Saturday, October 31, 2015

Weekend Roundup

  • The National History Center’s next Congressional Briefing will be on the Voting Rights Act.  It will be held on December 4, 2015 from 1:00pm-2:00pm in the Cannon House Office Building.
  • Over at the Historical Society of the New York Courts, Frances Murray, former librarian of the New York Court of Appeals, is blogging on Anglo-Saxon Dooms.
  • The Society for History in the Federal Government seeks nominations for the Henry Adams Award and George Pendleton Award, book prizes that seek "to encourage excellence in the broad field of US government history."  H/t: H-Law
  • Indian Country reports that  Gregory Ablavsky, Bethany R. Berger, Ned Blackhawk, Daniel Carpenter, Matthew L.M. Fletcher, Maggie McKinley, and Joseph William Singer have filed an amicus brief in Dollar General v. Mississippi Band of Choctaw Indians.  The amici are “historians and legal scholars whose scholarship focuses on Indian law and Indian legal history, including the history of tribal sovereignty and jurisdiction.” 
  • Claudio Saunt, University of Georgia, History, on the Trail of Tears as Mass Deportation a la Trump via HNN.
  • In the Law Times, Philip Girard, Osgoode Hall Law School, urges the new Canadian government “to fix [a] long-troubled judicial selection process.”
  • The SEC Historical Society's new gallery, devoted to the regulation of municipal securities, will go online on December 1. 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 30, 2015

Wang on Anti-Corruption Campaigns in "the New China"

Chuanli Wang, Tsinghua University Department of Political Science, has posted The Establishment of a Legal System In Anti CorruptionCampaigns in the Early Days of The New China, which appeared in the Tsinghua China Law Review 7 (2014): 101.

Opposite to the mainstream academic view that little attention was paid to legal system building in the anti‑corruption campaigns in the early stage of the People=s Republic of China (ANew China@), this article focuses on not only the mass movement but also the establishment of a legal system in that period. Supported by numerous historical data, this article argues that a fundamental legal system for anti‑corruption has actually been built in the early years of the New China. The Party Central Committee, Government Administration Council (renamed State Council), Discipline Inspection and Supervision Departments, and political‑legal departments enacted and enforced a complete set of preliminary anti‑corruption regulations and provisions conforming to the national conditions. Accompanying discipline inspection and supervision system and judicial system were also built. Criminal laws, administrative rules and regulations at that time all embodied the goal to combat corruption.

When studying anti‑corruption campaigns in the early days of the New China, some scholars ignored the establishment of the laws and regulations and considered the mass anti‑corruption campaign to be legal nihilism, asserting that what Chairman Mao was constructing was Arule of the masses under the concept of rule of man,@ and Athe legal system was never considered as the basic policy and practice.@ In fact, the truth is completely contrary to what these scholars believed. Shortly after its establishment, the New China enacted and enforced a complete set of disciplines for management, politics, and finance. She also promulgated criminal regulations and established a judicial and supervisory system to suppress corruption.

"Age of Lawyers" at the Folger Library

[We are reprinting from the Fall 2015 Newsletter of the Friends of the Edward Bennett Williams Library the following notice of the Folger Shakespeare Library Exhibit, The Age of Lawyers: The Roots of American Law in Shakespeare's Britain, which is dedicated to the legal historian Christopher Brooks.  ASLH meeting attendees, take note!]

The Folger Shakespeare Library has mounted a new exhibition, “Age of Lawyers: The Roots of American Law in Shakespeare’s Britain.” The individual exhibits come together to display a period of history where the law increasingly became a factor in everyday life in England. Early versions of law schools, crime records, and liquor licenses are just a few examples of the law that are displayed.

Erin Kidwell, Curator of Legal History Collections here at Georgetown Law Library, is the Academic Advisor to the exhibition. Bringing to the Folger not only her knowledge as a legal history scholar, but also two of our most prized Special Collections possessions which are on loan to the Folger, Erin played an important role in the preparation of the exhibition. . . .

Georgetown Law Library contributed a complete set of Sir Edward Coke’s reports (The Reports of Sir Edward Coke, Kt. [1572-1617]: In English Compleat in Thirteen Parts, With References to all the Antient and Modern Books of the Law), and a 1569 copy of Bracton (Henrici de Bracton De Legibus & Consuetudinibus Angliae Libri Quinq) that was owned and annotated by Sir Edward Coke. See the Folger’s Exhibition Item List for more information on all exhibited items.

The Exhibition is open through January 3, 2016, Mondays through Thursdays, and Saturdays, 10:00 a.m. to 5:00 p.m.; Fridays from 10:00 a.m. to 8:00 p.m.; and Sundays from noon to 5:00 p.m. Tours of the Exhibition are available Mondays through Fridays at 11:00 a.m., 1:00 p.m. and 3:00 p.m., Saturdays at 11:00 a.m. and 1:00 p.m., and Sundays at 1:00 p.m.

The Law and Personal Image Into the Digital Age

By the 1970s, the basic doctrines of the tort "laws of image" had been established, as had American culture's "image-conscious sensibility." As I suggest in Laws of Image: Privacy and Publicity in America, the twentieth century witnessed the rise of a cultural outlook in which the self is conceptualized in terms of images. Influenced by a variety of forces, from the visual media to celebrity culture to the mobile and fluid conditions of urban life, Americans became aware of having public images, and being images: one's identity was embedded, at least in part, in the image or persona one strategically constructed and presented to others. In a world of crowds, surfaces, and distant and impersonal social relations, the ability to perfect and manage one's image came to be regarded as critical to social mobility, public recognition, and material success. In the individualistic culture of postwar America, it also became integral to ideals of personal liberation and psychological and emotional health. Individuals from a variety of backgrounds and circumstances asserted that they owned their images, that they had a right to control their images, and that this prerogative was critical to their ability to live and function as free and self-determining individuals. The law responded and contributed to this focus on images and the image-conscious self.

The historical trends I write about in Laws of Image continue today. In our culture of instant celebrity, of blogs, smartphones, and webcams, we want to reveal ourselves, to create public images, to proclaim ourselves to the world, and we have the means to do it. But -- as ever -- we seem to want publicity on our own terms. 

Back in the early 2000s, a high school student wrote a critical poem about her hometown and posted it on her MySpace web page. Her school principal saw it and submitted it to the local newspaper, where it was published. The student sued the newspaper for invasion of privacy. She claimed that she intended the poem to be read only by her MySpace friends, and that even though she posted the poem online, publishing it in the newspaper invaded her privacy and caused her emotional distress. 

How is it that people can willingly post personal information online, then complain when someone else presents that same information in another, albeit displeasing context? This is the dynamic I describe in Laws of Image: people want to expose themselves to the public -- to create a public image, a visible public persona and presence -- yet at the same time to manage and control those images. And this is, in part, what "privacy" has come to mean in the online world: a right to control the contexts and circumstances of our self-publicity.

Thanks to the Legal History Blog! 

Thursday, October 29, 2015

Schmitt on the Federal Right to Recover Fugitive Slaves

Jeffrey M. Schmitt, Florida Coastal School of Law, has posted The Federal Right to Recover Fugitive Slaves: An Absolute But Self‑DefeatingProperty Right, which is to appear in the
Savannah Law Review 2 (2015).:    
A key insight of modern property scholarship is that property rights are limited by the rights of others. In the antebellum era, slave owners= property rights in fugitive slaves who escaped into the North existed in tension with the rights of free blacks who might be wrongfully claimed. At first, the Fugitive Slave Act of 1793, as supplemented by the law in most Northern states, limited a slave owner=s property rights by providing limited legal protections to free blacks against being erroneously claimed as slaves. As attitudes towards slavery changed, however, state laws in the North became increasingly protective of free blacks, and Southerners became less willing to accept any limitations on the right to recover fugitive slaves. The Supreme Court responded in Prigg v. Pennsylvania by striking down state law limitations on slave owners= ability to recapture fugitive slaves. Congress followed suit in the Fugitive Slave Act of 1850 by federalizing a strong property right in fugitive slaves that was only marginally limited by the alleged slaves= rights to freedom. This Article argues that the federal government=s one‑sided approach to the fugitive‑slave issue generated an antislavery backlash that undermined Northern support for the rendition of fugitive slaves, making rendition costly and dangerous. The fugitive slave issue, therefore, suggests that property rights that ignore the rights of others are not only unjust, but, in the right circumstances, can also be self‑defeating.

Bolick to Lecture at ASU

Arizona State University’s Center for Political Thought and Leadership announces Using Law to Advance a Just Society, A PTL Dialogue Series talk by Clint Bolick, Monday, November 2, 5:00 - 6:30 pm in Coor Hall 4403.  The event is free and open to the public.  The Center notes that “Clint Bolick serves as the Goldwater Institute's Vice President for Litigation.”  It continues:
In a recent profile, the New York Times said that Bolick is "known for his aggressive litigation to defend individual liberties." He has argued and won cases in the United States Supreme Court, the Arizona Supreme Court, and state and federal courts from coast to coast. He has won landmark precedents defending school choice, freedom of enterprise, and private property rights and challenging corporate subsidies and racial classifications.
LHB readers who know Steven Teles’s Rise of the Conservative Legal Movement and have been lucky enough to hear previews of Jefferson Decker’s forthcoming The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government will also recognize Bolick as a leading figure in the Mountain States Legal Foundation and a cofounder of the Institute for Justice.

Society, Law, and Culture in the Middle East:

We have word of the publication of Society, Law, and Culture in the Middle East: “Modernities” in the Making, ed. Dror Ze’evi and Ehud R. Toledano (De Gruyter, 2015):
Society, Law, and Culture in the Middle East:“Modernities” in the Making is an edited volume that seeks to deepen and broaden our understanding of various forms of change in Middle Eastern and North African societies during the Ottoman period. It offers an in-depth analysis of reforms and gradual change in the longue durée, challenging the current discourse on the relationship between society, culture, and law. The focus of the discussion shifts from an external to an internal perspective, as agency transitions from “the West” to local actors in the region. Highlighting the ongoing interaction between internal processes and external stimuli, and using primary sources in Arabic and Ottoman Turkish, the authors and editors bring out the variety of modernities that shaped south-eastern Mediterranean history.

The first part of the volume interrogates the urban elite household, the main social, political, and economic unit of networking in Ottoman societies. The second part addresses the complex relationship between law and culture, looking at how the legal system, conceptually and practically, undergirded the socio-cultural aspects of life in the Middle East.

Society, Law, and Culture in the Middle East consists of eleven chapters, written by well-established and younger scholars working in the field of Middle East and Islamic Studies. The editors, Dror Ze'evi and Ehud R. Toledano, are both leading historians, who have published extensively on Middle Eastern societies in the Ottoman and post-Ottoman periods.
TOC here.

LHR 33:4

Law and History Review 33:4 (November 2015) is out!  H/t: @LHR_editor


To Make All Children Equal is a Change in the Power Structures of Society: The Politics of Family Law in Twentieth Century Chile and Latin America
Nara Milanich

Binding in Conscience: Early Modern English Protestants and Spanish Thomists on Law and the Fate of the Soul
Richard J. Ross

Inexperienced Humanitarians? William Wilberforce, William Pitt, and the Execution Crisis of the 1780s
Simon Devereaux

The Internal Forum of the Later Middle Ages. A Modern Myth?
Wolfgang P. Müller

“Amphibious Power”: The Law of Wreck, Maritime Customs, and Sovereignty in Richelieu's France
Francesca Trivellato

Legal Pluralism and the English East India Company in the Straits of Malacca during the Early Nineteenth Century
Nurfadzilah Yahaya

Environmental Law and the End of the New Deal Order
Paul Sabin

Reviews (after the jump)

Schudson's "Rise of the Right to Know"

The Harvard University Press has published The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975, by Michael Schudson, Professor of Journalism at Columbia University.
The American founders did not endorse a citizen’s right to know. More openness in government, more frankness in a doctor’s communication with patients, more disclosure in a food manufacturer’s package labeling, and more public notice of actions that might damage the environment emerged in our own time.

As Michael Schudson shows in The Rise of the Right to Know, modern transparency dates to the 1950s, 1960s, and 1970s—well before the Internet—as reform-oriented politicians, journalists, watchdog groups, and social movements won new leverage. At the same time, the rapid growth of higher education after 1945, together with its expansive ethos of inquiry and criticism, fostered both insight and oversight as public values.

Schudson provides case studies of precedent-setting disclosure practices: the Freedom of Information Act (1966), reforms of supermarket labeling (1970s), sunshine legislation in the Congress (1970), the complicated conceptual and legislative origin of the “environmental impact statement,” and newsroom changes that increased the independence and analytical sophistication of news coverage after 1968. These changes brought a “right to know” into political life and helped define a new era for representative democracy—less focus on parties and elections, more pluralism and more players, year-round monitoring of government, and a blurring line between politics and society, public and private. The rise of openness marks a new stage in self-government.
Here’s the TOC:

1. A Cultural Right to Know
2. Origins of the Freedom of Information Act
3. The Consumer’s Right to Be Informed
4. Opening Up Congress
5. The Media’s Presence
6. “To Let People Know in Time”
7. Transparency in a Transformed Democracy
8. Disclosure and Its Discontents

Wednesday, October 28, 2015

ASLH Attendees Welcome at Georgetown Law Special Collections and Archives

[We have the following announcement.]

Georgetown Law Special Collections and Archives Welcomes Visitors Attending the ASLH meeting!

 If you are visiting the ASLH meeting, please come and visit Georgetown Law’s Special Collections department just across the street from the conference hotel! The Law Library is on 600 New Jersey Avenue, N.W. Just cross New Jersey Avenue, and walk through the gates leading to the green. The library entrance is on the right. We will be open on Friday, Oct. 30th, during our regular hours, 9:00 a.m. to 5:00 p.m. and also on Saturday, Oct. 31st, 1 p.m. to 5 p.m. We currently feature three exhibitions:

Credit + Map/Directions
*Our 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 (pl. The exhibit features 5 imprints of Magna Carta cum Statutis tum antiquis tumrecentibus, 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.

* An exhibition on display in the Library Atrium highlighting the Dr. Marion Cheek Papers and Dr. Cheek’s case against the King of Siam. Dr. Marion A. Cheek was a Presbyterian missionary who worked in the mission in Siam in 1874. He resigned from the mission in 1886 and went into the teak business. In July 1893, King Chulalongkorn and the Siamese Commissioner issued a proclamation seizing all of his assets because he did not respond to repeated royal summons. Dr. Cheek sought redress in his famous legal case with the help of the American Consulate. The case found that the Siam government violated Article II of the American Treaty of 1856 as no default on the part of Dr. Cheek. His estate received an award of $200,000, but unfortunately, he died in 1895, before his case was finalized.

*Another exhibition on display in the Library Atrium on the beginnings of the Legal Services program of the Office of Economic Opportunity, featuring a vinyl record with a recording of a 1964 interview with Gary Bellow on the “Role of the Lawyer and the Problem of Poverty,” photos, and manuscripts, including Marna Tucker’s 1966 manuscript reflecting on her experiences with the Neighborhood Legal Services Program in Washington, D.C., “Justice in Sneakers.”

 Georgetown Law Library’s Special Collections department includes a notable Rare Books collection, including collections with early printed works, ranging from the fifteenth century copy of Justinian's Pandectorum to late nineteenth century American state reports and codes. The collection houses historical legal texts from Great Britain, Ireland, France, the United States, Canada, Mexico, and other nations.

The Manuscripts Collection and University Archives consist of personal papers from past deans and faculty of Georgetown Law, alumni donations, case files, and historical documents. The collection includes materials on Watergate, Criminal Justice, Early Colonial and English law, International law, development of law in the American West, and the Tokyo War Crimes Tribunal.

The National Equal Justice Library includes over 100 collections documenting the history of indigent defense and legal aid in the United States and internationally.

Please contact us at:, and on the phone at: 202-662-9133.

Lecturer in History and Law at Queen Mary University

[We have the following, rather exciting announcement.  More here.]

Queen Mary University of London enjoys an outstanding international reputation for the excellence of its research and teaching in the Humanities and Social Sciences. Its School of History and School of Law are innovative leaders renowned for their dynamic and supportive research environments, their international collaborations, their excellent teaching practices, and their members’ engagement with publics outside academia.

The School of History and the School of Law are now seeking to extend their joint teaching and research interests by appointing an excellent historian of law and legal thought. They invite applications from candidates, who may have completed research towards a doctorate in Law or in History, and whose research may include:

·         The history of legal thought
·         Constitutional history
·         Law in colonial and imperial contexts
·         The history of human rights
·         Religious traditions of law
·         International and transnational history of law
·         Comparative legal history

The School of History and the School of Law would expect the successful candidate to lead in the development of their new degree of Law with History, which will be offered to undergraduates from September 2016, including designing and offering a new module for this programme.  This will be a unique opportunity for the display of intellectual leadership and a flair for work within an interdisciplinary environment.

The post is full time and permanent. Starting salary will be in the range of £39,351 - £41,553 per annum, inclusive of London Allowance. Benefits include 30 days annual leave, defined benefit pension scheme and interest-free season ticket loan.

Candidates must be able to demonstrate their eligibility to work in the UK in accordance with the Immigration, Asylum and Nationality Act 2006. Where required this may include entry clearance or continued leave to remain under the Points Based Immigration Scheme.

Downs and Masur, eds., "The World the Civil War Made"

New from the University of North Carolina Press: The World the Civil War Made, edited by Gregory P. Downs (University of California, Davis) and Kate Masur (Northwestern University). The TOC suggests that there's lots of material here that should interest our readers. From the Press:
At the close of the Civil War, it was clear that the military conflict that began in South Carolina and was fought largely east of the Mississippi River had changed the politics, policy, and daily life of the entire nation. In an expansive reimagining of post–Civil War America, the essays in this volume explore these profound changes not only in the South but also in the Southwest, in the Great Plains, and abroad. Resisting the tendency to use Reconstruction as a catchall, the contributors instead present diverse histories of a postwar nation that stubbornly refused to adopt a unified ideology and remained violently in flux. Portraying the social and political landscape of postbellum America writ large, this volume demonstrates that by breaking the boundaries of region and race and moving past existing critical frameworks, we can appreciate more fully the competing and often contradictory ideas about freedom and equality that continued to define the United States and its place in the nineteenth-century world.
Contributors include Amanda Claybaugh, Laura F. Edwards, Crystal N. Feimster, C. Joseph Genetin-Pilawa, Steven Hahn, Luke E. Harlow, Stephen Kantrowitz, Barbara Krauthamer, K. Stephen Prince, Stacey L. Smith, Amy Dru Stanley, Kidada E. Williams, and Andrew Zimmerman.
More information is available here.

Levin on Criminal Labor Law

NYC Street Railway Strike (1886) (LC)
Benjamin Levin, Climenko Fellow and Lecturer on Law, Harvard Law School, has posted Criminal Labor Law, which is forthcoming in the Berkeley Journal of Employment and Labor Law (2016):
This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this respect, “criminal labor law” should pose concerns, not only for scholars concerned about workplace democracy, but also those focused on overcriminalization and the increasing scope of criminal law.

Tuesday, October 27, 2015

Aure on the German Reception of Grotius's De iure belli ac pacis

Andreas Harald Aure has published The Right to Wage War (jus ad bellum):The German reception of Grotius 50 years after De iure belli ac pacis, with Berliner Wissenschafts-Verlag:
With De iure belli ac pacis libri tres (1625), the Dutch humanist and natural law philosopher Hugo Grotius (1583–1645) quickly became the greatest authority on international law (jus gentium) and on just war (bellum justum) in Europe for the next hundred years or so. By examining the theories of three largely unknown German scholars, Konrad Friedlieb, Valentin Alberti and Johann Wolfgang Textor, Andreas Harald Aure discusses dominant visions of international law and the right to go to war (jus ad bellum) in the Protestant parts of the Holy Roman Empire, two generations after Grotius wrote his magnum opus.

The authors struggled with questions such as:What may serve as right justification (cause) for war? Can an offensive war be just? Can a war be just on both sides?  Has a belligerent the right to pass through third-party territory?  Is there a right to wage war on behalf of people in foreign countries?

Two chapters discuss the conceptual development of jus gentium (the law of nations). As an adherent of Thomas Hobbes’ systematic approach to law, Samuel Pufendorf (1632–1694) realigned jus gentium as natural law (jus naturale). The main topic of this book is a detailed account of the just conditions for war (jus ad bellum) among leading German scholars in the 17th Century, based on in-depth research of primary sources.

Clemente on the Common Law of "Idiots"

Michael Clemente, a student at the Yale Law School, has published A Reassessment of Common Law Protections for "Idiots" as a note in the Yale Law Journal.
When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.

Privacy and Freedom of the Press in Time, Inc. v. Hill

The tension between the right to privacy and freedom of the press played out before a national audience in Time, Inc. v. Hill (1967)the first case in which the Supreme Court addressed the First Amendment implications of tort liability for invasion of privacy.

The story of the Hill case started in 1952 when a family of seven, the James Hill family, was held hostage by escaped convicts in their home. The family was trapped for nineteen hours by three fugitives who treated them politely and left them unharmed. For a few weeks, the Hills were the subjects of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives.

In 1954, an author named Joseph Hayes published The Desperate Hours, a violent "true crime" thriller about a family held hostage in their home by three escaped convicts, based loosely on the Hills' story. The book became a bestseller and was made into an award-winning Broadway play, and later a Hollywood film starring Humphrey Bogart.

Richard Nixon (NARA)
In 1955, Life magazine ran a story on the opening of the play. The article falsely described the play as a "reenactment" of the Hills' experience. The family was devastated by the publicity, which thrust them into the media spotlight against their will and forced them to relive the upsetting event. The Hills sued Time, Inc., the publisher of Life magazine, for invasion of privacy in the New York courts. The Hills won at trial, and Time, Inc. appealed through the state's court system, then to the U.S. Supreme Court. Time, Inc. argued that the judgment for the Hills violated its rights under the First Amendment. The case came to the Court in 1965, a particularly charged moment in the histories of both privacy and freedom of speech. The Court had just decided Griswold v. Connecticut, recognizing a constitutional right to privacy, and in 1964, New York Times v. Sullivan, expanding free speech protections under the law of libel.

The attorney for the Hills was former Vice President Richard Nixon. After his failed bid for governor of California in 1962, Nixon joined a Wall Street law firm, which became Nixon, Mudge, Rose, Guthrie, and Alexander.

A Reminder for ASLH Annual Meeting Attendees

[We have the following from our friends at GW Law.]

American Society for Legal History: Opening Reception and Rare Book Exhibition

The George Washington University Law School, 2000 H Street, NW, Washington, D.C. 20052.  Thursday, October 29, 2015, 4-6 p.m.  Transportation will be provided to and from the Hyatt Regency, 3:30-6:30 p.m.

Please RSVP to

The American Society for Legal History's Opening Reception will feature a rare books exhibition of forty works from GW Law Library's Special Collections, which holds more than 35,000 volumes of rare books, incunabula, and manuscripts from the fifteenth through nineteenth centuries.  The Law Library is especially noted for its French Collection, which includes one of the largest collections of coutumes in American academic law libraries, as well as codes, classic commentaries, and works relating to the French Revolution, including many Revolutionary-era pamphlets.   Special Collections also holds more than 170 law and law-related incunabula, and has particular strengths in Roman and canon law, trials (including witchcraft trials), the law of church and state, and historical international materials, with a special emphasis on Grotius.

We look forward to welcoming ASLH meeting attendees to the Opening Reception and exhibition.

Monday, October 26, 2015

Bray on Constitutional Hendiadys

Samuel L. Bray, UCLA School of Law, has posted “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution, which is to appear in the Virginia Law Review 102 (2016):
Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.
H/t: Legal Theory Blog

Alito (J.) and Amar at the Archives: Thursday, 7PM

[We mentioned this in an earlier Weekend Roundup.  I'm not sure I recommend dashing over to it from the ASLH's welcome reception at GW Law, but we're reposting anyway.  Apparently, the organizers (the National Archives and Consource) are still accepting reservations.]

The National Archives in conjunction with Consource continues its conversation with US Supreme Court justices, moderated by Akhil Reed Amar, Yale Law School, with Justice Samuel Alito, at 7PM on Thursday, October 29, in the William G. McGowan Theater in the Archives 1 Building.   More.

A Panel on Bilder's "Madison's Hand"

As per the flyer at right, the Clough Center and Law School at Boston College will be holding a first-rate panel on Mary S. Bilder's Madison's Hand tomorrow.  The event is free and open to the public.

Kessler on a Paternalist Progressive Procedural Reform

Amalia D. Kessler, Stanford Law School, has published Arbitration and Americanization: The Paternalism of Progressive Procedural Reform in the Yale Law Journal:
This Feature joins recent scholarship suggesting that the Federal Arbitration Act of 1925 (FAA) emerged, at least in part, from a broader Progressive commitment to procedural reform. It departs, however, from the tendency among procedure scholars to conceive of such reform as top-down, federal rulemaking—a tendency that has resulted in a largely celebratory teleology, leading from a Progressive commitment to access to justice to the eventual enactment of the Federal Rules of Civil Procedure in 1938. As recognized in the historical literature, local, bottom-up initiatives (such as the creation of municipal courts and settlement houses) were central to Progressive reform. Moreover, these initiatives were used at least as much for purposes of social control as for social justice. In line with such literature, this Feature examines Progressive lawyers’ efforts to develop particular institutional structures responsible for deploying arbitration—an area of inquiry neglected by scholars to date. Situating these efforts within the broader context of a decidedly paternalistic program of Progressive procedural reform, it reflects on the darker implications of the FAA’s enactment and implementation.

Call for #ASLH2015 guest blog posts and twitter updates

If you are attending the American Society for Legal History meeting this week in Washington, DC, the Legal History Blog welcomes your guest post about any panels you attend. (Examples of the type of coverage we're looking for are here and here.) We like to do this for the benefit of those who cannot attend, as well as for those who find themselves torn between competing panels. As always, the program looks very strong.

To sign up for guest post(s), please email us. No technical expertise is required -- we take care of that for you.

Twitter updates would also be great. Following last year's success with #ASLH2014, we suggest the hashtag #ASLH2015

Looking forward to seeing many of you in DC!

Sunday, October 25, 2015

Sunday Book Roundup

Having taken last weekend off, this week's roundup is especially full. Starting with The New Rambler, Alison Lacroix reviews Our Lives, Our Fortunes and Our Sacred Honor: The Forging of American Independence, 1774-1776 by Richard Beeman (Basic Books).
"Beeman’s book tells the story of the Continental Congress with the Declaration as the endpoint, but his focus is mapping the debates rather than assuming independence as a goal. Indeed, one of the great strengths of the book is its insistence on the uncertainty and instability that surrounded the Continental Congress between 1774 and 1776."
H-Net has added several new reviews. There's a review of Jad Adams's Women and the Vote: A World History (Oxford University Press).

Also on H-Net is a review of Baptized in PCBs: Race, Pollution, and Justice in an All-American Town (University of North Carolina Press) by Ellen Griffith Spears.
"Thus the Anniston campaigns also revealed important challenges created by racial and class differences: white middle-class and professional people dominated the anti-incinerator fight whereas the African American community spearheaded the PCB initiative, largely as a result of residential geography. When activists in both efforts joined forces, they did so uneasily. For instance, Spears reveals that the Monsanto campaign linked whites whose relatives and friends had been mid-century instigators of racial violence with residents of color who had sometimes been the targets of that violence. Despite these conflicts, legal victory over Monsanto and the emergence of a national campaign that forced the army to both provide residents with protective equipment and operate with greater transparency revealed the the power of grassroots activism."
Unwritten Verities: The Making of England's Vernacular Legal Culture, 1463-1549 by Sebastian Sobecki (University of Notre Dame Press) is reviewed on H-Net, here.
"The book deftly draws together late medieval and early modern legists, philosophers, poets, and theologians to offer a full picture of English humanism, arguing on behalf of its oral traditions and unwritten customs."
Barbara Krauthamer's Black Slaves, Indian Masters: Slavery, Emancipation, and Citizenship in the Native American South (UNC Press) is another book reviewed on H-Net.
"Barbara Krauthamer’s study of African Americans in the nineteenth-century Choctaw and Chickasaw nations encourages scholars to rethink the political trajectory, geographical spaces, and lived experience of slavery and emancipation. Throughout Black Slaves, Indian Masters: Slavery, Emancipation, and Citizenship in the Native American South, Krauthamer weaves analysis of sectionalism, bondage, resistance, transitions to freedom, and Indian sovereignty into a compelling narrative of race in America."
Melvin Urofsky's Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue (Pantheon) is reviewed by Dahlia Lithwick for The New York Times.

And Emily Bazelon reviews Kerry Eleveld's Don't Tell Me to Wait: How the Fight for Gay Rights Changed America and Transformed Obama's Presidency (Basic), also in the NYT.

We've missed many interviews from New Books, including interviews with

Saturday, October 24, 2015

Weekend Roundup

  • The Oxford University Press's relaunch of the American Journal of Legal History continues with an alert service that will email the table of contents for an issue as soon as the issue goes online.  Sign up here, especially if you just can't wait for us to post it on LHB.  (Do note the privacy agreement on the webpage.)
  • We haven’t seen “Bridge of Spies” yet, but we're told that the plot involves the swap of the KGB agent Colonel Rudolf Abel for U-2 pilot Gary Powers.  Jeffrey Kahn, SMU Dedham School of Law, published an article about Abel’s trial, The Case of Colonel Abel, in the Journal of National Security Law and Policy in 2011.  Professor Kahn wrote about the case in the Washington Post yesterday.  His recent interview with Bloomberg Radio about it is available in seventeen- and three-minute versions.  You can catch him with other speakers as part of Hiding in Plain Sight: The Brooklyn Trial of KGB Spy Rudolf Abel, at the Brooklyn Historical Society, Wednesday, November 4, 2015 from 6:30 PM to 8:30 PM (EST), Brooklyn, NY.
  • From Slate: Priya Satia (Stanford University) explains why "medieval English laws matter in legal debates about gun control in the United States today" and why it's so important to "get the history right." (H/t: Saul Cornell)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 23, 2015

Sellers on Machiavelli as the Father of Modern Constitutionalism

Mortimer Newlin Stead Sellers, University of Baltimore School of Law,  has posted Niccolò
Machiavelli: Father of Modern Constitutionalism:
Cesare Borgia seated with Machiavelli. (Federico Faruffini; LC)
Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of law and politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good. Second, that government should do so through known and stable laws. Third, that these will best be secured through the checks and balances of a well-designed constitution. Machiavelli took the theories and experiences of republican Rome and applied them to his own era. This application of reason to constitutional design transformed the politics of emergent modernity and reconfigured government throughout the world.
H/t: Legal Theory Blog

Shucha on White Slavery in the Northwoods

Bonnie J. Shucha, Associate Director for Public Services at the University of Wisconsin Law School Library, has posted White Slavery in the Northwoods: Early U.S. Anti-Sex Trafficking and its Continuing Relevance to Trafficking Reform, which is forthcoming in volume 23 of the William & Mary Journal of Women and the Law:
This article provides a unique and comprehensive analysis of the first U.S. anti-sex trafficking movement and its continuing impact on trafficking reform today. It explores the significant, yet little known campaign against the trade of young, white women, a practice called "white slavery," which emerged in the Northwoods of Wisconsin and Michigan in the 1880s. It examines the strategies developed by these late nineteenth-century activists, specifically the use of exaggeration and sensationalism, and demonstrates how trafficking reformers are still using these techniques today despite their dubious authority and effectiveness. Part I will consider why the Northwoods became a focal point for white slavery in the nineteenth-century, specifically exploring the impact of the economic, demographic, and social changes occurring in the region at that time, as well as the role of the burgeoning mass media. It will also examine the escalating nature of the Northwoods white slavery allegations and the public outcry that they caused. Next, it will study the strategies developed by anti-trafficking activists, specifically the use of exaggeration and sensationalism to garner support. Finally, it will investigate Wisconsin's and Michigan's responses to white slavery and consider why this nineteenth-century campaign failed to generate the level of national law reform achieved by later anti-trafficking movements. Part II will attempt to glean some truth about the existence and extent of prostitution and sex trafficking in the Northwoods in the nineteenth-century, specifically acknowledging that many historians now believe that white slavery was a myth. It will conclude with a demonstration of how the exaggeration and sensationalism strategies developed by nineteenth-century anti-trafficking activists are still being used today and an inquiry into whether or not such techniques encourage effective law reform.

An Age of Images

The proliferation of the mass media, new communication technologies, and a cultural focus on personal images and "image management" led to the significant growth of "personal image law" in the post-World War II era.

Advertising surged in the 1950s. By the mid-50s, the U.S. was spending $9 billion to sell products -- and people. Politicians' increasing use of advertising techniques in their campaigns led the New York Times magazine to describe the 1960 election cycle as "The Year of the Image."

Other "image industries" flourished. Cosmetics were used widely, and beauty products began to be marketed towards teenage girls. Cosmetic surgery became popular, promising both men and women the possibility of perpetual youth. The objective was to perfect one's public image, to be envied, to be looked at.
1950s tv (credit)

Television, introduced in the late 1940s, reinforced the idea of pleasing public images as a source of success and approval. By the end of the 1950s, 88 percent of American households had a television set, and in the average home, the television was on for five hours a day.

Celebrity culture spread beyond the realm of entertainment to virtually every other area of endeavor, including politics. Celebrities continued to serve as role models of successful self-presentation, and there was great fascination with the ways that stars publicized themselves -- how they transformed, manipulated, and spun their images. The public was enthralled with backstages, with the activities of publicists and press agents, and the inner workings of Hollywood and other image-making "factories."

As historian Daniel Boorstin observed in his acclaimed 1961 book The Image: A Guide to Pseudo-Events in America, a significant part of the national economy -- the fashion, cosmetics, media, advertising, and public relations industries, among others -- was devoted to manipulating personal images for strategic advantage. It was becoming a matter of faith that the right image could "elect a President or sell an automobile," Boorstin wrote.

Thursday, October 22, 2015

Brady on Street Grading and Takings in State Courts

Maureen E. Brady, a candidate for the PhD in Law at the Yale Law School, has posted Property's Ceiling: State Courts and the Expansion of Takings Clause Property, which is forthcoming in volume 102 of the Virginia Law Review:    
The federal and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused on constitutional limits on judicial restrictions as to what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property — and the problems associated with that capability.

Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth and twentieth century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets — sometimes in excess of a hundred feet — to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated it as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their property suffered.

As this history demonstrates, state courts can play an important and desirable role in takings law by recognizing new forms of constitutional property. But courts should not have unfettered discretion to invent new rights and then find them taken, as this may incur significant administrative and systemic costs. This Article therefore presents a framework for identifying constitutional property interests derived from both the street grade cases and other precedents, arguing that it can effectively cabin inappropriate expansions of what constitutes private property for takings purposes while keeping the important structural function of constitutional property innovation intact.

Bigot's "Ce droit qu'on dit administratif"

[Neither my French nor Professor Bigot's English is good enough to provide a translation, so here, au Francais and via the blog Nomodôs, is word of a new book on the history of French administrative law, Ce droit qu'on dit administratif…Études d'histoire du droit public, by Grégoire Bigot.  H/t: Thomas Perroud.]

Le droit administratif n’a pu naître, aux alentours de 1900, comme science universitaire autonome, qu’à la condition d’escamoter son histoire. Écrire cette histoire, c’est s’interroger sur la nature de ce droit qu’on dit administratif. Elle est politique dans la mesure où elle raconte la confrontation de l’individu, armé des droits subjectifs que les Déclarations lui reconnaissaient, et de l’État. Elle met en lumière le drame d’une Révolution française qui, par défiance de la justice comme pouvoir, ne sut pas ériger de juges en tiers garant de ces droits. Le modèle napoléonien, qui plonge pour plus d’un siècle la France dans l’oubli des droits comme fondement du politique, crée la justice administrative dans l’intérêt d’un pouvoir réglé, celui d’un État en surplomb des droits. Le droit administratif est ainsi une science de l’État, sur lequel il fonde ses fins et sa légitimité.

Table of contents after the jump

Wednesday, October 21, 2015

ISO a Biographer: Dorothy Kenyon

Dorothy Kenyon (wiki)
[Philippa Strum and Louise W. Knight sent a version of this notice, edited here, over the lawcourt-l listserv.  Sam Erman, USC Law, was good enough to forward it to us.]

Dorothy Kenyon (1888-1972) was a mid-twentieth century feminist attorney whose career sheds light on the history of feminism in the periods between the two world wars and in the post-war years. [She] began her career as a lawyer in private practice in New York City in 1917. She moved into public service in the early 1930s, serving on various state and city commissions, as New York City’s Deputy Commissioner of Licenses, and for a short term as a Justice on the city's Municipal Court. In these positions, in her capacity as the U.S. representative to the League of Nations Commission to Study the Legal Status of Women from 1938 to 1940, and as the first U.S. delegate to the United Nations Commission on the Status of Women from 1947 to 1950, Kenyon worked tirelessly to advance the status of women and minorities in the U.S. and internationally.

[She]  also held offices in many non-governmental organizations, beginning in the early 1920s. These included the Consumers' League of New York, the League of Women Voters, and the American Association of University Women. She served on the National Board of the American Civil Liberties Union from 1930 until her death and was central in persuading the organization to make challenging sex discrimination one of its priorities.  Despite Joseph McCarthy's anti-Communist attack on her in 1950, Kenyon remained politically active in the 1960s and early 1970s through her work in the war on poverty and her participation in the civil rights, anti-Vietnam war, and women's liberation movements. In 1968, when she was 80 years old, she co-founded an office for legal services for the poor on Manhattan's Lower West Side.

[We] believe she would make an excellent topic for a scholar, especially one with a background both in law and history. While Kenyon has been mentioned in passing in various books [notably, Landon Storrs’s Second Red Scare (DRE)] and while a few articles have been published about her, she has yet to receive the in-depth treatment her life and work merit.  One of us, Philippa Strum, has extensive research materials she collected for some biographical work on Kenyon and that she is happy to share. (An interested party would have to pay for shipping costs, as there are extensive paper files garnered from various archives as well as computer files.)  Louise W. Knight’s interest in Kenyon is partly personal. In addition to being an historian, Knight had a grandmother who was Dorothy Kenyon’s first cousin.  [Kenyon's papers are in the Sophia Smith Collection at Smith College.]

Philippa Strum
Louise W. Knight

CFP: European Society for Comparative Legal History

[Via the ASLH website, we have the following CFP.]

The Organising Committee of the 4th Biennial Conference and the Executive Council of the European Society for Comparative Legal History are pleased to call for papers for the upcoming conference to be held on 28 June – 1 July 2016 at the University of Gdansk (Poland)
on: “Culture, Identity and Legal Instrumentalism”. The main theme picks up threads of thought from the earlier ESCLH conferences in Valencia (2010), Amsterdam (2012) and Macerata (2014). The conference will focus on the issue of law as an instrument of transforming reality in the individual cultural circles and sub-circles of Europe and the world. Papers addressing this theme are welcome, to be submitted before 15 November 2015 as explained below.

The conference seeks to understand the instrumentality of law through two broad themes. Law may be considered as an instrument either (1) through the prism of analysis of techniques (functional approach) or (2) of objectives (axiological approach). Within the first approach, particularly welcome are those papers which address how legal problems are identified and their solutions developed, whether autonomously or by transplantation and subsequent adaptation.
Within the second approach, we welcome papers exploring how law can transform reality, especially as a tool of modernisation and/or as a means to shape and strengthen national identity or other goals defined through the prism of national interest.

Papers should be novel, properly researched and referenced. They should address the conference theme, exploring doctrinal, theoretical, cultural or methodological aspects of comparative legal history. The organisers particularly welcome addressing multiple cultures. This includes where a similar legal system functions in two different cultural circles as a result of en masse transplantation of foreign legal solutions and where a given homogeneous cultural circle has been divided and various legal systems function in its individual parts.

The conference organisers intend to publish a volume, drawing on the best papers presented at the conference as developed in line for publication.

Practical details:
  1. To offer a paper, please send the title of their paper, a short abstract (of 200-400 (strict maximum) words) and a short CV (no more than 4 pages) by 15 November 2015 to the organizing committee, c/o Anna Klimaszewska, University of Gdansk ( or Michal Galedek, University of Gdansk (
  2. The presentations should be in English.
  3. It is also possible to submit a complete proposal for one or more panels (3-4 papers for every panel).
  4. The list of accepted papers will be announced by 6 December 2015.

Gerber on the Unavoidably Brief Historiography of the Third Amendment

Scott D. Gerber, Ohio Northern University Pettit College of Law, has posted An Unavoidably Brief Historiography of the Third Amendment, which appeared in the Tennessee Law Review 82 (2015): 627-46.  Professor Gerber explains, “This Article was part of a symposium about the Third Amendment hosted by the Tennessee Law Review. The Article provides a historiography of the existing scholarship about the Third Amendment. As the Article's title indicates, the historiography will be unavoidably brief, which, if nothing else, is a testament to the importance of the symposium. I conclude the Article with a few thoughts of my own about the significance of the Third Amendment for American constitutionalism.”

Blue on 33 Quaint and/or Appalling Trials from the New Haven Colony

Jon C. Blue has published The Case of the Piglet's Paternity: Trials from the New Haven Colony, 1639–1663, with Weslyean University Press:
In the middle of the seventeenth century, judges in the short-lived New Haven Colony presided over a remarkable series of trials ranging from murder and bestiality, to drunken sailors, frisky couples, faulty shoes, and shipwrecks. The cases were reported in an unusually vivid manner, allowing readers to witness the twists and turns of fortune as the participants battled with life and liberty at stake. When the records were eventually published in the 1850s, they were both difficult to read and heavily edited to delete sexual matters. Rendered here in modernized English and with insightful commentary by eminent Judge Jon C. Blue, the New Haven trials allow readers to immerse themselves in the exciting legal battles of America’s earliest days.

The Case of the Piglet’s Paternity
assembles thirty-three of the most significant and intriguing trials of the period. As a book that examines a distinctive judicial system from a modern legal perspective, it is sure to be of interest to readers in law and legal history. For less litigious readers, Blue offers a worm’s eye view of the full spectrum of early colonial society—political leaders and religious dissidents, farmhands and apprentices, women and children.
Here are two endorsements:

“Only a trial judge could have written this book—and only a trial judge with a love of history. Jon Blue has chronicled the legal life of the New Haven Colony during the years from 1638 to 1665, when the Colony was absorbed into the Connecticut Colony. The cast of characters is fascinating, including privateers, Indians, and Quakers, among others . . . hardly the monotonic collection you might expect of 17th century New England. And the legal issues they generated are amazing varied, including the usual (witchcraft) and the unusual (bestiality). This was also an unexpectedly sexually-charged populace. Judge Blue brings these forgotten decades to life with a judicial twinkle in his eye and a graceful, engaging writing style.”—Eugene R. Fidell, Senior Research Scholar in Law and Florence Rogatz Visiting Lecturer in Law, Yale Law School

“Judge Blue has done a favor to anyone interested in the origins of trial by law in colonial New England. The records of the court in New Haven Colony in the mid-seventeenth century were published (in part) more than one hundred and fifty years ago, but they are neither widely known nor properly understood. This volume brings some of the most interesting cases back to life in a lively and well-informed manner. If you have ever wondered why a man might have been judicially murdered on the charge of fathering a deformed piglet, this is the book for you, and Judge Blue is the right guide!”—Stanley N. Katz, professor, Woodrow Wilson School, Princeton University

TOC here.

Tuesday, October 20, 2015

Mayeri on Marital Supremacy and the Constitution of the Nonmarital Family

Serena Mayeri, University of Pennsylvania Law School, has posted Marital Supremacy and the Constitution of the Nonmarital Family, which appears in the California Law Review 103 (2015): 1277-1352:    
Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy — the legal privileging of marriage — through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their parents. By reaffirming the legitimacy of governmental objectives such as discouraging illicit sex and promoting traditional marriage, courts obscured the ways in which marital supremacy injured adults as well as children, reinforcing racial, gender, and economic inequality and circumscribing sexual and reproductive freedom.

Using court documents and archival sources, this Essay uncovers alternative visions of the harm of illegitimacy penalties offered by advocates and activists who framed these laws and practices as centrally connected to poverty, systemic racial oppression, and the subordination of women. Civil rights and poverty lawyers spotlighted the disparate impact of illegitimacy penalties on poor families of color, especially African Americans in the South. Feminists emphasized how these laws disproportionately burdened women — who often bore primary responsibility for nonmarital children’s care and support — curtailing their sexual, reproductive, and economic freedom. The failure of these broader accounts of the harms of illegitimacy penalties to influence judicial opinions impoverished our constitutional politics in ways that reverberate today. In a world where marriage is both a privileged status and a status of the privileged, marriage equality that rests upon non-marriage’s ignominy risks reinforcing the many other status inequalities that taint the legacy of marital supremacy.

A Published Roundtable on Griswold v. Connecticut

We learn, via Barbara Sicherman, Trinity College, that “a roundtable on Griswold v. Connecticut, originally presented at the American Association for the History of Medicine meeting last April on the occasion of the fiftieth anniversary of the decision, will be published in the fall issue of [the] Connecticut History Review.”  Contributors included Reva Siegel, Linda Greenhouse, Rosemary Stevens (“a witness in the case and a distinguished medical historian”), Judy Tabar (“head of Planned Parenthood of Southern New England”), and Heather Munro Prescott (“historian of women’s health and adolescent medicine”). 

The organizers have arranged for off-prints.  To order, contact Cecilia Bucki, the editor of CHR, by November 1.  Her address is  The per-unit cost will depend on the total number of orders.  At present, the most likely estimate is about $1.10 per offprint.  For further information, contract Professor Sicherman at

Privacy and Freedom of Speech

At the same time American courts were recognizing a right to one's image -- a "right to privacy" -- that made embarrassing or distressing media representations legally actionable, they were acknowledging another kind of image right: the right of publishers, writers, and filmmakers to depict people's likenesses and life stories, and the public's right to consume them -- rights of freedom of speech and press. As I describe in Chapter Seven of Laws of Image: Privacy and Publicity in America, the tension between the right to one's image and the freedom to make images of others came to a head in the important 1940 Second Circuit case Sidis v. FR Publishing.

William James Sidis (credit)
In the years before World War I, William James Sidis was a famous child prodigy. Sidis attended Harvard at eleven, spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was publicized around the world, renowned for his intellectual feats. Yet as an adult, Sidis's life took a different turn. He neglected his mathematical talents and retreated from public life. By the age of twenty, Sidis had become a recluse. At thirty-nine, he was an adding machine operator living alone in a shabby Boston rooming house. The New Yorker magazine tracked him down, interviewed him, and wrote up his story in 1937.

"William James Sidis lives today at the age of 39 in a hall bedroom of Boston's shabby South End." Sidis was a "large, heavy man, with a prominent jaw, thickish neck, and a reddish mustache. He seems to have difficulty in finding the right words to express himself, but when he does, he speaks rapidly, nodding his head jerkily to emphasize his points, gesturing with his left hand, uttering occasionally a curious, gasping laugh....His visitor found in him a certain childlike charm."

Humiliated, Sidis sued the New Yorker for invasion of privacy, for injuries to his feelings caused by the publication of the embarrassing article.