Monday, August 31, 2015

A Symposium on Mendez v. Westminster

We've noted the publication of Philippa Strum's book on Mendez v. Westminster and an exhibit on the litigation in the federal courthouse in San Diego.  Now the transcript of the introductory secession of a symposium on the case is up on SSRN.  It is Mendez v. Westminster: A Living History, Michigan State Law Review 2014: 401-27, with contributions from Judge Frederick P. Aguirre, Kristi L. Bowman, Gonzalo Mendez, Sylvia Mendez, Sandra Robbie, and Philippa Strum:
School desegregation is not just a "black and white" issue, and in fact it never has been. In 1931, a county court in Lemon Grove, California ordered a school district to stop segregating its white and Latino students. Fifteen years later in 1946, a court reached the same result in Mendez v. Westminster, becoming the first federal court to order the desegregation of schools. In this piece, Gonzalo Mendez and Sylvia Mendez (both now retired) recall their experiences as the children whose parents initiated the groundbreaking Mendez litigation, and the way in which their parents remembered the litigation. Sandra Robbie, who wrote and produced the Emmy-award winning documentary about the case, discusses its historical context. Frederick Aguirre, now a judge, reflects on the legal and personal significance of the decision. Philippa Strum, author of a book about the case, considers the unique challenges and rewards of writing about school desegregation cases. Kristi Bowman facilitates these various reflections and weaves them together.

Ginsburg on Papal Printing Privileges as Proto-Property

Who says alliteration is dead?  Jane C. Ginsburg, Columbia Law School has posted Proto-Property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges, which is forthcoming in The History of Copyright Law: A Handbook of Contemporary Research, ed.  Isabella Alexander & H. Tomas Gomez-Arostegui (Edward Elgar, 2015):
This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents — almost all unpublished — in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.

The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because the majority of these privileges were awarded to authors, and even where a printer received a privilege for a work of a living author, the petition increasingly asserted the author’s endorsement of the application. The predominance of authors might suggest the conclusion that the Papal privilege system more closely resembled modern copyright than printer-centered systems. That said, it would be inaccurate and anachronistic to claim that authorship supplied the basis for the grant of a Papal privilege. Nonetheless, a sufficient number of petitions and privileges invoke the author’s creativity that one may cautiously suggest that authorship afforded a ground for bestowing exclusive rights.

The Study proceeds as follows: first, a description of the sources consulted and methodology employed; second, an account of the system of Papal printing privileges derived from the petitions for and grants of printing monopolies; third, an examination of the justifications for Papal printing monopolies and the inferences appropriately drawn regarding the role of authors in the Papal privilege system.

Writing Abortion History

As I end my time on Legal History Blog, there is another issue worth discussing: the challenges of writing the history of an issue as divisive as abortion. Some of the obstacles I faced were practical. Most major archives contain very little on the antiabortion movement. Even promising libraries often did not resemble the ones I expected. I once visited the basement of a convent undergoing construction and was left completely unsupervised. Luckily for the nuns, I had no intention of leaving with boxes of archival material in my bag.

Other challenges were personal. Like many scholars, I had my own opinions about abortion. To a greater extent than I had realized, I often had preconceived ideas about the activists on either side of the struggle. Telling their story fairly and without judgment was not always easy. Conducting oral histories with many activists helped me cut through my own fixed ideas about abortion. 

Finding the language to discuss abortion history in person or in writing could also be difficult. I wanted to talk in a way that would not misrepresent who I was or what I thought, but I also wanted to create a comfortable, nonjudgmental environment for activists already distrustful of anyone asking to talk. In spite of these challenges, hearing activists describe their journeys helped me set aside some of the stereotypes I had relied on. Many of these activists were generous with their time. Some sent me personal papers or recorded oral histories. A few have passed away since I spoke with them and before I could properly thank them for their help. 

Presenting historical work on this subject can be as hard as writing it. Once, in discussing my work on compromise after Roe, one audience member asked me whether it would be good a thing if “we” could compromise with “them.” I was not sure which side of the abortion issue my questioner took, but in discussing a subject that arouses so much passion, I was not surprised that discussion immediately turned from historical to normative questions about abortion. Something similar happened in media reviews. Some only briefly discussed what the book said before moving on to what the law ought to do.

But I think it is the dominance of normative questions about abortion that makes it so important for historians to study the law and politics of reproductive health. Much of this legal history remains to be written.

Sunday, August 30, 2015

Sunday Book Roundup

The New Rambler has a review of Natural Law in Court: A History of Legal Theory in Practice by R.H. Helmholtz (Harvard University Press).

Christine Desan's Making Money: Coin, Currency and the Coming of Capitalism (Oxford University Press) is reviewed in The Financial Post (here) and in the Journal of Legal History (here). From JLH:
"Professor Christine Desan is the co-founder of Harvard’s Program on the Study of Capitalism. This is a significant and innovative new development in the teaching and researching of legal, business and economic history. It marks a start of a new wave in the way that we teach and think about the history of capitalism. Here the scholars collectively advocate a move away from the more traditional issues of profitability, efficiency, strategy and effective management, and focus upon issues of power, on the
effects of ways of organizing production, distribution, buying and selling, on society, on policy, and politics. ..."
"In sum, this book is of tremendous value and a notable text in legal history and within those subjects at the peripheries surrounding it. It sets a new path in challenging our ways of studying commercial law and viewing money and currency as a purely economic tool and as a mechanism of exchange."
From H-Net is a review of the volume, Drone Wars: Transforming Conflict, Law, and Policy (Cambridge University Press) edited by Peter Bergen and Daniel Rothenberg.

Also on H-Net is a review of James D. Morrow's Order within Anarchy: The Laws of War as an International Institution (Cambridge University Press).

The Washington Post has a review by Cary Franklin of Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World by Linda Hirshman (Harper).
"With a good nose for the big legal story of the moment, Linda Hirshman — author of “Victory” (2012), a popular account of the gay rights movement — is back, this time with “Sisters in Law,” a joint biography of Ginsburg and Sandra Day O’Connor. Ginsburg is attracting a lot of attention these days, especially from the young and hip (who have emblazoned all manner of dry goods with her likeness and blanketed D.C. with “Can’t Spell Truth Without Ruth” stickers). But it’s not just the Ginsburgian subject matter that makes Hirshman’s book seem so vital. “Sisters in Law” tells the life stories of the nation’s first female justices, but it is as much about how we got to the present juncture with respect to women’s legal rights."

Saturday, August 29, 2015

Weekend Roundup

  • Amici, the podcast series of, has an interview with Marilyn Marcus, executive director of the Historical Society of the New York Courts.  Among other things, Ms. Marcus discusses Former Chief Judge Judith Kaye's role in founding the Society.
  • The American Lawyer has honored former Georgetown law dean (and FTC chairperson) Robert Pitofsky with its Lifetime Achievement Award
  • Florida International University's press release noting Professor M.C. Mirow's selection to co-direct a graduate student colloquium at October's ASLH meeting is here
  • Speaking of the ASLH, we just got our electronic ballot.  It's a good time for readers who aren't members to join, and for members to reflect on their priorities in choosing board members, including recognizing legal historians who work on times and places other than one's own.
  • Edward J. Balleisen on teaching legal and business history in Duke Magazine. H/t: Brad Snyder
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, August 28, 2015

Triangle Legal History Seminar, 2015-16

Via Al Brophy over at the Faculty Lounge, we have the schedule for the Triangle Legal History Seminar for 2015-16.  Al writes that the seminar meets at the National Humanities Center, except on December 4, when it will meet at UNC Law School.   Except for October 1, the seminar begins at 4 pm.
Sean Vanatta, Princeton University, September 25

Wilfred Prest, University of Adelaide, October 1

Ryan Poe, Duke University, November 6

Richard Paschal, George Mason University,  December 4

Renzo Honores, High Point University, January 15

James Campbell, Stanford University, February 12

Ashley Elrod, Duke University, March 4
Anna K. Johns, Duke University, March 25

Matt Sommer, Stanford University, April 22

Price on "Health Security" and Mentally Ill Immmigrants

Polly J. Price, Emory University School of Law, has posted Infecting the Body Politic: Observations on Health Security and the 'Undesirable' Immigrant, which will appear in the Kansas Law Review 63 (2015): 917-52:
Sovereign nations may refuse admission to migrants who are either physically or mentally ill or disabled. Nations have commonly preferred an ideal class — the physically and mentally healthy — to the “undesirable” migrant who is unhealthy or disabled. Both exclusions are traditionally justified as a nation’s prerogative to choose its membership. Nations defend exclusionary safeguards by the need to protect their citizens against contagions from the outside world. Immigrants who are physically or mentally disabled do not pose the same threat, but they may require state services and support, what U.S. immigration law terms a “public charge.” Mental illness is a different category altogether, in that public safety may be an issue, in addition to the need for state welfare expenditures.

Mental disorder as a disqualification for entering the U.S., and accordingly disqualification for U.S. citizenship, has a long history. On two notable occasions in the past, Congress has focused specifically on mental health of would-be immigrants — the first decade of twentieth century, and again in the early 1950s. At the same time, state officials desired to rid themselves of “undesirable” non-citizens housed in state institutions. The solution was to collaborate with the federal government to deport them on mental health grounds. In 1926, for example, 796 persons were deported for “insanity” or “epilepsy,” 257 for “other mental conditions,” and 887 as “likely to become a public charge,” out of nearly 11,000 total deportations that year.

With established interests to protect, the United States along with every other nation imposes constraints on citizenship and migration by self-selection. The screen of “health security” is used to cover policy choices — whether to assume the risk of successfully managing contagious disease; whether to assume the burden of managing mental illness — that have shaped immigration policy for more than a century. The foremost difference is that contagious disease presents a verifiable condition, where mental illness has been defined in such hazy terms as to be applicable to just about anyone — or at least, as Justice Douglas argued, anyone “unpopular.”

More on the History of the Carceral State

We previously noted the JAH's special issue on the history of carceral state.  That issue is now freely available on line.  Also, the contributors have a series of posts on the OAH's blog Process, which you may access through pointers on OUPblog.

Three contributors to the symposium will give a congressional briefing under the auspices of the National History Center on October 9, from 1-2, in Room 2226 of the Rayburn Building: Alex Lichenstein, Indiana University; Khalil Gibran Muhammad, Schomburg Center; and Heather Ann Thompson, University of Michigan.

Compromise and Marital-Status Discrimination

At the heart of After Roe is a story about when and why conflict about abortion and gender escalated. Before writing the book, I believed that the Roe decision itself inevitably led to the culture wars we face now. As Gene Burns, Linda Greenhouse, and Reva Siegel have shown, compromise on the abortion issue itself seemed impossible well before the Court intervened. By raising the salience of the abortion issue, however, the Court drew attention to a question that hopelessly divided Americans. In responding to Roe, the antiabortion movement got bigger and more sophisticated. As historian Daniel K. Williams argues in a forthcoming book, abortion opponents also responded to the decision by prioritizing a constitutional amendment. Movement members ended up supporting whichever political party endorsed their constitutional agenda. When Ronald Reagan made the Republican Party the “party of life,” he strengthened an alliance between pro-lifers and the political Right.

Just the same, as I document in After Roe, the Court’s 1973 decision did not immediately or inevitably eliminate compromises on other important gender issues. Indeed, in the decade after Roe, influential activists on either side of the debate viewed common-ground solutions as more important than ever, particularly on the issues of pregnancy discrimination, welfare for adolescent mothers, and even the regulation of fetal research. I argue that the polarization of these issues came later and for reasons beyond the Court’s decision, including the rise of the New Right and Religious Right and political party realignment.
The book left me wondering about other areas of possible cooperation. At times in the 1970s, some pro-lifers pushed for laws banning marital-status discrimination, particularly at the local and state level. For certain movement leaders, these laws promised to reduce abortion rates by removing the stigma of illegitimacy and unwed motherhood. In the same period, as part of the early push for civil-rights ordinances, gay, lesbian, bisexual, and transgender activists also called for bans on discrimination on the basis of both sexual preference and marital status. For these advocates, ending marital-status discrimination would protect gays and lesbians who could not marry while undermining the legitimacy of state regulation of sexuality more broadly.
Agreeing with gay, lesbian, bisexual, or transgender activists would, I imagine, have exposed another fault line in the antiabortion movement. Some movement members saw sexual irresponsibility, not abortion, as the core problem in American society. While praising marital, procreative sexuality, others argued against laws that punished what they considered transgressive sex, seeing these regulations as harmful to children and mothers and coercive of abortion.

Serena Mayeri’s forthcoming work on the rise of marital supremacy in the 1970s will illuminate an important part of the story about challenges to the sexual status quo in the decade after Roe. A surprisingly diverse group of activists called for protection of the non-marital family. In order to understand the consequences and history of the marriage equality struggle, we should turn our attention to the legal history of that effort and its ultimate decline.

Thursday, August 27, 2015

Laura Edwards’s Civil War Stories

Duke Today has a lovely on-line feature article, complete with embedded videos, entitled Laura Edwards’ Civil War Stories, prompted by the appearance of Professor Edwards's Legal History of the Civil War and Reconstruction: A Nation of Rights (Cambridge University Press, 2015).

Michigan's Legal History Workshop, Fall 2015

Here’s the Fall 2005 lineup for the Legal History Workshop jointly sponsored by the University of Michigan Law School and University of Michigan Department of History.  Sessions meet in 0220 South Hall (Law School) unless otherwise noted.  Guests can obtain the readings via email from Dara Faris (

September 9. (Wednesday.)  C
laire Lemercier. CNRS and Sciences Po (Paris.)
"How do Businessmen Like Their Courts? Evidence from Mid-19th Century France,     England, and New York City."  Special Session Co-Sponsored by the Law & Economics Workshop.  OTE: This session held in Hutchins Hall Room 132.

September 22.   Eric Foner. Columbia University.
Gateway to Freedom: The Hidden History of the Underground Railroad. With guest     commentator, Tiya Miles, University of Michigan.

September 29. Sara Mayeux. University of Pennsylvania Law School.
"The ‘Progressive' Public Defender (and Its Alternatives) in Los Angeles, 1914-1949"

October 6. Rebecca J. Scott. University of Michigan.
"'Acts of Ownership and Authority': The Enslavement of Eulalie Oliveau"

October 13. Tom Romero. Strum College of Law, University of Denver.
"Water, Water Everywhere…and No Where: Bridging the Confluence of Water and     Immigration Law"

October 27. Charlotte Walker-Said. John Jay College, CUNY.
"Faith, Power, and Family: Law and Christianity in Interwar Cameroon"

November 3.  Kunal Parker. University of Miami School of Law.
"Making Foreigners: Immigration and Citizenship Law in America"

November 17.  Amanda Alexander. University of Michigan.
"'The Authorities Cannot Meet Demand': Prison Labor, Pass Laws, and Agricultural     Development in Apartheid South Africa"

November 24.  H. Timothy Lovelace, Indiana University Mauer School of Law.
"The World is on Our Side:  The U.S. Origins of the United Nation's Race Convention"

December 3 (Thursday.)  Tomiko Brown-Nagin, Harvard Law School.
"The Honorable Constance Baker Motley: The Honor and Burden of Being First"
 NOTE: Location is Hutchins Hall room 236.

Harder and Patten, "Patriation and Its Consequences: Constitution Making in Canada"

New from the University of British Columbia Press: Patriation and Its Consequences: Constitution Making in Canada (June 2015), by Lois Harder (University of Alberta) and Steven Patten (University of Alberta). A description from the Press:
Few moments in Canadian history are as intriguing as the "patriation" of Canada’s constitution from Britain. Over the years, the tale of the political battle between Prime Minister Pierre Trudeau and the "Gang of Eight" provincial premiers opposing his patriation plans has developed mythical status. Constitutional lore suggests Canadians would not have a patriated constitution or entrenched the Charter of Rights and Freedoms if not for some last-minute negotiations that took place in a hotel kitchen the night of 4 November 1981 – a night Quebec Premier René Lévesque famously described as the "Night of the Long Knives," when his seven provincial allies deserted him.

In an effort to look beyond this familiar narrative, Patriation and Its Consequences: Constitution Making in Canada revisits these negotiations and the personalities, visions, and struggles that shaped the resulting constitutional agreement. Offering fresh perspectives on the politics of this key moment in Canadian history, it focuses on the players behind the patriation process, including First Nations and feminist activists, who helped shape Canada’s new constitution.

The volume also examines the long shadow of patriation, including the alienation of Quebec, the character of Canadian federalism, Indigenous constitutionalism and Aboriginal treaty rights, and the struggle to ensure gender equality rights in Canada. 
More information, including the TOC, is available here.

RFP: A History of the US Court of Appeals for Veterans Claims

[We have the following Request for Proposals for a "book on the history of the creation and the first 25 years of the U.S. Court of Appeals for Veterans Claims."]

Content.  The U.S. Court of Appeals for Veterans Claims (USCAVC) seeks proposals for a scholarly book on the history of the creation and the first 25 years of the Court. If the Court determines to publish such a book, the book will describe judicial review of veterans appeals and the effect of the Court upon veterans' benefits and the Department of Veterans Affairs (VA) claims and appeals process. Possible topics could include:

· Efforts of veterans and organizations to obtain judicial review of veterans benefits decisions
· Legislative history and the process involved in the creation of the Court
· The Early Phase of the Court's History, including
· Interviews with original judges
· Creating a new body of law
· Administrative challenges in establishing a new court
· Later Phases of Court history, including significant events since inception
· Gardner v. Brown-first USCAVC decision subject of Supreme Court review
· The effect of the Veterans Claims Assistance Act on the Court
· The second wave of new judges
· Establishment of USCAVC Bar Association
· Temporary expansion of Court to nine judges
· Unique features of the Court and their impact
· Single-judge decision authority
· Representation of veterans by non-attorney practitioners
· Appellate review by an intermediate appellate court
· Court's place in the veterans appellate structure
· Significant decisions of the Court

Sources will include published records of the Court, other published accounts (such as journal articles, Congressional legislative records, and VA records), statistics, and oral histories.

Format.  The book will be a hard cover illustrated history of approximately 100-200 pages in length not including the table of contents, index and appendices. The book size is expected to be 6.75" x 10".

Terms of Service.  The Court will pay reasonable author's fees plus expenses.  The Court will not pay any fees incurred for the preparation of any bidder's response to this Request for Proposals.  There will be a series of deadlines for deliverables and drafts to the Court for review, with the ultimate time for the author(s) to complete the draft to be approximately one year from the signing of a contract.

Rights to the Work.  The Court will retain exclusive right to publish the materials. The author will be provided a specified number of copies for personal use and not for resale.

Selection Criteria. Selection is at the sole discretion of the Court but if a selection is made, it will be made based upon the Best Value.  Factors considered will include:
· author's proposed approach to the book, suggested deadlines, schedule, and budget
· author's overall experience
· quality of author's past publications
· author's familiarity with subject matter
· author's fee and estimated expenses

Selection and any resulting contract will be in compliance with the Court's procurement policy and all applicable federal laws. Award of a contract is contingent on the absence of, or the absence of appearance of, any conflicts of interest, as determined by the Court, between the bidder and the Court.

Proposals and Deadline.  All proposals should include the following:
 · a curriculum vitae for each author
· a 1,000-1,500 word description of the proposed approach to the book
· complete contact information for each author
· suggested deadlines and schedule for deliverables
· suggested budget to include fees and expenses
· two references

Deadline for the submission of proposals is November 30, 2015.  Proposals should be sent as email attachments to:

Gregory O. Block
Clerk of the Court
United States Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, D.C. 20004

Questions.  Questions should be directed to the Clerk of the Court care of the email address noted above.  Answers to questions will be sent by reply email, and all questions and answers submitted will be published for review on our Court website under "Employment" via the link titled "Court History Book Request for Proposals Q&A Summary."

Eaton on Spectral Evidence at Salem, 1692

Matteson's "Trial of George Jacobs" (LC)
Rebecca Eaton has posted her LL.B honors paper at the Victoria University of Wellington, written in 2013, The Legitimacy of Spectral Evidence During the Salem Witchcraft Trials:
This paper looks at the use of spectral evidence during the Salem witch trials and examines whether its use was legitimate and in accordance with the evidential standards of the time (1692). Ultimately this paper finds that the use of spectral evidence was legitimate as it followed the slim guidelines available at the time. The court followed a strong precedent and the limited statutory guidance and instructions that were available. However there was acknowledgement at the time that spectral evidence was limiting the rights of those accused and was leading to unjust convictions. As such these trials invoked an acknowledgement of more modern standards of evidence. Therefore spectral evidence was legitimately used given the guidelines of the time despite the unjust effect that it had.

Cohen on Judge Ginsburg's Seg Academy Case

My Georgetown Law colleague Stephen B. Cohen has posted “Seg Academies,” Taxes, and Judge Ginsburg, which is forthcoming in The Legacy of Ruth Bader Ginsburg, ed. Scott Dodson (Cambridge University Press, 2015):
This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.
Cambridge writes of the collection:
Ruth Bader Ginsburg is a legal icon. In more than four decades as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. This book chronicles and evaluates the remarkable achievements Ruth Bader Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg's career. Together, these perspectives document the impressive legacy of one of the most important figures in modern law.
 The TOC is here.

Wednesday, August 26, 2015

Age of Lawyers: The Roots of American Law in Shakespeare's Britain

Paster Reading Room (credit)
We have the following announcement of a new (and free) exhibit at the Folger, Age of Lawyers: The Roots of American Law in Shakespeare's Britain.  The curator is the Folger’s Caroline Duroselle-Melish.  The Academic Advisor is Erin Kidwell of the Georgetown Law Library.  (Georgetown is loaning Sir Edward Coke’s annotated copy of Bracton.)  The exhibit runs September 12, 2015 through January 3, 2016, so plan on viewing it when you’re in town for the ASLH meeting a few blocks away.  The exhibit is in memory of Dr. Christopher Brooks (1948–2014).
In the 800th anniversary year of the Magna Carta, Age of Lawyers will offer a close-up look at the rapid increase of lawyers and legal actions in Shakespeare's Britain, from the law's impact on daily life to major political and legal disputes—some invoking the Magna Carta—that still influence American politics and government.

Age of Lawyers will give visitors the chance to explore many of the Folger legal manuscripts on display in further depth through newly digitized images and translated transcripts produced by a current Folger project, Early Modern Manuscripts Online (EMMO).

Porter, "Their Lives, Their Wills: Women in the Borderlands, 1750–1846"

New from Texas Tech University Press: Their Lives, Their Wills: Women in the Borderlands, 1750–1846, by Amy M. Porter (Texas A&M University). A description from the Press:
In 1815, in the Spanish settlement of San Antonio de Béxar, a dying widow named María Concepción de Estrada recorded her last will and testament. Estrada used her will to record her debts and credits, specify her property, leave her belongings to her children, make requests for her funeral arrangements, and secure her religious salvation.

Wills like Estrada’s reveal much about women’s lives in the late Spanish and Mexican colonial communities of Santa Fe, El Paso, San Antonio, Saltillo, and San Esteban de Nueva Tlaxcala in present-day northern Mexico. Using last wills and testaments as main sources, Amy M. Porter explores the ways in which these documents reveal details about religion, family, economics, and material culture. In addition, the wills speak loudly to the difficulties of frontier life, in which widowhood and child mortality were commonplace. Most importantly, information in the wills helps to explain the workings of the patriarchal system of Spanish and Mexican borderland communities, showing that gender role divisions were fluid in some respects. Supplemented by censuses, inventories, court cases, and travelers’ accounts, women’s wills paint a more complete picture of life in the borderlands than the previously male-dominated historiography of the region.
More information is available here.

Tuesday, August 25, 2015

Soucek on the Cold War and the 1965 Immigration Act

Brian Soucek, University of California, Davis School of Law, has posted The Last Preference: Refugees and the 1965 Immigration Act which is forthcoming in The Immigration and Nationality Act of 1965: Legislating a New America, ed. Gabriel J. Chin and Rose Cuison Villazor (2015):
The 1965 Immigration Act is remembered — and celebrated — for having replaced an immigration system driven by national origins with a preference system privileging family ties and occupational skills. But while the rest of the 1965 Act, in President Johnson’s words, welcomed immigrants “because of what they are, and not because of the land from which they sprung,” the last of its preferences, given to refugees, emphatically did not. Not only did the 1965 Act fail to embrace the 1951 U.N. Refugee Convention’s protection for refugees persecuted because of their nationality, the Act itself discriminated on the basis of refugees’ nationality. To qualify, those persecuted had to hail from a “Communist or Communist-dominated country” or “the general area of the Middle East.” A separate provision allowed for entry of those “uprooted by catastrophic natural calamity as defined by the President.” By tying refugees’ status to “the land from which they sprung,” to America’s anti-Communist foreign policy and national security interests, and, importantly, to the discretion of the President, the 1965 Act’s refugee provision suggests a counter-narrative to descriptions of the Act as part the domestic anti-discrimination agenda of the mid-1960s, or as a reassertion of Congressional control over immigration. The 1965 Act turned refugee policy into another weapon of the Cold War, to be deployed largely as the President chose. It would be another fifteen years before Congress again attempted (or at least purported) to do for refugees what the 1965 Act did for most other immigrants: end national origin discrimination and formalize the criteria and procedures governing admission to the United States.
Btw, Cambridge says of Chin and Villazor's collection, due out in October:
Along with the civil rights and voting rights acts, the Immigration and Nationality Act of 1965 is one of the most important bills of the civil rights era. The Act's political, legal, and demographic impact continues to be felt, yet its legacy is controversial. The 1965 Act was groundbreaking in eliminating the white America immigration policy in place since 1790, ending Asian exclusion, and limiting discrimination against Eastern European Catholics and Jews. At the same time, the Act discriminated against gay men and lesbians, tied refugee status to Cold War political interests, and shattered traditional patterns of Mexican migration, setting the stage for current immigration politics. Drawing from studies in law, political science, anthropology, and economics, this book will be an essential tool for any scholar or student interested in immigration law.

Studies in the History of Tax Law

We’ve been noting the posting of abstracts for chapters in volume 7 of Studies in the History of Tax Law, edited by Peter Harris and Dominic de Cogan, which is forthcoming from Hart.  The editors say of the collection:
These are the papers from the 2014 Cambridge Tax Law History Conference revised and reviewed for publication. The papers fall within six basic themes. Two papers focus on colonialism and empire dealing with early taxation in colonial New Zealand and New South Wales. Two papers deal with fiscal federalism; one on Australia in the first half of the twentieth century and the other with salt tax in China. Another two papers are international in character; one considers development of the first Australia-United States tax treaty and the other development of the first League of Nations model tax treaties. Four papers focus on UK income tax; one on capital gains, another on retention at source, a third on the use of finance bills and the fourth on establishment of the Board of Referees. Three papers deal with tax and status; one with the tax profession, another with the medical profession and a third with aristocrats. The final three papers deal with tax theorists, one with David Hume, another with the scholarship of John Tiley and a final paper on the tax state in the global era.
One chapter is Customs Revenue in the British Colony of New South Wales 1827-1859. And Inquiries Concerning Frederick Garling, Artist and Customs Department Employee, by Diane Kraal, Monash University:
Customs duties in the British Colony of New South Wales provided important funds for the economic development of the settlement. This significant source of revenue led to the Colony's Customs Department being established, in Sydney 1827, to administer the collection process. The shift from physical assessments of duty by powerful individuals to a process with legislated and more regulated procedures was not without challenges. The first aim of this chapter is to provide insights into five early inquiries concerning the system of the Colony's customs duties, legislation and practice. With a particular focus on the last two inquiries, it is asked whether any modifications were made to legislation and practice. The second aim is to provide a fuller account of the employment of Frederick Garling (1806-1873) with the Customs Department, Sydney. He was found guilty of serious neglect of duty by the NSW Board of Inquiry of 1858/59. Today, Garling is a recognised Australian colonial artist for his genre of marine watercolours.
Another is A Historical Account of Taxes on Goods and Services in the Transition to Post-Socialist China, by Yan Xu, Chinese University of Hong Kong:
The taxes on goods and services, subject to a very brief interruption, have been separately applied since their inception in early times in modern China. Until now, the Value Added Tax (VAT) is still an incomplete tax as the tax on goods is separate from the tax on services according to the basic legislation, although the two taxes are moving towards an integrated system. The adoption of bifurcated taxes on goods and services has caused a number of problems for the economy and businesses. The question is why the government did not choose a normal VAT system in the first instance if the separation is inefficient. This chapter addresses the question by way of an examination of the historical development of the system of taxes on goods and services in modern China and argues that the design of the system was historically constrained by a number of factors including economic foundations, the level of tax administration and inter-governmental fiscal relations.

Monday, August 24, 2015

Reform, Reaction, and Constitutionalism in 20th-Century America: An ICH Seminar

[We are moving this post up, because spaces remain and our friends at the ICH are still accepting applications.]

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, "Reform, Reaction, and Constitutionalism in Twentieth-Century America."

The instructors are Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, and William E. Nelson, the Edward Weinfeld Professor of Law and Professor of History at New York University

This seminar will selectively study progressive reform efforts in America between 1920 and 1980 -- both their successes and their failures. The first session will focus on the 1920s, when both reformers and conservatives conceived of reform in terms of class conflict carried out mainly in the political process; in that decade, reformers enjoyed almost no success in altering the nation's law. The second session will turn to the New Deal and will focus particularly on the issue of how much redistributive change the New Deal actually achieved prior to 1938. The third and fourth sessions will study the period from 1938 to 1968, when reformers turned to the courts and the constitution in a fight to achieve ethnic and religious equality, and the children of turn-of-the-century Catholic and Jewish immigrants entered the nation's socio-economic mainstream. The third session will focus on the impact of World War II on the nation's socio-economic structure; the fourth will turn to the Cold War. The two final sessions, still focusing on law and the constitution, will turn to the years since 1968, when equality was reconceptualized in terms of race and gender, with the fifth session examining race and the sixth, gender. Our hypothesis will be that only marginal change has again occurred. A key question throughout the seminar will be why ethnic and religious conceptions of equality succeeded in transforming law for ethnic white men, while other progressive conceptions in large part failed.

It will meet Friday afternoons, 2:00-4:00 p.m., October 2, 9, 16, 23, November 6, 13. The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City.

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities.

Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at until May 15, 2015. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

The Institute for Constitutional History (ICH) is the nation's premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Kadens on Reputation in Premodern Credit Networks

Emily Kadens, Northwestern University School of Law, a former LHB Guest Blogger, has posted Pre-Modern Credit Networks and the Limits of Reputation, which appears in Iowa Law Review 100 (2015): 2429-55.
This Essay examines pre-modern European credit networks to question a fundamental assumption of private ordering scholarship that a good reputation is so critical to the functioning of a private system that its maintenance incentivizes members of the community to keep their promises and act honestly. Pre-modern credit networks, which involved the whole society in interlocking webs of credit and debt, arose from the actions of individuals who offset the lack of sufficient specie by inventing credit mechanisms to solve the problem of purchase and sale. Governments played little to no role in creating these solutions. Reputation, to some extent, did drive lending decisions, but reputation did not reliably parallel a good history of timely repayment. Default, it turns out, was not a simple binary concept in the past, and, consequently, neither were the decisions about extending credit. The article argues that reputation, or at least reputation in the sense we might understand it today, did not bear quite the weight which private ordering theory assigns to it. This appears to be due in part to a more expansive pre-modern sense of what it meant to keep a promise, in part to the role of higher-level notions of confidence and reciprocity that transcended individual debtors to encompass whole communities of lenders and borrowers, and in part to the availability of public institutions, both lay and ecclesiastical, to sanction nonpaying debtors.

The Politicization of Privacy

Like many of my students, I found myself confused the first time I read the Roe decision. I had always believed that the Court had recognized a woman’s right to choose abortion. I was not prepared for the opinion’s focus on physicians. At times, Justice Blackmun suggested that the abortion right belonged jointly to women and doctors.
After Roe explores how both pro-life activists and feminists ultimately embraced an interpretation centered on women’s rights. Earlier in the 1970s, both movements often presented Roe as a decision creating new protections for physicians and patients. Leading supporters of legal abortion hoped that Roe had mostly settled the conflict and saw no reason to publicly question the Court’s resolution of the issue. Before Roe (and often after), pro-lifers believed that medical advances would decide the abortion wars in their favor. These activists argued that no court or politician, when presented with scientific evidence of fetal personhood, could stomach legal abortion. After Roe explicitly relied on a medical rationale for legalizing abortion, pro-lifers felt especially betrayed. Focusing on physicians’ rights allowed abortion opponents to express their deep disappointment with the judiciary and the medical profession.

By the end of the decade, both movements had reason for presenting Roe in a different light. As pro-lifers aligned with the Religious Right, criticizing the women’s movement and its idea of women’s rights made a great deal of political sense. In describing Roe as a decision involving a woman’s right to choose, pro-lifers joined their new allies in condemning both mainstream feminism and legal abortion.  On the other side of the issue, the feminists who took over major abortion-rights organizations naturally saw reproductive health as a matter of women’s rights. However, feminists also had tactical reasons for reinterpreting Roe, seeking to counter the new woman-protective arguments that were promoted by major antiabortion organizations.

In writing the book, I kept stumbling on new examples of movements using Roe as a weapon in other fights. Some of these stories, like those involving the early gay, lesbian, bisexual, transgender, and queer movement, did not surprise me. Others were less expected. Far Right activists in groups like the John Birch Society pointed to Roe and its privacy right in attacking the FDA. Mental health professionals invoked Roe in fending off the movement for deinstitutionalization and in answering attacks on the credibility of psychiatry. In trying to develop a vision of welfare rights that would survive the small-government politics of the late 1970s and early 1980s, activists on either side of the abortion issue tried to use Roe’s right to privacy as a tool in struggles for socioeconomic justice.

Perhaps the political events that reshaped abortion politics also changed the costs and benefits of framing a cause as a vindication of the right to privacy. Historians have studied how the courts mostly refused to recognize new privacy rights in the 1970s. The political story seems more complicated. It may be that the political transformations of the 1970s turned not only the courts away from privacy arguments but also the country as a whole.

Sunday, August 23, 2015

Sunday Book Roundup

Give Us the Ballot: The Modern Struggle for Voting Rights in America by Ari Berman (Farrar, Straus, and Giroux) is reviewed on The Daily Beast.
"Berman relates the story of the Voting Rights Act (VRA) from its making in 1965 to its mauling in 2013. In chapters bearing titles such as “The Second Emancipation,” “The Second Reconstruction,” “The Southern Strategy,” and “The Counterrevolution,” he recalls the 1965 marches that propelled the history-making passage of the VRA in Congress; the extraordinary transformations wrought by the federal government’s implementation of the Act in the former states of the Confederacy; the concurrent campaigns and diverse machinations through the course of five decades by reactionaries, conservatives, and neoconservatives to block, undermine, or do in the Act piece by piece; and finally, the Roberts Court’s devastating decision in Shelby."
H-Net has a double review of Charles E. Cobb Jr.'s This Nonviolent Stuff'll Get You Killed: How Guns Made the Civil Rights Movement Possible (Basic Books) and Akinyele Omowale Umoja's We Will Shoot Back: Armed Resistance in the Mississippi Freedom Movement (New York University Press).

There's also a review of Laura Edward's A Legal History of the Civil War and Reconstruction: A Nation of Rights (Cambridge University Press).
"Edwards has provided a relatively brief but incisive synthesis of the recent historical literature on the Civil War and Reconstruction that focuses on the legal consequences of emancipation. In doing so, she also puts forward her own original—and ultimately persuasive—argument. Oddly, the subtitle probably gives a better indication of the book’s subject matter and contents than does the title (and one wonders if perhaps the title and subtitle ought to have been reversed). Moreover, the book’s chronological framework, the title notwithstanding, transcends the era of the Civil War and Reconstruction, extending into the early years of the twentieth century. Edwards has written a volume that will benefit scholars of the Civil War era, broadly construed, the Gilded Age and late nineteenth century, and legal and constitutional history."
New Books in History interviews Brian Murphy about his new book, Building the Empire State: Political Economy in the Early Republic (University of Pennsylvania Press).

And from Slate there is a review of The Boundaries of Desire: A Century of Good Sex, Bad Laws, and Changing Identities by Eric Berkowitz (Counterpoint).

Contraband: Smuggling and the Birth of the American Century by Andrew Wender Cohen (WW Norton) is reviewed in The Washington Post.

Bernard Bailyn reviews Revolutions Without Borders: The Call to Liberty in the Atlantic World by Janet Polasky (Yale University Press) in The New York Review of Books.

Saturday, August 22, 2015

Franklin Research Grants

[We have the following announcement.]

Scope.  Since 1933, the American Philosophical Society has awarded small grants to scholars in order to support the cost of research leading to publication in all areas of knowledge. In 2014–2015 the Franklin Research Grants program awarded $491,700 to 97 scholars, and the Society expects to make a similar number of awards in this year’s competition. The Franklin program is particularly designed to help meet the costs of travel to libraries and archives for research purposes; the purchase of microfilm, photocopies, or equivalent research materials; the costs associated with fieldwork; or laboratory research expenses.

Franklin grants are made for noncommercial research. They are not intended to meet the expenses of attending conferences or the costs of publication. The Society does not pay overhead or indirect costs to any institution, and grant funds are not to be used to pay income tax on the award. Grants will not be made to replace salary during a leave of absence or earnings from summer teaching; pay living expenses while working at home; cover the costs of consultants or research assistants; or purchase permanent equipment such as computers, cameras, tape recorders, or laboratory apparatus.

Special Programs Within the Franklin Research Grants

APS/British Academy Fellowship for Research in London.
  In collaboration with the British Academy, the APS offers an exchange postdoctoral fellowship for a minimum of one and a maximum of two months’ research in the archives and libraries of London during 2016. This award includes travel expenses between the United States and the United Kingdom and a monthly subsistence paid by the APS. Candidates should specify that they are asking for the British Academy Fellowship and apply by October 1; applicants not selected for the British Academy Fellowship will be considered for a Franklin Research Grant.

APS/Institute for Advanced Studies in the Humanities Fellowship for Research in Edinburgh

In collaboration with the Institute for Advanced Studies in the Humanities (IASH) at the University of Edinburgh, the APS offers a visiting fellowship of between two and four months for research in Edinburgh in the calendar year 2016 in any aspect of the humanities and social sciences. To maximize the benefits of the fellowship, applicants are strongly encouraged to schedule their visit to overlap with one of the two main teaching semesters (January–March and September–December). This award includes travel expenses between the United States and the United Kingdom, a private office, library and research facilities at the IASH, and a monthly subsistence paid by the APS. Travel expenses and the monthly subsistence amount will not exceed a maximum of $6,000. Candidates should specify that they are asking for the IASH Fellowship and apply by October 1; applicants not selected for the IASH Fellowship will be considered for a Franklin Research Grant. Further information about the IASH, including current research themes, is available [here.]

Eligibility.  Applicants are expected to have a doctorate or to have published work of doctoral character and quality. Ph.D. candidates are not eligible to apply, but the Society is particularly interested in supporting the work of young scholars who have recently received the doctorate. Independent scholars and faculty members at all four-year and two-year research and non-research institutions are welcome to apply provided that all eligibility guidelines are met. American citizens and residents of the United States may use their Franklin awards at home or abroad. Foreign nationals not affiliated with a U.S. institution must use their Franklin awards for research in the United States. Applicants who have previously received a Franklin grant may reapply after an interval of two years.

Awards.  Funding is offered up to a maximum of $6,000. Grants are not retroactive.  Grants are payable to the individual applicant. Franklin grants are taxable income, but the Society is not required to report payments. It is recommended that grant recipients discuss their reporting obligations with their tax advisors.

Deadlines.  For applications and two letters of support: October 1, for a January 2016 decision for work in February 2016 through January 2017; December 1, for a March 2016 decision for work in April 2016 through January 2017

It is the applicant’s responsibility to verify that all materials, including the required two letters of support, reached the Society on time; contact Linda Musumeci, Director of Grants and Fellowships, at or 215-440-3429.

Requirements.  Project and financial reports are due one month after completion of the funded portion of the work, per the time frame indicated on the proposal.  Instructions will be provided with notification of an award.

Application.  The online application is available [here]. Questions may be dircted to Linda Musumeci, Director of Grants and Fellowships, at 215-440-3429 or

Friday, August 21, 2015

Graff on Interdisciplinarity in the Twentieth Century

Given that legal history sits at the intersection of two disciplines, we thought the following new release may be of interest: Undisciplining Knowledge: Interdisciplinarity in the Twentieth Century (Johns Hopkins University Press, 2015), by Harvey J. Graff (Ohio State University). Here's a description from the Press:
Interdisciplinarity—or the interrelationships among distinct fields, disciplines, or branches of knowledge in pursuit of new answers to pressing problems—is one of the most contested topics in higher education today. Some see it as a way to break down the silos of academic departments and foster creative interchange, while others view it as a destructive force that will diminish academic quality and destroy the university as we know it. In Undisciplining Knowledge, acclaimed scholar Harvey J. Graff presents readers with the first comparative and critical history of interdisciplinary initiatives in the modern university. Arranged chronologically, the book tells the engaging story of how various academic fields both embraced and fought off efforts to share knowledge with other scholars. It is a story of myths, exaggerations, and misunderstandings, on all sides.
Touching on a wide variety of disciplines—including genetic biology, sociology, the humanities, communications, social relations, operations research, cognitive science, materials science, nanotechnology, cultural studies, literary studies, and biosciences—the book examines the ideals, theories, and practices of interdisciplinarity through comparative case studies. Graff interweaves this narrative with a social, institutional, and intellectual history of interdisciplinary efforts over the 140 years of the modern university, focusing on both its implementation and evolution while exploring substantial differences in definitions, goals, institutional locations, and modes of organization across different areas of focus.
Scholars across the disciplines, specialists in higher education, administrators, and interested readers will find the book’s multiple perspectives and practical advice on building and operating—and avoiding fallacies and errors—in interdisciplinary research and education invaluable.
More information is available here.

Hat tip: Chronicle of Higher Education "Selected New Books on Higher Education"

West on Gatsby and Tort

My Georgetown Law colleague Robin L. West has posted Gatsby and Tort:
A Scene from the Great Gatsby Festival (C. Highsmith)
The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of this piece discusses tort law during Gatsby’s decade -- the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs -- and only partly and fitfully replaced by compensation schemes.

Liberals and Religious Conscience

With the courts still grappling with challenges to the contraceptive mandate of the Affordable Care Act, conscience-based objections will likely remain a major legal issue in the near future. In the wake of the Supreme Court’s decision on marriage equality, Republican presidential candidate Mike Huckabee urged opponents to refuse to perform marriages for reasons of conscience.

Waiting for Hobby Lobby (Credit: American Life League)
Debates about birth control and same-sex marriage seem to establish conscience-based arguments as a staple of social conservative advocacy. Although the autonomy rights invoked by feminists seem logically related to the idea of conscientious objection, the two arguments could not be much more ideologically opposed in contemporary politics.

After Roe studies how and why supporters of legal abortion began prioritizing choice arguments in the later 1970s. Over the course of the decade, feminists became convinced that they were losing ground because they could not compete with pro-lifers in electoral politics. In formulating an election strategy, movement leaders developed a message that they believed would speak to politicians and voters uncomfortable with the termination of pregnancy. Rather than mentioning abortion, feminists emphasized the importance of freedom from governmental interference. Initially, some in the movement found novel definitions of the idea of reproductive choice, using it to demand economic justice for poor women and rights to free child care and health care. When feminists emphasized a far narrower idea of choice, they did so to adjust to a rapidly changing political climate, one in which free markets, welfare reform, and small government attracted support from both parties.
As feminists crafted a pro-choice message, they also experimented with arguments based on religious conscience. In challenging the constitutionality of the Hyde Amendment, a ban on Medicaid funding for abortion, attorneys Rhonda Copelon and Sylvia Law invoked both the Free Exercise Clause and the Establishment Clause, insisting that abortion regulations sometimes offended the deeply held beliefs of those who saw abortion as a moral choice.
Historians from Sara Dubow to Jeremy Kessler are working now on histories of conscience claims, establishing that many of them that do not resemble the conservative arguments so common today. After Roe made me wonder about why and when activists and attorneys like Copelon and Law downplayed conscience arguments for reproductive rights. Of course, the Satanic Temple’s recent challenge to abortion regulations must count for something (how could any judge with a heart ever side against the Satanic Temple?). 

Generally, however, I imagine that there is an important story to tell about the tensions inherent in the arguments feminists made about religion and abortion. While highlighting the religious objections of women who favored legal abortion, Copelon and Law also insisted that the Hyde Amendment violated the Establishment Clause, forcing the religious views of conservative Catholic members of Congress on everyone else. Defining the right role for religion in abortion politics seems to have been hard. Understanding how feminists tried to achieve this goal—and whether and why they failed—seems particularly important given the prominent place of conscience in politics today.

Thursday, August 20, 2015

Lorenz Centrer Announces Website on Social Security Act

We missed the anniversary of the signing of the Social Security Act on August 14, but belated here is news that the Pare Lorentz Center at the FDR Presidential Library has launched a “mobile-friendly Social Security web feature” that “ tells the story of how Social Security came to be through photographs, documents, posters and brief, informative narrative.

Freedman on Habeas Corpus, Parts 2 and 3

Eric M. Freedman, Hofstra Law, has posted the final two installments of a trilogy on habeas corpus.  Both of the new installments are forthcoming in volume 8 of the Northeastern Law Journal.  We noted the first installment, published as Habeas Corpus as a Common Law Writ, 46 Harv. C.R.-C.L. L. Rev. 591 (2011), here.  The second installment is Habeas Corpus as a Legal Remedy:
...This part of the project argues that understanding habeas corpus during the colonial and early national periods—and ultimately reclaiming its power today—requires understanding that it was just one strand in a web of public and private legal remedies restraining abuses of government power. This article documents, with heavy reliance on previously-unpublished sources, the extent to which in the colonial and early national periods habeas existed within an elaborate structure of public and private mechanisms for constraining government actors.
Among the implications of the piece is that the view of the current Supreme Court that protecting public officials from unwarranted damages liability is a judicial role is thoroughly ahistorical. Only during the first half of the 19th century did the system for controlling governmental abuses of power evolve into the patterns that now seem natural and pre-ordained.
 The third installment is Habeas Corpus as an Instrument of Checks and Balances:
...This article, based heavily on previously-unpublished archival sources, argues the following:
“Separation of powers” differs from “checks and balances.” One protects individual liberty by allocating particular governmental powers to specific branches. The other protects individual liberty by having each branch restrain the others. Allocation of powers, enforced by judges, was an established feature of British government in the North American colonies.

Checks and balances, though, was a new idea and its acceptance was not possible until the judicial branch established its republican legitimacy. Judicial independence got off to a rocky start in the new nation both because the judges were so closely identified with the Crown and because the common law they administered had no plainly visible democratic source. The result was rampant legislative interference with judicial decision-making.

The notion of an independent judiciary that restrained the other branches was still aborning in 1807, when John Marshall stated in dicta in Ex Parte Bollman – quite wrongly as a matter of both British history and American constitutional law – that federal courts had no inherent authority to issue the writ of habeas corpus in the absence of legislation granting them that power.

In succeeding decades, the shifting theoretical and institutional structure of checks and balances came to rest. After a period of struggle on multiple fronts, the judiciary reclaimed its pre-Independence institutional independence from the legislature and solidified a cultural expectation that executive officers would comply with judicial decisions. 
But the Supreme Court proved hesitant to repudiate Bollman’s dangerously flaccid view of the writ, notwithstanding that history and policy alike called upon it to take that step.
Finally, in 2008 in Boumediene v. Bush — a landmark ruling that put it on the right side of history — the Court recognized habeas corpus as an instrument for the enforcement of checks and balances, and the power to issue it as inherent in the Article III judicial role. This welcome development dispelled a distorted vision of the past that held the potential to cloud clear thinking in facing the problems of the future, including those posed by the struggle against terrorism.

Orfield on "Milliken, Meredith, and Metropolitan Segregation"

The UCLA Law Review recently published an article of interest: "Milliken, Meredith, and Metropolitan Segregation," by Myron Orfield (University of Minnesota). Here's the abstract:
Over the last sixty years, the courts, Congress, and the President—but mostly the courts—first increased integration in schools and neighborhoods, and then changed course, allowing schools to resegregate. The impact of these decisions is illustrated by the comparative legal histories of Detroit and Louisville, two cities which demonstrate the many benefits of metropolitan-level cooperation on issues of racial segregation, and the harms that arise in its absence. Detroit, Michigan, and Louisville, Kentucky, both emerged from the riots of the 1960s equally segregated in their schools and neighborhoods with proportionally sized racial ghettoes. In 1974-75, the Supreme Court overturned a proposed metropolitan school integration plan in Detroit, but allowed a metropolitan remedy for Louisville-Jefferson schools to stand. Since that time, Louisville-Jefferson schools and neighborhoods, like all the regions with metropolitan plans, have become among the most integrated in the nation, while Detroit’s schools have remained rigidly segregated and its racial ghetto has dramatically expanded. Detroit’s experience is very common in the highly fragmented metropolitan areas of the midwestern and northeastern United States. Black students in Louisville-Jefferson outperform black students in Detroit by substantial margins on standardized tests. Metropolitan Louisville has also grown healthier economically, while the City of Detroit went bankrupt and both the city and school district were taken over by state authorities. The Article concludes with a call to modernize American local government law by strengthening the legal concepts of metropolitan jurisdictional interdependence and metropolitan citizenship.
Hat tip: Poverty Law

Wednesday, August 19, 2015

Reinstein on the Necessary and Proper Clause

Robert Reinstein, Temple University James E. Beasley School of Law, has posted The Great Power of the Necessary and Proper Clause:
The scope of Congress’s authority under the Necessary and Proper Clause is being challenged by a theory that is gaining acceptance in the courts and in legal scholarship. The “great powers” theory posits that some implied powers, even if necessary to effectuate an enumerated power, are not “proper” because of the degree of their importance. According to its advocates, powers that are great, important and substantive cannot derived from implication. This theory is said to enforce the principle that implied powers are necessarily inferior to express powers and to explain why some seemingly incidental powers, but not others, are listed as enumerated powers in Article I, Section 8.

This theory is gaining traction. It has recently been adopted by three Supreme Court Justices (including by the Chief Justice in the first Health Care Case) and defended in important scholarly works. Critics have challenged this theory as being too indeterminate to apply and contradicted by the conventional reading of McCulloch. The criticisms in this article are more fundamental -- the great powers theory is unsound historically, doctrinally and as a matter of constitutional construction.

The great powers theory originated in James Madison’s speech in the First Congress opposing the creation of the Bank of the United States. Although advocates of this theory rely on Madison’s speech, they overlook the Federalist rebuttal and the House of Representatives rejection of Madison’s views by a decisive majority. And Edmund Randolph and Alexander Hamilton each rejected Madison’s theory in their opinions on the Bank’s constitutionality. The prevailing Federalist rebuttal in the First Congress is an important precedent concerning the mainstream understanding of congressional power. That rebuttal and Hamilton’s opinion are also important for an understanding of McCulloch because Marshall’s opinion drew extensively from them.

Madison and the theory’s present advocates rely on a method of constitutional construction that is based on a negative inference: because some seemingly incidental powers were important enough to be listed as express powers, other important but unlisted powers cannot be derived by implication. Instead of being incidental, these unlisted powers are “great substantive and independent.” But the debates over the Bank refute this method of construing the scope of congressional powers. As Randolph and others observed, listed powers that are seemingly incidental of principal powers often are independent of, and cannot be derived from, the principal powers. Moreover, many of these powers were vested in the United States under the Articles of Confederation. Considerations of the separation of powers and prudence suggest why the Framers included them as powers of Congress under the Constitution.

Finally, this article examines three important powers – the use of legal tender as the nation’s currency, military conscription and the individual mandate in the Affordable Care Act – that demonstrate the doctrinal fallacy of the great powers theory. As the county has grown and changed, new great problems emerged which could not have been foreseen by the founding generation. These great problems can sometimes be solved only through the exercise of great powers. Regardless of the degree of its importance, and even if it could be characterized as “great,” an implied power is necessary and proper if it is plainly adapted to effectuating an enumerated power and does not violate a constitutional prohibition. The constitutional powers of Congress are not inversely proportional to their importance.
H/t: Legal Theory Blog

Ely on State Constititonal Protection of Property in Antebellum America

James W. Ely, Jr., Vanderbilt University Law School, has posted “The Sacredness of Private Property:” State Constitutional Law and the Protection of Economic Rights Before the Civil War, which is forthcoming in the NYU Journal of Law & Liberty.
This essay explores state constitutional law before the Civil War pertaining to economic rights. It argues that antebellum state courts played a crucial and underappreciated role in defending property and contractual rights from legislative assault. Before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts and implicated state constitutional law. The essay considers how state courts shaped takings and due process jurisprudence, often anticipating subsequent decisions by the Supreme Court of the United States. They were the first, for example, to consider the scope of “public use” and the amount of “just compensation” when government sought to acquire property. Moreover, they grappled with the extent to which the due process guarantee in state constitutions conferred substantive protection to the rights of property owners. Despite the pivotal role of the Supreme Court in fashioning contract clause jurisprudence, state courts heard far more contract clause cases and significantly impacted the formation of law in this field as well. State constitutionalism was vitally important to the development of property owners.