Saturday, April 30, 2016

Associate Bloggers: Departure and Arrivals

A passing of the torch takes place tomorrow here at Legal History Blog.  Since July 2013, Emily A. Prifogle has performed the duties of the office now known as Associate Blogger.  (Clara Altman, now Director of the Federal Judicial History Office of the Federal Judicial Center, originated the role.)  Emily has a JD from the University of California, Berkeley, and is ABD in History at Princeton.  This semester I’ve had the pleasure of reading a chapter on school consolidation from her dissertation-in-progress, “Views from the Midwest: Rural Communities, Law, and Nation in the Twentieth Century.”  To clear the decks for her return to Indiana and the start of a judicial clerkship in the US Court of Appeals for the Seventh Circuit, she has decided to join the ranks of LHB bloggers emeritae.  All of us at LHB could not be more grateful to Em for all her work over the years and wish her our best.

We’re fortunate that two other ABDs are willing to take up her duties and serve as co-Associate Bloggers.  Brooke Depenbusch is a PhD candidate in the Department of History at the University of Minnesota.  Her dissertation is “Working on Welfare: Down and Out in the United States, 1935-1962.”  It explores the nexus between social provision and low-wage and insecure labor from the New Deal to the War on Poverty.  Focusing on the interaction of low-income working families and public relief, it foregrounds the political and economic conditions that fostered persistent insecurity and precarity among many working families notwithstanding the sustained economic growth of the postwar period. 

LHB readers may recall Smita Ghosh’s panel recaps for the ASLH's annual meeting and recent conferences at Columbia on incarceration and at Princeton on life and law in rural America.  She is a student in Penn's JD/PhD program in American Legal History and has already completed the law-school leg of her education and is now studying the history of immigration and civil rights law.  In 2016-2017, she will be a judicial clerk in the District of Connecticut.

Thank you, Em, and welcome, Brooke and Smita!

Weekend Roundup

  • From Brian Leiter: a nice shout-out to the legal history training at the University of Pennsylvania.
      • The latest episode of the Interdisciplinary Radio podcast features three authors who are part of Cambridge University Press's Studies in Legal History series: Sophia Lee (University of Pennsylvania), Felice Batlan (IIT-Chicago Kent College of Law), and me (UC Berkeley). The episode is titled "What Are Rights, Really?" [KMT]
      Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

      Friday, April 29, 2016

      Hiring Update: Holdren to Drake University

      We are delighted to announce that Nate Holdren has accepted a tenure-track position at Drake University, where currently holds the title of Visiting Assistant Professor. His appointment is in the undergraduate legal studies program (also known as the department of Law, Politics, and Society).

      Professor Holdren received his Ph.D. in History from the University of Minnesota in 2014 and subsequently held the Jerome Hall Postdoctoral Fellowship at Indiana University's Maurer School of Law. His current book project "use[s] the history of employee injury law as a point of entry to investigate the relationships between law, gender, disability, class, and capitalism." He is also the author of "Incentivizing Safety and Discrimination: Employment Risks under Workmen’s Compensation in the Early Twentieth Century United States," which appeared in March 2014 issue of Enterprise & Society.

      Congratulations to Nate Holdren!

      Remes's "Disaster Citizenship"

      Jacob A. C. Remes, an assistant professor of public affairs and history at the Metropolitan Center of SUNY Empire State College, has published Disaster Citizenship: Survivors, Solidarity, and Power in the Progressive Era, with the University of Illinois Press:
      A century ago, governments buoyed by Progressive Era–beliefs began to assume greater responsibility for protecting and rescuing citizens. Yet the aftermath of two disasters in the United States–Canada borderlands--the Salem Fire of 1914 and the Halifax Explosion of 1917--saw working class survivors instead turn to friends, neighbors, coworkers, and family members for succor and aid. Both official and unofficial responses, meanwhile, showed how the United States and Canada were linked by experts, workers, and money. In Disaster Citizenship, Jacob A. C. Remes draws on histories of the Salem and Halifax events to explore the institutions--both formal and informal--that ordinary people relied upon in times of crisis. He explores patterns and traditions of self-help, informal order, and solidarity and details how people adapted these traditions when necessary. Yet, as he shows, these methods--though often quick and effective--remained illegible to reformers. Indeed, soldiers, social workers, and reformers wielding extraordinary emergency powers challenged these grassroots practices to impose progressive “solutions” on what they wrongly imagined to be a fractured social landscape.
      “A striking juxtaposition of the hierarchical order of experts and vernacular order created by victims themselves, Remes's finely grained comparison of two major turn-of-the-century disasters in Halifax and Salem represents a major contribution to our understanding of the dynamics and effects of spontaneous order in a crisis. Meticulously researched, gripping, and important.”--James C. Scott, author of Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed

      “In his meticulously researched and intelligently argued book, Disaster Citizenship, Jacob Remes has advanced and perfected the kind of deep social history pioneered by Herbert Gutman and Linda Gordon in their studies of working people’s lives. More than any other historian writing in this tradition, Remes has revealed the power of the informal networks and solidarities that existed in poorer communities, particularly during disasters, and he has highlighted the ways agents of state intervention failed to understand these strengths and their democratic significance. Scholars will find in this excellent study a model of transnational history and other readers, especially officials in charge of disaster relief, will discover a new way of thinking about the people they are attempting to 'rescue.'”--James Green, author of The Devil Is Here in These Hills: West Virginia’s Coal Miners and Their Battle for Freedom

      Disaster Citizenship provides a rich, original, and sensitive account of responses to two urban catastrophes, the Great Salem Fire (1914) and the 1917 Halifax explosion. Remes sets a new standard for transnational continental history as the everyday solidarity of working people is contrasted with the progressive state, civic institutions, and emergent welfare professionals.”--Suzanne Morton, author of Wisdom, Justice, and Charity: Canadian Social Welfare through the Life of Jane B Wisdom, 1884–1975

      Thursday, April 28, 2016

      Kossis on the "Define and Punish" Clause

      Lyle David Kossis, McGuireWoods LLP, has posted The Define and Punish Clause and the Political Question Doctrine, which is forthcoming in volume 68 of the Hastings Law Journal:
      The Constitution gives Congress the power to “define and punish...Offences against the Law of Nations.” Congress has used this power to enact various criminal statutes that proscribe certain violations of international law. In some cases, criminal defendants argue that these statutes are unconstitutional because Congress has incorrectly defined the law of nations. Federal courts routinely entertain this argument. But the political question doctrine prevents federal courts from resolving a question when the Constitution entrusts the political branches with providing an answer. The Define and Punish Clause gives Congress, not the courts, the power to define the law of nations. Accordingly, federal courts should be barred from determining whether Congress has properly defined international law. No court or scholar has pursued this argument in detail. This Article takes the first step.

      The Article begins by describing the historical underpinnings of the Define and Punish Clause and the contemporary version of the political question doctrine. The Article then explains why the proper definition of international law under the Define and Punish Clause is a political question. It reviews the Clause’s text, structure, and history, applicable U.S. Supreme Court precedent, and a variety of practical arguments to illustrate why federal courts have no authority to second-guess Congress’s definition of the law of nations. Finally, the Article concludes by situating its central thesis within the current framework of both constitutional and non-constitutional law. It explains that the Supreme Court has never used international norms to limit Congress’s power under the Define and Punish Clause. It also argues that even if Congress has the sole power to define the law of nations, legislative power will remain meaningfully limited and courts will remain free to interpret other sources of international law.
      H/t: Legal Theory Blog

      Hiring Update: Brady to UVA Law

      More good news to report on the hiring front (via Prawfsblawg): Maureen (Molly) Brady will join the faculty at the University of Virginia School of Law this fall.

      Maureen Brady is a graduate of Yale Law School and a former associate at Ropes & Gray LLP. She is currently back at Yale as a Ph.D. candidate in Law. Her research focuses on property law, land use, local government law, American legal history, intellectual property law, and water law. Her scholarship has appeared in the Virginia Law Review and the Yale Law Journal, among other venues. You can read more about her research agenda here, at her personal website.

      Congratulations to Maureen Brady!

      VanBurkleo's "Gender Remade"

      Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912.  It appears in the series Cambridge Historical Studies in American Law and Society, edited by Christopher L. Tomlins:
      Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored. Losses to women's sovereignty were profound and enduring - a finding that points, not to rights and powers, but to constitutionalism and the power of social practice as Americans struggled to establish gender equality. Gender Remade is a significant contribution to the understudied legal history of the American West, especially the role that legal culture played in transitioning from territory to statehood.
      TOC after the jump.

      Wednesday, April 27, 2016

      Loyola-NO Seeks a Medieval Europe VAP

      [Via H-Law, we have word of the following announcement.]

      The Department of History at Loyola University New Orleans is seeking applications for the position of Visiting Assistant Professor in the history of Medieval Europe. Applicants must be able to teach a variety of courses on Medieval history as well as the Global History survey. A supplementary field in the history of law is preferred. [Emphasis supplied] Teaching load is 4/4. All applicants must have the Ph. D. completed by August 2016. Please send letter of application, a CV, a statement on your teaching philosophy, and two letters of recommendation to Chair, Medieval History Search Committee, Dept. of History, Loyola University New Orleans, 6363 St. Charles Avenue, New Orleans, LA  70118, postmarked no later than May 16, 2016. On line applications should be sent to: The letter of application should include a description of secondary fields and possible course offerings. Loyola University New Orleans is an Affirmative Action/Equal Opportunity Employer of women, minorities, protected veterans and individuals with disabilities, and encourages applications from these and other protected group members.

      Chair, Medieval History Search Committee
      Dept. of History
      Loyola University New Orleans
      6363 St. Charles Avenue
      New Orleans, LA  70118

      Tate on Delusion in Law and Science

      Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Personal Reality: Delusion in Law and Science, which is forthcoming in the Connecticut Law Review 49 (2017):
      The concept of an insane delusion appears in several branches of the law, including contracts, gifts, and wills. Critics of the traditional doctrine have made compelling arguments in favor of its modification or abolition in the context of wills, given that it is often used as an excuse to substitute the values of jurors for those of the testator. Moreover, recent scientific studies have shown correlations between delusions and other cognitive impairments, calling into question the need for an independent doctrine of insane delusion. Nevertheless, there is evidence that not all deluded individuals have additional cognitive biases, and those who do may have some impairments while lacking others. Due to the nature of gratuitous transfers, adoption of the fairness-based approach to mental illness in the Restatement (Second) of Contracts is not a feasible alternative to the traditional insane delusion doctrine for wills. This Article accordingly proposes a new use for the concept of a delusion in making legal determinations regarding mental capacity in the context of wills. The concept would be better formulated as a doctrine of partial sanity, used when a testator is found to lack general mental capacity, and only as a basis for upholding all or part of a will. Under such a rule, the issue of a testator’s general mental capacity would be decided first. If the person in question had general mental capacity, the will would be held valid. But if the person did lack general mental capacity, the court could consider whether the lack of capacity was caused by a delusion, and, if so, whether that delusion actually affected the disposition of the estate. To the extent that a particular decision by the deluded individual was not the product of irrational decision making, the choice would be respected. This would preserve, in modified form, a legal concept that has existed for centuries and remains relevant in modern science, without giving excessive license to courts and juries to second-guess the lifestyles and eccentricities of individuals.

      Historical Perspectives on Comparative Administrative Law

      I’m very pleased to be chairing a panel later this week at the 2016 Conference on Comparative Administrative Law:
      Administrative Law is becoming a lively field for comparative research, and the Comparative Administrative Law Initiative at Yale Law School is partly responsible for that development. In the interest of contributing to the growth of the field, the Oscar M. Ruebhausen Fund at Yale Law School and the University of Connecticut Law School will host a conference on April 29-30, 2016 for the second edition of Comparative Administrative Law, edited by Susan Rose-Ackerman and Peter Lindseth. The new edition will include many new chapters by emerging scholars and will give broader regional coverage than the first edition. Most of the contributors to the previous edition have either revised their chapters in light of current developments or asked that their chapters be reprinted.  The website includes the program for the conference and a list of participants. As draft chapters arrive, they will be posted on the website with links on the conference program.  Anyone interested in attending the conference should contact Cathy Orcutt.
      My panel is “Historical Perspectives” and consists of the following scholars and papers:
      Révolution, Rechtsstaat and the Rule of Law: Historical Reflections on the Emergence of Administrative Power and Administrative Law in Europe
      Bernardo Sordi

      What’s in a Label? The EU as ‘Administrative’ and ‘Constitutional’
      Peter Lindseth

      Transformations of Administrative Law:  Italy From a Comparative Perspective
      Marco D’Alberti

      Oast's "Institutional Slavery"

      Although we didn’t realize it until quite recently, even before news about Georgetown and its slaves broke, Jennifer Oast, Associate Professor of History at Bloomsburg University, Pennsylvania, had published (with Cambridge University Press) a book that provides some context, Institutional Slavery: Slaveholding Churches, Schools, Colleges, and Businesses in Virginia, 1680–1860:
      The traditional image of slavery begins with a master and a slave. However, not all slaves had traditional masters; some were owned instead by institutions, such as church congregations, schools, colleges, and businesses. This practice was pervasive in early Virginia; its educational, religious, and philanthropic institutions were literally built on the backs of slaves. Virginia's first industrial economy was also developed with the skilled labor of African American slaves. This book focuses on institutional slavery in Virginia as it was practiced by the Anglican and Presbyterian churches, free schools, and four universities: the College of William and Mary, Hampden-Sydney College, the University of Virginia, and Hollins College. It also examines the use of slave labor by businesses and the Commonwealth of Virginia in industrial endeavors. This is not only an account of how institutions used slavery to further their missions, but also of the slaves who belonged to institutions.
      Here’s the TOC:

      1. 'Unlawful for any Christian': slave-owning Anglican churches in Virginia
      2. 'The legacies of well inclin'd gentlemen': slave-owning free schools in Virginia
      3. 'The worst kind of slavery': slave-owning Presbyterian churches in Virginia
      4. 'So large a family as the college': slavery at the College of William and Mary
      5. 'Faithful and valuable': slavery at Hampden-Sydney College, the University of Virginia, and Hollins College
      6. 'To make a trifle for themselves': industries as institutional slaveholders

      Tuesday, April 26, 2016

      Rubin on Proto-Prisons and Punishment-Reduction in Early America

      Ashley T. Rubin, Florida State University, School of Criminology and Criminal Justice, has posted Penal Change as Penal Layering: A Case Study of Proto-Prison Adoption and Capital Punishment Reduction, 1785-1822, which is forthcoming in Punishment & Society:
      Recently, scholars have increasingly criticized descriptions of significant penal change as "ruptures"--- sudden breaks with past practices, often replacing old technologies with new. This article promotes an alternative understanding of penal change as the layering of new penal technologies over old technologies to describe the complicated coexistence of old and new penal technologies following significant moments of change. This study demonstrates the layering process through a case study of the first major American penal reform: proto-prisons adopted between 1785 and 1822 are often described as the first great rupture in which long-term incarceration replaced capital punishment. Using the relationship between America's emerging proto-prisons and declining death penalty, this article illustrates the complicated coexistence of penal reforms with older technologies. While proto-prisons emerged out of revulsion with capital punishment, many states adopted proto-prisons independently of their decisions to reduce capital offenses and most states retained relatively robust death penalties. Rather than a replacement or rupture, the emergence of proto-prisons represented an additional layer of punishment that partially displaced older technologies.

      Graber on the Freedman's Bureau Bill's Constitution

      Mark Graber, University of Maryland, Francis King Carey School of Law, has posted The Second Freedmen's Bureau Bill's Constitution, which is forthcoming in the Texas Law Review
      "The Freedmen's Bureau" (1868) (LC)
      This paper focuses on the crucial elements of post-Civil War constitutionalism judges and scholars miss when they give the place of pride to the Civil Rights Act of 1866 at the expense of the Second Freedmen’s Bureau Bill. The Republicans who framed the Second Freedmen’s Bureau Bill recognized that persons could transition from slaves to full citizens only if Congress aggressively exercised national power under Section Two of the Thirteenth Amendment. Given the need for a high degree of nimbleness in the managing of that transition, Congress, rather than the judiciary, had to play the lead role in removing all badges and incidents of slavery in American constitutional life. These framers were concerned with economic inequalities or at least basic economic and social needs, but their concerns were not expressed in the form of judicially enforceable rights. The persons responsible for the post-Civil War Constitution believed the general welfare would best be promoted if the party of the majority of the people who remained loyal during the Civil War had control over all three branches of the national government necessary to enact and implement legislative programs that eradicated all traces of the destitution and dependency that had resulted from slavery and the Civil War.

      Hiring updates?

      Do you have other hiring updates to share? If so please connect with us via email, twitter, or the comment section below. We love passing on good news!

      Hiring Update: Zhang to Yale Law School

      Via Brian Leiter's Law School Reports, we have more exciting hiring news to report: Taisu Zhang, currently at Duke University, has accepted a lateral offer from Yale Law School.

      Professor Zhang holds a J.D. and a Ph.D. in history, both from Yale University, and has previously held positions at Brown University, the Tsinghua University School of Law, and Peking University Law School. His research focuses on economic institutions in modern China and early modern Western Europe, comparative law, property law, and contemporary Chinese Law.

      His current project, under contract with Cambridge University Press, is titled Kinship, Property and Agricultural Capitalism in Pre-Industrial China and England. A second manuscript-in-progress covers Chinese fiscal policy in the 18th and 19th centuries. His previous scholarship has appeared in the American Journal of Comparative Law and the Journal of Empirical Legal Studies, among other venues.

      Congratulations to Taisu Zhang!

      On Rights (Tani, States of Dependency, Post 3)

      For all you junior scholars out there, hard at work on your first books, here’s a tip: apply for grant money for a book manuscript workshop. You may feel awkward organizing something like this, but if done right, it’s fun and stimulating for all the participants, and it really does improve the work.

      Among the wonderful conversations that emerged from my manuscript workshop was one about balancing storytelling and argument.* Mine is a voice that tilts toward narrative, and probably for good reason: present company excluded [Dan], the legal-interpretive maneuvers of government bureaucrats are not exactly scintillating to most readers. States of Dependency uses human stories to describe and explain change over time in the law and administration of public income support.
      But I have always seen narrative as consistent with strong argumentation, and after the workshop, I pushed myself to be even more transparent about my major claims. One of my central arguments is about rights and their role in modern American governance. It is an argument that tries to make sense of both the familiar-looking welfare rights claims of the late 1960s, heard in the streets and in federal court, and the less familiar rights language that I found from the 1930s, 40s, and 50s: federal welfare administrators using rights language in internal memoranda and communiqués to their state counterparts; poor Americans referencing rights in individual disputes with state and local welfare authorities; and critics of New Deal welfare programs insisting, again and again, that welfare should not be discussed in such terms. Framing the entire inquiry is today’s clear aversion to rights-based poverty policies, in the face of continued reverence for triumphalist, rights-vindicating narratives. How did all these pieces fit together? 

      Monday, April 25, 2016

      Straumann on "Roman Political Thought from the Fall of the Republic to the Age of Revolution"

      New from Oxford University Press: Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution (2016), by Benjamin Straumann (New York University). A description from the Press:

      Crisis and Constitutionalism argues that the late Roman Republic saw, for the first time in the history of political thought, the development of a normative concept of constitution--the concept of a set of constitutional norms designed to guarantee and achieve certain interests of the individual. Benjamin Straumann first explores how a Roman concept of constitution emerged out of the crisis and fall of the Roman Republic. The increasing use of emergency measures and extraordinary powers in the late Republic provoked Cicero and some of his contemporaries to turn a hitherto implicit, inchoate constitutionalism into explicit constitutional argument and theory. The crisis of the Republic thus brought about a powerful constitutionalism and convinced Cicero to articulate the norms and rights that would provide its substance; this typically Roman constitutional theory is described in the second part of the study. Straumann then discusses the reception of Roman constitutional thought up to the late eighteenth century and the American Founding, which gave rise to a new, constitutional republicanism. This tradition was characterized by a keen interest in the Roman Republic's decline and fall, and an insistence on the limits of virtue. The crisis of the Republic was interpreted as a constitutional crisis, and the only remedy to escape the Republic's fate--military despotism--was thought to lie, not in republican virtue, but in Roman constitutionalism. By tracing Roman constitutional thought from antiquity to the modern era, this unique study makes a substantial contribution to our understanding of Roman political thought and its reception.
      A few blurbs:
      "With an impressive and wide-ranging triple grip on the ancient sources, early modern reception, and much more recent scholarship, Benjamin Straumann has lucidly reconstructed for us the Roman debate about emergency powers--above all concerning the dictatorship, extraordinary commands, and the question of limits to the citizen's right of appeal--in order to show how the long tradition of political reflection on the fall of the Republic, which stretches back to Cicero himself, eventually came to animate a great deal of modern constitutionalism." --Christopher Brooke 
      "Crisis and Constitutionalism is a brilliantly original and erudite argument in favor of the distinctiveness and long-term importance of Roman constitutional thought from Cicero to the American Founders, which demonstrates just how much Western political and legal thought, on both sides of the Atlantic, has owed, and still owes, to ancient Rome. It is controversial, highly compelling, and of very real contemporary significance." --Anthony Pagden
      More information is available here.

      Hiring Update: Mayeux to Vanderbilt Law

      More good news, via Prawfsblawg: Sara Mayeux, the Sharswood Fellow in Law and History at the University of Pennsylvania, has accepted a position at Vanderbilt Law School this fall.

      Sara Mayeux is a 2011 graduate of Stanford Law School and expects to receive her PhD from Stanford this year. Her dissertation is titled Poor Defenses: The American Legal Profession and the Problem of the ‘Indigent Accused’ in the Twentieth Century.” 

      She is also the author of "What Gideon Did," recently published in the Columbia Law Review, and the co-author of "Federalism Anew," which appears in the first issue of the re-launched American Journal of Legal History. You can read more about her research agenda here, at her personal website.

      Congratulations to Sara Mayeux!

      Hiring Update: Seo to Iowa Law

      Via Prawsblawg, we have good news to report: Sarah Seo, the inaugural Charles W. McCurdy Legal History Fellow at the University of Virginia, has accepted a position at the University of Iowa College of Law.

      Seo received her J.D. from Columbia University in 2007 and expects to receive her Ph.D. this year from Princeton University. Her dissertation is titled “The Fourth Amendment, Cars, and Freedom in Twentieth-Century America.”

      We've also just posted word of her recent Yale Law Journal article, "The New Public." Previous work has appeared in Law and Social Inquiry and the Law and History Review. You can read more about her research agenda here.

      Congratulations to Sarah Seo!

      Sunday, April 24, 2016

      Sunday Book Roundup

      Hello from Providence, Rhode Island and the Brown University Graduate Student Legal History Conference! It has been a long day, so this Sunday's Book Roundup is brief:

      From New Books comes an interview with Jefferson Cowie, who discusses The Great Exception: The New Deal and the Limits of American Politics (Princeton University Press).

      The Guardian calls Elizabeth Hinton's From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Harvard University Press) the "magisterial" "prequel to Michelle Alexander's ... The New Jim Crow."
      "Hinton doesn’t only blame the police, though. She tracks how money is spent on building prison-like security features to public housing in St Louis (which terrified residents), charts money spent on job training programs, and demonstrates how the LEAA grows 13-fold. And yet, “a federal employment drive to create jobs for black men never materialized” in the manner of the Works Progress Administration, which rescued impoverished white people during the Great Depression. At the same time, in allocating generous funding through the Office of Law Enforcement Assistance, the Johnson administration did underwrite robust hiring in nearly all-white police departments – some of which also began patrolling inner-city school campuses."
      And, The Nation prescribes five books of essential reading: "Five Books: These Histories of Black Struggle Should Inform Us in 2016," including:

      Saturday, April 23, 2016

      Weekend Roundup

      • Congratulation to Sophie Kouri, Belle Heine, and Samantha Kanal, some of the Yankton High School’s entrants in the South Dakota stage of the annual National History Day competition, for winning first place in the exhibits category and the Legal History Award for their exhibit, "Encounter at the University of South Dakota: Diversifying the Law School."  They will advance to the national competition at the University of Maryland in June. H/t: Yankton Daily Press and Dakotan.
      Serena Mayeri (credit)
      • Congratulations, too, to Penn Law’s Serena Mayeri on being named “one of 78 new speakers appointed to the prestigious Distinguished Lectureship Program by the Organization of American Historians.”
      • From the African American Intellectual History Society: a post by Jared Hardesty (Western Washington University) on "how enslaved and free black men and women sought meaning in and knowledge of the law."
      • Earlier we posted on Jack Balkin's review of Randy Barnett's Our Republican Constitution.  Barnett's (and my) Georgetown Law colleague Lawrence Solum comments on Balkin's review on Legal Theory Blog.  DRE
      • ICYMI: Jason L. Bates, “Consolidating Support for a Law ‘Incapable of Enforcement’: Segregation on Tennessee Streetcars, 1900-1930,” Journal of Southern History 82 (2016): 97-126; Bruce Kaufman,“Divergent Fates: Company Unions and Employee Involvement in Committees under the Railway Labor and National Labor Relations Acts,” Labor History 56 (2015): 423-58.
      • We've already noted that Felice Batlan has won the Hurst Prize for Women and Justice for the Poor, but here's Chicago-Kent's press release.

      Friday, April 22, 2016

      Ho on a Confucian Theory of Property

      Norman P. Ho, Peking University School of Transnational Law, has posted A Confucian Theory of Property, which is forthcoming in the Tsinghua China Law Review:
      Based on an analysis of the teachings of Confucius and Mencius, this article sets forth a Confucian justificatory theory of private property. I argue that such a theory is a pluralist theory, simultaneously based on numerous theoretical bases or strands. First, it justifies property based on a theory with utilitarian overtones – namely, that people will be better off in a private property regime as it will lead to a more stable, harmonious, and orderly society. Second, a Confucian theory of property justifies a private property regime as essential in allowing individuals to fulfill, express, and/or practice key, specific Confucian virtues, which in turn allows for full moral development (we might understand this conceptually as a Confucian version of a personhood/human flourishing theory of property). Third, it justifies property based on an economy efficiency theory – that is, private property is key to the smooth functioning of a trade-based economy. All three strands are linked together by a common concern for the moral development of the individual. This article is important for two major reasons: first, it serves as a corrective to the often heard stereotype that Confucianism is not supportive of property rights; and second, it can contribute to the field of property theory as a whole by offering a coherent and integrated theory which weaves different justificatory property theories together.

      Johnson on "Imposts" and Ratitification in New York

      Calvin H. Johnson, University of Texas School of Law, has posted “Impost Begat Convention”: New York's Ratification of the Constitution:
      The meaning of the Constitution is said to be set by the ratification debates. The key issue in New York was nationalizing the tax on imports, called the “impost.” The sides as to ratification in New York were set by the debates over the 1783 proposal to give Congress power to impose the impost. The defeated proponents of the 1783 impost in New York became the Federalists in favor of the Constitution in 1788, and the party that had defeated the 1783 impost remained intact to become the Anti-Federalists in opposition to the Constitution in 1788.

      Nationalizing the state imposts was the key economic necessity for the Constitution as a whole. The first mission of the Constitution, under proponents’ understanding, was to give Congress a tax of its own to make payments on the debts of the Revolutionary War. In the next and inevitable war, Congress would need to borrow from the Dutch again. The impost was considered across the nation as the easiest tax and most appropriate one under the mercantilist economics of the times.

      If New York legislature had granted the general government the power over the impost, the confederation mode of government under the Articles probably would have survived. The confederate congress would not have been replaced by the self-sufficient, vigorous, supreme national government that the Constitution formed, or at least not until some future crisis. As Hamilton appropriately put it, “Impost Begat Convention.”

      Oosterveld's "Law of Nations in Early American Foreign Policy"

      Willem Theo Oosterveld, a strategic analyst with The Hague Centre for Strategic Studies, has published The Law of Nations in Early American Foreign Policy: Theory and Practice from the Revolution to the Monroe Doctrine (Brill, 2016).  According to the publisher, it
      provides the first general study of international law as interpreted and applied by the generation of the Founding Fathers. A mostly neglected aspect in the historiography of the early republic, this study argues that international law was in fact an integral part of the Revolutionary creed.  Taking the reader from colonial debates about the law of nations to the discussions about slavery in the early 19th century, this study shows the zest of the Founders to conduct foreign policy on the basis of treatises such as Vattel’s The Law of Nations. But it also highlights the deep ambiguities and sometimes personal struggles that arose when applying international law.
      TOC after the jump

      Tani and Lebovic Named Weiss Malkiel Fellows

      Congratulations to my co-blogger Karen Tani and to Sam Lebovic for their being named Nancy Weiss Malkiel Junior Faculty Fellows by the Woodrow Wilson National Fellowship Foundation.  Here are all of this year’s recipients and their projects:
      Christopher (Chris) Dietrich • Fordham University, history
      Current project: Tortured Peace: Ralph Bunche, Race, and UN Peacemaking

      Tiffany Joseph • Stony Brook University, sociology
      Current project: How race, ethnicity, and documentation status shape Latino immigrants’ qualitative experiences with the healthcare system under health reform

      Sam Lebovic • George Mason University, history
      Current project: A history of American efforts to promote and manage cultural globalization in the middle decades of the twentieth century

      Mark Krasovic • Rutgers University–Newark, history
      Current project: Federally funded artistic production during the New Frontier/Great Society

      Karen Tani • University of California, Berkeley, law
      Current project: States of Dependency: Welfare, Rights, and American Governance, 1935–1972

      Honorable Mention:
      Christy Chapin • University of Maryland, Baltimore County, history
      Current project: Politics and Money: Finance Capitalism and the U.S. Economy

      Thursday, April 21, 2016

      Seo on Charles Reich and the Fourth Amendment

      Sarah Seo (Charles W. McCurdy Fellow, University of Virginia School of Law) has a new essay in the April issue of the Yale Law Journal titled, "The New Public." Here's the abstract:
      By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history of criminal procedure, putting some limits on the police’s discretionary power may require partitioning the enforcement of traffic laws from the investigation of crime.

      Novick on the Originial Meaning of "This Constitution"

      Sheldon Novick, Vermont Law School, has posted The Original Understanding of “This Constitution”:
      Methods of the New Originalism help us understand what sort of text the Constitution was understood to be when it was adopted. The text refers to itself, and so inquiries into the original understanding of the self-referential phrase “this Constitution” may illuminate the character of the document when it was ratified. Evidence of the usage of the time leads to the unsurprising conclusion that the Constitution of 1787-1789 was understood to be an account of a social compact — a political act — authorizing a new central government. In the original understanding, the Constitution authorized the creation of common-law courts. Judges and justices took their oaths, not to a document or a text, but to the federal, republican form and character (the “constitution”) of the government, and the truths on which it was founded. Judges reviewing the acts of political institutions were to be guided in their decisions, not by turning the aphoristic text of the Constitution into enforceable rules, but by judicial precedents and the maxims of justice and equality implicit in the structure and text of the Constitution, maxims expressed more fully in state constitutions and the Declaration of Independence. This is all familiar history, but it contradicts a premise of the New Originalism, an assumption that the Constitution was an enactment like a statute or contract, a text that judges must apply today according to its fixed terms to resolve disputes. Amendments to the Constitution were enacted as legislation and some, particularly the Fourteenth Amendment, were expected to be interpreted and applied like statutes, but the original Constitution of 1787-1789 was not understood in that way.

      2016 Pre-Conference Digital History Workshop Open for Registration

      [From the ASLH’s website:]

      On 27 October 2016, a one-day pre-conference workshop will be held at the Osgoode Hall Law School to increase awareness of digital legal history, and encourage discussion of how digital methods and technologies can be used to analyze and present the legal past, and of new initiatives to undertake such projects. The workshop combines an extended showcase of four projects that each employs a different approach — O Say Can You See: Early Washington, D.C., Law and Family; The Lawyers’ Code: Tracking the Migration and Influence of the Field Code; Digital Harlem; and Voices of Authority: the Old Bailey Courtroom — and a set of hands-on workshops offering a beginner-level introduction to the methods used in those projects. The workshop is free and open to ASLH members. No experience in digital history is required. Registration is required as the workshop can only accommodate 60 participants.  To register, select here.

      Wednesday, April 20, 2016

      Nettelbeck, et al., eds., on "Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada"

      New from the University of Washington Press: Fragile Settlements: Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada, edited by Amanda Nettelbeck (University of Adelaide), Russell C. Smandych (University of Manitoba), Louis A. Knafla (University of Calgary), and Robert Foster (University of Adelaide). A description from the Press:
      Fragile Settlements compares the processes through which British colonial authority was asserted over Indigenous peoples in southwest Australia and prairie Canada from the 1830s to the early twentieth century. At the start of this period, as a humanitarian response to settlers' increased demand for land, Britain's Colonial Office moved to protect Indigenous peoples by making them subjects under British law. This book highlights the parallels and divergences between these connected British frontiers by examining how colonial actors and institutions interpreted and applied the principle of law in their interaction with Indigenous peoples "on the ground."
      A few blurbs:
      "Fragile Settlements makes an important contribution to the growing field of transcolonial studies by bringing into conversation the legal histories of the dispossession of Indigenous peoples in south-west Australia and western Canada. The authors provide critical insight into the ways in which the various forms of legal colonial governance played out in two locales. This work is an important one for anyone considering how the legal histories of the past can better inform our understanding of clashes over sovereignty and jurisdiction in the present."
      -Shaunnagh Dorsett
      "The authors of Fragile Settlements tackle what few legal scholars have attempted - regional comparisons - and they do it very well. They ambitiously and successfully set out to uncover how contemporary experiences of "imperfect sovereignty" in both Australia and Canada can be traced to their parallel histories of Aboriginal subjugation through law and other forms of settler governance."
      -Peter Karsten
      More information is available here.

      Endersby and Horner, "Lloyd Gaines and the Fight to End Segregation"

      New from the University of Missouri Press: Lloyd Gaines and the Fight to End Segregation, by James W. Endersby (University of Missouri) and William T. Horner (University of Missouri). A description from the Press:
      In 1936, Lloyd Gaines’s application to the University of Missouri law school was denied based on his race. Gaines and the NAACP challenged the university’s decision. Missouri ex rel. Gaines v. Canada (1938) was the first in a long line of decisions by the U.S. Supreme Court regarding race, higher education, and equal opportunity. The court case drew national headlines, and the NAACP moved Gaines to Chicago after he received death threats. Before he could attend law school, he vanished.
      This is the first book to focus entirely on the Gaines case and the vital role played by the NAACP and its lawyers—including Charles Houston, known as “the man who killed Jim Crow”— who advanced a concerted strategy to produce political change. Horner and Endersby also discuss the African American newspaper journalists and editors who mobilized popular support for the NAACP’s strategy. This book uncovers an important step toward the broad acceptance of the principle that racial segregation is inherently unequal.
      This is the inaugural volume in the series Studies in Constitutional Democracy, sponsored by the Kinder Institute on Constitutional Democracy.
      More information is available here

      Fleming Wins Kroos Prize

      Congratulations to my Georgetown Law colleague Anne Fleming for winning the he Business History Conference’s Herman E. Krooss Prize for Best Dissertation in Business History for “City of Debtors:  Law, Loan Sharks, and the Shadow Economy of Urban Poverty, 1900-1970” (University of Pennsylvania 2014). 

      Carnegie Fellows Announced

      Among the just-announced Andrew Carnegie Fellows is the historian Maribel Morey, Assistant Professor, Clemson University, who won it for“Big Philanthropy in the Lives of Black Americans: What Today's Foundations Can Learn from this History.”  I was also pleased to see among the recipients Beryl Satter, Professor, Rutgers University-Newark, for “Economic Democracy from the Bottom Up: ShoreBank, Uneven Development, and the Paradoxes of Race, Community and Financialization, 1973-2010”; Charles G. Geyh, John F. Kimberling Professor of Law, Indiana University, for “Lies, Damn Lies, and Judicial Elections: Transcending the Shrill Public Policy Debate over Judicial Selection in America”; and my fellow LAPA Fellow Mark Fathi Massoud, Associate Professor, Politics and Legal Studies, University of California, Santa Cruz, for “Human Rights and Islamic States: Can Religion Rebuild the Rule of Law After War?”  H/t: Mary Dudziak

      Tuesday, April 19, 2016

      H-Law Podcast: Ziegler on "After Roe"

      The first episode of H-Law's new podcast series is now available. Siobhan Barco talks with former guest blogger Mary Ziegler (Florida State University College of Law) about After Roe: The Lost History of the Abortion Debate.

      Ruskola on China from Qing Empire to Nation State

      Teemu Ruskola, Emory University School of Law, has posted China in the Age of the World Picture, which is forthcoming in Oxford Handbook of the Theory of International Law, ed. Florian Hoffman & Anne Orford (Oxford University Press, 2016):
      Most scholars of international law approach the topic from the vantage point of the North Atlantic, with China figuring at best as an example — or, more frequently, a counter-example — that illustrates a more central point about the history and character of the international legal order. This chapter insists on placing China at the center of international legal theory. Stated most broadly, it asks: How did the multiethnic Qing empire (1644-1911) on the eastern edge of the Eurasian landmass become “China,” a sovereign nation-state in a world of other, formally equal nation-states?

      Wasserman on Holmes and Brennan

      Howard M. Wasserman, Florida International University College of Law, has posted Holmes & Brennan, which is to appear in the Alabama Law Review 67 (2016): 797-854:
      This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas: 1) the connections and intersections between these watershed opinions and their revered authors, including how New York Times and its progeny brought to fruit the First Amendment seeds that Holmes planted in Abrams; 2) three recent Supreme Court decisions that show how deeply engrained in the First Amendment fabric both cases have become; and 3) how Brennan took the speech-protective lead in many other areas of First Amendment jurisprudence.

      Wolitz on Wechsler, the Legal Process, and the Model Penal Code

      David Wolitz, University of Tennessee College of Law, has posted Herbert Wechsler, Legal Process, and the Jurisprudential Roots of the Model Penal Code, which is forthcoming in the Tulsa Law Review:
      Herbert Wechsler (CLS)
      Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962) in which he wrote many of the canonical texts of Legal Process jurisprudence. Yet the connection between Wechsler’s work in criminal law and his Legal Process philosophy has received relatively little scholarly attention. In fact, as this article details, Wechsler’s approach to criminal law reform reflected all the core themes of Legal Process theory and accounts for both the Code’s overall structure and many of its doctrinal innovations.

      Seeing the Model Penal Code as a product of Legal Process jurisprudence helps clear away significant misconceptions about the Model Penal Code and also recasts conventional understandings of Legal Process theory itself. Though the Model Penal Code has been caricatured as overly ambitious, thoroughly utilitarian, and technocratic-elitist, the Code actually represented the modest aims, value pluralism, and democratic commitments of Wechsler and the Legal Process School. Wechsler was committed to producing both a principled rationalization of criminal law and a prudent piece of social legislation. The healthy tension in the Code between principle and prudence — the two watchwords of Legal Process theory — account for the Code’s unparalleled impact on American criminal law.

      Monday, April 18, 2016

      Kar and Mazzone on the Garland Nomination

      Robin Bradley Kar, and Jason Mazzone, University of Illinois College of Law, have posted What History and the Constitution Really Say About President Obama's Power to Appoint a Replacement for Justice Scalia, which appears in the NYU Law Review: Online Features (2016):
      After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. Instead, Senate Republicans seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have not yet engaged with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the Supreme Court pending, this article seeks to bring greater attention to these risks.

      CFP: Historicising International (Humanitarian) Law

      [Via Legal Scholarship Blog, we have word of the following CFP.]

      Call for Papers and Sessions: Historicising International (Humanitarian) Law? Could We? Should We?  Uppsala 6–8 October 2016.

      During the last couple of decades, law has broken its conceptual isolation. Through interventions by authors such as Martti Koskenniemi and David Kennedy, a new critical way of looking at law has brought the field closer to the social sciences. Critical geographers such as Arnulf Becker Lorca show how to broaden the geographical understanding of law. Much, though not all, of this discussion is about the laws of war, and it is also through this subject that professional historians enter this field of study.  So: should we historicise law? Could we, in a workable way?

      The Hugo Valentin Centre at the Uppsala University together with Stockholm Center for International Law and Justice invite scholars within both law, history, and the other humanities and social sciences to take part in an international conference on 6-8 October 2016. The conference is open for professional scholars and doctoral students (or comparable).

      The call for papers and sessions is open until May 30th, 2016.  There will be no fee, but on the other hand, no subsidies are available. Hotel rooms and food will be available for reasonable prices (see below).

      Key speakers are  Alexander Gillespie (NZ), Mark Klamberg (Sweden), Arnulf Becker Lorca (UK/USA), Marc Neocleous (UK), Daniel Segesser (Switzerland) (more names are forthcoming).

      If you want to present a paper, or organise a session, please contact Mats Deland:

      The event is organized in cooperation with the Stockholm Center for International Law and Justice, and receives financial support from Vetenskapsrådet (Swedish research council).

      Brown University Legal History Graduate Student Conference

      For those in the area, the schedule for the Brown University Legal History Graduate Student Conference on April 23, 2016, is now available, here.
      This conference aims to provide an intimate setting in which PhD students from Brown and other universities may share works-in-progress on any topic in legal history, or any historically-inclined approach to the study of “law and …”

      The conference will consist of four panels, each with four graduate student presenters. A fifth session, during the shared lunch, will be a panel of four Brown faculty who work with legal sources. They will present on the varieties of legal sources and myriad challenges and rewards of their use.

      The conference is being organized by the co-conveners of the Law and Humanities Graduate Study Group – a student-led interdisciplinary community of graduate students and Brown faculty interested in a humanistic approach to the study of law.

      Why I Wrote This Book (Tani, States of Dependency, Post 2)

      A few months back, I blogged here about how hard it was for me to let go of my book manuscript.  Now that it’s out in the world, I’ve been reflecting on why I wrote the book in the first place. How did this one set of research questions maintain my interest for so long? 

      In brief, States of Dependency is about fundamental changes in the law and administration of welfare in the twentieth-century U.S., and about what those changes teach us about the modern American state. Or, as the law professor in me would say, it's about how and why Americans became willing to frame almost anything as a right – except the things that are essential for human survival. The New Deal marks the book's opening, and modern welfare rights litigation, the end. In between is a story about how federal administrators wielded the power of the purse in their attempts at reform; how actors at the state and local levels adapted to and contested a new mode of public beneficence; and how people on the ground negotiated this shifting terrain

      But why this topic and not something else? As do so many things in this profession, this book began with the attention and enthusiasm of a mentor. As an undergraduate, I assisted Professor Annelise Orleck (Dartmouth College) as she researched her wonderful book on welfare rights activism in Las Vegas (Storming Caesars Palace). The project introduced me to the complexities of modern American poverty policy and to the equally complex aspirations of economically vulnerable citizens. It also introduced me to one of the most powerful narratives in late-twentieth-century U.S. history and politics: the failure of President Johnson’s “Great Society.” (Orleck has since helped debunk that narrative, in an important co-edited volume on the War on Poverty “at the grassroots.”) I started law school and history graduate school with the thinnest of research agendas, but perceiving a puzzling gap between the hopes and expectations that American government continued to foster and the daily experiences of many poor citizens.

      Sunday, April 17, 2016

      Sunday Book Roundup

      For the The Washington Post, Julian Zelizer reviews Randall Woods's Prisoners of Hope: Lyndon B. Johnson, the Great Society, and the Limits of Liberalism (Basic Books).
      "If Woods overstates Johnson’s power in domestic affairs, he is too generous to LBJ when dealing with Vietnam. He presents the war as another example of how Johnson’s genuine commitment to liberalism — in this case, the belief that the export of liberalism to Southeast Asia was the only true “antidote” to Marxism-Leninism — simply missed the limits of what the U.S. government could accomplish. Yet he plays down how Vietnam was a crass political trade-off Johnson made to protect Great Society liberalism and its supporters from the chronic attacks on Democrats as weak on defense. Obsessed with protecting his coalition, Johnson destroyed his legacy.
      None of this detracts from the fact that “Prisoners of Hope” is a sweeping history of LBJ’s domestic record. Readers will come away with a better appreciation of this moment in history when a savvy Texan produced a burst of liberal reform comparable to the New Deal."
      Also in The Washington Post, Vikram Amar reviews We the People: The Modern-Day Figures Who Have Reshaped and Affirmed the Founding Fathers' Vision of America by Juan Williams (Crown).
      "And while I, like many constitutional law professors, revel in the last quarter of the 1700s, one of the most important lessons one might take when reflecting on Williams’s compilation is that his characterization of the Founding Fathers as the “ever-reliable touchstone of Americanness” perhaps ought to be updated to refer to the framers of the Reconstruction-era constitutional revisions."
      Douglas Clark discusses his new three-volume study, Gunboat Justice: British and American Law Courts in China and Japan (1842-1943) (Earnshaw Books Limited) with New Books in American Studies.

      Saturday, April 16, 2016

      272 Slaves Were Sold to Save Georgetown

      This just in, too late to be included in the Weekend Roundup: 272 Slaves Were Sold to Save Georgetown: What Does It Owe Their Descendants? is an extraordinary article in the New York Times by Rachel L. Swarns on a horrific incident in the history of Georgetown University and its consequences.

      Weekend Roundup

      • Al Brophy discusses his vision for the American Journal of Legal History on OUPblog
      • "The Supreme Court in Historical Perspective: Politics and Legal Change," a panel discussion held on Thursday, April 14th, 2016 at Columbia University with Eric Foner, Dewitt Clinton Professor of History, Michael J. Graetz, Columbia Alumni Professor of Tax, Sidney Rosdeitcher, Adjunct Professor of Political Science, and Herb Sloan, Professor Emeritus (United States), viewable online here.
      "Katie," Jacob Riis (LC)
      • The April 2016 newsletter of the Historical Society of the DC Circuit is here.  It includes a link to Judge Patrica Wald's entry on Judge J. Skelly Wright in the Yale Biographical Dictionary of American Law.  (How's that for clickbait?) 
      • We can't tell you how cross we were with ourselves for not getting this one.
      • ICYMI: R. B. Bernstein, Annette Gordon-Reed, Sean Wilentz et al. weigh in on "Hamilton; at Princeton University's Woodrow Wilson School, a panel on Wilson's legacy on race (in the Daily Princetonian.)
      • Hey, graduate students: the American Historical Association is seeking summer bloggers.
      Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.