Wednesday, September 30, 2015

Jewish Legal Theorists in the 19th and 20th Centuries

[Via H-Law we have the following announcement.]
The Simon Dubnow Institute for Jewish History and Culture at Leipzig University is planning a new research group centered on the biographies and life work of nineteenth and twentieth century Jewish legal theorists. Within the research group's framework, the Institute will sponsor three closely aligned, interdisciplinary studies of individual jurists. We welcome project proposals from interested scholars.
The biographies are meant to address problems of cultural and legal history and be oriented towards the chronology of each jurist's œuvre. The projects should place special emphasis on the interaction between law and experience, with both dimensions explored through a juxtaposition of the biographies and work of – prominent and still hardly known – legal theorists. Of special interest here are the influences of political and historical constellations, social and life experiences, and religious background on a jurist's particular legal understanding. Importantly, we discourage approaches meant to demonstrate simple causalities between work and events; rather, we invite approaches grounded in both a careful distinction and simultaneous connection between origins, biography, and conceptual development.
We encourage inquiries oriented toward a complex of shared biographical, professional, and theoretical features: Were there, for example, legal areas for which the Jewish jurists felt special affinity? Can we identify legal tendencies of a theoretical-philosophical nature that were perceived as particularly compelling? In what ways did the Jewish legal theorists stamp the development of relevant schools and juridical realms? Did specifically Jewish experiences contribute to the formation of particular legal concepts? And crucially, to what extent did legal concepts and styles change with transformations in the historical, political, social, and cultural environment?
Our research group wishes to explore such questions against the backdrop of various breaks that were decisive for nineteenth and twentieth century general history and Jewish history in particular. These include the emergence of ethnically homogenizing nation states from the bankrupt old empires after World War I, the transfer of power to Hitler, the beginning of the postwar period, and the movements of migration and flight catalyzed by these developments.
In the framework of a project workshop, there will be a possibility of presenting selected project outlines in the first quarter of 2016.
We invite interested scholars to submit supporting documents, including a vita and a three-page project outline, to:
Simon Dubnow Institute for Jewish History and Culture
at Leipzig University
Professor Dr. Raphael Gross
Goldschmidtstraße 28
04103 Leipzig
or per email to Dr. Jan Gerber (
Application deadline: 1 November 2015
The Simon Dubnow Institute places special emphasis on equal opportunity in hiring and research support; applications from qualified women are thus particularly welcome.
Contact Info: 
Simon Dubnow Institute for Jewish History and Culture
at Leipzig University
Professor Dr. Raphael Gross/Dr. Jan Gerber
Goldschmidtstraße 28
04103 Leipzig
Contact Email:

Stephens on Maori Constitutionalism

Māmari Stephens, Victoria University of Wellington, has posted “To Work Out Their Own Salvation”: Māori Constitutionalism and the Quest for Welfare, which appeared in the Victoria University Wellington Law Review 46 (2015):1-30:
New Zealand recently celebrated 75 years of the implementation of the welfare state in 1938. While debate continues about the nature and effectiveness of state welfare provision, welfare is arguably a matter of constitutional concern in New Zealand. Further examination of New Zealand legal history also shows that the welfare of Māori is indeed a matter of deep constitutional concern to Māori, who have consistently sought legislative and extra-legislative ways to have public power used for broad Māori welfare concerns. It is possible to identify a kind of Māori welfare constitutionalism at work, that is arguably in tension with the thinking and practice that produced the welfare state.

Ms. Peppercorn Considers: Various Issues for the First Time Presenter

October is nearly upon us and we are all gearing up for ASLH! One of the best things about this meeting, and about the Society more generally, is it's openness to graduate students and junior scholars. In this installment of our occasional advice column, "Ms. Peppercorn Considers," our wise colleague takes up various issues for the first time presenter. 
Dear Ms. Peppercorn:

I am a first time presenter at the 2015 ASLH annual meeting, and I have a few questions about how to prepare.  After all, we’re just weeks away from the big day!  In my one previous presentation at an in-house graduate conference at my university, I started with a little introduction of myself and my topic.  Is that too frivolous for ASLH?  Furthermore, how long should I plan to speak? Should I make a powerpoint?  And most important, what should I wear?


New Kid on the Block

Ms. Peppercorn's reply:
Dear NKotB:

Ms Peppercorn loves to SEE new scholars in the field making a presentation at ASLH.  It is a substantive and productive conference, and comments and questions deliver sharp-eyed critiques without the shellacking that Ms P has been distressed to see in some venues.

That said, frivolity is frowned upon, not just by your dedicated advice columnist, but by ASLH conference goers generally.  Thus Ms P recommends only the very shortest of introductions, perhaps to say that the paper you are presenting is part of your larger dissertation project.  But do NOT delay in getting to substance.  The selection process for papers and panels is competitive (unlike some other conferences which shall remain nameless) and the people who come to your panel want to here your argument and the evidence that supports it.   No dilly dallying!

One simply cannot compete with David Rabban.

In terms of a powerpoint, note that the Society has already answered this question for you: AV equipment will not be available at the 2015 conference.

Powerpoint slides, we want to add, are all too often just text that you will be saying anyway, which makes the presenter look like a business school or poli sci denizen.  Ms P counsels in the strongest terms against presentations of that ilk, even if they were allowed.

Finally, the matter of dress is one that legal historians generally do not spend much time on.  We tend to the more practical and less ostentatious side of things.  Jane Dailey and David Rabban set a high standard, to be sure, but the rest of us muddle along.  Ripped jeans might raise some eyebrows, as would shorts.  Bling of all kinds, too.

Ms P wishes NKotB the very best for this inaugural presentation among the good legal historians.  She also invites others in the field to add their mite to the discussion.
If would like to add your own words of wisdom, please do so in the comments. For other sage advice related to this topic, see Ms. Peppercorn's previous column on "How To Survive the Conference."

Call for Applications: ABF Doctoral/Post-Doctoral Fellowships

The American Bar Foundation has issued the following call for applications:
ABF Doctoral/Post-Doctoral Fellowship Program in Law and Social Science

The American Bar Foundation is committed to developing the next generation of scholars in the field of law and social science.  The purpose of the fellowships is to encourage original and significant research on law, the legal profession, and legal institutions.

For the Doctoral/Post-Doctoral Fellowships, applications are invited from outstanding students who are candidates for Ph.D. degrees in the social sciences.  Applicants must have completed all doctoral requirements except the dissertation by September 1, 2016.  Applicants who will have completed the dissertation prior to September 1, 2016 are also welcome to apply.  Doctoral and proposed research must be in the general area of sociolegal studies or in social scientific approaches to law, the legal profession, or legal institutions. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and legal process.  Applicants do not need to be U.S. citizens in order to apply. Minority students are especially encouraged to apply. Applicants are also eligible to apply for the American Bar Foundation and Law and Society Association’s Law and Social Science Dissertation Fellowship & Mentoring Program.

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

Fellowships are awarded for 12 months, beginning, September 1, 2016.

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

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

Applications for this fellowship must be received no later than December 15, 2015.

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

Tuesday, September 29, 2015

New Exhibits of Georgetown Law Library Rare Books

[Via H-Law we have the following announcement.]
Georgetown Law Library Special Collections is pleased to announce two new exhibits featuring rare books from our collections. The first is our own exhibit, Magna Carta, Sir Edward Coke, and the Rule of Law at the Dawn of American Settlement. This exhibit is located in the Special Collections exhibit case outside Room 210 in the Williams Law Library. The exhibit features 5 imprints of Magna Carta cum Statutis tum antiquis tum recentibus, the leading compilation of English statutes from the reigns of Elizabeth I and James VI & I, that were annotated in law French by their owners. It also includes images from Sir Edward Coke’s personal annotated copy of Bracton, the landmark treatise of English law written shortly after the authoritative 1225 version of Magna Carta was issued by Henry III. Full text images of all of the featured books are available through DigitalGeorgetown.
The second exhibit is Age of Lawyers: The Roots of American Law in Shakespeare’s Britain at the Folger Shakespeare Library. This exhibit features our copy of Coke’s Bracton and our set of 17th century imprints of Parts 1 through 12 of Coke’s case reports, which were so highly esteemed that they quickly became known simply as The Reports; as well as many other rare books and manuscripts from the Folger’s collections. Georgetown Law Library's Curator of Legal History Collections served as the Academic Advisor for the Folger exhibit.
For further information about these two exhibits, please contact us at

Magna Carta at Carolina Law

Judging from this post on the Faculty Lounge, Al Brophy and the folks at Carolina Law have assembled a first-rate symposium, Celebrating 800 Years of Magna Carta.

Thursday Dinner Speakers
Representative Paul Stam
Professor A.E. Dick Howard, UVA Law

Friday Panels

The Historical Magna Carta
Paul Babie, University of Adelaide
R.H. Helmholtz, University of Chicago Law School
Wilfrid Prest, University of Adelaide
Charles Donahue, Jr., Harvard Law
Suzanna Sherry, Vanderbilt Law (moderator)

The Mythic Magna Carta 
Mary Bilder, Boston College Law School
Daniel Hulseboch, NYU Law
John Orth, Carolina Law
Sally Hadden, Western Michigan University

Keynote Address: Judge Jed Rakoff, SDNY
Introduction by Judge James Wynn, U.S. Court of Appeals (Fourth Circuit)

Unfinished Business of Magna Carta 
Richard Myers, Carolina Law
Mary Ziegler, FSU
Ted Wells, Paul Weiss
Ted Shaw, Carolina Law (moderator)

Abstracts of their articles are here. The symposium will be webcasted live. More information on the symposium is available at the North Carolina Law Review's website.

Gupta-Kagan on a Landmark Family Law Case

Josh Gupta-Kagan, University of South Carolina School of Law, has posted Stanley v. Illinois' Untold Story, William & Mary Bill of Rights Journal 24 (2016):
Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause prohibits the state from removing children from unwed fathers simply because they are not married and requires the state to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt, and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this decision.

This Article tells Stanley’s untold story for the first time, using original research of state court and Supreme Court records. Those records show that the state was concerned about Stanley’s parental fitness, and did not remove his children simply because he was unmarried, as is frequently assumed. But the state refused to prove Stanley unfit and relied instead on his marital status to justify depriving him of custody. That choice, and Stanley’s avoidance of a due process argument, created a complicated Supreme Court decision-making environment.

This Article explores the Supreme Court’s decision-making in Stanley, and reveals new insights both about Stanley and the Court more broadly. Four justices changed their votes from conference to the final decision – an extreme amount of voting fluidity that shifted the case outcome. The justices’ varying and evolving views eventually led them to a strong due process holding, even though Stanley did not ask for one. This issue fluidity – when the Court issues a ruling based on arguments not raised by the parties – reflects a complex interaction between justices’ efforts to form a majority coalition and lawyers’ litigation choices. Finally, the justices’ papers reveal how Justice Harry Blackmun’s shift to the liberal wing of the Court – and to a staunch parents’ rights vote – began with his angst over Stanley, despite his vote for the state.
H/t: Legal Theory Blog

Cushman on the Docket Books of the Late Hughes Court

We’ve previously noted the analysis by Barry Cushman, Notre Dame Law School, of the docket books of the US Supreme Court during the early terms of Chief Justice Charles Evans Hughes.  Professor Cushman has posted another installment: The Hughes Court Docket Books: The Late Terms, 1937-1940,” which is forthcoming in the American Journal of Legal History 55 (December 2015):
For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 through the 1940 Terms.

The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds new light on decisions such as Erie Railroad v. Tompkins, South Carolina State Highway Department v. Barnwell Bros., Inc., Lane v. Wilson, Railroad Commission of Texas v. Pullman, and United States v. Darby Lumber Co., and helps to explain how a nine-justice Court divided evenly on one of the issues in Coleman v. Miller. The docket books often reveal the justices’ remarks at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ positions between the conference votes and their final votes on the merits.

Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect” that some scholars have found exhibited by the Court’s newest members. In particular, the analysis documents the prominent contribution that new justices, who disdained the Court’s longstanding norm of acquiescence in the judgments of conference majorities, made to the substantial increase in the percentage of its cases that the Court decided by a divided vote. The analysis further reveals the significant part played by the last remnants of the Old Court in retarding what would become a precipitous decline in unanimity rates under Chief Justice Harlan Fiske Stone.

Monday, September 28, 2015

Bilder on Madison on the Three-Fifths Clause

We've previously noted the publication of Madison's Hand by Mary Bilder, Boston College Law School.  Now Professor Bilder has kicked off what will apparently be a series of posts by different authors on the blog We're History prompted by Professor Sean Wilentz's recent op-ed on slavery and the US Constitution.

Mendenhall on Holmes, Emerson and Pragmatism

Allen Mendenhall, Auburn University, has posted Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey, which will appear in the South Carolina Review 48 (2015): 93-109:
Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey.
H/t: Legal Theory Blog

Sunday, September 27, 2015

Sunday Book Roundup

This week, H-Net posted a review of Chanelle N. Rose's The Struggle for Black Freedom in Miami: Civil Rights and America's Tourist Paradise, 1896-1968 (Louisiana State University Press).
"Rose has complicated the clichéd racial binary of activists in Miami’s long civil rights movement during the same period, 1896 to 1968. The Struggle for Black Freedom in Miami is an exceptional history in at least two respects: for bestowing on black activists the full range of political tactics, and for using Miami as a case study to demonstrate how race relations have been both supported and undermined by a tri-ethnic border city dependent upon a tourist economy. On this note, Rose’s chapters on the intersections between the black liberation struggle and the postwar Latinization of Miami will make valuable reading for any graduate seminar."
Also on the subject of civil rights is an H-Net review of Aram Goudsouzian's Down to the Crossroads: Civil Rights, Black Power, and the Meredith March against Fear (Farrar, Straus, & Giroux).

And even more civil rights history is on HNN, with a review of Kristen Green's Something Must Be Done About Prince Edward County: A Family, a Virginia Town, a Civil Rights Battle (Harper).

Another review of Will Haygood's Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America (Knopf) is publish in the Los Angeles Times.
"Haygood wisely avoids getting mired in legal jargon in a richly textured account that brings to life the political and cultural stakes involved in this confirmation fight. He does so by juxtaposing the drama of the Senate hearings with Marshall's travails as the NAACP's chief counselor. Stories of wrongly accused African Americans whom Marshall freed and civil rights workers whose killers he was unable to bring to justice reveal the elation and despair Marshall endured in serving as his people's go-to lawyer."
New Books in History talks with David Sehat about The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon and Schuster).

They also interview Gregory E. O'Malley about Final Passages: The Intercolonial Slave Trade of British America, 1619-1807 (UNC Press).

Saturday, September 26, 2015

A Museum of "the Weapon of the Weak"

The American Museum of Tort Law opens tomorrow in Winstead, CT, Ralph Nader's home town, the New York Times reports.  A ceremony to dedicate the museum takes place today.  Speakers include Ramsey Clark, Eric Foner (who coined the phrase in our title), and Patty Smith, whose "father, a factory worker, had worshiped Mr. Nader."

Weekend Roundup

  • Speaking of Constitution Day lectures, the uproar over Sean Wilentz's op-ed in the New York Times on slavery and the Constitution, which appeared on the day of his Constitution Day lecture at Princeton, continues.
  • Saul Cornell, Fordham University, will speak on "The Founding Fathers and the Origins of Gun Control: The Forgotten History," at 7 p.m. on Wednesday, September 30, in the Sandra and Alan Gerry Forum, Room 010 in the Rowley Center for Science and Engineering, SUNY Orange, Middletown.  
  • University of Chicago law alumni in Washington, DC, with a spare $25 lying around can hear Laura Weinrib on Labor, Lochner and the First Amendment on Wednesday, September 30, at noon at the Willard Hotel.  Geoffrey R. Stone, Chicago's interim dean, presides.
  • Earlier this year we noted a Call for Papers on "Law Collecting and Law Collectors" from the Scottish Council of Law Reporting with the University of Edinburgh. The organizers have extended the deadline to October 31.  
  • We've heard (from a web posting to which we can no longer link) that faculty members at Brown University are organizing a legal history workshop.
  • I thought some more about my reference to the "timeliness" of Michael Widener in that post on the YLS exhibit on the Pope as judge and lawgiver and realized that my word choice might imply that it was a rush job thrown together to capitalize on the papal visit.  Of course, it was not.  Widener and Anders Winroth had thought of it before the visit was announced.  Not "timeliness," then, but good instincts and really good luck.  DRE.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, September 25, 2015

Green on Clarity and Reasonable Doubt in Judicial Review in the Early Republc

Christopher R. Green, University of Mississippi School of Law and, this year, a fellow in the James Madison Program at Princeton University, has posted Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review:
Courts exercising judicial review in every state require the conflict between a statute and the state constitution to be “clear,” rather than simply shown by the preponderance of the evidence. In almost every state, however, courts also require proof of unconstitutionality beyond reasonable doubt. A state-by-state canvass shows that in the great majority of states, a clarity requirement appeared first, sometimes long before a no-reasonable-doubt rule. To the extent they conflict, clarity has a better pedigree, but there are compelling reasons to take early reasonable-doubt formulations as elaborations of a clarity rule, rather than a consciously higher standard.

The judicial obligation to exercise judicial review only when a constitutional conflict is clear is coupled with an obligation to render constitutional requirements as clear as possible. This obligation means, at a minimum, responding to all contrary considerations with an adequate reasoned explanation, as in contemporary administrative law. Because clarity is contingent on the amount of analysis that courts have given a constitutional issue in response to litigation, it can change over time.

Are historic rationales for a clarity requirement obsolete? One basic sort of rationale — the gravity of judicial review because of its resistance to correction — is not. Another sort of rationale, however — deference to the constitutional views of elected branches — is undermined if and when legislators fail to conduct constitutional analysis or executive officers fail to justify statutes adequately in litigation. Judicial consideration of such failures, however, need not eliminate a clarity requirement, which is a burden of persuasion, not production. Failures of legislative or executive justification can satisfy a clarity requirement or presumption of constitutionality rather than eliminating them.

Prakash to Deliver Murphy Lecture at Princeton

Saikrishna Bangalore Prakash, University of Virginia School of Law, delivers the Walter F. Murphy Lecture in American Constitutionalism, entitled "The Living Presidency’s Imperial Beginnings," on Monday, September 28, 2015, at 4:30 p.m. in Dodds Auditorium, Robertson Hall, Princeton University.  This public event is cosponsored by Princeton’s James Madison Program in American Ideals and Institutions, and the Program in Law and Public Affairs.

We've previously noticed the publication of Professor Prakash's new book, Imperial from the Beginning: The Constitution of the Original Executive.

Thursday, September 24, 2015

Legal Life Writing: Workshop and Book Launch

[We have the following announcement.]

The Legal Biography Project at the LSE
Legal Life Writing: Marginalised Subjects and Sources -
A Workshop and Book Launch

Tuesday 20 October 201
5 | 4-6pm Moot Court Room, 7th Floor, New Academic Building, London School of Economics (LSE), 54 Lincoln's Inn Fields, London WC2A 3LJ. Followed by Drinks Reception: 6-7pm.

‘Life writing' is an increasingly popular field of scholarship but much work to date has focused on charting the lives of the elite; most often white male judges and lawyers. Scholarship in this field has also been limited in its inter-disciplinary scope. This workshop will discuss a new book, Legal Life Writing: Marginalised Subjects and Sources (Wiley, 2015), edited by Linda Mulcahy (LSE) and David Sugarman (Lancaster) that explores the gaps in existing literature by focussing on the lives of those usually marginalised or treated as outsiders. It also endeavours to expand the range of sources it is considered legitimate to use when researching legal lives. The collection aims to ignite debate about the nature of the relationship between socio-legal studies and legal history; explore how gaps in the existing literature can be filled when sources about the marginalised are often scant; and challenge the methodologies employed in conventional accounts of legal lives.

David Sugarman
's scene-setting essay analyses ways in which legal life writing has been enlarged to embrace a wide range of subjects, sources and methods. This chapter, and the collection as a whole, advances a broader, more pluralistic, democratic conception of legal life writing that encourages inter-disciplinary dialogue, helping legal historians, historians and socio-legal scholars to develop new skills and embrace a wider range of participants and audiences, thereby enhancing their ability to engage with public issues in public history. Specific articles in the collection complement these general discussions by providing detailed accounts of particular actors whose stories have remained largely untold. Fiona Cownie discusses Clare Palley, the first woman professor of law at a United Kingdom University, and, playing with the notion of outsider-insider, Catharine MacMillan examines the life of the outwardly successful Jewish-born lawyer, Judah Benjamin. Several essays explore the alternative sources that can be turned to in order to fill gaps in existing knowledge. Rosemary Auchmuty focuses on the sources one might use to explore the lives of women in law. 

Other essays address the use of visual sources. Leslie Moran examines the use of images of judges, and their capacity to illustrate how authority is performed. Linda Mulcahy's study of the trial spectator utilises images of trials in popular journals and fine art which indicate how women participated in the public sphere of the courts.  The focus on gaps in the existing literature has also been extended in this book to cover other academics who have been much written about from a particular's perspective in ways which have obscured their broader contribution to law and the public sphere. Thus, Mara Malagodi considers the life of Ivor Jennings, one of Britain's most prominent constitutional law scholars of the twentieth-century. Malagodi contends that his oft-neglected work in South Asia during the early years of the Cold War allows us to see the man and his work through a very different lens.

Presentations about the book will be led by Professor Nicola Lacey (LSE) and Professor Michael Lobban (LSE) and chaired by Professor Phil Thomas (Journal of Law and Society).

For further details of the LSE Legal Biography Project see [here]

Wednesday, September 23, 2015

Lieblich on "Internal Jus Ad Bellum"

Eliav Lieblich, Radzyner School of Law, Interdisciplinary Center, has posted Internal Jus Ad Bellum, which is forthcoming in the Hastings Law Journal 67 (2016).
In 1945, the U.N. Charter famously set out “to save succeeding generations from the scourge of war.” Having in mind traditional interstate wars, the Charter’s Article 2(4) outlawed, for the first time, interstate uses of force. However, nowadays, international wars are relatively rare, while civil wars are both more numerous and increasingly destructive. Still, international law has yet to develop a regime regulating the resort to war (jus ad bellum) within a state, either by governments or opposition groups. Contemporary jus ad bellum, thus, fails to address one of the most atrocious forms of war in the modern international system.

This Article puts forward a novel theory of internal jus ad bellum, equally applicable to governments as well as opposition groups. It demonstrates that the current blind-spot in international law concerning this issue is incoherent and unwarranted. By applying the revisionist approach to just war theory, this Article argues that internal resort to armed force can only be morally acceptable if undertaken in self (or other) defense against grave threats.

Applying this notion to the international-legal sphere, this Article claims that collectivist doctrines such self-determination, sovereignty or democratic entitlement are not appropriate venues for an acceptable standard of internal jus ad bellum. It proceeds to locate such a possible standard in international human rights law (IHRL), which enshrines everyone’s right to life. However, as the Article demonstrates, IHRL, as currently understood, fails to serve as an effective framework for internal jus ad bellum, since it collapses, during armed conflict, into international humanitarian law (IHL). The Article concludes by suggesting an understanding of IHRL that can overcome these limitations and thus serve as a working doctrine of internal jus ad bellum.

Funk Reviews Compton's "Evangelical Origins of the Living Constitution"

Kellen R. Funk, a Yale JD and a doctoral candidate in history at Princeton University, has posted Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform, which is forthcoming in Law and Social Inquiry.  It is a review essay based on John W. Compton’s The Evangelical Origins of the Living Constitution (2014).
The Supreme Court of the New Deal era transformed the American Constitution, making the Constitution’s original protection of property rights give way to democratically popular regulations. In The Evangelical Origins of the Living Constitution (2014), John W. Compton argues that twentieth-century progressives turned the Court towards a “living” interpretation of the Constitution by relying on legislative methods and judicial precedents created by nineteenth-century evangelicals. Evangelical reformers accomplished national prohibition of liquor and lotteries, but their regulations destroyed property rights that were legally valid and socially acceptable at the inauguration of the Constitution. Courts ultimately acquiesced in novel economic proscriptions because of overwhelming majoritarian sentiment driven by evangelical populism. Relying on a recent literature of law and religion, Compton challenges conventional accounts of America’s constitutional tradition of protecting property. This essay reverses the path of analysis and argues that evangelical concerns about the Constitution’s property clauses can alter standard accounts of law and religion in American history. Rather than a simplistic imposition of moralism, evangelical reform — like that of contemporaneous progressives and their descendants — sought to protect liberalism with regulations rooted in antislavery thought.

Smith, "Sir Edward Coke and the Reformation of the Laws"

Via David Schorr's recent call for more legal historical work on swamp drainage (he makes the case!), we realized that we never profiled this book, released in November 2014: Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge University Press), by David Chan Smith (Wilfrid Laurier University). A description from the Press:

Throughout his early career, Sir Edward Coke joined many of his contemporaries in his concern about the uncertainty of the common law. Coke attributed this uncertainty to the ignorance and entrepreneurship of practitioners, litigants, and other users of legal power whose actions eroded confidence in the law. Working to limit their behaviours, Coke also simultaneously sought to strengthen royal authority and the Reformation settlement. Yet the tensions in his thought led him into conflict with James I, who had accepted many of the criticisms of the common law. Sir Edward Coke and the Reformation of the Laws reframes the origins of Coke's legal thought within the context of law reform and provides a new interpretation of his early career, the development of his legal thought, and the path from royalism to opposition in the turbulent decades leading up to the English civil wars.
More information is available here. Schorr notes that the book was recently reviewed here.

Tuesday, September 22, 2015

The Relaunching of the AJLH

The American Journal of Legal History opened a new chapter of its long history with the announcement yesterday that, after decades of support from the Temple University Beasley School of Law, it will now be published by the Oxford University Press, with  Alfred Brophy of the University of North Carolina School of Law and Stefan Vogenauer of the Max Planck Institute as co-editors and Roman Hoyos of Southwestern Law as book review editor. Al Brophy’s post on the announcement on the Faculty Lounge is here. Oxford's announcement is here. The new AJLH website is here.

My understanding of the history of the AJLH is based on oral traditions, certainly incomplete, and possibly misleading in its simplicity. (American legal historians have yet to produce a historiographer willing to tackle the institutional history of the field.)  But here goes anyway.

Like its parent the American Society for Legal History, the AJLH saw the light of day as the project of members of the Philadelphia bar whose notion of the legal past tended to the antiquarian. When professionally trained historians entered the field in the 1950s and early 1960s, they colonized the ASLH, converting it from a genteel learned society to the organizational presence of a historical subdiscipline. If you can imagine a time when legal historians could not dream of winning Bancroft Prizes and when Law and History Review did not follow closely upon the heels of the American Historical Review and the Journal of American History in national rankings, you can begin to understand the debt every self-identifying legal historian today owes to the scholars who devoted so much of their time to editing and reviewing manuscripts for Studies in Legal History and the AJLH back in the day. Al Brophy fondly remembers publishing one of his first article in the AJLH. I remember my excitement in publishing my first article there, too.

The reasons that led the ASLH to start LHR and the history of the AJLH after the ASLH ended its support are topics for a careful study, not a shoot-from-the-hip blog post. That said, I have to agree with Al that Oxford’s willingness to join Cambridge in publishing a legal history journal is a promising sign of the continued vitality of the field. Realizing that promise is not just the job of the AJLH’s editors but of all legal historians, who will have to make the time, despite the many demands upon it, for peer review.  And that's true not simply for the new AJLH, but for all the vehicles through which we make our work known.

Konczal on American Bureaucracy's Long and Useful History

The writer Mike Konczal, a Fellow at the Roosevelt Institute, has a nice review essay in the on-line Boston Review entitled Hail to the Pencil Pusher: American Bureaucracy's Long and Useful History.  Konczal writes:
Today, opposition to the administrative state unites everyone from George Will, who says the Affordable Care Act “serves principally to expand the administrative state’s unfettered discretion,” to Supreme Court Justice Clarence Thomas, who sees the administrative state as evidence of a “belief that bureaucrats might more effectively govern the country than the American people,” to Senator Mike Lee, Glenn Beck, and the Tea Party broadly.
But a new wave of legal history is overturning the narrative of paradise lost.
Konczal discusses Jerry Mashaw's Creating the Administrative Constitution, my Tocqueville's Nightmare, William Novak's People's Welfare, William N. Eskridge Jr. and John Ferejohn’s Republic of Statutes, Sophia Lee's The Workplace Constitution from the New Deal to the New Right, and articles by Anuj Desai and Jeremy Kessler.

Balganesh on "The Questionable Origins of the Copyright Infringement Analysis"

Shyamkrishna Balganesh (University of Pennsylvania Law School) has posted "The Questionable Origins of the Copyright Infringement Analysis," which is forthcoming in the Stanford Law Review (2016). Here's the abstract:
Central to modern copyright law is its test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components, actual copying — the question whether the defendant did in fact copy, and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counter-intuitively though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence modern copyright law and is responsible for the subjective and unpredictable nature of the infringement analysis in a wide range of copyright infringement lawsuits (e.g., the “Blurred Lines” verdict). Looking to the judges’ memoranda and correspondence in the case, as well as their extensive extra-judicial writing around the time, reveals that the court’s decision to empower the jury was driven almost entirely by Judge Frank’s unique legal philosophy — his skeptical views about judicial fact-finding and his desire to control lower court decision-making. Characterizing the entire infringement analysis as a purely factual one provided him with a perfect mechanism for giving effect to this skepticism. The Arnstein test thus had very little to do with substantive copyright law and policy, a reality that copyright jurisprudence has thus far ignored altogether in its continuing affirmation of the opinion’s framework. This Article disaggregates the complex issues that were at play in Arnstein to show how it was rooted in a dystopian vision of the adjudicative process that has since come to be universally repudiated, and argues that it may well be time for copyright jurisprudence to reconsider its dogmatic reliance on Arnstein, thereby freeing copyright law from one of its best-known malaises.
Hat tip: Legal Theory Blog

Monday, September 21, 2015

Cushman on the Hughes Court Docket Books, 1929-33

The Hughes Court (1930-31) (LC)
Barry Cushman, Notre Dame Law School, has posted The Hughes Court Docket Books: The Early Terms, 1929-1933, which he published in the Journal of Supreme Court History 40 (2015): 103-32.  Here is the abstract:    
For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions rendered during the early years of the Hughes Court, from the 1929 through the 1933 Terms. The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, fair trade, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds particularly fascinating new light on decisions such as Nebbia v. New York, Home Bldg. & Loan Assn. v. Blaisdell, New State Ice Co. v. Liebmann, Powell v. Alabama, Nixon v. Condon, and Burnet v. Coronado Oil & Gas Co. In particular, the docket books often reveal what the justices said to one another at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ votes between those conferences and the times the decisions were published. Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect” that some scholars have found exhibited by the Court’s newest members.
 My post when the Curator's office released its list of docket books is here.

Levy to the University of Chicago

More news from the intersection of legal history and economic history: Jonathan Levy, author of the prize-winning book Freaks of Fortune (2012), has left Princeton University for the University of Chicago. From the Chronicle of Higher Ed:
It wasn’t an easy decision for Jonathan I. Levy to leave the history department at Princeton University, where he earned tenure last year. This fall, however, the acclaimed young scholar will return to the institution that guided him toward his academic career: the University of Chicago. . . . .
Chicago’s appeal, Mr. Levy says, stems in part from its attractive opportunities for research and collaboration between departments, which he considers essential for his area of expertise, economic history. The field is "at a really important moment" stemming from the 2008 financial crisis, he says; the disciplines had largely split apart, but since then, historians’ interest in economics has been renewed.
Read on here.

Wright, "The Regional Impact of the Civil Rights Act of 1964"

The Boston University Law Review recently published "The Regional Impact of the Civil Rights Act of 1964," by Gavin Wright (Stanford University). Full text is now available online.

I couldn't find an abstract, but the paper appears to be a spin-off from Wright's 2013 book, Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (Harvard University Press). We've mentioned the book previously here.

Hat tip: Poverty Law

Sunday, September 20, 2015

Sunday Book Roundup

The New Rambler has a review of The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen (Basic).
"Written with his son Luke, Paulsen presents a well-written, accessible, and reasonably comprehensive (for a book of this size) account of the Constitution and how it has been interpreted by not just the Supreme Court, but a number of Presidents as well (Congress gets rather short shrift)."
There is an excerpt from Michael Javen Fortner's Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (Harvard University Press), titled, "How the Black Middle Class Pushed for Harsher Drug Laws," on The Daily Beast.

On H-Net, William D. Green's Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865-1912 (University of Minnesota Press) has been reviewed.
"The book is firmly grounded in historical narrative, with several key personalities providing focal points throughout the book: St. Paul barber Maurice Jernigan, Minneapolis attorney Frank Wheaton, and St. Paul attorney Fredrick McGhee, in particular. Green also uses Frederick Douglass and Booker T. Washington to do the important work of tying Minnesota’s story into larger national narratives of the post-Civil War era. With interesting and notable personalities to focus the narrative, Green moves from political to legal to social history with relative ease, and his integration of these frameworks provides a rich and nuanced narrative." 
There are two reviews of Will Haygood's Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America (Knopf): the first in the L.A. Times, here; and the second in The New York Times, here.

There are also two reviews of Justice Steven Breyer's The Court and The World: American Law and the New Global Realities (Knopf). The Washington Post has a review by Noah Feldman, here. John Fabian Witt reviews the book for The New York Times.
"His argument is a simpler yet more radical one. To decide such cases intelligently, he insists, judges need to understand and engage with foreign and international law. To do otherwise is to try to navigate the globe with a blindfold."
And, for a final dose of SCOTUS for the weekend, here is a New York Times review of Linda Hirshman's Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (Harper).

Saturday, September 19, 2015

Weekend Roundup - UPDATED

  • On Wednesday, the New York Times published an op-ed by Sean Wilentz (Princeton) on the status of slavery in the U.S. Constitution. In his own words, Wilentz takes aim at "the myth that the United States was founded on racial slavery." Over at The Junto, guest Kevin Gannon (Grand View University) explains why he found Wilentz's piece "baffling, infuriating, and sad."
  • UPDATE: One more response to Wilentz, this one from David Waldstreicher (City University of New York) in the Atlantic. (H/t: Michael Meranze)
  • Also via The Junto: the William and Mary Quarterly and the Journal of the Early Republic invite proposals for a special joint issue, “Writing To and From the Revolution.”
  • Registration is now open for the annual meeting of the American Historical Association, January 7-10, 2016, in Atlanta.
  • "John Witte, Jr., Named Kluge Chair in Countries and Cultures of the North": The Emory press release is here.
  • The 2015 National Heritage Lecture, an event sponsored on a rotating basis by the White House Historical Association, the US Capitol Historical Society, and the Supreme Court Historical Society, will be Coolidge For President: The President Who Said No, delivered by Amity Shlaes at 6:00 on October 15 at the White House Historical Association, 1610 H Street, NW, Washington, D.C.
  • From In Custodia Legis: A celebration of all the useful historical tidbits in the Congressional Research Service's annotated Constitution (The Constitution of the United States of America: Analysis and Interpretation).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 18, 2015

Law and History Review Seeks Book Reviewers

Interested in reviewing books for LHR?  If so, please sign up here.

Update: The link is now fixed.

University of Washington, Bothell Seeks Professor of Legal Studies

The University of Washington, Bothell, School of Interdisciplinary Arts and Sciences has posted the following job advertisement:
Legal Studies – Assistant Professor, Tenure-Track (One Full-Time, 9-Month Position)

The School of Interdisciplinary Arts and Sciences (IAS) at the University of Washington Bothell (UWB) seeks dynamic educators capable of integrating research, teaching, and practice in the field of legal studies. Preference will be given to candidate with expertise in one or more of these areas: indigenous studies; environmental justice; discrimination; queer studies; immigration; disability studies. Candidates should be prepared to teach “Introduction to Law” and related courses such as “Public Policy and Law” and “Institutions and Social Change.” Record of teaching excellence, evidence of commitment to working with diverse student and community populations, and PhD or JD or foreign equivalent terminal degree required at time of appointment. Salary is commensurate with qualifications and experience.
Read on here.

Thursday, September 17, 2015

New Website Showcases Law, Family, and Slavery in Early Washington, D.C.

Via Slate's The Vault, we have word of the online archival repository "O Say Can You See: Early Washington, D.C. Law & Family." From the website:
This project explores multigenerational black, white, and mixed family networks in early Washington, D.C., by collecting, digitizing, making accessible, and analyzing thousands of case files from the Circuit Court for the District of Columbia, Maryland state courts, and the U.S. Supreme Court. We include petitions for freedom, civil, criminal, and chancery cases. And we incorporate where possible related documents about these families from special collections, archives, churches, and local historical societies. Scholars from the University of Nebraska-Lincoln and the University of Maryland will collaborate by uncovering the web of litigants, jurists, legal actors, and participants in this community, and by placing these family networks in the foreground of our interpretive framework of slavery and national formation.
The Stories portion of the website may be of broad interest, as it offers examples of "interactive analysis" (scholarly interpretations of the documents with hyperlinks to the actual primary sources).

Other parts of the website guide the reader to "Cases," "Families," and "People" (including attorneys).

Witt to Deliver Jefferson Memorial Lecture at UC Berkeley

With apologies for the late notice - today at 4 pm PST John Fabian Witt will deliver the annual Jefferson Memorial Lecture at the University of California, Berkeley. The title of his lecture is "The Switch: Reinventing American Freedom":
Witt’s Jefferson lecture will explore the subject of how American constitutional law was “reinvented,” as he proposes, during the early twentieth century.   Taking up a small cast of characters who self-consciously aimed to disrupt the ideological structures of American law, Witt tells a story of social experiment and constitutional transformation that explains our constitutional past and offers powerful, if sometimes troubling, implications for our constitutional future.

"Beyond the New Deal Order" Conference Program

Next week (September 24-26) the University of California, Santa Barbara hosts a conference titled "Beyond the New Deal Order." The full program is now available here. Panels of particular interest to our readers include:

Plenary: State Building: Democratic and Managerial
Chair: Alice O’Connor, UCSB
Meg Jacobs, Princeton University, “Reconsidering Regulation in the New Deal and

K. Sabeel Rahman, Brooklyn Law, “Transcending the New Deal Idea of the State:
Managerialism, Neoliberalism, and Participatory Democracy in the Regulatory State”

William Novak, University of Michigan Law School, “Beyond the Idea of the New
Deal State”
New Perspectives on New Deal Social Politics 
Elizabeth Shermer, Loyola University of Chicago, “Indentured Students and Mass
Higher Education”
Mark Santow, University of Massachusetts, Dartmouth, “Castles Made of Sand?
Home Ownership and the New Deal Order”

Doug Genens, UCSB, “Legal Services and the War on Poverty in Rural California”

Commentator and Chair: Tom Sugrue, New York University
Tax and Fiscal History as Cat Scan of Post-New Deal Order
Elliot Brownlee, UCSB, “The New Deal Order and Beyond: The Fiscal Issues”
Isaac William Martin, UC, San Diego, “The Tax Revolt and the Fall of the New Deal

Joseph Thorndike, Tax Analysts, and Ajay Mehrotra, American Bar Foundation, ”New
Deal Taxation and the Long 20th Century of Progressive Taxation”

Commentator and Chair: Romain Huret, EHESS
Labor and the Law
Kate Andrias, University of Michigan Law School, “Law and the Labor Question in
the Post New Deal Order”
Joseph McCartin, Georgetown University, “Public Sector Unions and the New Deal
Order: Logical Extension, Catalyst of Crisis, Agent of Revival and Revision”

William P. Jones, University of Wisconsin, “The Other Operation Dixie: Public
Employees and the New Deal Order”

David Bensman, Rutgers University, and Donna Kesselman, University of Paris, Est
Creteil, “From the New Deal Standard Employment Relationship to Employment
Grey Zone”

Commentator and Chair: Bob Master, Communications Workers of America
The Politics of Regulation In and Beyond the New Deal Order
Paul Sabin, Yale University, “Environmental Law and the End of the New Deal Order”
Paul V. Kershaw, Charles Warren Center, Harvard University, “The Ascendance of
the Neoliberal Political Order: A Triumph of Interests, Not Ideology”

Reuel Schiller, University of California, Hastings College of the Law, “Beyond New
Deal Regulation: Neo-Liberalism and the Modern Administrative State”

Commentator and Chair: Mary Furner, UCSB
Plenary: Race in the Configuration and Reconfiguration of the New Deal Order
Matt Garcia, Arizona State University, “The Unexpected Virtues of Exclusion: Farm
Workers and the New Deal”
Tom Sugrue, New York University, “The State and Planning: Race, the Metropolis
and Policymaking from Liberalism to Neoliberalism”

Kelly Lytle Hernandez, UCLA, “Caged Birds: The Rise of Mexican Incarceration in the United States, 1929-2015”
Civil Rights and American Federalism 
Kristoffer Smemo, UCSB, “Holding the Balance of Power: The Black Vote, The
Republican Party, and the Politics of Coalition Building in the 1940s”
Brent Cebul, American Academy of Arts and Sciences and Mason Williams, Williams College, “Revisiting the Question of Federalism: Intergovernmental State-building and the New Deal Roots of Urban Liberalism and Sunbelt Conservatism”

David Stein, CUNY Graduate Center, “Containing Keynesianism in an Age of Civil
Rights: Jim Crow Monetary Policy and the Struggle for Guaranteed Jobs, 1957-1979.”

Commentator and Chair: Gary Gerstle, University of Cambridge
Individual Rights and Administrative Power in New Deal History
Sophia Lee, University of Pennsylvania Law School, “Against Rights Essentialism:
Labor, Civil Rights, and the New Deal State”
Karen Tani, University of California, Berkeley School of Law, “The Unanticipated
Consequences of New Deal Poor Relief: Welfare Rights, Empowered States, and the Revival of Localism”

Joanna Grisinger, Northwestern University, “The Right to Participate and the Civil
Aeronautics Board”

Jeremy Kessler, Columbia University Law School, “The New Deal in the New Draft
Conscription, Conscientious Objection, and the Decline of Administrative Autonomy”

Commentator and Chair: Laura Kalman, UCSB

Wednesday, September 16, 2015

Finkelman on "Citizenship and the Constitution"

An op-ed by Paul Finkelman, Citizenship and the Constitution: A Legal History Lesson for Our Times, is out today in the Huffington Post.

Bilder's "Madison's Hand"

Mary Sarah Bilder, Professor of Law and Michael and Helen Lee Distinguished Scholar at Boston College Law School, has just published Madison’s Hand: Revising the Constitutional Convention with the Harvard University Press.  (She also discusses the book in a post out today on HNN, entitled, Why We Shouldn’t Think for a Moment that James Madison’s Notes on the Constitutional Convention Were Objective.)  Among the controversies the book addresses is the place of slavery in the Constitution.  For example, in an op-ed in today's New York Times, Sean Wilentz, relying in part on Madison's Notes, argues that the framers did not intend to make slavery a "national institution."  Professor Bilder would not argue to the contrary, but she believes Madison's post-convention revisions made the Virginians seem enlightened and the delegates from the Deep South solely responsible for the Constitution's protections of the slavery, when neither was the case.

Here’s the press’s description of Madison’s Hand:
James Madison’s Notes on the 1787 Constitutional Convention have acquired nearly unquestioned authority as the description of the U.S. Constitution’s creation. No document provides a more complete record of the deliberations in Philadelphia or depicts the Convention’s charismatic figures, crushing disappointments, and miraculous triumphs with such narrative force. But how reliable is this account?

In an unprecedented investigation that draws on digital technologies and traditional textual analysis to trace Madison’s composition, Mary Sarah Bilder reveals that Madison revised the Notes to a far greater extent than previously recognized. The Notes began as a diary of the Convention’s proceedings. Madison abandoned the project at a critical juncture, however, and left the Notes incomplete. He did not return to finish them until several years later, largely for Thomas Jefferson. By then, Madison’s views were influenced by the new government’s challenges and Jefferson’s political ideas. Madison’s evolving vision of republican government, his Virginia allegiances, his openness to constitutional protection for slavery, his fascination with the finer points of political jockeying, and his depictions of Alexander Hamilton and Charles Pinckney shifted during the writing and rewriting of his account. When the Notes were finally published in 1840, the layers of revision were invisible.

Madison’s version of events quickly assumed an aura of objectivity, and the Notes molded the narrative of the Constitution. Madison’s Hand offers readers a biography of a document that, over two centuries, developed a life and character all its own.
Jack Rakove calls the book “a major contribution to our understanding of the Constitutional Convention.”  Richard Beeman writes:
Every historian who has ever written about the Constitutional Convention has used James Madison’s ‘Notes’ as a fundamental primary source. And although nearly all are aware of the fact that Madison revised his notes over time, no one has ever attempted a systematic study of the nature of those revisions or of the significant ways in which those changes might have altered our understanding of the Convention. Madison’s Hand is an exceptionally important piece of work that will have a profound impact on all future work on the Constitutional Convention."
Endorsements from Michael McConnell, Garrett Epps, and Eric Nelson and the TOC after the jump.

Stern on the Origins of the "Reasonable Person"

Simon Stern, University of Toronto Faculty of Law, has posted R. v. Jones (1703): The Origins of the "Reasonable Person," which is to appear in Landmark Cases in Criminal Law, ed. Ian Williams, Phil Handler, and Henry Mares (Oxford: Hart, 2016):
Although the origins of the “reasonable person” standard are usually traced to the 1837 tort case of Vaughan v. Menlove, eighteenth-century jurisprudence offers various examples of a personified, objective standard. This paper focuses on an early version of this standard, in a 1703 fraud case, R. v. Jones, which uses the “person of an ordinary capacity” to draw the line between civil and criminal liability. The discussion examines how this standard was transformed in the course of the eighteenth century; considers the blend of normative and descriptive features that were already driving the standard at this time; and seeks to explain what is significant about the personified form of the standard, such that it fits some areas of criminal law, such as duress and provocation, better than others, such as fraud. Although fraud would ultimately prove to be an inhospitable area for the use of this standard, R. v. Jones provided a vehicle for its circulation, so that it might eventually take root elsewhere. In the course of the discussion, I show how William Hawkins’s treatise on criminal law reformulated the standard in terms that are far more familiar to modern eyes (“a man of common prudence and caution”), and I discuss some of the early nineteenth-century American jurisprudence, which would have made the application of the standard a question for the jury.

Tuesday, September 15, 2015

New Magna Carta Exhibit at the Harvard Law School Library

[We have the following announcement.]
If you plan to be in the Boston area between now and mid-March 2016, visit the HLS Library’s exhibit: One Text, Sixteen Manuscripts: Magna Carta at the Harvard Law School Library. The Library owns close to 30 manuscript copies of Magna Carta; sixteen are on view. An online exhibit companion is available, and all of HLS’s manuscript Magna Cartas have been digitized and may be viewed online. The exhibit was curated by Karen Beck and Mindy Kent, HLS Library. It is on view daily 9 to 5 in the Caspersen Room, Langdell Hall, through March 11, 2016. Contact Karen Beck for more information.

Troesken on "How the Constitution Left Americans Rich, Free, and Prone to Infection"

New from the University of Chicago Press: The Pox of Liberty: How the Constitution Left Americans Rich, Free, and Prone to Infection (June 2015), by Werner Troesken (University of Pittsburgh). From the Press's overview:
Werner Troesken looks at the history of the United States with a focus on three diseases—smallpox, typhoid fever, and yellow fever—to show how constitutional rules and provisions that promoted individual liberty and economic prosperity also influenced, for good and for bad, the country’s ability to eradicate infectious disease. Ranging from federalism under the Commerce Clause to the Contract Clause and the Fourteenth Amendment, Troesken argues persuasively that many institutions intended to promote desirable political or economic outcomes also hindered the provision of public health. We are unhealthy, in other words, at least in part because our political and legal institutions function well. Offering a compelling new perspective, The Pox of Liberty challenges many traditional claims that infectious diseases are inexorable forces in human history, beyond the control of individual actors or the state, revealing them instead to be the result of public and private choices.
More information is available here.