on the Missing Frankfurter Papers

The Great Paper Caper: Someone swiped Justice Frankfurter’s papers. What else has gone missing? in the December 1, 2014 issue of The New Yorker, available online.  Hat tip: Brad Snyder.

Call for Applications: Law & Society Association Annual Prizes

If you've recently completed a book, article, dissertation, or research paper, consider applying for one of the Law & Society Association's Annual Prizes:
Note that book award nominations close in mid-December. The other 2015 Awards are open for nominations until mid-January, 2015.

Sunday, November 23, 2014

Sunday Book Roundup

The Nation has a review of Danielle Keats Citron's Hate Crimes in Cyberspace (Harvard University Press).
"In Hate Crimes in Cyberspace, Danielle Keats Citron aims to change that situation, giving readers a sense of the scope and seriousness of the problem of cyberstalking and harassment; an account of existing law, both state and federal; and a set of thoughtful and persuasive proposals for improving both law and law enforcement."
Clayborne Carson and Tenisha Armstrong have edited The Papers of Martin Luther King, Jr. Volume VII: To Save the Soul of America Jan. 1961-Aug. 1962 (University of California Press), and the book has recently been reviewed in the Washington Independent Review of Books.

The Federal Lawyer has its December issue up online with two sets of book reviews. The first set includes reviews of David Dorsen's Henry Friendly: Greatest Judge of His Era (Belknap) and two of John Lukacs's recent publications: History and the Human Condition: A Historian's Pursuit of Knowledge (Intercollegiate Studies Institute) and A Short History of the Twentieth Century (Belknap Press). A second set of reviews includes a review of Andro Linklater's Owning the Earth: The Transforming History of Land Ownership (Bloomsbury). Of the last, the reviewers write,
"If you have a propensity for “big” history, with a big thesis, and supported by fascinating historical facts, accounts, and portraits, mostly pertinent to the argument, then you will enjoy Andro Linklater’s Owning the Earth. From the roots of American democracy to tales of Russian autocracy to revolutionary move- ments in Asia and South America, Linklater provides a rich history of the global evolution of land ownership. His scope is remarkably large. Whereas his previous work did an admi- rable job of depicting how the historical trans- formation of ownership in the United States was aided by the process of measuring and recording, he has expanded his range here into a somewhat unmanageable though always interesting tract."
Women of the World: The Rise of the Female Diplomat by Helen McCarthy (Bloomsbury) has been reviewed in HistoryToday.

H-Net has added a review of Christine Knauer's Let Us Fight as Free Men: Black Soldiers and Civil Rights (University of Pennsylvania Press), a review of Elissa Helms's Innocence and Victimhood: Gender, Nation and Women's Activism in Postwar Bosnia-Herzegovina (University of Wisconsin Press), and a review of Kyle G. Volk's Moral Minorities and the Making of American Democracy (Oxford University Press).

The New York Review of Books has a review of three books on teaching under the title, "Why Is American Teaching So Bad?": The Teacher Wars: A History of America’s Most Embattled Profession by Dana Goldstein (Doubleday), Building a Better Teacher: How Teaching Works (and How to Teach It to Everyone) by Elizabeth Green (Norton), Getting Schooled: The Reeducation of an American Teacher by Garret Keizer (Metropolitan).

Christopher Hill's Outpost: Life on the Frontlines of America Diplomacy (Simon & Schuster) is reviewed in The Washington Post. Also in the Post is a review of Katha Pollitt's Pro: Reclaiming Abortion Rights (Picador). From the review:
"Katha Pollitt may not appreciate my starting this review with her description of her own experience of motherhood, but this is my attempt to broaden her audience beyond the predictable cast for her small, powerful book. “People think of pregnant women as weak and vulnerable, but when I was pregnant with my daughter I felt as if I could put my hand in fire and it would only glow,” she writes in “Pro.” “I never felt alone: There were two of us, right there. I didn’t think of my child as an embryo or fetus. . . . I thought of her first as a funny little sea creature of indeterminate sex, and later, yes, as a baby, even though she was only a baby in my thoughts.”
To state what should be obvious, Pollitt, like most other women who support abortion rights, celebrates motherhood as a choice. The poet and columnist for the Nation is also one of the most eloquent champions for women’s reproductive freedom, and her latest book is a manifesto."
A Chosen Exile: A History of Racial Passing in American Life by Allyson Hobbs (Harvard University Press) reviewed in The New York Times.
"But for every Elsie there is a Robert Harlan, light-skinned, straight-haired, who showed no interest in renouncing his blackness. Born a slave to his black mother and a white father, probably the master, James Harlan, he was raised in the same household as the white Harlan boys. His probable father made him a free man and he went on to make a fortune in the gold rush in California. He remained close to the other Harlans, one of whom was Justice John Marshall Harlan — the “great dissenter” of the Supreme Court — who argued on behalf of equal rights under the law in Plessy v. Ferguson." 

Saturday, November 22, 2014

Lee's "Workplace Constitution": The Introduction

We’ve previously noted the publication of The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press 2014) by Sophia Z. Lee, University of Pennsylvania Law School.  The introduction is now available via SSRN.  Here’s the abstract:    
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to quite different ends: African Americans wanted access to unions, while right-to-work litigants wanted to be free of them. Although the civil rights movement went on to dismantle Jim Crow laws, and the right-to-work movement had the support of some of the nation’s most prominent politicians and opinion makers, their conflicting purposes sapped support for the workplace Constitution and ultimately led to its collapse.

The Workplace Constitution tells for the first time the story of anti-New Deal conservatives’ legal campaigns, recovers overlooked civil rights and labor advocacy, and moves constitutional history into little-explored venues such as administrative agencies. In recounting the civil rights and right-to-work movements’ surprising successes and explaining their ultimate failure, the book provides a fresh perspective on postwar conservatism and liberalism, emphasizing how law intertwined their fates and how that entanglement in turn shaped the law. Those interested in the history of the United States’ conservative, labor, and civil rights movements; its Constitution and political institutions; and the legal rights of its workers will find much of interest here. In the twenty-first century, the workplace Constitution has all but vanished. This book illuminates what has been gained and lost in its demise, both in the workplace and beyond.

Weekend Roundup

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, November 21, 2014

Kearley on an Obscure and Important American Legal Antiquarian

Timothy G. Kearley, University of Wyoming College of Law, has posted The Enigma of Samuel Parsons Scott, which appears in Roman Legal Tradition 10 (2014): 1-37.  Here is the abstract:    
S. P. Scott (credit)
Samuel Parsons Scott (1846-1929) single-handedly translated into English the Corpus Juris Civilis, the Visigothic Code, and the Siete Partidas. The latter was very well received, and not long ago was reprinted in a new edition; the first mentioned was criticized strongly but often has been used because, until recently, it contained the only published English translation of Justinian’s Code. However, almost nothing has been known about Scott, as he was an independent scholar who lived and worked in the small American town of Hillsboro, Ohio. This article uses information obtained from Hillsboro newspapers, local histories, probate court records, and the catalog of Scott’s personal library, to describe his life and the details of his work. It proposes an explanation for why he went from being a successful small-town business man, who wrote about history and his travels as an avocation, to a being a recluse who devoted his last years to translating ancient laws. The article’s analysis of Scott and his library also suggests some possible explanations for the flaws in his translation of the Justinianic Corpus.

Hollander on Legal Education and Interdisciplinary Legal Scholarship at Princeton

I've only just stumbled across An Unexpected Story: The History and Origins of Princeton’s Long-standing Tradition of Interdisciplinary Legal Scholarship, by David A. Hollander, Law & Legal Studies Librarian, Princeton University Library.  The article “traces the development of Princeton University’s largely unknown tradition of interdisciplinary legal education and scholarship. After discussing the history of Princeton’s now-forgotten law school and the multiple attempts to revive it, he then examines how legal education and research have always been an integral part of academics at Princeton, and how the strong presence of interdisciplinary legal studies at Princeton today springs from this fascinating history.”

Call for Applications: Summer Session on Political Violence: Perspectives from Law, History and Political Theory

Via H-Law, we have the following Call for Applications:
Summer School 2015 - Call for Applications
Political Violence: Perspectives from Law, History and Political Theory
University of Edinburgh - 24 to 26 June 2015
In June 2015 the University of Edinburgh will offer an interdisciplinary Summer School on Political Violence. This three-day event will give participants the opportunity to benefit from the knowledge of an unrivalled panel of international experts in the field of war and political violence and to receive critical feedback on their own projects. The programme combines people and perspectives from History, Law and Political Science and will involve intensive scholarly discussions and social activities that allow participants to network with each other in a friendly environment in the scenic, culturally vibrant setting of the city of Edinburgh. Participants will include a diverse mix of academics, MA and PhD students from the Social Sciences and Humanities, and practitioners working in NGOs and legal institutions.
List of Speakers
The programme will feature morning lectures by expert speakers and presentations from participants in the afternoon. Our speakers will attend and comment on the afternoon presentations. The detailed programme will be published in early 2015. In order to facilitate productive discussions, the maximum number of participants will be capped at 25. All participants are expected to share their papers a week before the Summer School starts.
The tuition fee for the Summer School is £150. This covers participation in the course as well as coffee and lunch breaks over three days. Fees must be paid before the start of the Summer School. Participants will need to organize and finance their own travel arrangements and accommodation, though there will be a limited number of places available in University accommodation organised on a first come, first served basis (single-room @ £40 per night). For a select number of participants there will be a possibility of a fee-waiver and financial assistance for accommodation, which will take into account both academic merit and economic circumstances.
The Summer School is supported by a number of institutions at the University of Edinburgh, including the Global Justice Academy, the Graduate School of Social and Political Sciences, and the Research and Knowledge Exchange Office, College of Humanities and Social Science.
For more information, including how to apply, follow the link. The deadline is January 16, 2015.

Thursday, November 20, 2014

Dorsett on Legal Transplants in New Zealand

Shaunnagh Dorsett, University of Technology Sydney Law, has posted How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand, which appears in New Zealand Journal of Public and International Law 14 (2014): 103.  Here is the abstract:    
"Unearthing" is a problematic task for historians. To some extent it assumes continuity between the past and the present, and that matters identified by whatever means as ‘traditions’ in the present were understood that way in the past. It is a backward looking task, rather than an exploration of understandings at a moment in time. Rather than ‘unearthing’, this article seeks to start at the beginning and to think about how things get going in colonies. It pays attention to foundations and to questions of institutional design. This article draws on literature on legal transplants, and examines one example of a legal transplant in New Zealand: the Resident Magistrates’ Court, focusing in particular on its civil jurisdiction. If not the "number eight wire" approach, it is a recognition of pragmatism - the ways in which legal forms, both discursive and institutional, circulated Empire and are made and remade in new times and places in response to local circumstance.

"Law As . . ." II

The papers from the second “Law As . . .” conference, held in March 2012, at the University of California Irvine Law School, organized by Christopher L. Tomlins, late of UC Irvine's law faculty and now of Berkeley's Jurisprudence and Social Policy faculty, is out in the UC Irvine Law Review 4:1 (March 2014).  The papers from the “Law As” III conference, held earlier this year, are forthcoming in the law review. 

Here’s a list of the papers.  All are available here.

Foreword: “Law As . . .” II, History As Interface for the Interdisciplinary Study of Law
Christopher Tomlins

Every Law Tells a Story: Orthodox Divorce in Jewish and Islamic Legal Histories
Lena Salaymeh

Law As Temporality: Colonial Politics and Indian Settlers
Renisa Mawani

Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law
Susan Bibler Coutin, Justin Richland, and Véronique Fortin

Repetition in History: Anglo-American Legal Debates and the Writings of Walter Bagehot
Kunal M. Parker

?Standing on Shaky Ground: Criminal Jurisdiction and Ecclesiastical Immunity in Seventeenth-Century Lima, 1600–1700
Michelle A. McKinley

Demonic Ambiguities: Enchantment and Disenchantment in Nat Turner’s Virginia
Christopher Tomlins

Property, Law, and Race: Modes of Abstraction
Brenna Bhandar

Hargrave’s Nightmare and Taney’s Dream
Michael Meranze

Reconstructing the Limits of Schmitt’s Theory of Sovereignty: A Case for Law As Rhetoric, Not As Political Theology
Brook Thomas

Mannheim’s Pendulum: Refiguring Legal Cosmopolitanism
Thomas Kemple

Humane Killing and the Ethics of the Secular: Regulating the Death Penalty, Euthanasia, and Animal Slaughter
Shai J. Lavi

The Rescaling of Feminist Analyses of Law and State Power: From (Domestic) Subjectivity to (Transnational) Governance Networks
Mariana Valverde

Beyond Sexual Humanitarianism: A Postcolonial Approach to Anti-Trafficking Law
Prabha Kotiswaran

Political Theology with a Difference
Nomi Maya Stolzenberg

How to Speak Well of the State: A Rhetoric of Civil Prudence
Jeffrey Minson

Law As (More or Less) Itself: On Some Not Very Reflective Elements of Law
Shaun McVeigh

Lee's "Workplace Constitution"

We note with pleasure the publication of The Workplace Constitution from the New Deal to the New Right, by Sophia Z. Lee, Penn Law, in the American Society for Legal History’s book series with the Cambridge University Press, Studies in Legal History
Today, most Americans lack constitutional rights on the job. Instead of enjoying free speech or privacy, they can be fired for almost any reason or no reason at all. This book uses history to explain why. It takes readers back to the 1930s and 1940s when advocates across the political spectrum – labor leaders, civil rights advocates, and conservatives opposed to government regulation – set out to enshrine constitutional rights in the workplace. The book tells their interlocking stories of fighting for constitutional protections for American workers, recovers their surprising successes, explains their ultimate failure, and helps readers assess this outcome.
We look forward to Professor Lee's book-related posts as a guest blogger in 2015, but for now here are three endorsements:

"The Workplace Constitution from the New Deal to the New Right is both ambitious and important - it moves across time and among a variety of individuals, organizations, and government entities, and it utilizes a wide range of archival material - all of keen interest to historians, legal scholars, and political scientists alike. Lee’s formidable intelligence gives us new insights, as well as historical and historiographical surprises."
Risa L. Goluboff, John Allan Love Professor of Law and Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia

"Sophia Lee brilliantly pairs her analysis of the civil rights movement with the rise of the right-to-work movement and the ‘union-avoidance’ industry. She also matches her fine history of the state action theory with an equally persuasive argument that administrative agencies have been a fruitful source of constitutional visions and versions. This beautifully written book represents deep and broad research and entirely original analysis. I know of nothing like it."
Laura Kalman, University of California, Santa Barbara

"Sophia Lee’s The Workplace Constitution from the New Deal to the New Right is one of the most insightful and provocative studies of the bifurcated matrix of laws and court rulings that govern the American work regime. Deploying a marvellous talent as narrative historian, Lee demonstrates that the attempt to construct a labor relations regime that simultaneously protects the rights of racial minorities proved an enormously vexing and contentious project, one standing close to the heart of American politics for more than half a century."
Nelson Lichtenstein, MacArthur Foundation Professor in History, University of California, Santa Barbara

TOC after the jump.

Wednesday, November 19, 2014

Hughes's Sense of Humor

Charles Evans Hughes (LC)
James C. McReynolds (LC)
To follow up on Professor Olken’s paper on Charles Evans Hughes and Blaisdell, here’s an old note I stumbled across earlier in the week, from Felix Frankfurter’s President’s Personnel File at the Roosevelt Library.  On December 1, 1935, FDR wrote Frankfurter that during the Supreme Court justices' recent formal call on the President, “I think the Chief Justice pulled a fast one on me.  After he had been talking with me himself for ten minutes he got up, said he thought some other members of the Court could have a talk with me and went across the room and brought McReynolds and plumped him down.  The Chief Justice has a sense of humor though few people realize it.  Thank God no photographers were present.”

Olken on Hughes's Blaisdell Opinion

Samuel R. Olken, John Marshall Law School, has posted Charles Evans Hughes and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence, which appeared in the Oregon Law Review 72 (1993): 513-602.  Here is the abstract:    
In 1934, in the midst of the Depression, the United States Supreme Court, in Home Building & Loan Ass’n v. Blaisdell, upheld the constitutionality of the Minnesota Mortgage Moratorium Act. The Court’s 5-4 decision marked a significant step in the Court’s transformation of its jurisprudence of economic liberty, as a bare majority of the Court, led by Chief Justice Charles Evans Hughes, flexibly interpreted the Contract Clause prohibition of the impairment of contractual obligations to allow a state to modify a mortgage agreement. In so doing, the divided Hughes Court signaled a willingness to adapt the Constitution to changing economic circumstances. Although it would be three more years before a majority of the Court consistently adapted living constitutionalism in support of the laboratories of democracy and the power of government – both state and federal- to regulate private economic affairs in the public interest, Chief Justice Hughes’s Blaisdell opinion was an integral step in the constitutional revolution of the 1930s.

This article analyzes the Blaisdell decision from the duel historical perspectives of the nineteenth and early twentieth century Contract Clause jurisprudence and the pragmatic federalism of Charles Evans Hughes. It explains that the Court’s decision to reconcile the Contract Clause prohibition of state laws that impaired contract obligations with the reasonable exercise of state police powers reflected a long line of cases that constrained the scope of the constitutional limitation through the prism of federalism.

From this perspective, Chief Justice Hughes crafted a fairly modest opinion that nudged the Court along the path of living constitutionalism yet also heeded Court precedent that recognized the authority of states to modify contract remedies in ways that left intact underlying contract obligations. The article also examines the extent to which Hughes’s judicial statesmanship allowed for significant contributions by Justices Stone and Cardozo in the creation of an important opinion in the evolution of federalism and Supreme Court judicial review.

CFP: Beyond the New Deal Order

[We have the following Call for Papers.]

BEYOND THE NEW DEAL ORDER: A Conference at the University of California, Santa Barbara
September 24-26, 2015

When Steve Fraser and Gary Gerstle edited The Rise and Fall of the New Deal Order in 1989, they made the concept of a political and social “order” central to an interpretative framework that reperiodized U.S. history, from the election of Franklin Roosevelt, through Lyndon Johnson’s Great Society and on to the Ronald Reagan’s victory in 1980. The New Deal was not just a presidential moment, but a far larger construction - a combination of ideas, policies, institutions, cultural norms and electoral dynamics - that spanned several decades and sustained a hegemonic governing regime. The Rise and Fall of the New Deal Order offered a unique way to conceptualize the history of social reform and political conflict in the 20th century, and it quickly emerged as the dominant narrative within and against which a new generation of scholars have sought to investigate the foundation, evolution, limits and decline of the New Deal. More than a quarter century after the book’s appearance, the concept of a multi-decade, political-social New Deal order still pervades our historical understanding of 20th century America.

Our conference, “Beyond the New Deal Order,” draws upon the new ways of thinking about politics, ideas, economy, gender, race and ethnicity, and the U.S. role in the world that have emerged in recent historical scholarship to interrogate the foundational suppositions put forward by Fraser, Gerstle and their co-authors more than a quarter century ago. Is the concept of a New Deal order still a viable way of framing the reform impulses unleashed in the Depression decade and continuing through the 1960s and even after? How does the New Deal order fit into the larger sweep of American history, including what historian Richard Hofstader once called “the American political tradition?” And finally, did the New Deal order actually fall, or, given the demographic reconfiguration of the American electorate and the emergence of movements and coalitions organized outside or in opposition to the New Deal framework, would “transformation” rather than “fall” be a better word to describe how such an order continues to function in the 21st century?

We invite panel and paper submissions for possible presentation at the conference. We are especially interested in broad and inclusive submissions that focus upon the following themes:
  • How has the changing structure of capitalism, in the U.S. and the world, contributed to the fate of the New Deal order?
  • Has a new political order, neoliberal or otherwise, taken shape in the United States?
  • How have political parties evolved during and after the New Deal order
  • The New Deal order considered as a global project, and its relationship to American power, military, political, and ideological. 
  • Populisms of the Left and Right. 
  • Race and democracy in New Deal politics and political economy. 
  • The gendered politics of the American state and its social policy.
  • The New Deal and its opposition as ideological and intellectual projects. 
  • The U.S. “Labor Question,” from the Great Depression to the Great Recession.
Please send a two paragraph précis and a short c.v. by February 1. Some funding for graduate students and those with limited travel budgets may be available.  Send proposals to Kristoffer Smemo at

For the planning committee: Nelson Lichtenstein and Alice O’Connor, UCSB, co-conveners; Steve Fraser, The Murphy Institute, CUNY; Gary Gerstle, University of Cambridge; Romain Huret, Ecole des Hautes Etudes en Sciences Sociales; and Jean-Christian Vinel, Université Paris-Diderot.

Spurlin et al. on Reports of S.D. Constitutional Conventions

Candice Spurlin, Catherine Chicoine, Stacy Hegge, and Patrick M. Garry, University of South Dakota School of Law, have posted Journalistic Coverage of the 1883, 1885 and 1889 Constitutional Conventions, which appears in the South Dakota Law Review 59 (2014): 101-55.  Here is the abstract:    
Newspapers have played a significant role in politics in the United States throughout its history. South Dakota is no exception, newspaper played a significant role in the passage of South Dakota's Constitution and its striving for statehood. Newspapers were so prevalent in the southern part of the Dakota Territory in the late 1800s that more than two hundred and twenty towns published their own papers.

Not only did newspapers proliferate in these prairie towns, but they became intimately involved in territorial and statehood politics. This article reprints selected newspaper articles from across the Territory that highlight the discussions taking place at the three Constitutional Conventions of 1883,1885 and 1889. The final of these three conventions ratified the South Dakota Constitution which ultimately led to statehood in November of 1889.

Tsontakis on the Appointment of Arizona's First Federal District Judge

Taft Signs Arizona Statehood Bill (LC)
Anthony Tsontakis, Arizona Legislative Council, has posted Political Vengeance and Remorse in 1912 Arizona, which has just been published in Arizona Attorney (November 2014): 36-43.  It “recounts the political firestorm triggered by President Taft's appointment of Territorial Governor and Territorial Supreme Court Justice Richard Sloan to be the first federal judge for the new district court formed in the State of Arizona in 1912.”

Tuesday, November 18, 2014

Weinrib on Civil Liberties Outside the Courts

Laura M. Weinrib, University of Chicago Law School, has posted Civil Liberties Outside the Courts, which is forthcoming in the Supreme Court Review.  Here is the abstract:
This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the “Constitutional Revolution” reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.

ASLH Panel Report: Rolling Back the Rights Revolution

The 4:00 pm Saturday round of panels at the recently concluded annual meeting of the American Society for Legal History included “Rolling Back the Rights Revolution: The Conservative Ascendancy and the Shifting Legal Terrain.”  I chaired and commented at this quite adequately attended session.  The panel was to consist of three papers, including “Litigation, Arbitration and the American State,” by Sarah Staszak, an assistant professor of political science at the City College of New York and, currently, a Robert Wood Johnson Foundation Scholar in Health Research at Harvard University, but Professor Staszak was unable to attend.  Not to worry: before too long you'll be able to read her No Day in Court: Access to Justice and the Politics of Judicial Retrenchment, due out next year from the Oxford University Press. Professor Staszak has already published some of her other findings in Law and Social Inquiry and Studies in American Political Development.

The first paper, then, was “The Rights Revolution and the Politics of Fiscal Retrenchment,” by Alexander Gourse, a Ph.D. candidate in history at Northwestern and a JD candidate at the Stanford Law School.  It is part of his dissertation, “The Lawyers’ War on Poverty and the Politics of Democratic Pluralism, 1964-1989.”  It recounted a failed constitutional referendum, Proposition 1, that a conservative activist, Lewis Uhler, persuaded then Governor Ronald Reagan to support in 1973 despite the misgivings of the governor’s other advisers. Uhler was the son of a Sunkist executive and FDR hater; he was also Edward Meese’s classmate at Yale College and the University of California-Berkeley’s law school.  His proposal set a ceiling for state expenditures that would decrease over time in a constitutionally implemented program of “enforced austerity.”  Although the referendum failed, in part because Governor Reagan publicly stated that he did not understand it, Gourse shows that it was an early point of entry for economist James M. Buchanan’s public choice theory into the thinking of conservative political and legal figures.  The then-law professor Anthony Kennedy, for example, worked on Proposition 1.

The second paper was “Silencing the Cell Block: Prison Litigation, Federal Courts and the Creation of North Carolina’s Inmate Grievance Commission,” by Amanda Hughett, who is ABD in Duke University’s History Department.  Hughett starts her paper, also culled from a dissertation in progress, with Congress’s passage in 1995 of the Prison Litigation Reform Act, which, she writes, made “it nearly impossible for inmates to challenge correctional practices that violate their constitutional rights.”  She especially faults the statute’s requirement that prisoners exhaust all administrative remedies before filing a federal lawsuit, because most states' grievance procedures are extremely difficult for prisoners to navigate.  When she investigated the origins of North Carolina’s grievance system, she expected to find conservatives intent on rolling back “civil rights by limiting access to federal courts.”  She found, instead, that the initial proponent was a lawyer for the North Carolina Civil Liberties Union, who had concluded that federal courts were so overwhelmed by frivolous Section 1983 suits that they could not give “those very few cases that are promising” the requisite attention.  Only later did the U.S. Senator and former North Carolina Attorney General Robert Morgan lay the statutory groundwork that allowed a grievance procedure “designed to improve life behind bars” to become “an obstacle that inmates had to overcome to access the courts.”

My comment, which discusses Staszak’s paper along with Hughett’s, follows after the jump.

ASLH Election Results

More news from this year's meeting of the American Society for Legal History:

Five members of the Board of Directors are rotating off: Richard Bernstein (New York Law School), Christian G. Fritz (University of New Mexico), Daniel W. Hamilton (University of Nevada, Las Vegas), Linda K. Kerber (University of Iowa), and Amalia Kessler* (Stanford University). 

The five newly elected members are: Alison LaCroix (University of Chicago), Ajay Mehrotra (Indiana University), Patti Minter (Western Kentucky University), Polly Price (Emory University), and Karl Shoemaker (University of Wisconsin).

The other members of the 2015 Board are:
Susanna Blumenthal (2013) (University of Minnesota)
Margot Canaday (2012) (Princeton University)
Jane Dailey (2013) (University of Chicago)
Cornelia Dayton (2013) (University of Connecticut)
Jeremy Kessler, (graduate student representative) (2013) (Yale University)
Michael Lobban (2013*) (Queen Mary College, University of London)
Bruce H. Mann (2013) (Immediate Past President) (Harvard University)
Reuel Schiller (2012) (University of California, Hastings)
Mitra Sharafi (2012) (University of Wisconsin)
David S. Tanenhaus (2012*) (University of Nevada, Las Vegas)
Karen Tani (2012) (University of California, Berkeley)
One member of the Nominating Committee is rotating off:  Lucy Salyer (University of New Hampshire).

One new member has been elected: Martha Jones (University of Michigan)

The other members of the 2015 Nominating Committee are: 
Michael Willrich (2012), Chair (Brandeis University)
Daniel R. Ernst (2013) (Georgetown University)
Ariela Gross (2012) (University of Southern California)
Daniel Sharfstein (2013) (Vanderbilt University)
Thank you to all for their service!

* Executive Committee Member

Monday, November 17, 2014

Edward Coke, Meet Humphrey Bogart

Over at Worlds of Law, Marc S. Weiner has posted another in his series of videos that take legal history as a point of departure about much broader matters.  The latest is On Looking into Coke’s Reports (alternately, “Edward Coke, Meet Humphrey Bogart.”  It asks “Do law and film ever treat time in the same way? “ and seeks an answer in “rare books, jazz, the passage of time, and old movies … and the law reports of the great jurist Edward Coke.”

While at WOL, check out a save-the-date announcement for February 2018 (that’s not a typo).  It is for the opening at New York City’s Grolier Club of “Law’s Picture Books: The Yale Law Library Collection,” an exhibit Weiner is to co-curate with Mike Widener of the Yale Law Library.