Tuesday, March 31, 2015

Present and Future of Civil Rights Movements: A CFP

[We have the following announcement.]

Present and Future of Civil Rights Movements Conference, Duke University School of Law, November 20-21, 2015

The Center on Law, Race and Politics at the Duke University School of Law will hold its Present and Future of Civil Rights Movements Conference on November 20-21, 2015. This symposium will examine the future of American civil rights through the interdisciplinary lens of critical race studies, bringing together scholars and practitioners from the legal and social science communities to engage with each other and create conversations towards a more equitable future.  We encourage paper and panel proposals on a wide range of topics including, but not exclusively encompassing, the following:

"    Present and Future of Civil Rights Movements in relation to
o    Race and criminal justice
o    Minority communities, wealth, and access to credit
o    Race and healthcare
o    Affirmative action
o    Undocumented students and immigration reform
o    School disciplinary policies and the school-to-prison pipeline
o    Reproductive rights
o    Passing and assimilation
o    Discourses about post-racialism
o    Multiracial identity
o    Race and the Workplace
o    Race and the Family
o    International conceptions of equality law

Each proposal must include a cover page with paper title, presenter, affiliation, and a current email contact, along with a C.V. of each presenter and an abstract of no more than 250 words. Please submit materials via email to DukeLawCLRP@gmail.com with the subject line: CRS Symposium Proposal.

The deadline for submission is June 15, 2015. Scholars whose submissions are selected for the symposium will be notified no later than July 15, 2015. We encourage early submissions, as selections will be made on a rolling basis.

Please visit the Center website for more information.

Balleisen Named Vice Provost for Interdisciplinary Studies

A press release from Duke University brings word that “Ed Balleisen, associate professor of history and public policy whose research has led to collaborations with faculty from law, business, environment and other units, has been named vice provost for interdisciplinary studies, Provost Sally Kornbluth announced Monday.” Legal historians well know Professor Balleisen’s work, which includes
a landmark study of bankruptcy in nineteenth-century America, installments of a forthcoming history of business fraud, his collaboration with David Moss on a Tobin Project volume, and papers bridging the fields of history, public policy, law and ethics. Congratulations, Ed!

Managing Borders: An Interdisciplinary Conference

Via H-Law (and Hidetaka Hirota) we have word of the conference Managing Borders: An Interdisciplinary Conference on American Immigration, Heyman Center for the Humanities, Columbia University, New York, April 3-4, 2015:
Please join MANAGING BORDERS: An Interdisciplinary Conference on American Immigration Marking the 50th Anniversary of the Immigration and Nationality Act of 1965. In this two-day conference, leading scholars in the field of American immigration will introduce their latest research, discuss issues and problems associated to American immigration today, and explore new tasks and challenges for immigration scholars. A keynote lecture will be given by Professor Mary C. Waters from Harvard University.
The event is free and open to the public. No pre-registration is required. Seating is first come, first served. Space is limited.

JSCH 40:2

Via H-Law, here’s the table of contents for the Journal of Supreme Court History 40:2:

Melvin I. Urofsky

The Hughes Court Docket Books: The Early Terms, 1929-1933
Barry Cushman

Easing the Shoe Where It Pinches: The Lottery Case and the Demise of Dual Federalism
John W. Compton

Citizenship, Gender, and Conscience: United States v. Schwimmer
Megan Threlkeld

Justices Douglas and Whittaker in Meyer v. United States: A False Claim Rebutted
David J. Danelski 

Statement of Craig Alan Smith                          

Graveyard Dissents on the Burger Court
Greg Goelzhauser

Remembering Warren E. Burger
Robert Fabrikant

Judicial Bookshelf
D. Grier Stephenson, Jr.

Mayeri's Jotwell Review of Tiemeyer's "Plane Queer"

Serena Mayeri has recently reviewed Phil Tiemeyer's Plane Queer: Labor, Sexuality, and AIDS in the History of Male Flight Attendants (University of California Press, 2013) for Jotwell, here. The opening paragraphs follow:
"In my employment discrimination course, I use Diaz v. Pan American Airlines (5th Cir. 1971), overturning Pan Am’s ban on male flight attendants, to illustrate how airlines and other employers tried and failed to exploit Title VII’s bona fide occupational qualification (BFOQ) exception in the years after the Civil Rights Act’s enactment. Pan Am defended its female-only policy as necessary to satisfy the “psychological needs” of its mostly male passengers, who “overwhelmingly” preferred to be served by “young girls.” In Diaz, the court ruled that the “essence” of an airline’s business was not to titillate male travelers, nor to offer maternal comfort to anxious fliers, but rather to keep passengers safe from harm. Excluding men, therefore, could not be “reasonably necessary to the normal operation” of an airline. 
Phil Tiemeyer’s Plane Queer reveals that Pan Am’s defense of the male steward ban was even more insidious than previously understood. The airline argued that male flight attendants performing traditionally female ministrations, such as tucking blankets around dozing passengers, would repulse their (assumedly) male, heterosexual, and homophobic customers. Tiemeyer argues persuasively that Diaz and the other early challenges to airlines’ sex BFOQs are properly seen as queer equality cases, belying conventional assumptions that gay employment rights advocacy merely piggybacked on, or at least postdated, movements for racial justice and women’s rights."

Monday, March 30, 2015

Digital Asian Legal History

Looking for great websites on the legal history of Asia? Here are some favorites from scholars working on the Middle East, South Asia, Southeast Asia and East Asia.

For websites that cut across Asia (often with an imperial focus), check out:
·                     Abdullahi Ahmed An-Na’im’s Islamic     Family Law project website
·                     the archive reviews on Dissertation Reviews
·                     the Center for Research Libraries’ overview of databases on comparative law(including historical materials)
·                      Rohit De and Fei-Hsien Wang's History and the Law website, Centre for History and Economics, University of Cambridge

Cushman's "Clerks of the Four Horsemen," Part II

Speaking of judicial clerks, Barry Cushman, Notre Dame Law School, has posted the second and concluding installment of The Clerks of the Four Horsemen, which appears in the Journal of Supreme Court History.  This installment is 40 (2015): 55-79.  According to Professor Cushman, it “follows the interesting and often surprising lives and careers of the men who clerked for Justices George Sutherland and Pierce Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange bedfellows.”  The first installment is here.  And see also Clare Cushman's Lost Clerks of the White Court.

Early Female Law Clerks of the DC Circuit

Cornelia Groefsema Kennedy (credit)
Good on the editorial board of the Ohio State Law Journal for dedicating a recent issue to Cornelia Groefsema Kennedy.  She commenced an illustrious legal and judicial career by becoming one of the first female law clerks in the DC Circuit, for Chief Judge Harold M. Stephens, in 1947-48.  A decade earlier, Stephens confessed to the newly appointed Henry Edgerton that "personally, I should be very much disinclined to have a woman law clerk.  I much prefer a woman secretary, but when it comes to the rough and tumble of law work, as such, I feel ill at ease in dealing with a women" (December 30, 1937, box 13, Stephens MSS, LC).  Yet Stephens and Groefsema appear to have had a cordial working relationship, judging from an affectionate greeting card from his "distaff" law clerk in box 270 of Stephens's papers.

Edgerton had raised the issue with Stephens, his undergraduate classmate at Cornell, because he wanted to hire a female clerk.  Mary Lybolt (Rosenzweig) was a 1934 graduate of the Cornell Law School, where Edgerton was a faculty member until his confirmation in December 1937.  Stephens told Edgerton, "if you prefer a woman, there is no reason why you shouldn’t have one.” Lybolt began her clerkship with Edgerton in 1938.

Update: In posting the above, I missed John Q. Barrett's tribute, written last June, shortly after Judge Kennedy's death.

On RegBlog: Lee's Workplace Constitution

Over at Penn Law’s RegBlog, a book symposium takes place this week on former LHB Guest Blogger Sophia Lee’s Workplace Constitution from the New Deal to the New Right.

Sir John Baker to Lecture on Magna Carta at St. Andrews

On Thursday, April 2, Sir John Baker, the Downing Professor Emeritus of the Laws of England at St Catharine’s College, University of Cambridge, will give a paper entitled Magna Carta – Statute or Myth? as the annual lecture of the Centre for Mediaeval and Early Modern Law and Literature, University of St Andrews:
Magna Carta has had an immense influence on hearts and minds, and even events, over the last eight hundred years. Yet it is not always understood that this has been achieved more by magic than by operation of positive law. Much of the text was obsolete or obsolescent five hundred years ago, and what remained was difficult even for the lawyers of those days to interpret. In any case, no remedies were provided for private subjects in case the words were not observed by the king. The lecture will address some of these legal difficulties and outline how and when they were overcome.

The English Legal Imaginery, 1500-1700

A two-part conference of papers slated for the forthcoming Oxford Handbook of English Law and Literature, 1500-1700, will take place this spring at Princeton University and the University of St. Andrews.  The website of the Centre for Mediaeval and Early Modern Law and Literature at St. Andrews explains that papers for the conference, entitled "The Legal Imaginery, 1500-1700" will include Roman law and common law, law and drama; law and education; equity, legal reform and literary censorship.

Part I is to take place at Princeton,  Friday, April 17 - 8: 00 AM to Saturday, April 18 - 6: 00 PM.  Speakers include Alastair Bellany, Bradin Cormack, Kathy Eden, Peter Goodrich, Paul Halliday, Daniel Hulsebosch, Lorna Hutson, Sandra Macpherson, Margaret McGlynn, Bernadette Meyler, Mary Nyquist, Joshua Phillips, Jason Rosenblatt, Ethan Shagan, Barbara Shapiro, Nigel Smith, Tim Stretton, Henry Turner, Chris Warren, Luke Wilson.  Part II will take place at the University of St Andrews, May 1-2, 2015.  Speakers will include Martin Butler, Bradin Cormack, Alan Cromartie, Steve Hindle; Rab Houston, Lorna Hutson, David Ibbetson, James McBain, Subha Mukherji, Joad Raymond, Carolyn Sale, James Sharpe, Erica Sheen, Quentin Skinner, Virginia Lee Strain, Elliott Visconsi, Ian Williams, Jessica Winston, and Andrew Zurcher.

Hat tip: Simon Stern

Sunday, March 29, 2015

First Book Workshops

First Book workshops seem to be a growing trend. In this post, I share some thoughts on the model, which offers real value for legal historians.

In a First Book workshop, a scholar presents the first draft of a book manuscript to a group of 4-6 readers who offer feedback during a half-day workshop. At my home institution of the University of Wisconsin–Madison, our Center for the Humanities awards Mellon-sponsored First Book Workshops for junior faculty members in the humanities who are turning their dissertations into books. When my book manuscript was featured several years ago, two of my readers were external. They flew in for a two-day, one-night trip. The other readers were colleagues at my institution. Our session lasted an afternoon and was audio-taped, so I could listen to the conversations again later. There were also group meals before and after the session. Afterwards, several of my readers gave me line-by-line edited versions of my manuscript, a remarkable investment of time and energy on their part. With such a wealth of comments, I felt rather overwhelmed initially. Hiring a graduate student to consolidate all of the comments on a single electronic document helped me move from a deer-in-the-headlights state to productive revision mode.

Why Reconstruction (Still) Matters

ICYMI, Eric Foner's very teachable op-ed in today's New York Times is here.

Sunday Book Roundup

The Washington Independent Review of Books reviews Steve Fraser's The Age of Acquiescence: The Life and Death of American Resistance to Organized Wealth and Power (Little, Brown, and Co).

Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford) is reviewed in the Wall Street Journal.
"In four topics of contention—campaign-finance regulation, state sovereignty, the Commerce Clause and the Second Amendment—Ms. Hollis-Brusky shows how members of the Federalist Society have offered incisive critiques of existing law and suggested originalist alternatives to settled interpretations."
H-Net adds several reviews of interest. There is a review of Darcy Ingram's Wildlife, Conservation and Conflict in Quebec, 1840-1914 (University of British Columbia Press).

There's also a review of Citizenship in Cold War America: The National Security State and the Possibilities of Dissent by Andrea Friedman (University of Massachusetts Press).

Also on H-Net is a review of Brian C. Rathbun's Diplomacy's Value: Creating Security in 1920s Europe and the Contemporary Middle East (Cornell University Press).

The Mulatto Republic: Class, Race, and Dominican National Identity by April J. Mayes (University Press of Florida) is reviewed here.

The final H-Net review of the week is one of Shannon Elizabeth Bell's Our Roots Run Deep as Ironweed: Appalachian Women and the Fight for Environmental Justice (University of Illinois Press).

In The Washington Post there is a review of The Class of '65: A Student, a Divided Town, and the Long Road to Forgiveness by Jim Auchmutey (Public Affairs).

There is an adapted excerpt of Ian Millhiser's Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted (Nation Books) in the New Republic.

Saturday, March 28, 2015

McSweeney on Magna Carta on Public Radio

Today at noon, with rebroadcasts through April 4, Thomas McSweeney, William & Mary Law, will be discussing Magna Carta and its legacy on the public radio show “With Good Reason,” which is produced by the Virginia Foundation for the Humanities and is broadcast on public radio stations in Alaska, Colorado, Florida, Georgia, Hawaii, Indiana, Massachusetts, Michigan, New Mexico, New York, Ohio, Tennessee, Texas, Virginia and Washington DC.  Airing times in various markets are here, and one may subscribe to the podcast on iTunes.  The W&M press release and photo credit are here.  (And here is where you can find out about the book Professor McSweeney is holding.)

Weekend Roundup

  • By any reckoning, the Amicus Brief of Cato Institute by William N. Eskridge Jr., and Steven Calabresi in the same-sex marriage case pending before the US Supreme Court is a landmark of forensic constitutional history.
  • The journal Quaestio Iuris, published by the law faculty of the State University of Rio de Janeiro (UERJ), seeks papers from university professors on Legal Theory, Philosophy of Law, Sociology of Law, History of Law, State Theory, Philosophy, Epistemology and other law-related topics. 
  • A hat tip to John Q. Barrett for bringing to our attention this story about the recovery of 34 boxes taken by the grandson of the great naval historian Samuel Eliot Morison from the U.S. Naval History and Heritage Command collection.  I wonder if they contain any documents relating to Willard Hurst, who compiled an administrative history of the Navy's Bureau of Personnel and was acknowledged in the volume on the Battle of the Atlantic in Morison's naval history of World War 2.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 27, 2015

Magna Carta at the Riesenfeld Rare Books Center

[Via H-Law, we have news of a new exhibit at the University of Minnesota Law Library.]

This year marks the 800th anniversary of Magna Carta. To join celebrations across the globe, the University of Minnesota Law Library has mounted a new exhibit, “Magna Carta, 800 Years: Rights and the Rule of Law,” open through December in the Stefan A. Riesenfeld Rare Books Research Center. Drawing on the strengths of the Riesenfeld Center and the Arthur C. Pulling Rare Books Collection, the exhibit includes more than 75 rare printed books and pamphlets related to the Great Charter and its influence in the Anglo-American legal tradition.

Items on display include notable early printed editions of Magna Carta, copies of the Petition of Right and English Bill of Rights, works by Edward Coke, trials, and documents related to the Levellers. Showcasing early America are rare copies of Thomas Paine's Common Sense, works by James Otis and John Dickinson, and the first US session laws with an unratified version of the Bill of Rights. In the nineteenth century, key speeches and trials chronicle the fight for equal protection under law; and items related to due process and human rights bring the Great Charter into the contemporary world. Through the exhibit we invite visitors to explore Magna Carta's great history and its continuing relevance.

The exhibit is on display through December 15, 2015, at the Law Library's Riesenfeld Center.  For more about exhibit items, please stay tuned to our blog and follow us on Tumblr.

Kreis on Overturning Inter-Racial Marriage Bans before Loving

Anthony Michael Kreis, a doctoral candidate in the University of Georgia School of Public and International Affairs, has posted The Historic Foundation of Collaborative Constitutionalism.  Here is the abstract:    
Legal scholars, political scientists, and historians have long inquired into the role courts play in society and republican governance. In terms of judicial capacity, many scholars reject the notion that courts can implement sweeping social change through brute force. Indeed, prominent social scientists have viewed courts’ efficacy in this arena with skepticism. Whether courts routinely safeguard minority rights against majoritarian impulses is also deeply contested. Relatedly, Alexander Bickel’s articulation of the “countermajoritarian difficulty” — the idea that judicial review is a deviant function in a democratic society — informs much of modern constitutional theory. Some have empirically tested judicial decision-making to learn whether courts actually act in a countermajoritarian fashion. Many historians and political scientists have concluded courts are more apt to follow rather than lead public opinion to the detriment of minority interests.

This question of judicial capacity and social change has returned with great intensity as courts have systematically dismantled state laws prohibiting same-sex marriage. Often in the course of debate, parallels have been drawn between same-sex marriage and interracial marriage. These connections, however, are generally thin in their analysis with respect to the comparative institutional influence of courts and legislatures. This article reconstructs the historical record to better assess the judicial function in social change during the 20 years prior to the U.S. Supreme Court’s pronouncement that interracial marriage bans are unconstitutional in Loving v. Virginia. The historical record reveals strong parallels between the movement to secure recognition of interracial marriages and that of same-sex marriage. Both movements relied upon courts as legitimizing institutions to erode marriage prohibitions. While the courts were woefully inadequate in combating interracial marriage prohibitions, they were not wholly absent actors. Judicial institutions were part of an evolving dialogue — engaging in a form of collaborative constitutionalism — that slowly chipped away at anti-miscegenation laws between 1948 and 1967.

Journal for Legal History Studies 26 (2014)

I'm a bit embarrassed to say that I've only just now learned of the existence of the Journal for Legal History Studies.  Here are the contents of volume 26 (December 2014):

You, Yi-Fei, How to “read” the Qin and Han funerary law?--A Case Study in Zhangjiashan “The Legal Text of Year 2”

Chen,Hwei-Syin, The changed and unchanged of the law and Society in Ming and Qing China – An Observation of legal Documents

Author: Terada, Hiroaki Translator: Chang, Teng-Kai     Between ‘Civil’ and ‘Criminal’ Procedure: Handling Homicide Cases at the District Level in Qing China

Lee, Dian-Jung, Stickman, Servant, and Hooligan: The Development about “Bare Stick” Legislation and the Influence of Manchu Bondservants in Qing (1644-1795)

Li, Jun-Fang,    Questions on Laws and Regulations of the Han Dynasty

Li, Yun-Long, A new exploration of “Duanli” in the Song dynasty

Chiang, Yu-Lin, Homeland and Colonial Identities: Chen Cheng-po and His Works
Prominent Legal Figure

Yu, Ming, Narrative and Account of Professor Yang Chongsen’s Legal Career

Chen, Chang-Ning     An Introduction to Wu Peilin “Civil Disputes and Legal Order in Counties in Qing Dynasty”

Shen, Wei     People and Events on Note of Peking Imperial Law School by Editor Xiong——A Close View to the Three Outstanding Persons of Xiong Family and Anhui Law Study Society

Mack on Robert Bell and His Case

Kenneth W. Mack, Harvard Law School, has posted Harvard Law School, Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell’s Encounter with American Law.  It is derived from Professor Mack’s Leon Silverman Lecture at the U.S. Supreme Court and appeared in the Journal of Supreme Court History 39 (November 2014): 347-71.  Here it the abstract:
This article uses the well-known case of Robert Bell, who was convicted of trespass in one of the important sit-in cases of the 1960s and ended his career as Chief Justice of the Maryland Court of Appeals, to offer some thoughts about the state action doctrine, conflicts between law and morality, and outsider claims on the legal system. It critiques three conventional readings of Bell’s case, and his seemingly unlikely subsequent career.

Employing a historical analysis of the state action doctrine, which was the central issue when Bell’s case reached the Supreme Court, it argues that the case that supposedly originated the doctrine – the Civil Rights Cases decision of 1883 – did no such thing.

In addition, this article questions the view of cases like Bell’s as presenting a sharp conflict between law and morality, arguing that it is not even clear that Bell was violating Maryland’s trespass law.

Finally, the article questions a now-common way of making sense of the arc of Bell’s career – one which would see his rise to the Chief Justiceship as an example of “agency,” in which outsider views of law become, over time, accepted by the legal system. Bell’s case, it will be argued here, has a far more complicated set of lessons to teach, if we discard some conventional ways of reading it.

Hibbitts on the Topography of Law Practice in Pittsburgh

Bernard J. Hibbitts, University of Pittsburgh School of Law, has posted Lawyering in Place: Topographies of Practice and Pleadings in Pittsburgh, 1775-1895, which originally appeared in the University of Pittsburgh Law Review 73 (2012): 620-47.  Here is the abstract:
Pittsburgh Panorama at U.S. Courthouse (LC)
Even in the digital age, lawyering is always located. Lawyers live and work in physical space, and they deal with other lawyers and with clients who also have at least some measure of physicalized existence. Distracted and ofttimes overwhelmed by written records, legal historians have traditionally paid little attention to the physical environment of lawyering, but there are signs that this is beginning to change, largely under the influence of developments in contemporary multimedia technology that regularly remind us of worlds beyond text. Indeed in light of several recent works on American, English and even ancient law it may be time to recognize the birth pangs of a new interdisciplinary field that we might label “legal topography”, literally the study of law in place. Part geography, part architecture, part art, part rhetoric, part anthropology, part psychology, and part performance studies, legal topography would study lawyering in its physical environment, examining how professional and public perceptions of (and interactions with) law are constructed by conditions and dynamics of place, and how those conditions in turn shape legal behavior and even understandings of lawyering and law itself.

This paper probes some of the parameters of legal typography by exploring aspects of lawyering in place in Pittsburgh over a period of 120 years, from 1775 to 1895. This great American city is not only a convenient, but also a compelling candidate for this treatment: its metropolitan and legal history is considerably shorter than other American legal centers such as Boston or New York, yet its experience encompasses a number of key legal topographical shifts that doubtless also occurred elsewhere. In the larger saga of American history, moreover, Pittsburgh at various stages not only represented but defined the frontier, the ante-bellum “market revolution” and late nineteenth-century industrialization, all circumstances that profoundly affected the physical environment of local lawyering. It is Pittsburgh’s remarkable and repeated ability to stand for America in these and other contexts that most appropriately draws our legal topographical gaze.

Thursday, March 26, 2015

Updated CFP: Globalization & the Law in Historical Perspective

[This is an updated version of a previously posted announcement for a junior scholars' conference in legal history,“Globalization & the Law in Historical Perspective," to take place June 4-5, 2015, at the Maurer School of Law, Indiana University-Bloomington.  Note two additions.  First, the deadline for submission is now April 10.  Second, a keynote will be delivered by Professor Sam Moyn of the Harvard Law School.  Sounds like a great opportunity to me!]

In recent years, there has been an explosion of new scholarship on the legal history of globalization.  This rapidly growing body of literature has encompassed diverse topics, including international social movements, the transnational flow of capital, human rights, diplomacy, and border control.  However, as historians have demonstrated, globalization is not a new phenomenon.  We invite junior scholars to submit proposals that offer fresh understandings on the historical relationships between law, legal institutions, and globalization.  Our intention is to host a conference with a wide range of papers chronologically, geographically, and across disciplines.  The conference, part of a series begun in 2007, will be held at the Indiana University Maurer School of Law in Bloomington, Indiana from June 4 – 5, 2015.

The central aim of the conference is to provide junior scholars with a forum to showcase their previously unpublished work and to connect with senior scholars in the field.  The keynote address at the conference will be delivered by Professor Sam Moyn (Harvard Law School).  The “Globalization & the Law in Historical Perspective” conference is sponsored by the Indiana University Maurer School of Law, Indiana University Department of History, University of Illinois College of Law, University of Michigan Law School, University of Minnesota Law School, University of Pennsylvania Law School, and American Society for Legal History.

Interested participants should submit a 300-word abstract and their cv to Bridget Gross (bregross@indiana.edu).  Please place “Legal History Conference” in the subject line of your e-mail submission.  The deadline for proposals is Friday, April 10th, 2015.  Applicants will be notified by email no later than Monday, April 20th.

Accepted participants will be required to submit their final papers by May 20th, 2015.  Papers should not exceed 10,000 words, will be pre-circulated on a password protected website, and read by all conference participants.  Conference organizers will provide modest support for presenters’ travel to Bloomington, Indiana and lodging during the conference.

Federal History (2015)

Federal History 7 (2015), a publication of the Society for History in the Federal Government, is out and available on-line.  Here is the TOC.

Editor’s Note
— Benjamin Guterman

Roger R. Trask Lecture
Setting Precedent: The First Senate and President Washington Struggle to Define “Advice and Consent”
— Charlene Bickford

Public Management of Big Data: Historical Lessons from the 1940s
— Margo Anderson

The War Bond Poster: State Fundraising and National Cohesion Through Mass Media During the World Wars
— Hunter Hollins

A New Frontier: Reevaluating JFK’s Civil Rights Record Through a Case Study of Prince Edward County, Virginia
— Brian E. Lee

The State of Congressional History
•  Introductory Remarks, Richard McCulley
•  Promoting the History of the Senate, Donald A. Ritchie
•  Engaging the Public in the History of the U.S. House of Representatives, Matt Wasniewski
•  Resources and Perspectives, Raymond W. Smock

Fifty Years of Collecting: Curatorial Philosophy at the National Museum of American History
— Steven Lubar

CAL 2:1: New Historical Jurisprudence

Just available online is a special issue of Critical Analysis of Law 2:1 (2015), entitled New Historical Jurisprudence & Historical Analysis of Law.  Its editors explain: 

The New Historical Jurisprudence issue highlights and encourages a trend in recent legal scholarship, or rather scholarship on law, that--like the original historical jurisprudence--pursues a historical analysis of law, as a form of critical analysis of law, rather than legal history, as applied historiography. Generated by theorists with a historical sensibility, and historians with theoretical curiosity, this emerging body of work exploits and challenges the intersection of history and jurisprudence in innovative and exciting ways.
Here are the articles:
Markus D. Dubber
Samera Esmeir
Mireille Hildebrandt
Aaron T. Knapp
Peter L. Lindseth
Arlie Loughnan
Heikki Pihlajamäki
Lena Salaymeh
Galia Schneebaum, Shai J. Lavi
Karl Shoemaker
Robert J. Steinfeld

New Release: Schiller's "Forging Rivals"

Reuel Schiller, University of California-Hastings Law, has just published Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism, in the Cambridge Historical Studies in American Law and Society:
The three decades after the end of World War II saw the rise and fall of a particular version of liberalism in which the state committed itself to promoting a modest form of economic egalitarianism while simultaneously embracing ethnic, racial, and religious pluralism. But by the mid-1970s, postwar liberalism was in a shambles: while its commitment to pluralism remained, its economic policies had been abandoned, and the Democratic Party, its primary political vehicle, was collapsing. Schiller attributes this demise to the legal architecture of postwar liberalism, arguing that postwar liberalism's goals of advancing economic egalitarianism and promoting pluralism ultimately conflicted with each other. Through the use of specific historical examples, Schiller demonstrates that postwar liberalism was riddled with legal and institutional contradictions that undermined progressive politics in the mid-twentieth century United States.
Here’s the TOC:

Introduction. Legal history and the death of postwar liberalism
1. Forging postwar liberalism
2. Ed Rainbow's problem
3. The phony commission
4. A tale of two propositions
5. 1966: a terrible year for George Johns
6. "The day of the minstrel show is over"
7. Forging rivals, shattering liberalism

Professor Schiller puts the book in context in this post on how “the legacy of slavery and Jim Crow gave rise to modern labor and employment discrimination laws” on the Cambridge University Press’s blog. He will join us as a guest blogger in May.

Wednesday, March 25, 2015

Eugenics in South Asian Legal History

 While doing research for my book, I stumbled upon something unexpected: a body of writings on eugenics by and for a non-white population. There is a rich literature on the history of eugenics around the world (Alison Bashford and Philippa Levine's Oxford Handbook of the History of Eugenics is a great place to start). This scholarship explores the ways in which race science glorified whiteness from the nineteenth century until the mid-twentieth.

What I hadn’t realized was that non-Europeans were also using eugenics for their own purposes.

In the early twentieth century, Parsis (or Zoroastrians) in colonial Bombay published books adapting Euro-American race theory to their own population. These authors were writing at a time when their ethno-religious community was developing an increasingly racialized identity. Parsis disagreed over whether ethnic outsiders could be accepted into their religion and community, or whether European wives and adopted Indian orphans were out.  This controversy played out in the courts in a series of lawsuits across the British Empire. (I explore these cases in my book, here and here).

Sturgeon on China's Free Speech Tradition

Roy L. Sturgeon, Tulane University Law School, has posted China's Homegrown Free-Speech Tradition: Imperial Past and Modern Present. And Post-Modern Future? which appeared in the Florida Journal of International Law 26 (2014): 291-330.  Here is the abstract:
Freedom of speech, or the right to publicly criticize government officials and policies without being criminally prosecuted or otherwise deprived of personal liberty, is the most important right citizens have in nations claiming to be democratic, respect human rights, and follow the rule of law. The People’s Republic of China (PRC) Constitution grants citizens this right. But those exercising it in the political sphere have met grave problems since the PRC’s founding in 1949. Tension and conflict over free speech in China, however, are not only recent phenomena. They have existed for millennia. A recounting of six important free-speech cases throughout Chinese history shows why the ruling Communist Party should give ordinary citizens a greater say in public affairs to help fix the nation’s chronic legal and political problems and sustain breathtaking economic reforms begun in 1978. Albeit hard, this is the best way for the Party to save itself and avert full-blown social unrest in the short term as well as transform the PRC into more than the world’s sweatshop by century’s end.

Muller on Illiberal China in a Liberal International Order

Wim Muller, University of Manchester School of Law, has posted China: An Illiberal, Non-Western State in a Western-Centric, Liberal Order? which is forthcoming in the Baltic Yearbook of International Law (2015).  Here is the abstract:    
In June 1989, a few months before the events which precipitated the fall of the Berlin Wall and the end of the Cold War, the government of the People’s Republic of China (PRC) violently repressed a movement for democracy centred on Tiananmen Square in Beijing. These events placed human rights at the centre of international – especially Western – attention to China for the next two decades and in many way cast China as an ‘outlaw’ state. In more recent years, the focus on human rights in China has been eclipsed by the attention for its spectacular rise as an economic and military power. Thanks to these developments and its position as a permanent member of the UN Security Council, China is now firmly established as a great power. Yet the fact that China is an illiberal, authoritarian state, still sets it apart from the international mainstream as seen through western eyes.

Studying China’s approach to international law may well be seen as an examination of two entities suffering from an identity crisis, or at least two entities engaged in a continuing struggle to redefine their own identity. International law as an academic discipline often appears to be a continuous re-examination of its own existence. China, or rather the PRC, is itself in the process of redefining its identity. As the world’s most populous country, harbouring one fifth of its population and one of its oldest distinct civilisations, it cannot be presumed to be a monolithic entity. The current Chinese leadership, leading a state which has only existed since 1949 and spent its first three decades in significant turmoil, has to balance many interests and accommodate many views on what it means to be Chinese, to safeguard the legitimacy of the leadership of the Communist Party of China (CPC) at home and its position in the ‘international community’, which has led it, as part of its foreign policy, to start promoting a state-sponsored discourse of Chinese culture as part of an effort to increase China’s ‘soft power’. These efforts at developing a new identity need to be seen in the light of 150 years of upheaval and the historical narrative of a ‘century of humiliation’ which are part of the dominant political discourse.

These two struggles for identity form the backdrop of the present contribution, which discusses the historical origins of China’s approach to international law and some of its current practice, followed by an assessment whether China’s approach really differs from that of ‘liberal’ states in international law.

New Release: Herzog on Expatriation from Colonial American to the War on Terror

Ben Herzog, Ben-Gurion University of the Negev, has published Revoking Citizenship: Expatriation in America from the Colonial Era to the War on Terror (NYU Press, 2015):  
Expatriation, or the stripping away citizenship and all the rights that come with it, is usually associated with despotic and totalitarian regimes. The imagery of mass expulsion of once integral members of the community is associated with civil wars, ethnic cleansing, the Holocaust, or other oppressive historical events. Yet these practices are not just a product of undemocratic events or extreme situations, but are standard clauses within the legal systems of most democratic states, including the United States. Witness, for example, Yaser Esam Hamdi, captured in Afghanistan in November 2001, sent to Guantánamo, transferred to a naval brig in South Carolina when it was revealed that he was a U.S. citizen, and held there without trial until 2004, when the Justice Department released Hamdi to Saudi Arabia without charge on the condition that he renounce his U.S. citizenship.

Hamdi’s story may be the best known expatriation story in recent memory, but in Revoking Citizenship, Ben Herzog reveals America’s long history of making both naturalized immigrants and native-born citizens un-American after their citizenship was stripped away. Tracing this history from the early republic through the Cold War, Herzog locates the sociological, political, legal, and historic meanings of revoking citizenship. Why, when, and with what justification do states take away citizenship from their subjects? Should loyalty be judged according to birthplace or actions? Using the history and policies of revoking citizenship as a lens, Revoking Citizenship examines, describes, and analyzes the complex relationships between citizenship, immigration, and national identity.
An endorsement:

 "An original fascinating and  insightful interpretation of a neglected dimension of American political culture: the power to revoke citizenship. Herzog’s book is an important exploration of  the deeper meaning of political and national culture as it affects and is affected by legal arrangements."—Pnina Lahav, Boston University

Kellogg on Law, Science and the Formative Years of Pragmatism

Frederic R. Kellogg, George Washington University, The Social Dimension of Logical Induction: Law and Science in the Formative Years of Pragmatism, a colloquium paper for presentation at American Philosophical Association, Pacific Division Meeting on April 1, 2015.  Here is the abstract:    
After attending lectures on induction by C.S. Peirce in 1866 and reading J.S. Mill’s System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of “reasoning from particulars to particulars.” But he added an element of the emergence of generals from particular judgments, in the social context of legal disputes. Here, the bearing of particular to general is one of consensual emergence, integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of knowledge through the tension between facts and ideas. Legal and scientific knowledge may be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of intersubjective classification, and the role of concepts and theories in guiding the conduct of professional inquirers, framing and maintaining the coherence of expert and general belief.

Tuesday, March 24, 2015

Hutchison on the Origins of the Debt/Equity Distinction

Camden Hutchison, a PhD candidate at the University of Wisconsin-Madison, has posted The Historical Origins of the Debt-Equity Distinction, which is forthcoming in the Florida Tax Review.  Here is the abstract:
The U.S. tax code favors corporate debt over corporate equity, a distinction long criticized by economists, legal scholars, and other tax commentators as both theoretically and practically unsound. For decades, academics and policymakers from a variety of disciplinary and political backgrounds have argued that this so-called “debt-equity distinction” distorts corporate financing decisions, encourages excess borrowing, and invites troublesome tax-avoidance behavior. Surprisingly, despite widespread critical attention, the origins of this policy remain a mystery. Primarily focused on its contemporary significance, scholars have disregarded the distinction’s past.

This article uses historical evidence to trace the debt-equity distinction’s origins, development, and continuing evolution. Citing legislative history, business lobbying efforts, and important changes in the broader historical context, it argues that the disparate treatment of debt and equity was never a conscious policy goal, but was rather the unintended outcome of an extended series of short-term political decisions. These political decisions were historically specific — i.e., formulated in response to temporary historical contingencies — but had consequences that have persisted to the present day. The article concludes by assessing the broader implications of this history for both the current structure of the U.S. tax system and the prospects of future tax reform.

Tomlins on Styron's Nat Turner

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, has posted Styron's Nat: Or, the Metaphysics of Presence, a condensed version of which is forthcoming in Critical Analysis of Law.  Here is the abstract:
In 1967, the American novelist, William Styron, published his third major work of
fiction, a book entitled The Confessions of Nat Turner. Styron’s Confessions represented itself as the autobiographical narrative of an African American slave, known as Nat Turner, who in August 1831 had led a slave revolt (the Turner Rebellion) in Southampton County Virginia, not far from the Virginia Tidewater region where Styron himself had grown up. Both Turner and the revolt that bore his name were real enough. But for Styron the Turner of record was “a person of conspicuous ghastliness” with whom he wished to have no connection. And so, claiming “a writer’s prerogative to transform Nat Turner into any kind of creature I wanted to transform him into,” Styron invented his own Nat, inspired by “subtler motives” than those manifested by the historical Turner. Why did the William Styron who had been obsessed by the story of Nat Turner since he was a boy make no attempt to comprehend the Turner whom he actually encountered in the sources he consulted (“I didn’t want to write about a psychopathic monster”)? Why “re-create” Turner in a persona that might be “better understood”? The answer seems to lie in what Styron represents as an act of self-expiation that is simultaneously an act of regional and even national expiation, an act that led him to claim that his Confessions was not a “‘historical novel’” but a “meditation on history.” By re-creating Nat Turner and his motives, Styron seeks respite from American history’s bloody racial rampage in cathartic reconciliation with (through knowledge of) “the Negro.” The attempt was, of course, hopeless. Styron’s Nat is not a knowable Negro at all but the figment of an authorial imagination that, notwithstanding Styron’s insistence that he had respected “the known facts,” sedulously refused all of Turner’s own explanations of himself. Yet the attempt was neither uninfluential nor unimportant. As a published book Styron’s Confessions was a major commercial success. It became one of the principal channels through which white America, in the midst of its confrontation with civil rights agitators, Black Power, and the urban riots of 1967 and 1968, renewed its acquaintance with slavery and slave rebellion. It generated intense controversy within late 1960s academic and “public intellectual” circles. And it stimulated critical assessment of the novel’s fictive realities and their relationship to the representation of historical events. In this paper I ask what called Styron’s fictive realities into being, and how they were crafted. I ask what made his work a “meditation on history” – and why it failed. Finally, I ask whether it is possible to redeem Nat Turner from the effects of our attempts to “understand” him; whether, that is, he might achieve a historical presence of his own that is ever other than ghostly, or ever other than past.